Fluffystuff's OH v HFC

[Sagittarius]

You say to the judge at the start something like "Sir, before my friend opens I have an application to make".

 

You then request an adjournment for the reasons previously stated

Edited July 13, 2010 by Sagittarius

[Sagittarius]

The claimant will almost certainly be coming down the Carey and McGuffick Route regarding the unexecuted application form. If they do, you need to head them off robustly.

 

The first thing is to differentiate them from your case.

 

McGuffick

 

McGuffick differs because it is was a case of temporary or redeemable unenforceability, concerned only with section 77 of the Act. (see para 19 of McGuffick Judgment)

 

Your case however, concerns PERMANENT or IRREDEEMABLE UNENFORCEABILITY under s127(3) of the ACT and is therefore different. Following your CPR 31.15 request the claimant has stated it does not have the alleged original agreement.

 

Carey

 

Carey differs because it primarily deals with non compliance with copy agreement requests under s78 of the Act (see para 1 Carey Judgment).

 

In Carey the fact was the absence of an original executed agreement was not a bar to compliance with s78.(see para 119 Carey Judgment).

 

In Carey, the judge confirmed that the burden of proof is upon the Claimant. This was confirmed at para 196 Carey Judgment), where the burden of proof in relation to an Improperly Executed Agreement (IEA) was upon the Debtor Claimant Mr Adris, and not upon the Defendant Bank.

 

This differs from your case, because you are the Defendant, so the burden of proof is upon the creditor Claimant to provide proof of the alleged executed agreement containing prescribed terms. You have put them to strict proof.

 

Positive Assertion - it may be a good idea to assert something like this:

 

The Defendant admits that in or about [Date] entered into an agreement with [Claimant] and which was an agreement regulated by The Consumer Credit Act 1974 (The Act).

 

The Defendant has no recollection of and makes no admissions regarding the precise purpose of the agreement or of its terms, conditions and other provisions or what would constitute a breach thereof. The Defendant denies that the agreement was a properly executed agreement and denies committing a breach thereof.

 

 

Summary Judgment Criteria

 

It is respectfully submitted that this case is unsuitable for Summary Judgment.

 

The test under CPR 24.2 is whether the prospect of success if realistic rather than fanciful; the court should consider the evidence which can reasonably be expected to be available at trial - or the lack of it: Royal Brompton Hospital NHS Trust v Hammond [2001] EWCA 550;

 

The duty of a judge hearing such an application is to access the prospects of success for the relevant party, the criterion being not one of probability but the absence of reality : as per LORD HOBHOUSE OF WOODBOROUGH in Three Rivers District Council v England (No 3) [2001] UKHL 16,

 

In particular, Hearsay Evidence is decided on a 'Balance of Probability' test. This makes the case unsuitable for determination at Summary Judgment, which should not be a 'mini trial' in chambers, on affidavits only, without discovery and without oral evidence tested by cross-examination in the ordinary way - as per LORD HOPE OF CRAIGHEAD in sections 93 and 96 of Three Rivers District Council v England (No 3) [2001] UKHL 16.

Edited July 13, 2010 by Sagittarius

[Sagittarius]

Good luck tomorrow. Don't forget to slot in the Summary Judgment case law. If the Counsel or lawyer from the other side attempt to engage you in discussion outside the Courtroom, either say this conversation is 'without prejudice' ...or I'm sorry this is now a matter for the Court to decide.

Edited July 13, 2010 by Sagittarius

[Sagittarius]

Also regarding the Default Notice, keep it simple and focused on the fact that the Act states the Default Notice must be in the prescribed form e.g.

 

"It is respectfully submitted that :

 

If an Act states that something MUST happen, in this case s88 of the Act states that a Default Notice MUST be in the prescribed form, then bearing in mind that is an Act of Parliament, not rules of Court which can be abridged or varied, a Court cannot dismiss the will of Parliament as 'de-minimus'."

[Sagittarius]

Congratulations fluffy !

 

Don't forget to tell us what happened in more detail, once you've had time to unwind.