N150 assistance needed...please? / **WON**

[gh2008]

I am using open office which isnt the best and keeps cocking up the numbering and spacing!

 

They're all the same lol - Open Office is actually pretty good try emailing a document as a pdf attachment from Word 2003

 

PM me when it's finished and I'll format it for you - got it down to a fine art now. - the key is pasting it from here as "unformatted text" and then reformatting it in Writer or Word etc.

[NGEddie]

Cool, thanks gh

 

So what are peoples thoughts on the current version, I feel the bits I added to show the pre-action protocol didnt look so good

 

Does it make sense and am I missing anything else?

 

Thanks

 

E!

[NGEddie]

Would this be ok to add at the start of 22 :-

 

It seems no thought or consideration has been given to the detrimental affect this could be having to the health of the already critically ill applicant

 

Yay or nay? I just feel it needs to be in their minds when summing this whole case up.

[citizenB]

duplicate post removed

 

 

Edited February 24, 2010 by citizenB

[citizenB]

Filed on behalf of: Claimant/Defendant

Witness: NG Eddie

Number: 1st

Exhibits: NGE1

Date: Sometime

 

 

IN THE LOCAL county court claimNo: 1234567

 

 

 

BETWEEN:

CREDITOR

Respondent

and

NG EDDIE

Applicant

 

_________________________ _________________________

WITNESS STATEMENT OF NG EDDIE

IN SUPPORT OF APPLICATION FOR SUMMARY JUDGEMENT

_______________________________________________________________________

 

 

I, NG Eddie, will state as follows:

1 I am a CAGer?!?! and the Applicant in these proceedings. I make this witness statement in support of the applicant’s application for summary judgment.

 

2 The matters referred to in this witness statement are within my own knowledge, except where I have indicated otherwise. Where any matters contained in this witness statement are not within my own knowledge, I have stated the source of my information.

 

3 There is now produced and shown to me a bundle of documents marked “NGE1”. The exhibit NGE1 contains copies of the documents to which I will refer in this witness statement. Their related document number can be found at the bottom right hand of each page.

 

4 On 1st September 2009 a Default Notice (NGE a) was issued, as per the Consumer Credit Act 1974 Section 87 (1) this is invalid as it does not comply with legislation allowing 14 clear days to remedy. Neither is it in the prescribed format, which I will now elaborate on.

5 The Claimant must under Section 87(1) of the Consumer Credit Act 1974 serve a valid Default Notice before they can demand early payment of sums not yet due under a Regulated Credit Agreement.

 

6 Under the Interpretation Act 1978 Section 7, it states:

 

Where an Act authorises or requires any document to be served by post (whether the expression "serve" or the expressions "give" or "send" or any other expression is used) then, unless the contrary intention appears, the service is deemed to be effected by properly addressing, pre-paying and posting a letter containing the document and, unless the contrary is proved, to have effected at the time at which the letter would be delivered in the ordinary course of post."

 

7 Practice Direction

Service of Documents - First and Second Class Mail.

 

With effect from 16 April 1985 the Practice Direction issued on 30 July 1968 is hereby revoked and the following is substituted therefore.

1). Under S7 of the Interpretation Act 1978 service by post is deemed to have been effected, unless the contrary has been proved, at the time when the letter would be delivered in the ordinary course of post.

2). To avoid uncertainty as to the date of service it will be taken (subject to proof to the contrary) that delivery in the ordinary course of post was effected:-

(a) in the case of first class mail, on the second working day after posting;

(b) in the case of second class mail, on the fourth working day after posting.

"Working days" are Monday to Friday, excluding any bank holiday.

3). Affidavits of service shall state whether the document was dispatched by first or second class mail. If this information is omitted it will be assumed that second class mail was used.

4). This direction is subject to the special provisions of RSC Order 10, rule 1(3) relating to the service of originating process.

 

8th March 1985

J R BICKFORD SMITH Senior Master

Queen's Bench Division

 

8 Further to point 2 above, CPR rules on service also state the required timescales to be given for serving of documents:-

 

Under CPR 6.26 First class post (or other service which provides for delivery on the next business day) is deemed to be “served” The second day after it was posted, left with, delivered to or collected by the relevant service provider provided that day is a business day.

 

9 The Default notice supplied by the Claimant is dated Tuesday 1st September 2009, to allow service in line with the statutory requirements mentioned in points 2 & 3 above, 2 working days were required to allow for 1st Class postage. Thus the Rectify date should be 14 calendar days from Friday 4th September 2009, namely Friday 18th September, not the 14 calendar days from the date of the letter as stated in the Default notice which would have been 15th September 2009.

