wycombe V Restons (MBNA)

[Meldrew]

Presumably it would be better to omit this paragraph? Or can I go off on a tangent and use the Bankers and Lenders Code to illustrate how unfair their approach has been. I realise these documents are voluntary codes but in these straightened times surely a signatory bank is supposed to pay more than just lip service to these two documents?

Replace the text after

"I refute these are payable."

with

"I will require the claimant to prove that such charges are payable and were properly applied."

Leave the Codes out of it.

Remember - the purpose of your WS is to address the claimant's application for summary judgement. I think at this stage wandering down side paths would not help that objective. Stay focussed on MBNA's statements & assertions. Challenge specific items (one by one as you said in #186) which you believe are wrong, saying why as briefly as possible, and demand strict proof of every "fact" (such as the DN postage issue) without wringing its neck. You can develop the defence arguments later. The more doubts you can raise about the truth of the PoC the less likely the judge is to give SJ. The idea is to persuade him that the case is defendable and requires a trial. As a peripheral benefit, your remarks should encourage the claimant to review its stance.

 

On the question of the amount claimed, para.40 (41?) points out that you haven't had a reasonable explanation of the amount. That alone should be enough to reject the application and adjourn for detailed examination. Referring to para.39, see if MBNA has levied any charges not mentioned in the "agreement", or at a different level. If so, such charges are probably penalties (instead of agreed "service fees" - per OFT v Abbey etc - or damages for breach) and unenforceable at common law, thereby confirming the DN was defective due to the wrong amount.

 

43. I note that the Civil Procedure Rules require the original documents to be made available at the hearing in accordance with Practice Direction 32. Therefore if the Claimant...

Not quite. Try this instead:

43.

Practice Direction 16 para.7.3 requires the original contract documents to be available at the hearing, and CPR 32.19 allows me to require documents mentioned by the claimant to be proved at trial. If the claimant...

[citizenB]

Just a couple of things ...

 

Originally Posted by wycombe

40. [para.Nº duplicated]... I am able to deduce from the information supplied that the sum claimed contains charges that have been applied to the account. I refute these are payable. These are default charges levied on the account for alleged late payments. The court will be aware that these type of charges and the recoverability thereof have been judicially declared to be susceptible to assessments of fairness under the Unfair Terms in Consumer Contracts Regulations 1999. (The Office of Fair Trading v Abbey National PLC and others (2009)). I will contend at trial that such charges are unfair in their entirety and should not have been applied to the account.

 

 

Caution, wycombe - Abbey etc actually wiped the floor with the OFT in the Supreme Court last November - which is why all the banks are running around crowing "Yah boo - all our extortionate charges are absolutely and completely fair 'cos the Supreme Gods said so, and we can do what we like and nobody can touch us, so cough up!" The OFT then shied away from challenging unfairness under a different clause that their Lordships actually suggested would work !!

 

The only remedy left is to challenge charges if the T&Cs don't allow the bank and the customer similar rights of redress for a default by the other. For example, a clause allowing the bank to charge £30 for writing you a default letter is unfair if the T&Cs don't allow you a £30 credit for writing a default letter when the bank gets something wrong. I haven't heard if anyone's tried that yet, so the floor is yours to make a landmark case!

 

 

I might have lost the plot a bit.. but the Supreme Court hearing will have no bearing on this at all, will it.

 

This is a claim for credit card charges, yes ?

 

The Supreme Court ruled on Bank current account charges only. The OFT had already made their decision on Credit Card charges in 2006. They said that it wasnt for them to decide if £12.00 (which was the amount that creditors reduced the charges to at that time) was fair or not, and could still be challenged in court.

[Meldrew]

I might have lost the plot a bit.. but the Supreme Court hearing will have no bearing on this at all, will it.

 

This is a claim for credit card charges, yes ?

 

The Supreme Court ruled on Bank current account charges only. The OFT had already made their decision on Credit Card charges in 2006. They said that it wasnt for them to decide if £12.00 (which was the amount that creditors reduced the charges to at that time) was fair or not, and could still be challenged in court.

Quite so. I merely pointed out that the banks won the OFT case wycombe mentioned (which I agree didn't concern credit card charges), so it can't be relied on in the way he intended.

