Thanks, I never got round to starting the Arrow thread back when it was live.

I have TWO claims that were both stayed within a month of each other in late 2010: 1. Hillisden (former MBNA) 2. Arrow Global (former Barclaycard) Its only the Arrow Global claim that has been discontinued. I never started a dedicated thread for this. Is it possible to de-merge the threads and change the titles of the one called 'Claims Stayed since..." to '"Arrow Global vs Littlebert ****Claim Discontinued****"

Thats a different claim, albeit one that has also been stayed for 3 years! Nothing to update on that one, I'm afraid. I have updated my more recent thread dealing with both stayed claims here http://www.consumeractiongroup.co.uk/forum/showthread.php?305716-Claims-automatically-stayed-post-Defence&p=4330622#post4330622

Received a notice of discontinuance from Arrow Global yesterday.

Any update on this? Arrow have just discontinued their 3 y.o. claim against me. Fingers crossed they do the same with yours.

The claim will remain stayed until either party applies to have it lifted. Arrow could make this application to be decided 'ex parte' i.e. without notice and without a hearing. The first you would know about is upon receiving the courts directions, but you will have the opportunity to have it set aside. They may also apply to both lift the stay and to obtain summary judgement, this would probably require a hearing (unless your defence was particularly weak) so you would be served with the application notice and given a hearing date. I'm in a similar position to yourself. I don't know whether to wait for Arrow's next move, or to make one myself. I could make an application to strike out the claim as an abuse of process, but this would require a very strong argument and could expose me to signifiant costs if it were unsuccessful. But looking at it from Arrow's point of view, I don't see that they have a particularly strong position either. To apply for summary judgement after such a long delay and still having failed to provide all the documents would be equally risky for them. If you assume that they may have paid less than a penny in the pound for these accounts, it doesn't make any commercial sense to spend much pursuing defended claims - they would get a better return on investing in new receivables rather than litigating the problem cases. Hence their MO seems to be: farm accounts out to a panel of solicitors and get them to issue the claim and collect their fixed fees plus a success bonus if admitted; if defended, they 'park' the claim indefinitely and Arrow eventually bring it back in-house and have at least one crack at bullying you into setting up a payment plan. To me, this is clearly an abuse of the court process, but proving it is another matter. I've yet to find any recent examples of what Arrow tend to do next, so I took the view that I write back to them making it clear that there is still a dispute and that I intend to robustly defend any action they try to take. I also e-mailed the court to try to stop them obtaining an ex parte order to lift the stay. My thought was that ignoring them may lead them to believe they could obtain summary judgement uncontested.

Agree that its a judge lottery, but an awful lot depends on how well you present and argue your case. A lot has changed over the past few years but I believe that HFO v Wegmuller is one of the most recent reported successes at trial. It is probably fair to say that its difficult to win at trial, especially if you are not represented, but the case law still shows a prospect of success - should be enough to avoid summary judgement at least. LiPs can still be successful in getting settlements or discontinuances if you can present a strong enough defence. Personally, I would try to settle if the case looked like it were going to trial and I couldn't get representation on a CFA.

What do you mean by "enforceable agreement route doesn't work any more"? What other grounds for defending the claim were you hoping to find with the CPR 31.14 request - default, assignment?

The claim should be stayed and the clamant would need to make an application to lift the stay. They could probabbly have this delt with ex parte though as I suspect Northampton will take no notice of the delay. I have a very similar claim issued by Arrow in August 2010, that they have recently threatened to continue. I wrote to them saying the application form they sent me was unenforceable (no terms) and that they have still failed to provide copies of default notice and assignment. I have also e-mailed the court to asking them to refuse any ex parte application to lift the stay unless they provide an explanation for the delay. Not expecting much, but I do think that the court should take a dim view of a claimant who 'parks' a claim for nearly 3 years! Arrow seem to have form here and I believe there is case-law on abuse of process due to either starting a claim without the intention to pursue it, or parking claims while attempting to settle others. I suspect there are many more of these cases and Im wondering of the court service would provide some figures, for example, of the number of Arrow Global claims currently stayed for over 6 months? CPR5.4 might apply. If we could prove that Arrow are serial 'offenders' then this may help to get such claims struck out. Otherwise, I guess each case stands on its own merits i.e. have they provided an enforceable agreement etc

here is a redacted scan of the "agreement".

