Hoist/Cohen claimform - old Barclaycard debt ***Claim Dismissed***

[Browneyes1929]

DX

re the agreement

 

I've printed out the explanation Andy gives at the end of that post and I'll take that with me.

 

if the judge tries that, i'll explain the way Andy has.

 I think that's where Musicam fell at his hearing,

he couldn't explain why it wasn't applicable retrospectively.

 

 thank you now to the post office

[Browneyes1929]

I had my hearing today.  it was horrific, patronising, belittling take your pick.

 

I turn up with an awful cold/laryngitis I wasn't at my best.  

I had a friend with me who asked me afterwards what was up with the judge because she was so awful.

 

every time I tried to explain my reasons for Carey (actually my reasons for pretty much anything) not being applicable, she would turn to the Claimant's solicitor and ask what I was talking about to which she would give the claimants view.

 Every time I tried to explain something I was cut short and then accused of talking over her which I didn't.  

 

I had to concede that I had read the paragraph about the notice of assignment wrong.

They were saying the Original Creditor AND RW AND Howard & Cohen Solicitors, not that Robinson Way were Original Creditor.  

 

When I tried to read the explanation about Carey, the Judge told me that the type of website I was consulting were fake solicitors and they didn't know what they were talking about.  She said Carey did apply to pre 2007 agreements and the claimants solicitor said it didn't matter because it was an enforcement matter so it didn't really apply here. To which I said well how am I supposed to defend myself if I don't have the agreement I originally signed.  The Judge said it was up to her to decide on the balance of probabilities what the chances were of that being the original agreement. 

 

I have been given 14 days to draft another witness statement explaining why Carey doesn't apply including writing out the relevant points of law and what they mean. 

 

In the same witness statement I am to write out why I think the amounts are wrong in the default notice too.

 

I am to serve the court and the claimant and after that the claimant has 14 days to respond to my witness statement.

 

The Judge said she would be recusing herself from any future hearing as she'd given  me too much advice and if I couldn't prove my points the other side would be awarded extra costs as I will be deemed to have been unreasonable.  

 

She advised me to go to Citizens advice who would give me "proper" legal advice  then contact the claimant and make a payment plan.

 

Honestly I was so tired, full of cold and had no idea what I was saying.  

The judge even admonished me for not remembering the claimants solicitors name to which I apologised and explained I had MS and my memory for names was really bad.   

 

Wow it was horrible.  It was really intimidating and horrible.

[dx100uk]

but you've got another chance and you'll get rid of the horrible judge then too.

which when you hit judge lottery, as you have defendant rarely fget the chace to try again

so 

there must be something she understood.

 

sounds like they play golf together

the next one might not..

 

dx

 

[Browneyes1929]

Weirdly my friend said that.  He was sure she’d addressed the solicitor by her first name at one point.  I didn’t hear that and poopoo’d it but now you say that I wonder???

 

so this weekend I’m back to basics. 

What is a contract/ agreement?...........

[dx100uk]

if you mean in respect of carey

simply type Carey on our search

plenty of stuff here on it.

 

dx

 

[AndyOrch]

Why should you remember the solicitors name ?

Proper advice from the CAB....what on how to complete the admittance ?

Fake Solicitors on this type of forum .?

 

Looks like we have an up hill battle with the numpties.....can't wait to help with your next statement.....

[dx100uk]

a discussion thread has been created save confusing you further BE..

should you wish to read it.

 

dx

 

[Browneyes1929]

I know I am leaving this to the last minute to confirm my findings.

 

I have spent the last two weeks reading every single word of the Carey Judgement then some opinions as well as the relevant pieces of law.  Im afraid the chronic fatigue from my MS means after a while of focus I have to leave it and come back later.

 

It's due to be filed tho afternoon at 4pm.  

I'm emailing it as I'm trying to keep social contact to a minimum because of my condition.  

If they don't like it they can lump it.

 

The Judge in Carey etc addressed 6 issues with regard to what constitutes a 'true' copy of an executed agreement.

This was primarily precipitated by people trying to cancel agreements by claiming agreements hadn't been "executed" because credit card companies hadn't kept the signed copies.  