 

 

10 I therefore put the Claimant to strict proof that any Default Notice sent to me was valid and allowed the statutory 14 clear days to rectify the breach. I also note that to be valid, a Default Notice needs to be accurate in terms of both the scope 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 amendmentregulations the Consumer Credit (Enforcement, Default and Termination Notices) (Amendment) Regulations 2004 (SI 2004/3237).

 

11. The 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 an 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.

 

12. It is submitted that the above Default Notice served s87(1) Consumer Credit Act 1974 failed to comply with the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561).

 

13. For a Creditor to be entitled to terminate a regulated Credit Agreement where there is a breach, demand repayment in full or take any legal action to recover any monies due under the Agreement, a creditor must serve a Default Notice under section 87(1) of the Consumer Credit Act 1974 which states:

 

Section 87. Need for Default Notice

 

(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, or

 

© to recover possession of any goods or land, or

 

(d) to treat any right conferred on the Debtor or hirer by the Agreement as terminated, restricted or deferred, or

 

(e) to enforce any security.

 

14. The Act also sets out via Section 88(1), that the Default Notice must be in the prescribed form, as below:

 

Section 88. Contents and effect of Default Notice

 

(1) The Default Notice must be in the prescribed form…

 

15. The wording must make it clear that no variation is acceptable. Therefore it cannot be dispensed with as a De Minimus issue.

 

16. I note that the regulations do not allow any variation in the form of these statements and therefore it is suggested that where the statements are not as laid down in the regulations the Default Notice is rendered invalid as a consequence.

 

17. In the case of Woodchester Lease Management Services Ltd v Swain & Co - [1998] All ER (D) 339 in the Court of Appeal, the Court addressed in some detail the issue of the contents of a Default Notice and should the notice fail to comply with the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) it would render the Default Notice invalid I quote the comment of KENNEDY LJ: "This statute was plainly enacted to protect consumers, most of whom are likely to be individuals" the judgment appears to confirm the consumer credit legislation made under the Consumer Credit Act 1974 as plainly enacted and set out to offer protection to the consumer. Therefore it is suggested that the failure of the Claimant to set out the Default Notice in accordance with the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) could unduly prejudice me as it failed to allow the required time to remedy the alleged default.

 

18. The Claimant’s failure to issue a valid Default Notice must surely prevent a right of action and would make any termination of the Agreement unlawful, as statute provides the procedure that must be followed. Since the Claimant has failed to adhere to statutory procedure it is averred that the Claimant does not have a right of action, and can never now have a right of action having terminated the Agreement unlawfully.

 

19. Furthermore, the Arrears Total outlined cannot be accurate, as the Balance on the Account was at least partly comprised of Unlawful Charges plus additional Charges and interestadded unlawfully whilst the Account was in Dispute. Therefore, the Arrears claimed cannot be accurate, as they are themselves calculated using a Total that was itself inaccurate.

 

20. This is at all times an Agreement Regulated by the Consumer Credit Act 1974. There is no provision in the Act that allows a large financial institution to terminate an Agreement that is in alleged default or breach simply by giving notice to the Consumer. Section 98(6) makes that quite clear. The Creditor must follow the steps outlined in Section 87 and Section 88 if they are to lawfully Default and Terminate, and enjoy the benefits of Section 87.

 

21. Finally on this point, an invalid Default Notice cannot be remedied by simply issuing a new Default Notice. The Claimant may not serve a second effective default notice in prescribed form post-termination of the agreement. Any such second default notice will necessarily state a date by when I would be required to comply after which in default the agreement would terminate. The second default notice would therefore contain the fiction that the agreement endured when that cannot be the case, as it was terminated on1st September 2009. Terminating an Agreement on the back of a defective Default Notice, simply confirms the undeniable truth that Termination of the agreement by the Claimant was carried out in circumstances which then prohibited them from enjoying the benefits of Section 87, namely the opportunity to seek early Payment of a sum that was, prior to Termination, only payable in the future.

 

22. The claim also fails to comply with CPR 16.4 where clearly very little care and consideration, if any, was put into the Particulars of Claim which discloses no cause of action and are self evidently an abuse of process, in that they fail to deal with the basic rules of pleading in accordance with the CPR.

