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Just Cash Flow PLC business bank personal guarantee Court Claim.


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Thanks-

 

looking at hearsay evidence , the witness statement to be provided as person listed in directions ; is just their collections officer . 
 

 

not the person at the company who dealt with application, or the person at company who signed agreement etc , he will not be the name on any document ie email , or surrounding evidence except the final letter before action etc 

 

so the whole witness statement to be provided by them is hearsay ? Isn’t it ? 

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That's normal if that person is authorised to submit the statement on behalf of the claimant...I would normally add the following paragraph though to to cover that eventuality in my response.

 

The claimants witness statement confirms that it mostly relies on hearsay evidence as confirmed by the drafts person 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.

 

But given that you have not uploaded their statement or your intended response it is difficult to advise.

We could do with some help from you.

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hi thanks - still drafting my witness statement and havent had theirs yet all due to exchange on 24 january 2021

 

i have written a request for a couple of documents listed on their N265

 

Dear Sirs,


I was served the disclosure list late, not in accordance with the Court order Dated 6th October 2020 on the 18th December 2020.

Please can more effort be placed upon the current situations and make appropriate allowances for service on time, or in alternative methods like email as this is not the first time I have not been served or served/replied to on time under CPR.

 

Request for inspection/copy of disclosure list documents under CPR 31.15 (a)(b)(c)

 

Live Chat Notes 2019

Social Media Post 16 June 2020-and its legal

relevance?

Letter to XXX and XXX from Claimant 26 June 2020

 

 

Items requested due to claimant failing to give full disclosure- item not disclosed to be held or ever have been held on N265 by Claimant

 

Copy of full signed Loan agreement by XXXXXXX 17 June 2019

Copy of signed by XXXX XXXXX Loan offer dated 11 June 2019

 

Please can you provide/serve within the required 7 days as per the order from todays date the date of service. So by 29 December 2020.

 

 

Further Comments to be brought to Courts Attention

 

Attached sheet to N265 served, was late and incorrect, not referenced to this court case and contained large amounts of another immaterial list, irrelevant to this court claim GXXXXXX

This would be disproportionate cost to the current claim, in its composition and preparation. Against the spirit of CPR 31 that information and disclosure should be relevant and concise and only what is necessary, to meet a test for proportionate costs and relevance.

 

 

The claimant is a company and but on the N265 served I has not been stated on the disclosure statement who is making the disclosure statement or why they are the appropriate person to make it.

 

Regards

 

 

 

 

- this is what i sent, got a snotty email back  saying 

'we havent had your complete n265'

 

i said it was served on you on the court corrrectly and i was copied in - what are you suggesting is missing ?

 

he said - its not complete, take legal advice and nothing more.

 

I have filled out the N265 correctly and the attachments with great care and reference as per CPR- not much for me to do as defence but list what i have 

is this just sour grapes on someone who has been called out?

 

next point - they finally after me asking for it to be disclosed provided a full signed loan agreement by me (see letter above)which to date a CPR 31.14 letter failed to obtain and and SAR failed to obtain and is not listed or mentioned in their disclosure statement or list at all.

 

they havent disclosed it full stop - until this letter i just sent above , is it inadmissable as they havent disclosed it- or is me forcing the issue for its disclosure and them emailing it back sufficent for them to now disclose ?

 

its just as well i insisted on it , as it does change how i approach my defence, they would have ambushed me with it later.

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I thought you had it by stating.....

 

Quote

the witness statement to be provided as person listed in directions ; is just their collections officer . 
 

 

We could do with some help from you.

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Your giving them far too much information informing them of their errors...time for them to correct everything before you even get a hearing date....it should be radio silence with the claimant once a court claim has been received.

We could do with some help from you.

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i know - but ive been to court before and i have always found the judge would let things go, and especially something as important as a loan agreement - would be allowed by a judge due to its importance for justice- and then i wouldnt be prepared, come unstuck in the court room.

 

at the end of the day, i have to win on points of law with all the available evidence, i cant do it be pretending things dont exist, being selective with information, lie etc a judge will see right through actions like that.

 

i mean its the  whole point of disclosure right?

 

my barrister said its a tripartite agreement where all parties have to sign- every party hasnt signed and conditions not met etc- 

they are trying to make out - one party can sign here, the other here - we can join these together to create an enforceable agreement- 

which is incorrect - they sent to all parties a copy each of all parts  , everyone had to sign their own copies in full- to bind the agreement - they expected all parties to sign these parts and return and it didnt happen

 

the other side of the coin, is i want to expose their failings , because if i lose and have to pay, i shouldnt have to pay all the interest and costs, as this should have been provided in pre action protocol (as i expressly asked for it on the pack )they neither responded to or followed.

