Redetermination. Help Pls.

[tallyho!]

Good evening,

I am looking for some advise regarding a redetermination hearing next week. I'd be grateful if any of you can help.

Does anybody know if a DCA has to comply fully with all relevant Civil Procedures Rules before and during a claim for CCJ?

Thanks

[tallyho!]

bump..

I'm only asking as it seems to me that the Claimant are in breach of quite a few of the rules and practice directions and I don't know if the judge will take this into account, when setting a new amount.

[tallyho!]

bump

[tallyho!]

anybody out there please

[Robdblynd]

As far as I am aware they definitely do have to comply with a properly worded request for information etc under Civil Procedure Rules, certainly within the timeframe they are given to respond.

 

 

 

Hope that helps a bit.

 

 

 

If I'm wrong, then I'm sure a more learned person will correct me.

[surfaceagentx20]

Where in proceedings a debtor admits the whole or some part of the amount claimed and files an admission with an offer to pay the admitted sum, the court will (unless the creditor objects) enter judgment for the admitted sum and, based upon information provided by the debtor about his financial means, determine what sum should be paid by the debtor to the creditor by instalments.

 

A redetermination occurs where the debtor makes an application to vary the instalment order.

 

All proceedings before the civil courts are controlled by the Civil Procedure Rules 1998 (CPR).The courts require compliance with those rules. The relevant rule governing the application for a redetermination is CPR 14.13. If you believe the creditor is in breach of this rule or any other rule, in order that I can consider the matter, please set out the rule and the breach you rely on.

 

X20

[tallyho!]

Oh, thank you so much.

 

As far as I ca ascertain the claimant are in breach of the following

 

PD General 1.4 (3)

 

Compliance with protocols:

2.2

3.1(a)

 

Pre-actin behaviour:

4.1

4.2 (a) (d)

4.3 (a) (b) 9g)

 

CPR 14:

14.5 (4b)

 

CPR 16 PD:

2.6

2.6 9a)

 

CPR16:

16.2(1) (a)

16.2 1 (cc)

16.4 1 (a)

16.4 2 (a) (iii)

2(b) (i) (ii)

 

No response to CPR18 dated 3.6.08

 

If all this is relevant, should I mention this to the judge on the day, or send a letter in advance?

 

Your help is much appreciated, thanks.

[tallyho!]

bump again

[surfaceagentx20]

Sorry, I meant to reply to this earlier.

 

I considered the string of CPR rules and PDs you referred to. Unfortunately, I could not imagine a situation where breach of any of them would materially influence a re-determination hearing.

To quickly run through them so that you understand my reasoning:

 

1 Pre-action stuff

There has to be compliance with any relevant pre-action protocol and so on. However the sanction for failure to comply is a sanction in terms of costs. Since any costs allowed will be fixed automatically depending upon the value of the claim, the costs allowed on the entry of judgment on admission were never costs capable of reduction by means of a sanction.

 

2 CPR 14 (Admissions)

The breach refered (failure to copy acceptance of admission to defendant) to will not impact on the way the re-determination is considered.

 

3 CPR 16 (Statements of Case)

Any shortcomings in the contents of the Claimant's Particulars of Claim will be shortcomings which existed before your admission was entered. Had those shortcomings meant you were incapable of assessing what sum to admit, you ought not to have made the admission. You will not now be able to withdraw your admission post judgment without an extremely compelling reason (and I can't think of one).

 

4 CPR 18 (Requests for Further Information)

I imagine the court has not ordered the Claimant to deliver Further Informaion (FI). FI will only be ordered to clarify an issue in the proceedings. Since by reason of the admission and subsequent judgment you and the Claimant agree on the amount payable, I can not imagine there are ongoing issues which require clarification from the Claimant.

 

Sorry to pour cold water on this one.

 

However, what you might care to do is to draw the shortcomings to the attention of the District Judge or other person who holds the re-determination hearing to resist any application for costs that might be made against you.

 

X20

[aloysiush]

X20 is spot on!

 

However, passing comment on that which has gone before and has no material effect on the matter now being ajudicated upon by the court, may only serve to aggravate the district judge. Stick to the relevant issues and forget the 'smoke and mirrors' - on this occasion.

