Slevin V Mbna

[pompeyfaith]

yes still paying £20 a mth as per the terms of the court and not heard a bean from them

[CoventryCrusader]

hi pf

 

i have tried to email you the optima ws...thought you might like to have a read...sorry if i have blocked up your emails

 

frank

[CoventryCrusader]

URGENT.....

 

does any one know where i can get a link to the JUDGEMENT of

 

Brophy V HFC Bank EWHC 819 (QB)

 

how does this impact on argueing that an APPLICATION for is not an AGREEMENT???????????

[citizenB]

This is all I could find

 

http://www.runoffmarket.com/docs/a003/ResolveSpring2010.pdf

 

It is a recent judgement. I am not sure how it would have any impact in regard to your question.

[citizenB]

Have a quick peek of Wycombe's defence in post 236 of the following thread, there might be something there that will help you argue the point.

 

http://www.consumeractiongroup.co.uk/forum/legal-issues/254011-wycombe-restons-mbna-24.html

 

HTH

[CoventryCrusader]

Back to the Optima/MBNA witness statement

 

a few qustions/ observations

 

i would appreciate a little help. if i need to clarify anything from the witness statement or request any documents i need to do so by Friday 16th so would need to write to them by thursday a.m. at latest

 

can i have some help with

 

Their statement in BLACK .my question/observation in BLUE i would appreciate any comments / advice in RED

 

5.2 there are 2 recent authorities that will be relevant to the matters to be determined in this case

 

McGuffick v Bank of Scotland [2009] EWHC 2386 (comm) . This case considered what is meant by the concept of "enforcement"

under the consumer credit act . It confirms that the bringing of proceedings is not enforcement (see paragraph 80-81 of the

judgement )

why mention this case???. i am not questioning what constitutes enforcement. Are they trying to misslead by saying the agreement

can be enforced by an order by the judge? or could there be another reason???

 

Carey v HSBC [2009] EWHC 3417 (QB), This case considers a number of consumer credit act issues that were common place in

actions in the courts. It was found (amongst other matters)

 

in order to comply with a request under section 78 of the CCA it was permissable to provide a reconstituted copy of the agreement

(paragraph 54 of the judgement)

 

In order to comply with section 61 of the CCA it is permissable for the terms and conditions to be on a seperate piece of paper other

than the signed page. It is a question of substance and not form (paragraph 173 & 174 of the judgement)

 

I know that Carey etc is all to do with S78 requests and so is not relevant as per the judge waksman's introduction and conclusions

 

5.3 Section 61 (1) (a) provides that a regulated agreement is not properly executed unless

 

" a document in the prescribed form itself containing all the prescribed terms and conforming to regukations under section 60 (1) is

signed in the prescribed manner both by the debtor or the hirer and by or on behalf of the creditor or owner"

 

Why would they state this ?? surely this is supporting my defence as they can not provide an original or copy of an original

agreement with both our signatures .. Surely it is their case to prove this exists

 

5.5 The claimant is unable to provide a copy of the original agreement. however please find attached to this statement marked exhibit

DP1 a reconstituted copy of the agreement which is a true and accurate copy of the original agreement. clause 1 of the

defendants agreement states "we will from time to time choose the credit limit and notify you of this" The claimant refers to the

case of Brophy v HFC [2010] EWHC 819 (QB)

 

They are just trying to prove all of the prescribed terms . but this is on a reconstituted copy

 

5.10 After recieving this request from the defendant , the calimant requested a copy of the agreed T & C's from the relevant

department within the claimant company. A copy of the agreement was recieved and the following was noted on the claimants

internal system notes on 15th december 2008.

 

"RECVD COPY APP (GOOD) SENT WITH COPY STMNT AND T&C'S"

 

This is based on their internal system notes. what weight does it hold? Can i quiery the opinion of the operator who made this

statement? what qualifies her to be able to say the copy is GOOD ?. any advice as to weither i should be seeking clarification

here ?

 

5.11 The defendant confirmed receipt of the signed agreement and sent a letter to the claimant stating "the information received is not

a true agreement". The claimant is unable to provide a copy of this letter due to recall. However this has been noted on the

claimants internal systeme notes.

