MBNA court Activ Kapital

[The Mould]

I have attached one in post #142 above - is this the one? Or do you also want to see the unsigned agreement that they have included with it?

 

EDIT - looking at the WS draft you very kindly supplied above, I see you have referenced an unsigned agreement, so I will upload that unsigned agreement now.

 

 

Yes, Sham, I need to see a copy of the actual CCA that the Claimant has filed in support of his SJ application please.

 

 

Kind regards

 

 

The Mould

[shamrocker]

Ok...they have provided TWO agreement documents. One is the one attached above. I'll scan the other and post it straight away.

 

Thanks for the above information. I'll be eternally grateful to you whether I get a result or not!

[shamrocker]

Yes, Sham, I need to see a copy of the actual CCA that the Claimant has filed in support of his SJ application please.

 

 

Kind regards

 

 

The Mould

 

Hi TM

 

Here's a scan of the other unsigned agreement they've used in their WS. I've also added the signed & illegible (I believe) version for you.

 

Unsigned [ATTACH=CONFIG]52058[/ATTACH]

 

Signed [ATTACH=CONFIG]52059[/ATTACH]

[The Mould]

Hi TM

 

Here's a scan of the other unsigned agreement they've used in their WS. I've also added the signed & illegible (I believe) version for you.

 

Unsigned [ATTACH=CONFIG]52058[/ATTACH]

 

Signed [ATTACH=CONFIG]52059[/ATTACH]

 

 

Thank you Sham, going to view now and then post back.

 

 

Kind regards

 

 

The Mould

[The Mould]

OK Sham, a slightly amended draft 1st Witness Statement Evidence in Reply for you.

In the……………………….County Court Claim no.

Between:

The parties etc.etc

1st WITNESS STATEMENT of (your full name in caps)

EVIDENCE IN REPLY (DRAFT)

I, (your full name) of (your full postal address) am the Defendant in these proceedings and I make this statement as my evidence in reply in opposition to the Claimant’s summary judgment application dated (put the date). The facts and matters set out hereafter are made to the best of my knowledge and belief and I will say as follows:-

1. It should be noted that it appears that the claimant intends to rely on two different regulated credit agreements in support of his summary judgment application, one agreement is wholly illegible and bears only one signature and it is not possible to determine if “all the prescribed terms” are contained in that document, the Claimant has not produced any credible evidence to prove to the contrary and the other agreement appears to be slightly clearer, however, it is unsigned. The Claimant relies on both of these agreements which he claims are dated 2005, therefore they are subject to the provisions of the Consumer Credit Act 1974 (“the Act”) that are set out therein before the Act was amended.
   

a) Section 61 of the Act provides that

“61 Signing of agreement.E+W+S+N.I.

(1)A regulated agreement is not properly executed unless—

(a)a document in the prescribed form itself containing all the prescribed terms and conforming to regulations under section 60(1) is signed in the prescribed manner both by the debtor or hirer and by or on behalf of the creditor or owner, and

(b)the document embodies all the terms of the agreement, other than implied terms, and

©the document is, when presented or sent to the debtor or hirer for signature, in such a state that all its terms are readily legible”.

1. Both of the agreements relied on by the Claimant in support of his summary judgment application are clearly not properly executed agreements pursuant to section 61 of the Act, as a consequence, I believe that the agreements are both unenforceable by reason of the Claimant’s irredeemable breaches of section 61as per the provision of section 127(3) of the Act and in this regard, I respectfully draw this Court’s attention to the following House of Lords authority of Dimond v. Lovell [2000] UKHL 27 on this point of law where Lord Hoffmann, giving the leading judgment made this qualified statement:
   

Lord Hoffman

“Section 65(1) provides that an improperly executed agreement shall be enforceable only "on an order of the court." Section 127 gives the court power to make orders for the enforcement of agreements that are, for various reasons, improperly executed. But subsection (3) provides that a court shall not make an enforcement order for an agreement that does not comply with section 61(1)(a) unless the debtor signed a document containing "all the prescribed terms." The hiring agreement in this case did not and is therefore irredeemably unenforceable”.

1. In the light of the foregoing, the Claimant’s summary judgment application is not only absent of reality, which is the criteria which the Court must apply under CPR Pt 24, rather than one of probability, as stated by Lord Hobhouse of Woodborough in Three Rivers DC v Bank of England (No. 3) [2001] 2 All E. R. 513, but also the Claimants’ summary judgment application is bad in law and ought to be dismissed without any further ado.
   

