MBNA / Restons

[supasnooper]

hi C-B,

 

Restons scare tactics at work.

 

As you have only just received this WS, you would be well within your rights at court to ask for an adjournment to seek further advice.

 

However, I see it as Restons trying to scare you at the last minute. As you've read - it is full of "would", "would" "would" ....blah, blah blah.

 

Would is not good enough !

Remember CPR 16.7.3 - bring the original document to court.

 

 

 

They did this to me, fairbyblue and robcag.

 

Take a deep breathe and go to court.

 

Restons representative will probably make themselves known and try to get a deal out of you.

 

Listen to them carefully................reply if you wish but I would advise to stay calm and say nothing.

 

Have faith in what you have learned from CAG, have copies of your defence to hand especially Woodchester to deal with the defective DN.

 

have a look at this thread on how a case is heard at court (post#13 onwards) - http://www.consumeractiongroup.co.uk/forum/legal-issues/108467-basic-introduction-consumer-credit.html

[citizenB]

This is in response to point 4: where they claim a Saturday is a business day. Not according to this it isnt.

 

 

PART 6 - SERVICE OF DOCUMENTS - Ministry of Justice

 

Interpretation

6.2

 

 

In this Part –

(a) ‘bank holiday’ means a bank holiday under the Banking and Financial Dealings Act 19711 in the part of the United Kingdom where service is to take place;

 

(b) ‘business day’ means any day except Saturday, Sunday, a bank holiday, Good Friday or Christmas Day;

 

© ‘claim’ includes petition and any application made before action or to commence proceedings and ‘claim form’, ‘claimant’ and ‘defendant’ are to be construed accordingly; and

 

(d) ‘solicitor’ includes other authorised litigators within the meaning of the Courts and Legal Services Act 19902.

 

 

[42man]

"Witness Statement provided by the Defendant and in particular the extracts from the 'Council Tax Manual' do not determine the meaning of 'Working Day' for the purposes of this application. It is the Claimant's submission" - I think the CPR interpretation of working day (as highlighted to me by CitizenB) carry more gravitas in a court of law, than a council tax manual !!!

[Cartier-Bresson]

Thanks folks - all acknowledged and much appreciated ..... stress-o-meter now just down to red !

 

Will do some reading now - thanks for link and MOJ quote

 

cheers > CB

[pt2537]

and the council tax manual is relevant because of.................?

[pt2537]

to overcome summary judgment, you merely need to show that there is a chance on the balance, that you may win at trial, you do not need to show that you WILL win.

 

I will see what i can dig out to assist here

[pt2537]

TEST FOR ENTERING SUMMARY JUDGMENT

 

34.10 Rule 24.2 of the CPR provides:

 

The court may give summary judgment against a claimant or defendant on the whole of a claim or on a particular issue if––

 

(a) it considers that––

 

(i) that claimant has no real prospect of succeeding on the claim or issue; or

(ii) that defendant has no real prospect of successfully defending the claim or issue; and

 

(b) there is no other compelling reason why the case or issue should be disposed of at a trial.

 

An application for summary judgment is decided applying the test of whether the respondent has a case with a real prospect of success, which is considered having regard to the overriding objective of dealing with the case justly. This has been said to be consistent with the need for a fair trial under art. 6(1) of the European Convention on Human Rights (Three Rivers District Council v Bank of England (No. 3) [2001] UKHL 16, [2003] 2 AC 1). Whether there is a real prospect of success is the same test as that applied in applications to set aside default judgments (see 20.11 and E. D. and F. Man Liquid Products Ltd v Patel [2003] EWCA Civ 472, [2003] CPLR 384).

 

In Swain v Hillman [2001] 1 All ER 91 Lord Woolf MR said that the words ‘no real prospect of succeeding’ did not need any amplification as they spoke for themselves. The word ‘real’ directed the court to the need to see whether there was a realistic, as opposed to a fanciful, prospect of success. The phrase does not mean ‘real and substantial’ prospect of success. Nor does it mean that summary judgment will only be granted if the claim or defence is ‘bound to

be dismissed at trial’. A claim may be fanciful where it is entirely without substance, or where it is clear beyond question that the statement of case is contradicted by all the documents or other material on which it is based (Three Rivers District Council v Bank of England (No. 3)). The judge should have

regard to the witness statements and also to the question of whether the case is capable of being supplemented by evidence at trial (Royal Brompton Hospital NHS Trust v Hammond [2001] BLR 297). The question of whether there is a real prospect of success is not approached by applying the usual balance of probabilities standard of proof (Royal Brompton Hospital NHS Trust

v Hammond). Applying a test of whether the claim is arguable will give grounds for appeal (Sinclair v Chief Constable of West Yorkshire (2000) LTL 12/12/2000). In E. D. and F. Man Liquid Products Ltd v Patel Potter LJ at [6] regarded the terms ‘real prospect’ and ‘realistic prospect’ as interchangeable. Lord Woolf MR in Swain v Hillman said that summary judgment applications have to be kept within their proper role. They are not meant

to dispense with the need for a trial where there are issues which should be considered at trial.

