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

[SB100]

It certainly does, thank you. I'll re-write now and post again for comments. You're a star

[citizenB]

Statement of

Mr xxx xxxx

 

Statement dated

5 October 2009

 

Claim No. xxxx

 

IN THE LIVERPOOL COUNTY COURT

 

BETWEEN:

 

Hfc Bank Limited

Calimant

And

Mr xxx xxxx

Defendant

 

WITNESS STATEMENT

 

I, xxxx xxxx, make this statement in response to the statement of Jeremy Stephen Bouchier, of Restons Solicitors, dated 30th September.

 

1. In response to point 3 of the above mentioned statement, I believe that the claimants claim form is deficient in that the claimant failed to exhibit or attach any supporting documentation regarding their claim. Despite the limitations of the Northampton Bulk Processing Centre which does not allow for documents to be attached. It is nevertheless in the interests of the Management of the claim for the documents, which form the basis of the claimant's claim, to be provided at the earliest opportunity. This the claimant did not do.

 

2. In response to point 6 of the above mentioned statement, the document supplied is an Application form. The title of the form is not correct for it to be treated as a Consumer Credit Agreement. Furthermore, it does not contain any prescribed terms, and, as such, is unenforceable. I do not accept the claim made in Mr Bouchiers witness statement that these terms and conditions would have been on the reverse of the application form supplied, and put the claimant to strict proof. I also seek clarification as to the validity of Mr Bouchiers claim that he knows this would have existed form ‘own knowledge’. Has Mr Bouchier physically handled this agreement? I see no reference to the date that the claimant alleges the contract was instigated. The only reference dates I can see are 4th February 1994 and 23rd February 1994. I can see no reference to the date referred to in the claimants Default Notice, which is 17th February 1994. This appears to be before the claimant signed what they claim is the agreement?

 

3. In response to point 7 of the above mentioned statement, I would like to make the following points. Firstly, the amounts differ between the Default Notice that I received, and the ‘recreated’ Default Notice attached to Mr Bouchiers statement. Secondly, the ‘recreated’ Default Notice omits a statutory paragraph titled ‘Statutory Notice’. This renders the Default Notice served defective. Thirdly, whilst the Default Notice is dated so as to provide 14 clear days for remedial action, the claimant has not taken in to consideration the time to post. This Default Notice was sent by UK Mail, and is considered to be 2nd Class post. If it were posted as it were dated, on Thursday 15th means deemed served on Tuesday 21st May. Fourteen days starts from the day after service according to regulationss so remedy date should have been Wednesday 6th May to give 14 clear days. (is the date highlighted in red correct ?)

4. In response to point 8 of the above mentioned statement, the lack of a valid s87 Default Notice proves that the claimant has no course of action. The lack of a properly executed Consumer Credit Agreement, containing prescribed terms, proves that the claimant has no course of action.

 

5. The claimant has included a hefty ‘collection charge’ to the court summons, which the claimant is well aware that it is not entitled to do.

 

Statement of Truth

 

I believe the facts stated in this witness statement are true

 

Signed …………………………………..

 

Dated ………………………………….

 

HTH

[SB100]

Ok, getting closer. Also getting rather confused...

 

Statement of

Mr xxx xxxx

 

Statement dated

5 October 2009

 

Claim No. xxxx

 

IN THE LIVERPOOL COUNTY COURT

 

BETWEEN:

 

Hfc Bank Limited

Calimant

And

Mr xxx xxxx

Defendant

 

WITNESS STATEMENT

 

I, xxxx xxxx, make this statement in response to the statement of Jeremy Stephen Bouchier, of Restons Solicitors, dated 30th September.

 

1. In response to point 3 of the above mentioned statement, I believe that the claimants claim form is deficient in that the claimant failed to exhibit or attach any supporting documentation regarding their claim. Despite the limitations of the Northampton Bulk Processing Centre which does not allow for documents to be attached. It is nevertheless in the interests of the Management of the claim for the documents, which form the basis of the claimant's claim, to be provided at the earliest opportunity. This the claimant did not do.

