Court Claim Form Received - Cabot/Mortimer Clarke - First Steps help please...

[echat11]

a) It's barely legible. I will keep that point in - thank you.

You should have to put loads of effort to try to figure out what the words are.

b) I have been trying to find out when it became possible for claimants to produce a reconstituted agreement but to no avail. You mentioned 2007 in your post #29? As the agreement was taken out in 2004, does this mean that a reconstituted copy is not acceptable in this case please?

Reconstituted Agreements came into being in 2009, the case they mention in their Witness Statement, it's also in the FCA link. Carey v HSBC 2009. I think a Reconstituted Agreement isn't acceptable as the following was removed in 2007 - The Consumer Credit Act 1974, Section 127 (3).

[echat11]

Don't forget these bits.

Fill in the XXX, check point 9, depending on date, 9 might come before 10, so you'll need to change that.

You need to cross reference the Witness Statement / Evidence (3 documents) add things like title, labels, number pages etc so the Judge can cross reference.

Take the originals to Court with you.

[beaglepup]

Don't forget these bits.

Fill in the XXX, check point 9, depending on date, 9 might come before 10, so you'll need to change that.

You need to cross reference the Witness Statement / Evidence (3 documents) add things like title, labels, number pages etc so the Judge can cross reference.

Take the originals to Court with you.

Thanks so much for all of your help. I'm almost there! Will be emailing to the court and claimant's solicitors today. I've been reading around varied terms etc I'd just like to add that in as an extra point if I can. I've just read the following -

(6) If the agreement has been varied, the duty is to provide not only a
copy of the agreement as originally executed but also either:
(a) a copy of the latest variation given in accordance with section
82(1) of the CCA relating to each discrete term of the agreement
which has been varied; or,
(b) a clear statement of the terms of the agreement as varied.

As the agreement they are referring to ran from 2004 to 2017. Should they have included further documents to show how the agreement has varied over time e.g. APR, Credit Limits etc?

[echat11]

Thanks so much for all of your help. I'm almost there! Will be emailing to the court and claimant's solicitors today. I've been reading around varied terms etc I'd just like to add that in as an extra point if I can. I've just read the following -

(6) If the agreement has been varied, the duty is to provide not only a
copy of the agreement as originally executed but also either:
(a) a copy of the latest variation given in accordance with section
82(1) of the CCA relating to each discrete term of the agreement
which has been varied; or,
(b) a clear statement of the terms of the agreement as varied.

As the agreement they are referring to ran from 2004 to 2017. Should they have included further documents to show how the agreement has varied over time e.g. APR, Credit Limits etc?

Yes, you can add the following:

Consumer Credit Act 1974, Section 82 of the Consumer Credit Act states where the Terms of the agreement has been 'varied', the Creditor must provide a copy of the latest variation, the Creditor has failed to do this. (add this after 'The Consumer Credit Act 1974, Section 78 of the Consumer Credit Act states that the copy of the agreement must be legible this is not the case, it is illegible.')

If they've sent statements you can check if APR / Credit Limit has been 'varied' (changed). If that is the case, add the statement showing different rates to you evidence bundle, then you can label with your Witness Statement.

[beaglepup]

Yes, you can add the following:

Consumer Credit Act 1974, Section 82 of the Consumer Credit Act states where the Terms of the agreement has been 'varied', the Creditor must provide a copy of the latest variation, the Creditor has failed to do this. (add this after 'The Consumer Credit Act 1974, Section 78 of the Consumer Credit Act states that the copy of the agreement must be legible this is not the case, it is illegible.')

If they've sent statements you can check if APR / Credit Limit has been 'varied' (changed). If that is the case, add the statement showing different rates to you evidence bundle, then you can label with your Witness Statement.

Amazing. Thank you. Finally, I am just padding out the section that PEZZA54 suggested:-

4. The nature and extent of any prejudice the defendant would suffer in the event that the stay is lifted

What could be a valid reason here please? That I presumed that no further action was going to taken due to the amount of time that elapsed and it's caused a significant amount of anxiety to find the claim has been resurrected after a period in excess of 19 months? That I'm now in a financially vulnerable position and I would struggle to afford to make payments if the stay was lifted at this point and summary judgement was made against me?

