Legal Action: how to start off. IMPORTANT IF YOURE BEING SUED

[sickboy]

oh my,

 

The judge lottery, is not what you suggest, in fact im sick of judges being labbled as such, the judge is there to deal with the matters YOU place before him or her, he is not there to research the law.

 

I would prefer to label it as the litigant in person lottery, as some seem prepared and some seem to be ill prepared, then they come here and moan because they ballsed it up, that its the judges fault

 

I have been before many judges, i have had many claims either struck out or the Claimants ordered to plead their case correctly. And have received costs against the Claimants, in non compliance with these orders the claims have been struck out

 

You risk a major problem by defending a claim that you dont understand, the reasons for this are under the CPR if you file a defence you are deemed to have accepted the claim as being clear and understood. the correct approach is where you are unable to adequatley defend , then you should apply , i prefer a dual application, in the first instance , apply to strike, if that fails have an unless order in place that requires disclosure and repleading

 

Read the case of Expandable Expandable Ltd & Anor v Rubin [2008] EWCA Civ 59 (11 February 2008) para 24, then tell me im wrong

 

If the courts grant an order for disclosure and a time extension to file a defence.

 

The case has no grounds (not a technical matter), which is further supported by a claimants non-disclosure with respect to an order.

 

Would it be best to make and application asking for the courts discretion to either strike out the the claimants statement of case, or a summary judgment on the grounds that the claim has no merit.

 

cheers

 

http://www.consumeractiongroup.co.uk/forum/legal-issues/247713-bryan-carter-northampton-ccbc.html

[atom02]

Thanks - will draft a letter and get it into court 1st thing on Monday morning.

 

Not!! That will be Tuesday

[atom02]

 

'Should' has allowed persuasive claimants some leeway so I suggest putting the Money Laundering Regulations Act 2007 in their way. This states that the claimant is responsible for keeping hold of the original documentation relating to this agreement for a period of 5 years after the business relationship has ended.

 

 

If I am right, the regulations you mentioned read as follows at 19.2(b) "the supporting records (consisting of the original documents or copies) in respect of a business relationship or occasional transaction...". Surely this also then allows them to wriggle out any obligation to provide originals? Please let me know whether I should be looking at something else?

 

thanks,

atom

[emandcole]

If I am right, the regulations you mentioned read as follows at 19.2(b) "the supporting records (consisting of the original documents or copies) in respect of a business relationship or occasional transaction...". Surely this also then allows them to wriggle out any obligation to provide originals? Please let me know whether I should be looking at something else?

 

thanks,

atom

 

But once again they've been asked to provide originals and have to rely on what they may insist are copies. So, in addition to bypassing the CPR rules on providing original documentation where such agreement is based on a document, they also have to get round the Money Laundering aspect. It's just another hurdle for them to jump and could make them think twice about even going to court.

 

Remember, ideally you'll stop them from taking it to a court, always the best result regardless of how strong your case is. Producing a piece of paper stating that it's a copy of the original is a whole different world to being able to prove that piece of paper is indeed a true and exact copy.

 

It is that difference that allows you a great deal of mileage as the burden of proof is solely on them and in my opinion is a task I would not want to take on when my work is about to be examined by a judge. I have some questions somewhere that I got from CAG on this very matter, I'll try and find them in my ever growing 'CAG Library' and post them up.

 

You'll soon see the sheer amount of questions you can legitimately put to the creditor is oppressive and is nothing short of a minefield!

[emandcole]

As above.

 

If the claimant states that the original application has been lost or deliberately destroyed and if the court, all other matters aside, accepts the submission that a photocopy of an application is admissable I would expect the claimant to produce the following as a responsible keeper of data with reference to the Civil Evidence Act 1995.