 

Further, summary judgment hearings should not be mini-trials. They are simply summary hearings to dispose of cases where there is no real prospect of success. Without allowing the application to become a mini-trial, there are occasions when the court has to consider fairly voluminous evidence in order to understand the facts that are in issue (Miles v ITV Networks Ltd

[2003] EWHC 3134 (Ch), LTL 9/12/2003).

 

Burden of proof

 

An important issue on many applications for summary judgment is whether the burden 34.11 of proof is on the applicant to show the respondent’s case has no real prospect of success, or whether the burden of proof rests with the respondent to establish a case with a real prospect

of success. In E. D. and F. Man Liquid Products Ltd v Patel [2003] EWCA Civ 472, [2003] CPLR 384, Potter LJ said at [9] that the burden of proof is on the applicant to show the respondent’s case has no real prospect of success. Strictly this is no more than an obiter dictum, because the

learned judge was dealing with an application to set aside a default judgment, and was contrasting his view of the burden of proof on the two types of application. Whether Potter LJ’s view is correct is open to question.

Under the old rules the incidence of the burden of proof was perfectly clear, because RSC, ord. 14, r. 3(1), said in terms: ‘Unless . . . the defendant satisfies the court with respect to the claim, or part of the claim, to which the application relates that there is an issue or question in dispute which ought to be tried . . . the court may give such judgment for the plaintiff ’.

The present rule, CPR, r. 24.2, is not explicit on the burden of proof, saying: ‘The court may give summary judgment against a [defendant] . . . if (a) it considers that (ii) that defendant has no real prospect of successfully defending the claim or issue’ (and similarly if the application is against the claimant). Lord Woolf ’s Final Report says, at p. 123, regarding

applications for summary judgment

 

Part H Interim Applications

 

The test for making an order would be that the court considered that a party had no realistic prospect of succeeding at trial on the whole case or on a particular issue. A party seeking to resist such an order would have to show more than a merely arguable case; it would have to be one which he had a real prospect of winning.

 

The wording of PD 24, paras 4.1 and 4.2, when first issued, made it clear that the burden of proof was on the respondent, providing:

 

4.1 Where a claimant applies for judgment on his claim, the court will give that judgment if:

 

(1) the claimant has shown a case which, if unanswered, would entitled him to that judgment, and

 

(2) the defendant has not shown any reason why the claim should be dealt with at trial.

 

4.2 Where a defendant applies for judgment in his favour on the claimant’s claim, the court will give that judgment if either:

 

(1) the claimant has failed to show a case which, if unanswered, would entitle him to judgment, or

 

(2) the defendant has shown that the claim would be bound to be dismissed at trial.

 

Thus, under the old para. 4.1(1), a claimant applying for summary judgment had to adduce evidence establishing his claim (but not disproving any purported defence), as is clear from the phrase ‘which, if unanswered’.

In Swain v Hillman [2001] 1 All ER 91 Lord Woolf MR commented on the revocation of the original paras 4.1 and 4.2 of PD 24 as follows:

 

The reason for that deletion is obvious. It was perceived that there was a conflict between paras 4.1 and 4.2 and the provisions of Part 24. The PD was laying down a different standard which indicated that the approach required was one of certainty. The judge could only exercise his power under Part 24 if he was certain or, to read the actual language of the PD, he thought that a claim ‘would be bound to be dismissed at trial’. If that was thought to be the effect of the PD, that would be putting the matter incorrectly because that did not give effect to the word ‘real’ to which I have already referred.

 

Paragraphs 4.1 and 4.2 were deleted because they imposed, or were perceived to impose, too high a standard of proof on an application for summary judgment. It was not because they imposed the wrong burden of proof. The true burden of proof, it is suggested, is still on the respondent to show a case with a real prospect of success

 

Complex claims

 

34.12 Complex claims, cases relying on complex inferences of fact, and cases with issues involving mixed questions of law and fact where the law is complex are likely to be inappropriate for summary judgment (Three Rivers District Council v Bank of England (No. 3) [2001] UKHL 16, [2003]

2 AC 1; Arkin v Borchard Lines Ltd (No. 2) (2001) LTL 21/6/2001). The high standard of proof required at trial in fraud claims means that it will be difficult to succeed on a summary judgment application in such a case (Allied Dunbar Assurance plc v Ireland [2001] EWCA Civ 1129,

LTL 12/6/2001).