[echat11]

Amazing. Thank you. Finally, I am just padding out the section that PEZZA54 suggested:-

4. The nature and extent of any prejudice the defendant would suffer in the event that the stay is lifted

What could be a valid reason here please? That I presumed that no further action was going to taken due to the amount of time that elapsed and it's caused a significant amount of anxiety to find the claim has been resurrected after a period in excess of 19 months? That I'm now in a financially vulnerable position and I would struggle to afford to make payments if the stay was lifted at this point and summary judgement was made against me?

The fact that the Creditor has resurrected the claim after a period of 19 months has caused me significant stress and anxiety. I'm now in a financially vulnerable position and I would struggle to afford to make payments if the stay was lifted at this point and summary judgement was made against me.

[beaglepup]

In my opinion you should also argue against the stay being lifted after such a long time. The claimant should have a very good reason for waiting 18 months to make an application notice to lift a stay

To lift a stay the judge should apply the test of "appropriateness"

In applying this test Chief Master Marsh considered in a 2016/17 case involving the Premier League:

1. Whether the claimant had an adequate explanation for the delay
2. Whether the claimant's claim has (at least) a real prospect of success
3. The defendant's behaviour and whether any of the delay was caused by the defendant
4. The nature and extent of any prejudice the defendant would suffer in the event that the stay is lifted
5. Whether any attempts were made by the claimant in the 6 months to revive the claim

Note this case was for a 6 month delay not 18 months

Draft your witness statement accordingly, covering items 1 to 5

Thanks for this PEZZA54. Do you have any further details on this case at all please? I'd like to be able to reference it if I can.

[Pezza54]

Football Association Premier league LTD v O'Donovan (2017) EWHC 152 (Ch)

Be ready to answer questions about how you have been disadvantaged by the delay

The judge will want to listen to your answer to determine how sincere you are about the stress and anxiety you've suffered since the claimant applied to restart the claim

[beaglepup]

Football Association Premier league LTD v O'Donovan (2017) EWHC 152 (Ch)

Be ready to answer questions about how you have been disadvantaged by the delay

The judge will want to listen to your answer to determine how sincere you are about the stress and anxiety you've suffered since the claimant applied to restart the claim

Thank you for that Pezza54. Do you think the reasons outlined in my post #51 would go any way towards explaining why I'd been disadvantaged by the delay at all? I'm struggling to think of further reasons why the length of time passed could have affected me more than if they'd applied to lift the stay more promptly.

[echat11]

Thank you for that Pezza54. Do you think the reasons outlined in my post #51 would go any way towards explaining why I'd been disadvantaged by the delay at all? I'm struggling to think of further reasons why the length of time passed could have affected me more than if they'd applied to lift the stay more promptly.

Are you struggling with the 'cost of living? food keeps going up, fuel bills keep going up etc, paint a picture of your day to day existence.

[Pezza54]

I am not aware of your personal circumstances but a defendant may have:
spent the money put aside for the event the claim was successful
started a new job and would be detrimentally affected by a court claim (dismissed, overlooked for promotion, lack of respect from new colleagues)
suffered ill health since the claim was stayed, and the illness is likely to be made worse by anxiety
plans for moving home put on hold, retirement delayed

Most people have plans to buy their first property or move to a bigger house if and when they can afford it

[beaglepup]

Well, I managed to get the Witness Statement e-mailed to the court and the claimant's solicitors last week so hopefully all is in hand. Thank you Echat11 and Pezza54 for your support and guidance with this. You have been very patient with me - thank you.

I am now looking ahead to (and absolutely dreading..) the court hearing this afternoon. I received a letter from Mortimer Clarke over the weekend (sent prior to my Witness Statement going in) detailing their costs c.£900 and informing me that an advocate will be present to represent their client in order to keep costs proportionate. That will leave me with a potential judgement pushing 2.5k if they are successful.