[tallyho!]

hi. thanks... computer has been down for a few days so not been able to check.

 

Ok, so what you are saying is, I just go along to the hearing and say that I can't afford to pay the amount set and hope for the best

The amount set is for £329 per month, but my Financial Statement. prepared with the help of CCCS shows a deficit of -£21 per month:confused:

 

Can I not complain somewhere about non receipt of reply to CPR18?

[surfaceagentx20]

Yikes! You've got an order to pay £329.00 pcm and your financial statement shows a deficit of £21.00! Has that statement been filed at court? What's the balance owing on the judgment? Are you in arrear under the instalment order? What are you suggesting the court should order at your re-determination?

 

The reason for my alarm is that if the evidence has been filed it is evidence that you are not in a position to pay anything. If you are not in a position to pay anything, the Claimant may, if he has any sense, ask the court to discharge the instalment order on the grounds that there is no reasonable prospect of the instalment order being paid. If the Judge agrees, the absence of an instalment order would allow the creditor to use enforcement procedures.

 

I wouldn't bother with complaining that your request for FI has not been answered. It's only worth complaining if complaining is going to get you a result and in my view complaining will not get you a result, especially now I know a little more about the position.

 

x20

[tallyho!]

Hello again,

The amount the DCA claimed on N1 was £2541 including interest,solicitors and court costs.

The amount I admitted was £2082.61 (didn't know about this site at the time unfortunately).

Now the interest and fees have been disallowed by the looks of it, but the Judgment was still £329 pm.

Financial statements were prepared with the help of CCCS and all creditors were getting £1 pm, which they are all accepting, including this one until they decided to take it to court. I sent the DCA a revised and up to date Statement of Income and Expenditure and the same to the Court with my partial defense.

What annoys me is that I have got a huge debt with another company who has been great.

This particular DCA have been nasty, they've cashed my payments for CCA yet not sent anything, in fact they said they were going to order it from OC way back in May. I have not heard a thing from them or their solicitor since the N1.

[tallyho!]

Also I was told that I must attend the hearing. Does that go for the claimant as well? I don't really want to have to face them..

[tallyho!]

bump

[surfaceagentx20]

OK, I'm thinking about this one. Bear with me.

 

x20.

[tallyho!]

Thank you, my hearing is Tuesday am..

Much appreciated:)

[tallyho!]

Sorry, just checked it's on Wednesday..

[surfaceagentx20]

Where you say all creditors were getting £1.00 per month which they were accepting, was this arrangement under an Individual Arrrangement (IVA)?

 

If it was under an IVA and you were keeping up with your payments then there may be grounds to set aside the judgment. If there is not an IVA in place then, as far as the re-determination is concerned, there are no further suggestions I can give you to turn things around in time for tomorrow. You will have to attend tomorrow's hearing and do your best to persuade the court to direct that you be allowed to discharge the judgment by such smaller sum as may be allowed. The creditor will be allowed to attend the hearing. Be prepared to expect to see a representative from the creditor at court.

 

If the court declines to adjust the amount to be paid or fixes it at a rate which is unaffordable, you may wish to consider an IVA. In an IVA, if the majority of your creditors are happy with your instalment proposal, the proposal can bind a lower value creditor, even if he dissents. I could go on about IVAs at length but it would be general advice rather than advice particuarlly tailored to your circumstances.

 

The CCCS offer an IVA service which you may wish to examine online in order to familiarise yourself with what it is I'm talking about.

 

Any questions just let me know.

 

x20

[tallyho!]

Thanks ever so for your help.

No it was not under IVA. I'll look into that. Thanks again.

[tallyho!]

Hi,

Been to redetermination hearing today. As X20 said No Joy.

However the judge. who was very nice by the way, made it a Forthwith,but said the claimants would have to apply to the court for permission to apply for a charging order, and whether that would be granted was another matter given that other creditors would be disadvantaged. He did seem concerned that there had been no response to CCA,CPR18 or the fact that no default notice had been served, but said he could not deal with that as this hearing was to determine judgment. Almost as an aside, he did say I could perhaps apply for judgment to be set aside.(he even told me where in the building to obtain the form).

