zhanzhibar vs Amex/AIC/Newman/ Brachers Solicitors

[zhanzhibar]

As stated in my previous post, the difference between Amex & my HFC problem is :

1) HFC didn't bother to even send me my CCA & go straight to court whereas Amex did send me my what-they called electronic agreement (although it stated there application form) in March 08 before taking me to court although I requested it back in June 07. It is still not the written agreement so the same defense applied I suppose?

2) I send Amex a letter asking them to provide me with the contractual justification to add £1,073 as referral fee ( in June 2007 but in POC this has gone up to £1143:confused:).How do i include this in my defense & whether it is legal or not for them to do it?

[zhanzhibar]

I was just reading the letter from Brachers that I received today as posted above.

Para 4 on that letter:

"Our client's POC as detailed on the claim form were of course in accordance with rule 16.4 of the CPR [Does the POC really conform to the CPR rule?] & indeed furthermore you have of course previoously received full statements of the above account [i always have online statements only & they stop my access after I mar-07 i think] & a copy of the Credit Agreement direct from our client [it is just an electronic application form:rolleyes: it did not say anywhere that it is an agreement & there is no ticking box or my signature in it]. Additionally we have also forwarded to you further full copies of statements forthe above accounts for your records."

 

Can somebody confirm to me whether or not what they say about their POC is in accordance to CPR Rule 16.4 ?

[rory32]

I think it may also be worth addressing the issue of electronic signatures as this may be raised. The Electronic Communications Act 2000 defines an electronic signature as

 

Part II Facilitation of electronic commerce, data storage, etc.

 

7 Electronic signatures and related certificates

 

 

(1) In any legal proceedings—

(a) an electronic signature incorporated into or logically associated with a particular electronic communication or particular electronic data, and

(b) the certification by any person of such a signature,

shall each be admissible in evidence in relation to any question as to the authenticity of the communication or data or as to the integrity of the communication or data.

(2) For the purposes of this section an electronic signature is so much of anything in electronic form as—

(a) is incorporated into or otherwise logically associated with any electronic communication or electronic data; and

(b) purports to be so incorporated or associated for the purpose of being used in establishing the authenticity of the communication or data, the integrity of the communication or data, or both.

(3) For the purposes of this section an electronic signature incorporated into or associated with a particular electronic communication or particular electronic data is certified by any person if that person (whether before or after the making of the communication) has made a statement confirming that—

(a) the signature,

(b) a means of producing, communicating or verifying the signature, or

© a procedure applied to the signature,

is (either alone or in combination with other factors) a valid means of establishing the authenticity of the communication or data, the integrity of the communication or data, or both.

[zhanzhibar]

 

Originally Posted by nicklea

It sounds like they are being very picky - maybe something like "ok he thinks he knows something about the law so we'll play him at his own game" either that or it was answered by a complete muppet!

 

CPR part 18 practice direction states that the letter must explicitly state that it contains a request under Part 18. They could probably claim that as your letter didn't then they didn't need to treat it as a part 18 request.

 

I think you are right - it goes with "we note your letter was not a formal Subject Access Request".

 

Zan, I think you need to make sure you do things by the book from now on. If in doubt, ask here.

 

I think you guys are right. They are trying to scare me & they did.So what do i do now? Have I done myself harm by sending that request for info letter to Brachers?

I want to send a letter to Brachers (should I?) as well as the defend to court but I am not sure what should be in the content of my letter to Brachers. Just to show them that they shouldn't take me for a ride. Can somebody help me pls?

[nicklea]

Just make sure that at the top of the letter it says:-

 

Request for Information Under Civil Procedure Rules Part 18

 

or words to that effect

[zhanzhibar]

Thanks nicklea

 

I will draft up an similar request info letter to Brachers that i sent on th e6th but with exact request as per CPR when i get home tonight & will post it here for you guys to comment.