1. In ED&F Man Liquid Products Ltd v Patel [2003] EWCA Civ 472, it was said that under CPR Pt 24 r.24.2 the overall burden of proof rests on the applicant to establish that there are grounds to believe that the respondent has no real prospect of success and that there is no other reason for a trial. The Claimant has clearly not discharged this burden and clearly cannot discharge this burden on the evidence upon which he relies in his application. The Claimant has not adduced any credible evidence in support of his application and in fact, the award he seeks from this Court thereon contravenes the Act and the authorities cited herein which I rely and which I believe clearly hold in my favour and completely undermine and defeat the Claimants’ application.
   
   
2. For reasons set out above, I believe that I have clearly demonstrated to this Court that I have very strong if not irrefutable prospects of succeeding at trial on the issues which hold in favour of my Defence against the Claimants’ extremely weak claim which I believe remains groundless in law and unmeritorious as of the date hereof. Accordingly, I respectfully request that this Court dismiss his application without any costs awarded to him thereon.
   
   

STATEMENT OF TRUTH

Signed………………………………………….this 7th day of July 2014

(print full name here) – Defendant/Respondent

You will need to print of 3 copies of the authorities cited above and to make 3 copies of your witness statement evidence in reply.

File one copy to the Court and serve one copy on the Claimant (his sols acting), send both by Special Delivery!

Kind regards

The Mould

[shamrocker]

Thank you so much, The Mould! I haven't read through it all yet, but what I have read seems like a sound defence to me.

 

I'll probably have one or two questions at some point, but this gives me something to focus on. I'll read up on your reference points so as to get a more complete understanding of them.

 

Thanks again....you guys are so kind!

[shamrocker]

P.S. Could this SJ hearing decide against the claimant (strike their claim out), or is it only to decide if their request for Summary Judgement in their favour can succeed?

[The Mould]

OK Sham, this is a third amended draft 1st Witness Statement Evidence in Reply for you.

In the……………………….County Court Claim no.

Between:

The parties etc.etc

1st WITNESS STATEMENT of (your full name in caps)

EVIDENCE IN REPLY (DRAFT)

I, (your full name) of (your full postal address) am the Defendant in these proceedings and I make this statement as my evidence in reply in opposition to the Claimant’s summary judgment application dated (put the date). The facts and matters set out hereafter are made to the best of my knowledge and belief and I will say as follows:-

1. It should be noted that it appears that the claimant intends to rely on two different regulated credit agreements in support of his summary judgment application, one agreement is wholly illegible and bears only one signature and it is not possible to determine if “all the prescribed terms” are contained in that document, the Claimant has not produced any credible evidence to prove to the contrary and the other agreement, which the claimant is clearly implying to mirror the illegible agreement, appears to be slightly clearer, however, it is unsigned. The Claimant relies on both of these agreements which he claims are dated 2005, therefore they are subject to the provisions of the Consumer Credit Act 1974 (“the Act”) that are set out therein before the Act was amended.
   

1. Both agreements, if they are indeed one and the same as implied by the Claimant, state that the rest of the terms and conditions thereto, including definitions, are contained in another document, the need to refer to another separate document for the rest of the terms & conditions and definitions, whether provided or not (which is not admitted that they were), in order to ascertain “all the prescribed terms” of the agreements, puts the Claimant in irredeemable breach of section 61of the Act by virtue of section 127(3) of the Act.
   

b) Section 61 of the Act provides that

“61 Signing of agreement.E+W+S+N.I.

(1)A regulated agreement is not properly executed unless—

(a)a document in the prescribed form itself containing all the prescribed terms and conforming to regulations under section 60(1) is signed in the prescribed manner both by the debtor or hirer and by or on behalf of the creditor or owner, and

(b)the document embodies all the terms of the agreement, other than implied terms, and

©the document is, when presented or sent to the debtor or hirer for signature, in such a state that all its terms are readily legible”.

1. Both of the agreements relied on by the Claimant in support of his summary judgment application are clearly not properly executed agreements pursuant to section 61 of the Act, as a consequence, I believe that the agreements are both unenforceable by reason of the Claimant’s irredeemable breaches of section 61as per the provision of section 127(3) of the Act and in this regard, I respectfully draw this Court’s attention to the following House of Lords authority of Dimond v. Lovell [2000] UKHL 27 on this point of law where Lord Hoffmann, giving the leading judgment made this qualified statement:
   

Lord Hoffman

“Section 65(1) provides that an improperly executed agreement shall be enforceable only "on an order of the court." Section 127 gives the court power to make orders for the enforcement of agreements that are, for various reasons, improperly executed. But subsection (3) provides that a court shall not make an enforcement order for an agreement that does not comply with section 61(1)(a) unless the debtor signed a document containing "all the prescribed terms." The hiring agreement in this case did not and is therefore irredeemably unenforceable”.

