Cap1 & CCA return

[means2anend]

roygoodbeat!

 

To sum up then

 

1-Strike Out in relation to evidence or lack of what they have provided you at the moment

 

2-Request further better Particulars and Disclosure of documents central to the issue

 

3-Make a reassessment in light of point 2 in relation to strike out OR Defend IF they provide stronger evidence

 

4-make arrangements/agreement with them for extension of filing defence if you have to ( in light of point 2 above)and let them know and the court otherwise they may get judgement by default.

 

m2ae

[roygoodbeat]

OK- Lots to take in and think through.

 

On this basis I can either (Correct me if I am wrong)

 

1) Make an amended defence based on the information they have provided me and admitted that they do not have.

 

To do this I would:

a) Write to them to request clarification of the documents they are to submit and confirmation that they do not have the originals or anything else.

b) Go throught the defence on the basis that the information they have given me is effectivley vague and unenforceable.

c) Point out that they have failed to follow CPR rules backed up with a history of fudging around eg: Subject Access Request, S78 request late.

d) The application is illegible and therefore I am unable to plead as to the enforceability of the document.

e) Apply for the case to be struck out on these grounds.

 

or

 

2) Apply for the docuemnts again from the claimant and clarification that they do not have the originals. If not available within set time period, apply for extention of defence and file an N244 giving them an order to produce documents or case struck out.

 

or

 

3) Request further better particulars and disclosure of documents central to the issue.

 

Please correct me if I am wrong but I will either defend this or have the case struck out.

 

In simple terms, what would you advise and recommend I write???

[means2anend]

roygoodbeat!!!

 

You have placed before you all the possible alternatives.You have the tools above...however base on the info you gave in some depth about your cirumstances I should err on the side of caution and go for a better and clearer statement of case/Particularisation (Diddydicky's option).

 

I myself was swayed by this in view of the fact that you dont want to give the judge any width ''to come back at you'' unless you have done all YOU can to get disclosure.

 

REMEMBER GO FOR

 

1-Use Of The Rules To their Max

2-To Get As Much Disclosure and Inspection Of Their Documents

3-If They Are Not Forthcoming Compel Them To Do So Using The Orders

4-Then Defend OR Strike Out

 

You cant defend or strike out unless you know what the other side has or has not got.

 

DO NOT DEFEND UNTIL YOU HAVE MAXIMISED USE OF THE RULES TO OBTAIN AS MUCH AS YOU CAN FROM T'OTHER SIDE.

 

And REMEMBER THEY GOT TO PROVE EXECUTION OFORIGINAL AGREEMENT.A reconstituted copy is only for information purposes.

 

YOu could use all this in your no 1 and strike out

 

but to show the judge that you have been reasonable GO FOR YOUR NO 2..and when you go for this route request amongst the other things, CPR31:16, you are asking them to show you proof of the execution of the originally signed agreement

This is central to the issue of an existing agreement and hence if they cannot then how does it follow that there is a valid default notice let alone ANY DN..Also copies of legible or illegible agreements are irrelevant if they fall at CPR 31:16

....and if the same happens THEN STRIKE OUT!!!

 

 

I would like a second opinion on this from any more experienced caggers than me it would be much appreciated..... if I have missed something out!!

 

m2aqe

Edited April 26, 2010 by means2anend

[means2anend]

roygoodbeat!

 

A CAUTIONARY REMINDER####DO NOT at this late stage give your signature.If you need to sign for anything be it AS A LAST RESORT run your sig along xxxxxxxx so that it cannot 'be lifted' via cut & paste technology and planted on a ''BACK TO THE FUTURE'' original agreement

[roygoodbeat]

Ok. Option 2 it is.

 

Suggested letter?? or follow the standard one that is available on this site. Do I give them 14 days or 7?

 

(Thanks for the advice by the way)

[means2anend]

Ok. Option 2 it is.

 

Suggested letter?? or follow the standard one that is available on this site. Do I give them 14 days or 7?

