Cap1 & CCA return

[means2anend]

In BOX 3 of n244 simply fill in the types of Orders you want the Court to impose on the other side..eg for failing to comply with a rule and/orDirections and attach a draft of the Order to the form as requested in box 4

 

Follow the procedure as explained in CPR Parts 3 and 23 and the Court will in due course send an OFFICIAL FORM of that DRAFT ORDER to them.

 

REMEMBER YOU are making an APPLICATION the Court will not do this of their own initiative subject to the conditions for them doing so.

Edited May 10, 2010 by means2anend

[roygoodbeat]

Ok. Looks straight forward. I will add with the cover letter:

 

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. Therefore I require the original in its unaltered form.

 

I have stated 14 days for them to comply, however, can I shorten this to 7 days as I have given them more than enough time to comply?

[means2anend]

Yes you wanted originals under CPR31:16...This is all so that a trial can be avoided.If after the Orders you are still in the same position THEN apply for strike out..your application for strike out in that situation should not be seen by the Court as totally without merit and hence avoid the situation that Diddydicky was explaining.

 

I can only assume that because you are making the application the Court did NOT of its own initiative apply any of the orders above.

 

As to costs you should see that EX160 form and also use the Rules as to costs to punish them if they.You are on a low income therefore Remission rules should apply to you upon you supplying the Income evidence.

 

There are CPR Rules that deal with costs though cannot offhand remember but shall get back to you unless anyone else can help?

 

I am assuming that you have been allocated to the Small Claims Track and therefore the following is applicable;

Costs

7.1

Attention is drawn to Rule 27.14 which contains provisions about the costs which may be ordered to be paid by one party to another.

 

7.2

The amount which a party may be ordered to pay under rule 27.14(2)(b) (for legal advice and assistance in claims including an injunction or specific performance) is a sum not exceeding £260.

 

7.3

The amounts which a party may be ordered to pay under rule 27.14(3)© (loss of earnings) and (d) (experts’ fees) are:

 

(1)for the loss of earnings or loss of leave of each party or witness due to attending a hearing or staying away from home for the purpose of attending a hearing, a sum not exceeding £50 per day for each person, and

 

(2)for expert’s fees, a sum not exceeding £200 for each expert.

 

(As to recovery of pre-allocation costs in a case in which an admission by the defendant has reduced the amount in dispute to a figure below £5,000, reference should be made to paragraph 7.4 of Practice Direction 26 and to paragraph 15.1(3) of the Costs Practice Direction)

 

However as you are an LIP your legal costs for your own side NIL

 

For the Full information;

 

Small Claims Track Part 27

http://www.justice.gov.uk/civil/procrules_fin/contents/parts/part27.htm

 

For Practice Directions Small Claims Track Part 27 (including Standard Directions)

http://www.justice.gov.uk/civil/procrules_fin/contents/practice_directions/pd_part27.htm

 

General Rules About Costs

http://www.justice.gov.uk/civil/procrules_fin/contents/parts/part44.htm

 

The Costs Practice Directions 43-48

http://www.justice.gov.uk/civil/procrules_fin/contents/practice_directions/pd_parts43-48.htm

 

And FIXED COSTS which USUALLY pertain to SMALL CLAIMS

http://www.justice.gov.uk/civil/procrules_fin/contents/parts/part45.htm

 

 

m2ae

Edited May 10, 2010 by means2anend

[means2anend]

You should be able to read all and understand within a couple of hours!

 

Any questions just post

 

rgds

 

m2ae

[means2anend]

rgb

 

Another reasonable question to ask is;

 

What if it did not get as far as Court because the other side discontinued the proceedings beforehand and in all looking at it objectively should not have brought the claim or when they did they just did not co-operate fully only to waste my time expense and the time of the Court.....It is quite possible that later on you may want to apply for a strike out OR they discontinue...who then pays for all the time wasted?

 

 

This is why Pre action Conduct is taken into account as to whom the Costs will fall upon..as a result of Non-Compliance

 

SECTION II – THE APPROACH OF THE COURTS

4. Compliance

4.1

 

The CPR enable the court to take into account the extent of the parties’ compliance with this Practice Direction or a relevant pre-action protocol (see paragraph 5.2) when giving directions for the management of claims (see CPR rules 3.1(4) and (5) and 3.9(1)(e)) and when making orders about who should pay costs (see CPR rule 44.3(5)(a)).