So how do I go about this now? Any help appreaciated.

[surfaceagentx20]

Er, what's that you say? There was no service of a default notice? And this is a judgment arising out of an agreement regulated by the CCA 74?

 

 

If so, the absence of service of a default notice would operate to prevent the Claimant from terminating the agreement or demanding anything of the kind set out in section 87(1).

 

Whilst I'm thinking about how to overcome the fact that you went and admitted liabilty, perhaps you could give me the best you've got on the nature of the agreement and the lack of a default notice.

 

x20

[tallyho!]

At the time the claim was issued I took advice from CCCS, who said to part defend i.e interest and court costs. Unfortunately at the time I was completely naive and unaware of this forum. The DCA has not comlied with my request for CCA and CPR18. Only going through my papers ready for today did i realise I never had a default notice. Again completely naive to these things. I will apply to have it set aside, i just don't know how to go about it. I have now learnt my lesson for next time...

[surfaceagentx20]

OK, here's my thinking.

 

CPR 14 deals with Admissions. As I understand your case, judgment was entered after your admission of partial liability or an offer to pay a specified amount. In making the admission there was a request for time to pay. The Claimant accepted your admission and the court then decided that you should pay the judgment by instalments. Subsequently you asked the court to re-determine the amount of the instalments. At the re-determination, the court dismissed the instalment order and directed that the judgment should be payable forthwith.

 

In the course of dismissing the instalment order the Judge remarked that he was unhappy that a default notice had not been served but declined to do anything about that because the matter before him at that time was an application for a re-determination, nothing else.

 

The objective today is to achieve a setting aside of the judgment. That will not be possible unless and until the court gives permission to you for the withdrawal of your admission [CPR 14.1(5)].

 

CPR PD 14 Para 7.2 provides guidelines as to the circumstances in which the court may or may not permit the withdrawal of an admission. The guideline represents an adoption of the ruling of Sumner J in Braybrook v Basildon & Thurrock University NHS Trust [2004]

 

Withdrawing an admission

7.1 An admission made under Part 14 may be withdrawn with the court’s permission.

7.2 In deciding whether to give permission for an admission to be withdrawn, the court will have regard to all the circumstances of the case, including-

 

(a) the grounds upon which the applicant seeks to withdraw the admission including whether or not new evidence has come to light which was not available at the time the admission was made;

 

(b) the conduct of the parties, including any conduct which led the party making the admission to do so;

 

© the prejudice that may be caused to any person if the admission is withdrawn;

 

(d) the prejudice that may be caused to any person if the application is refused;

 

(e) the stage in the proceedings at which the application to withdraw is made, in particular in relation to the date or period fixed for trial;

 

(f) the prospects of success (if the admission is withdrawn) of the claim or part of the claim in relation to which the offer was made; and

 

(g) the interests of the administration of justice.

 

Any application to set aside judgment will necessarily be framed to demonstrate that on balance the above principles favour the granting of permission and set aside.

 

Most cases on the subject of the withdrawal of admissions are in the field of injury claims. I have not come across a reported case dealing with the entry of judgment following an admission in a contract case.

 

There are a number of considerations. Let us imagine that in proceedings A claims £100.00 from B and B offers to pay £80.00 in discharge of that debt which A accepts. That offer and acceptance would operate to create a new agreement compromising the claim and binding on A and B. Absent fraud, the court would be unwilling to set aside the judgment based upon the compromise agreement.

 

However, imagine in the same case that A's claim to be entitled to £100.00 was in truth a claim which A was not entitled to make. What A was entitled to in truth, was nothing. It could be argued that when B offered to pay £80.00 and A agreed to accept it, the agreement thereby reached was induced by B's mistaken belief in A's right to receive it. Alternatively, that the agreement lacked consideration on the basis that A had suffered no detriment and B had gained no benefit in return for his £80.00.

