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

[the worm that turned]

There have been a few things occurring in relation to this case that I feel it is best not to discuss on an open forum (you never know who is reading!)

 

However, things are getting quite close now for the deadline for a defence (5 Jan). The Claimant's Solicitors agreed to a further 14 days but not to 28 days and this was only because I WAS going to use a solicitor to represent me.

 

The Claimant's Solicitors provided some statements back to a point when the account was in credit and said that they are not required to provide any further back. I however disagree as I need to know what has happened throughout the life of the account.

 

As I stated before I made a SAR back in Dec 2010 that was never fulfilled by MBNA.

 

I need these statements etc (from the SAR) and have sent a LBA at end of November 2011.

So what is the best approach? I could start a new claim against them for failure to fulfil SAR and if I do can I refer to the ongoing claim (where I am the Defendant i.e. the subject of this entire thread)?

Also, can I refer to the new SAR claim in my Defence to this ongoing claim?

Basically, there is not enough information available to me to enable me to provide a full defence!! What do I do??

[citizenB]

http://www.consumeractiongroup.co.uk/forum/showthread.php?208966-Me-and-Them-SAR-non-compliance-claim.-**SUCCESS**

 

The SAR non compliance claim was issued by the cagger in the thread above.. on the same day as LTSB issued a claim against him.

 

You will see that the POC for the non compliance claim mentions the claim that had been issued against FUAFB. The non compliance claim was heard and as you will see FUAFB won with costs awarded. The claim issued against him is still stayed.

 

And yes, the claim for non compliance of the SAR was also mentioned in the defence for the claim issued by LTSB

Edited December 28, 2011 by citizenB

[the worm that turned]

http://www.consumeractiongroup.co.uk/forum/showthread.php?208966-Me-and-Them-SAR-non-compliance-claim.-**SUCCESS**

 

The SAR non compliance claim was issued by the cagger in the thread above.. on the same day as LTSB issued a claim against him.

 

You will see that the POC for the non compliance claim mentions the claim that had been issued against FUAFB. The non compliance claim was heard and as you will see FUAFB won with costs awarded. The claim issued against him is still stayed.

 

And yes, the claim for non compliance of the SAR was also mentioned in the defence for the claim issued by LTSB

 

Thanks for this. I would love to know what was said about the SAR non-compliance in the Defence for the claim issued by LTSB. Is it shown anywhere on here?

 

I was wondering if you can request for a stay in your Defence for the claim instigated by the bank due to the SAR non-compliance? If so, do you know of any examples on here?

 

Thanks TWTT

[citizenB]

Thanks for this. I would love to know what was said about the SAR non-compliance in the Defence for the claim issued by LTSB. Is it shown anywhere on here?

 

I was wondering if you can request for a stay in your Defence for the claim instigated by the bank due to the SAR non-compliance? If so, do you know of any examples on here?

 

Thanks TWTT

 

The defence entered is shown below.. Point 4 onward includes the lack of response to the SAR.. HTH

 

 

 

 

I, Minnie Mouse, of ToyTown, am the Defendant in this action and make the following statement as my Defence to the Claim made by BANK.

 

1. The Defendant is embarrassed in pleading to the Particulars of Claim as it stands at present, inter alia: -

 

2. The Claimant’s Particulars of Claim disclose no legal cause of action and they are embarrassing to the Defendant as the Claimant's statement of case is insufficiently particularised and does not comply or even attempt to comply with CPR part 16. In this regard I wish 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 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.

3. On receipt of the Claim Form the Defendant sent a CPR 31.14 request for a copy of the agreement and supporting documents which forms the basis of this claim. No response has been received.

4. Prior to the issue of the Claim, in order to establish the extent of liability, if any, to the Claimant, the Defendant had repeatedly requested information from the Claimant. These requests were made in April 2008 under section 78(1) of the Consumer Credit Act 1974. In March 2009 a request under Subject Access Request was made, with a Letter Before Action being sent on DATE in respect of non compliance.

 

5. It has been confirmed via the Royal Mail Website that all the above letters were received and signed for. Written confirmation has been obtained from the Post Office that the fee enclosed with the Subject Access Request was banked on the same day as the Claimant issued the Claim Form, DATE.

 

6. On DATE, the Defendant filed a Claim through the ANYWHERE County Court; Claim number 1234567 dated DATE in respect of the Claimant’s non-compliance of the Subject Access Request.

