M+S ordinary cause citation - old 1st credit Chargecard turned into creditcard **WON absolvitor issued**

[Monty2007]

Dear SFU

 

Could you clarify (approx) how much they are suing you for?

 

It sounds like an Ordinary Cause Action from what you have said. You should have received a writ and Form O7 (notice of intention to defend) and a form that essentially allows you to admit and pay.

 

From what you also state in your PM I think you should defend so you will need to respond to the Sheriff Court with Form O7 completed and they will charge you £75 for the privilege of defending yourself (outrageous I know!). This is all you need to do for now, the nest stage is the Defence and you have three weeks from the end of the current notice period.

 

If you could post up the writ which will include their Condescendence - their statement in an action setting forth the grounds of action of the Pursuer and pleas-in-law. The Condescendence will be numbered, the first stating that they have the right to sue you in the Scottish courts and the second/third ones stating the details of the writ. When we defend we will answer each of these, failure to do so means that you admit that particular statement.

 

You have posted this up in plenty of time and once you complete and return Form O7 you will then have three weeks to submit a defence and your pleas-in-law. I can help you with this. Could you also confirm:

 

1. If you have a default notice

2. If they have terminated

3. Any fees or late payment charges on the account since you may want to consider a counter claim for these.

 

The Scottish process is very different from that in England jurisdiction but the statues and case laws are the same. You just need to get familiar with the process and I suggest you get hold of a copy of Civil Procedure and Practice by Hennessy, Charles ISBN 0414012836. I found this book very useful

 

I suggest you blank out your personal details and post up the relevant docs, I can then suggest how you may want to defend and what I have done/know with regards to my own case which is coming up for a legal debate on their pleas and my defences.

[Monty2007]

Hi Monty, thanks for getting back so quickly

They are suing for £12k + expenses

I have posted the first page (form 05) here poem192.jpg picture by soccerdoc - Photobucket and the second page at poem193.jpg picture by soccerdoc - Photobucket for you to have a look. The actual writ is at POC1 picture by soccerdoc - Photobucket 2. POC2 picture by soccerdoc - Photobucket.

Do I simply return O7 at this stage (with £80 btw) and then have 21 days to lodge reasons for defence/pleas in law?

 

Yes you need to submit form O7 and the Court fee, I would do this in person if you can.

 

Or should I wait and put both in at once?

 

No, you will have plenty of time for the defence and no need to rush

 

Do I have a default notice - not really sure. Sorry but I am not good at keeping these things (head just coming above ground, if you know what I mean), but I dont think anything arrived called "default notice". I did get a "statutory arrears notice" from them on the 18th March (same day as the account is marked as having gone to to solicitors, if that's significant at all?) You can see the statutory arrears notice at poem195.jpg picture by soccerdoc - Photobucket. In any event it has an inaccuracy as it says that they have sent this when the last two minimum payments havent been received. I didnt pay them (couldnt) since July 2008. Dont know why they would say that?

 

Not sure either, if you can find the DN it would help since they may have messed it up which will be in your favour.

 

However, I have also written them Ida's "information request letter" so if they have sent a default notice, it should be part of that bundle. They stopped adding interest on 18th March and "passed to solicitors" (it says in the statements that they sent to me).

 

No disrespect to Ida but it is likely that they will completely ignore your letter requesting information. There are no CPR rules in Scotland and the Pursuer (and Defender for that matter) must submit any documents to the other side and Sheriff that they refer to in their writ or defence.

 

 

If they or you don't then you can't use them. During the adjustments phase the Pursuers will submit an Inventory of Productions which will contain all that they seek to rely on in court

 

There are £60 of fees in the last few months before it went to their solicitors -late payment, overlimit etc - would you believe 5 of them (ie 5 times 12)? Compared to the rest not a priority imo.

If there is anything else you need to know, just tell me.And thank you so much for your help.

 

as above in red

Edited May 17, 2009 by Monty2007
sp

[Monty2007]

Dear SFU

Your writ from McClure Naismith needs to be responded to according to OCR procedure and as you PM'd this needs to be lodged with the Sheriff Court this Monday and copied to McClure Naismith. You can get away with faxing but I would recommend delivery in person.

