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[soothy meldrum]

PF

Sorry to hijack your thread so late in the day but I read the entire thing from start to finish yesterday and am still reeling with shock over the way you have been treated here. I’m only sorry that I did not see this thread earlier and can but hope that I can be of some assistance to you.

 

First off, please accept my condolences on your recent sad loss. Bereavement is bad enough but when it’s in tandem with illness and having to deal with a situation like this it makes it a whole lot worse.

 

I’m speaking to you as a bit of an insider having worked in the Legal profession in the Leeds area for a while and as such I know of Optima and know a good few of the people who worked for their debt recovery and defended litigation department past and present quite well.

 

First things first. When you attended the hearing on 15th June, you agreed to pay £20 per month. You were concerned as to whether or not the order was enforceable. A Consent Order IS enforceable unless it was drafted in the form of a Tomlin Order which simply acts as a stay on the proceedings. If it is a Tomlin Order it should contain words specifically stating that the action is STAYED on terms. If it is a Tomlin Order it should contain a provision giving liberty for either party to apply which means basically that any party can ask for the stay to be lifted and the matter to be brought back to court for determination at trial in the event of e.g default in making payment.

If you feel that justice was not served on 15 June and it was settled by way of a Tomlin Order you can simply do nothing and wait for Optima to make the application to lift the stay at which point you can go to trial and insist on the matter being looked at thoroughly and forensicly by the judge. If it is a Tomlin, your house is safe at least until such time as the trial is concluded and even then, if judgment is entered against you they will still have to enforce the judgment by getting a charging order and then issue a further set of proceedings to obtain an order for sale. There are a lot of hoops they have to jump through and the judge is bound to take into account their conduct throughout the proceedings. It is by no means a foregone conclusion that they will get their order. Equally though, as you have admitted that you had the money it is highly likely that you will end up having to pay something and possibly with a judgment against you unless the judge strikes out the claim at trial by way of punishment to MBNA and Optima for the way that they have handled the claim to date. The judge can do this if he is satisfied that the parties have acted so badly or incompetently throughout.

 

At the end of the day it is their claim and it is for them to see that they have all their ducks in a row. They need to prove their claim. The ball is in their court and you do not have to do their job for them. Bringing a claim to trial is a serious business and the very least you, as a consumer have a right to expect is that such huge companies get things right! They – Optima and MBNA have some very big questions to answer, not least the discrepancy between the two default notices they produced during the process. This seems to have been ignored by the judge at the hearing? You have every right to insist that MBNA and Optima come to court and explain exactly how such a cock up could have happened. Even if it was an innocent error by MBNA, their solicitors, Optima, by not spotting this obvious differences between the two documents have quite evidently failed to do their jobs properly and have failed manifestly to discharge their duty to their clients and to the court (if indeed they had both documents in their possession at the same time – even if they hadn’t, after you flagged it up to them they had a duty to the court and to their client to address this in evidence – i.e an explanatory witness statement for example). If they can’t get this right, what else might they have got wrong during the case?

 

Remember. A trial is a two way process. You have every right to cross examine their witnesses and challenge their evidence. There is a very live matter regarding the DN’s which needs to be addressed. This was reflected in the order made by the court in which you were asked to specify to them who you wanted to call to give evidence.

 

As I can see from your posting of 2 April, Dianne Powell gave two statements for MBNA and you have every right to subject her to a rigorous cross examination on the content as well as submitting her to questioning as to why two Default Notices completely different in content were produced to the court. Incidentally, you may have noticed that she spelt her name wrong on both of her statements! The typing has her name spelt as “Diane” whereas her written signature has her name spelt as “Dianne”. This could suggest either that she didn’t sign it or, if she did sign it, she didn’t read it before signing it. Pretty basic stuff, spelling ones own name right after all! This needs to be fully investigated. If she genuinely does not know how to spell her own name one has to question whether or not she has adequate capacity to sign a witness statement. If she’s signed it without reading it properly, this opens up a massive can of worms! Who typed the statement? Whose statement is it? Why didn’t Optima, their solicitors in their capacity of Officers of the Court, pick up on the misspelling and question it? Again, pretty basic stuff to read and check evidences submitted to court for use at trial. If Ms Powell has signed a statement without reading the bloody thing as she seems to have done by not asking for the misspelling of her name to be corrected, this is a clear contempt of court as there is no way that she could have had an honest belief in its truth if she has not taken the time to read it. It could have said anything! By way of example, she states as a fact that the account number is clearly stated in the particulars of claim whereas you say that it wasn’t and this seems to be confirmed by the posting you made on 14 June at 16:43. This woman needs to be placed in the witness box and cross examined UNDER OATH as to the evidence which she has authorised to be submitted to the court for use in a TRIAL. I wonder also whether she had the earlier statements of evidence in front of her when making reference to “the Rankin case as stated in previous statements”. If it is the case that she merely signed something which somebody else prepared for her without seeing the documentation or being reckless as to what was actually on the document knowing damned well that this was intended to be used as the main evidence in a TRIAL both her and Optima need to be held fully to account for what could potentially appear to be a clear case of CONTEMPT OF COURT which is, of course, a CRIMINAL OFFENCE!