[citizenB]

Quite so. I merely pointed out that the banks won the OFT case wycombe mentioned (which I agree didn't concern credit card charges), so it can't be relied on in the way he intended.

 

Thanks Meldrew, I understand now.

[wycombe]

My usual gratitude to Meldrew, Foolishgirl and CitizenB for all their observations and comments.

 

I will try and digest these and incorporate and make any necessary changes tomorrow then attempt my first real tidying up of the WS - getting exhibits in order and labelled etc etc.

 

In the meantime anyone else with comments and observations is most welcome to add them.

 

In light of a couple of things I will need to amend my original defence statement slightly. This should not be a major challenge but I need to know how do I address this to the Court. I mentioned in the original for example that I did not receive a letter before action - although I do not have such a document I am prepared to concede one was sent as the Claimant provided a copy. It is highly likely my wife bunged this in the bin when it arrived! Also I need to delete the passage where I stated the Claimant did not attach copies of the docs to the claim (not necessary as through Northampton).

 

Do I just title it Amended Defence and send it to the Court and a copy to Reston's?

[Meldrew]

In light of a couple of things I will need to amend my original defence statement slightly. This should not be a major challenge but I need to know how do I address this to the Court. I mentioned in the original for example that I did not receive a letter before action - although I do not have such a document I am prepared to concede one was sent as the Claimant provided a copy. It is highly likely my wife bunged this in the bin when it arrived! Also I need to delete the passage where I stated the Claimant did not attach copies of the docs to the claim (not necessary as through Northampton).

Tactically, it is probably better to get the SJ issue out of the way first. Then wait a week or so to see what Restons come up with in response to your WS. It's quite possible they may want to amend their PoC, which will then allow you to review & amend your defence accordingly.

Do I just title it Amended Defence and send it to the Court and a copy to Reston's?

Essentially, yes. When you do get round to it, CPR 17 & PD 17 show what you should do (though this is frequently ignored without detriment). Although you're meant to apply formally for permission to amend, a good tip is to just send the amended defence to the court (copy to claimant) with a covering letter asking for the judge accept the enclosed amended version, without a hearing.

Edited July 9, 2010 by Meldrew
typo

[wycombe]

My thanks Meldrew.

 

I shall concentrate on the WS - getting that all in order and ship shape - and worry about the amended defence later as suggested.

[Fluffystuff]

Hi wycombe,

 

You might be interested in the latest development here:

 

http://www.consumeractiongroup.co.uk/forum/legal-issues/244988-fluffystuffs-oh-hfc-8.html#post3026727

 

Best regards.

[LB145]

Hi Wycombe

- have come across your thread this morning, have been reading with interest. When is your SJ hearing? mine is this Friday - again same thing just pre contractual application form etc. I really struggled with getting my WS for this together - such a heavy workload at moment and under immense pressure - I have just discovered were all the help was being traffic'd - i am so green - I hope my WS hasn't let me down at the last minute. Good Luck - I will keep watching!

[citizenB]

Another victim in the following link, all advice would be very much appreciated.

 

http://www.consumeractiongroup.co.uk/forum/mbna/205334-mbna-cca-8.html#post3026823

 

Perhaps we ought to start a club

[wycombe]

With special thanks to Meldrew, Foolishgirl, CitizenB and everyone else who has commented and provided me with any of the information/arguments in my WS. All contributions have been welcomed whether acted upon or not. Finally I have gone through it hopefully removing the blunders, typos etc. and incorporating the sage advice and help given.

 

But there are bound to be still some errors and typos and aguments and points that need some polishing. Thus I would appreciate fellow cagers casting an eye over my efforts and pointing out the errors of my ways (hopefully not too many:)).

 

 

 

Filed on Behalf of Defendant

 

Witness: xxxxxxxxxxxxxxxxxx

 

Number: 1st

 

Exhibits: xx1 to xx17

In the xxxxxxxxxxxxxx County Court. Claim No. xxxxxxxxxx

Between

MBNA Europe Bank Limited (Claimant)

 

-And-

xxxxxxxxxxxxxxxxx (Defendant)

WITNESS STATEMENT of xxxxxxxxxxxxxx

　

1. I, xxxxxxxxxx make this statement in response to the Summary Judgement Application filed by the Claimants, MBNA Bank Europe Ltd. The matters referred to in this statement are within my own knowledge, except where I have indicated otherwise.

