Marks & Spencer Credit Card

[PlanB]

Re: Marks & Spencer Credit Card

This is not quite a duplicate as the other Claim Form was missing more information than this one. I have incorporated what Andrew gave me in this Defence..

Ok just check with Andrew whether you should also send the court a copy of the original defence unchanged with the Claim number on it etc as per his post # 29

I would stick in a defence and refer to the stayed claim in it. Quote the case number and state that it is currently stayed. Adopt the defence from that previous claim too.

Just a thought do you have a copy of the order which says the first claim was stayed? I'm sure it's on the court file but sometimes it helps to spell these things out. It's not important so don't let that hold things up. In my minimal experience if the court doesn't understand what's in front of them on paper they request a hearing to get clarity.

[jaxx]

Re: Marks & Spencer Credit Card

Ok just check with Andrew whether you should also send the court a copy of the original defence unchanged with the Claim number on it etc as per his post # 29


Just a thought do you have a copy of the order which says the first claim was stayed? I'm sure it's on the court file but sometimes it helps to spell these things out.

No I don't have a copy of the stayed order (this was information given to me verbally over the phone by Northampton) but I have asked them to send me a copy. Also with the new Gateway system and new IDs and passwords I haven't been able to upload the old claim into the new system as I can't remember my ID and password! I have emailed the Court and asked them to do this for me or to email it to me and am awaiting their response.

The problem is I don't have a copy of the actual Defence I sent in - just realized it's copied and pasted from a generic form of Defence. And as stated this Claim actually has more information on the POC, eg account number, which the original one did not.

[PlanB]

Re: Marks & Spencer Credit Card

The problem is I don't have a copy of the actual Defence I sent in - just realized it's copied and pasted from a generic form of Defence. And as stated this Claim actually has more information on the POC, eg account number, which the original one did not.

When you say "generic" what do you mean? Did you download that Defence from a website recently or is it the same as the one you filed first time around in 2009 even though that may have been C&Pd from a website?

[jaxx]

Re: Marks & Spencer Credit Card

When you say "generic" what do you mean? Did you download that Defence from a website recently or is it the same as the one you filed first time around in 2009 even though that may have been C&Pd from a website?

It's the one from back in 2009 but it's one we were using on another site - just tailored to fit the specific claim or rather the Claimant's POC. For example, this new Claim gives dates and account number, whereas the original one from 2009 didn't state anything so the Defence would be slightly different. I'll have a look-see in the morning and see if Andrew may have come on and trimmed/tidied my Defence. I'm not leaving for work till 10 earliest so should be able to get this sorted before I leave. Failing that I'll be home by 3, although that is sailing a little close to the wind if Defence has to be in by 4pm (which I'm not 100% sure about if it's filed online??).

[ATW]

Re: Marks & Spencer Credit Card

This is my Defence (such as it is) ... can ATW cast his expert eye over it and just confirm it's OK to go please? Or amend as necessary. Many thanks

1. The Defendant does not admit any allegation made in the Claimant's Particulars of Claim, and has never entered into any agreement with Arrow Global Limited.


2. The claim as pleaded does not contain sufficient particulars to permit me to file a properly particularised and pleaded defence. Further, no documents supporting the claim in the particulars have been offered. The
agreement referenced in the POC is totally non-compliant with s61 as it
is missing ALL of the prescribed terms and as such is completely
unenforceable under s127(3).

3. There are further reasons for the Claimant being required to produce
at an early stage the agreements upon which their claim is based, if the
agreements lack the statutory content required by s60 & s61 (1) Consumer
Credit Act 1974 and the Consumer Credit Agreement Regulations 1983 (Reg
2 and schedules 1,2 &6) then the Defendant may well be able to raise
arguments as to the proper execution of the agreements and most
importantly the Defendant may be able to raise a strong argument as to
the enforceability of the agreements too. The issue of enforceability
has been before the Court of Appeal and House of Lords on numerous
occasions and the Defendant would cite primarily the case of Wilson and
First County Trust [2003] UKHL 40 as the leading authority on
unenforceable credit agreements. The most notable paragraphs are 28-31,
46-51 and 69-74 of Lord Nichols of Birkenheads judgment, although there
are many many more authorities that confirm non-compliance with the
strict requirements of the 1974 Act, although somewhat harsh, leave the
agreement unenforceable and the court has no discretion to intervene if
this is the case.


4.The claimants particulars of claim are vague and fail to disclose any
cause of action, they appear to be an abuse of the process in that they
fail to deal with the basic rules of pleading in accordance with the CPR.


5.Even making allowance for the Northampton Bulk Regime the claim fails
to disclose sufficient information as required by the CPR, there is no date
of alleged default or details of any default notice served in accordance
with s87 (1) Consumer Credit Act 1974, the claim is missing vital
information.

6. Without admission that any cause of action is shown by the Claimant
it is denied that the Claimant has a claim whether as pleaded or at all.

