Amended Particulars of Claim

[toymaker1]

Can anyone advise me regarding the following.

 

I am preparing an amended defence as ordered at the allocation hearing - basically the judge wants to see a lot more detail of my case.

As part of that I have pointed out numerous errors in Cabot Particulars of Claim such as not signing the statement of truth, rolling two agreements into one with no breakdown, not complying with CPR 16.4 etc etc.

It seems to me that what I am doing is showing the claimant exactly what he needs to do to put his statement of case into perfect order in time for the trial.

When I serve my amended defence Cabot will simply apply to amend their statement of case and remove all the errors.

That does not seem quite right to me.

Is there any way I can ensure they are held to account for their gross incompetence, as professionals, in preparing their statement of case.

 

Hope that makes sense.

Thanks for any advice.

[Tingy]

Oh dear! You were warned. The best I can advise is to go back to your original thread, look at the suggestions for a sensible defence, then start building it up from there.

[nicklea]

As tingy says, oh dear oh dear oh dear.

 

To be honest with you toymaker, you are still barking up the wrong tree. I know that you probably don't want to hear this from me but it will just distract from your defence if you spend lots of time trying to 'hold them to account' for any errors in their statement of claim.

 

Generally, courts do allow statements of claim to be amended.

 

This happens in even the very biggest of cases. You may have heard that there is a very big case between two Russian oligarchs that's been going on for years - Berezovsky and Abramovich - yes, the one that owns Chelsea. Well, the High Court held last year that it was perfectly okay for Berezovsky to alter his claim as long as he didn't introduce any new causes of action.

 

So if the High Court is perfectly happy to accept an amended claim in a case that's worth 3.5 billion usd then I'm sure that the local county court will be ok with them amending the claim in your case.

[dx100uk]

this thread?

 

http://www.consumeractiongroup.co.uk/forum/showthread.php?288036-DCA-Goldfish-amp-Egg-combined-the-2-debts-into-one-alleged-sum-of-money./page2

 

dx

[spamheed]

I basically had exactly the same thing happen.

 

Cabot/Morgan brought a claim against me using POC which to be honest was pretty insulting and completely laughable, not even the right account number, no breakdown, nothing to prove ownership and/or liability. I sought and obtained from the court an order for disclosure of all documents that they would be relying on in court.

 

The judge ordered them to replead their claim in full with an amended POC, they went ahead and used my holding defence to completely rewrite their POC, shooting down the salient points of my initial holding defence one by one. I quickly realised what you have stated above, they do not follow the rules and the courts go along with it, complaints of behavioural misdeeds carry no weight with the courts at all.

 

It is about what laws they have breached and where the terms and conditions state that what they have done is not allowed. a defence needs to be based on what they include in their POC and supporting documents, focussing on other matters will only irritate the judge and incline him/her against you.

 

I also learned that the judge doesn't actually know the law inside out and needs to have all breaches in law or statute clearly identified by both parties, I also learned that then comes the witness statement where you get to state your version of events and then (if it goes that far) I realised that you might have to argue your case before the judge and beat someone who argues before judges on a professional basis

 

Equally though, I was also allowed to rewrite my defence and although the main points of my defence were sound I realised the above and that I had to use a firm of solicitors to rewrite my defence otherwise they would have simply used the system against me and bulldozered me in court.

[toymaker1]

I basically had exactly the same thing happen.

 

Cabot/Morgan brought a claim against me using POC which to be honest was pretty insulting and completely laughable, not even the right account number, no breakdown, nothing to prove ownership and/or liability. I sought and obtained from the court an order for disclosure of all documents that they would be relying on in court.

 

The judge ordered them to replead their claim in full with an amended POC, they went ahead and used my holding defence to completely rewrite their POC, shooting down the salient points of my initial holding defence one by one. I quickly realised what you have stated above, they do not follow the rules and the courts go along with it, complaints of behavioural misdeeds carry no weight with the courts at all.

 

It is about what laws they have breached and where the terms and conditions state that what they have done is not allowed. a defence needs to be based on what they include in their POC and supporting documents, focussing on other matters will only irritate the judge and incline him/her against you.

