Arrow/Shoos claimform - old MBNA debt - settled by Tomlin - drydens now write saying pay us not Arrows?

[AndyOrch]

" Does this buy them more time or will the court directions in my message above still be enforced on the 30th April and be struck off if they dont file a Listing Questionnaire by the date?"

 

No the Direction still stands... irrespective of who is representing them.

 

Andy

[toxicdebt]

If they proceed using Shoosmiths could I attempt to prevent them from giving evidence stating CPR rule 32.10 "Consequence of failure to serve witness statement or summary", siting that as no Witness Statement was (or has been since) submitted to me within the court deadline date of the 8th March, and according to the court directions quoted... "4. No party may rely on or adduce the evidence of any witness whose statement has not been served in accordance with this order without further permission from the court"

 

[AndyOrch]

Absolutely if they have failed to serve a WS.

 

Andy

[toxicdebt]

Okay as I haven't yet informed the court of AG's failure to submit a Witness Statement and given the above email from Shoosmiths, Ive drafted this letter to the court.

 

I was wondering if its okay in content. Any advice?

 

Dear Sir Madam

 

 

I write with reference to the following case.

 

 

ARROW GLOBAL GUERNSEY LIMITED BELVEDERE vs MR TOXIC DEBT

 

 

Claim number: XXXXXXX

 

I would like to make the court aware that:

 

To date I the defendant have not been served a Witness Statement by the Claimant. The deadline contained within the courts directions was the 8th March 2013.

 

 

I therefore would like to inform the court that at trial I will request that the court(Judge?) invoke CPR rule 32.10 "Consequence of failure to serve witness statement or summary", in that any witness acting on behalf of the Claimant be excluded from presenting evidence during trial due to

1. Failure to serve a Witness Statement by the deadline dated on the order

and

2. Any Witness Statement provided beyond that date be disallowed as per directions contained within the order - No.4: "No party may rely on or adduce the evidence of any witness whose statement has not been served in accordance with this order without further permission from the court".

 

 

Unless the Court decides otherwise.

 

 

Yours Faithfully

Toxic Debt

 

[AndyOrch]

Would have far more impact on a an application notice with draft order.

[toxicdebt]

I thought I couldn't submit it on a N244 for failure to Submit a WS, as per your reply on page16 post 313 Andy?

 

EDIT: Ah, I see what you mean. A draft order to invoke what Ive said in the letter - not to strike out - which is what you said I couldn't do.

 

I've got ya. Im learning all the time

 

N244 it is.

 

Thanks Andy

Edited April 25, 2013 by toxicdebt

[toxicdebt]

Today I have received a copy of a Listing Questionnaire submitted (I assume yesterday) by Shoosmiths along with a costs order estimate for in excess of £5500 and a covering letter.

 

The covering letter states that they are still considering this case with their client (AG) and they will revert back to me shortly.

 

The Listing Questionnaire states the following:

1. I confirm I have complied with those directions already given which require action by me... NO

Details: "Paragraph 3 of the court order ordering parties to serve witness evidence - 8th March"

2. I believe that additional directions are necessary before this order takes place... YES

3. Have you agreed the additional directions you are seeking with the other parties... NO

 

Section F: Document Check-list:

They have ticked the Listing fee box, A proposed timetable for trial and An estimate of costs boxes.

Interestingly they have not ticked "An application & fee for additional directions" or "A draft Order", which I assume means they have not attached any draft order with the LQ, which is confusing as they stated above that they believe "Additional directions are necessary before the trial takes place". What additional directions?

 

I have already prepared an application notice and draft order to request the court refuse them from giving evidence since they have not submitted a Witness Statement either by the deadline of the 8th March or since. Should I still send this seeing that Shoo's have admitted they have not sent a WS or should I wait to see what Shoosmiths are playing at?

 

I fear Shoo's will say they have not had time to compose a WS as they were only brought back on the case a few days ago but I dont think that's fair!

 

Here is my draft order...

