Hoist Claim Form - TSB Lloyd trustcard Credit Card debt *** Claim Discontinued ***

[Micky the Hippo]

I'm not a lawyer but if that case went to the appeal court and was upheld that it can be used as precedence by the lower courts can't it?

[dx100uk]

yes it can be used by the lower courts BUT ...as SR said, it's [p'haps] relevant.....

 

i added p'hap's as you need to point out it's not in your case, the date of your agreement pre dates carey and the carey case is not retrospective to pre apr 2007 CCA act changes. this is an important point you need to make amongst the others about carey.

they always throw carey into the mix where they don't have the required paperwork and know it,

 

in your case they must produce the signed agreement for court enforcement regardless to the fact that, poss, under carey, what they have produced might be compliant under the consumer credit act . two totally different things.

[barafear799]

My only fear DX is that I have lost a case a couple of years ago relating to a loan agreement from 2003 and their solicitor quoted Carey case to the judge and it was used against me - that time they used a reconstituted agreement for the loan agreement. 

Clearly, that judge did not accept that because my agreement was pre-2007 made it exempt from the Carey judgment.

 

 

[shamrocker]

Have they included or mentioned Carey anywhere in this process so far?

[barafear799]

No not at all. As I said in an earlier post, I'm not even sure if they've used the word "reconstituted" in their WS. But clearly the "t&c" (7 pages) have been added to the "signed application form" at a later date, because they were not included when I first got my response to my CPR/CAA request letters. 

[shamrocker]

Ok... it's pretty simple then - the agreement doesn't comply with s.61(1), so is neither properly executed nor enforceable through the courts, by virtue of CCA s.127(3). If they don't bring Carey into it then they cannot rely on it later. Maybe that's what DX was alluding to.

 

Edit to add: admittedly, the use of Carey to support a Claimant's case when they're relying on a recon for enforcement is totally wrong. You should be able to bat it off if you're wise to it.

Edited December 10, 2019 by shamrocker

[dx100uk]

sorry....that's because hippo asked the question and I didn't see it wasn't the op....

random questions are p'haps better asked on one's own thread...………………..

[Micky the Hippo]

Sorry, I thought it relevant to this thread.

[shamrocker]

1 minute ago, dx100uk said:

sorry....that's because hippo asked the question and I didn't see it wasn't the op....

random questions are p'haps better asked on one's own thread...………………..

 

I was actually referring to your post from last night, DX. i.e. if they're not relying on Carey themselves then don't do them any favours by introducing it for them. 

[dx100uk]

too right!

[barafear799]

I am leaving this rather late - let's hope the court has some leniency as I am a lay person defending myself - and also Christmas post.

The address I have for the court is a PO Box Number. But clearly, I know where the court is - as it is in my home town - does this mean I can or cannot "post in person"? I tried to phone them up to ask the question - found I was no.36 in the queue and gave up!! 

Clearly, the general judgment/order does not ask for me to send a copy to claimant - so is it ok to just send it to the court? 

 

Ok, uploaded first attempt. Some advice as to what to add or remove much appreciated. 

Thanks so far for all the valuable advice.

 

I'm also planning on attaching a copy of the illegible form that the claimant has provided - just so that it emphasises it when the judge looks at it. Is that ok?

 

 

witness statement_Hoist_Dec2019_REDACT.pdf

Edited December 10, 2019 by barafear799
typo

[dx100uk]

you can hand it in to the court .

 

i'll look later.

 

dx

[barafear799]

cheers.

 

Is it ok to stick in their letterbox? I cannot be there in person during their opening times. 

[AndyOrch]

 Judgments on Permission to Appeal applications dont usually set precedent.

[barafear799]

Any advice on my defence please?

Thanks.

[dx100uk]

its not a formal defence - its a witness statement as required by the courts N157 you got.