 

I also learned that the judge doesn't actually know the law inside out and needs to have all breaches in law or statute clearly identified by both parties, I also learned that then comes the witness statement where you get to state your version of events and then (if it goes that far) I realised that you might have to argue your case before the judge and beat someone who argues before judges on a professional basis

 

Equally though, I was also allowed to rewrite my defence and although the main points of my defence were sound I realised the above and that I had to use a firm of solicitors to rewrite my defence otherwise they would have simply used the system against me and bulldozered me in court.

 

Yes, that is very useful.

After spending hours totally taking apart their statement of case, I realised that actually it would only help them identify what they must correct - which they would be permitted by the court to do, and it would just mean a delay in the proceedings with a lot of extra work for me.

Nevertheless it has been a very useful exercise for me.

In my case, no matter how bad their POC is that is not at the heart of the issues in my specific case.

I have decided to push unfairness under S140A.

I want to do it without actually making a counterclaim if possible, as that again makes more complications for me.

I want to present my case in such a way that the judge will make the appropriate orders, for example he might decide to make Egg and Goldfish parties to the proceedings, or he might make an order under 140B of his own volition, or he might just find in my favour, whatever.

An example of my thinking is that at the allocation hearing, based on what I said in about 2 minutes of unprepared talking, the judge ordered the Claimant to provide witnesses from Egg and Goldfish at the trial. - perfect from my point of view, I want them to appear in the court to be examined on their actions. and I did not have to apply, pay fees do the technical stuff etc etc.

[spamheed]

perfect from my point of view, I want them to appear in the court to be examined on their actions. and I did not have to apply, pay fees do the technical stuff etc etc.

 

But they wont actually appear in court, the claimants will simply provide the court with statements verifying the actions of the claimant and blow your defence away. Relying on a potential oration or cross examination which might never happen in order to win your case IMHO is not a very safe option.

 

Whilst unfairness featured in my defence, my own case was discontinued on the back of a good strong defence which clearly identified breaches and inconsistencies with their claim, a well written Witness Statement and some cold hard documentary evidence in support of the defence and WS which in itself demonstrated and proved the cited unfairness.

 

The judge is giving you ample opportunity to build a defence which they will have to answer and it is that defence and the substance of their claim on which the judgement will be decided. A lot of cases have been resolved on the basis of "You borrowed it, now pay it back"

 

I am not going to attempt to identify any positives or negatives in your defence as you have made it patently clear in your other post that you believe your stance to be strong and correct.

 

I wish you luck with this one

Edited January 20, 2011 by spamheed

[toymaker1]

But they wont actually appear in court, the claimants will simply provide the court with statements verifying the actions of the claimant and blow your defence away.

 

Thanks for that info spamheed. It is very useful for me to know that they might not appear in court, so I can prepare for that eventuality.

On the other hand, what do you make of this?

Rule 32.2 "(1)The general rule is that any fact which needs to be proved by the evidence of witnesses is to be proved -

(a) at trial, by their oral evidence given in public;"

 

and Rule 32.5 "(1)(a) If a party has served a witness statement; and

(b) he wishes to rely at trial on the evidence of the witness who made the statement,

he must call the witness to give oral evidence unless the court orders otherwise"

 

At the allocation hearing the judge specifically ordered the Claimant to have a witness from Egg and a witness from Goldfish at the trial.

[spamheed]

he must call the witness to give oral evidence unless the court orders otherwise"

 

At the allocation hearing the judge specifically ordered the Claimant to have a witness from Egg and a witness from Goldfish at the trial.

 

I appreciate your point entirely and I am suire that you are 100% correct, and I am certainly not going to become involved in a "this is what it says here so you are wrong" argument, You can have it your way, I'm simply not going to argue with you.

 

I'm merely pointing out the situation as i see it based on my own experiences and observatuions, please feel free to just ignore anything I say

 

As you have quoted above, it is clearly down to the whim of the judge whether written statements are acceptable or whether they will insist on personal representation which in itself is not arguable in law as the law clearly states its discretionary and entirely down to the judge lottery

 

Anyone who has felt the wrong side of the judge lottery will warn you, assume nothing is in your favour and be as well prepared as you can, because there is no guarantee that the judge listed will even be present on the day, but as I have said earlier, it seems evident that they are offering you every opportunity with your case, if you choose not to take such opportunities then it cannot cast any doubts over the court procedings or the judge presiding.