 

DRAFT ORDER:

Further to Deputy District Judge Xxxx Xxxxx's directions dated xxxxxx 2012 and failure to serve Witness Statement by 4pm on 8th March 2013

 

IT IS ORDERED THAT:

1. The claimant be excluded from giving oral evidence as per rule CPR 32.10 - "If a witness statement or witness summary for use at trial is not served in respect of an intended witness within the time specified by the court, then the witness may not be called to give oral evidence unless the court gives permission".

 

Does that sound ok?

 

Any advice guys?

[toxicdebt]

Received two letters from the Court today (both in one envelope).

 

The first dated 8th may 2013 states the following:

 

IT IS ORDERED THAT

1. The Claimant be excluded from giving oral evidence as per rule CPR 32.10 - "if a witness statement or a witness summary for use at trial is not served in respect of an intended witness within the time specified by the court, then the witness may not be called to give oral evidence unless the court gives permission".

 

2. Because this order has been made by the court without considering representations from the parties, the parties have the right to apply to have the order set aside, varied or stayed. A party wishing to make an application must send or deliver the application to the Court to arrive within 7 days of service of the order.

-----------------------

 

The second dated 10rth May 2013 states the following:

 

IT IS ORDERED THAT:

1. The parties file with the court by the 3rd june2013 dates of availability for July, August and September.

-------------------

 

I'm assuming the second order is due to the fact Shoo's ticked the box of their Listing Questionnaire that they wanted more time. How do I inform the court that I am available during the new dates / period? Is there a form for this?

 

I'm having trouble getting my head round the first order - this will have been in reply to my draft order requesting they enact CPR 32.10 - However it states that parties can apply to have the order set aside, varied or stayed. Should I be considering any of these options and on what form would I do it?

 

The order states any application (about the above order) must be delivered to the court within 7 days of service of the order. Does that mean 7 days from the date on the order (8th may) or 7 days from the date I received the order (today 13th May)? The Court posted them both in one envelope franked on the 10th May.

 

[citizenB]

I think court service is 2 days, so count 7 days after the date on the order - which is when any objection to the order should be made. Although the 10th was a Friday, so perhaps count from today. I imagine that you would be able to confirm with the court if you are concerned.

 

If you object to anything in the order, given that it was made on the initiative of the court without a hearing, then they would probably insist on a hearing. Why would you want to object to the content, isn't it what you wanted? The Claimant to be prevented from having a witness give oral evidence ?

 

I will send an S.O.S. to andyorch for you.

[toxicdebt]

Thanks CitizenB.

 

Ah you are right, I dont want to object to anything in the order. I wasn't sure what 'setting aside' is or a 'stayed order' was. Im reading up on them now though

 

I'm guessing that I sit tight and do nothing.

[citizenB]

It looks like you need to let the court know what dates you are available.. although that might only apply to the claimant.

 

I have sent S.O.S. to andyorch, I am sure he will be able to tell you for sure what is going on

[toxicdebt]

The court has written informing me that the trial date is set for the 13th August. Basically thats all it says. Does this mean Shoosmiths have definitely replied to court order/request of both parties for availability for trial? or could the court set a date regardless if Shoosmiths failed to reply?

 

Ive still not had a Witness Statement from the Claimant / Shoosmiths. I am assuming though that they are barred from giving oral evidence in the trial as Ive not had anything back from the court stating the claimant has requested to set aside the Court order banning them under CRR 32.10 they sent out last month.

I cant see how they can effectively proceed without being able to speak at the trial nor rely on any Witness Statement if they subsequently submit one before the hearing. Unless Im missing something????

 

Does anyone know what I should put in my trial pack thingy & when I need to hand it in etc? I'm assuming my witness statement and exhibits need to be in there. How many copies? Anything else?

 

Sooo many questions *sorry*

 

[citizenB]

I will ask andyorch to pop in and answer your questions

 

I do know the answer to the last one 3 copies.. one for the court - one for the claimant and one for you. Plus a file containing your original documents

[AndyOrch]

Hi Toxic responding to CB report.

 

Ok refer back to your Notice of Allocation..the DJ Directions will state what when and how...with regards to your " trial pack thingy " I assume you mean your Court Bundle?

 

Regards

 

Andy

[toxicdebt]

Thanks Andy and citizenB.