 

To be an "executed" agreement the credit card company had to have sent me a form to sign (the unexecuted agreement) where I filled in my details, signed it then sent it back, It also had to have prescribed terms on the page I signed, the terms also could be included in a booklet which I could keep.   

 

The signed form was then received by the company and had to be checked then signed by a representative of the company.  still unexecuted though.  

 

I then had to receive back a copy of the agreement (which didn't need to be a photocopy of the original agreement), but it did have to contain the prescribed terms AND most importantly it did have to have my Name and Address on it.  

 

I hunted around my paperwork and found the "agreement" entitled Barclaycard conditions and yes its the one in the reconstituted bundle only it's missing my name and address.  

I'm presuming it came with the credit token.

 

Now I just want to confirm this is an IEA an Improperly Executed Agreement under paragraph 2 schedule 1 of the Agreements regulations  and as such under Section 127(3) the courts powers are limited and my agreement is irredeemably unenforceable.  The only thing I was worried about is if they say well your address was on the covering letter.

 

Also they sent me a letter asking about my MS as I mentioned it in court when I couldn't remember their solicitor's name.  

It says so our client may fully assess the best way forward,  please could you kindly confirm how long you have been suffering from this illness and how it has been affecting your ability to deal with this claim.  

 

Should I tell them about my issues or could they use it against me somehow?

 I can't see how, I have it in writing about my diagnosis and MS doesn't get better.

 I was thinking I could send an explanation in the covering email when I serve them later.

 

Also just to confirm as the default notice was sent in August 2014 does it have to comply with the 2006 Act?

 

Edit...Actually no just checked they've served it under section 87 (1) of the 1974 act.

 

does pre 2007 section 127(3) say that the court must have the original signed agreement in front of it before the court can enforce it or can a bank representative witness statement from the bank say that was the procedure at the time.

I think i'm getting confused.  

 

sorry can i say, Unlike in Carey I am not claimingan unfair relationship  (i.e. I am not a claimant)  

I am stating that as a defendant to an Improperly executed agreement which under section 63 this is, the debt can only be enforced under section 127(3) and to do that there must be a copy of the signed document with the prescribed terms.

 

Also Dodge ball Carey covers the name and address in his findings with:

58. The Claimants all contend that the copy must contain the name and address of the debtor as at the date of the executed agreement. The Defendants deny that this is required at all. 

59. As a matter of common sense it is difficult to see how a copy of an agreement can omit the names of the parties. It might be thought that the address of the debtor, however, was immaterial, at least to the debtor, who can be assumed to know what it was at the time, if different from his present address. However, as noted above, any application of the concept of materiality must not override the requirements of s78 and the Copies Regulations properly understood. In my view it is clear that the name and address must be provided:

60. 1.  

        

       (1)  The name and address of the debtor would have appeared on the executed agreement and it is not suggested otherwise; a copy of the executed agreement would thus, without more, need to contain those details;

    2. (2)  Moreover those details are required by the Agreements Regulations. While Reg. 3 (2) (a) permits the omission of certain information about the debtor, this does not apply if the information was required by the Agreements Regulations. As the name and address is (see paragraph 13(1) above), the obvious implication from Reg. 3 (2) (a) is that it cannot be omitted;

    3. (3)  Even more tellingly, Reg. 3 (2) (c) permits the omission of the name and address from the s62 copy (of the unexecuted agreement). That surely entails the conclusion that outside the case of a s62 copy, the name and address is required; this is supported by the editors of Guest and Lloyd’s Encyclopedia of Consumer Credit Law (“Guest”) at p3200/1;

    4. (4)  As against this, the Defendants contend first that Reg. 3 (2) merely sets out a list of expressly permitted omissions. It does not mean that other omissions, entailed by an application of materiality, are not permitted. I disagree. Leaving aside what might be described “low level” omissions which could be cured by such an application (spelling errors, non-misleading presentational matters) the form of Reg. 3 suggests that it is providing a code for what is to be expected in a copy, as s180 itself provided for in some detail. Any omission of any significance (which must include name and address) needs to be expressly permitted under sub- paragraph (2);

    5. (5)  On Reg. 3 (2) (c) specifically, it was said that this was entailed because it would usually be impossible to put a name and address in the s62 copy which would be presented to the debtor (for example as in the worked example) in a booklet available to all prospective applicants, before he had engaged in the application process. I follow that, but I do not see why that deprives the point made in sub- paragraph (3) above of its force. Indeed, it may suggest that there had to be a compelling reason (impossibility as Mr Mitchell put it in paragraph 16 (c) of his written submissions) before the omission of the name and address could be contemplated.

