HELP! XMAS Claim from CABOT / WRIGHT HASSALL CLAIM for old EGG Card

[gforce2k]

gforce

not familiar with whole thread (excuse if wide), but;

generally;

s127 (3)(4) Con credit act (now repealed but applicable for things prior to 04/07). that requires them to show that there was a signed doc that contained the prescribed terms. if that is the original cca which doesnt show a signature....?

any recon must be accurate (there is that kotecha v phoenix appeal case re requiring such, but you'll have to read it thoroughly to get its gist, and whether it wld be applicable in yr circumstances).

 

Thanks Ford,

definitely no signatures, sig boxes or personal info on either.

the 'original' is just terms and the 'current' has all name/address and interest %s redacted.

in addition the original is not an exact match to may04 original, very small differences (one sentence missing and one sentence extra) but still not an exact match - not sure how to prove that without showing original though?

 

but, it seems the hearing is mainly re to give them more time as per cpr 3.1 (2)(a) (which does allow for app'ns after a deadline). i dont know whether the J will hear any trial issues in detail. are there any more docs they are after from the o/c, or wld it then be re the other point of the app'n re settlement, and any other management directions the J wants. if what they have disclosed now is it, then i suppose it may also be to avoid sanction for lateness. There is that recent case re strict sanctions re non compliance of orders, but i cant recall it atm...?

costs against may be in issue if the application is granted, partic as is fast track? the judges discretion. you wld object and point out that it was due to them needing more time/non compliance, their application, etc, as andy points.

Given the above I would argue very much non-compliant in which case sanctions should apply, not sure how to approach this - I will try to find the case you mentioned

I think they have left it to the last minute to submit this stuff in an effort to argue for a summary judgment - or am i just being paranoid?

 

is yr hearing in the pm, hopefully andy etc can look in before.

Yes, 1:30pm so not long but some time to get andy's view I hope.

 

gf2k

[gforce2k]

ps

i think this was the case(s) re the courts requiring strict compliance with rules/orders etc, and not freely allowing relief from sanction.

http://www.keatingchambers.co.uk/multimedia/New%20Folder/Practical%20guidance%20on%20relief%20from%20sanctions%20after%20Mitchell%20and%20Durrant.pdf

 

thanks again Ford, I'll read it now

 

gf2k

[gforce2k]

I can only echo what Ford has stated GF...this is not a trial...only a CMC hearing...triable issues should not be raised...but if you wish to make the point that they have not complied with the directions....IE agreement recon...then get it on record.

 

If the debt is pre April 2007 then a recon wont cut it...not for enforcement purposes.

 

Thanks for stepping in Andy, that's really encouraging, a definitive position is exactly what i needed.

I will make the point that they have not complied re the agreement, is there a specific regulation I should read/quote re the signed agreement requirement e.g. s127 (3)(4)? and also re sanctions?

 

on the "Evidence of any payments made to the account by the Claimant in the last 6 years" question the Feb/Mar09 Egg statements only show generic transactions "DCA PAYMENT - Thankyou **" so no proof who made it or how which was the whole point of my original request. As it's just a CMC should I just reiterate that I never received those statements, don't recognise those payments and again press for proof of how and by who/which DCA payment was made (not Cabot the claimant for sure)?

Or will the DJ just accept the statements as sufficient evidence?

 

thanks,

gf2k

[AndyOrch]

Its difficult to advise on how to approach it....see how the hearing goes and how the DJ appears to deal with directions....if the claimant raises it then you counter...argue the recon argue the payment source....If it arises.

[gforce2k]

Its difficult to advise on how to approach it....see how the hearing goes and how the DJ appears to deal with directions....if the claimant raises it then you counter...argue the recon argue the payment source....If it arises.

 

ok will let you know how it goes.

 

one last, more general question - what should my response be if I'm ever asked directly by the judge if i ever had this account/card? do i have to either admit or deny or say "i can neither confirm nor deny..." (which might just p*ss him/her off)?

probably silly question so please pardon my ignorance

 

cheers

gf2k

[dx100uk]

I would assume you should refer to the way you addressed the matter in your defence..

 

 

2. Paragraphs 1 & 3 are noted, I have in the past had financial dealings with EGG but I am unaware of any balances outstanding.

EGG have not contacted me with regards to any arrears in over 6.5 years.

dx

[gforce2k]

I would assume you should refer to the way you addressed the matter in your defence..

 

 

2. Paragraphs 1 & 3 are noted, I have in the past had financial dealings with EGG but I am unaware of any balances outstanding.

EGG have not contacted me with regards to any arrears in over 6.5 years.

dx

 

Thanks, i've not put together a case summary as not ordered to (hope correct?) but I know i'll need docs - should i just take my entire file of all docs or be selective? leaving in 10-15 mins

[AndyOrch]

So what transpired GF2K?