 

If an application for summary judgment involves prolonged serious argument, the court should, as a rule, dismiss it without hearing the argument, unless it harbours doubt about the soundness of the statement of case and is satisfied that granting summary judgment would avoid the need for a trial or would substantially reduce the burden of the trial (Three Rivers

District Council v Bank of England (No. 3); Partco Group Ltd v Wragg [2002] EWCA Civ 594, [2002] 2 Lloyd’s Rep 343, at [28]; Equitable Life Assurance Society v Ernst and Young [2003] EWCA Civ 1114, [2003] 2 BCLC 603).

Summary judgment is also inappropriate in cases in areas of developing

jurisprudence, which should only be decided on the basis of actual findings of fact (Farah v British Airways plc (1999) The Times, 26 January 2000; Barrett v Enfield London Borough Council [2001] 2 AC 550).

 

Defence on the merits

 

34.13 On an application for summary judgment by a claimant, the defendant may seek to show a defence with a real prospect of success by setting up one or more of the following:

 

Chapter 34 Summary Judgment

 

357

 

(a) a substantive defence, e.g., volenti non fit injuria, frustration or illegality;

(b) a point of law destroying the claimant’s cause of action;

© a denial of the facts supporting the claimant’s cause of action;

(d) further facts answering the claimant’s cause of action, e.g., an exclusion clause, or that the defendant was an agent rather than a principal.

An example under the old rules was Mercer v Craven Grain Storage Ltd [1994] CLC 328. The claimant was a farmer who deposited a quantity of grain with the defendant storage company. Later, the claimant requested redelivery, but the defendant was only able to deliver a small fraction of the grain. The defendant alleged that the claimant had entered into an agreement with a marketing company, and that the missing grain had been withdrawn from the store

with the authority of the marketing company. By a bare majority it was held that this defence raised triable legal and factual issues, and leave to defend was given. With the change in the test, this case would now perhaps result in a conditional order being made.

 

Points of law and construction

 

Although summary judgment applications should not be allowed to turn into mini-trials, 34.14 where the case turns on an issue of construction of a term in a contract the court will usually determine the point and give judgment accordingly (Wootton v Telecommunications UK Ltd

(2000) LTL 4/5/2000).

 

Where a clear-cut issue of law is raised by way of defence in an application for summary judgment, the court should decide it immediately. This is so even if the question is, at first blush, of some complexity and therefore will take some time to argue fully (see Lord Greene MR in Cow v Casey [1949] 1 KB 474). Not deciding a case once full argument has been addressed to the court on the issue will result in the case going to trial, where the argument

will be rehearsed again, with consequent delay and unnecessary expense.

 

Likewise, where the point at issue is one of the construction of contractual documents, the court will decide the point on the summary judgment application, provided it is relatively straightforward (Coastal

(Bermuda) Ltd v Esso Petroleum Co. Ltd [1984] 1 Lloyd’s Rep 11). In GMAC Commercial Credit Ltd v Dearden (2002) LTL 31/5/2002 summary judgment was given to the claimant against four of the defendants, with a conditional order against the fifth defendant. The claim was to enforce personal guarantees given by directors to secure borrowing by their company. It was held that

defences of economic duress had no real prospect of success, the claimant having acted in good faith and its conduct not going beyond what was normal and legitimate in commercial arrangements.

However, it is quite a different matter, per Lord Donaldson of Lymington MR in R. G. Carter Ltd v Clarke [1990] 1 WLR 578: if the issue of law is not decisive of all the issues between the parties or, if decisive of part of the

[claimant’s] claim or of some of those issues, is of such a character as would not justify its being determined as a preliminary point, because little or no savings in costs would ensue. It is an a fortiori case if the answer to the question of law is any way dependent upon undecided issues of fact.

 

Summary judgment should also be refused where the point requires protracted argument (Home and Overseas Insurance Co. Ltd v Mentor Insurance Co. (UK) Ltd [1990] 1 WLR 153). Summary judgment was refused in System Control plc v Munro Corporate plc [1990] BCLC 659, in which it was held that whether the claimants had irrevocably elected to treat a contract as discharged,

or whether they could enforce it, was an issue which should be decided at trial.

 

In I-Way Ltd v World Online Telecom Ltd [2002] EWCA Civ 413, LTL 8/3/2002, the claimant sued to recover the benefits it alleged were due to it under an oral variation of a written contract. The defendant resisted the claim relying on a clause of the written contract that there was to be no addition

or amendment to the contract unless it was in writing and signed by both parties. An application by the defendant for summary judgment against the claimant was dismissed, because there was no direct authority on the issue whether the parties could prevent oral

 

Part H Interim Applications

 

358

 

variations of a contract by use of such a clause, and an important point of principle such as the one in issue needed to be tried rather than determined by summary judgment.