 

2. It is accepted that I had use of a credit card supplied by the Claimant at the material times and I admit filling in and signing an application form for this on 1st December 2003 but I deny ever receiving a properly executed and valid Credit Card Agreement from the Claimant which the Claimant states was "a Credit Agreement dated 08/01/2004".

 

3. After June 22nd 2009, due to illness and hospitalisation, I was unable to make the minimum monthly payments requested on the monthly statements issued by the Claimant.

 

4. The Claimant was informed of my circumstances and inability to repay the full amounts and token amounts were paid on the account whenever statements were received. I also registered with the Consumer Credit Counseling Service and Community Legal Advice in order to regulate my debts so I could repay as much as I could afford by amounts determined through income and expenditure forms supplied by these two organisations. (exhibits xx1 and xx2) The Claimant apparently deemed this unsatisfactory as a Claim was issued through the Northampton County Court on 26th March 2010.

 

5. On 31st March 2010 and 3rd April 2010 I submitted requests under CPR 18 and CPR 31.14 to Reston's solicitors for a copy of the original agreement, a copy of the original default notice, proof of how the sum claimed had been calculated and any other documentation that the Claimant would rely upon in pursuit of this claim (Exhibits xx3 and xx4). They refused to comply with either request (Exhibits xx5 and xx6) so I requested the information again on 10th April 2010, reminding them of their obligation to supply this information.

 

6. In response to these requests, on 15th April 2010, Reston's sent me:

 

a) a document that is clearly a copy of an application form (Exhibit xx7)

b) a copy of some terms and conditions (Exhibit xx8)

c) a reconstruction of a Default Notice that they claim was sent on 8th February 2010 but have not provided any proof that this notice was posted on that date (Exhibit xx9)

d) some statements of account.

 

7. The Claimant has stated:

 

"On the reverse side of the original document are the terms and conditions - which include the Prescribed Terms (as defined by the Consumer Credit Act 1974) - these appear on the second page of exhibit MBNA1. The document signed by the Defendant would have been a single document containing the prescribed terms and conditions and therefore the first 2 pages of exhibit MBNA1 are copies of the same original Agreement"

 

It is my contention in the following points made that this is clearly not the case in the copy of the Application form provided by the Claimant and which the Claimant has indicated is the "Contract" stated in the Particulars of Claim that were issued through the Northampton County Court.

 

8. In respect of the purported credit agreement supplied by the claimant (Exhibit xx7) it is denied that it is a valid executed agreement and it is submitted that the document fails entirely to comply with the Consumer Credit Act 1974 and Consumer Credit (Agreeements) Regulations 1983 (SI 1983/1553).

 

9. Firstly, the heading of this document does not comply with section 2, paragraph 4 of the regulations that state:

 

"Subject to paragraphs (5) and paragraphs (9) below, the information, statements of the protection and remedies, signature and separate boxes which the regulation requires documents embodying regulated consumer credit agreements to contain, shall be set out in the order given by paragraphs (a) to (f) below under, where applicable, the headings specified below -

(a) the nature of the agreement as set out in paragraph 1 of Schedule 1 to these regulations."

 

Paragraph 1 of Schedule 1 makes it clear that the order of presentation required by paragraph 4 of section 2 requires the agreement to be headed "Credit Card Agreement Regulated by the Consumer Credit Act 1974". The application form provided by the Claimant clearly fails this requirement.

 

10. Secondly, S60(1) of the Consumer Credit Act 1974 states that an agreement must contain certain Prescribed Terms under regulations made by the Secretary of State.

 

11. The prescribed terms referred to are contained in Schedule 6 column 2 of the Consumer Credit (Agreeements) Regulations 1983 (SI 1983/1553) and are inter alia:

 

A term stating the credit limit or the manner in which it will be determined or that there is no credit limit, a term stating the rate of any interest on the credit to be provided under the agreement and a term stating how the debtor is to discharge his obligations under the agreement to make the repayments, which may be expressed by reference to a combination of any of the following:

 

a) Number of repayments.

b) Amount of repayments.

c) Frequency and timing of repayments.

d) Dates of repayments.

e) The manner in which any of the above may be determined; or in any other way, and any power of the creditor to vary what is payable.

