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

[vint1954]

Hi Vint, me too. Until they provide documents they intend to rely on how are you supposed to respond?! Sure you know this but watch out with the defence time, I take it the court knows the claimant approved a 14 day extension for you to submit a defence?

 

If they can't provide the necessaries are you considering a counter claim for injury to credit?

Yes, it is impossible to defend until they provide the documents. I have sent them another letter plus a CPR31.15 request to see the actual documnet.

 

I have submitted an embarrassed defence on time. I have also coppied the court in on the letters and will write to them advising them that Optima are being obstructive. I will include a copy of Optima's extension.

 

Following 7 days, if no response I will invite them to discontinue, using DD's nugget as part of the reason.

 

Not sure where you can go from there. Court I guess.

[vint1954]

To be honest, with most of the letters from DCA's and sols, I am shortening them to basically put up or shut up. You cannot keep arguing with morons.

 

Most of them seem unprofessional or incompetent, so why waste your breath:(

[vint1954]

Thanks DD. Filed away for future.

[diddydicky]

To be honest, with most of the letters from DCA's and sols, I am shortening them to basically put up or shut up. You cannot keep arguing with morons.

 

Most of them seem unprofessional or incompetent, so why waste your breath:(

 

the case for puttng points of law across to them pre trial is to bugger them up in costs

 

stick this in your file as well Vint, as it is pertinent to the point just made

 

 

 

BANK OF SCOTLAND -v- ROBERT MITCHELL

1st June 2009

APPROVED JUDGMENT

JUDGE LANGAN:

 

1. I have to deal with an issue as to costs which has arisen on the informal discontinuance of an action.

 

2. The action was commenced on 21st May 2008. The claimant bank had, in December 2003, issued a credit card to the defendant, and the claim was for £15,417.23, being the amount said to be due on the defendant's account. Judgment in default, for a total sum of £15,727.23, was obtained on 4th July 2008. The defendant subsequently applied to have the judgment set

aside. That application came before District Judge Jordan on 29th January this year and was successful. The recitals to the District Judge's order say this:

"And upon the defendant's proceedings on the basis of a breach of

Section 61(1)(a) of the Consumer Credit Act, namely that the claimant

failed to comply with the requirements to give copies of all the

documents relevant to the agreement at the time of signing, and upon

the defendant contending that notwithstanding Section 65 of the

Consumer Credit Act 1974, Section 127(3) of the Act preventing the

enforcement".

 

After those recitals it is ordered the court sets judgment aside, and it is ordered that there be, "A determination of the issue set out above". Various procedural directions then follow.

 

3. What has been listed for trial today is, "The determination of issue", referred to in the order which I have just recited.

 

4. The agreement made in relation to the defendant's credit card was a regulated agreement within the Consumer Credit Act 1974. Section 61(1)(a) of that Act provides:

 

"A regulated agreement is not properly executed unless a document in

the prescribed form, itself containing all the prescribed terms and

conforming to regulations under Section 60(1), is signed in the

prescribed manner, both by the debtor or hirer, and by or on behalf of

the creditor or owner".

 

Having regard to the date of the agreement made in this case, which was prior to amendments made to the Act which took effect from 5th April 2007, the result of non compliance with Section 61(1)(a) would be that the credit card agreement would be unenforceable against the defendant, see Consumer Credit Act 1974 Section 127(3).

 

5. This morning I was informed by Miss Gardner, counsel for the bank, that the bank was withdrawing its claim against the defendant. This announcement has been accepted by Mr Berkley QC, who appears for the defendant, as equivalent to the service of a notice of discontinuance under the*Civil Procedure*Rules Part 38.3. By the Civil Procedure Rules Part 38.6.1:

 

"Unless the court orders otherwise, a claimant who discontinues is

liable for the costs which a defendant against whom the claimant

discontinues incurred, on or before the date on which notice of

discontinuance was served on the defendant".

 

Miss Gardner contends that the court should, "Order otherwise", and make no order for costs as between the parties. Mr Berkley contends that the presumption in CPR 38.1.6 should operate, and further that the order for costs to be made in favour of his client should be an order for assessment on the indemnity basis.

