Help please - court case against mbna ** first ever **

[citizenB]

If they havent responded to your CPR request within the time you have allowed, then you will need to work on obtaining an extension of time.. but we can cross that bridge if they dont comply

[the worm that turned]

Grrrr... my bad for not reading properly.. you have indeed sent the CPR31.14 to the solicitor which is the correct procedure. There was no need to send a copy to MBNA.. they will more than likely write back to you and ask for £10.00 for a SAR or £1.00 for a CCA request !!

 

All communication in respect of the claim they have brought against you, needs to be sent to the solicitor named on the PoC..

 

I was 99% correct then I am just concerned that I didn't tailor the CPR 31.14 for the Claimant's Solicitor (see Post #15 above) i.e. it states "your claim" and not "your client's claim" but I am not going to lose sleep over it!!

 

As for MBNA sending a request for payment for CCA or SAR, it is more likely they will ignore me (they are good at that)!

 

Cheers

[citizenB]

I was 99% correct then I am just concerned that I didn't tailor the CPR 31.14 for the Claimant's Solicitor (see Post #15 above) i.e. it states "your claim" and not "your client's claim" but I am not going to lose sleep over it!!

 

As for MBNA sending a request for payment for CCA or SAR, it is more likely they will ignore me (they are good at that)!

 

Cheers

 

As you say, not worth losing sleep over

[the worm that turned]

Just rereading post 1 and see your comments in respect of the clauses .. I do not believe they are allowed to say.. "see another document" unless that document was present at the time of signing !!

 

Also, if you requested this information via s78 and it wasnt provided to you, they are in default of the CCA request.

 

It is always confusing from my descriptions

 

The document they are alleging to be the executed agreement they claim contained some of section 8 and 9, which I assume they will say are the prescribed terms. Within these 12 paragraphs, there are references to other sections/clauses in the terms and conditions, including references to sections 8 and 9.

 

I cannot recall receiving the terms and conditions and am not even certain if they are alleging they accompanied the application form or were provided after. Regardless though, the copy of the terms and conditions they provided following my S78 say "see your credit agreement for sections 7 and 8".

 

I think I have a strong case for stating that it was impossible for a binding contract to be formed if ALL the terms and conditions that could have formed it were not provided.

[the worm that turned]

If they havent responded to your CPR request within the time you have allowed, then you will need to work on obtaining an extension of time.. but we can cross that bridge if they dont comply

 

I've factored it into my project plan - the loser that I am

[means2anend]

REMEMBER!!!

 

The Prescribed Terms must ALL be on the signed document ITSELF...whereas Terms and Conditions may be incorporated by a reference in that signed document to another document containing those t & C's if they are not also all within that signed document hence the meaning of 'embodying'..also described as 'present at point of signature in 'substance not form'

 

That is why it is important to remind them that where your agreement HAS been varied that nothing less than a copy of the agreement in its ORIGINAL FORM is REQUIRED will do..para 108 HHJ Waksman in Carey as well as a copy of the agreement in its current varied form..this point was of much discussion in Carey in connection with Reg 7 Cancellation Notices and COPIES DOCUMENTS Regulations 1983 as to the meaning of the words 'shall include' Under Issue 2

 

If they cannot fulfill the second requirement they will have problems as claimants..and there have been quite a few cases recently including MBNA that have not been able to satisfy para 108.

 

If you read the case in deprh over and again one will realise how intensely Counsel for HSBC were trying to restrict the meaning of 'shall include' to mean consist of as opposed to the sense connoted to HHJ Waksman's mind in the sense of additional....In other words what Counsel for HSBC and all BANKS were trying to achieve was the simple procedure of putting all the original unvaried terms along with the varied terms and any deleted terms ALL on ONE document which would have circumvented for the need of a copy of the agreement in it's original FORM but HHJ Waksman was having none of it!!!

 

The above is purely within the context of s78 requests...

 

The Original will have to be brought to Court for s61 'proof purposes'

Edited November 28, 2011 by means2anend

[the worm that turned]

REMEMBER!!!

