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:

it's been covered before ...

Not exactly, I think

it is HIGHLY unlikely that you can deny an agreement

agreed, if one exists; but who with, and what are its terms?

what you are seeking to do is show that the "agreement" is not legally enforceable

quite so

that means that the debt is STILL due and payable ...

maybe; but how much, and to whom, and (again) on what terms?

... but that the claimant cannot use civil law to enforce it

that reasoning can be developed later in the hearing

so what you DONT want to do is give the judge the impression that you are simply out to avoid the debt

yes, but not necessarily on the claimant's terms; remember, HAK's context is "the Claimant has no CA or with no prescribed terms"

therefore the correct response (put in whatever way you want) is that

 

i do not deny a debt to the claimant or an agreement- i deny that the agreement is legally enforceable because:- XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX

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)?

YOU COULD ADD:- when the claimant has accepted that the agreement is not legally enforceable it will enable me to seek to reach an amicable settlement with the claimant on any agreed amounts owed

again, rather formal, and this can be developed later

in short- any "smart arse" type answer which does not acknowlege the above will NOT (IMO) get the judge around to your point of view

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:

The big day arrives the Claimant has no CA or with no perscribed terms and you are going to use 127(3) of the CCA 1974.

 

The judge turns around and says: Well have you spent the money and do you owe it"

If the claim includes default or other fees/charges, which of course could not be part of the amount of credit, how about -

To clarify. You can apply for a redetermination if the DJ has not ordered monthly payments at the original hearing. You don't need an N244, just a letter with I&E but I think it must be done within 14 days of judgment.

If the DJ has ordered monthly payments at the original hearing & you want to reduce them, you need a formal app. on a N244.

You shouldn't need to attend a redetermination hearing unless the original order was made without a hearing.

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.

I am truly sorry to hear this Wycombe - a real travesty of justice.

 

To be treated like this by a member of the judiciary is truly appalling & it really should be appealed. However I can appreciate that you are not fit to appeal & would therefore suggest your best way forward would be to apply for a Redetermination immediately. That would hopefully enable you to pay in instalments & providing you keep to the payments ordered by the court, it would prevent any further enforcement action.

 

Then you can concentrate on your op & recovery. Best wishes for both...

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.

Nice one well done. See what the good guys on here say about costs now.

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

...Thanks again for your advise, I didnt use the N260 as the case manager advised not to use any specific form just to list the costs but will do now and transfer everything onto the form.

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.
  

slightly concerened as were of to a family wedding abroad for three and a half weeks, so wont be able to answer any mail/responce

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!

Wow...is that right a detailed assessment court fee is 300.00???

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.

I have recieved the letter from court today..

 

I sent a letter as advised by the case manager with a schedule of costs for the judges attention and he has said:

 

'The order of 19th May 2010 already deals with the requests made in this letter'

 

Ive no Idea where to go from here??

 

The order was an unless struck out order and the defendant be entitled to costs of the claim to be subject to a detailed assessment in default of the agreement

 

 

PS hadit, it's not "the" agreement - the Order means the court will assess your costs if you & Cabot can't agree the amount

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!

I think I'll keep a copy of this (if you don't mind Meldrew) as I'm expecting a similar letter in the near future:eek:

Thank you

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.

Now wheres that bog of unless you can provide all the docs that conforms to CCA74 letter that nocking around the site???

Well, as Morgans have decided to invoke the Pre-Action Conduct Protocol, you could start by tinkering around with this:

RECORDED DELIVERY

 

Request for copies of documents

(Civil Procedure Rules 1998: Pre-Action Protocols)

 

Dear Sirs

Account/Reference [1234 5678 8765 4321] (IN DISPUTE)

 

Your letter dated **DATE** (received **DATE**) indicates that your client might commence court proceedings against me without further notice or warning.

 

As you know, I have long since requested from your client, under both the Consumer Credit Act 1974 (“CCA 74”) and the Data Protection Act 1998, evidence of the agreement to which both you and your client allege I am a party. To date your client has failed to supply any such evidence, but instead tried to persuade me that providing a copy of an application form discharges your client from further obligations under section 78 of CCA 74. Conversely, I have explained that a copy of a mere application form is not a lawful substitute for a true copy of the executed agreement as required by CCA 74 s.78 and prescribed by Regulation 3 of the Consumer Credit (Cancellation Notices and Copies of Documents) Regulations 1983 (“CNCD 83”).

 

I remind you that CCA 74 s.78(6) provides that a creditor whilst in default of a request made under sub-section (1) may not enforce the alleged agreement.

 

Notwithstanding the above and your client's persistent, unexplained and wilful refusal to supply a copy of an executed agreement in accordance with its obligations (the permitted omissions under CNCD 83 Reg.3(2) excepted), you have made plain your client’s intention to begin legal proceedings against me. Consequently this matter is now subject to the Civil Procedure Rules and your letter appears to be intended as a “letter before claim”, despite not complying with the Pre-Action Conduct protocol.

 

Therefore take notice that, I request you supply to me within 14 days actual copies of the following documents:

• the executed credit agreement incorporating prescribed notices, terms and conditions applicable at the time the agreement was executed, and
  
• any further or subsequent notices, terms and conditions relied on.
  

