Court date on 16/06 vs Bank of Ireland-Help **SETTLED**

[SupermanX]

Hi

 

I have a court date with Bank of Ireland on 16-06. I need someone with more experience to help me out or if someone has a skeleton argument..,

 

I've attached their witness statements, default notice letter, an application form and T&C. I've also copied my defence in this case which is a standard one I picked up from the forum. They have also submitted copies of the a/c statements

 

A couple of points of noticed;

 

1-Prescribed Terms are not clear from the photocopies

2- They issued a claim without notification, it is not properly particularised, no default notice attached

3- T&C are not on the same document, may not be related??

4- The DN includes unfair charges

 

My questions:

1-Can someone tell me if the DN is executed properly or where do i need to look to check this out?

2-Is the application form a valid Credit Agreement?

 

My Defense:

 

DEFENCE

 

 

The Defendant denies that he is liable to the Claimant as alleged in the Particulars of Claim, /at all. The amount detailed in the Claimant’s claim, includes penalties 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.

It is therefore averred that the Defendant does not know the case that has to be met and the Particulars of Claim neither disclose any cause of action with any reasonable prospect of success and are an abuse of the process of this Court and, in compliance with the Civil Procedure Rules can and should be struck out pursuant to part 3.4 of the same. Furthermore, the Defendant contends that the Claimant’s conduct in issuing this claim is vexatious and amounts to unlawful harassment, pursuant to section 40 of the Administration of Justice Act 1970.

 

Regarding that which is denied, on the 16th April 2008, a request was made under section 78, running account credit, of the Consumer Credit Act 1974, to obtain a copy of a credit agreement that the alleged debt refers to. It was sent by recorded delivery to BCW/Bank of Ireland Group Plc, with the statutory £1.00 fee enclosed. It was received on the 18th April 2008. BCW/Bank of Ireland Group Plc had twelve working days from receipt of the request, in which to furnish a credit agreement, as stipulated in Regulation 2 of The Consumer Credit (Prescribed Periods for Giving Information) Regulations 1983.

In response to the request, a letter dated 18th of April 2008 was received stating that they do not have a copy and that they are acting on their client’s behalf. Accordingly, having failed to produce a credit agreement within the requisite timescale/ at all, the original creditor are in default of said request under section 78(6)(a) of the Consumer Credit Act 1974.

 

In response to the request, a letter dated 29th of July 2008, with an accompanying document was received from the Claimants. It is denied that the document furnished is a copy of a credit agreement as averred by the Claimant. The Claimant has provided an application form which is not a credit agreement within the meaning of sections 60 and 61 of the Consumer Credit Act 1974. Accordingly, having failed to produce a credit agreement within the requisite timescale or at all, the Claimants are in default of said request under section 78(6)(a) of the Consumer Credit Act 1974.

 

Regarding that which is denied, on the 15th of July 2008 I requested the disclosure of information pursuant to the Civil Procedure Rules, which is vital to this case from the claimant. The information requested amounted to copies of the Credit Agreement referred to in the particulars of claim and any default/ termination notices, a transcript of all transactions, including charges, fees, interest, alleged repayments by myself and payments made by the original creditor. Also any other documents the Claimant seeks to rely on, including any default notices/ termination notice required to give the claimant a legitimate right of action. Accordingly, having failed to produce a credit agreement within the requisite timescale/ at all, Claimants are in default of said request under section 78(6)(a) of The Consumer Credit Act 1974.

 

 

To Date the claimant has failed to comply with my request under the CPR and I have not received any such documentation requested. As a result it has proven difficult to compose this defense without disclosure of the information requested, especially given that I am Litigant in Person.

 

The Defendant denies that there has been any failure to make payment in accordance with the alleged contract. The Claimant has failed to produce a copy of a credit agreement in the requisite timescale/at all, and in the absence of such an agreement, which conforms to sections 60 and 61 of the Consumer Credit Act 1974, the Defendant avers that no agreement has ever existed for there to have been any failure to make said payment.

 

The Claimant, possessing no legal right claim monies allegedly owed, has acted unlawfully in issuing a Default Notice and registering said Notice with Credit Reference Agencies. Such conduct is a breach of the Data Protection Act 1998 and amounts to defamation. Furthermore, the Defendant avers, that the Default Notice is wholly unenforceable, given that the amount claimed regarding that which is denied, contains 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.

 

The Claimants have not established any legal right to issue a claim/ proven that any debt exists.