 

(Thanks for the advice by the way)

 

Use the standard one on this site...it's all the same thing!

 

One other thing at this stage you will be asking again for WHAT THEY HAVE in terms of DOCUMENTARY EVIDENCE.

 

BUT dont forget that you already possess enough only if you need it in the form of problems WITHIN THE AGREEMENT...

 

BUT that is for later..You need to find out if THEY CAN LOCATE THE ORIGINALLY SIGNED AGREEMENT..they are Claimants it goes to (s78 request) MUST GO TO PROOF NOT INFORMATION.

 

If they cant find that everything else does NOT FOLLOW...no DN/TN

 

In fact THERE WAS NO AGREEMENT.!!!

 

You will have effectively Short Circuited them...

[roygoodbeat]

Ok.

 

A letter such as this?? Any additions or suggestions apprecaited.

 

A Bank

Their Address

 

Dear Sir or Madam,

 

Re: Bank -v- ME Case No. blah blah blah

 

 

CPR 31.14 Request

 

Further to our appearance at the Allocation Hearing at Eastbourne County Court, as you are aware I will be submitting a defence to your claim.

In order to file a full defence, please treat this letter as my request made under CPR 31.14 for the disclosure and the production of a verified and legible copy of each of the following document mentioned in your Particulars of Claim:

 

1 The agreement.

a) You will appreciate that in an ordinary case and by reason of the provisions of CPR PD 16 para7.3, where a claim is based upon a written agreement, a copy of the contract or documents constituting the agreement should be attached to or served with the particulars of claim and the original(s) should be available at the hearing. Further, that any general conditions incorporated in the contract should also be attached. This was not issued with the particulars of the claim. I require you to send a copy of the said agreement, along with a copy of the terms and conditions that appear on the back of the agreement.

b) I require confirmation that you have the original.

c) I must stress this request is NOT made pursuant to section 78 Consumer Credit Act 1974 but is made pursuant to the Civil Procedurerules ( Pre action protocols and Part 31.16) and therefore unsigned

copy will not suffice, only a copy of the original contract in its unaltered

form will suffice in these circumstances.

2. The default notice

a) I require a copy of the default notice mentioned in your particulars of claim.

b) I require confirmation that you have a copy of the original default notice that you mention.

As you are aware, this case has been allocated to the small claims track for determination upon my delivering a defence. At this moment in time I have not delivered my defence and I require certain information from you. In consequence the provisions of CPR 27(2) are of no effect and you should not seek to avoid compliance with your CPR 31 duties by claiming otherwise.

 

You should ensure compliance with its CPR 31 duties and ensure that the documents I have requested are copied to and received by me within 7 days of receiving this letter. Your CPR 31 duties extend to making a reasonable and proportionate search for the originals of the documents I have requested, the better for you to be able to verify the document's authenticity and to provide me with a legible copy. Further, where I have requested a copy of a document, the original of which is now in the possession of another person, they will have a right to possession of that document if it has been mentioned in your case. You must take immediate steps to recover and preserve it for the purpose of this case.

 

Where I have mentioned a document and there is in your possession more than one version of that same document owing to a modification, obliteration or other marking or feature, each version will be a separate document and you must provide a copy of each version of it to me. Your obligations extend to making a reasonable and proportionate search for any version(s) to include an obligation to recover and preserve such version(s) which are now in the possession of a third party.

 

In accordance with CPR 31.15© I undertake to be responsible for your reasonable copying costs incurred in complying with this CPR 31.14 request.

 

If you require more time in which to comply with this request you must tell me in writing. You must tell me before the time for compliance with this request has expired. In telling me you require more time you must tell me what steps you have taken and propose to take in order to comply with this request and also state a date by when you will comply with this request. In addition your statement must be accompanied with a statement that you agree to an extension of the time for me to file my defence. Your extension of time must be not less than 14 days from the date when you say you will have complied with my request and you must state the new date for filing my defence.