 

In a claim brought under an agreement regulated by the Consumer Credit Act 1974, the creditor must comply with the provisions of ss 87 and 88 before the creditor becomes entitled to demand those things set out under s 87(1). Those things include a right to terminate the agreement and demand early repayment. In short, the creditor must deliver an effective default notice to the debtor and the debtor must have failed to satisfy whatever was required to be done by the default notice within the time prescribed.

 

If the creditor had failed to deliver an effective default notice but proceeded to terminate and demand early repayment (the act of beginning proceedings for early payment being a 'demand'), those steps would be steps which the creditor had no right to take.

 

Thus, if in those circumstances the creditor brought proceedings for £100.00 representing sums for early payment, the debtor would have a complete defence on the basis the creditor had no right to that money.

 

Any admission would be an admission made in the mistaken belief that the creditor had served a default notice and was entitled to the money, alternatively was made in ignorance of the fact that the right to the money was dependant upon the delivery of an effective default notice.

In Sollitt v D J Broady Ltd [2000] the court held that it should not allow the withdrawal of an admission made under a mistake where this would cause serious prejudice to a claimant who has relied on the admission. On the other hand, serious prejudice should be proved, not presumed: Gale v Superdrug Stores plc [1996].

 

In this case tallyho undoubtedly made a mistake in admitting liability for a sum of money in circumstances where the creditor hasd not served a default notice. However, it seems to me that the degree of culpability for any admission made by mistake or owing to mistaken belief very much depends upon the nature and quality of the facts and matters advanced by the claimant in the claim.

 

The Defendant can neither admit nor deny the truth of a fact if it is not advanced first by the claimant. Thus, if in the Particulars of Claim the Claimant neglected to state that the claim was one made pursuant to an agreement regulated by the Consumer Credit Act 1974, that it arose by the failure of the Defendant to comply with the terms of a default notice delivered to him on (date) etc, etc the Defendant can not be held to have admitted or even mistakenly admitted there was delivery of a default notice etc.

 

I have not seen the Particulars of Claim, but I have seen many examples of Particulars of Claim issued by creditors for money only. Invariably the particulars are scant. Rarely do they plead the delivery of a default notice (there is no obligation to do so in money only claims) or even that the agreement is regulated. On that basis I am treating the claim as one made without particularising the delivery of a default notice.

 

In those circumstances, applying CPR PD 14 Para 7.2 to tallho's case it seems to me following the guidelines (a) to (g) that

 

(a) the grounds for withdrawal of the admission is the existence of a defence arising out of the Claimant's failure to serve a default notice. The Claimant did not plead that one had been served and therefore the Defendant should not be taken as having admitted that one was.

 

(b) The Claimant's failure to plead that the claim arose out of a regulated agreement and the failure to comply with a default notice was conduct which lead the Defendant to mistakenly believe that the Claimant was entitled to bring the claim.

 

© There can be no prejudice to the Claimant by the withdrawal of the admission which can not be compensated with costs. The effect of withdrawal of the admission would return the Claimant to a position where he is at liberty to continue to pursue the claim. The loss of the judgment does not constitute prejudice if in truth the judgment represents a windfall and money he was not entitled to have or recover.

 

(d) The Defendant would be prejudiced by the refusal of permission to withdraw the admission by becoming obliged to make payment to a creditor in circumstances where law intended that the creditor had no right to recevie it.

 

(e) The application was made promptly so soon as practical after learning the Judge had concerns that a default notice had not been served.

 

(f) The Claimant's prospects of success if the admission is withdrawn will be poor. However, that they will be poor is all the more reason to allow withdrawal of the admission because it demonstrates the lack of merit in the Claimant's case.

 

(g) The scales are in the Defendant's favour. It would be a blemish on the court's reputation to refuse the application to withdraw the admission if the effect of that was to allow the Claimant to circumvent the steps that Parliament intended the Claimant to take before demanding payment from the Defendant. Those steps were incorporated in the Consumer Credit Act for the purposes of Consumer Protection and good governance of agreements in circumstances where debtors are in a vulnerable position. The Defendant has an arguable defence with good prospects of success if it shown to the court that a default notice had not been served. To permit the status quo would be to endorse the Claimant's entitlement to a windfall.

 

x20