Its been a while since I have been on here but I have great news that hopefully provides encouragement to anyone else in a similar position...
After taking advice from someone on these forums, I admitted that the task in this particular case was greater than a LIP could bring home so I instructed the services of a solicitor firm. I wont say which one, but it is well known on these forums. After paying initially to have my defence amended to get it in a good state, I went onto a no win no fee basis (CFA) to defend my case.
My defence was amended, points picked up that I would never have got and a Witness Statement produced that took to task Cabot on several matters.
Today was the trial date. My solicitor had instructed counsel from a well known chambers and we went up against Cabot & their counsel. Whilst Cabot succeeded in introducing a 3rd set of T&Cs relating to my account since the claim began, our argument remained on the legibility of the agreement, the relation to the T&Cs and the notice of assignment / sales agreement validity.
To summarise these points, the agreement was not easily legible, the notice of assignment was sent on Barclaycard letterhead then on Cabot letterhead and the agreement could not be confirmed to be related to any set of T&Cs due to the non legibility of both. There was also the point on whether Cabot had produced evidence that my account was assigned to them in a bulk sale.
The Judge agreed that my account was in the bulk sale but then laid into Cabot on the legibility issues and the whole NoA and T&Cs. She even went as far to say that there was not one point at fault in their case, but 3 and they were nowhere near acceptable to satisfy s78(1).
Therefore my case was dismissed and Cabot have had another kicking!
I haven't been keeping the case updated due to advice of my solicitor and I can see his point entirely.
Cabot have now had my 5k debt ruled un-enforcable and have to pay 6k in solicitor & barrister costs! Result!
What I learned from this experience:
If in any doubt, instruct solicitors as early as possible. I didn't and had to pay several hundred pounds to get my case into a state that had a chance of success and also to be considered for a CFA (Conditional Fee Arrangement - no win, no fee).
Understand your case completely. Even though my solictor was brilliant and built my defence / WS, its your case, your name on the claim and you will be cross examined by their Barrister whilst on the stand under oath. Granted its not a totally gruelling experience but these are experienced in their trade and use every skill available to them when you are on the stand to prise something out of you that can be used as ammunition against you.
Know the rules / law. Cabot introduced new evidence at a regular frequency when it suited them, once even in direct relation to an argument in our submitted defence. Whilst this is crap as really they should have all the facts before bringing the case, judgement in another case confirmed that the claimant can introduce documents/evidence whenever they want up to point of judgement. However, this ultimately count against them as they seriously lost credibility in the eyes of the Judge today I believe, due to the NoA issues and the T&Cs changing all of the time.
If you are going it alone, explore all possibilities and go on the offense against the claimant. Its not enough to rely on a dodgy agreement I believe, this is what I have picked up from solicitors and barrister - in my case the claimants were arguing that the agreement plus the T&Cs constituted a valid satisfaction of S78(1) - if they were legible they might have had a stronger case as it appears there is case law to support this, fortunately for me the Judge wasn't satisfied in the legibity in either, therefore ruled they could not be confirmed as linked. Also do not take anything the DCA states as the truth - they produced 3 sets of T&Cs in my case once the claim had begun, each time saying these were correct. My barrister really went for this and when Cabot's legal guy was on the stand, put him to task asking if he could certify that these were indeed correct given the history and the manner in which they were produced - in an email from another person / company who are the current administration company for MSDW accounts. He could only answer 'To the best of my knowledge', thats not enough fortunately, theres case law supporting the 'certified' stance. Also, Cabot produced the 2nd set of T&C that were for Standard & Platinum cards - mine was a Gold card. You have to attack this whilst clearly setting out the issues with it. We did this in the defence and they rectified it a week before trial with the 3rd set, but it was still really valid as it shown the Judge the manner in which Cabot were bringing their case.
If you are going it alone, understand case law, the acts you are going to rely on and also understand the cases where your points were ruled against in parts so you can have an argument ready for this. These circumstances all occurred today but I was fortunate to have a solicitor with over 5 years of experience in CCA law and a great barrister who were able to argue on the same level. Its safe to say that the final 30 mins of my trial was above my head, it was all case law, section references and rulings.
Its not really enough to continue down the 'I have no knowledge of this debt' stance anymore, I picked this up from the solicitors & barristers. I admitted I took the card out and used the service. I pleaded I ran into financial difficulty then when further in difficulties sought to confirm Cabot's legal right to collect on my debt. This apparently is seen far more favourably by the Judge in considering the situation. Of course that is down to the Judge perhaps.
Know how to plead your case, everyone is different and should be tailored on the merits of yours - embarrased defences that then set out the reasons why but then go into great detail around what they should have done giving case law etc won't cut it - you have to go on the offensive and put the claimant to strict proof using the CPR routes available to you, then include that in your defense outlining why the case should be struck out if non compliance occurs. This was something said to me by my solictor from his experience in defandants picking up skeleton arguments from forums and not dealing with the particular issues in each unique case. If in doubt, seek advice. I personally believe these forums are a great service to us all, I would not have won today without them, but I can see the point that its dangerous to pick up a template from a thread and use it in your case when some points may just not apply - it will be picked apart from the claimant in court.
The above said, my solicitor and barrister were always confident about the S78(1) argument in this case, however Cabot could have produced a legible agreement on us 5 mins before the trial began - granted we would have went for an adjourment to consider our position, but it was always in the back of my mind the past few weeks given the way Cabot seem to do business.
I got a great result today though, and its worthwhile pointing out that Cabot were always up against it with an agreement that was not 'easily legible'. I'm over the moon and feel like a weight has been lifted off my shoulders. Plus Cabot got a real kicking from the judge, and I understand its not the first time this month, so they have to be shaken I hope and perhaps will reassess the way they do business? I'm not holding my breath though!
I've rambled on a bit now, sorry. I have probably missed something important out too, so please, anyone, feel free to get in touch and ask away. I've only been through this once now but hope to use my experience to assist others.
The advice I have given above may not be agreed on by everyone, it is my own advice based on my experience and conversations with people in the legal profession. Its not meant to give anyone false hope or indeed deter anyone from any actions, I am just trying to be as honest and truthful as possible.
Mods, please feel free to move to Legal Successes.