 

2. In response to point 6 of the above mentioned statement, the document supplied is an Application form. The title of the form is not correct for it to be treated as a Consumer Credit Agreement. Furthermore, it does not contain any prescribed terms, and, as such, is unenforceable. I do not accept the claim made in Mr Bouchiers witness statement that these terms and conditions would have been on the reverse of the application form supplied, and put the claimant to strict proof. I also seek clarification as to the validity of Mr Bouchiers claim that he knows this would have existed form ‘own knowledge’. Has Mr Bouchier physically handled this agreement? I see no reference to the date that the claimant alleges the contract was instigated. The only reference dates I can see are 4th February 1994 and 23rd February 1994. I can see no reference to the date referred to in the claimants Default Notice, which is 17th February 1994. This appears to be before the claimant signed what they claim is the agreement?

 

s127(3) of the CCA1974 provides that the court may not make an enforcement order unless a document containing all the prescribed terms of the agreement was signed by the debtor. If therefore any of the prescribed terms is missing, or incorrect, the agreement is not enforceable against the debtor, and the court is precluded from making an enforcement order. (N.B - For the avoidance of doubt the 2006 Consumer Credit Act does not change the above legislation…… The Consumer Credit Act 2006 (Commencement No. 2 and Transitional Provisions and Savings) Order 2007 (No. 123 (C. 6)) Citation

1. This Order may be cited as the Consumer Credit Act 2006 (Commencement No.2 and Transitional Provisions) Order 2007.

Interpretation

2. In this Order “the 2006 Act” means the Consumer Credit Act 2006.

Commencement

3. — (1) The provisions of the 2006 Act specified in Schedule 1 shall come into force on 31st January 2007.

(2) The provisions of the 2006 Act specified in Schedule 2 shall come into force on 6th April 2007.

Transitional Provisions

4. Subject to article 5, section 1 of the 2006 Act shall have no effect for the purposes of the 1974 Act, in relation to agreements made before 6th April 2007. (cont)

5. Section 1 of the 2006 Act shall have effect for the purposes of the definitions of “debtor” and “hirer” in section 189(1) of the 1974 Act wherever those expressions are used in—

a)

sections 77A, 78(4A), 86A, 86B, 86C, 86D, 86E, 86F, 129(1)(ba) 129A, 130A and 187A of the 1974 Act;

(b)

section 143(b) of the 1974 Act in respect of an application under section 129(1)(ba) of that Act; and

©

section 185(2) to (2C) of the 1974 Act insofar as it relates to a dispensing notice from a debtor authorising a creditor not to comply in the debtor's case with section 77A of that Act,

in relation to agreements made before 6 April 2007)

 

REFERENCE TO CASE LAW

 

As the creditor has not provided the credit agreement Wilson v First County Trust Ltd [2003] UKHL 40 states that:


‘….the effect of the failure to comply with the requirements of the Consumer Credit (Agreements) Regulations 1983 was that the entire agreement ………….. was unenforceable. The statutory bar on its enforcement extended to First County Trusts's right to recover the total sum payable on redemption, which included the principal as well as interest.’

 

SUMMARY OF WILSON v FIRST COUNTY TRUST LTD (2003) UKHL 40

 

THE WILSON CASE MADE IT CLEAR THAT IN THE EVENT OF NO ACCEPTABLE CONSUMER CREDIT AGREEMENT THEN THE CREDITOR COULD NOT RECOVER MONIES OWED UNDER ORDINARY CONTRACT LAW REGARDLESS OF WHETHER THEY COULD PROVE THE DEBT EXISTED OR NOT – THIS WAS THE DECISION OF THE HOUSE OF LORDS AND SHOULD THEREFORE BE BINDING IN THIS COURT

 

The law states that without a prescribed agreement the courts may not enforce under 127(3) and

 

1.In the case of Dimond v Lovell [2000] UKHL 27, Lord Hoffmann said , at page 1131:-

 

“Parliament intended that if a consumer credit agreement was improperly executed, then subject to the enforcement powers of the court, the debtor should not have to pay.”

 

2.Sir Andrew Morritt, Vice Chancellor in Wilson v First County Trust Ltd [2001] EWCA Civ 633 said at para 26 that in the case of an unenforceable agreement:-

 

“The creditor must…be taken to have made a voluntary disposition, or gift, of the loan monies to the debtor. The creditor had chosen to part with the monies in circumstances in which it was never entitled to have them repaid;”

 

I refer to LORD NICHOLLS OF BIRKENHEAD in the House of Lords Wilson v First County Trust Ltd - [2003] All ER (D) 187 (Jul) paragraph 29

” The court's powers under section 127(1) are subject to significant qualification in two types of cases. The first type is where section 61(1)(a), regarding signing of agreements, is not complied with. In such cases the court 'shall not make' an enforcement order unless a document, whether or not in the prescribed form, containing all the prescribed terms, was signed by the debtor: section 127(3). Thus, signature of a document containing all the prescribed terms is an essential prerequisite to the court's power to make an enforcement order.”

