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Re: Arrow(Restons) Credit Card Claim - think statute barred
This will be the witness statement to go with N244 and Order
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IN THE NORTHAMPTON COUNTY COURT
Claim No.xxxxxxx
BETWEEN:
ARROW GLOBAL LTD
Claimant
- and –
SIMON xx
Defendant
_______________________________
Witness Statement
_________________________________
I SIMON xx of xxxxxxxxxxbeing the Defendant in this case will state as follows;
1. I make this Witness Statement in support of the application for an order that the Claimant do provide copies of documents pursuant to CPR 31.14.
2: CPR rule 31.14 states
(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
The Defendant is therefore entitled to inspect copies of the CONTRACT /Credit Agreement, and the notice of assignment, as well as the formal demand, statement of account, as well as any other documentation the Claimant intends to rely on.
3. On 16/08/2016 I made a written request to the Claimant solicitors requesting that the Claimant provides copies of all documents mentioned in the statement of case.[EXHIBIT A] I also sought an extension of time for filing my defence to the Claim in accordance with CPR 15.5., as a defence could not be filed until the requested disclosure had been received from Claimant
4. The Claimants claim is based upon the Defendants alleged breach of contract and therefore the contract is entirely central to the Claimants case.
5. CPR Rule 31.15 requires that documents are provided within 7 days from receipt of a written request. The Claimant has failed to provide any of the documents mentioned in its claim form, and in fact refused to do so in writing.
7. On 22 /8/16, I contacted the Claimants a second time and repeated my request for copies of documents pursuant to CPR 31.14.[EXHIBIT B] I also sought an extension of time for filing my defence to the Claim in accordance with CPR 15.5.
8. The Claimant has mentioned a contract, and the assignment in its Statement of Case and yet it has provided none of these documents despite my entitlement to inspect these documents.
9. I refer to the ruling of Rix LJ in Expandable v Rubin [2008] EWCA Civ 59 (at paragraph 24)
“The general ethos of the CPR is for a more cards on the table approach to litigation. If a party thinks it worthwhile to mention a document in his pleadings, witness statements or affidavits, I do not see why, subject as I say to the question of privilege, the court should put difficulties in the way of inspection. I look upon the mention of a document in pleadings etc as a form of disclosure. The document in question has not been disclosed by list, or at any rate not yet, but it has been disclosed by mention in what, for the purposes of litigation, is another important and formal category of documents. If so, then the party deploying that document by its mention should in principle be prepared to be required to permit its inspection, and the other party should be entitled to its inspection.”
10. I also refer to the ruling of the Court of Appeal in Mitchell v News Group Newspaper [2013] EWCA Civ 1537 where the court set down clear guidance that the rules must be complied with (see para 41). This application could have been avoided had the Claimant complied with its duties under the CPR.
11. The Claimants pleaded case is that the Defendant entered into an agreement with Sainsburys Bank PLC under account reference 5286849130589165. I am uncertain as to which account this refers to. It is accepted that I have had banking products with Sainsburys Bank PLC in the past however this was over 6 years ago, and have little reference to these matters. Therefore it is essential that I have sight of the contract and/or agreement relied upon by the Claimant to be able to accurately identify to what the claim refers. Notwithstanding this, I am unable to consider whether such agreement complies with the statutory provisions of the Consumer Credit Act 1974 until such time as a copy is provided.
10. Furthermore the Claimants fail to mention a Default Notice, which must be issued correctly subject to Consumer Credit Act 1974. I am unable to consider whether such Default Notice(if indeed ever issued) complies with the statutory provisions of the Consumer Credit Act 1974 until such time as a copy is provided. The Act sets out clear form and content requirement, which, if not complied with, render the Claimant unable to enforce the agreement as per HHJ Chambers QC in Harrison v Link Financial Ltd [2011]
12. I therefore ask that the Court grants an extension of time to file my Defence and orders the Claimant to provide copies of the documents mentioned in its statement of case. I would also ask the Court to order the Claimants pay the costs of this application, and applicants fees of £65, which could have been avoided had the Claimants complied with CPR initially, which any legally trained representation should of done.
13. If any hearing is required/requested, then I request it be at Newcastle County Court, the nearest court to the Defendant
Statement of Truth
I, SIMON xx, the Defendant, believe the facts stated within this Witness Statement to be true.
