Backdoor Arrow/Drydens 2008 CCJ/CO - MBNA Card - , debt was already SB'd , **WON** set aside - Now being chased 12yrs later.!!

[mandyjayne]

Something to add to the defence possibly although you run the danger of the judge asking why you required them to re-send the same information to you if you received them in Jan and the claimant clearly stated this was your agreement. s.

 

Hi S. Thanks for looking im getting very confused here again... I CCA'd and SAR them they still have not produced a DEFAULT NOTICE, NOA or TN and they have not provided an enforcable CCA, just an application form.

 

mj

Edited October 1, 2009 by mandyjayne
spelling

[the_shadow]

Something to add to the defence possibly although you run the danger of the judge asking why you required them to re-send the same information to you if you received them in Jan and the claimant clearly stated this was your agreement. s.

 

Hi S. Thanks for looking im getting very confused here again... I CCA'd and SAR them they still have not produced a DEFAULT NOTICE, NOA or TN and they have not provided an enforcable CCA, just and application form.

 

mj

 

Ok if those documents were listed in para 3 of the original order then there are two options..

 

Ask for a strike out as they have not complied with the order still (application on N244, there will be a charge for this) or ensure you make the judge aware at the CMC hearing that this case cannot move forward until the documents that the claimant were ordered to provide have not been provided as per the courts order.

 

Filing a defence when you have not been given the full case that the claimant is relying on puts you at a disadvantage and ensures that there is no level playing field and that the over-riding objectives of the CPR are not being met.

 

Edit: Dont get caught up with the whole application/enforceable agreement bit... only a court can decide what is and what isnt enforceable so the fact that they have given disclosure of an application which they state is the executed agreement shouldnt be taken as them not providing the agreement as requested in the CPR IMO.

 

Just my opinions as ever....

 

S.

[mandyjayne]

Hi s.

 

thanks again, ok do i fill out the N244 and send to court before next thursdays cmc or take it with me?

 

If i take your option 2 am i write that i need do nothing in reply to their case summary/draft directions?

 

And i wont get caught up with relying on that one point re the application form...although every little thing they get wrong should help me ...i hope!!

 

When i posted in july about this cmc everyone told me not to worry...its easy...im not so sure;)

 

MJ

[mandyjayne]

Just a recap this is the order...they were supposed to have complied to:

 

Before district judge ***** sitting at ****county court

 

IT IS ORDERED THAT

 

1. Unless by 4PM on 22nd May 2009 the claimant provides the documents requested by the defendant pursuant to paragraph 3 of the order dated 11th March 2009, the claim be struck out.

 

2. The time for filing of the defence be extended until 4pm on 5th June 2009.

 

Dated 28th April 2009.

 

Due to the non compliance i sent a letter to the judge saying i would not be filing a defence as the claim according to the order should be struck out.

 

They did eventually send me a photocopied application form, ts & cs with the new £12 charge on (this CC was issued in 2000) no DN, NOA or TN.

 

They sent these to me through normal post and they arrived 26th May, the cover letter on these docs was dated the 22nd May, (this was a bank holiday weekend) so they were written the day they should have been with me.

 

Everytime they have been asked to produce these docs this is all they send me the first lot on the 6th January 09 second lot on the 6th March...but let me type a paragraph from their case summary:

 

10. On the 22nd May 2009 a witness statement enclosing the relevant documentation was served on the defendant and sent to the court by fax. The claimant confirms that the information provided was only received by them, from the original creditor, ON THAT SAME DAY and we apologised for any inconvenience caused.

 

Well that is a big fat lie cause they sent me those things back in Jan

 

MJ:)

 

Just posting this again as a recap of the order

[citizenB]

MJ, at the very bottom of the post linked below, you will find a Draft Order for Directions.

 

http://www.consumeractiongroup.co.uk/forum/show-post/post-2455482.html

 

Please do not blindly copy it.. amend it to suit your particular circumstances. HTH

[mandyjayne]

Thanks shadow and citizen B...

 

ok found the draft order and amended...what do i do with it now!??

 

Send to court or mortimer clarke or take with me next thursday or all three!!

 

Sorry for all these questions

 

MJ:)

[the_shadow]

Thanks shadow and citizen B...

 

ok found the draft order and amended...what do i do with it now!??

 

Send to court or mortimer clarke or take with me next thursday or all three!!

