Only had a very quick squizz at the reply to defence but good they have attached so much importance to the DN and confirmed it was compliant as they used an 'equivalent first class service'. What's that? Harry Potters owl? As they've confirmed this and they are the claimant you'll be able to get them to prove they used such service, until they do second class service was used. Regarding the DN however if your case comes down to such matters and you get a judge who knows the CCA and the importance of the DN in the process you may have to be mindful of the Brandon case. Some idiot in the high court decided they'd ignore parliament and rule that a short dated DN is perfectly fine . Believe its been appealed and common sense should prevail but bear it in mind if Optima try to use a widely condemned and criticised example of 'judiciary excellence' to get round the DN. If it does come to that suggest the claim is eventually settled dependent on the outcome of the appeal - only fair.

Don't suggest anything, just inform them so they are under no illusion that you will bring this to the attention of the court. Not only are they late but they appear to have left information out contrary to standard rules of disclosure. You are merely asking them why. Don't be accusative, just steer things along and point things out. If they think its enough of a problem they'll act. If they don't then carry on as normal and ensure the court is aware of their actions.

Certainly. I'd ask why there are major discrepencies between what the bank has supplied and what you have obtained elsewhere Bet they'll be chuffed.

We all hope of course that the Brandon case is appealed successfully. If the high court are effectively allowed to make things up as they go along the entire point of statute would be pointless. :-|

Would agree, however this goes to show that actually the creditor debtor relationship is far from a level playing ground and this is wrong on so many levels. Is there any other scenario where one party ignores rafts of regulation and 'consumer protection' to issue legal notices incorrectly that are subsequently registered for the world to see with no real recompense for the injured party? I mean, have you tried getting an invalid default removed after a creditor has terminated? Course most of you have You get a wave of excuse, typically along the lines of: No it's not invalid. It might be invalid but what are you going to do about it? Yes it's invalid but we don't have to remove it. The CRA's are just as weak. Clearly not wanting to upset their 'customer base' they readily accept any excuse the registering party offer as to why it should stay there 'as an accurate record of your payment conduct'. The CRA's are not a government agency yet seem empowered beyond their means knowing the banks have got their backs. They deny its anything to do with them, they just do what they're told by the creditor so 'You'll have to take it up with them'. Cue more ignorance. We're all familiar with the letter tennis that can run to month after month and if you get nowhere you can always go to the 'authorities' . They must love sticking that cruddy leaflet into the final response envelope knowing you're screwed. Ha ha, more months of form filling and waiting just to have an overworked and under powered 'investigations officer' issue a template letter full of excuses and waffle. It is so one sided when a creditor makes an error however if a debtor does the same the creditor leans on all sorts of allowances to make it cost you. In reality where a creditor has messed up there seems little you can do other than risk a protracted and risky (in view of sufficient judge ignorance and bias) legal battle just to get something corrected! There really needs to be a change and a new line of action open that doesn't automatically write off the next 18 months of your life purely to get a creditor to comply with very basic and well established regulation. Makes me mad. We really need to work co-operatively on a new or revised line to take. This cannot go on.

Have you asked to inspect the notice of assignment from the original creditor? There may be a couple if it's been passed around, or should be at least. More importantly however is the actual deed of assignment. The true owner should be able to provide evidence that they legally own the debt and accordingly have the right to then pursue payment for it. Needless to say you are still entitled to a copy of the agreement and associated terms and conditions at account inception along with all T&C's as varied. The majority of Marbles 'agreements' are a joke so hugely unlikely its even enforceable. Unfortunately though this won't stop a DCA insisting it is and we all know the 'authorities' are useless.

