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[StayingCalm]

Hi pf

 

Re Termination.

This is what x20 had to say on my thread with my battle with Restons

 

 

Re: StayingCalm vs Abbey with no CCA -----by x20 -----5-11-08----- Link231

 

SC,

I wouldn't bother responding to the latest email.

 

I would take all your papers to the court hearing.

 

If the case was decided in your favour that would be the end of it and the claimant could not bring a second set of proceedings on the 'res judicata' rule. If the other side discontinued the proceedings and then sought to begin second proceedings they would need the court's permission under CPR 38.7.

 

The Judge's agreement is not a pre-requisite for the other side to deliver a second DN. It is entirely a matter for them and the court will not give or refuse to give permission to serve a second DN. What I would say is that if the other side served a second DN and then sought to rely on it in the proceedings they would need to amend their claim so as to make reference to it. However, and this is what is causing the other side to prevaricate in serving a second DN, because, if a second DN was relied upon, the date of service of it would post-date the date on which they terminated the agreement and the date upon which they began the proceedings. In short the essential ingredients of a cause of action (ie service of a valid default notice followed by a failure to comply with it on a day prior to the beginning of proceedings) would be lacking. You have to get your horse before your cart.

 

Whether a DN is defective is a question of fact. The termination of an agreement by the creditor occurs where the creditor does something which would be consistent with his termination of it. Serving a notice of termination is one example (An 'express' example). Demanding any of those things which might only be demanded if an effective DN had been served followed by non-compliance (whether or not the DN was truly effective in law) would be an 'implied' example as would commencing proceedings for any of those things.

 

x20

 

 

Re: StayingCalm vs Abbey with no CCA -----by sc

 

Thanks x20

 

Would a 'Formal Demand' for the outstanding balance on an account also be an 'express' example of termination? (not applicable to this thead)

 

 

By 'implied' I assume this is because it is not actually mentioned in the CCA 1974. If this is the case, and the Judge can not see it in black and white, will he/she maybe not agree that the agreement has been terminated?

 

 

If by chance the other side does not turn up, am I able to refer to the recent correspondence between Restons and myself. Most, but not all, Restons letters are written 'Without Prejudice', am I allowed to mention these, or am I not allowed to refer to them at all.

 

 

Sorry for so many questions

 

sc

 

 

Re: StayingCalm vs Abbey with no CCA -----by x20

 

SC

A Formal Demand may be an implied example. Whether a termination may be implied or an express termination has nothing to do with CCA 1974. The test is whether the fact of termination is clear on the face of the document with 'Notice of Termination' or 'We hereby Terminate' or some such similar series of words clearly demonstrating termination. An implied termination would occur where there was no previous express termination but there is evidence of an act or document (or both or multiple acts and documents) from which the fact of termination may be inferred.

 

The question whether an agreement has been terminated is a question of fact to be decided by the Judge. Either it has been terminated or it hasn't. Demanding full payment on a credit card where the debtor may repay just a minimal sum monthly would be consistent with termination. Demanding the return of goods let under a HP agreement would be consistent with termination. Suing for either of these would be consistent with termination.

 

If the Judge decided a creditor had not terminated then the agreement would be a current agreement. Taking proceedings to enforce an agreement is inconsistent with the agreement being 'current'. I find it hard to conceive of a situation where a creditor might sue his debtor whilst within a contractual relationship with him. So it seems to me that a finding the agreement had not been terminated would result in the claim being rejected.

 

If the other side failed to turn up I'd show the DJ the dodgy DN and invite the DJ to conclude the Claimant's absence at court plus poor prospects demonstrated by the dodgy DN constituted sufficient cause to strike the claim out. You will not be allowed to refer to 'without prejudice' correspondence.

 

Good luck today. Let us know how you got on.

 

x20

 

 

Re: StayingCalm vs Abbey with no CCA by -----pt2537

 

A creditor may sue while an agreement is still live, the provision for this is where the agreement is improperly executed as the lender needs an order of the court to allow them to enforce the agreement. There are other situations where action can be taken under a live agreement tooo

 

Welcome to the bizarre and loony world of the Consumer Credit Act 1974

 

pt2537

 

 

 

Hope this helps

 

Regards

sc

[StayingCalm]

Hi PF

 

This is what x20 posted about costs after Discontinuance.

 

Re: arrow global receivables/cope's solicitors Post No. 89

I have prepared a draft bill of costs for detailed assessment and draft notice of commencement. Both are attached in pdf format.

 

In drawing the bill I have tried to keep it as uncomplicated as possible whilst seeking to demonstrate how to maximise the amount which might be allowed. The documents may be of general application in litigation to include for example, dealing with a costs claim after successfully obtaining an order setting aside a Statutory Demand, after making all such necessary modifications to suit.

