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    • Hermes lost parcel.. Read more at https://www.consumeractiongroup.co.uk/topic/422615-hermes-lost-parcel/
      • 49 replies
    • Oven repair. https://www.consumeractiongroup.co.uk/topic/427690-oven-repair/&do=findComment&comment=5073391
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    • I came across this discussion recently and just wanted to give my experience of A Shade Greener that may help others regarding their boiler finance agreement.
       
      We had a 10yr  finance contract for a boiler fitted July 2015.
       
      After a summer of discontent with ASG I discovered that if you have paid HALF the agreement or more you can legally return the boiler to them at no cost to yourself. I've just returned mine the feeling is liberating.
       
      It all started mid summer during lockdown when they refused to service our boiler because we didn't have a loft ladder or flooring installed despite the fact AS installed the boiler. and had previosuly serviced it without issue for 4yrs. After consulting with an independent installer I was informed that if this was the case then ASG had breached building regulations,  this was duly reported to Gas Safe to investigate and even then ASG refused to accept blame and repeatedly said it was my problem. Anyway Gas Safe found them in breach of building regs and a compromise was reached.
       
      A month later and ASG attended to service our boiler but in the process left the boiler unusuable as it kept losing pressure not to mention they had damaged the filling loop in the process which they said was my responsibilty not theres and would charge me to repair, so generous of them! Soon after reporting the fault I got a letter stating it was time we arranged a powerflush on our heating system which they make you do after 5 years even though there's nothing in the contract that states this. Coincidence?
       
      After a few heated exchanges with ASG (pardon the pun) I decided to pull the plug and cancel our agreement.
       
      The boiler was removed and replaced by a reputable installer,  and the old boiler was returned to ASG thus ending our contract with them. What's mad is I saved in excess of £1000 in the long run and got a new boiler with a brand new 12yr warranty. 
       
      You only have to look at TrustPilot to get an idea of what this company is like.
       
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    • Dazza a few months ago I discovered a good friend of mine who had ten debts with cards and catalogues which he was slavishly paying off at detriment to his own family quality of life, and I mean hardship, not just absence of second holidays or flat screen TV's.
       
      I wrote to all his creditors asking for supporting documents and not one could provide any material that would allow them to enforce the debt.
       
      As a result he stopped paying and they have been unable to do anything, one even admitted it was unenforceable.
       
      If circumstances have got to the point where you are finding it unmanageable you must ask yourself why you feel the need to pay.  I guarantee you that these companies have built bad debt into their business model and no one over there is losing any sleep over your debt to them!  They will see you as a victim and cash cow and they will be reluctant to discuss final offers, only ways to keep you paying with threats of court action or seizing your assets if you have any.
       
      They are not your friends and you owe them no loyalty or moral duty, that must remain only for yourself and your family.
       
      If it was me I would send them all a CCA request.   I would bet that not one will provide the correct response and you can quite legally stop paying them until such time as they do provide a response.   Even when they do you should check back here as they mostly send dodgy photo copies or generic rubbish that has no connection with your supposed debt.
       
      The money you are paying them should, as far as you are able, be put to a savings account for yourself and as a means of paying of one of these fleecers should they ever manage to get to to the point of a successful court judgement.  After six years they will not be able to start court action and that money will then become yours.
       
      They will of course pursue you for the funds and pass your file around various departments of their business and out to third parties.
       
      Your response is that you should treat it as a hobby.  I have numerous files of correspondence each faithfully organised showing the various letters from different DCA;s , solicitors etc with a mix of threats, inducements and offers.   It is like my stamp collection and I show it to anyone who is interested!
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I though people might like to learn of the succesful outcome of my one and only CCA case. Short version as short as I can make it is as follows:

 

A enters into HP agreement for a car with ABC Finance Co. Bolted on is PPI insurance. Things go fine for six months or so until A ceases to work. A calls on the PPI policy, making token payments to ABC in the meantime, only to be told the policy is unsuitable for a self-employed person. At this ABC write to A advising the matter of the mis-selling of the PPI policy should be taken up with the dealer, its nothing to do with them but that A should stop making instalment payments on the PPI policy. Unfortunately, the dealership has been bought out so the question of the mis-selling is taken up directly with ABC, who A holds as responsible (A little knowing at this stage that section 75 Consumer Credit Act 1974 had just been invoked).