 

23. Further to this the claimant is attempting to use Section 69 of the County Courts Act 1984 to claim interest, from what is clearly a Consumer Credit Act 1984 regulated agreement, yet again an abuse of process as per The County Courts (Interest on Judgement Debts) Order 1991, Section 2. The General Rule, subsection (3) Interest shall not be payable under this Order where the relevant judgment— (a) is given in proceedings to recover money due under an agreement regulated by the Consumer Credit Act 1974,

 

24. On 22/9/09 the claimant passed the account to its Litigation and Recovery Department (NG b) , but did not follow Pre-Action protocol of Section 7.2 (1) in the recommended time allowed.

A ‘reasonable period of time’ will vary depending on the matter. As a general guide –

(1) the defendant should send a letter of acknowledgement within 14 days of receipt of the letter before claim (if a full response has not been sent within that period);

Instead after one threatening and intimidating phone call26/9/09, a solicitor was instructed who wrote (NG c) to us just a mere 7 days later threatening court action. No details were included as to how they arrived at the alleged sum or documents on which they would rely on in court as per Annexe A 2.1 and 2.2.

 

2. Claimant’s letter before claim

 

2.1

 

The claimant’s letter should give concise details about the matter. This should enable the defendant to understand and investigate the issues without needing to request further information. The letter should include –

(1) the claimant’s full name and address;

(2) the basis on which the claim is made (i.e. why the claimant says the defendant is liable);

(3) a clear summary of the facts on which the claim is based;

(4) what the claimant wants from the defendant;

(5) if financial loss is claimed, an explanation of how the amount has been calculated; and

(6) details of any funding arrangement (within the meaning of rule 43.2(1)(k) of the CPR) that has been entered into by the claimant.

2.2

 

The letter should also –

(1) list the essential documents on which the claimant intends to rely;

(2) set out the form of ADR (if any) that the claimant considers the most suitable and invite the defendant to agree to this;

(3) state the date by which the claimant considers it reasonable for a full response to be provided by the defendant; and

(4) identify and ask for copies of any relevant documents not in the claimant's possession and which the claimant wishes to see.

This clearly shows yet again no real effort or compliance being made with pre-action protocol, but instead a clear attempt of trying to secure an unsecured loan.

?? This whole plethora of errors and disregard for legislation is representative of the claimant’s actions from start to finish, even up to recently failing to comply with the courts order to pay the fee and return the requested allocation questionnaire.

STATEMENT OF TRUTH

I believe that the facts in this statement are true

 

Sorry, took it back to my computer to get rid of that numbering system:rolleyes: I think you need, somewhere, to throw doubt on the class of postage eg.. If the DN had been mailed 2nd class then 4 working/business days would be required for service leaving even less time for remedy.

 

You will need to check that you are consistent with lower and upper case for words such as Defendant, Claimant, Court, Default Notice. either lower or upper is acceptable.. but you need to be consistent. I ran a spell check but you will still need to make sure. Have also made one or two very slight amendments.

[gh2008]

 

I'm sorry cB after the discussion above re OpenOffice etc I love your post

 

It's $%^*&ing infuriating isn't it.

 

and you usually 'cheat' and just directly edit the original posts always makes me smile that one. It also works soooo well because it limits the amount of duplicate posts etc.

[citizenB]

 

I'm sorry cB after the discussion above re OpenOffice etc I love your post

 

It's $%^*&ing infuriating isn't it.

 

and you usually 'cheat' and just directly edit the original posts always makes me smile that one. It also works soooo well because it limits the amount of duplicate posts etc.

 

Brilliant wasnt it.. I hate it when that happens. Anyway, tis sorted now and all the !"£$%*(*^ has gone.

 

I took it back to my own computer to sort out the numbering.. so NG.. it may be worth copying and pasting my post above back into your programme .

[NGEddie]

Thanks so much CB and gh, I cant believe how far this WS has come in such a short space of time

 

I will add those couple of bits in like you said and go through the type of case on those words.

 

This is actually confusing, but do I refer to us at the applicant or defenant all the way through, as it does change in some places?!

 

Just to be sure I am 100% correct could one of you just confirm my paragraph for number 3 is ok?

 

 

 

This is an application for a Summary Judgement against a claimant under CPR 24.2 on the whole of the claim as the claimant has no real prospect of succeeding on the claim and there is no other compelling reason why the case should be disposed of at a trial.