 

"LTR FROM CUS STATING INFO IS NOT TRUE AGREEMENT"

 

in addition to the above an entry was completed on the claimants system notes on 20th jan 2009 stating

 

"ENT FINAL S78 RESPONSE- AGREEMENT IS SATISFACTORY AS PER S78"

 

5.12 The claimant avers that the system notes exhibited at "DP2" confirms that a copy of the original signed agreement was provided

to the defendant in compliance with his S78 request and this was noted by the claimant as being a "GOOD" copy

 

6.7 The defendant wrote to the claimant company on 17th March 2009 and further quiried the agreement . please refer to the entry

on the system notes which confirms the following telephone conversation that took place

 

" CH ADV RECVD POOR COPY OF AN ALLEGED AGREEMENT WHICH DSNT COMPLY WITH THE REQUIREMENTS REGARDING

LEGIBILITY - CH ADV HE WOULD AVER THAT THIS MEANS WE ARE CURRENTLY IN DEFAULT OF HIS REQUEST & WE ARE NOT

ENTITLED TO ENFORCE ANY PART OF THE AGRMNT - NOT DEMAND PYTM AND INT/CGRGES"

 

Can i ask for a copy of the recorded conversation or a transcript or will it be too old??

 

Again the above is all from their system notes...any arguments i can use here ????.

 

8.1 Further the claimant confirms that all charges raised and levied to the defendant are valid and have been raised in accordance with

the prescribed terms and conditions that the defendant signed and agreed to be bound by.

 

So far i have been sent sveral copies of T&C's. all of them have shown charges for late payments to be £12. but we all know this

came about post 2006 where as the alleged agreemnt is from 1997. so i have never been given a copy of original T&C's. If they

persist with this i have statements that show charges of £25. so they are either the wrong T&C's or they charged me incorrectly

 

 

 

11.2 The claimant will rely on the judgement of The Honourable Mr Simon Brown QC in the case of Basil Rankine V American Express and

others . 16th May 2008 . whereby the court expressed dissatisfaction in consumers running up debts and not paying for them by

exploiting undoubted technicalities in the consumer credit act 1974 (paragraph 8-9 inclusive of the judgement)

 

Is there anything in this judgement i need to be aware of?????

 

Funny how when i consumer seeks protection under the CCA they are exploiting technicalities but when the Creditor is using the

same laws to obtain a judgement it is acceptable??

[citizenB]

Back to the Optima/MBNA witness statement

 

a few qustions/ observations

 

i would appreciate a little help. if i need to clarify anything from the witness statement or request any documents i need to do so by Friday 16th so would need to write to them by thursday a.m. at latest

 

can i have some help with

 

Their statement in BLACK .my question/observation in BLUE i would appreciate any comments / advice in RED

 

5.2 there are 2 recent authorities that will be relevant to the matters to be determined in this case

 

McGuffick v Bank of Scotland [2009] EWHC 2386 (comm) . This case considered what is meant by the concept of "enforcement"

under the consumer credit act . It confirms that the bringing of proceedings is not enforcement (see paragraph 80-81 of the

judgement )

why mention this case???. i am not questioning what constitutes enforcement. Are they trying to misslead by saying the agreement

can be enforced by an order by the judge? or could there be another reason???

I guess you just respond that you arent questioning what consitutes enforcement and dont see the relevance of this decision being used.

 

Carey v HSBC [2009] EWHC 3417 (QB), This case considers a number of consumer credit act issues that were common place in

actions in the courts. It was found (amongst other matters)

 

in order to comply with a request under section 78 of the CCA it was permissable to provide a reconstituted copy of the agreement

(paragraph 54 of the judgement)

 

In order to comply with section 61 of the CCA it is permissable for the terms and conditions to be on a seperate piece of paper other

than the signed page. It is a question of substance and not form (paragraph 173 & 174 of the judgement)

 

I know that Carey etc is all to do with S78 requests and so is not relevant as per the judge waksman's introduction and conclusions

 

Precisely, the circumstances are totally different. This was in respect of the account holder bringing a claim against the creditor. It dealt specifically with what was required to be provided by the creditor in respect of a s78 request. I think Judge Waksman still clarified what was necessary should the creditor wish to bring proceedings. I have linked you to the judgement below. Take note of the points mentioned.

 

5.3 Section 61 (1) (a) provides that a regulated agreement is not properly executed unless

 

" a document in the prescribed form itself containing all the prescribed terms and conforming to regukations under section 60 (1) is

signed in the prescribed manner both by the debtor or the hirer and by or on behalf of the creditor or owner"

 

Why would they state this ?? surely this is supporting my defence as they can not provide an original or copy of an original

agreement with both our signatures .. Surely it is their case to prove this exists

 

5.5 The claimant is unable to provide a copy of the original agreement. however please find attached to this statement marked exhibit

DP1 a reconstituted copy of the agreement which is a true and accurate copy of the original agreement. clause 1 of the

defendants agreement states "we will from time to time choose the credit limit and notify you of this" The claimant refers to the

case of Brophy v HFC [2010] EWHC 819 (QB)

 

They are just trying to prove all of the prescribed terms . but this is on a reconstituted copy

If they do not have access to the original copy, how can they assert that the reconstituted copy is accurate ? I dont know if you can ask for the witness to be present in person. But you would need to clarify how they can be so certain that their claim is accurate and honest. BRW has a post somewhere that deals with this very situation. I will try and find it for you.