 

Andy

[gforce2k]

So what transpired GF2K?

 

Andy

 

Hi Andy,

The CMC was a bit of a farce,

the claimant's rep took the approach that their application was in time and the docs submitted last week were sufficient

- the judge didn't really listen to me about the documents not being on time or sufficient for the order,

he just kept repeating that it's generally accepted that documents get lost, this is what the claimant has right now,

whether it's signed or not is immaterial and he sees it as satisfying the order/enough to proceed.

Even when i showed him the letter and envelope proving that they were a day late getting their application in

originally he said even if they were a day late he would allow it.

 

He glanced at my defence and snorted that it was a standard defence 'you printed this off the internet' didn't you?'

so generally not very friendly.

 

 

He was quite bullish, reconstituted agreements acceptable/am I saying I never had an agreement?

that I haven't paid any money to egg?

am i just arguing that i never received this particular contract etc. etc. which is it???

 

 

I just stated that I had not had contact with Egg for the last 6.5 years,

i've never received that particular contract,

never had those statements not paid anything for over 6.5 years etc.

 

Costs weren't really discussed except making a note of theirs for the application and to say costs in the case to be borne by the losing party.

 

So in short the case is allocated to fast track,

disclosure by start Feb,

witness statements by start April,

pre-trial checklist by mid April and

trial window set for mid-June to mid-July.

 

He did say the case it may well be that when it came to trial that I could sufficiently argue my point,

equally it could go in favour of the claimant

so the CMC just seems to be a rubber stamping exercise to go to the next step.

 

I know it's the same for both sides

 

 

it's disconcerting that it appears to depend far more on the judge/the temperament of the judge on the day than the letter of the law

- e.g. a signature being required doesn't appear to be as definitive as it appears

- unless i just had a more bombastic/claimant friendly judge than normal?

 

gf2k

[AndyOrch]

Well he appears to be " one of the them " Judges....but he has allowed it to proceed and ordered further disclosure...so now its time to get your ducks in line and sharpen your case.

[Guest]

so the CMC just seems to be a rubber stamping exercise to go to the next step

as expected. as an app'n can be heard after the deadline, it then being to determine whether what they have disclosed satisfies the order, and whether them furnishing them late is to be allowed, and without sanction. then to make directions. costs to be determined at the end.

The issue of whether what has been disclosed is sufficient for the claim to succeed being a matter for the trial.

 

do have a look at the old s127. claimants argue (using that Carey case) that a recon satisfies that. but, if you now have the original without your sig...?

then there seems to be an issue of statute bar. but, note that in a recent thread, a DJ accepted one of those transaction summary as enough. though as you're fast track, things may be a bit more formal.

[gforce2k]

Well he appears to be " one of the them " Judges....but he has allowed it to proceed and ordered further disclosure...so now its time to get your ducks in line and sharpen your case.

 

further disclosure mean everything including anything that damages my case correct?

so if I find signed terms, notes of payments within 6yrs of claim etc. I have to present them?

 

Re getting my ducks in a row I'm concerned the standard/holding defence may not be broad enough

Their rep was a freeleancer, quite helpful re timetable & process and said a change of defence is usually agreed unless wildly different but I need to get the claimant's agreement and it has to be via an application, very quickly before disclosure.

Is that correct/doable?

 

thanks

 

gf2k

[AndyOrch]

further disclosure mean everything including anything that damages my case correct? Depends who is disclosing....if they have to disclose and cant?

so if I find signed terms, notes of payments within 6yrs of claim etc. I have to present them? Or they do

 

Re getting my ducks in a row I'm concerned the standard/holding defence may not be broad enough

Their rep was a freeleancer, quite helpful re timetable & process and said a change of defence is usually agreed unless wildly different but I need to get the claimant's agreement and it has to be via an application, very quickly before disclosure.

Is that correct/doable?

 

Not necessary to amend your defence you can just submit a further witness statement and particularise..if you have not already submitted one ?

 

As this is Fast Track you can manipulate disclose to the extreme but also be wary of costs against you.

 

thanks

 

gf2k

 

Andy

[gforce2k]

as expected. as an app'n can be heard after the deadline, it then being to determine whether what they have disclosed satisfies the order, and whether them furnishing them late is to be allowed, and without sanction. then to make directions. costs to be determined at the end.

The issue of whether what has been disclosed is sufficient for the claim to succeed being a matter for the trial.

thanks Ford

 

do have a look at the old s127.

will look asap, apologies for my ignorance but will any version of s127 do or is there a particular 'old' one?