 

4.2

 

The court will expect the parties to have complied with this Practice Direction or any relevant pre-action protocol. The court may ask the parties to explain what steps were taken to comply prior to the start of the claim. Where there has been a failure of compliance by a party the court may ask that party to provide an explanation.

 

Assessment of compliance

4.3

 

When considering compliance the court will –

 

(1)be concerned about whether the parties have complied in substance with the relevant principles and requirements and is not likely to be concerned with minor or technical shortcomings;

 

(2)consider the proportionality of the steps taken compared to the size and importance of the matter;

 

(3)take account of the urgency of the matter. Where a matter is urgent (for example, an application for an injunction) the court will expect the parties to comply only to the extent that it is reasonable to do so. (Paragraph 9.5 and 9.6 of this Practice Direction concern urgency caused by limitation periods.)

 

Examples of non-compliance

4.4

 

The court may decide that there has been a failure of compliance by a party because, for example, that party has –

 

(1)not provided sufficient information to enable the other party to understand the issues;

 

(2)not acted within a time limit set out in a relevant pre-action protocol, or, where no specific time limit applies, within a reasonable period;

 

(3)unreasonably refused to consider ADR (paragraph 8 in Part III of this Practice Direction and the pre-action protocols all contain similar provisions about ADR); or

 

(4)without good reason, not disclosed documents requested to be disclosed.

 

Sanctions for non-compliance

4.5

 

The court will look at the overall effect of non-compliance on the other party when deciding whether to impose sanctions.

 

4.6

 

If, in the opinion of the court, there has been non-compliance, the sanctions which the court may impose include –

 

(1)staying (that is suspending) the proceedings until steps which ought to have been taken have been taken;

 

(2)an order that the party at fault pays the costs, or part of the costs, of the other party or parties (this may include an order under rule 27.14(2)(g) in cases allocated to the small claims track);

 

(3)an order that the party at fault pays those costs on an indemnity basis (rule 44.4(3) sets out the definition of the assessment of costs on an indemnity basis);

 

(4)if the party at fault is the claimant in whose favour an order for the payment of a sum of money is subsequently made, an order that the claimant is deprived of interest on all or part of that sum, and/or that interest is awarded at a lower rate than would otherwise have been awarded;

 

(5)if the party at fault is a defendant, and an order for the payment of a sum of money is subsequently made in favour of the claimant, an order that the defendant pay interest on all or part of that sum at a higher rate, not exceeding 10% above base rate, than would otherwise have been awarded.

 

 

For fuller information click here;

 

PRACTICE DIRECTION – PRE-ACTION CONDUCT - Ministry of Justice

 

rgds

 

m2ae

Edited May 10, 2010 by means2anend

[roygoodbeat]

Hi

I submitted my N244 request and copied the claimant in. The court have granted a hearing on their non compliance, however, they wanted a defence based on what I have been given to be submitted.

However, the day after the defence was due (Seems a familiar pattern) I received this from the solicitors. The deadline for my CPR request had expired.

Thankyou for your letter, the contents of which have been noted.

We are surprised to receive a further cpr31.14 request from you as you are fully aware from the allocation hearing at the county court that you have in your possession all relevant documents to enable you to file a fully particularised defence and it is disingenuous of you to suggest otherwise.

We note that you are also asking for a copy of the default notice when again you are fully aware that the claimant has not retained a copy of the default notice and is not obliged to do so and does not due for practical reasons, due to the large numbers of such notices issued.

For the avoidance of doubt we enclose further copies of the following:

• (Copies of my letters requesting info under CPR)
  
• Solicitors letter of 16th April (This letter enclosed a copy of the terms and conditions. They stated that this is what is would have looked like)
  
• Claimant’s computer records showing the default notice was issued on the 12th May 2009.
  
