Hoist/Howard Cohen

[ADDLED]

Re: Hoist/Howard Cohen

Get your defence in for the one that doesn't have the agreement provided firstly as that should be quite straightforward ... Example Defence
The other one that does have the agreement provided ... is that for £9k ?

Hi Amethyst, im not sure about my defence as i dont know if the agreement is legit. Nobody has really commented on it, so im not sure on whgat grounds i can defend myself.
tks
ADD

[Diana M]

Re: Hoist/Howard Cohen

The POC I posted is exactly the same for both claims; bugger all info, no dates, minimal detail.

In which case I (or rather my firm) would have hit them with Part 18 questions right away

Issuing claims with vague or minimal POC can sometimes be deliberate to circumnavigate CPR 31.14.

Di

[ADDLED]

Re: Hoist/Howard Cohen

In which case I (or rather my firm) would have hit them with Part 18 questions right away Di

Ha, im not a lawyer so i dont understand what that means. Could you make it a little more idiot-proof for me?
tks
ADD

[Amethyst]

Re: Hoist/Howard Cohen

Morning Addled,

In my view the POC mentions quite clearly the Agreement, the Default Notice and the Notice of Assignment. Which is plenty.

This is the Statement of Case.

The claim is for the sum of £9k in respect of monies owing under an agreement with the account number XXXXXX pursuant to the CCA 1974.
The debt was legally assigned to MKDP LLP (ex Barclaycard) to the claimant and notice has been served. The defendant has failed to make contractual payments under the terms of the agreement. A default notice has been served upon the defendant..... etc...
the claimant claims
1. The sum of £9k
2. Costs

I think Di is saying that when the Particulars of Claim are so vague (ie not mentioning any documents) that the CPR 31.14 request ( which can only ask for documents disclosed in a statement of case ) wouldn't be very helpful, so a Part 18 Request ( which can ask for additional information to clarify matters in dispute) eg. ask for the full statement of account to show how the amount claimed has been arrived at, and so on, the Date of the breach, date of default, date of assignment and so on. I don't think it is necessary in this case. I don't think Di does either or I'm sure she'd have mentioned it when you were sorting out your CPR 31.14 request and SAR earlier on in the thread, so I really wouldn't worry and concentrate on getting the Defence sorted.

Anyway it is useful to know these things so...

...this is CPR 31.14n ( https://www.justice.gov.uk/courts/pr...s/part31#31.14 )

Documents referred to in statements of case etc.

31.14

(1) A party may inspect a document mentioned in –

(a) a statement of case;

(b) a witness statement;

(c) a witness summary; or

(d) an affidavit(GL).

(e) Revoked.

(2) Subject to rule 35.10(4), a party may apply for an order for inspection of any document mentioned in an expert's report which has not already been disclosed in the proceedings.

(Rule 35.10(4) makes provision in relation to instructions referred to in an expert’s report)

Back to top

...this is Part 18 ( https://www.justice.gov.uk/courts/pr...l/rules/part18 ) ( read the Practice Direction that accompanies Part 18 )

Obtaining further information

18.1

(1) The court may at any time order a party to –

(a) clarify any matter which is in dispute in the proceedings; or

(b) give additional information in relation to any such matter,

whether or not the matter is contained or referred to in a statement of case.

(2) Paragraph (1) is subject to any rule of law to the contrary.

(3) Where the court makes an order under paragraph (1), the party against whom it is made must –

(a) file his response; and

(b) serve it on the other parties,

within the time specified by the court.

[Amethyst]

Re: Hoist/Howard Cohen

Your first defence ( the one without an agreement) has gone in ?

Second defence - with the agreement - they appear to have sent a copy agreement from 2012 and from 2007 - they have different interest rates on. The CCA requires terms at time of opening and updated ( so at closing ) - so could the account have been opened 2007 and defaulted in 2012 ?

They haven't explained what the documents provided are or what they relate to, you don't recognise them and the cover letter referred to details of a case you do not recognise ( ie. the application strike ) so really could be anyones. There's no DN or NoA. No detail of how the sum claimed has been reached and so on.