Unlawful passing of account? Invalid DN? Termination? Sounds familiar. Do what I'm doing if they litigate. You submit a defence, they discontinue and then you counterclaim for unlawful repudiation of contract, injury to credit and a whole load of bits. My hearing is due late October and they're wriggling I can tell you. More here if you're interested http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/221243-link-financial-check-out.html

Agree, Barclaycard refuse to issue anything despite a wait of more than 20 months. They are now hiding behind the obvious fact that they do not even appear to have copies of any agreements. Very poor. Before this Kneale case I did use 31.16 but laid out a list of reasons as to why I wished to inspect a copy of the agreement. Unlike the Kneale case which appeared to have just asked for it with no actual reasoned principle behind it (the fishing trip) I detailed concerns about interest rates etc stating from memeory that I thought the rates offered were different to that shown on statements etc. I gave a few reasons anyway, all supported further by their lack of CCA compliance from an original request. Still waiting for a response, even an acknowledgement. I believe 31.16 is still very usable but also believe you must supply ample reason for the request once they've failed to respond to a CCA request. We'll see what happens but I'd not be surprised if BC now choose to hide behind this Kneale farce to escape all of their duties. We'll see I guess.

Didn't mean to add all of that but it won't let me remove it now. The 31.6 is the main bit for you here

I would certainly be very keen to ask the bank why they failed to supply documentation that puts them in a bad light when Cobbetts supplied the same to you quite freely. The bank has an obligation to disclose not just what is good or neutral for them, but everything including anything that may lessen their chances of winning. Not sure what sort of disclosure the judge may have ordered for your case as have forgotten the numbers involved as well but if you refer to CPR 31.6 you'll read the following. Civil Procedure Rules What's New? Rules & Practice Directions Schedule 1 - RSC Schedule 2 - CCR Pre-Action Protocols Glossary Index Forms Court Guides Updates & Zips Statutory Instruments Consultation Contact Search area: Search See also Practice Direction 31 Part 31 DISCLOSURE AND INSPECTION OF DOCUMENTS Contents of this Part Title Number Scope of this Part Rule 31.1 Meaning of disclosure Rule 31.2 Right of inspection of a disclosed document Rule 31.3 Meaning of document Rule 31.4 Disclosure limited to standard disclosure Rule 31.5 Standard disclosure – what documents are to be disclosed Rule 31.6 Duty of search Rule 31.7 Duty of disclosure limited to documents which are or have been in a party’s control Rule 31.8 Disclosure of copies Rule 31.9 Procedure for standard disclosure Rule 31.10 Duty of disclosure continues during proceedings Rule 31.11 Specific disclosure or inspection Rule 31.12 Disclosure in stages Rule 31.13 Documents referred to in statements of case etc. Rule 31.14 Inspection and copying of documents Rule 31.15 Disclosure before proceedings start Rule 31.16 Orders for disclosure against a person not a party Rule 31.17 Rules not to limit other powers of the court to order disclosure Rule 31.18 Claim to withhold inspection or disclosure of a document Rule 31.19 Restriction on use of a privileged document inspection of which has been inadvertently allowed Rule 31.20 Consequence of failure to disclose documents or permit inspection Rule 31.21 Subsequent use of disclosed documents Rule 31.22 False disclosure statements Rule 31.23 Scope of this Part 31.1 (1) This Part sets out rules about the disclosure and inspection of documents. (2) This Part applies to all claims except a claim on the small claims track. Meaning of disclosure 31.2 A party discloses a document by stating that the document exists or has existed. Right of inspection of a disclosed document 31.3 (1) A party to whom a document has been disclosed has a right to inspect that document except where – (a) the document is no longer in the control of the party who disclosed it; (b) the party disclosing the document has a right or a duty to withhold inspection of it; or © paragraph (2) applies. (Rule 31.8 sets out when a document is in the control of a party) (Rule 31.19 sets out the procedure for claiming a right or duty to withhold inspection) (2) Where a party considers that it would be disproportionate to the issues in the case to permit inspection of documents within a category or class of document disclosed under rule 31.6(b) – (a) he is not required to permit inspection of documents within that category or class; but (b) he must state in his disclosure statement that inspection of those documents will not be permitted on the grounds that to do so would be disproportionate. (Rule 31.6 provides for standard disclosure) (Rule 31.10 makes provision for a disclosure statement) (Rule 31.12 provides for a party to apply for an order for specific inspection of documents) Meaning of document 31.4 In this Part – ‘document’ means anything in which information of any description is recorded; and ‘copy’, in relation to a document, means anything onto which information recorded in the document has been copied, by whatever means and whether directly or indirectly. Disclosure limited to standard disclosure 31.5 (1) An order to give disclosure is an order to give standard disclosure unless the court directs otherwise. (2) The court may dispense with or limit standard disclosure. (3) The parties may agree in writing to dispense with or to limit standard disclosure. (The court may make an order requiring standard disclosure under rule 28.3 which deals with directions in relation to cases on the fast track and under rule 29.2 which deals with case management in relation to cases on the multi-track) Standard disclosure – what documents are to be disclosed 31.6 Standard disclosure requires a party to disclose only – (a) the documents on which he relies; and (b) the documents which – (i) adversely affect his own case; (ii) adversely affect another party’s case; or (iii) support another party’s case; and © the documents which he is required to disclose by a relevant practice direction. It may be worth a quick email, with copies kept of course for your own records, to this top legal officer of the bank asking why the SAR appears to have been completed minus the banking notes made by the bank manager when you have obtained them elsewhere from another source. Ask the question in its purest form, why has the bank not provided these notes? Not good for them to have withheld such information and suspician wil only be aroused when you mention this to the court I'm sure. Neither party should be hiding anything and to be able to expose the other side to this sort of behaviour, espceially at this very late stage is something of a bonus for you. You might find them start to wriggle a little more if they realise you know what you know possibly resulting in a last minute settlement more to the tune of the amount claimed. Finally, what were the orders of the judge concerning provision of documents to either side? A week seems a little late. Have they not met the directions of the court? Check your court paperwork if you would.

