UPDATE

Nastywest's solicitor continue to ask me to sign a Tomlin Order.

They have added confidentiality, and an agreement not to pursue them or their agents concerning any issues with their claim.

The order is contingent on an agreed one off payment in full and final settlement of the claim being made, and if it is outstanding over 7 days, they reserve the right to get the whole claim and costs.

HOWEVER

The payment they requested in their WPSATC letter, sent over one month ago, was made immediately following their first request, without a Tomlin being signed. My agreement to drop the counterclaim was also confirmed at the same time.

I suggested that a Consent Order confirming the cessation of their claim and my counterclaim would be more appropriate,

but they have not agreed, just sending another suggested Tomlin to sign, which now has meaningless clauses, as the payment they are requesting was made over a month ago.

Any suggestions as to how to proceed please?

This is for my case, which as per previous posts, is for a combined debt of 2 accounts,a loan and a current account, not well particularised in their claim, and which included PPI which was refunded, and the total shown on the claim is now considerably more than the total amount of the 2 accounts!

Simply inform them the TO is now outdated and not fit for purpose...suggest they review the status and redraft.

Consent Order

 

This type of agreement is usually used when the terms of the settlement are straight forward and cover only the arrangements which relate to the action at hand ie one person pays the other person a sum of money in a set number of days.

 

Tomlin Order

 

These are used if the settlement terms are complex, they want to keep them confidential or they deal with issues which weren’t part of the court claim itself.It happens quite often that when coming to an agreement, common ground can be found between the parties that they never previously contemplated.

It’s also usual, in a Tomlin Order, for the claim itself to be suspended in all regards except for enforcement of the Tomlin Order itself. This means that if either person doesn’t do what they promised, a new Court claim doesn't need to be started.

This is from Andyorch's post #272 on this thread.

Nastywest's solicitor wrote to me in September with an offer, which I accepted, contingent on payment before October, which was complied with, and also contingent on me dropping my counterclaim, which I also confirmed in writing by return at that time.

They included a Tomlin Order to sign, which also had a confidentaiility clause and also a clause about not pursuing their client (Nastyw) for breaches of their code and treating me unfairly.

I refused to sign the Tomlin and suggested a Consent Order which confirmed the cessation of the claim and counterclaim, no order as to costs, (which was also in their Tomlin).

They have since responded asking me to sign a Tomlin, even though payment was made when they originally requested.

They now say that if I do not sign the Tomlin,

they "may" withdraw their settelement offer (which has already been complied with!)

and make a further application to the Court,

and that such an application will not take into account their settlement offer,

and will be for the full amount of the claim, together with costs and interest.

No mention of any interest before.

Is there something I am missing here?

Why won't they agree to a Consent Order, this finishing the matter, but are insisting on a Tomlin,

which remains on file, even though their offer has been accepted and paid?

As before , any help and/or comments would be welcome.

Thanks

t

There are differences Tedney as stated above so obviously their preference for the Tomlin is for a reason...the main one I can see is that the claims will only be suspended under a tomlin and of the course the confidentiality aspect.

Have I missed something here?

Didn't NW combine two different accounts which they should not have done and then made a claim against you as if it was one account?

Did you ever get the SAR or CCA on these accounts (years ago) to get to the bottom of what NW did?

I'm not sure I understand how they managed to get so far in court with this?

Stayed for ages, then a ICO, now wanting you to sign a TO. It all sounds weird to me.

I have read all the posts but I can't see what NW's response was to how they have combined the two accounts into one claim....

Hello Hp Mum

Its getting late!

I type out the response, and then click the wrong post button..... Grrrrrrr!

I have never challlenged them on the combined account, as I am not sure what the correct challenge would be.

I have admitted the claim as being the totals of a current and loan account as at the date of teh claim.

The current account has been settled as Nasty succesfully claimed against Mrs t, and I got PPi back on the loan and have been apying monthly.

Their Tomlin has been complied with in as much as the requested payment has been made (the essence of the claim?!) and I have confirmed in writing that I will not pursue my counterclaim, even though I have mentioned them no complying with the Bnaking Code.

Do you think there is mileage in introducing 2 accounts into one, and if so, how do I go about that please?

Regards

t

There are differences Tedney as stated above so obviously their preference for the Tomlin is for a reason...the main one I can see is that the claims will only be suspended under a tomlin and of the course the confidentiality aspect.

Thanks Andy

Their Tomlin states "Full and Final settlement of the Claim, and the Defendant's Defence in that Claim"

They do not mention specifically my counterclaim.

My Consent order states "Claim and counterclaim discontinued"

As previous post their latest is a threat that they "may" withdraw the proposed settlement, and go for full payment with costs and interest.

All their letters are WPSATC,

so they intimate that any court settlement will not take into account their offer,

they say the full value of the claim,

but of course they already have been paid the current account, and the balnace on the loan is now less PPI and monthly payments too,

so do you think that a court will award the full claim?

then a ICO,

Hello Again!

