Backdoor Link CCJ - old Barclaycard debt - Default Judgment set a side Sanctions imposed. **STRUCK OUT**

[AndyOrch]

Take a look in the morning 

[AndyOrch]

Firstly if you can complete the following with as much information as you can recall or evidence for history of this debt.

Copy the Q,s and your responses back here then we can look at both statements and documents.

 

Andy

[AndyOrch]

If the agreement was allegedly taken out in 2000 and you state you do not recall it or even if you did...do you recall making payments ?

You state it use to appear on your credit files but no longer...did you never question why if not your debt ? 

If you never made any payments (someone made payments up until 2015) and cant recall a credit card with a balance of 8K+ 

Strange ?

[AndyOrch]

Yes BC did get the Egg accounts and also MSDW (Morgan Stanley Dean Witter accounts)....so moving forward you need to attack the credit agreement within your statement.

The reconstituted standard BC agreement does not satisfy any CCA request and cannot be a copy of an Egg agreement so throw in that the claimant is and remains in default of your CCA request and therefore unable to enforce the alleged agreement.

Reconstituted agreements do not satisfy any agreement that have been modified or assigned.

Still that still does not explain who was making payments up until 2015....considerable amounts on the the size of the debt.

 

 

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[AndyOrch]

We can finalise it in the morning so you can meet the directions on time.

Andy

[AndyOrch]

Here is a draft which I have adapted you will have to incorporate some of your points and add exhibits if required. This deals with the main thrust of your argument. They have proof of payments up until 2015 so its best to be upfront that there was a debt be it assigned to BC but let them them find out which brand it was and if they can produce the necessary true documents to evidence their claim

Witness statement draft.pdf

 

Andy.

 

 

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[AndyOrch]

The relevant notes with regards to Reconstituted versions of an agreement if you wish to rely on an exhibit.

Waksman Reconstituted Agreements.pdf

[AndyOrch]

2 hours ago, LouLouDev79 said:

Would you be happy to take a final look over the document when I have finished?

Sure ...no problem.

[AndyOrch]

Witness statement.pdf

[AndyOrch]

Because its not connected to this claim.....Ideally if you had received the claim you would have requested information pursuant to CPR 31.14 and a CCA request for the agreement. DSAR only reveals your personal data held which would be minimal with the this claimant.

You can leave it in if you desire but it adds no weight to your statement.

 

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[AndyOrch]

27 minutes ago, LouLouDev79 said:

Also, should I put point 9 at the start so it is the first thing the judge sees? If it gets struck out on that point then the rest would be irrelevant?  

No because telling a story in your statement chronologically it would be out of run sequence. You would have to change the run sequence starting from finding the judgment to setting a side.

They have disclosed since and leniency will be allowed (subject to how long they delayed) and the court will disregard it even though it is their order.

 

 

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[AndyOrch]

Added to above

[AndyOrch]

Then that would be a point to verbally introduce at the start of the hearing when asked to speak...then go into your statement.

[AndyOrch]

Sympathy does not come into it I'm afraid...you argue your claim any judge that allows a judgment on that agreement and paperwork they have disclosed well its time to give up.

Important point to keep at the back of your mind ......you cant reconstitute (recreate) an agreement when the agreement was not the original agreement that BC transferred you to or one that you never entered into.

Modified agreements cannot be reconstituted.

 

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[AndyOrch]

1 hour ago, LouLouDev79 said:

on Friday I received a copy on email from the claimants solicitors with an attached relief from sanctions application

Scan redact and upload please.

[AndyOrch]

Quote

14. The Claimant should not be disadvantaged due to the error of their solicitors.

Wasn't aware that the court had imposed sanctions and struck the claim out ?

[AndyOrch]

Absolutely...so lets see if they have any success with their application before we we consider what's next 

[AndyOrch]

Keep in contact with the court as the hearing of the 7th May not happen 

Draft Order request

Quote

The hearing set for 7 June 2024 continue

 

 

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[AndyOrch]

5 minutes ago, LouLouDev79 said:

Should I just keep ringing the court then to see what happens (I am usually on hold for over an hour!) or will the court write to me to confirm? I thought they would have written to me to confirm it had been struck out?  

I personally would just attend anyway on the presumption it is happening ...save you stress of checking.

[AndyOrch]

Well it will be given the priority attention given the hearing is close its bad form that the court did not inform you that sanctions had been applied and the claim struck out. Lets hope they inform you this time if the hearing is to proceed. 

Their application involves a remote hearing and no you would not be expected to participate.

[AndyOrch]

1 minute ago, LouLouDev79 said:

she said it was odd that the solicitors had applied for a relief of sanctions when it hasn't even been struck out yet!

   Well it is Link so the court should make allowance's

[AndyOrch]

Well sanctions must have been imposed somewhere along the line and you dont make an application in anticipation unless they have been imposed.

They were late in re submitting their particulars...you referred to this in your statement

From their statement in support of their application 

Quote

6. The Court then set directions under an order dated 13 February 2024. Within that order,
the Court issued additional directions including particulars of claim and copies of various
documents to be filed and served before 3 April 2024.
7. The fee earner with overall conduct of the matter did not comply with that direction, for
which I sincerely apologise to the Court and the Defendant.
8. The Claimant seeks relief from sanctions pursuant to CPR 3.9 and the Denton
principles.
9. CPR 3.9 states:
(1) On an application for relief from any sanction imposed for a failure to comply with any rule, practice
direction or court order, the court will consider all the circumstances of the case, so as to enable it to
deal justly with the application, including the need –
(a) for litigation to be conducted efficiently and at proportionate cost; and
(b) to enforce compliance with rules, practice directions and orders.
(2) An application for relief must be supported by evidence.

Quote

15. I therefore respectfully request that the hearing be relisted or alternatively seek relief
from sanctions for the reasons stated above. All parties are ready to attend the hearing,

 

3 minutes ago, LouLouDev79 said:

That makes sense, yes I will make sure I attend on the day unless I hear otherwise from the court!      Am I right in thinking that if it is struck out, then they wouldn't be able to re-start it as it is now statute-barred? 

Correct unless they make a further application 

[AndyOrch]

Reading their statement again in detail its to avoid and request relief the sanctions imposed for failing to comply with directions on time....as the sanction will be in place they are unable to rely on the documents they submitted since.

Which would be disastrous to their claim. 

Good old Link/Kearns. 

Quote

If the matter is permitted
to stand struck out then the Defendant will be the subject of a substantial windfall to
which it is submitted she is not entitled as the Claimant can and will show that they have
proven all of their claim.
 

Hence their application

[AndyOrch]

9 minutes ago, LouLouDev79 said:

am I able to change my defence now to add that the debt is now Statue-barred as I didnt include that on my original defence? 

Afraid not if their application is granted then the claim remains the same as at issuance.

[AndyOrch]

Not in this type of application but if its allowed and the claim resumes you will have opportunity to raise the conduct of the claimant within your statement.