7. No documents supporting the claims in the particulars have been
offered which the Defendant needs to establish what agreement it is that
this action is based upon.

8. Furthermore Claim number.....................is already proceeding in the Northampton (CCBC) County Court regarding account number xxxxxxxxx. This is the same account as is being pursued here. The original creditor was Marks & Spencer Financial Services who claim to have now assigned the account to the current Claimant Arrow Global Limited. I cannot be expected to defend the same claim from two different Claimants at the same time. I request that the current claim is struck out as an abuse of process and in this regard I refer the court to Buckland v Palmer [1984] 1WLR 1109. I believe that the correct way to have proceeded with this would have been for Arrow Global Limited to have applied to substitute themselves as the Claimant in case...................... rather than to issue fresh proceedings.

Ive only just spotted the rest of this thread. Sorry about that.

On the draft defence get rid of the word "furthermore" at paragraph 8 and then stck that paragraph as paragraph 1 of the Defence. You want the court and the Claimant to sit up and take notice so make the point early. they might not spot it at point 8 and you want this struck out if possible.

It could do with a lot more work but as time is limited we can pluf a couple of holes although you wil probably need to amend this on the way to trial if the claim is not struck out.

In para 1 (para 2 when amended) add " i put the Claimant to strict proof that there is a valid assignment of the agreement and that a valid Notice of Assignment was served on me"

Para 4 (which will now be para5) add "I am unable to plead a detailed defence to this claim as the Claimant has failed to comply with the Pracitce Direction Pre-Action Conduct protocol or with CPR 16 in that i have been given the minimum information regarding the claim in the form of template pleadings which pay little attentio to the actual details of the claim made against me. I have not been sent any documents in support of the claim so have to gues at their contents. I reserve the right to amend this defence at the Claimants expense once details and documents are disclosed."

Para 5 (para 6 once amended). Add to that something along the lines of "I put the Claimant to strict proof that a valid Default Notice which complies with s88 CCA 1974 and the Consumer Credit (Enforcement Default and Termiantion) regulations 1983 has been served on me. I belive that without such a valid notice the Claimant cannot enforce the agreement and is not entitiled to the benefit os s87 CCA 1974"

Add a new paragarpah at the end " if the claimant wishes to add detail to the claim or to disclose documents in support of the claim then this should be done by way of a properly pleaded Amended Particulars of Claim to shich i can the provide a detailed Amended Defence. I do not beleive it would be appropriate for the Claimant to undertake this exercise by way of a Reply to Defence introducing a a properly pleaded case for the first time to which i would have no opportunity to respond".

if you did a s78 CCA 1974 request then add a para along the lines of "On the .......... day of ............ I submitted a request pursuant to s78 (1) CCA 1974 for copies of documents. I put the Claiant to strict proof that the request has been complied with. I do not beleive that as matters current stsand the request has been satisfied and i believ that s78 (6) CCA 1974 therefore renders the agreement unenforceable"

Dont forgtet to have a statement of truth at the end "I beleive the facts in this Defence are true" signed... dated..........


leave the rest as it is as there isnt enough time to change everything that might need attention but that should be sufficient for now.

[PlanB]

Re: Marks & Spencer Credit Card

Failing that I'll be home by 3, although that is sailing a little close to the wind if Defence has to be in by 4pm (which I'm not 100% sure about if it's filed online??).

A Defence filed online after 4 pm will be deemed to have been filed the next day. See CPR Practice Direction 7.2 here:

http://www.justice.gov.uk/courts/pro...pd_part07e#7.1

[Never-In-Doubt]

Re: Marks & Spencer Credit Card

Don't worry planB - if Jaxx misses this there really isn't anything we can do. I'm sure Tuttsi can get a message to her.

[PlanB]

Re: Marks & Spencer Credit Card

Don't worry planB - if Jaxx misses this there really isn't anything we can do..

I've sent Jaxx a PM with a link to Andrew's post. Fingers crossed she gets it so I can stop worrying


Remember this is also about screwing over Restons which motivates me even more to do what I can to get the Defence filed in time.

[Turboman]

Re: Marks & Spencer Credit Card

PlanB--I have texted Jaxx to login to see your PM

EDIT--she's got it--will be home to login at 3:15

Turbs

[Never-In-Doubt]

Re: Marks & Spencer Credit Card

Leaving it very late. Come on Jaxx......

You can do this!!

[jaxx]

Re: Marks & Spencer Credit Card

PlanB--I have texted Jaxx to login to see your PM

EDIT--she's got it--will be home to login at 3:15

Turbs

OK - thanks everyone for this - am just about to post this up on MCOL (just a bit worried there might be too many characters as it's limited on MCOL!!) DEFENCE GOING IN ........................