 

5.10 After recieving this request from the defendant , the calimant requested a copy of the agreed T & C's from the relevant

department within the claimant company. A copy of the agreement was recieved and the following was noted on the claimants

internal system notes on 15th december 2008.

 

"RECVD COPY APP (GOOD) SENT WITH COPY STMNT AND T&C'S"

 

This is based on their internal system notes. what weight does it hold? Can i quiery the opinion of the operator who made this

statement? what qualifies her to be able to say the copy is GOOD ?. any advice as to weither i should be seeking clarification

here ?

See above comment

 

5.11 The defendant confirmed receipt of the signed agreement and sent a letter to the claimant stating "the information received is not

a true agreement". The claimant is unable to provide a copy of this letter due to recall. However this has been noted on the

claimants internal systeme notes.

 

"LTR FROM CUS STATING INFO IS NOT TRUE AGREEMENT"

 

in addition to the above an entry was completed on the claimants system notes on 20th jan 2009 stating

 

"ENT FINAL S78 RESPONSE- AGREEMENT IS SATISFACTORY AS PER S78"

 

5.12 The claimant avers that the system notes exhibited at "DP2" confirms that a copy of the original signed agreement was provided

to the defendant in compliance with his S78 request and this was noted by the claimant as being a "GOOD" copy

 

6.7 The defendant wrote to the claimant company on 17th March 2009 and further quiried the agreement . please refer to the entry

on the system notes which confirms the following telephone conversation that took place

 

" CH ADV RECVD POOR COPY OF AN ALLEGED AGREEMENT WHICH DSNT COMPLY WITH THE REQUIREMENTS REGARDING

LEGIBILITY - CH ADV HE WOULD AVER THAT THIS MEANS WE ARE CURRENTLY IN DEFAULT OF HIS REQUEST & WE ARE NOT

ENTITLED TO ENFORCE ANY PART OF THE AGRMNT - NOT DEMAND PYTM AND INT/CGRGES"

 

Can i ask for a copy of the recorded conversation or a transcript or will it be too old??

The actual recording is probably well lost/destroyed by now.. along with the original copy of your agreement.

 

Again the above is all from their system notes...any arguments i can use here ????.

 

8.1 Further the claimant confirms that all charges raised and levied to the defendant are valid and have been raised in accordance with

the prescribed terms and conditions that the defendant signed and agreed to be bound by.

 

So far i have been sent sveral copies of T&C's. all of them have shown charges for late payments to be £12. but we all know this

came about post 2006 where as the alleged agreemnt is from 1997. so i have never been given a copy of original T&C's. If they

persist with this i have statements that show charges of £25. so they are either the wrong T&C's or they charged me incorrectly

 

Yes, this is a good argument. If the t&cs they are producing are from 2006, then they cannot confirm that you ever saw those prior and at the time of inception.

 

 

 

11.2 The claimant will rely on the judgement of The Honourable Mr Simon Brown QC in the case of Basil Rankine V American Express and

others . 16th May 2008 . whereby the court expressed dissatisfaction in consumers running up debts and not paying for them by

exploiting undoubted technicalities in the consumer credit act 1974 (paragraph 8-9 inclusive of the judgement)

 

Is there anything in this judgement i need to be aware of?????

 

Funny how when i consumer seeks protection under the CCA they are exploiting technicalities but when the Creditor is using the

same laws to obtain a judgement it is acceptable??

 

I would be very upset and annoyed if I was being compared to the Rankines.. they were two people who were quite brazen about their actions.

 

 

Provided by vint1954

 

judgment-carey-v-hsbc.pdf

 

Be sure to note points: 95 - 105, 112, 116 and the concusions

 

 

I hope you receive more input in respect of this.

[citizenB]

 

 

http://www.consumeractiongroup.co.uk/forum/show-post/post-1807017.html

 

Don't always believe what you get from anyone involved in the Debt Industry (bankers, DCAs, CRAs etc). None are to be trusted.