[zhanzhibar]

Zhan

 

You could always throw this back at them from Rule 7.3 of the practice Direction attached to CPR 16,

 

"7.3 Where a claim is based upon a written agreement:

(1)a copy of the contract or documents constituting the agreement should be attached to or served with the particulars of claim and the original(s) should be available at the hearing, "

 

Thanks Docman. I definitely want to include that in my letter to b*** Brachers. I am prioritising ATM as got a lot on my plate.Thought rather than wasting my time writing to them 1st, I'm better off do a research & prepare my defense to Amex which need to be submitted by 26th June & my amended defense to HFC which need to be in by 24th June !!

[zhanzhibar]

I thought I better put this letter here as well. This was received (together with copy of my statements) a few weeks after their surprise call to my mobile. As you can see this letter dated 19th May & 10 days after that I received the POC on 29th.

 

Having had time to think about it now, I am kinda confused as how to go about preparing the defense & would appreciate a bit of assistance.

 

When I first received the POC, I thought I'll defend it as I defend my HFc case. However having read the POC again, I just realised that Brachers have got me in their POC

 

 

Now how exactly do I defend this? They didn't say agreement but creditcard services & they also say in there "at my request". I am now a bit worried now coz I think this is different than my HFC case [non-compliance of producing CCA & the POC clearly stated breach of written agreement] or is it not different after all?

 

Can somebody with more knowledge advise me on this coz having re-read the POC, i suddenly feel a bit of panic that I have stupidly fell in their trap when they call me?

[BeauBrummie]

Surely--- however they dress it up, it is still an agreement regulated by the CCA 1974.

 

Just my opinion.

 

BB

[steven4064]

I think BB is right

[zhanzhibar]

Thanx for your opinion BB. Much appreciated & I agree with what you said but what worries me is the way I am going to defend this.

 

I don't think I can defend the way I intended as per post#25. With HFC-Weightman http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/115296-hfc-amex-they-didnt.html & http://www.consumeractiongroup.co.uk/forum/legal-issues/135718-zhanzhibar-hfc-weightman-court.html , they didn't provide me with anything at all & their POC itself did not follow CPR Rule 16.4 but it did stated the word "breach of agreement" in the POC.

 

With Brachers, as you can see, they kindly(not!) point out that they follow Rule 16.4 when completing the POC although they seem to forget Rule 16.2(d) that the claim form must contained matters set out in Practice Direction & in this case 7.3 ( as stated by docmanin earlier post)

 

Where a claim is based upon a written agreement:

(1)a copy of the contract or documents constituting the agreement should be attached to or served with the particulars of claim and the original(s) should be available at the hearing,

 

 

So I really am a bit clueless as to how to go about defending this now.

[steven4064]

Have a look at the defense here for pointers http://www.consumeractiongroup.co.uk/forum/halifax-bank-bank-scotland/119564-halifax-platinum-cca-5.html#post1565320

[zhanzhibar]

Thanx Steven. Will have a look at it now. Cheers again

[pauli]

I know from personal experience that Brachers will not volunteer information unless they are obliged to by law or a court order. They do however know what they are doing.

 

I have a potential fast track claim at Allocation stage with them at the moment. I originally got the claim stayed on the basis of their "unparticularised" POC. But they have subsequently submitted an amended POC which now includes scanned copy documents.

 

Only when the request has been very precisely articulated have they complied in providing information. So you do need to know, as suggested above, exactly how to ask for what it is you want. They seem to delight in saying no, but if you re-read the letters, at the same time they sometimes inadvertently give you the info you need to ask again in terms they can't ignore.

 

In terms of the service argument in the Particulars. This seems very much to me like the common law argument ...we can prove (thro statements ) that we gave you the money and that you spent it... therefore you have an obligation to pay it back. It is the same argument potentialy denied to them if the Court use their powers under S127 to declare an agreement unenforceable.

 

It seems to me that the copy agreements you have posted may well be enforceable. On the assumption of course that they are "true copies" of the original documents and both pages are connected. Its odd therefore that they should choose this line of attack.

