There was a claim for s69 and contractual interest at the original hearing, the DJ would not grant the claim and only gave judgement on the amount of the claim plus costs.

Another twist in this case, no wonder I am in ill health. I received the written judgement on the charging order and inspite of what the DJ said about the claimant not being able to add interest after judgement the order says that the charging order is for the amount of the judgement debt plus any interest. I then get a statement of account from the claimant and guess what, they have added over £300 in interest back dated to before the court hearing. Two things here, firstly I need to appeal against this, secondly what procedures are in place to make a complaint about the conduct of a DJ that says one thing in court when he passes judgement then another thing on the actual written judgement?

Many thanks Andy, I will keep this for future reference.

I took advice on this. the judgement was a forthwith order and it made provision for the Claimant to apply for a charging order (The CO was not included in the original judgement, just a provision that the Claimant may apply for one but that did not mean one would be granted automatically, the Solicitor I spoke to said that what had been done was quite legal because the order had not been granted but unless I could pay the judgement in full then it was likely such an order would be applied for and granted. Needless to say the claimant did apply for a charging order and this was granted by the DJ at a hearing last week. I attended the hearing because at the first hearing where the CCJ was granted the DJ made it specifically clear that no interest could be charged on the judgement debt because it was below £5000. At the hearing for the CO the claimant wanted to put the CO on my property for the judgement debt plus any future interest on the debt. I challenged this at the hearing citing the original judgement and what the DJ had said. The Claimants Barrister argued that because the judgement did specifically say that interest could not be charged on the judgement debt that the Claimant was entitled to do so. The DJ was having none of that and said interest could not be charged because the County Court Act did not allow interest to be charged on a judgement debt of less than £5000. However when I asked the DJ to put that in writing in the judgement because I did not trust the Claimant as their practices for pursuing me to date have been highly questionable he got a bit stroppy and said there was no need because the law did not allow it anyway and the Claimant should be aware of this. He said worry not they can't charge interest. I have searched for this in the County Court Act but can't find anything about the £5000 rule, can anyone point me to the relevant ruling on this?

Yes actually I did request proof after I had found out that the Claimant was not going to produce the originals. However this was totally ignored by the Claimant, and the DJ for that matter. In the Court the Judge started by saying that he had read all the paperwork and my statement thta I had prepared and sent in advance which outlined all my reasons for defending the Claim, quite detailed and well set out (Judges comments, not mine). But he was having none of that and was prepared, as I have said, to accept the Claimants reasons for not producing the originals. He also added that I was paying the debt and had acknowledged that I owe it so could not offer any reason for not making a judgement. I expected a Judgement, and in one way I did win on the issue of interest but what really annoys me is this charging order. i have been reading up on this and as far as I can understand it I thought that a charging order could only be applied if I defaulted on the judgement debt. If this is the case I am of a mind to try and defend this when it comes to the hearing although the DJ did say that there was not much point in my attending as it would be granted anyway.

Yes, they were photocopies of the original

Well I had my day in Court but unfortunately it wasn't my day. My defence was based on the fact that the claimant had failed to produce an original agreement or DN after a CPR request, the claimant wanted to charge interest on the debt both before and after judgement even though they had previously agreed to freeze the interest. The DJ had given in his directions that originals must be brought to the hearing but the Claimant had confirmed the originals had been destroyed and that they were not obliged to produce them quoting the Cary case. My argument was that Carey was to do with section 78 and not a CPR request. At the hearing the judge decided that the Carey case was a valid argument and accepted that the copy agreement was sufficient, when I questioned it's vaility because the T & C's were on a separate photocopied sheet and there was no proof that the signed agreement and the T & C sheet were connected he said that in view of the fact that the debt was quite old and had been sold on twice that it was not surprising that originals were no longer available and he had to base his decision to allow the copy as valid on probabilities, he said he was satisfied the claimant had made every effort to produce the original and under a CPR request it was a valid argument if the claimant could not produce something that was not available, in that case and with the decision on the Carey case he accepted the copy as a valid document. As for the DN he said because the debt should have been paid years ago that the contract had effectively terminated anyway and so a default notice was not required to be produced. He then went on to say that the way the claimant had dealt with this matter was questionable and had many shortcomings but it was out of the Court's jurisdiction to deal with that and any complaints should be addressed to the OFT. However he did refuse to allow any interest to be added to the debt. Then he dropped a bombshell by giving judgement forthwith meaning that the debt was due as of the date of the judgement, he then went on to say that he would allow the claimant to make an application for a charging order (this was never even mentioned in the claim). He then ordered that the judgement could be paid at a minimum £xx per month which he based on my financial statement and what I paid to other creditors and that as long as the minumum payment was made that the claimant could not take any further action (i.e forcing the sale of my house, forcing me to increase instalments or demanding the whole debt at once). The judgement can however be reviewed in two years time if the claimant wishes to do so. Oh well, what can I say. There is to be a further hearing where the DJ will grant the charging order, I was told I could attend but it would not make any difference as to the outcome.

The original agreement was with Frizzell Bank but this company was bought out by LV.