Certainly very little care and consideration, if any, was put into the Particulars of Claim which discloses no cause of action and are self evidently an abuse of process, in that they fail to deal with the basic rules of pleading in accordance with the CPR. Further to this the claimant is attempting to use Section 69 of the County Courts Act 1984 to claim interest, from what is clearly a CCA 1984 regulated agreement, yet again an abuse of process as per The County Courts (interest on Judgement Debts) Order 1991, Section 2. The General Rule, subsection 3. (a).

 

 

 

 

If so I can start writing on the form and getting those bits done.

 

Thanks again, milky bars are on me!

[gh2008]

I presume this is teh N244 form - what are you applying for bit

 

Make sure you don't get confused with the tests for SJ and those for SO

 

You also IMHO don't need anything about s.69 - that goes in your WS

 

I would make it an app for SJ and/or SO against the claimant, then just take out the s.69 bit

[NGEddie]

It seems to mess up as soon as I paste into open office writer, hmmm, nevermind!

Just added some bits in blue :-

 

Filed on behalf of: Claimant/Defendant

Witness: NG Eddie

Number: 1st

Exhibits: NGE1

Date: Sometime

 

 

IN THE LOCAL county court claimNo: 1234567

 

 

 

BETWEEN:

CREDITOR

Respondent

and

NG EDDIE

Applicant

 

_________________________ _________________________

WITNESS STATEMENT OF NG EDDIE

IN SUPPORT OF APPLICATION FOR SUMMARY JUDGEMENT

_________________________ _________________________ _____________________

 

 

I, NG Eddie, will state as follows:

1 I am a Litigation in person and the Applicant in these proceedings. I make this witness statement in support of the applicant’s application for summary judgment. to be entered against the claimant as it has no realistic chance of succeeding or, in the alternative for the claimant's claim to be struck out as the statement of case discloses no reasonable grounds for bringing the claim,it is an abuse of the court’s process and the claimant has repeatedly failed to comply with the rules, practice directions and a court orders

 

2 The matters referred to in this witness statement are within my own knowledge, except where I have indicated otherwise. Where any matters contained in this witness statement are not within my own knowledge, I have stated the source of my information.

 

3 There is now produced and shown to me a bundle of documents marked “NGE1”. The exhibit NGE1 contains copies of the documents to which I will refer in this witness statement. Their related document number can be found at the bottom right hand of each page.

 

4 On 1st September 2009 a Default Notice (NGE a) was issued, as per the Consumer Credit Act 1974 Section 87 (1) this is invalid as it does not comply with legislation allowing 14 clear days to remedy. Neither is it in the prescribed format, which I will now elaborate on.

 

5 The Claimant must under Section 87(1) of the Consumer Credit Act 1974 serve a valid Default Notice before they can demand early payment of sums not yet due under a Regulated Credit Agreement.

 

6 Under the Interpretation Act 1978 Section 7, it states:

 

Where an Act authorises or requires any document to be served by post (whether the expression "serve" or the expressions "give" or "send" or any other expression is used) then, unless the contrary intention appears, the service is deemed to be effected by properly addressing, pre-paying and posting a letter containing the document and, unless the contrary is proved, to have effected at the time at which the letter would be delivered in the ordinary course of post."

 

7 Practice Direction

Service of Documents - First and Second Class Mail.

 

With effect from 16 April 1985 the Practice Direction issued on 30 July 1968 is hereby revoked and the following is substituted therefore.

1). Under S7 of the Interpretation Act 1978 service by post is deemed to have been effected, unless the contrary has been proved, at the time when the letter would be delivered in the ordinary course of post.

2). To avoid uncertainty as to the date of service it will be taken (subject to proof to the contrary) that delivery in the ordinary course of post was effected:-

(a) in the case of first class mail, on the second working day after posting;

(b) in the case of second class mail, on the fourth working day after posting.

"Working days" are Monday to Friday, excluding any bank holiday.

3). Affidavits of service shall state whether the document was dispatched by first or second class mail. If this information is omitted it will be assumed that second class mail was used.

4). This direction is subject to the special provisions of RSC Order 10, rule 1(3) relating to the service of originating process.

 

8th March 1985

J R BICKFORD SMITH Senior Master

Queen's Bench Division

 

8 Further to point 2 above, CPR rules on service also state the required timescales to be given for serving of documents:-

 

Under CPR 6.26 First class post (or other service which provides for delivery on the next business day) is deemed to be “served” The second day after it was posted, left with, delivered to or collected by the relevant service provider provided that day is a business day.