 

Since you are still a distance from the court steps, I would expect some form of witness statements to be produced by the Claimant in an attempt to satisfy the order, the claimant will no doubt state that they are doing so initially to avoid unecessary costs being incurred.

 

it will then be down to the judge to decide whether such statements will indeed be satisfactory or whether he/she will insist on witnisses being physically present. It is not carved in stone or set in statute, it can be applied or not at the discretion of the courts.

[toymaker1]

I appreciate your point entirely and I am suire that you are 100% correct, and I am certainly not going to become involved in a "this is what it says here so you are wrong" argument, You can have it your way, I'm simply not going to argue with you.

 

I'm merely pointing out the situation as i see it based on my own experiences and observatuions, please feel free to just ignore anything I say

 

As you have quoted above, it is clearly down to the whim of the judge whether written statements are acceptable or whether they will insist on personal representation which in itself is not arguable in law as the law clearly states its discretionary and entirely down to the judge lottery

 

Anyone who has felt the wrong side of the judge lottery will warn you, assume nothing is in your favour and be as well prepared as you can, because there is no guarantee that the judge listed will even be present on the day, but as I have said earlier, it seems evident that they are offering you every opportunity with your case, if you choose not to take such opportunities then it cannot cast any doubts over the court procedings or the judge presiding.

 

Since you are still a distance from the court steps, I would expect some form of witness statements to be produced by the Claimant in an attempt to satisfy the order, the claimant will no doubt state that they are doing so initially to avoid unecessary costs being incurred.

 

it will then be down to the judge to decide whether such statements will indeed be satisfactory or whether he/she will insist on witnisses being physically present. It is not carved in stone or set in statute, it can be applied or not at the discretion of the courts.

 

Thanks for that. I take your point entirely, and I am not naive enough to think the judge might be on my side, in fact, I am taking the position that he/she probably doesn't like litigants in person, and finds them tiresome.

Nevertheless, at the allocation hearing the judge was very firm when ordering the claimant to provide witness from Egg and Goldfish at the trial. - it seemed to take the Claimants solicitor by surprise. - she rushed out of the court trying to avoid talking to me, where a few minutes earlier outside the court she had been rather patronising.

If i found out that they only intend to provide witness statements, I suppose I could always apply for Egg and Goldfish to be made parties to the proceedings.

[spamheed]

If i found out that they only intend to provide witness statements, I suppose I could always apply for Egg and Goldfish to be made parties to the proceedings.

 

 

And if this is refused by the judge then any defence based simply on unfairness fails

[toymaker1]

And if this is refused by the judge then any defence based simply on unfairness fails

 

I take your point, that the judge can refuse to have a party added, but suppose, as in my own case, that party is at the very centre of the issues (which is why the judge ordered them to appear as witness at the trial), and taking into account Rule 19.2 (2) "The court may order a person to be added as a new party if - (a) it is desirable to add the new party so that the court can resolve all the matters in dispute in the proce3edings; or

(b) there is an issue involving the new party and and existing party which is connected to the matters in dispute in the proceedings, and it is desirable to add the new party so that the court can resolve that issue."

 

If there was an issue which could only be clarified by the new party, because the evidence appeared to show they were central to that issue, and the whole issue arose because of their actions, then surely a judge would not just say that doesn't matter.?

 

Also, maybe I am not understanding your point, but I dont see why just because there is no party added, a defence of unfairness would fail.

If the evidence clearly showed that the Claimant has acted unfairly within the meaning of S140A, then that would not just be ignored by the judge?

[spamheed]

The key word in your response is "Suppose"

 

If you are going to build your defence on what you hope, suppose, or assume about the mood and manner of the judge, then good luck to you, as I said I am not going to get into a "it says this here so you are wrong" argument, so please..... I know what the rules say should happen, what everyone is trying to tell you is that relying on the CPR and OFT guidelines as a major part of your defence is not the wisest move, but hey, what do they know

 

"then surely a judge would not just say that doesn't matter.? " Yes they will, they do and they have done exactly this, numerous times, in the face of defences far more solid than your own.