 

The Prescribed Terms must ALL be on the signed document ITSELF...whereas Terms and Conditions may be incorporated by a reference in that signed document to another document containing those t & C's if they are not also all within that signed document hence the meaning of 'embodying'..also described as 'present at point of signature in 'substance not form'

 

That is why it is important to remind them that where your agreement HAS been varied that nothing less than a copy of the agreement in its ORIGINAL FORM is REQUIRED will do..para 108 HHJ Waksman in Carey as well as a copy of the agreement in its current varied form..this point was of much discussion in Carey in connection with Reg 7 Cancellation Notices and COPIES DOCUMENTS Regulations 1983 as to the meaning of the words 'shall include' Under Issue 2

 

If they cannot fulfill the second requirement they will have problems as claimants..and there have been quite a few cases recently including MBNA that have not been able to satisfy para 108.

 

If you read the case in deprh over and again one will realise how intensely Counsel for HSBC were trying to restrict the meaning of 'shall include' to mean consist of as opposed to the sense connoted to HHJ Waksman's mind in the sense of additional....In other words what Counsel for HSBC and all BANKS were trying to achieve was the simple procedure of putting all the original unvaried terms along with the varied terms and any deleted terms ALL on ONE document which would have circumvented for the need of a copy of the agreement in it's original FORM but HHJ Waksman was having none of it!!!

 

The above is purely within the context of s78 requests...

 

The Original will have to be brought to Court for s61 'proof purposes'

 

Thanks for this - I intend to read Waksman in full. As you say though it relates to S78 and SHOULD NOT BE CONFUSED with proof of original agreements/contracts where proven to exist.

 

With regards to the use of SHALL and WILL this article sums up it quite well. One way of summing it up is SHALL = obliged to; whereas WILL=reserve the right to/may do.

 

It is IMPOSSIBLE to SEE a contract/agreement unless it is the original, which would need to be inspected/scrutinised forensically for authenticity.

 

If a photocopy of an agreement/contract is shown to you in court then you are lying if you say "Yes that is my signature", or "yes I signed that". THIS IS AN IMPORTANT POINT TO REMEMBER.

 

A Judge will not (should not) think less of you for being honest even though the average man off the street is likely to say "stop being pedantic of course that is your signature". Trust me, unless it is the original IT IS NOT YOUR SIGNATURE.

[means2anend]

Sorry what I meant by ''shall include''...in relation to a copy of the executed agreement was whether the copy shall include ALL terms UN/varied/Deleted..

 

OR

 

...that a copy of the agreement in its current form shall include ( or to HHJ Waksman's mind...shall be accompanied by )...a copy of the executed agreement in its ORIGINAL FORM...AS WELL

[citizenB]

[attach]18524[/attach]

 

Be sure to note points: 95 - 105, 112, 116 and the conclusions

 

The Carey Judgment and the most imporant sections as pointed out by vint1954..

 

HTH

[the worm that turned]

I have received a response to my CPR 31.14 request.

 

The solicitors state that as the claim was made via Northampton County Court Bulk Centre then they are not obliged to attach referenced documents to the claim under CPR PD 7C 1.4(3A). Reading this I would tend to agree unless someone can state why they might be incorrect.

 

They follow by stating that I require a copy of the Credit Agreement (I actually requested alleged contract, which is what they mention in POC) but mention that they cannot provide it until 13 December 2011. NOTE - my CPR 31.14 request was received 29/11/11 according to Royal Mail Track and Trace so 7 day period expires 6 December 2011.

 

They are IMO already planning to go in breach of CPR rules with no extenuating circumstances that I can think of, bearing in mind that they (acting on behalf of MBNA) have admitted to starting a claim against me without even having sight of the alleged document they are basing the claim on!!! Par for the course I would imagine.

 

They do not believe it is necessary to agree to an extension of time as they feel that " should already know at this stage what the basis of [my] Defence is WITHOUT SIGHT OF A COPY OF MY ALLEGED CREDIT AGREEMENT" [my emphasis added]!!! I mean...wow!

 

As for the other documents I requested in post #15 they say that they are unwilling to provide these because they are not mentioned in the particulars of claim and therefore, in their opinion CPR 31.14 does not apply.

 

Would love to hear thoughts on the above before I respond today.