 

It is the Defendant’s position that the Claimant’s claim is entirely spurious and without merit and should be struck out for the aforementioned reasons.

Many Thanks

Super

1- WSatements:

http://i301.photobucket.com/albums/nn43/souress/WS-1.jpg

http://i301.photobucket.com/albums/nn43/souress/WS-2.jpg

http://i301.photobucket.com/albums/nn43/souress/WS-3.jpg

http://i301.photobucket.com/albums/nn43/souress/WS-4.jpg

2-Default Notice:

http://i301.photobucket.com/albums/nn43/souress/DefaultNotice-1.jpg

http://i301.photobucket.com/albums/nn43/souress/DefaultNotice-2.jpg

3-Application Forms:

http://i301.photobucket.com/albums/nn43/souress/ApplForm1.jpg

http://i301.photobucket.com/albums/nn43/souress/ApplForm2.jpg

http://i301.photobucket.com/albums/nn43/souress/ApplForm3.jpg

http://i301.photobucket.com/albums/nn43/souress/ApplForm4.jpg

4-T&C

http://i301.photobucket.com/albums/nn43/souress/TC-1.jpg

http://i301.photobucket.com/albums/nn43/souress/TC-2.jpg

[supasnooper]

Hi SmanX,

 

The DN would appear to be effective.

 

However, the agreement; can they prove both pages are of the same agreement - put them to strict proof that they have a BSI compliant filing system.

 

Look up BIP 0008 for further info.

[SupermanX]

Thanks

[SupermanX]

Can someone with more experience with agreements have a look please

 

Super

[car2403]

Can you post the POC?

When you say you're in Court, what is that for? Hearing? Application hearing? Allocation hearing? Directions hearing, etc?

 

 

T&C's? Page 2 and 3 of 9 are provided - where are the rest?

DN? States 2 clauses (Credit limit and repayments) have been breached, but I don't see those clauses on the application form or the T&C's?

[SupermanX]

Thanks Car

 

1- POC: The Claimant's claim is for the sum of xxxx, in respect of monies due under an agreement in writing and the Claimants claim the said sum of xxxxx

 

2- This is the final judgement hearing

3- They only provided pages 2&3 with their bundle, never seen any of the other pages

4- I couldn't see any of those clauses in any of the docs submitted, could they be related to the CCA 1974 sections 87(1)?

 

Super

[SupermanX]

I also checked my credit file, and they have not defaulted the account,it is only showing a huge number of late payments

 

Super

[car2403]

Ok, so what you need to focus on in the hearing (too late to submit anything in writing now) is that the claim is insufficiently particularised under CPR Part 16 - you don't know which agreement they are referring to, or which terms of it you are allegedly in breach of.

 

Re: the DN - I think this could be fatal. If the DN refers to clauses being breached, but the agreement doesn't contain those clauses, the DN has to be automatically inaccurate. (Woodchester Lease Management v Swain) As that is the case, the claim should be struck out, as they haven't complied with s.87/s.88 CCA 1974 and have no legal right to bring the claim against you. The DN and the agreement have to tie up, or they haven't fully complied - how can you remedy the breach if you don't know what the breach is? You can't!

 

In any case, if they haven't disclosed the full agreement and terms, they are in default of your request and the claim should be struck out under s.77(4)/s.78(6). Again, they don't have a right to bring this claim against you.

 

What was your defence?

[SupermanX]

Hi

 

my defense is on the first post of this thread, do you think i have a strong case?

 

I had agreed a settlement figure with them but then realised that they will only amend my credit file to "partial settlement". Because of that I withdrew my offer.

 

The clauses they are referring to in their DN letter are not in the bundle, I have now found them on their website, 4.3 is exceeding the credit limit and 9 is non payment

 

Super

[SupermanX]

I was thinking of developing the points you mentioned to the judge with a skeleton argument doc, do you think that is the best to present it? I must admit the hearing makes me nervous,.,,,

[car2403]

A skelly is definately the way to go. You could give it to the Usher before you go in, in case the Judge wants to read it before hand. Just keep it brief and to the point - reasons why they can't bring the claim, reasons why it can't be successful if they can, reasons why you can successfully defend, etc, etc. All bulletpointed, probably no more than 3 pages or the Judge won't read it. If he doesn't read it beforehand, it will give you a framework to work from. Heck, you can even give it to the other side before the hearing, so when they outline the claim and defence (which the Judge will undoubtedly ask them to do as your a litigant in person) they can put those points forward, too.