 

Its an interesting twist..I am sure there are others here in the same boat and you will get more specific advice in terms of your defence. I wil subscribe to this thread to find out

 

If you need to discuss anything re Brachers,given I am a couple of months further down the line please post.

[steven4064]

REmember too what CPR practice direction 16 says about producing original agreements in court - see post 36 above.

[zhanzhibar]

I know from personal experience that Brachers will not volunteer information unless they are obliged to by law or a court order. They do however know what they are doing.

 

I have a potential fast track claim at Allocation stage with them at the moment. I originally got the claim stayed on the basis of their "unparticularised" POC. But they have subsequently submitted an amended POC which now includes scanned copy documents.

 

Only when the request has been very precisely articulated have they complied in providing information. So you do need to know, as suggested above, exactly how to ask for what it is you want. They seem to delight in saying no, but if you re-read the letters, at the same time they sometimes inadvertently give you the info you need to ask again in terms they can't ignore.

 

In terms of the service argument in the Particulars. This seems very much to me like the common law argument ...we can prove (thro statements ) that we gave you the money and that you spent it... therefore you have an obligation to pay it back. It is the same argument potentialy denied to them if the Court use their powers under S127 to declare an agreement unenforceable.

 

It seems to me that the copy agreements you have posted may well be enforceable. Really? Oh dear ..I'm a bit worried now!I was just printing out the CCA 1974 (E-Comm) Order 2004 to find out more about this. Can you let me know why do you think it is enforceable?

On the assumption of course that they are "true copies" of the original documents and both pages are connected. Its odd therefore that they should choose this line of attack. If u don't mind me asking,why do you say this?

 

Its an interesting twist..I am sure there are others here in the same boat and you will get more specific advice in terms of your defence. I wil subscribe to this thread to find out

 

If you need to discuss anything re Brachers,given I am a couple of months further down the line please post.

 

Hi Pauli

Thanx for looking in here.Did you have a similar application form like mine? Do you mind if I ask to look at your thread?

[pauli]

Hi Zan

 

Firstly, please disregard my earlier comment about this being an enforceable agreement. I was looking at another Amex agreement when I made the comment. Sincere apologies, I'm sorry to worry you unnecessarily.

 

Having seen your "agreement" their approach makes more sense. As I understand it the amendment to the CCA 74 Act (Electronic Agreements Order) does allow for digital signatures and non paper agreements. However..it makes perfectly clear that the "prescribed information and layout of the agreement will be the same... regardless of the method of contracting".

 

It also requires that you are sent a copy of the executed agreement. It sounds to me like you never received one originally?

 

I think they are accepting that their claim cannot succeed unless pursued on the basis of your knowingly having entered into a legally binding contract. If they cannot produce a copy of an executed agreement they are in trouble as S127 would prevent them from pursuing any common law remedy.

[zhanzhibar]

Hi Zan

 

Firstly, please disregard my earlier comment about this being an enforceable agreement. I was looking at another Amex agreement when I made the comment. Sincere apologies, I'm sorry to worry you unnecessarily.That's okay I just thought that perhaps you've seen something in my "application form" that makes it enforceable.

 

Having seen your "agreement" their approach makes more sense. As I understand it the amendment to the CCA 74 Act (Electronic Agreements Order) does allow for digital signatures and non paper agreements. However..it makes perfectly clear that the "prescribed information and layout of the agreement will be the same... regardless of the method of contracting".

 

It also requires that you are sent a copy of the executed agreement. It sounds to me like you never received one originally? Nope.Nothing other than the "AMEX Canada Intranet e-Application" card holder information in my 1st post.

 

I think they are accepting that their claim cannot succeed unless pursued on the basis of your knowingly having entered into a legally binding contract. If they cannot produce a copy of an executed agreement they are in trouble as S127 would prevent them from pursuing any common law remedy.

 

Cheers Pauli.

[pauli]

no problem..I have been a bit bleary eyed lately. Lot to do in respect of my own hearing.