 

They can get your signature from all sorts of places. Likewise, if there's money at stake, you just never know what they may try.

 

For example, if I had a copy of your Signature on any Document, plus a Copy of a Blank Application Form/Agreement, then I could easily mock something up that would look even more convincing than the CCA you have shown. Indeed, I'd blur it a little, add some smudges, a filing stamp or two, all to make it seem more realistic.

 

If I can do this, they can do this.

 

So, never assume it's 100% watertight unless you see the real thing that you signed in ink.

 

None of the above means they have not got it, it just means you must question what they send because what they send is a Copy. If that Copy looks like a Microfiche Copy, then doubt about the Original starts to creep in.

 

Even more doubt creeps in if they cannot produce the Original at all.

 

Why can't they produce it?

 

Even more doubt creeps in if they cannot produce any Document Management Audit Logs to track what happened to the Original.

 

Was there ever an Original? What was their Policy on Scanning, who Authorised the Scanning and when? Who carried out the Scan, how, when, and using what Software/Hardware? What was their Policy on Document Scan Archiving and Retention? Who Filed it and when did they File it? What was their Policy on Document Destruction? Who Authorised that the Original should be Shredded and when?

 

Or do they just allow anyone with a hang-over to shed any Document they feel like Shredding just to ease their upset tummy?

 

How and when was the recent Copy they sent you generated? Where is the Scan kept? Who has access to it? Where is the Log showing who recently had access to it to make the Copy they sent you in response to your CCA Request? You know when you requested the CCA and when you received the Copy, so it stands to reason that their Document Management Audit Log should show that someone booked a Copy between those Dates. If not, why not? Did they get the Window Cleaner to do it? Is their Customer Data Protection that lax?

 

If you see my point, if they pitch up in Court with a Copy, then you can hit them with all of the above.

 

Likewise, if they pitch up with a Witness in Court who wants to swear blind that the Copy is that of the Original, then you can put that Witness firmly on the spot by asking them all of the above issues...starting by asking them when, exactly, they started working for the bank!

 

You may find that the Witness was not even working there when the Scan was made and/or the Original was destroyed. You may find the Witness is not a Witness at all, just some banking drone they have produced willing to swear blind about something they actually know nothing whatsoever about.

 

This is why everyone must question Copies, especially in Court, where a Copy is just not the same as an Original, for all of the above reasons.

 

I hope this helps.

 

Cheers,

BRW

 

 

 

Judgment is part of enforcement.

 

http://www.consumeractiongroup.co.uk/forum/show-post/post-2413335.html

 

 

The following snippet is a good counter to the Rankine's judgment that judgment is not part of enforcement. It is taken courtesy of IGNM's post at :-

 

Having Rankine vs American Express used againsnt me in court - can anyone help?

 

The decision was made per incuriam (without consideration of the relevant authorities) There is a House of Lords decision which binds every court which was not considered. The case is Wilson & others v Secretary of State for trade and industry [2003] UKHL 40 at paragraph 31 of that judgment Lord Nicholls of Birkenhead says that entering Judgment is enforcement. Logically if entering judgment is enforcement then issuing proceedings must be. The Judge in Rankine was not addressed on the case of Wilson and therefore did not consider the authority.

 

 

A per incuriam decision is not binding and may be ignored

 

 

 

 

The following comments made by pt2537 on CAREY

 

 

 

 

 

 

Ok,

 

CAREY

 

Carey did nothing to deal with enforcement in my opinion, it primarily sought to clarify compliance with s78(1) which it did very very well.

 

If you read carey properly you can see that HHJ Waksman did not address the issue of "proof of proper execution" and he actually went out of his way to tell us that this judgment deals with s78 not the issue of actual enforcement

 

therefore, s78 is for information purposes only as clarified by Carey not for enforcement purposes, so a creditor CANNOT under carey enforce a reconstruction which simply complies with s78(1)

 

 

s78 was made clear in carey to be information purposes ONLY

 

 

Hope the above are useful

[CoventryCrusader]

Thank you very much... i ow you a big drink

 

frank

[citizenB]

Thank you very much... i ow you a big drink

 

frank

 

 

 

Suggest you keep your eye on the following thread.. I think you may find some of the answers you are looking for.

 

http://www.consumeractiongroup.co.uk/forum/legal-issues/244988-fluffystuffs-oh-hfc-20.html

 

Especially posts made over the last 3 days. Also, this judgement might be of use to you.