 

But as I said, I was just saying it as I saw it and have no desire to get into a pi$$ing competition, if you believe you're right then obviously you are and anyone who says anything contrary to that must obviously be wrong. If you look closely to line 1 of post 5.

 

Of course the judge is going to insist on the personal represenatation of witnesses and publicly fly in the face of a reasonably desire to reduce costs, why wouldn't they?

It is beyond any doubt that the same judge will be at your trail, it is impossible that something could cause them not to be there.

And it goes without reason that the judge will obviously go along with your arguments regarding the flaws in their statements.

 

 

I wish I'd been as sure as you are about what the judge is and isn't going to do

[toymaker1]

The key word in your response is "Suppose"

 

If you are going to build your defence on what you hope, suppose, or assume about the mood and manner of the judge, then good luck to you, as I said I am not going to get into a "it says this here so you are wrong" argument, so please..... I know what the rules say should happen, what everyone is trying to tell you is that relying on the CPR and OFT guidelines as a major part of your defence is not the wisest move, but hey, what do they know

 

"then surely a judge would not just say that doesn't matter.? " Yes they will, they do and they have done exactly this, numerous times, in the face of defences far more solid than your own.

 

But as I said, I was just saying it as I saw it and have no desire to get into a pi$$ing competition, if you believe you're right then obviously you are and anyone who says anything contrary to that must obviously be wrong. If you look closely to line 1 of post 5.

 

Of course the judge is going to insist on the personal represenatation of witnesses and publicly fly in the face of a reasonably desire to reduce costs, why wouldn't they?

It is beyond any doubt that the same judge will be at your trail, it is impossible that something could cause them not to be there.

And it goes without reason that the judge will obviously go along with your arguments regarding the flaws in their statements.

 

 

I wish I'd been as sure as you are about what the judge is and isn't going to do

 

I'm obviously an optimist.

[harrassed senior]

Unfortunately, as already said, sometimes 'the law' and 'the rules' have very little meaning to a Judge. We have a District Judge in our small catchment area and if he takes a dislike to you, or is 'buddies' with whoever is acting for the plaintiff then he will dissreagard proceedure and all else. No, it shouldn't happen, but as I have discovered in life, life itself is not fair, and we can rant and rave all we will, at the end of the day it is us, the underdog who suffers from stress and goes on to have a heart attack.

 

[toymaker1]

Unfortunately, as already said, sometimes 'the law' and 'the rules' have very little meaning to a Judge. We have a District Judge in our small catchment area and if he takes a dislike to you, or is 'buddies' with whoever is acting for the plaintiff then he will dissreagard proceedure and all else. No, it shouldn't happen, but as I have discovered in life, life itself is not fair, and we can rant and rave all we will, at the end of the day it is us, the underdog who suffers from stress and goes on to have a heart attack.

 

 

I understand what you are saying, and you are right, but on the other hand you cant be totally defeatist. If you have clear written evidence that you have been totally stitched up by a creditor, then you have to do something about it.

[nicklea]

But from everything you've told us, you don't have this evidence.

[spamheed]

I understand what you are saying, and you are right, but on the other hand you cant be totally defeatist. If you have clear written evidence that you have been totally stitched up by a creditor, then you have to do something about it.

 

What evidence is this? you have mentioned no evidence previously

 

It isn't about being an optimist or a pessimist, it's about knowing the rules of the game and building a defence that holds water, and that has a realistic chance, hoping the judge will act in a certain manner, or will believe you over the professional barrister that the other side send is verging on judicial suicide.

 

Don't forget, it was one of these honourable judges that ruled that reproductions of agreements are acceptable for s77/78 requests and many barristers have twisted this to the point that they have managed to pursuade judges that this also applies to trail as well. Judgements have been handed out against people who nevere even had the debt, because of the alleged incompetence of the judiciary which is not only wrong it is entirely against their own rules

 

This is certainly the message that I am failing to get across to you, it isn't enough to build a one dimensional defence based on reliance of their misdeeds, they will simply provide documents which prove that a national company like theirs would never have acted in the manner you claim, then they will provide statements from the OC stating the same and whoops - there goes your defence because it's your word against theirs.

 

You need to place a seed of doubt in the mind of the judge, enough to make them side with the defence.