 

It would be great to be a fly on the wall when the judge was presented with the computer printout. Poor souls are not that computer literate yet. I imagine he/she might see it one step removed from Mumbo Jumbo.(For legible read intelligible) ...which is I guess why you are meant to be given a hard copy of the agreement.

 

Did you find anyone else that is being taken to Court on the back of an electronic agreement?

 

There seems to be very little around by way of hard facts that might add weight to your defence and ram home the inherent problems with digital documents.

 

In your case Brachers are attempting to prove that you had the credit and so must have entered into an agreement of some kind (a contract you have had benefit from). I suspect that most judges in the abscence an agreement might accept this, as civil cases are decided on the balance of probabilities...BUT to enforce the agreement they MUST have a copy of the signed executed agreement.

 

Scanned copies of original documents (Application Form & Terms) are automatically admissable as evidence unless challenged. The problem is that judges are too easily persuaded to accept them as evidence of an agreement just because the claimant says they are.

 

This will be a big issue for a lot of people with Application forms masquerading as agreements where copies of terms and conditions, that the claimant suggests "would have been on the reverse" suddenly materialise from their document storage systems. A copy of an original document is of course acceptable provided it is a true copy, but who is to say the copies were originally two sides of one document?

 

Off topic a little I know, but an important issue in your case also in view of the alleged copy agreement they have offered as evidence.

[zhanzhibar]

no problem..I have been a bit bleary eyed lately. Lot to do in respect of my own hearing.

 

It would be great to be a fly on the wall when the judge was presented with the computer printout. Poor souls are not that computer literate yet. I imagine he/she might see it one step removed from Mumbo Jumbo.(For legible read intelligible) ...which is I guess why you are meant to be given a hard copy of the agreement.

 

Did you find anyone else that is being taken to Court on the back of an electronic agreement?I have been searching in this website but have found none so far. I am probably the first ...Don't I feeel lucky ..

 

There seems to be very little around by way of hard facts that might add weight to your defence and ram home the inherent problems with digital documents. You are quite right there & again I have been searching for a similar defense & found none. A bit worried using the defense i have from my other case here. Did PM paul (pt2537) & ask for help as he helped me with my HFC defense b4 but i think he is very busy ATM.

 

In your case Brachers are attempting to prove that you had the credit and so must have entered into an agreement of some kind (a contract you have had benefit from). I suspect that most judges in the abscence an agreement might accept this, as civil cases are decided on the balance of probabilities...BUT to enforce the agreement they MUST have a copy of the signed executed agreement.

 

Scanned copies of original documents (Application Form & Terms) are automatically admissable as evidence unless challenged. The problem is that judges are too easily persuaded to accept them as evidence of an agreement just because the claimant says they are.

 

This will be a big issue for a lot of people with Application forms masquerading as agreements where copies of terms and conditions, that the claimant suggests "would have been on the reverse" suddenly materialise from their document storage systems. A copy of an original document is of course acceptable provided it is a true copy, but who is to say the copies were originally two sides of one document?

 

Off topic a little I know, but an important issue in your case also in view of the alleged copy agreement they have offered as evidence. Going through the amended CCA 1974 (E-agreement) Order 2004 & E-Communication Order 2004 ATM to find out more about this

 

Thanks for your advice Pauli. If you do find any thread that have similar e-application form like mine would appreciate it if you could let me know. I have searched but found nothing but may be I missed something. It's hard to find time to do "research" in this website when you have 2 under 3's & working full time

 

Cheers

Zhan

[zhanzhibar]

I think it may also be worth addressing the issue of electronic signatures as this may be raised. The Electronic Communications Act 2000 defines an electronic signature as

 

Part II Facilitation of electronic commerce, data storage, etc.

 

7 Electronic signatures and related certificates

 

(1) In any legal proceedings—

(a) an electronic signature incorporated into or logically associated with a particular electronic communication or particular electronic data, and

(b) the certification by any person of such a signature,

shall each be admissible in evidence in relation to any question as to the authenticity of the communication or data or as to the integrity of the communication or data.