 

12. Notwithstanding points 6 to10 above, the agreement must be signed in the prescribed manner to comply with S61 (1) CCA 1974. If the agreement is not signed by debtor or creditor it is improperly executed and enforceable only by court order. The application form produced by the Claimant is not properly executed.-

 

13. The application form provided by the Claimant (Exhibit xx7) states

 

"Before you sign this agreement you must read section 11 in the terms and conditions provided".

Section 11 does not exist in the terms and conditions on either the front or reverse of the application form.

 

14. Furthermore the Default Notice supplied by the Claimant (Exhibit xx9) refers to another non existent clause in these terms and conditions, namely Paragraph 8:

 

"We refer to the above agreement which you have entered into with us. Paragraph 8 of that agreement provides that you must repay immediately the amount of any arrears on the account".

 

15. There is no relationship between the front or reverse of the Application form. These are two separate documents as evidenced by the print codings on both - (Side 1 DP-09-03-124-M: Side 2 VIR-101-P). The Claimant has produced no evidence to show both parts are, in fact, related to one another or appeared on the same document.

 

16. It is the usual practice when completing application forms, final agreements or contracts to sign at the end of the document after all the terms and conditions have, in theory, been examined and read and to dispel any thought that such items can be added at a later date or a claim be made that these were not present. In the case of the Claimants document anything could have been on the reverse and it is up to the Claimant to prove that both sides are related in some way.

 

17. The Claimant has stated the application form:

 

"was also countersigned by the Claimant by a duly authorised officer in the top left hand corner"

 

There is no indication as to when this signature was added, who the signator is, under what status the signature was applied and whether it is normal practice to counter sign documents in this way. Until the response received to my CPR requests I had never seen a copy of this document with this signature applied.

 

18. The Claimant will, therefore, be put to strict proof that these terms and conditions did actually form part of the original document that was presented to me to sign.

 

19. It is submitted that the credit agreement supplied falls foul of the Consumer Credit Act 1974 as the prescribed terms are not contained within the agreement. These terms must be contained within the agreement and cannot be contained within a separate document. I will refer to the case of Wilson and another v Hurstanger Ltd [2007] EWCA Civ 299 [11] which provides the precedent for this opinion.

 

20. The Claimant has stated:

 

"In accordance with the requirements of the legislation, these Terms and Conditions were present at the time the Defendant signed the Agreement and were contained in the format of a leaflet."

 

Here the Claimant is clearly admitting the Terms and Conditions were not contained within the agreement but within a separate leaflet.

 

21. The Claimant has not previously mentioned or produced a verifiable copy of this leaflet for me to examine to see if the Terms and Conditions do actually relate to the Application Form (exhbit xx7) that was signed. In my possession is a document given to me at the time of application entitled "Virgin Credit Card - The Essential Guide" but this does not contain any Terms or Conditions relating to the Application Form. This is a small booklet extolling the benefits of a Virgin Credit Card with an application form contained within for Payment Protection Cover. (exhibit xx10)

 

22. The Application Form (exhibit xx7) states:

 

"Applying for a Virgin Credit card is easy, just fill in this form in CAPITALS using blue or black ink, then pop it in the post - no stamp needed."

Thus the reverse must have had the Claimants name and address with a postage paid imprint upon it. There is no evidence of this in the photocopies supplied by the Claimant.

 

23. I was under the firm belief that this was an Application Form only and I applied my initials to a statement to this contained within the Application form that clearly states:

 

"I understand that this is an application for a credit card."

 

24. The Application Form contains a box above the signature panel that states:

 

"YOUR RIGHT TO CANCEL. Once you have signed this Agreement you will have for a short time a right to cancel it. Exact details of how and when you can do this will be sent to you by post".

 

The Application Form was signed by myself on 01/12/03. s63(2) of the Consumer Credit Act 1974 states:

 

"A copy of the executed agreement, and any other document referred to in it, must be given to the debtor or hirer within seven days following the making of the agreement..."