Documents in Court - Civil Evidence Act 1995

 

[e) if copies of any of the above documents are to be relied on in court rather than originals, a copy of the Notice of proposal to adduce hearsay evidence required under s2(1) of the Civil Evidence Act 1995 together with proof of the authenticity of the document(s) as required under s8(1)(b) of the Act, including but not limited to

(i) a copy of the procedure(s) used for copying, storing and retrieving documents

 

(ii) a copy of the relevant log entry showing the time and date of the scan or copy, the name of the member of staff making the copy, the method used for copying, storage and retrieval and time and date of destruction of the original document(s)

 

(iii) copies of internal and external audit reports covering the entire period from the date of the copy to the present to demonstrate that the procedures have been complied with

(iv) copies of Quality Assurance accreditation certificates covering the entire period from the date of the copy to the present to demonstrate that the procedure(s) and audit process(es) comply with the appropriate quality standards

The claimant would be introducing hearsay evidence regarding the authenticity of any reconstituted agreement and the defendent would request the permission of the court to question the credibility of any witness relied upon by the claimant.

 

Couldn't find the questions I had stored but in essence they are along the lines of:

 

Did the witness even work for the creditor at the time this copy was made?

 

If so, and this witness was the one who made the copy of the original what was so special about this agreement that means the witness can recall it with such accuracy potentially years later?

 

If so, prove this witness was the one who made the copy. Who gave them permission to do this? Why was the original destroyed?

 

The list goes on but you can also ask for a complete log of everyone who has ever accessed your account details, including members of staff, dates, times and reasons why. 'Access reasons' have to be provided with a lookup reference table if they are in coded form. Under the FSA, all banks have to keep an audit trail, usually called MI for short, so ask for yours.

 

Of course this audit trail should tie in perfectly with the story given by the witness that it was them in fact who did make the copy. If it doesn't, what else is inaccurate? Brings doubt as to the credibility.

 

Just ask lots of questions based on the coloured questions above to pick apart the accuracy of their claim that what they have produced can be nothing but a 'true copy'. Just needs a bit of imagination and before you know it you've created an extremely difficult task for the claimant to climb over.

 

You can point out of course that all of this could have been avoided had the creditor simply kept the original documents!

[atom02]

Many thanks em, I'll let it rain on them (already used some of the stuff in red on the part 18 questionnaire but all ignored so far!) and hopefully, they'll simply be persuaded to discontinue and save us all the whole hassle of going back and forth. So far, all of these seem to be going over their heads. I'll keep you all informed.

[Night Owl]

Anybody got any medical negligence experience?

Can anyone advise on this persons thread please? it's out of my knowledge but I feel advice is really needed for legal help.

 

http://www.consumeractiongroup.co.uk/forum/nhs/257805-medical-negligence.html

 

Thanks peeps.

[bustthematrix]

Hi Peeps

 

This request pertains to a parking thread I started. It's a seperate matter but I was wondering if anyone here could have a look at it http://www.consumeractiongroup.co.uk/forum/parking-traffic-offences/259489-help-needed-cctv-pcn.html

 

And see if there's anything that can be done in relation to obtaining more time to plead, to examine evidence/documents etc?

 

Many thanks.

[Bigdebtor]

I would also dispute these as being copies of the original document in it's original form and advise them that you do not accept these as copies of the original.

 

From then on you get into whitness statements from the person that archived them, if they still work for the OC and getting them to prove that they remember archiving your agreement.

 

Also ask why the original is not available, has it been destroyed and if so, why.

 

I've often thought that if they have a WS "proving" the originals were archived, then is it worth cross-examing the witness to ascertain how he happens to remember those specific documents? If he does, what else does he remember from that day/time? Can he remember which specific document he archived immediately before - and fafter, what the weather was like that morning/evening(check up yourself before asking if you can) etc. etc..

 

Is this too "Perry Mason" and likely to get the Judge's back up?

