Thread: Egg PPI Claim Issued-Advise Needed

Hi

I issued a claim against Egg for PPI charged into my credit card account in early dec 08. The court gave Egg till 02.01.08 to respond.

On 05.01.08, I checked with the court and was advised that there was no reply from Egg to the claim so I applied for judgment by default. So far I've had no reply.

Today, I received a letter from a firm of solicitors representing Egg stating that they have asked their client for further information and are unable to file a defence until they have the opportunity to review that.

They are now saying that the Defense is due on 15.01.?? and they want to ask for an extension til 29.01?? they "would be grateful if i agree to this in order to avoid any unnecessary applications to the court. If not, they would make an application to the court and will seek the costs of that application" from me??

Super

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Thanks

I think i will call the court on Monday and find out if judgment has been issued and if that is the case i would send a copy to their solicitors.

Can they open the case by appealing on the basis that they missed the deadline for replying to the claim?

Originally Posted by SupermanX

Thanks

I think i will call the court on Monday and find out if judgment has been issued and if that is the case i would send a copy to their solicitors.

Can they open the case by appealing on the basis that they missed the deadline for replying to the claim?

Court time tables are set for a reason they have to have a justified reason for appealing do not make it easy for them. It is for them to set out their case to the Judge. Unless they have a justified reason which they should tell you about, they will struggle if you do not consent. Dont worry its not your problem let them worry about it

I spoke to the court, they said i have to wait to hear from the court to see if i will obtain judgment.

I asked for judgment by default on 05.01.09, deadline was 02.01 (Friday)

They acknowledged service on 07.01.09.

the court has given them till 16.01 to submit their defense, eventhough they acknowledged service after the deadline and after i asked for judgment by default, is there anything i can do?

also Egg's solcs are asking me to agree to an extension, if not they will make an application to the court and request the court to award them costs??!!, is this possible in the small claim track?

Originally Posted by SupermanX

the court has given them till 16.01 to submit their defense, eventhough they acknowledged service after the deadline and after i asked for judgment by default, is there anything i can do?

also Egg's solcs are asking me to agree to an extension, if not they will make an application to the court and request the court to award them costs??!!, is this possible in the small claim track?

in the court where i practice costs in small claims court are not normally permitted unless their are extenuating circumstances it is my view that you should write to the court setting out that you do not agree to an extension set out the first deadline for their defence ask for judgement in default as they have had sufficient time and say that they have requested an extension and stated they will seek costs if you do not consent however it is their failure that has caused the delay and not you and seek the Judge's view on the matter. I would be surprised if they awarded costs against you

"please note that I have not practised in civil litigation for some time"

Egg have now submitted their defense, not sure what will happen now

Originally Posted by SupermanX

Egg have now submitted their defense, not sure what will happen now

you will need to liaise with the court you need some specialised advice now as it has been a while since i have done litigation what does defence say liaise with one of the successful Caggers

Hi

I've copied my POC for a credit card PPI claim versus Egg as well as Egg's defense.

It looks like the argument for Conditional Sale Agreement+ Credit charge does not stand for credit cards and only for loans??

Can someone have a look at my POC, point 5(b)ii, as well as Egg's defense, in that respect?

1)do i need to amend my claim? what shall i do?



Particulars of Claim

1- The defendant's company is an online bank.
2- The Claimant had a credit agreement with the defendant which was opened around XXXX.
3- The Claimant's credit card account has been debited with payment protection insurance premiums without his knowledge and consent.
4- The insurance was mis-sold.

5- The Claimant contends that:

a) The Insurance imposed upon the Claimant were neither defined nor explained, nor alternatives from other suppliers suggested.
b) The Claimant further contends that if the Insurance was applied correctly, that the Agreement was not executed in accordance with the Consumer Credit Act 1974;
i) As the Insurance was in fact a charge for credit on the Conditional Sale Agreement, it could not also be part of the credit on the additional insurances agreement as under section 9 (4) CCA credit charges cannot be treated as credit even where time is given for their payments
ii) If the Insurance was not a charge for credit in respect of the Conditional Sale Agreement, as it was compulsory, it was a charge for credit on the additional insurances and under section 9 (4) CCA credit charges cannot be treated as credit
iii) For the reasons stated in either (i) or (ii) above, the agreement for additional insurances failed to state the correct amount of credit and did not comply with paragraph 2, schedule 6, which requires that regulated agreements contain as a prescribed term stating the correct amount of credit
iv) The agreement for additional insurances was therefore improperly executed under section 61 (1)(a) of the CCA.

