Jooshy, You’ve probably spotted from elsewhere in these forums that Roxburghe’s payment demand is not a “fine” or anything like it; it’s just a request for payment, with no more legal status than a begging letter. However, current CAB advice is not to ignore it but instead write explaining that you will not pay the amount demanded as it is disproportionate, and, if appropriate, offer a “reasonable” amount as damages for breach of contract (i.e overstaying the paid period). In law the amount claimed is meant to represent “liquidated and ascertained damages”, which should be a genuine pre-estimate of the likely costs incurred arising directly from a potential breach of contract. The pre-estimate should be sufficient to restore the car park owner to the same financial position as though the breach had not occurred. For overstaying, this would be the amount you should have paid for the excess period. If the amount claimed exceeds a reasonable pre-estimate of loss it is regarded as a penalty, which is unenforceable. For instance, assuming the parking area had sufficiently legible & visible signage specifying the normal parking charge, and the charge was £2 per hour, then if you overstayed (say) 20 mins, then a reasonable offer would be £2.00 x 20/60 = 67p. If they disagree with your offer you can ask for full details - including bills & receipts - of all additional costs actually incurred by the land owner resulting directly from your car remaining beyond the paid time. Gladstones’ (almost illegible) letter in post #11 seems to include a list of charges. These are all spurious. A “charge” or “fee” or “allowance” is not a cost. Such charges etc are usually unprovable and wildly disproportionate to any possible actual cost that could be incurred, so are regarded in common law as penalties and therefore unenforceable (Hadley v Baxendale, 1854 et seq); see also Judge Harris’s reasoning in “A Retailer v Ms B and Ms K”, Oxford County Court, 9 May 2012, relating to “apportioned charges” (that case dealt with a shop’s alleged “costs” demanded from shoplifters, but the principles are identical - the claimant must prove his loss). They will probably ignore your offer, but you will have a good defence if the matter ever gets to court - which is most unlikely. Don’t get drawn into a correspondence war; if they do issue a county court claim just repeat the offer. “Nil illegitimi carborundum”. Good luck - tell us how you got on.

Hi Giz, What was the outcome? We're in an almost identical position, and it would be very useful to know how effective your argument was and how it turned out. Cheers!

I agree with most of that, DD, but put somewhat differently and more concisely. Parsing a bit: Not exactly, I think agreed, if one exists; but who with, and what are its terms? quite so maybe; but how much, and to whom, and (again) on what terms? that reasoning can be developed later in the hearing yes, but not necessarily on the claimant's terms; remember, HAK's context is "the Claimant has no CA or with no prescribed terms" a rather formal response to the judge's colloquial question; anyway, what if the claimant is not the original creditor - where's the proof that you owe the claimant anything at all, or that he truly is the "creditor" per s.189 CCA 74 (i.e. that the [phantom] agreement's rights & duties were properly assigned to him)? again, rather formal, and this can be developed later I don't think a simple straightforward answer to a simple straightforward question is fairly characterised as "smart arse". On the contrary, it reminds the judge that the claimant must prove the claim.

Back to first principles on this topic: If the claim includes default or other fees/charges, which of course could not be part of the amount of credit, how about - "No. I have not spent the amount claimed, and the claimant has not shown that I owe anything to him or anyone else." Seemple.

Thanks fg - I knew someone here would have Redetermination info! Also, point taken about writing to pay by instalments - that'll save you a few quid wycombe, although if you have a lowish income you shouldn't have to pay any court fees at all (or very little) - see post #22. Best of luck with the op. You'll have plenty of food for thought while recuperating.

Absolutely right fg - truly appalling news, wycombe. Yet another illustration of the old adage "If you seek justice, don't go to law". I agree with fg that in your circumstances, unless you can agree an instalment plan with MBNA one recourse is to ask the court for an order to pay by instalments, for which you use Form N244, enclosing an income & expenditure statement showing what you can afford. Resist any attempt by MBNA to put a charging order on your house - though the outcome of that would again depend on the judge's whim. I thought Redetermination normally applies where the judgement was made without a hearing - more experienced CAGgers can probably clarify that. You can apply for a Debt Relief Order if your total debts are less than £15k and your disposable income is less than £50/month. All those debts would be wiped off after a year, but they and the DRO would remain on your CRA files for 6 years making future credit difficult and/or expensive. A sad day for British justice.

Take a look at this, but see also #353 & 355 in that thread about the Durkin case.

