LTSB sar and found PPI was selected - but not by me!

[Always Struggling]

Thanks Andy, one last thing, any particular specifics required to put in or just 'work done in preparation for court @ £18 p.h - 3 hrs = £54 plus half day off work at £40 - total = £94

 

There's no template to use that I can find so just head it 'Schedule of Costs' with the above information for costs?

 

AS

[AndyOrch]

Does your employer allow half days off...I would imagine they prefer you take the full day:wink:

 

Just work out roughly your costs for the day and if their application fails ask for costs..and tell the DJ the amount.

 

Regards

 

Andy

[Always Struggling]

Half day is fine Andy, maybe if I wasn't going to court in work clothes (smart but with company logo's etc.) lol.

 

Got pm thanks and understand it is for them to prove their application and not so much for me to argue anything and everything unnecessarily.

 

Update to follow. Ty

 

AS

[AndyOrch]

[Always Struggling]

What an awful time that was.

 

The judge pretty much began with 'is this my first time as an LiP?'

No sooner had I replied she began asking SCM had I not included section32 in my PoC, to which he fumbled through my PoC and mumbled yes I see it is there.

 

The judge then turned to me and asked if I realised the seriousness of Fraud and Concealment to which I said yes.

 

Then she (the J) asked SCM about his expenses and he 'joked' only £120 for today.

 

She then asked if I knew what a Statement of Truth was and i said yes. 'Well, is 14 days enough time for you (me) to file a Statement of Truth?' I replied 'yes'.

 

'Ok' the judge says, '14 days to send relevent evidence with Statment of Truth to SCM and we can set the court date for January 7th. Do you think 30mins will be enough time?(asked to SCM). Yes is his reply.

 

I thought, am I sat here?

 

Costs are awarded for today (just said generally aloud) and out we go.

 

Tornado's go through a building slower than they did

 

She was definately not a fan of LiP, especially 'green' ones like myself.

 

It was only afterwards I thought, hold on, it was SCM's application to strike out, it wasn't struck out and yet he was awarded costs WTF.

 

I was feeling rather hacked off when events actually sank in a few minutes later and I had time to think through the whirlwind that was the applicaton hearing what had actually happened. Talk about feeling raped.

 

If she is going to be the judge in January then I am royally screwed me thinks. Might have to look at getting some help from a legal beaver to act on my behalf as otherwise i can see teedle dum (SCM) and teedle dee (J) acting as though it is me that has done something wrong.

 

Will be back on tomorrow to assess calmly my next step.... going to wind down for tonight.

[slick132]

Hi AS and thanks for the report.

 

It may help us here if you state exactly what is your contention about the fraudulent nature of the case with PPI. Like, was it added after you signed the credit agreement, forged sig're, etc.

 

We also need to know what proof you have to back your contentions, so you are not in for another kicking at the next hearing.

 

Deal with this over the w/end, not tonight. Like you say, this should be wind-down time.

 

Also remember this is excellent experience and you will be far better ready for your next court appearance .

 

[Mike_hawk]

Hi AS

 

Probably prudent to check with the court next week if order has been prepared, it didn't overcome part 24 on the day so you may have misinterpreted the dj's comments. Possibly costs in the case reserved to the Jan hearing?

 

30 minutes is not long enough to argue the case so [assumption again] would be that the hearing is for disposal only

 

I know you didn't plead s140 but Patel on limitation may be a useful addition for contested bar to part 7 action, para 58 on http://www.bailii.org/ew/cases/EWHC/QB/2009/3264.html

[Always Struggling]

Thanks both for your posts and I can see what you mean Mike in respect to my understanding of what exactly did happen and you are probably right. It was such a whirlwind that they obv. knew what they were talking about and I got a serious lesson in being in over my head.

 

I have spent this weekend thinking over how best to proceed. My problem is that I had time previous to my new job to study and learn, when this application came through I had to be away for a fortnight on a new training course (very intense and time consuming) and start straight away on the new job (I start at 7.30am and finish around 7pm) come home and too tired to even switch the pc on. Which is cutting down drastically on time I can dedicate to this now. Hence the reason I requested on AQ the case not to be heard until December at the earliest.

 

I have read through the Patel case from para 58 Mike and can see what you refer to and yes useful indeed.

 

All I can do is put my SoT together (with alot of hep from you guys ) then type out all points in brief as a prompt, to make sure they are covered in a checklist form and have it in court in January.

 

Thanks

 

AS

[Always Struggling]

 

Also remember this is excellent experience and you will be far better ready for your next court appearance .