 

9 The Default notice supplied by the Claimant is dated Tuesday 1st September 2009, to allow service in line with the statutory requirements mentioned in points 2 & 3 above, 2 working days were required to allow for 1st Class postage. Thus the Rectify date should be 14 calendar days from Friday 4th September 2009, namely Friday 18th September, not the 14 calendar days from the date of the letter as stated in the Default notice which would have been 15th September 2009. Furthermore if the Default notice had been mailed 2nd class then 4 working/business days would be required for service leaving even less time for remedy.

 

10 I therefore put the Claimant to strict proof that any Default Notice sent to me was valid and allowed the statutory 14 clear days to rectify the breach. I also note that to be valid, a Default Notice needs to be accurate in terms of both the scope 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 amendmentregulations the Consumer Credit (Enforcement, Default and Termination Notices) (Amendment) Regulations 2004 (SI 2004/3237).

 

11. The 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 an 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.

 

12. It is submitted that the above Default Notice served s87(1) Consumer Credit Act 1974 failed to comply with the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561).

 

13. For a Creditor to be entitled to terminate a regulated Credit Agreement where there is a breach, demand repayment in full or take any legal action to recover any monies due under the Agreement, a creditor must serve a Default Notice under section 87(1) of the Consumer Credit Act 1974 which states:

 

Section 87. Need for Default Notice

 

(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, or

 

© to recover possession of any goods or land, or

 

(d) to treat any right conferred on the Debtor or hirer by the Agreement as terminated, restricted or deferred, or

 

(e) to enforce any security.

 

14. The Act also sets out via Section 88(1), that the Default Notice must be in the prescribed form, as below:

 

Section 88. Contents and effect of Default Notice

 

(1) The Default Notice must be in the prescribed form…

 

15. The wording must make it clear that no variation is acceptable. Therefore it cannot be dispensed with as a De Minimus issue.

 

 

16. I note that the regulations do not allow any variation in the form of these statements and therefore it is suggested that where the statements are not as laid down in the regulations the Default Notice is rendered invalid as a consequence.

 

17. In the case of Woodchester Lease Management Services Ltd v Swain & Co - [1998] All ER (D) 339 in the Court of Appeal, the Court addressed in some detail the issue of the contents of a Default Notice and should the notice fail to comply with the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) it would render the Default Notice invalid I quote the comment of KENNEDY LJ: "This statute was plainly enacted to protect consumers, most of whom are likely to be individuals" the judgment appears to confirm the consumer credit legislation made under the Consumer Credit Act 1974 as plainly enacted and set out to offer protection to the consumer. Therefore it is suggested that the failure of the Claimant to set out the Default Notice in accordance with the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) could unduly prejudice me as it failed to allow the required time to remedy the alleged default.

 

18. The Claimant’s failure to issue a valid Default Notice must surely prevent a right of action and would make any termination of the Agreement unlawful, as statute provides the procedure that must be followed. Since the Claimant has failed to adhere to statutory procedure it is averred that the Claimant does not have a right of action, and can never now have a right of action having terminated the Agreement unlawfully.

 

19. Furthermore, the Arrears Total outlined cannot be accurate, as the Balance on the Account was at least partly comprised of Unlawful Charges plus additional Charges and interestadded unlawfully whilst the Account was in Dispute. Therefore, the Arrears claimed cannot be accurate, as they are themselves calculated using a Total that was itself inaccurate.

 

20. This is at all times an Agreement Regulated by the Consumer Credit Act 1974. There is no provision in the Act that allows a large financial institution to terminate an Agreement that is in alleged default or breach simply by giving notice to the Consumer. Section 98(6) makes that quite clear. The Creditor must follow the steps outlined in Section 87 and Section 88 if they are to lawfully Default and Terminate, and enjoy the benefits of Section 87.

 

21. Finally on this point, an invalid Default Notice cannot be remedied by simply issuing a new Default Notice. The Claimant may not serve a second effective default notice in prescribed form post-termination of the agreement. Any such second default notice will necessarily state a date by when I would be required to comply after which in default the agreement would terminate. The second default notice would therefore contain the fiction that the agreement endured when that cannot be the case, as it was terminated on1st September 2009. Terminating an Agreement on the back of a defective Default Notice, simply confirms the undeniable truth that Termination of the agreement by the Claimant was carried out in circumstances which then prohibited them from enjoying the benefits of Section 87, namely the opportunity to seek early Payment of a sum that was, prior to Termination, only payable in the future.

