Don't worry too much. The main point is that it applies once legal action has commenced. The DN was issued before legal action had commenced but the Judge may be more familier with CPR so you just need to know why it does not apply in this case which I believe is in CPR 6.1. which explains when another Act can overide it.

Yes I know SB They may tell the court that it was sent 1st class UK mail - just a guess, so you need to download some info on UK mail delivery times to prove the statement misleading. Plus you need to understand that CPR 6.26 applies after proceedings commence. See the thread by mydogsawestie if you have not already been on it (I can't remember if you have). You need to ask why the witness is not there for you to cross examine about the error in the statement, (if they are not there). If they are show them the envelope and ask if that is the normal 1st class envelopes that they use. Back to the UK mail info you will have printed off (3 copies).

I have tried to quickly look at the dates again and one of us is confused - hopefully me. I make 15 April 2009 a Wednesday so 2 working days for 1st class would be Friday 17 April so 14 days from then would be 1 May. However 2nd class would mean delivery was 4 working days = 21 April and 14 days is 5 May. So 2 May is defective DN. You need to have copies of the Interpretation Act which is all over these threads to counter the argument from Restons if they try and suggest that CPR 6.26 applies to the DN which it does not as stated by CPR 6.1. They will push the issue on 1st class which they are doing with me and although mine was UK mail I cannot find the envelope or I could back you up on that. Pedross

I think you just need to be well prepared with what you knew already SB Keep cool and stay positive. If they do try and produce something last minute you could always ask for a short break to read through the documents and if you have any doubts ask for an adjournment. Best of luck and do not let these underhand tactics un-nerve you. Pedross

Well done Docman, a good summary of the situation and I think this is the way to go.

This is good news. I think the moral of the story applies to all of us. If you give up you never know what the end result would have been. It all works out in the end and you just have to make sure you stay in it until then. Pedross

This is another major mistake by the judge. The assignment should be a matter of record and admitting that she decided on the balance of probabilities but admitted that she could be wrong is an injustice. It should not be up to you to prove there was not an assignment but up to the claimant to prove that there was and if it was not proven the decision should have gone in your favour. On the balance of probabilities you have already paid back all the money you may have had plus lots of interest.

That is an unbelievable statement to make in a judgement against a single individual. It is basically a slur on anyone who decides to defend a debt based on enforceabilty of the agreement and compliance with the Consumer Credit Act. You may as well rip the Act up as far as that Judge is concerned. I could write forever about those comments but I will resist. You are obviously an opportunist who the Act was never intended to protect. To try and trip up the creditor who had a load of dodgy paperwork with him is unforgivable. Pedross

I agree summer and thats what we normally work on. However, the judge has used CPR 6.26 to determine the dates. My understanding is that CPR only comes into effect once court proceedings are commenced. The problem is that he has made his decision, the wrong decision by the look of it, so MDaW needs advice on how to deal with it. We need some experienced posters to give guidance on what to do next. I will try and get some along if others can pass the word around. The obvious thing is that permission to appeal should be requested but on what grounds. One could be that the decision regarding the DN has been made using CPR 6.26 when the time for delivery should be calculated using the Interpretation Act which renders the DN invalid. Is that true?

I am not sure what to do now to be honest with you. It looks like damage limitation is what you need advice on. I think you will have to stop panicking as I would expect advice to come along in time. Stay positive because from what I understand about your situation they are limited to what they can do anyway.

With regards to the DN the Judge is quoting CPR 6.26 (as amended October 2008) which treats 1st class post as delivered: The second day after it was posted, left with, delivered to or collected by the relevant service provider provided that day is a business day; which makes delivery Monday. This puts a whole new slant on the delivery times that caggers work with. So we have two opinions on delivery times. I have run out of time to get my head round this at the momemt. I will return. Pedross

I agree with dicky As supa posted nothing has changed on the DN and Restons must know it is a problem as they normally discontinue with that type of problem. But to agree to a payment of £1 a month for 3 months could give them an argument that the agreement endures and the DN is therefore not relevant. I think I would be more inclined to send them a letter saying that in reply to their letters and the telephone call in which they gave you the option to pay £1 a month for 3 months you have no intention of doing so. Both Restons and yourself are aware that the agreement is terminated and as they have no legal rights to enforce the debt you request that they either comply with the directions of the court or discontinue the action and let you get on with your life. This is just my opinion so I suggest you get other opinions before taking this action. Your point about the application is far more complicated and you will only need to understand that fully if it gets to court. In brief, the application form together with certain prescribed terms and other information form the agreement. However, to do that the prescribed terms must be part of the same document eg 'attached' or 'overleaf' etc and not part of a seperate document. Restons try to prove they were part of the same document and you try to prove that they were not. The DN should stop it getting that far. Pedross

I have read your post 223 and I understand your surprise at the latest news. It seems strange reading all of the points put across that the judge decided to make the decision based on the SJ hearing as you had some valid issues. To state that valid legal arguments just delay and frustrate is not justified. I think you should click the red triangle and see if someone on the site team can get the best people onto this for you.