I’ve just called the court and all is going ahead as planned this afternoon.

I have printed a copy of my defence, witness statement and the evidence bundle sent to the court and their solicitors. Hopefully that’s all I need.

Do you have any advice or guidance regarding the questions I may likely face this afternoon at all please? Is it possible that the judge may expect me to verbally justify why I feel that the claimant’s claim is unenforceable (over and above what I’ve submitted in my Witness Statement) for example or will he/she be able to make that judgment based on their knowledge and understanding of the law?

Also, just as an aside, I defaulted on the debt concerned back in 2017. I left the property it was registered to back in 2011 but I hadn’t changed the address for some unknown reason. That meant that the default notice, notice of assignment and any further letters chasing the debt didn’t get to me. The DCA must have then been able to locate my new address via Electoral Roll/CCA info as they first sent a letter related to that debt to my current address in 2021. Does this have any bearing on anything at all? Will it be frowned upon that I failed to change my address?

Sorry for all the questions.. I feel very anxious.

[echat11]

Well, I managed to get the Witness Statement e-mailed to the court and the claimant's solicitors last week so hopefully all is in hand. Thank you Echat11 and Pezza54 for your support and guidance with this. You have been very patient with me - thank you.

I am now looking ahead to (and absolutely dreading..) the court hearing this afternoon. I received a letter from Mortimer Clarke over the weekend (sent prior to my Witness Statement going in) detailing their costs c.£900 and informing me that an advocate will be present to represent their client in order to keep costs proportionate. That will leave me with a potential judgement pushing 2.5k if they are successful.

I’ve just called the court and all is going ahead as planned this afternoon.

I have printed a copy of my defence, witness statement and the evidence bundle sent to the court and their solicitors. Hopefully that’s all I need.

Do you have any advice or guidance regarding the questions I may likely face this afternoon at all please? Is it possible that the judge may expect me to verbally justify why I feel that the claimant’s claim is unenforceable (over and above what I’ve submitted in my Witness Statement) for example or will he/she be able to make that judgment based on their knowledge and understanding of the law?

Also, just as an aside, I defaulted on the debt concerned back in 2017. I left the property it was registered to back in 2011 but I hadn’t changed the address for some unknown reason. That meant that the default notice, notice of assignment and any further letters chasing the debt didn’t get to me. The DCA must have then been able to locate my new address via Electoral Roll/CCA info as they first sent a letter related to that debt to my current address in 2021. Does this have any bearing on anything at all? Will it be frowned upon that I failed to change my address?

Sorry for all the questions.. I feel very anxious.

Stay calm.

No doubt when you get there, their representative will be 'chatty' (just be careful).

The Judge will know you are a 'Lay person' so will be helpful as they can be.

Address the Judge as 'Your Honour'. If you don't know something, it's best to say you don't, rather then 'waffle'.

Is it possible that the judge may expect me to verbally justify why I feel that the claimant’s claim is unenforceable (over and above what I’ve submitted in my Witness Statement) for example or will he/she be able to make that judgment based on their knowledge and understanding of the law?

Yes, he will ask questions based on your Witness Statement, to clarify anything he / she doesn't 'understand.

Yes, they make a decision based on precedents (previous decided cases) and the law.

Also, just as an aside, I defaulted on the debt concerned back in 2017. I left the property it was registered to back in 2011 but I hadn’t changed the address for some unknown reason. That meant that the default notice, notice of assignment and any further letters chasing the debt didn’t get to me. The DCA must have then been able to locate my new address via Electoral Roll/CCA info as they first sent a letter related to that debt to my current address in 2021. Does this have any bearing on anything at all? Will it be frowned upon that I failed to change my address?

Only if you were stating that the debt was 'statute barred'. But you are stating that the documentation isn't compliant.

[beaglepup]

Stay calm.

No doubt when you get there, their representative will be 'chatty' (just be careful).

The Judge will know you are a 'Lay person' so will be helpful as they can be.

