Robinson Way lifting a stay on a County Court claim made in July 2009 - Happy Christmas!!

[Bev250264]

Morning Mike, is this OK?

 

 

15.1 Firstly, the claimant has not supplied the defendant with periodical statements of account as directed by s.86B of the Consumer Credit Act (as enacted). As a result, the defendant has no way of ascertaining the exact sums which are alleged to be owed and whether it contains any administration fees, interest or like provisions and whether such fees and charges, if incurred accurately, represent sums lost by the claimant by reason of any breach on the part of the defendant. Yet again, the defendant has therefore been placed at a disadvantage in the matter, in clear contradiction of CPR 1.1(2)(a).

[Mike_hawk]

Morning Mike, is this OK?

 

Hiya

 

You could also insert a line pointing out the sanctions within 86D for non service.

 

Also keep a notepad and list any possible questions the DJ may ask, such as how has it come to your notice that the balance has increased? That may be due to the increased quantum within its witness evidence or via unsupported claims to you I.P. Neither would discharge it's duty to you within the meaning of the act.

 

Bear in mind it has to overcome the matter of termination first, all evidence filed suggests nothing but a zero balance termination at 2004. If the judge agrees on that point first then no contract persists, regardless of its creative debit balance.

[Bev250264]

Ok, I'm just going thru Amex v Brandon.

[Mike_hawk]

Bev

 

You may want to check para 1 intro in your skel, you refer to default judgment?

Edited March 24, 2013 by Mike_hawk

[Mike_hawk]

Ok, I'm just going thru Amex v Brandon.

 

Which bit is troubling you?

[Bev250264]

Bev

 

You may want to check para 1 intro in your skel, you refer to default judgement?

 

That should say summary judgment right?

[Bev250264]

Which bit is troubling you?

 

All of it????

 

I've singled out this bit:

 

The case of Amex vs Brandon is clear in this respect. In his summing up of the appeal to case, Sir Richard Buxton makes the following statement “…if, as a matter of construction, the Default Notice has not or may not have allowed the minimum statutory period for Mr. Brandon to remedy the breach, then it is (at least) realistically arguable that the defect cannot be overlooked as de minimis. To my mind, this conclusion applies both to the failure to allow a minimum 14 day period and to the absence of prejudice flowing from the defect in the Default Notice. Insofar as DJ Gisby and HHJ Denyer thought otherwise, I am, with respect, unable to agree”

[Bev250264]

Conclusion

As can be seen by the numerous arguments contained herein, in its pursuit of the defendant in this matter, the claimant has consistently failed in its duty to follow the rules as set out in law.

The defendant has never denied that the agreement was entered into with the original creditor. Even though as stated the debt was taken out on behalf of a private limited company, the defendant felt responsible for it and so was content to continue paying, albeit at a reduced rate, until such times as the debt was cleared.

The debt was assigned to the claimant without the defendant’s knowledge or agreement and the evidence shows that, rather than simply ignoring the matter, the defendant tried on many occasions to obtain the information he required to ascertain whether or not the claimant was entitled to recover the debt. The claimant’s response being to harass and intimidate both the defendant and his family and finally to pursue the matter through the court.

The claimant’s failure to respond to the courts in 2009 resulted in the 2½ year stay of the matter, during which time the defendant received no meaningful correspondence from the claimant.

When the new party to case applied to lift the Stay on the matter, the defendant continued to co-operate with the court to the best of his ability, he being a litigant in person.

The defendant has tried on two separate occasions to reach a settlement with the claimant by way of an Individual Voluntary Arrangement application. Even though the defendant has always disputed this debt, it was included in both applications and both times the proposal was vetoed by the claimant. The defendant has offered all his financial assets to settle his debts, including the family home, and all his other debtors were happy to accept.

Had the claimant accepted, the matter would now be settled and not be taking up the court’s valuable time. Its refusal is in direct contravention of CPR 1.1 as it has deliberately obstructed the defendant’s attempt at settlement prior to the court hearing.

It is clear that, even if the court should find for the claimant, the defendant has no more to offer in settlement other than what has already been offered under the IVA proposal. Indeed, the defendant’s only other course of action would be to file for bankruptcy.

 

Is this ok for a conclusion?

[Mike_hawk]

That's the same paragraph i'd choose to hi-lite the point in your skel, sums up the issue of prejudice and supports your case for s86 failings.

[Bev250264]

That's the same paragraph i'd choose to hi-lite the point in your skel, sums up the issue of prejudice and supports your case for s86 failings.

 

OK I've put that bit in.

[Mike_hawk]

Is this ok for a conclusion?

 

I probably wouldnt concede to providing any information within the skel, best left out Bev.

 

Try the Mitchell skel I posted for a bit of inspiration, including the Wilson case reference.

[Mike_hawk]

That should say summary judgment right?

 

Yep

[Bev250264]

I probably wouldnt concede to providing any information within the skel, best left out Bev.

 

Try the Mitchell skel I posted for a bit of inspiration, including the Wilson case reference.

 

Ok then.

[Mike_hawk]

Ok then.

 

The points are all contained within your witness evidence, the skel really just needs the points of law and case references to assist the court. In your case the natural flow to the skel would/should reach a conclusion that absent any evidence to the contrary there is no enforceable agreement regardless of any creativity from the other side.

[Bev250264]

The points are all contained within your witness evidence, the skel really just needs the points of law and case references to assist the court. In your case the natural flow to the skel would/should reach a conclusion that absent any evidence to the contrary there is no enforceable agreement regardless of any creativity from the other side.

 

Yeah I see. Just getting a bit dramatic I think - tired and emotional [sigh!]

[Mike_hawk]

Yeah I see. Just getting a bit dramatic I think - tired and emotional [sigh!]

 

Drags you down after a while, bottle of merlot after dinner usually sorts me out

[Bev250264]

Drags you down after a while, bottle of merlot after dinner usually sorts me out

 

Better not. need to keep a clear head. But tomorrow evening is a different matter whatever the outcome

[Mike_hawk]

What time is the hearing set for tomorrow?

[Bev250264]

10am - it's scheduled for a full day

[Mike_hawk]

Assuming it breaks at some stage and if you get stuck with something that crops up try to post on here by phone and someone will hopefully be about. I'm in the office all day tomorrow so i should be able to stay logged in much of the day.

[citizenB]

wishing you the very of luck tomorrow, Bev. Dont forget to take your packed lunch

[Bev250264]

wishing you the very of luck tomorrow, Bev. Dont forget to take your packed lunch

 

Think I'm gonna need it!! Can't see me getting much sleep tonight.

[Bev250264]

Assuming it breaks at some stage and if you get stuck with something that crops up try to post on here by phone and someone will hopefully be about. I'm in the office all day tomorrow so i should be able to stay logged in much of the day.

 

That's great Mike thank you.

[prosser]

Good luck Bev

[Bev250264]

Good luck Bev

 

Thanks prosser