 

22. The claim also fails to comply with CPR 16.4 where clearly very little care and consideration, if any, was put into the Particulars of Claim which discloses no cause of action and are self evidently an abuse of process, in that they fail to deal with the basic rules of pleading in accordance with the CPR.

 

23. Further to this the claimant is attempting to use Section 69 of the County Courts Act 1984 to claim interest, from what is clearly a Consumer Credit Act 1984 regulated agreement, yet again an abuse of process as per The County Courts (Interest on Judgement Debts) Order 1991, Section 2. The General Rule, subsection (3) Interest shall not be payable under this Order where the relevant judgment— (a) is given in proceedings to recover money due under an agreement regulated by the Consumer Credit Act 1974,

 

24. On 22/9/09 the claimant passed the account to its Litigation and Recovery Department (NG b) , but did not follow Pre-Action protocol of Section 7.2 (1) in the recommended time allowed.

A ‘reasonable period of time’ will vary depending on the matter. As a general guide –

(1) the defendant should send a letter of acknowledgement within 14 days of receipt of the letter before claim (if a full response has not been sent within that period);

Instead after one threatening and intimidating phone call26/9/09, a solicitor was instructed who wrote (NG c) to us just a mere 7 days later threatening court action. No details were included as to how they arrived at the alleged sum or documents on which they would rely on in court as per Annexe A 2.1 and 2.2.

 

2. Claimant’s letter before claim

 

2.1

 

The claimant’s letter should give concise details about the matter. This should enable the defendant to understand and investigate the issues without needing to request further information. The letter should include –

(1) the claimant’s full name and address;

(2) the basis on which the claim is made (i.e. why the claimant says the defendant is liable);

(3) a clear summary of the facts on which the claim is based;

(4) what the claimant wants from the defendant;

(5) if financial loss is claimed, an explanation of how the amount has been calculated; and

(6) details of any funding arrangement (within the meaning of rule 43.2(1)(k) of the CPR) that has been entered into by the claimant.

2.2

 

The letter should also –

(1) list the essential documents on which the claimant intends to rely;

(2) set out the form of ADR (if any) that the claimant considers the most suitable and invite the defendant to agree to this;

(3) state the date by which the claimant considers it reasonable for a full response to be provided by the defendant; and

(4) identify and ask for copies of any relevant documents not in the claimant's possession and which the claimant wishes to see.

This clearly shows yet again no real effort or compliance being made with pre-action protocol, but instead a clear attempt of trying to secure an unsecured loan.

 

25. It seems no thought or consideration has been given to the detrimental affect this could be having on the health of the already critically ill applicant. This whole plethora of errors and constant disregard for legislation is representative of the claimant’s actions from start to finish, even up to recently failing to comply with the courts order to pay the fee and return the requested allocation questionnaire.

STATEMENT OF TRUTH

I believe that the facts in this statement are true

Phew, think thats it appart from case lower or higher checking.

Does the or, in the alternative, apply to this one gh? I cant recall what we said now

Would appreciate comments on this now, I can see why you cant just copy someone elses work, dare I say I actually understand most of that now, and am impressed at the few bits I pieced together here and there, big thank you's to ya'll for help on here so far today. I just need to photo copy the DN, Debt Recover letter and Solicitors letter and refernece then properly, print off the WS at work tomorrow and its ready, I think, hope!

[NGEddie]

I presume this is teh N244 form - what are you applying for bit

 

Make sure you don't get confused with the tests for SJ and those for SO

 

You also IMHO don't need anything about s.69 - that goes in your WS

 

I would make it an app for SJ and/or SO against the claimant, then just take out the s.69 bit

 

Yes it is mate.

 

When you say tests?!

 

Ok so ill drop the S69.

 

Think you just answered my next question!

 

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

This is an application for a Summary Judgement against a claimant under CPR 24.2 on the whole of the claim as the claimant has no real prospect of succeeding on the claim and there is no other compelling reason why the case should be disposed of at a trial.

Certainly very little care and consideration, if any, was put into the Particulars of Claim which discloses no cause of action and are self evidently an abuse of process, in that they fail to deal with the basic rules of pleading in accordance with the CPR.

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

 

So then, in laymans terms, what is the best we can hope to happen from this now? does it matter if they do return the AQ this week afterall?

[gh2008]

It seems to mess up as soon as I paste into open office writer, hmmm, nevermind!