 

Disputes of fact

 

34.15 Where there are issues of fact, which, if decided in the respondent’s favour, would result in judgment for the respondent, it is inappropriate to enter summary judgment, even if there is substantial evidence in support of the applicant’s case (Munn v North West Water Ltd (2000) LTL 18/7/2000). Primarily the court will consider the written evidence adduced by the parties, and if it discloses a dispute with a real prospect of success, the summary judgment application will be dismissed. However, the court is not always obliged to accept written evidence at face value, and may disregard evidence which is incredible (see 32.13).

 

In Public Trustee v Williams (2000) LTL 10/2/2000 the claimant sought to recover for a deceased’s estate the sum of £74,000 which was received by one of the defendants and used by her to buy a house. The evidence of the recipient filed in response to an application for summary judgment was at its best unclear and at its worst confusing as to where she thought the

money had come from. However, there was no clear evidence that the money had come from the estate, and it was held it was not a suitable case for summary judgment. In Bates v Microstar Ltd (2000) LTL 4/7/2000 summary judgment had been granted based on a purported contract

written on hotel notepaper. There were two other documents purporting to be the contract between the parties, and a number of the terms in the hotel notepaper document were arguably too vague. The judgment was set aside on appeal. In Mehdi v Bates (2001) LTL 3/12/2001 the contractual documentation was unclear on the issue of whether the contract had been entered into by the defendant personally or by the defendant’s company. It was held

that the judge had not been justified in entering summary judgment against the claimant on the basis that it was unlikely that a businessman would have entered into this contract personally.

 

Claims involving allegations of fraudulent or deceitful misconduct which are not admitted and which are not capable of being substantiated by inference from the documentary or written evidence are inappropriate for summary judgment (Esprit Telecoms UK Ltd v Fashion Gossip Ltd (2000) LTL 27/7/2000).

Cases involving disputes over whether employers are vicariously liable for the tortious acts of employees who might not be acting in the course of their employment are fact-sensitive and inappropriate for summary judgment (Cercato-Gouveia v Kiprianou [2001] EWCA Civ 1887, LTL 30/11/2001).

 

Where the applicant has the burden of proving a disputed issue, such as the reasonableness of an exclusion clause under the Unfair Contract Terms Act 1977, it will be difficult for the applicant to establish that the respondent has no real prospect of success (see, for example, Lalji v Post Office Ltd [2003] EWCA Civ 1873, LTL19/12/2003).

 

In a proprietary estoppel claim, where the context and meaning of the words used needs to be investigated, summary judgment is inappropriate (Century (UK) Ltd SA v Clibbery [2003] EWCA Civ 1374, LTL 17/7/2003). Where there is no arguable evidence on an essential element of the claim (or defence), or where a claimant will be unable to establish any loss flowing from a

breach not actionable per se, summary judgment should be entered (Morshead Mansions Ltd v Langford [2003] EWHC 2023 (QB), LTL 29/8/2003). In Shamil Bank of Bahrain EC v Beximco Pharmaceuticals Ltd [2003] EWHC 2118 (Comm), [2003] 2 All ER (Comm) 849, a defence to a claim by the bank for repayment of moneys lent was that there was an oral agreement suspending payment until a further agreement had been reached. This was dismissed as fanciful, as it

made no commercial sense for a bank to enter such an arrangement, because if the parties failed to reach a further agreement the defendants would be released from liability (different issues were raised on the appeal, [2004] EWCA Civ 19, [2004] 1 WLR 1784).

 

Chapter 34 Summary Judgment

359

 

Negligence claims

 

Although there is nothing in principle preventing a claimant from applying for summary 34.16 judgment in claims seeking damages for negligence, such cases invariably involve disputed factual issues, so it is rare for a court to find there is no real defence once liability is denied. An exception was Dummer v Brown [1953] 1 QB 710, where summary judgment was given against

the defendant, a coach driver, who had previously pleaded guilty of dangerous driving in respect of the accident giving rise to the claim. Even if there is a conviction, summary judgment may be refused if there are good reasons for believing the conviction was erroneous (McCauley v Vine [1999] 1 WLR 1977).

Housing Grants, Construction and Regeneration Act 1996 claims

The Housing Grants, Construction and Regeneration Act 1996, part II, provides for the 34.17 speedy resolution of construction industry disputes. It requires that every written construction contract must contain a right to refer disputes to adjudication under a procedure that complies with s. 108. To the extent that a construction contract does not do this, the adjudication provisions contained in the Scheme for Construction Contracts (England and Wales) Regulations, SI 1998/649, apply (see s. 108(5) ). By s. 108(2) an adjudicator is

required to reach a decision within 28 days after a referral, or such longer term as may be agreed by the parties. By s. 108(3) the construction contract must provide that the adjudicator’s decision is binding until the dispute is finally determined by legal proceedings, by arbitration or agreement. The parties may agree to accept the decision of the adjudicator as finally determining the dispute.