1. In the light of the foregoing, the Claimant’s summary judgment application is not only absent of reality, which is the criteria which the Court must apply under CPR Pt 24, rather than one of probability, as stated by Lord Hobhouse of Woodborough in Three Rivers DC v Bank of England (No. 3) [2001] 2 All E. R. 513, but also the Claimants’ summary judgment application is bad in law and ought to be dismissed without any further ado.
   

1. In ED&F Man Liquid Products Ltd v Patel [2003] EWCA Civ 472, it was said that under CPR Pt 24 r.24.2 the overall burden of proof rests on the applicant to establish that there are grounds to believe that the respondent has no real prospect of success and that there is no other reason for a trial. The Claimant has clearly not discharged this burden and clearly cannot discharge this burden on the evidence upon which he relies in his application. The Claimant has not adduced any credible evidence in support of his application and in fact, the award he seeks from this Court thereon contravenes the Act and the authorities cited herein which I rely and which I believe clearly hold in my favour and completely undermine and defeat the Claimants’ application.
   
   
2. For reasons set out above, I believe that I have clearly demonstrated to this Court that I have very strong if not irrefutable prospects of succeeding at trial on the facts which hold in favour of my Defence against the Claimants’ extremely weak claim, which I believe remains groundless in law and unmeritorious as of the date hereof. Accordingly, it is denied that the Claimant is entitled to the relief sought as alleged or at all and I respectfully request that this Court dismiss his application without any costs awarded to him thereon.
   
   

STATEMENT OF TRUTH

Signed………………………………………….this 7th day of July 2014

(print full name here) – Defendant/Respondent

You will need to print of 3 copies of the authorities cited above and to make 3 copies of your witness statement evidence in reply.

File one copy to the Court and serve one copy on the Claimant (his sols acting), send both by Special Delivery!

Kind regards

The Mould

[The Mould]

P.S. Could this SJ hearing decide against the claimant (strike their claim out), or is it only to decide if their request for Summary Judgement in their favour can succeed?

 

 

Your witness statement of evidence in reply should defeat the SJ hands down.

 

 

The Court may decide to strike out Claimants' claim based on the contents of your WS evidence in reply, or the Court will give further directions to both you and the Claimant to comply with.

 

 

Or,

 

 

You can make an application on form N244 to strike out his claim and use your WS evidence in reply and the legislation and authorities thereon and file it in support and at the same time that you file your WS evidence in reply as a cross-application against the Claimants' SJ so that the Court hears both applications at the same time. You will need to pay a fee though if you do make an application.

 

 

Kind regards

 

 

The Mould

[Ganymede]

Thank you so much, The Mould! I haven't read through it all yet, but what I have read seems like a sound defence to me.

 

I'll probably have one or two questions at some point, but this gives me something to focus on. I'll read up on your reference points so as to get a more complete understanding of them.

 

Thanks again....you guys are so kind!

 

That is an excellent witness statement from The Mould for you to use as a basis for your own, however if I may I'd like to make a suggestion.

 

I would lose all the "hereof", "thereon", "foregoing", "hereon" "without further ado" jargon.

 

The witness statement should be in your own words and it will be less obvious it's been written for you.

 

Judges aren't impressed by jargon like that. Nobody actually speaks like that unless you're Rumpole of the Bailey.

[AndyOrch]

Also lose the case law quotes...you can refer to them but show them as exhibits...A Witness Statement should be your words as advised above.

 

Andy

[The Mould]

Sham

I forgot to say that underneath STATEMENT OF TRUTH, you must write the words: “I believe that the facts stated in this 1st witness statement are true”

Then sign and date and your printed name under that.

The WS EVIDENCE IN REPLY that I posted for you is clearly marked with the word “Draft”. However, for the avoidance of any doubt, the relevant conditions of CPR that your WS must comply with are set out in Practice Direction 32 paragraphs 17.1 to 20.3. For ease of reference, I have reproduced the relevant paragraphs below for you.

Witness Statements

Heading

17.1 The witness statement should be headed with the title of the proceedings (see paragraph 4 of Practice Direction 7A and paragraph 7 of Practice Direction 20); where the proceedings are between several parties with the same status it is sufficient to identify the parties as follows—

Number:

A.B. (and others) Claimants/Applicants

C.D. (and others) Defendants/Respondents

(as appropriate)

17.2 At the top right hand corner of the first page there should be clearly written—

(1) the party on whose behalf it is made,

(2) the initials and surname of the witness,

(3) the number of the statement in relation to that witness,

(4) the identifying initials and number of each exhibit referred to, and

(5) the date the statement was made.