[Diana M]

Re: Hoist/Howard Cohen

I think Di is saying that when the Particulars of Claim are so vague (ie not mentioning any documents) that the CPR 31.14 request ( which can only ask for documents disclosed in a statement of case ) wouldn't be very helpful, so a Part 18 Request ( which can ask for additional information to clarify matters in dispute) eg. ask for the full statement of account to show how the amount claimed has been arrived at, and so on, the Date of the breach, date of default, date of assignment and so on. I don't think it is necessary in this case.

That wasn't really what I was saying and I also disagree with the bit about Part 18 not being necessary.

It's best summed up in CPR 18.1(b)

Obtaining further information

18.1
(1) The court may at any time order a party to –
(a) clarify any matter which is in dispute in the proceedings; or
(b) give additional information in relation to any such matter,
whether or not the matter is contained or referred to in a statement of case.


Di

[ADDLED]

Re: Hoist/Howard Cohen

Hi all, thanks for your help yesterday and today.
Below is the draft of my defence for the claim that ive had the reconstituted agreement for. i'd be very grateful if you would take a look and let me know if it's good to send over to the CC or needs some amendment.

Also, re the dates on the agreement of 2007/2012; the first, largely blank page of the agreement that shows 'YOUR RIGHT TO CANCEL' is addressed to where i lived from 1995-1998. I left this address 9 years before the first date shown on the agreement. Any comment on this?

tks again!
ADD


In the County Court at
Claim No.
HOIST PORTFOLIO HOLDING 2 LTD : Claimant

and

: Defendant

17th July 2017

-------------------------------------
WITNESS STATEMENT
------------------------------------


I, XXXXXXXXXX of XXXXXXXXXXXXXXXXXXam the Defendant and make this statement in support of my defence in this case;

1. I received the claim on 29^nd April 2017 from the Northampton County Court Business Centre.
2. The Claimant’s claim form fails to adequately set out the nature of the Claim. The Claimant states the claim relates to an agreement with Barclaycard.
3. I believe this to be a credit card account however I do not have any record of the account reference number given.
4. I Acknowledged receipt of the claim via the Moneyclaim Online service on 1^st May 2017.
5. In order to find out more information to enable me to assess my position, on 1^st May 2017 I wrote to the Claimant and the Claimant’s legal representative requesting copies of documents mentioned in their statement of case pursuant to CPR Part 31.14 (EXHIBIT A) These documents being the agreement, default notice and notice of assignment.
6. Additionally, on 1^st May 2017, I sent a formal written request to the Claimant requesting a copy of the original credit agreement pursuant to section 78 of the Consumer Credit Act 1974 (EXHIBIT B).
7. On 29^th June 2017 I received a letter from the claimant’s solicitor enclosing a “reconstituted agreement”.
8. The reconstituted agreement shows dates of 2007 and also 2012. The claim makes no reference to the date the agreement was taken out or terminated, therefore it is not possible to verify if this document is valid and related to the claim in any way. Accordingly, I dispute the claimant’s assertion that these terms, that the Claimant is relying on in evidence, are the document that was “supplied at the outset”,

1. Therefore the Claimant has not provided a copy of the executed agreement and so has failed to comply with s78 (1) Consumer Credit Act 1974 and by virtue of s78 (6) Consumer Credit Act 1974 and is not entitled to enforce the agreement.
2. The claimant has also failed to provide a copy of any default notice or Notice of Assignment to prove that they have the legal authority to pursue this alleged debt.

APPENDIX:

EXHIBIT A – Copy letter to claimant requesting copies of documents mentioned in their statement of case pursuant to CPR Part 31.14.
EXHIBIT B – Copy letter to claimant requesting a copy of the original credit agreement pursuant to section 78 of the Consumer Credit Act 1974.
EXHIBIT C – Proof of ’Recorded Delivery’ postage.



Statement of Truth

I, XXXXXXX, believe the facts stated in this Witness Statement are true.