If the agreements are, as I expect, unenforceable by law or if no written agreement exists, then the respondent was in error when it stated that a liquidated and legally enforceable sum was due to the respondent at the time the demand was issued.

 

3. In response to point 7 of the above mentioned statement. I would like to make the following points. Firstly, the amounts differ between the Default Notice that I received, and the ‘recreated’ Default Notice attached to Mr Bouchiers statement. Secondly, the ‘recreated’ Default Notice omits a statutory paragraph titled ‘Statutory Notice’. This renders the Default Notice served defective. Thirdly, whilst the Default Notice is dated so as to provide 14 clear days for remedial action, the claimant has not taken in to consideration the time to post. This Default Notice was sent by UK Mail, and is considered to be 2nd Class post. If it were posted as it were dated, on Thursday 15th April, it would be considered to have been served on Tuesday 21st May. Fourteen days starts from the day after service, according to regulations, so remedy date should have been Wednesday 6th May to give 14 clear days.

 

It is denied that any Default Notice in the prescribed format was ever received and the Defendant puts the Claimant to strict proof that said document in the prescribed format was delivered to the defendant

Notwithstanding the above points, I put the claimant to strict proof that any default notice sent to me was valid. I note that to be valid, a default notice needs to be accurate in terms of both the scope, dating and nature of breach and include an accurate figure required to remedy any such breach. The prescribed format for such document is laid down in Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) and Amendment regulations the Consumer Credit (Enforcement, Default and Termination Notices) (Amendment) Regulations 2004 (SI 2004/3237)

Service of a default notice is a statutory requirement as laid out in sections 87,88 and 89 Consumer Credit Act 1974. Section 87 makes it clear that a default notice must be served before a creditor can seek to terminate the agreement or demand repayment of sums due to a breach of the agreement. therefore without a valid default notice, I suggest the claimants case falls flat and cannot proceed and to do so is clearly contrary to the Consumer Credit Act 1974

Section 87(1) of the CCA 1974 says:

87.--(1) Service of a notice on the debtor or hirer in accordance with section 88 (a default notice) is necessary before the creditor or owner can become entitled, by reason of any breach by the debtor or hirer of a regulated agreement,--
(a) to terminate the agreement, or
(b) to demand earlier payment of any sum....

Section 88 says that the DN must be in the prescribed form and the associated regulation say what that form is. 

Thus, if the DN is not in the prescribed form, it is invalid and, under s87, the lender has no right of action.

Failure of a default notice to be accurate not only invalidates the default notice (Woodchester Lease Management Services Ltd v Swain and Co - [2001] GCCR 2255) but is a unlawful rescission of contract which would not only prevent the court enforcing any alleged debt, but give me a counter claim for damages Kpohraror v Woolwich Building Society [1996] 4 All ER 119

 

The amount detailed in the Claimant’s claim, which also includes penalty charges, which are unlawful at Common Law, Dunlop Pneumatic Tyre Company Ltd v New Garage and Motor Company Ltd [1915], under The Unfair Contract Terms Act 1977 and The Unfair Terms in Consumer Contracts Regulations 1999.

 

4. In response to point 8 of the above mentioned statement, the lack of a valid s87 Default Notice proves that the claimant has no course of action. The lack of a properly executed Consumer Credit Agreement, containing prescribed terms, proves that the claimant has no course of action.

 

5. The claimant has included a hefty ‘collection charge’ of £1,175.12 to the court summons, which the claimant is well aware that it is not entitled to do. I refer to the Office of Fair Trading guidelines on Debt Collection.

 

2.10 Examples of unfair practices are as follows:

a. claiming collection costs from a debtor in the absence of express

contractual or other legal provision

b. misleading debtors into believing they are legally liable to pay

collection charges when this is not the case, for example, when there

is no contractual provision

c. not giving an indication in credit agreements of the amount of any

charges payable on default

d. applying unreasonable charges, for example, charges not based on actual

and necessary costs

e. applying charges which are disproportionate to the main debt.

 

 

 

Statement of Truth

 

I believe the facts stated in this witness statement are true

 

Signed …………………………………..

