I don't necessarily agree with your solicitor as the white book and CPR on costs state otherwise but if the other side try anything as regards costs, you can blame the solicitor for negligence so they should cover your costs. Wish you well.

Unfortunately, I am only reciting what the authorities tell us so you may not agree with them but they are relevant. In Kinch using the postal service is deemed served as in the paragraph highlighted in my earlier post where the post man is deemed to have served it. In Van Haarlam, the spy did not take receipt of the notice. Thus when you put those two authorities together, using postal service is a good way of serving even if there is no receipt of the notice if they can file a witness statement stating so. Remember that s 3 is separate from s 4 and that may not do your argument any favours but it is what the authorities tell us. You are focusing on s 4, but they are relying on s 3. There are more authorities on this matter but I am sure you have already researched them. Also regarding s 3, not having knowledge of the notice does not mean it has been not served (re-affirmed in Blunden para 26). You can't read the authorities in isolation as each case is different thus you have to read them all together as each one is a piece of the jigsaw puzzle. It all depends on the agency solicitors they use and if they are up to par with the authorities but on paper, they are right. Something you may not want to hear or agree with but it is what the authorities tell us. If you are looking to differentiate your case from the authorities, you may need to look at actions which would nullify that such as an intention to hide that fact from you such as happened in Kinch (fraud). On paper, the claimant does not need to produce the actual contract or deed of assignment to give you notice of assignment. As you stated, the dates (Stanley v English Fibres Industries Ltd (1899) / W F Harrison & Co Ltd v Burke and another (1956)) and the amount (W F Harrison & Co Ltd v Burke and another (1956)) needs to be accurate however if there is no date, it is not fatal to the NoA (Van Lynn Developments Ltd v Pelias Construction Co Ltd (formerly Jason Construction Co Ltd) (1969)). In addition, there is no formal template or form for the NoA (Denney, Gasquet, and Metcalfe v Conklin (1912)). I truly hope that the judge throws out the SD and if he/she does, you should be very happy with yourself as in theory they shouldn't.

As mentioned, s 3 is separate from s 4. They don't need to send proof of delivery but a witness statement may suffice to show that it was posted. The point in Kinch is that the husband never received it so in essence it is the same as the situation you clarify. Also in Van Haarlam and another v Kasner and another, the person being served under s 196(3) was in prison at the time for spying charges thus it seems he never received it and the lessers took possession of the premises a few weeks later. Do not forget that an imperfect assignment is not fatal to their claim and even if they did not comply with the provisions of s 196, it only makes the assignment equitable and they may then send a notice of assignment to you to perfect it (may have a case on abuse of process) or join the original creditor in this SD. As mentioned, I would concentrate on other aspects of the case for a set aside as an alternative in case they win that point.

You are liable for costs now if you discontinue as it has not been allocated to a track: http://www.justice.gov.uk/guidance/courts-and-tribunals/courts/procedure-rules/civil/contents/practice_directions/pd_parts43-48.htm#IDAWGB2 The best time to discontinue would be after you file the AQ and it has been allocated to the small claims but that incurs a charge (to file the AQ) and does not stop the other side from seeking their costs under CPR 27.14(2)(g): http://www.justice.gov.uk/guidance/courts-and-tribunals/courts/procedure-rules/civil/contents/parts/part27.htm#IDAOBHCC So you have to check whether you complied with pre-action protocols and whether you have acted unreasonably in litigating without following process: http://www.justice.gov.uk/guidance/courts-and-tribunals/courts/procedure-rules/civil/contents/practice_directions/pd_pre-action_conduct.htm If you need legal advice, may I suggest you seek professional legal advice as to the cost implications of discontinuing the claim and whether a consent order might be useful here to mitigate that.

