Urgently need to know the difference between a CPR18, CPR 31.14 and CPR31.16

[stone-broke]

done!

 

done again!

[stone-broke]

I have an email from the CAB which is a breakdown of what they had done up to when the court proceedings started. Keep in mind the DN is dated 2nd October 2009. Date to pay arrears by is 19th October 2009...........

"You contacted us on 5th October to say NW had contacted you. We advised that we had written to them on 21st September." (Making an offer)

"We had a letter from NW on 14th October rejecting the offer. We informed you of this on 15th October."

"You contacted us on 21st October to inform us that NW had contacted you to let you know that your account had been passed to a DCA. We advised you that once you receive notification of which agency, to let us know so we can continue to negotiate."

"You faxed us the letters from Triton on 18th November and we then faxed you your financial statements to amend for you to revise the offer for Triton."

It states on the bottom of the DN......

“If you have difficulty paying any sum owing under the agreement or taking other action required by this notice, you can apply to the court which may make an order allowing you or any other surety more time.

If you are not sure what to do, you should get help as soon as possible. For example you should contact a solicitor, your local trading standards department or your nearest citizen’s advice bureau.”

Any comments on this.........

Thanks.....SB

[bazaar]

imho i would make some sort of statement that as can be shown you were doing everything in your power to negotiate, as per CPR to avoid court, but NW have blatently ran roughshod over the courts rules and went ahead with litigation even though CAB were still negotiating on your behalf

[the_shadow]

Hmmm very underhand but not unexpected from a bank, perhaps reinforces the use of Harrison vs Link.

 

S.

[emandcole]

In Brandon it was held that the defendant had no prejudice against them by not receiving the full 14 days statute required as the claimant took no enforcement actions in that 14 day period.

 

 

Just thinking out loud. Read the above and it doesn't sit right. Enforcement and what constitutes enforcement has effectively been agreed upon in McGuffick, the result being that enforcement is judgment and that all actions prior to this did not and do not constitute enforcement. With that in mind how can it be held that no prejudice was caused as the claimant took no enforcement action?

 

Are they stating that the 14 days became unimportant because the creditor didn't secure a judgment in that time? How could they have done that anyway?! Seems a bit like arguing that you should have to pay for the vase you broke when

 

A) You broke no vase

B) There was no vase

C) You were incapable of breaking the vase even if it were there and it was breakable

 

Simply a poor and badly constructed excuse to undermine the 14 day period in favor of the creditor is it not? Roll on appeal hearing date and lets hope we have a judge who doesn't have his or her head firmly embedded in the cracks of the creditor facade

[emandcole]

Many thanks CB, appreciated as always

[The Mould]

Good afternoon Mrs SB

With reference to the CCA 1974 (as amended).

I wholly agree with the comments of emandcole.

S87 (1) – (all alphabetical subsections) – should, in my opinion, be read in conjunction with s89.

If the statutory 14 consecutive clear days is not complied with by the creditor in accordance with that said requirement imposed upon him, then his only entitlement is as prescribed pursuant to s87(2) & (3).

If the creditor should terminate the agreement while he remains in a state of non-compliance with his statutory requirements imposed under the act, as a result of a minor and non-repudiatory breach of the agreement by the debtor, then the creditor’s said act of terminating the agreement in those said circumstances, constitutes a repudiatory breach of the agreement by the creditor.

His non-entitlement to that afforded under s87(1) and subsequent alphabetical subsections is not extinguished simply because the statute says he is not entitled to do something while his conduct is such that it amounts to a state of non-compliance, in the above circumstances it is the creditor who is the wrongdoer and the debtor who is the innocent party.

Kind regards

The Mould

[stone-broke]

Thank you for your posts, which I have not been able to read and digest at the moment. Just arrived home to find an email from the solicitors of the claimant. Just saying to find attached ANOTHER WS!!!! Gosh..........they seem to be WS happy and I wasn't even allowed to do another. Not opened the attachment yet, but am off to do so! Guess it will be in response to the Harrison Authority I sent to them. Mmmm...........suppose I have a good enough reason to now produce anothe WS too??

SB

[emandcole]

Can think of no valid reason why you shouldn't...completely unfair if you can't respond! I'd still send a copy to the court beforehand and to the other side before any hearing though, permission denied or not you've done your best to be reasonable. If the judge doesn't like it they'll ignore it anyway, better to have one ready to go should it be accepted rather than risk standing there with nothing to rebut their latest with.

[stone-broke]

Today's WS is about payments that have been made into the account and that these have been made towards the OD and not the loan. It goes on to say that the claimant has confirmed that none of the accounts had been closed while the accounts have outstanding balances and while the accounts can still receive credits, although there are no other operational functions such as card withdrawals etc.

She goes on to request that the court conclude that the defendant has no real prospects of defending this claim and there are no reasons to why judgement should not be awarded in the claimants favour.