 

BD

[bustthematrix]

I've often thought that if they have a WS "proving" the originals were archived, then is it worth cross-examing the witness to ascertain how he happens to remember those specific documents? If he does, what else does he remember from that day/time? Can he remember which specific document he archived immediately before - and fafter, what the weather was like that morning/evening(check up yourself before asking if you can) etc. etc..

 

Is this too "Perry Mason" and likely to get the Judge's back up?

BD

Hi BD

 

Lenders and DCAs and even their solicitors, have shown that they are very capable of forging almost any type of document - if they consider it worthwhile doing so. Sad but true.

 

Enough cannot be said about the importance of one's own original signed document. While it may well irritate some judges, by going this far, one is only acting within the law. Another judge may actually find it quite amusing, especially if the Defendant has already warned the Claimant that they WILL put them through rigorous strict proof.

 

And especially if that lender/DCA has been known to falsify documents in the past.

 

It has always been for the Claimant to bear this burden of proof. As far as I'm concerned, OCs have NO business whatsoever destroying originals, especially without the borrower's consent.

 

It is all too easy to fabricate, amend and falsify photocopies and computerised documents. In this Photoshop age.

 

In this day of securitisation, debt packaging and selling and assignment, there's absolutely no excuse whatsoever for destroying originals.

 

The OCs arguments about cost of storage and retrieval is utter nonsense, IMO, as those original signed agreements, where they exist, are the most vital business asset to any lender!

[freethemice]

http://www.consumeractiongroup.co.uk/forum/legal-issues/251664-g-bank-scotland-scm-3.html

Link to my thread.

 

With regards to the other side making up documents, falsifying information and arguing legal points to which they no they are wrong: If the other side is represented by a solicitor there are clear guidelines not to do this here:-

Solicitors Regulation Authority - Solicitors' Code of Conduct 2007

 

My favourites that I am reminding Scm of are:-

Solicitors' Code of Conduct 2007 (amended on 31 March 2009)

Rule 1: Core duties

Rule

1.01 Justice and the rule of law

You must uphold the rule of law and the proper administration of justice.

1.02 Integrity

You must act with integrity.

1.03 Independence

You must not allow your independence to be compromised.

1.04 Best interests of clients

You must act in the best interests of each client.

Rule 11 – Litigation and advocacy

11.01 Deceiving or misleading the court

(1)

You must never deceive or knowingly or recklessly mislead the court or knowingly allow the court to be misled.

(2)

You must draw to the court's attention:

(a)

relevant cases and statutory provisions; and

(b)

any material procedural irregularity.

(3)

You must not construct facts supporting your client's case or draft any documents relating to any proceedings containing:

(a)

any contention which you do not consider to be properly arguable; or

(b)

any allegation of fraud unless you are instructed to do so and you have material which you reasonably believe establishes, on the face of it, a case of fraud.

 

Obeying court orders – 11.02

20. You have a responsibility to ensure that you comply with any court order made against you. Similarly, you must advise your clients to comply with court orders made against them. If you are the recipient of a court order which you believe to be defective you are obliged under 11.02 to comply with it unless it is revoked by the court, or unless an application for a stay is pending. If your client is the recipient of an order you believe to be defective you must discuss with the client the possibility of challenging it and explain to the client the client's obligation to comply if the order is not overturned.

[freethemice]

Oh and if your are litigate in person and 'get it wrong'

 

Guidance to rule 10 - Relations with third parties

Not taking unfair advantage - 10.01

2.

Particular care should be taken when you are dealing with a person who does not have legal representation. You need to find a balance between fulfilling your obligations to your client and not taking unfair advantage of another person. To an extent, therefore, 10.01 limits your duty to act in the best interests of your client. For example, your duty may be limited where an unrepresented opponent provides badly drawn documentation. In the circumstances you should suggest the opponent finds legal representation. If the opponent does not do so, you need to ensure that a balance is maintained between doing your best for the client and not taking unfair advantage of the opponent's lack of legal knowledge and drafting skills.