 

Dated ………………………………….

Edited October 5, 2009 by citizenB

[citizenB]

Just to let you know, I am here.. having a read:D

[citizenB]

Why are you confused ?

 

BTw, I didnt edit your post as it indicates above. I thought I had hit "quote":rolleyes:

[SB100]

So much to absorb, and the phone keeps ringing and distracting me!

[42man]

It looks ok, but i'm no expert on Witness statements....a couple of links here might be helpful - http://www.consumeractiongroup.co.uk/forum/legal-issues/161469-1st-credit-animal-3.html#post2480952

[robcag]

Hi SB

 

You asked me on my thread to have a look at this thread, so I've just had a read through

 

You've had lots of excellent advice and quotes throughout your thread from many of the experts on here, and I think you understand what you've been told.

 

There's probably not much I can add except to say make sure your Statement is laid out in such a way that it flows as smoothly, clearly and logically as possible and does not jump around too much. I would have to agree with what BRW said early in the thread about your strongest point being the defective DN and trying not to drown that point with placing too much emphasis on lots of minor issues. Theoretically, as has been pointed out by others in your thread, that point alone is enough to halt them in their tracks, and our friend Bouffant at Restons is fully aware of that, having discontinued other cases for the same reason.

 

I believe this is a SJ hearing, and if you make sure you're quite clear in your arguments (especially regarding the DN), you might just get the result you're after, possibly not at the hearing itself, but a discontinuance announced by Restons some time after.

 

You're probably aware that in my case, HFC/Restons realised and admitted in a letter to the court that they could not win because of this very reason, but then tried to do a little shuffle and came up with the idea of applying to re-issue an effective DN, and take things from there.

 

Luckily the Judge was not having any of their argument (which is relevant to your case as they may well try the same thing) that they were entitled to re-issue a DN, also that HFC had not terminated because of the word 'MAY' in the DN (which as you are aware, is included by statute). I argued that they had said they 'will' terminate on the given date.

 

I did my best to argue against these points, which apparently had the desired effect, but I would have found it a lot easier to put a stronger, more convincing argument across had I been armed with the excellent stuff which has been posted on these forums by the likes of surfaceagentx20 and others since that time. So make sure you're conversant with those 'weapons', stored safely in your head, or possibly printed out on a crib sheet which you can refer to at the hearing.

 

Good luck

Rob

[SB100]

Maybe I re-organise my points, so the defective DN is first, and refer to the relevant case law add it as exhibits then?

[SB100]

Ok, here we go again- my latest effort

 

Statement of

Mr

 

Statement dated

5 October 2009

 

Claim No.

 

IN THE LIVERPOOL COUNTY COURT

 

BETWEEN:

 

HFC Bank Limited

Claimant

 

And

 

Defendant

 

 

WITNESS STATEMENT

 

 

I, , make this statement in response to the statement of Jeremy Stephen Bouchier, of Restons Solicitors, dated 30th September.

 

 

1. In response to point 7 of the above mentioned statement, I would like to make the following points. I refer to exhibit xx001.

 

a) The amounts differ between the Default Notice that I received, and the ‘recreated’ Default Notice attached to Mr Bouchiers statement.

b) The ‘recreated’ Default Notice omits a statutory paragraph titled ‘Statutory Notice’. This renders the Default Notice served defective.

c) Whilst the Default Notice is dated so as to provide 14 clear days for remedial action, the claimant has not taken in to consideration the time to post. This Default Notice was sent by UK Mail, and is considered to be 2nd Class post. If it were posted as it were dated, on Thursday 15th means deemed served on Tuesday 21st April. Fourteen days starts from the day after service according to regulations so remedy date should have been Wednesday 6th May to give 14 clear days. (Please see exhibit SB002 -Interpretation Act 1987, Section 7)

d) The Default Notice also includes penalty charges, which are unlawful at Common Law (Dunlop Pneumatic Tyre Company Ltd v New Garage and Motor Company Ltd [1915]), under The Unfair Contract Terms Act 1977 and The Unfair Terms in Consumer Contracts Regulations 1999.