20

6. (6)  It is also said that this view of Issue 1 (c) will place an unnecessary (and perhaps impossible) burden on lenders because it may be hard to find the original address or it may have been lost altogether because for example it was electronically overwritten by a later address. This is of course possible in theory but it is noteworthy that in the cases before me, it was not suggested that the creditors concerned could not have produced a name and address if necessary and that included the case of Yunis where none was provided, in part to keep the lis generated by that case, alive; ( I canvassed this point with Ms Tolaney for HSBC on Day 2 p59 but in the event no further submissions from HSBC as to the practicality of providing in some way the original name and address were made, on the basis that there was no evidence available on the point);

7. (7)  I am mindful of the theoretical scenario postulated which compares a failure to provide a name and address in the executed agreement itself and a similar omission in the s78 copy. In the former case, to omit the address would lead to an IEA but one which the Court could enforce under s127 (1). On the other hand, assuming that the address was indeed on the original executed agreement but the s78 copy omitted it, the result would be continuous unenforceability under s78 (6) until and unless the address were found and inserted into or onto the reconstituted copy. The more serious state of affairs is the former yet the latter yields the harsher consequence. In abstract terms that is correct – but I have serious doubts as to whether the latter is likely to arise. See sub-paragraph (6) above;

8. (8)  It is further said that the provision of the name and address to the very person who can be expected to know it is unnecessary and pointless. But part of that submission relies on the broader argument that the purpose of s78 and the Copies Regulations is the Current Information Purpose. However, as explained in relation to Issue 2 below, I think that is too narrow a meaning. And if – as I find in relation to Issue 2 – a copy of the original executed agreement (albeit reconstituted if the creditor wishes) is still necessary where there have been later variations, there is no reason why the copy should not, equally, include the name and address of the debtor at that time. 

[dx100uk]

don't worry being a day or 2 late your are a LiP leeway is given

[Browneyes1929]

I'm nearly finished.  It has been fascinating though.  I'll upload it shortly.

[Browneyes1929]

ok redacted new witness statement.  first paragraph is what the judge asked re the default notice.

The rest is re Carey. one point is my statement re unfair relationship ok.  I felt it was important to differentiate may case from those in some way.

 

I've ordered it in the way the Judge asked for it in her order.

 

I've included all the points of law which pads it out but as my memory is crap and I can't multi skill anymore, I  thought it was best for in court next time.

hoist portfolio defence redacted.pdf

[AndyOrch]

Its bad when a District Judge cant understand the basis and law and what a reconstituted version must contain to be acceptable in use to enforce an agreement.

 

 

Here are my notes......

 

Preliminary issues

The preliminary issues determined by the judge in the case were:

 

Issue 1

When providing a copy of an executed agreement in response to a request under section 78(1) of the Act:

 

a.     must a creditor provide a photocopy (or other form of complete copy) of the original agreement that was signed by the debtor or at least provide a copy which is derived directly from the original agreement or complete copy thereof? or

b.     can a creditor provide a document which is a reconstitution of the original agreement which may be from sources other than the actual signed agreement itself?

 

It was held that a creditor can satisfy its duty under section 78 by providing a reconstituted version of the executed agreement which may be from sources other than the actual signed agreement itself.

 

The judge accepted that as a matter of law, section 78 does not itself require any particular explanation as to how the copy was made. However, as a matter of good practice and so as not to mislead the debtor, it is desirable that the creditor should explain that it is providing a reconstituted as opposed to a physical copy of the executed agreement. This will also explain why the copy might otherwise look a little odd. The creditor can also explain in the letter that this procedure is satisfactory under the Act.