Well, after nearly 3 years Arrow Global have written to me to say that they are transferring the claim to in-huse solicitors and they intend to proceed with the litigation if I do not give them repayment proposals within 14 days They included a copy application form (referred to as the "agreement"), but this is barely legible microfilm and does not appear to have been executed. They have not provided a default notice or notice of assignment, as requested in my original "holding" defence. It seem pretty outrageous to expect to progress a claim that has been stayed for nearly 3 years, and I know that they need to apply to the court to lift the stay. But, in practice, how can I prevent this?

I still cant work out when the court would de-list the claim. I have searched the CPR, but it isn't clear what happens after a defence is filed but before AQs are issued

Thanks Shadow, When does the court de-list the claim and what is the effect of this i.e. can they start a new claim? bert

I'm defending two claims that are currently stayed because the claimant has failed to respond to the court after being served a copy of my Defence 1. Hillesdsen Securities (MBNA) since Sept 2010 2. Arrow Global (Barclaycard) since November 2010 Arrow refused to engage with me at all, but Hillesden did respond to a Part 18 request which I hoped would elicit some facts to clarify their absurdly vague PoC. Its now been 6 months and I really don't know how to proceed. Should I take the initiative and contact the claimants or make an application to the court? Or should I just sit tight? I've just got back to work after a three month absence due to depression and I don't want to leave this hanging much longer. Any ideas?

The claim is stayed as DLC never contacted the court after I submitted a defence. I've left it at that as there doesn't seem to be much that I can do. I have another case which is just about to be stayed automatically, so I would be grateful if anybody has any advice on how to proceed in these circumstances.

Hi Ballisimo, The images you have posted are too small to read. You need to upload them to an images service such as http://photobucket.com/ and post the links back here.

You can ask your bank to set up a standing order to make the payments direct from your account. That way there will be bank records showing how much you paid and when. I would avoid a Direct Debit as this would give them control. Just watch out for any applications from Hilisdens - the court should send you a copy of any application notice. Post back if they try anything on. Good luck and hope you get back on your feet soon.

The Claimant is not simply rejecting the offer to pay by instalments. They have stated that they are happy with the instalment rate, but that they want to obtain security for the debt. It is this that I consider an abuse of process. If they are happy for the debtor to repay at a rate of £20, they should accept the offer. Only if one of these instalments is missed should they apply for a charging order. Of course the DJ may not see it this way, but I still think they would be interested in seeing, in black and white, what the claimants game is. The content of these letters can only help the OP in getting an instalment judgement.

JonChris, the OP has already admitted the claim! I think the important thing here is to expose the Claimant's blatant abuse of process in asking for a forthwith judgement. The LBA and the claimant's recent letter are clear evidence of this. I'm not familiar with the process for admissions, but I would consider writing to the court enclosing copies of the claimants correspondence and reiterating that you can only afford to pay £20.

It's too small to read I'm afraid. You need to use Photobucket or similar. Alternatively, just type out the text from the particulars of claim box.

I had the same letter before action from Aplins - it says that they will be seeking a forthwith judgement, not that they expect you to pay it, but so they can apply for a charge and then negotiate installmentsu. I think it could be argued that this approach is an abuse of process, so be prepared to show this letter if Aplins try to vary any installment order made by the judge.

I think Restons will either ignore that CPR 18 request or refuse it saying its a "fishing expedition". As much as it pains me to say it, they are probably right - the CPR doesn't give you the right to ask for a long list of documents like that. You can use CPR 31.14 to request copies of documents referred to in the particulars of claim. Part 18 is to request further information I.e ask questions that you want the claimant to answer. However it must be reasonable and proportionate. Can you post up the particulars of claim (taking care to remove any identifying references) and let us know if the ammount claimed is over £5k?

Hillisdens are trying to get ahead of your other creditors by securing the debt against your property. If it is your intention to admit the debt, then it might be better if you try to negotiate an affordable payment plan with them before they issue a claim. This will make them look unreasonable if they request a forthwith judgement that they know you can't pay simply so they can then apply for a charging order. The fact that there is insufficient equity to cover all your debts is irrelevant to them obtaining a charge. As is any share of equity your husband might be entitled to.