(2) For the purposes of this section an electronic signature is so much of anything in electronic form as—

(a) is incorporated into or otherwise logically associated with any electronic communication or electronic data; and

(b) purports to be so incorporated or associated for the purpose of being used in establishing the authenticity of the communication or data, the integrity of the communication or data, or both.

(3) For the purposes of this section an electronic signature incorporated into or associated with a particular electronic communication or particular electronic data is certified by any person if that person (whether before or after the making of the communication) has made a statement confirming that—

(a) the signature,

(b) a means of producing, communicating or verifying the signature, or

© a procedure applied to the signature,

is (either alone or in combination with other factors) a valid means of establishing the authenticity of the communication or data, the integrity of the communication or data, or both.

 

Hi Rory or anybody,

 

I'm not sure how to relate the Section 7 above with my case. Can somebody help me pls?

Reading the above on a 1st glance seems to say that an IP address could mean as a signature or am I wrong?

[zhanzhibar]

Hi all,

 

This is my defense to Amex that I will be sending tomorrow unless you guys suggest o/wise. Have updated it a bit from the previous post:

 

 

In the XXXX County Court

 

Claim Number: XXXX

 

 

 

 

 

Between

 

American express - Claimant

 

 

 

And

 

 

XXXXX - Defendant

 

 

 

 

Defence

1. Except where otherwise mentioned in this defence, the Defendant neither admits nor denies any allegation made in the Claimants’ Particulars of Claim and put the Claimant to strict proof thereof.
   
2. The Claimants’ particulars of claims disclose no legal cause of action as the Claimant's statement of case is insufficiently particularised and does not comply with CPR part 16. In this regard the Defendant wishes to draw the courts attention to the following matters;
   

a) The Particulars of Claim are vague and insufficient and do not disclose an adequate statement of facts relating to or proceeding the alleged cause of action. No particulars are offered in relation to the nature of the written agreement referred to, the method the Claimant calculated any outstanding sums due, or any default notices issued or any Notice of Assignment required for the Claimant to have a legitimate right of action for the purported debt or any other matters necessary to substantiate the Claimant’s claim.

b) A copy of the purported written agreement that the Claimant cites in the Particulars of Claim, and which appears to form the basis upon which these proceedings have been brought, has not been served attached to the claim form.

c) A copy of any evidence of both the scope and nature of any default, and proof of any amount outstanding on the alleged accounts, has not been served attached to the claim form.

 

4. Consequently, due to the Claimant failure to sufficiently particularize the claim and file any documents which form the basis of this action as required by the CPR part 16 and Practice Direction Supplement CPR Part 16 Rule 7.3, the Defendant can neither admit nor deny liability for the debt and accordingly place the Claimant to strict proof thereof.

 

5. In respect of that which is denied, on 02/07/2007 the Defendant requested that the Claimant provide a true copy of the executed credit agreement, which they claim exists between parties pursuant to section 78(1) Consumer Credit Act 1974. The Consumer Credit (Prescribed Periods for Giving Information) Regulations 1983 (SI 1983/1569) sets out that the Claimant must comply with such request in 12 working days of receipt of such request. (Exhibit A – letter to Allied International Credit (UK) Limited requesting the credit agreement, Exhibit B and C – Proof of delivery)

 

 

 

 

6. Section 78 (6) consumer Credit Act 1974 sets out the consequences of failure to comply with such request and states

 

s78 (6) If the creditor under an agreement fails to comply with subsection (1)—

 

(a) he is not entitled, while the default continues, to enforce the agreement; and

 

(b) if the default continues for one month he commits an offence.