6- The Claimant claims:

i) Compound interest on the charges applied thereon to the Claimant’s account (“the principal claim”), at the annual rate of XXX %. This is the rate applied by the Defendant to the Claimant’s unauthorised use or borrowing of the Defendant’s monies, as provided for in the contract. The Claimant’s case for claiming this rate is based in equity, and a legal requirement for fairness and balance.
ii) In the alternative to i), if the Court is unable to agree that the claimant is entitled to the contractual rates of interest, on the grounds stated, the Claimant avers that the defendant would be unjustly enriched if the Claimant’s entitlement was limited to the statutory rate of interest in that the defendant has had use of the sums and would have used these sums to re-lend at commercially compounded rates. On these grounds the Claimant seeks restitution of the compounded contractual interest at the defendant’s authorised borrowing rate of XXX % per annum.
iii) In the alternative to i) and ii), if the Court finds that the Claimant is not entitled to contractual interest, the Claimant claims interest under section 69 of the County Courts Act 1984.

7- SCHEDULE OF CLAIM FOR CHARGES
PERIOD: [XXXXX] TO [XXXXX]


Eggs Defense:

-"As to paragraph 5(b) above it is denied, if the same be alleged, that the optional PPI policy was required by the terms of the regulated Agreement which constituted the claimant's account with the Defendant. As to paragraph 5(b)i it is denied that the PPI policy constituted a charge for credit, the PPI policy was not compulsory, it was optional. It is denied that the agreement between the claimant and the Defendant is a conditional Sale Agreement as alleged. Paragraph 5(b)ii is denied. It is presumed that the reference in paragraph 5(b)iii to Paragraph 2,Schedule 6 is a reference to Consumer Credit (Agreements) Regulations SI 1983/1553. It is denied that the paragraph referred to, which relates to fixed-sum credit, is of any relevance to this matter. Paragraph 5(b) iv is accordingly denied. The defendant reserves the right to serve an amended Defense addressing this issue in the event that is revised"

Tks Super

bump

hi

can anybody recommend a solicitor i can get in touch?

Tks

can a site team please help

Super

they have made an offer to settle the claim, the amount is roughly 40% of what I'm claiming.

Originally Posted by SupermanX

they have made an offer to settle the claim, the amount is roughly 40% of what I'm claiming.

It may not seem like it, at the moment, but this is Good News. Unless your claim is for a very small amount i.e less than £1,000, this indicates weakness on Egg's part.

Big Companies don't settle unless 1) the really have to because they know they are going to lose or 2) it will cost them more to defend the claim than it will to pay you off.

The moral of that is make yourself as much of an inconvenience as you can (within the law and the Rules of the Court).



Your POC seems to me to be problematic. I cannot, I'm afraid, provide you with fresh draft which you can use as your amendment... but I'm almost certain you need to amend it because it does not appear to do any of the following:

1. Provide you with a cause of action i.e. the legal basis for your claim
2. State all of the facts applicable to you, which are necessary to sustain that cause of action
3. Provide a summary of the evidence which you have that supports those facts and which you will rely on in court
4. Provide a clear statement of the remedies you are seeking from the Court (which must be within the powers of the Court, given the legal basis of your claim)

and sections of it appear to be flawed.

Nothing is more doomed in this world than a litigant in person (LIP) appearing before a busy, grumpy District Judge and asking him to consider completely irrelevant legal arguments and principles which they don't really understand, while the Defendant's team of overpaid, pompous lawyers sit back and make snide, obesquious asides...