 

Once your defence is lodged will then have a period of adjustments, the correspondence of which is between you and McClure Naismith and is not copied to the Sheriff Court.

 

The process of adjustments also includes the pleas-in-law and is to enable both sides to focus in on the legal and disputed aspects of the case such that when it comes before the Sheriff he/she will have the final "Record" which should just contain the disputed aspects of the case.

 

Your Defence:

You will see that they have numbered sections to their Condescendence and you must respond in the same way and style.

 

Hence each statement made against you must be replied to with either; admit, deny and/or it is explained that, failure to do so means that you admit that part of their writ.

 

The final part of the defence is your pleas-in-law.

 

The Scottish OCR allow you to simply deny each part of their Condescendence and leave them to provide otherwise, this is not recommended though and I would suggest that you include the relevant aspects of the CCA & SI that will build your defence position during the adjustments phase.

 

Before the adjustments period ends you will also need to file a Rule 22.1 note that essentially informs the Court that you wish to rely on your pleas-in-law otherwise they will be repelled at the Options hearing.

 

I can help you will this later.

 

Three days before the options hearing McClure Naismith will provide the Court and you with the final Record that will contain all the adjustments and final pleas-in-law.

 

With a Rule 22.1 note then the Sheriff will only be able to direct a legal debate or proof before action.

 

You are likely to get a legal debate given the fundamental argument will be the interpretation of the CCA and SI.

 

If you want to post up your defence then I will help as much as possible.

Good luck

[Monty2007]

FIRST DRAFT

 

 

SHERIFFDOM OF XXXXXXXXXXXXXXXXXXX

 

 

 

Court Ref. No. XXXXXXX

 

 

 

MOTION FOR THE DEFENDER

 

 

 

in the cause of

 

 

 

MARKS & SPENCER FINANCIAL SERVICES PLC, a company incorporated under the Companies Acts, having its Registered Office at Marks & Spencer Financial Services, Kings Meadow, Chester, Cheshire GH99 9FB

 

 

 

PURSUER(S)

 

 

 

Against

 

 

 

Me residing at where I stay

 

 

 

 

 

DEFENDER

 

 

ANSWERS TO CONDESCENDENCE

1.The averments regarding the defender are admitted. The existence of jurisdiction is admitted. Quoad ultra not known and not admitted.

2.Denied, (remove as and replace with "it is explained that")

a.There is no signed agreement in existence for the Mastercard xxxxxxxxxxxxxxxxxxxxxx. The DEFENDER will present a letter from the PURSUERS confirming this in his first Inventory of Productions.

 

• 
  
  • The agreement allegedly entered into on or about 1 December 1984 is unenforceable (remove "in law as it lacks details required by the" and replace with "under the") Consumer Credit Act 1974 Section 60(1)(a) – including, but not limited to, there being no heading saying it was a Consumer Credit Agreement; no credit limit; no details about repayments; no term stating the rate of interest to be applied; no signature by the defender.
    
  • On or about September 2003, Marks and Spencer Financial Services sent the defender a Mastercard (xxxxxxxxxxxxxxxx) in breach of the Consumer Credit Act 1974 Section 51(1) and committed an offence in that they gave me a credit token when I had not requested this. The DEFENDER will present a letter from the PURSUERS confirming this (within his first Inventory of Productions).
    

d.The above notwithstanding, the transfer without request to a new agreement by Marks and Spencer FS is not enforceable as the Chargecard and Mastercard are so different as not to fall under the protection of the Consumer Credit Act 1974 Section 51 (3)(a) or (b). In particular the terms and conditions of the Chargecard and Mastercard differed in that

i.The agreement for the Mastercard is for a credit card, while the Storecard agreement was for a store card.

ii.Credit limits and interest rates for the two cards differed, as did other terms and conditions

iii.The Mastercard could be used in shops and businesses anywhere which displayed the Mastercard sign, while the Chargecard was restricted to use in Marks and Spencer shops.