 

 

7. It is drawn to the courts attention that the Claimant has failed to comply with the Defendant’s request and is in clear default of its obligations under s78 (1) Consumer Credit Act 1974 and it is averred that the Claimant has no right of action until such time as the default is remedied and the true copy of the executed agreement is produced before the Defendant containing the prescribed terms under Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) and signed in the prescribed manner by the debtor and creditor

 

8. Therefore since the documents have not been supplied as requested pursuant to the Consumer Credit Act 1974 the Defendant denies that the Defendant is liable to the Claimant and put the Claimant to strict proof that such enforceable agreement between parties exists

 

9. Further to the case, in an attempt to ascertain what grounds the Claimant is bringing this action and to allow the Defendant to prepare her defence the Defendant requested on 03/01/2008 the disclosure of information pursuant to the Civil Procedure Rules, which is vital to this case from the Claimant. The information requested amounted to copies of the Credit Agreement referred to in the particulars of claim and any default or termination notices, a transcript of all transactions, including charges, fees, interest, alleged repayments by the Defendant and payments made by the original creditor. Also any other documents the Claimant seeks to rely on, including any default notices or termination notice, and a copy of the Notice of Assignment required to give the Claimant a legitimate right of action. (Exhibit D – Letter to Brachers requesting information)

 

10. To date the claimant has failed to comply with the Defendant’s request under CPR and since I am a litigant in person and considering the matters pleaded in this defence, I hereby request that the court orders the claimant disclose the documents requested in point 9 and how the figures are calculated and any details of charges levied against the account. (Exhibit E – Letter from Brachers Solicitors )

 

11. The courts attention is drawn to the fact the Claimant has failed to comply with CPR part 16 and Practice Direction 16 Rule 7.3 in-so- far as they have failed to attach the written agreement they are basing this action on to the particulars of claim as required by the civil procedure rules. Therefore the Defendant believes that the Defendant is entitled to ask the Claimant to supply the Defendant with the requested documents

 

12. The courts attention is drawn to the fact that without disclosure of the requested documentation pursuant to the Civil Procedure Rules the Defendant have not yet had the opportunity to assess if the documentation the Claimant claims to be relying upon to bring this action even contains the prescribed terms required 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--

1.Number of repayments;

2.Amount of repayments;

3.Frequency and timing of repayments;

4.Dates of repayments;

5.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

 

13. The courts attention is also drawn to the fact that where an agreement does not have the prescribed terms as stated in point 12 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

 

14.The Defendant refers to LORD NICHOLLS OF BIRKENHEAD in the House of Lords Wilson v First County Trust Ltd - [2003] All ER (D) 187 (Jul) paragraph 29

” The court's powers under section 127(1) are subject to significant qualification in two types of cases. The first type is where section 61(1) (a), regarding signing of agreements, is not complied with. In such cases the court 'shall not make' an enforcement order unless a document, whether or not in the prescribed form, containing all the prescribed terms, was signed by the debtor: section 127(3). Thus, signature of a document containing all the prescribed terms is an essential prerequisite to the court's power to make an enforcement order.”

 

15. Not withstanding the above, it is also drawn to the courts attention that no default notice required by s87 (1) Consumer Credit Act 1974 has been attached to the particulars of claim

 

16. It is neither admitted nor denied that any Default Notice in the prescribed format was ever received and the Defendant puts the Claimant to strict proof that said document in the prescribed format was delivered to the defendant

 

17. Not withstanding point 15, the Defendant put the Claimant to strict proof that any default notice sent to me was valid. The Defendant note that to be valid, a default notice needs to be accurate in terms of both the scope and nature of breach and include an accurate figure required to remedy any such breach. The prescribed format for such document 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)

 

18. 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 a unlawful rescission of contract which would not only prevent the court enforcing any alleged debt, but give the Defendant a counter claim for damages Kpohraror v Woolwich Building Society [1996] 4 All ER 119

 

19. Without Disclosure of the relevant requested documentation, the Defendant is unable to asses if the Defendant is indeed liable to the Claimant, nor is the Defendant able to assess if the alleged agreement is properly executed, contain the required prescribed terms, or correct figures to make such an agreement enforceable by virtue of s127 Consumer Credit Act 1974

 

20. In view of the matters pleaded above, the Defendant respectfully request that the court gives consideration to whether the Claimant’s statement of case should be struck out as disclosing no reasonable grounds for bringing the claim, and/or that it fails to comply with CPR Part 16 and Practice Direction 16.