Signed: ________________________________
Dated:
This will be the witness statement to go with N244 and Order
--
IN THE NORTHAMPTON COUNTY COURT
Claim No.xxxxxxx
BETWEEN:
ARROW GLOBAL LTD
Claimant
- and –
SIMON xx
Defendant
_______________________________
Witness Statement
_________________________________
I SIMON xx of xxxxxxxxxxbeing the Defendant in this case will state as follows;
1. I make this Witness Statement in support of the application for an order that the Claimant do provide copies of documents pursuant to CPR 31.14.
2: CPR rule 31.14 states
(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
The Defendant is therefore entitled to inspect copies of the CONTRACT /Credit Agreement, and the notice of assignment, as well as the formal demand, statement of account, as well as any other documentation the Claimant intends to rely on.
3. On 16/08/2016 I made a written request to the Claimant solicitors requesting that the Claimant provides copies of all documents mentioned in the statement of case.[EXHIBIT A] I also sought an extension of time for filing my defence to the Claim in accordance with CPR 15.5., as a defence could not be filed until the requested disclosure had been received from Claimant
4. The Claimants claim is based upon the Defendants alleged breach of contract and therefore the contract is entirely central to the Claimants case.
5. CPR Rule 31.15 requires that documents are provided within 7 days from receipt of a written request. The Claimant has failed to provide any of the documents mentioned in its claim form, and in fact refused to do so in writing.
7. On 22 /8/16, I contacted the Claimants a second time and repeated my request for copies of documents pursuant to CPR 31.14.[EXHIBIT B] I also sought an extension of time for filing my defence to the Claim in accordance with CPR 15.5.
8. The Claimant has mentioned a contract, and the assignment in its Statement of Case and yet it has provided none of these documents despite my entitlement to inspect these documents.
9. I refer to the ruling of Rix LJ in Expandable v Rubin [2008] EWCA Civ 59 (at paragraph 24)
“The general ethos of the CPR is for a more cards on the table approach to litigation. If a party thinks it worthwhile to mention a document in his pleadings, witness statements or affidavits, I do not see why, subject as I say to the question of privilege, the court should put difficulties in the way of inspection. I look upon the mention of a document in pleadings etc as a form of disclosure. The document in question has not been disclosed by list, or at any rate not yet, but it has been disclosed by mention in what, for the purposes of litigation, is another important and formal category of documents. If so, then the party deploying that document by its mention should in principle be prepared to be required to permit its inspection, and the other party should be entitled to its inspection.”
10. I also refer to the ruling of the Court of Appeal in Mitchell v News Group Newspaper [2013] EWCA Civ 1537 where the court set down clear guidance that the rules must be complied with (see para 41). This application could have been avoided had the Claimant complied with its duties under the CPR.
11. The Claimants pleaded case is that the Defendant entered into an agreement with Sainsburys Bank PLC under account reference 5286849130589165. I am uncertain as to which account this refers to. It is accepted that I have had banking products with Sainsburys Bank PLC in the past however this was over 6 years ago, and have little reference to these matters. Therefore it is essential that I have sight of the contract and/or agreement relied upon by the Claimant to be able to accurately identify to what the claim refers. Notwithstanding this, I am unable to consider whether such agreement complies with the statutory provisions of the Consumer Credit Act 1974 until such time as a copy is provided.
10. Furthermore the Claimants fail to mention a Default Notice, which must be issued correctly subject to Consumer Credit Act 1974. I am unable to consider whether such Default Notice(if indeed ever issued) complies with the statutory provisions of the Consumer Credit Act 1974 until such time as a copy is provided. The Act sets out clear form and content requirement, which, if not complied with, render the Claimant unable to enforce the agreement as per HHJ Chambers QC in Harrison v Link Financial Ltd [2011]
12. I therefore ask that the Court grants an extension of time to file my Defence and orders the Claimant to provide copies of the documents mentioned in its statement of case. I would also ask the Court to order the Claimants pay the costs of this application, and applicants fees of £65, which could have been avoided had the Claimants complied with CPR initially, which any legally trained representation should of done.
13. If any hearing is required/requested, then I request it be at Newcastle County Court, the nearest court to the Defendant
Statement of Truth
I, SIMON xx, the Defendant, believe the facts stated within this Witness Statement to be true.
Signed: ________________________________
Dated:
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