 

claimants argue (using that Carey case) that a recon satisfies that. but, if you now have the original without your sig...?

not the original at all, reconstituted without any sig or even sig box and name address section has something there but in the copy provided the highlighted text is so blacked out it's unreable like a redacted doc - if they come up with the same no sig recon at trial but with name/address readable would that sufficient for them?

 

then there seems to be an issue of statute bar. but, note that in a recent thread, a DJ accepted one of those transaction summary as enough. though as you're fast track, things may be a bit more formal.

hope so, would you expect them to normally ask for my bank statements to match payments or just rely on the egg statements? if they do what if i can't provide them? if not is there a case/point of law i can mention to argue against validity of the statement/for more proof of who made/how the payments were made?

 

thanks

gf2k

[gforce2k]

further disclosure mean everything including anything that damages my case correct? Depends who is disclosing....if they have to disclose and cant?

so for example they may mention in their list that a signed agreement existed, I can request that they produce it knowing they can't find/disclose it?

 

so if I find signed terms, notes of payments within 6yrs of claim etc. I have to present them? Or they do

ok so when they list those 2 statements can I ask at that point for disclosure of something not listed like further proof of the transactions/payments origin/method? similarly they will probably list a signed agreement having existed, should I ask for them to produce it knowing not possible? etc.

 

Re getting my ducks in a row I'm concerned the standard/holding defence may not be broad enough

Their rep was a freelancer, quite helpful re timetable & process and said a change of defence is usually agreed unless wildly different but I need to get the claimant's agreement and it has to be via an application, very quickly before disclosure.

Is that correct/doable?

 

Not necessary to amend your defence you can just submit a further witness statement and particularise..if you have not already submitted one ?

not yet, WS due start april. So I can introduce defence points/points of law via the WS that are way outside of what is in the original defence? so essentially a refreshed defence? any limitation how far/detailed I can go?

 

As this is Fast Track you can manipulate disclose to the extreme

again pardon my ignorance but not sure what you mean by manipulating disclosure. possible to the extreme because the speed of fast track allows parties to argue not able to access/supply requested docs in time? or for another reason?

 

but also be wary of costs against you.

is that because requesting lots of docs delays proceedings or not being able to produce requested docs myself encourages higher costs if I lose?

 

thanks

 

gf2k

[AndyOrch]

Rather than goes through all your points GF Fast Track you have a far greater option to request anything using CPR 31.14 or clarifying anything by way of CPR 18.

Yes you can raise anything in connection in your witness statement and again put them to strict proof.

Costs in the Fast Track...just research and you will see why you have to be more careful than SCT.

[gforce2k]

Rather than goes through all your points GF Fast Track you have a far greater option to request anything using CPR 31.14 or clarifying anything by way of CPR 18.

Yes you can raise anything in connection in your witness statement and again put them to strict proof.

Costs in the Fast Track...just research and you will see why you have to be more careful than SCT.

 

Thanks Andy, I'll look into all of this and only come back to you if I have very specific questions.

 

cheers

 

gf2k

[Guest]

thanks Ford

 

will look asap, apologies for my ignorance but will any version of s127 do or is there a particular 'old' one?

 

not the original at all, reconstituted without any sig or even sig box and name address section has something there but in the copy provided the highlighted text is so blacked out it's unreable like a redacted doc - if they come up with the same no sig recon at trial but with name/address readable would that sufficient for them?

 

 

hope so, would you expect them to normally ask for my bank statements to match payments or just rely on the egg statements? if they do what if i can't provide them? if not is there a case/point of law i can mention to argue against validity of the statement/for more proof of who made/how the payments were made?

 

thanks

gf2k

 

its this 'old' s127 that has been repealed, but still applicable for matters prior to 4/07 (when it was repealed). claimants might argue that a recon satisfies that particular s127, using that Carey case.

'Status: This is the original version (as it was originally enacted)'

http://www.legislation.gov.uk/ukpga/1974/39/section/127/enacted

 

 

oh ok. i thought you said they had sent a copy of the actual original.

a recon doesnt have to have a sig on it, but it must be accurate re the terms. (kotecha v phoenix)

 

heres the eg i mentioned re a DJ just accepting a transaction summary doc without anything to counter (though there was actually a payment in that case). post #179. http://www.consumeractiongroup.co.uk/forum/showthread.php?447440-Hoist-Portfolio-Howard-Cohen-Claim-Form-Santander-overdraft-from-2009/page9

(but yes, they wld be put to proof. and things may be a bit more stricter in fast track, and as andy says, there will be disclosure and opportunities to 'enquire'.)

[gforce2k]

Hi Andy, apologies I sent you a PM with a sensitive question re disclosure that I need to put in today.

Hope you can help even with just a short reply?

Thanks,

gf2k

[AndyOrch]

Done

[gforce2k]

Thanks again Andy,

 

The PPI question I have is: Is mis-application of PPI viewed as breach of contract?