 

21. Alternatively if the court decides not to strike out the Claimants case, it is requested that the court orders full disclosure of the requested documents pursuant to the Civil Procedure Rules

 

22. Having instigated these proceedings without any legal basis for doing so, having failed to provide sufficient information required under the pre-trial protocols in order to investigate this claim, or indeed to provide a reasonable time period to investigate this matter, and having failed to investigate a dispute as required by the OFT Debt collection Guidelines the Defendant believe the Claimant’s conduct amounts to unlawful harassment under section 40 of The Administration of Justice Act1970. Furthermore, the Claimant’s behaviour is entirely vexatious and wholly unreasonable.

 

23. The Defendant respectfully ask the permission of the court to amend this defence when the Claimant provides full disclosure of the requested documents

 

 

Statement of Truth

 

 

The Defendant, zhanzhibar, believes the above statement to be true and factual

 

 

Signed …………………

 

 

 

There are a couple more things i want to include in this defense but not sure how to put it in:

1) The legality of the "File Referral Costs" £1,143 as per POC

2) Any changes in consumer credit agreement law for application after 2005

 

 

Can anybody help pls??

 

Thanks

Edited June 19, 2008 by zhanzhibar

[zhanzhibar]

Help any one.. going to post it today. Would appreciate any suggestion or do you guys think what I have got in the defense is enough?

[steven4064]

It's one of pt2573's defences I see - so long as you have checked that the details pertaining to your case are correct it will be OK (more than OK actually )

[pauli]

Hi ..I will let you know what I come up with in looking at my own case with Amex.

 

Sounds like they are confident of their ground in the digital signature being sufficient evidence of your agreement. On a quick reading of the legislation that may be the case but as I said earlier, the signature means you may have an executed agreement ,but not necessarily an enforceable one... it has to contain the prescribed terms. It's my understanding that they are statutorily obliged to send you a hard copy of the executed agreement.

 

This may be printed on the card carrier or a separate document but it must be a paper copy. I doubt they have provided any evidence of this being done?

 

They have done enough to comply with your CCA request but to enforce it in court they will need to exhibit an actual agreement not the electronic proof of its existence.

 

Normally they would exhibit the written application form and terms and conditions in their evidence. As they do not have an application form they may simply resort to using the terms and the fact that in signing the electronic agreement and later the card itself you were agreeing to be bound by them.

 

Potential problems for them here... hence the POC statements about contractual obligations and the references to statements showing that you spent the money.

 

As I recall Brachers have not yet sent you a copy of the terms and conditions of your agreement?

 

They will almost certainly have one and submit it with their evidence at the hearing. I should ask them for a copy now. It will contain the prescribed terms but will not have your signature on it.

 

Even if the court accepts the digital signature as evidence of an agreement it will be hard for Amex to prove that the two are part of a single document. (However..currently in completing an online application you have to agree to read and accept related terms and conditions before it can be processed..did your application have this requirement?)

 

Sorry to go on..one final point about referral charges. these are of course nonsense. Ask them for a full financial breakdown and details of how they arise. Have a look at the link to OFT debt collection guidelines and then point out just how far they fall short of meeting them.

 

Note that in your original letter from Brachers the referral fees were already added to your account and could not possibly have represented any genuine pre-estimate of costs.

 

I can't recall if you had a payment arrangement with Amex prior to Brachers instruction? If you did this would almost certainly have been on the basis of no interest or other charges being applied to the account whilst the arrangement existed?

 

They may justify the charges by reference to terms allowing them to do so..but that does not preclude them from being examined by the court for what they are.

 

Speak soon

 

Paul