 

Notwithstanding the above points, I put the claimant to strict proof that any default notice sent to me was valid. I note that to be valid, a default notice needs to be accurate in terms of both the scope, dating and nature of breach and include an accurate figure required to remedy any such breach. The prescribed format for such document is laid down in Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) and Amendment regulations the Consumer Credit (Enforcement, Default and Termination Notices) (Amendment) Regulations 2004 (SI 2004/3237)

Service of a default notice is a statutory requirement as laid out in sections 87,88 and 89 Consumer Credit Act 1974. Section 87 makes it clear that a default notice must be served before a creditor can seek to terminate the agreement or demand repayment of sums due to a breach of the agreement. therefore without a valid default notice, I suggest the claimants case falls flat and cannot proceed and to do so is clearly contrary to the Consumer Credit Act 1974

Section 87(1) of the CCA 1974 says:

87.--(1) Service of a notice on the debtor or hirer in accordance with section 88 (a default notice) is necessary before the creditor or owner can become entitled, by reason of any breach by the debtor or hirer of a regulated agreement,--
(a) to terminate the agreement, or
(b) to demand earlier payment of any sum....

Section 88 says that the DN must be in the prescribed form and the associated regulation say what that form is. 

Thus, if the DN is not in the prescribed form, it is invalid and, under s87, the lender has no right of action. Failure of a default notice to be accurate not only invalidates the default notice (Woodchester Lease Management Services Ltd v Swain and Co - [2001] GCCR 2255) but is a unlawful rescission of contract which would not only prevent the court enforcing any alleged debt, but give me a counter claim for damages Kpohraror v Woolwich Building Society [1996] 4 All ER 119

 

2. In response to point 8 of the above mentioned statement, the lack of a s87 Default Notice proves that the claimant has no course of action. The lack of a properly executed Consumer Credit Agreement, containing prescribed terms, proves that the claimant has no course of action.

 

3. In response to point 6 of the above mentioned statement, the document supplied is an Application form. The title of the form is not correct for it to be treated as a Consumer Credit Agreement. Furthermore, it does not contain any prescribed terms, and, as such, is unenforceable. I do not accept the claim made in Mr Bouchier’s witness statement that these terms and conditions would have been on the reverse of the application form supplied, and put the claimant to strict proof. I also seek clarification as to the validity of Mr Bouchier’s claim that he knows this would have existed form ‘own knowledge’. Has Mr Bouchier physically handled this agreement? I see no reference to the date that the claimant alleges the contract was instigated. The only reference dates I can see are 4th February 1994 and 23rd February 1994. I can see no reference to the date referred to in the claimants Default Notice, which is 17th February 1994. This appears to be before the claimant signed what they claim is the agreement.

 

s127(3) of the Consumer Credit Act 1974 provides that the Court may not make an enforcement order unless a document containing all the prescribed terms of the agreement was signed by the debtor

 

If therefore any of the prescribed terms is missing, or incorrect, the agreement is not enforceable against the debtor, and the court is precluded from making an enforcement order.

 

(N.B - For the avoidance of doubt the 2006 Consumer Credit Act does not change the above legislation……)

 

The Consumer Credit Act 2006 (Commencement No. 2 and Transitional Provisions and Savings) Order 2007 (No. 123 (C. 6))

Citation

1. This Order may be cited as the Consumer Credit Act 2006 (Commencement No.2 and Transitional Provisions) Order 2007.

Interpretation

2. In this Order “the 2006 Act” means the Consumer Credit Act 2006.

Commencement

3. — (1) The provisions of the 2006 Act specified in Schedule 1 shall come into force on 31st January 2007.

(2) The provisions of the 2006 Act specified in Schedule 2 shall come into force on 6th April 2007.

Transitional Provisions

4. Subject to article 5, section 1 of the 2006 Act shall have no effect for the purposes of the 1974 Act, in relation to agreements made before 6th April 2007. (cont)

5. Section 1 of the 2006 Act shall have effect for the purposes of the definitions of “debtor” and “hirer” in section 189(1) of the 1974 Act wherever those expressions are used in—

(a) sections 77A, 78(4A), 86A, 86B, 86C, 86D, 86E, 86F, 129(1)(ba) 129A, 130A and 187A of the 1974 Act;

(b) section 143(b) of the 1974 Act in respect of an application under section 129(1)(ba) of that Act; and

© section 185(2) to (2C) of the 1974 Act insofar as it relates to a dispensing notice from a debtor authorising a creditor not to comply in the debtor's case with section 77A of that Act, in relation to agreements made before 6 April 2007)

 

REFERENCE TO CASE LAW

 

As the creditor has not provided the credit agreement Wilson v First County Trust Ltd [2003] UKHL 40 states that:


‘….the effect of the failure to comply with the requirements of the Consumer Credit (Agreements) Regulations 1983 was that the entire agreement ………….. was unenforceable. The statutory bar on its enforcement extended to First County Trusts’ right to recover the total sum payable on redemption, which included the principal as well as interest.’