 

The statements appear to be **** poor and the content leaves a lot to be desired. I would be ashamed as a Lawyer to send those documents to court in the state they were! Even more ashamed as a representative of a massive multinational banking organisation that my solicitors and my litigation team would allow the reputation of the company to be represented by such documents. Even the numbering is inconsistent! One of them is numbered 1.1 – 1.11 whereas the other appears to be numbered 1.1 – 5. Complete crap! Where is paragraph two of statement number two?

 

The statements don’t adequately state the source of Dianne Powells information. She claims to have all of this information in her own knowledge but unless she has a photographic memory she must have referred to computer records or some such she needs to be cross examined as to this wonderful memory! All of this use of “The Claimant” and “The Defendant” throughout is a little bit suspect as well. Why she can’t have said “we” or “MBNA” or “Mr X” is beyond me.

 

Another thing about the statements. They are dated 31 March but if you look at the imprint from the fax machine they were faxed to Optima at 08:15 on 1 April (with the exception of one page which is timed at 09:56 on 1 April. You said that they were delivered to you two days late. Well, if Dianne Powell truly made the statements on 31 March and had been advised by Optima of the time limits (as they were absolutely duty bound to do) why did she not cause them to be faxed to you on 31 March? That way you would only have got it one day late. Not ideal but they could have saved you one day delay. Also, this could be construed as yet another attempt to mislead the court.

 

Those statements are utterly disgraceful. If this is the level of attention to detail given throughout, one wonders how they managed to get a figure of £7k for the costs.... what the hell were they doing? Oh, by the way, they are obliged to ensure proper supervision training and management under the Solicitors code of conduct rule 2 and rule 5. Those rules are not there for nothing! It’s all about protecting the reputation of the profession, best interests of the clients, administration of justice etc.

 

Your letter to Optima of 15 April explaining the tragic circumstances surrounding your request for an adjournment should have been date stamped by Optima on receipt. Given the content they were obliged really to take immediate instructions from their client especially as it concerned the viability of a trial date. Trial dates are supposed to be sacrosanct and they, as solicitors should have proactively taken steps to assist the court to manage their diary. Their Case Summary for the May hearing seems to imply that the letter was not received until 27 April which was 12 days after you sent it. They should be asked for the letter to be produced as evidence duly stamped with the date of receipt – don’t settle for a copy to be provided. If necessary they can courier the original to a local firm who can undertake to hold it on your behalf for your inspection. If it was received earlier than 27 April they need to explain why they allowed a Case Summary to be provided to the court with blatantly false information on it and why they failed to treat such a request with the urgency it demanded. It seems utterly heartless to have ignored it for so long. If they failed to take instructions in a timely manner this would potentially be a breach of the SRA code rule 2 seeing as it affected a potential trial date as well as potentially taking advantage of your circumstances in breach of rule 10.

 

Speaking of Case Summaries. I think you mentioned that you had received another one for the 15th June. Who prepared this? Counsel again or Optima. I can’t recall seeing it online. If it was not produced by counsel but by somebody at Optima this would be useful to know.

 

I was very interested to read that Optima actually sent one of their own solicitors to the trial on 15 June. Are you sure that this person was actually an employee of Optima? The reason I am asking is that Optima usually only send their staff to hearings in Bradford or very near e.g Halifax or Leeds. All other hearings are outsourced to external agents. To send a solicitor from Bradford to Portsmouth on a Monday morning and presumably requiring an overnight stay for the sake of just over £6k strikes me as being utterly extraordinary. Did you get the name of the solicitor attending? The judge should have noted the names of those present and in what capacity they were attending. It might be worthwhile for you to ask the court to check the judges notes to see whether the name was recorded or you could try to obtain a transcript of the hearing – you might need this anyway if you want to pursue complaints.

 

If they did send a solicitor from Bradford it tells me that somebody has probably had a right royal bollocking or that MBNA have read the riot act to them and that there is some serious arse covering going on especially if Philip Fellows charged them £1500 for the hearing in May! At a guess I’d say that MBNA possibly told them that they would not be paying them a penny for the work done on the case seeing as they’d allowed the matter to be handled in such an “unfortunate” manner and that Optima had tried to smooth things out by writing off their charges to MBNA. I think that this is probably why they caved in so readily by offering to write off over £7k of costs. They just wanted to salvage something... anything from the situation. By the way. Did they serve a schedule of costs before the trial on 15th June? If so, this might specify the name of the solicitor attending at the hearing. Also does that schedule particularise the names of the fee earners who handled the claim? You may need to call these people to explain themselves regarding the Default Notice fiasco and the drafting and service of the witness statements.