 

when in writer (having selected and copied the text from wherever)

ctrl+shift+v then select unformatted text

 

that will kill all formatting and you can then carefully reformat.

 

Once in a numbered list shift+enter will give you a new line without a new number then when you're done with that bit plain enter will give you the next number from before

 

should get you started right

click on the numbering for more options than you thought there could possibly be

[gh2008]

Yes it is mate.

 

When you say tests?! CPR3 and CPR24 give 'tests' that are applied to see if SJ or SO are appropriate

 

So then, in laymans terms, what is the best we can hope to happen from this now? does it matter if they do return the AQ this week afterall?

 

Best - you get SJ + costs against the creditor - they don't appeal and pay up. So alleged debt wiped from the record and you've got a few quid in your pocket in costs.

 

Worst - SJ app fails - you get a bad Judge and they got out of bed the wrong side - they award SJ against you & maybe £1k in costs against you.

 

Most likely - get a good judge you'll get a SJ - bad judge claimant ordered to resubmit POC and documents - if that happens try and persuade the Judge to make it an unless order i.e. unless the claimant do ######## then teh claim will be struck out without further order of the court'

 

that's all 3 weeks away yet - there will be 'interesting times' once the other side gets a copy of your app anyway.

[NGEddie]

 

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

This is an application for a Summary Judgement against a claimant under CPR 24.2 on the whole of the claim as the claimant has no real prospect of succeeding on the claim and there is no other compelling reason why the case should be disposed of at a trial.

Certainly very little care and consideration, if any, was put into the Particulars of Claim which discloses no cause of action and are self evidently an abuse of process, in that they fail to deal with the basic rules of pleading in accordance with the CPR.

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

 

So this looks all ok?

 

Just got it into writer now thanks

 

Wow, so is that really it?!

[NGEddie]

Damn, just had a thought, we wrote to the claimant twice before it got to this showing incomings and outgoings and seeing if we could have some help in lower re-payments or something, to which both times they said no, pay up, should I include this?

 

We have not mentioned either about the financial hardship bit, although this was mentioned on the AQ, can it be re-intterated?

 

and does the bundle I heard mentioned have to be attached when I give it in tomorrow as well? I was going include DN, Debt Recovery letter, and Solcitors letter?

Edited February 24, 2010 by NGEddie

[NGEddie]

Been thinking about this, they have until end of week to get the AQ in, if they dont, and he strikes it out as said in the order that is that? but you are saying they could try again hence the SJ.

 

Am I better to wait until they dont hopefully submitt the AQ, then go for the SJ? or best to get in there first? I just felt a bit concerned when you said about if it went against me and I had to pay costs and they won, that would because I kinda forced it to a hearing I suppose, on the other hand I could spend anytime after a SO worrying they may try again.

 

Does that make sense?

[NGEddie]

removed post

Edited February 24, 2010 by NGEddie
sorted this one

[NGEddie]

I am not quite ready in my mind and on a few bits to hand in tomorrow so am postponing to Friday now.

 

If anyone gets a spare minute could they have a read of my last couple of posts as just a bit unsure about these points.

 

A big thank you to all who have helped both today especially, and all during this

 

I think this is such a great site, the way it brings people together in the same boat, we can either sit back and let them wrongly take money from us, or put up a damn good fight, if we lose, at least we gave it a go!

[gh2008]

Been thinking about this, they have until end of week to get the AQ in, if they dont, and he strikes it out as said in the order that is that? but you are saying they could try again hence the SJ.

 

Am I better to wait until they dont hopefully submitt the AQ, then go for the SJ? or best to get in there first? I just felt a bit concerned when you said about if it went against me and I had to pay costs and they won, that would because I kinda forced it to a hearing I suppose, on the other hand I could spend anytime after a SO worrying they may try again.

 

Does that make sense?

 

You're the one who has to make a decision.

 

IMHO I think you have a very good case - they think they don't have case and hence why they are not paying the allocation fee.

 

They may never try again and just harass you for 6 years until it's statute barred.

 

But they may issue a new DN and try again - adds a whole new set of arguments into the mix.

 

None of us can make the decision for you - sorry ....

 

gh

[NGEddie]

Cheers gh,

 

I think I will go for it, just a case of getting it right in my head.

 

But I thought they cannot issue another DN once the invalid one has been sent?

 

As of today still nothing recieved at the court.