Just my tuppence worth but feel the DN is more likely to be accepted than not. The info about payment clearance times adds some complication but even arguing second class was used and assuming it was actiually posted the day after the date on the DN (the 24th then) service would still be on the 30th a week after it was composed. Payment is demanded before the 20th so by the end of the day on the 19th. That leaves 19 full days to provide payment. If you were to use a debit card and it took 4 days to show in their account that still leaves the recipient of the DN with 15 days. The cheque adds a different angle again depending on variants but is not IMO enough to render it invalid. Certainly not strong enough to rest a defence on should the need arise How does the 'agreement' look? Believe smeg were quite bad at putting those together correctly?

'No flies on us mate' would sum it up nicely I think

It won't hurt to do so. They are not blameless in this as they know they have not responded and do not have the right to benefit from the SJ. If you send it use recorded as it will act as a reminder to them and perhaps be useful to you in the future.

Indeed. They simply fail to realise (deliberately I'm sure in most cases) that CAG would not exist if the financial industry and the parasitic DCA clones behaved themselves. The simple truth therefore is that CAG was born from necessity Like many great inventions of our age CAG is merely a response to a need, a need ironically created by themselves. Like crones gathered around their cauldron they now have the bare faced cheek to point the figure at forum users when their beauty spell has finally been lifted by knowledge to reveal the ugliness and arrogance of capitalistic greed in all its splendour. Suck it up Credit Today users, suck it up.

