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

[Pipster2797]

This wasn’t allocated a track, was it? You defended, they ignored and it got stayed. They applied to lift the stay and get SJ – so AQs have never been completed. It remains trackless, so wasted costs are due.

 

Yes your right it was assigned a track :-)

 

Am I doing this in the right way and am I missing anything?

[martin g]

well done Pip,

 

I see you have put £9.25 as a LIP, but the rate is now £18.00 an hour.

Martin g

[DonkeyB]

Yes your right it was assigned a track :-)

 

You mean it WASN’T assigned a track!

[Pipster2797]

well done Pip,

 

I see you have put £9.25 as a LIP, but the rate is now £18.00 an hour.

Martin g

 

 

This gets better. I'm hoping to hit them hard with this because of the treatment during the case. The more I win then the more can help this site.

 

Mad isn't it, that all I was after was trying to reduce the debt and not contest it at all and it's got to this stage through HSBC's own fault.

[Pipster2797]

You mean it WASN’T assigned a track!

 

ha ha yes that's what I mean. Sorry at work so not spell checking etc

[citizenB]

OMG, yes.. tis £18.00 per hour now.. for goodness sake, change that one

 

Pipster this is brilliant news and I am so pleased for you:cheer2:

[Pipster2797]

Thanks CB

 

Right done a bit more reading around etc and think this sounds and looks alot better and more relastic with it broken down.

 

Any thoughts on this would be much appreciated.

 

Case No: XXXXXX

 

IN THE XXXX (CCBC) county court

 

B E T W E E N:

 

HSBC Bank (Claimant)

 

-and-

 

(Defendant)

 

DEFENDANT’S BILL OF COSTS

 

After discontinuing by the claimant.

 

Costs Payable by the Claimant

 

CPR 38.6 and CPR 44.12(1)(d)

 

 

 

 

 

 

 

The Claimant commenced proceedings in relation to an alleged agreement regulated under The Consumer Credit Act 1974.

 

The proceedings were defended.

 

On 9th January 2012 the claimant wrote to the defendant to advise that they were discontinuing the application for strike out of the defendants defence and the claim that was to be heard in the XXXX County Court on the 12th January 2012 at 11:30am. Judge XXX advised on15th December 2011 that the hearing on 12th January 2012 would involve costs.

 

At all times the Defendant was a Litigant in Person within the meaning of Litigants in Person (Costs and Expenses) Act 1975 and time spent by the Defendant is charged herein at hourly rates of £18.00.

 

After receiving the Claim form The Defendant was required to spend time in researching case law, contacting the Claimant and the Court both by post and telephone.

 

The Defendant was obliged to spend time in considering and understanding numerous strands of law including the law of consumer credit, the law of limitation and practice and procedure in the County Court which he achieved through internet and library research.

 

The Defendant was obliged to spend time in drawing his defence, witness statement and skeleton argument out in a way which complied with the relevant rules and practice directions of the CPR. The Defendant was further obliged to consider his consequential rights and obligations to include his rights and obligations upon the matter of costs and the relevant rules and practice directions of the CPR in reference to the detailed assessments of costs as applied to Litigants in Person.

 

The following is a statement of the work done in the course of the proceedings. Where there is a charge for time spent, the amount of time recorded as spent represents the Defendant’s fair estimate of the amount of time spent by him.

 

 

Receiving and considering the Claim Form and Particulars of Claim (3 hours) = £54.00

 

Acknowledgement of Service (1 hour) = £18.00

 

Research regarding consumer credit law (5 hours) = £90.00

 

Preparing Defence (3 hours) = £18.00

 

Research regarding detailed assessment proceedings and Litigants in Person (Costs and Expenses) Act 1975 (5 hours) = £90.00

 

Preparing Witness Statement (5 hours) = £90.00

 

Preparing Skeleton Argument (5 hours) = £90.00

 

Preparing bill of costs (2 hours) = £36.00

 

Time off work to attend hearing for Summary Judgement of 8th December 2011 = £80.00

 

Time spent in telephone costs and letters written and received (4 hours) = £72.00

 

 

 

 

 

Summary

 

Costs payable by the Claimant £638.00

 

Dated: 11/01/2012

 

Signed

 

[Pipster2797]

Please excuse my spelling today. Being stuck at work 'Im rushing when typing!!

