Dissecting the Manchester Test Case....

[diddydicky]

Hello Folks!

 

Just a comment on costs. The thing to bear in mind is that all Claims are Multi-Track until Track has been allocated.

 

Thus, even a small Claim that is simple and below £5,000 is Multi-Track until Claim, Defence and Allocation Questionnaires (AQs) have all been received by the Court and a Judge allocates the Claim to Track.

 

This can work in our favour. For example, if a bank fires off a naff and poorly pleaded Claim that is just a fishing exercise, and you send back a short two-line Embarrassed Defence, followed almost immediately by an N244 Application to have their naff Claim Struck Out, then it's still Multi-Track. You can submit a Bill of Costs, and claim for both Litigant in Person time costs at £9.25 an hour (2/3 cap relative to what a Solicitor would charge), and also your Disbursements (no cap, provided they are genuine).

 

A Hearing could well then take place to consider your N244 Application, and that could well happen before Track has been allocated, for the simple reason that the Judge cannot really allocate Track until he/she has seen the full Claim and full Defence. This can really see off a Claimant who has abused the system and stumbled into Court with their trousers down.

 

Now, in reverse if, say, the above disclosure issues came to a head before Track was allocated, and the Claimant sent in a Barrister at £2,000, and the Claimant won that round, then they could well get the £2,000 awarded, even if the Claim was then later allocated to the Small Claims Track. The point being that the disclosure issues could well be heard while the case is still in Multi-Track land.

 

Things like CPR 31.14 (once a Claim has been issued), can only be used in a Claim heading for the Small Claims Track, whilst that Claim has not yet been allocated to Track.

 

So, keep an eye on allocation, and use it to your advantage. Slip in a CPR 31.14 before Track and/or slip in an N244 Strike Out before Track, but only if you are Captain of your own Destiny, and understand what you are doing. Remember, this can work two ways, so use it carefully. Used to your advantage it can land the Claimant with a fat round of costs for being dull.

 

Cheers,

BRW

 

hello BRW thats interesting

 

ive got a n'wide/evershed claim awaiting aq's

 

ive submitted an embarrased defence and eversheds have denied the 31.14 request stating that i already have the cca and the DN (have not provided account details though)

 

i was thinking of sticking a stike out application in as the DN as well as wrong on dates, demands the whole balance of the account and sending off a fax to them today inviting them to withdraw without costs so that i can include that in the application as well if they refuse

 

i was going to include the invitation to strike out within the defence to save the 40 quid but as it seems to be to be a cast iron dead cert so would you recommend i pay the 40 quid and get that in before aq's

 

thanks

 

dick

[nick20045]

we agree to disagree then, i think

Ok then. You get the first beers in. I seem to have forgotten my wallet at home. :D

[vint1954]

Hello again Vint.

My discolosure request was just for disclosure, not for an enforceabilty. By sending a barrister, they cause worry with the risks of costs.

Can you explain about the costs in a small claims being limited, when I am faced with £2000 from one barrister and £345 from another, in their defence of my N244 application. Am I worrying over nothing?

Fully answered by other, far better than I could have done.

[diddydicky]

sorry the dca's took all my money

 

i usually wait whilst someone goes to the toilet and pinch theirs!

[paulwlton]

Just got my hands on the OFT guidance submitted in the test case.

 

PW

[babybear39]

Can you provide a link please PW ?

[paulwlton]

Can you provide a link please PW ?

 

I'll try and post it up for us all later.

 

Paul

[hendo]

Can anybody tell me what the rule is that says banks have to provide a copy of the original credit agreement to prove their case?

[babybear39]

It's section 77/78 of the CCA.

[oilyrag]

nick20045

 

Like DD I think we have to agree to disagree having born witness to an old Director of Public Prosecurions practice being placed under "supervision" of an appointee of the Law Society. Eventually forced out of practice quietly and the business sold on to rivals!!

 

oilyrag

[gyos]

Just got my hands on the OFT guidance submitted in the test case.

 

PW

 

Will be interesting to see, but also will obviously not be the same as any final version.

 

i.e. of limited use until a final version is available.

 

Fantastic to see it, and thankyou Paul if you can though .

[hendo]

It's section 77/78 of the CCA.

 

But this can now be a re-constituted copy? Is there any rule that requires the original to be produced at all?

[diddydicky]

But this can now be a re-constituted copy? Is there any rule that requires the original to be produced at all?

 

a re constituted agreement is ONLY acceptable as a response to a s77/79 request NOT for use to support a money claim by the creditor

[the_shadow]

But this can now be a re-constituted copy? Is there any rule that requires the original to be produced at all?

 

Only for a court case and then only if you can convince a judge that it should be... different judges different ideas (judge lottery)

 

CPR states if a claim is based on a contract, the original contract "should" be present at the trial.

 

S.

[hendo]

a re constituted agreement is ONLY acceptable as a response to a s77/79 request NOT for use to support a money claim by the creditor

 

So what is the rule that says it has to be produced to be succesful with a claim?

[PriorityOne]

Can anybody tell me what the rule is that says banks have to provide a copy of the original credit agreement to prove their case?

 

To prove their case in a court, they'd need to rely upon CCA 1974; sec 127(3) to have it re-enforced. CCA 2006 is a little more iffy and consumers might be better going down the faulty DN (default notice) route.