 

If you are unable to comply with this request and believe that you will never be able to comply with this request you must tell me in writing.

 

Please note that if you should fail to comply with this request, fail to request more time or fail to agree to an extension of time for the filing of my defence, I will make an application to the court for an order that the proceedings be struck out or stayed for non-compliance and a summary costs order.

 

I do hope this will not be necessary and look forward to hearing from you.

 

Yours faithfully

[mediastarfish]

Hello,

I am a bit stuck. I have a Vanquis credit card with a 1k limit. They have recently just increased my apr to 60%, withough telling me. Infact, stupidly i never even checked the apr each month so i didnt know they had put it up at all since i opened the account. Foolish i know.

 

1] I wrote and asked for my credit agreement

2] they wrote back with terms and conditons only

3] i wrote to request again

4] They have now wrote back stating i opended the account online [i cannot remember doing so]

 

Should i not have a signed agreement or is that the end of that?

 

They have never once wrote to me and told me my apr was going to be increased, if it was at 60% then i would have asked my other half for the money to pay it off. Its ridiculous and i just cannot afford it anymore.

 

Can i do anything at all as i am in a mess.

[roygoodbeat]

First, when did you open the account??

[mediastarfish]

Hi there,

 

It was opened on the 13/06/2006 and then settled and closed on the 31/07/2009, they then sent me another card however and it looks from my credit report that they have closed that account as it is marked settled and setup a new one; again with the same start date of 13/06/2006.

 

many thanks for your reply i am very grateful.

[vint1954]

Hi media,

 

You are best starting your own thread to get targeted advice.

 

This is a general discussion thread and your bits will soon get lost. By all means post a link to your new thread back here.

 

If it was settled and closed and a new account number issued, then that is the end to it. They will need a new signed agreement for the new card account.

 

Just check to make sure that the account numbers on your statement are different.

 

The other possibility is that if you reject the new rate, they have to reset the rate, but you wont be able to use the card.

[roygoodbeat]

Ok. I will send this at the end of today unless anyone has any suggestions.

 

A Bank

Their Address

 

Dear Sir or Madam,

 

Re: Bank -v- ME Case No. blah blah blah

 

 

CPR 31.14 Request

 

Further to our appearance at the Allocation Hearing at Eastbourne county court, as you are aware I will be submitting a defence to your claim.

 

In order to file a full defence, please treat this letter as my request made under CPR 31.14 for the disclosure and the production of a verified and legible copy of each of the following document mentioned in your Particulars of Claim:

 

1 The agreement.

 

a) You will appreciate that in an ordinary case and by reason of the provisions of CPR PD 16 para7.3, where a claim is based upon a written agreement, a copy of the contract or documents constituting the agreement should be attached to or served with the particulars of claim and the original(s) should be available at the hearing. Further, that any general conditions incorporated in the contract should also be attached. This was not issued with the particulars of the claim. I require you to send a copy of the said agreement, along with a copy of the terms and conditions that appear on the back of the agreement.

b) I require confirmation that you have the original.

c) I must stress this request is NOT made pursuant to section 78 Consumer Credit Act 1974 but is made pursuant to the Civil Procedurerules ( Pre action protocols and Part 31.16) and therefore unsigned

copy will not suffice, only a copy of the original contract in its unaltered

form will suffice in these circumstances.

2. The default notice

 

a) I require a copy of the default notice mentioned in your particulars of claim.

b) I require confirmation that you have a copy of the original default notice that you mention.

 

As you are aware, this case has been allocated to the small claims track for determination upon my delivering a defence. At this moment in time I have not delivered my defence and I require certain information from you. In consequence the provisions of CPR 27(2) are of no effect and you should not seek to avoid compliance with your CPR 31 duties by claiming otherwise.