[citizenB]

 

Case No: XXXXXX

 

IN THE XXXX (CCBC) county court

 

B E T W E E N:

 

HSBC Bank (Claimant)

 

-and-

 

(Defendant)

 

DEFENDANT’S BILL OF COSTS

 

After discontinuing by the claimant.

 

Costs Payable by the Claimant

 

CPR 38.6 and CPR 44.12(1)(d)

 

 

 

 

 

 

 

The Claimant commenced proceedings in relation to an alleged agreement regulated under The Consumer Credit Act 1974.

 

The proceedings were defended.

 

On 9th January 2012 the claimant wrote to the defendant to advise that they were discontinuing the application for strike out of the defendants defence and the claim that was to be heard in the XXXX County Court on the 12th January 2012 at 11:30am. Judge XXX advised on15th December 2011 that the hearing on 12th January 2012 would involve costs.

 

At all times the Defendant was a Litigant in Person within the meaning of Litigants in Person (Costs and Expenses) Act 1975 and time spent by the Defendant is charged herein at hourly rates of £18.00.

 

After receiving the Claim form The Defendant was required to spend time in researching case law, contacting the Claimant and the Court both by post and telephone.

 

The Defendant was obliged to spend time in considering and understanding numerous strands of law including the law of consumer credit, the law of limitation and practice and procedure in the County Court which he achieved through internet and library research.

 

The Defendant was obliged to spend time in drawing his defence, witness statement and skeleton argument out in a way which complied with the relevant rules and practice directions of the CPR. The Defendant was further obliged to consider his consequential rights and obligations to include his rights and obligations upon the matter of costs and the relevant rules and practice directions of the CPR in reference to the detailed assessments of costs as applied to Litigants in Person.

 

The following is a statement of the work done in the course of the proceedings. Where there is a charge for time spent, the amount of time recorded as spent represents the Defendant’s fair estimate of the amount of time spent by him.

 

 

Receiving and considering the Claim Form and Particulars of Claim (3 hours) = £54.00

 

Acknowledgement of Service (1 hour) = £18.00

 

Research regarding consumer credit law (5 hours) = £90.00

 

Preparing Defence (3 hours) = £18.00 - I think you mean £54.00

 

Research regarding detailed assessment proceedings and Litigants in Person (Costs and Expenses) Act 1975 (5 hours) = £90.00

 

Preparing Witness Statement (5 hours) = £90.00

 

Preparing Skeleton Argument (5 hours) = £90.00

 

Preparing bill of costs (2 hours) = £36.00

 

Time off work to attend hearing for Summary Judgement of 8th December 2011 = £80.00

 

Time spent in telephone costs and letters written and received (4 hours) = £72.00

 

 

 

 

 

Summary

 

Costs payable by the Claimant £638.00

 

Dated: 11/01/2012

 

Signed

 

 

I dont see any travel costs there either ?

 

 

 

Mealing-McLeod v The Common Professional Examination Board 2000 All ER D 436.doc

 

Bill of costs for forum.pdf

 

Wulfsohn, R (on the application of) v Legal Service Commission [2002] EWCA Civ 250 (8 February 2.pdf

[DonkeyB]

When the LiP rate was £9.25, I always used to reckon you could comfortably get around £300 back.

 

So an almost doubling of the LiP rate suggests that around £600 should now be acceptable.

[Pipster2797]

Right amended the above and put in a point 11 and 12, not a huge difference but they deserve it

 

11. Fuel Costs to attend hearing dated 8th December 2011 at (Travelling Costs HMRC Approved Mileage Rate of 40p / mile) a round trip of 8 miles = £3.20

12. Fuel Costs to collect claimants skeleton argument on the 23rd December 2011 at (Travelling Costs HMRC Approved Mileage Rate of 40p / mile) a round trip of 8 miles = £3.20

 

 

Does it look ok then? Total costs of £644.40.