 

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

 

HTH

[CoventryCrusader]

OMFG

 

was up till 4.00 am this morning preparing a case summary and schedule of issues. All the great advice received lately really helped and i wanted to make sure i had covered all of the points raised....

 

was up for work at 6.00 am so i am sat at work having only slept 2 hours...(plenty of coffee and red bull required to make it through the day)

 

Posting off to the court along with the pre-trial check list later as it has to be with them by Monday....... if optima run true to form they will not meet this dead line of the judges orders as usual ...lol

 

Do you think i should send a copy to Optima to show them how strong my case is and how weak/poor theirs is hoping they will be 1 step closer to settling out of court? or will i just be showing my hand too early??? would appreciate some advice

[CoventryCrusader]

ref post # 36

 

Yes you guessed it Optima did not follow the judges orders. sent this letter off to the Judge this morning.....

 

....i hope it is ok

 

 

 

Claim No. XXXXXXXXX

 

 

 

 

For The Attention of The Court Manager

 

 

 

 

Dear Sir

 

 

Further to the order made by District Judge Kesterton sitting at the Coventry County Court on 21st April 2010 (copy attached)

 

 

I write to advise of the numerous failures by the claimants solicitors, Optima Legal, to comply with the said orders and would ask the court to act upon its own initiative and strike out their claim or at the very least impose a proportionate sanction upon them.

 

 

I have written to you previously to advise of two occasions where they have failed to comply and have summarised them below along with copies of my previous correspondence.

 

 

1)Each party shall give to the other party standard disclosure of documents by servicing a list of documents (by serving copy documents with a disclosure statement) by 4.00 p.m. On 17th May 2010

 

 

I wrote to the court on 24th May 2010 to advise Optima Legals failure to comply, (copy attached). The standard disclosure documents were not sent to me until 1st June 2010, some 15 days late.

 

 

2)The parties mutually disclose by 4.00 p.m. On 28th June 2010 the signed statements of all witnesses of fact on whose evidence they intend to rely together with any notices to rely on hearsay evidence.

 

 

I submitted my witness statement to Optima Legal in person and received a signed acknowledgement of receipt by an employee of their company. I did not receive from Optima Legal their witness statement until 2nd July 2010. This meant they had the benefit of my witness statement for a period of 4 days before making their own.

 

 

I have attached a copy of a letter I wrote to the court on 4th July 2010 which gives more detail.

 

 

Neither at the time of serving the witness statement or subsequently has Optima Legal issued any notice to rely on hearsay evidence, yet in their Pre-trial Check list they have indicated that they will not be calling any witnesses.

 

 

3)Each party must file a completed Pre-trial Check list by 4.00 p.m. On 26th July 2010. The parties must file with their Pre-trial Check list a succinct case summary and schedule of issues (which they must seek to agree)

 

 

I sent my Pre-trial Check list along with a case summary and schedule of issues to both the court and Optima Legal by 1st Class recorded mail on Thursday 22nd July 2010.

 

 

It would have crossed in the post with the letter I received from Optima Legal on Friday 23rd July 2010 (copy attached). In their letter they confirm they have enclosed the Pre-trial Check list, however they have not enclosed the case summary or schedule of issues.

 

 

I would consider that the Pre-trial Check list, the case summary and schedule of issues form the same bundle of documents and the omission of either is the same as omitting the whole.

 

 

This is the 3rd time that Optima legal have not complied with the judges orders. To not comply once is incompetent, to not comply twice is negligent and to not comply a third time is contemptible.

 

 

I would respectfully ask the court to refer to the following CPR 3.4 (2) (b) & ©. Practice Direction 28 , 2.3 , 2.4, 5.1, 5.4, & 6.1.

 

 

Power to strike out a statement of case

 

3.4

 

(1) In this rule and rule 3.5, reference to a statement of case includes reference to part of a statement of case.

(2) The court may strike out a statement of case if it appears to the court –

(a) that the statement of case discloses no reasonable grounds for bringing or defending the claim;

(b) that the statement of case is an abuse of the court’s process or is otherwise likely to obstruct the just disposal of the proceedings; or

© that there has been a failure to comply with a rule, practice direction or court order.

(3) When the court strikes out a statement of case it may make any consequential order it considers appropriate.

 

 

 

Practice Direction 28

Case Management

 

2.3

 

The court will however hold a hearing to give directions whenever it appears necessary or desirable to do so, and where this happens because of the default of a party or his legal representative it will usually impose a sanction.

2.4

 

The court may give directions at any hearing on the application of a party or on its own initiative.

