**urgent Help Please To Build A Defence**

[joski34]

Does this look ok for a witness statement to support my N244, I have included the SB on advice that a conversation with my mum does not unbar the debt:

 

Witness Statement

 

1. I *****of **** am the defendant in this action and make the following statement in support of my defence to the claim made by Hillesden Securities

 

2. Except where otherwise mentioned in this defence, I neither admit nor deny any allegation made in the claimants Particulars of Claim and put the claimant to strict proof thereof.

3The Claimant contends that the Claimant's claim so issued is a claim in contract and is statute barred pursuant to the provisions of section 5 of the Limitation Act 1980. If, which is denied, the claimant contends that the Defendant is in breach of the alleged contract, in excess of 6 years have elapsed since the date on which any cause of action for breach accrued for the benefit of the Claimant

4. I have written to the claimant on the 28th April, 15th May and again on the 27th May setting out their disclosure obligations pursuant to CPR 31.14 and disclose the documents listed in the order to the Defendant. I have to date not received any of the documents that I have requested

 

5. I am unable to plead to the particulars as they fail to comply with Civil Procedure rules, in particular part 16 and practice direction 16, in particular paragraph 7.3 as the claimant has failed to supply a copy of the original document under CPR request which forms the basis of this claim.

 

Will that be ok for the N244 or do I need to add more?

[emandcole]

Hi Joski, sorry not been about. Great that PT has put this up for you.

 

 

 

Before District Judge Sitting at the Birmingham County Court, Priory Courts, 33 Bull Street, Birmingham West Midlands, England B4 6DS

 

UPON reading the Defendant’s Application Notice dated and the parties’ witness statements

 

AND UPON hearing the representatives for the Claimant and Defendant

 

IT IS ORDERED THAT:

 

 

• The Claimant is to file and serve the documents set out at paragraph 1.1 of this order by 4:00pm on …………… and in default the claim shall stand struck out without further order.
   
  1.1 Credit Agreement mentioned within the statement of case. Assignment and notice of assignment mentioned in the statement of case
  
• In the event that the Claimant complies with paragraph 1 of this order, the Defendant shall file and serve a Defence and any counterclaim by 4:00 pm on
  
• The Defendant do pay the Claimant’s costs summarily assessed in the sum of £ within 14 days
  

 

DATED this day of 2010

 

Might be that PT in his rush to put this up has posted a generic one, as he stated, but probably best to swap the claimant and defendant around in the above red text. Don't believe you would need to offer to pay the claimants costs if they've not substantiated their claim.

 

As for the dates and amounts I believe you could put a date in but suspect the judge will prefer to do this, that way you can't be considered to be unrealistic if you add a date that the court thinks is unfair. The judge isn't daft so I'd leave it blank and let the judge decide how much time is reasonable.

 

As for the amount it has cost you to date then yes, I'd add up what it has cost you and insert this figure. Small claims you pretty much have to bear your own costs unless you can show for example that the claimant has been unreasonable or acted improperly, CPR 44.14 has some details on that but probably not appropriate here.

 

This hasn't been assigned to a track yet I believe and I'm unsure how you'd get your costs back other than with a wasted costs app but guessing that's what the above is also acting as, two birds with one stone.

 

It may also be the case that having their claim thrown out is reward enough for you, sometimes trying to claim for the small amount it may have cost you isn't worth it when you consider the greater picture.

 

Sure PT will offer greater insight but in the event he isn't about I'd leave the dates blank and let the judge interpret and complete, and add a figure for wasted costs that you can entirely justify. Now is not the time to be greedy or to look to take advantage of the situation.

[freethemice]

If you are going with the witness statement and statued barred I would be looking at either a summary judgement or strike out application on this basis. (why would you ask for disclosure if you believe the case should not have been actioned?)

 

If you want disclosure subsequent to cpr31.14/31.15 I would go with copies of these requests along with proof of postage.

 

The copies might prove to be a grey area though as the case is so old the other side might validly point out originals are no longer available but look at this witness evidence we have put together.

 

Maybe you should be stating that it is proof that the case isn't statued barred that you were seeking in your cpr requests and unless the claimant can provide this proof the case should be struck out:

 

IT IS ORDERED THAT:

• The Claimant to file and serve sufficient evidence that activity has occured on account number xxx within the last six years by .....
  
• In the event the claimant fails to supply this information this case will be considered statued barred and shall stand struck out without further order.
  
• In the event that the Claimant complies with paragraph 1 of this order, the Defendant shall file and serve an amended Defence and any counterclaim by 4:00 pm on ....
  
• After considering copy crp requests and proof of postage for the defendant the court also awards costs to the defendant summarily assessed at £..... and payable by the claimant within 14 days.
  