 

Im tempted to not mess about and get this straight off to the court and by pass HSBC, what do you think?

[DonkeyB]

Think it’s now 45p a mile.

[citizenB]

Pipster, I hadnt increased the original total after pointing out you had done yourself out of £36.00..

 

So the total on the original sheet would have been £674.00 + the amounts above = £680.40, I think !!

[Pipster2797]

Said Id post these up.

 

Witness Statment

 

 

In the XXXXXX County Court

 

Claim Number XXXXXXX

 

Between

 

HSBC Bank Ltd Claimant

 

and

 

XXXXXXX Defendant

 

 

 

 

Response to Witness Statement of XXXXXXXX

 

I, XXXXXXX, will say as follows.

 

 

Preamble

 

This statement is made in response to the WS of the Claimant‘s solicitor, only received on the morning of this hearing, which has severely prejudiced the ability of the Defendant to respond to the Application as is his legal right. The Defendant has had very limited time to respond, and as a litigant in person, requests the Court’s indulgence for any errors or omissions in procedure.

 

The Defendant never wanted this case to go to court, and prior and subsequent to litigation has been in touch with the Claimant. This correspondence has even included offers to settle.

 

However, throughout this episode, the Claimant and its solicitor have repeatedly failed to comply with CCA requests, subject access requests and CPR requests, all of which were valid legal request and accompanied by the appropriate fee where required.

 

Because the Claimant has frustrated the Defendant’s efforts to settle, the Defendant is given no opportunity but to defend his position by whatever means necessary.

 

Each of the Claimant’s points is answered to mirror their points.

 

 

1. It should be noted that the witness has only second hand hearsay knowledge of these issues. This is demonstrated by the numerous factual errors and lack of knowledge of the true facts of the case.

 

 

2. The Claimant’s witness statement, delivered only to the Court and Defendant today, should have been attached to the Application and served on the Defendant. This is therefore an abuse of process.

 

 

3. The Defendant received a letter before action dated 9 September 2009, attached as Exhibit CD 01. This does not correlate with the Claimant’s assertion that this was sent on 19 August 2009. This seriously calls in to question the Claimant’s and the Claimant’s solicitors’s accuracy in its record keeping and therefore its version of events

 

The Claimant has stated previously that a copy of the LBA would be provided, but this has never been presented. Only today has the Defendant realised this was the document referred to by the Claimant (on receipt of its WS), as it had been filed under another date – the Defendant has kept full records of all correspondence received and sent. In any event, at the Claimant’s admission, the LBA was sent at a time when the Defendant was in correspondence with the Claimant regarding the provision of documents under statutory requests. The Claimant is fully aware of this fact, as the audit trail of correspondence can demonstrate.

 

 

4. The Claimant admits that only a reconstituted agreement was sent, and even then it did not comply with s 78.

 

The Court is asked to note the inaccuracy of the witness. The Claimant did not request a strike out of the Defendant’s evidence. It entered a default judgment on the basis that no defence had been entered. When the Defendant pointed out to the Court that a defence had been entered, the default judgment was set aside.

 

This demonstrates that the witness is not a master of the facts in this case, and appears not to have access to the correct details.

 

 

5. See above at 4.

 

 

6. The Defendant maintains this stance.

 

 

7. The amended defence was lodged by the Defendant in response to the bare bones of the Application for Summary Judgment. The CPR allows for this. In any event, the witness is hoist by their own petard in filing their witness statement on the day of the hearing rather than at the time of application, as required by CPR. It is grossly unfair to criticise the Defendant for defending himself, when the Claimant has clearly breached CPR by submitting its own WS as late as possible in order to disadvantage the Defendant.

 

 

8. The facts of the case have not altered since the Claim was stayed. The Defendant is at a loss to wonder on what new basis the Claim is suddenly suitable for Summary Judgment, other than in an attempt to take advantage of the Defendant’s status as a Litigant in Person.

 

 

9. The Defendant has proof that his WS was received by the Claimant on 1 December. It is neither an issue for the Defendant or the Court that the Claimant failed to act in time, but a failing of the Claimant to deal with the matter in a timely fashion. Again, this has severely prejudiced the Defendant.