 

6. The thrust of Miss Gardner's submission is that the issue directed by the District Judge, and on which the evidence has been focussed, is whether the bank supplied the defendant at the time of signing the application form for credit with documents which contained all the terms of the agreement between them. I shall elaborate a little further on this. It has been the defendant's case that he was supplied with nothing more than the application form which he signed. It has been the bank's case that in accordance with the usual practice of the bank the defendant would have been, and must have been, supplied with other documents, including a pack which will have contained all the terms and conditions of the agreement made between the parties. Miss Gardner goes on to say that the defendant has at the last moment taken a new and radically different point, namely that the document signed by the defendant did not contain all the prescribed terms of the agreement. I must again elaborate on this. It is common ground that the only document signed by the defendant was the application form. It is also common ground that the application form did not, on its face, set out the prescribed terms of the agreement between the parties. The point which is treated by Miss Gardner as a

new point is dealt with in paragraphs 22 and 23 of Mr Berkley's written argument, and it will, I think, be more economical if I simply quote those two paragraphs in full rather than attempt,in my own words, to expand on them:

 

"The key words in Section 61(1)(a) are the reference to a document

itself containing all the prescribed terms, and conforming to the

regulations under Section 61. This language is clear and specific, and

ensures that mere reference to terms contained in another document

will not suffice. The document must contain the prescribed terms, just

as the signed document referred to in Section 127(3), which might save

the day, must however contain the prescribed terms. The construction

contended for by the defendant is entirely consistent with the language

of Section 61(1), and is also supported by Professor Good in his

encyclopaedic work - see Good & Consumer Credit Law and Practice

volume 2, 2B 5.121, and see also the comments at 2B 5.247. There the

learned author draws a distinction between the language of paragraph

(a) contain and paragraph (b) embody. It is respectfully submitted that

the court should adopt the same reasoning in determining this issue in

favour of the defendant, irrespective of whether or not it finds that the

defendant was supplied with documents other than the credit

agreement itself".

 

7. In my judgment, the point with which I have just been dealing is not properly to be characterised as a new point on which the bank can present itself as being taken by surprise. I refer to four documents. First, on 3rd November 2008, when the defendant was acting as a litigant in person, in the request to have the default judgment set aside he said this:

 

"As the court is aware, in the absence of all the prescribed terms being

embodied, it will render a document unenforceable in court. These

terms must be contained within the agreement, and not in a separate

document headed 'Terms and Conditions', or words to that effect".

Secondly, on 18th February 2009, solicitors, who were by then acting for the defendant, sent to the solicitors acting for the bank a copy of what they called an expert report setting out the reasons why the agreement was in breach of Section 61(1)(a), and they went on:

 

"As you are aware it is our client's position that at the time he entered

into the agreement he was not provided with a copy of the terms and

conditions governing the agreement".

 

If one goes to the so called expert's report, one finds that it is in effect an opinion prepared by another firm of solicitors, and the opinion contains the following:

 

"Based on the information provided, it appears that the prescribed

terms and conditions were not included in the document signed by the

borrower. The agreement would appear to be in breach of the

regulations in that it does not contain within the signed agreement itself

all of the prescribed terms".

 

Thirdly, that point having been taken on behalf of the defendant, it was robustly rejected by the solicitors acting for the bank in their reply of 19th March 2009:

 

"Our client has sought counsel's opinion on this matter and her view is

that the agreement is compliant. We note that your client is arguing

that at the time of signing the agreement, the application for a credit

card, he was not provided with the actual terms and conditions which

were contained in a separate document to the application. Whilst our

client accepts that the application itself does not comply with the

requirements of the Consumer Credit Act 1974, and only becomes

compliant by reference to terms and conditions, there are references in

the agreement to the conditions in which it states that they are provided

in the Halifax credit card application pack".

 

Fourthly, going back in time a little, on 4th March 2009, in the defendant's witness statement made for the purpose of the trial of the issue, at the very beginning of the statement, in paragraph 3, he said this:

 

"It is my position that the agreement is not enforceable by the claimant

as it has failed to comply with its obligations under Section 61 of the

Consumer Credit Act 1974 by failing to include within the document

that I signed all the prescribed terms".

 

8. The absence of further reference to the point in the evidence is hardly surprising, since the point is one of law, on which there was no controversy as to the facts.

 

9. Miss Gardner has given no reason for the withdrawal of the action. She is in no way to be criticised for the omission. She is bound to act in accordance with her instructions, and those instructions were presumably to say no more than she has in fact said. But this does not prevent me from drawing what is in my judgment the only inference which can possibly be drawn from what has happened, which is that the bank realises that if the issue were to be

contested it would either lose on the issue or be at serious risk of losing. There may be hundreds of similar cases and the bank would plainly not wish other defaulting customers to get wind of an adverse decision on the fundamental point which is embodied in the quotation from Mr Berkley's written argument, which I have already set out.

 

10. Accordingly, I conclude, without hesitation, that there is no reason for displacing the presumption as to incidence of costs which is ordinarily applicable in a case of discontinuance. The bank will pay the defendant's costs of the claim, subject only to any existing order for costs in favour of the bank not being disturbed.