 

If the solicitor who attended came from Optimas office in Bradford his excuse that he had only been given the case at the last minute seems pathetic to say the least. He would in all probability have been given the papers on Friday and had all weekend to look at them. This was after all supposed to be a trial! If he did indeed only receive the papers at the last minute what the hell were Optima playing at by not ensuring that the brief was sent to their representative in a timely fashion? This could be another breach of their obligations to the court and to their clients.

 

If this person was a solicitor employed by Optima and had travelled to Portsmouth from Bradford he would definitely have been fully briefed. As I pointed out above for somebody to travel all that way for a Monday morning trial on the Fast Track is virtually unheard of and there would have had to have been a top level decision taken. The natural inference from this has to be that if he told the judge that he’d not had the chance to read the papers or history he may have been tempted to knowingly mislead the judge to save face.

 

One of your posts says that the solicitor, when squirming under the force of the judges bollocking had mentioned something about a written apology. Did you get that apology? If not, it is possible that Optima might have been in breach of an undertaking given by them or on their behalf to the court dependant on the words used. It might be worth your while spending a few quid on getting the transcript I mentioned before. Breach of an undertaking given to the court is an extremely serious matter.

 

By the way. I have not seen your defence but have noticed that in the MBNA printout you put on on 18 June the notes say "CH issued defence particulars of claim not detailed enough" and then goes on to mention that you "requested docs but not received". It truly beggars belief that on this basis Optima adivsed their client to pursue a Summary Judgment application given the burden of proof required for such an application to succeed. This could have been nipped in the bud if they could have used some common sense and simply sent you the documents or redrafted the particulars. Instead they took it to a fast track trial at which they had no witness and blew 7k in costs to end up clawing back 20 per month. Top class law firm then.

 

If I was you I would not let this matter drop. At the end of the day, you may well owe them money but you have the right to expect a certain level of competency, honesty and courtesy from these people as do all members of the public. The courts are there to ensure that justice is done to the parties and the CPR is the framework under which Optima are obliged to operate and in accordance with the full provisions of the Solicitors code of conduct.

So I would pursue this. Dianne Powell needs to be called as a witness as does the supervising solicitor and the fee earners who dealt with the case.

 

Inform the SRA – Legal Complaints Service of the breaches, the media might be interested in the ordeal you went through – Watchdog etc, Banking Ombudsman, Financial Services Ombudsman. Also I would get something fired off to the CEO of MBNA and ask if he is proud that his CUSTOMERS are being treated in this way by his company and their lawyers.

 

Remember, you and the public have rights and these banks and their Lawyers are obliged to respect those rights.

 

Good Luck!

[soothy meldrum]

WOW excellent post indeed Thank You this puts it all into perspective Firstly do you mind if i print that post of to show to a solicitor

 

 

Pompey

 

Please feel free to show the posting to whoever you like. I am only too pleased to help.

 

It would be useful if you could double check the name of the solicitor who attended then I can verify whether he was indeed an employee of Optima doing a 530 mile round trip for £20 per month and the likelyhood of him knowing about the history of the case bearing in mind what he told the judge.

[soothy meldrum]

 

Oh the legal rep for optima that showed up on the 15th june i have her name on her witness statement that she produced on the day

 

PF

 

OK. You stated before that it was a man who turned up from Optima. Even better if they sent one of each though. It shows that they would have been absolutely bricking themselves.

 

It is very naughty of them to try to sneak in another witness statement on the day of the trial

[soothy meldrum]

the statement she produced had a hardwyck buildings label on it but a search of there site did not show her but mr fellows was on the site

 

I see. Hardwicke Buildings is indeed a set of Barristers Chambers.

 

Are you sure that this was a Witness Statement and not a Case Summary.

 

Ive a feeling that this may have been a Junior Barrister at the hearing and not a solicitor from Optima after all.

 

Would still be useful to know her name if you could confirm.

 

It still does not take away from the points I made though. They still seem to have been shoddy in the extreme with your case and that of others.

[soothy meldrum]

Pompey

 

Further to our private message exchange.

 

I think they could and probably should have ensured that the skeleton was served on you in better time knowing as they did the history of the matter in view of you being a Litigant in Person!

[soothy meldrum]

The order made on 15th June is indeed a Tomlin Order.

 

Was there a statement of account sent with the POC at all.

 

Obviously as we have now established that they sent a pupil barrister to the hearing on 15th June the comments made above about the speculation as to why they sent a solicitor from Bradford to Pompey is irrelevant although one does wonder why they sent a more junior barrister in June to the one they used at the earlier hearing.