I'm sorry, if this sounds harsh, but believe me its nothing compared to the intellectual mauling/deflation/damage to your wealth that can result from actually doing it in a real Court.

Remember that the Judge's role is to do justice. That means acting impartially and being just to *both* parties... and as the English system is adversarial, this means neither the Judge nor the Defendant will be ready, willing or able to help you perfect a flawed claim.

LIP's do get some slack... but not much. All District Judge's are lawyers; and most lawyers think LIPs are a pain in the ass, who have no right whatsoever being in their Courts, doing their jobs.

The purpose of this post is to provide you with support, not to make you give up or upset you; but sometimes the only way to provide support is to point out where things have gone wrong. So, these are my observations on your POC (as posted). I hope you take them in the spirit they are intended.

Originally Posted by SupermanX

Particulars of Claim
1- The defendant's company is an online bank.

Technically, the company is (or should be) the Defendant. Therefore, referring to them as "the Defendant" is correct (whereas "the Defendant's company" would properly refer to a (different) company owned by the Defendant).

What is an "on-line bank"? and does this phrase have any actual legal meaning? Better to say something like "The Defendant, a company whose registered office is {blah] and whose registered number is [blah], is and was at all material times a Bank, that provides banking and financial services to businesses and consumers, including Credit Card and on-line banking services"

Originally Posted by SupermanX

2- The Claimant had a credit agreement with the defendant which was opened around XXXX.

Did you really have a "credit agreement" with them? Your posts suggest you had a Credit Card account, which for the purposes of the CCA 1974 is "a regulated agreement for running-account credit" aka a "Running Account Credit Agreement". You need to be as accurate and specific as possible with your terminology.

It also helps to start each paragraph with the date (that way the pleading has a chronology and this helps you "tell the story" in a logical way). So, "On or around XXXX, the Claimant, a consumer, entered into a Running Account Credit Agreement with the Defendant under which the Defendant provided the Claimant with a Credit Card... etc." You may also want/need to refer and exhibit the Agreement and the T&C's.

Originally Posted by SupermanX

3- The Claimant's credit card account has been debited with payment protection insurance premiums without his knowledge and consent.

We all know what you're getting at, but if you read this carefully, its not accurate or sufficient. Judges cannot, and will not, read "between the lines".

What credit card account? When did the PPI payments start? and end? How much were they for? etc. If the payments were debited without your knowledge... how do you know about them now? Won't Egg be able to prove the PPI payments were on your Credit Card statements? You need to specify precisely what you knew (or didn't know) when and make sure that the facts you plead support the legal basis of your claim.



Remember the critical points of knowledge in PPI claims are

1. What you knew/were told/were not told when the product was sold to you
2. What documentation (if any) you got subsequently from the Defendant and/or the Insurers
3. When you knew or became aware of the possibility that product had been mis-sold to you.

These are evidential points, but you have to be aware of them and their significance in order to draft you POC properly... and this list is by no means exhaustive.

Originally Posted by SupermanX

4- The insurance was mis-sold.

This is deeply problematic. It doesn't say, how or why the insurance was mis-sold or provide any legal basis for the claim. It doesn't seem to me to provide anything that you need.

You can include bare statements like this in pleadings, but usually only at the end of a pleading to act as a "catch all". In which case it would be something like "Further and or in the alternative having due regard to matters referred to above or otherwise as the Court sees fit the Defendant sold the PPI to the Claimant when the Defendant knew or ought to have known that such policy was manifestly unsuitable to the Claimant's needs and or circumstances" ...and the only words on any practical significance there are "...or otherwise as the Court sees fit..."

Originally Posted by SupermanX

5- The Claimant contends that:
a) The Insurance imposed upon the Claimant were neither defined nor explained, nor alternatives from other suppliers suggested.

You have not previously defined the term "the Insurance" in your pleading. Accordingly, it is meaningless here.

"imposed" is a bad word to use in a pleading. From a legal perspective, very little can be imposed by one party on another; particularly in what is essentially a contractual matter (and which thus as a matter of law requires a consensus).