 

Ive had a chance meeting with a off duty DJ today who gve me some advice and suggested that I could put in an application notice / order to have the case struck out under the recent changes to the CPR rules amended in April this year. She pointed me in the directions of various CPR rules.(see below).

 

Im considering putting this draft order in and am interested in your opinions.

 

Draft/ORDER

 

 

Further to the Deputy District Judge Xxxxxx’s Directions dated xx December 2012 and failure by the Claimant to serve Witness Statement by 4:00pm on xx March 2013 as directed by the Court. And given that the Claimant is now debarred by court order from giving oral evidence at trial pursuant to CPR 32.10 and further has not made any application within the directed period of seven days of service of that order - dated xx May 2013 - for relief from sanctions (CPR3.9) resulting in the Claimants inability to effectively proceed further with this case without jeopardising CPR 1.1(2)(a) - ensuring that the parties are on an equal footing, and CPR 1.1 (2) (f) enforcing compliance with rules, practice directions and orders.

 

IT IS ORDERED THAT:

 

1. Pursuant to CPR 3.4(2)© The court strike out the statement of case as it appears to the court that there has been a failure to comply with a rule, practice direction or court order.

2. The Claimant do pay the Defendants costs of the claim and application.

Unless they have applied for relief from sanctions and the court has chosen not to inform me. (can the court do that?)

 

[AndyOrch]

Nothing new or to do with the recent change to CPR...you always have been able to make application....have I not already suggested this Toxic?

[toxicdebt]

Sorry Andy,

 

Yes you suggested the CPR 32.10 order and it worked. They are now debarred from giving oral evidence at trial. Many thanks I appreciate your advice very much.

 

Im not sure if its because of any changes as such, just the person I met today said that the courts have to be more strict since the amendments to CPR1.1 made in April with regard to failure to meet court directions and I could use this as reason to ask for a strike out. She then pointed out the other CPR stuff I could use in my draft/order. She did say its by no means guaranteed.

 

Was just wanting to make sure I wasn't tripping myself up or anything. by putting the order in / If the order seemed OK?

[AndyOrch]

Yes they have tightened up on either party not complying with directions and sanctions will be imposed.

[toxicdebt]

Cheers Andy

 

I'm taking the draft/order and N244 to the Court tomorrow. We shall see how strict they have become.

[citizenB]

Yes they have tightened up on either party not complying with directions and sanctions will be imposed.

 

About time too, IMHO

[toxicdebt]

I've had a letter from Shoosmiths. Its entitled "Consent order" (see attached pdf).

 

[ATTACH=CONFIG]44653[/ATTACH]

 

Basically they are asking me to withdraw my defence and consent to the order to pay up. They go on to list the reasons why I should do this. What they have done is took my Witness Statement and then rubbished all my claims. They have chosen to avoid addressing the bit about the Default Notice incorrectly demanding FULL payment rather then the arrears.

 

Questions:

Should I be scared by this? (seeing as they are already debarred from giving oral evidence at trial)

Does this "Consent order" proposal double up as a Witness Statement?

Does this proposal mean they are desperately attempting to avoid trial or is this normal practice?

 

This proposal has crossed in the post with my draft order to strike out pursuant to CPR 3.4(2)© for failing to comply with court directions - I've still not had a Witness Statement from them. (unless this Consent Order doubles as one?). Ive not had a reply to my draft order from the court as yet.

 

Ive typed up the content of their letter below. (its quite long, sorry) Their spelling and grammar was atrocious. So many missed words too. Looked very rushed.

 

Okay here it is.

 

Our Client’s position:

 

We shall deal the issues raised in you claim (my witness statement). You admit that there was an agreement with MBNA & admit that you received a default notice.

 

Considering the agreement first, we note that the agreement sent to you by MBNA was dated 28 July 2002 & the agreement sent from our client was dated 25 June 2002. There is a discrepancy with the dates and , therefore , it would appear as if MBNA sent you an incorrect agreement. If MBNA sent an incorrect agreement that is an issue with them. You admit there was an agreement with MBNA & and that you had a credit card facility. In any event , we note that both agreements whilst having slightly different dates, the credit reference on both is stated to be the same reference XXXXXXXXXX and states a credit limit of £xxxxx. You have later suggested that it does not contain the prescribed terms but you fail to particularise your reasoning and we refute your suggestion that the agreement is not compliant.