Therefore the Claimant should have provided a copy of the executed agreement to me by 08/12/03. This was never received and the Claimant is put to strict proof that a properly executed agreement was sent to me to have arrived by that date.

25. The Claimant has attached a copy of what the Claimant states is a reconstitution of the Terms and Conditions that applied to the account at the time of application (exhibit xx8). There is no indication on this reconstitution that these terms and conditions actually applied to the account or formed part of the original application form. These terms and conditions do not have my signature on them and the Claimant has provided no proof they were actually sent to me.

26. If the agreement does not contain these terms in the prescribed manner it does not comply with section 60(1) CCA 1974 and the court is prevented from enforcing this agreement by S127 of the Consumer Credit Act 1974.

 

127(3) The court shall not make an enforcement order under section 65(1) if section 61(1)(a)(signing of agreements) was not complied with unless a document (whether or not in the prescribed form and complying with regulations under section 60(1)) itself containing all the prescribed terms of the agreement was signed by the debtor or hirer (whether or not in the prescribed manner).

 

27. I will refer at trial to the authority of the House of Lords in Wilson v FCT [2003] All ER (D) 187 (Jul) which confirms that where a document does not contain the required terms under the Consumer Credit Act 1974 and the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) and Consumer Credit (Agreements) (Amendment) Regulations 2004 (SI 2004/1482), the agreement cannot be enforced by the court by virtue of S127.

 

28. This view is further confirmed by Lord Nicholls of Birkenhead in his judgement in the case of Wilson and others v Secretary of State for Trade and Industry [2003] UKHL and accords with the approach by the House in Orakpo v Manson Investments Ltd [1978] AC 95, regarding S6 of the Moneylenders Act 1927 and, more recently, in Dimond v Lovell [2002] 1 AC 384, another case where section 127(3) precluded the making of an enforcement order.

 

29. I will also refer to the web site of Francis Bennion, the drafts person of the Consumer Credit Act 1974 and note in particular a PDF document that the honourable Mr. Bennion has published which states:

 

"As the draftsman of the Consumer Credit Act 1974 I would like to thank Dr. Richard Lawson for his interesting and well-argued article (30th August 2003) on Wilson v First County Trust Ltd [2003] UKHL 40 [2003] 4 All ER 97. Dr Lawson may be interested to know that I included the provision in question (section 127(3)) entirely on my own initiative. It seemed right to me that if the creditor company couldn't be bothered to ensure that all the prescribed particulars were accurately included in the credit agreement it deserved to find it unenforceable , and that the court should not have power to relieve it from this penalty. Nobody queried this, and it went through Parliament without debate. I'm glad the House of Lords has now vindicated my reasoning and confirmed that nobody's human rights were infringed. (167 Justice of the Peace (2003) 773)

 

30. If the Claimant is in disagreement, then it is respectfully requested that the Claimant bring before the court the signed credit agreement containing the prescribed terms laid out in SI 1983/1553 S6 and signed by both creditor and debtor as laid out in Regulation 6 of SI 1983/1553 and contained within one document. There can be no valid reason why the Claimant is unable to produce the original signed, executed and enforceable agreement that the Claimant alleges exists, as documents such as this must be held for five years following the closure of an account to comply with the legislation known as the Money Laundering Regulations 2007 No. 2157.

 

31. Should the Claimant be unable to produce the original agreement signed by both debtor and creditor and containing the prescribed terms, I request that the court uses its powers under Section 142 Consumer Credit Act 1974 and declare the agreement supplied by the Claimant (Exhibit xx7) unenforceable.

 

32. In case it is suggested that the claim falls under the Consumer Credit Act 2006, it is drawn to the courts attention that Schedule 3, S11 of the Consumer Credit Act 2006 prevents S15 repealing S127(3) of the 1974 Act for agreements made before S15 came into effect. Since the agreement would have commenced prior to the inception of the Consumer Credit Act 2006, section 15 of the 2006 Act has no effect and the Consumer Credit Act 1974 is the relevant Act in this case.