1. Claim number XXXXXXX is already proceeding in the Northampton (CCBC) County Court regarding account number 1XXXXXXXXX. This is the same account as is being pursued here. The original creditor was Marks & Spencer Financial Services who claim to have now assigned the account to the current Claimant Arrow Global Limited. I cannot be expected to defend the same claim from two different Claimants at the same time. I request that the current claim is struck out as an abuse of process and in this regard I refer the court to Buckland v Palmer [1984] 1WLR 1109. I believe that the correct way to have proceeded with this would have been for Arrow Global Limited to have applied to substitute themselves as the Claimant in case XXXXXXXXX rather than to issue fresh proceedings.

2. The Defendant does not admit any allegation made in the Claimant's Particulars of Claim, and has never entered into any agreement with Arrow Global Limited. I put the Claimant to strict proof that there is a valid assignment of the agreement and that a valid Notice of Assignment was served on me.


3. The claim as pleaded does not contain sufficient particulars to permit me to file a properly particularised and pleaded defence. Further, no documents supporting the claim in the particulars have been offered. The agreement referenced in the POC is totally non-compliant with s61 as it is missing ALL of the prescribed terms and as such is completely
unenforceable under s127(3).

4. There are further reasons for the Claimant being required to produce at an early stage the agreements upon which their claim is based, if the agreements lack the statutory content required by s60 & s61 (1) Consumer Credit Act 1974 and the Consumer Credit Agreement Regulations 1983 (Reg 2 and schedules 1,2 &6) then the Defendant may well be able to raise
arguments as to the proper execution of the agreements and most importantly the Defendant may be able to raise a strong argument as to the enforceability of the agreements too. The issue of enforceability has been before the Court of Appeal and House of Lords on numerous occasions and the Defendant would cite primarily the case of Wilson and First County Trust [2003] UKHL 40 as the leading authority on unenforceable credit agreements. The most notable paragraphs are 28-31, 46-51 and 69-74 of Lord Nichols of Birkenheads judgment, although there are many many more authorities that confirm non-compliance with the strict requirements of the 1974 Act, although somewhat harsh, leave the agreement unenforceable and the court has no discretion to intervene if this is the case.

5. The claimants particulars of claim are vague and fail to disclose any cause of action, they appear to be an abuse of the process in that they fail to deal with the basic rules of pleading in accordance with the CPR. I am unable to plead a detailed Defence to this claim as the Claimant has failed to comply with the Practice Direction Pre-Action Conduct protocol or with CPR 16 in that i have been given the minimum information regarding the claim in the form of template pleadings which pay little attention to the actual details of the claim made against me. I have not been sent any documents in support of the claim so have to guess at their contents. I reserve the right to amend this Defence at the Claimants expense once details and documents are disclosed.

6. Even making allowance for the Northampton Bulk Regime the claim fails to disclose sufficient information as required by the CPR, there is no date of alleged default or details of any default notice served in accordance with s87 (1) Consumer Credit Act 1974, the claim is missing vital information. I put the Claimant to strict proof that a valid Default Notice which complies with s88 CCA 1974 and the Consumer Credit (Enforcement Default and Termination) regulations 1983 has been served on me. I believe that without such a valid notice the Claimant cannot enforce the agreement and is not entitled to the benefit of s87 CCA 1974

7. Without admission that any cause of action is shown by the Claimant it is denied that the Claimant has a claim whether as pleaded or at all.

8. No documents supporting the claims in the particulars have been offered which the Defendant needs to establish what agreement it is that this action is based upon.

9. If the claimant wishes to add detail to the claim or to disclose documents in support of the claim then this should be done by way of a properly pleaded Amended Particulars of Claim to which I can then provide a detailed Amended Defence. I do not believe it would be appropriate for the Claimant to undertake this exercise by way of a Reply to Defence introducing a properly pleaded case for the first time to which I would have no opportunity to respond.

[Never-In-Doubt]

Re: Marks & Spencer Credit Card

PlanB--I have texted Jaxx to login to see your PM

EDIT--she's got it--will be home to login at 3:15

Turbs

i don't know what's worse. The fact you text or the content of the text

** sorry mate just messing

[Sapphire]

Re: Marks & Spencer Credit Card

Go Jax go Jax

[PlanB]

Re: Marks & Spencer Credit Card

OK - thanks everyone for this - am just about to post this up on MCOL (just a bit worried there might be too many characters as it's limited on MCOL!!) DEFENCE GOING IN ........................

[jaxx]

Re: Marks & Spencer Credit Card

OK peeps ..... BREATHE … BREATHE!!! (Especially you PlanB - large G&T called for methinks!!)

OK all filed such as it is …. Look, and I’ve 9 minutes to spare too. LOL!!!

That was a little bit close for comfort even by my standards but it’s in now and let’s see what comes back.

Don’t know WHAT I would have done without EVERYONE’S help here, especially Andrew to whom I send my deepest gratitude and of course to PlanB for keeping me on me toes! And not forgetting everyone else who has helped in one way or another … I owe you all big time!

jaxx