 

The judge also provided that the following information needs to be included in the reconstituted copy agreement (assuming of course that it was present in the original):

 

1.     Heading: Credit Agreement regulated by the Consumer Credit Act 1974

2.     Name and address of the debtor

3.     Name and address of the creditor

4.     Cancellation clause applicable to the executed agreement.

 

All of the above may be provided on a sheet which is separate from the full statement of terms and conditions which also forms part of the reconstituted agreement. The creditor may, however, decide to reconstitute the agreement in a different way so that, for example, the information above is populated electronically onto the same sheet as that which sets out the terms and conditions, or some of them. The judge stated that he did not intend to prescribe the precise form of the reconstituted agreement. The key point is what information it should contain, subject to the point that its format should not be such as to mislead the debtor as to what he agreed to.

 

The judge also considered whether a statement like the one appearing in the reconstructed application form in Carey referring to the agreement to the terms and conditions "attached" needs to be included in the reconstituted copy. Alternatively if the application form had said "I agree to the terms overleaf", should that statement be included. The judge held that this aspect of the form is not necessary for the purpose of the section 78 copy, although there is nothing to stop a bank from putting it in or indeed from furnishing a copy of the type of application form or signature page that the debtor would have signed, as some banks have done. The statement referring to terms and conditions is not itself prescribed information and the supply of the terms and conditions which were applicable at the time will tell the debtor what he needs to know in terms of the content of what he signed up to, including the presence (or otherwise) of the prescribed terms.

 

In practical terms what this is likely to mean is that if the creditor chooses to use as the section 78 copy the section 63 copy, which would have been provided to that particular debtor at the time following execution of the agreement, this will be sufficient provided that the information referred to above is supplied. This exercise is not a mere formality. The creditor will need to check carefully that the details of the debtor at the time are correct and that those are the particular terms (including prescribed terms) that he/she agreed to. This is to ensure that it is an honest and accurate copy.

 

Must a creditor provide a document which would comply (if signed) with the requirements of the Consumer Credit (Agreements) Regulations 1983 (Regulations) as to form, as at the date the agreement was made in order to comply with section 78?

A creditor need not, in complying with section 78, provide a document which would comply (if signed) with the requirements of the Regulations as to form, as at the date the agreement was made.

 

Must the copy provided under section 78 include the debtor's name and address as at the date when the agreement was made, and if so in what form?

The section 78 copy must contain the name and address of the debtor as it was at the time of the execution of the agreement. But the creditor can provide the name and address from whatever source it has of those details. It does not have to take them from the executed agreement itself.

 

Issue 2

If an agreement has been varied by the creditor under a unilateral power of variation, is a copy of the executed agreement as varied, a sufficient copy for the purposes of section 78(1), or must the creditor provide a copy of the original agreement as well?

If an agreement has been varied by the creditor under a unilateral power of variation, the creditor must still provide a copy of the original agreement, as well as the varied terms.

Issue 3

Does a creditor's breach of section 78(1) of itself give rise to an unfair relationship within the meaning of section 140A of the Act?

If a creditor is in breach of section 78 this does not of itself give rise to an unfair relationship within the meaning of section 140A.

Issue 4

If there is a breach of section 78(1), is that sufficient without more to make a declaration to that effect appropriate, in particular:

a.     where the creditor admits the breach but did not admit it before the issue of proceedings?

b.     where the creditor denies or does not admit the breach?

 

A court has jurisdiction to declare whether in a particular case there has been a breach of section 78. Whether it will be appropriate to grant such a declaration depends on the circumstances of that case. If there are proceedings on foot and within them the creditor formally admits non-compliance with section 78, there is no point in maintaining the proceedings just to obtain a declaration to that effect.

 

Issue 5

Does the document signed by the debtor contain the prescribed terms for the purposes of section 61 and/or section 127(3) if:

a.     they are on a sheet which is referred to on the piece of paper that was signed by the debtor; or

b.     that sheet is attached to the piece of paper signed by the debtor; or

c.      that sheet is separate from but was supplied with the piece of paper signed by the debtor?