This is from the Eversheds site. Source: https://www.eversheds.com/uk/home/articles/index1.page?ArticleID=templatedata\Eversheds\articles\data\en\Financial_institutions\Alan_Kneale_v_Barclays_Bank_plc The analysis at the end is in line with the general conclusions we have made. It is not good enough to simply apply under 31.16, there must be good reason to apply and this reason must be well documented and wholly plausible. Justice Flaux has perhaps tightened the requirement up (no bad thing in some ways) resulting in any successful 31.16 application being a very powerful tool, just as it was intended to be. ------------------------------------------------------------------------------------ 26-July-2010 Helpful pre-action disclosure guidance on CCA Claims: Alan Kneale v Barclays Bank plc The High Court has handed down His Honour Judge Flaux's Judgment in the case of Alan Kneale v Barclays Bank plc (trading as Barclaycard) [2010] EWHC 1900 (Comm). The case concerned an appeal by Barclaycard against Judge Halbert's decision to grant an order for pre-action disclosure, compelling Barclaycard to provide an original or photocopy of Mr Kneale's signed credit agreement. Judge Flaux allowed the appeal, dismissing the application for pre-action disclosure and ordering that the Applicant pay Barclaycard's costs both at first instance and before him. Background The Applicant has been a customer of Barclaycard since March 1995. He requested a copy of his executed agreement under s.78 of the Consumer Credit Act 1974 ("CCA"). Barclaycard provided a reconstituted copy of the terms and conditions in place at the time the Applicant entered into the agreement, a copy of the terms and conditions currently in place in relation to his account and details of the Applicant's outstanding balance, credit limit and date and amount required for the next payment. Barclaycard had therefore complied with their CCA obligations. The Applicant applied for pre-action disclosure of either the original or a copy of the original agreement which was signed by him. The basis of the application was that he could not be sure that the copy provided by Barclaycard was an exact copy of the agreement he signed. The application was supported by a witness statement (made by his solicitor) making reference to publicity generated by a recent 'Panorama' television programme and stating that "it is the Claimant's view from what he has seen and read a large percentage of credit card agreements that were issued before 6th April 2007…are unenforceable". The Judge found it striking that this was the sum total of information provided by Mr Kneale, and particularly that there was no evidence from him as to whether he did or did not sign a credit agreement. Barclaycard, on the other hand, had provided statements from senior employees with considerable experience of Barclaycard's credit agreements. In the County Court, Judge Halbert found in favour of Mr Kneale, allowing the application on the basis that it was necessary for the Applicant to see the original agreement to decipher whether it was enforceable. Judge Halbert allowed Barclaycard permission to appeal his decision. Decision on Appeal Judge Flaux found that there was no positive case advanced that Mr Kneale had not signed the agreement and it was not necessary for him to receive a direct copy of the actual executed credit agreement to see whether the particular agreement was enforceable because a Barclaycard official with considerable experience stated in her witness statement that she was confident that the terms and conditions which were sent to the Applicant were the correct ones. Also, there was no suggestion advanced (nor were there any previous cases in which it had been suggested or proved) that Barclaycard had more than one set of terms and conditions in place at any one time. Judge Flaux found that, in these circumstances, the Court did not have the jurisdiction to make the order because there was no prospective claim for the Applicant; this was nothing more than a "speculative punt". Further, Judge Halbert had erred in the exercise of his discretion to grant the order. Judge Flaux provided a considered and detailed judgment, which was split into three elements: 1. Did the Court have the jurisdiction to make the order? Judge Flaux held that the Court did not have jurisdiction to make the order. The rules surrounding pre-action disclosure are set out in CPR 31.16(3) and the current application failed to meet the requirements under those rules: The application failed under CPR 31.16(3)(a) and (b). To satisfy the requirement that the Applicant and Respondent would both be likely to be parties to subsequent proceedings, there was a requirement that the Applicant must be able to prove that they had a prima facie case which was "more than just a speculative punt". In this case, the