DCA wins judgment using Carey but not having an agreement

[Kafka]

This is a current case at PC where a DCA called Optima Legal was trying to enforce an agreement that they did not have. Despite failing to get Summary Judgment once already, they succeeded in this yesterday after producing a new Witness Statement during the hearing.

The judge accepted that they had produced a valid enough agreement although they did not and this seems to be a case of a successful misuse of the Carey judgment to fool a court into thinking that it applies to legal proceedings, when it clearly did not. The member seems to have done well in the circumstances, but has only posted fuller details of the hearing today. We will be looking at appealing this shameful judgment when the full details are to hand. Given the way that banks/DCAs are trying to misuse the Carey case I thought this would be of wide interest, as I expect others will try to emulate this now. If there is interest, I will update this thread for you.
Penalty Charges Forum

[pompeyfaith]

Re: DCA wins judgment using Carey but not having an agreement

Yup this case is one im following closely as i had the the pleasure(not) of having to deal with this bunch of sols

in my case they made many errors including putting an altered copy of a DN in the trial bundle.

This chap is appealing and I will be going to the next hearing.

[Curlyben]

Re: DCA wins judgment using Carey but not having an agreement

Words fail me,(spolling as well) but this does appear to be Optima's MO all over.

[pompeyfaith]

Re: DCA wins judgment using Carey but not having an agreement

Indeed curly tell me about it a 2 bid firm of sols that call them selfs a top 100 law firm lol

[Differentjudge]

Re: DCA wins judgment using Carey but not having an agreement

I ahve read the thread on CAF

This is what he wrote the day after the hearing

"So below I will try and explain to you all what happened yesterday. As this was a Summary Judgement hearing it was down to the possibility of me being able to satisfy the judge I had the prospect of defending their claim and not necessarily defending during this hearing.


Counsel for Optima began to state their case as to why they felt I had no possibility of defending their claim


Eventually it came around to the Terms & Conditions. Their counsel argued that the T&C's were from 1997 even though they had charges for £12.00 for late payments.


Although my witness statement had pointed out that it was after the OFT intervention and their recommendation in 2006 this level of charges was introduced. Therefore the T&C's must be after 2006


Their explanation was that There were also charges on the T&C's that were for £15.00 so if these T&C's were post 2006 all charges would be £12.00.


The judge was not entirely convinced by this and told their counsel that although they had said in a witness statement these were the T&C's , I had stated in my T&C's that they were not. And he need positive proof from either of us to prove our case


I think the whole case was hinging on the point of the T&C's being those which were from the time of the agreement. (refer to Lynne Thorious judgement)


I think at this moment in time they had not satisfied the judge


Suddenly the counsel produces from her case a supplimentary witness statement and asked that it be admitted as it had further proof that the T&C's were from 1997.


The judge asked for the witness statement. Said that he would have a photocopy made and that I could have 15 minutes to read them and then he would invite me to give him any reasons as to why this statement should not be included in the hearing. While I was reading the Witness statement he would also read a copy to save time.


You can imagine that this 15 minutes felt like a lifetime. I am an Litigant in person and I have 15 minutes to come up with an argument as to why it should not be admitted, then also prepare myself just in case it is. So I have to read it, digest it and come up with a defence to it also


We came back into the hearing, I pointed out that to introduce new evidence during the hearing was an abuse of process and that the witness statement did not prove anything new.


The judge decided that it would be included.


I think that after reading it he had made up his mind that it supported their claim that the T&C's were those that were with the agreement in 1997.


The witness statement was by Dianne Powell. It discussed the process for obtaining a reconstituted agreement it situations that the original could not be found. Attached were exhibits. 3 photocopies of other peoples agreements from September 1997 with the financial terms on the back page. Also there was I set of T&C's identical to those which had previously been submitted with the court bundle

The witness statement was dated 16th September 2010 . At the top of the page it showed that it had been faxed at 8.33am that morning. Althogh the witness statement was New evidence, ther was nothing new with in it that had come to light as this process has been going on for over 2 years

Counsel for the claimant concluded their case.

I then began with my statement to the court.

My points were that this was nothing to do with S77/78 or anything to do with carey. I pointed to the Waksman judgement and his introduction. The judge said that he was well aware of the Carey case and he did not to see the judgement as he had a copy of the summary (1 page )


I raised the issue of the T&C's and the new witness statement and its attached exhibits.


Although the photcopies of the other peoples were from 1997 the T&C's had no unique source codes or date identifiers to link them to the agreements.