 

Moreover, it was not until the Defendant telephoned the Claimant’s solicitor on 7 December that he was told a witness statement would be forthcoming. The solicitor told the Defendant that he was not entitled to see the witness statement, but that one would be sent. The Defendant was shocked by this blatant twisting of the Civil Procedure Rules.

 

 

10. The Claimant had also failed to respond to a valid CPR request for the documents, so the issue of CPR Part 16 is moot.

 

 

11. This is the first time the Defendant has been provided with any supposed copy of a Default Notice. The Defendant categorically denies ever receiving any such notice, and the Claimant is put to strict proof.

 

In this form, the Defendant is unable in any event to ascertain whether any such notice, if sent, is compliant with s87 of the Consumer Credit Act. The data fields provide no evidence of compliance.

 

However, the Defendant’s research has unearthed a sample HSBC default notice from 2009, attached as Exhibit CD 02.

 

The Court will note that the completed fields in this document only provide 14 days for compliance. This allows no time at all for service, and renders any such DN invalid. According to American Express v Brandon [2011], enforcement action cannot be brought on the back of an invalid default notice. This is a ruling of the Court of Appeal and is not a de minimis issue.

 

Again, the Defendant denies ever receiving a default notice, but avers that if one was sent but not received, it would not have been valid.

 

 

12. The witness states that a blank agreement form was provided 11 June 2009, but later claims that this complied with the judgment in Carey v HSBC. It should be noted that the Carey case only occurred in December 2009.

 

 

13. The Claimant is under the illusion that Carey v HSBC gives rise to the ability to enforce a reconstituted agreement.

 

It categorically does not.

 

HHJ Waksman made it clear that a reconstituted agreement can only be used to satisfy a s 78 request. Enforcement still requires a copy of the signed contract.

 

Moreover, Carey stated clearly in the terms accepted by all parties that the Terms and Conditions MUST be present at the time of signing.

 

This presents two distinct problems for the Claimant.

 

Firstly, the T&Cs supplied show absolutely no relation to the supplied blank application form. While Carey stated that the reconstituted agreement is a matter of substance not form, it also clearly stated that the T&Cs MUST be present at the time of signing. The Defendant categorically denies this was the case.

 

Secondly, the Defendant is absolutely certain that this account was opened without his signing any agreement at all, and avers this is why the Claimant is unable to supply a copy of a signed agreement. Whatever failing the bank’s system had, it did fail to complete a signed contract. The Claimant cannot simply rely on a ‘probability’ that the Defendant would have signed something. In the same way that efficient systems should ensure a contract is signed, so should they ensure that a copy of the signed agreement is retained. The Claimant cannot rely on the probability of one element of its operation being successful, then disown another element of its operation to suit its case.

 

(At the time of opening the account the Defendant was overdrawn with his current account and spoke to a lady from the XXXXXX branch over the phone. She suggested consolidating the unauthorised overdraft into a credit card. The card was subsequently received in the post. In this respect, no T&Cs could possibly have been provided at the time of signing.)

 

In any event, the Defendant categorically DID NOT EVER sign any agreement.

 

 

14. The Claimant claims that failure to comply with a s 78 request would not be fatal to its claim.

 

Phoenix Recoveries v Devendra Kotecha [2011] says otherwise. Failure to properly comply with a valid s 78 request is a bar to enforcement action. This case did not even consider the issue of reconstituted agreeements.

 

 

15. The Defendant maintains this position. An executed signed agreement is still required for enforcement under s 127.

 

 

16. No comment.

 

 

17. The Defendant maintains this position.

 

 

18. Again, the Claimant only refers to case law covering the fulfilment of a s 78 request, not of enforcement action. The Defendant is embarrassed as to why the witness confuses compliance with a s 78 request with enforcement action per se.

 

Further, the witness claims that an application form and a set of T&Cs is all that is required to comply with a s 78 request. Carey again made clear that the T&Cs must be those presented at the time of signing for a s 78 request to be fulfilled. If T&Cs were not presented at the time of signing, a s 78 request cannot, by definition, be complied with. As stated in point 13, this was not possible and there is no evidence to link the T&Cs supplied to the application form.