Applicant was unable to meet this threshold. However, Judge Flaux, decided that an applicant does not have to meet the stricter criteria of proving a "real prospect of success" for the Court to have jurisdiction. The application failed under CPR 31.16(3)(d). It must be "desirable" for the document to be disclosed to allow the case to be disposed of fairly at trial, to assist the dispute being resolved without the need for a trial or to save costs. On the basis that the Applicant had put forward no arguable case, nor had they put forward any evidence to suggest that they even had the beginnings of a case, this test was not satisfied. The Court did not therefore have jurisdiction to allow the application under CPR 31.16(3)(a), (b) or (d). 2. Was the Court correct in exercising their discretion to make the order? Even if Judge Flaux had found that the Court had jurisdiction to make the order, he would have had to consider the question of whether or not he should use his discretion to allow the order under CPR 31.16(3) - it was clarified that the Court had discretion as a result of the wording "the court may make an order if…". Judge Flaux held that Judge Halbert's use of his discretion had "failed to take account of the speculative nature of the application and any possible claim" and had "taken account of something he ought not to…" by allowing Mr Kneale's argument of necessity. It was not necessary for Mr Kneale to see a copy of the original executed agreement; any case that Mr Kneale may have had could have been made on the basis of the materials which the bank had already produced to him. The Court in the first instance had therefore erred in using their discretion to allow the application. 3. Costs In the current case, the initial decision to allow pre-action disclosure was overturned, so the discussion regarding the initial order as to costs was academic. However, Judge Flaux commented on the basis that the issue was "of significance generally". In the County Court, Judge Halbert required Barclaycard to pay Mr Kneale's costs in the application on the basis that they had acted unreasonably. The standard position is that the applicant pays all the costs in an application for pre-action disclosure. A 2007 Court of Appeal decision, SES Contracting Limited v UK Coal Plc [2007] EWCA 79 ("SES") involved a situation where the respondent in a pre-action disclosure application had acted unreasonably. In this case the Court of Appeal was not willing to push the standard costs position any further than to order that the respondent pay their own costs. They refused to allow the applicant their costs. Indeed, Judge Flaux stated in relation to pre-action disclosure applications that "it appears [from SES] that there had never been a previous case in which a court, however unreasonable the respondent's conduct, had ever gone further than requiring the respondent to bear his own costs". Judge Flaux held that there was "nothing in the manner of the bank's opposition which was so unreasonable as to warrant a departure from the normal order, let alone an order that the bank should pay all the costs". He would therefore have given the usual order as to costs had the application been successful, namely that Mr Kneale would have paid Barclaycard's costs. Analysis This decision is a thorough and well considered Judgment on the criteria for pre-action disclosure and the extent of the Court's jurisdiction and discretion in this area. As such, it will be of interest to anyone involved in litigation. In the consumer credit sphere, this decision sends a firm message to those firms that are pursuing pre-action applications for copies of credit agreements. It will now only be possible to succeed in such an application by putting forward a positive case to suggest the executed agreement was non compliant. Even then, the lender will usually be able to recover their costs and this decision removes any possibility of applicants recovering their costs unless there has been significant misconduct by the lender. However, this decision is also of wider use to lenders in its general approach and robust analysis of the evidence put forward by Mr Kneale and Barclaycard. Many debtors are still seeking to defend consumer credit claims by requiring disclosure of the executed credit agreement and putting lenders to strict proof of proper execution. They rely on general assertions of widespread non-compliance by lenders and seek to question to veracity of the witnesses lenders put forward. The Court's criticism of Mr Kneale's evidence and his failure to put forward information on his own recollections will therefore be useful, as will the Court's willingness to accept Barclaycard's evidence and the conclusion in this case that there was no need to see the executed document to decide whether the agreement was enforceable.