Comments of current situation appreciated..........SB

[emandcole]

So why haven't they applied for summary judgment if their case is so watertight?! I got your PM, will go over it in a bit

[stone-broke]

Today's WS is about payments that have been made into the account and that these have been made towards the OD and not the loan. It goes on to say that the claimant has confirmed that none of the accounts had been closed while the accounts have outstanding balances and while the accounts can still receive credits, although there are no other operational functions such as card withdrawals etc.

She goes on to request that the court conclude that the defendant has no real prospects of defending this claim and there are no reasons to why judgement should not be awarded in the claimants favour.

Comments of current situation appreciated..........SB

 

Well could this mean they are now saying the accounts have not been terminated????? They do say on a previous WS that they have been terminated (the screen print/shot scenario). perhaps in an attewmpt to do a new DN???? What do you think?

[emandcole]

Quite often a 'closed' bank account will actually be open, just have all of the bits and bobs that go with it removed...other than the ability to pay funds in to clear any outstanding sums. If they haven't terminated the account they can't litigate so yes, their position does seem to invite scrutiny. Could be useful, especially with Harrison in mind.

[bazaar]

Hang on .. am I missing something here? If they are assuming they can just submit yet another WS and youve been denied it, why not object to this latest WS, theyve already admitted terminated accounts, now they want to change things. This is all on top of the fact that CAB were negotiating this as well as yourself. I think this is getting a little too bogged down with BS from them,.

Youre not trying to defend against the whole thing, because youve been paying , youre defending against their calculations, also against their unreasonable behaviour. At the end of the day, youve got to reduce the outstanding balance and then have the judge set the payments based on your situation.

[The Mould]

Good afternoon Mrs SB

 

With reference to late evidence/amendments to case/pleadings, see:

 

Swain-Mason and ors v Mills & Reeve [2011] EWCA Civ 14

Cobbold v Greenwhich LBC, Court of Appeal, 9 August 1999 (dicta)

Worldwide Corporation v GPT LTD [1998] EWCA Civ 1894, and

Nottinghamshire and City of Nottingham Fire Authority v Galdman Commercial Properties [2011] EWHC 1918

 

Kind regards

 

The Mould

[The Mould]

Further, in view of your post#437, it appears that the latest witness statement is wholly inconsistent with the previous one, therefore, you should argue that said new WS is liable to be struck out.

 

Kind regards

 

The Mould

[stone-broke]

Hang on .. am I missing something here? If they are assuming they can just submit yet another WS and youve been denied it, why not object to this latest WS, theyve already admitted terminated accounts, now they want to change things. This is all on top of the fact that CAB were negotiating this as well as yourself. I think this is getting a little too bogged down with BS from them,.

Youre not trying to defend against the whole thing, because youve been paying , youre defending against their calculations, also against their unreasonable behaviour. At the end of the day, youve got to reduce the outstanding balance and then have the judge set the payments based on your situation.

 

It just continues to be all one-sided in my eyes. I have just phoned the court and explained what has happened. The lady I spoke to said it would be at the judges discretion if she would allow the new WS to be taken into account. I asked if I could get another in in that case and leave it to the judge. She said that would be entirely up to me!

 

Bazaar.......do you also think they are trying to imply that the accounts have not been terminated? They actually say they are on a previous WS. I am becomming so confused!!

 

I went through the OFT guidance for Creditors last night. Here are some things that they have not followed the guidance of........

3.1; 3.2(b),(j),(k); 3.6(a),(b),(d),(h),(i),(j),(l) and ®.

 

Thank you,

SB

[The Mould]

Mrs SB

 

In respect of the said new witness statement filed/served, have a read of CPR Part 32 - Evidence, Rule 32.7

 

Is the witness on said new statement the very same person named on previous statements?

 

Kind regards

 

The Mould

[stone-broke]

Mrs SB

 

In respect of the said new witness statement filed/served, have a read of CPR Part 32 - Evidence, Rule 32.7

 

Is the witness on said new statement the very same person named on previous statements?

 

Kind regards

 

The Mould

 

Yes, she has done the last three. It was her under-dog who managed the case up to the DN being found and he did the first WS. Why? Is that of any importance? I will go and check out CPR 32.7 now! Back in a bit!......SB

[stone-broke]

Evidence.....32.6? How does this apply to me Mould. I haven't time to apply to the courts for anything; I have from now until Monday morning to get this right. The fact that I do not have a WS in response to the Brandon is a big worry. I think it is probably best that I try and get another done tonight and fax it to the court tomorrow. I could then say to the judge that as I wasn't allowed to respond to the last WS, but the Claimant's solicitors have now submitted a second, I do not feel any prejudice against me by being allowed to submit my response to their two WS!!