Failure to comply with Case Management Directions

 

5.1

 

Where a party has failed to comply with a direction given by the court any other party may apply for an order to enforce compliance or for a sanction to be imposed or both of these.

5.4

 

(3) In particular the court will assess what steps each party should take to prepare the case for trial, direct that those steps are taken in the shortest possible time and impose a sanction for non-compliance. Such a sanction may, for example, deprive a party of the right to raise or contest an issue or to rely on evidence to which the direction relates.

 

 

 

Pre-trial Check Lists (listing questionnaires)

 

6.1

 

(3) When all the pre-trial check lists have been filed or when the time for filing them has expired and where a party has filed a pre-trial check list but another party has not done so, the file will be placed before a judge for his directions.

 

 

 

These powers may be exercised on an application by a party or on the courts own initiative and I respectfully ask that they act upon their own initiative in this matter.

 

 

If this is not acceptable, then please refer this letter and file to the Judge to highlight the claimants non-compliance and for further directions to be issued

 

 

 

 

 

 

Signed …........................ XXXXXXXXXXX (Defendant)

[pompeyfaith]

Hiya CC

 

Very good letter but may i add in that list of CPR they have not complied with include CPR PART 1 because if you have a read of it i beleive it is very relevant here i.e all parties must be on an equal footing

 

Something for you to consider and add

[CoventryCrusader]

Pompey

 

thanks......i re wrote the letter to include Part 1

 

Langster

 

you are right. i should hold back on what i put on here. it is difficult to get the balance right. wanting to put your comments/experiences for the benefit of others and not giving away too much

 

i know i should now be making a complaint to SRA but i want to give as much time to beating the action taken by optima. when this is over i will be taking it up with SRA

 

i keep all and every letter and yes the dates on letters are well and truly past the dates for orders.

 

I had to chuckle at the last letter from optima regarding the case summary and schedule of isues. it was dated 20th july and i received on 22nd... we were to agree the issues, yet this had to be done by 26th (with the weekend in between there was no time to do this )..MUPPETS

 

 

Lets see what the court/judge has to say about their actions

 

stay in touch

 

Frank

[CoventryCrusader]

My part 18 request met with the usaul response from optima.......... only gave part of the information and on some questions they refused to answer

 

please see my letter to them below which was posted last night

 

 

Dear Sir,

 

 

MBNA Europe Bank V Myself

 

 

I am in receipt of your letter 20th July 2010 and your response to my Part 18 request for further information.

 

 

You will have already received a copy of the Pre-trail check list, case summary and schedule of issues from myself.

 

 

As you quite rightly state that to comply with the order of District Judge Kesterton of 21st April 2010, each party must file a Pre-trail check list, a succinct case summary and schedule of issues. However, you have only supplied me with a copy of the pre-trail Check list. You have omitted the case summary and schedule of issues. Therefore you have failed to comply and I have written to the Judge to advise him of your failure.

 

 

This is the 3rd time you have failed to comply with his orders.

 

 

To fail once is incompetent, to fail twice is negligent but to fail a third time is contemptible.

 

 

Also, your response to my request for further information is totally inadequate and I strongly advise you to supply the information as per my original request

 

 

Request

 

 

1. A copy of all internal system notes held by the claimant in relation to the defendant from November 1997 up to and including 14th July 2010

 

 

Your Response

 

 

1. A copy of the claimants system notes has already been provided to the defendant, however, we enclose herewith a further copy of the claimants system notes.

 

 

Received

System notes Comments pages 0001 to 0030, 21/12/2004 to 05/10/2009.

 

 

Comments

 

 

You have not complied with my request. Can you please supply the system notes from November 1997 to 21/12/2004 and the system notes from 05/10/2009 up to 14/07/2010.

 

 

If you do not have any system notes for these dates can you please confirm this in writing.

 

 

Also it would appear that you are attempting to suppress evidence by the omission of entries on the following pages/dates

 

 

Page 28 23/07/09

Page 29 23/07/09

 

 

Request

 

 

2. In reference to MBNA system note of 15/12/2008 Operator identified as CMET1D

 

a) Please confirm their job title on that date , their date of commencement of employment with MBNA and also their date of leaving employment with MBNA

 

 

b) From their personal training log, please confirm all training courses attended and the content of these training courses in relation to the Consumer Credit Act 1974 and in particular S77to S79 of the Act

 

 

Your Response

 

 

2.a) The Claimant questions the relevance . The details sought are private and confidential and have no consequence to the defendant.