I can recommend Optima to you if you like! Be interesting to see what they come back with anyway eh?

Yes, the time limit was perhaps the immediate concern here but sounds as if you've done all you can given the late notification you had yourself. As for recourse there are options you can take but we'll cross that off if the need arises. Keep us posted ;-)

Ignore that, late night and got threads confused

Would be very cautious using 31.16. Has it gone off yet?

Looks as if you've had plenty of others drop in since I started this which is great. All the best with it, have no reason to believe you won't be successful given what you've told us

Something doesn't add up here, we all agree on that much! SJ is only available to the claimant when the defendant has filed a defence or at least acknowledged the claim, in the majority of cases with exceptions for the type of claim SJ is perhaps appropriate. Clearly it would be for the claimant to then show the defendant has no real prospect of success etc. The fact that a SJ application appears to have been processed this far would suggest that Peedee has certainly had his/her response recognised. That seems safe to presume then. So, if the court confirms Optima have not submitted a defence and that the fee to have the stay removed has not been met something somewhere has crossed. How do we deal with it? Can only suggest highlighting every aspect of the claim in full detail so the judge can be under no illusion that there is a mistake here. Have not submitted one of these myself so cannot write from experience but believe the process essentially involves legitimately refuting aspects of the claim so the judge is alerted to anomolies that need court time to address. I believe given the series of events described that Peedee should have little difficulty opposing this as even the court doesn't appear to know what it's doing. SJ is therefore hardly a safe option to take, even if it were granted I suspect Peedee would have little trouble getting it set aside. Let's try and avoid that though and get the SJ denied. Peedee, in view of the deadlines and possible lack of caggers with a better idea I have used your response and adjusted it. Welcome opinions from others of course but feel this should be sufficient to get what you need. Case No: xxxxxx MBNA Europe Bank Ltd –v- Peedee Dear Sir or Madam I am writing to oppose the claimants (MBNA Europe Bank Ltd.) application for Summary Judgment. The defendant would offer the following reasons in support of this request: The defendant submitted a defence via Northampton County Court on 24th February 2010 The defendant consequently received confirmation from Northampton CC on 1st March 2010 that a defence had been filed The defendant was further informed that the claimant must contact the court within 28 days after receiving a copy of the defence. After that period has elapsed the claim will be stayed and the only action the claimant can then take will be to apply to a judge for an order lifting the stay On 4th June 2010 Northampton CC confirmed the case was now stayed On 30th July the defendant received a letter from Northampton CC stating that the case was being transferred to XXX County Court for Summary Judgement. To date the defendant has not received any correspondence advising that an application has been made to lift the stay. This position was confirmed by XXX County Court on (INSERT DATE) during a telephone conversation. The claimant to date has not made any application to have the stay lifted. To date the claimant has also failed to submit a response to the defence. The defendant understands this case has been electronically transferred to the court for consideration of a Summary Judgment application and the case was likely to be heard this week. Additionally the defendant has had no official notification of the hearing and has not received a copy of the Summary Judgment application from the Claimant or the Court. Irrespective of the matters raised above the defendant wishes to draw attention to facts not addressed by the claimant, which should have been resolved in response to the submitted defence. The defendant avers that the default notice MBNA served does not comply with prescribed regulations and is therefore invalid. MBNA has failed to comply with a CPR31.14 request issued on the (INSERT DATE) for information needed by the defendant. The defendant maintains that documentation provided by the claimant is wholly illegible. The defendant also maintains such illegibility has resulted in essential prescribed terms being missing, which could render any agreement as unenforceable. ANY OTHER ISSUES CONCERNING THE CLAIM ITSELF ADD THEM TOO Whilst these difficulties stand unaddressed and the processing of this claim remains subject to anomoly, Summary Judgment in favour of the claimant is wholly inappropriate. In order to progress this matter the defendant would be grateful to the court for clarification as to the actual position of the claim as the court itself appears to be providing conflicting information as to the present status. To date the defendant remains unaware of any change in the status of this claim and believes the stay granted on the (INSERT DATE) remains. Perhaps add a statement of truth at the end as it will not hurt to include one. Sign it, make sure you print your name underneath for clarity and get it off immediately.

