Nationwide CCA Court Hearing v Jax

[pt2537]

Re: Nationwide CCA Court Hearing v Jax

Thanx hun - do you know at what point he offered/they suggested this figure?



Thanx for your opinion and advice Paul anyway - I'll take a view and think about it over the weekend but I guess I'll have to concede defeat on this one!

Jax,

defeat is not a word i have become acquainted with that much thankfully, i think there are only 3 cases where we have been unsuccessful.

I think you ought to look at the situation and see the advice of the CLS or Pro bono department.

It would give you a darn good fighting chance or at least assist in settlement if that is what you wanted to do

Pro Bono, by its very name is free legal assistance from a barrister so its worth loooking at surely?

to just throw the towel is silly in my opinion, unless you have had a legal opinion that says you dont have a case, which i dont think you have had have you?

[Angry Cat]

Re: Nationwide CCA Court Hearing v Jax

Agree with PT on this!
Why consider giving up before you have obtained Counsels opinion?

[Amethyst]

Re: Nationwide CCA Court Hearing v Jax

He offered after they submitted their revised POC following the new Default Notice (as ordered by the court). Just before his revised defence was due in.

[jax007]

Re: Nationwide CCA Court Hearing v Jax

I think you ought to look at the situation and see the advice of the CLS or Pro bono department.

Thanks PT - this is encouraging - but where would I go to get this sort of advice.

Problem is now - the WS has to be in by tomorrow so that doesn't leave me with a whole load of time now!!

I normally would not have the word 'defeat' in my vocabulary but I really do need to submit some form of WS by tomorrow if I am to buy myself some time.

NW have already admitted that they can't locate original agreement - yes they have provided the signed application/agreement with no prescribed terms whatsoever but have produced a recon document of T&Cs (inc PTs) stating it was on the back of the application form - in all honesty I don't remember that being the case, but how can they prove it ......... or maybe they don't have to, they just have to swear to it and it's accepted??? I don't know.

I'm at a bit of a loss now - yes, I would like to fight this if I have a case but time is not on my side right now!

[jax007]

Re: Nationwide CCA Court Hearing v Jax

Ok ... just moving on from the above post and having read thru a few other threads - this is what I feel I have in my hand at the moment.

I am considering whipping in a WS and sending by fax by tomorrow afternoon - even if , at worst, they come back and offer some form of settlement.

In my WS I am looking to include the following points ..........

1.

ok not sure if this has been raised, i havent had time to scrutinise the thread, however, a party amending its pleadings, is liable for the costs of the party who has to amend either their defence or claim as a result.

So, Eversheds client will be liable for any of your costs as a result of their amendment.

Does this apply to their own costs too? Are they liable for those or only mine?
They are applying for costs.

2.

The question arises whether the printed standard form conditions on the reverse became terms of the contract. This question of reasonable sufficiency of notice has often been considered by the courts. See Chitty 12-008 - 12-015. Where terms and conditions are on the reverse but there is no adequate notice of that fact on the front then the courts have consistently said that the terms are not incorporated. See the 3 cases cited at para.5(b)(iii) p26 and the Chitty extract.
It is true, however, that in a signed document, there can be incorporation of terms 'by reference' and in this regard the Claimant relies on the declaration that the terms had been received (para.5.2 p36). This does not get round the problem, however, as the rules on incorporation by reference require information as to where those terms are to be found - see e.g. Common Law Series: The Law of Contract 3.17:
"However, the more commonly arising situation is where that other party has no knowledge of the content of the terms and may not even be aware of their existence. Where there is no knowledge of the content or existence of the terms, the basic test for their incorporation is whether the proferens provided 'reasonably sufficient' notice of the terms3. This generally need only relate to their existence and the proferens intent to use them as terms of the contract. This means that when notice is provided the terms themselves need not normally be included, but merely a reference to them and the place where they may be found4

4 Thompson v London, Midland and Scottish Rly Co [1930] 1 KB 41; Smith v South Wales Switchgear Ltd [1978] 1 WLR 165; Circle Freight Ltd International Ltd v Medeast Gulf Exports Ltd [1988] 2 Lloyd's Rep 427; Poseidon v Davies Turner [1996] 2 Lloyd's Rep 388 at 392–3.

Read more at: Terms printed on the reverse of the Agreement - Legal Beagles Consumer Forum

There is no reference on the signature page on my agreement to any T&Cs, prescribed terms


3. Eversheds have not provided a Disclosure List and therefore I have been unable to request inspection of original CCA


4. Eversheds issue of a 'new' DN implies there was a 'previous' DN but one was never received nor has been referred to by Eversheds (not sure whether this a a relevant point??)


5.

on reading post 4 and 5 i cannot see the part of the recon doc that deals with "USE OF YOUR INFORMATION"

So, one questions if these are the terms that applied

There is NO part of the recon doc that deals with “USE OF YOUR INFORMATION” but why should it be? Yes – it mentions it on the signed application – and if it HAS to be on the recon doc then as you say, it is not a true copy of the original.

Is this something I can add in my WS??

What I want to be wary of, of course, is that I will be accused of using the WS as a means of amending my defence – although I am just stating facts.

What is your opinion on this please?

If all the above can go in the WS, then I have a fighting chance of getting one created and sent off – and see what Eversheds come back with.

Any thoughts anyone?

[Amethyst]

Re: Nationwide CCA Court Hearing v Jax

I'm sure PT or someone will respond later but from my point of view;

Ref the Use of Information - it mentions that you have read it on the signed page of the agreement and IT IS ON signed page of the agreement, so I don't know why everyone thinks it needs to be in the recon as well ? Its there, on the signature page, you typed it out.