Signed :
Dated : 17^th July 2017

[warwick65]

Re: Hoist/Howard Cohen

Hi Addled

I can not see any draft defence

It really is important to get those defences in asap

I see Amethyst says the terms and conditions are from 2007 and 2012 but you say the address on the form is from 1998.

If those T&C's dates are correct yes it is very important - I didn't think they made those sort of school boy errors anymore . Problem is, if it is a recon they can be corrected , you need to get them to somehow sign their life away on that

[Amethyst]

Re: Hoist/Howard Cohen

Oh really ? Is there any chance in your mind that the account was originally opened in 1995/1998 ? Potentially originally an Egg card originally ? or are you 100% it originated as a barclaycard ? ( If it was they have problems anyway as the agreement is either 2007 or 2012 - certainly post 2006 as the default charges are £12 )


It should be Defence not Witness Statement...( so no exhibits at this point) ..... this one is for the claim with the Agreement copy isn't it ? Maybe do the more straightforward one ( without the agreement ) first, using the example as a guide xxx

[ADDLED]

Re: Hoist/Howard Cohen

Hi Addled
I can not see any draft defence

My witness staement is my defence, its on the post above yours.
ADD

- - - Updated - - -

Oh really ? Is there any chance in your mind that the account was originally opened in 1995/1998 ? Potentially originally an Egg card originally ? or are you 100% it originated as a barclaycard ? ( If it was they have problems anyway as the agreement is either 2007 or 2012 - certainly post 2006 as the default charges are £12 )

100% sure its B/card


It should be Defence not Witness Statement...( so no exhibits at this point) ..... this one is for the claim with the Agreement copy isn't it ? Maybe do the more straightforward one ( without the agreement ) first, using the example as a guide xxx

Ah, okay; redrafted below

tks!
ADD

[warwick65]

Re: Hoist/Howard Cohen

My witness staement is my defence, its on the post above yours.
ADD



- - - Updated - - -



tks!
ADD

Must have been a glitch because it didn't show up

However as Amethyst says it is a defence you need without exhibts not a witness statement

With all due respect , every hour you leave it without submitting your defence leaves you wide open to a default judgement

[ADDLED]

Re: Hoist/Howard Cohen

Is this one any better?
tks
ADD


In the County Court at
Claim No.
HOIST PORTFOLIO HOLDING 2 LTD : Claimant

and

: Defendant

17th July 2017

-------------------------------------
DEFENCE
------------------------------------

I, XXXXXXXXXX of XXXXXXXXXXXXXXXXXXam the Defendant and make this statement in support of my defence in this case;

1. I received the claim on 29^nd April 2017 from the Northampton County Court Business Centre.
2. The Claimant’s claim form fails to adequately set out the nature of the Claim. The Claimant states the claim relates to an agreement with Barclaycard.
3. I believe this to be a credit card account however I do not have any record of the account reference number given.
4. I Acknowledged receipt of the claim via the Moneyclaim Online service on 1^st May 2017.
5. In order to find out more information to enable me to assess my position, on 1^st May 2017 I wrote to the Claimant and the Claimant’s legal representative requesting copies of documents mentioned in their statement of case pursuant to CPR Part 31.14 These documents being the agreement, default notice and notice of assignment.
6. Additionally, on 1^st May 2017, I sent a formal written request to the Claimant requesting a copy of the original credit agreement pursuant to section 78 of the Consumer Credit Act 1974.
7. On 29^th June 2017 I received a letter from the claimant’s solicitor enclosing a “reconstituted agreement”.
8. The reconstituted agreement shows dates of 2007 and also 2012. The claim makes no reference to the date the agreement was taken out or terminated, therefore it is not possible to verify if this document is valid and related to the claim in any way. Accordingly, I dispute the claimant’s assertion that these terms, that the Claimant is relying on in evidence, are the document that was “supplied at the outset”.

1. The document mentions default charges of £12. This charge was introduced in 2006.
2. Therefore the Claimant has not provided a copy of the executed agreement and so has failed to comply with s78 (1) Consumer Credit Act 1974 and by virtue of s78 (6) Consumer Credit Act 1974 and is not entitled to enforce the agreement.
3. The claimant has also failed to provide a copy of any default notice or Notice of Assignment to prove that they have the legal authority to pursue this alleged debt.
4. I humbly request the court strike out the claim.

