Another Arrow Global Claim

[stillstanding]

Not posted before but read loads.

 

My thread follows a few that I've read on here.

 

N1 issued in Feb with no docs by Bryan Carter, CPR request submitted, no docs turned up and holding defence was put in.

 

At AQ I submitted a draught order for directions requesting docs or a strike out.

 

Ended up with a hearing with a judge who gave an order for AG to produce a WS and all docs to rely on by 14th Sep.

 

When nothing was submitted by AG I wrote to the court on 15th telling judge we have been prejudiced by a lack of docs and requested direction. Despite phoning the court earlier this week and being assured that a judge would look at it urgently I am still waiting for my letter to be looked at.

 

I need to submit a WS and docs to rely on by tomorrow and the court have advised me to submit these anyway as it will look better and the judge may not get to look at it.

 

Now I'm a little lost. I need to do a WS and prepare a bundle (small claims court). I've never got to this stage before so am not sure exactly what is required. My argument is based on AG not having a notice of assignment with proof of delivery and no DN was issued. (AG were not the original creditor, nor was the previous company).

 

I'm half expecting / hoping that the judge will see my letter and strike te claim out for non compliance with his order but still need to prepare in case he doesn't.

[Mike_hawk]

Hi Stillstanding

 

Welcome to Cag

 

Could you type up the details of the Order verbatim please

[stillstanding]

Hi Mike-Hawk, thanks for replying

 

The claimant shall by 4pm on 14th Sep, file with the court and serve upon the defendant copies of all documents including witness statements upon which it intends to rely to include evidence of default notices and assignment of debt.

 

The defendent shall by 4pm on 5th Oct send to the court and the claimant copies of all documents upon which she intends to rely to include a witness statement.

 

The claimant be permitted to file a statement relating to any new issues raised by 4pm 12 Oct

 

Hearing date 8th Nov

[Mike_hawk]

Hi ss

 

Its a bit wishy washy...... all it requires from them is evidence of DN's and assignment....... in effect they could just present data records and witness that it is/was company policy to issue at the required time. Quite a low burden of proof on the sct and I'm sure they'll cover themselves in their w/s

 

From your side.... I suppose if you have any records of previous formal requests [CCA, SAR, Part 18 & 31] or informal requests in any communications that can put their version of events in doubt it would be useful. Ideally that would form the base of your witness statement and copies of those requests or disputes should be included in your bundle.

 

They'll wait on yours before serving theirs, its bad form and an abuse but 9 times out of 10 they'll get away with it as it won't affect the trial date.

 

Have a go at drafting your w/s and I'll take a look at it with you before you post it off. Yours will be late in service but I think you'll be fine

[stillstanding]

Heres the first draught

 

In the XXXXXX County Court

Claim number XXX

 

Between

Arrow Global Guernsey Ltd – Claimant

 

and

 

Still Standing - Defendant

 

Witness Statement

 

 

1 I stillstanding of xxxx make this statement is in support of my Defence to the Claimant’s, claim number xxxxxxx of which I confirm the contents are true and accurate.

2. The Particulars of Claim are vague and insufficient and do not disclose an adequate statement of facts relating to or preceding the alleged cause of action. The defendant has NEVER had any kind of agreement, neither verbal or written, with Arrow Global Guernsey Ltd. No particulars are offered in relation to the nature of the written agreement referred to, the method by which the Claimant calculated any outstanding sums due, the details of any default notices issued or any other matters necessary to substantiate the Claimant's claim.

3 It is possible that this action could have been previously settled if the necessary documentation had been previously supplied.

4 I deny that a contract exists between me and the claimant. I acknowledge that an agreement existed between Egg Bank and myself account numbers xxxxxxxxxx and note specifically that these agreements were regulated by the Consumer Credit Act 1974 and that it contains terms and conditions which are subordinate to the provisions of the Act.

5 Arrow claim that the debt was assigned from Barclaycard. I deny that a contract existed between Barclaycard and myself and request proof thereof.

6 I deny that I have received a notice of assignment from either Egg or/and Barclaycard and have requested the claimant to provide proof of such notice compliant with s136 of the Law Of Property Act and proof of delivery of said notice compliant with s196. Without such proof the claim is doomed to fail.

7 I deny that I have ever received an effective default notice.

8 Under Section 87 of the Consumer Credit Act 1974 (The Act) the creditor must deliver a Default Notice that complies with all of the requirements of Section 88 of the Act and of the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 before the Claimant will become entitled to make any demand for early payment.