Here is my defence. Its got to be posted to the court this afternoon, so I'd be grateful if someone could give it a once over. Its a bit of a beast - running to 6 pages of A4. I'm wndering if its better to take out the quotes of statute and caselaw and make it more concise? 1. I, Littlebert, of Little Land am the defendant in this action and a litigant in person. I make the following statement as my defence to the Claim brought by Hillesden Securities Limited. 2. The statements made in this defence are in reply and opposition to the Claimant’s Particulars of Claim and the subsequent Part 18 response made by AN Other, a Litigation Executive of direct legal and collections 3. The Claimant’s Particulars of Claim, as stated on the Claim Form, are extremely vague and insufficiently detailed. It does not comply, or even attempt to comply, with the provisions of CPR Part 16 even when allowing for the restrictions of the bulk issue system. 4. The defendant therefore wrote to the Claimant’s solicitors, Aplins, requesting an extension to the standard period for submitting a defence and enclosing a formal request for further information under CPR part 18. This document was forwarded to Direct Legal and Collections who appear to act for the Claimant. 5. Direct Legal and Collections wrote to the defendant agreeing to the request for an extension to the period for filing a defence and enclosing an ‘interim’ response to the Part 18 request. This response was incomplete and was not verified with a statement of truth. 6. Direct Legal and Collections subsequently served a final verified response dated xx August 2010. 7. The claimant states at paragraph 1 of both the interim and final Part 18 response that their claim relates to a written agreement. The claimant has refused to attach a copy of this agreement as required by Practice Direction 16.7.3 8. Except where otherwise mentioned in this defence, the Defendant neither admits nor denies any allegation made in the claimants Particulars of Claim or Part 18 Response and puts the claimant to strict proof thereof. 9. The Defendant denies that he is liable to the Claimant in the sum of £xx or indeed at all. The “Agreement” 10. Notwithstanding point 7 above, the defendant has located a copy of the document referred to in Paragraph 2 of the claimant’s Part 18 response (“the agreement”). 11. In Reference to paragraph 3 of the Claimants part 18 Response, the defendant requires the opportunity to inspect the original document in order to satisfy himself that it exists and was signed by his own hand. 12. If 'copies' of any of the documents referred to in this case are to be relied on in court rather than 'originals', a copy of the Notice of proposal to adduce hearsay evidence required under s2(1) of the Civil Evidence Act 1995 together with proof of the authenticity of the document(s) as required under s8(1)(b) of the Act is required, including but not limited to: a. a copy of the procedure(s) used for copying, storing and retrieving documents; b. a copy of the relevant log entry showing the time and date of the scan or copy, the name of the member of staff making the copy, the method used for copying, storage and retrieval and time and date of destruction of the original document(s); c. copies of internal and external audit reports covering the entire period from the date of the copy to the present to demonstrate that the procedures have been complied with; d. copies of Quality Assurance accreditation certificates covering the entire period from the date of the copy to the present to demonstrate that the procedure(s) and audit process(es) comply with the appropriate quality standards. 13. The Defendant would also bring to the court’s attention the following: Code of Practice for Legal Admissibility of Information Stored on Electronic Document Management Systems, BIP 0008:2004 (previously PD 0008 ) issued by the British Standards Institution (BSI). This Code of Practice provides guidelines to ensure, as far as possible, that electronic documents and scanned images will be accepted as evidence by the courts. The basis of the guidelines are that process under which documents are managed are as important as the technology used, for example where a document is printed, it should accurately reproduce the contents of the "original". The Civil Evidence Act (1995) introduces a flexible system whereby all documents and copy documents, including computer records, can be admitted as evidence in civil proceedings. A judge will still have to be persuaded to treat that evidence as reliable, therefore organisations will have to prove the authenticity and reliability of the record. The key principles behind BIP 0008 are: Authenticity – Processes to be followed at system planning, implementation and the procedures by which the systems should be operated. Storage and access procedures – Procedures including scanning, indexing, retrieval, system administration, archiving, off-site storage and training, to be followed. Demonstrability of adherence – A structured audit process resulting in a Certificate of Conformity that displays demonstrability of adherence. 14. In light of point 12 above, the Defendant therefore puts the Claimant to strict proof that the documents they are relying upon in this claim are compliant with the key principles of points 12 & 13 above and that failure to supply this proof renders the evidence inadmissible. 