 

Its funny how the rep told you and the judge that she didnt know the history due to having only just received the papers. She had them on the previous Friday to do the Skeleton Argument an

[soothy meldrum]

PF

I honestly think that looking at this objectively you have come out of this with one hell of a result .

The Tomlin Order pointedly makes provision for you to increase the payment ONLY IF YOU WANT TO . You could just set up a Standing Order and forget about it if you wanted to.

I think that MBNA will be absolutely furious with the way that this has gone especially as you have a property which they could have put a Charging Order over and have won damages against the CO OP which they could have tried to get their hands on.

I think that the fact that the judge left it in your court shows beyond doubt his disgust with the way that this case had been handled .

HOWEVER

I do sympathise with your view that justice was not done though. Reading between the lines of the Skeleton Argument they sprung on you on the day of the hearing it seems that they knew there were serious problems with the evidence. How else could you explain the deliberate emphasis on the fact that you had not challenged the witness statement evidence and had not notified the court as to who you wanted to appear at the court. They are paving the ground there for them to say ‘its not ideal but he should have raised it earlier himself. They also stress that the statements were verified by statements of truth as if to say “it must be true then”.

This is a bit of a sleight of hand really as they knew damned well what had been going on with your personal circumstances since the start of the case. You had written to them and I know that the lenders and their solicitors do monitor these forums just in case they can gather any useful info and tie it in with any of the cases they are dealing with and probably put 2 and 2 together and sussed out that you had made the postings – don’t worry though. They cant touch you now.

Furthermore this was not an interlocutory hearing. It was a TRIAL. It is very bad form for any organization taking a case all the way to trial to refuse to produce their witness for cross examination! This is not some one man band organization. It’s a massive Financial institution for gods sake. If these people cant produce a live witness they should not bring the claim. It was not a summary judgment application but a full blown trial. The witness should have been there as a matter of course.

Also it is true to say that you had not been told about the issues regarding those witness statements which I flagged up yesterday before the trial. No doubt had you have been made aware of the provisions of Part 32.14 of the CPR you would have challenged the authenticity of the statements and demanded that Dianne Powell present herself at court and give evidence on oath. No doubt you would have asked her who “Diane” Powell is and whether she is the same person as the Dianne Powell who signed the statement and how her name came to be misspelt on both of the statements. This may seem to be a triviality but in reality it is of vital Importance. She has signed a statement of truth to a statement which appears to be not in her true name. There is no excuse for this whatsoever and can only mean that the statement was prepared by somebody else and that Dianne Powell failed to read it before signing it. Optima seem to have failed to flag up this fundamental issue and failed themselves to check and read the statements before sending them to you and the court. Bottom line is that if Dianne Powell failed to read the statements thoroughly enough to point out that the author of the statements had spelt her name wrong and had blindly stated falsely that the Particulars of claim bore the account number how could any credibility be attached to the rest of her statement? If this seeming lack of care is not contempt of court I am a martian.

If Optima failed to advise their client properly as to the Importance of getting witness statements right or worse if they actually put words in her mouth they would also appear to be in contempt of court. Those statements should have been in Powells own words and in the first person. The constant use of the words “the claimant” and “the defendant” do strongly suggest third party involvement.

Seriously. I would take some advice on commencing proceedings for contempt of court against both MBNA and Optima. I think that I am right in saying that any contempt proceedings can be brought without interference with the terms of the Tomlin Order. Such proceedings can also be commenced by the Attorney General or Official Solicitor if he or she sees fit. This is clearly a case of Immense general Importance to the public as this sort of thing should not be happening at all in our judicial system let alone with 2 companies of the size of MBNA and Optima. Incidentally do not make the mistake of underestimating the size and clout of Optima. I have it on very good authority that Optima are funded and bankrolled to the tune of many millions of £ by one of the biggest PLCs in the country – Capita Group – see http://en.wikipedia.org/wiki/Capita I wonder if the Chief Executive and Shareholders of Capita are aware of just what their investment is actually buying and what is really being done in their name or on their behalf.

I will post up some caselaw on Contempt of Court soon.

Did you ever get the apology from Optima as mentioned by the judge?

You also need to get them to produce the original of the letter you sent them on 15th April as they have gone on record as saying that it was not received until 27 April.

I will be back.

[soothy meldrum]

Glad to help.

[soothy meldrum]

Wahey. Dianne Powell seems to have spelt her name right on this statement here

 

http://www.consumeractiongroup.co.uk/forum/dca-legal-successes/170484-fairbyblue-mbna-restons-court-21.html#post2138178

 

At least the statement provided by Restons is more of a 1st person statement.

