Possibly statute barred! DISCONTINUED!!!

[Celestine]

Re: Possibly statute barred!

Morning Christinez

Right, in this situation with a court hearing just over 5 weeks away, I would start preparing a witness statement which further captures the sequence of events, including ongoing non response to your letters & requests.

Personally I would start working on this now, then aim to submit it on the 14th March. (the actual deadline is 21st) The reason I would submit it fairly early is because it will likely trigger a withdrawal of the claim by your opponent. It will flag up your determination to fight them using the right arguments. They don't like that much.

Obviously, there is a chance that they could suddenly send you wodge of paperwork. Fingers crossed they don't so make a start on your witness statement. Post it up here and we'll polish it for you.

[MIKE770]

Re: Possibly statute barred!

14th April Cel would mean!?

[Celestine]

Re: Possibly statute barred!

Hahaha! Brain definitely not in gear this morning! Has anyone else got that 'what day of the week is it and what time is it' syndrome!? Bank holidays and clock changes are fatal lol.

[MIKE770]

Re: Possibly statute barred!

of course yesterday was Tuesday until people shouted to me "what are you on about? we would be 160 miles away at work" opppsssss

[Celestine]

Re: Possibly statute barred!

Isn't today Tuesday??

[MIKE770]

Re: Possibly statute barred!

yes but Monday was yesterday and I said it was Tuesday yesterday sort of lol

[christinez]

Re: Possibly statute barred!

Don't confuse me any further, I never know what day of the week I'm on lately

[christinez]

Re: Possibly statute barred!

How's this? I'm also not sure how much of this sum would have been charges etc!

Thanks
Christine

1: I received the Claim No. B2AL2M0M on December 17 2015


2. The Claimant alleges that I am indebted in the sum of £1378.67 being the amount outstanding under an agreement regulated by the Consumer Credit Act 1974 (“CCA”).


3: The Claimant has not provided me with a copy of the original credit agreement despite my having sent a formal request under s.78(1) of the CCA, with the statutory payment of £1, to the Claimants, who are defined as the Creditor by virtue of s.189 CCA 1974.


4. The Claimant's have sent me a letter dated January 4 2016 stating they are in the process of retrieving the documents requested. The Claimant have so far failed to properly comply with the request made under s.78 (1) and no agreement has been supplied.


5: Therefore by virtue of s.78(6) the Claimant is unable to enforce the agreement whilst their default continues.


6: The Claimants state that the debt was assigned to the Claimant, notice of which has been provided to the defendant. However, they do not state the date that the alleged debt was assigned to them


7. The Claimants are put to strict proof that the alleged debt has been properly assigned. I have not, so far as I recall, received any notice of assignment to the Claimant from Santander Cards Ltd. I have requested a copy of the assignment notice under CPR 31.14 but to date have not received a copy.


8. The Claimants state that a default notice has been served pursuant to the Consumer Credit Act 1974


9: The Claimant is also put to strict proof that a compliant Default Notice was served in relation to the alleged agreement pursuant to CCA s. 87 & 88 (1) thus giving right to demand immediate repayment of the sums claimed. I have requested a copy of the default notice under CPR 31.14 but to date have not received a copy.


10. Mediation was unable to take place due to the fact that the claimant had not provided the evidence to substantiate their claim.


11. The case has now been allocated to the Small Claims Track and a hearing scheduled for May 5 2016. However, I have still not received the requested documents from the claimant and only a letter stating they are trying to locate the requested documents.


12: I ask, the Court asks the Claimants to provide me with the documents required to enable me to properly assess and plead my defence, and should the documents be provided allow me to amend my defence and ask the claimants to pay the costs of that amendment.


13. It is denied the Claimant is entitled to the relief as claimed or at all.


Statement of Truth:


The statements above are true to the best of my knowledge and belief.

[Celestine]

Re: Possibly statute barred!

Thats a good start. We' can flesh it out a bit and any letters mentioned must be attached as exhibits.

[christinez]

Re: Possibly statute barred!

Ok, I'll check through the file and get the date off the letter they sent me. I don't know what else I could put in there as they haven't responded to the requests for the documents other than to say they are looking for them!

[christinez]

Re: Possibly statute barred!

Morning,

I have now gathered all my paperwork and would appreciate if someone could go over my defence for me?

1: I received the Claim No. B2AL2M0M on December 17 2015


2. The Claimant alleges that I am indebted in the sum of £1378.67 being the amount outstanding under an agreement regulated by the Consumer Credit Act 1974 (“CCA”).


3: The Claimant has not provided me with a copy of the original credit agreement despite my having sent a formal request under s.78(1) of the CCA, with the statutory payment of £1, to the Claimants, who are defined as the Creditor by virtue of s.189 CCA 1974. Exhibit 1 CCA request letter dated December 18 2015.