 

Ta TWTT

Edited December 2, 2011 by the worm that turned
Needed tidying up

[citizenB]

Well yes, they are correct in that by issuing through Northampton they do not have to "attach" the documents. However, they are splitting hairs because I think that somewhere in the exemption it does say that the documents are to be provided seperately and in good time (not those words obviously.. but my interpretation)

 

So they are able to provide the documents AFTER your defence is supposed to be submitted.. yet they dont see the need for you to understand the claim brought against you.. hmm.. Justice according to the creditors.

 

I need to refresh my memory on what has gone before.. so BRB

[citizenB]

OK

Issue Date of Claim = 18 Nov 2011

Service Date = 23 Nov 2011

Date for return of acknowledgement of service = 7 Dec 2011

Date for defence (+ counterclaim) = 21 Dec 2011

Particulars of Claim - Start

 

The Claimant claims payment of the overdue balance due from the Defendant under a contract dated on or about xx/xx/1999 in the sum of [approx 8000.00]

 

PARTICULARS a/c no:- XXXXXXXXXXXXXXX

 

DATE ITEM VALUE

xx/11/2011 Default Balance [approx 8000.00]

Post Refrl Cr NIL

 

TOTAL:- [approx 8000.00]

Particulars of Claim - End

 

 

 

 

Ok, well they do mention a Default balance, IMHO you should be able to ask for proof of that via the Default Notice.

 

They are also unwilling from what you say to provide an accurate accounting.. in order to substantiate the amount claimed!

 

Therefore, we need to ask in a slightly different way by using CPR 18

 

At this stage, I would just be inclined to sort out your Acknowledgment and tick on the box to obtain the extra 14 days.. I will send out some S.O.S to decide how we are going to use CPR18

[the worm that turned]

Ok, well they do mention a Default balance, IMHO you should be able to ask for proof of that via the Default Notice.

 

They are also unwilling from what you say to provide an accurate accounting.. in order to substantiate the amount claimed!

 

Therefore, we need to ask in a slightly different way by using CPR 18

 

At this stage, I would just be inclined to sort out your Acknowledgment and tick on the box to obtain the extra 14 days.. I will send out some S.O.S to decide how we are going to use CPR18

 

I have already sent my acknowledgement and don't remember a tick box specifically for extra 14 days (eeek) however I do recall ticking the "I intend to defend your entire claim" box. Now I am a bit concerned that I am not getting the full extra 14 days?? Where can I check, Money Claim Online?

 

I will read up on CPR 18 now.

 

Cheers

[AndyOrch]

If you defended all you will have the full 28 days to respond.

 

Regards

 

Andy

[citizenB]

Thanks Andy..

 

WTT, nothing to panic over - looks like it is automatic

[citizenB]

Andy, would you agree, that we can ask for the Default Notice and statement of account (at the very least) via CPR18 ?

[AndyOrch]

Yes CB providing you word it correctly, if they fail to respond then seek an order under CPR 18.

 

Regards

 

Andy

[the worm that turned]

OK - that didn't take very long to read!!

 

So I can CPR 18, which I assume is an N244 form, if I do not receive any information.

 

As ever this is never straight forward, there is still the LBA that I sent to MBNA for the failed response to the subject access request!!

 

Basically I have nothing review wrt the claim to enable me to form a defence (embarrassing)! It is now 19 days from the deadline for defence submission!

 

I was tempted to contact the solicitors in writing, by phone or both to follow up the request. See DRAFT below:

 

I refer to your letter dated Thursday December 01, 2011.

You refer to an "Overdue Credit Card"; however this is your opinion and not fact therefore I rebut your claim.

Civil Procedure Rule ("CPR") 31.15(b) states that "the party who disclosed the document must permit inspection not more than 7 days after the date on which he received the notice" and section © of the same rule states that "[where a party has undertaken to pay reasonable copying costs, as in my notice] the party who disclosed the document must supply him with a copy not more than 7 days after the date on which he received the request". According to the Royal Mail website (screenshot enclosed for your convenience) you received my request on 29 November 2011 and therefore the 7 day period referred to above shall end 6 December 2011.