 

 

Yes Slick, the silver lining is that I had a big learning curve from this. It may have felt like 2 experts v 1 novice but better to have that now than to have it easy at this stage then land her at the hearing and with me thinking this is going to be a doddle.

 

Simple rule: prepare, prepare then prepare somemore and write down everything you want covered.

unlike me with this first time which seriously made me feel like a deer in headlights lol

[Mike_hawk]

You'll probably end up going round in circles with your w/s, might be sensible to draft something sooner rather than later so you have plenty of time to pull it apart and get it in a logical order. Once you're happy with it compose a skel to back up your contentions.

 

Tbh, its easier to find fault with a skel and point out any possible failings than it is to prepare one. Post what you can, when you can, and I'm sure you'll receive some feedback. Better to have your arguments tested to possible failure on here than in court

[Always Struggling]

I am hoping I am thinking along the right lines here. Basically it is as basic as possible with relating evidence to back up these facts of my claim.

 

Let me know if it is on the right track and if it is I know you guys won't hold back on pulling it apart lol.

 

Thanks

 

AS

 

In November 2002 I signed a credit agreement for a credit card after populating the relevant sections of the agreement with my information and choices. One of the choices being; select here to include Card Payment Protection (PPI). I selected the option 'NO', I did not want Card Payment Protection. I have never chosen to include PPI with the defendant. Evidence is attached showing other credit arrangements with the defendant at the same time. (Loan agreements to be included with option 'No' selected for PPI).

 

I discovered via media stories (news on TV and newspapers) around May/June 2011 that late fee charges could be challenged as being unfair and unlawfully applied to my account by mistake. I was unaware prior to this time that any late fee charges/penalties could be challenged and so made a subject access request for information held by the defendant, to include copies of bank statements in the hope that it would show what charges had been applied and why.

 

Although I had heard about PPI claims I had never made a claim because as far as I was concerned I didn't have PPI on my credit card account to make a claim on.

 

In response to my informational request the defendant sent me statements from 2004 onwards, claiming that statements prior to 2004 had been destroyed. I also received a poor quality copy of my credit card agreement.

 

The copy of the agreement, although of poor quality, was of good enough quality to show it had been altered specifically in the section relating to PPI. This was not done by myself as the defendant claims, but later, after my signing of the agreement by an employee of the defendant, demonstrating a conscious act which would then result in me paying insurance premiums.

 

The hand writing on the rest of the agreement is clearly different, evidenced by blown up versions of two different areas of the agreement, showing the comparison to sections filled in by myself in my hand writing and the area altered clearly showing a different hand writing style, demonstrating to the court the difference. For the purposes of clarity and if required to further the courts satisfaction, I have already made a request to the court in my Allocation Questionnaire, for the court to appoint a joint expert in this area to confirm it is not my hand writing and to confirm that my tick (as demonstrated by '/') of 'NO' was altered to 'N/A' using my tick as the slash between the lettering 'N' and 'A'. This would further show that it was a conscious act by the defendant and the defendant would have known the statement to include PPI to be untrue or reckless as to its truthfulness.

 

Notwithstanding the above claim of a fraudulent misrepresentation, the PPI would still have been applied to my account by mistake as I would not have qualified for PPI due to being paid by commission and also not having a permanent contract of employment (working for pertemps on a temporary employment contract). I put the defendant to strict proof of the PPI qualification process and assessment in my case.

 

The defendant had instructed a third party (debt collection agency - DCA) to pursue me for the outstanding balance of the credit card (a balance that the defendant claims in their defence to have written off and is no longer pursued, as of some 2 years previous - exact date here). I wrote to the debt collecting company to keep them informed of my current dispute, explaining the informational request I had made to the defendant. The debt collecting company responded by sending me copies of my credit card statements from the beginning of my account in 2002. These statements were obviously readily available to the defendant as demonstrated by the DCA sending them promptly, yet the defendant was adamant they had been destroyed, more than once as shown later in this statement. This is a clear demonstration of the defendants attitude of using the 'rules' to withhold information that they are legally obliged to fulfil and execute fully. This would be, by omission, a concealment of information that I am legally entitled to receive if available. The defendant seems to think that if information is older than 6 years they do not have to supply it, when in fact they do not have to supply it if it is older than 6 years and it HAS been destroyed as they claim.

I can only conclude this information was sent by the dca without the defendants knowledge as the defendant claimed on 3 further separate occasions, and after I had received copies from the dca, that credit card statements prior to 2004 had been destroyed, demonstrating acts of a nature I define not only as concealment but also as negligent misrepresentations.

