Cabot/hudsons claimform - old barclaycard debt

[joghuj]

Here you go Edz

Application Notice Mod.pdf

Court Order mod.pdf

My Order mod.pdf

[Edz11]

Glad you scanned them. You have one order (dated 18 January) and it says that they have to disclose - comply with your request.

 

I'd say it isn't very satisactory. If they don't produce what you've asked for by 31 then the claim is struck out. But the order is wishy washy. It should list what they should provide as part of "disclosure" and the Judge didn't do that. So they have 10 days and if the court hasn't had anything by 1/2/08 then the claim is struck out. If they do provide somethingthen they can argue they've complied - but we'll cross that brdige if we come to it.

 

I think that in order to wrap it up you should go for a default costs order on 3rd February. So lets wait ubtil then.

 

There isn't a court stamp on that order - a slip up I hope.

[joghuj]

OK cheers Edz. I'll relax and wait and see what the postie brings...

[Edz11]

second thoughts... presumably the http://www.consumeractiongroup.co.uk/forum/attachment.php?attachmentid=1826&d=1200942946 is an N24 (bottom left hand corner). I would ring the court in he morning and check which of the two (or both?) should have the court stamp on. You may have two order - but it isn't clear

[joghuj]

Soon got a reply. See attached copies from court. My application is set aside until March. Hodsons have given several reasons for this, I think number 4 is a bit cheeky considering they served the original order on me before I received their LBA! ANyway, looks like it's just dragging on and on and on...

16A - App Set Aside.pdf

16B - App Set Aside.pdf

16C - App Set Aside.pdf

[Edz11]

I'd say they were in a weak position. The 17/1/08 order is a restatement of what they've already agreed to. If the Judge had ordered what you'd applied for then we wouldn't be in this position/mess in the first place.

 

So - they are appealing against a decision that says they must disclose. But, they've already been ordered to do that and haven't. They are still required to disclose by the ealier order but haven't. The only difference is the strike out in this one:) .

[joghuj]

I'm glad you're confident Edz. I'll be looking for some advice on how to prepare for this hearing at some point as I wasn't completely prepared last time and don't want to make the same mistake.

[joghuj]

I'm due back at court soon, can anyone offer any hints and tips? Bearing in mind that my order was set aside (see post #255) what can I expect in this hearing and what should I be concentrating on?

 

Cheers

[tomterm8]

What i would do is appologise to the judge first thing, explain that this is the first time you have gone to court and you believed that the court would serve the papers.

 

Then, discuss the reason for your application. Point out the date of the letter, the fact the previous Judge said it was highly relevant information, and the fact that they were ordered on .... dates .... to provide the information.

 

Further, point out that under the pre-action protocols they were legally required to provide most of this information before the case continues.

 

ask them why they haven't provided such basic information as you want, and explain that it's delaying the court process, and possibly delaying their client getting their judgement!

 

In short be reasonable, explain straight off that as a litigant in person you believed you were following procedure, and apologise. then ask them why they haven't provided the information the judge ordered on DATE.

[joghuj]

I had the second directions hearing on Friday and to be honest it's not going well. I took Tomterms advice and the judge seemed quite reasonable about my comments and agreed that they should provide legible copies of the agreement. However, the girl from Hodsons (who was very confident and seemd to know her stuff) quoted some section of the CCA that says that an executed agreement doesn't need to be produced. A credit card application form is sufficient and she went on to explain why. Unfortunately there was so much being said so fast that I didn't get all the details. The judge agreed with her though and told me that an application form which is signed and states that terms and conditions as per CCA 1974 is suitable and that is how credit card agreements are completed.

 

He is ordering that;

 

1 Claimant to provide disclosure of documents by 4th April as per my previous list which will include an application form in lieu of an executed agreement and notice of assignment and payments to/from the accounts since Cabot purchased them.

 

2 Witness statements by both parties by 25 Apr.

 

3 Trial window dates.

 

I tried to keep pushing the executed agreement argument but judge and Hodsons were both in agreement and it's pretty difficult on your own in those circumstances. I think I need some help in court now as well as the good advice on this forum.

 

I've no idea what to do now at all. Any suggestions please?

[Dibsthefrenchie]

Joghuj, I thought I would add to your posting, so that's it's bumped up to the top again.

I understood from the CCA1974, that the t&c's had to be shown on the agreement or application form:-

 

As the draftsman of the Consumer Credit Act 1974 I would like to thank Dr Richard Lawson

for his interesting and well-argued article (30 August 2003) on Wilson v First County Trust

Ltd [2003] UKHL 40, [2003] 4 All ER 97.

Dr Lawson may be interested to know that I included the provision in question (section

127(3)) entirely on my own initiative. It seemed right to me that if the creditor company

couldn’t be bothered to ensure that all the prescribed particulars were accurately included in

the credit agreement it deserved to find it unenforceable, and that the court should not have

power to relieve it from this penalty. Nobody queried this, and it went through Parliament

without debate. I’m glad the House of Lords has now vindicated my reasoning and confirmed

that nobody’s human rights were infringed.

167 Justice of the Peace (2003) 773.

I am sure that you have been through all this and at this late stage, I would suggest contacting Tomterm8.