Unfortunately your view point does conflict with the authorities. See this para from Kinch: Kinch v Bullard [1998], s 4 is treated as a separate provision to s 3 and not as an add on: “Section 196(4) is a separate and additional provision. It provides, in the first place, that if a notice is served by registered post or recorded delivery, then, even if it can be shown not actually to have been delivered at the relevant premises, the notice will none the less be deemed to have been served at the premises, unless returned undelivered. Secondly, it provides that (assuming that it is not returned undelivered) a notice sent by registered post or recorded delivery is deemed to have been served at the time when it would, in the ordinary course of post, have been delivered. The use of the word 'also' near the beginning of s 196(4) appears to me to emphasise that, far from being intended to be a provision cutting down the generality of s 196(3), it is intended to be an additional provision.” Also check Kinch again where the following para is relevant: "So far as the principle is concerned, it seems to me that, by putting the notice in the post, Mrs Johnson effectively left it to the Post Office to serve the notice on her behalf. One therefore has to ask oneself whether the person who was, in effect, appointed by Mrs Johnson to serve the notice acted in accordance with the test propounded by Russell LJ in Newborough. In my judgment, by posting the envelope containing the notice, and addressed to Mr Johnson at the property, through the letter box of the property, the postman served the notice in accordance with that test. I do not think that it is right to test the matter by reference to what Mrs Johnson thought or intended, because she left it to the Post Office to serve the notice. Accordingly, subject to any other arguments, once the notice was posted through the letter box, it had been “served” in accordance with section 196(3), and therefore “given” in accordance with section 36(2), and, as I have mentioned, such a notice cannot be “un-served” or “un-given”." That is only one but there are others such as: Warborough Investments Ltd v Central Midland Estates Ltd and another (2006) Haarlam v Kasner (1992) Blunden v Frogmore Investments Ltd (2002) I personally wouldn't use that as the sole point to defeat the SD.

Now you are stretching the limits of my knowledge on costs. They would apply BUT there is no guidance on what costs would be included. The problem is that order for questioning is not enforcement but a view to enforcement thus as long as it is not unreasonable or extortionate, then it should be recoverable.

You are going in to a complex area of law believe it or not. Costs have their own specialist barristers and solicitors. Normally, for costs of unsuccessful execution or enforcement, an application notice must be filed if the order was silent about costs (CPR 44.13(1)(a)). Again, it must be backed up by a witness statement. You may be able to recover those fees but only if the court does not believe them to have been unreasonably incurred. Yes if you mention that you want to recover those costs.

The original lender should have some documentation on her loan however once they sold it, it probably got archived and shipped off to a warehouse somewhere or digitised and put in to a network storage facility. The point is that they won't have it to hand as they are not responsible anymore for her but the DCA is. The DCA is entitled to use the photocopy agreement and it is up to the judge to admit it and accept it as fact or not as the case maybe. He refused permission of appeal at the hearing thus she has to go straight to the appeal court BUT seeing that it has been 8 weeks, the chances of the appeal being granted is unlikely as the time limit is 21 days unless permission to extend it is applied for. You can still try but I wouldn't in those circumstances.

To plagiarise consumeredge's succint questions: It will cost £100 for a bailif to serve a N39, if this is unsuccesful can he then ask for the bailif to serve again or will this cost another £100? You will have to fill in form N446 for a re-issue. I can't recall if there is a cost or not as bailiffs are the worst ones to serve hence the use of "tracers" or private investigators in this field to effect service first time. Sorry for not knowing if it is free or there is a cost. You may call the court on Monday to ask them. Once you fill that in, they will re-issue the order and set a new date for the hearing. If the bailif is unsuccesful can he ask the court if there is another way to serve the N39? Yes as per CPR PD 6A para 9.1 but it has to be done at LEAST 7 days BEFORE the hearing and with an application (N244 - cost associated). In addition, prison time is highly unlikely if they don't turn up as it wasn't personal service. And finally is an N39 (summons) deemed as served merely by touching the defendant with the N39? Good question! According to CPR, "a document may be served personally as if the document were a claim form in accordance with rule 6.5(3).". Going back to look at 6.5(3) says: "(3) A claim form is served personally on – (a) an individual by leaving it with that individual;" So in my opinion, a touch is not leaving it with that individual as they have to either have it in their pocket or hand, etc. I have to add that I have not come across any case law for or against "touch". Don't forget you have to file affidavit evidence (EX550) on how it got served. Regarding howardhewit's latest question, about how many attempts. You could two or three after which you can file an application for alternate service. Seeing that the point is having the judgment debtor turn up for questioning, there is no point in filing for an alternative service which they won't turn up for as the court will be highly unlikely to effect a commit order. So it is best to serve personally, and then the court can effect a commit order. HTH.

