1st credit/Moon Beever, Claimform - old M+S Credit Card - prob SB'd***Claim Dismissed***

[Whatnot]

So.. i've 'lifted' Cager member pt2537 template on help with allocations questionnaire and propose to send it tomorrow AM

 

 

 

 

XXXXXXXXXX -v- XXXXXXX

Claim No: xxxxxxxxx

 

 

 

N149 / 150 **Allocation Questionnaire

 

 

 

Section G / H **- other information

 

If the court is in agreement, the defendant respectfully requests that special directions may be given as per the attached draft order.

 

The defendant proposes these directions in mind of the Overriding Objectives, and in particular the duty of the parties to help the court further them. The issues outlined below are the crux upon which this claim rests, and the proposed directions identify these issues and will allow them to be assessed in advance of the hearing so that this claim may proceed justly and expeditiously;

 

without production of the requested documents, I am at a disadvantage and am unable to serve a proper defence. Failure of the claimant to supply the requested documentation will make the case much harder for the court to deal with as without production of the requested documentation will inhibit the courts ability to deal with the case

 

The House of Lords in the case of Wilson v First County Trust Ltd - [2003] All ER (D) 187 (Jul) made it clear in paragraph 29 of LORD NICHOLLS OF BIRKENHEAD judgment

 

29. The court's powers under section 127(1) are subject to significant qualification in two types of cases. The first type is where section 61(1)(a), regarding signing of agreements, is not complied with. In such cases the court 'shall not make' an enforcement order unless a document, whether or not in the prescribed form, containing all the prescribed terms, was signed by the debtor: section 127(3). Thus, signatureicon of a document containing all the prescribed terms is an essential prerequisite to the court's power to make an enforcement order. The second type of case concerns failure to comply with the duty to supply a copy of an executed or unexecuted agreement pursuant to sections 62 and 63, or failure to comply with the duty to give

notice of cancellation rights in accordance with section 64(1). Here again, subject to one exception regarding sections 62 and63, section 127(4) precludes the court from making an enforcement order.

 

Its is respectfully requested this case be allocated to the small claimsicon track, it is a straight forward case and is easily resolved on production of the required documentation by the claimant, should the claimant not have the documentation required to progress this case I suggest that there will be no case to answer

 

Therefore it stands to reason that this document must be disclosed before this case can progress any further

 

 

 

 

 

''''''''''''''''''''''''''''''''''''''''''''''''''''''''''''''''''''''''''''''''''''''''''''''''''''''''''''''''''''''''''''''''''''''''''''''''''''''''

 

 

 

 

xx June 2015

 

 

Dear 1st credit........

 

Please find the following attached to this allocation questionnaire;

 

1) Section G / H ** - other information

2) Draft order for directions

 

This allocation questionnaire and its attachments were sent by Royal Mail recorded delivery to the claimant on xxx June 2015

 

 

Yours faithfully

 

signature............................................................................................

 

 

 

 

XXXXXXXXXX -v- XXXXXXX

Claim No: xxxxxxxxx

 

 

 

N149 / 150 **Allocation Questionnaire

 

 

 

Section G / H **- other information

 

If the court is in agreement, the defendant respectfully requests that special directions may be given as per the attached draft order.

 

The defendant proposes these directions in mind of the Overriding Objectives, and in particular the duty of the parties to help the court further them. The issues outlined below are the crux upon which this claim rests, and the proposed directions identify these issues and will allow them to be assessed in advance of the hearing so that this claim may proceed justly and expeditiously;

 

without production of the requested documents, I am at a disadvantage and am unable to serve a proper defence. Failure of the claimant to supply the requested documentation will make the case much harder for the court to deal with as without production of the requested documentation will inhibit the courts ability to deal with the case

 

The House of Lords in the case of Wilson v First County Trust Ltd - [2003] All ER (D) 187 (Jul) made it clear in paragraph 29 of LORD NICHOLLS OF BIRKENHEAD judgment

 