 

7. Consequently, I deny all allegations on the Particulars of Claim and put the Claimant to strict proof thereof

 

8. I respectfully request a stay in proceedings until such time as the Claimant complies with the requests outlined in paragraphs 3, 4 and 6 above or until the Court orders its compliance with the same. I will then be in a position to file a fully particularised Defence and Counterclaim and will seek the Court’s permission to amend my statement of case accordingly.

 

 

[the worm that turned]

Very helpful AGAIN CitizenB!! Thanks

 

I have read on here a few times that embarrassed defences are not always a good idea, however on this occasion (and mine) do you think this is a good route?

 

I am about to put in my claim via MCOL for the failure to provide SAR but am a bit uncertain as to how I should refer to the case brought against me by MBNA (i.e. this thread) or if it is even necessary to mention it. Any thoughts?

 

Ta TWTT

[the worm that turned]

Out of interest, is it preferable to begin a claim via MCOL or via my local county court?? (this is in reference to my SAR claim)

 

I notice that it is asking me to determine my claim on the MCOL, which I assume is the time at £18.00 per hour taken to raise requests, write letters, research all of this and carry out the actual claim.

 

Is there anything else I should be claiming for?

[the worm that turned]

Out of interest, is it preferable to begin a claim via MCOL or via my local county court?? (this is in reference to my SAR claim)

 

I notice that it is asking me to determine my claim on the MCOL, which I assume is the time at £18.00 per hour taken to raise requests, write letters, research all of this and carry out the actual claim.

 

Is there anything else I should be claiming for?

 

Anyone?

[the worm that turned]

Ok so the solicitors are refusing to provide the information requested in my cpr 18. I really am embarrassed now!

 

Deadline for submitting Defence is next week now (thurs). Is it too late to request the court to order the release of the info under part 18 now? Do I just neer to submit embarrassed defence or are there better options available to me?

 

Any comments welcome!

 

Thanks in advance TWTT

[citizenB]

Have they actually put in writing that they are not going to comply with your CPR18 and any reasons for the non compliance ? If so, then you can include that in your defence.

[the worm that turned]

Have they actually put in writing that they are not going to comply with your CPR18 and any reasons for the non compliance ? If so, then you can include that in your defence.

 

They do not accept that my request for info constitutes a proper request within the meaning of CPR Part 18 or that the requested info is required for me to file defence.

 

They feel claim is straight forward for [alleged] monies owing under a credit card facility.

 

Still no mention of CCA or CCA1978.

[AndyOrch]

As stated earlier TWTT " they" never respond to a CPR 18 as I advised. So play their game totally vague defence what debt ? what balance? what breach? what agreement? The DJ will then order them to come up with some documentation. (and if they cant!!!!!!)

 

Andy

[the worm that turned]

I'll draft a vague defence and post up but am pretty certain they'll take a look as I feel the reason I received a different set of Ts&Cs recently was due to them reading this

 

Would be grateful of comments - thanks TWTT

[citizenB]

If you read the Harrison v Link case, one of the downfalls for MBNA was that there were so many different sets of T&Cs and none of them were correct !!

[the worm that turned]

Last night I spent some time reading through all 5 pages of this thread in detail and firstly I would like to apologise to andyorch for it taking me SO LONG to understand the points he was making!!

 

I would also like to thank citizenB for help and templates to work from.

 

I have created a draft defence and would appreciate any comments:

 

Couple of questions first - Do I have to call it something other than "Defence" e.g. Embarrassed Defence? In relation to para 1, would it be better to use the wording taken from the Sticky about Embarrassed Defences, i.e. mentioning the Bulk Centre and the Claimant only using circa 250 characters out of 1084?

DRAFT DEFENCE

 

1. The Defendant is embarrassed in pleading to the Particulars of Claim as it stands at present, inter alia: -

 

2. The Claimant’s Particulars of Claim disclose no legal cause of action and they are embarrassing to the Defendant as the Claimant's statement of case is insufficiently particularised and does not comply or even attempt to comply with CPR part 16. In this regard I wish 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 alleged contract referred to; the method the Claimant calculated any outstanding sums due, or any other matters necessary to substantiate the Claimant's claim.

b. A copy of the purported contract 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.