Obviously get pt's advice and maybe even half an hour of paid legal advice before proceeding as I'm more or less in the same boat as yourself with disclosure and certainly not qualified to offer more than an opinion.

[freethemice]

p.s.

 

A good and free way I have found to get your arguments right and coherent is to phone up solicitors in your area who deal with civil matters enquiring about the cost of legal advice.

If you get through to the solicitor you can normally run through your main points and get some feedback on how they would be receaved in court.

[joski34]

I did get some info back on the SAR request I sent them...there are many entrys in June/July 05, spoke to mum, spoke to third party, spoke to mum, no answer etc, then spoke to me and discussed payments and that they would send me a payment book!! this is all on my mothers telephone number by the way and it was my mother they spoke to..this was why I was going to submit the SB in my witness statement....what do you think guys? is it worth it?

[joski34]

Guys do I have a time limit to get this N244 or do I have a bit of time ?

[freethemice]

I did get some info back on the SAR request I sent them...there are many entrys in June/July 05, spoke to mum, spoke to third party, spoke to mum, no answer etc, then spoke to me and discussed payments and that they would send me a payment book!! this is all on my mothers telephone number by the way and it was my mother they spoke to..this was why I was going to submit the SB in my witness statement....what do you think guys? is it worth it?

 

This really depends on what you have admitted and what they can prove.

No guarantees I'm afraid your case is unique to you.

 

Do you feel you have acknowledge the debt in the last 6 years?

Do you feel you can present a good case to court?

Are you willing to take the chance that despite having a good case on paper a judge could brush your arguments aside and rule against you?

What would you describe as a good result from this?

 

It may well be that an offer for say 30% of the balance claimed payable over x years would be acceptable to you and save you the worry of court.

 

As I understand it this is at Northampton and will be until the other side file AQ's so you should have time to get this right.

[joski34]

I take your point, I will leave out the SB as I dont feel I can prove its not. Il send the N244 off asking for an order to disclose the documents under the CPR request. I will take out the SB from the witness statement, will it be ok to go then? Also should I send copies of the the 3 letters with proof that I have sent to the claimant asking for the info?

 

thanks again I appreciated your time and advice

[freethemice]

I would do it like this but this is your money and your case. I would state you would have a 80% chance of getting the order and the chances of them complying or not would be around 50/50. If they don't then they are barred from using the credit agreement and default notice in their claim and they are up the creek IMHO. Alot of this is untread waters though so we are in alot of ways the lab rats trying it out!

name of court simply the court it has been allocated to

Claim number On your court forms

warrant number leave blank

claimants name including ref - that the solicitors who are dealing with this they may have a reference number on thier letter but don't think it is too important

defendants name - your name no need for ref number

date - todays date or the date you will be handing it in

1 What is your name or if you are a solicitor the name of your firm

Your full legal name

2 Are you a - you are the defendant

3 What order are you asking the court to make and why?

I would like the court to make an unless order to enable me to view documents stated in the claimants particulars of claim.

The claimant has frustrated these proceedings on several occations by not supplying documents despite my valid cpr requests. Now only visual inspection and copy will satisfy me these exist and are genuine.

4 Have you attatched a draft of the order you are applying for - yes

5 How do you want this application to be dealt with - at a hearing

6 How long do you think the hearing will last - 30 minutes

Is this estimate agreed by all parties - no

7 Give details of any fixed trial date or period - the date allocated for the hearing if you have one

8 What level of Judge does your hearing need? District

9 Who should be served with this application? The claimant

10 What information will you be relying on, in support of your application?

the evidence set out in the box below

List the cpr letters in date order. I think it looks good if you put a plank sheet of a4 beteen each and give in an evidence number so your cpr31.14 becomes defence evidence cp1 ect. Makes it easier to refer to later as well.

If you like you can list and file the proof of postage as well

You must also complete the statement of truth. Proceedings for contempt of court may be brought against a person who signs a statement of truth without an honest belief in its truth.

on a seperate piece of paper

In the XXXXXX county court

Claim number XXXXXX

 

 

 

 

Between

XXXXXXXX - Claimant

and

 

XXXXX - Defendant

 

 

 

Draft Order for disclosure

IT IS ORDERED THAT:

1) Unless the Claimant do by 4pm on xxxx (date) discloses by visual inspection and copy to the Defendant, the credit card agreement purporting to be binding on the parties, then the said notice shall not be admitted as evidence in relation to this claim.

2) Unless the Claimant do by 4pm on xxxx (date) discloses by visual inspection and copy to the Defendant, the evidence they wish to admit supporting the notion a default notice has been served on the Defendant in respect of an alleged default, then the said notice shall not be admitted as evidence in relation to this claim.