 

ABC don't take too kindly to accusations of this kind and turn on A owing to the fact that there were arrears in instalments. A get's a letter terminating the agreement, a demand for the return of the car and for payment of the sums outstanding under the agreement. ABC then sue for recovery of the car and all sums owing, including future instalments due under the agremeent. At which A comes to see me.

 

A never received a default notice and this fact along with the PPI shortcomings are pleaded in Defence. Still ABC won't budge nor discuss the position. The case comes to the return of goods hearing where the Judge is critical of ABC's conduct post issue of the proceedings, awards the costs of that hearing against them and directs upon my application that a copy of the DN to be relied upon is to be furnished in accordance with CPR 31.14.

 

The DN once provided is regarded by me as effective in all but one salient feature. ABC had included arrears of the PPI instalments notwithstanding that some months earlier they had given notice to A to cease making payments of the PPI instalments. ABC are advised of the meaning and effect of section 87 and 88 of the Act and the decision in Woodchester v Swayne. Notwithstanding, ABC refute the notion the DN was ineffective, alternatively that if it was ineffective, it was ineffective to terminate the agreement also, therefore enabling them to serve a second DN.

 

Serve a second DN they did, swiftly followed by a notice of termination and after that, an application to amend the Particulars of Claim so as to substitute the second DN as the DN relied upon in place of the former DN.

 

There then follows more posturing and gnashing of teeth. I quote Durkin v DSG as a modern authority for the proposition A may recover substantial damages for damage to credit without proof of actual pecuniary loss. I batter ABC with the hopelessness of their prospects and that their opportunities to make any recovery of any description has been lost for all time.

 

With this, negotiations begin to incrementally measure up to the bar, are more in earnest and demonstrate a reluctant acceptance on ABC's part that the claim may not be on so sound a footing after all.

 

So to the result. At the doors of the court, the following deal is achieved:

 

[1] ABC will write off its money claim worth £X

[2] ABC will transfer title to the car to A, worth £Y

[3] ABC will recall and/or permanently delete all adverse credit data relating to A

[4] ABC will pay A costs of the case worth £Z

 

ABC depart the case with nothing but a bill from their lawyers. A leaves with the benefit of £X + £Y + £Z equating to the very best part of £30,000.00, and a smile from ear to ear.

 

I do so love dodgy DNs. Hope you do too.

 

x20

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I've had a good look through this now. Some questions ...

 

Notwithstanding, ABC refute the notion the DN was ineffective, alternatively that if it was ineffective, it was ineffective to terminate the agreement also, therefore enabling them to serve a second DN.

 

Serve a second DN they did, swiftly followed by a notice of termination and after that, an application to amend the Particulars of Claim so as to substitute the second DN as the DN relied upon in place of the former DN.

As a layman I don't understand why their contention isn't valid. Can you oblige?

Also, I presume that they need the permission of the court to amend the POC.

 

There then follows more posturing and gnashing of teeth. I quote Durkin v DSG as a modern authority for the proposition A may recover substantial damages for damage to credit without proof of actual pecuniary loss. I batter ABC with the hopelessness of their prospects and that their opportunities to make any recovery of any description has been lost for all time.

Where was A's credit damaged? Presumably the issue of a default notice was also notified the credit reference agencies.

 

Sorry if I seem a bit dense but your familiarity with the case has, I think, led to you omitting some bits that lay people such as myself need so as to be able to make proper sense of it.

I really do appreciate all those 'thank you' emails - I'm glad I've been able to help. Apologies if I haven't acknowledged all of them.