 

You should ensure compliance with its CPR 31 duties and ensure that the documents I have requested are copied to and received by me within 7 days of receiving this letter. Your CPR 31 duties extend to making a reasonable and proportionate search for the originals of the documents I have requested, the better for you to be able to verify the document's authenticity and to provide me with a legible copy. Further, where I have requested a copy of a document, the original of which is now in the possession of another person, they will have a right to possession of that document if it has been mentioned in your case. You must take immediate steps to recover and preserve it for the purpose of this case.

 

Where I have mentioned a document and there is in your possession more than one version of that same document owing to a modification, obliteration or other marking or feature, each version will be a separate document and you must provide a copy of each version of it to me. Your obligations extend to making a reasonable and proportionate search for any version(s) to include an obligation to recover and preserve such version(s) which are now in the possession of a third party.

 

In accordance with CPR 31.15© I undertake to be responsible for your reasonable copying costs incurred in complying with this CPR 31.14 request.

 

If you require more time in which to comply with this request you must tell me in writing. You must tell me before the time for compliance with this request has expired. In telling me you require more time you must tell me what steps you have taken and propose to take in order to comply with this request and also state a date by when you will comply with this request. In addition your statement must be accompanied with a statement that you agree to an extension of the time for me to file my defence. Your extension of time must be not less than 14 days from the date when you say you will have complied with my request and you must state the new date for filing my defence.

 

If you are unable to comply with this request and believe that you will never be able to comply with this request you must tell me in writing.

 

Please note that if you should fail to comply with this request, fail to request more time or fail to agree to an extension of time for the filing of my defence, I will make an application to the court for an order that the proceedings be struck out or stayed for non-compliance and a summary costs order.

 

I do hope this will not be necessary and look forward to hearing from you.

 

Yours faithfully

[means2anend]

Sorry rgb

 

I just got back....I think you have covered all the necessary grounds and have addressed each issue especially making sure that you secure that extension for filing your defence THROUGH CONSENT.

 

Otherwise you may find that you may get a default judgement against you if you do not cover that base.Make sure that in the event of any non-coperation from the other side that you keep the court thoroughly and up to date informed as they are not mind readers.

 

If they know that they will be unable to comply with their duty under CPR31:16 at the hearing itself..you may find that a NOTICE OF DISCONTINUANCE may follow.

 

I think that what you have done is what Diddydicky may have done in those circumstances...asking for better particulars so that you are better informed and can address the case against you properly so that this can be disposed of without a trial and further costs.

 

Also it might be a little late in view of the time but I found this posted this morning!

 

 

Quote:

Originally Posted by atom02

I now have a thread running on this with as much as I am reasonably able to post at the moment: Contract Fallout with cowboys - please help!!

 

The OP has now disclosed more legible copies of the contracts as directed by the judge's order but has not provided 'all' contracts and variations as per the same judge's order, so has only partially complied. Then the OP's solicitors have admitted to not having the originals anymore. The signature on the copies look like they could be mine but elements of it have been doctored to make them look like separate contracts when in fact there was only one contract for provision of many items. Their approach will allow them to try to seek payment on the parts of the contract that have been fulfilled when in fact it is not a 'severable contract'. Question for me is do I have a solid basis for insisting on seeing the original and if not able to be available for inspection, going for strike out and judgment on my counterclaim?

 

Comments appreciated, please.

 

atom

 

Posted by emandcole

 

Hi Atom, obviously you can point to the CPR rules stating that where documents are relied upon the originals should be made available in court.

'Should' has allowed persuasive claimants some leeway so I suggest putting the Money Laundering Regulations Act 2007 in their way. This states that the claimant is responsible for keeping hold of the original documentation relating to this agreement for a period of 5 years after the business relationship has ended.

Use that and demand they provide them for you. Also, if they insist on reproductions you have a whole raft of questions you can throw at them to ascertain the fact that what they have are indeed 'true copies'. If the original doesn't exist how can they state what they have is a true copy?

 

Also, if they are submitting reproductions make sure they submit them correctly with an application under the Civil Evidence Act (permission to introduce hearsay evidence) I beleive it is, something like that.

