Excel - Set aside WON & CASE WON - Excel defeated AGAIN!

Jenni_D

V05? I thought that was a shampoo.  

Le_Kirk

Jenni_D said:

V05? I thought that was a shampoo.  

It is (was) and you beat me to it!  The OP of course means the V5C.

Jenni_D

I can understand why the OP said V05 though ... Jake himself uses that term in his WS.  

Le_Kirk

Jenni_D said:

I can understand why the OP said V05 though ... Jake himself uses that term in his WS.  

.......... and on his hair!

milkybk

Ha, yes, my bad. Bit too quick just reiterating what was in the letter, rather than thinking.

Jokes aside - any thoughts anyone? I'd like to stay ahead of all this leading up to the hearing, as I feel so far I've been on top of things as required.

henrik777

I'd ask for most of that to be struck out.

3. Did you not assert 13.2 as well ? Otherwise it's a copy of rule 13.3

4. Guess that'll be true. However they cannot access again 2 years later to confirm.

5. Is just made up nonsense. Mandated by ?

Used to communicate then stopped. Not even an email to check ? What are CPRs ?

6.That amounts to an admission that they'll never recheck an address under any circumstances no matter how long ago the acquired the information. Their trade code of practice says otherwise, as do the RULES OF THE COURT.

7. We're aware of this common issue but as above, we'll never double check even after years.

8. There's that mandated nonsense again. Stating as a fact you ignored something is disingenuous. You cannot ignore something you do not know about.

9. Clearly aware ? How could they possibly know that it was received ? Indeed if you've moved it's more than likely you didn't.

How do paras 8 & 9 meet the criteria of para 1 ? Guesses at best, no evidence submitted to back up guesses.

10. Probably. But the claimant ought to have checked valid address, COP and CPR mandated this.

11. Partly, yes but had the claimant done the mandated checks they would have found the address was no longer valid.

12. Check the rule you literally include in your witness statement. It does not say that. Use of the word "or" would indicate differing scenarios. Is Cilex like a lucky dip from a cornflake packet ?

Castle

henrik777 said:

6.That amounts to an admission that they'll never recheck an address under any circumstances no matter how long ago the acquired the information. Their trade code of practice says otherwise, as do the RULES OF THE COURT.

As does Article 5(d) of GDPR:-
Personal data shall be:
accurate and, where necessary, kept up to date; every reasonable step must be taken to ensure that personal data that are inaccurate, having regard to the purposes for which they are processed, are erased or rectified without delay (‘accuracy’);

milkybk

henrik777 said:

I'd ask for most of that to be struck out.

3. Did you not assert 13.2 as well ? Otherwise it's a copy of rule 13.3

4. Guess that'll be true. However they cannot access again 2 years later to confirm.

5. Is just made up nonsense. Mandated by ?

Used to communicate then stopped. Not even an email to check ? What are CPRs ?

6.That amounts to an admission that they'll never recheck an address under any circumstances no matter how long ago the acquired the information. Their trade code of practice says otherwise, as do the RULES OF THE COURT.

7. We're aware of this common issue but as above, we'll never double check even after years.

8. There's that mandated nonsense again. Stating as a fact you ignored something is disingenuous. You cannot ignore something you do not know about.

9. Clearly aware ? How could they possibly know that it was received ? Indeed if you've moved it's more than likely you didn't.

How do paras 8 & 9 meet the criteria of para 1 ? Guesses at best, no evidence submitted to back up guesses.

10. Probably. But the claimant ought to have checked valid address, COP and CPR mandated this.

11. Partly, yes but had the claimant done the mandated checks they would have found the address was no longer valid.

12. Check the rule you literally include in your witness statement. It does not say that. Use of the word "or" would indicate differing scenarios. Is Cilex like a lucky dip from a cornflake packet ?

Hi @henrik777 thanks for your continued support. On my N244 application I called for a set aside under CPR 13 as whole, not just one specific part.


Would you advise drafting something to present to the judge? Basically going through what you've just said or would you be sending something to the court beforehand? I would assume the only person who can strike out arguments is the judge on the day anyway.

henrik777

milkybk said:

henrik777 said:

I'd ask for most of that to be struck out.

3. Did you not assert 13.2 as well ? Otherwise it's a copy of rule 13.3

4. Guess that'll be true. However they cannot access again 2 years later to confirm.

5. Is just made up nonsense. Mandated by ?

Used to communicate then stopped. Not even an email to check ? What are CPRs ?

6.That amounts to an admission that they'll never recheck an address under any circumstances no matter how long ago the acquired the information. Their trade code of practice says otherwise, as do the RULES OF THE COURT.

7. We're aware of this common issue but as above, we'll never double check even after years.

8. There's that mandated nonsense again. Stating as a fact you ignored something is disingenuous. You cannot ignore something you do not know about.

9. Clearly aware ? How could they possibly know that it was received ? Indeed if you've moved it's more than likely you didn't.

How do paras 8 & 9 meet the criteria of para 1 ? Guesses at best, no evidence submitted to back up guesses.

10. Probably. But the claimant ought to have checked valid address, COP and CPR mandated this.

11. Partly, yes but had the claimant done the mandated checks they would have found the address was no longer valid.

12. Check the rule you literally include in your witness statement. It does not say that. Use of the word "or" would indicate differing scenarios. Is Cilex like a lucky dip from a cornflake packet ?

Hi @henrik777 thanks for your continued support. On my N244 application I called for a set aside under CPR 13 as whole, not just one specific part.


Would you advise drafting something to present to the judge? Basically going through what you've just said or would you be sending something to the court beforehand? I would assume the only person who can strike out arguments is the judge on the day anyway.

So more tosh jeezo.

Look over all you sent, make sure it doesn't say solely 13.3 anywhere then, if time permits, ask for clarification on these "points" and state you intend to ask for it to be struck out based on the inaccuracies and guesses and generally being argument rather than witness evidence.

Coupon-mad

You could send a further WS and refer specifically to 13.2, deal with how your case fits it and how they’ve admitted fault by failing to take any steps to locate you (after all, you were engaging with them then years later had stopped so it was more than likely no longer a good service address). 

Then quote 13.3 as an alternative position and explain that even if the court is not satisfied that 13.2 is met (which it is... but in the alternative) then 13.3 is and there are certainly good reasons to set the CCJ aside.

Add a costs schedule and at the hearing, ask the Judge for your fee to be ordered to be paid by this Claimant, whose WS disclosed that they made no attempt whatsoever to locate or check your address, contrary to the CPRs, the IPC Code of Practice and the GDPR requirement in Article 5(d).