Debenhams Store Card PPI ***Urgent Help Required*******

[gezwee]

Hi Kate

 

It forms part of the Automatic Orders Pilot Scheme [part 51], won't necessarily mean it gets struck out but the 7 day notices go out regardless. Think it was an initiative to unclog the system a little from the likes of BC who hedge their bets on no AoS prior to having to stump up the hearing fee.

 

Gez

[gezwee]

Fingers and toes all crossed for ya

 

Gez

[gezwee]

Hi Kate

 

Are there any reference to disclosure within w/s not previously before the court, ie: anything mentioned not already served on the other side? If you want to rely on data make sure they have copies at least a week prior to hearing.

 

Subbing = subscribing........ usually means someone's taken an interest

 

Gez

[gezwee]

Was the order to file and serve or file only, their supp w/s notes file but no mention of service?

 

As for the rest of it, run a copy off, make notes against each para and start to substantiate contrary position to each point raised....... once you have everything in order draft yourself a skel for the hearing.

 

Gez

[gezwee]

Kate

 

I'm pretty sure the dj will allow your w/s, can't see how late service was prejudicial to the other party. It appears to have had the opposite effect and allowed them to raise additional arguments. They're not exactly sure of the position either........ if they were they wouldn't have served supp in response.

 

You can apply for relief from sanction [cpr 3.9], even if a little late in the day. It may offer you a little added protection if things don't look like they're going your way at the hearing.

 

As far as points within their w/s.......... take a deep breath....... and break down each argument to the position you understand it to be, look for the logical counter argument/rebuttal [caselaw, S.I etc].

 

Once you're happy that you've understood their position, and have a sound response to each, build it into your skel for the hearing so you have a clear point of reference for the day.

 

Gez

[gezwee]

Hi Kate

 

Draft a letter to the court manager in the morning [cc the claimant sols], go for something along the lines of;

 

 

Dear sir

 

Case number .........../ ................ v...............

 

Please would you file and place before the district judge presiding the above case.

 

As a litigant in person it is admitted that confusion resultant from order of [date] led to a delay in exchange of witness statement by some 24 hours; the date of delivery being confused with date of postal service.

 

I apologise profusely to the court and to claimant party to case and would request that relief from sanctions are applied pursuant to CPR3.9 & 3.10

 

The defendant assures the court that the delay was without intent, and further avers that it has complied with all previous orders within a timely manner.

 

I believe that the delay has caused the claimant no prejudice, having allowed it to further expand upon it's case, and narrow the issues within its subsequent supplemental witness statement.

 

Having receipted the claimants rebuttal witness statement some 7 days prior to hearing date, it is further avered that the trial date [as allocated] is not compromised by want of the shortest of periods of service delay.

 

I would be grateful to the courts indulgence in applying its case management powers of discretion in this matter, allowing the case to continue with all served witness statements.

 

Regards

 

Don't forget to verify with a statement of truth

Edited February 24, 2012 by gezwee

[gezwee]

Oh and 3.9/3.10 are here

 

http://www.justice.gov.uk/guidance/courts-and-tribunals/courts/procedure-rules/civil/contents/parts/part03.htm#IDAFZ1HC

 

Gez

[gezwee]

Hi Kate

 

Include everything you believe is core to your case. They've probably avoided drawing argument to certain points within your w/s as it could be damaging to their case.

 

Without reading back through all your thread can you remind me which points they declined to respond to or draw into argument?

 

Gez

[gezwee]

Hi Kate

 

Glad to see you've cheered up a bit

 

Every point they don't want you to play, argue it........ it's fairly common for the sols to try to direct the judge, don't let them get away with it. If they've declined to fully comply with DPA and further decline to answer any questions regarding accuracy of balance of account make sure the dj is aware of why this is prejudicial to a fair hearing.

 

If there's 5 years of account data missing [and assuming you always operated the account in a negative balance], where did they conjure the starting balance from?

 

It may be worthwhile calculating all debits/credits to account for the period they have provided data..... if the nett balance is in your favour, or writes off the balance they plead, its a counter position to add to your skel..... if it doesn't work in your favour, do as they do, and ignore it

 

Looks like you have plenty of argument to compile yet

 

Gez

[gezwee]

I have done as Gez suggested and checked the debits & credits from the statements they have produced and the net balance is a debit of £794.31. Looking on the negative side should i loose can i argue what is genuinely owed based on their lack of statements and reduce it to this figure?? I just want to ensure i am prepared for the worst!.

 

Hi Kate

 

Not sure if it was clear from my previous post, this was for a calculation based on £00.00 at start date of account history as presented. Any interest encumbered would only be effective on the debit sums from that date. Did you put everything into a spready and run the calcs on the applicable int rates?

