Just Cash Flow PLC business bank personal guarantee Court Claim.

[MOSS 41]

and if i pay for application to submit amended defence 

1) do i have time

2)what reasons can i write in application that judge will be happy with for putting in amended defence?

shall i also ask for an unless order to provide the Deed of Guarantee and Indemnity- can this both happen in the same application ?

so i only have to pay once?

[AndyOrch]

Right with you ...so was it one claim with defendants 1 and 2 or two separate claims in each name ?

[MOSS 41]

no

one claim JCF v  guarantors defendant 1 and 2- trial 5 march

one claim JCF v guarantor defendent 1-applied for summary judgement as defence laid out poorly 

 

 

same claimant  but against two companies (the guarantors of) same loan agreements  and everything, defences are the same 

[AndyOrch]

Okay....I was just making sure there was only one claim number. So in reality their application for SJ takes precedent over the main claim and process.. you deal with the application as a priority (Defendant 1)

 

There is no need to amend the initial defence as you can rectify/add that within your opposing statement. Your statement should be based on their statement that supported their application in which you refute and state your arguments.

 

I must say that its a very risky option by the claimant to single out only one of the defendants on a joint claim and undermines the main claim should that proceed. Although should they be successful then the main claim will fall away.... A satisfied judgment obtained against one defendant will ordinarily bar a claim against other defendants with joint, or joint and several, liability.

 

A claimant is entitled to recover all of its losses from any one of multiple defendants where their liability is joint, or joint and several (but not where the liability is merely several.

 

You must file and serve your statement/evidence in response not less than 7 days pre hearing.

 

https://www.justice.gov.uk/courts/procedure-rules/civil/rules/part24

 

 

 

 

 

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[MOSS 41]

hi-sorry im not being clear enough , 

 

claim 1 JCF v both of us for our ltd company xx ltd- seperate cases each have their own reference 

claim 2 JCF v just my husband  his ltd company yy ltd

 

claim 1 progressing as normal against both of us

claim 2 was progressing now they go for a summary judgment against him, due to poor defence.

i can easily provided evidence to dismiss it, prove valid defence

 

but how do i stop them getting awarded costs, for bringing the action based on my poor defence 

[AndyOrch]

Okay so two separate claims two separate claim numbers....both claiming the same thing...talk about edging your bets.

They can only get judgment once

 

That should be the main opening point of your statement that they already litigating for the same thing on claim number xxxxxx issued xxxxxx date and ongoing.

 

Quote

but how do i stop them getting awarded costs, for bringing the action based on my poor defence 

 

How do you know they will be awarded any costs ...how do you know they will be successful....who is to say it will be awarded because of the poor defence submitted ?

 

 

 

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[MOSS 41]

Always looking for plan b - 

 

the defence is short and poor and not laid out in the correct format - because I didn’t do it 

 

but the points are the same just brief , 

 

would they have tried for summary judgement if I laid out a bigger defence - yes , they already put on allocation they would apply for one n both claims - 

 

they didn’t on claim one as I had a long defence , they did on claim 2 as defence small So did what they said they would do  - 

 

they effectively want my defence struck out , to get a judgement by default , as there chances of winning in court are slim 

 

maybe I include photocopy of that form and say they always were going to apply for this, they did not get to this point by my poor defence , I don’t have to bear their costs 

[AndyOrch]

Applications for Summary Judgment are not awarded on who did or didn't do what......they cant get a default judgment on either as you have submitted a defence...they could get Summary Judgment.

 

Summary judgment is only awarded in the follow circumstances...

 

·        A claim or issue or a defence to a claim or issue has no real prospect of success and

·        There is no other compelling reason for a trial.

(CPR 24.2)

 

Summary judgment a Quick guide.docx

[MOSS 41]

thanks for that very helpful, ill make some points on it in a minute just wanted to say

they never served me application against CPR, i had to obtain off court a copy.

They refer in wtiness st - marked as what they rely to support application a paginated bundle PR1

which apparently accompanies the statement, i can see from the references and amount of pages it should be the loan offer and loan agreement, as you would expect.

 

so i asked court can i have copy of PR1 so i can check, they just got back and said 

claimant has never either in electronic database or in paper, served a bundle PR1 with the application, 

 

there said it was claimants job to serve everyone and me- so ask them 

 

 

i was about to and i had a thought, they havent submitted any evidence in support of their application

why remind them !

 

in theory judge will get to hearing and go where is your evidence of this agreement?

 

and for the record they are very sloppy and do make major mistakes in their paperwork, so this isnt unusual

[MOSS 41]

is response to CPR rules you sent me - my observations are

 

1)they havent stated under what law/legislation they make a claim, they have mentioned document they rely on but didnt serve it with application as above

 

2)they didnt serve application or evidence on me ever! court knows this 

 

3)this is a telephone hearing where no oral evidence is to be given , do we do skeleton arguments or court bundle , when do we give to court - order is to only submit evidence in response 7 days before hearing

 

4) there are /is a document which gives complete defence to the claim, disclosable at trial , so they shouldnt have sought summary judgement

a)i have an email from them ,  a deed of guarantee and indemnity (DOGI) was required for guarantee, pre condition to lending

b)i have a docusign email sending request to sign this  DOGI document (not attached it was a docusign login) ,

c)they dont have a copy of it and havent provided under SAR or specific request. 

d) anyone who does a DOGI, is not defined as a 'Guarantor' in the agreement, which is not signed in a personal capacity anyway,

e)so in the application they rely on loan agreement having a self contained gurantor section, and the fact my name is next to word guarantor (but not signed personally, no statute of frauds anyways)

 

their definition of a guarantor-"person named in offer letter who enters into this loan agreement to provide a personal guarantee and indemnity. this definition excludes any third party guarantor who enters into a seperate DOGI"

[AndyOrch]

Okay lets summarise as this is getting a tad messy.