 

In response to my Letter Before Action the defendant again claimed that all records relating to this account had been destroyed and so no exact figure for me to claim could be ascertained in respect to PPI this again I claim would be either concealment or a negligent misrepresentation or both.

 

The defendant further includes in his defence a false statement. The defendant offered a settlement amount based on their 'best guess' as per information and rules set out by the Financial Ombudsman Services. The defence claims this to have been done with a heading of 'Without Prejudice' and should not be introduced into court proceedings. The defence has signed a Statement of Truth to this point. The offer letter from the defendant is included as evidence of the defendants continued misrepresentations, as the court can see the letter is not headed 'Without Prejudice'.

[Always Struggling]

Time for me to get to bed, home for a couple of hours - tea, post then bed lol.

 

The above points have the relevant evidence to be attached as well to back up my conclusions.

 

Thanks for any help you can give.

 

AS

[Mike_hawk]

AS

 

Did you file the POC as drafted in post #107 or was it amended?

[Always Struggling]

Actual claim is scanned up at post #164 along with their defence.

 

AS

[Always Struggling]

I get the feeling you're going to tell me it needs amending

 

Got to go to bed Mike will read anything you recommend asap

 

Thanks

 

AS

[Mike_hawk]

Ermmmm....... possibly wouldn't/didn't test that route, far too close to criminal than civil

 

Tbh, I'm surprised you went all in.... looking back through the posts there was a note of caution from Andy

 

You seem to be in a hole and I wouldn't be doing you any favours by posting anything that could possibly expose you to costs. I think it would be sensible to look at its defence again, points 26 and 29....... it avers much but apparently cannot and will not evidence?

 

Perhaps step away from your assertion in paragraph 5 of your w/s and try redrafting with a more temperate frame of mind. You didn't check the box but make no presumption who did, [what is your response if the judge asks how you know?] , you know that the DPA principles tell you the following:

 

http://www.ico.gov.uk/for_organisations/data_protection/the_guide/the_principles.aspx

 

7. Appropriate technical and organisational measures shall be taken against unauthorised or unlawful processing of personal data and against accidental loss or destruction of, or damage to, personal data.

 

The problem for you is you didn't directly plead the DPA in relation to cause but have referred to it in your statement, pretty much as an aside. Perhaps drag that back into the case and move away from subjective claims which are close to impossible to prove or evidence esp with limited disclosure on the sct.

 

Get the case back on track at the hearing in January...... assuming the other side fail to overcome part 24 in disposing of your statement it may be slightly more approachable in a settlement.

Edited November 27, 2012 by Mike_hawk

[Mike_hawk]

As

 

Prinicples are also statute and should compound your cause in specialty, bit beyond my knowledge how to plead same but may be prudent to investigate further and build the case for same into your w/s by reference.

 

http://www.legislation.gov.uk/ukpga/1998/29/schedule/1/paragraph/7

 

There's a longwinded w/s on this thread at post #764 http://www.consumeractiongroup.co.uk/forum/showthread.php?331427-Robinson-Way-lifting-a-stay-on-a-County-Court-claim-made-in-July-2009-Happy-Christmas!!&p=4062181#post4062181 if it assists you in compiling a chronological story/history of events.

[Always Struggling]

Have constructed the following WS Mike, appreciate your views, however harsh. Not sure on the last few points if they should be included or not as they are more recent events of the defences 'dodgy' behaviour.

 

IN THE WORCESTER COUNTY COURT

BETWEEN:

XXXXXXX XXXXXXXX

Claimant

- and –

Lloyds TSB

Defendant

***************

WITNESS STATEMENT OF XXXXXX XXXXXXXX

 

I, XXXX XXXXXX, of xx, xxxxxxx,xxxxxxx, xxx xxx WILL SAY AS FOLLOWS:

1. I am the claimant and litigant in person in this case and I include evidence with my Witness Statement, marked WS2.

 

2. I give this statement and evidence in support of my claim not being time barred by virtue of section 32 (1) of The Limitations Act as shown on my Particulars of Claim paragraph 30.

 

3. I did not know prior to April 2011 that late fee charges could be challenged. It was around ApriL 2011, through various media and news, that I discovered late payment penalty charges/fees that had been applied unfairly to my account by mistake could be challenged.

 

4. As a consequence of discovering the above information I made a subject access request (SAR), dated 1st April 2011, for personal information, in respect to my accounts held with the defendant.

 

5. In response to my informational request the defendant sent me statements from 2004 onwards, claiming that statements prior to May 2004 were no longer available. I also received a poor quality copy of my credit card agreement.