 

A few things there to get you thinking at least

_______

 

 

 

I highlighted the points I believe would be of interest to your situation.

 

m2ae

Edited April 30, 2010 by means2anend

[roygoodbeat]

M2AE

 

Thanks for that. Will keep you posted.

 

RGB

[roygoodbeat]

m2ae

 

In case I have to do this, if they do not return the items requested or ignore these (As they have done before), I would have to go for a court application to obtain these docs.

 

a) Its an N244 application notice?

b) I can pass the costs onto the claimant in filing this?

c) Been trying to work out the fees on this? Any idea. I am also on a low income and I understand that I can apply for reduced costs. Can this be applied whilst serving an N244?

d) Do you have any examples of what to fill out?

[means2anend]

You need to look at ''Court Fees Do I have To Pay Them''?

 

FORM EX160-You can find them on the MOJ website.

 

If they still do not give you what you are requesting you should apply for a strike out at that stage.If they are avoiding/ignoring the Rules let the court know...Check this out on page 9 posts 170 - 175 on this link

 

 

http://www.consumeractiongroup.co.uk/forum/legal-issues/241827-legal-action-how-start.html

 

m2ae

Edited May 2, 2010 by means2anend

[roygoodbeat]

I have had no reply from the solicitors regarding my letter for copies under cpr, and the deadline expires tonight.

 

I have also had a note from the court. It states;

 

Deputy Judge **** has considered the statements of case and allocation questionaires filed and allocated the claim to the small claims court.

The hearing will take place on a date to be fixed at the court...

Defendent permission to file an amended defence by 4 on 12 may 2010.

All parties not less than 14 days before hearing date must send to the other and to the court office.

Typed and signed statements setting out evidence of all the witnesses on which each party intends to reply. This includes the evidence of the parties themselves and copies of all documents, invoices, letters or estimates that relate to the case.

 

Does this effect my letter and defence if I go for a strike out before, as I the party has not responded???

[vint1954]

If they have not complied with your CPR 31.14 request, then you must tell them so, and write to the court manager letting them know that they have not complied and you are unable to supply a full defence without the documents that they seek to rely on. Follow up with a phone call to the court.

 

You can still file your N244, but be sharpish.

[roygoodbeat]

Will do. I have to apply for help with costs as I am on a low income.

 

Still can't work out how much its going to cost me to do the N244.

[vint1954]

There is a form that you can download from the court information website.

 

If you qualify, then it is free, if not £75, but you claim that back as costs from the claimant.

[means2anend]

Will do. I have to apply for help with costs as I am on a low income.

 

Still can't work out how much its going to cost me to do the N244.

 

 

Look above at post 17107 AND below

 

Forms and Guidance: these will answer your questions rgb

 

Once you click on links below it will take you to relevant court forms and leaflet guidance: then click onto the purple links that will open up in pdf formats

 

Her Majesty's Courts Service -Forms and Guidance

 

Also You are not BRINGING the claim.The claimant pays the Court Fees for the privilege!

 

Click on here;

 

Her Majesty's Courts Service -Forms and Guidance

 

Explains N244 costs and guidance and exempt and/or remission fees for citizens on a low income.I have short cut for you on the 2 links below N244 and 'Court Fees Do I have to Pay Them'

 

N244 click here http://www.hmcourts-service.gov.uk/courtfinder/forms/n244_e.pdf

 

Court Fees Click here

http://www.hmcourts-service.gov.uk/courtfinder/forms/ex160a_web_0709.pdf

 

Hopefully you have ADOBE READER to open PDF files!......if not let us know and will give you web links instead.

 

You've also got good input from Vint1954...handy to have Vint1954 on the same side

 

rgds

 

m2ae

Edited May 6, 2010 by means2anend

[roygoodbeat]

Thanks. It is very much appreciated with everyones advice. Its helping me to not get too stressed about the situation.