 

Sorry for all these questions

 

MJ:)

 

Hi MJ, no doubt Citb will be along later with better advice....

 

Attach the draft to the N244 application form, in the main box on the N244(what are you asking the court to do) put something similar to:-

 

The defendant respectfully requests that the court issue the attached draft order for disclosure of documents not yet disclosed but ordered for disclosure already under court order dated xx/xx/xxxx. The defendant asks that the claim be struck out if the attached draft order is not complied with.

Needs to be sent to the court along with a cheque, they will pass to the judge who will either deny/allow the order

 

S.

[citizenB]

On the N244 there is a space on page one toward the bottom that asks "who should be served with this application"

 

You put there who you want a copy to go to..

 

You take 3 copies to the court along with the filing fee.. the court will send one back to you. Keep one for themselves and serve the other on the solicitors of the company who are taking you to court.

 

If the hearing is next Thursday, then you need to get it in PDQ

[mandyjayne]

Thank you, i take it this needs to be done asap, before the cmc meeting a week today?

[citizenB]

On the N244 there is a space on page one toward the bottom that asks "who should be served with this application"

 

You put there who you want a copy to go to..

 

You take 3 copies to the court along with the filing fee.. the court will send one back to you. Keep one for themselves and serve the other on the solicitors of the company who are taking you to court.

 

If the hearing is next Thursday, then you need to get it in PDQ

 

Thank you, i take it this needs to be done asap, before the cmc meeting a week today?

 

 

Yep.. if you are able to take it to the court personally.. do it tomorrow.

[mandyjayne]

ok on the N244 things i dont know...

 

Q. 5 how do i want this application dealt with? at a hearing or without a hearing?

Q. 6 how long will the hearing last?

Q.10 What evidence will you be relying on in support of your application - witness statement, statement of case or evidence set out below...

 

This is what is have put as Q.3

 

The defendant respectfully requests that the court issue the attached draft order for disclosure of documents not yet disclosed but ordered for disclosure twice already under court orders dated 11th March 2009 and the 28th April 2009. The defendant asks that the claim be struck out if the attached draft order is not complied with.

 

Is this ok????

 

MJ

Edited October 1, 2009 by mandyjayne

[supasnooper]

IIRC.... MJ .....you may be eligible for fee remission.

 

Do a Yahoo search for EX160 form.

[citizenB]

ok on the N244 things i dont know...

 

Q. 5 how do i want this application dealt with? at a hearing or without a hearing?

 

Best at a hearing

 

Q. 6 how long will the hearing last?

 

30 minutes ?

 

Q.10 What evidence will you be relying on in support of your application - witness statement, statement of case or evidence set out below...

 

This is up to you. If you can fit everything in the box provided then use the "evidence below" box.

If not, or you will be introducing documentary evidence then use the "witness statement" box

 

This is what is have put as Q.3

 

The defendant respectfully requests that the court issue the attached draft order for disclosure of documents not yet disclosed but ordered for disclosure twice already under court orders dated 11th March 2009 and the 28th April 2009. The defendant asks that the claim be struck out if the attached draft order is not complied with.

 

Is this ok????

 

MJ

 

Yep, that looks ok.

[citizenB]

Form EX160 can be downloaded from HERE

 

HTH

[mandyjayne]

thanks all will be taking this to court tomorrow

 

 

mj

Edited October 1, 2009 by mandyjayne

[mandyjayne]

Hello all getting a bit jittery with this now

 

should i change the answer in question 3. on N244 to:

 

An order (a draft of which is attached) that the Claimants Claim be struck out (pursuant to rule 3.4(2)© CPR and judgment entered for the Defendant because the Claimant has failed to provide the documents as ordered by District Judge XXXXXXXXXX in accordance with the court order dated

 

Originally wrote this:

 

This is what is have put as Q.3

 

The defendant respectfully requests that the court issue the attached draft order for disclosure of documents not yet disclosed but ordered for disclosure twice already under court orders dated 11th March 2009 and the 28th April 2009. The defendant asks that the claim be struck out if the attached draft order is not complied with.

 

 

 

Advise soon please as i hope to go this morning

 

thanksMJ

Edited October 2, 2009 by mandyjayne

[MARTIN3030]

If there have been 2 breaches/non compliance of prev orders then you should not be asking again !

 

The new wording reads as one order ????????

[mandyjayne]

Martin

 

what do i do in that case? im not sure what you mean??