 

If it the account operates at 28 days free of interest application from transaction date then build the int free period in as well

 

I'd echo everything that Cb said, if we as consumers were treated fairly there'd never be a need for litigation

 

Gez

[gezwee]

Hi Kate

 

Hmmmm...... not an easy one to explain the calcs on here, pretty sure there's a spreadsheet template in the library section to suit but if you think you might struggle give me a shout. Alternatively, can you type up a list of all transactions inc dates [debit & credit] and applicable interest rates for the period. If you can get something on here later today or tomorrow I'll do a spready for you and attach it back on here.

 

Gez

[gezwee]

Duplicates are OK [assuming accurate], the missing periods of statement are a bit of a concern though...... what on earth are they basing their claim on?

 

They'll need to rely on hearsay evidence to act as witness to missing data...... which of course you'll want to question - the first question of which would be whether they could confirm under oath that the balance wasn't fully discharged during any of the missing data periods.

 

You really need to bring this to the dj's attention as soon as you can get a word in.

 

If it wasn't so late in the day I think I'd be inviting them to discontinue. DO NOT let them hand you any missing docs at the hearing until you're all seated with the dj. If they try it on in the waiting room tell them you're only prepared to discuss your costs and their discontinuance. If they have additional data to disclose they can wait and ask the permission of the dj. If you're not happy with it, and think they're trying to ambush you, ask the dj to deny them relief and/or seek an adjournment.

 

Gez

[gezwee]

Hi Kate

 

Not really going to be much use with the data you have, I believe it's in your interest to bring it to the dj's attention as early in proceedings as possible.

 

They effectively have no basis to their claim and it brings the value of your counter into question without relief to data.

 

What is the total value [as pleaded] to theirs and your counter?

 

Gez

[gezwee]

Aha...... that might explain their w/s then - you've probably got a snot nosed paralegal appointed. Read everything in Queen's and thinks bullying rather than compromise is the order of the day. Pity there's not more time to speak to a partner instead of this chimp.

 

Stick to your guns at the hearing, if they deny relief from disclosure you want [demand] relief from same.

 

Do you want me to draft you a Tomlin to hand to them in the waiting room?

 

Gez

[gezwee]

Relief in respect of your case .......errrrrr, I'll try

 

You seek access to disclosure of statements to accurately form your poc, they deny access....... by denying access they deny your ability to claim relief [counter claim]

 

They seek to claim £xxxx.xx but deny access to material evidence [statements again]........ denied relief to mitigate in defence

 

They can't have it both ways.

 

Gez

[gezwee]

It seems i am uncovering all sorts of things!!

 

Another point i have just uncovered. In their original reply and defence to counterclaim "Exhibit RDC2" they enclosed a copy of account cover brochure from 2005 and have directed me to section 7 entitled "how to cancel", The copy is dated 08/05, some 7 years after taking out the card. I pointed this out in my WS, and in their SUPP WS has apologised for this and enclosed a copy of the account cover from 1998. Only one small problem, section 7 of this one is entitled "premiums". The detail about covering is at the end of S6, and not well highlighted in my opinion. Can i argue this point also that this is actually at the end of a section and not clearly visible??

 

Yes

[gezwee]

Page #1....... you'll need to fill in the blanks, and sort out the dodgy formatting on here

 

IN THE ………………… COURT CLAIMNO: ……………..

BETWEEN:-

………………………..

Claimant

-and-

………………………….

Defendant

__________________________________________

TOMLIN ORDER

__________________________________________

UPON THE PARTIES having agreed terms:-

BY CONSENT IT IS HEREBYORDERED THAT:-

1. All proceedings are stayed on the terms setout in the schedule hereto for the purposes of which the parties shall be atliberty to apply.

2. There shall be no order as to costs.

Dated this day of February2012

We hereby consent to an Order in the above terms.

………………………………………………. …………………………………………………..

The Claimant The Defendant

[gezwee]

Page #2 [the schedule]...... poo formatting again, lol

 

Confidentiallity..... your choice whether to include, they may appreciate the gesture though

 

 

SCHEDULE

1. The Claimant agrees to take no action in relationto agreement …………. [and to write off the balances set out in its accounts inrelation to the same].

2. TheClaimant shall make no reference to any Credit Reference Agency in respect of agreement……….. and shall correct any entries that have been made to date.

3. The Claimantshall make one [1] single payment of £3728.81 to the Defendant in respect ofPPI premiums and interest applied thereon.

4. The parties heretoacknowledge that the provisions in this Schedule and Order are confidential tothe parties and their legal advisers and each party undertakes in favour of theother not to disclose any of these provisions to any person not a party to thisschedule and order. It is agreed that neither party shall be in breach of thisconfidentiality provision by disclosing any of the terms hereof if compelled todo so by any Court or Authority of competent jurisdiction.

[gezwee]

Lol, they can believe what they like....... whilst you can't force them to bring Lord Lucan riding Shergar to the hearing [if they don't have it, they don't have it.... end of] you can question/test the verasity of their particulars.