 

I think that it is clear that there is such a difference in styles and use of language between the statement provided on Fairyblues case and those produced by Optima on this case http://www.consumeractiongroup.co.uk/forum/legal-issues/151709-help-37.html#post2082886 to justify the authorship of the body of the statements coming under scrutiny.

 

Im trying to get my head round why she did two seperate statements on the same day. Why didnt Optima advise her that both statements could or should be combined. I cant believe the shoddyness.

 

Has anybody else got any examples of witness statements provided by Optima for comparison?

[soothy meldrum]

PF

 

You are dead right regarding the DPA being breached.

 

It beggars belief that theyd actually treat their own peoples personal data in such a way. No wonder they deliver such poor service. Wonder how many more £14k per annum slaves they have.

 

Wonder whether Giles knows what they did and whether they did this to anybody else. They will have a mutiny on their hands before long lol.

 

Re the Capita thing. To be fair that info is in the public domain although it is well hidden. It does help though if you happen to have a few contacts who used to work at Optima and one very good friend who actually still works in the very department who dealt with your defence who is royally ****ed off with things there and the way they treat people. I am sure that when she finds out about what they did to poor old Giles she will have a good old laugh.

 

The thing is though that Capita are one of the biggest UK PLCs and have invested millions in Optima. This sort of thing will not go down well in the corridors of power especially if the media were to get hold of the story.

Edited August 21, 2009 by soothy meldrum

[soothy meldrum]

Bang ? post 1338 ?

 

PF

 

Sorry PF. That was the sound of Giles committing hari kari.

 

I think hes left there now. Hope he sues their arses when he finds out that his salary review was sent out in the post to a complete stranger in Portsmouth.

 

Anyone else received anybody elses private and confidential mail?

 

Top class firm.

[soothy meldrum]

PF

 

I take my hat off to you. You have a mine of information here to show how Optima and MBNA appear to have broken the rules of the CPR constantly and broken numerous terms of the solicitors code of conduct and the Data Protection Act.

 

On the DPA breach. This opens up yet another regulatory can of pythons. I think you need to be reporting them to the Information Commissioner - you are going to be busy. Optima are a Data Controller and sent personal data relating to their own staff members salary review to you. Their clients trust them to have procedures in place to protect their sensitive information but if they cant even guarantee the protection of their own employees very personal data how can anybody be sure that their systems are watertight? How can you be sure that Joe Bloggs living in the Outer Hebridees has not received personal correspondence intended for you? If you received Giles Whislecrafts salary review in the post there is plainly something not quite right in the provisions and procedures they have to guarantee the security of everybodies personal data.

 

Complaints about data protection policy - ICO

 

They have no excuses. Hopefully Mr Whistlecraft will be finding out about Optimas breach of his Data Protection in the next couple of days.

[soothy meldrum]

PF

 

Sorry about this m8. Just re-read some of this thread and noticed that Dianne Powell sent another statement to you in February here http://www.consumeractiongroup.co.uk/forum/legal-issues/151709-help-23.html#post2003095

 

This just gets better and proves beyond doubt that they have not got a clue about proper procedure etc. Dianne Powell seems to have had another serious attack of amnesia in spelling her name as this statement is again in the name of Diane Powell.

 

As the statements bear two different names it is reasonable to assume that Dianne and Diane are two different people and therefore Dianne Powell has absolutely no right or reason or capacity to sign a statement of truth on behalf of Diane Powell. she seems to have done this consistently on three statements in your case.

 

If my name is Paul and somebody adds a letter to it to make it Paula for example and I then make a statement introducing myself as being "Paula Meldrum" and sign it as Paul people have every right to raise questions as to the identity and veracity of the witness and if necessary to get me into court and put me in the witness box and give evidence under oath as to firstly whether or not it is my signature on the document (Paul) and secondly why I appear to have taken it upon myself to sign a document bearing a statement of truth in the name of somebody else entirely (Paula). I would also expect to have my evidence trashed and be prosecuted for contempt of court and very possibly perjury if I had blindly stated on oath that I was the author of the statement.

 

As solicitors acting for the party giving the statement Optima should also be subjected to the same penalties as MBNAs witness as they should have spotted the discrepancy and allowed the situation to arise in the first place. As solicitors they should in fact have the book thrown at them. I dont think that your case PF is an isolated incident either.

 

It would be funny if it wasnt so blatant and so serious.

 

Can I also point out that the statements should be numbered in sequence. Powells first statement should have been labelled in the top right corner as being her first statement. The statements of 31st March should have been clearly numbered and designated as statements 2 and 3.

 

It really does look like they have not got a clue at what they are supposed to be doing. This is supposed to be a top class law firm with obligations to their clients and the public and bound by this

 

Solicitors Regulation Authority - Code of Conduct: contents

 

Have a look at Rule 1 and the guidance notes to it and ask yourself as to whether they have behaved anywhere near to the standards expected.