 

33. I deny that I have received a valid or effective default notice from the Claimant prior to the contract being terminated and the Claimant instigating this action.

 

34. The Claimant has produced a document that they claim is a reconstructed copy of a default notice that the Claimant claims was issued on 8th February 2010. However the Claimant has not produced any material evidence that this notice or any other similar document was posted by the Claimant on that date or served in accordance with the provisions of S176 of the Consumer Credit Act 1974 whilst the account was in default. At trial I will also refer to the Interpretation Act 1978.

 

34. The Claimant states:

 

"The Default Notice was sent to the Defendant via UK Mail which uses the Royal Mail first class service on 08/02/2010"

 

The Claimant has provided no proof or evidence of this despite being sent a copy of a second class MBNA envelope (exhibit xx11) that the Default Notice was received in.

 

35. The Claimant has stated:

 

"In any event, there is no date stamp on the envelope so the Defendant could have received any other letter or statement of account sent by the Claimant in that particular envelope."

 

In my possession is an example of an envelope used by the Claimant to send statements (exhibit xx12) and it is noted that UK Mail second class is used to send these. Examples of envelopes used by the Claimant for sending credit card cheques and other publicity circulars are also in my possession (exhibits xx13 and xx14). These are Mailsort 3 envelopes with an up to seven day delivery time. These are different from the envelope the Default Notice was mailed in. I have, in my possession, no examples of envelopes where MBNA have sent correspondence to me by First Class mail. An Internet search found many examples, all in the public domain, of Default Notices being sent by MBNA allegedly using second class post or mailing services for their transmission. (exhibit xx14). The general consensus being that MBNA generally use this type of service for sending such documentation. Thus the Claimant is put to strict proof that the Default Notice was sent as stated in paragraph 31.

 

36. Notwithstanding the points raised above UK Mail is not a Royal Mail First Class service. UK Mail collect mail from the customer then send it to one of their processing centres where it is coded for the postcode of delivery. It is then transported to their depot nearest a Royal Mail centre that deals with that post codes delivery offices. The UK Mail User Guide states (exhibit xx15):

 

"The services provide customers with a two-day delivery of pre-sorted mail and track-tracing of mail bags to the point of hand over to Royal Mail for final sortation and delivery."

 

In other words the mail is in UK Mails hands for at least two days before reaching Royal Mail. Thus it cannot by definition be a First Class service. It can only be a Second Class service.

 

37. Furthermore the UK Mail User Guide (exhibit xx15) makes it very clear that:

 

"UK Mail shall not be liable to the Customer or to any other person for failure to deliver within this timescale."

 

and:

 

"The Customer acknowledges that UK Mail is required to use Royal Mail for the final delivery, and accordingly is not able to offer any assurances as to the actual delivery day of any Mailing item".

38. The Claimant is seeking to rely on the information contained in this notice as their legal entitlement to terminate the agreement and pursue this claim. However, the Default Notice is defective in that it does not permit sufficient time for the default to be remedied as prescribed by S88 of the Consumer Credit Act 1974 and the associated regulations - Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983.

 

39. Furthermore the sum stated on the Default Notice was, at least, partly comprised of unlawful charges and therefore the arrears claimed cannot be accurate, as they are calculated using a total that was itself inaccurate.

 

40. At trial I shall contend that under Section 87 of the Consumer Credit Act 1974 (The Act) the creditor must deliver a default notice which complies with all of the requirements of Section 88 of the Act and of the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 before the Claimant will become entitled to claim any benefit they may have enjoyed under S87 and subsequently terminate the agreement and make any demand for early payment. I will refer to the judgement of Woodchester Lease Management Services Ltd v Swain and Co NLD 14th July 1998 that confirms this.

 

41. Without prejudice to my main contentions set out above, I aver that the value of the original claim is inaccurate and the Claimant has failed to provide a method or statement as to how the sum claimed has been calculated. In order that I might be permitted to assess the accuracy of this claim I requested copy statements of account from the Claimant on 31st March 2010 under CPR 18. The Claimant has supplied only partial information but I am able to deduce from the information supplied that the sum claimed contains charges that have been applied to the account. I refute these are payable. I will require the Claimant to prove that such charges are payable and were properly applied.

