Hi Basa,

Witness statements usually say what the judge wants to hear in order to find in favour of the claimant (in this case). I haven't seen the witness statement so can't comment in detail.

What I mean is pick through the detail of the statement to see if there is anything that seems to strain at the truth or the possible. It might sound good but how probable is it.

For example:

If a witness statement claims that the author recollects the agreement and that it contained the prescribed terms. Then questions such as when did they see it, if it was years ago, why did they recall it after all the time that has passed. What else do they recall from that day - in detail, please. If they start to ramble and appear uncomfortable then it is probable that their recollection is contrived.

Difficult to be specific but you are looking to cast doubt on the provenance of the statement. If details seem unlikely to be true, challenge it.

In a set aside hearing, you take the role of defendant so the burden of proof lies with the creditor. They have to prove the case worthy of a hearing, you have to cast doubt. Anything that they offer in evidence that seems unlikely should be challenged.

Just to qualify what Huckster said about the hearing format:

The two parties present the detail of the case, usually claimant first. In this case the creditor will give their submissions for the set aside. It is import to be listening in detail and make notes. The creditor will, in all probability, not be there, or send some office gofer from the legal department. In either case, there is a good chance that they will not be familiar, in detail, with the case. You should be ready to seize on any errors they make so be in a position to pick them out.

This means your presentation should be ready, clear in your mind and not be a distraction to you, unless the claimant makes a glaring error which requires you to shift emphasis.

You presentation should emphasise relevant laws and precedents (if available) but refer to your court bundle, don't recite legislation as this delays the process and sends the judge to sleep.

Key points:

Cast doubt on the relevance of claimant cited case law - you seem to be well set for this but point out that the McGuffick case related to a compliant agreement but failure to comply with s78, resulting in subsequent creditor default. You acknowledge s78 compliance but question the legitimacy of the proffered documents proper execution (no original - ref CPR, no prescribed terms - ref s60 {CCA} and SI 1553 etc). Remember, you are not trying to prove your claim (that is for later) you are trying to prove that their defence is unlikely to succeed. Mention s172 (statements by creditor).

Witness statement, pick holes in it if you can. Cast doubt upon the accuracy of the claim, or its legal verity. If it is a simple "We're awfully sorry but we forgot and I'm a twit and I spilt coffee on the documents" then give it little regard. The purpose of the hearing is the set aside. Simply remembering to file a defence does not, of itself, render the defence worthy.

Cite your own case law, again, not in detail but have full transcripts in your court bundle. Make specific reference to your bundle so have it well indexed or marked so the judge can navigate without leafing through reams of paper. The easier you make it, the more likely they are to look.

Do not draw attention to anything that weakens your case. Obvious, I know but if, for example, you cite Walker Vs SPPL it is an easy mistake to state that whilst this case refers to mis-stated sum of credit, the acknowedgement that lack of prescribed terms renders the agreement irredeemably unenforcible is crucial. By stating that the specifics of the case are not relevant you lead the judge to question the validity of the citation. The defence may do this for you so be ready but your pleadings should show a bullet proof case.

Don't go mad with case law, 2 cases is usually enough. Wilson Vs FCT is a good reference as it is an HOL judgement. But don't rely on it, find another case, preferably more recent, age counts (usually against).

End with s127 (3) - this is a must, they cannot make a determination if this clause has relevance.

After the pleadings have been heard, the parties will have the opportunity to sum up, so have a summary ready, don't re-plead. Again it will be the claimant first, so you get the last shout. Hammer home any errors in the claimant submissions, status of the agreement, s60, case law. Short and snappy, bullet points.

Then the judgement.

You have a strong case.

Remember also:

Don't mumble, or talk too fast.

Don't shout

If you are prone to finger jabbing then tie your hands behind your back

The judge is "Sir" or "Ma'am", even if they find against you.

Avoid phrases like "you can't make an enforcement order because s127(3) prevents you", better is "the CCA, under s127 (3) prevents a court from ...........". Judges do not like the parties to tell them what they can and cannot do. They will have to abide by the law though, so it is the law saying this, not you.

Get there early as the claimant may want to discuss the case with you, offer to settle etc. Be willing to negotiate the outcome but don't discuss the case.

I've been painting the house recently (wife's orders) but will try to stay on-line as much as I can. Fire away. If you send me a PM then post a note, I only check that email once or twice a week.

Best of luck

S