Cahoot card court action to reclaim charges and contractual interest

[tnook]

Bloomin' eck. Less than 24 hrs to go and the Santander Solicitor has submitted a bundle to the courts. From what I can tell she has taken my bundle and added all her documents. I thought there was a 48hrs deadline for submitting items to the court.

[tnook]

Well this sucks, hearing is being postponed due to lack of judges. Does this buy them more time to revise their witness statement?

 

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Dear Sir/Madam

 

We write to inform you that the Small Claim of the above listed on 27^th July 2021 is vacated due to judiciary availability and will be re-listed on a date to be fixed.

 

An order with notification will be sent out to parties in due course.

 

Please confirm that you have received this email.

 

Kind Regards

 

Edited July 26, 2021 by tnook

[AndyOrch]

Irrelevant really...I assume they have submitted their main statement...that's the only one that will be taken into account....any further statements supplemental are normally disregarded anyway.

[tnook]

29 minutes ago, Andyorch said:

Irrelevant really...I assume they have submitted their main statement...that's the only one that will be taken into account....any further statements supplemental are normally disregarded anyway.

Yes they did, I posted it above. It was brief, focussed on the arrears, the terms and conditions and no reference to any other cases, regulations. The solicitor then submitted 5 exhibits separately. Statements, T&C's, default letters. I am thinking they got a barrister involved over the weekend, who wanted all the documents in one bundle.Which is why the resubmitted it this morning as one PDF, whilst claiming to be doing the court and judge a favour.

[tnook]

Right so the hearing was postponed in the last minute due to lack of availability of a judge. It is now scheduled for November 2nd. I just got another letter from their solicitor, trying to scare me off with legal fees. The case is allocated to the small claims track. See their letter test below, they are claiming to use the letter itself in the court: @Andyorch

 

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Dear Sir

 

We refer to the adjourned final hearing of your claim, which has been re-listed for Tuesday 2 November 2021.   

 

As you know, the bank believes that your claim will not succeed at a final hearing.  However,  before the bank incurs a further counsel’s fee in respect of the forthcoming hearing, it wishes to offer you a final opportunity to discontinue the claim on the basis that the bank will bear its own costs incurred to date if you discontinue before it incurs any further fees.

 

Accordingly, we invite you to confirm, by close of business on Wednesday 20 October 2021, that you have discontinued the claim. If we do not hear from you, the bank will have no option but to proceed with incurring a further counsel’s fee and reserves the right to refer the court to this email, when appropriate, at the hearing.

 

Yours faithfully

 

Santander UK plc  

 

[dx100uk]

usual intimidation and ofcourse total bs

[AndyOrch]

Well that's a decision only you can make and how strong you feel your chances of success will be...obviously further costs will be involved but they will only affect you should your claim be dismissed  

[tnook]

3 minutes ago, Andyorch said:

Well that's a decision only you can make and how strong you feel your chances of success will be...obviously further costs will be involved but they will only affect you should your claim be dismissed  

Thanks for the reply. I thought now that the claim is in the small claim track that fees wouldn’t be an issue. There has been no breach of protocol. 

[AndyOrch]

You can still incur additional costs in the defending of the claim should your claim be unsuccessful. Although the costs will be restricted subject to the discretion of the judge.

[tnook]

This is very strange. The lady I have been in communication with at Santander, their legal counsel, has just submitted a Hearsay Notice to the courts. I've attached it. She has submitted a notice to use her already submitted witness statements. But not necessarily call upon herself. What is going on?...

 

I've attached the notice.

Hearsay notice 22.10.21.pdf

[AndyOrch]

Notice must be served if any statement refers to 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.

 

Andy

[tnook]

Since it's hearsay, don't I have the option to cross examine the hearsay witness? Thus she would need to attend the hearing after all.

[AndyOrch]

Not really you cant cross examine a witness anyway in SCT with or without hearsay notice.

[tnook]

I just had an email from Santander. It's a skeleton argument and authorities from their counsel. Hearing is on Tuesday. Can someone look at it? I am going over it.

 

Reads more like their bundle. Is it ok for them to do this so late? Or does the fact its labelled a skeleton argument bypass this?