 

3. On receipt of the Claim Form the Defendant sent a CPR 31.14 request for a verified and legible copy of the alleged contract and supporting documents that forms the basis of this claim. The Claimant refused to provide the requested documents and instead provided non-verified and partly ineligible documents and therefore failed to comply with the request.

 

4. The Defendant sent a CPR 18 request for further information to help him better understand the Claim. The Claimant refused to answer any of the questions contained within the request.

 

5. Prior to the issue of the Claim, in order to establish the extent of liability, if any, to the Claimant, the Defendant had repeatedly requested information from the Claimant. These requests were made in (add date) under Section 78(1) of the Consumer Credit Act 1974. On or about 31 December 2010 a subject access request (“the SAR”) was made pursuant to the Data Protection Act 1998, with a final notice before legal proceedings being sent on or about 28 November 2011 in respect of non-compliance.

6. It has been confirmed via the Royal Mail website that all the above letters/notices were received/served and signed for. The fee attached to the SAR was banked on (add date).

7. In response to the request under Section 78(1) the Claimant provided an incomplete set of terms and conditions with sections 7 and 8 omitted and therefore was in breach of the Data Protection Act 1998 causing the account to enter into dispute. The Claimant did not remedy this breach prior to issuing this Claim.

 

 

8. On (add date), the Defendant filed a Claim through the Northampton CCBC county court; Claim number (add number) dated (add date) in respect of the Claimant’s non-compliance of the SAR.

9. Consequently, I deny all allegations on the Particulars of Claim and put the Claimant to strict proof thereof.

10. I respectfully request a stay in proceedings until such time as the Claimant complies with the requests outlined in paragraphs 3, 4, 5 and 8 above or until the Court orders its compliance with the same. I will then be in a position to file a fully particularised Defence and Counterclaim and will seek the Court’s permission to amend my statement of case accordingly.

 

Cheers TWTT

Edited January 2, 2012 by the worm that turned

[citizenB]

I would wait on confirmation from andyorch.. he was around earlier on. But it looks fine to me... apart from point 7 :

 

7. In response to the request under Section 78(1) the Claimant provided an incomplete set of terms and conditions with sections 7 and 8 omitted and therefore was in breach of the Data Protection Act 1998 causing the account to enter into dispute. The Claimant did not remedy this breach prior to issuing this Claim.

I dont think that they could be in breach of the DPA 1998 by ommitting sections of the agreement.

I would think their inability to provide a full and complete set of terms and conditions simply made the t&cs suspect. I will try and find some more advice on that.

[citizenB]

You wont need to head the Defence anything.. when you log on to the page where you will type in your defence.. it will be titled already.. I think -" Section 3 - Defence "

[the worm that turned]

I would wait on confirmation from andyorch.. he was around earlier on. But it looks fine to me... apart from point 7 :

 

I dont think that they could be in breach of the DPA 1998 by ommitting sections of the agreement.

I would think their inability to provide a full and complete set of terms and conditions simply made the t&cs suspect. I will try and find some more advice on that.

Thanks for your feedback. I would love to hear from Andyorch.

 

I understand what you are saying; however they have since provided me with a different set of terms and conditions following CPR 31.14 that contain the missing sections. Therefore they are admitting that the set they previously provided in the Section 78 were NOT a true copy of the alleged original

agreement. As such, they have admitted that they did not comply with the Section 78 request and therefore the account was in dispute and proceedings could not be commenced to obtain enforcement. Perhaps I could expand paragraph 7 of my defence to make it clearer.

[citizenB]

I am wondering if the information from the post below.. taken from another thread might of help especially the reference to Carey and reconstituted agreements.. at the bottom

 

There are some very helpful recent judgments concerning documentation errors so don't just accept it's a dead end without checking your individual circumstances. these come from High Court and the Court of Appeal so aren't really open to interpretation by a DJ

 

What is current in respect of documentary flaws:

 

Harrison v Link Financial Ltd [2011] EWHC B3 (Mercantile) (28 February 2011)

 

Brandon v American Express Services Europe Ltd [2011] EWCA Civ 1187 (25 October 2011)

 

Kotecha v Phoenix Recoveries (Rev 1) [2011] EWCA Civ 105 (26 January 2011)

 

The Carey judgment can be helpful as it sets out the criteria which must be met for a reconstituted CCA response to be valid. Worth checking if you ever do get one especially if it's a long existing card as just getting the wrong address can be fatal** to a claim as can providing the wrong t&c's.