 

42. In my possession I hold copies of two documents (exhibits xx15 and xx16) written by the Claimants solicitors on their own letterhead admitting that the existence of a defective Default Notice prevented their client from proceeding. These letters are in the public domain.

 

43. A copy of the case of Bank of Scotland v Robert Mitchell June 2009 (exhibit xx17) was sent to the Claimants solicitors to illustrate that costs were awarded against Bank of Scotland on an indemnity basis in a very similar situation where the Claimant had previously been alerted to a simple point of law by the defendant and had chosen to proceed regardless.

 

44. Practice Direction 16 para 7.3 requires the original contract documents to be available at the hearing, and CPR 32.19 allows me to require documents mentioned by the Claimant to be proved at trial. If the Claimant seeks to rely on copies of any of the above documents in court rather than the originals, the Claimant must produce 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.

 

45. I note that the Claimant seeks to claim interest of £71.31 pursuant to the terms of the agreement. If it is accepted that the Claimant has not proved that the alleged agreement contained the prescribed terms in relation to interest, the Claimant cannot claim contractual interest up to the point of the claim.

 

46. The Claimant also seeks interest pursuant to Section 69 of the County Court Act 1984. I note that the Claimant is not entitled to do so and attention is drawn to the County Courts (Interest on Judgement Debts) Order 1991 (No. 1184 (L.12)) Section 2 (3)(a) which sets out this is the case where a claim is in relation to a debt regulated by the Consumer Credit Act 1974. The Claimant has stated

 

"this is of no relevance as Judgment has not been obtained in this matter".

 

It is my contention this should not have been claimed as the Claimant's solicitors should be aware this is the case thus payment of interest is therefore denied.

 

47. The Claimant has stated:

 

"By quoting numerous sections of legislation or case law it is in the Claimants submission merely a speculative attempt to avoid liability and to delay matters when in reality there is no arguable Defence".

 

The Claimant is a large multi national organisation with huge resources to draw upon at its disposal so it should be an easy matter for the Claimant to ensure all his documentation complies with all relevant legislation. This legislation was, in most cases, drafted to protect the consumer and to provide him protection from predatory action taken by a service provider. I have never attempted to avoid my liabilities as token payments were made on the account when statements were received and I registered with both the Consumer Credit Councelling Service and Community Legal Advice who provided the Claimant with copies of Income and Expenditure forms and offers of payments within my means. It was the Claimants actions in issuing proceedings through the Northampton County Court that forced me into examining whether the Claimants documentation was compliant with all the relevant legislation and whether the Claimant had acted within its terms.

 

 

Statement of Truth

 

I, xxxxxxxxxxxxx, believe the above statement to be true and factual.

　

Signed .........................................................

 

Date.............................................................

　

　

　

　

　

　

.

[wycombe]

I realise the numbering of Paragraphs is out of sequence from Para 34 onwards. This has now been corrected.

 

Just wondering if the Recent Supreme Court Judgment outlined here is worth a quote?

 

http://www.consumeractiongroup.co.uk/forum/legal-issues/267230-supreme-court-judgment-7th.html#post3027114

 

In order to reinforce argument that if the prescribed terms are incorrect in any way the agreement is unenforceable. (Para 12)

 

As I still have plenty of time before printing everything off all comments/observations greatly appreciated.

[citizenB]

Dinner bell just rung will come back later and finish reading.

[LB145]

Dinner bell just rung will come back later and finish reading.

Enjoy CB - just had roast lamb - can you believe I am cooking a roast in this heatwave, my family refusing to eat anymore salads:p - now to go and face the washing up!!!

[Dotty50]

Enjoy CB - just had roast lamb - can you believe I am cooking a roast in this heatwave, my family refusing to eat anymore salads:p - now to go and face the washing up!!!

 

You're not on your own LB, had the same today and it was delicious!

[citizenB]

Nit picking again

 

Consumer Credit Counselling Services.

 

In Point 4 and your final paragraph you have used two versions of spelling of Counselling.. neither of which is correct

 

Where you have quoted from the Claimant's witness statement, I would mention the paragraph / point so the Judge doesnt have to search.. eg

 

 

The Claimant states......