 

As to the Default Notice, this was sent to you by business first class post on 7th September 2009. This means that in accordance with the rules on service it would be deemed served on you by the second working day which was Wednesday 9th September 2009. Therefore, you were properly provided with the correct number of days and the Default Notice is not defective. You have not provided any evidence to show that you received it on the 11th September but it is immaterial anyway because the notice was deemed served on the 9th September 2009.

 

In relation to the Notice of Assignment, you have clearly received this and this was sent to you. The letter itself is dated 15th January 2012 and by your own admission was addressed correctly. Also it states Wescott were managing the account which would tie in with the correspondence that you previously received from Wescott. You have no evidence to suggest Wescott were not managing your account at the time of assignment, only alleging that your letter received from them was on the 15th November 2011, just two months before the assignment.

 

In any event your point is irrelevant to your liability & we suggest the copy of the letter is sufficient evidence to demonstrate to a court that you received the notice of assignment. We attach a transaction screen print which states "SOLD ACCOUNT" on 17 January 2012 with a sold balance of £xxxxx which is the same balance stated in the notice of assignment which only supports our clients position that you given the notice of assignment at the same time on the 15th January 2012.

The other points noted 1 to 5 above are not pleadings of your defence. Most of the points have already been considered above. We would only add that a telephone call on Christmas eve does not amount to harassment being a normal working day, and you have not provided any evidence of the alleged call so that our client can investigate anyway.

 

Our Client’s Proposal:

 

Our client invites you to withdraw your defence, and consent to judgement against you for the full amount claimed plus fixed costs to the sum £xxx. Our client has already spent significant costs to date dealing with your defence and estimates costs to be in the region of £xxxx (over £5k) if the matter proceeds to a full trial. If our client is successful our client will be entitled to ask for an order that you pay our costs.

 

Therefore our client is hereby giving you the opportunity to draw this matter to an amicable conclusion without the need to attend full trial. Our client is confident that your defence will have no prospects of successfully defending the case at trial. Whilst you have tried to pick discrepancies in our clients evidence the fact remains you admit the agreement, you admit receiving the default notice and the documentation is compliant. The court only has to decide that it is more than likely than not that you owe this money to our client and that you are liable. You have not paid the sums owing to our client and will order a judgement against you.

 

If you consent to a judgement and you are in a position whereby you cannot pay the judgment debt ordered, then we would seek our clients instructions to proceed with enforcement action which may be a charging order to secure the debt against your property or an attachment of earnings application which is an order from the court to direct some of your salary each month to our client.

A lot of what they say is hearsay.

 

• The fact they said they posted the Default Notice first class. I have the UK Mail envelope here but it doesn't state either way.
  
• The way they say it doesn't matter I have two different agreements in my possession - one off MBNA and a different one from AG
  
• They state I clearly have the Notice of Assignment - only after the court ordered them to send it.
  
• The way they say it doesn't matter that I had a letter pre-dating the Notice of Assignment from Wescott's saying they had handed the file back to MBNA - who they were acting on behalf of.
  
• I have a post card (computer generated) from MBNA stating I will be visited 25th December (xmas day) by one of their debt collectors. Therefore I have proof but I didn't include it on my witness statement as an exhibit as its just in my opening statement as an example of the harassment I encountered. Can I still include this in my trial pack?
  

 

They dismiss all of the above and say the court will only be interested in my admission to having entered into a credit agreement with MBNA. Will the court really do that?

 

EDIT: Do I need to reply to this 'Consent Order' as I'm guessing they have sent a copy to the court????

Edited June 22, 2013 by toxicdebt

[citizenB]

I am not sure that they do send a copy to the court until you agree to it.

 

Is this a small claims action ?

 

I will alert andyorch for you.

[toxicdebt]

Thanks citizenB

 

Nope, its Fast Track

[citizenB]

Thanks citizenB

 

Nope, its Fast Track

 

He isn't online at the moment, but will look in as soon as he can.

[toxicdebt]

*bump*