32PD.18

Body of Witness Statement

18.1 The witness statement must, if practicable, be in the intended witness's own words, the statement should be expressed in the first person and should also state—

(1) the full name of the witness,

(2) his place of residence or, if he is making the statement in his professional, business or other occupational capacity, the address at which he works, the position he holds and the name of his firm or employer,

(3) his occupation, or if he has none, his description, and

(4) the fact that he is a party to the proceedings or is the employee of such a party if it be the case.

18.2 A witness statement must indicate—

(1) which of the statements in it are made from the witness's own knowledge and which are matters of information or belief, and

(2) the source for any matters of information or belief.

18.3 An exhibit used in conjunction with a witness statement should be verified and identified by the witness and remain separate from the witness statement.

18.4 Where a witness refers to an exhibit or exhibits, he should state "I refer to the (description of exhibit) marked "..." ".

18.5 The provisions of paragraphs 11.3 to 15.4 (exhibits) apply similarly to witness statements as they do to affidavits.

18.6 Where a witness makes more than one witness statement to which there are exhibits, in the same proceedings, the numbering of the exhibits should run consecutively throughout and not start again with each witness statement.

32PD.19

Format of Witness Statement

19.1 A witness statement should—

(1) be produced on durable quality A4 paper with a 3.5 cm margin,

(2) be fully legible and should normally be typed on one side of the paper only,

(3) where possible, be bound securely in a manner which would not hamper filing, or otherwise each page should be endorsed with the case number and should bear the initials of the witness,

(4) have the pages numbered consecutively as a separate statement (or as one of several statements contained in a file),

(5) be divided into numbered paragraphs,

(6) have all numbers, including dates, expressed in figures, and

(7) give the reference to any document or documents mentioned either in the margin or in bold text in the body of the statement.

19.2 It is usually convenient for a witness statement to follow the chronological sequence of the events or matters dealt with, each paragraph of a witness statement should as far as possible be confined to a distinct portion of the subject.

32PD.20

Statement of Truth

20.1 A witness statement is the equivalent of the oral evidence which that witness would, if called, give in evidence; it must include a statement by the intended witness that he believes the facts in it are true.

20.2 To verify a witness statement the statement of truth is as follows—

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

20.3 Attention is drawn to rule 32.14 which sets out the consequences of verifying a witness statement containing a false statement without an honest belief in its truth.

(Paragraph 3A of Practice Direction 22 sets out the procedure to be followed where the person who should sign a document which is verified by a statement of truth is unable to read or sign the document.)32PD.22

Kind regards

The Mould

[shamrocker]

Thanks to you both. Before I read everything in more detail - just a quick question...

 

My WS needs to be in my Friday, but their WS application for SJ mentions me raising any objections not less than seven days prior to the hearing. This would mean that I need to get this WS in the post and to them for tomorrow.

 

What deadline is more important?

[The Mould]

Thanks to you both. Before I read everything in more detail - just a quick question...

 

My WS needs to be in my Friday, but their WS application for SJ mentions me raising any objections not less than seven days prior to the hearing. This would mean that I need to get this WS in the post and to them for tomorrow.

 

What deadline is more important?

 

 

See CPR below - 7 days before summary judgment hearing.

 

 

Rule 24.5 Evidence for the purposes of a summary judgment hearing

24.5

(1) If the respondent to an application for summary judgment wishes to rely on written evidence at the hearing, he must—

(a) file the witness evidence; and

(b) serve copies on every other party to the application,

at least 7 days before the summary judgment hearing.

(2) If the applicant wishes to rely on written evidence in reply, he must—

(a) file the written evidence; and

(b) serve a copy on the respondent,

at least 3 days before the summary judgment hearing.

(3) Where a summary judgment hearing is fixed by the court of its own initiative—

(a) any party who wishes to rely on written evidence at the hearing must—

(i) file the written evidence; and

(ii) unless the court orders otherwise, serve copies on every other party to the proceedings,at least 7 days before the date of the hearing;

(b) any party who wishes to rely on written evidence at the hearing in reply to any other party's written evidence must—

(i) file the written evidence in reply; and

(ii) unless the court orders otherwise serve copies on every other party to the proceedings,at least 3 days before the date of the hearing.

(4) This rule does not require written evidence—

(a) to be filed if it has already been filed; or

(b) to be served on a party on whom it has already been served.

Kind regards

The Mould

[AndyOrch]

Your WS for the Trial must be filed Friday ? Your WS in objection to their application for SJ must be submitted not less than 7 days pre hearing.

[shamrocker]

Thanks both. So I really need to get cracking with this. The point about 7 days is not one that quite hit me until this morning.

