HSBC v Pipster - Court Tomorrow!! *****Discontinued*****

[DonkeyB]

Is your whole defence based on their not having a signed agreement? Were there any other disputes on the account, such as PPI or charges?

[DonkeyB]

late 2002. I know I didn't sign anything

 

In which case your WS should have said so. As it’s worded, it sounds like you might have.

[DonkeyB]

Even for a recon agreement, Carey v HSBC states that they would have to show that the T&Cs were actually present at the point of signing. If there was no signing, you have a further argument you have barely put forward.

[DonkeyB]

Just state the facts. Always the best policy. And have some stark questions ready for their rep.

[DonkeyB]

Sounds to me like they are not really ready for court. But do expect them to try and twist the truth.

 

Going for SJ on flimsy or non-existent evidence is, IMHO, an abuse of process; make sure you put in a schedule of your costs today (at £18 per hour).

 

One word of advice – IMO, it’s better not to deny you owe a debt. Just be clear that you believe the claimant has ignored your efforts to settle, has failed to address serious issues re statute, and leaves you in a position where you must defend yourself. This should find favour with the judge, and gets over the ambiguity in some of your WS. Especially deny that you ever signed any agreement, ever. That puts the ball in their court and in fairness, the judge should then dismiss their application and allow a full hearing to test their evidence.

 

Statutes are vitally important, as is case law, to back your arguments. Look up the recent Amex v Brandon judgment re not enforcing on the back of an invalid DN. They haven’t even shown a DN with or without the prescribed terms or enough time to remedy.

 

Also look at Phoenix v Kotecha. They cannot enforce while they remain in default of a valid CCA request.

 

Your problem is that you do not know what is in their WS, so be prepared to ask for the SJ application to be struck out on that point alone, ie. non-service of their WS.

 

For example, if they present recon agreements, make sure they comply strictly with the agreed tenets in Carey v HSBC, eg. T&Cs from when the account was opened and closed, with your exact name and addresses from those times. Technical points maybe, but they are using technicalities to try and enforce, so you are entitled to use those technicalities to defend.

 

Bear in mind also that they may eventually be able to overcome some of these obstacles.

[DonkeyB]

Also consider knocking up a simple skelly – what time is the hearing? I would encourage you to try and get a copy of their application and WS. You are severely prejudiced by not having one. You can prove they have your WS, but simply turning up after making no effort to chase them for theirs is just a little bit playground.

[DonkeyB]

Hello guests – my, lots of you!

[DonkeyB]

Maybe that IS their WS! Did it say there would be a WS?

 

They have admitted only sending T&Cs at the time of opening the account. Have they? Are they the ones that would have been in force? Check for any dates. I think you said there is no reference to them – but while Carey said that an agreement in parts is a matter of substance, not form (or maybe the other way round), there still needs to be a clear link demonstrated between the docs. At least they admit that they are technically in default of a s78 – hence no enforcement allowed.

 

Your defence would be that you know for a fact you never signed anything, not even an application form (actually, how DID you get the card???).

 

The CCA request would not necessarily have indicated PPI, especially if you didn’t sign anything or tick a box. You would need statements for that, via an SAR. If you know you had PPI, this should form part of your defence or possible counterclaim. How was this sold to you?

[DonkeyB]

Sounds like they are clutching at straws, then. But if they do not provide the court with proof of their actions, ie. a WS and evidence, they should not get SJ. No judge should simply take their word that they have complied with statutory requests and CPR.

 

You may want to chase them for any WS. If they fail to respond by email, take proof of your efforts to show the judge – make it clear that YOU are trying to achieve the overriding objective.

 

It’s possible your WS may turn up in the morning. If it does, get back on here and we’ll look at a skelly to take along if there’s time. Also keep any envelope it comes in to show the judge the postmark as evidence they are obstructing your defence by late filing of their WS.

[DonkeyB]

Email will give you an audit trail, unless you can record the call.

 

Just state that, as they are aware, they have received your WS by recorded delivery on [date]. Where is their WS and evidence in support of your application? It should have been served on me by now. Please respond urgently.

 

You may also want to check with the court to see if they have filed a WS with the court. Dirty tricks abound with these kind of people, especially when you’re an LiP and don’t know the process.

[DonkeyB]

This is why you need your wits about you. Your case is factually strong. Theirs is not as it stands. Can you call them and record the call?

 

Perhaps you should prepare a draft order that if the stay is lifted, the claimant must comply fully with disclosure of X, Y and Z within 14 days.

[DonkeyB]

Good. Try and keep one step ahead of their games.

[DonkeyB]

Put them to strict proof, as you have done. Just have a couple of copies of that handy for the judge.

 

We all know that the recon issues in Carey v HSBC were about satisfying s 78 requests and not about enforcement, but many judges are fooled by smart and smarmy lawyers. A recon, strictly speaking, is insufficient to enforce. There’s a bit of judge lottery involved, but you must insist on getting the point over to the judge – you can then ask him why he thinks a recon is OK for enforcement.

[DonkeyB]

I think any judge will be impressed by your preparedness and your attempts to reach the overriding objective. Let’s hope you don’t get a curmudgeon with a headache whose wife has just put diesel in their petrol car.

[DonkeyB]

Try another call... are you recording them? Keep a log for the judge in case their WS turns up late.

[DonkeyB]

So they had no intention of sending you the WS? And they didn’t have to? Crap! It should have been submitted with the application! That’s how it works!

 

You must complain loudly tomorrow and point out to the judge that they have UNFAIRLY waited to receive your WS to respond to it.

 

Did you record the call?

 

This is what I meant when I suggested you should expect dirty tricks from these shysters. The deliberately wrong dating of their letter is absolute proof of this.

 

Must try and get a skelly in order then. They may well introduce new documents in their WS that you have never seen.

[DonkeyB]

We are reputable firm of solicitors. We would never lie or twist the facts, your honour. Honest, guv.

[DonkeyB]

By the way, this posting won’t appear till Friday, as it has to go through a few systems to get out. Not. I suppose their client sends their DNs out the same way?

[DonkeyB]

In which case you refer the judge to what you have said here re unfairness and prejudice, and demand an adjournment with costs to you.

[DonkeyB]

Covered that in post #38 CB – pipster hasn’t elaborated yet.

 

Were they not able to email the statement? How come she can get a WS in the post tonight when a letter takes three days to post? Clever legal rep! Contradicts herself at every turn.

[DonkeyB]

They have not followed procedure, so you must object to them presenting a WS at the hearing without first disclosing it. Especially as you are an LiP. That rep deliberately misled you as to the true legal position. That is a big no-no according to SRA rules.

 

Wouldn’t surprise me is the rep was fibbing and there is no WS.

[DonkeyB]

It won't last long in court. The judge will hopefully see there are triable issues. I'm sure the stay will be lifted, but that's when you present your draft order for disclosure.

 

I'll bet that no WS turns up in the post. To send it now is proof of their abuse of process.

 

Put the timeline of events in your recent post into a mini-statement. It may be useful for the judge. You are an LiP so should get some leeway.

[DonkeyB]

One main point if contention is that, so far, they have presented no more evidence than was available when the case was stayed. So why did they allow the stay to kick in if they were so sure of their case? Why ask for SJ with no new evidence?

 

Have you calculated your costs to date?

[DonkeyB]

Say 15 hours at the new LiP rate of £18, plus your travel, stationery, postage, time off work.

 

Just put it in a list for the judge. You're an LiP, remember!

[DonkeyB]

Take three copies of everything you want to present - one for you, one for them (if they turn up) and one for the judge.