 

[noddyaccount]

Its pretty clear from previous reporting of Mcguff that the press have a hard time getting to grips with what is or isnt a benefit to the banks or consumers.

 

Carey appears to have been a well aimed broadside at the banks and their encumbents, definitely going to be 2 steps back for the numpty DCA's out there who persist in bulk buying with no evidential basis to pursue.

 

It almost smacks of reverse psychology by the CMC's in forcing jurisdiction and compliance issues to the fore when they hadnt a snowballs chance in hell of winning an enforcability issue as a claimant. How do you evidence that an executed agreement won't come to light in the future without the aid of a crystal ball?

 

Seems to have gone our way, no change to it still being a risk to cease payment based on non compliant response to S.78 but it will (hopefully) assist the OFT with issuing more stringent guidelines.

 

subbing

[hendo]

To prove their case in a court, they'd need to rely upon CCA 1974; sec 127(3) to have it re-enforced. CCA 2006 is a little more iffy and consumers might be better going down the faulty DN (default notice) route.

 

 

 

Thanks but isnt s.127(3) applicable only where there is a breach of prescribed terms?? I know they potentially have to prove compliance with the CCA but couldnt they do this through witness evidence etc?

 

From what shadow says there isnt any actual rule then? And if they fail to produce one they can still win?

 

Sorry if im being awkward!

[the_shadow]

Thanks but isnt s.127(3) applicable only where there is a breach of prescribed terms?? I know they potentially have to prove compliance with the CCA but couldnt they do this through witness evidence etc?

 

Well if you claim the agreement breaches s127(3) in your defence then the only way they can prove either way is to either show the original, give you a copy or get a banker to swear a statement, the latter two should be given hearsay evidence status as they are not conclusive like the former.

 

S.

[gyos]

Thanks but isnt s.127(3) applicable only where there is a breach of prescribed terms?? I know they potentially have to prove compliance with the CCA but couldnt they do this through witness evidence etc?

 

It say "was".

 

Not "might have been".

 

Or even "probably was".

[banker_rhymes_with]

Hello DD!

 

hello BRW thats interesting

 

ive got a n'wide/evershed claim awaiting aq's

 

ive submitted an embarrased defence and eversheds have denied the 31.14 request stating that i already have the cca and the DN (have not provided account details though)

 

i was thinking of sticking a stike out application in as the DN as well as wrong on dates, demands the whole balance of the account and sending off a fax to them today inviting them to withdraw without costs so that i can include that in the application as well if they refuse

 

i was going to include the invitation to strike out within the defence to save the 40 quid but as it seems to be to be a cast iron dead cert so would you recommend i pay the 40 quid and get that in before aq's

 

thanks

 

dick

 

If it were me, and this is only my advice/opinion, not gospel, I'd stick it to them straight away via an N244 Application, based on CPR 3.4 (2) (a) and 3.4 (2) (b), see below:

 

PART 3 - THE COURT’S CASE MANAGEMENT POWERS - Ministry of Justice

 

Power to strike out a statement of case

3.4

 

(1) In this rule and rule 3.5, reference to a statement of case includes reference to part of a statement of case.

 

(2) The court may strike out a statement of case if it appears to the court –

 

(a) that the statement of case discloses no reasonable grounds for bringing or defending the claim;

 

(b) that the statement of case is an abuse of the court’s process or is otherwise likely to obstruct the just disposal of the proceedings; or

 

© that there has been a failure to comply with a rule, practice direction or court order.

Add a good hard hitting Witness Statement to explain why, along with an Exhibit/Bundle of Documents that the WS can refer to, and go for Strike Out.

 

If it's Small Claims but not yet allocated, then it's Multi-Track still, and you could get full costs. Obviously, plan this well, and if sure of the facts, hit them between the legs while their eyes are still watering at your Embarrassed Defence!

 

After all, this is what many banks try and do once a Consumer's Defence has been submitted. This is more aggressive, but if the facts are well put forward, and their Claim was a mess, it is effectively what CPR 3.4 (2) is there for.

 

But listen to what others say, this is only one opinion, there will be others.

 

Cheers,

BRW

Edited January 7, 2010 by banker_rhymes_with
Stray GL deletion.

[banker_rhymes_with]

Hello DD!

 

Another suggestion is to force the CPR 31.14 issue if Everasswipe are blanking your right to inspect the Agreement. Bring that to a head, at least, and do not let them fudge that until it wimpers into Court as a Photocopy.

 

That merits an N244 Application all by itself...but you could mention that issue if going for a Strike Out.

 

Cheers,

BRW

[PriorityOne]

Thanks but isnt s.127(3) applicable only where there is a breach of prescribed terms?? I know they potentially have to prove compliance with the CCA but couldnt they do this through witness evidence etc?

 

From what shadow says there isnt any actual rule then? And if they fail to produce one they can still win?

 

Sorry if im being awkward!

 

S.127(3) is applicable under CCA, 1974 only.... and not CCA, 2006. They can comply with your CCA request by sending you a copy of something completely unenforceable, but they would have to have the real deal in court.... providing you defend their action against you.

 

Witness evidence would be a waste of time for them.... but probably quite humourous to watch in the face of CCA law...

[angry cat]

IMHO, the ineffective DN/TN route can often be the safest;

obviously, your need to understand what you are doing though.

[stripper]

Hi AC

Whats TN?

Stripper