If you are unable to supply these documents please confirm discontinuance of your client’s claim.

 

Take note that this request is not made under either CCA 74 or DPA 98. It is under Annex A paragraph 4.2(7) of the CPR Pre-Action Conduct protocol, for a copy of alleged documents which I believe are relevant but do not have.

 

Should you ignore this request or try to circumvent it, I shall in due course make another under CPR 27 or 31.15, as appropriate. If you fail to comply with that request, I will ask the court to strike out your client's claim as an abuse of process due to lack of reasonable grounds. The application will refer to this and previous document requests, and apply for costs.

 

FOR THE AVOIDANCE OF DOUBT, I DO NOT ADMIT THE EXISTENCE OR VALIDITY OF AN AGREEMENT WITH OR DEBT TO YOU OR ANYONE YOU CLAIM TO REPRESENT.

 

Yours faithfully

Smoke and screen springs to mind, this stinks of someone trying to throw contractual law in to the ring.......

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

... and another thing:

...In the House Of Lords case of Linden Gardens Trust Ltd v Lenesta Sludge Disposals Ltd (1994) 1 AC 85,Lord Brown-Wilkinson stated that ''It is trite law that it is, in any event, impossible to assign ''the contact'' as a whole,i.e.including both burden and benefit.The burden of a contract can never be assigned without the concent of the other party to the contract...''

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.

...The Claimant in this case is the Assignee of the contractual benefits of the Credit Agreement and the Judgement...

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 ...]

In light of a couple of things I will need to amend my original defence statement slightly. This should not be a major challenge but I need to know how do I address this to the Court. I mentioned in the original for example that I did not receive a letter before action - although I do not have such a document I am prepared to concede one was sent as the Claimant provided a copy. It is highly likely my wife bunged this in the bin when it arrived! Also I need to delete the passage where I stated the Claimant did not attach copies of the docs to the claim (not necessary as through Northampton).

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.

Do I just title it Amended Defence and send it to the Court and a copy to Reston's?

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.

I might have lost the plot a bit.. but the Supreme Court hearing will have no bearing on this at all, will it.

 

This is a claim for credit card charges, yes ?

 

The Supreme Court ruled on Bank current account charges only. The OFT had already made their decision on Credit Card charges in 2006. They said that it wasnt for them to decide if £12.00 (which was the amount that creditors reduced the charges to at that time) was fair or not, and could still be challenged in court.

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.

Presumably it would be better to omit this paragraph? Or can I go off on a tangent and use the Bankers and Lenders Code to illustrate how unfair their approach has been. I realise these documents are voluntary codes but in these straightened times surely a signatory bank is supposed to pay more than just lip service to these two documents?

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.

43. I note that the Civil Procedure Rules require the original documents to be made available at the hearing in accordance with Practice Direction 32. Therefore if the Claimant...

Just a couple of things ...

40. [para.Nº duplicated]... I am able to deduce from the information supplied that the sum claimed contains charges that have been applied to the account. I refute these are payable. These are default charges levied on the account for alleged late payments. The court will be aware that these type of charges and the recoverability thereof have been judicially declared to be susceptible to assessments of fairness under the Unfair Terms in Consumer Contracts Regulations 1999. (The Office of Fair Trading v Abbey National PLC and others (2009)). I will contend at trial that such charges are unfair in their entirety and should not have been applied to the account.

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!

46. The Claimant has stated:

 

"By quoting numerous sections of legislation or case law it is in the Claimants submission merely a speculative attempt to avoid liability and to delay matters when in reality there is no arguable Defence".

The Claimant is a large multi national organisation with huge resources to draw upon at its disposal so it should be an easy matter for the Claimant to ensure all his documentation complies with all relevant legislation. This legistation was, in most cases, drafted to protect the consumer and to provide him protection from predatory action taken by a service provider. I have never attempted to avoid my liabilities as token payments were made on the account when statements were received and I registered with both the CCCS and Community Legal Advice who provided the Claimant with copies of Income and Expenditure forms and offers of payments within my means. It was the Claimants actions in issuing proceedings through the Northhampton County Court that forced me into examining whether the Claimants documentation was compliant with all the relevant legislation and whether the Claimant had acted within its terms.

Hi Guys

 

its headed 'HP Regulated By The Consumer Credit Act 1974'

 

Hadituptohere

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?

... feels like a victory to me, BIG thanks to my friends here :D

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:-

10. Secondly, S60(1) of the Consumer Credit Act 1974 states that an agreement must contain certain Prescribed Terms under regulations made by the Secretary of State and referred to as the Consumer Credit (Agreements) Regulations 1983 (SI1983/1553).

20. The Claimant has stated:

 

"In accordance with the requirements of the legislation, these Terms and Conditions were present at the time the Defendant signed the Agreement and were contained in the format of a leaflet."

 

Here the Claimant is clearly admitting the prescribed terms and conditions were not contained within the agreement but within a separate leaflet.

I was under the impression that UK Mail is 2nd Class - so how to I prove this wrong and rebut this statement? Any pointers to this welcome as I think I will be in a very strong position if I can show this is incorrect.

Does anyone know the address to send a SAR to Beneficial Finance?...I feel another thread coming

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.

Im sat with a coffee and digesting it with a rye smile

... 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!