Hi Been away so not had chance to update you. The directions were quite simple. 1. Each party shall deliver to every other party and to the court copies of all documents which will be relied upon ion the hearing, no later than 14 days before the hearing 2. The original documents shall be brought to the hearing I did contact the court to say I had not had any papers from the Claimant, however they checked their own records and they had received papaers, then the day after I received papers, albeit less than 14 days but they had been posted five days prior and should really have arrived earlier. But the papers that the claimants have sent me include a statement which says they will not be producing any original documents as they were destroyed some time ago, it then goes on to say that they are under no obligation to produce original documents (again quoting Carey). It would appear therefore that they intend to challenge the DJ on his direction to produce originals.

The creditor refused to go to mediation and so the court set a date for the hearing. The DJ stipulated that all parties should send copies of all documents to be relied on in court both to the court and each other. I have sent my papers but the creditor has now failed to send me any papers and there is now less than fourteen days before the hearing. this puts me at a disadvantage. Am I now entitled to write to the court asking for the case to be struck out as the creditor has: a) failed to send me documentation they will use in court b) failed to comply with my CPR request to make available the original default notice and agreement (the DJ has stipulated that all originals must be brought to the hearing)

After a long silence and nothing in response from the Claimant about my CPR request I have now had a letter from the Court. They have made a judgement without a hearing that this case should be dealt with by mediation which is a free service offered by the Court. The judgement goes on to say that if both parties do not agree to mediation or mediation fails then a hearing will be arranged at a time and date to be notified. If a hearing is called then both parties must supply to the court and each other all documents and they will rely on at the hearing, but the best bit is that the DJ has ordered that only original documents will be acceptable at the hearing. I doubt the claimants have the original agreement or default notice. I will let you know how the mediation goes.

Actually there is no record of this debt on my credit file, I do keep a regular check on this because I am having trouble with another creditor over something on my credit file (but thats another story). Something I have noticed, but it is not really significant in the context of a possible CCJ is that I know from a letter I received from this creditor last year, and experian, that they made an enquiry against my credit file with experian, at the time they were checking against my financial statement I had sent them to see what my credit file said I was paying my creditors and what I owed them. However looking at the copy agreement they sent me there is no authorisation for them to check with a credit reference agency, only that they can supply information to an agency.

The claim was not sent through the Northampton Bulk Processing Centre, it was sent from a local county court and has now been transferred to my local court. When the court claim was sent to me it inlcuded a copy of the front of the agreement and not the reverse, a copy of the deed of assignment of the debt and a full statement of account and NO default notice. After my original CPR 31.14 request they sent me a photocopy of the alledged reverse of the agreement, a further statement but still no Default Notce. Looking at your advice you suggested I send a CRP 31.14 request, however I had already done that and I did get a response, almost by return and as I said they sent a photocopy of the signed agreement, a photocopy of the reverse and a statement but they said they were not required to provide me a copy of the defult notice. I guess therefore that i should follow up with the cpr 31.15 request now.

Thanks for this, I will send the letter today but the problem is that the AQ has to be in at the Court on Monday. I can take that in personally so have until Monday to complete it. So if I send in the AQ do I need to add anything about the CPR request, failure to supply the default notice etc?

Looking at the agreement I actually thought they could charge interest after judgement "Failure to pay on time - We have the right to charge interest at the APR shown on all overdue amounts ..........This will be calculated on a daily basis from the date the amount became due until it is received and will remain before and after any judgement" With reference to the default notice, no I have never ever had one, even though the POC refers to one, and when I made a CPR 31 request they denied having to provide one because the contract has expired. I have never had any charges or interest applied for late payment on this account, I do have an up to date statement and no charges have ever been added. What I do have though is the attached letter which clearly shows that they would freeze interest and charges as long as regular payment are met, and they have been, every month with never a miss. This letter was sent to me two years ago. 2010074.pdf

Thanks for the advice. I don't have a court date yet but have to complete the AQ. If it does get to a hearing, which I think is likely then I suppose it will be down to the DJ in the end. However I am still concerned about this matter of them wishing to add interest after judgement at 16%, plus 8% under section 69, and then using as proof the Director General of Fair Trading vs First National Bank. I am no legal expert but having looked at this I can't see where they are coming from on this.

Agreement attached 2010073.pdf

it was Liverpool Victoria but they sold it one to another company, which I would rather not name as they have already accused me of compiling a defence from an internet forum