Dibs x

[tomterm8]

Hi, sorry, haven't been around so much recently.

 

from where I am, at this stage you actually got everything you wanted from the hearing. They must furnish the required documents, and they've reheared some arguments with the judge as to why an "application form" can be an executed agreement... which we already knew.

 

the question is, is the document they will send YOU a copy of the executed agreement?

 

really, you won the hearing, it is just a pity you didn't have someone along to take notes of what arguments they will use.

[joghuj]

No problem TomTerm.

 

The documents they are going to provide are application forms, stating '..you agree to terms and conditions in CCA1974' bit near the signature. I'm 100% sure of that. I wish I was as confident as you about this, the judge and Hodsons girl both seem to think that this is sufficient for it to be enforced.

 

I took notes, just forgot to note which bit if the act she quoted.

 

When you talk about 'and they've reheared some arguments with the judge as to why an "application form" can be an executed agreement... which we already knew.' What exactly do you mean? I've not read anything about an application form being an agreement or do you mean that Hodsons/Cabot etc.. keep trying to use this statement but it's not enforceable?

 

They are using the fact that it is a credit card and therefore it would not be possible to state prescribed terms such as repayments, interest etc.. Are they correct in thinking this or not?

[tomterm8]

No problem TomTerm.

 

The documents they are going to provide are application forms, stating '..you agree to terms and conditions in CCA1974' bit near the signature. I'm 100% sure of that. I wish I was as confident as you about this, the judge and Hodsons girl both seem to think that this is sufficient for it to be enforced.

 

I took notes, just forgot to note which bit if the act she quoted.

 

When you talk about 'and they've reheared some arguments with the judge as to why an "application form" can be an executed agreement... which we already knew.' What exactly do you mean? I've not read anything about an application form being an agreement or do you mean that Hodsons/Cabot etc.. keep trying to use this statement but it's not enforceable?

 

They are using the fact that it is a credit card and therefore it would not be possible to state prescribed terms such as repayments, interest etc.. Are they correct in thinking this or not?

 

We'll see exactly what the thing you signed says, very hard to know if its an executed agreement without seeing it. Some applications are enforceable, some aren't... what you've said leads me to believe it won't be enforceable but who knows? Bottom line is, until they disclose the agreement, got very little to work with.

[joghuj]

Latest court order attached.

17 - Court Order 18 Mar 2008.pdf

[tomterm8]

Can I suggest you send a S.A.R. to the original creditor ASAP, include the £10, ask for ALL data they hold on you.

[joghuj]

Can I suggest you send a S.A.R. to the original creditor ASAP, include the £10, ask for ALL data they hold on you.

 

I can do that Tomterm, there are 3 different creditors. Why is this important?

[tomterm8]

Because the judge didn't order them to provide statements, and that is a very improtant thing to have so you can check how much the actual debt is ( not how much they SAY it is)

[joghuj]

I've had PC/Network problems, just got sorted again. Can anyone point me to a default SAR suitable for original creditors please. The one I sent to Cabot seems a bit harsh to send to Barclays etc.. or is this OK?

[tomterm8]

Addresses etc,

 

Dear Sir or Madam,

 

Please send me all the data you hold on me, that I am entitled to under the Data protection act 1998, I enclose the prescribed payment of £10 ( postal order XXXXXXXX ).

 

Yours Sincerly,

 

XXXX(type don't sign).

 

Enc, copy of latest statement etc / utility bill as proof of identity (write on it submitted DATE for Data Protection Act request).

[joghuj]

Last court order was for them to provide me with the listed documents by 4pm yesterday. Nothing arrived yesterday and nothing so far today either.

 

Whats next step? Ring the court I suppose to see if they have received them but if the order was for them to provide me with the documents by a certain date then they have not complied. Any suggestions?

 

Also, I need to get together some sort of witness statement and I really have no idea what this should contain?

[tomterm8]

Call the court, ask for the court manager, and since it was an unless order ask them to dismiss the claim without refering it to the judge. Wait 2 working days, however, for postal service.

[joghuj]

Tomterm,

 

I rang the court at dinner and asked for the court manager, the lady I spoke to however told me that the Claimant has filed some document (sorry, can't remember what type she said now and I was busy at work) on the 3rd and it has been passed to the judge. She didn't have any details but said I will be contacted when it has been dealt with by the judge.

 

By the way, what is the Witness statement for in general terms? I don't want any specific details to my case but what it entails generally.

 

I was also thinking about hiring a solicitor to represent me in court as I've come to the conclusion that I don't seem to have the right qualities to represent myself. Would a solicitor be prepared to represent at this point of the proceedings do you think?

 

Cheers

[tomterm8]

In answer to your questions:

 

1. a wirness statement is a document similar to an oath, it is someone talking about what they know, but in writing rather than in court.

 

2. Yes, they would. You can go through CAG, or via the pro-bono scheme.

[joghuj]

Tomterm,

 

I'm going to be away for a few weeks unfortunately. I can still get letters posted to the court but it won't be so easy. Can I submit a witness statement now or do I need to wait until I find out what Cabot have sent in regarding disclosure?

 

Cheers