Help - Witness Statement and Exhibit to prevent step aside

[NatalieC]

Thanks Jules,

 

I havent heard anymore yet other then Northampton writing to say it has been transferred. Nothing from Basildon yet.

 

Keep me posted on your progress!

 

Nat

[NatalieC]

Hi Elisedriver,

 

Have you had an news after sending your witness statement yet?

 

Nat

[elisedriver]

Natalie - It would have been delivered on the 26th June and being totally honest, I do not expect to hear anything at all now until the court date.

 

I will attend the hearing on the 10th and hopefully it will be prevented from being set aside.

[elisedriver]

Oooo.. a little snippet of extra information here.

 

My special delivery was sent to

 

Ashurst

Broadwalk House

5 Appold Street

London

 

Which is precisely the address given on their court papers that should be used for all correspondence.

 

According to the Royal Mail - that is in fact a Postal Box which they have to empty themselves, i.e, they come to the Royal Mail and collect.

 

Whereas my Special Delivery entered their PO Box at 5.30 am on the 26th June - ASHURST have not been to collect their mail since !!!

 

Surely this is a bit of a lax attitude to time sensitive court papers ???

[elisedriver]

Well here we go...

 

Court in the morning

[Lula]

Good luck, let us know how it goes, and this means NOT disappearing down the pub afterwards, NOT going off and doing your weekly shop afterwards, it is your SWORN DUTY to come back here post haste and report back, LOL oh and take the information with you about the Ashurst non collection, it may be useful, all my documents have always gone to Triton House, i cant begin to imagine why they are using another address.

 

You may well turn up and find they have a nice fat cheque for you, if they do, still go in front of the judge and declare that this is what they have done, or if they have offered to settle, have this said infront of the judge too, and he will give them a timeframe to pay up or reappear back.

[jules1973]

how did you get on at court

[NatalieC]

I've been dying to hear how you got on in court today.

 

Please let us know how it went.

 

I've had everything crossed for you!

 

I've had a letter from Basildon court to say the hearing of Abbeys application for setting the judgement aside will take place at 2pm on 8th August (two days before I go on my two week holiday!!)

[Lula]

Did they bang him up?

[NatalieC]

I've been check back to see if he's made a posting all day!!

 

Elisedriver.. where are you?! Please give us some good news!

[elisedriver]

OK folks - here I am. Has been a long day, as I had a 320 mile journey to make after court for work.

 

Lets start with the bad news : The application was accepted and the judgement has been set aside.

 

Now let get to the positive stuff and breakdown how my day will mean success for others.

 

First of all, the biggest surprise of all, was that Abbey sent a solicitor/barrister all the way from Manchester for the hearing. He had been there for 90 mins before the court hearing time - so that won't have been cheap.

 

We went in and had about 20 mins of questions. The judge was very happy with all my witness statements and generally picked holes in the Abbey shoddyness.

 

He was certain that the Abbey had not filed on time - and certainly picked up on my notes about how everything else was post and fax - yet the defence was 'only' by post. He also asked why Abbey, a UK company was sending documents with "England" in the address label, and then went to on elaborate on Ms Kirkmans ( The abbey solicitor in London) phraseology. Certainly by the wording it prooves that Abbey are sending the documents out AFTER the deadline and back dating them - for which he was not a happy bunny about.

 

However, under law, if a defence is filed late yet there is an honest intention to defend the case - then he has to let the case be defended and this is the crux of the set aside.

 

Please note for people who are trying to avoid setting aside a judgement at this phase - THIS IS WHERE YOU NEED TO POINT YOUR DEFENCE

 

Whereas the judge today had a real go at the Abbey solicitor basically saying to him "I know you have no intention of defending - so why are you doing this". He picked up on the 1000's of other cases going through the courts and stated that none or very very few are actually argued in court. He commended me on the opinion that it was an Abuse of process that the banks are using the court as a delaying tactic - and was actually leading me along this path. One of the biggest points here was that he was willing to accept proof of abuse as being enough evidence to let the judgement stand.

 

Unfortunately the only case numbers I had in my evidence pack where those who had settled - with no reference which have applied / been granted abuse / costs.

 

IF YOU ARE TRYING TO PREVENT A STEP ASIDE - YOU NEED TO INCLUDE A LIST OF CASE NUMBERS THAT HAVE BEEN SETTLED AND HAVE SUBSEQUENTLY APPLIED FOR ABUSE OF PROCESS

 

With the judgement being set aside, then it was proceeding forward. He instantly dismissed the need for an AQ "To prevent it being dragged out even longer (he said staring at the Abbey lawyer ) and obviously set the amount at £100 and asked me if I wanted 14 days to pay it. I said I would do it ASAP to get and earlier court date and he reduced the period to 7 days.

