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AIB Visa Card - Applied for Summary Judgement


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I'd be very grateful for any advice on this. I filed a Defence back in October 2009 on a claim by solicitors of Allied Irish Bank on money they say is owing on a credit card I supposedly took out many years ago. I did not recall ever filling in an application form for this card and my defence was based on the usual, they couldn't produce any agreement/application form, they issued no default notice and they cannot give any details of how the sums claimed have been calculated. As I hadn't heard anything since Oct 09 I assumed that was it as the AIB had no case whatsoever!

 

Out of the blue I've received details of an application for Summary Judgement to take place in June 2010. Their whole case seems to be centred around a case Emma Carey v HSBC Bank Plc on 23 Dec 09 in which the judge said if a bank is unable to locate a signed copy of a cardholder's original Agreement, but is able to produce a reconstituted version which confirms certain specific info, then that will be sufficient evidence of an Agreement! The papers I've received have no notes as to how or indeed if I should respond and there are no attachments as mentioned in the claim.

 

I'd be really grateful for anyone's thoughts out there as to what I should do next and any explanation of what this Summary Judgement is? Many thanks.....

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Hi

 

Has the notice come from the court or from the claimant?

 

Has it been presented as an AQ or are you already beyond this stage....... can't see thats is possible within CPR to cite a SJ hearing prior to track allocation.

 

Have you CPR'd the claimant?

 

Gez

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Moved to Legal Issues

 

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Thanks for your reply Gez. I've received a Notice of Hearing of Application from my local court so yes, it came from the court. I had notice from AIB's solicitors back in Oct 09 that they were taking me to court, at that time I sent my defence and heard nothing till now (I assumed they had absolutely no case). Excuse my ignorance but I don't know what you mean by AQ and CPR so grateful if you could explain. Cheers, Mark.

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Any chance of posting their POC (particulars of claim) less any identifiers

 

Would also be handy if we could see your defence...... if its stalled at an embarrassed filing and you've not pressed for data under CPR, CCA (Consumer credit act) or DPA (Data protection act) its likely the judge will find for them.

 

Whilst its true that its for the claimant to prove their case its also true that the court will expect a sound defence before striking out a motion for summary judgement. In essence the court needs to know you have a sound argument.

 

AQ - Allocation Questionnaire, would assume it'd be an N150

 

CPR- Civil procedure rules

 

Post up what you have and what you understand to be your position and you'll get plenty of advice and assistance.

 

Will have a dig around the forums later to see who may be best able to assist with stopping the SJ in its tracks and giving you a few pointers on building a solid defence, assume you'll also need help with disclosure of docs under CPR and putting together a WS (Witness statement).

 

Gez

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  • 2 weeks later...

Dear Gez and all, I'm sorry not to revert sooner but I've had a family crisis to attend to. I attach the application for Summary Judgement and would be very grateful for anyone's advice as to how I should proceed.

 

The last payment on the account was about 18 months ago. Of course what AIB has said in the application is all nonsense or downright lies. I did make a S.31 request (I have a copy of my letter), I did send payment (a postal order) with my unsigned letter for a copy of my CC agreement and I definitely didn't receive a default notice.

 

Thank you to anyone who can offer help. Mark.

AIB.pdf

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Thats a hell of a lot of waffle just to tell the judge they have no agreement but can we please have some money.

 

Carey judgement is here..... http://www.judiciary.gov.uk/docs/judgments_guidance/judgment-carey-v-hsbc.pdf not sure why they are relying on it as Waksman was only truly concerned with S.78 compliancy. Any/all legislation regarding enforcement requirements remains unchanged and pre 2007 is not open to any other interpretation. They can bring it to court but without an agreement to hand they are abusing process.

 

Can only assume they are trying to bluff the DJ into a moral decision.

 

I need a working printer to run your PDF off and scan through the whole thing.

 

Vint, diddy and S62 would be able to help you out (I think), will give them a shout later to see if they can look in

 

Gez

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Whilst its true that its for the claimant to prove their case its also true that the court will expect a sound defence before striking out a motion for summary judgement. In essence the court needs to know you have a sound argument.

 

Gez

 

Can you apply to court to have a hearing for summary judgement struck out? I mean before the actual hearing? I'd be interested to hear if you could.

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You oppose the SJ by way of a Witness Statement rebutting the points they have made in their SJ application.

 

You then get a skeleton argument together laying out your legal points and also mention your application for costs within this.