In your letter you refer to me requiring "a copy of your Credit Agreement"; however if you refer to my 'Notice of Request for Inspection of Documents pursuant to Civil Procedure Rule 31.14' ("the Notice") you can clearly see that I requested the alleged contract that you refer to in your particulars of claim and it is indeed this alleged document that I require from you.

 

It is with surprise that I learn that you are not in possession of the alleged document that you rely upon for the claim you have issued against me.

 

I am equally surprised that you feel that I "should already know at this stage what the basis of [my] Defence is without sight of a copy of [my alleged] Credit Agreement."

 

As you appear unwilling to meet with my request pursuant to CPR 31.14 within the required timeframe, I reserve the right to request the Court to make an order for disclosure of the documents referred to in the Notice and to claim for any costs or damages, or both.

 

I kindly request again for you to agree in writing or email (email address here) to an extension of time for me to file my Defence.

 

You should be aware that your client has failed to meet with their requirements under the Data Protection Act 1998 ("the Act") in relation to a subject access request made by me in December 2010 pursuant to the Act and I have served a Final Notice before Legal Proceedings to them. The requested documents are of vital importance to my defence in this case.

 

I trust this clarifies matters and I look forward to receiving the documents referred to in the Notice within the 7 day period mentioned above.

[AndyOrch]

Preliminary request for further information

 

Before making an application to the court for an order under Part 18, you need to write to the Claimant asking for the relevant information or clarification.

The request should be concise and confine itself to what is necessary to enable you to understand the Claim and state a date by which a response is required. If the request is brief apply by letter: otherwise attach a separate document.

 

 

 

 

The request, in whatever format, must

• be headed with the name of the court and the title and number of the claim
  
• state in its heading that it is a request made under Part 18, identify the claimant and state the date on which it is made
  
• set out in a separate numbered paragraph each specific query
  
• identify the document clearly where the query relates to a document
  
• state the date by which you expect a response
  
• allow the Claimant a reasonable time (at least 14 days) in which to respond.
  

Claimants response

 

The Claimants reply must be in writing, and be signed and dated by the Claimant or his legal representative. It must be in the same format as the request, identify itself as a response to the request and answer all the points raised. The Claimant should verify the response with a statement of truth.

The defendant should file a copy of the response together with the original request with the court.

If the Claimants objects to complying with the request or any part of it, or is unable to do so within the time stated in the request, they must inform the Defendant within that time.

 

Andy

Edited December 2, 2011 by Andyorch

[the worm that turned]

Thank you both for your responses.

 

Let me just make sure I have this clear in my head!

In relation to the Claim issued against me:

 

• Acknowledgement of Service responded to so no further action required there (yet);
  
• CPR 31.14 request sent and documents requested - response received but Claimant's Sol. has only agreed to provide Agreement (not contract mentioned in request) outside of 7 day window. SHOULD I RESPOND TO THIS AGAIN AS PER LETTER ABOVE BEFORE MAKING A REQUEST TO COURT FOR DISCLOSURE? Also, should my request and their response have been sent to the court for information?
  
• SHOULD I MAKE A FORMAL REQUEST PURSUANT TO CPR 18 FOR OTHER DOCUMENTS MENTIONED IN MY CPR 31.14 THAT WERE NOT PROVIDED?
  

In relation to the Subject Access Request:

 

• A request was originally made in Dec 2010, no info provided for this account.
  
• LBA sent 28/11/11 to MBNA (Claimant in above case) for information, which ultimately should satisfy the CPR 18 above if they responded BUT it is outside of the above case. THEREFORE IS IT IN MY INTEREST TO PURSUE BOTH THIS (via a new N1 Claim by me including damages and costs) AND THE CPR 18 AS ABOVE?
  

As you can see, a lot of questions and a bit complicated.

 

Any thoughts highly appreciated!

[citizenB]

Thank you both for your responses.

 

Let me just make sure I have this clear in my head!