 

b) The Claimants response is as stated in 2 a)

 

 

Comments

 

 

The claimant is seeking to rely upon the system notes made by this Operator so it is only fair that they confirm the Operators credibility in being able to make a judgement on what is a “Good” App in relation to S77 to 79 of the Consumer Credit Act.

 

 

Again I request that you supply this information

 

 

Request

 

 

3. A copy of MBNA's Policy that was in operation in November 1997 for Document scanning, Archiving and Retention

 

Your Response

 

 

3. The Claimant questions the relevance of this and invites the Defendant to clarify. For the avoidance of doubt , the Court is refered to the evidence already provided by the claimant in relation to the Defendants Agreement, in the witness statement of Dianne Powell.

 

 

Request

 

 

4. A copy of MBNA's policy that was in operation in November 1997 for Document Destruction

 

 

Your Response

 

 

4. Again , we question the relevance of it as stated above

 

 

Comments

 

 

Dianne Powell's witness statement conflicts with the two witness statements given by Nageena Kauser of optima Legal and she in turn contradicts herself also.

 

 

The first witness statement of 5th January 2010 in which she states that “the agreement was scanned onto the claimants computer system and then destroyed”.

 

 

The second witness statement of 21st January 2010 in which she states “The claimants Agreements are stored in a separate department. As the storage company was unable to to provide a copy of the original agreement......”

 

 

For the avoidance of any doubt and to clarify the true course of events in relation to an alleged executed Agreement both the Defendant and the court should be supplied with the information as requested in 3 & 4

 

 

Request

 

 

5. A copy of all and any Document Management Audit Logs in relation to the alleged Original Executed Credit Agreement including but not limited to

 

 

a) Who Authorised the scanning

 

 

b) When was the document scanned

 

 

c) What software/hardware was used to carry out the scan

 

 

d) Who authorised that the original should be shredded

 

 

Response

 

 

5. a) – d) Again we question the relevance of this and the claimant invites the defendant to clarify this

 

 

Comments

 

 

I would refer the claimant to The UK Civil Evidence Act 1995

 

 

“.........The key to getting electronic copy documents accepted in court will be the quality of the audit trail from the original through to the copy submitted in court. The British Standards Institute (BSI) has published a Code of Practice, Legal Admissibility of Information Stored on Electronic Document Management Systems.....”

Furthermore

 

 

The issue of Legal Admissibility is at the core of records management principles. An organisation needs to be able to prove (to a court of law or some other statutory body) that the contents of a particular document or data file created or existing within an Electronic Document Management System have not changed since the time of storage. If the data file is an electronically stored image of an original paper document, an organisation must be able to prove that the electronic image is a true representation of the original. Proving the authenticity of electronically stored documents is crucial to their admissibility in a court.

In England and Wales, the main statute governing the admissibility of documents is the Civil Evidence Act 1995. This Act resolved many of the outstanding legal difficulties that had arisen through the use of computers for information storage. The Civil Evidence Act shifted the argument from legal admissibility to evidential weight or value. It makes it easier to prove the authenticity of documents, by producing the original or a copy, irrespective of the number of removes between the original and the copy and irrespective of whether or not the document is a paper one or an electronic one. The court needs to be satisfied as to the authenticity of the copy, and therefore an organisation needs to be able to demonstrate that it has administrative procedures that will satisfy the court as to a document's authenticity.

Irrespective of issues of legal admissibility or evidential weight, an organisation should ensure that the electronic storage of information complies at all times with best practice. As well as needing to meet legal requirements an organisation has business and ethical reasons for ensuring that the information it controls is not mishandled.

An organisation needs to demonstrate that it complies with the five principles of information management on which the Code is based. These principles are encapsulated into a code of practice - the “Code of Practice for Legal Admissibility and Evidential Weight for Information Stored Electronically” (BIP0008) published by the British Standards Institute. Compliance with BIP0008 will ensure that the organisation manages its information according to best practice, thereby maximising the chance of electronic records being satisfactorily authenticated.

An organisation will need to have in place the following five information management components:

 

• 1. Representation of Information (i.e. an information management policy)

• 2. A Duty of Care

• 3. Business Procedures and Processes

• 4. Enabling Technologies

• 5. Audit Trails

 

 

 

 

 

 

 

 

 

 

 

Therefore the information is relevant and is not disproportionate. Your actions in with holding this information are putting me at a distinct advantage and I would aver that you are being wilfully obstructive.