 

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Can you apply to court to have a hearing for summary judgement struck out? I mean before the actual hearing? I'd be interested to hear if you could.

 

Pretty sure it has to be argued at hearing, have asked some others to take a look and advise.

 

An N244 is an application to the court and I can't envisage that its possible to overrule the application without the claimant discontinuing the motion or by an order dismissing same post hearing.

 

Gez

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You oppose the SJ by way of a Witness Statement rebutting the points they have made in their SJ application.

 

You then get a skeleton argument together laying out your legal points and also mention your application for costs within this.

 

Cheer Snoops, tis what I thought but am loathe to steer anybody in the wrong direction through lack of experience.

 

Think I've been fairly lucky at every turn so far and ended up with discontinued claims against me without having to dig deeper for defences.

 

Will print their POC off tomorrow at work and see if I can help the OP with his WS......... me thinks theres a heck of a lot of rebutting to be done :)

 

Not seen these sols on here before (but then again maybe thats cos I've not been looking for them) so it may be prudent for the OP to attach docs rather than post all WS text within the thread.

 

Gez

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You oppose the SJ by way of a Witness Statement rebutting the points they have made in their SJ application.

 

You then get a skeleton argument together laying out your legal points and also mention your application for costs within this.

 

Okay, thanks. So basically the only way to oppose a summary judgement is at the actual hearing? The Witness Statement has to be in 7 days beforehand? When do you hand over your skeleton argument?

 

Sorry to butt into this thread, but hopefully this will also assist the OP, whose situation (and expertise) seems similar to mine.

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Will print their POC off tomorrow at work and see if I can help the OP with his WS......... me thinks theres a heck of a lot of rebutting to be done :)

 

 

Thats snookered that idea, 19mb so its bouncing back off work e-mail aaaaaand can't access this site from there to print this off and have a proper read.

 

Will see if I can find a stick big enough to save it on unless anybody else has an idea how to compress the attachment down to 5mb max?

 

Gez

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a serious struggle to get it under 4MB but eventually got there.

 

hth

 

gh

AIB.pdf

Edited by gh2008

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Nice 1 gh

 

Will have a good read of this tomorrow (today now) and come up with something for the OP over the next couple of evenings.

 

 

 

Markrob, can you post a copy of the generic application and alleged default notice they sent you copies of, also need to see the original POC pre SJ W/statement.

 

In addition, was there any sign or mention of termination, may have skipped through it but I can't see anywhere that its states one was served prior to filing claim?

 

Gez

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Can you apply to court to have a hearing for summary judgement struck out? I mean before the actual hearing? I'd be interested to hear if you could.

 

To answer this point.

 

As I understand the issue, Summary Judgment is applied for when the Claimant feels that the Defendant has no defence and the Court sets the date as soon as possible.

 

If you applied for the SJ to be struck out then the judge would still have to hear the SJ application and then hear your application for it to be struck out.

 

If you get a clued up Judge, he\she should apply the seven point test when hearing the SJ application

 

Summary Judgment Seven Point Test

 

As readers will know, one of the objectives of Adjudication is to provide a relatively quick and cost effective procedure for resolving disputes (albeit the Adjudicator’s decision is temporarily binding).

Should the Adjudicator’s Decision not be complied with the successful party can seek to enforce it by obtaining a quick judgment using the summary judgment procedure enshrined in part 24 of the Civil Procedurelink3.gif Rules. Summary judgment can be used in any type of litigation proceedings, not just the enforcement of adjudication’s decisions.

Summary judgment is aimed at providing, in appropriate circumstances, judgment at an early stage of the litigation process, thereby avoiding the time and expense involved in a full-blown trial. The grounds for an application for summary judgment are contained at part 24.2 of the CPR as follows:

24.2 The court may give summary judgment against a claimant or defendant on the whole of a claim or on a particular issue if-

a) that claimant has no real prospect of succeeding on the claim or issue; or

(i) that defendant has no real prospect of successfully defending the claim or issue; and

(ii) that defendant has no real prospect of successfully defending the claim or issue; and

b) there is no other compelling reason why the case or issue should be disposed of at a trial.

Whilst not related to an Adjudicator’s Decision, in the recent case of Nigeria v Santolina Investment Corporation and others [2007] EWHC 437 (Ch) Mr Justice Lewison provided a useful summation of the guiding principles to be applied by the court when deciding whether or not to award summary judgement.

Nigeria case - Recent Guidance

The case concerned an application by the Federal Republic of Nigeria for summary judgment to recover assets wrongly obtained by a former State Governor, Mr Alamieyeseigha.