4. The Claimant's have sent me a letter dated January 4 2016 stating they are in the process of retrieving the documents requested. The Claimant have so far failed to properly comply with the request made under s.78 (1) and no agreement has been supplied.


5: Therefore by virtue of s.78(6) the Claimant is unable to enforce the agreement whilst their default continues.


6: The Claimants state that the debt was assigned to the Claimant, notice of which has been provided to the defendant. However, they do not state the date that the alleged debt was assigned to them


7. The Claimants are put to strict proof that the alleged debt has been properly assigned. I have not, so far as I recall, received any notice of assignment to the Claimant from Santander Cards Ltd. I have requested a copy of the assignment notice under CPR 31.14 but to date have not received a copy. Exhibit 2 CPR request letter dated December 18 2015.


8. The Claimants state that a default notice has been served pursuant to the Consumer Credit Act 1974


9: The Claimant is also put to strict proof that a compliant Default Notice was served in relation to the alleged agreement pursuant to CCA s. 87 & 88 (1) thus giving right to demand immediate repayment of the sums claimed. I have requested a copy of the default notice under CPR 31.14 but to date have not received a copy.


10. A letter was received from the claimant on January 4 2016. This acknowledged receipt of my letter requesting documents and also informed me that they are in the process of retrieving the documents. Up to now I have not received any documents. Exhibit 3 Letter off claimant dated January 4 2016


11. Mediation was scheduled for March 23rd 2016 but was unable to take place due to the fact I was unable to meet the requirements for mediation as the claimant had not provided the evidence to substantiate their claim. Exhibit 4 Email correspondence. Exhibit 5 Claimants direction questionnaire


12. The case has now been allocated to the Small Claims Track and a hearing scheduled for May 5 2016. However, I have still not received the requested documents from the claimant.


13: I ask, the Court asks the Claimants to provide me with the documents required to enable me to properly assess and plead my defence, and should the documents be provided allow me to amend my defence and ask the claimants to pay the costs of that amendment.


14. It is denied the Claimant is entitled to the relief as claimed or at all.


Statement of Truth:


The statements above are true to the best of my knowledge and belief.

Is this all in the correct format and have I missed anything.
My exhibits are:
1 & 2 are my letters to them for the CCA & CPR request.
3 Their letter saying they don't have the documents
4 Email correspondence regarding the mediation
5 Claimants direction questionnaire

Thanks in advance:doggieyes: Christine

[R0b]

Re: Possibly statute barred!

I would be inclined just out of curiosity as to what the judge says but insert something along the lines of:

15. In the circumstances, the claimant cannot be held to have formulated the claim without such documents and amounts to an abuse of proceeds. As per Cooke J in Normura International v Granada Group 2007, if a claimant cannot properly formulate the basis of a claim, then the claimant has no business to bring a claim in the hope that something would turn up (see paragraph 37). Cooke J further went on to state that if there is insufficient knowledge to begin the process of putting the particular of claims together, without the need for something to turn up, there is no know valid basis for a claim to be made (see paragraph 48).

16. The Defendant will submit that, at the time of issuing the claim, the Claimant was not, and is still not, in receipt of the said agreement that it relies upon in its particulars of claim.

17. The Defendant submits that the claim should be struck out as an abuse of process.


Thoughts [MENTION=55034]nemesis45[/MENTION], [MENTION=6]Amethyst[/MENTION]?

[nemesis45]

Re: Possibly statute barred!

Morning,

I have now gathered all my paperwork and would appreciate if someone could go over my defence for me?

1: I received the Claim No. B2AL2M0M on December 17 2015


2. The Claimant alleges that I am indebted in the sum of £1378.67 being the amount outstanding under an agreement regulated by the Consumer Credit Act 1974 (“CCA”).


3: The Claimant has not provided me with a copy of the original credit agreement or a compliant reconstituted agreement despite my having sent a formal request under s.78(1) of the CCA, with the statutory payment of £1, to the Claimants, who are defined as the Creditor by virtue of s.189 CCA 1974. Exhibit 1 CCA request letter dated December 18 2015.


4. The Claimant's have sent me a letter dated January 4 2016 stating they are in the process of retrieving the documents requested. The Claimant have so far failed to properly comply with the request made under s.78 (1) and no agreement has been supplied.


5: Therefore by virtue of s.78(6) the Claimant is unable to enforce the agreement whilst their default continues.