 

Next question. What is the best way to fill in the form and draft order??

 

RGB

[roygoodbeat]

I have not heard from anyone for the last few days. I need to submit a N244 tomorrow and I am unsure what to do.

 

I am going to submit the following, but please correct me if I am wrong, or if you can thinj of other stuff to put in/ take out.

 

Letter to go with draft order

An order (a draft of which is attached) that the Claimiant do search for and disclose the documents listed in the Schedule attached to the draft Order ("the Schedule") because without production of the requested documents, I am at a disadvantage and am unable to serve a proper defence. Failure of the claimant to supply the requested documentation will make the case much harder for the court to deal with as without production of the requested documentation will inhibit the courts ability to deal with the case.

 

The respondent's duty of disclosure in those proceedings would extend to the documents listed in the Schedule and disclosure is desirable in order to dispose fairely of the anticipated proceedings .

 

If the court is in agreement, the defendant respectfully requests that special directions may be given as per the attached draft order.

 

The defendant proposes these directions in mind of the Overriding Objectives, and in particular the duty of the parties to help the court further them. The issues outlined below are the crux upon which this claim rests, and the proposed directions identify these issues and will allow them to be assessed in advance of the hearing so that this claim may proceed justly and expeditiously;

 

The House of Lords in the case of Wilson v First County Trust Ltd - [2003] All ER (D) 187 (Jul) made it clear in paragraph 29 of LORD NICHOLLS OF BIRKENHEAD judgment

 

29. The court's powers under section 127(1) are subject to significant qualification in two types of cases. The first type is where section 61(1)(a), regarding signing of agreements, is not complied with. In such cases the court 'shall not make' an enforcement order unless a document, whether or not in the prescribed form, containing all the prescribed terms, was signed by the debtor: section 127(3). Thus, signature of a document containing all the prescribed terms is an essential prerequisite to the court's power to make an enforcement order. The second type of case concerns failure to comply with the duty to supply a copy of an executed or unexecuted agreement pursuant to sections 62 and 63, or failure to comply with the duty to give notice of cancellation rights in accordance with section 64(1). Here again, subject to one exception regarding sections 62 and63, section 127(4) precludes the court from making an enforcement order.

The claimiant has sent a reconstructed copy of the Consumer Credit Agreement and an illegible copy of an application form, neither of which are enforceable and therefore would waste the courts time. A copy of the original credit agreement has been requested on a number of occasions. It is also a requirement of the Money Laundering Regulations Act 2007 that documents must be kept for 5 years after the relationship has ended. The attached proposed direction deals with this should a copy not exist.

The courts attention is drawn to the following:

The full particulars EG: Copy of the credit agreement, default and so on, were not supplied with the particulars of claim, of which was vague. The particulars of claim were also vague.

The claimant has not followed pre court protocols and have not responded within the sipulated timescales. They have continually breached this both prior to submitting my original defence and prior to my allocation hearing.

In response to the allocation hearing I have written to the claimiant to request documents and clarification. They have once again failed to comply with pre court protocols and I am disadvanateged as I am unable to submit a proper defence. They are contining to frustrate proceedings and I respectfully request that the court considers my N244 request.

They have also shown a disregard for the correct procedures. Prior to this coming to court they have frustrated proceedings.

 

On the 27th April 2009, I made a Subject access request under the Data Protection Act 1998(Data Protection Act). I again sent a copy of this letter, along with a reminder on the 13th May, of which I retained proof of postage. The Claimant failed to comply within the required 40 day period, therefore broke the Sixth Data Protection Principle (that data is processed in line with the rights of the individual) I wrote to the Information Commisioner to complain. He responded by saying:

 

“As you have provided proof of postage it is now my view that it is likely Sainsburys Bank failed to comply with the sixth data protection principle (that personal data is processed in line with the rights of the individual) in this case. This is because it now seems reasonable to assume Sainsburys Bank would have received your subject Access Request and therefore would have failed to comply with it within the required 40 day period. Therefore it is now my view that it is unlikely Sainsburys Bank complied with the Data Protection Act in this case”

 

I also made a consumer credit agreement request which they failed to respond within the 12 plus 2 day period and have they have defaulted on the consumer credit act.