A couple of tips for the N260: in the "description of fee earners" box, just put your own name; "Litigant in Person"; £9.25. use a spreadsheet to calculate total time to put in each category on the N260, with a "Notes" column saying what you spent the time on. everything except your time goes under "Other expenses" - put "see attached", and list them all chronologically on your spreadsheet - don't forget ancillaries like postage, copying, travelling (40p/mile) etc - anything that you wouldn't have spent if Cabots hadn't claimed. include a separate list of court fees on the spreadsheet, showing date, amount, court paid to and very brief description of what each fee was for. Well, just post the N252 & N260 (rec.deliv) before you go, have a great time, and look forward to banking a big fat cheque when you get back. PS Remember when completing the forms, although you're now asking Cabots to pay up, THEY are still the "claimant" in the case, and YOU are the "defendant". Could be v.confusing otherwise!

Yup, and Morgans [should] know it. Don't worry too much - you include all such fees in your costs. I guess this is the judge's subtle way of telling Cabot/Morgans that it'll cost them if they still ignore the rules and abuse the court procedures. The highly emphasised text in the Order shows he is well p!ssed off with these bottom feeders making up claims with no hope of success.

OK, so now you need to ask Cabot to comply with the Order. Start with the costs schedule you sent to the court (I guess you used N260 as suggested earlier; if not, do so now, but cross out "Summary Assessment"). Edit & refine it as needed, then send it to Morgans with a copy of the Order and N252, which Cabot must pay within 21 days. If they don't pay on time and/or you're unable to agree an amount and/or payment date, you must then apply to the court for Detailed Assessment. To do that, you send N258 to the court with a copy of the N252 & N260 that you previously sent to Morgans, with court fees added on. Read the forms etc carefully - they're all pretty straightforward - above all, DON'T PANIC!

Feel free... We're all here to help each other. If you're uncertain about what any of it means, just ask. For newbies: - just remember no two cases are identical, and different things will have happened to yours before reaching this stage. That's why you must always tailor such templates to your own circumstances, else they will be misleading and confusing to the other party and probably lead to embarrassing misunderstandings.

Well, as Morgans have decided to invoke the Pre-Action Conduct Protocol, you could start by tinkering around with this: You'll need to adapt it to your own circumstances. Firstly review what's happened so far on this particular issue, then edit the the text accordingly, chopping or modifying any bits that don't apply in your case.

Hey now, hadit - I hope you don't mean me...?

... and another thing: But CCA 74 expressly requires a valid assignment to comprise "rights and duties" ("both burden and benefit" in Lord Brown-Wilkinson's words). Therefore I don't think his Lordship's remarks apply here.

What "Judgement"? This implies that Barclaycard, having obtained judgement of a regulated agreement, assigned the benefit of the judgement debt to Cabot, who in turn is claiming the judgement amount as a straightforward lump sum debt. Questions spring to mind: When was Barclaycard's CCA 74 case? What were the arguments? Where's the judgement? Is it the same amount as now claimed by Cabots? Does it order payment by instalments? If there isn't a judgement, then what are Cabot talking about? Take a look at this. The bit from "Here's how" about half-way down has remarkable similarities. In particular, the last two paragraphs could be your escape route if well argued. [rams thinking cap more firmly on ...]

Tactically, it is probably better to get the SJ issue out of the way first. Then wait a week or so to see what Restons come up with in response to your WS. It's quite possible they may want to amend their PoC, which will then allow you to review & amend your defence accordingly. Essentially, yes. When you do get round to it, CPR 17 & PD 17 show what you should do (though this is frequently ignored without detriment). Although you're meant to apply formally for permission to amend, a good tip is to just send the amended defence to the court (copy to claimant) with a covering letter asking for the judge accept the enclosed amended version, without a hearing.

Quite so. I merely pointed out that the banks won the OFT case wycombe mentioned (which I agree didn't concern credit card charges), so it can't be relied on in the way he intended.

Replace the text after "I refute these are payable." with "I will require the claimant to prove that such charges are payable and were properly applied." Leave the Codes out of it. Remember - the purpose of your WS is to address the claimant's application for summary judgement. I think at this stage wandering down side paths would not help that objective. Stay focussed on MBNA's statements & assertions. Challenge specific items (one by one as you said in #186) which you believe are wrong, saying why as briefly as possible, and demand strict proof of every "fact" (such as the DN postage issue) without wringing its neck. You can develop the defence arguments later. The more doubts you can raise about the truth of the PoC the less likely the judge is to give SJ. The idea is to persuade him that the case is defendable and requires a trial. As a peripheral benefit, your remarks should encourage the claimant to review its stance. On the question of the amount claimed, para.40 (41?) points out that you haven't had a reasonable explanation of the amount. That alone should be enough to reject the application and adjourn for detailed examination. Referring to para.39, see if MBNA has levied any charges not mentioned in the "agreement", or at a different level. If so, such charges are probably penalties (instead of agreed "service fees" - per OFT v Abbey etc - or damages for breach) and unenforceable at common law, thereby confirming the DN was defective due to the wrong amount. Not quite. Try this instead: 43. Practice Direction 16 para.7.3 requires the original contract documents to be available at the hearing, and CPR 32.19 allows me to require documents mentioned by the claimant to be proved at trial. If the claimant...