3.Denied, as

a.No Default Notice has been served on the DEFENDER by the PURSUERS.

b.Given that the agreement is not enforceable in law, the PURSUER had no legal authority to require payment

4.Admitted but justified as there is no legal agreement between the parties, and the action has been brought before a Default Notice has been served, as required by law.

PLEAS IN LAW

1.The PURSUER’S averments are irrelevant et separatim lacking in specification, the action should be dismissed

2.The purported credit card agreement which the PURSUERS will present as evidence, does not conform in form or content to Section 60(1)(a) of the Consumer Credit Act 1974 and as such is unenforceable under Section 127(3) of the same Act. The Defender craves that the court uses its powers under Section 142 of the same Act and declare that the purported credit card agreement supplied by the Pursuer as unenforceable.

3.The PURSUERS on or about September 2003 from Chargecard to Mastercard was an offence under Section 51(1) of the Consumer Credit Act 1974, rendering any agreement between them and the DEFENDER unenforceable

4.The PURSUERS, by virtue of not having served a Default Notice, are not entitled under the Consumer Credit Act 1974 Section (87) to demand payment of the balance and the DEFENDER craves that the application be dismissed.

 

Monty, or anyone else, I would appreciate your comments on this. My plan is to finish this off tomorrow (Sunday) evening, print it off and put the

copies in envelopes to be delivered by hand on Monday before midday.

 

Dear SFU

 

Looks good, I have made a few comments in red. Just check that the M&S address that you have used is exactly the same as what they have used in their writ.

 

Monty

[Monty2007]

Thanks Beetle1234. It is good to see everyone helping each other and I have had lots of help over the past few years from experts such as BRW, Rory and many others on CAG. It really is a matter of understanding the legal process although it is less well documented for these cases in Scotland but in practice the law up here is more "defender friendly" since we don't have this terrible "strike-out" which seems to be used as a matter of routine down south.

 

I just hope we all get Sheriff's who are neutral and at least hear and understand the arguments.

 

Did you get your documents in OK SFU?

[Monty2007]

I have been having a wee crisis of confidence about the date my Chargecard agreement was signed - December 1984, as the Consumer Credit (Cancellation Notices and Copies of Documents) Regulations 1983 (SI 1983/1557) allows a creditor, where an agreement was signed before 19th May 1985 to produce "an easily legible statement of the current terms of the agreement or security as the case may be insofar as they are known to the creditor or owner where, due to an accident or some other cause beyond his control, the creditor or owner does not have in his possession the executed agreement or security instrument or any copy thereof" - in other words not the original document (not even with a signature ).

To be quite clear, the problem is that M&S admit that they dont have a signed agreement for the &more card they are taking the action for. They claim that they dont need this and can rely on the agreement for the Chargecard (signed in 1984). So, they say they will produce this in court. BUT, what if they rely on Cancellation Notices etc on the basis that the agreement was signed in 1984 and the above terms applies. No agreement for &more and an "easily legible statement" for the Chargecard. I would still like an opinion on this to see if they could pull a stroke like this in court.

However, I was advised in PM by Monty to ask Curlyben (remember him:) - now on Legal seagulls if anyone wants to find him). So I registered and posted the question, along with my answer to their condescendence. He just went straight by the Cancellation point and advised

"At the end of the day this action is based on the &more CREDIT card, so an agreement for the charge card, no matter when it was signed, will not prove cause of action in this case. If they cannot produce a compliant agreement you have a very clear s127(3) defence and I would seek a ruling under s142."

I have therefore thinking about amending my pleas in law to include a new term 2 (ie the new term is 2 - 1 has always been there and what were 2-4 are now 3-5). In the event that I do amend the plea it would look something like this

ANSWERS TO CONDESCENDENCE

1.The averments regarding the defender are admitted. The existence of jurisdiction is admitted. Quoad ultra not known and not admitted.

2.It is explained that, as

a.There is no signed agreement in existence for the Mastercard Credit Card 1005108227834649. The DEFENDER will present a letter from the PURSUERS confirming this in his first Inventory of Productions.