 

PPI was added at the start of the account even though I didn't want it, 2-3 premiums were charged by the time I found out, I complained and the premiums were refunded (I don;t know if PPI premiums attract interest like other debits/transactions but none was mentioned/ever repaid).

 

Can anyone tell me if I can reasonably argue breach of contract or if there is any point of law/case law i can mention to support a breach of contract argument?

 

Thanks

GF2k

[gforce2k]

Thanks Andy, sorry for the not getting back to you sooner, a lot going on at home.

 

Re PPI defence I've searched, nothing definitive on the PPI stuff but I'll introduce it in the Witness Statement later anyway, as you say no harm -

If it's going to be mentioned in my WS does anything PPI related have to be disclosed now or can I disclose docs later if I find them elsewhere?

 

Re the Tomlin I agree I never want to get credit again but if i remortgage or move it will be a big issue, that's the only reason it's a concern although I really don't want to give in.

 

As regards payments and I&E (if we get that far):

- don't I need to prove a regular salary for the court to deem a repayment plan viable?

I earn at best sporadically at the moment with no monthly paycheck. I could put down an arbitrary monthly average based on annual earnings but if they asked for proof (payslips/regular monthly income) I wouldn't be able to show it.

Would that not matter to the court as long as the payment agreed is met?

Is it ok to just put down my monthly element/fraction of mortgage/utilities etc. to keep my wife off the I&E?

or

Do I have to put down full amounts of bills/other people's contribution etc. i.e. a 'household' I&E (i.e. my wife)?

If so would that make my wife jointly liable or would it still be legally only my debt?

 

As regards disclosure I've admitted to having had dealings with Egg in the past but am unaware of monies owing so:

if I don't list any Egg stuff in disclosure now will they accept that it was over 7 years ago or think I'm hiding stuff?

WH only disclosed a list of 6 or so docs but must have tons of other stuff available yet that's not listed in there and they're solicitors! They've not even listed anything under 'I have had the documents numbered and listed below, but they are no longer in my control' section which can't be right.

Is this normal even for solicitors to be blatantly selective with disclosure (when the letter of the law is to include everything even if harmful)?

What about if I/they find a bunch of docs later, can I/they introduce it or will that be frowned upon?

 

Also do parties in these kinds of claims go as far as to insist on a search of the other party's premises if they feel there is not full disclosure?

 

Thanks,

GF2k

[AndyOrch]

If it's going to be mentioned in my WS does anything PPI related have to be disclosed now or can I disclose docs later if I find them elsewhere?

 

In reality it should be disclosed as part of your WS.There wont be a later it will be over and done with on the trial date.

 

don't I need to prove a regular salary for the court to deem a repayment plan viable?

 

No you just state the joint income of the household

 

Would that not matter to the court as long as the payment agreed is met? Correct

Is it ok to just put down my monthly element/fraction of mortgage/utilities etc. to keep my wife off the I&E?

or

Do I have to put down full amounts of bills/other people's contribution etc. i.e. a 'household' I&E (i.e. my wife)?

If so would that make my wife jointly liable or would it still be legally only my debt?

 

Your wife's income is not taken into consideration

 

if I don't list any Egg stuff in disclosure now will they accept that it was over 7 years ago or think I'm hiding stuff?

 

Not sure I understand ...if you want to rely on it you disclose it if not... or cant ... don't disclose it

 

Is this normal even for solicitors to be blatantly selective with disclosure (when the letter of the law is to include everything even if harmful)?

What about if I/they find a bunch of docs later, can I/they introduce it or will that be frowned upon?

 

Its their choice..their case will only be as strong as their disclosure....the least the better for you.

 

Also do parties in these kinds of claims go as far as to insist on a search of the other party's premises if they feel there is not full disclosure?

 

Think you have been watching to many movies:madgrin:

[gforce2k]

Thanks Andy, think I'm clear on all that now, and yes perhaps too many movies...

 

My unclear question was basically if I find something later and want to disclose it can I?

i.e. if I by the time I do my Witness Statement (or any other time after Standard Disclosure and before the trial) find any docs that I want to disclose can I or have i lost my chance if not disclosed in standard disclosure?

 

Thanks,

gf2k

[AndyOrch]

Thanks Andy, think I'm clear on all that now, and yes perhaps too many movies...

 

My unclear question was basically if I find something later and want to disclose it can I?

i.e. if I by the time I do my Witness Statement (or any other time after Standard Disclosure and before the trial) find any docs that I want to disclose can I or have i lost my chance if not disclosed in standard disclosure?

 

Thanks,

gf2k

 

Yes...so find anything now rather than later...if you wish to rely on it.