Claim initially struck out but now I must go to Court...

[alanfromderby]

Personally, I would make it as simple as possible, along the lines of:

 

 

 

 

In the light of the order of Judge ???? dated ??/??/?? striking out the statement of case of the Claimant, I hereby apply for judgement to be entered against the Claimant.

 

I further apply for defence costs under CPR 27.14(2) of £??.??, which is calculated as follows:

 

 

Costs under CPR 27.14(2)(d)

 

For attending the court hearing on ??/??/?? I claim costs of £??.??, which is for ? hours @ £9.25 per hour, plus ?? miles @ 45p per mile.

 

Costs under CPR 27.14(2)(g)

 

I also respectfully ask the court to award costs of £?.?? due to the claimant's unreasonable behaviour in issuing a claim without following pre-action protocols, and their subsequent failure to provide evidence to substantiate their case. I estimate that it has taken me ?? hours to research and prepare my response to their action @ £9.25 per hour, which is a total of £??.??, plus £?.?? which I estimate I have spent on postage, printing and stationery.

 

 

 

He may agree these, he may not - but if you don't ask, you don't get!

[paying4ever]

Thanks Alan. That looks good to me. Simple and to the point and I understand it!

Does it matter if I don’t know the name of the judge who denied their application to re-instate the case? Should I just refer to the District Judge or should I phone the court to find out his name?

Also, should I mention the claim was originally struck out in May and Application to re-instate the claim was denied at a hearing on 22 August?

As for costs, what would you say was reasonable? I must have spent 20-30 hours or more reading different rules and case law but I’m sure I’ve got no hope of claiming that much!

If the judge denies my application for judgement, what is likely to happen next?

Sorry for all the questions but I don't want to make a disastrous mistake at this stage.

[FunkyFox]

Well Alan that is certainly easier to read than my attempt!

 

What would happen if the judge denied the application and what options would that leave the defendant with.

[paying4ever]

I’d like to know what would happen if the application was denied as well, Funky. If you can appeal then I think keeping it simple is the best option at first. But if you only get one shot at it then it probably makes more sense to go with your in-depth argument. Do you think anyone could get pt2537 to give his opinion?

Edited August 25, 2008 by paying4ever

[FunkyFox]

I think P4E your circumstances are a bit more striaght forward. Given that Global have already tried and failed to re-instate the case I can only see that the only outcome would be for the application to be succesful otherwise you'd be stuck in neverland forever. For me, if the the application is denied then the claimant could apply to re-start the case and it could well be succesful as its only fee based.

 

If I was you I'd go for it as I can't see you can lose, as for me I'd love some further input and advice. I've read and re-read CPR 3.5-3.7 and just can't work out what the best thing to do is.

[alanfromderby]

I’d like to know what would happen if the application was denied as well, Funky. If you can appeal then I think keeping it simple is the best option at first. But if you only get one shot at it then it probably makes more sense to go with your in-depth argument. Do you think anyone could get pt2537 to give his opinion?

 

 

Why is there such an obsession with the application being refused - this is exactly the same situation as when a defendant fails to file a defence. Judgement is automatic - but you have to ask for it.

 

If you must have an answer to the question - you can appeal on the basis of a serious error in procedure.

 

That is my last contribution to this pointless and time consuming debate -but since you clearly are not interested in the responses from me, or the other TWO contributers to this thread, but would prefer to waste pt2537's time instead, it will no doubt be falling on deaf ears.

[paying4ever]

Thank you for your reply, Alan. I’m sorry if I have annoyed you in some way. It was not my intention as I have fully appreciated and benefited from your input and advice.

I am new to all this and as I have been given conflicting advice, I was simply interested in hearing the views of others before making my application for judgement.

For example, FunkyFox has prepared what appears to me to be an excellent and well thought out application on his thread but it is rather in-depth and technical. Your advice is much more straightforward and easy to understand but is a completely different approach to that of FunkyFox. How am I to know which is the best solution for my case without asking for the views of others?

