Are these CCA's enforceable

[AndyOrch]

Bundles of documents for hearings or trial

3.1

Unless the court orders otherwise, the claimant must file the trial bundle not more than 7 days and not less than 3 days before the start of the trial.

3.2

Unless the court orders otherwise, the trial bundle should include a copy of:

(1) the claim form and all statements of case,

(2) a case summary and/or chronology where appropriate,

(3) requests for further information and responses to the requests,

(4) all witness statements to be relied on as evidence,

(5) any witness summaries,

(6) any notices of intention to rely on hearsay evidence under rule 32.2,

(7) any notices of intention to rely on evidence (such as a plan, photograph etc.) under rule 33.6 which is not –

(a) contained in a witness statement, affidavit or experts report,

(b) being given orally at trial,

© hearsay evidence under rule 33.2,

( any medical reports and responses to them,

(9) any experts’ reports and responses to them,

(10) any order giving directions as to the conduct of the trial, and

(11) any other necessary documents.

3.3

The originals of the documents contained in the trial bundle, together with copies of any other court orders should be available at the trial.

3.4

The preparation and production of the trial bundle, even where it is delegated to another person, is the responsibility of the legal representative5 who has conduct of the claim on behalf of the claimant.

3.5

The trial bundle should be paginated (continuously) throughout, and indexed with a description of each document and the page number. Where the total number of pages is more than 100, numbered dividers should be placed at intervals between groups of documents.

3.6

The bundle should normally be contained in a ring binder or lever arch file. Where more than one bundle is supplied, they should be clearly distinguishable, for example, by different colours or letters. If there are numerous bundles, a core bundle should be prepared containing the core documents essential to the proceedings, with references to the supplementary documents in the other bundles.

3.7

For convenience, experts’ reports may be contained in a separate bundle and cross referenced in the main bundle.

3.8

If a document to be included in the trial bundle is illegible, a typed copy should be included in the bundle next to it, suitably cross-referenced.

3.9

The contents of the trial bundle should be agreed where possible. The parties should also agree where possible:

(1) that the documents contained in the bundle are authentic even if not disclosed under Part 31, and

(2) that documents in the bundle may be treated as evidence of the facts stated in them even if a notice under the Civil Evidence Act 1995 has not been served.

Where it is not possible to agree the contents of the bundle, a summary of the points on which the parties are unable to agree should be included.

3.10

The party filing the trial bundle should supply identical bundles to all the parties to the proceedings and for the use of the witnesses.

[shirei12]

Andy, as a matter of interest,could you tell me if this agreement was entered into (signed ) away from premises (ie. postal) should there have been a cancelation period before funds were released to bank account?? Just curious.

[AndyOrch]

If any agreement was not signed on the premises then cancellation rights are offered and required.

 

Andy

[shirei12]

Wish I had looked more closely:roll: Our agreement at top says "postal",the furnished reconstituted says "on trade premises". No cancelation rights offered. There is no way we could have signed in branch as we were living too far away at the time. They state agreement entered into on 20th Oct. I can show funds in bank on 25th.Oct.

[AndyOrch]

Ok Shirei read up on cancellation rights and include a section in your WS.

Dont forewarn them though, play that error close to your chest and lets see if they will disclose the original.

If they dont you will be armed with this fact and then release this slight detail at trial.

 

 

Regards

 

Andy

[42man]

Very interesting and well spotted.

 

If it was indeed off site and cancellation rights should have been there and weren't then....

 

If it is a 'cancellable' agreement then it should contain notice of cancellation rights prescribed by Consumer Credit (Cancellation Notices And Copies Of Documents) Regulations 1983 if it doesn't (and please correct me if i'm wrong) it makes the agreement unenforceable

[AndyOrch]

Correct Bill both original and reconstituted.

 

Regards

 

Andy

[shirei12]

Well in fairness it does state on the copy I have (postal) above signature box (unsigned) you have a short time to cancel etc,this information will be sent to you. Nothing on the reconstituted one. The thing is they say we signed on 20th Oct. but funds were in the bank occount on 25th Oct. So where did the cancellation time come into it??