 

 

The above information was originally requested from you on 14th July 2010 and the deadline for reply was 28th July. I am prepared to offer you an extension to this date by a further 14 days. If I do not receive the requested information with in that time I will advise the Judge of your behaviour

 

 

 

 

 

 

 

 

 

 

Yours Faithfully

[pompeyfaith]

Excuse my french, but what a lying b****** This Mr L is.

 

Langster do you know why he left Optima Or are you still trying to find out.

 

Getting late now but in the morning I will have a good slow read of all your latests postings.

 

There is quiet a bit here I need to forward to the SRA.

 

Excellent work Langster.

 

PF

[pompeyfaith]

Thanks Pompey. I think I know why he left but I can't share this with anybody just yet.

 

I crave your patience!

 

Thats ok all in good time fully understood.

[CoventryCrusader]

Few things have happened over the last few days....

 

Finally Optima sent a copy of their case summary and schedule of issues. dated 2 days after the time as per the judges order and recievd by me another 2 days after. Presuming they arrived with the court at the same tim . in total 4 days late. ....

 

Being a L.I.P i wrote up my case summary and included the issues as i saw them, i did not list them as a seperate document and optima are making this into a real issue.

 

Also in optimas case summary (as Usual) they have miss quoted my previous correspondence and re-written it to say that i have made an admission of recieving a TRUE COPY OF THE AGREEMENT. They are then stating that my credibility is in question

 

So todays jobs are

 

1 List the schedule of issue seperately and send to the court with a letter of apology.

2 send above to optima after all the judge said we were to agree the issues, this would require both parties to communicate to agree

3 letter to optima including all the relevant previous correspondence to show them that they are wrong in the statement they have put in their case summary regarding my credibility

4 Copy of this letter to the court also

 

Busy day today then

 

Frank

[CoventryCrusader]

above done last night...up till 2.00 am doing so

 

i feel like one of those shift workers , just as well i can get by on 4 hours sleep a night

 

lets see what the post man brings next

[CoventryCrusader]

so . The judges order of 21st April

 

optima missed the deadline for disclosure of documents by 15 days..wrote to the court

missed the deadline for witness statements by 4 days (had the benefit of mine for those 4 days). wrote to the court

missed the deadline for submission for case summary and schedule of issues by 4 days also....wrote to the court

 

was feeling fed up of their constant missing of deadlines, i had managed to meet all of mine.

 

Phoned the court today and at first i was told that they would not put anything before the judge unless it was on a form and i paid a 40 fee. Was not happy and asked to speak to the court manager as the CPR said it could be on an order or the court could act on its own initiative. after a 5 minute conversation the court manager looked at my last letter..."you seem to be being put at a great disadvantage here Mr Sxxxxx. I am not happy with their behaviour, i will in this instance refer your file to the judge"

 

I hope the judge is as frustrated as i am

[CoventryCrusader]

sorry , did i say i phoned the court on friday......should have been wriiten as wednesday, 2 days earlier

 

silly me, i did not log on to the site for a few days.

[CoventryCrusader]

lol...i thought you might like that

 

decided i would hve some fun with my readers from optima. i bit of missinformation now and then. not let them know what im thinking or which way i am going.

 

some of my questions and statements may be relevent and some may be red herrings ..

 

its all part of the game

 

however , i would appreciate some input on this

 

im confused . com

 

background...

 

15 december 2008 MBNA send a "copy of an application form" as things progres they hav ethen sent the following

 

1st witness statement said "agreements are scanned onto MBNA system then destroyed"

 

2nd witness statement said "they are stored off site and mine can not be retreived so sent a reconstituted one instead"

 

3rd witness statement says " they found the original, copied it and sent a copy to me, but now they have lost it again"

 

i made a part 18 request asking for a copy of their process document from the time of the alleged agreement. also details of their policy of putting on to micro fiche, , audit logs etc

 

they have said that my request is irrelevant and will not send

 

also they have tried to explain that all three statements are correct in the attached letter

 

\well im confused . com are you?

 

can any one make sense of this ?

[CoventryCrusader]

Langster.

 

you should have gone to "specsavers"

 

i will post it up again tonight

 

Frank

[Dotty50]

Langster.

 

you should have gone to "specsavers"

 

i will post it up again tonight

 

Frank

 

I did, but I can't read it either!

[CoventryCrusader]

did they copy the original then destroy the original and keep the copy?

 

did they copy the original then store the original off site and store the copy?

 

did they copy the original onto micro fiche , then destroy the original?

 

who knows

 

The fact of the matter is they can not produce the original in court.....or a copy of the original

 

they want the judge to enforce the agreement based on a reconstituted agreement and T&C's that are post 2006