You are not disagreeing with me. You are disagreeing with the High Court and the Court of Appeal and you are entitled to your opinion, despite it not being binding on anyone except yourself and the people you convince that it has no relevance. I am just repeating what they are saying as their opinion, dear fellow, carries more weight than anyone here including mine. EDIT

That is something you should have negotiated with them as part of the TO, thus they would not contest the set aside of the registration as long as you signed the TO. A way to put it across would have been that if I sign the TO and I don't keep up with my repayments, you can seek judgment/registration automatically with great difficulty to myself so you would not have lost anything as the TO would have safeguarded your judgment/registration. Now it would be a tad bit late but you can always ask as nothing ventured, nothing gained. Glad to hear it went well. Stay out of trouble.

Mould, thank you for your tirade and I am sure it was not directed at me as I did not have the good fortune or misfortune of crossing your path. I can't comment on your previous stance and your past dealings with however our interpretation of statute and its SIs is irrelevant here which is why we have case law to help guide us. With access to law material like you have, it should be obvious that the law is an organic thing that changes every day thus a ruling one day which is a precedent may change the next day as not every case is identical. It is a best fit model when using precedents. It is not that anyone was wrong or right, it is the best decision at the time. That is one of the ways legal professionals base their educated opinion on matters. They look at the case law and try to look for differentiators in the case if the precedent is not for them or look for similarities if it is. Case law is like a map drawn on a beach with the tide coming in, it can change at any moment or even get wiped off. So at the moment we have Harrison and Brandon which state that they can re-serve the default notice despite your repudation of contract argument, thus unless another precedent changes that, that will be the de facto stance because unfortunately, our word is not the law despite how we want to interpret statute or the SIs.

You can be assigned proportions of costs therefore, 60% for the claimant, etc. It just means that the proportion of costs will be 100% however the standard costs can still be scrutinised. So if the costs before scrutiny is £3K, and the costs judge awards £2K, then they get £2K. For the second point regarding CPR 44.3, it means they are at risk of an adverse costs order against you.

In my opinion, which is not worth much as my thoughts are not binding on lower courts or ANY court : 1.) You are in breach as you can't end the agreement without following the rules of CCA yourself. For example, to terminate a regulated hire-purchase or conditional sale agreement, you have to follow the provisions of s 99 of CCA 1974. Also to terminate a term loan agreement, you will have to pay the outstanding amount minus any rebate due to discharge your obligations. To prove that you don't owe the creditor anything, you can send a notice to the creditor as per s 103 stating that you have terminated the agreement, etc. 2.) No as you still have outstanding obligations under the contract. Remember that non-compliance with the default notice by the debtor allows for the term debt (monthly instalments) to be accelerated (one full payment). Again, in my non-binding opinion, if they can't enforce the agreement because they did not comply with CCA, then how can they be expected to terminate the agreement as one follows the other. Therefore if the CCA stops me from enforcing an agreement because of a faulty default notice, s 78 breach, etc., then it stands to reason that I can't terminate unless I comply correctly. Just my 2 cents and it might be worth reading the posts of DonkeyB and dadofholly from page 7 onwards. They are enlightening and unbiased. It would be good for a test case to go through the courts to see how many bites of the cherry they can have before they are deemed not able to enforce the agreement due to breaches of the CCA 1974.

Under CPR 36.10, the claimant will be entitled to the costs of the proceedings up to the date on which notice of acceptance was served on the offeror. Therefore you will have to stump up all costs as it is standard costs and if you disagree, then it will go for a costs hearing however CPR 44.3 is not applicable as the judge has no discretion as to the proportion of costs to award, thus it is 100% of costs to claimant when it is calculated. You also have to pay within 14 days unless you agree a different time scale as the claimant may seek judgment on the agreed amount as per CPR 36.11. If you don't pay within the agreed time scale, they can also seek judgment under the same rule. You can ask for what ever time scale you feel would give you enough time to pay. You may lodge a counter offer and see what they say. You don't have to use a formal part 36 offer but something called a Calderbank letter which is an unofficial version of a part 36 offer but without the stringent requirements. For you (defendant), the cost consequences are similar to the part 36 offer due to CPR 44.3. I can't comment on this letter and offer any thoughts on it but I assume that the offer period has expired. Why the change of heart on their part? What did you do?