You can also ding my gong if you prefer. :)

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X20,

 

I think this is a salutary tale of how knowing your topic properly can make the difference between winning and losing the battle. I often wonder about the bush lawyers on CAG who leap in with advice which I personally feel is dubious - and which sometimes fails to achieve the desired result.

 

In your example you have convinced the claimant's solicitors that you are well on top of the legalities and that they cannot make a winnable case. An amateur (like myself I have to admit) might with some research determine all the legalities of the matter but would certainly not convince the opposition that you were in any way an expert and that you regarded your defence as automatically won.

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I really do appreciate all those 'thank you' emails - I'm glad I've been able to help. Apologies if I haven't acknowledged all of them.

You can also ding my gong if you prefer. :)

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Palomino,

The contention advanced by ABC's lawyers was that if the DN was ineffective, the termination which ABC subsequently brought about in reliance upon that ineffective DN, was itself ineffective. In support, ABC said that since the law did not permit a creditor to terminate an agreement unless there had been serivce upon a debtor of an effective DN, by extension therefore, rather than having been terminated, the agreement endured.

 

The law in support of this proposition was Consumer Credit Act 1974 section 87(1)(a) which says:

 

(1) Service of a notice on the debtor or hirer in accordance with section 88 (a “default notice ”) is necessary before the creditor or owner can become entitled, by reason of any breach by the debtor or hirer of a regulated agreement (a) to terminate the agreement

 

ABC went on to say that owing to the agreement enduring, ABC were therefore at liberty to serve a second DN.

 

At first blush, that looks quite a convincing argument. The Act itself forbids the creditor the right to terminate save in certain circumstances. So if the required circumstances were not present, how could the law regard the agreement as having terminated?

 

[1] Termination of a Contract and General Principles

A good place to start would be to dispel the myth that the law will not tolerate contract breaking. On the contrary whilst not actively ncouraging it, the law will tolerate it. The courts will rarely impose upon one party an obligation to perform under a contract against its will, to do what it failed to do or redo what it tried and failed to do. Instead, what the law will do is on the one hand restrain the contract breaker from procuring the benefits it would have enjoyed had it fulfilled its contractual obligations and on the other, enable the injured party to recover damages flowing from the breach.

 

In Golden Strait Corporation v Nippon Yusen Kubishka Kaisha [2007], Lord Bingham said:

 

'The repudiation of a contract by one party ("the repudiator"), if accepted by the other ("the injured party"), brings the contract to an end and releases both parties from their primary obligations under the contract. The injured party is thereupon entitled to recover damages against the repudiator to compensate him for such financial loss as the repudiator's breach has caused him to suffer. This is elementary law.

 

The damages recoverable by the injured party are such sum as will put him in the same financial position as if the contract had been performed.'

 

What's more, the law will not merrily award whatever loss the injured party says he suffered. The court will require the injured party to prove his loss and further, will expect the injured party to take steps to mitigate the loss.

 

'An injured party such as the owners may not, generally speaking, recover damages against a repudiator such as the charterers for loss which he could reasonably have avoided by taking reasonable commercial steps to mitigate his loss.' [Lord Bingham in Golden Strait Corporation.]

 

Further still, in assessing damages the law will not even award what the parties may at formation of the agreement have agreed should be payable as liquidated damages in the event of breach. The court will not permit the recovery of liquidated damages unless the damages represent a fair pre-estimate of what loss might flow from the breach. If the liquidated damages are shown to be excessive and unrepresentative of the sactual loss suffered the law will readily declare the liquidated damages as a penalty and unenforceable.

 

In short, not only does the law tolerate contract breaking, but also, it will not tolerate the injured party taking advantage of the wrongdoer. The law does not pounce on the contract breaker to teach him a lesson. The court only awards the innocent party what damages truly flow from the breach. That admits of the possibility that a contract breaker can get away with it. If the injured party is unable to show resulting loss, the injured party may get nothing.