 

Gez

[gezwee]

Skels...... really depends on the dj on the day, either he/she will allow [take 3 copies] as it makes his/her life easier if it narrows the issues and identifies caselaw applicable....... or he/she won't.

 

Can't see why it wouldn't be allowed as its primarily to assist the court, if he/she takes umbrage to it just use it as a reference tool on the day.

 

Here's an old post borrowed from another thread..... may help explain:

 

Skeleton argument

 

A skeleton argument must contain a numbered list of the points which you wish to make. These should both define and confine the areas of controversy. Each point should be stated as concisely as the nature of the case allows.

 

A numbered point must be followed by a reference to any document on which you wish to rely.

 

A skeleton argument must state, in respect of each authority cited:

 

a) the proposition of law that the authority demonstrates; and

 

b) the parts of the authority (identified by page or paragraph references) that support the proposition.

 

If more than one authority is cited in support of a given proposition, the skeleton argument must briefly state the reason for taking that course. This statement should not materially add to the length of the skeleton argument but should be sufficient to demonstrate, in the context of the argument:

 

a) the relevance of the authority or authorities to that argument; and

 

b) that the citation is necessary for a proper presentation of that argument.

 

 

See here for example skeleton argument for lifting a stay:

Stay Hearing: Skeleton Argument - Consumer Wiki

[gezwee]

Hi Kate

 

I'd suggest that where you make a point based on S.I you quote the Act and section, print 3 copies of the section itself and have a bundle available referenced to each point [oh and lose the bullet points, use numbers..... you'll find it easier on the day ]. The dj will be able to look it up but what you don't want is to sit there being asked why its relevant and all supporting references are on your laptop at home.

 

ie: Para #3: It should also be pointed out these include several missing statements which are August 2006, November 2006 – January 2007, April 2009 – September 2009, November 2009, January 2010 and May 2010 –September 2010. The Defendant fails to see how the Claimant can accurately claim what is allegedly owed on the account due to an obvious lack of accurate record keeping by the Claimant, The Defendant contends this is contrary to the Companies Act 1985 S.221

http://www.legislation.gov.uk/ukpga/1985/6/part/VII/chapter/I/crossheading/accounting-records/2004-11-12?view=plain+extent&timeline=true

Para #6 - 'Thisis a DPA breach and contradicts the Claimants compliance to regulatory framework. ' [Data protection Act 1998 S.7 & 15(2)]

http://www.legislation.gov.uk/ukpga/1998/29/section/7

http://www.legislation.gov.uk/ukpga/1998/29/section/15

As for the rest of the skel, looks fine to me...... the only other suggestion I can make is to try to make each point as concise as possible without losing the gist of the argument itself. Remember to take 3 copies with you for the hearing.

The Tomlin..... this is really for last minute leverage, if they approach you in the waiting room asking for a chat, tell them you're prepared to listen, as previous post DO NOT accept any additional docs from them without all parties being in front of the judge. When they've finished saying their piece and trying to get you to crumble, hand them a copy of the Tomlin and ask that they consider it carefully and take instruction from their client.

They may not bite, they may not accept it [depends what instruction they've gone to court with], if they come back with an offer it'll be up to you on the day to decide if you want to accept it.

Gez

[gezwee]

Hi Kate

 

Really not sure what the outcome will be, with so much missing data it'll be difficult for the dj to find a position 'fair' to both parties.

 

If they show up tomorrow with the missing statements you need to request time/adjournment to recalculate your counter, if thats the case, they'll argue for costs, and you counter with their previous denied relief to data and your costs.

 

The dj may get the hump and tell them or both of you to bugger off and get your acts together, with the case to be re-listed. Nothing in this life or the county court is certain

 

If you stand your ground and argue your case well you should come away OK

 

The court will always look to the overriding objective for guidance

 

Gez

 

The overriding objective

 

1.1

 

(1) These Rules are a new procedural code with the overriding objective of enabling the court to deal with cases justly.

 

(2) Dealing with a case justly includes, so far as is practicable –

(a) ensuring that the parties are on an equal footing;

 

(b) saving expense;

 

© dealing with the case in ways which are proportionate –

(i) to the amount of money involved;

 

(ii) to the importance of the case;

 

(iii) to the complexity of the issues; and

 

(iv) to the financial position of each party;

 

 

(d) ensuring that it is dealt with expeditiously and fairly; and

 

(e) allotting to it an appropriate share of the court’s resources, while taking into account the need to allot resources to other cases.

[gezwee]

T/O's fine, if the dj asks if there's been any attempt to settle you can show him the order [page #1], not the schedule [page #2] unless he specifically asks to see it.

 

Gez

[gezwee]

Can't think of anything else at the mo, except to say good luck for tomorrow

 

I'm not able to access Cag from work during the day but if i think of anything else when I get up in the morning I'll post on here

 

Gez

[gezwee]

It gives the appearance that the dj had decided matters at the outset - level playing field my a**e