 

The judge held that in assessing whether prescribed terms are "contained" in an executed agreement the following principles are relevant:

·        it is not sufficient for the piece of paper signed by the debtor merely to cross-refer to the prescribed terms without a copy of those terms being supplied to the debtor at the point of signature

·        a document need not be a single piece of paper

·        whether several pieces of paper constitute one document is a question of substance not form. In particular a physical connection between several pieces of paper is not necessary in order for them to constitute one document

·        a physical connection (or one or more physical connections) between several pieces of paper does not necessarily constitute them as one document

·        where the debtor's signature and the prescribed terms appear on separate pieces of paper, the questions of whether those pieces of paper together constitute one document is a question of substance and not form.

He added that he would not seek to answer the questions in issue 5 in their current state because the scenarios postulated all require some further elaboration before a simple "yes" or "no" answer can be given.

 

Issue 6

If it were not established, at trial, that there was a document signed by the debtor containing the prescribed terms, would that of itself entail an unfair relationship?

The judge held that the answer to the question was no.

 

The applications

The second matter in Carey (which consisted of a number of cases heard together) was the application by two of the defendant banks to dismiss certain claims brought against them.

 

The judge held that claims that there was an unfair relationship and an improperly executed agreement in Adris v The Royal Bank of Scotland Plc should be struck out or dismissed. The claim that there was an improperly executed agreement in Yunis v Barclays Bank Plc should also be struck out or dismissed. The absence of any positive pleaded case or evidence as to the circumstances of the making of the agreement by the debtor concerned was fatal to the claims. The absence of any positive plea or evidence as to particular facts relied upon in support of the unfair relationship claim, other than failure to provide a section 78 copy, was fatal to that claim.

 

Comment

This is a helpful judgment for lenders which provides some much needed guidance that will narrow or eliminate the issues arising in the hundreds of other similar claims issued in county courts around the country, many of which have been stayed pending the outcome of this judgment.

On a practical level, given the number of requests received, lenders will particularly welcome the finding that a creditor can satisfy its duty under section 78 of the Act by providing a reconstituted version of the executed agreement which may be from sources other than the actual signed agreement itself. The real impact here is that it will deter borrowers arguments that the agreement is unenforceable without a copy of the original signed agreement. 

In light of this decision, and as acknowledged by the judge, it now seems likely that the number of challenges about section 78 copies will diminish significantly because:

·        it should now be clear what will count and not count as a section 78 copy.

·        of the decision in Phillip McGuffick v The Royal Bank of Scotland Plc (see  Does non-compliance with section 77(1) extinguish a creditor's rights?: Phillip McGuffick -v- The Royal Bank of Scotland Plc for an analysis of this case) to the effect that a section 78 breach does not remove any underlying liability from the debtor and does not stop the creditor from referring the debtor's debt to a Credit Reference Agency. Many of the cases had been started before McGuffick had been decided.

·        a section 78 breach does not necessarily generate an unfair relationship.

·        absent any positive allegation of improper execution, a claim to that effect based solely on the absence of or defect in a section 78 copy will not succeed.

·        the cases tend to show that given time, creditors are usually able to supply a conforming section 78 copy even if not within the prescribed 12 working days.

 

 Provided that the creditor makes it clear that it accepts that the agreement is unenforceable pending compliance with section 78, there is nothing further which the debtor needs to do at that time.

 

 

In Carey & Others v HSBC Bank PLC & Others, His Honour Judge Waksman QC held:

 

·        Lenders can satisfy a s78 (and s77) request by providing a reconstituted version of the executed agreement, which may be reconstituted from sources other than the actual signed agreement. A copy of the original signed agreement itself does not have to be provided.

·        The copy provided must contain, amongst other things, the name and address of the debtor as at the date of the agreement.

·        The document need not comply (if signed) with the requirements of the Consumer Credit (Agreements) Regulations 1983 (CCAR) as to form, as at the date the agreement was made.

·        If an agreement has been varied, a (reconstituted) copy of the original agreement must be provided along with a (reconstituted) copy of the amended agreement.

