SB100 v HFC - is this default compliant? Court/Restons ***WON***

[supasnooper]

As Restons have failed to comply with the order, this will only irritate the Judge.............it's his orders Restons have chosen to disobey.

 

I'm sure you'll remind the Judge of this if Restons elect to continue to trial

 

As I've said earlier, sit tight and wait to see what Restons throw at you next, but I'm sure you've read of their tricks already.

[SB100]

Surely they have to complete an AQ for it to proceed though as there's a fee payable?

[AndyOrch]

Surely they have to complete an AQ for it to proceed though as there's a fee payable?

 

 

Absolutely;)

 

Andy

[SB100]

Thanks Andy, thought I was going mad there... How do I use it to my best advantage?

[AndyOrch]

Make application to strike out the DJ may issue an unless order,without hearing so it will only cost you £35.00.

 

Regards

 

Andy

[SB100]

Will this not wind the judge up? I've already had one SO application fail.

 

We're due to exchange witness evidence and statements this week- have no idea how to do that either, so I might need a bit of support this week..

 

Thanks.

[SB100]

Just to add for the sake of clarity.. I'm not sure I actually had to do my AQ, as my SO application would have interrupted the normal process- and this may be why they didn't follow normal protocol

[AndyOrch]

Applications are normally (or should be) submitted with ones AQ.However in the instance of the Claimant failing to submit their AQ (on time and pay the Fee) It regarded as a strike out offense and an abuse of court procedure.

 

Andy

[SB100]

I don't suppose you'd have any appropriate wording for the application

 

As far as the other stuff I have to do this week is concernd, can I pretty much use the response to their SJ application that everyone helped me with earlier on the thread?

[AndyOrch]

I have not seen your proposed response SB to SJ application if you could point me or repost.What is your time frame here dates?

What proposed track are we envisaging?

Where is the last Order posted in this matter?

 

Andy;)

[SB100]

Ok, here's my ws.. http://www.consumeractiongroup.co.uk/forum/legal-issues/199150-sb100-hfc-default-compliant-11.html#post2484311

 

My application failed, but Restons tried to throw in an SJ application to co-incide, which the judge denied due to extremely short notice (about 5 days). The Judge warned them that there were 'issues' with their DN and offered them the opportunity to apply again for SJ, but it had to be by the end of last month. They appear to have declined his offer.

 

Here's a copy of the order (only received last week but now about six weeks old)

 

 

I haven't received anything from the other side regarding disclosure etc.

[AndyOrch]

Can you post their WS or point me.

 

Andy

[SB100]

I don't have their witness statement for their SJ application with me, sorry- can post it when I get home though.

 

It was basically the usual 'no prospect of winning', a copy of the alleged agreement, a copy of the t&c's that allegedly appeared on the other side, a witness statement from a solicitor at Restons stating that 'in his opinion the prescribed terms would have been on the reverse' and a witness statement from another HFC employee stating that the DN would have been sent first class- which I can immediately disprove as I have the UK Mail envelope.

 

Thanks Andy

[AndyOrch]

Ok SB if you can.

 

I understand Car was assisting you with this.What date do you have to exchange WS by?

 

Andy

[SB100]

Exchange is 4pm on 27th of this month. Is it normal for them to have not sent me anything for disclosure? Guess they don't have anything else.

[AndyOrch]

Guess not thats why its essential you beef up that WS.When you say disclosure I assume you mean N265? have you not recieved this either?

 

Andy

[SB100]

I haven't heard anything from them since the hearing other than a letter asking that I consider settling the account. I didn't send anything for disclosure either as, stupidly, I thought it was by the end of November and I didn't get the order from the court til last week.

[AndyOrch]

Oh well you can use that in your WS also.Would appear to be a bit of a shambles SB if you dont mind me saying that.They want SJ with no effort. no AQ. no fee. no disclosure.I would be tempted to strike out as a total nonsense and and a vexatious claim.

Post up their WS this evening and I will give you some guidance on how to trash it;)

 

Andy

[SB100]

Thanks Will post it later.

[SB100]

Ok, here's their skeleton argument for their strike out application. I don't appear to have the copy of the statement from their employee that said it was sent first class, although this SA does refer to it.

 

 

 

 

 

 

 

 

[car2403]

Simply rebutting your defence isn't sufficient - they haven't stated on what grounds each reason of your defence should fail.

 

This amounts to a he-said, so we-said, situation, which the Court just can't accept.

 

They are hoping to win the "Judge Lottery" with that conclusion, effectively saying the Court should ignore all the rules of the Court, the legislation and the rules of evidence "because you've borrowed the money".

 

Personally, I would be putting a response to their SA forward, (which isn't required, but would be fun to construct) pointing all this out - then let the Court decide.

 

A word of warning, though, as usual. The Court may well decide this in their favour - highly improbable, but not impossible. You may want to consider if you want to push on, but I would if it were me...

 

Is this a new claim? If so, and they haven't sought permission to bring it, (regardless of whether they think they can win or not) then you should seek a SO on that basis.

[SB100]

I'm inclined to get some representation... can anyone make any recommendations? Its listed in Liverpool for the end of January.

[SB100]

Just to add, the SA was never actually used as the Judge didn't allow their application, but I would imagine it will form the basis of their case and statement which has to be submitted this week.

[letitbeme]

Hi SB, Have sent you a PM

LIBM

[robcag]

Just to add, the SA was never actually used as the Judge didn't allow their application, but I would imagine it will form the basis of their case and statement which has to be submitted this week.

 

Hi SB

 

If their SA (posted by you above at post #320) is used as a basis for their case, then referring to Para 20 (which in turn refers to Para 6 of Bouffants WS), how can Bouffant make a 'Statement of Truth' as authorised by the claimant when he hasn't actually seen the original document (agreement) himself? Perhaps that's something that legal representatives are permitted to do, but I'd say he's on shaky ground.

 

The reason I say that is because of my personal experience with my own 'GM Card' alleged 'agreement', which I posted up at the very beginning of my thread; http://www.consumeractiongroup.co.uk/forum/dca-legal-successes/124572-hfc-no-agreement-amended.html

 

Both myself and pt2537 noticed there were distinct crease marks on the application purported to be the agreement (2 marks which indicated an A4 page folded into three sections), but no such corresponding crease marks appeared on the T&Cs (shown at post #17).

 

The discussion of this appears in posts #1 and #13.

 

Cheers

Rob