 

Adjudications are intended to be provisional, but binding, decisions (Macob Civil Engineering Ltd v Morrison Construction Ltd [1999] BLR 93 at [14]). The policy is ‘pay now, argue later’ (RJT Consulting Engineers Ltd v DM Engineering (Northern Ireland) Ltd [2002] EWCA Civ 270, [2002] 1 WLR

2344). A party with the benefit of an adjudicator’s decision may bring enforcement proceedings by issuing a Part 8 claim form, and then applying for summary judgment. In most cases it is to be expected that summary judgment will be entered in accordance with the

policy of the Act.

 

Summary judgment will be refused, however, if the defendant advances a properly arguable jurisdictional objection, such as a dispute about whether there was a written construction contract between the parties (Pegram Shopfitters Ltd v Tally Weijl (UK) Ltd [2003] EWCA Civ 1750,

[2004] 1 WLR 2082). A list of nine questions which are relevant where there is a dispute over an adjudicator’s jurisdiction was suggested in McAlpine PPS Pipeline Systems Ltd v Transco plc [2004] EWHC 2030 (TCC), [2004] BLR 352. If the defendant has agreed that the adjudicator can rule on the issue of jurisdiction and that he will be bound by the adjudicator’s decision, summary

judgment will be entered even if the adjudicator is wrong (Thomas-Fredric’s (Construction) Ltd v Wilson [2003] EWCA Civ 1494, [2004] BLR 23, at [20]).

 

Summary judgment may also be entered if the defendant has not submitted to the adjudicator’s jurisdiction, provided the adjudicator’s decision is plainly right (Thomas-Fredric’s (Construction) Ltd v Wilson).

 

Summary judgment will also be entered where the defendant has not paid the amount due under an architect’s certificate, unless the defendant has given an effective notice of intention to withhold payment under s. 111. This is so even if the certificate might be wrong (Rupert Morgan Building Services (LLC) Ltd v Jervis [2003] EWCA Civ 1563, [2004] 1 WLR 1867).

 

Evidence not yet investigated

 

Summary judgment was regarded as inappropriate in Derksen v Pillar (2002) LTL 17/12/2002 34.18 because evidence was still being acquired or investigated and the claim raised complex issues.

 

Where an issue requires the court to consider conduct over a period of time, it is unlikely that the issue can be disposed of on an application for summary judgment (Celador Productions Ltd v Melville [2004] EWHC 2362 (Ch), 28(1) IPD 10). On the other hand, in Mancini v Telecommunications

 

Part H Interim Applications

360

 

UK Ltd [2003] EWHC 211 (Ch), LTL 16/1/2003, the lack of evidence produced by the claimant resulted in the claim being struck out. It was reasonable to expect the claimant to have numerous documents, and to be able to produce witnesses, to explain what had happened in relation to the key issue. The court was not impressed by the explanation, first raised on appeal, that the documents had been destroyed in a flood, and there was no explanation for

not adducing witness statements dealing with the facts.

 

Conduct

 

34.19 In Penningtons v Abedi (1999) LTL 13/8/99 there had been ongoing litigation in which the defendant had advanced a series of defences which had each been shown to be false. An application was made for summary judgment, and it was held that the defendant’s conduct of the litigation was such that there was no realistic prospect of her successfully defending the

claim.

 

Contemporaneous documentation

 

34.20 There are cases where the contemporaneous documentation shows that the respondent will never be able to establish its case at trial, and in those cases, such as Collins v Union Bank of Switzerland (2000) LTL 25/5/2000, summary judgment will be entered. In Abelene Ltd v Cranbrook

Finance Inc. (2000) LTL 25/8/2000 it was held that although it was open to a court to accept documents produced at the last moment by a respondent to an application for summary judgment, if there was no explanation as to the circumstances in which the documents were executed or why they were not produced at the proper time, it would also be open to the

court to be sufficiently suspicious of their genuineness to disregard them.

 

Summary judgment was entered in Musical Fidelity Ltd v Vickers [2002] EWCA Civ 1989, LTL 2/12/2002, where the contents of the defendant’s website established a clear case of infringement of the claimant’s trade mark. Likewise, in National Westminster plc v Szirtes (2003) LTL 27/6/2003, the cumulative

effect of all the evidence, and in particular the correspondence between the parties, strained the credibility of the defendants’ evidence that they were unaware of the guarantees relied upon by the bank to such an extent that they had no real prospect of success. A slightly different formulation was applied in Hussain v Cuddy Wood and Cochrane (2000) LTL 17/11/2000,

where it was said in a professional negligence claim against a barrister that, from a consideration of the voluminous documentation available, it was ‘difficult to see how the claimant could establish’ his claim, and summary judgment was entered in favour of the defendant.