I think you are getting two issues muddled up. The first is the point of liquidated damages for breach of contract by Brandon, with second being the counter claim for loss of reputation as regards reporting of default. They are mixing terminology here. Look at the whole of para 42. He did not express an opinion that they were penalty charges or not as the case maybe. This does not detract from the earlier precedents about penalty charges. All he is stating is that he agrees with the court in the first instance that if it was penalty charges, which the first instance judge did not find they were, then it would be a reduction of £1000.00, but seeing that they were not held to be penalty charges in the first instance, that is a mute point. As he stated in the first line of para 42 which you quote: "I express no view as to whether it is realistically arguable that the £25 monthly charge was a penalty." When he is talking about the counter claim, that part was dismissed as Brandon was claiming for damages for loss of reputation for reporting to CRAs and that was struck out. There are two heads in this argument, both findings upheld by the CoA but it doesn't mean that the previous precedents set about charges are null and void. It seems that the CoA is happy for this to be argued at trial so left it be.

The English court won't revisit the amount due, that is the remit of the foreign court. It is only concerned with the claim being lawful which in your case it is not, so I would save this argument for the foreign court. If you want to make an offer, you may do so however note that there are normally two types of applications for stay of enforcement. One is to stay the enforcement due to the claim still ongoing such as an appeal, etc., whilst the second type is to ask for an instalment plan. The instalment plan will be based on the 22K so in my humble opinion it is not wise to make an offer at this stage but it is up to you. You should just concentrate on the hearing and disregard the fees for the HCEO. You may ask the Judge for each party to bear their own costs (including the hearing) as due process was not followed (service of documents, letters before action, notification of judgment) and thus why should you be penalised for them steaming through to litigation with out you being aware of what is going on. This is where it gets complicated with interest, it all depends on the initial contract and the foreign judgment but I can't give you a definitive answer right now due to work constraints so I wouldn't mention it at all. Let them make their argument for that. The point to remember is that you did not get served despite the claimant knowing where you are so research the modes of service for this foreign court and make sure you can backup everything in your witness statement either via emails, letters or telephone records. Make sure you have a copy of this evidence with you in court. Good luck buddy.

To be honest, you are asking about banking process now as regards the depth of the search and is unique per bank. We know how they should search but I do not know how the bank will search based on the fact that the judgment debtor has not updated their account details as they should have and neglected that responsibility. Tricky one... you can file the application and then when you serve the bank, you would have a covering letter with evidence as to the change in name, the dates, etc accompanying the interim TPDO. It is up to them how they proceed then.

When they refer to the official sounding supreme court rules, blah blah blah, what they are referring to is the court rules CPR which dictate the behaviour of the court and litigants at every stage. Here is a link for the rules they are quoting: http://www.justice.gov.uk/guidance/courts-and-tribunals/courts/procedure-rules/civil/contents/schedule1/rscorder47.htm Now I am a little bit confused... in the initial post you mentioned that you have the execution stayed and set aside pending a hearing which I assumed was the set aside of the registration of the judgment and then we have the letter from the solicitors stating that you need to serve them with information for the staying of execution hearing? I guess what you have is the hearing to stay the execution and not the hearing for the set aside of the registration. They are right that they need 4 days minimum and you will have to send it to the solicitors representing them and not the claimant so you can use that as an excuse as the solicitors did not notify you of their representation until today so you sent it abroad to the claimants. I am assuming that you already filed an N244 with what you would like the court to do and why as well as a witness statement for the stay. That you need to send to them as well. If no witness statement, you will need one verified with a statement of truth. Look around here for formats on how it should look like but look at the content below of what it should contain. Amend to suit. You mentioned the third point in the list as reason why the execution must be stayed and the judgment not registered. Therefore you do submit to the jurisdiction of the foreign court (still have no idea where it is) and that you were not served. In that case do research on how they should have served you and mention how they should have served you but they didn't; how you should have got notice of the foreign judgment being registered but you didn't get it either, etc. Say that you dispute the amounts owed and that if given the chance to represent yourself at the foreign court, you would have. File it at court unless you already have a witness statement filed there. Ps. Sorry about the formatting, I tried for 20 minutes to get it looking right but it is still awry! I am also aware that this post jumps pillar to post (pun points = 10) but I am dumping my thoughts as I go along so re-read it a few times if necessary. Good luck.