• Copy of the template used to generate the default notice
  
• Signed Credit Agreement and terms and conditions overleaf. (First time they have said the terms and conditions overleaf- before is what it would have looked like- This is a contradiction of what they have said in the past. In addition the document is illegible in places) The claimant does not have to produce the original document, which is no longer available (First time they have put this in writing). The copy held on the claimant’s computer systems and exhibited here is admissible by virtue of sections 8 (1) and 9 (1) of the Civil Evidence Act 1995. The claimant will certify for the purposes of section 9 (2) of the Civil Evidence Act 1995 that the copy Application Form/ Agreement is a true copy document which forms part of the records of the claimants business at witness evidence stage if necessary.
  
• A reconstructed version of the original agreement
  
• A copy of the current terms and conditions of the credit agreement.
  

We re-literate that you have all the relevant documents in your possession to file a fully pleaded defence and we trust that you will do this as a matter of urgency.

With this in mind, in simple terms, what will I need to prepare at the hearing, what do I need to avoid and how should I respond to this.

Here is a copy of the things they have sent which I do not beleive are enforceable:

1) There is a front copy of the said agreement, which clearly states application form, but is almost illegible in places.

 

http://i663.photobucket.com/albums/u.../agreement.jpg

 

2) This is the reconstructed credit agreement, not a copy of the original. The copy of the t&C's of what would have appeared on the back is identical to this reconstructed version, except it does not have my personal details on copy and is condensed to A4.

Page 1:

http://i663.photobucket.com/albums/u...onstrcted1.jpg

Page 2:

http://i663.photobucket.com/albums/u...onstrcted2.jpg

Page 3:

http://i663.photobucket.com/albums/u...onstrcted3.jpg

Page 4:

http://i663.photobucket.com/albums/u...onstrcted4.jpg

Page 5:

http://i663.photobucket.com/albums/u...onstrcted5.jpg

Page 6:

http://i663.photobucket.com/albums/u...onstrcted6.jpg

 

The issues that I can see them raising are the Waksman ruling and their agruement that they do not have to produce the originals, that I am fully aware that I have everything needed to make a defence, they do not have to provide originals and they do not have to keep a copy of the default notice.

Instinct says that as they have admitted that they do not have the originals is that at the hearing I should apply for a strike out.

I have limited time so any help would be appreciated.

[citizenB]

Roy, you may want to copy your post above into the relevant thread and have yourself moved to legal issues forum (if you let me know where your thread is, I can do that for you)

[vint1954]

Hi

 

I submitted my N244 request and copied the claimant in. The court have granted a hearing on their non compliance, however, they wanted a defence based on what I have been given to be submitted.

 

However, the day after the defence was due (Seems a familiar pattern) I received this from the solicitors. The deadline for my CPR request had expired.

 

Thankyou for your letter, the contents of which have been noted.

 

We are surprised to receive a further cpr31.14 request from you as you are fully aware from the allocation hearing at the county court that you have in your possession all relevant documents to enable you to file a fully particularised defence and it is disingenuous of you to suggest otherwise.

 

We note that you are also asking for a copy of the default notice when again you are fully aware that the claimant has not retained a copy of the default notice and is not obliged to do so and does not due for practical reasons, due to the large numbers of such notices issued.

 

For the avoidance of doubt we enclose further copies of the following:

 

• (Copies of my letters requesting info under CPR)
  
• Solicitors letter of 16th April (This letter enclosed a copy of the terms and conditions. They stated that this is what is would have looked like)
  
• Claimant’s computer records showing the default notice was issued on the 12th May 2009.
  
• Copy of the template used to generate the default notice
  
• Signed Credit Agreement and terms and conditions overleaf. (First time they have said the terms and conditions overleaf- before is what it would have looked like- This is a contradiction of what they have said in the past. In addition the document is illegible in places) The claimant does not have to produce the original document, which is no longer available (First time they have put this in writing). The copy held on the claimant’s computer systems and exhibited here is admissible by virtue of sections 8 (1) and 9 (1) of the Civil Evidence Act 1995. The claimant will certify for the purposes of section 9 (2) of the Civil Evidence Act 1995 that the copy Application Form/ Agreement is a true copy document which forms part of the records of the claimants business at witness evidence stage if necessary.
  
• A reconstructed version of the original agreement
  
• A copy of the current terms and conditions of the credit agreement.
  