Additionally, this isn't strictly a contention. It is your evidence that Defendant did not explain, adequately or at all, the benefit and/or the costs of the PPI premiums that were deducted from your account etc. You should plead it as such.

However, so what? In Court, evidence is worthless unless it supports or refutes a legal cause of action. Hypothetically, I could give evidence to a Court to the effect that I own the whole of Huddersfield; but I have no legal basis for such a claim and the Judge would sling me out and probably throw a big, green book at me on the way out.

Originally Posted by SupermanX

b) The Claimant further contends that if the Insurance was applied correctly, that the Agreement was not executed in accordance with the Consumer Credit Act 1974;
i) As the Insurance was in fact a charge for credit on the Conditional Sale Agreement, it could not also be part of the credit on the additional insurances agreement as under section 9 (4) CCA credit charges cannot be treated as credit even where time is given for their payments
ii) If the Insurance was not a charge for credit in respect of the Conditional Sale Agreement, as it was compulsory, it was a charge for credit on the additional insurances and under section 9 (4) CCA credit charges cannot be treated as credit
iii) For the reasons stated in either (i) or (ii) above, the agreement for additional insurances failed to state the correct amount of credit and did not comply with paragraph 2, schedule 6, which requires that regulated agreements contain as a prescribed term stating the correct amount of credit
iv) The agreement for additional insurances was therefore improperly executed under section 61 (1)(a) of the CCA.

By this stage, you've already lost, but this is the bit where the District Judge will just start to get annoyed.

If I've understood your claim, then it seems to me that it has nothing to do with a "Conditional Sale Agreement" (which as you know is a statutory term specifically defined in the CCA and is broadly an agreement where a creditor sells goods to a buyer but withholds title (ownership) to the goods until all payments have been made under the agreement) or the provisions of the CCA 1974 which apply to such agreements.

It may be that there is some mileage in the CCA principles that your 5(b) seeks to employ (although I am skeptical about this).

But, currently the defence that "It is denied that the agreement between the Claimant and the Defendant is a Conditional Sale Agreement as alleged" seems to me both legally correct and a complete answer.

If anyone has any other view, I'd be interested in it.

Originally Posted by SupermanX

6- The Claimant claims:
i) Compound interest on the charges applied thereon to the Claimant’s account (“the principal claim”), at the annual rate of XXX %. This is the rate applied by the Defendant to the Claimant’s unauthorised use or borrowing of the Defendant’s monies, as provided for in the contract. The Claimant’s case for claiming this rate is based in equity, and a legal requirement for fairness and balance.
ii) In the alternative to i), if the Court is unable to agree that the claimant is entitled to the contractual rates of interest, on the grounds stated, the Claimant avers that the defendant would be unjustly enriched if the Claimant’s entitlement was limited to the statutory rate of interest in that the defendant has had use of the sums and would have used these sums to re-lend at commercially compounded rates. On these grounds the Claimant seeks restitution of the compounded contractual interest at the defendant’s authorised borrowing rate of XXX % per annum.
iii) In the alternative to i) and ii), if the Court finds that the Claimant is not entitled to contractual interest, the Claimant claims interest under section 69 of the County Courts Act 1984.

You have claimed Interest in 3 alternative forms. I'm not going to comment on these forms of interest claim because that isn't the point.

The point is that you don't appear to claimed a principal remedy e.g. the money that you want back! (...and the interest on £0 is £0 however you calculate it).



Depending on the legal basis for your claim, you may need to add 1 or more of the following to the AND THE CLAIMANT CLAIMS bit:

1. The sum of £x,xxx.xx (being the amount of all the PPI premiums you actually paid, plus any interest that they charged your CC account as a result of applying the cost of the PPI premiums to your account)
2. Further and or in the alternative Damages not exceeding £5,000
3. Further and or in the alternative ... any other appropriate specific equitable or statutory remedy which you want and which the Court has legal power to grant e.g. declarations as to removal of Default Notices etc.
4. Further and or alternative relief.
5. Costs

Note 1: a LOT of people don't seem to understand the interest element of point 1. The reason you claim the interest charged on the PPI premiums is because this is the true cost to you of those premiums. (This interest element has nothing to do with the contractual or statutory interest claims included in your POC; which are intended to compensate for the loss of interest you could have obtained on sums you have been deprived of).