 

Summary of Wilson v First County Trust Ltd (2003) UKHL 40

 

The Wilson case made it clear that in the event of no acceptable consumer credit agreement then the creditor could not recover monies owed under ordinary contract law regardless of whether they could prove the debt existed or not– this was the decision of the House of Lords and therefore should be binding in this Court.

 

The law states that without a prescribed agreement the courts may not enforce under 127(3) and

 

1.In the case of Dimond v Lovell [2000] UKHL 27, Lord Hoffmann said, at page 1131:-

 

“Parliament intended that if a consumer credit agreement was improperly executed, then subject to the enforcement powers of the court, the debtor should not have to pay.”

 

2.Sir Andrew Morritt, Vice Chancellor in Wilson v First County Trust Ltd [2001] EWCA Civ 633 said at para 26 that in the case of an unenforceable agreement:-

 

“The creditor must…be taken to have made a voluntary disposition, or gift, of the loan monies to the debtor. The creditor had chosen to part with the monies in circumstances in which it was never entitled to have them repaid;”

 

I refer to LORD NICHOLLS OF BIRKENHEAD in the House of Lords Wilson v First County Trust Ltd - [2003] All ER (D) 187 (Jul) paragraph 29

” The court's powers under section 127(1) are subject to significant qualification in two types of cases. The first type is where section 61(1)(a), regarding signing of agreements, is not complied with. In such cases the court 'shall not make' an enforcement order unless a document, whether or not in the prescribed form, containing all the prescribed terms, was signed by the debtor: section 127(3). Thus, signature of a document containing all the prescribed terms is an essential prerequisite to the court's power to make an enforcement order.”

 

If the agreements are, as I expect, unenforceable by law or if no written agreement exists, then the respondent was in error when it stated that a liquidated and legally enforceable sum was due to the respondent at the time the demand was issued.

 

4. In response to point 3 of the above mentioned statement, the Defendant notes that Under CPR 16 part 7.3 “where a claim is based upon a written agreement; (1) a copy of the contract or documents constituting the agreement should be attached or served with the particulars of claim”, no such document or contract was attached to the Particulars of claim served by the claimant.

 

5. The claimant has included a collection charge to the court summons, which the claimant is well aware that it is not entitled to do. I refer to the Office of Fair Trading Debt Collection Guidelines;

 

2.10.1 Examples of unfair practices are as follows:

a. claiming collection costs from a debtor in the absence of express

contractual or other legal provision

b. misleading debtors into believing they are legally liable to pay

collection charges when this is not the case, for example, when there is no contractual provision

c. not giving an indication in credit agreements of the amount of any charges payable on default

d. applying unreasonable charges, for example, charges not based on actual and necessary costs

e. applying charges which are disproportionate to the main debt.

 

 

 

Statement of Truth

 

I believe the facts stated in this witness statement are true

 

Signed …………………………………..

 

Dated ………………………………….

[the_shadow]

Hi SB,

 

Your WS looks fine to me, you just need to make it easier to read formatting style, as explained its key that you answer each point that Restons raised and refute it in some way or form. I know you have been advised to put the key points first and thats a valid argument, its not one I'd agree as I like to answer point by point in order but its what ever YOU feel comfortable doing at the end of the day.

 

The key at this hearing is to show that you deserve a proper hearing and not for judgment to be given without the full facts so any mud you can sling against their case helps you.

 

Remember that any Acts you have quoted in the WS need to be printed out, I dont think you need to print out the whole act but the relevant parts you are quoting, likewise any case law you mention... dont forget sections of regulations quoted too.

 

As already advised these need to be clearly labeled and attached to this WS.

 

S.

[the_shadow]

Just seen your second stab... you might want to put it into a word doc and upload as all the numbers make it hard to see if your numbering is coherent and the formatting disappears otherwise

 

S.

[SB100]

Attached in pdf format

restons witness statement 5th oct 09 for CAG.pdf

[SB100]

Ok, point taken, will re-arrange and tackle point-by-point. Thanks again.