I also pointed to my exhibits in the bundle which was a credit card statement that had a charge of £25.00 for a late payment. So either they had made that charge in breach of the T&C's or the T&C's were not those of 1997


The judge did not even turn to the page in the bundle to look at it.


I think he had already made his mind up.


I continued to discuss the contradicting witness statements. There were questions that needed answering and this was a compelling reason for not having a summary judgement . The witness had already been summonsed to appear at a full hearing ,


I went on to point out that optima had been obstructive and not complied with various CPR's or orders of the judge.


The judge stopped me at this point and said that he did not want to hear about these issues, they were not relevant.


As I continued to present my case, I looked at the judge , he looked totally disinterested. In my mind I was thinking to myself “am I keeping you up” . I had to bite my lip to stop myself from saying it.


I laboured on the point that this was not S77/78. The claimant had made the claim it was their case to prove and provide to the court a properly executed agreement as per s60/61


The judge in his summing up said that a reconstituted agreement was sufficient to satisfy S60/61 otherwise why have a process for reconstituting agreements when the lenders could just send a photocopy of the agreement to any one asking for it under S77/78. So reconstituted agreemnts were definaitely acceptable


After the judge summed up I asked if he would write to me and explain his reasons for his judgement. He said that it had all been recorded and that I could arrange to have a transcript


so there you have it"

any one have any views.....would this person have grounds for an appeal?

if so on what grounds??

[Kafka]

Re: DCA wins judgment using Carey but not having an agreement

There is also an interesting twist on the CAG thread regarding Optima's desperation to win this one or lose their MBNA contract. By Langster and I don't know the person.

Slevin V Mbna

#165


I didn't realise it was actually after the hearing had started that they produced the statement! I was told that it was before the hearing or at least that was supposed to be the plan according to the chat in the office this morning.

They could have had the decency to hand this to you before you went into the hearing.

My source tells me that for Optima it was a case of "win this or you are out" as far as the relationship with MBNAautolinker.com autolinking image went. Aparrently they'd been disinstructed and had to do some work to restore the relationship previously and that some sort of ultimatum had been given especially in the wake of Thorius, Pompeyfaith etc. MBNA did not want Ms Powell to go in the witness box at all costs and that if today had gone against them you'd be looking at some sort of deal to get them out of the *****.

What happened today was a scandal quite frankly. They'd obviously had a bit of a conflab and decided that the w/s should be held up the sleeve and only used if it looked like there was a prospect of the case going against them. Desperate times call for desperate measures etc etc. They clearly took a calculated gamble that it would have been worth them incurring the judges displeasure as long as he allowed the Statement to be admitted. The thing is, how can it be fair to raise new evidence for the first time AFTER the hearing has started? This is akin to the judicial system of some tin pot dictator out there somewhere, not one of the finest legal systems in the world.

I understand that somebody from Optima was present at the hearing too which, to say it was in Coventry - hardly local and was not a full trial shows you how much winning this meant to them today. It's highly unusual that they would have allowed one of their staff to actually travel all that way for a supposedly bread and butter - open and shut application. I think that this tells its own story of the cases unsuitability for summary judgment and just how frightened of the consequences of losing the case Optima and MBNA were.

They have driven a coach and horses through the CPR and the practice direction to part 24 CPR. It's an absolutely fundamental principle that all of the evidence has to be served and that the evidence in response to your statement should have been served not less than 3 clear days before the hearing - NOT 40 minutes after the hearing had started! What the hell was the judge thinking of?

Then to put you on the spot like that in the pressured environment of the hearing and to ask you to come up with a reasoned argument why it should not have been allowed was an utter disgrace. The judge should have given them short shrift and told them to go to hell! All the more so as you are a Litigant in Person.

It sounds to me as if the Judge clearly used the Summary Judgment application to conduct a mini trial. This is a complete abuse of process and is contrary to Case Law which makes clear that the SJ process is not supposed to be an excuse for a trial to be conducted.

This whole thing stinks! Even before we have focussed on any of the evidential issues. The rotten stench of injustice is all over this judgment today.

Appeal and report them (Optima) to the SRA. You were totally denied justice and this was deliberate and calculated.

What was the date on the witness statement by the way?