 

'One must look at the contract as a whole, and if it is clear that the innocent party has lost nothing, he should recover no more than nominal damages for the loss of his right to have the whole contract completed.' [Edmund Davies LJ in 'The Mihalis Angelos' (1971)]

 

[2] Termination in Non-Conformity with section 87.

The contention I advance is that an ineffective DN does not prohibit the creditor from terminating the agreement. Termination after service of an effective default notice is lawful termination, but as we have seen, a party may still terminate an agreement and be in the wrong for doing so. The law operates on a wrongful termination to offer to the injured party the choice of accepting the termination or to hold the contract breaker to his promise.

 

In the world of consumer credit, I contend a termination of the agreement by a creditor in terms whereby he announced he would no longer permit the debtor time to repay the credit, was a creditor in repudiatory breach of the agreement, unless in leading up to termination, the creditor complied with the requirements of the Act in circumstances where the debtor was in first breach of the agreement.

 

Further, and it is worth remembering, the Act is an Act for the purpose of consumer protection. The purpose of the Act is not to preserve the rights of creditors in contracts and to protect them from misadventure where for example, they terminated an agreement where it subsequently transpired the termination had not been in their interests. If that were so, the Act would have been an Act for the better protection of financiers.

 

In a proper case, the law will come to the aid of the vulnerable to protect them from the consequences of their contracts (for example the unsound in mind, children, those under duress or undue influence). To suggest financiers fell into that bracket and the Consumer Credit Act

operated to protect them and not the consumer, was absurd. The civil law does not come to rescue the misadentures of the sain and the savvy.

 

The clue to the position of the creditor on termination is in the use of the word 'entitled' in section 87(1). 'Entitled' connotes a right or a benefit. The Act therefore confers rights, conditional upon the provisions of section 87(1) being fuilfilled. Fail to fulfill the condition and the entitlements do not become available.

 

In the case of a contract entered into by a person under duress and who then breaks the contract the law will come to that person's aid by recognising that person's plea that the contract was made under duress. If that person seeks a declaration of the court that the contract was made under duress the court wil readily declare the contract void.

 

If the Act had intended that a creditor's termination in circumstances where section 87(1) had not been fulfilled by the creditor and was to be of no effect, the Act would have declared that termination void. It doesn't. The termination is voidable at the option of the debtor.

 

[3] The Debtor's Point of View

Third, let us look at the position from the ordinary man as debtor's point of view in a consumer credit situation.

 

The DN is defective for failing to conform to the prescribed terms, or gives misleading information or at worse is plain nonsense so that the debtor does not know precisely what he has to do in order to comply with it and is consequently disadvantaged. Should the law disregard the fact that the creditor put the debtor at a disadvantage and thereby at risk the creditor might lawfully terminate the agreement?

 

'This statute was plainly enacted to protect consumers, most of whom are likely to be individuals. When contracting with a large financial organisation they are at a disadvantage. The contract is likely to be in standard form and relatively complex with a number of detailed provisions. If the hirer is said to have broken its terms, the hirer needs to know precisely what he or she is said to have done wrong and what he or she needs to do to put matters right. The lender has the ability and the resources to give that information with precision. If he does not do so accurately then he cannot take what Mr Gruffyd conveniently referred to as "the next step". [per Kennedy LJ in Woodchester v Swayne [1998]]

 

Moving on, if the debtor receives a notice from the creditor in which the creditor expressly states the contract is terminated, what is the debtor supposed to think? Would the law regard him as likely to think the creditor had terminated the contract or would the law regard him as thinking it had not terminated because strictly speaking, the creditor had served a default notice which was not in accordance with prescribed terms?

 

Or where perhaps the creditor did not expresly terminate but sent the bully boys over to demand the keys to the car. What was the debtor to think then? Would the debtor think the creditor had terminated?

 

It seems to me on the basis of the passages below, the courts will be ready to hold a creditor to his words and actions.

 

"... a person who signs a document, and parts with it so that it may come into other hands, has a responsibility, that of the normal man of prudence, to take care what he signs, which if neglected, prevents him from denying his liability under the document according to its tenor".