 

He then went on to costs - as the application for aside had been successful. The Abbey lawyer shuffled some paper and the judge butted in that because the whole debacle has been brought about by Abbey not filing on time despite having the resources to do so - he was awarding the costs to ME !!!

 

We got on to talk about me taking half a days holiday to present myself - so he said it would be a half a days pay. The normal Small Claim AQ fee for this is £50 a day - so that's what he awarded. The Abbey lawyer picked him up on a technicality of it only being a half a day - so "shouldn't it be £25 ??" Well the judge decided that because as yet the AQ stage hasn't been reached - and therefore the rates of the small claims court were not actually enforcable - then he was saying £50 as a guideline - and what is my actual salary. He got a calculator out - took my basic salary, took off tax and NI - then pro rata'd my holiday allocation etc etc etc and then it came out at £116 per day. At which the judge then asked the Abbey would they like reconsider accepting the £50....

 

So thats it really.

 

£50 costs awarded to me payable within 14 days,

£100 due for the AQ fee in 7 days

AQ dispensed with

Court date to follow with notes on the case file that should Abbey fail to defend - then they will be immediately liable for Abuse of Process.

[elisedriver]

OOo - Just thought of something else from Today.

 

When the judge was mentioning that Abbey / "The Banks" don't turn up and settle early - The Abbey Lawyer quoted an Abbey case on the 26th June in Coventry where Abbey "Won"

 

Obviously I asked where the evidence of this was - and under what circumstances they were awarded the decision - and the chap didn't have details. The judge questioned further - but dismissed it anyway.

 

In fact, the Abbey chap was rather badly prepared - he hadn't even seen a copy of my defence - and is copy of the application evidence was 2 pages shorter than that of the courts

[ICY]

Sounds like you had a very good day, how strong was the solicitor, and did he seem to know what he was arguing

[Lula]

WELL DONE!!!!! you lost the battle, and i have to say, that it was almost a foregone conclusion, they always grant the set aside, BUT you gave them a bloody nose, I would imagine that you will get your costs PLUS your full claim amount very soon, that is a marvellous thing that you have done, you should be very very proud of yourself indeed.

 

Basically, what we need to do now is set up a spreadsheet with all the claims that have been thrown out as an abuse of process, actually it is a shame that he dispensed with the AQ as you could have asked for that then,

 

I will ask Gary H to set it all up.

 

Once again, Very well done!!!!

[Lula]

i think that the Barrister was referring to a Wasted Costs Order, that was submitted AFTER she had settled in full and final, it doesnt mean Jack here lol

[elisedriver]

The solcitor was an early 40's type - very well up on the law - but very bad on the individual case. Very surprised he hadn't even seen my defence - and more so that he wasn't aware of the contents of Ms Kirkmans application.

 

What I did sense though that he was working purely to instruction - his client being Abbey told him to go to court and accept nothing less than a set aside ( as I got the impression that when the judge started saying I know you have no intention to actually defend in court ) - that he knew it wouldn't get to court yet his instruction was obviously contradicting what he should do.

[GaryH]

When the judge was mentioning that Abbey / "The Banks" don't turn up and settle early - The Abbey Lawyer quoted an Abbey case on the 26th June in Coventry where Abbey "Won"

Rubbish. It was Lloyds, not Abbey. Abbey actually LOST a claim in Birmingham last Friday.

 

There's actually a sticky thread in the 'campaign' forum with all the abuse strike out cases listed. I've tried to collect as many of the actual orders as possible so perhaps I'll put them up for people to download. I'll add them to the abuse order thread when I get the chance

 

Well done, btw. I would suggest that when they settle you write to the judge pointing out the complete waste of everyones time in applying to set-aside a judgement on a claim they blatently had no intention of defending from the very start. Its a complete charade. Obviously attaching a schedule of your costs for the entire claim at £9.25 per hour.

[NatalieC]

Hi Elisedriver,

 

Well done for yesterday and thanks for posting your feedback. It will really help me to prepare for mine on the 8th August.

 

I'm so shocked that they sent a solicitor. I've been dreading them doing that on mine.

 

Fingers crossed for your next episode.

[NatalieC]

Sorry, I'm a novice! How do I find the sticky thread in the 'campaign' forum with all the abuse strike out cases listed? I cant seem to find it.

 

That will be so useful for my denfence on 8th August.

[NatalieC]

This is what I've got so far. If I manage to find the list of cases that have been struck out then I will also add that.

Thanks Elisesdriver, I have pretty much cloned your witness statement.

I wouldnt have known where to start otherwise!

I didnt include 'without prejuduce' on my letters, so I am assuming I can use these as evidence?