Seeking a specific sum (aka a liquidated claim) is generally more straight-forward, than a bare claim for damages; because there is less chance you'll get tied up in the complex and procedural issues that can arise from secondary arguments about the level of damages you should receive. However, the risks of seeking a specific sum are that if you under calculate, you miss out on some money, or if you over calculate the Judge chucks out your claim (v. unlikely) or reduces your claim (v. likely).

Note 2: Claims for damages in PPI claims, seem to me in practice to require, that you plead the claim for damages in the alternative for the following reasons:



If I were pleading a Credit Card PPI claim, my claim would include, at least:

1. A claim IN CONTRACT that policy was not fit for purpose etc.
2. A claim IN TORT that the Defendants had negligently misrepresented the terms of the policy at the time of the sale.

These 2 claims would have to be pleaded in the alternative, as whilst the facts might support both of them, effectively only one cause of action can give rise to a judgment (but which 1 is for the Judge to decide) and yet each gives rise to its own separate measure of damages.

In that case, the claimed remedy (i.e. damages) it may be better separately pleaded. E.G.
2) Further and or in the alternative Damages for Breach of Contract not exceeding £5,000
3) Further and or in the alternative Damages for Misrepresentation not exceeding £5,000

Note 3: A claim for costs should always be included; even though in Small Claims generally no award of costs is made. This is because there is no downside. If you ask and don't get, you haven't lost out. If you don't ask, you defintely won't get.

Note 4. Pleadings generally


There are vast tracts of legal textbooks dedicated to "The art of drafting Pleadings", and most are unutterably dull. However, Judges like dull. So, playing by the rules buys you that most important commodity in a Court, credibility. I couldn't possibly hope to detail it all here, but some pointers are:

1. Start from a professionally drafted precedent: which you can get by going to the Law section of your nearest big library, finding the "Encyclopedia of Forms and Precedents" or "Atkins Court Forms" and looking up the points of law you're working on. - Generally, you won't find professionally drafted precedents on-line for free.
2. Make sure you follow the conventional form and layout. Do a back sheet.
3. Research everything you put in your POC and make sure you understand it.
4. Pleadings are historically devoid of any punctuation. Although, a more modern approach is to include some limited punctuation. However, if you do use any, you need to be careful. Some District Judges live to make crappy semantic points like the one I made earlier about "the defendant's company" (and its the 's that makes the difference).
5. Capitalisation in pleadings can be extremely important. Conventionally, to bring brevity and clarity to the document, pleadings use a form of shorthand to define complicated things which relies on correct capitalisation. For example, a pleading might say "On or around XXXX, the Claimant, a consumer, entered into a running account credit agreement regulated by the Consumer Credit Act 1974 (as amended) with the Defendant (hereinafter referred to as "the Account") under which the Defendant..." and all subequent references in the POC to "the Account" would be read as a reference to that specific account; and as something distinct from another reference to "an account" or even "the account".
   Nowadays, you don't need the "hereinafter referred to as" bit... but I put it because it makes my example clearer.
6. Any documents you refer to in your POC which are evidential significance should be exhibited to your POC. So, for a PPI claim, you would exhibit your agreement, your policy terms and conditions and your certificate of insurance (if you have them)... but you wouldn't exhibit pre-action correspondence between the parties or other peripheral documentation, as such documents will (if disclosable) be part of the Trial bundle.
7. Make sure you include a Statement of Truth and sign it. (Not taking this declaration seriously, can be costly... ask Jonathan Aitken).

Moving on...

Given the difficulties with your POC, the Defendant's legal team may consider an application to strike it out (on the basis that it discloses no cause of action).