By way of background to the application, in September 2005 Mr Alamieyeseigha was arrested in the UK on charges of money laundering. In November 2005 impeachment proceedings were commenced by the Bayelsa state against him. On 9 December 2005 he was dismissedlink3.gif as State Governor. It was also alleged that during his period in office Mr Alamieyeseigha had accumulated assets in excess of £10 million via corrupt practices, such as receiving bribes and other payments in return for awarding state government contracts. Some of these alleged assets consisted of properties in London, owned by Mr Alamieyeseigha’s company; other were in bank accounts in the name of Mr Alamieyeseigha, his wife and other corporate entities, some of which are wholly controlled by Mr Alamieyeseigha.

Considering the test to be applied by the court when considering an application for summary judgment, Mr Justice Lewison at paragraph 4 stated the following:

4. The courts have now given guidance on the principles to be applied in deciding whether or not to give summary judgment. For present purposes I summarise the relevant ones as follows:

i) The court must consider whether the defendant has a "realistic" as opposed to a "fanciful" prospect of success: Swain v Hillman [2001] 2 All ER 91;

ii) A "realistic" defence is one that carries some degree of conviction. This means a defence that is more than merely arguable: ED & F Man Liquid Products v Patel [2003] EWCA Civ 472 at [8]

iii) In reaching its conclusion the court must not conduct a "mini-trial": Swain v Hillman

iv) This does not mean that the court must take at face value and without analysis everything that a defendant says in his statements before the court. In some cases it may be clear that there is no real substance in factual assertions made, particularly if contradicted by contemporaneous documents: ED & F Man Liquid Products v Patel at [10]

v) However, in reaching its conclusion the court must take into account not only the evidence actually placed before it on the application for summary judgment, but also the evidence that can reasonably be expected to be available at trial: Royal Brompton Hospital NHS Trust v Hammond (No 5) [2001] EWCA Civ 550;

vi) Although a case may turn out at trial not to be really complicated, it does not follow that it should be decided without the fuller investigation into the facts at trial than is possible or permissible on summary judgment. Thus the court should hesitate about making a final decision without a trial, even where there is no obvious conflict of fact at the time of the application, where reasonable grounds exist for believing that a fuller investigation into the facts of the case would add to or alter the evidence available to a trial judge and so affect the outcome of the case: Doncaster Pharmaceuticals Group Ltd v Bolton Pharmaceutical Co 100 Ltd [2007] FSR 63;

vii) Although there is no longer an absolute bar on obtaining summary judgment when fraud is alleged, the fact that a claim is based on fraud is a relevant factor. The risk of a finding of dishonesty may itself provide a compelling reason for allowing a case to proceed to trial, even where the case looks strong on the papers: Wrexham Association Football Club Ltd v Crucialmove Ltd [2006] EWCA Civ 237 at [57].

After careful consideration Mr Justice Lewison refused Nigeria’s application for summary judgement providing his detailed reasons for doing so in his judgment. One reason was that this was such a serious allegation it needed to go to trial to permit Mr Alamieyeseigha to confront his accusers and state his side of the facts.

Notwithstanding this, Mr Justice Lewison’s said guidance on the principles to be followed when considering an application for summary judgment provides a useful insight into the court’s approach.

Matthew Davies

March 2007

 

Edited by supasnooper
typo

 

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I'd be very grateful for any advice on this. I filed a Defence back in October 2009 on a claim by solicitors of Allied Irish Bank on money they say is owing on a credit card I supposedly took out many years ago. I did not recall ever filling in an application form for this card and my defence was based on the usual, they couldn't produce any agreement/application form, they issued no default notice and they cannot give any details of how the sums claimed have been calculated. As I hadn't heard anything since Oct 09 I assumed that was it as the AIB had no case whatsoever!

 

Out of the blue I've received details of an application for Summary Judgement to take place in June 2010. Their whole case seems to be centred around a case Emma Carey v HSBC Bank Plc on 23 Dec 09 in which the judge said if a bank is unable to locate a signed copy of a cardholder's original Agreement, but is able to produce a reconstituted version which confirms certain specific info, then that will be sufficient evidence of an Agreement! The papers I've received have no notes as to how or indeed if I should respond and there are no attachments as mentioned in the claim.

 

I'd be really grateful for anyone's thoughts out there as to what I should do next and any explanation of what this Summary Judgement is? Many thanks.....