29. The court's powers under section 127(1) are subject to significant qualification in two types of cases. The first type is where section 61(1)(a), regarding signing of agreements, is not complied with. In such cases the court 'shall not make' an enforcement order unless a document, whether or not in the prescribed form, containing all the prescribed terms, was signed by the debtor: section 127(3). Thus, signature icon of a document containing all the prescribed terms is an essential prerequisite to the court's power to make an enforcement order. The second type of case concerns failure to comply with the duty to supply a copy of an executed or unexecuted agreement pursuant to sections 62 and 63, or failure to comply with the duty to give

notice of cancellation rights in accordance with section 64(1). Here again, subject to one exception regarding sections 62 and63, section 127(4) precludes the court from making an enforcement order.

 

Its is respectfully requested this case be allocated to the small claimsicon track, it is a straight forward case and is easily resolved on production of the required documentation by the claimant, should the claimant not have the documentation required to progress this case I suggest that there will be no case to answer

 

Therefore it stands to reason that this document must be disclosed before this case can progress any further

 

 

''''''''''''''''''''''''''''''''''''''''''''''''''''''''''''''''''''''''''''''''''''''''''''''''''''''''''''''''''''''''''''''''''''''''''

[dx100uk]

bit old hat now

[Whatnot]

ah, yes 2008 .. only nearly 20 years:lol:

 

it will ok though?

[AndyOrch]

No.... you dont.... nor ever have been able to give directions in small claims track.....N149 was replaced with the N180 Directions Questionnair.

 

Simply put....

 

Yes to Small Claims Track...Yes to Mediation...the rest is self explanatory.

 

Andy.

 

That thread either needs deleting or correcting.

[Whatnot]

I see, ok, thanks Andy...

[Whatnot]

Hi again,

 

Received the DQ from 1st credit with mediation ticked, so do doubt await phone call from them?

 

Should i be writing to 1st credit asking what/where are the misc £70 payments from, as daughter cannot find bank statements to verify,

 

 

do 1st credit have to prove they were made,

 

 

should i be concerned as these can potential restart the SB clock?

 

 

still have no T@C default, agreements and assignment doc, just the statements from M & S

 

Thanks

[AndyOrch]

Hi again,

 

Received the DQ from 1st credit with mediation ticked, so do doubt await phone call from them?

 

Should i be writing to 1st credit asking what/where are the misc £70 payments from, as daughter cannot find bank statements to verify, You could wouldn't harm ...make sure you head your letter without prejudice

 

 

do 1st credit have to prove they were made, Yes if they wish to overcome your defence

 

 

should i be concerned as these can potential restart the SB clock? Only if they are valid and they can prove the source

 

 

still have no T@C default, agreements and assignment doc, just the statements from M & S Wait until standard disclosure

 

Thanks

 

Andy

[Whatnot]

Thanks Andy, ..will write today,

[Whatnot]

Hi there,

Received a letter from court today date stamped 1st July it says i cannot represent my Daughter aka ( a Litigation Friend) without authorisation from a local court and that i must include this with the DQ - which i haven't done of course, and the date is lapsed for submission -failure to do so will result in my/her defense may be struck out and judgement entered against me in default

 

umm, what the heck do i do now??

 

Help please if poss. thanks

[AndyOrch]

Why and how did you inform them you intended to represent your daughter ? ...which you cant anyway as you are not a Solicitor/Council or Advocate...you could have accompanied her as a Mackenzie Friend but you are not allowed to speak or have right of audience.

 

There was no need to mention yourself at all in the DQ.. there was no need to try to represent her as this may of never actually got to trial.

 

I would suggest you get to your local County Court were the claim will finally be transferred to and request permission to " accompany " your daughter during the claim...accompany not represent.

 

Regards

 

Andy

[Ganymede]

Why and how did you inform them you intended to represent your daughter ? ...which you cant anyway as you are not a Solicitor/Council or Advocate...you could have accompanied her as a Mackenzie Friend but you are not allowed to speak or have right of audience.

 

There was no need to mention yourself at all in the DQ.. there was no need to try to represent her as this may of never actually got to trial.