Please excuse my ignorance, but what do you mean please.

Thanks

t

interim charging order?

Thanks dx.

Aha!

No no Charging Order.

They wrote and said they were applying after they won Mrs t's claim, but we had already paid the judgment, so they were out of order!

Subsequently learnt that Nastywest had instructed their solicitor to go for a charging odrer before they had received confirmation of the claim amount from the court!

Nastywest also wrote to mrs t five days after the payment and told her they were pursuing a charging order!

So basically...this could be put to bed if we can decide whether its a Tomlin or a Consent Order that can be agreed ?

Perhaps post the contents of both here... lets see why they are insistent on a TO.

Ok, here we go:

TOMLIN

The Claimant and the Defendant having agreed to the terms set out in the schedule hereto, It is ordered that:

1) All further proceedings in this claim be stayed except for the purpose of carrying such terms into effect. Liberty to apply as to carrying such terms into effect.

2) The Defendant discontinues the Counterclaim.

3) There be no order as to costs.

SCHEDULE

1) In full and final settlement of the Claimant's Claim against the Defendant (Claim No123456&), the Defendant's Defence in that claim and the matters set out therein, inclusive of any claims for interest, court fees and/or other costs and fees incurred, the parties have agreed as follows.

2) The Defendant will pay to the Claimant the sum of £0000.00 in full and final settlement of the claim (The Settlement Sum)

3) The Defendant will pay the Settlement sum to the claimant by way of the following instalments - a) The Balance of the Settlement Sum to be paid by ?? ******2016. (NOT SAID ON THE TOMLIN, BUT THE BALANCE OF THE SS IS THE SAME AS THE SS, I.E. JUST ONE PAYMENT TO BE MADE)

4) For the avoidance of doubt, save for the enforcement of the terms of this schedule, the parties agree not to sue, commence, voluntary aid in any way, prosecute or cause to be prosecuted against any other party or any other party's employees, servants or agents and action, suit or other proceeding concerning the issues which form the subject matter of this claim, Defence and this agreement, in this jurisdiction or any other.

5) In the event that any of the payments detailed in Paragraph 3 above should become outstanding for a period of 7 days, the full balance of the claim, together with payment in respect of all costs (on an indemnity basis) and interest shall become due and immediately payable to the Claimant (less any payments made). In the event that payment of this sum is not made by the Defendant, the Claimant shall be entitled to make a further application to the Court for Judgment against the Defendant and shall be entitled to enforce the same in any way that it sees fit. The Claimant shall be entitled to recover from the Defendant all costs incurred in the enforcement of this Order (on an indemnity basis)

6) The terms of this agreement and the susubstance of all negotiations in connection with it are confidential to the Parties and their advisers, who shall not disclose them to, or otherwise communicate them to, any third party other than: a) To the parties respective lawyers on terms which preserve confidentiality; and b) Pursuant to an Order of a Court of competent jurisdiction, or pursuant to any proper Order or demand made by any competent body where they are under a legal or regulatory obligation to make such a disclosure; and c) As required by any local authority housing or social services department to make such a disclosure as part of an application for housing or housing related assistance; and d) As far as necessary to implement and enforce any of the terms of this agreement.

CONSENT ORDER

Upon the parties agreeing the following terms and by consent it is ordered that;

1) All further proceedings in this action be stayed save for the purpose of carrying into effect the terms in the schedule hereto.

2) There be no order as to costs.

Schedule

1) The Claim against the Defendant is discontinued.

2) The defendant discontinues the Counterclaim against the Claimant.

3) There be no order as to costs.

4) The Defendant pays the Claimant the settlement sum of £0000.00, in full and final settlement.

5) The settlement sum to be received by the Claimant by ??*****2016.

6) On receipt of the settlement sum by the Claimant, the Defendant will have no further liability to the Claimant.

7) The Claimant submits within seven days of this order a Notice of Discontinuance to the Court.

8) The Claimant submits within seven days of this order a Notice of Discontinuance to the Defendant.

When considering the above, please do not forget that the original claim, as referred to in item 5 of the Tomlin has been substantially reduced, due to the claimant being paid for the current account balance (following their claim on mrs t), and the claimant reimbursing PPI on the loan account which was included in their original claim, and subsequent payments made to the loan account since the claim was issued. Also, and as requested by the Claimant's solicitors back in September, the one off payment they requested then to be paid was paid in September, so now they are, in effect asking in the Tomlin for a further payment!

Thanks for reviewing all of the above!

t

I really cant see much difference to be honest...if its just payments made then ask they add an amendment to their Tomlin and get it sealed and over and done with.

It is my Consent suggestion, their Tomlin.

I don't want Tomlin as (I think?) that stays on court record,

but that is unnecessary, as I have already complied with their request.