Phone the court up find out the appropriate fee to pay and your ready to roll

Leave this up a few days so others can pick faults and amend if neccassary and good luck.

[joski34]

Ok after a days reading on here I am totally read out..and thanks to everyone has chipped in its much appreciated.

 

Ok so Ive used the template that PT and emancole posted and left the blanks. I have taken the stature barred out of the statement as I am not confident about this and as pointed out earlier why would I want disclosure if I could 100% prove it was SB.

 

One question I do have is do I need to include everthing that has happend to date in my statement OR do I just need to highlight the 3 attempts to get them to disclose (letters and proof of postage) and that this has put me at a disadvantage to defend.

 

Many thanks guys.

[joski34]

oops cant believe we both posted at the same time!! I will read your thread now freethemice.

[joski34]

Fantastic, I am dealing this now, I spoke to the court today and they said its 40.00 so I will send a cheque...how long should I leave it before I send this request to the court.

 

One final question..as I submitting my evidence on the form ie CPR requests will that be enough and wont need a seperate witness statement?

[joski34]

Ok nearly done...Ive ticked what info will I be relying on etc and put the info in the box provided, Ive listed 3 CPR requests and proof of postgage and listed the 3 letters as attachments.

 

so is that it now good to go? I dont need a seperate witness statement?

[emandcole]

Ok nearly done...Ive ticked what info will I be relying on etc and put the info in the box provided, Ive listed 3 CPR requests and proof of postgage and listed the 3 letters as attachments.

 

so is that it now good to go? I dont need a seperate witness statement?

 

At this stage all you're doing is providing the court with the evidence of how and why your request is a reasonable one. Including details of your attempts to get the claimant to play ball should be sufficient, don't belive it needs to be any more complicated than that especially as you are LIP.

[joski34]

Fantastic...thanks again for everything..il get this sent off and let you know when i get a response

[joski34]

Hi all, got a letter in the post today from Northampton CC and its details for a hearing that took place a few days ago so the judge has issued a order for the claimant to file and send to me copies of the documents set out which are the credit agreement and the default notice. they have until the 5th to comply or the case shall be struck out without further notice. If they do comply I am allowed to file a defence and serve a defence within 14 days..

 

So if I dont get anything from them by the 5th is that it or is it not that simple?

 

Thanks,

[citizenB]

Hi all, got a letter in the post today from Northampton CC and its details for a hearing that took place a few days ago so the judge has issued a order for the claimant to file and send to me copies of the documents set out which are the credit agreement and the default notice. they have until the 5th to comply or the case shall be struck out without further notice. If they do comply I am allowed to file a defence and serve a defence within 14 days..

 

So if I dont get anything from them by the 5th is that it or is it not that simple?

 

Thanks,

 

That is a nice order and it looks like the Court/Judge understands that you are unable to submit a proper defence until you have the papers you require.

 

It is likely that the claimant will get a few extra days to provide you with the information. However, if you havent received anything by the 5th July, which is next Monday, then I would suggest you write another letter to the Court advising that in respect of the Order made by the court on such n such a date. The claimant has still not provided you with those documents they were ordered to.

 

HTH

[joski34]

Thanks Citizen B

[joski34]

All, just had an email from Northampton CC advising that the claimant has not complied with the order and the case is struck out!!

 

Is that it...all over??

[emandcole]

All, just had an email from Northampton CC advising that the claimant has not complied with the order and the case is struck out!!

 

Is that it...all over??

 

Nice. If the court has sent the email and it's that specific then I don't see why not - however I'd like to see the order on paper which should still be sent to you pretty soon.

 

As for the claimant I think they're essentially finished having had every opportunity to respond - an appeal by them now is unlikely to be heard unless perhaps they produce everything requested in a perfect manner and get a sympathetic judge.

 

Provisionally then I'd certainly be chuffed but perhaps wait for paper confirmation finalising it all

[joski34]

yep thats what the email said...Il wait for the paperwork then update the post, thanks emandcole

[Guest]

All, just had an email from Northampton CC advising that the claimant has not complied with the order and the case is struck out!!

 

Is that it...all over?? looks like it. (unless the obligatory 'lady' hasn't sung yet!) well done. you may want to consider claiming for your costs.

 

..

[citizenB]

Woohoo, as emancole and Ford have said.. wait until you receive the order from the court, but it is looking good

[joski34]

I rang the court and asked what the latest state of play was and they said it had been struck out and I would not be sent any further letters etc as it states in the order I got that the claim would be struck out if the documents were not received by the 5th July which they were not...does that sound about right?

 

And today I have received a letter from Hillesden stating that they are following up my request for the original documents and will get back to me with an update in the next 21 days!!

[joski34]

Bump :0)