·        A breach of s78 does not of itself give rise to an unfair relationship within the meaning of s140A CCA.

·        The court can exercise its discretion and make a declaration that there has been a breach of s78, depending upon the facts of the particular case. If the lender has admitted the breach in the proceedings, the court will not make such a declaration.

·        In determining whether the debtor has signed a document stated to contain the "prescribed terms", the court held that, for the purposes of s61 and of s127(3) CCA, the document need not be a single piece of paper. A physical connection between several pieces of paper is not necessary. Where the debtor's signature and the prescribed terms are on separate pieces of paper, the question of whether together they constitute one document is a question of substance, not form. Mere cross-reference to prescribed terms without a copy being supplied to the debtor at the time of signature would not suffice.

·        If the lender cannot establish, following a trial, that there was a document signed by the debtor containing the prescribed terms, that would not of itself entail an unfair relationship.

 

Comment

This decision will hopefully put an end to many cases currently being dealt with which were instigated by claims management companies.

It is clear now that a reconstituted copy of the original document will suffice. The judge held that, as a matter of good practice, lenders should consider telling debtors that a reconstituted document is just that. Even if an agreement cannot be reconstituted and therefore there is a breach of s78, although the agreement may be unenforceable pending compliance, that does not mean there is an unfair relationship.

 

Procedures should be put in place to ensure that the information required to reconstitute documents is retained.

 

[Browneyes1929]

I've said that the agreement was improperly executed because it was pre 2007. and it didn't have my name and address on it as per the 1983 regulations which the Judge does refer to in his judgement.

 

I also pointed out that the reconstituted copy isn't a true copy because of this.  

As a result I then quoted section 127(3) - (5). and CPR paragraph 7.3 of practice direction 3. 

 

I'm talking about the original one which i finally found

.I've introduced it as evidence. Is that ok?

 

[AndyOrch]

Try to keep it succinct and simple...hopefully you will get a better quality of Judge this time..that does not rely on the claimants sol to give him/her advice.

[Browneyes1929]

So does what i've written make sense?

Also should I answer what the solicitors have asked about my MS?

 

I'll put everything together later and email it.

they'll have it waiting for them by opening time tomorrow.

[Peterbard]

On 18/03/2020 at 15:07, Browneyes1929 said:

I've said that the agreement was improperly executed because it was pre 2007. and it didn't have my name and address on it as per the 1983 regulations which the Judge does refer to in his judgement. 

 

If you are talking about unenforceable under section 127(3) then the defect you speak of would not render an agreement unenforceable. It would merely require an enforcement notice under section 65

 

If you are talking section 78 it is a fault but one easily remedied and a court w,ould consider the requirements of that section satisfied.

[AndyOrch]

Makes sense to me but its a bit lengthy and egg sucky if you get a decent DJ.

 

All you really need to state is as above....

 

The judge also provided that the following information needs to be included in the reconstituted copy agreement (assuming of course that it was present in the original):

 

1.     Heading: Credit Agreement regulated by the Consumer Credit Act 1974

2.     Name and address of the debtor

3.     Name and address of the creditor

4.     Cancellation clause applicable to the executed agreement.

 

Yours has no name and address at the time of inception...therefore it invalidates it as an acceptable reconstituted version ....end of.

[Peterbard]

One other thing, which I dont know if it has been mentioned.

 

You can argue that the copy, which they have not sent contained an incorrect prime term, but y0u have to have other proof to support this.

 

A section 78 request has no effect on section 127(3) unless you have a separate reason to think a prescribed term, (interest payment intervals,) was missing from your original agreement.

 

The need to enclose a copy is only dependant on a tempory ban on enforcement and not agreement unenforceability.

 

what you need to do here is challenge the authenticity of the copy they sent.

This can be done a number of ways, is it likely to be the one you signed?

if no, say so and why, then they have to prove it.

[Browneyes1929]

@Dodgeball 

how, unless they have a copy of the full original agreement with signatures, would a judge be able to order enforcement under the old section 127? 