 

Top class law firm indeed!

[soothy meldrum]

Well after MBNA doing a land reg search this i have on the comms log and relising the value of house compared to mortgage they were going 4 a C/O im sure so just why did they cave in so easily and did not want to appear in court to fight there corner this is what i want to know i do asume one reason was the D/Ns but there must be more besides what soothy has said

 

Pompey

 

There is absolutely no doubt at all that they were going for the Charge. They would also have been looking at the prospect of getting their hands on a chunk of your compensation by way of a third party debt order so they have been thwarted on both counts there. How pleased they must be with the service given to them by their solicitors lol.

 

I have no doubt that the Barrister who attended would not have been party to anything improper. They dont hesitate to criticise where necessary and they are paid to make the best of each and every situation they are presented with but at the end of the day the case had been so badly prepared and handled by this firm that she probably just threw her hands up and said to Optima that they would be on extremely sticky wicket. My guess is that she probably advised them very strongly that there would be no way that any judge would award their costs and that to save major embarrassment and the case having to be adjourned again for MBNAs witness to get herself to court and potentially be held liable for contempt they ought to try to get the matter settled very quickly.

 

Whoever was to blame for the Default Notice fiasco;

 

Whoever was to blame for the dubious and badly drafted and thought out witness statements;

 

Whoever was to blame for the five month delay and lack of tactical nous in responding to your part 18 request for further information;

 

Whoever was to blame for the ill advised application and abuse of the Part 24 process when you had asked for further information and had this request outstanding;

 

Whoever was to blame for the failure to advise their client promptly about your health problems and bereavment putting the trial date into jepordy;

 

Whoever was to blame for the lack of understanding by Optima of and abuse of the meaning of the term "without prejudice" - there was no way that their letter of 30 July 2008 should have been a without prejudice letter - it was not a tool of negotiation for a start;

 

Whoever was to blame for all of the above and more. Optima as a Law firm regulated by the SRA are ultimately responsible and the managing partner has loads of questions to answer as the buck stops with him.

 

Millions of pounds of investment from Capita and they get this mess?

 

Top class law firm? Dont make me laugh. If you engaged a plumbers firm to install a toilet for you and you got a flood everytime you used it youd be justified in calling the firm a bunch of cowboys,

 

If you engaged and trusted a solicitor to handle a claim or were dealing with a solicitor as a defendant as PF was and they cock it up so consistently and comprehensively would you not be justified in calling the firm a bunch of cowboys also?

[soothy meldrum]

Introducing.............. the unfortunate Giles Whistlecraft esq

 

Giles Whistlecraft on Netlog

 

Would anybody like to tell the poor sod what his employers, the top class law firm, Optima Legal Services did to him and what happened to his salary review?

 

What a great reward for his "continued committment"

[soothy meldrum]

Morning PF.

Just a short one tonight.

Copy of an article I found online regarding Contempt of Court

Its self explanatory that Dianne Powell could not have had an honest belief in the truth of the opening paragraph of the statements. i.e if she signed herself off as "Dianne" she must and should have known that by signing a statement prepared for somebody else - i.e "Diane" she was effectively donning a false identity.

The test set out in the Malgar v Leach case below is apt. The maker of the statement should have known that for "Dianne" to sign a statement intended for "Diane" it was a falsehood. If she tries to claim that it was prepared for her and she didnt read it before signing she was clearly reckless as to its truthfulness and bearing in mind the requirement for the statement to be in the makers own words it kind of proves the case for contempt me thinks.

Theres also the issue of the provable false statement that the account number was on the particulars when it was clearly not. Yet more recklessness at best.

Of course the statement interfered with the course of justice. They were tendered as evidence for a Trial. The live witness did not turn up and this allowed the other side to get away with asking the judge to accept the statements simply because they were endorsed with a statement of truth knowing that you were a litigant in person and not likely to be as fully conversant with the CPR as they and Optima are required to be.

Part 32.14 CPR

PART 32 - EVIDENCE - Ministry of Justice applies to Optima also if they drafted the statement for her as they would have "caused" her to have made the false statements.

Its also clearly contravening the Solicitors code of conduct rule 11.

There would also be a clear public interest issue in pursuing contempt proceedings as the two organisations concerned MBNA and Optima (bankrolled by Capita) are massive and a judge might feel that robust action should be taken to eg make an example of the people responsible and to send a message to the legal and banking profession that such conduct is not acceptable when dealing with the 'little people" (absolutely no pun or offence intended by that).

Proceedings to commit for contempt of court under CPR 32.14

• Such proceedings may be brought against a person if he makes a false statement in a document verified with a statement of truth without an honest belief in its truth.
  
• Such proceedings may only be brought either with permission from the Court or by the Attorney General.
  