 

The bill begins with a narrative dealing with the nature of the case and the complexity of it as I imagined it may have appeared to the LiP. My imagination should not be treated as a statement of how the complexity in truth appeared to the LiP.

 

Next is a chronological statement of the steps taken in the case as they will appear on the court file. I have not bothered to go through the entire thread to establish what occurred on what day. The LiP will have to do that.

 

I have included provision for time spent which has been charged at an hourly rate of £9.25 in accordance with The Litigants in Person (Costs and Expenses) Act 1975. I can not stress enough that where time is included this is only a statement of time for the purpose of demonstrating how the figures would appear in the bill. My statement of time is not an estimate of time. Only the LiP can say how much time was spent and my statement of time may be an under- statement or an over-statement, I would not know.

 

It is worth pointing out however that the court will recognise that a LiP will most likely spend more time in a case than a solicitor. The relevant Rule is CPR 48.6 with guidance appearing in The Supreme Court Costs Office Guide (COG) Practice Direction at CPR PD 48 COG 22.4 and .5.

 

The question for the Judge considering the bill is if this case had been conducted by a solicitor, what would that solicitor’s reasonable total charge have been for doing that work? Having arrived at that hypothetical figure, the costs judge will assess the bill but disallow whatever the total bill comes to from exceeding two-thirds of the hypothetical figure.

 

It seems to me the hypothetical solicitor may have spent say 6 hours dealing with all the work set out in the bill from beginning to end. At an average charge of £150.00 per hour, that produces a hypothetical figure of £900.00. In other words therefore, if the Judge held my view about what the hypothetical solicitor may have charged, the amount to be allowed to the LiP ought not to exceed £600.00. As you will see, my draft works out at £573.50.

 

What to do Next

Complete the bill adapting the narrative to your personal experience in terms of actual work done and actual time spent. Feel free to add to it where I have not imagined work which you actually did. Insert the dates and sign and date the bill.

 

Next complete Form N252 available from the HMCS website here.

 

You will ned to complete the court and party details in the box on the RHS.

 

The draft N242 I have completed gives the position as if my figures were used. Where the total used in the bill is to be different, put that figure in the first figure box where N252 says: ‘The bill totals £xxx.xx’. (figure [1])

 

Next, add £300.00 to figure [1] and put whatever this figure in the next box where N252 says:

the full amount payable (including the assessment fee) will be £xxx.xx). (figure [2]).

 

Next insert a date in the box before which is written: ‘You must serve your points of dispute by’. This date will be a date being not less than 21 days after the date on which your opponent receives the bill and the N252. In practice, add 25 days to the date on which you post the bill out to your opponent. If that date should fall on a Saturday or Sunday, insert the date for the following Monday.

 

Next fill out the box which provides a name and address at which the opposition may deliver any response to the bill of costs. The response will be entitled ‘Points of Dispute’. I don’t imagine one will arrive and if one does, how to deal with it will be dealt with in a later advice.

 

Next, leave the box beginning: ‘I certify that I have also served’ blank

 

Next, at the very end of the bill is a third figure box before which is written ‘If I have not received your points of dispute by the above date, I will ask the court to issue a default costs certificate

for the full amount of my bill (see above*) plus fixed costs and court fee in the total amount of £’ . In this box take the figure [1] and add £45.00 to it. This is the figure which goes in this box (figure [3]).

 

Print the N252 off, sign and date it.

 

Next, send the bill and the N252 off to the opposition’s solicitor.

 

After Having Sent the Bill and N252.

Make a note when the 25 days will be up.

 

I would expect the opposition to make contact with you in an attempt to settle the question of your costs. So as to avoid hassle and heartache, I would be prepared to settle at anything which came to about one third rather than two thirds of the hypothetical solicitor’s bill. On my example, that would be around £300.00 plus the court fee. You may want to settle at something less just to be shot of it.

 

If any offer comes in which is wildly below £300.00 post to this site for advice. I would imagine the opposition will be very keen to settle since objecting will tie them into expense they will wish to avoid and any savings will soon be wiped out by employing a solicitor to deal with the objections.

 

When the cheque comes in, make a donation to CAG.

 

If you have not heard from the opposition by when the 25 days are up you will be entitled to apply to the court for a default costs certificate. When that moment arrives, post here.

 

Any queries, just ask.

 

x20

Attached FilesDraft LiP bill of costs for detailed assessment.pdf (56.6 KB, 157 views)Draft Notice of Commencement.pdf (29.9 KB, 111 views)

 

There's also more usfull info in other posts on this thread.

 

Regards

SC

Edited May 16, 2009 by StayingCalm

[StayingCalm]

Good luck for today PF

 

Regards

SC