The costs ref the amendment - its only costs following directly on from their amendment (so the cost of you submitting a new defence to respond to their amendment - and of course their costs of submitting the amendment application etc) so don'[t get caught up thinking if you lose they have to pay the costs anyway because of the amendment.

I'm sure on the agreement it states the NW credit card terms and conditions ..and we've been through it...ref on the back being the prescribed terms and them being reiterated in the leaflet that says on the front (your copy to keep).( Legal Beagles Consumer Forum - View Single Post - Nationwide CCA Court Hearing v Jax ), so there may be an argument it doesnt say exactly where those terms are (overleaf/attached/in the leaflet) but really thats the only argument I can see and I dont think it is a very strong one.

b) I am asking you to issue me with a Credit Card and that your conditions, which I have read, will apply

and couple sentences later

I have the read the terms and conditions

[jax007]

Re: Nationwide CCA Court Hearing v Jax

Thanx Ames - that all makes sense - I just really want to get in a WS (have to be by fax as today is deadline!!) just to keep things current.

As I said, at worst, I am hoping they may offer a settlement deal??? Who knows?

But if I don't get this WS in today then it's game over anyway!

Ta hun
xx

[jax007]

Re: Nationwide CCA Court Hearing v Jax

Ames - is there a link for the Nationwide v Ricky thread please? I've searched and can't find it!

Ta x

[Amethyst]

Re: Nationwide CCA Court Hearing v Jax

Advice on Defence against Nationwide! - Legal Beagles Consumer Forum

[Amethyst]

Re: Nationwide CCA Court Hearing v Jax

Urgent Advice needed for court case please - Legal Beagles Consumer Forum

another nationwide case.

[jax007]

Re: Nationwide CCA Court Hearing v Jax

Thanks for these links Ames xx

I have spent the best part of today trying to conjure up a WS but I am getting more and more out of my depth - I have now realized this is not something that can be done in one afternoon!!!

I don't really understand the legal arguments and the only two points I can come up with (I think) are 1) that the signed document does NOT make any reference to prescribed terms or where they can be found and 2) that an ORIGINAL must be available for a court hearing (can't remember where this is stated)

I have also read loads of threads and other pieces of information collated over the last couple of years and I really am struggling to create any form of what I would consider an acceptable Witness Statement.

Having said all this, I have now missed the deadline (4pm today) to submit said WS anyway and so there really is no going back.

Eversheds will jump on me by Monday hopping and bopping to this fact.

I would also add that over the best part of this year I have been under huge stress and ill-health (without elaborating but Ames is aware of this) and this is causing me more hassle than I need at the present time. I am not a defeatist by any stretch of the imagination - in fact, the absolute opposite, especially when I know my stuff, but in this case I don't!

I don't want to end up in Court and get tied up in knots because I don't know one Section from another, can't quote case law ,etc.

Therefore the advice I need now is, what do I do? Do I just write a letter (Without Prejudice??) to Eversheds and point out the errors of their ways anyway but that I am withdrawing from the claim?

And send another to the Court stating this fact?

Help and advice would be appreciated.

Thanks for all that has already been given.

[pt2537]

Re: Nationwide CCA Court Hearing v Jax

jax,

Sorry ive been in the court of appeal today, so this is the first chance ive had to post really.

You can speak to your opponents and agree an extension of time for filing the witness statement. If you explain you are looking at seeking pro bono assistance or such then they may be receptive.

If not then you can apply on an N244 to extend the deadlines


as for the Court of appeal case, sigh no judgment, we didnt even get into court, its been adjourned to the new year

[jax007]

Re: Nationwide CCA Court Hearing v Jax

You can speak to your opponents and agree an extension of time for filing the witness statement. If you explain you are looking at seeking pro bono assistance or such then they may be receptive.

I can try but I can't see them agreeing - but can they agree or is it varying the court order??!!

If I do submit a WS (which I have to say having attempted it today makes me realize what a mess I am making of it) and then subsequently withdraw am I putting myself in jeopardy??

I really am not conversant enough to be able to argue this as LiP as much as I would like to - and, as per my last post, do you really think those 2 'arguments' are strong to nail myself a win??? They really are the only two I have.

I understand your recommendation on pro bono assistance but due to daily medical treatment which continues until at least mid January, I am not in a position to definitely be able to follow this particular action through at the current time - not ducking out

as for the Court of appeal case, sigh no judgment, we didnt even get into court, its been adjourned to the new year

Sorry to hear that

[Amethyst]

Re: Nationwide CCA Court Hearing v Jax

It is completely up to you Jax, I would seriously be looking at an offer rather than plugging away with this when there is, by your own admission, an extremely slim chance of winning, and an awful lot of stress involved. Theres probably already costs, and these will just increase the further along you go. It isn't an easy task for a LIP by any means. Often it takes writing your case down, trying to get it into an arguable case for court in your defence/witness statement, to realise that there isnt actually much of a case, so don't feel bad for falling at this hurdle. You have much more important things to be dealing with, and I really would go in with a change to admission (defend any ridiculous charges) and offer to pay by monthly installlments. I believe its reasonable to do so, process wise, following their amended claim. But again, that's just me caring about you. If I thought you had a case I'd help you as much as I could, but I just don't, so I can't push you into court, pro bono assistance or not. Nothing I can see has changed since my post #13 in September.

If PT thinks different and can help you then its completely up to you whether you go that route or not, but I am seriously concerned for you, costs and stress wise, if you continue as you are/have been doing.

[jax007]

Re: Nationwide CCA Court Hearing v Jax

Bless you x
------------------------------- merged -------------------------------
Do you think I should do a 'Without Prejudice' letter to Eversheds only and see what they come back with??

xx