41

• The following test was prescribed by Sir Richard Scott VC in Malgar Ltd. V. R.E. Leach (Engineering)[2000] FSR 393
  

• Not only must part of a statement verified with a statement of truth be false, the complainant must prove that the maker of the statement knew that it was false or was reckless as to whether it was true or false at the time he verified it, and
  

• the false statement must have been likely to have interfered with the course of justice.
  

42

 

• This provision of the CPR was applied by Blackburne J in Kabushiki Kaisha Sony et al v. Ball et al[2004] EWCA 1984 (Ch)
  

• The contempt of Court was proved and the Defendant was fined £2,000.
  

• The Judge made it clear that a custodial sentence was an option.
  

43

• Rules governing contempt proceedings are set out in RSC Order 52.
  
• The class of contempt that usually arises in motor claims is defined at sc 52.1.16 I as: ‘Making a false statement in a document verified by a statement of truth’ contrary to CPR 32.14.
  
• In order to bring Committal Proceedings permission must be sought from the Court. Discretion to grant permission is not conferred on a District Judge and an application has to be made to a Circuit Judge.
  

The reported case of Caerphilly County Council v. Hughes, Verity & Rowlands (Lawtel – 23.03.06) illustrates the committal process and is required reading.

• The Defendant applied under CPR 38.6 to set aside a Notice of Discontinuance and obtained permission to commence committal proceedings against a dishonest tripping claimant for contempt of Court.
  
• The Claimant was convicted and imprisoned for 2 weeks.
  
• The number of tripping claims in South Wales fell by 25%.
  

[soothy meldrum]

PF

 

By the way I forgot to say Congratulations on the new arrival.

[soothy meldrum]

Below I have posted a link to an article which points to a case where leave to bring contempt proceedings was granted after a case had been settled.

 

This would be a useful precedent for PF to follow as his case against MBNA is settled but he was denied the opportunity to cross examine MBNAs witness or to address the judge on the dubious nature of the statements by the non existent [name edited].

 

As I said before there is a massive public interest in ensuring that massive organisations such as MBNA or Optima - backed by Capita adhere to the rules when bringing litigation and this is ever more the case in Optimas situation seeing as they are supposed to adhere to the highest of standards as officers of the court.

 

The way that they handled your case was so far from the standards expected from a firm of solicitors and its about time somebody took a stand and told the profession that its time to tighten up on standards and that such sloppyness from any firm of solicitors let alone one of the size and backing of Optima is totally unacceptable.

 

Contempt of Court - Media Law Law Articles and News - Lawdit Reading Room

Edited August 24, 2009 by steven4064
Name of real person removed

[soothy meldrum]

Another good article here

 

United Kingdom, Litigation and Arbitration, Treat With Contempt - Kennedys - 05/01/2009 10:14:53, Trials & Appeals and Compensation

 

PF as I stated above. The settlement that MBNA was forced to accept is a very great victory for you. My guess would be that MBNA have probably written the debt off anyway due to Optimas handling of the case and that Optima have probably paid them out. This would possibly raise an interesting question as to whether or not you now owe MBNA anything in law as if Optima have paid them out then unless Optima take a legal assignment of the debt MBNA would be making a double recovery.

 

I stress that this is merely speculation on my part but just look at the way they caved in over the costs issue without any real fight at all. this reeks of them having given up.

 

That said. Opening up the case again and trying to get the Tomlin set aside would be a very risky tactic. This is why I am stressing to you that if you leave the Tomlin as it is and set up a standing order mandate you can just get on with your life and forget about it. You can STILL ask for contempt proceedings to be brought if your solicitor feels it appropriate and as I said before there would be massive public interest in such an action.

[soothy meldrum]

it has always been in the back of my head that optima has paid mbna off

 

I want to stress that this is only speculation on my part but MBNA would probably never ever have settled for £20 per month and the fact that they are stuck with it now will rankle with them badly and the fact that the way that their solicitor handled the case and the advice given to them appears to have been the main consideration will not have gone un noticed in the corridors of MBNA.

 

Earlier this afternoon I spoke to a woman who used to work for Optima. I asked her about what it was like there and she said that it was not the best of places to work for and nothing like you would think a law firm would be. More like a call centre. She didnt work in the department who dealt with your defence but said that it would have been dealt with by their "VDR" department.

 

She told me that they seem to be top heavy with so called "managers" but that they are supposed to have a "quality manager" dedicated to ensuring that standards are maintained by the name of EDIT. Basically everything going out from the department is supposed to to through her and this would have included MBNAs witness statements. Im told that shes viewed as being as useful as a chocolate fireguard and this fiasco more than bears that out. I had to laugh at her description of her as visually looking like the fat one out of laurel and hardy!