Statement of Truth

I, XXXXXXX, believe the facts stated in this Witness Statement are true.

Signed :
Dated : 17^th July 2017

[ADDLED]

Re: Hoist/Howard Cohen

And the 2nd one that i've had no agreement for;


In the County Court at
Claim No.
HOIST PORTFOLIO HOLDING 2 LTD : Claimant

and

: Defendant

17th July 2017

-------------------------------------
DEFENCE
------------------------------------


I, XXXXXXXXXX of XXXXXXXXXXXXXXXXXXam the Defendant and make this statement in support of my defence in this case;

1. I received the claim on 29^nd April 2017 from the Northampton County Court Business Centre.
2. The Claimant’s claim form fails to adequately set out the nature of the Claim. The Claimant states the claim relates to an agreement with Barclaycard.
3. I believe this to be a credit card account however I do not have any record of the account reference number given.
4. I Acknowledged receipt of the claim via the Moneyclaim Online service on 1^st May 2017.
5. In order to find out more information to enable me to assess my position, on 1^st May 2017 I wrote to the Claimant and the Claimant’s legal representative requesting copies of documents mentioned in their statement of case pursuant to CPR Part 31.14 These documents being the agreement, default notice and notice of assignment.
6. Additionally, on 1^st May 2017, I sent a formal written request to the Claimant requesting a copy of the original credit agreement pursuant to section 78 of the Consumer Credit Act 1974.

1. To date I have not received a copy of any agreement, Notice of Assignment, default Notice.
2. Therefore the Claimant has not provided a copy of the executed agreement and so has failed to comply with s78 (1) Consumer Credit Act 1974 and by virtue of s78 (6) Consumer Credit Act 1974 and is not entitled to enforce the agreement.
3. I humbly request the court strike out the claim.

Statement of Truth

I, XXXXXXX, believe the facts stated in this Witness Statement are true.

Signed :
Dated : 17^th July 2017

[warwick65]

Re: Hoist/Howard Cohen

Hi

If I were you |i would have used the template defences at the top of the forum

http://legalbeagles.info/library/gui...-court-claims/

Also in the first defence you have pretty much handed them a fixit list on a plate - they can remedy the CCA failures easily- there are plenty of cases where the CCA request has only been finally complied with a few days before court. In one case I know of it was on the day of court

I do not want to get involved in other technicalities

[pt2537]

Re: Hoist/Howard Cohen

I note the Claim is £9k, thus it is likely to be allocated to the small claims track unless you can argue per CPR 26.8 that on complexity the Claim should be fast track, however if the case is small claims then you may have a slight difficulty with a part 18 request because CPR 27 is clear as to what parts apply to small claims track cases

Extent to which other Parts apply

27.2
(1) The following Parts of these Rules do not apply to small claims –
(a) Part 25 (interim remedies) except as it relates to interim injunctions^(GL);
(b) Part 31 (disclosure and inspection);
(c) Part 32 (evidence) except rule 32.1 (power of court to control evidence);
(d) Part 33 (miscellaneous rules about evidence);
(e) Part 35 (experts and assessors) except rules 35.1 (duty to restrict expert evidence), 35.3 (experts – overriding duty to the court), 35.7 (court’s power to direct that evidence is to be given by single joint expert) and 35.8 (instructions to a single joint expert);
(f) Subject to paragraph (3), Part 18 (further information);
(g) Part 36 (offers to settle); and
(h) Part 39 (hearings) except rule 39.2 (general rule– hearing to be in public).
(2) The other Parts of these Rules apply to small claims except to the extent that a rule limits such application.
(3) The court of its own initiative may order a party to provide further information if it considers it appropriate to do so.

If you did make an application under rule 18 the opponents may oppose on that basis, so its a tricky one

that being said, i see no reason why you couldnt simply ask for further information from the opponent, the CPR provides a cards on the table approach so the Claimant should provide you with the information you need and the documents too