 

11. Finally, I have to consider whether the costs of the defendant should be assessed on the standard or on the indemnity basis. In my judgment the assessment should be on the indemnity basis. The only realistic view of what has happened is that the bank has surrendered on a straightforward point of law, to which it has on several occasions been alerted by the defendant or his solicitors. A large commercial enterprise which proceeds with litigation in the face of warning signs of the kind which were erected here, adopts a high risk strategy. The point in question was a simple one. There was no relevant controversy as to the evidence. To choose to abandon the claim on the very day of the hearing is doing a serious disservice to the efficient administration of justice, and comes very close to constituting an abuse of process. At the very least, the bank's conduct of the litigation falls comfortably within the range of cases in which, on the modern authorities, an assessment of costs on the indemnity basis is appropriate

[Bigdebtor]

What a great thread. Fantastic posts on MBNA and HBOS getting real egg on face! (Egg's turn soon?)

 

While I understand these don't count as precedent they will be very handy to quote excerpts from - especially the MBNA UTCCR comments!

 

I take it PT2537's Egg case coming up in March WILL count as precedent?

 

BD

[vint1954]

Thanks again DD.

 

So a possible course of action after 7 days, could be to write to them, enclose a copy of the original DN and their forged copy, explaining that demanding the ballance in full and not giving enough time to rectify, followed by termination via demanding the ballance in full plus court action means that the cannot claim benefit of s87. Oh and here is my letter of acceptance of that unlawful act.

 

Refer them to Bos v Mitchel.

 

Plus attack the illegible application.

 

Invite them to withdraw.

[AA99]

Excellent reading! Well done Dicky! Surely this is the crux of the matter now (post-Manchester)

 

35. I turn to the Consumer Credit Regulations. I have already referred at the start of the judgment to the fact that in principle it has been held that the nature of the provisions in relation to fixed charges fall outside the core terms in relation to provision of credit so that they can be considered under Regulation 5. Terms which may be unfair are those which require any customer who fails to fulfil his obligation to pay a disproportionately high sum in compensation. Under Regulation 5:

 

"A contractual term which had not been individually negotiated

shall be regarded as unfair if, contrary to the requirement of

good faith, it causes a significant imbalance in the parties’

rights and obligations arising under the contract to the

detriment of the customer."

[Bigdebtor]

Just referring to these two cases and copying this paragraph in replies from all of us who have had the "ha ha - we won!" letters from A&L, HBOS etc. should make them sit up and take notice! We might even get the pre 2007 "ex gratia" payments again?

 

BD

[diddydicky]

Thanks again DD.

 

So a possible course of action after 7 days, could be to write to them, enclose a copy of the original DN and their forged copy, explaining that demanding the ballance in full and not giving enough time to rectify, followed by termination via demanding the ballance in full plus court action means that the cannot claim benefit of s87. Oh and here is my letter of acceptance of that unlawful act.

 

Refer them to Bos v Mitchel.

 

Plus attack the illegible application.

 

Invite them to withdraw.

 

i think i would put the point about the DN to them in a form that will look good if it has to be later put before the court and along these lines,

i would ignore their alleged DN - it is simply what they THINK the computer spewed out rather than a forgery

 

dear Sirs,

 

It has come to my attention, through research, that it is probable that your client does not in fact possess a hard copy of the default notice served upon me and instead seeks to rely upon a computer entry as to the date that a default notice would have been produced.

 

It is therefore possible that your client is unaware of the defective nature of the Default Notice served upon me

 

In order to assist your client i therefore enclose a copy of the aforementioned default notice and ask you to study it carefully as it is clearly defective in several aspects, non of which can be regarded as de minimus.

 

Having not been lawfully entitled, by way of this default notice to claim entitlement to the benefits of s87 of the act, your client does not have a cause of action to claim sums not yet due nor to terminate the agreement lawfully.

 

In fact your Client subsequently unlawfully repudiated the agreement , an action which i accepted and the agreement no longer endures. .

 

I invite your client to study this document and to then discontinue without costs, failing which i will bring this matter to the attention of the court (together with reference to BOS V Robert Mitchell June2009 in which BOS were heavily criticised by the judge for their behaviour in almost identical circumstances) .and invite the court to strike out your clients claim as vexatious and an abuse of the court process.

 

Yours sincerley

 

XXX

[vint1954]

Hi DD,

 

Yes, all things concidered, a much more measured response.

 

I think the DN was in fact fabricated in order to deceive, but that is probably best kept in case there is a hearing.