 

Its well known in the firm as well that at least one individual working in the department was responsible for cocking up his cases repeatedly and getting his cases struck out and that the fact he still works there lead to some good people leaving in disgust. This genius is called EDIT ! Was he dealing with your case by any chance? If so its another thing to report to the SRA as Optima are under duties to ensure that competent people are handling the work.

 

 

Edited May 23, 2010 by saintly_1
Removal of names

[soothy meldrum]

Oh I nearly forgot. Somewhere earlier in this thread you said that the Barrister who attended one of the hearings in your case was charging them over £1500. How did you know this? Did they serve a costs schedule on you? If so then they showed again that they havent got a clue as if this case was on the fast track they are limited as to what they can recover for advocates costs.

 

Part 46 CPR PART 46 - FAST TRACK TRIAL COSTS - Ministry of Justice ,akes clear that the amount they can recover is - where the claim is

 

More than £3,000 but not more than £10,000 £690

 

If they tried to claim over £1500 in recoverable costs from you this was very naughty yet again.

Edited August 23, 2009 by soothy meldrum

[soothy meldrum]

Not sure who this [name edited] is but it looks like she is not a qualified solicitor or a legal executive which is the other recognised qualification in English Law. This can be seen by clicking onto the directory for legal executives at

 

ILEX Fellows Directory

 

and then typing in the firm name - Optima in the search box.

 

You can do the same thing on the Law Society site The Law Society - Find a solicitor and this lists all the solicitors employed by Optima in Bradford.

 

Youll notice that there is an entry in the legal executive list for an [name edited] who I assume is the quality controller I spoke about earlier. Interestingly her specialism is in Conveyancing so quite how this qualifies her to do the quality control in complex matters of litigation which is a completely seperate discipline entirely is beyond me.

 

This is relevant for PF as Optima are obliged to ensure that all staff whether qualified or not are adequately supervised to ensure that they can do the job properly and one wonders whether or not having a conveyancer as a litigation quality controller is in any way adequate.

Edited August 24, 2009 by steven4064
Names of real people removed

[soothy meldrum]

PF

 

Ive been doing a bit more digging for you and had a quick chat with my friend on the inside at Optima.

 

She told me that whilst all of the action was going on on your case [name edited] was being managed and supervised by a chap called [name edited].

 

I am told that this character is a solicitor and if hed been doing his job properly he would have spotted immediately the numerous flaws in the three statements of [name edited].

 

He would have been the first port of call for quality control before [name edited].

 

So there is absolutely no excuse for the complete pigs ear they made of your case and if this is an example of the quality of work they carry out day in and day out then god help the legal profession and their clients.

 

I am told that [name edited] did not hang around long at Optima - he only took over the reins at the beginning of 2009 and recently left rather suddenly and now works at a firm in Manchester called Donns LLP. We dont know whether his leaving had anything to do with your case or what this says about life working for that firm but as far as I can gather this guy was supposed to be 'the face of the future" and so for him to have gone after such a short time is very queer. Draw your own conclusions.

 

She told me that this [name edited] character would not have got his hands on your case. Hes been banned from working on any litigation cases due to his constant cock ups and now works for Optimas professional negligence team. To quote my source "hes got a wealth of experience of causing professional negligence so its appropriate that hes now dealing with such cases".

 

The head honcho of the entire department is a chap called [name edited]. He is a solicitor and he will be the person with whom the buck stops.

 

Please put up the costs schedule they served on you for comment.

Edited August 24, 2009 by steven4064
Names of real people removed

[soothy meldrum]

PF:

 

Sorry I havent been around for a while. Been a little indisposed unfortunately.

 

Just wondering whether youd made any progress with your complaints and contempt of court proceedings. Have they dug out the original of the letter you sent them asking for the adjournment yet. It should be stamped with the date it was received as evidence. If it shows it was received earlier than they said it was in the case summary youve got hard proof that they deliberately mislead the court.

 

If you need any help just give me a shout. Remember I have good and reliable sources of information.

[soothy meldrum]

SARN them and do the same to MBNA and state in the SARN to MBNA that you require all material held about you on their behalf by Optima also.

 

Im told that Optima have a case management system where all post is scanned to their system on the day of receipt and it should be noted on the computer file history.

 

dont be fobbed off by them. They need to explain why the witness statements they produced had their witness name misspelt.

 

Get SRA involved. Get the media involved - Watchdog. Daily Mail. Private Eye etc. Private Eye Private Eye | Official Site would love to hear about it seeing as Optima are connected to Capita - or "Crapita" as Private Eye dubbed them..... crapita "private eye" - Google Search

 

If they had fun rhyming the name Capita just imagine the possibilities with Optima........

 

Seriously though this might be a good idea, to make hay while the sun shines, you can drive a coach and horses through any protests by Optima that they dealt with the case to the highest of professional standards and Optima can do nothing about it as you have truth on your side,

 

Go for it