This is largely a tactical decision, as it is often better (from the Defendant's point of view) to let a bad claim proceed to trial... but you need to be aware that unless you amend the POC (in accordance with the CPR) there is a risk that the Defendant will waste months of your time, effort and money by running you close to trial (even upto a week or two before the trial date) and then you'll be met with a flurry of paperwork and an interim application to strike out your pleading. The application will be heard before the hearing proper and you are at a cost risks from it because the Defendant will seek costs in the Application itself (which differ from costs in the suit) and as such are within the discretion of the court, notwithstanding that it is a small claim.

OK, so now you're depressed... but let me tell you why you should be very happy and why (inadvertently) having to amend your POC is a very good thing!

Remember, that I said that you should be as inconvenient as you can (within the Law and the Rules of the Court) because it costs the Defendant money to defend a claim... and ultimately its these costs that will prompt a settlement.

Well, guess what, defending a POC and then having to defend a substantially amended, much better drafted one for a second time is bloody inconvenient and expensive and as a Litigant in Person you couldn't really be blamed for submitting a POC before you had had an opportunity of getting some advice on what it should or should not include... after all its not like your a mulitnational bank with an army of lawyers at your disposal, is it and the amended POC will conclusively demonstrate that you're not going to be bullied, cajoled or otherwise prevented from pursuing your legitimate claim.

Finally, would you be kind enough to post the whole of the Defence you received from Egg; as documents like these represent the best information we have to gauge the likely extent and nature of the bank's responses to future claims.

HTH

Thanks for your replies

The claim is for roughly 800 pounds in premium and the same in interest.

As you have pointed out the reason they have offered partial settlement is due to costs involved in defending the case.

I'm thinking of rejecting the offer and amending my POC,,, OR the other option i thought about is to withdraw my claim for the time being and check if Egg's CCA on this account is in order, if not i would then be in a postion to launch a multi case action, any thoughts on this? the balance on the a/c is roughly 9k

I will post their defense shortly, the format is in acrobat without permission to copy and paste, i have to either type it or find a way round it, maybe scan the hard copy into a user friendly format

Once again thanks for your time, i might ask you some questions later once i've studied further your suggestions for the new POC.

Super;-)

the other question that comes to mind is that if i withdraw, would they be able apply for judgment and/or wasted costs?

in order to amend my POC, do i have to submit a N244 form OR can i just write to the court and attache my amended POC?

Super

Originally Posted by SupermanX

Thanks for your replies
The claim is for roughly 800 pounds in premium and the same in interest.
As you have pointed out the reason they have offered partial settlement is due to costs involved in defending the case.

£1,600 in litigation terms is nothing. The 2007 costs rates for qualified solicitors range from £145 to £195 per hour. So, in simple terms, your litigation is worth 8-10 hours work to the Defendant... because any more than that and they will be spending more on their lawyers than they will in paying you off... and given the litigation risk i.e. potential cost of a loss to them... in reality they are probably not willing to spend more than £1K arguing.

£1,600 x 40% is about £640. Is that about what they've offered? Is the offer made "without prejudice save as to costs"? Are there conditions attached to it? Is it time limited? Does that include or exclude, your issue fee?

Originally Posted by SupermanX

I'm thinking of rejecting the offer and amending my POC,,,

To my mind, the offer isn't enough; but at the moment they will see this offer as based on the "nuisance" value of your claim; rather than its merits. So, you need to respond gently to it and keep in mind the bigger picture... all offers are good offers.

Originally Posted by SupermanX

in order to amend my POC, do i have to submit a N244 form OR can i just write to the court and attache my amended POC?

Everything you need to know about the procedure to amend your POC you can find here:
PRACTICE DIRECTION – AMENDMENTS To STATEMENTS of CASE

You will see that you can amend it if you get the Defendant's agreement in writing to do so; without incuring the time and expense of a formal application to the Court and or a Court hearing to determine the application.