We re-literate that you have all the relevant documents in your possession to file a fully pleaded defence and we trust that you will do this as a matter of urgency.

 

With this in mind, in simple terms, what will I need to prepare at the hearing, what do I need to avoid and how should I respond to this.

 

Here is a copy of the things they have sent which I do not beleive are enforceable:

 

1) There is a front copy of the said agreement, which clearly states application form, but is almost illegible in places.

 

http://i663.photobucket.com/albums/u.../agreement.jpg

 

2) This is the reconstructed credit agreement, not a copy of the original. The copy of the t&C's of what would have appeared on the back is identical to this reconstructed version, except it does not have my personal details on copy and is condensed to A4.

Page 1:

http://i663.photobucket.com/albums/u...onstrcted1.jpg

Page 2:

http://i663.photobucket.com/albums/u...onstrcted2.jpg

Page 3:

http://i663.photobucket.com/albums/u...onstrcted3.jpg

Page 4:

http://i663.photobucket.com/albums/u...onstrcted4.jpg

Page 5:

http://i663.photobucket.com/albums/u...onstrcted5.jpg

Page 6:

http://i663.photobucket.com/albums/u...onstrcted6.jpg

 

 

 

The issues that I can see them raising are the Waksman ruling and their agruement that they do not have to produce the originals, that I am fully aware that I have everything needed to make a defence, they do not have to provide originals and they do not have to keep a copy of the default notice.

 

Instinct says that as they have admitted that they do not have the originals is that at the hearing I should apply for a strike out.

 

I have limited time so any help would be appreciated.

Waksman does not apply to documents in court, only, and very specifically, to s78 requests for information regarding a live account. Waksman refused to rule on s61. They are trying to pull a fast one.

 

Have a good read through the early pages of " Disecting the manchester case"

[vint1954]

And they do have to supply a copy of the DN, especially if mentioned in their POC, which in all probability is defective. Do you have the original?

[steven4064]

If it is mentioned in their POC then they do have to supply it as it is a document they intend to rely on. I am not sure there is anything that compels them to gove you a copy otherwise.

[roygoodbeat]

I have only been sent a photo copy of the original application/ credit agreement form which is illegible in places.

[roygoodbeat]

Have my hearing tomorrow. I urgently need clarification on the previous points, namely:

 

I have a good idea that they are going to use the Waksman ruling as part of their defence as they have already mentioned this in their letters and I noticed they had a copy with them at the allocation hearing.

 

How should I respond to their letter in terms of

 

We are surprised to receive a further cpr31.14 request from you as you are fully aware from the allocation hearing at the county court that you have in your possession all relevant documents to enable you to file a fully particularised defence and it is disingenuous of you to suggest otherwise.

 

I am sure that they will try to bring this up and I want to be able to respond to this.

 

I am slightly confused where it states that pre 2006 (or is it 4) cc agreements have to have the original agreement, and why post 2006 agreements don't. Again I want to be able to cover this avenue.

 

In terms of disposing the agreement, which they have only keep a copy, I have thrown the Money Laundering regs at them stating that all originals have to be kept for 5 years after the relationship has ended.

 

Any help would be appreciated.

[maybelline]

they are trying to get you rattled, go back over your original arguments and supporting regs, I am not that up on your specific questions but wish you very good luck and give you credit for taking on them on!!

[Desperate Daniella]

You need someone much more up to speed on this to give advice, but good luck for tomorrow.

 

DD

[pedross]

How did you get on Roy?

[pavolll]

How did you get on Roy?

 

rgb

[pavolll]

Hi can someone help me with my thread and my problem please???

 

I did sent to barclay bank an in dispute letter as advised on this forum.

 

I have recevid this three letters from them..

 

Pg1.doc = first page of the letter

Pg2.doc = second page of the letter

Pg3.doc - third page of the letter

 

 

Can someone please help with what should i respond???

 

Link to my Thread:http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/255602-barclay-credit-card-starting-2.html#post2954216

 

Thanks

Pg1.doc

Pg2.doc

Pg3.doc

[alisindebt]

Hi can someone help me with my thread and my problem please???