 

 

19. The witness’s statement is false, for many reasons.

 

First, the Defendant categorically NEVER signed an agreement.

 

Two, the Claimant cannot rely on the balance of probabilities that its system would have meant an agreement was signed, if it then relies on the fact that its systems failed to keep a copy of that agreement.

 

Three, the Defendant denies categorically that any T&Cs were provided at the time the card was issued.

 

 

20. The Defendant avers that s 127(3) does indeed apply, as the Claimant cannot possibly ever comply with a s 78 request due to the fact that an agreement was never signed, and that this is a bar to enforcement.

 

 

Summary

 

A. The Defendant is unable to proffer a reason why the Claimant has waited so long to apply to lift the stay. The Defendant is happy for the stay to be lifted, so the clearly triable issues can be heard in court.

 

B. The Defendant believes, for the reasons stated, that the Claimant has not presented any case suitable for summary judgment. In fact, given the evidence herein, it is averred that the Claimant’s case should be struck out for the fact that a s 78 has admittedly not been complied with, and cannot possibly ever be complied with.

 

C. Moreover, the Defendant has shown that any DN issued, if issued (which is denied) would most likely have been totally invalid due to insufficient time to comply.

 

D. I refer the Court to the case law mentioned in this statement.

 

E. The Defendant respectfully requests that the application for summary judgment be denied, and that the case goes to hearing.

 

F. A draft order for directions for the Claimant to provide proofs and documents is attached for the Court’s consideration, and the Defendant requests that this draft becomes part of any order.

 

 

 

 

STATEMENT OF TRUTH

 

I believe that the facts contained in this witness statement are true.

 

 

 

Signed:

 

Full name: XXXXXX

 

Date: 8 December 2011

 

 

 

And the Skelly

 

 

Claim No: XXXXXXXX

IN THE XXXXXXX COUNTY COURT

Between:-

 

HSBC BANK PLC

CLAIMANT

-and-

XXXXXXXXXXX

DEFENDANT

DEFENDANT’S SKELETON ARGUMENT

 

Introduction

1. I XXXXXXXXX make this statement in response to the claimant’s skeleton argument, ordered to be served on me by 22nd December 2011, which was not received until Saturday 31st December 2011. It is grossly unfair that the Claimant has clearly breached Civil Procedure Rules by submitting its own Skeleton Argument as late as possible in order to disadvantage the Defendant. I respectively request that the claimant’s application for summary judgement be denied for the following reasons herein, it is averred if denied that the Claimant’s case should be struck out for the fact that a s 78 has admittedly not been complied with, and cannot possibly ever be complied with.

Background

 

2. The Defendant never wanted this case to go to court, and prior and subsequent to litigation has been in touch with the Claimant. This correspondence has even included offers to settle.

 

3. As explained in the defendants witness statement (point 11) dated 8th December 2011 that has now been ordered to stand as my defence by District Judge XXXXX on the 15th December 2011, clearly explains that the first time I had seen a copy of the said default notice was when I received the claimants witness statement on the 8th December 2011. Point 11 of my defence dated 8th December 2011 clearly states that the Default Notice is invalid and sets out reasons of why the Default notice is invalid. It also has to be pointed out that the claimant stated in point 3 of their Skeleton argument that the arrears on the account was £225.47 and an outstanding balance of £4,656.43, yet the sum the claimant claims to be owed is £4,444. I have also found further evidence that the Default Notice would not of been valid and cover this in more detail in point 17 below.

 

 

4. The defendant does accept that I had received a letter before action dated 9th September 2009 and in point 3 of my defence dated 8th December 2011 it seriously calls in to question the Claimant’s and the Claimant’s solicitors’ accuracy in its record keeping and therefore its version of events, as the claimant’s solicitors have always maintained that a letter before action was sent 19th August 2009. The Claimant has stated previously that a copy of the Letter before Action would be provided, but this has never been presented. It was only when I received the claimants Witness Statement dated 7th December 2011 had the Defendant realised this was the document referred to by the Claimant (on receipt of its WS), as it had been filed under another date – the Defendant has kept full records of all correspondence received and sent. In any event, at the Claimant’s admission, the Letter before Action was sent at a time when the Defendant was in correspondence with the Claimant regarding the provision of documents under statutory requests. The Claimant is fully aware of this fact, as the audit trail of correspondence can demonstrate.