 

So will it make any difference adding a new part about two letters we sent asking for a reduced payment to which they said no to?

 

My paragraph for section 3 is :-

 

This is an application for a Summary Judgement against a claimant under CPR 24.2 on the whole of the claim as the claimant has no real prospect of succeeding on the claim and there is no other compelling reason why the case should be disposed of at a trial.

Certainly very little care and consideration, if any, was put into the Particulars of Claim which discloses no cause of action and are self evidently an abuse of process, in that they fail to deal with the basic rules of pleading in accordance with the CPR.

 

Look ok? I can then get writing

 

So what is known as the bundle is the papers refered to in the WS, attatched to the WS?

[NGEddie]

What is the correct terminology for the income and outgoing sheet you sent which debt line etc... give you please?

 

Also

 

-------

STATEMENT OF TRUTH

 

 

I believe that the facts in this statement are true

-------

 

Is this all that goes at the end of the WS? and just underneath or between the two?!

 

Is it ok if I use a high lighter to draw attention to dates and format on the DN?

 

Mo opening paragraph asks for a SJ, or if not an SO, is this correct?

Edited February 25, 2010 by NGEddie
another question!

[costa12]

Hi E,

 

In answer to your questions:

 

All the documents that were referred to in the WS should be attached to the WS. All itemised so the Judge, etc can easily refer to them. All mine were labelled 'ITEM 1' 'ITEM 2' etc in the top right of each sheet attached. I also highlighted the label.

 

The 'bundle' contains all the papers, documents, evidence, etc that is applicable to that case. I am in the process of gathering mine together and it will contain the WS, all evidence, Judgments I refer to, a skeleton argument and so on.

 

The sheet you refer to as income/outgoings is the Income/Expenditure Sheet.

 

Statement of truth is good. And it does go below the final paragraph, 2-3 lines down on the left side of the sheet.

 

I can't see any harm in highlighting the DN etc. on the copy that goes to the Court for the Judge. Don't forget copies will have to be served/filed with the 'opposition' so I wouldn't highlight theirs! Or am I being picky!

 

Costa

Edited February 25, 2010 by costa12
Typos

[NGEddie]

Cheers Costa, very helpful.

 

I have thrown this together :-

 

 

25. A request for help letter was sent to the claimant xxxx explaining I was facing financial hardship after being diagnosed with a critical illness and rendering me unable to work as per doctors orders, a reply dated xxxx was received rejecting the request. On advice of a Debt Help Line I wrote to the claimant again xxxx showing my income and outgoings which clearly displayed financial hardship and asking for more help, again xxxx a letter was received rejecting the request. On xxxx the claimant passed the account to its Litigation and Recovery Department (CO1 b) , but did not follow Pre-Action protocol of Section 7.2

(1) in the recommended time allowed.

A ‘reasonable period of time’ will vary depending on the matter. As a general guide –

(1) the defendant should send a letter of acknowledgement within 14 days of receipt of the letter before claim (if a full response has not been sent within that period);

 

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

 

Does this look ok? it was the, how we got here part, as far as I could detail, not sure if I should copy their return letters and include or not.

 

Also as I am doing all this for my Dad, the case is in his name, I put myself down as a witness on the AQ, do I need to name myself somewhere on the WS?

 

Thanks!

Edited February 25, 2010 by NGEddie
removed dates!

[costa12]

Only copy and attach their letters if they are referred to in the WS.

 

If you think their letters are relevant to your argument then include them.

 

The hearing for SJ/SO should not be a 'mini trial' and that is stipulated in the CPR. So no witnesses at this point, therefore you should not have to include yourself in the WS.

 

Not too sure on the wording for your para 25. Gh is normally the better person to ask.

 

Costa

[NGEddie]

Am planning on handing this in Monday now, as of Thursday the claimant has still not returned the AQ, so looking good.

 

I decided to read a bit more and get it right before handing in wrong!

 

So just need to add or, in the alternative for the claimant's claim to be struck out

to this :-

 

This is an application for a Summary Judgement against a claimant under CPR 24.2 on the whole of the claim as the claimant has no real prospect of succeeding on the claim and there is no other compelling reason why the case should be disposed of at a trial.

Certainly very little care and consideration, if any, was put into the Particulars of Claim which discloses no cause of action and are self evidently an abuse of process, in that they fail to deal with the basic rules of pleading in accordance with the CPR.

 

I think? Im confusing myself now!

Edited February 27, 2010 by NGEddie
tired!