I have taken notice of everything you have said on this thread and, as I say, have fully appreciated the time and effort you have put in on my behalf. However, as someone less experienced in these matters than you, I can’t feel as confident as you that judgement in my favour is ‘automatic’. I hope you are right but it doesn’t really make sense to me that, if my application is 100% certain to succeed, the judge didn’t simply finalise the whole matter at the hearing.

You are obviously convinced you are right but you were 95% certain that the Claimant’s application to re-instate the claim would succeed but as you know it failed. FunkyFox thought it was less of a formality and he was proved right.

Hopefully, once I gain more experience in these matters, I will be less inclined to ask what must seem like tiresome and pointless questions to long-standing forum members such as yourself. For example, I assume experienced members automatically know the optimum amount to claim for costs whereas I have no idea. Although, I suspect if I asked for payment for the full time I have put into all this, the judge would fall off his chair in fits of laughter.

Anyway, Alan, I’m sorry if I have offended you by not accepting your opinion as absolute fact. However, I repeat once again that I have very much appreciated your contribution, and indeed the contributions of other posters, to this thread.

[FunkyFox]

Alan, I think the tone of your post is grossley unfair. Both P4E and myself are very new to this and in many respects, completely out of our depth. Like P4E I have no desire to be spoon fed, BUT when the stakes are so high (which they are) in these cases surely you can understand peoples trepidation at launching in with both feet on the basis of advice that they have yet to fully understand.

 

All of your arguments and points have been very helpful and I remain very grateful for your advice. I am by no means stupid and the fact that the question (which may be tiresome and pointless to you) remained unanswered and with the penalty for ballsing this up so high, please try to empathise with those less informed than yourself, who are simply trying to make the right decsion.

 

For P4E, I read in another thread that Paul, by his own admission is not red hot post judgement (he prefers not to let matters get that far!) so he may not be best placed to help.

 

I think the time may have come, subject to any other advice, to take a view and go for it. As I said I think your case is far more straight forward than mine and I would be suprised if matters don't go your way, but as already been shown in this thread, nothing, espeically in the small track, is guaranteed or 'automatic'.

[paying4ever]

Have Arrow Global committed a criminal offence?

 

After careful consideration, I decided not to make an application for a judgement last year. I know most experts on here will consider that a mistake and, with hindsight, I probably should have tried for it. However I didn’t, mainly because I couldn’t get to grips with all the legal jargon and it was taking over my life!

 

Also, if I had been granted a judgement in my favour, it seemed that Arrow Global could still start a fresh County Court claim if they ever found the credit agreement. So no matter what I did; it would never be completely over. So I decided to just let the debt management company carry on paying all my creditors on a pro-rata basis as before, including Arrow Global.

 

I heard nothing more until today when I received a letter from Cope’s, their solicitors. It read…

 

Re: Judgement Debt owed to ARROW GLOBAL LLC £xxxx

Northampton County Court Centre

Case number: ********

 

We refer to the above and in particular the County Court Judgement awarded in favour of ARROW GLOBAL LLC You have thus far failed to make sufficient payment to discharge your debt.

 

In the circumstances we have received instructions to apply for an Attachment of Earnings Order against you and in favour of ARROW GLOBAL LLC…..

 

It goes on to then offer me a ‘get out’ by agreeing to pay them £x a month to avoid this action. If I don’t agree they will start action in 7 days.

 

I contacted the court and they confirmed that the case is still ‘struck out’ as it was when Arrow Global’s application to re-instate the case back in August was dismissed.

 

Is the fact they are blatantly misleading me in an attempt to get me to pay them more money a criminal offence under the Administration Of Justice Act? Or have they fallen foul of any other criminal law? It seems to me that their behaviour is tantamount to attempted fraud.

 

Any comments and views would be very much appreciated. And any suggestions as to what I should do next would also be most welcome.

[FunkyFox]

Hi P4E, Nice to hear from you again but I'm sorry this has reared its head again.

 

I had a quick read through this thread to get up to speed and to clarify if Judgement was in fact ever entered against you, which as you know it wasn't.

 

I can't really say what I think about this as the CagBot would come along and delete all the expletives I think it is a disgrace.