 

6. I include as evidence a copy of the agreement (WS2, page i) received from the defendant. Although of poor quality, it is clear enough to show the Card Payment Protection (PPI) section of the agreement has been altered to include PPI. Through this alteration the defendant has mistakenly included PPI (possibly fraudulently or negligently). I know it wasn't myself that altered the agreement and bring the Data Protection Act (DPA)1998, schedule 1, part 1, section 7 to the courts attention which states:

 

· Appropriate technical and organisational measures shall be taken against unauthorised or unlawful processing of personal data and against accidental loss or destruction of, or damage to, personal data.

 

7. The defence claims in paragraph 3.2 of their defence, that the PPI was selected by myself. I am content to have the hand writing of the agreement analysed by an independent expert, as already requested by myself in my Allocation Questionnaire (WS2, pageii). I also include magnified areas of the agreement for the courts convenience and visual clarity on the differing hand writing involved (WS2, page iii).

 

8. I have never had, nor wanted, PPI on any of my accounts with the defendant, as evidenced by other financial agreements held with the defendant all declining the inclusion of PPI (WS2, page iv).

 

9. Notwithstanding the above points, the PPI would still have been applied to my account by mistake as I would have failed to meet the requirements to be accepted for PPI: I was paid by commission only and didn't have a permanent contract of employment. I would therefore put the defendant to strict proof of the PPI acceptance process.

 

(Points after this relate to later events. Should these be included?)

 

10. As mentioned in paragraph 5 of this witness statement the defendant claimed on 9th June 2011 (WS2, page v) and again on the 29th July 2011 (WS2, page vi) that statements prior to May 2004 were no longer held on any of their systems and could no longer be provided.

 

11. At around this same time I had written to Credit Security Limited(CSL) (a debt collection agency who were acting on behalf of the defendant pursuing the debt at the time), to explain I was awaiting to hear from their client in respect to my information. CSL then sent me my credit card statements on 8th August 2011 covering the time period prior to May 2004(WS2 page vii), statements that the defendant had twice already claimed were no longer available and not held on any of their systems.

 

12. The defendant again claimed the non-existence of my statements in reply to my 'letter before action' . The defendant responded on 25th June 2012 with the claim that they no longer held details of my credit card statements showing any details due to the passage of time (WS2, page viii) this was after I had received them via their representative and knew they did in fact exist.

 

13. The defendant has also entered in their defence an error to the court. The defence has claimed that the settlement offer letter to myself is headed 'Without Prejudice' (WS2, page ix) and should not be included in my Particulars of Claim. I have included the settlement letter (WS2, page x)which is not headed 'without prejudice' as the defence claims and has also signed as a statement of truth.

 

or I thought this paragraph instead of the above?

 

13.(alternate) The defendant includes in his defence a false statement. The defendant offered a settlement amount based on their 'best guess' as per information and rules set out by the Financial Ombudsman Services. The defence claims this to have been done with a heading of 'Without Prejudice' and should not be introduced into court proceedings. The defence has signed a Statement of Truth to this point. The offer letter from the defendant is included as evidence of the defendants continued misrepresentations, as the court can see the letter is not headed 'Without Prejudice'.

[Always Struggling]

P.S. wasn't sure on how to include the defences para 26 and 29 as you mention Mike tbh. Any advice on those would be appreciated also

 

Thanks

 

AS

[Always Struggling]

Any comments welcome. I need to print off tomorrow night ready for sending Wednesday to make sure it arrives for Friday to SCM.

[AndyOrch]

Looks fine to me AS.Straight and succinct.Throw 10-13 in also,perhaps a mixture of both 13 would be prudent?

 

Regards

 

Andy

[Always Struggling]

Have 'tweaked' it accordingly andy ty...... maybe should have listened to you and made more of an effort to be succinct in the first place instead of going off with my 'principles' and going off on tangents:oops: lol

 

Just to clarify, this is actually a 'Statement of Truth'

How should it begin and end precisely please.

 

Thanks

AS

[AndyOrch]

A SoT can be a Defence or a WS...considering you have already submitted a defence then I would assume a WS AS.

 

Regards

 

Andy

[Always Struggling]

Ok thanks andy, was getting lost as was thinking along the lines that it's their claim to strike out and I am defending that.....or so I thought confusing me, quite easily lol

 

AS

[AndyOrch]

http://www.justice.gov.uk/courts/procedure-rules/civil/rules/pd_part22

 

In particular for any hand writing expert 1.3.

 

Andy