Therefore it stands to reason that these documents must be disclosed before this case can proceed any further.

 

Draft Order:

 

1. The Claimant shall within 14 days of service of this order send to the Defendant and to the Court:

 

a) a copy of the executed agreement regulated by the Consumer Credit Act 1974 for the account. This is the original Credit agreement which was signed by the defendant and in its original form, including the original terms and conditions.

 

b) a statement signed by or on behalf of the Claimant Sainsburys bank showing, according to the information to which it is practicable for him to refer,--

(i) the state of the account,

(ii) the amount, if any currently payable under the agreement by the Defendant to the Claimant Sainsburys Bank.

c) i) copies of Default Notices issued pursuant to s87(1) of the Consumer Credit Act 1974 by the Claimant Sainsburys Bank to the Defendant.

ii) The Claimant is also put strict to proof that such a document was sent.

 

e) if copies of any of the above documents are to be relied on in court rather than originals, a copy of the Notice of proposal to adduce hearsay evidence required under s2(1) of the Civil Evidence Act 1995 together with proof of the authenticity of the document(s) as required under s8(1)(b) of the Act, including but not limited to:

 

(i) a copy of the procedure(s) used for copying, storing and retrieving documents

(ii) a copy of the relevant log entry showing the time and date of the scan or copy, the name of the member of staff making the copy, the method used for copying, storage and retrieval and time and date of destruction of the original document(s)

(iii) copies of internal and external audit reports covering the entire period from the date of the copy to the present to demonstrate that the procedures have been complied with

(iv) copies of Quality Assurance accreditation certificates covering the entire period from the date of the copy to the present to demonstrate that the procedure(s) and audit process(es) comply with the appropriate quality standards

v) In pursuant to the Money Laundering Regulations Act 2007, an explanation why the originals have not been kept for the required legal period.

If the Claimant fails to comply with this order, the claim will be struck out without further order.

[means2anend]

Hi rgb

 

do not to forget to mention that according to Carey V HSBC s78 HHJ WAKSMAN QC sitting at The High Court in Manchester late last year stated that copies of Consumer Credit Act 1974 agreements only satisfy information purposes only and do not go to PROOF OF EXECUTION.....in that specific case THE CLAIMANT was Emma Carey

 

Also please specify EXACTLY what the nature of your problem is with N244...apart from that the above seems to be well constructed...unless any input can be contributed by any other Caggers in the instance that I may have overlooked anything.

 

m2ae

[means2anend]

Thanks. It is very much appreciated with everyones advice. Its helping me to not get too stressed about the situation.

 

Next question. What is the best way to fill in the form and draft order??

 

RGB

 

Hello rgb

 

The Application Notice is fairly straightforward in itself and you will see from the links that were given above

 

The Civil Procedure Rules and the Practice Direction are in Part 23 and are as follows-Just simply read and follow the instructions;

 

Here are the Links

 

PART 23-General Rules About Applications For Court Orders

PART 23 - GENERAL RULES ABOUT APPLICATIONS FOR COURT ORDERS - Ministry of Justice

 

PRACTICE DIRECTION 23A-Applications

PRACTICE DIRECTION 23A – APPLICATIONS - Ministry of Justice

 

You must bring the Applications to the notice of the Court and within 'THE COURTS GENERAL POWERS OF CASE MANAGEMENT'-PART 3

 

 

The court’s general powers of management

3.1

(1)The list of powers in this rule is in addition to any powers given to the court by any other rule or practice direction or by any other enactment or any powers it may otherwise have.