 

5. My defence dated 26th May 2010 was submitted because the claimant had failed to produce any documents when the defendant wrote to the claimant on the 1st May 2010 and the case was stayed.

 

 

6. The letter the defendant received from the claimant dated 16th December 2010 did not contain all the documents the claimant wished to rely upon. They had not supplied a default notice nor had they supplied a Letter before Action notice they claimed was sent on the 19th August 2009 and the claimant has always maintained the stance that this was sent on the 19th August 2009 however as explained above in point 4 it wasn’t until the claimants Witness Statement dated 7th December 2011 when I realised the letter before action they had sent me dated 9th September 2009 was the letter they were refereeing to.

 

7. The amended defence was lodged by the Defendant in response to the bare bones of the Application for Summary Judgment and having still not received all the documents that the claimant was wishing to rely upon, despite the claimant claiming they had sent the relevant information under cover of their letter dated 16th December 2010. This however wasn’t the case and they had failed to send the Default Notice, Termination Notice and the statements of the account. However due to the claimants solicitor sending me their witness statement dated 7th December 2011. District Judge XXXXXXX ordered on the 15th December 2011 that the defendant’s responses to the Witness Statement shall stand as his defence. So my amended defence is the witness statement dated 8th December 2011 and the one I wish to rely upon.

 

 

8. The defendants defence dated 8th December does not state this.

 

9. The defendant did not receive copy statements in the claimant’s letter dated 16th December 2010 despite requesting these on several occasions, namely a Subject Access Request on the 23rd February 2009, CPR request dated 1st May 2010 and the claimant claiming they had been sent on the 16th December 2010. I still as of today’s date still not received copy statements.

 

 

10. The claimant clearly states that a credit agreement needs to be signed to be enforceable and point 13 of my defence dated 8th December 2011 clearly states -Secondly, the Defendant is absolutely certain that this account was opened without his signing any agreement at all, and avers this is why the Claimant is unable to supply a copy of a signed agreement.

 

11. Point 13 of the defendants defence dated 8th December 2011 states that in the Carey –v- HSBC HHJ Waksman made it clear that a reconstituted agreement can only be used to satisfy a s 78 request. Enforcement still requires a copy of the signed contract.

 

12. By the claimants own admission I refer you to point 10 of the claimants skeleton argument, where they clearly state that it is a prerequisite of enforceability that a credit agreement be signed. The Defendant categorically NEVER signed an agreement.

 

 

13. The Claimant is under the illusion that Carey v HSBC gives rise to the ability to enforce a reconstituted agreement. It categorically does not. HHJ Waksman made it clear that a reconstituted agreement can only be used to satisfy a s 78 request. Enforcement still requires a copy of the signed contract. Moreover, Carey stated clearly in the terms accepted by all parties that the Terms and Conditions MUST be present at the time of signing.

 

14. This presents two distinct problems for the Claimant. Firstly, the T&Cs supplied show absolutely no relation to the supplied blank application form. While Carey stated that the reconstituted agreement is a matter of substance not form, it also clearly stated that the T&Cs MUST be present at the time of signing. The Defendant categorically denies this was the case.

 

15. Secondly, the Defendant is absolutely certain that this account was opened without his signing any agreement at all, and avers this is why the Claimant is unable to supply a copy of a signed agreement. Whatever failing the bank’s system had, it did fail to complete a signed contract. The Claimant cannot simply rely on a ‘probability’ that the Defendant would have signed something. In the same way that efficient systems should ensure a contract is signed, so should they ensure that a copy of the signed agreement is retained. The Claimant cannot rely on the probability of one element of its operation being successful, then disown another element of its operation to suit its case. (At the time of opening the account the Defendant was overdrawn with his current account and spoke to a lady from the XXXXXXX branch over the phone. She suggested consolidating the unauthorised overdraft into a credit card. The card was subsequently received in the post. In this respect, no T&Cs could possibly have been provided at the time of signing.) In any event, the Defendant categorically DID NOT EVER sign any agreement.