Accordingly, if it were me, I'd write a short letter to the other side which:

1. Rejects their offer, but welcomes their efforts to find an amicable resolution and heavily suggests that you would be open to considering a better offer. and
2. Request their agreement to you amending your POC. Explain that you are a Litigant in person and that having carried out more research into you claim, and you now realise that a lot of the things you had previously thought would be dealt with in evidence at a hearing, in fact need to be included in the POC. - Don't be too specific or detailed and bare in mind a Judge may well read this letter. What you want the letter to achieve is making it so that if they DON'T agree the Judge thinks they're being unreasonable bully boys.

They know this is coming and if they know what they are doing (or if they are under-estimating you), they will have a little whine and a moan but agree to it, anyway.

If they're macho dickheads (of either gender), they'll say no and say that if you apply to the Court for permission they'll resist the application and seek costs against you. If they do this they will be playing into your hands... and I'll explain how to respond, if it happens.

They'll probably want to impose a time limit like 14 or 21 days for the filing of the amended POC from the date of them giving their agreement... but let them raise this and set the agenda... the exchange of correspondence about it will take 10 working days, so you'll be able to use that time to dive into the research and work on the new draft.

Originally Posted by SupermanX

OR the other option i thought about is to withdraw my claim for the time being

I can't see any value in you withdrawing your claim.

You will just be throwing away your issue fee and setting yourself back about six weeks, plus there is a risk that the Defendants will say you are acting unreasonably/abusing the Court process and seek costs on an exceptional basis... and the Defendant would undoubtedly refer to the "abandoned" litigation in any subsequent claim.

You might also run into limitation issues. (depending on when your cause of action arose).

Originally Posted by SupermanX

and check if Egg's CCA on this account is in order

Do this anyway... you can continue with the PPI claim at the same time.

Originally Posted by SupermanX

if not i would then be in a postion to launch a multi case action, any thoughts on this?

I'm sorry but I don't know what a "multi case action" is. Do you mean you are considering whether or not the current PPI claim should also deal with any (un)enforceabilty issue relating to your original Credit Card agreement?

If so; the short answer is no.

The long answer is complicated; but essentially I think s.127 etc CCA 1974 should only ever be used as a shield in litigation... i.e. in a Defence to a claim bought by a Bank or in a Reply to a Defence and Counterclaim. Whether or not your CCA is enforcable, is irrelevant to the question of whether or not you were mis-sold PPI (even though it may be of more financial significance to you). ...and the Bank is hardly likely to say "Well actually we don't have to repay Super's PPI, because we know his CCA is unenforceable, coz we've lost it." (and even if they did; a careful reading of the House of Lord's ruling in Wilson suggests they might still have to repay your PPI!)

Originally Posted by SupermanX

the balance on the a/c is roughly 9k

Hmmmm. 9K less £1.6K leaves £7.4k in issue after the PPI is sorted. This is a problem; because it means any default litigaton would be for more than £5k, and thus outside the Small Claims process and subject to the costs regime. This ups the stake radically.

Litigation is won and lost on evidence; but costs decide who walks away smiling.

I wouldn't countenance anyone engaging in litigation which was subject to the costs regime without them instructing their own lawyers...

Originally Posted by SupermanX

I will post their defense shortly, the format is in acrobat without permission to copy and paste, i have to either type it or find a way round it, maybe scan the hard copy into a user friendly format

Why not upload the *.PDF to rapidshare or a similar service. Then you could just post a link to it, here.

Originally Posted by SupermanX

the other question that comes to mind is that if i withdraw, would they be able apply for judgment and/or wasted costs?

Sort of moot, because I can't see what you gain from withdrawing... but

Apply for judgment - No... unless their Defence includes a Counterclaim.
Wasted Costs - Theoretically it's possible, but in practice its so unlikely that realistically the answer is No... Wasted Costs Orders are a pretty draconian step (particularly against a LIP in a small claim) and they'd have to show you did something so unreasonable that you should be punished in costs.

As I suggested above it's more likely that they might try to seek their costs in cause to date... but again I don't think this would be successful (unless you've been being wildly unreasonable) because your argument would be that withdrawing was the proper thing to do (having realised your claim was imperfect) and that this in fact saved the Defendant the costs of going to trial (in circumstances i.e. a small claim, when they would not have recovered those costs).