Just a couple of things ... Caution, wycombe - Abbey etc actually wiped the floor with the OFT in the Supreme Court last November - which is why all the banks are running around crowing "Yah boo - all our extortionate charges are absolutely and completely fair 'cos the Supreme Gods said so, and we can do what we like and nobody can touch us, so cough up!" The OFT then shied away from challenging unfairness under a different clause that their Lordships actually suggested would work !! The only remedy left is to challenge charges if the T&Cs don't allow the bank and the customer similar rights of redress for a default by the other. For example, a clause allowing the bank to charge £30 for writing you a default letter is unfair if the T&Cs don't allow you a £30 credit for writing a default letter when the bank gets something wrong. I haven't heard if anyone's tried that yet, so the floor is yours to make a landmark case! Superb!!

Haven't had much direct experience of HP issues, so others can give better help. But I do know the HP lender can snatch the car as you've paid less than 1/3 of the total. Less honest folk might suggest you keep it out of sight - perhaps in someone else's garage - but of course I wouldn't even think of ... However, a couple of observations: I agree with middenmess the DN doesn't give enough time to comply, but you'll need more arrows in your quiver. I would read up on the status of an agreement where the creditor has accepted payment/s after termination or rescission. In particular, how - and to what extent - has accepting payment affected the creditor's rights & your obligations.

Is this HP or a secured loan or a straight unsecured loan?

Well done, hadit - a bit of a nail-biter methinks! Glad we could help . Looking forward - Santander could well decide to sell the debt and book a loss against tax, as it's not going to make any more money out of your OH and might not cover account maintenance costs. In that case the question is: would she have to pay the agreed instalments to the new owner? I guess it all depends whether the agreement is (a) a proper "Tomlin" order ratified by the court, or (b) just a private debtor/creditor arrangement. If (a), she would probably need the court's permission to stop paying Santander. Alternatively, if the court tells her to pay the new owner instead, she could ask for instalments to be amended to suit any changed circumstances - say £1/month. If (b), then the agreement with Santander dies and she could then negotiate with the buyer, who will have paid perhaps 5-10%. If she were able to she could offer a lump sum of (say) 15% as Full & Final Settlement. The buyer takes a quick profit without the time & effort of maintaining the account and getting 'er-indoors to pay, she doesn't have to worry about future payments, and her credit record is clear.

Very good, wycombe - you've obviously "got" the essence of what you need to do, which is to (a) make MBNA prove every factual statement made and (b) identify specific legislative non-compliances. If necessary, you can use CPR 32.19 to require documents mentioned to be proved at trial. A couple of observations:- Delete the red bolded bit, as it is covered in your para.11. Be careful not to confuse the "prescribed terms" (as in your para.11) with any other terms & conditions imposed by the creditor, which can be either (i) included in the executed agreement or (ii) set out in separate document/s. If (ii), such T&Cs must be specifically referred to in the agreement and a copy supplied with the agreement. This is to ensure the debtor is fully aware, at the time of making the agreement, or - if cancellable - at most within 7 days afterwards, of what he is agreeing to. It also prevents the creditor afterwards maintaining that a leaflet or other document applied, if that document wasn't identified in the executed agreement. Promotional literature such as leaflets, flyers, etc, and media presentations such as newspaper, magazine, TV, radio & cinema ads, billboards & window displays - all known in contract law as "invitations to treat" - cannot be part of the agreement unless identified in it. See fg's first comment in her #192. You can print UK Mail's webpage showing that its fastest UK delivery option is 2 days; also ask MBNA to produce UK Mail's tracking data which will show when the DN envelope reached your local Royal Mail delivery depot, hence the earliest possible service date.

Search the ICO's Data Protection Public Register. Address your SAR to who/whatever is named the "Data Controller", for the attention of the Representative named (if any). They're in Windsor.

... toast, I s'pose - it's a bit early for whiskey!! Thinks ... at the end of all this, you might even find Cabot paying off 'er indoors's Abbey/Santander car loan!