15. The Defendant denies that the copy document referred to in paragraph 2 of the Claimants Part 18 response is an enforceable agreement under the terms of the Consumer Credit Act 16. The documentation which the claimant claims to be relying upon to bring this action must contain the prescribed terms specified in Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) which was amended by Consumer Credit (Agreements) (Amendment) Regulations 2004 (SI2004/1482). The prescribed terms referred to are contained in schedule 6 column 2 of the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) and are inter alia: - A term stating the credit limit or the manner in which it will be determined or that there is no credit limit, A term stating the rate of any interest on the credit to be provided under the agreement and A term stating how the debtor is to discharge his obligations under the agreement to make the repayments, which may be expressed by reference to a combination of any of the following- a. Number of repayments; b. Amount of repayments; c. Frequency and timing of repayments; d. Dates of repayments; e. The manner in which any of the above may be determined; or in any other way, and any power of the creditor to vary what is payable. 17. The courts attention is drawn to the fact that where an agreement does not have the prescribed terms as stated in point 6 it is not compliant with section 60(1) Consumer Credit Act 1974 and therefore not enforceable by s127 (3). The courts attention is also drawn to the authority of the House of Lords in Wilson-v- FCT [2003] All ER (D) 187 (Jul) which confirms that where a document does not contain the required terms under the consumer credit act 1974 and the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) and Consumer Credit (Agreements) (Amendment) Regulations 2004 (SI2004/1482) the agreement cannot be enforced. 18. It is submitted that if the credit agreement supplied falls foul of the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) in so far that the prescribed terms are not contained within the agreement then the court is precluded from enforcing the agreement. The prescribed terms must be within the agreement for it to be compliant with section 60(1) Consumer Credit Act 1974. In addition there is case law from the Court of Appeal which confirms the Prescribed terms must be contained within the body of the agreement and not in a separate document . I refer to the judgment of TUCKEY LJ in the case of Wilson and another v Hurstanger Ltd [2007] EWCA Civ 299: "[11] Schedule 1 to the 1983 Regulations sets out the "information to be contained in documents embodying regulated consumer credit agreements". Some of this information mirrors the terms prescribed by Sch 6, but some does not. Contrasting the provisions of the two schedules the Judge said: "33 In my judgment the objective of Schedule 6 is to ensure that, as an inflexible condition of enforceability, certain basic minimum terms are included which the parties (with the benefit of legal advice if necessary) and/or the court can identify within the four corners of the agreement. Those minimum provisions combined with the requirement under s 61 that all the terms should be in a single document, and backed up by the provisions of section 127(3), ensure that these core terms are expressly set out in the agreement itself: they cannot be orally agreed; they cannot be found in another document; they cannot be implied; and above all they cannot be in the slightest mis-stated. As a matter of policy, the lender is denied any room for manoeuvre in respect of them. On the other hand, they are basic provisions, and the only question for the court is whether they are, on a true construction, included in the agreement. More detailed requirements, which are designed to ensure that the debtor is made aware, so far as possible, of specified information (including information contained in the minimum terms) are to be found in Schedule 1."" 19. The Defendant accepts that he made an application for a credit card and that in consequence of that application Bank of Scotland advanced monies to him. 20. If the claimant seeks to rely upon the fact that they can show that the defendant has had benefit of the monies and therefore the defendant is liable, I refer to and draw the courts attention to the judgment of Sir Andrew Morritt in the case of Wilson v First County Trust Ltd - [2001] 3 All ER 229, [2001] EWCA Civ 633 in the Court of Appeal at para 26: "In effect, the creditor--by failing to ensure that he obtained a document signed by the debtor which contained all the prescribed terms--must (in the light of the provisions in s65(1) and 127(3) of the 1974 Act) be taken to have made a voluntary disposition, or gift, of the loan moneys to the debtor. The creditor had chosen to part with the moneys in circumstances in which it was never entitled to have them repaid;" Statement of Account 21. I deny that a balance of £XX is outstanding under the agreement and contend that the copy statements referred to in paragraph 11 of the Claimants part 18 responses include unlawful charges. Furthermore the statements are incomplete and begin with a balance carried forward, the origin of which remains unexplained. 22. The Claimant has disclosed limited copy statements however these statements begin in July 2005 and show a “Previous Balance” of £XX. They do not show how that earlier amount has been calculated. Furthermore, the statements show various ‘default sums’ and fees for which there would appear to be no contractual basis. Consequently those fees are unlawful. Furthermore, the Defendant has no means of ascertaining whether the earlier sums validly accrued. 23. I contend that the clause in the alleged agreement under which the account charges have been imposed is, at common law, a penalty clause in that it does not reflect any actual losses sustained by the claimant nor does it reflect realistically any actual costs incurred.