 

I would like to think that it was an admin error but frankly something this serious would be such a monsterous balls up I doubt it. I think you are right, I looks like a deliberate attempt to trick you into increasing payment upon a debt which has been proved to unenforceable and haas already been struck out from court twice in effect. I can't believe that they didn't know this when the letter was sent.

 

I would keep you powder dry whilst you consider your options and get all the information and then go to town on these clowns. Seriously. If I can help I gladly will.

 

Just a quickie, I assume the case no. on your letter matches the case that was struck out (safer to check these things first before going in guns blazing). Next I would start writing a letter to the OFT (this is a serious breach of their guidleines) and then we will see if there is anything else that you can do.

 

Hang 'em high I say!

 

FF

[JonCris]

I agree with FF Once you have confirmed your situation re stay Threaten the solicitors AND their clients with the 2006 Fraud Act. At the very least it'll get their attention

[paying4ever]

Hi FunkyFox, thanks for your input. I agree with you it is a serious breach of OFT guidelines. In fact if it’s not serious enough for them to lose their licence then I don’t know what is. I have checked the case number and it is definitely the same one. I’ll do some research and put together a letter to the OFT in the next few days as you suggest and see what happens from there. Thanks again for your help.

Thanks JonChris, I’ll check out the Fraud Act. I suppose it’s too much to hope for that they will actually be charged but as you say, it will certainly get their attention.

[DonkeyB]

Subbing. This is unbelievable, but possibly has similarities to this thread:

 

http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/191834-scary-letter-bryan-carter.html

 

Is this a new tactic being employed by DCAs and their 'solicitors'?

[paying4ever]

I've just phoned the OFT to register a complaint and I get the feeling they couldn't care less! Has anyone ever know any action to be taken against a DCA or is it just a complete waste of time?

[DonkeyB]

The OFT will only investigate a specific organisation if it gets lots of complaints, so put it in writing and hope it makes the stack grow.

 

Trading standards are obliged to act on a complaint and give you a response.

Edited March 30, 2009 by DonkeyB
typo

[paying4ever]

I am now getting hassle from all angles from various creditors so I have finally decided the time for procrastination is over! I am now going to fight back with no-holds barred!

 

I will be starting a few other threads shortly with details of the other claims I am about to fight but first I want to finalise this one.

 

Thank you to everyone who has offered help and advice so far. I think I am just about set to go with this now but would really appreciate any comments/help on the two points below and also my proposed N244 submission.

 

Firstly, does anyone know if the fact I have left it so long mean judgement in my favour is no longer straightforward?

 

Secondly, in post 42 Alan said there should be no fee but the N244 guidance notes say there is a fee when applying for Judgement. I guess I pay it and then try to claim it back in my application for costs? Any advice greatly appreciated.

 

My proposed N244 application is this…

 

Box 2 … I assume I am still the Defendant even though I am now making an application for judgement.

 

Box 3…. I assume I just briefly state… "Application for an order for Judgement for the Defendant"?

 

Box 4… I tick NO?

 

Box 5… Without a hearing

 

Boxes 6,7,8 N/A

 

Box 9… Not sure if I leave this blank?

 

Box 10… the evidence in the box below…

The Claimant’s claim was initially struck out in an Order dated 15 May 2008 and a subsequent application by the Claimant to re-instate the claim was dismissed in an Order dated 22 August 2008.

 

However, the Claimant has continued to contact the Defendant and has threatened further legal action. In a letter dated 24 March 2009, the Claimant falsely stated that they had been awarded Judgement in this case and demanded payment to prevent further legal action. (copy of letter attached).

 

The Defendant therefore respectfully requests the Court to make an Order for Judgement in favour of the Defendant so as to bring finality to this litigation and prevent the Claimant from further abusing the Court process.

 

In the circumstances, the Defendant feels justified in also requesting that an Order for costs be made in favour of the Defendant in the amount of £231.25. This is for the estimated time the Defendant, as a Litigant In Person, has spent preparing his defence to this claim and attending the Court Hearing on 22 August 2009. (25 hours @ £9.25 per hour).