 

• 
  
  • The agreement allegedly entered into on or about 1 December 1984 is unenforceable under the Consumer Credit Act 1974 Section 60(1)(a) – including, but not limited to, there being no heading saying it was a Consumer Credit Agreement; no credit limit; no details about repayments; no term stating the rate of interest to be applied; no signature by the defender.
    
  • On or about September 2003, Marks and Spencer Financial Services sent the DEFENDER a Mastercard Credit Card (1005108227834649) in breach of the Consumer Credit Act 1974 Section 51(1) and committed an offence in that they gave the DEFENDER a credit token when this had not been requested by the DEFENDER, as required by Section 51(2) of the Consumer Credit Act 1974. The DEFENDER will present a letter from the PURSUERS confirming this within his first Inventory of Productions.
    

d.The above notwithstanding, the transfer without the request of the DEFENDER to a new agreement by Marks and Spencer FS is not enforceable as the Chargecard and Mastercard are so different as not to fall under the protection of the Consumer Credit Act 1974 Section 51 (3)(a) or (b). In particular the terms and conditions of the Chargecard and Mastercard differed significantly in that

i.The agreement for the Mastercard is for a Credit Card, while the Chargecard agreement was for a Store Card.

ii.Credit limits and interest rates for the two cards differed, as did other terms and conditions

iii.The Mastercard Credit Card could be used in shops and businesses anywhere which displayed the Mastercard sign, while the Chargecard was restricted to use only in Marks and Spencer shops.

3.Denied, as

a.No Default Notice has been served on the DEFENDER by the PURSUERS as required by the Consumer Credit Act 1974 Section 87 (1).

b.The PURSUER had no legal authority to require payment, as there is no enforceable agreement under the Consumer Credit Act 1974, as craved above in answer 2 (a) – (d).

4.Admitted but justified as

a.there is no legally enforceable agreement under the Consumer Credit Act 1974 between the parties, and

b.the action has been brought before a Default Notice has been served, as required by the Consumer Credit Act 1974, Section 87 (1).

PLEAS IN LAW

1.The PURSUER’S averments are irrelevant et separatim lacking in specification, the action should be dismissed

2.Since the PURSUERS admit no signed agreement exists for the Mastercard Credit Card 1005108227834649, there can be no properly executed regulated agreement in terms of the Consumer Credit Act 1974 Section 60(1) and (2) and Section 61 (1). The agreement therefore has been improperly executed, and is enforceable only by order of the Court under Section 65 (1) of the Consumer Credit Act 1974. However, Section 127 (3) of the Consumer Credit Act 1974, specifically states that the Court shall not make an enforcement order under section 65(1) if section 61(1)(a) (signing of agreements) was not complied with. The Defender craves that the court uses its powers under Section 142 of the same Act and declare that the purported Mastercard Credit Card agreement unenforceable.

3.The purported credit card agreement which the PURSUERS will present as evidence, does not conform in form or content to Section 60(1)(a) of the Consumer Credit Act 1974 and as such is unenforceable under Section 127(3) of the same Act. The Defender craves that the court uses its powers under Section 142 of the same Act and declare that the purported Mastercard Credit Card agreement supplied by the Pursuer as unenforceable.

4.The PURSUERS transfer from Chargecard store card to Mastercard Credit Card on or about September 2003 was an offence under Section 51(1) of the Consumer Credit Act 1974, and is not protected by Section 51(3) of the Consumer Credit Act 1974, rendering any agreement between the Pursuers and the DEFENDER unenforceable

5.The PURSUERS, by virtue of not having served a Default Notice, are not entitled under the Consumer Credit Act 1974 Section 87 (1) to demand payment of the balance and the DEFENDER craves that the application be dismissed.

 

I wondered if anyone had any comments on either

 

1. whether they could use the Cancellation notices etc Regs in the way that I sketched out above
   
2. about including new plea in law 2 (note the rest is unchanged from what went into court)
   

Thanks

SFU ;-)

 

Looks good SFU, however I would not make reference in your pleas relating to a document that has not been put in the Record by the Pursuer (plea number 3). You should only make reference to those documents that they have submitted within their inventory of productions, you could of course include the document that they send you in your inventory and make reference to it that way.