 

@Andy

yes i know it's egg sucky but after the last judge I'm taking no chances.  The last time the other side's solicitor actually bowed to the judge as she left.  I felt like Hyacinth Bouquet on a bad day, I think i may have attempted a curtsy when I saw that.

[dx100uk]

you're going far too deep into this,

 

go back to the first few posts whereby the 620000 series paperwork is mentioned.

they always file these from their filing cabinet on any ex Barclaycard claim

inserting people name and address onto the top in a differing typr face too!

 

they cant simple rockout 2014 T&C's for an agreement that was taken out on a card your sighned up for in when?

we don't appear to know the date you took this credit out.??

 

KISS..keep it simple stupid

[Browneyes1929]

Actually yes they can with the original Judge Waksman covered this in his response to Issue 2 in Carey paragraph 69 onwards he  explains it very well. But that applies to an agreement that was properly executed. This wasn't.

 

ok do you guys give awards for being the most anal retentive person as I think I may be there? I found Judge Waksman interesting!!!!!!

Edited March 18, 2020 by Browneyes1929

[dx100uk]

when was your agreement taken out??

 

 

[Browneyes1929]

Sept 2004

[Peterbard]

On 18/03/2020 at 17:19, Browneyes1929 said:

@Dodgeball 

how, unless they have a copy of the full original agreement with signatures, would a judge be able to order enforcement under the old section 127? 

 

@Andy

yes i know it's egg sucky but after the last judge I'm taking no chances.  The last time the other side's solicitor actually bowed to the judge as she left.  I felt like Hyacinth Bouquet on a bad day, I think i may have attempted a curtsy when I saw that.

 

As I mentioned earlier and was also mentioned in the judgement. Section 127 only says "WAS" signed, there is no prerogative to show a document is signed, in order to comply.

 

It is down to the burder of proof which in a civil case is the balance of probability, or is it likely one was signed, containing.. etc. Then he says that an accusation of improper execution cannot be made solely on the evidence of a copy, there must be other supporting proof.

 

On 18/03/2020 at 15:07, Browneyes1929 said:

I've said that the agreement was improperly executed because it was pre 2007. and it didn't have my name and address on it as per the 1983 regulations which the Judge does refer to in his judgement. I also pointed out that the reconstituted copy isn't a true copy because of this.   As a result I then quoted section 127(3) - (5). and CPR paragraph 7.3 of practice direction 3. 

 

I'm talking about the original one which i finally found.I've introduced it as evidence. Is that ok?

 

 

No it wasn't. at least if it did this does not prove it one way or the other.

 

As far as name and address is concerned, it is not a prescribed term so no automatic enforceability not even in 2004 .

 

You can plead that the info should have been there if you like, but it would be a 127(1) breach and any sanction would be related to prejudiced caused. Did you suffer any damage through your name and address not being their, I doubt it

 

On 18/03/2020 at 16:51, Dodgeball said:

what you need to do here is challenge the authenticity of the copy they sent. This can be done a number of ways, is it likely to be the one you signed? if no, say so and why, then they have to prove it.

 

You can challenge the credibility of the copy by examining it together with any earlier agreement- for conformity with: interest rates, default charged, this is a big give away. As any default charges must be listed on the agreement, and should comply with those raised on statements, if both are from the same era.

 

I should also say that the ONLY prescribed term on a credit card of that time would be the payment intervals in any case. So that kind of unenforceability is not going to happen.

 

You need to concentrate on section 78, 108 and regs and the inability to enforce when no true copy is supplied. 

[Browneyes1929]

Hi folks so last time I posted, I had just submitted my witness statement by email to the court and the claimant.

I spoke to the court and the person there said they had received my statement and accepted it no problem.

I’ve not received anything back from the claimant not even an acknowledgement.  

 

They were supposed to have a response to me by the 14th.   

I’ve not heard anything from the court re my hearing which is due on the 29th April next wed.

 

 With Covid do I have to attend or if they say it’s to be by phone do I have to agree? 

Btw I served my statement by email as I have MS and that was the first or second week of lockdown so I wasn’t going to the post office and I told the court and the claimant that. 

 

Should I contact the court?

 

Ps hope everyone is ok and safe and healthy?