 

I would suggest you get to your local County Court were the claim will finally be transferred to and request permission to " accompany " your daughter during the claim...accompany not represent.

 

Regards

 

Andy

 

Agreed. A Litigation Friend is only for children and protected parties.

 

Whatnot, you cannot sign any Court documents on your daughter's behalf. You are not a solicitor.

[panther12]

Everything upto a hearing would be in defendats name but for the actual hearing CPR PD27 allows for a lay representative to present the case in court provided your daughter is also present. Once you have a hearing date notice should be given to the court that you wish for a "lay representative" to present the case. Not a "litigation friend" or "McKenzie friend" but as "lay representative". May still come down to the judges discretion but if you've given fair notice it should be granted.

 

Representation at a hearing

 

3.1 In this paragraph:

(1) a lawyer means a barrister, a solicitor or a legal executive employed by a solicitor, and

(2) a lay representative means any other person.

3.2

(1) A party may present his own case at a hearing or a lawyer or lay representative may present it for him.

(2) The Lay Representatives (Right of Audience) Order 1999 provides that a lay representative may not exercise any right of audience:–

(a) where his client does not attend the hearing;

(b) at any stage after judgment; or

© on any appeal brought against any decision made by the district judge in the proceedings.

(3) However the court, exercising its general discretion to hear anybody, may hear a lay representative even in circumstances excluded by the Order.

(4) Any of its officers or employees may represent a corporate party.

[Whatnot]

Hi again,

 

Daughter filled out a new DQ, subsequently phoned the mediator for appointment, they told her as the claimant hadn't sent her the original creditor docs she couldn't/ wont be able to have mediation and should wait for a court hearing? ?

 

Normal procedure from mediation agency?

[dx100uk]

yep, if you read a few threads here

[Whatnot]

Hi all,

 

So, the latest is we sent the DQ and mediation said that as the claimant hadn't sent any/all the documents to us as required

we were awaiting a small clams court date, - none received,

 

 

instead today we get the "Periodic statement" dated 5/10/15 to include costs:

 

15/4/15 £80 - costs

15/4/15 £185 - Fees increase

15/4/15 £96.85 interest

 

original debt £3004.12

New figure £3365.97 - claimants amount as in court papers from MCOL

 

"Please note if legal action is taken on this account please note this statement will not include legal costs

and statuary interest which is being claimed but is yet to be awarded by the court".

 

As yet no court date?

 

 

any thoughts please anyone..

[AndyOrch]

File it and disregard it.

[Whatnot]

Thanks Andy,

 

As we havent heard from the court since April, does this mean they are not going to proceed with Court possibly??

[AndyOrch]

Simply means the claim remains stays...and will remain that way unless they make application to lift the stay....so put it out of your mind until or if.

 

Regards

 

Andy

[Whatnot]

Ok..

 

So we now have a small claims court date 21st January, 2016 and that the Claimant shall pay a fee of £335 by the 9th November refundable 7 days before said court date if they want discontinue the claim.. IE if it looks like i made a half decent case against them.. because they have not given all the correct legal prerequisites..

[AndyOrch]

" .. because they have not given all the correct legal prerequisites.. "

 

Care to expand Whatnot?...have you complied with the directions?

 

Andy

[Whatnot]

The District Judge have ordered to file and serve at least 2 weeks before the hearing, Witness statements one for the Court and one to the Claimant .. it states "who is a witness" - "can be anyone who attends court to say things in support of either sides case is also a witness", my question is: can that be me on behalf of my Daughter who will also be present?

 

Starting to prepare witness statement will post when i have a rough copy for approval..

[Whatnot]

Just says DJ has considered the statements of case and questionnaire filed and has allocated the claim.

. that the claimant should pay the fee,

and if the case is settled we should inform the court.

 

 

but if the claimant wants to withdraw before the court date t

hey must give seven days if they want the fee back..

[AndyOrch]

The claim is against your daughter...your daughter is the witness to the claim....therefore she drafts and signs witness statement

[Whatnot]

Thanks Andy, I hear you..

[AndyOrch]

Dont forget your standard disclosure also.