 

I did sent to barclay bank an in dispute letter as advised on this forum.

 

I have recevid this three letters from them..

 

Pg1.doc = first page of the letter

Pg2.doc = second page of the letter

Pg3.doc - third page of the letter

 

 

Can someone please help with what should i respond???

 

Link to my Thread:http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/255602-barclay-credit-card-starting-2.html#post2954216

 

Thanks

 

Hi Roy

 

I am not sufficiently knowledgeable to comment on the specifics raised in this letter, although I am sure that you can look over your earlier arguments that the CCA is unenforceable and see if they still apply.

 

However, it is certain that they cannot unilaterally say that the CCA is enforceable, it is up to the court to decide this. Accordingly, they cannot declare that the dispute is therefore resolved. You would have to agree with them for that to be the case.

 

Therefore the case is still in dispute and on that basis they should not be threatening collections procedures, issuing a default, etc. They are unlawfully sending you this crap to try and scare you before court, if they even bother to turn up.

[Josie8]

If it is mentioned in their POC then they do have to supply it as it is a document they intend to rely on. I am not sure there is anything that compels them to gove you a copy otherwise.

 

If they don't their claim is fatally flawed as they need to have served a compliant one to call in all money owed so tell the court that they haven't provided it.

[vint1954]

Hi can someone help me with my thread and my problem please???

 

I did sent to barclay bank an in dispute letter as advised on this forum.

 

I have recevid this three letters from them..

 

Pg1.doc = first page of the letter

Pg2.doc = second page of the letter

Pg3.doc - third page of the letter

 

 

Can someone please help with what should i respond???

 

Link to my Thread:http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/255602-barclay-credit-card-starting-2.html#post2954216

 

Thanks

Well,

they are wrong in the first parragraph on page 2.

 

If the agreement has been altered, they need to supply a copy of the original agreement, signed, plus they can reconstruct the new agreement.

 

Refer them to the Judgement by HHJ Waksman, Carey V HSBC. He confirmed this in his summing up.

 

If the agreement in its original form is unenforcable, they must not say so. (OFT)

[maxedout]

Hi all sorry to jump in here but can somone tell me or point me to a thread where it explains why it is better to defend than try to get a credit agreemeant proved unenforcable thanks.

[Gallahad]

Hi all sorry to jump in here but can somone tell me or point me to a thread where it explains why it is better to defend than try to get a credit agreemeant proved unenforcable thanks.

Mainly because the higher burden of proof falls on the claimant.

G

[means2anend]

Mainly because the higher burden of proof falls on the claimant.

G

 

And when the claimant introduces a copy of the executed agreement this only goes to information and not PROOF OF EXECUTION.

[Having_A_Knightmare]

Hi All

 

I need some help!!

 

Basically Next PLC peed me off a few month ago as they reduced my credit limit to the balance.

 

I asked for agreement and they admited they have not got it.

 

I then asked for all the interest I paid for the last 10 years refunding. THey refused and I started Court proceedings for the money.

 

My POC were brief as did ot on line and today had an order form the Court saying its been struck out on no reasonable grounds.

 

I have got a couple of weeks to send a new Statement of Case.

 

Does anybody know if there is any case law where they can not charge interest with out a credit agreement....

 

Cheers

 

HAK

[pt2537]

Hi All

 

I need some help!!

 

Basically Next PLC peed me off a few month ago as they reduced my credit limit to the balance.

 

I asked for agreement and they admited they have not got it.

 

I then asked for all the interest I paid for the last 10 years refunding. THey refused and I started Court proceedings for the money.

 

My POC were brief as did ot on line and today had an order form the Court saying its been struck out on no reasonable grounds.

 

I have got a couple of weeks to send a new Statement of Case.

 

Does anybody know if there is any case law where they can not charge interest with out a credit agreement....

 

Cheers

 

HAK

erm sounds like youve got a procedural nightmare there

 

if the claim is struck out you need to apply within 7 days of the order for leave to amend, if done already then you are raising an issue here which you will struggle with im afraid, youve got to overcome the fact that the CCA provides that there is no sanction for breach but for the sanction provided in the act

 

it seems like your going for restitution but arent doing it properly

 

its a real problem mate