6: The Claimants state that the debt was assigned to the Claimant, notice of which has been provided to the defendant. However, they do not state the date that the alleged debt was assigned to them


7. The Claimants are put to strict proof that the alleged debt has been properly assigned. I have not, so far as I recall, received any notice of assignment to the Claimant from Santander Cards Ltd. I have requested a copy of the assignment notice under CPR 31.14 but to date have not received a copy. Exhibit 2 CPR request letter dated December 18 2015.


8. The Claimants state that a default notice has been served pursuant to the Consumer Credit Act 1974


9: The Claimant is also put to strict proof that a compliant Default Notice was served in relation to the alleged agreement pursuant to CCA s. 87 & 88 (1) thus giving right to demand immediate repayment of the sums claimed. I have requested a copy of the default notice under CPR 31.14 but to date have not received a copy.


10. A letter was received from the claimant on January 4 2016. This acknowledged receipt of my letter requesting documents and also informed me that they are in the process of retrieving the documents. Up to now I have not received any documents. Exhibit 3 Letter off claimant dated January 4 2016


11. Mediation was scheduled for March 23rd 2016 but was unable to take place due to the fact I was unable to meet the requirements for mediation as the claimant had not provided the evidence to substantiate their claim. Exhibit 4 Email correspondence. Exhibit 5 Claimants direction questionnaire


12. The case has now been allocated to the Small Claims Track and a hearing scheduled for May 5 2016. However, I have still not received the requested documents from the claimant.


13: I ask, the Court asks the Claimants to provide me with the documents required to enable me to properly assess and plead my defence, and should the documents be provided allow me to amend my defence and ask the claimants to pay the costs of that amendment.


14. It is denied the Claimant is entitled to the relief as claimed or at all.


Statement of Truth:


The statements above are true to the best of my knowledge and belief.

Is this all in the correct format and have I missed anything.
My exhibits are:
1 & 2 are my letters to them for the CCA & CPR request.
3 Their letter saying they don't have the documents
4 Email correspondence regarding the mediation
5 Claimants direction questionnaire

Thanks in advance:doggieyes: Christine

Des has made a good suggestion above well worth considering.

nem

[nemesis45]

Re: Possibly statute barred!

I would be inclined just out of curiosity as to what the judge says but insert something along the lines of:

15. In the circumstances, the claimant cannot be held to have formulated the claim without such documents and amounts to an abuse of process. As per Cooke J in Normura International v Granada Group 2007, if a claimant cannot properly formulate the basis of a claim, then the claimant has no business to bring a claim in the hope that something would turn up (see paragraph 37). Cooke J further went on to state that if there is insufficient knowledge to begin the process of putting the particular of claims together, without the need for something to turn up, there is no know valid basis for a claim to be made (see paragraph 48).

16. The Defendant will submit that, at the time of issuing the claim, the Claimant was not, and is still not, in receipt of the said agreement that it relies upon in its particulars of claim.

17. The Defendant submits that the claim should be struck out as an abuse of process.


Thoughts @nemesis45, @Amethyst?

Nice!!

nem

[Celestine]

Re: Possibly statute barred!

My only comment would be to quote the case law directly:

1. In my judgment, when regard is had to these authorities the key question must always be whether or not, at the time of issuing a Writ, the claimant was in a position properly to identify the essence of the tort or breach of contract complained of and if given appropriate time to marshall what it knew, to formulate Particulars of Claim. If the claimant was not in a position to do so, then the claimant could have no present intention of prosecuting proceedings, since it had no known basis for doing so. Whilst therefore the absence of present intention to prosecute proceedings is not enough to constitute an abuse of process, without the additional absence of known valid grounds for a claim, the latter carries with it, as a matter of necessity, the former. If a claimant cannot do that which is necessary to prosecute the claim by setting out the basis of it, even in a rudimentary way, a claimant has no business to issue a Claim Form at all "in the hope that something may turn up". The effect of issuing a Writ or Claim Form in such circumstances is, so the plaintiff/claimant hopes, to stop the limitation period running and thus deprive the defendant of a potential limitation defence. The plaintiff/claimant thus, unilaterally, by its own action, seeks to achieve for itself an extension of the time allowed by statute for the commencement of an action, even though it is in no position properly to formulate a claim against the relevant defendant. That must, in my judgment, be an abuse of process and one for which there can be no remedy save that of striking out the proceedings so as to deprive the claimant of its putative advantage. The illegitimate benefit hopefully achieved can only be nullified by this means. Whatever powers may be available to the court for other abuses, if this is an abuse, there is only one suitable sanction.
2. The concept, as exemplified by this line of authority, is further reinforced by the terms of CPR 16.2(1) which provides that "the Claim Form must (a) contain a concise statement of the nature of the claim". CPR 22.1(4) provides that the Claim Form must be verified by a statement of truth being "a statement that..the party putting forward the document..believes the facts stated in the document are true"