 

yes it was taken from an earlier post of mine with ref: to the first non compliance, so clearly i cant use that as its written, i understand, would need to re-word!

 

But are you saying i should not be asking again, so not to submit this N244, i have been advised to get this in ASAP as the cmc hearing is on Thursday of next week...can you tell me what i need to do???

MJ

Edited October 2, 2009 by mandyjayne

[MARTIN3030]

I was meaning that they should not be given another chance to comply if they have breached the court orders twice already-yes of course you should be asking for a S/O

[mandyjayne]

Not understanding, sorry...to be thick... so n244 for a strike out and nothing else! if this is correct how do i word the N244

 

I am completely lost now and am cr***ing myself...

 

MJ

Edited October 2, 2009 by mandyjayne

[mandyjayne]

So this is ok for question 3 of the 244 for strike out...yes??? what do then put in the draft to be attached or do i take that bit out and not need one

An order (a draft of which is attached) that the Claimants Claim be struck out (pursuant to rule 3.4(2)© CPR and judgment entered for the Defendant because the Claimant has failed to provide the documents as ordered by District Judge XXXXXXXXXX in accordance with the court order dated

[MARTIN3030]

Sorry MJ was on phone for 25 mins-Will ask one of team to take a peek-am still on phone.

Yes you are on right lines here tho.

[mandyjayne]

thanks martin

 

help would be a welcome

 

mj

[mandyjayne]

Have just found this by x20 on guzzle guts thread seems to explain pretty much whats happened with me

 

Guz

Let's see if I've got this straight. You have filed an application (N244 plus fee right?) to strike your opponent out on the grounds that it had failed to give disclosure in compliance with an order of the court. (this part i obviously am tryin to sort now) The hearing of your application is to coincide with a CMC next Tuesday (my cmc is next thursday)when the court will give case management directions.

 

I also take it that the opponent has still not complied with the order? What excuse does the opponent offer?

 

My view is that as part of the case management directions, unless it has already done so, the court will make an 'unless order'. That is, an order which says, in terms:

 

'Unless the opponent complies with the order of (date) by giving disclosure of (desacription of document) to GG by 4:00pm on (date) the Particulars of Claim shall stand stand struck out and the claim dismissed and (GG) shall be at liberty without further order of the court, to apply for judgment upon his defence and for his costs of the case to be paid by (the opponent) to be assessed on the standard basis if not agreed.' (my last order was an "unless" order)

 

For reasons which will be obvious therefore, I doubt the court has already made an unless order because if the opponent was already in breach of an unless order there wouldn't be any need for you to apply the court to strike out.

 

A failure to comply with the unless order is where the PF85A comes in.(what is this??)

 

I'd go to court armed with a statement of costs which I had served on the opponent not less than 24 hours before the hearing. Assuming the court makes an order against the opponent upon your application, ask the judge to award you the costs of the application and present your costs statement to enable him to summarily assess those costs.

 

If the court strikes out the claim at the hearing, ask the court to award you the costs of the case to be paid by the opponent to be assessed on the standard basis if not agreed. Those costs will, as you know, be subject to litigant in person limitations.

 

A skeleton argument ought not to be necessary on an application to strike out or for a sanction owing to a failure to give disclosure pursuant to a court order. It's factual and usually uncomplicated. There has either been compliance or there hasn't. Your application notice ought to have included a built-in or separate supporting witness statement exhibiting any documents you intended to rely on. The only occasion I would expect you to want to rely on a second or subsidiary witness statement would be where some witness statement had been filed in opposition which you wished to answer.

 

At the CMC the court will probavbly bolt on some directions which will flow on from the opponent's compliance with the order dealing with disclosure. Typically the directions will involve standard disclosure of documents, whether expert evidence is to be admitted and if so the form of that evidence, the exchange of lay witness statements of fact, and arrangements for trial.

 

x20

What are your rights at work Follow this link to read the review of the Guide to your Rights at

Edited October 2, 2009 by mandyjayne

[MARTIN3030]

So they have complied partially but not fully to the court orders.

Therefore I would suggest this;

 

The defendant respectfully asks the Court to issue the attatched draft by way of order,in consideration of documents previously ordered for disclosure on ............ but not fully complied with.

The defendant additionally respectfully requests there be consideration to strike out the claim pursuant to CPR 3.4 (2)c on the basis that the previous orders of ............ have not been fully complied with.

 

 

 

I take it that the amended draft that you have done will support both above ?