 

Claimant issues two claims:- 2 separate claim numbers

 

Claim 1 JCF v both of us for our ltd company xx ltd-

Claim 2 JCF v just my husband  his ltd company yy ltd

Claims are dated xxxxxxx ?

Particulars of claim identical ? 

 

Claim 1 is progressing normally and at Disclosure stage......full particularised defence submitted. ....N265 exchanged....Statements yet to be filed and served.

Claim 2 was progressing normally but now claimant has made application for Summary judgment.....minimal defence submitted by Solicitor.

 

Claimant/Court failed to serve copy of application and evidence in support

Court informs you they also failed to serve any evidence with court re their application.

 

Hearing date has been set for application dated 24 /2/2021 Hearing will be remote by telephone but the claimant cant use any evidence as it failed to submit or serve.

 

 

 

 

.

 

 

[MOSS 41]

Yes particulars identical hearing date for application 24 /2/2021 - need to submit 7 days before witness st 

 

yes n244 uploaded earlier in the thread 

[AndyOrch]

Can you post another copy here so we have it all together.

[MOSS 41]

redacted N244 CAG.pdf

[AndyOrch]

You said they failed to attach a statement in support of their application ? Did you mean exhibits  PR1 ?

 

.

[MOSS 41]

yes - court doesnt have any copies electronically or on paper, emailed me yesterday

[AndyOrch]

With you.......lets hope the court was thorough and that none turn up on the day....or that the claimant does not correct by then...either way they have failed to serve them on you and so your statement will be quite easy in response and objection.

 

Have a go at drafting it and post it here in PDF and I will make the necessary tweaks if required.

 

Here is an example that I have drafted in the past in response to this type of application ...its important that you follow the format and content in intro and conclusion.

 

WS (2) SJSO.pdf

[MOSS 41]

great will do , i have typed something, my main problem will be reducing it to be concise

 

so if they dont provide the evidence of a contract before the hearing, then what?

[AndyOrch]

Follow the claimants statement as your guide....its their application..you dont have to be concise about anything....you dont have to add anything they have not referred to....simply refuting.... informing the court of their errors and lack of compliance with the process of application.

 

Issuing two claims for the same debt.....etc etc.

[MOSS 41]

we exchanged witness statements , on first claim today,

theres is no suprises, its full of inconsistencies, quite a few things are absolute golden nuggets for me

in relation to my defence. They dont even state where they recognise a personal guarantee, on this document signed on behalf of a limited company.

 

they have a weird email they have submitted in isolation , to try and prove i knew about a personal guarantee or agreed to one prior to funding (bear in mind i have submitted , numerous properly presented emails in evidence, i asked for no guarantee and debentures in the application etc)

 

i have to show you an email they appear to have fudged together for you to look at, i,ll redact- it is ridiculous , i have all emails and this doesnt exist or has been sent to me.  and its not proof of acceptance from us ,  they have cropped out , who it was sent to , at what time , to what address etc its definitely suspicious.  you would expect it to be forwarded or cc'd in etc, if we were parties to this email.dodgy email CAG.pdf

 

 

this is not a offer email sent to us, it doesn't prove it, its an internal conversation,  when i have included emails i have done the whole conversation, headers, footers, dates, times addresses, times opened etc

 

let me know what you think, its not acceptable,

 

1) i have all original actual emails between me and funding options  so i can see how it appears to have been altered my husband is not called trevor and and has never been known or referenced as that name. my husband was not party to the application at all, and all emails, only addressed to me every single time.

[AndyOrch]

Interesting......with regards to the other claim....but irrelevant to this part of the process and drafting your statement in response to the SJ...your response for this statement must stick to the facts of the statement attached to the N244.

 

This is a separate matter and not connected to claim 1.

[MOSS 41]

Yes, i know it is not relevant to SJ, just wondered your thoughts, on it

 

i dont feel that its an acceptable way to submit an email, because they cropped out all the evidence sections, times, dates, addresses. and my agent cant accept on our behalf, when the claimant offers terms, they send it directly to us, in all previous dealings

[AndyOrch]

On  claim 2 (Hubbys) where exactly was you up to before they submitted their application ?  DQs submitted I assume.....had you got the The Notice of proposed Allocation with the courts directions ?

 

Have we got a scan of this claim form redacted here on the thread ?

If you could repost it then I have it on the same page as the N244...along with the N157 if it got that far ...thanks.

[MOSS 41]

just up to DQ's , i can attach the claim in the morning

[MOSS 41]

right attached for SJ

 

particulars

N244

my response/objection draft

 

 

let me know what you think 

CAG SJ bundle.pdf