 

5. hoist and rway are the same company

 

the rest until 9 is not really relevant to a WS and is somewhat meaningless.

but everything else onward is very good

dx

[barafear799]

Dx...please see #66 for what has been ordered. Clearly states Formal Defence

[AndyOrch]

Its a formal defence as I've already explained...not a witness statement.....the claim has yet to be allocated.

 

Edit your statement of truth...its not a witness statement

 

[shamrocker]

15 minutes ago, Andyorch said:

Its a formal defence as I've already explained...not a witness statement.....the claim has yet to be allocated.

 

Edit your statement of truth...its not a witness statement

 

 

Andy - presumably, Barafear will be given the opportunity to expand upon the points made in the formal defence by way of a conventional witness statement later?

[shamrocker]

 

1 hour ago, barafear799 said:

Any advice on my defence please?

Thanks.

 

I think you could say much of that in a quarter of the words, and also achieve more impact.

 

I suppose you were under the impression that it was a witness statement of sorts - I wasn't sure myself tbh.

 

Has Andy advised further back as to the sort of detail you need to include here, and whether you're responding directly to the claimant's WS?

 

Hopefully he'll pop in and clarify it at some point if he hasn't already.

I haven't got time to go reading back through everything right now.

 

You shouldn't really need to write a huge amount to get the key arguments across though.

[dx100uk]

yes sorry I got confused as well , I don't think it needs to be too detailed as that will surely be better saved for the WS? don't want to give away whats wrong too early.. they'll have time to conjure up fake stuff again then.

[AndyOrch]

Assuming the court does not dispense with Notice of Allocation then yes....a witness statement will have to be submitted at a later stage (after allocation) so even though its a formal defence some points should be retained for later and not all the hand disclosed at this stage.

 

The formal defence should simply respond to the pleaded particulars...with a little more detail than an initial defence but not as in depth as a witness statement.Bear in mind though...thats assuming the court directs that witness statements are submitted...the claimant has already provided a statement even though not ordered to...so they have showed all their hand in advance.

[barafear799]

Andy

 

Can you advise as to whether what I am proposing to provide is sufficient, too much or too little (unlikely).

I will have to finalise whatever I need today.

 

Many thanks

B

[AndyOrch]

Its a bit waffly and could really be stripped to 1 page...but covers most if not all of the points required.Payments and statements and assignment are irrelevant if you cant produce a copy of of the executed agreement.Anyway.......

 

Replace point 3 with the following.....

 

3. In accordance with District Judes xxxxx Order dated xxxxxx the claimants although not ordered to opted to submit a witness statement which states in its intro that it mostly relies on hearsay evidence as confirmed by the draftsperson in the opening paragraph. It is my understanding that they must serve notice to any hearsay evidence pursuant to CPR 33.2(1)(B) (notice of intention to rely on hearsay evidence) and Section 2 (1) (A) of the Civil Evidence Act.

 

And your summary point 9 could be beefed up ..why not conclude with.....

 

Summary

 

19. In an attempt to comply with  the courts  Order dated xxxxxx the cliamants have failed and can only produce an illegible application form with a set of unconnected terms and conditions.

It is impossible to reconstitute a copy of an agreement from 1998 and therefore the claimant remains in default of my section 78 request and therefore the agreement doesn't comply with s.61(1) a, so is neither properly executed nor enforceable through the courts, by virtue of CCA s.127(3). Although the claimants statement tries to make up for weakness in disclosure it relies heavily on the balance of probabilities and padding it still lacks the basic requirements of the Consumer Credit Act  legislation required to enforce any agreement..

 

Therefore  by reason of the facts and matters set out above, it is denied that the Claimant is entitled to the relief claimed or any relief.

[barafear799]

Thanks for all the help and advice so far.

 

Given I'd left things rather to the last minute, I attempted to hand deliver my letter to the court (in the evening on drive home from work) - but no letter box at court to deliver letter (the actual address is a PO Box). 

Fortunately, I managed to get someone to hand it in the next day (last Thursday) during the day - so hopefully it's ended up on the right desk. 

 

I await the next stage.