 

The new improved DN, mis-spelt my name, had a parragraph removed referring to the full ballance now being due, another parragraph altered from the full sum being due, expressed as a sum, to the arrears being due.

 

I will give them 7 days to again respond to CPR, but then off we go with the above.

 

Vint

[angry cat]

In general, they do not keep copies of DN's nor, proof of posting.

[emandcole]

In general, they do not keep copies of DN's nor, proof of posting.

 

Considering these are legal documents issued partly in order to justify any subsequent legal action I find that amazing! Can't produce it, didn't send it should be the rule

[vint1954]

In general, they do not keep copies of DN's nor, proof of posting.

That seems to be the case AC, although fairly daft of them as they need it to terminate legally.

 

That is why I will be kind to them and send the one I have to their sols. If I just sprang it on them in court, it may not go down well.

[vint1954]

Considering these are legal documents issued partly in order to justify any subsequent legal action I find that amazing! Can't produce it, didn't send it should be the rule

Agree, perhaps they will eventually mend their ways.

[diddydicky]

Hi DD,

 

Yes, all things concidered, a much more measured response.

 

I think the DN was in fact fabricated in order to deceive, but that is probably best kept in case there is a hearing.

 

The new improved DN, mis-spelt my name, had a parragraph removed referring to the full ballance now being due, another parragraph altered from the full sum being due, expressed as a sum, to the arrears being due.

 

I will give them 7 days to again respond to CPR, but then off we go with the above.

 

Vint

 

well yes then i agree- that does sound like a fabrication

 

i might be inclined to add a line to the letter to the effect as to whether, in the light of your DN, they really wish to put their alleged Copy of the DN before the court!!

[emandcole]

in the light of your DN, they really wish to put their alleged Copy of the DN before the court!!

 

Now, I'd pay to see that happen!

[vint1954]

Now, I'd pay to see that happen!

£1 a copy, available next monday.

[vint1954]

well yes then i agree- that does sound like a fabrication

 

i might be inclined to add a line to the letter to the effect as to whether, in the light of your DN, they really wish to put their alleged Copy of the DN before the court!!

Indeed, I will include that line DD.

[Undercover-Elsa]

This is gripping!

I do hope the Court gets to see their fabrication though so they're revealed in their true light.

Elsa xx

[vint1954]

In a way Elsa, I hope that they don't and Optima back off pre hearing, but need to be preparred for the worst.

[dizzyblonde1966]

thankfully HHJ Wakeman QC handed down his judgment.

 

IF the agreement is illegible then it is foul of the Cancelation notices regs and then the court cannot enforce it, so , you would plead that the documents are illegible and you cannot plead as to the enforceability of the agreement at this stage

 

Great thread Pt,

very interested as i have a court case now transferred to manchester with Cohens with an illegilble cca as well as other things,

Can someone kindly point this dizzy blonde to the relevant section of HHJ Wakesman judgement which deals with illegiible agreements falling foul of the cancelation notices regs making it unenforcable by the courts.

 

Thanks

Dizzy Blonde

[pt2537]

easy one that

 

among other paras of the judgment , at 100 HHJ Waksman states

 

 

It is also said that the requirement that the Option A notices and Option B statements must be "easily legible" implies current information only, because it emphasises the importance of the legibility of this information. That does not follow either. In fact Reg. 2 says that all copies must be easily legible. If they are under Reg. 7 now to consist of or contain only the terms as varied, one wonders why easy legibility is repeated. There might be more need for it if (as the Claimants contend) these are additional materials to be supplied. But on any view this feature does not advance the Defendants' case.

 

[the main man]

easy one that

 

among other paras of the judgment , at 100 HHJ Waksman states

 

Can I ask where we stand in relation to where creditors blow up or re type agreements to become legible?

 

This is mentioned in section 2.12 of the OFT Draft Guidance

 

http://media.ft.com/cms/b0f62a4e-0031-11df-8626-00144feabdc0.pdf

[diddydicky]

Can I ask where we stand in relation to where creditors blow up or re type agreements to become legible?

 

This is mentioned in section 2.12 of the OFT Draft Guidance

 

http://media.ft.com/cms/b0f62a4e-0031-11df-8626-00144feabdc0.pdf

 

the information that is re constituted must be accurate basically

 

so you need to challenge and probe the source of the information that is used.

 

what the courts and the OFT are saying basically is that there is a presumption that the creditor is right - and that if he gets the information from his other files or computers that must be right too since they are so big and respectable that they could not possibly get anything as serious as a credit agreement wrong - nothing' changed there then

[dizzyblonde1966]

Thanks PT, much appreciated

DB