What about your post #279?: T

hey must substantiate and particularise each agreement in disclosure...cant just amalgamate as if its one debt....2 agreements 2 default notices etc etc.

If it gets to a hearing, will they have to do this, as, as per HP Mum's post #287,

the claim, although the amount is recognised, is not particularised into current account and loan account?

As I have already paid.

at their first request, albeit WPSATC the settlement sum,

I do not think their threat of making a further application to the court,

as they have already been paid a substantial amount of the claim,

as you have advised previously on here, they cannot be paid twice for the same account.

I think I will hold out for the Consent order and take my chances again,

presumably my mentioning of their not conforming to the Banking Code,

in my original response to the claim, will count for something.

This was not part of mrs t's original defence, which was all the judge at that hearing was interested in.

Of course mrs t lost that one!

Sorry to go on.

Regards

t

Okay gotcha...the main difference is there is no discontinuance of the claim in their Tomlin ?

OK, thanks again for that Andy, I am in the process for responding, and will post again when things are updated.

Regards

t

Yes ICO I meant interim charging order

don't want to muddy the waters if you are close to settling and putting this behind you

- but just for clarity

- did nw take 2 different types of accounts of yours and create a new account for the purposes of making a claim against you?

I have an old nw account that nw closed and turned into a managed loan account with a different account number (without my permission) for the purposes of making a claim against me.

I am just wondering if they acted in the same way for you?

If they did set up a new account for the purposes of making a claim against you, then it does not surprise me that they want a TO confidentiality signed.

Hello HP

No, NW did not create a new account.

They added overdue amounts ( loan and a current account) together and issued a claim for the total.

Accounts were not closed, as I have been paying into both seperately since before and after their issuing of the claim.

Did not receive any statements on the current account until I made a SAR on 2 separate occassions, even then I had to ask again both times!

They added legal fees to the current account too,

and then their solicitor sent a statement about 10 months after that charge,

only because they included statements in a witness statement.

They were adding interest to the current account too, but for some reason that ceased in 2010, without any coorespondence or reasons provided from them!

Also accounts are with their "Credit /Debit Management Operations" department, who consistently deny receiving correspondence, even when I have records of signed for mail having been delivered to them!

many inconsistentcies with their behaviour and handling of this and mrs t's claim, I think that is why they want TO, as I believe there is a fair case for not complying with the banking code.

Not really had any views on that on here yet, but you never know!

Thanks for looking in.

Regards

t

UPDATE!

Quote from Andyorch post #288

"Okay gotcha...the main difference is there is no discontinuance of the claim in their Tomlin ?"

Nastywest's Solicitors are still insisting on Tomlin, without Discontinuance, merely "Claim Stayed".

They have just written again.

Considering this has been going on for some years now (!)

I am minded to tell them to accept consent order or I will see them in court!

I have a counterclaim to them, which was based on unfair charges which obviously wont wash now but also I have detailed their breaking of their banking code and unfair practices.

The financial facts of the claim are that the majority of their claim has been paid,

and they have accepted a sum in full and final which was paid last year, which I have in writing from them.

Why would they still be insisting on a Tomlin, surely just the confidentiality issue would not be the sole reason?

All comments and help welcome.

Thanks

t

if theyve accepted a ff and you have proof, other than confirming to them in writing this, to find out what theyre up to ask specifically why this has come to light again

Well, almost another year has passed, and this matter is still not ended.

I have not heard anything from Nastywest or their solicitors for well over a year now.

Do I still just sit tight, or do I ask them for a "completion"

Any comments/views welcome.

Thanks

completion on what?

completion on what?

Nastywest issued a Summons years ago, which I defended and counterclaimed. All detailed on this thread, which I appreciate is quite long and old!!

As far as I know the summons has not been withdrawn or satisfied for the Claimant, although all agreed monies due have been paid (they suggested a "full and final" which I paid), and I have written confirmation from the Claimants solicitor that payments have been received.

The one remaining account that the summons includes (there were 2) is not closed as far as I know, as I received a statement last January, as I have every January since the loan account was opened.

Not spoken to the court recently.

Worth pursuing the counterclaim and/or asking the court to strike out the claim?

Thanks for reading!

t

You have paid them and they have accepted...the Tomlin was never sealed therefore the claim remains stayed .

There is nothing to strike out on a stayed claim that never reached allocation...its speculative until allocation...so I would forget all about it now.

I assume there is nothing showing on your credit files either now after 8 years ?

With regards to statements....NW will continue to issue for the litigated amounts irrespective of status and payments being made or subject to consent orders/tomlin orders.They do not adjust or write the amounts off for some reason.....even though Irwin Mitchell/Ascent Legal are getting payments to the account...but lets not open another can of worms and why they continue to record inaccurate balances.

In your circumstance having paid a F&FS the balances should be nil and the accounts terminated now...but do you want to risk asking Ascent why this is not the case ?

Andy