Please help - very worried. Ref: IND/Hegarty LLP/Aktiv Kapital/MBNA

[Amethyst]

Re: Please help - very worried. Ref: IND/Hegarty LLP/Aktiv Kapital/MBNA

Thanks M1 for the above......hearing is tomorrow at 2pm....will update afterwards

Hope all goes well this afternoon HB.

[HB10]

Re: Please help - very worried. Ref: IND/Hegarty LLP/Aktiv Kapital/MBNA

Thanks M1 for the above......hearing is tomorrow at 2pm....will update afterwards

[mystery1]

Re: Please help - very worried. Ref: IND/Hegarty LLP/Aktiv Kapital/MBNA

Your right to apply stems from the fact they didn't comply with a court order.

Cpr 1.3

Duty of the parties
1.3
The parties are required to help the court to further the overriding objective.

The overriding objective
1.1
(1) These Rules are a new procedural code with the overriding objective of enabling the court to deal with cases justly and at proportionate cost.
(2) Dealing with a case justly and at proportionate cost includes, so far as is practicable –
(a) ensuring that the parties are on an equal footing;
(b) saving expense;
(c) dealing with the case in ways which are proportionate –
(i) to the amount of money involved;
(ii) to the importance of the case;
(iii) to the complexity of the issues; and
(iv) to the financial position of each party;
(d) ensuring that it is dealt with expeditiously and fairly;
(e) allotting to it an appropriate share of the court’s resources, while taking into account the need to allot resources to other cases; and
(f) enforcing compliance with rules, practice directions and orders.



The court ordered x they failed. In response to x you had to do y. Because they didn't do x y is irrelevant.

http://www.bailii.org/ew/cases/EWHC/QB/2014/41.html

29.It is to be noted that the order of Walker J. was expressly worded to provide for the sequential disclosure of witness statements and skeletons and that the obligations placed upon the defendant were to be "in response" to compliance by the claimant with its own obligations in this regard. I therefore doubt very much whether the defendant was in default of the order relating to the filing and service of witness statements at all. The obligation upon it was to respond and there was nothing to respond to.

M1

[HB10]

Re: Please help - very worried. Ref: IND/Hegarty LLP/Aktiv Kapital/MBNA

Thanks for the info.

Ive looked at MA Lloyds, also went through Mitchell type cases - but did not find anything related to my type case.

Is there anything in particular I would need to be prepared for?

what right i had to apply?

application was due to them not complying with part 1 of order, hence I could not file defence without the requested documents?

any help would be most appreciated. thanks

[mystery1]

Re: Please help - very worried. Ref: IND/Hegarty LLP/Aktiv Kapital/MBNA

See MA Lloyd as i posted earlier. Clearly, to me, your compliance was "in response" to theirs. As they did not respond as asked you had no order to comply with.

M1

[HB10]

Re: Please help - very worried. Ref: IND/Hegarty LLP/Aktiv Kapital/MBNA

Hmmm bit of game play going on. They failed to comply with the order (unless the WS covers it) so you applied on that basis as you were still unable to file a defence without the document ordered.

They are saying that regardless of that you failed to comply with the order in that you didn't file a defence. Your application should supersede their assertions as it was made before the date given for filing defence.

They are relying on the Witness Statement and Default notice to say the debt is not statute barred.

Presumably your main defence is that the debt is statute barred ?

Is the debt statute barred ?

I have no idea when the last payment was made. It was the judge who mentioned statute barred at the last hearing. THe judge said Mr ..... (me).... has not acknowledged the debt so he wants to see statement with last payment

[Amethyst]

Re: Please help - very worried. Ref: IND/Hegarty LLP/Aktiv Kapital/MBNA

Hmmm bit of game play going on. They failed to comply with the order (unless the WS covers it) so you applied on that basis as you were still unable to file a defence without the document ordered.

They are saying that regardless of that you failed to comply with the order in that you didn't file a defence. Your application should supersede their assertions as it was made before the date given for filing defence.

They are relying on the Witness Statement and Default notice to say the debt is not statute barred.

Presumably your main defence is that the debt is statute barred ?

Is the debt statute barred ?

[HB10]

Re: Please help - very worried. Ref: IND/Hegarty LLP/Aktiv Kapital/MBNA

Hi,

Received letter from Aktiv this morning - attached witness statement

[Amethyst]

Re: Please help - very worried. Ref: IND/Hegarty LLP/Aktiv Kapital/MBNA

http://t.co/AFLym9JEl0

damn short link sorry

[Amethyst]

Re: Please help - very worried. Ref: IND/Hegarty LLP/Aktiv Kapital/MBNA

HB10 - theres another case on here atm where the judge just accepted the witness statement as evidence of the payment, however it was NOT after an order to supply the statement showing the payment, so I'm just letting you know that the argument might be made that the WS covers the order (I disagree and don't think it does but presumably that is what they will be arguing) - so might want to ensure theres an argument or case law against that - looking through the Mitchell type cases recently might be of help (Civil Litigation Brief blog might help on that)

The representative from Aktiv capital sent me their witness statement and in it they include evidence of the cca for the loan, and evidence of service to my last known address, but then said i made a payment of £2 in Nov 2008, but could not provide an evidence to prove that i did, but only the statement that i did make a payment.

At the set aside hearing, the judge said i havent acted promptly by making application to set aside the case, and i pointed out to the court that it was only 21 days after i knew that i make the application, but he still refuse. And he also said that i do not have any prospect of successfully defending the case because the claimant make a statement that i paid £2 in Nov 2008 and that has defeated any SB claim, even though i pointed out to him that there was no proof of this payment but only their signed statement, which anybody can make, but the judge refuse said that the witness statement is enough proof of an evidence of payment. Which i still dont understand how???

[HB10]

Re: Please help - very worried. Ref: IND/Hegarty LLP/Aktiv Kapital/MBNA

Any help regards preparation would be most helpful.

The application was due to the Claimant not complying with the judges order, surely the claimant has to comply with the order - that was the reason for the application?

what right to apply?

case laws?

can you help pls regards these issues.

thanks for the continued help

[mystery1]

Re: Please help - very worried. Ref: IND/Hegarty LLP/Aktiv Kapital/MBNA

If you asked for a hearing it's normal. The judge may have an inkling to whether you will or won't get your application through. Be prepared. Know why you applied what right you had to apply and any case law that might affect your application.

M1

[HB10]

Re: Please help - very worried. Ref: IND/Hegarty LLP/Aktiv Kapital/MBNA

Hi all,

Received this doc (attached) from court end of last week.

Notice of application for an Unless order - wouldn't the judge have decided based on the application?

[mystery1]

Re: Please help - very worried. Ref: IND/Hegarty LLP/Aktiv Kapital/MBNA

Ah yes i remember now.

They didn't do as asked. Should be ok.

M1

[HB10]

Re: Please help - very worried. Ref: IND/Hegarty LLP/Aktiv Kapital/MBNA

So they were ordered to file and serve and haven't ? You made an application for an unless order based upon this.

I'd check with the court that they did file on time. I think you are saying that you never ever received your copy ?

If so your application should be fine.

http://www.bailii.org/ew/cases/EWHC/QB/2014/41.html

M1

- They were ordered to file statement with last payment - they filed a witness statement stating that they do not have statement showing last payment - they attached the Notice of Default.

- They filed this on time (i attached the docs few post back)

- I had to file a defence by 6th June, but sent an unless order (for hearing) regards the requested document - statement.