Address the Judge as 'Your Honour'. If you don't know something, it's best to say you don't, rather then 'waffle'.

Is it possible that the judge may expect me to verbally justify why I feel that the claimant’s claim is unenforceable (over and above what I’ve submitted in my Witness Statement) for example or will he/she be able to make that judgment based on their knowledge and understanding of the law?

Yes, he will ask questions based on your Witness Statement, to clarify anything he / she doesn't 'understand.

Yes, they make a decision based on precedents (previous decided cases) and the law.

Also, just as an aside, I defaulted on the debt concerned back in 2017. I left the property it was registered to back in 2011 but I hadn’t changed the address for some unknown reason. That meant that the default notice, notice of assignment and any further letters chasing the debt didn’t get to me. The DCA must have then been able to locate my new address via Electoral Roll/CCA info as they first sent a letter related to that debt to my current address in 2021. Does this have any bearing on anything at all? Will it be frowned upon that I failed to change my address?

Only if you were stating that the debt was 'statute barred'. But you are stating that the documentation isn't compliant.

That's really helpful - thank you. I will do my best to be calm and try not to engage in chatter with their representative when I arrive! My fingers are tightly crossed as I truly can't afford to pay this if the judge decides in their favour.. BUT I can only do my best. I will update the thread when it's all over.. x

[beaglepup]

Good morning!

I am very pleased to report that the claimant was unsuccessful in their application to lift the stay in court yesterday!! Over the moon, in fact!!!

The judge opened by noting that the claimant had applied to lift the stay on proceedings and be granted summary judgement. He stated that he wanted to deal with the lifting of the stay first before moving onto the potential summary judgement. He then gave their legal representative a chance to outline their case and then asked if they'd read my Witness Statement, which they confirmed that they had.

The judge then spoke at length about the contents of my witness statement and the court file - confirming all of the dates on which I had engaged with the related documentation. As he spoke, i very much felt that he was highlighting the fact that I had engaged with all the documentation relating to the claim in an appropriate and timely manner, yet the claimant had failed in their duties to do the same. He noted that the delay in their application to lift the stay was received some 20 months after the claim form was first served and that the claimant had failed to offer an adequate explanation for the delay in their letters or witness statement. He felt that their provision of the requested documents was unduly delayed - some 19 months - and said that he would expect there to be some kind of arrangement between the original creditor to provide the claimant with any original documents requested in a reasonable amount of time - closer to 28 days, not 19 months.

The judge noted that I'd cited the 2017 case involving the Premier League in my Witness Statement and asked their representative if they'd looked up that case, which they confirmed that they had. (It was printed off and visible, sat next to their pile of paperwork!). The judge then went on to look it up himself online as he said it'd been cited to him! He mentioned aspects of it and spoke of Chief Master Marsh's intention to identify how a court ought to an approach an application to lift a stay so I'm certain that the inclusion of this was invaluable too!!

He then offered me the opportunity to state how I felt about the delay, which I did, and he subsequently agreed that I would suffer prejudice if the stay was lifted after such an extensive period of time.

He went on to say that this was an old debt, which in other circumstances would now be time-barred, a low value claim which is of little significance to the claimant yet is of some significance to the defendant. He spoke about appropriate use of court time and resources and for all of the above reasons, felt that the lifting of the stay was not appropriate in this case.

Fortunately I didn't even need to go into the reasons why we felt the documentation they eventually provided was non-compliant! But, I'm so very grateful that it was all there as it could very well have been needed.

Hopefully the detail above is useful in some way! I did come away feeling that the Witness Statement had pretty much done the job before we even sat down so I am so glad I focused on getting that right, with your help.

I cannot begin to thank you enough for all that you did to help me with this. I couldn't have done it on my own and I am sincerely grateful for your kind and unwavering support.

I have looked at how to make donations to the site as some way of further showing my appreciation for your time and dedication to helping people, like me, who could not afford legal help or representation, but I can't seem to find the link. If you could be so kind as to direct me to that please, I would be grateful.

With sincere thanks,

BP