 

Is it imperative that I include the exhibits containing case law with the WS objecting to the SJ?

[AndyOrch]

If you are referring/relying on them...I personally never use case law in a WS.

[The Mould]

Thanks both. So I really need to get cracking with this. The point about 7 days is not one that quite hit me until this morning.

 

Is it imperative that I include the exhibits containing case law with the WS objecting to the SJ?

 

 

The case law and the legislation set out in the Draft WS EIR confirm to this lower County Court that the agreements relied on in support of the Claimant’s SJ application are irredeemably unenforceable.

Therefore, you ought to file & serve the same as exhibits in support of your 1st WS EIR. I cited these authorities in the draft 1st WS EIR because it is brief and concise on the points of law which the Claimants’ SJ application is subject to. I would leave the citation of legislation and authorities in your WS EIR otherwise, you will need to draft a skeleton argument and cite the same there (to my mind, given the clear cut points of law, drafting a skeleton argument in this matter would simply be duplication). At the hearing, simply use the contents of your WS EIR as your skeleton.

as time is of the essence, in order to speed things up for you, I have posted a link for each of the three authorities cited in your draft 1st WS EIR. You need to print off 3 copies of each authority.

http://www.bailii.org/uk/cases/UKHL/2000/27.html

http://www.bailii.org/uk/cases/UKHL/2001/16.html

http://www.bailii.org/ew/cases/EWCA/Civ/2003/472.html

Kind regards

The Mould

[shamrocker]

The WS EVIDENCE IN REPLY that I posted for you is clearly marked with the word “Draft”. However, for the avoidance of any doubt, the relevant conditions of CPR that your WS must comply with are set out in Practice Direction 32 paragraphs 17.1 to 20.3. For ease of reference, I have reproduced the relevant paragraphs below for you.

 

What is the significance of the word 'draft' - does this need to be included?

[The Mould]

What is the significance of the word 'draft' - does this need to be included?

 

 

 

No Sham, leave the word “draft” out.

In your 1st witness statement evidence in reply add this new paragraph:

A copy of each of the three authorities cited above are served attached to this witness statement in the bundle marked exhibit “_______” (put your initials. i.e John Smith would be “JS 1”) which I respectfully invite this Court to read.

The first A4 page of your bundle should be marked EXHIBIT “____” for the hearing on (put date) and must contain the Court name, claim no. the parties etc.etc.

Your name should be stated in the top right-hand header followed by Defendant and the claim no. and the date.

Kind regards

The Mould

[shamrocker]

Hi The Mould

 

Thanks for all the help.

 

In the end, I had to send it with the snippets within the WS body. I had changed it a few times after misinterpreting the various guidance above, but it finally hit home in your last post. I needed to get everything printed out and posted by 4:30pm, but my rubbish little printer would never have printed all the documents off in time. I just wish I had noticed the seven days requirement yesterday when you kindly provided me with the WS draft. I'm hoping they accept my WS as credible and factor in a bit of layman naivity on the part of not following protocol. I feel that the points were very well made, so I'm hoping this will be sufficient for them to give me the opportunity to fight on.

 

Out of interest, do you or anyone looking on know of any cases whereby any debt was ruled as being unenforceable under similar circumstances as mine?

[shamrocker]

The Mould

 

Hi TM

 

That the WS in reply to the SJ application has been submitted, does this mean that I also have to submit another WS, as per the Judge's directions. The deadline for this is Friday?

[The Mould]

Hi TM

 

That the WS in reply to the SJ application has been submitted, does this mean that I also have to submit another WS, as per the Judge's directions. The deadline for this is Friday?

 

 

Are these general case management directions, such as; standard disclosure, inspection of documents, exchange of witness statements and experts etc.etc?

Post up the directions order please, minus person details.

What time is the SJ hearing next week and how long is it listed for?

Kind regards

The Mould

[The Mould]

Sham

 

 

Make sure that you comply with all directions given by the Court.

 

 

Kind regards

 

 

The Mould

[shamrocker]

Are these general case management directions, such as; standard disclosure, inspection of documents, exchange of witness statements and experts etc.etc?

Post up the directions order please, minus person details.

What time is the SJ hearing next week and how long is it listed for?

Kind regards

The Mould

 

Hi The Mould

 

The WS for Friday is stated on the 'Notice of Allocation to Fast Track.

 

I've attached the notice below.

 

[ATTACH=CONFIG]52104[/ATTACH]

 

Your advice would be most appreciated. I had hoped to start tackling this last week but the SJ application took all my attention.

 

Thanks as always...

 

Sham

 

P.S. The SJ hearing for next week is set for 11:25am and scheduled to take 30 minutes.