[AndyOrch]

Thats fine Shirei (yours is as it should be) with cancellation rights (be it signed or unsigned) what date is on that one? and is the original you have

the true original or by way of a CCA request.?

 

The problem with these reconstituted agreements is that they are only allowed for the purpose of supplying information in the absence of the original

(for whatever reason the creditor thought acceptable not to keep them) They can not be used to be relied upon for enforcement (the devil is in the detail)

as you have found Shirei. Now we just need to convince a few more DJs the law but not yours,hence his order to supply the original a trial.

 

I would advocate Shirei that you use your ace at the appropriate moment in these matters.

 

Regards

 

Andy

[shirei12]

Thats fine Shirei (yours is as it should be) with cancellation rights (be it signed or unsigned) what date is on that one? and is the original you have

the true original or by way of a CCA request.? No dates on any I have. The one I have is the true one.

 

If I dont list it,I cant use it though,Can I ? I should not mention in WS then?

[AndyOrch]

Just list it as the CCA - A and B (meaning yours and theirs)

 

In your WS refer to agreements not signed on the premises requiring cancellation rights

notice of cancellation rights prescribed by Consumer Credit (Cancellation Notices And Copies Of Documents) Regulations 1983.

 

Its difficult to explain Shirei but try to not draw attention to your point and that in fact this refers to your argument

so both will be on the N265 and the above point will be contained in your WS.They will have 7 days to prepare once sight of your WS

and could easily rectify the error.The DJ as ordered that they disclose the true original (we know they cant) only you know the clanger.

Only you know what will differentiate both agreements.

The point you make about the date is also important and must be empasised in your WS.

 

Have you received their WS yet you should exchange simultaneously.Try to submit their copy as late as possible but not the Courts.

 

Regards

 

Andy

[shirei12]

"They will have 7 days to prepare once sight of your WS" More like six weeks Andy!!!!!

[AndyOrch]

Mmmmmm that is a long lead in, even more reason then to submit on time to the Court but dont exchange to the

Sols until you receive theirs.

[shirei12]

Hi Andy, I am filling in the N265 today,I believe I have all docs now. You said I only fill in one section and list my docs. I must be really thick ,I dont know which section!!! Can you help?

[AndyOrch]

I have control of the documents numbered and listed here. I do not object to you inspecting them/producing copies.

 

List and n

[shirei12]

Thats what I thought but thought I had better check. If I list CCA - A and B in disclosure I will have to send a copy of mine though wont I ?? I dont seem to have much to list.

[AndyOrch]

Thats what I thought but thought I had better check. If I list CCA - A and B in disclosure I will have to send a copy of mine though wont I ?? I dont seem to have much to list.

 

No you would just send the reconstituted not that they will ask for it as they already have a copy.You wont have much Shirei the Claimant is the one with lots to disclose its their claim.Just list the things you have referred to and depend upon with your defence. CCA request response (reconstituted) CPR request response .Etc Etc

 

Regards

 

Andy

.

[shirei12]

The thing is all that I list I have to supply by 8th March,along with the witness statement. They dont get to choose what they want. If that makes sense.

[shirei12]

OK Andy,If you want to delete that last post I have made note of it.

[AndyOrch]

I dont have that option Shirei if you want to ask the Site Team Im ok with that

but not perturbed either way unless you are

[shirei12]

The witness statement almost turned into a novel Courts copy and disclosure list have gone next day delivery this morning:high5:. I was up late last night finishing off. Hope its OK . Not sending claimants until I get theirs,they have been late with everything so I dont expect to receive tomorrow. Big thankyou to Andy.

Shirei

[AndyOrch]

Well done Shirei relax a little now.

 

Andy

[shirei12]

Andy would it be wise to talk settlement over the phone,and what would be a good guidline for a figure?

[AndyOrch]

Under 2k SCT and you have made payments for over 5 years.No original agreement available

Test the water at 20/25% FFS if they are not in agreement then propose a TO for a slightly higher figure.

IMHO I would wait a little longer until at least you received their WS, this will indicate their intentions and of course

determine your offer/settlement.

 

Regards

 

Andy

[shirei12]

They approached yesterday about negotiating a settlement and calling back today.