The Defendant refers to the judgment of Woodchester Lease Management Services Ltd v Swain and Co NLD 14 July 1998 where, in the Court of Appeal, the court addressed in some detail the issue of the contents of a default notice and concluded that should the notice fail to comply with the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) it would render the default notice invalid.

9 Service of a default notice is a statutory requirement as laid out in Sections 87, 88 and 89 of the Consumer Credit Act 1974. Section 87 makes it clear that a Default Notice must be served before a creditor can seek to terminate the agreement or demand repayment of sums due to a breach of the agreement. Therefore without proof that a valid default notice was properly served on the Defendant, it is suggested that the Claimant's case falls flat and cannot proceed. To do so would clearly be contrary to the Consumer Credit Act 1974.

10 The claimant’s duty solicitor has already stated at the hearing of 2.8.2012, that they are unlikely to be able to produce a copy of the default notice.

12 A General Judgement by the court requested delivery of a Witness Statement and for disclosure of all documents upon which the claimant intends to rely by 14th September 2012. to including the notice of assignment and default notice.

13 The claimant as of 3.10.2012 has still failed to conform to the judgement, and to produce the documentary evidence that they have been assigned the debt and have a right to enforce payment.

14. The claim should therefore be struck out and the Defendant shall be at liberty without further order to apply to this court for judgment and for costs on the standard basis to be subject to detailed assessment proceedings if not agreed.

15 I believe the facts stated in this witness statement are true.

 

 

 

XXXXXX

 

Date: 03 October 2012

[Mike_hawk]

Hi ss

 

Reads a little too much like a defence. Statement should really be just a chronological history of events to provide the judge with some history of the case.

 

Has it produced a copy of the agreement, if not state that no agreement has been disclosed? Have you made requests for dislosure and it has declined relief, if so you need to provide a record within your w/s? If it has [evidenced], did the court agree that it complied with the act and contained all prescribed terms?

 

Same for any/all documents, instruments or notices....... give the court some background to show how unreasonable the claimant has been [assuming it has been]

 

Try running through each point like the example below, keep it in chronological order ....... if you made enquiries regarding a number of documents on the same day combine the points rather than test the judges patience having to keep re-reading it to get his head round the timeline.

 

4 I deny that a contract exists between me and the claimant. I acknowledge that an agreement existed between Egg Bank and myself account numbers xxxxxxxxxx and note specifically that these agreements were regulated by the Consumer Credit Act 1974 and that it contains terms and conditions which are subordinate to the provisions of the Act.

5 Arrow claim that the debt was assigned from Barclaycard. I deny that a contract existed between Barclaycard and myself and request proof thereof.

 

 

You could change to.....

 

The Claimants case rests upon a assignment of a Barclays account at an undisclosed date, having never entered into a financial relationship with Barclays I was at a loss to explain its initial statement within its particulars of claim.

 

Subsequently, and following internet research, I am now aware that Barclays were the assignee of certain Egg credit card accounts but have been unable to establish whether the case against me is for such an account.

 

Absent any notice of assignment from Egg, Barclaycard or the claimant and having been provided with no written records of my financial relationship with Egg I am unable to verify the content or nature of the agreement the claimant now seeks to enforce or whether, if such an agreement exists, it complies with the relevant statutory instrument .

 

At xxx date, I made a request for a copy of the agreement, enclosing the statutory fee, the claimant denied relief

 

At xxx date, I xxxxxxxxxxxxxxxxxxxx

 

To date the claimant has failed to disclose any agreement, notice of assignment, evidence of chain of assignment........

[stillstanding]

Received an order from the court giving AG untill yesterday to comply with the previous directions to disclose all docs else the claim would be struck out. Spoke to the court this morning and they still haven't recieved anything so they advised us to write in to inform them. Is it too early to mention costs?

[Mike_hawk]

What was the term used within the order 'Unless.............. shall be struck out without further order' ?

[stillstanding]

It was just "shall be struck out".

 

Since my post we have had notification from the court saying it has been struck out. I guess I need to do a n244 to apply for costs?

[Mike_hawk]

Hi ss

 

 

Yep, unfortunately you'll need to stump up a £45.00 fee........ yours should fall within the same rule as Phaituns. Shout if you get stuck

[stillstanding]

Thanks Mike, I'll draught something up tomorrow.

[AndyOrch]

Have you requested or been granted Costs SS.? Is your case Small Claims Track?

 

Regards

 

Andy

[stillstanding]

Have you requested or been granted Costs SS.? Is your case Small Claims Track?

 

Regards

 

Andy

 

It is small claims track and I haven't requested or been granted costs at this stage.