I disagree, I think the war is won. Reston's clearly state that they are instructed to discontinue. Claim ended. Your agreement is clearly terminated as I am sure diddy will agree. You therefore are not in a postion to default on the agreement now so there are no grounds to issue another DN. If they try to issue another claim they will need the permission of the court and you will object and without new grounds they will almost certainly fail. I have only skipped through the thread quickly so I may have missed something so do not act on my opinion without your regular posters opinions. However, based on what I think I read I would reply to them (without prejudice except as to costs) and say that you are quite prepared to accept a reasonable settlement as they suggest. Say that they are clearly aware that they cannot issue a new DN and they will find it extremely difficult to recommence proceedings. By prolonging this case when they were clearly aware that they could not continue has caused you stress and sleepless nights and in continuing to try to mislead you it is compounding the problem. What are they suggesting that they offer to you in compensation and wasted costs to resolve the matter. This will obviously be on condition that they agree that the debt will not be pursued in any way in the future. Pedross

There is a line of thought that if the credit limit you are provided with is not listed in the table then you have not been provided with the correct APR as required. I don't know of a case getting to court on that one.

I agree with Diddy & CB about the witness statement in hindsight. I say it that way because I would probably not have objected at the time but in view of the fact he had no idea about the correct details first hand it was not reliable evidence. However, I have a feeling that the part that I think gave you the biggest problem was that the Judge and then the Barrister kept referring to points as 'technical'. The defendant is relying on *** which is a technical point, so suggesting its not a major issue, is how I read it. But these were legal arguments you were putting forward and not technical issues at all. The incorrect terms were in breach of the requirements of the CCA 1974, hardly a technical point but legal requirements. Pedross

I think you will find it is game over because the debtor has not agreed to repay the money. Its as basic as that. I think the point is there is nothing at all to enforce. The debt or the regulations are not relevant in this case because if they give you money and they have no proof that you have agreed to repay it then its a gift.

Hi freethemice Do you have your own thread on this as it will get lost on this thread. You need to be in legal issues I think. You then need to put a link on here and ask for help and I for one will keep track of your thread and offer as many suggestions as I can. You did well in court, but it will be very difficult next time based on what has been said, although I do believe that you can put a strong defence together with a lot of hard work. This is the next stage in this kind of case and we need to fight fire with fire as I have pointed out earlier in the thread. Pedross

I think you will find that if a document is produced which is signed by the debtor and includes the prescribed terms it is down to the judge to decide. It would not matter if the creditor has signed as it is at the discretion of the court. However, if it does not contain the prescribed terms or they are are not correct then it is irredeemably unenforceable. In a nutshell I think this is about right but check first

The Legal Test for Appeals The appeal court will only allow an appeal if it is satisfied that: The decision of the judge who heard the small claims trial was wrong in law; or The decision was unfair because of a serious irregularity in the small claims proceedings. In other words a party will not be successful if they simply do not like the judge’s decision or think that another judge might have decided the case differently. It looks to me that this is the only way you can go. You should be able to satisfy both points if the transcript is accurate. Pretty much what docman is saying and I think you need to focus on this as opposed to wasting time trying to find some loophole like the 'clutching at straws' idea I came up with earlier, which no doubt would not work given the circumstances..

They would have to prove that they were part of the same document. e.g. T & C attached in the signature box for starters.

I think you are spot on and both are correct. This document should have won the case for you and the barrister knew that. I don't know if there is a technicality and you can get the judgement set aside but if you can it would probably be your cheapest option. I don't think this would be new evidence as it was accepted by the court during the hearing. You need comments from the more legally qualified to guide you on this although I see there are some interesting points made so far. What happens if the transcript shows that you did not get a fair hearing. Does that give you another angle? Failing all that I would have thought someone would take this on as it looks like a good case for a Barrister to take to appeal. The result would be far more beneficial than some of the ones we have seen lately. Pedross

I think that is where we are missing a trick on here. United we stand divided we fall springs to mind. But how often does it happen. More likely the fact that we state something that could have come from a forum goes against us. However, if we provided proof that, (through the benefit of shared knowledge gathered on a specialist forum), we have collective evidence which disproves the point, I think it is a different matter. Pedross

I think if you submitted an acknowledgment within 14 days from date of service (issue + 5) you then had another 14 days. Disclaimer: Check your paperwork I don't want you suing me.

I agree I think we focus on the claim and if we provided a lot of evidence to the court that the claimants systems were far from perfect or even compliant it could aid our cases. On the other hand it could be dismissed out of hand as not relevent to the case. However, I remember years ago, a police officer asked in court if he was allowed to mention the defendants 27 previous offences, only to be told 'No'.