[per Lord Wilberforce in Gallie v Lee (1971)]

 

'.. a man cannot escape from the consequences, as regards innocent third parties, of signing a document if, being a man of ordinary education and competence, he chooses to sign it without informing himself of its purport and effect..'

[per Scott LJ in Norwich & Peterborough Building Society v Steed (1992)]

 

In short, the creditor is bound by his deed. All that is required is for the debtor to accept the creditor's termination. He can write saying 'thank you I accept you termination' or he can conduct himself in a way in keeping with that termination. Not paying the instalments would be in keeping with an acceptance of the termination.

 

[4] The fiction of the Second DN and the Enduring Obligation

The service of any second default notice, at a time when the contract is terminated, owing to the wording of the DN in its prescribed form, would perpetuate the fiction that the contract endured. The same can be said owing to the provisions of section 89 of the Act.

 

The form of words in the DN incorporate text in order to meet the intention of section 89 of the Act which provides:

 

'If before the date specified for that purpose in the default notice the debtor or hirer takes the action specified under section 88(1)(b) or © the breach shall be treated as not having occurred.'

 

In other words, in serving the second DN, the creditor would be suggesting:

 

[a] an obligation had persisted post termination by which the debtor was bound to make instalment payments (ie post-termination 'arrears'), and

that if payment of those 'arrears' was made, an obligation to make future instalment payments would endure.

 

The obligations at [a] and are obligations enduring during the currency of the agreement. Besides maintaining the fiction of the enduring agremeent as I say, it seems to me any second DN would be bound to be defective for over-stating the sums due. The creditor can not state as an amount due for 'arrears' of instalments that which he said in consequence of his termination was no longer due and payable by instalments. If the creditor sought to use a form of DN which made sense by getting round the fact the agreement had been terminated, the DN would not be in prescribed form.

 

The only way in which a second DN would be of value to the creditor would be where the contract had been re-instated. If the debtor has accepted the termination, re-instatement requires the consent of the debtor.

 

The net result of [1] to [4] is the agreement is terminated for all time. The creditor's remedy is now limited by section 87(1). All that is left for the creditor to recover is the sum truly in arrear at the date of the default notice.

 

Damage to Credit

A man's credit is damaged when it is impugned. He learns it is damaged when he seeks credit to fund a transaction and is turned away or when his creditors seek to call in debts. The effect can be simple embarrasment to being totally destabilising. A learned his credit was impugned when he was warned by his bankers. The damaging effect of the adverse reporting could have been a lot worse.

 

I had deliberately tried to keep my first post as simple and straight forward as I could. I hope this expanded version showing the way strands of law can intertwine to build a case is of assistance.

 

x20

Edited by surfaceagentx20
hey ... my 1000th post!
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Many other Threads will now benefit from this. The message will soon ripple out throughout CAG!

 

This has also been said on another forum ...

 

Any failure on the part of the creditor to serve a Default Notice can be rectified by discontinuing the proceedings, serving a Default Notice and re-issuing a claim;

 

The failure to serve a Default Notice does not create an irredeemably bar to enforcment.

 

The creditor can simply re-issue a proper DN and it is valid.

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The statement of the law referred to by tifo is that advanced by angry cat and which first appeared in this thread at post no13025. It was soon doubted by car2403.

 

In my view the statement fails to stand up to scrutiny and as it is, is unsupported by legal authority of any kind. It ignores the basic principle that parties to contracts can break them with the only consequence being that they will be unable to profit further and be required to meet loss caused by doing so.

 

Discontinuing proceedings begun in reliance upon a defective DN might not necessarily be the right thing to do from the creditors point of view. He would be giving up the arrears aspect in any claim. He would be better to only discontinue the remainder. If he were to wholly discontinue and sue a second time, that aspect of the second action which represented arrears stated on the first DN would very likely constitute re-litigation in which event CPR 38.7 kicks in.