(Dunlop Co Ltd v New Garage Ltd [1915] AC 79) 24. The Claimant has not disclosed the original terms and conditions under which the default charges have been imposed. It is averred that before the court may assess whether the charges imposed are pursuant to a penalty clause that it must consider the position of the parties and indeed the agreement at the date of its’ inception. “The question whether a sum stipulated is penalty or liquidated damages is a question of construction to be decided upon the terms and inherent circumstances of each particular contract, judged of as at the time of making the contract, not as of its’ breach” (per Lord Dunedin in Dunlop v New Garage) 25. The Charges referred to relate to a “LATE DEFAULT SUM”, which is a standard fee of £12 imposed regardless as to whether the payment is one day late, or three weeks late or indeed never arrives. It is averred that in any event the claimant suffers no detriment in late payment in that it continues to charge interest at its’ contractual rate. 26. The second charge is an “OVERLIMIT DEFAULT SUM” which is again charged as a standard fee, this time of £12, which is charged for every month in which an account exceeds the credit limit imposed. Again the fee is charged irrespective of the extent by which the credit limit is exceeded, it is the same fee if the limit is exceeded by £10 or £10,000. The Claimant suffers no actual loss in the sense that the Claimant continues to charge interest on the balance outstanding and consequently suffers no loss. The clause must therefore be penal in nature. 27. Furthermore, the Defendant avers that the clause under which the charges were imposed was an unfair term in a consumer contract and in breach of the Unfair Terms in Consumer Contracts Regulations 1999 and by virtue of regulation 8(1) not binding on the consumer. 28. The Defendant refers to the Office of Fair Trading guidance on this issued in April 2006 in this regard and notes that following an OFT investigation into credit card default charges that the OFT concluded that many credit card charges were unfair. The Default Notice 29. In paragraph 8 of their Part 18 response, the claimant avers that “various Notices of Default are contained within the Statement of Account” 30. The Defendant avers that the claimant has confused the term ‘Default Notice’ (section 87 of the Consumer Credit Act) with ‘Notice of Default Sums’ (section 86E of the Consumer credit Act) 31. Notwithstanding point 30 above, the Claimant has provided a copy of a Default Notice dated 07 April 2009. 32. The Claimant has failed to state the method by which the Default Notice was served on the claimant. It is submitted that, without evidence to the contrary, the method of service should be assumed to be 2nd class postage with the date of service deemed to be 4 days later. 33. The Default Notice provided by the Claimant is invalid on three counts:- a. The arrears include unlawful charges b. The remedy date of 24 April 2009 does not allow 14 calendar days from the deemed date of service (11 April 2009) c. The agreement was terminated by assignment on 22 April 2009 34. I note that to be valid, a default notice needs to be accurate in terms of both the scope and nature of the breach and include accurate instructions on how to remedy any such breach. The prescribed format for such documents is laid down in Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) and Amendment regulations the Consumer Credit (Enforcement, Default and Termination Notices) (Amendment) Regulations 2004 (SI 2004/3237). 35. Failure of a default notice to be accurate not only invalidates the default notice (Woodchester Lease Management Services Ltd v Swain and Co - [2001] GCCR 2255) but is also unlawful rescission of contract which would not only prevent the court enforcing any alleged debt, but would also give rise to a potential counterclaim for damages where damage occurs to my credit rating (Kpohraror v Woolwich Building Society - [1996] 4 All ER 119). The Assignment 36. In paragraph 4 of its CPR 18 response, the Claimant admits that they are not party to the original agreement. 37. The claimant also notes in Paragraph 1 of their CPR 18 response that the original agreement was made between the Bank of Scotland and the Defendant, and that this was subsequently assigned to MBNA Europe Bank Limited. 38. The Claimant has failed to provide any evidence of an assignment between Bank of Scotland and MBNA Europe bank. The defendant therefore puts the claimant to strict proof of such. 39. With reference to paragraph 4 of the Claimant’s part 18 response, the document referred to by the Claimant does not identify any specific account as being assigned. The defendant therefore puts the Claimant to strict proof of assignment Conclusion 40. The claimant has failed to adduce hearsay evidence in the correct procedure and the document purporting to be a Credit Agreement is inadmissible as evidence in this claim. 41. Notwithstanding Point 40, the copy document disclosed by the claimant is unenforceable due to the absence of prescribed terms 42. The claimant has not been correctly assigned rights under the alleged agreement and has no legal right of action for the aforementioned account. (W F Harrison & Co Ltd v Burke and another - [1956] 2 All ER 169 refers.) 43. The claimant has failed to serve a valid default notice, and the claimant should not be bringing this action before the court. (Woodchester Lease Management Services Ltd v Swain & Co - [1998] All ER (D) 339 in the Court of Appeal refers.) 44. In the circumstances the Claimant has no substantiated particulars of claim and no entitlement to claim any of the relief now sought by its claim and it is respectfully suggested that the claim be struck out pursuant to CPR Part 16 Paragraph 7.3(1) and CPR 3.4(2) and judgement/costs be awarded in favour of the defendant.

thanks middenmess, I have reported to the site team. I'm not one who wants constant spoon-feeding, but sometimes the silence can be a bit disconcerting!