To quosh their argument that the DN was invalid, therefore their initial termination was invalid and they are entitled to re-issue another DN you'll note the excellent comment from X20. I believe you may have already found this but here it is anyway. This will form the foundation of your argument which we'll build once we've covered other vital areas. Courtesy of Surfaceagent x20 post taken from A Tale of a Dodgy DN The contention advanced by ABC's lawyers was that if the DN was ineffective, the termination which ABC subsequently brought about in reliance upon that ineffective DN, was itself ineffective. In support, ABC said that since the law did not permit a creditor to terminate an agreement unless there had been serivce upon a debtor of an effective DN, by extension therefore, rather than having been terminated, the agreement endured. The law in support of this proposition was Consumer Credit Act 1974 section 87(1)(a) which says: (1) Service of a notice on the debtor or hirer in accordance with section 88 (a “default notice ”) is necessary before the creditor or owner can become entitled, by reason of any breach by the debtor or hirer of a regulated agreement (a) to terminate the agreement ABC went on to say that owing to the agreement enduring, ABC were therefore at liberty to serve a second DN. At first blush, that looks quite a convincing argument. The Act itself forbids the creditor the right to terminate save in certain circumstances. So if the required circumstances were not present, how could the law regard the agreement as having terminated? [1] Termination of a Contract and General Principles A good place to start would be to dispel the myth that the law will not tolerate contract breaking. On the contrary whilst not actively ncouraging it, the law will tolerate it. The courts will rarely impose upon one party an obligation to perform under a contract against its will, to do what it failed to do or redo what it tried and failed to do. Instead, what the law will do is on the one hand restrain the contract breaker from procuring the benefits it would have enjoyed had it fulfilled its contractual obligations and on the other, enable the injured party to recover damages flowing from the breach. In Golden Strait Corporation v Nippon Yusen Kubishka Kaisha 'The repudiation of a contract by one party ("the repudiator"), if accepted by the other ("the injured party"), brings the contract to an end and releases both parties from their primary obligations under the contract. The injured party is thereupon entitled to recover damages against the repudiator to compensate him for such financial loss as the repudiator's breach has caused him to suffer. This is elementary law. The damages recoverable by the injured party are such sum as will put him in the same financial position as if the contract had been performed.' What's more, the law will not merrily award whatever loss the injured party says he suffered. The court will require the injured party to prove his loss and further, will expect the injured party to take steps to mitigate the loss. 'An injured party such as the owners may not, generally speaking, recover damages against a repudiator such as the charterers for loss which he could reasonably have avoided by taking reasonable commercial steps to mitigate his loss.' Further still, in assessing damages the law will not even award what the parties may at formation of the agreement have agreed should be payable as liquidated damages in the event of breach. The court will not permit the recovery of liquidated damages unless the damages represent a fair pre-estimate of what loss might flow from the breach. If the liquidated damages are shown to be excessive and unrepresentative of the sactual loss suffered the law will readily declare the liquidated damages as a penalty and unenforceable. In short, not only does the law tolerate contract breaking, but also, it will not tolerate the injured party taking advantage of the wrongdoer. The law does not pounce on the contract breaker to teach him a lesson. The court only awards the innocent party what damages truly flow from the breach. That admits of the possibility that a contract breaker can get away with it. If the injured party is unable to show resulting loss, the injured party may get nothing. 'One must look at the contract as a whole, and if it is clear that the innocent party has lost nothing, he should recover no more than nominal damages for the loss of his right to have the whole contract completed.' [Edmund Davies LJ in 'The Mihalis Angelos' (1971)] [2] Termination in Non-Conformity with section 87. The contention I advance is that an ineffective DN does not prohibit the creditor from terminating the agreement. Termination after service of an effective default notice is lawful termination, but as we have seen, a party may still terminate an agreement and be in the wrong for doing so. The law operates on a wrongful termination to offer to the injured party the choice of accepting the termination or to hold the contract breaker to his promise. In the world of consumer credit, I contend a termination of the agreement by a creditor in terms whereby he announced he would no longer permit the debtor time to repay the credit, was a creditor in repudiatory breach of the agreement, unless in leading up to termination, the creditor complied with the requirements of the Act in circumstances where the debtor was in first breach of the agreement. Further, and it is worth remembering, the Act is an Act for the purpose of consumer protection. The purpose of the Act is not to preserve the rights of creditors in contracts and to protect them from misadventure where for example, they terminated an agreement where it subsequently transpired the termination had not been in their interests. If that were so, the Act would have been an Act for the better protection of financiers. In a proper case, the law will come to the aid of the vulnerable to protect them from the consequences of their contracts (for example the unsound in mind, children, those under duress or undue influence). To suggest financiers fell into that bracket and the Consumer Credit Act operated to protect them and not the consumer, was absurd. The civil law does not come to rescue the misadentures of the sain and the savvy. The clue to the position of the creditor on termination is in the use of the word 'entitled' in section 87(1). 