Defence is below, I have edited out dates and amounts. Except where otherwise mentioned in this defence, we neither admit nor deny any allegation made in the claimants Particulars of Claim and put the claimant to strict proof thereof. The Agreement referred to in the particulars of claim relates to a Credit agreement regulated by the Consumer Credit Act 1974. Under the said act there are certain conditions in law which must be complied with if such agreement is to be enforced by the courts. A copy of the purported contract that the Claimant cites in the Particulars of Claim, and which appears to form the basis upon which these proceedings have been brought is a photocopy with nothing to prove that the copy of the credit agreement is a genuine copy of all parts of the original document, the signed agreement refers to terms set out overleaf but there is nothing to link the photocopy to those terms. The claimant is put to strict proof under the CPR 32.19 to produce the original agreement with the terms set out overleaf as stated. The claimants Particulars of Claim refer to a default in "approximately [date given]" yet no proof of default has been attached to the Claim form and the claimant has failed to comply with a request for proof of this under a CRP 31.14 request. We put the claimant to strict proof that a valid default notice was sent to us. We note that to be valid, a default notice needs to be accurate in terms of both the scope and nature of breach and include an accurate figure required to remedy any such breach. The prescribed format for such document is laid down in Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) and Amendment regulations the Consumer Credit (Enforcement, Default and Termination Notices) (Amendment) Regulations 2004 (SI 2004/3237). Failure of a default notice to be accurate not only invalidates the default notice (Woodchester Lease Management Services Ltd v Swain and Co - [2001] GCCR 2255) but is a unlawful rescission of contract and would prevent the court enforcing any alleged debt. The claimant claims interest at 16% per annum from [date of claim] to the date of the hearing and thereafter continuing. However on the [xxxxxx] the Claimant agreed to suspend all interest and charges on the account as long as regular monthly payments were met, (a copy of this letter is attached to this defence) at that time [xxxx] per month was agreed and accepted by the Claimant. Regular monthly payments have been met as shown on the attached statement and interim account reviews have allowed for adjustments in the agreed reduced payment. Although payments are minimal they have been paid on a monthly basis, the last payment having been made on the xxxxxx of xxxxx The Claimant claims interest pursuant to section 69 of the County Courts Act, 1984 which the Claimant should surely know they are not entitled to by virtue of the County Courts (Interest on Judgment Debts) Order, 1991 (SI 1991 No. 1184 (L. 12)) in particular section 2(3), which clearly prohibits such an award. The Claimant has accepted regular reduced monthly payments since the debt was assigned to the Claimant and also on interim reviews of the defendant’s financial position. The defendants submitted a revised financial statement in December 2009 with offer of monthly payment of [£xxxx] which the Claimant refused to accept instead demanding a minimum payment of [xxxx] per month to prevent further action. The Defendant’s asked the Claimant to reconsider but the Claimant refused to accept the payment offer. This is in breach of the Office of Fair Trading Guidelines (OFT 2.6 (f)) - pressurising debtors to pay in full, in unreasonably large instalments, or to increase payments when they are unable to do so. The most recent request for an account review was sent to the Claimant on the [date inserted], the Claimant has not acknowledged this. Copies of letters and financial statements are attached to this defence.

Warning triangle? could you advise me on this, where do I find it?

If only, however I can't afford a Solicitor. I did in fact go to see one at a free half hour advice clinic and his attitude was "you can't afford me, I suggest that what you would pay me you should use to pay your debts" Not very helpful when you are at your wits end and losing sleep over a pending court case. But thanks for the cautionary note, it is what I am expecting in court.

This is my creditors reply to my defence: It is denied that the Claimant has any obligation to produce the original document that was signed by the defendants, the Claimant will rely on the judgement Carey vs HSBC Bank. It is denied that the Claimant has any obligation to serve a default notice under section 87 of the CCA. A default notice under the said act is only required to demand early payment. Due to the fact that the loan entered into has expired the Claimants are not demangding early payment and therefore no default notice was required to be served. [Note - I have never ever had any default notice yet this is referred to in the POC but was not supplied under a CPR31.14 request] 3. The Claimant denies it has failed to comply with the request under CPR 31.14 4. The claimant claims interest either contractually or in the alternative under section 69 of the county Cout Act 1984 and will rely on the judgement of the Director General of Fair Trading v First National Bank. It is denied that the Claimant is not entitled to claim interest after judgement [End] I do not deny the debt and would not be arguing over the loan agreement if it was not for the fact they are using it as an argument for being able to charge interest after judgement. There is a section on the copied paper of T &C s that say interest can be charged after judgement but as I have said these T & C's are not attached to the signed agreement and there is no way of connecting the two. So my defence is not denying the debt or evading payment it is really over whether interest can be charged or not and that the case should not have been brought to court anyway considering I have made agreed payments every month no misses. Incidentally I have a letter from the creditor which states that as long as regular payments are maintained then interest and charges will be frozen. However the creditor argues that the letter has no legal obligation on their part.

Could really use some help an advice on this if anyone is able to help. Have to submit my AQ by Friday Thanks

No it is an unsecured loan

You are in a similar situation to me. I put in my defence to court action that a photocopy of the signed agreement refers to the terms and conditions overleaf, however the alleged T & C's are in fact photocopied on a separtae sheet so i have no way of knowing that the T & C's are those that should appear on the reverse of the original. The T & C's state that interest can be charged after judgement and the creditor is using this to claim interest after judgement. I put in my defence that the creditor would have to produce the original as there is no proof on the copies that one part belongs to the other. However I have now been told iby the creditor that they intend to prove in the hearing that the original agreement is no longer required in court following the decision of the judge in the case of Carey vs HSBC. In which case the "is my agreement enforceable" does not appear to have any merits anymore.