 

Thanks to everyone for their patience with me and I promise not to dither any more!

Edited June 12, 2009 by paying4ever

[paying4ever]

I am hoping to send off my application tomorrow but don't want to waste £75 I can't afford if my chances of success are now poor. Can anyone help answer my couple of questions and point out any mistakes in my proposed application? Any help would be very much appreciated.

[paying4ever]

I assume no-one can help further? I've searched the site but I can't find the answers to my questions. I think I will just send the application off and see what happens even though the £75 fee is difficult to find. I would have felt better risking money I haven't really got if I knew the wording of my application was correct and my chances of success were good. Anyway, thanks for everyone's contributions in the past and I will post the final outcome so it will help others.

[toto003]

Yes - an N44 costs £75 to submit, but if/when judgment is given in your favour, you can claim this back from the claimaint.

 

You were given an excellent template asking for judgment and for claiming costs back - I don't understand why you havent used it ?

 

In the light of the order of Judge ???? dated ??/??/?? striking out the statement of case of the Claimant, I hereby apply for judgement to be entered against the Claimant.

 

I further apply for defence costs under CPR 27.14(2) of £??.??, which is calculated as follows:

 

 

Costs under CPR 27.14(2)(d)

 

For attending the court hearing on ??/??/?? I claim costs of £??.??, which is for ? hours @ £9.25 per hour, plus ?? miles @ 45p per mile.

 

Costs under CPR 27.14(2)(g)

 

I also respectfully ask the court to award costs of £?.?? due to the claimant's unreasonable behaviour in issuing a claim without following pre-action protocols, and their subsequent failure to provide evidence to substantiate their case. I estimate that it has taken me ?? hours to research and prepare my response to their action @ £9.25 per hour, which is a total of £??.??, plus £?.?? which I estimate I have spent on postage, printing and stationery.

 

 

Perhaps I misunderstood, but it is now a Different company trying to chase you for this debt ?

 

If it is a different company threatening to bring action, I am not sure what advantage that bringing up their actions gives you in this application. (if any)

 

You may wish to add to your N244 request that the claimant has had more than enough time to provide you with a copy of the agreement.

Edited June 15, 2009 by toto003

[toto003]

Again - you should follow what alan has said about the process, it is excellent advice, and you were extremely lucky that the judge decided to strike out the further application of Arrow against you. You were very very lucky.

 

They will not be notified about the application, and it is only necessary to file one copy. It also needs to outline the amount claimed as costs, and the reason why costs should be paid. That will simply be passed to the judge who will then issue the judgement.

 

At that point the court will issue the judgement notice to all parties, and the only option open to the claimant is to apply for a set-aside - but with the comments the judge made today that is hardly likely to succeed. Indeed it would be rather foolish to even try.

 

Applying to have a judgement set aside is much more difficult than making another hearing application as the criteria are much more strict.

 

Yes - It is still possible that the original agreement could be found, and they could pursue you (But it has been a long time, if there was an original dont you think they would have found it by now?)

[paying4ever]

Thank you for your input Toto.

There are a number of reasons I didn’t follow the advice, not least the fact that I feel completely out of my depth on this and some of the questions I ask seem to be passed over (presumably because the answer is obvious but I can’t find it despite spending countless hours researching). Also some advice I was given seemed to conflict. For example, Alan seemed to think there would be no fee but it looks as though there is but I can claim it back IF I win. Also, I owe numerous creditors so if I get this one written off, I still won’t be any better off as the amount I am paying through a Debt Management Company will remain the same with payments to other creditors increased. I was finding it impossible to work and at the same time research sufficiently to acquire enough knowledge to be confident in making the application.

Quote - Perhaps I misunderstood, but it is now a Different company trying to chase you for this debt ?

It is the same company now but they wrote to me threatening further action claiming they had a judgement in their favour – see post 59. (This is completely wrong and borders on attempted fraud in my opinion). It was this and the fact I am now being hounded by several other creditors that persuaded me to finally fight back!

I was just hoping someone would be able to let me know the likely chances of me succeeding now that I have left it so long. I really cannot afford to risk £75 if my chances are slim. I was also hoping someone could answer my specific questions in a way that would give me the confidence to go ahead.