 

** Fatal to the claim but not neccesarily iredeemably fatal, though there are arguments against a court permitting somebody a second bite at the cherry simply because they didn't get their paperwork correct the first time.

 

Also particularly useful to you is the recent ruling by DJ Grand (IOW) who identified that when the default regulations were amended in 2008, Lloyds failed to update the templates on their systems and thus between 2008 and very recently all DN's issued on Lloyds credit cards omitted the information required by Sch 2 Para 10a of the The Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 which by virtue of Harrison vs Link Financial (above) para 75 which is the most recent authority for a bad notice prevents enforcement.

[citizenB]

I was correct, the breach would have been under the CCA and not the DPA.

[the worm that turned]

I was correct, the breach would have been under the CCA and not the DPA.

 

That was my mistake, I meant to say CCA anyway!! Too much on my mind and too many brandies and mince pies!

 

Cheers for comments. I have amended slightly now and was intending to add about kindly requesting for the Claim to be struck out following the Claimant attempting enforcement proceedings whilst the account was in dispute. Wdyt about that or is it best to stick to just asking for a stay in proceedings and letting the judge decide if it should be struck out?

 

I am often of the opinion that if you don't ask you don't get.

[citizenB]

Hmmm, sorry I never quite know when to ask for a claim to be struck out !

[the worm that turned]

Hmmm, sorry I never quite know when to ask for a claim to be struck out !

 

No worries, perhaps andy or a.n other might be able to comment on here.

 

Common sense would suggest to me that if the Claimant were not in a position legally to bring about proceedings due to the account being in dispute as a result of their failings then the Claim should be struck out.

 

Sadly common sense doesn't always prevail though!!

[AndyOrch]

Hi TWTT

 

In the main the body of the defence is fine, a tad templatey but ok.You may wish to supplement 2 a b c

with something along the lines of :-

 

The Claimant has not provided any assertions or cause of action in his Particulars of Claim dated XX XXXXX 2011, it is merely their version of the facts which are inconclusive and factually incorrect in places.It is averred the Claimant has failed to state on what basis this claim is made, has failed to provide the basis on which this is drawn or provide any proof. Due to this I am unable admit or deny any allegations in this defence.

 

On point 9 you cant deny all, unless of course is not your debt you can neither admit nor deny.

 

I see CB picked up the CCA breach:wink:

 

Regards

 

Andy

[the worm that turned]

Hi TWTT

 

In the main the body of the defence is fine, a tad templatey but ok.You may wish to supplement 2 a b c

with something along the lines of :-

 

The Claimant has not provided any assertions or cause of action in his Particulars of Claim dated XX XXXXX 2011, it is merely their version of the facts which are inconclusive and factually incorrect in places.It is averred the Claimant has failed to state on what basis this claim is made, has failed to provide the basis on which this is drawn or provide any proof. Due to this I am unable admit or deny any allegations in this defence.

 

On point 9 you cant deny all, unless of course is not your debt you can neither admit nor deny.

 

I see CB picked up the CCA breach:wink:

 

Regards

 

Andy

 

Thanks for your comments Andy - very useful.

 

What would you propose as more suitable wording for point 9 then? There is evidence to show that the Claimant has accepted that no agreement/contract or debt exists via tacit acceptance and an estoppel via acquiescence, however that may just go on hold for the moment until they respond to this.

 

As for me politely requesting for this to be struck out due to attempting enforcement via the courts whilst the account is in dispute, what do you say to that?

 

Many thanks as ever

 

TWTT

[AndyOrch]

Requesting strike out at defence is never really appropriate and very rarely if ever successful.The benefit of doubt will always be awarded to the Claimant and as such your defence should steer the DJ to enable this for you without you actually requesting it.The dangers of over complicating a defence can sway the DJ to follow the overriding objectives that the debt is in fact yours were as, as advised, vague response can lure them out.Think about it would you really go to the extremes of CCA DSAR CPR requests if in fact it wasn't yours? If as you have stated there is no agreement then you need the DJ to establish that fact and the Claimant fail to disclose it, that way the DJ has no other option but to strike out the matter ...... lawfully.

 

Regards

 

Andy