[DontPushMe]

With regard to the OC providing the agreement on which the claim is based, what would be the situation if the OC sent a letter with the agreement to be signed with the request that only the signed page need to be returned? I know that the OC does not have the complete agreement as under their request in the accompanying letter (filed safely), not all of the agreement was returned - only the page with the debtor's signature.

[vint1954]

I've often thought that if they have a WS "proving" the originals were archived, then is it worth cross-examing the witness to ascertain how he happens to remember those specific documents? If he does, what else does he remember from that day/time? Can he remember which specific document he archived immediately before - and fafter, what the weather was like that morning/evening(check up yourself before asking if you can) etc. etc..

 

Is this too "Perry Mason" and likely to get the Judge's back up?

 

BD

No, not too PM. This is exactly what should be demanded in court. It is impossible for them to prove, but maybe demand proof earlier.

[diddydicky]

more pertinent would be to start off by asking their age- when they started working for the claimant and when they started working in the archive dept

 

it has been seen on here before that witnesses who have made statements as to the archiving were not even working for the company at the time- and yet another girl who would only have been 14 at the time the file was archived

 

It could be a good idea to ask this witness for an admission of facts before the trial in order to box them in

 

 

you could (IMO) for instance ask the witness for an admission of facts to admit that they cannot in fact remember the archiving of that specific document on that specific day

 

 

it is also possible i believe (in order to save the costs of the witness hanging around court at the main trial )to call such witnesses to court to give evidence in advance of the main trial

Edited May 28, 2010 by diddydicky

[Bigdebtor]

Some good points here DD (as usual)!

 

Thanks

 

BD

[cbrfan]

subbing

[manchestman]

Hi all, Can I make a joint request for document copies (mentioned in poc) under 31.14 and at same time ask to inspect said docs under cpr 31.15?

I'm being sued by HFC/Restons and want to post off my letter I have written a draft of in my own thread here: http://www.consumeractiongroup.co.uk/forum/legal-issues/262016-help-me-please-short.html#post2957402

I'd be very grateful if some of you would read and comment on it for me? Thanks

[pt2537]

if you request documents mentioned in a parties statement of case ( very key this, as if its not mentioned then you cant ask for it) then the rules say

you can request in writing to be allowed to inspect a copy (CPR 31.14)

 

such a request must be dealt with within 7 days (CPR 31.15)

[manchestman]

Thank you Peter, I will request Agreement and Default Notice copies while also requesting to inspect original agreement then.

 

Has anyone else ever asked to inspect a document, and how does it work in practice?

[diddydicky]

if they dont make it available within 7 days then you go back to court and ask for an unless order (unless they comply a certain date- whatever it is you ask the court to do in default)

 

once started- you MUST keep the ball rolling and keep THEM on the back foot

[manchestman]

Thanks DD. I was slow to get this started, mainly because of my own illnesses, but I am definately on top of this one now and will keep it rolling.

 

I was undecided whether to go in with a joint request and another view, on my own thread, was that I might be seen to be abusing the court process, but upon reflection, I don't actually see how I can be abusing the process?

 

As Peter said, the docs MUST be mentioned in the POC. Well, the agreement is definately mentioned, but both the termination and default notice are not explicitly mentioned, only implicitly - so I will drop them from my requests as the agreement is the all important one at the moment.

[diddydicky]

for those documents or information that you need to compose your defence that are not mentioned in the POC then you use cpr 31.18 and follow the same course

 

the abuse of the system is ocassioned by the party that will not comply with CPR's (which ARE orders of the court) in a manner of speaking - to avoid wasting the courts resources and when one party has to continually seek an order for the court to make the other party comply - it is not he that is likely to feel the wrath of the judge but the offender

[foolishgirl]

for those documents or information that you need to compose your defence that are not mentioned in the POC then you use cpr 31.18 and follow the same course

 

Do you mean CPR18, DD?

[diddydicky]

Do you mean CPR18, DD?

 

yes i did (old age)!