 

 

Skeleton Argument.pdf

 

This is beginning to being back bad memories of the BC hearing where I was made mincemeat out of.

[AndyOrch]

Plenty to chew over and take into consideration there from the contents of their second witness statement come skeleton argument.

[tnook]

When the court has deadlines, such as a document needs to be submitted at least 3 days before a hearing. Does this mean work days, or days of the week?

[AndyOrch]

Weekdays

[tnook]

So skeleton arguments need to be submitted at least 3 days before the hearing. It's on Tuesday, which is 2 work weekdays. Since the skeleton argument reads more like a second witness statement. Can I argue that it not be considered and that it was to make up for the delayed original witness statement. Remember they made a hash of submitting it the first time around.

 

[AndyOrch]

Skeleton arguments...if that is what it is.... can be submitted 24 hours pre hearing...supplementals 3 days pre hearing.

[tnook]

 

Less than 24hrs now. They haven't submitted their costs. Something the last hearing the judge checked on since the deadline is 24hrs. Been going over my arguments and analysing theirs. Their counsel is quite derogatory in many places, not very professional.

 

He starts with "Unhelpfully the bundle filed by the Claimant did not include any of the Defendant’s documents."  Perhaps if they weren't late and then submitted several witness statements.

 

They are putting a lot of effort into dismissing Kleinwort Benson and getting the charges statute barred. They argue that I had everything I needed to question the legality back when they occurred.

 

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14. It is a creative argument but wrong in law. Neither section 32(1)(c) nor Kleinwort Benson extends limitation indefinitely. Section 32(1)(c) states (emphasis added):

    “(1) Subject to subsection (3) below, where in the case of any action for which a period of limitation is prescribed by this Act, either –

         (a) the action is based upon the fraud of the defendant; or
          (b) any fact relevant to the plaintiff’s right of action has been deliberately concealed from him by the defendant; or
          (c) the action is for relief from the consequences of a mistake;
    the period of limitation shall not begin to run until the plaintiff has discovered the fraud, concealment or mistake (as the case may be) or could with reasonable diligence have discovered it.”

15. Limitation then runs from when the “mistake of law” has either been discovered or could with reasonable diligence have been discovered by the Claimant. The Claimant does not need to have actual knowledge of the mistake of law, in shorthand constructive knowledge is sufficient. The leading authority on this point is now Test Claimants in the FII Group Litigation v Revenue and Customs Commissioners [2020] 3 W.L.R. 1369 and the Court is in particular referred to paragraphs 209 and 210 {156} (highlighted) and in particular the following extract from para. 210 (emphasis added):

 

If you recall I cleared the balance to prevent them using it against me, like BC did in the last hearing, they state:

 

Quote

Strangely, on 15 July 2021 the Claimant paid off the outstanding sum in full. ....

 

Consequently the Court can strike out the claim in the knowledge that the Claimant will not be pursued any further. It was misconceived claim when issued, and was possibly brought for a collateral purpose but the Claimant has now honoured his side of the credit bargain and the ledger is settled.

 

I will argue my circumstances had changed and I didn't want the balance to become the focus of the claim and that the charges are the focus.

 

 

They are also saying compound interest is not applicable per Sempra Metals, saying Prudential Assurance Co Ltd v Revenue and Customs Commissioners [2018]  overrides this.

 

Quote

The bulk of the claim is the claim for compound interest following Sempra Metals Ltd v Inland Revenue Commissioners [2007] UKHL 34. The reasoning in that authority has now been expressly departed from in Prudential Assurance Co Ltd v Revenue and Customs Commissioners [2018] UKSC 39 where compound interest was not awarded."

 

Edited November 1, 2021 by tnook

[tnook]

Judge asked for it to be a teams meeting in the last minute. Glad I shaved today 

[tnook]

OMG, I was just reading my original signed CCA again, it does NOT mention default charges AT ALL.

[dx100uk]

the agreement doesnt

its in the T&C which must be ref'd and have you name/adress atthe top of them, and be the right version for time of sign up.

 

dx

 

[tnook]

Well I will argue it was not clear at the time of contract. They say it was always clear and open. 

 

Kicks off in 8 mins

[AndyOrch]

Best of luck