 

 

16. See above Point 13, 14 & 15.

 

17. My defence dated 8th December as mentioned many times was in response of finally receiving all of the documents the claimant was to rely upon with exception of the statements of account, upon receiving these documents I have been able to correctly defend myself and state as above point 13 the Defendant categorically DID NOT EVER sign any agreement. The first time the Defendant had been provided with any supposed copy of a Default Notice, was with the claimants Witness Statement dated 7th December 2011. The Defendant categorically denies ever receiving any such notice, and the Claimant is put to strict proof. In this form, the Defendant is unable in any event to ascertain whether any such notice, if sent, is compliant with s87 of the Consumer Credit Act. The data fields provide no evidence of compliance. However, the Defendant’s research has unearthed a further sample HSBC default notice from 2009, other than the one that was attached to my defence dated 8th December 2011. Please find attached as Exhibit CD 03.The Court will note that the completed fields in this document only provide 14 days for compliance. This allows no time at all for service, and renders any such DN invalid. According to American Express v Brandon [2011], enforcement action cannot be brought on the back of an invalid default notice. This is a ruling of the Court of Appeal and is not a de minimis issue. Again, the Defendant denies ever receiving a default notice, but avers that if one was sent but not received, it would not have been valid.

 

18. For the reasons set out in this skeleton argument, The Defendant avers that s 127(3) does indeed apply, as the Claimant cannot possibly ever comply with a s 78 request due to the fact that an agreement was never signed, and that this is a bar to enforcement.

 

Conclusion

19. The Defendant respectfully requests that the application for summary judgment be denied, for the points set out above and that the case goes to hearing and a draft order for directions for the Claimant to provide proofs and documents is attached for the Court’s consideration and the Defendant requests that this draft becomes part of any order.

 

20. As explained above in point 3 and in the order from District Judge XXXX on the 15th December 2011, my response to the claimants Witness Statement dated 8th December is to stand as my defence.

 

21. This was because some of the documents hadn’t been produced when requested earlier, however the claimant supplied all documents they plan to rely on with their Witness Statement dated 7th December 2011, with the exception of the statements of account. This was the first time I had seen the said evidence the claimant was going to rely on. Therefore for the first time allowing me to produce a proper defence.

 

 

22. Throughout this episode, the Claimant and its solicitor have repeatedly failed to comply with CCA requests, subject access requests and CPR requests, all of which were valid legal request’s and accompanied by the appropriate fee where required and frustrating my efforts of forming a defence. Because the Claimant has frustrated the Defendant’s efforts to settle, the Defendant is given no opportunity but to defend his position by whatever means necessary. The facts of the case have not altered since the Claim was stayed. The Defendant is at a loss to wonder on what new basis the Claim is suddenly suitable for Summary Judgment, other than in an attempt to take advantage of the Defendant’s status as a Litigant in Person.

 

 

STATEMENT OF TRUTH

 

I believe that the facts contained in this skeleton argument are true.

 

 

 

Signed:

 

January 4th 2012.

 

 

 

 

 

 

 

 

[DonkeyB]

Need also to see their WS that supported the SJ app – the one they said you weren’t entitled to see!

[Pipster2797]

Pipster, I hadnt increased the original total after pointing out you had done yourself out of £36.00..

 

So the total on the original sheet would have been £674.00 + the amounts above = £680.40, I think !!