 

 

Amendment

 

34.21 There are many cases where the defective nature of one side’s statement of case becomes clear at the hearing of an application for summary judgment. If the defect is one of how the case is put rather than of substance, the court has a wide power to allow an amendment to correct

the problem, which can be exercised at the hearing (Stewart v Engel [2000] 1 WLR 2268).

 

 

sorry about the formatting, i dont have time to put it right,

 

heres what a very authoritve text says on SJ applications

Edited August 20, 2009 by citizenB
tidied formatting up a bit :)

[Cartier-Bresson]

Hi Guys - Having just read the awesome thread that Snoops forwarded to me written by 'Tomterm8' called 'Basic intro to Consumer Credit Litigation' I feel much better !

 

It mentioned that it would be a good idea to prepare what is referred to as a 'Skeleton Argument' before actually turning up in court, in order to get the ball rolling.

 

I want to try and do this today if possible to take with me tomorrow.

 

So based on my particulars, once given the opportunity in court, I will raise the following points in this order:

 

 

 

Skeleton Argument - Cartier Bresson

------------------------------------------------------------------

 

1. I would like to see the 'Original Copy' of my Consumer Credit Agreement - signed and dated by both myself and the Claimant. This should be the '2 sided single document' referred to in point 2 of the Claimants WS and conforming to the specific requirements as stated in CPR. [iE Prescribed terms within 4 corners of signed doc]

 

If they cannot provide this I assume the case will be struck out ???

 

If they do provide this ... i will query why the clause numbers on the front of the form do not match with the clause numbers on the back.

 

2. I would like to clarify whether or not 'Saturday' should actually be considered to be a working day in relation to point 4 of the Claimants WS.

 

If it is not a working day - then can the claimant explain why I was not given sufficient time to remedy the breach as per the Default Notice issued. [iE: Only given 12 days for compliance rather than the legally required 14 days.]

 

If this is the case can the claimant confirm then that the Default Notice issued was actually invalid ?

 

-------------------------------------------------------

 

 

Can anybody add to this for me ????? I think these are the two main points to clarify ??? If you think i should be concentrating on something else, or in a different order, please advise ASAP !!!

 

 

Cheers again Guys !

 

 

CB

[pt2537]

Hi Guys - Having just read the awesome thread that Snoops forwarded to me written by 'Tomterm8' called 'Basic intro to Consumer Credit Litigation' I feel much better !

 

It mentioned that it would be a good idea to prepare what is referred to as a 'Skeleton Argument' before actually turning up in court, in order to get the ball rolling.

 

I want to try and do this today if possible to take with me tomorrow.

 

So based on my particulars, once given the opportunity in court, I will raise the following points in this order:

 

 

 

Skeleton Argument - Cartier Bresson

------------------------------------------------------------------

 

1. I would like to see the 'Original Copy' of my Consumer Credit Agreement - signed and dated by both myself and the Claimant. This should be the '2 sided single document' referred to in point 2 of the Claimants WS and conforming to the specific requirements as stated in CPR. [iE Prescribed terms within 4 corners of signed doc]

 

If they cannot provide this I assume the case will be struck out ???

 

If they do provide this ... i will query why the clause numbers on the front of the form do not match with the clause numbers on the back.

 

2. I would like to clarify whether or not 'Saturday' should actually be considered to be a working day in relation to point 4 of the Claimants WS.

 

If it is not a working day - then can the claimant explain why I was not given sufficient time to remedy the breach as per the Default Notice issued. [iE: Only given 12 days for compliance rather than the legally required 14 days.]

 

If this is the case can the claimant confirm then that the Default Notice issued was actually invalid ?

 

-------------------------------------------------------

 

 

Can anybody add to this for me ????? I think these are the two main points to clarify ??? If you think i should be concentrating on something else, or in a different order, please advise ASAP !!!

 

 

Cheers again Guys !

 

 

CB

 

 

Have you filed a witness statement in opposition to the SJ app?

 

If you havent ,then you will have nothing to rely upon at the hearing and therefore the claimants app may well succeed as being unopposed

 

you need to file and serve no more than 7 days before the hearing

 

if you have done so, then you can consider a skele argument,

[Cartier-Bresson]

Hi pt2537 - thanks for all your info / help so far - I'm going to make a copy of that SJ detail to take with me.

 

 

Regarding my WS .... yes this was submitted to both Court and Claimant last wednesday [recorded delivery]. Details are in previous posts .... but can PM the actual doc to you if you want to take a look ?

 

cheers > CB

[supasnooper]

Saturday is NOT classed as a working day.