Veiws on this????? SB

[The Mould]

Evidence.....32.6? How does this apply to me Mould. I haven't time to apply to the courts for anything; I have from now until Monday morning to get this right. The fact that I do not have a WS in response to the Brandon is a big worry. I think it is probably best that I try and get another done tonight and fax it to the court tomorrow. I could then say to the judge that as I wasn't allowed to respond to the last WS, but the Claimant's solicitors have now submitted a second, I do not feel any prejudice against me by being allowed to submit my response to their two WS!!

Veiws on this????? SB

 

Harrison v Link is the leading case in respect of defective default notices, therefore the authority the claimant relies upon is irrelevant, in any event, these proceedings are vexatious and unjust since you did not breach the agreement to an extent that you abandoned the agreement, you were and still are paying the debt, there is absolutely no need for the claimant to use the courts valuable resouces seeking enforcement of the agreement, the claimant is wasting the courts time.

 

Draft your witness statement then Mrs S B and everything that you write therein copy into your skeleton argument along with everything that you have already stated in your defence, file and serve your new WS on the morrow.

 

As the claimant is indicating that he seeks Summary Judgement, on the morrow write out your order seeking permission from the court to cross-examine his witness under CPR Part 32, Rule 32.7, write this into an Application notice (N244) (poss £40 fee) and file a copy into court and serve a copy of the same upon the claimant's Solicitors.

 

It would be extremely helpful if you could scan in or type up all of the witness statements submitted by the claimant.

 

Kind regards

 

The Mould

[stone-broke]

Hi Mould......thank you for your input and help.

 

I understand that Harrison is the newer leading authority, but if the judge doesn't accept a new WS, then it will be of no use. I can but try I guess.

With respect to abandoning the agreement, I have been making payments as you are aware, however, they say that they have been made towards the OD and not the loan. They have responded to that saying that they were not instructed to pay anything from these payments towards the loan. However, whilst searching through emails last night, I found another from the CAB which actually states they are to use it towards the 'two accounts'. They are saying I have abandoned the agreement but this is because they have chosen to use the payments towards the overdraft and not the loan!

As for a skeleton argument......well, I have not been aware that I can do one of these and don't know where to start either! The orders from the judge at the last hearing were for both parties to file any authorities and documentation that they will be relying on within a minimum of seven days prior to the hearing. That date has gone now. So how does one go about the skeleton argument??

Cross examine? You have to apply to be able to do this?!!!! Sorry for being so ignorant!! I have to write out an order to cross examine? This is done on an N244 form?

Yes, would have been easier for me if I had a scanner!!

Regards,

SB

[The Mould]

Hi Mould......thank you for your input and help.

 

I understand that Harrison is the newer leading authority, but if the judge doesn't accept a new WS, then it will be of no use. I can but try I guess.

With respect to abandoning the agreement, I have been making payments as you are aware, however, they say that they have been made towards the OD and not the loan. They have responded to that saying that they were not instructed to pay anything from these payments towards the loan. However, whilst searching through emails last night, I found another from the CAB which actually states they are to use it towards the 'two accounts'. They are saying I have abandoned the agreement but this is because they have chosen to use the payments towards the overdraft and not the loan!

As for a skeleton argument......well, I have not been aware that I can do one of these and don't know where to start either! The orders from the judge at the last hearing were for both parties to file any authorities and documentation that they will be relying on within a minimum of seven days prior to the hearing. That date has gone now. So how does one go about the skeleton argument??

Cross examine? You have to apply to be able to do this?!!!! Sorry for being so ignorant!! I have to write out an order to cross examine? This is done on an N244 form?

Yes, would have been easier for me if I had a scanner!!

Regards,

SB

 

When did you receive said newer witness statement, has such been served upon you within a minimum of 7 days before the hearing in accordance with the order made by the Judge?

 

Skeleton argument; write down on a piece of A4 paper everything that you have stated in your defence already filed/served and everything you have stated in any subsequent statement, then, in addition, write down your counter-arguments against said latest witness statement. (write the court name, claim no: claimant/defendant and the date, make reference to your Exhibits - eg Exhibit 'SB1', 'SB2' and so on, at the top of each A4 paperwork, and title the document Skeleton argument). File the statement to court and serve a copy upon the claimant (his Solicitors) including all copies of your exhibits, the documents you intend to rely upon in support of your defence. (make three copies of everything, one copy thereof for the court (your file bundle), one copy thereof for the claimant and one set for you).

 

Request permission from the court if you seek to cross-examine the witness.

 

Can you please try and type up the latest witness statement, word for absolute word?

 

Said CAB emails are to be relied upon by you, these will make up some of your exhibits (evidence against the claimant's statement/claim).

 

Kind regards

 

The Mould

[stone-broke]

Thanks Mould,

I will try to type it up in a bit. Have friend calling over to help me with a WS. Do you suggest I leave the ws and just do skeleton argument? Do I do both??

SB

[tedney]

If they haven't terminated the account they can't litigate

 

Is there any further information on this please?