 

 

sorted

 

1. Receiving and considering the Claim Form and Particulars of Claim (3 hours) = £54.00

2. Acknowledgement of Service (1 hour) = £18.00

3. Research regarding consumer credit law (5 hours) = £90.00

4. Preparing Defence (3 hours) = £18.00 This = £54.00

5. Research regarding detailed assessment proceedings and Litigants in Person (Costs and Expenses) Act 1975 (5 hours) = £90.00

6. Preparing Witness Statement (5 hours) = £90.00

7. Preparing Skeleton Argument (5 hours) = £90.00

8. Preparing bill of costs (2 hours) = £36.00

9. Time off work to attend hearing for Summary Judgement of 8th December 2011 = £80.00

10. Time spent in telephone costs and letters written and received (4 hours) = £72.00

11. Fuel Costs to attend hearing dated 8th December 2011 at (Travelling Costs HMRC Approved Mileage Rate of 45p / mile) a round trip of 8 miles = £3.60

12. Fuel Costs to collect claimants skeleton argument on the 23rd December 2011 at (Travelling Costs HMRC Approved Mileage Rate of 45p / mile) a round trip of 8 miles = £3.60

 

Summary

 

Costs payable by the Claimant £645.20 = This now = £681.20

Edited January 11, 2012 by citizenB

[Pipster2797]

Need also to see their WS that supported the SJ app – the one they said you weren’t entitled to see!

 

 

http://www.consumeractiongroup.co.uk/forum/showthread.php?329583-HSBC-v-Pipster-Court-Tomorrow!!-*****Discontinued*****&p=3663878&viewfull=1#post3663878

 

That should be it there

[citizenB]

12. The witness states that a blank agreement form was provided 11 June 2009, but later claims that this complied with the judgment in Carey v HSBC. It should be noted that the Carey case only occurred in December 2009.

 

 

This one is priceless

[Pipster2797]

This one is priceless

 

My fav, thanks goes to DonkeyB on that one

 

Does the costs look ok to send off then? Shall I send it to the court first or should I give DG a chance to pay before the court?

[citizenB]

Have amended post #196.00 for you

 

Then it is ok to send..

[Pipster2797]

D'OH. Sorted now. Cheers CB.

[DonkeyB]

These are the bits from Carey that kill them dead, and which I would have added to your skelly had I been around (sorry I wasn’t).

53 (11) It is said that if the debtor cannot have a copy in the sense required (for the most part) by Mr Uff and Mrs Thompson then he is at a disadvantage should he wish to challenge whether he made a properly executed agreement at all. I do not agree. First, this point only has real force if the Proof Purpose underlay s78 and I do not think that it does. Second, it assumes that there is no obligation on the debtor to make out at least some sort of positive case as to improper (or non-) execution of the original agreement. If he does and for example asserts positively that although he has been using a credit card agreement for years he never actually signed an agreement, or one that complied with s61, the creditor may well have to try and find the original in order to deal with that allegation. (I deal further with the absence of such positive allegations in relation to s61 when I consider below the Applications.) But that tells one nothing about the scope of s78;

53 (12) Obviously, in theory, there is more possibility of error if a creditor reconstructs from sources other than the executed agreement itself but for it to be able to reconstruct at all it will need the details of the debtor, the type of card and the date when made. If it has such details, it appears that there is no real difficulty in ascertaining the applicable terms including the relevant Prescribed Terms. And if so, there is unlikely to be a real risk of inaccuracy; I do not accept that a reconstituted copy is simply based on "mere assertion" by the creditor. It must - of necessity - be based upon records held as to the debtor and the agreement he made. That a creditor needs to take care when providing the copy is highlighted by the fact that it is implicit in its duty (as stated by Mr Gun Cuninghame) that it is an "honest and accurate" copy;

 

You unwittingly made an error initially in making a s78 request, IMO. You knew there was no signed agreement, so why make such a request?

 

The danger is that you imply you accept there was an agreement, and therefore a recon would become acceptable to satisfy your s78 request, even if there was no agreement. So then you could not use the lack of response to a s78 request as a defence. You need to make a positive assertion that you did not sign an agreement is the implication from Carey, above. This is an error that many LiPs make, by just following bog-standard templates.

 

Need to remember this for future cases!

[AndyOrch]

My fav, thanks goes to DonkeyB on that one

 

Does the costs look ok to send off then? Shall I send it to the court first or should I give DG a chance to pay before the court?

 

 

See post#170

 

Andy

[Pipster2797]

Right just about got everything sorted and going to get this posted off ASAP to DG Sols

[DonkeyB]

They watch the forums, so I’m sure they are composing their reply already.