*won* Red / Lowell SD set aside plus costs

[Elenathion]

I'm really pleased. I had a stat demand from Red a few weeks ago so I CCAd them and applied for a set-aside. I had the usual response from them - "we are trying to get it from Littlewoods but it may not be within 12 days".

A few days ago I had a letter from them saying that Littlewoods are retrieving it from archives so please pay a full and final settlement now and this offer is withdrawn in a few days. So in other words, we know they won't be able to find one, so this is our last chance to get money from you.

Then today I had a letter saying that there is no credit agreement so the file is closed and they won't be pursuing me again.

 

I still have the set aside hearing in a few weeks which I am still going to though. I'm going to apply for costs and ask the judge to consider fining them for trying to collect money from me without a CCA. But also, do you think it is worth asking the judge to instruct them to remove all defaults regarding this from my credit rating as no CCA = no debt = no default? What do you guys think? Also, should I be cheeky and ask them to return my £1 since they weren't able to supply a CCA?

Edited September 13, 2008 by Elenathion

[twofoot]

Well done ! I would be doing what you suggest. Not to go towards clearing my CF but to put a finger up at them. Go for it.

[42man]

A judge will not fine them as such....BUT...you must claim your costs - for example...

 

Also the judge will not order them to remove the defaults, that is a separate issue which if you want to pursue further you could take them to court....

 

COSTS AS LITIGANT IN PERSON

 

10 hours spent researching consumer credit law and the consumer credit act @ £9.25 per hour + parking

 

I don't know what your personal circumstances are but you might like to state this to the judge...

 

As a lone parent/low income family with limited finances I approached a solicitor by phone and asked for an estimate on how much it would cost. I was given an estimate of 3 to 6 hours at £170 per hour to prepare the Application (£510-£1020) plus extra for attending the court.

 

I respectfully request that the court give consideration to awarding these costs on the indemnity basis or, in the alternative, on the standard basis as I believe, in any case, that they have been proportionately and reasonably incurred and/or are of a proportionate and reasonable amount.

 

In support of this request, I would also like to refer the court’s attention to the authority of the High Court in the case of:-

 

Hammonds (a firm) v Pro-Fit USA Ltd [2007] EWHC 1998 (Ch)

 

In this case, Mr Justice Warren confirmed that it was usual for an indemnity award to be made:-

 

27 So far as disputed debts are concerned, the practice of the court is not to allow the insolvency regime to be used as a method of debt collection where there is a bona fide and substantial dispute as to the debt. Save in exceptional cases, the court will dismiss a petition based on such a debt (usually with an indemnity costs order against the petitioner).

[ODC]

You should also ask the Court to name Clownells as Vexatious Litigants and mention their abuse of process in issuing an SD for a debt they couldnt prove

[Elenathion]

Red / Lowell failed to provide a CCA and admitted that it wasn't available due to the age of the alleged debt, so the SD was set aside on that ground and I was awarded costs also. Feel so pleased right now, and hope they realise that sending me that SD was one of the most expensive pieces of confetti ever for them.

 

I was awarded costs on the standard basis but did ask for them on the indemnity basis using the paragraph that I have seen on here. The judge said that he couldn't award them on the indemnity basis though as I would be making a profit and that is not something that he is allowed to do. So bear this in mind if asking for costs on the indemnity basis.

[Multay]

well done!!!!!!!!!!!!!

[fiftypence]

I was awarded costs on the standard basis but did ask for them on the indemnity basis using the paragraph that I have seen on here. The judge said that he couldn't award them on the indemnity basis though as I would be making a profit and that is not something that he is allowed to do. So bear this in mind if asking for costs on the indemnity basis.

 

Excuse my ignorance but what is the difference between indemnity and standard basis?

 

Also how did the judge assume you were going to make a profit? What if you told him that normally you earn £20 per hour and therefore you would be making a loss?

 

PS well done!

[noomill060]

great stuff!

[42man]

Elenathion.....very, very well done.....and interesting what the judge said....I must post this link to Monx !!! I do hope you'll assist others in similar situations if you get the time !!!

[42man]

Can you update your thread please Elena....and i'll see if we can get it moved to Legal Successes too... (really pleased for you !!)

 

http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/154428-bankruptcy-threat-please-help.html

[Alex_DeLarge]

Well done. I hope it goes as well for me in a couple of weeks.

[SHELBELLE]

CONGRATULATIONS:p:D

[MONX]

Firstly well done - congratulations, I bet that is a load off?

 

Secondly, the paragraph I used asked the judge to consider both the indemnity and standard basis, I guess it will always be down to the Judge on the day but my Judge said and this is a direct quote "You are letting them off lightly, my reading of this means that you could have asked for two thirds of what it would have cost you to have paid for legal representation." I thought this is what was meant by the term indemnity basis. The Litigent in Person rate is what I assumed was the standard basis.

 

I may be wrong, perhaps someone else can illuminate.

 

A really good result though Eleniathon!

[42man]

This demonstrates how different judges can be.....some caggers (including me) have had superb judges who do not like DCA's...and some whom love DCA's....it is a shame that they lack some sort of consistency.....Monx your quoting of Justice Warren was a quite superb find and addition to your defence in my opinion, OK so Elena didn't get the indemnity, but got costs anyway which is a good result in itself....not only does it address the issues of costs (if DCA's carry on using Stat Demands like this and people request costs, then slowly it will become uneconomical for DCA's to issue them for fear of losing money !!!)...apart from anything else it also highlights (what Justice Warren said) That the Insolvency service should not be used as a method of debt collection for disputed debts... !!!!

[rory32]

Very well done Elenathoin

Excuse my ignorance but what is the difference between indemnity and standard basis?

If the standard basis applies, the court will resolve any doubt which it may have as to whether the costs were or reasonable and proportionate in favour of the paying party (the party that lost). Where the indemnity basis applies, that doubt is resolved in favour of the receiving party (the party that won).

 

Where indemnity costs are ordered there is some implicit expression of disapproval by the court of the way in which the litigation has been conducted.

[Elenathion]

Thanks for the replies everyone. I used the same paragraph Monx and my understanding was the same as yours. I was disappointed at what he was saying but I could see what he meant and why he came to that conclusion. At the end of the day I still got costs so it's a kick in the teeth for all DCAs that keep trying this.

 

Of course I'll help others, I check on here daily to see how I can help =O)