 

if they had provided on my request before court all these costs could have been avoided - and its their fault as they repeatedly wouldnt disclose wouldnt send me even after CPR 31.14 letter and SAR

 

so i guess what im saying is

1)cant hide from the evidence , ill come unstuck in court and 

2)if i lose i want to argue i should only pay original amount, as every other cost and interest is because of their unreasonable behaviour- not supplying the information etc

 

 

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Well if I was the claimant I would be submitting a Supplemental Witness statement correcting everything you have pointed out and getting my evidence spot on.......but as you say the agreement is unenforceable then nothing else really matters ...errors or not.....follow your Barristers advice.

We could do with some help from you.

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They havent done witness statement, just a disclosure which was incorrect and unprofessional- considering the person 

who filled it out is a solicitor and should know better.

 

They replies to the three things i asked for - were swiftly provided but are documents that relate to another ltd company again and completely irrelevant, they really dont know what they are doing.

 

They have disclosed a loan agreement dated in 6th november when actually the one in existance is dated 7th june - i have not corrected them on that- so they might not amend as they already think they have disclosed the loan agreement

 

but they havent dicslosed a correctly dated one.

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Excellent...you should have a field day drafting your statement.:ranger:

We could do with some help from you.

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So currently drafting my witness statements again- do i leave all the case law stuff out and just do an accurate chronology of events in my own words - as you are not allowed to form and opinion and im not a legal expert so would be foolish to quote applicable case laws

 

do i save the case law etc and all that for the skeletal argument stage - what legislation i believe covers me etc?

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If you are relying on case law then it must be referred to within the statement and marked with the relevant exhibit numbers as separate attachments. You cant introduce it at skeleton stage.

We could do with some help from you.

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You are not at bundle stage yet.....this is simply exchanging disclosure and statements simultaneously  by date as stipulated within your Notice of Allocation...the Courts Directions should advise preparation of bundles for hearing

We could do with some help from you.

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Thanks - urgent question incase I need to deal with today - 

 

I have served all documents 

 

Acknowledgment and defence to court and other side by Email with time stamps 

 

I called the court and I asked if I Can also serve the n265 by email (being right before Xmas and post sometimes delayed by 10 days and Covid etc) they confirmed yes 

 

otherside has always served me late or not at all by snail mail - 

 

I have sent a letter as previously stated in earlier posts - to remind them to serve me earlier if by post or use email when I asked for specific disclosure 

 

now in cpr it says  to serve by post unless they agreed to email 

 

I’m worried they are going to say they haven’t been served as i did it by email , and therefor try and get all my disclosure as inadmissible ?

 

can they do this ?

 

shall I send in post now (late) and apply for a relief from sanctions to avoid this as it was served by email , and email responses for specific disclosure have been done by email from the claimant (which confirms they are happy to respond / receive email ?

 

Ok I’m panicking less now under CPR

 

Putting your email on a defence or other court document could be considered agreement to being served by email.

 

and apparently they have to write to  you if they do not accept service by email if they have put email on court forms as they have 

 

and take then copy of email , to court to prove it was served 

 

 

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and apparently they have to write to  you if they do not accept service by email if they have put email on court forms as they have 

 

Well I assume they have not informed you otherwise....but I would post hard copies out also after Boxing day...just in case.

We could do with some help from you.

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Yes did that as a back up anyways today 

 

when we emailed they said , wrong format do it this way etc - so did as requested in time , and email served on court papers next to address for service 

 

 

although not expressly stated , don’t do email , also didn’t deny and gave us format acceptable when we emailed last week 

 

when we sent they gave us format to resend and accept - 

 

im confident , we have fulfilled CPR

 

or would give court saw it that way 

 

 

don’t really see how anyone can do anything other than email serving , country in lockdown people working from home , unless you email they won’t receive the 

 post and documents on time 

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Merry xmas to all- back to it , no rest for court case preparation unfortunately

 

My particulars of claim, doesnt state under what legal rule or legislation they make a claim under terms of a guarantee. -My barrister highlighted this to me

 

So ive had to write defence against every possible way they could claim, statute , breach of contract, tort of negligence - but its so wastefull and broad brush, instead of having something specifically to answer, like we claim personal guarantee, under the statute of frauds 1677 as you signed contract here and here. etc - which i could then specifically defend and say whay it doesnt apply.

 

 

Now, they have had my disclosure list and have not requested by last week within the 7 day as ordered, copies of what they would not hold. i would have thought they would have requested the following:

 

1)evidence of me proving my IP address is different to that applied to a typed signature

The IP address on document is near their office in scotland, and i live in south of england.

2)Email and postage evidence that proves deed backdated and falsified deed forged in the persons handwriting, 

 

so i have evidence it seems they applied a typed name in a signature box, ie i did not sign

and acceptance criteria not fulfilled of condition precedent to acceptance as per their words meaning execution of contracts didnt happen until after money lent.