Hmmm... on an unrelated note, we seem to have a lot of enforcement action here. Anyway, TPDOs are a mine field and are not as straight forward as most people think. First off, you don't have to know the account number or sort code BUT there must be a belief that the judgment debtor has an account there as the court will not grant an interim TPDO on a speculative basis. Normally to find out information, an order for information is sought to get an officer of the company, to attend court to provide information about their finances, assets, etc. Service of the interim TPDO, if granted, needs to be served on the third party. Good practice and common courtesy is to serve it at the bank's head office AND to send a copy to the local branch if known. Once the bank gets it, they will carry out a search to identify all accounts held. I don't know of any limited company that does not have a bank account in its name regardless of the trading name. Once you have the information such as account numbers and balance, the final TPDO hearing takes place where it is granted or dismissed. Just be prepared for the speed this goes at because an application for TPDO is normally treated on an urgent basis so you are likely to get an answer the next working day on your application. You also have to think about tactics and pick the moment when you believe their account will be in credit and have enough funds to cover your judgment + costs. Ps. Is it possible that they are using another company to collect payments for them such as an agent?

As this is a foreign judgment being registered, the set aside application will look into whether the judgment should be registered or not. You should have also received notice of registration with details about the judgment and your right to have it set aside as well as the time limit for doing so. Reasons for restricting the registration of a foreign judgment are: - the foreign court acted without jurisdiction. - you neither carry on business nor ordinarily resident within the jurisdiction of the court by which the judgment was given, did not voluntarily appear or otherwise submit or agree to submit to the jurisdiction of that court. - you were not duly served with the process of the foreign court and did not appear at the foreign court, notwithstanding that you were resident or carrying on business in the jurdisdiction of that court or agreed to submit to its jurisdiction. - the judgment was obtained by fraud. - that you satisfy the court that an appeal is pending or that you are entitled and intend to appeal against the judgment. - the cause of action is contrary for reasons of public policy. So it all depends on the finer details of your case which you are privy to. Just food for thought.

This law applies to all contracts in the general sense of the term. It is in my internet contract, my online sales contract with a retailer, my loan, credit card, etc. It touches all facets of our lives. It amends the common law doctrine of the privity of contract and allows a third party who is to benefit from a contract between two parties to enforce the terms of that contract. It has nothing to do with assignment and the sale of an asset which is what your debt is. There is a most likely a clause which states something along the lines that they may assign, transfer any of their rights or benefits, and the debtor's liability under the agreement to any person or entity. Again, this has nothing to do with third party rights. I know that you are looking for the magic bullet but this isn't one and has nothing to do with legal versus equitable assignments. May I strongly suggest you get a copy of the "Chitty on Contracts" 30th Edition to read. Google doesn't do these specialist areas justice thus why you need a reference.

Not a problem. When I mean by good reason is a good reason for this hearing to take place in front of a judge instead of a court officer. You do not want the hearing in front of the judge in the first instance because the normal process is that you or your representative will have to question the debtor, no written record will be kept as you will be doing the questioning but there will be a recording, and form EX140 will not be used. The alternative is that the court officer will question the debtor along the lines of EX140 as well as your addendum. So I would personally go with the court officer. It is another option to consider but you have to follow the process. Please read CPR 71. So submit the application without notice to the debtor. Then personally serve the debtor the order. Fill in affidavit evidence. Attend court. Good luck.

Don't confuse assignment with third party rights under a contract. Third party rights are where you promised your relative that you would buy something for them on your credit card for argument's sake. Then the credit card company refuses to process that transaction. Your relative can't then sue the credit company for that breach. Very simplistic example but you get the gist. Google privity of contract. Basically, you are barking up the wrong tree but I like your lateral thinking.

Thank you SG. I want to express the same sentiments as caro and wish you all the best. You would think that because an agreement is only for 30 days, that interest stops however what is the difference between that and a loan that got terminated and they still are charging interest post termination, or a 2 year loan that was supposed to be paid off in full in 2 months and we are now 3 months post default and they are charging interest. There is none and it is at the courts discretion. I appreciate the fact that you say you are not legal however we all have a responsibility for what we say and can't use that as an umbrella in case it goes wrong or if we can't explain what we are espousing. Ps. Common sense is not equal to law. Common sense dictates that.