I know I must sound like a complete ditherer but it’s only because I don’t like taking on something I don’t understand to any great degree and I am finding it incredibly difficult to acquire sufficient knowledge with the limited time I have available. There is a mass of information on this site but much of it is conflicting at times.

Anyway, thanks again for your help Toto. It really is very much appreciated.

Edited June 15, 2009 by paying4ever

[mayday mayday]

Would you be able to help me. My claim was struck out in January this year, however 4 weeks ago I received a letter from the court advising that the claimant has requested the claim be reinstated as they filed the documents at the wrong court. I requested my agreement and they sent a blank copy stating that the agreement could not be retrieved. This was in October last year. I requested it again along with any other documents relating to this case last December. They replied that it would take a few weeks to get the information together and I never heard anything else. What should I do now? I realise you must be busy but I would be grateful for any advice you could give me. Thanks

[toto003]

P4E - In my opinion - your chances of getting judgment in your favour have increased, Arrow have had ample time to furnish the court (or you) with a compliant agreement - and they have failed to do so.

 

When I first started reading this forum, I knew nothing at all about consumer credit, and no one was able to answer what I thought was a very simple question.

 

I ended up having to do almost all of the research myself, I am not saying I am brilliant or anything - but I was happy to post up a guide on my findings for others to use.

 

There are certain circumstances where the fee for submitting an N244 isnt payable - perhaps alan thought that you qualified under one of those - I dont know.

 

I would also point out that getting this one matter "dealt with" would be a good step for you to take, I dont know what your personal circumstances are, and/or how many creditors you do have, but getting rid of one (and paying the others more) has got to be a good start to getting back on track.

 

I appreciate that trying to learn about this kind of stuff can "take over your life" - it certainly has taken over mine. But the fact is, no one else is going to do it for you.

 

Subject to someone more experienced giving you better advice - I suggest you follow the template already laid out by alan for you.

 

I have seen several other threads where Bryan Carter have sent misleading letters like this (i.e. implying they have judgment when they dont) - once you have submiited your N244 and sent off your claim for costs - you might want to spend some time finding some of those threads and read up on how they handled it.

Edited June 15, 2009 by toto003

[toto003]

Would you be able to help me. My claim was struck out in January this year, however 4 weeks ago I received a letter from the court advising that the claimant has requested the claim be reinstated as they filed the documents at the wrong court. I requested my agreement and they sent a blank copy stating that the agreement could not be retrieved. This was in October last year. I requested it again along with any other documents relating to this case last December. They replied that it would take a few weeks to get the information together and I never heard anything else. What should I do now? I realise you must be busy but I would be grateful for any advice you could give me. Thanks

 

The best thing to do would be to start your own thread and pose that question. - MY (inexperienced) opinion tells me that you might be able to use a request under CPR 31.14.

read this thread;

http://www.consumeractiongroup.co.uk/forum/legal-issues/159445-getting-them-reveal-their.html

 

I guess you could also oppose their application to reinstate (like P4E did) ... But it is rarely successful.

[toto003]

but it looks as though there is but I can claim it back IF I win. ...

I was just hoping someone would be able to let me know the likely chances of me succeeding now that I have left it so long. I really cannot afford to risk £75 if my chances are slim. I was also hoping someone could answer my specific questions in a way that would give me the confidence to go ahead.

 

I dont think anyone will give you a cast-iron guarantee. But the fact is, you have already won. This shouldnt be a case of IF - It should be a formality.

 

The claimant has taken action against you and had their claim struck out (You win they lose)

 

The claimant has applied to have the claim reinstated and The Judge has denied them this (You win, they lose)

 

however, the judge did seem to say that if they can furnish the court with a compliant credit agreement, then it might be a different matter.

 

TBH - I cannot see how "however" that makes any difference. It has been several months and were Arrow/Bryan Carter serious about coming up with a compliant agreement they would have done so by now.

 

As I have said already, I think the amount of elapsed time should count in your favour - rather than against you.

Edited June 15, 2009 by toto003