[the_shadow]

Attached in pdf format

 

Looks good to me, Point 3... you've mixed form and from

[SB100]

Would you still re-arrange, as you previously suggested?

 

It makes sense to me to deal the killer blow first, but I'm not familiar with court protocol

[supasnooper]

A Defective DN is/should be enough to stop an SJ - make sure it's mentioned first and hammered home.

The relevant case law is Woodchester v Swain, make sure you have a spare copy to hand.

If the Judge is savvy, he won't go past the Defective DN as he'll be wasting his court time.

[SB100]

Thats what I'm hoping. Thanks

[robcag]

..... I would have to agree with what BRW said early in the thread about your strongest point being the defective DN ......

Theoretically, as has been pointed out by others in your thread, that point alone is enough to halt them in their tracks, and our friend Bouffant at Restons is fully aware of that, having discontinued other cases for the same reason.

 

.......

 

You're probably aware that in my case, HFC/Restons realised and admitted in a letter to the court that they could not win because of this very reason, but then tried to do a little shuffle and came up with the idea of applying to re-issue an effective DN, and take things from there.

 

 

 

A Defective DN is/should be enough to stop an SJ - make sure it's mentioned first and hammered home.

The relevant case law is Woodchester v Swain, make sure you have a spare copy to hand.

If the Judge is savvy, he won't go past the Defective DN as he'll be wasting his court time.

 

Thats what I'm hoping. Thanks

 

Hi SB

 

A couple of people (at least) copied the letter which Restons sent to me (and to the court) in which HFC/Restons admitted that due to the defective DN they could not win, and fired it back at Restons. As I said above, Bouffant and the rest of the Restons mob are fully aware that HFC have stuffed up, it's just a case of when (not if ) they will find their way to admitting this.

 

In case you haven't seen it, the letter is at post #268 of my thread;

http://www.consumeractiongroup.co.uk/forum/dca-legal-successes/124572-hfc-no-agreement-amended-14.html#post1527558

 

but I've copied page 2 of Letter #2 below;

 

 

Bouffant also conceded in Letter #1 that the CCA1974 required 14 clear days for the service of a DN. So go ahead, hit them hard with the defective DN stuff!

 

Cheers

Rob

[SB100]

Which begs the question why on earth would they waste time / money even turning up if they know they're on a loser?

 

Surely this is abuse of the court?

 

I'm going to send the witness statement tomorrow, which doesn't give them much time- but then again, they didn't exactly give me much time.

[robcag]

Which begs the question why on earth would they waste time / money even turning up if they know they're on a loser? Because they're hoping you'll blink first!

 

Surely this is abuse of the court? Lot's of people would agree with you there (including me). It's frustrating that thousands of people are being subjected to this sort of behaviour, but unfortunately most of them won't be aware of their rights or all the other debtors. I'd say it amounts to HFC/Restons being 'Vexatious Litigants' but I'm not sure what we could do about it.

 

I'm going to send the witness statement tomorrow, which doesn't give them much time- but then again, they didn't exactly give me much time. You could always send them a 'Without Prejudice' letter as well including a copy of my letter, and saying that you are well aware that they know they are batting on a sticky wicket.

 

Cheers

Rob

[SB100]

You could always send them a 'Without Prejudice' letter as well including a copy of my letter, and saying that you are well aware that they know they are batting on a sticky wicket.

 

I'll sleep on that- at this point I'm inclined to have my £75's worth (application fee for SO) although that just may be bravado (or stupidity)

 

Cheers

[SB100]

Wouldn't the admission in the letter sent to you and the WS I've received amount to perjury?

[robcag]

Wouldn't the admission in the letter sent to you and the WS I've received amount to perjury?

 

Possibly, I'm not sure.

 

In my case the letter was sent as part of a bundle of stuff in an attempt by HFC (read Restons) to side-step the fact that the DN was defective as admitted, but they wanted to apply to the court for permission to re-issue a compliant DN, and then carry on proceedings without re-starting, just allowing me to re-submit an amended-amended defence etc. - very generous of them!

 

It would be nice to see Bouffants' reaction if you did send him a copy of the letter as suggested - he already knows he's backing a loser - but it's not his money he's going to lose. HFC are the ones who have to stump up Restons wages and your costs when they finally throw the towel in.

 

Cheers

Rob

[tiokim]

Hi Rob, I am one those 2 that copied your letter. I sent it to Restons with a letter and they just ignored it.