[Differentjudge]

Re: DCA wins judgment using Carey but not having an agreement

Langster is genuine and has been a good source for advice and information onCAG

[Amethyst]

Re: DCA wins judgment using Carey but not having an agreement

First post from PC
'' they attached a barely readable PARTIAL copy of the original agreement and a copy of the CURRENT terms and conditions''

Which was actually the front and reverse of the agreement. Its only 3 inches because the orignal was only a small thing anyway.

Front is the name/address, and some of the prescribed terms, rest of prescribed terms on the back on that....and links to other terms (non prescribed) in another seperate document. Have a read of Pauls thread (also MBNA and Optima, and from 1997 ish)

I don't think there is any prospect of an appeal winning but I will come back later/tmw with full reasons for that as I think an appeal is going to lose - it might get to appeal because of the way optima handled the case, but I cant see an appeal winning the case.

The other part is the default charge amounts, waiting for confirmation of actual dates on Pauls thread, but they went from £12, to £15, to £25 then after 2006 back down to £12 following the OFT intervention.

[Differentjudge]

Re: DCA wins judgment using Carey but not having an agreement

The claimant has missplaced the agreement so they can not produce it or an actual copy of it at court.

as it is their claim they have to provide it to prove it is properly executed to satisfy S60/61 to be able to enforce

The claimant keeps trying to bring Carey into play but the defendant argues this is not relevant as they are the claimant they have the burden of proof. and not as in carey where the debtors had to try and prove there was not a properly executed agreement (if that makes sense)

They judge in the case said in summing up reconstituted agreements are sufficient for S60/61 "as why have a system for reconstituted agreements .."

[Amethyst]

Re: DCA wins judgment using Carey but not having an agreement

Is the 'misplaced' agreement claim in the final WS or in an earlier communication ? (I have had a quick look and can't locate it). When you say misplaced the agreement do you mean the application/executed agreement (fishe print out copy that they sent) or the attached/on reverse T&C's ? ie are they saying they mislaid the original but have the fiche copy, or they have neither so have recreated ?

As I understand it in this case there is no argument that the benefits of the credit card were not had by the defendant nor that any issue with repayment etc or the terms were raised prior to the court action.

[Differentjudge]

Re: DCA wins judgment using Carey but not having an agreement

regarding the missing original agreement

Witness statement 5th Jan 2010 by Optima employee says the agreement was scanned onto MBNA system and then destroyed. (this was provided at the 1st attempt for SJ in jan 2010. This was adjourned at the request of the optima representative)

Then 16 days later the same witness makes a WS to say that the agrements are stored off site but can not be located.

The SJ resumes but Optima withdraw the application for SJ and a date is set for full hearing

A third witness statement is done by The litigation manager of MBNA saying the original was retreived from the archives , copied and the copy sent to the defendant, then placed back into the archives and now con not be found

2 months after the clonflicting WS a letter from Optima says the original was scanned and then destroy

The "MAGICIANS" WS that suddenly appeared at the SJ explains the process for producing recons

The 3 witness statements refered to were in the bundle at court and refered to by he defendant. The judge did not take notice

[Amethyst]

Re: DCA wins judgment using Carey but not having an agreement

lol they don't know their arse from their elbow, I'd go with the agreement scanned to fiche then sent offsite for achival storage and they can't find it from there. Whichever they have sent a photostat copy of the original that was stored on fiche or photocopied from the original. ie. It isnt solely recreated from other agreements of the time, it is a direct copy of the original by whatever method whether or not they still have the actual paper and ink signed original.

[shamen]

Re: DCA wins judgment using Carey but not having an agreement

so if im reading this right, and correct me if I am wrong, even in court a signed CCA is no longer required, as long as the creditor promises the court in all their honesty that one did exist?!?

[Amethyst]

Re: DCA wins judgment using Carey but not having an agreement

If it isn't disputed, as in many cases it isn't and the claim is defended on the technicality of them being unable to find it. If it was denied that any agreement did exist and denied that any benefit of the credit was received, then it would come down to solid evidence that it did exist and the onus would be on the claimant to prove so.(IMO)

In this case there was a copy of the agreement signed by the debtor, just not the actual pen and ink original. Its not a recreation (though the other, seperate, terms were I believe)

[Differentjudge]

Re: DCA wins judgment using Carey but not having an agreement

In this case there was no copy provided to the defendant only reconstituted ones. no copy was provided to the court either..only recon

it is claimed by the claimant that a copy (but not the source of the copy) was sent to the defendant but the defendant denies he received a copy. the defendant admits he received a copy of an application form that was signed only by the defendant and not the claimant

(again the agument that an application form is or is not an agreement)