1. I, the Claimant, am a litigant in person in this case.

2. I make this Witness Statement in reply to the defendant’s application to have the judgement set aside.

3. I make this Witness Statement from information and facts within my own knowledge and which I believe to be true.

4. On 2nd February 2007 I wrote to the Defendant, setting out the nature of my complaint and requesting that the Defendant either justify the legitimacy and legal status of its charges or alternatively refund them.

5. Upon an unsatisfactory response from the Defendant, on 19th February 2007 I again wrote to the Defendant requesting a refund of said charges and advising I would file a claim should I not receive a satisfactory response.

6. Upon an unsatisfactory response from the Defendant, on 16th April 2007 I again wrote to the Defendant requesting a refund of said charges and advising I would file a claim should I not receive a satisfactory response.

7. Upon the Defendant's generic template rebuttal of my complaint, on 1st May 2007 I filed a claim online at Northampton County Court for the return of the charges levied by the Defendant, as particularised and detailed in the Particulars of Claim.

8. I wrote to the Defendant on 1st May 2007 informing them that I had commenced court proceedings to reclaim the charges levied by the Defendant.

9. The Defendant acknowledged service of the claim on 17th May 2007.

10. The Defendant failed to file its defence as per the courts instruction and I Requested for Judgement on the 5th June 2007.

11. The court ordered a Judgement For Claimant (In Default) on the 6th July 2007.

12. On the 12th June I wrote to the Defendant to request payment upon the court ordering a judgement for the claimant and stated that I would proceed with issuing the warrant of execution should I not receive a satisfactory response within ten working days.

13. On the 14th June I telephoned the Defendant six times and emailed four times to request they called me back regarding payment or I would proceed with issuing the warrant of execution.

14. On the 19th June I telephoned the Defendant six times and emailed four times to request they called me back regarding payment or I would proceed with issuing the warrant of execution.

15. Upon not receiving a satisfactory response from the Defendant, I applied online to issue of a warrant of execution online on 20th June 2007.

16. On 25th June Northampton Court rejected the Claimants application to issue the warrant of execution.

17. On 27th June I received notification from Northampton court that the defendant had applied to have the Judgement set aside.

18. I am aware that to date the Defendant frequently fails to defend a case in the courts and that they often use the court process to extend and delay the period of time within which they deal with these matters satisfactorily.

18.1. The claimant is aware of multiple cases where the Defendant is failing to submit their defence on time – utilising the “Application For A Judgement To Be Set Aside” as an additional path to delay procedures. An example of this practice is the current on going case 7SC00350 in the S****horpe County Court, where identically the Abbey National delivered all the documents prior to the Defence being submitted by post and fax, yet failed to file a Defence. The Defendants then applied to have the Judgement set Aside, supplying a Defence document dated prior to the deadline for submission – again without any proof of delivery and ceasing to fax documents – identical to this case.

18.2. I have included Exhibit NC02, a non-exhaustive list of completed County Court cases. This list is where Abbey National have been the defendant and settled immediately prior to a hearing in claims of this nature in the Mercantile Court in London, as well as in small claims track cases in Leicester, Derby, Chesterfield, Northampton and Mansfield County Courts.

18.3. The Claimant believes that if the Defendant does not have the serious intention of defending this claim at trial as is indicated by its defence – as demonstrated by their recent history in Exhibit NC02.

[jules1973]

Rubbish. It was Lloyds, not Abbey. Abbey actually LOST a claim in Birmingham last Friday.

 

There's actually a sticky thread in the 'campaign' forum with all the abuse strike out cases listed. I've tried to collect as many of the actual orders as possible so perhaps I'll put them up for people to download. I'll add them to the abuse order thread when I get the chance

 

does anyone have the link to this sticky that Gary mentioned, i cannot find it.

 

Thanks in advance

[ohoh4312]

Hi

 

Is this it?

 

http://www.consumeractiongroup.co.uk/forum/campaign/96691-court-cases-struck-out.html

 

Not all Abbey cases though, but might help.

 

Best regards

 

Jo xx

[jules1973]

thanks Jo

 

I want to have a quick read just incase I have to go down this route. Abbey have until Monday to file a defence and we havent yet received any letter/copy of their defence yet. Knowing abbey leaving everything to the last minute i will receive it either saturday or monday.

[NatalieC]

Hi All,

 

Has anyone located a list of claims that have been struck out for abuse? I desperately want to be armed with this.

 

Also I'd be really grateful if you could have a look at post 45 on this thread and let me know if my witness statement is acceptable to send.

 

Thank you very much.

 

Nat

[jules1973]

Hi Natalie

I only have the following case numbers so far. I have emailed Eddie Murphy and Reka for their case numbers, just waiting on them to respond, I will pm Clarion and Guido today for theirs.

User Name: Case Number:

Kia 7DC42005

Marie jader 7NB00229

Reka

Guido T

Clarion 48

Eddie Murphy