 

to..

 

In Point (number) of their statement, the Claimant states......

 

Paragraph 16

 

16. It is the usual practice when completing application forms, final agreements or contracts, for both parties to sign at the end of the document after all the terms and conditions have, in theory, been examined and read and to dispel any thought that such items can be added at a later date or a claim be made that these were not present. In the case of the Claimants document anything could have been on the reverse and it is up to the Claimant to prove that both sides are related in some way.

[/quote]

 

I wonder if it would also be worth emphasising that you should have been presented with a copy of the document bearing MBNA's signature and the date they signed, by return, much as you would with any other legal document say a mortgage agreement or personal loan agreement.

 

Once upon a time carbonised copies would have been used and a copy given immediately to the customer and the other kept by the lender.

[citizenB]

Enjoy CB - just had roast lamb - can you believe I am cooking a roast in this heatwave, my family refusing to eat anymore salads:p - now to go and face the washing up!!!

 

Poached salmon and salad

[Chipmeister]

Wow, go Wycombe and citizenB! Great reading - good work.

 

Incidently, my dinner consisted of sausages, mustard mash and brocolli. Yum!

[LB145]

Poached salmon and salad

 

Went shopping after visiting the court - "lamb to the slaughter" must have been lurking in my mind!:lol:

[wycombe]

Thanks CB

 

Nit picking appreciated.

 

I have been watching the football so will get back to this tomorrow and make the necessary adjustments.

 

Currently salivating over all the delicious food being mentioned as my wife is away - so having to fend for myself cooking wise!!

[wycombe]

 

Where you have quoted from the Claimant's witness statement, I would mention the paragraph / point so the Judge doesnt have to search.. eg

 

 

The Claimant states......

 

to..

 

In Point (number) of their statement, the Claimant states......

 

 

Good point CB

 

Unfortunately the Claimant has not particularised their statement into numbered paragraphs (as I have done). Hopefully this will niggle the judge as it will be hunt the statement/evidence over three pages. I will have a copy with the relevant bits highlighted so I can point to page three, third paragraph down etc. when I am making my points.

[citizenB]

Good point CB

 

Unfortunately the Claimant has not particularised their statement into numbered paragraphs (as I have done). Hopefully this will niggle the judge as it will be hunt the statement/evidence over three pages. I will have a copy with the relevant bits highlighted so I can point to page three, third paragraph down etc. when I am making my points.

 

Aha, in that case, leave things as they were.... I didnt realise they hadnt numbered their paragraphs..

 

Profession lititation company are they ? I have seen much better presented documents from Caggers.

[indebtandharrased]

Hi Wycombe

 

More nit picking - but trying to be helpful!

 

Could I suggest you run spell checker on your WS? I saw one occurrence of 'Agreeement' in there, for example.

 

I'm not sure that in para 11. "which are inter alia" is correct grammar; I have chosen not to use Latin in my WS and used "including but not limited to:" when referring to sections of the law or regulations - just as you have done in para 44.

 

In para 16. I think I would be inclined to remove 'application forms' from the list of documents that both parties usually sign.

 

In para 46. I'm not sure you are correct about interest. The way I read 69 it is that a claimant cannot get any contractual interest on an amount AFTER Judgement. As you are not at that stage you could be wrong. Check it out with an expert though as I could well be wrong.

Edited July 12, 2010 by indebtandharrased

[wycombe]

Thanks IDaH

 

The nit picking is appreciated.

 

I have carefully gone through the WS and corrected the spellings. I have to do this manually as I do not have a spell checker on my computer (this is almost as elderly as me!)

 

I have taken aboard the point about the Latin and altered accordingly.

 

Also in agreement with removing 'application forms' from Para 16.

 

I'm not sure about Para 46 and the interest so will have another read of S69. I may just remove the section of that Paragraph starting with 'The Claimant has stated..... to the end. Comments regarding this welcome!!

 

Again my thanks for taking the time to read it through and make your points:).

[foolishgirl]

.... a claimant cannot get any contractual interest on an amount AFTER Judgement.

 

They can if they can prove it states this in the T&Cs. However they cannot claim stat. interest on a debt that is regulated under CCA1974.