 

 

HHJ Waksman also said in the same case that a section 78 request was for information purposes only and NOT proof of execution....so if that's all they got a ''reconstituted document'' without your signature it is going to be very difficult for them in Court to enforce...bear in mind s61(1),S65(1) and s127(3)..if your agreement was pre ''whatever'' cannot just this moment remember!!!

 

Remember they are the Claimants and Carey et all were also Claimants.It applied to them as Claimants it must apply to AIB as Claimants too.

 

The Burden will be upon them.

 

Anyhow how hopefully Gezwee et al may also direct your attention to CPR 31:6 and 16 which circumvents the Consumer Credit Act 1974 yet allows you to inspect the Original.If they cannot produce this then your assessment of your own position may lead to the conclusion that they cannot produce this in Court....so that the fact they are unable to locate a signed copy of the Original appears as a 'veiled' threat and bullying tactics.

 

It is nothing new as the Copies Of Documents and Cancellation Notices Regs 1983 allow them to do this ANYWAY when a s78 request IS MADE BY THE DEBTOR...

 

Also it is at this stage as you said that ''an application for SJ'' they made under CPR PART 23..No Judgement has been entered against you at this stage...you are interested in CPR PART 24 which I noticed that Supasnooper has done a good job of briefing up there!!!

 

You said that you HAD filed a defence..hopefully you ALSO filed an acknowledgement of service before that defence if you intended to file a defence 28 days after the POC's were served upon you or with that defence after 14 days anyway.

 

I am also fully aware that Gezwee is involved in this and I should not wish to distract too much I will bear that in mind...but contribute sparingly all the best on this one guys!!!d

 

P.S 4 (iv) an (v) are particularly interesting in the 7 point test above.

 

m2ae

Edited by means2anend
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In section 4 of their WS, they admit that the T&Cs were not given to you at the time you signed the agreement. You can therefore use the Carey judgment yourself to show that this makes their application - and whole case - rather shoddy. pt2537 is pretty sharp on this aspect.

 

Section 14 is bollocks. Carey v HSBC was about a debtor taking a creditor to court and is really not relevant. Waksman in Carey only meant that a reconstituted document could be used to satisfy a S78 request. An original, or accepted copy of the original, is required to enforce in court. Do they think that by referring to the 'Learned' judge they are flattering to deceive? The solicitor's letter does not actually claim that the reconstituted document is enforceable, I note.

 

Unfortunately, your defence was not the best and not best articulated to seriously put the boot in - but it did have several key points they have not adequately addressed, other than by waffle and obfuscation..

 

However, you must oppose this SJ, and we need to get a new WS for you rebuffing their points, one by one.

 

Where is the copy of the supposed default notice? This could be crucial.

Edited by DonkeyB

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You said that you HAD filed a defence..hopefully you ALSO filed an acknowledgement of service before that defence if you intended to file a defence 28 days after the POC's were served upon you or with that defence after 14 days anyway.

 

m2ae

 

The defence is handwritten within the PDF, m2ae. Also, OP, your name appears in their WS!

“The industry is rotten to the core, whether it is in-house recovery and collection, or where agents are used, or where the debt has been sold.” Andrew Mackinley MP, House of Commons, 22 April 2009

 

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Markrob, can you post a copy of the generic application and alleged default notice they sent you copies of, also need to see the original POC pre SJ W/statement.

 

In addition, was there any sign or mention of termination, may have skipped through it but I can't see anywhere that its states one was served prior to filing claim?

Wow, thanks to everyone for their interest and help. The documents referred to in the App for Summary Judgement were not actually attached so I don't think I have anything else to show. Should I ask the solicitor or court to provide these attachments? I also didn't receive from AIB confirmation of termination. As I mentioned previously, they would not reply to any of my requests for CCA etc presumably because my letters were unsigned (for obvious reasons). Mark

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Yes, you need to see all the documents they refer to in their WS - you can ask the court for a copy, but you should also get a stinky letter off to the solicitor asking why they didn't include copies, and demanding same.

 

I think it likely that the DN may be faulty!

 

Did you write with a CPR request? They refer to it but only show their their response, not your actual letters.

 

We really have to nip this Waksman stuff in the bud, because it is the central plank of their argument.

“The industry is rotten to the core, whether it is in-house recovery and collection, or where agents are used, or where the debt has been sold.” Andrew Mackinley MP, House of Commons, 22 April 2009

 

If a Cagger helps you, click their star. Better still, make a donation however small, so that CAG can continue to help others.

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