 

Time-limit for responding - Ministry of Justice

[Cartier-Bresson]

This is Interesting .....

 

Just been going through my documents for tomorrow and thought it a good idea to put together an MBNA statement summary for the DJ, should he want to know what has been happening with this account ...... I think it will make MBNA look like a really poor lender .... extremely irresponsible .... check this timeline and these numbers out:

 

---------------------------------------------------------------

 

Inital letter wrote to MBNA on 4th Jan 2008 stating financial difficulties. Agreed to pay £25.00 per month. Account Balance was at £2,517.47

 

Since 6th Feb 2008 I have made a total of 14 seperate payments to MBNA of varying amounts totaling £321.25 up until the last payment made to them on 12th March 2009. [DN issued 6th March 2009]

 

Since 6th Feb 2008 MBNA have made £823.28 charges against my account [Late Charges, Over Limit Fees, Finance Charges, Retail Interest Charges, Non Sufficient Funds, Returned Payments etc etc etc ] even in light of the fact they were aware of my financial difficulties. I have not used this account to make any payments with since Nov 2007 !

 

Balance of account as at 12/03/09 was £3,097.50

 

----------------------------------------------------------------

 

They are totally wrong to treat people like this - I have tried my best with this company and am looking forward to explaining all this to the DJ tomorrow. ..... along with the fact that all my other creditors are completely happy with the agreements I have set up [and stuck to] with them !!

 

My conscience is completely clean

 

 

Can somebody help me with preparing my costs to submit to court tomorrow ?

 

Cheers CB

[citizenB]

Hi CB,

 

Yes, absolutely disgraceful.. but that is MBNA all over.

 

In the following link is zhanzibar's costs application. See if that helps. If not, just yell and I will try and find something else for you.

 

As a LiP you can charge your time at £9.25 per hour. Make sure you claim for copying, typing, researching, travelling to post office, to court, etc, etc.

 

http://www.consumeractiongroup.co.uk/forum/show-post/post-2369412.html

 

HTH

[Cartier-Bresson]

Thanks CitB ..... Will get these prepared properly tonight for submission to DJ tomorrow ..... should things work out !

 

Cheers > CB

[Old Cogger]

This is Interesting .....

 

Just been going through my documents for tomorrow and thought it a good idea to put together an MBNA statement summary for the DJ, should he want to know what has been happening with this account ...... I think it will make MBNA look like a really poor lender .... extremely irresponsible .... check this timeline and these numbers out:

 

---------------------------------------------------------------

 

Inital letter wrote to MBNA on 4th Jan 2008 stating financial difficulties. Agreed to pay £25.00 per month. Account Balance was at £2,517.47

 

Since 6th Feb 2008 I have made a total of 14 seperate payments to MBNA of varying amounts totaling £321.25 up until the last payment made to them on 12th March 2009. [DN issued 6th March 2009]

 

Since 6th Feb 2008 MBNA have made £823.28 charges against my account [Late Charges, Over Limit Fees, Finance Charges, Retail Interest Charges, Non Sufficient Funds, Returned Payments etc etc etc ] even in light of the fact they were aware of my financial difficulties. I have not used this account to make any payments with since Nov 2007 !

 

Balance of account as at 12/03/09 was £3,097.50

 

----------------------------------------------------------------

 

They are totally wrong to treat people like this - I have tried my best with this company and am looking forward to explaining all this to the DJ tomorrow. ..... along with the fact that all my other creditors are completely happy with the agreements I have set up [and stuck to] with them !!

 

My conscience is completely clean

 

 

Can somebody help me with preparing my costs to submit to court tomorrow ?

 

Cheers CB

 

 

My OH was made redundant for over 6 months, claimed MBNA ppi and every month tha account went up without her using it, because the ppi did not cover the required repayments, also the monthly £60 fee was not covered by the insurance, MBNA & Insurance company blaim the other.

[citizenB]

How you doing, CB ?. I have to offline for an hour or so, back later.

[AA99]

CB, I am subbing with great interest and I wish you all the luck in the world tomorrow against these delinquent bar stewards We are in the same boat with 3 accounts that have ended up with MBNA. They are a disgrace to the banking community:eek:

 

Good Luck and look forward to seeing a 'WON' sign next to your thread on Saturday (That's what the site team do when you win )

[surfaceagentx20]

H C-B,

 

CiitizenB asked me to look over this. That recent witness statement from the other side is late.