'Entitled' connotes a right or a benefit. The Act therefore confers rights, conditional upon the provisions of section 87(1) being fuilfilled. Fail to fulfill the condition and the entitlements do not become available. In the case of a contract entered into by a person under duress and who then breaks the contract the law will come to that person's aid by recognising that person's plea that the contract was made under duress. If that person seeks a declaration of the court that the contract was made under duress the court wil readily declare the contract void. If the Act had intended that a creditor's termination in circumstances where section 87(1) had not been fulfilled by the creditor and was to be of no effect, the Act would have declared that termination void. It doesn't. The termination is voidable at the option of the debtor. [3] The Debtor's Point of View Third, let us look at the position from the ordinary man as debtor's point of view in a consumer credit situation. The DN is defective for failing to conform to the prescribed terms, or gives misleading information or at worse is plain nonsense so that the debtor does not know precisely what he has to do in order to comply with it and is consequently disadvantaged. Should the law disregard the fact that the creditor put the debtor at a disadvantage and thereby at risk the creditor might lawfully terminate the agreement? 'This statute was plainly enacted to protect consumers, most of whom are likely to be individuals. When contracting with a large financial organisation they are at a disadvantage. The contract is likely to be in standard form and relatively complex with a number of detailed provisions. If the hirer is said to have broken its terms, the hirer needs to know precisely what he or she is said to have done wrong and what he or she needs to do to put matters right. The lender has the ability and the resources to give that information with precision. If he does not do so accurately then he cannot take what Mr Gruffyd conveniently referred to as "the next step". Moving on, if the debtor receives a notice from the creditor in which the creditor expressly states the contract is terminated, what is the debtor supposed to think? Would the law regard him as likely to think the creditor had terminated the contract or would the law regard him as thinking it had not terminated because strictly speaking, the creditor had served a default notice which was not in accordance with prescribed terms? Or where perhaps the creditor did not expresly terminate but sent the bully boys over to demand the keys to the car. What was the debtor to think then? Would the debtor think the creditor had terminated? It seems to me on the basis of the passages below, the courts will be ready to hold a creditor to his words and actions. "... a person who signs a document, and parts with it so that it may come into other hands, has a responsibility, that of the normal man of prudence, to take care what he signs, which if neglected, prevents him from denying his liability under the document according to its tenor". [per Lord Wilberforce in Gallie v Lee (1971)] '.. a man cannot escape from the consequences, as regards innocent third parties, of signing a document if, being a man of ordinary education and competence, he chooses to sign it without informing himself of its purport and effect..' [per Scott LJ in Norwich & Peterborough Building Society v Steed (1992)] In short, the creditor is bound by his deed. All that is required is for the debtor to accept the creditor's termination. He can write saying 'thank you I accept you termination' or he can conduct himself in a way in keeping with that termination. Not paying the instalments would be in keeping with an acceptance of the termination. [4] The fiction of the Second DN and the Enduring Obligation The service of any second default notice, at a time when the contract is terminated, owing to the wording of the DN in its prescribed form, would perpetuate the fiction that the contract endured. The same can be said owing to the provisions of section 89 of the Act. The form of words in the DN incorporate text in order to meet the intention of section 89 of the Act which provides: 'If before the date specified for that purpose in the default notice the debtor or hirer takes the action specified under section 88(1)(b) or © the breach shall be treated as not having occurred.' In other words, in serving the second DN, the creditor would be suggesting: [a] an obligation had persisted post termination by which the debtor was bound to make instalment payments (ie post-termination 'arrears'), and that if payment of those 'arrears' was made, an obligation to make future instalment payments would endure. The obligations at [a] and are obligations enduring during the currency of the agreement. Besides maintaining the fiction of the enduring agremeent as I say, it seems to me any second DN would be bound to be defective for over-stating the sums due. The creditor can not state as an amount due for 'arrears' of instalments that which he said in consequence of his termination was no longer due and payable by instalments. If the creditor sought to use a form of DN which made sense by getting round the fact the agreement had been terminated, the DN would not be in prescribed form. The only way in which a second DN would be of value to the creditor would be where the contract had been re-instated. If the debtor has accepted the termination, re-instatement requires the consent of the debtor. The net result of [1] to [4] is the agreement is terminated for all time. The creditor's remedy is now limited by section 87(1). All that is left for the creditor to recover is the sum truly in arrear at the date of the default notice. [2007], Lord Bingham said: [Lord Bingham in Golden Strait Corporation.] [per Kennedy LJ in Woodchester v Swayne [1998]]

Shame you didn't submit anything, they'd have been prevented from acting again later on without the unlikely permission of the court. Ok, please do get the use of a scanner. The docs really are essential in order to determine your position and that of the bank.

First off banks won't blow cash on cases they are not worried about so clearly you have them concerned. Secondly a barrister cannot distort the law, they will however persuade an ignorant judge to agree with them wherever your claim is weak. The bank also instructs a barrister in an effort to intimidate you. As long as your case is well constructed and based on sound legal principle the judge will have to give your submission full credibility. It is essential therefore that you know your argument inside out and have done as much research as possible. Going back to earlier posts you will recall the need for objectivity? Only with this will you have a greater chance of recognising and addressing areas of your claim that the defence are likely to pounce on. Get there before them so you can head that off. Preperation is everything and make sure you comply with the court at all times

Hi, thanks for the PM (response sent). Will have a look over this in detail tomorrow as pushed for time now, will add what I can asap. In the meantime can you have scanned copies ready (with your ID protected) for us - defaults, agreement etc etc. Important question - When they initially litigated before discontinuance did you defend the claim and submit any kind of defence at all to the court?