[SupermanX]

they have indicated that they will not attend the hearing and have asked the Judge to decide.

 

do i need to resubmit my defense? the court order states:

-"Each party should deliver to each party copies of all documents they intend to rely on"

"Unless the defendant signs a statement of truth attached to any documents he files such document shall not be used at trial"

 

do i need to submit a witness statement? or do i just turn up with the skely with a statement of truth at the bottom?

 

I will work on a skely tonight and will it post later on tonight or first thing in the morning, if you could then have a look

 

thanks for your help

[car2403]

I'll go back to have a looky at the defence

[car2403]

That defence is no longer relevant, as they've disclosed the documentation relating to the claim? I don't understand the first post, as it outlines the holding defence, but then lists the documents they've sent - were these sent after the defence was submitted?

 

Really, you should have had something in the defence to give you leave to apply to amend the defence if they did disclose after it was submitted, or should have applied to amend it since the documentation was disclosed.

 

Either way, you should have filed and served your arguments as ordered by the Court.

 

Am I missing something here, as this is a very short thread for being so close to a final hearing?

 

It may all be too late now, which is why they've indicated they won't turn up, so you'll need to do some begging from the Judge for more time to amend your defence against the claim.

[SupermanX]

the docs were sent after the holding defense. They only submitted their bundle on the 3rd of June.

 

On the Court directions. it states that the def has 14 days after the order date to file a fully pleaded Amended Defense, the order was dated 19.01.09.

 

what do you think i should do now?

[car2403]

The best course of action is to contact the other side and ask them to agree to vacate the hearing and agree to some proposed directions for submission of an amended defence.

 

You're best of calling them first thing in the morning to see what they say.

 

If they don't agree, all you can do is go to the hearing and beg the Judge's forgiveness, kiss some butt and see if he will agree to allow you to amend by issuing some new directions.

 

It's entirely possible he will strike your statement of case out, meaning they win, but I think that's unlikely - he's more likely to give you a hard time, but allow you some extra time to submit as your a litigant in person.

 

There isn't much we can do now, unless you can get them to agree or get the Judge to give you more time, I'm afraid.

[SupermanX]

can not just file an amended defense along with a letter stating why it is a late filing. i have 8 days before the hearing,

[SupermanX]

hi

 

Can i make an application to the court to postpone the hearing?

 

Also can you help me drafting the new defense

 

Thanks

Edited June 9, 2009 by SupermanX

[car2403]

can not just file an amended defense along with a letter stating why it is a late filing. i have 8 days before the hearing,

 

It will take them 5 days to turn it around, plus the other side will need time (I'll have to check CPR for Directions) so there isn't enough time to do this now.

 

hi

 

Can i make an applicatio to the court to postpone the hearing?

 

Also can help me drafting the new defense

 

Thanks

 

Same as above, it's probably too late to do so. The quickest way would be to contact the other side, ask them to agree to vacating the hearing and allowing you more time to amend your defence. If they don't agree, you'll need to beg the Judge for forgiveness and hope he doesn't throw you out on your ear. I don't think that will happen, but he may give you a hard time, but should allow you more time to do what you want.

 

Of course I'll help

[SupermanX]

Thanks for your time and help

 

I have to ask the judge as the otherside is not playing ball:mad:

 

Super

[car2403]

Shock! Horror! Not...

 

Hey, if you have 8 days, lets bang an application to allow a defence amendment in. That way, the Judge can't dismiss you at the hearing - at the very least he needs to consider the application, or adjourn, providing directions as to how the application will be dealt with.

[SupermanX]

cool

 

I will get on to the application form

[car2403]

Remember, though, that your submitting an application to allow your defence to be amended. So the Judge knows what the amended defence looks like, you'll need to submit it with the application asking for leave to amend. If you have a bash at constructing the amended defence, I'll have a gander at it when you post it up. (Others may comment as well... I tend to go googley eyed when dealing with this much detail, on so many subscribed threads!)

 

The application should be to adjourn the listed hearing, without consent of the other party, and to gain directions for the future conduct of the case after you've been given permission to amend your defence, which you'll attach to the application, then...

 

I do go on...

[SupermanX]

Hi

 

Just to let you know that we have now agreed settlement on this. I have confirmation that they will vacate the hearing.

 

Thanks for you help

 

Super:)

[car2403]

Fantastic news! Phew...

 

Actually, that was a bit easier than I thought it would be

 

Well done!