 

anyways, does that mean i do not need to provide it now if they ask? (outside order window)

 

On the other side of the coin, how do i highlight they have failed to disclose certain documents by disclosure, so they can no longer rely on them or bring them to the table

footnote at bottom of witness statement quoting CPR31.22?

one example they have disclosed a copy of loan agreement signed by husband on behalf of company- but wrong date many months later, (do i just say no disclosure has been made for a loan agreement dated xxxxxxx-the correct date, and then they automatically cant include the one they do actually have as havent dislcosed it on N265, because they typed wrong date so doesnt exist.

 

Also copy of same loan agreement in my name signed on behalf of company, not disclosed by CPR31.14, SAR and N265.

so i said -you havent disclosed etc - then low and behold after deadline one appears when i demanded it again, but it is not disclosed at any point in last year before disclosure, they wanted to ambush me

 

 

 

 

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We could do with some help from you.

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thanks , seems to be more about consumer and not unregulated contracts, but i have had a read.

 

back to defence of application for summary judgement, i have attached a redacted copy of my witness statement in defence of no granting a summary judgement- does it look good enough to stop an application? am i giving away too much before the trial if it happens.

 

is it good enough to get it stopped, as it would seem i have to prove more than a fanciful prospect of defence working- so i have been quite thorough 

 

The application made by claimant was already given earlier in thread , but this is a draft response to be polished, or amended as necessary.

 

 

 

Post hidden ..please only upload in PDF format.....your personal details are showing in the Word version.

 

Your statement in response to an application of this type must be in depth.....because if their application is successful you wont get another chance...all or nothing stage.

 

The contents are okay, if not a little accusing in parts at their lack of following procedure...dont let your personal thoughts come through...keep it succinct and business like. 

 

You need to add a bold heading of Conclusion and why you expect the court to dismiss their application shortly encompassing the aforesaid reasons.

We could do with some help from you.

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Thanks , before I redraft , is it the complaints of not following pre action we are too accusing ? 
was mentioning the witness for claimant , not being suitable and involved ok ? 
 

i can make it more detailed , however I thought my defence is to show we have enough to proceed to court and a chance of success, rather than them conduct a mini trial , and pick a winner on the day 

 

reason I have bought up CPR stuff, is 1) it’s true 2) If I was to lose I don’t see why we should be punished for all costs etc , because they have been unreasonable since in haste to court , unreasonably refusing payment plan etc 

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There are certain lines where your anger shows through.....let the judge determine.

 

if you lose you lose and are liable for the costs the court awards...simply pointing out that they have failed on various points to comply as per the CPR/PAP process and the courts should use their discretion in any costs awarded should the claimant succeed..... is an ample statement to in/conclude. 

 

Have a read of the relevant CPR re Summary Judgment...if not already...there must be certain basis and points of law to succeed in this type of application.

 

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

 

https://www.justice.gov.uk/courts/procedure-rules/civil/rules/part24/pd_part24

We could do with some help from you.

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  • 2 weeks later...

Thanks, 

I have my barrister reducing it to relevant points hopefully this week. 

 

Quick question -

court case is against me and my husband, 

 

they cannot and haven't provided a signed copy of a personal guarantee for him, not through CPR 31.14, SAR or Disclosure- so no personal guarantee for him under statute of frauds as confirmed by my barrister, so it all falls on whether one exists for me 

 

but as claim is 

xxxxplc (claimant)

Mrs xxxxxxxxx

Mr xxxxxxxx (defendants)

 

can we ask for claim to be struck out unless document provided - meaning they would have to start again, against me personally as this claim is its current format cant continue against both of us.

 

The can only issue a claim against me, or is it irrelevant? Court will find no guarantee for husband, and just adjudicate on my position.

 

One of my barrister points is that the agreement is tripartite and all parties are expected to sign, and his signature is missing, invalidating whole contract (non execution)

 

 

i know it seems silly to push it back, but as we are so close to court (dont know where these long waits are reported, my fast track case went though at break neck speed to trial), but because its close to date, they just wont negotiate at all.

Pushing things way back. means they will have to negotiate to get anywhere.

 

thanks

 

 

 

 

 

 

 

 

 

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surely if no signed PG exists at all............think about it...

 

3 hours ago, MOSS 41 said:

so no personal guarantee for him under statute of frauds

 

what's fraud got to do with it.......

please don't hit Quote...just type we know what we said earlier..

DCA's view debtors as suckers, marks and mugs

NO DCA has ANY legal powers whatsoever on ANY debt no matter what it's Type

and they

are NOT and can NEVER  be BAILIFFS. even if a debt has been to court..

If everyone stopped blindly paying DCA's Tomorrow, their industry would collapse overnight... 

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Thats just the name of the legislation 

statute of frauds 1677 section 4 precisely

 

-guarantee must be in writing and signed 

 

 

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