(2)Except where these Rules provide otherwise, the court may –

 

(a)extend or shorten the time for compliance with any rule, practice direction or court order (even if an application for extension is made after the time for compliance has expired);

 

(b)adjourn or bring forward a hearing;

 

©require a party or a party’s legal representative to attend the court;

 

(d)hold a hearing and receive evidence by telephone or by using any other method of direct oral communication;

 

(e)direct that part of any proceedings (such as a counterclaim) be dealt with as separate proceedings;

 

(f)stay(GL) the whole or part of any proceedings or judgment either generally or until a specified date or event;

 

(g)consolidate proceedings;

 

(h)try two or more claims on the same occasion;

 

(i)direct a separate trial of any issue;

 

(j)decide the order in which issues are to be tried;

 

(k)exclude an issue from consideration;

 

(l)dismiss or give judgment on a claim after a decision on a preliminary issue;

 

(ll)order any party to file and serve an estimate of costs;

 

(m)take any other step or make any other order for the purpose of managing the case and furthering the overriding objective.

 

(3)When the court makes an order, it may –

 

(a)make it subject to conditions, including a condition to pay a sum of money into court; and

 

(b)specify the consequence of failure to comply with the order or a condition.

 

(4)Where the court gives directions it will take into account whether or not a party has complied with the Practice Direction (Pre-Action Conduct) and any relevant pre-action protocol(GL).

 

(5)The court may order a party to pay a sum of money into court if that party has, without good reason, failed to comply with a rule, practice direction or a relevant pre-action protocol.

 

(6)When exercising its power under paragraph (5) the court must have regard to –

 

(a)the amount in dispute; and

 

(b)the costs which the parties have incurred or which they may incur.

 

(6A)Where a party pays money into court following an order under paragraph (3) or (5), the money shall be security for any sum payable by that party to any other party in the proceedings.

 

(7)A power of the court under these Rules to make an order includes a power to vary or revoke the order.

 

Court’s power to make order of its own initiative

3.3

(1)Except where a rule or some other enactment provides otherwise, the court may exercise its powers on an application or of its own initiative.

 

(Part 23 sets out the procedure for making an application)

 

(2)Where the court proposes to make an order of its own initiative –

 

(a)it may give any person likely to be affected by the order an opportunity to make representations; and

 

(b)where it does so it must specify the time by and the manner in which the representations must be made.

 

(3)Where the court proposes –

 

(a)to make an order of its own initiative; and

 

(b)to hold a hearing to decide whether to make the order,

 

it must give each party likely to be affected by the order at least 3 days’ notice of the hearing.

 

(4)The court may make an order of its own initiative, without hearing the parties or giving them an opportunity to make representations.

 

(5)Where the court has made an order under paragraph (4) –

 

(a)a party affected by the order may apply to have it set aside(GL), varied or stayed(GL); and

 

(b)the order must contain a statement of the right to make such an application.

 

(6)An application under paragraph (5)(a) must be made –

 

(a)within such period as may be specified by the court; or

 

(b)if the court does not specify a period, not more than 7 days after the date on which the order was served on the party making the application.

 

(7)If the court of its own initiative strikes out a statement of case or dismisses an application, (including an application for permission to appeal or for permission to apply for judicial review) and it considers that the claim or application is totally without merit –

 

(a)the court’s order must record that fact; and

 

(b)the court must at the same time consider whether it is appropriate to make a civil restraint order.

 

 

 

As you can see...the above are ORDERS that the Court can make ''OF IT'S OWN INITIATIVE''..YOU are MAKING AN APPLICATION for any one or MORE of those ORDERS or an ORDER that you think has NOT BEEN INCLUDED IN ANY OF THE ABOVE..THIS IS DONE VIA APPLICATION NOTICE FORM N244 through the CPR Part 23 hence 'your application'

 

In fact if you wish to see ALL PART 3 then;

PART 3 - THE COURT’S CASE MANAGEMENT POWERS - Ministry of Justice

 

 

..Any questions just post!

 

rgds

 

m2ae

Edited May 10, 2010 by means2anend