In relation to the Claim issued against me:

 

• Acknowledgement of Service responded to so no further action required there (yet); - Correct
  
  
  
• CPR 31.14 request sent and documents requested - response received but Claimant's Sol. has only agreed to provide Agreement (not contract mentioned in request) outside of 7 day window. SHOULD I RESPOND TO THIS AGAIN AS PER LETTER ABOVE BEFORE MAKING A REQUEST TO COURT FOR DISCLOSURE? Also, should my request and their response have been sent to the court for information?
   
  
• SHOULD I MAKE A FORMAL REQUEST PURSUANT TO CPR 18 FOR OTHER DOCUMENTS MENTIONED IN MY CPR 31.14 THAT WERE NOT PROVIDED? - You cannot request documents as such - you need to word your request in such a way that they will either admit or deny being in possession of. If they confirm possession, then you can request sight of. Longwinded.. but thems the rules.
  
  

In relation to the Subject Access Request:

 

• A request was originally made in Dec 2010, no info provided for this account.
  
• LBA sent 28/11/11 to MBNA (Claimant in above case) for information, which ultimately should satisfy the CPR 18 above if they responded BUT it is outside of the above case. THEREFORE IS IT IN MY INTEREST TO PURSUE BOTH THIS (via a new N1 Claim by me including damages and costs) AND THE CPR 18 AS ABOVE?
  

As you can see, a lot of questions and a bit complicated.

 

Any thoughts highly appreciated!

 

 

It wasnt necessary for you to supply the court with a copy of your CPR request nor they the response. If the information had been ordered to be provided by the Judge, then you would of course have let the court know that they were being obstructive.

 

I have sent out an SOS to Undercover-Elsa.. She drafted a CPR18 for someone that was pretty useful.. for the life of me I cant find the thread it was posted on.. I will keep looking and / or hoping that UE will see the SOS and respond

 

The SAR. You sent a LBA to which you have received no response, you believe that if that had been provided then you would have the information you require, yes?

 

Sadly, it doesnt look as though MBNA are going to comply so it looks like you might have to issue the N1 in order to force them.

 

 

It might be wise run this suggestion by Andy first, however, I wonder if it would be worth your responding to their letter.. advising that as MBNA (their client) has also failed to comply with your SAR request, you disagree with their assertions that you have either sufficient information or knowledge in order to respond to the claim in a proper way.

 

Therefore you will be /have issued a claim in respect of the SAR.

 

The only thing here is that they still wont receive anything in time for you to submit a fully particularised defence.

 

I think CPR18 needs to be used first.. if this doesnt work then you are going to have to ask the court to order them to disclose, plus ask the court to allow extra time.

 

Too many solicitors are doing this at the moment..

[the worm that turned]

So effectively I will have to cases going on.

 

One where MBNA are claimant alleging the debt and contract and another where I am the claimant alleging that they have not fulfilled their SAR obligations, causing me to suffer damage.

 

Ultimately though they are intrinsically linked.

 

I guess in the short time, I cannot file a fully particularised defence to their Claim without the information they are reliant upon for their Claim.

 

What a system!

 

EDIT:

 

Don't forget that they are also looking to fall foul of their obligations under CPR 31.14 so I guess I still need to consider this. Would it just be easier to call the solicitor?

[AndyOrch]

You can incorporate the DSAR non compliance within your defence and possible Counter Claim.

 

Andy

[the worm that turned]

You can incorporate the DSAR non compliance within your defence and possible Counter Claim.

 

Andy

 

Thanks Andy - I had originally thought that I might be able to use my counterclaim to some good effect! I was actually hoping that IF I ever see the evidence they are relying on then theere might be a case for claiming back all of the interest payments I made if the alleged contract is shown null and void

 

With regards to the current failure to respond adequately to the CPR 31.14 request I am a bit uncertain of the approach to take RIGHT NOW. Day 7 of the timeframe is Tuesday 6th and it is now Friday 2nd! Should I fire off the letter I provided a few posts back as a draft???

 

Thoughts appreciated (I know it is not advice so no worries )

[AndyOrch]

Don't chase CPR request,s they are all invariably sent recorded and the claimant as received and signed for.Keep your eye on your defence date and if it appears that no response will be forth coming then request an extension CPR 15.5, this then enables the claimant to take another 28 days to respond and dig their hole deeper.

 

Andy