 

CPR 24.5 says:

 

(3) Where a summary judgment hearing is fixed by the court of its own initiative

(a) any party who wishes to rely on written evidence at the hearing must

(i) file the written evidence; and

 

(ii) unless the court orders otherwise, serve copies on every other party to the proceedings,

 

at least 7 days before the date of the hearing;

 

(b) any party who wishes to rely on written evidence at the hearing in reply to any other party’s written evidence must

(i) file the written evidence in reply; and

 

(ii) unless the court orders otherwise serve copies on every other party to the proceedings,

 

at least 3 days before the date of the hearing

 

In other words, that recent statement should have been with you at least 3 days before the hearing. You might wish to object to the oponent relying on it.

 

As for costs, just write a list of everything you've done to prepare to deal with the summary judgment application to include details of the time spent and muliply the time spent at the rate of £9.25 per hour. You might find the N260 helpful as a guide (but only as a guide since the form is geared up for lawyers). Send a copy of the statement to the other side. If you win, present your costs calculation to the judge and ask the judge to award you whatever your costs calculation tots up to.

 

Has the other side sent you a statement of costs?

 

x20

[Cartier-Bresson]

Thanks for this X20 .... Restons sent that most recent WS on Tuesday 18th .... I got it the following day ... Wednesday 19th. The hearing as you know is tomorrow ... Friday 21st ! So that only gave me two days.

 

Does this mean Reston's solicitor can't use that WS in court ?

 

They haven't forwarded me any breakdown of costs yet. There is just a £85 court fee and £80 Solicitor's fee added to the amount being claimed as indicated on the Claim Form [N1 CPC]

 

Cheers > CB

[AA99]

CB, this is quoted from a recent 'WON' case, the thread is now closed pending........ however, the norm apparently is to restrict to £500, but this Cagger won something like £800 costs. It all adds up and you have been at it for 6 months nearly!

 

Re: fairbyblue /MBNA-Restons Court 20th.March-they have issued 2 default notices./ **WON**

LITIGANT IN PERSON: COSTS - LITIGANTS IN PERSON

 

The rate I used is £9.25 per hour (I did 60 for preparation/research and typing up) and letters have a look at your agreemnt and if they charge £25 per letter bang that on for your letters (I used £12 per letter and did 14 of them)

 

Hearing time at £9.25 per hour and travelling time, then all your court fees if you made any applications.

 

it soon adds up but to no more than 2/3 rds of what legal rep could of charged.

 

[summerbreeze]

Hi CB

 

I am wishing you well.

 

The advice I had when I face a SJ hearing recently was that if I was not correctly served with witness statements or any documents that the claimants wanted to present in the hearing that I should complain to the judge that I was being ambushed.

 

You can say politely to the judge that you are already at a disadvantage due to being a LIP and it is unfair that you have not had the correct amount of time to consider the other sides WS and do the research required to counter it.

 

You have a defence . You have a defective default notice.

 

You only have to show that you have a defence that needs to be considered. You dont have to prove that you will definitely win the case.

 

The other side are saying that you have no chance and that is why they are going for ther Summary Judgment . They do know that a defective DN is a GOOD defence and that is why they will try every trick in the book to make you doubt yourself.

 

Make it clear to the Judge that you want proof that the DN was sent and the proof of postage .

 

Dont be afraid to say that you are unable to afford the type of representation that the other side can and ask for the Judges understanding if you dont express yourself in the correct legal terms .

 

In my case I made a point of saying to the Judge that the whole situation was very distressing , that I never in a million years would have expected to find myself in this type of court . Maybe some would say you are asking for sympathy but why should you not be able to say how devastating it is to be taken to court by a creditor. It is an every day thing for them . It is a terrible traumatic time for you.

 

I was lucky and my Judge was fair. I defeated the Summary Judgment and my case will go to trial. If you also defeat the SJ be sure to ask the Judge to order the other side to disclose all the info you need for any future trial.

 

This is advice from just an ordinary person with no legal training who has recently faced a very similar situation.

 

Good Luck

[angmarie]

Hi Cartier/B

 

The very best of luck for tomorrow, I really hope you get the result you deserve;).

 

 

Ang

[citizenB]

Thanks for looking in X20:)

 

CB, you know I wish you the very best for tomorrow.

[supasnooper]

Hi C-B,

 

Best Wishes and good luck for today.

 

Stay calm and do not be afraid to speak if you feel they are be underhanded.

 

The Judge will be aware that you are a Litigant In Person and should be looking out for you.

 

Make sure you have a couple of spare copies of Woodchester v Swain with you.

 

I can't remember if the CCA was enforceable or not - if it isn't, then push the point of its unenforceabilty and also the point of the Defective Default Notice which are the key elements of your defence.

 

Any Judge worth his salt would be foolish to go against proven case law.

 

Finally, do not be fazed if the Restons representative tries to make a deal before the hearing - it shows that they have a weak case !

[GamekeeperToPoacher]

It is probably a little late but good luck C-B.

 

Give it to them and then hopefully people like me who will be following on will have an easier time of it!!

 

GK