 

In my view the creditor's prospects on discontinuing in order to serve a second DN and bring a second action based upon the second DN would be poor. In the second proceedings the Defendant would be entitled to plead that it was the service of the first DN which lead to termination and the first action and deny the truth of the fact that the agreement had endured or that the creditor terminated following non-compliance with the second DN (the fiction of the enduring agreement). The debtor may also plead that termination of the agreement prior to the service of the second DN amounted to a repudiatory breach by the creditor which repudiatory breach the debtor had accepted and in accordance therewith, had ceased making payments.

 

Further, it would be surprising if the creditor did not seek to set out in his second DN, all those instalments 'in arrear' down to the time of service of the second DN. Such a statement of sums in arrear would, in my opinion, render that second DN ineffective. The creditor can not state in a DN there are sums 'in arrear' where those sums are in truth not representatative of arrears. They would be unrepresentative of arrears where earlier the creditor had claimed a right in the first action, owing to termination (and verified by a statement of truth) to have them paid 'at once'. Were I ever in such a situation I would certainly plead, amongst all the other defences, that the second DN was ineffective for this reason alone.

 

Indeed, that the creditor might supposedly serve a second DN, which itself might be defective, begs the question how many times can a creditor serve a DN, terminate the agreement, re-instate the agreement (as if!) and then terminate it again? Presumably on the basis of angry cat's understanding, the moment the debtor pleaded the second DN was defective, the creditor would be at liberty to discontinue and serve a third DN, terminate and issue third proceedings. And so the sequence might go on ad infinitum.

 

Were such an arrangement the law, the creditor would be in a win-win situation and he might be as careless with his DNs as he liked in the sure-fire knowledge the law would come and rescue him. The whole basis for supposing a creditor may serve a second DN post-termination is to suppose the Consumer Credit Act 1974 or at least the Default Notice provisions of the Act have the protection of the creditor at their root, to the point where termination following service of the ineffective DN is void. This as we all know is errant nonsense.

 

As I said some place else, the Act does not declare a termination in breach of compliance with section 87 as void. Neither does the Act avail to the creditor an oportunity to plead 'non est factum' when shown its demand for early payment or other written statement of position based upon its termination of the agreement. Rather than being void, the termination is voidable at the option of the debtor and if the debtor decides to accept the termination, the party's over. That's my opinion at any rate and I would fall off my chair if a Judge with a clear understanding of the Act declared otherwise.

 

One last point worth stating is that a party on whom a Notice of Discontinuance is served may now object to the action discontinuing under CPR 38.4.

 

x20

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That's my opinion at any rate and I would fall off my chair if a Judge with a clear understanding of the Act declared otherwise.

While I do agree with you, most judges IMO do not have a clear understanding of the Act so the agrument has to be presented very clearly to them.

 

Most judges would appear to have a very poor understanding of consumer law and will only rule on the arguments presented (even then they would appear to often give the pursuer more latitude than the defender).

 

They often appear to see the consumer in such circumstances as dodging their responsibilities and the creditor simply enforcing them which is why it needs to be very much laid out on the proverbial silver platter for them in very simple terms.

HAVE YOU BEEN TREATED UNFAIRLY BY CREDITORS OR DCA's?

 

YOU CAN NOW COMPLAIN TO THE OFT ABOUT THEIR CONDUCT UNDER THE CONSUMER PROTECTION FROM UNFAIR TRADING REGULATIONS 2008.

 

 

 

Complaint to the OFT about DCA's threatening legally action on statute barred accounts

 

BEWARE OF CLAIMS MANAGEMENT COMPANIES OFFERING TO WRITE OFF YOUR DEBTS.

 

 

Please note opinions given by rory32 are offered informally as a lay-person in good faith based on personal experience. For legal advice, you must always consult a registered and insured lawyer.

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Rory,

I entirely agree with you on the capacity of lower tier Judges to ably deal with such cases. A witness statement and/or skeleton argument filed in advance of any hearing on the topic would be very sensible as it would direct the Judge to the relevant legal authorities and bring him or her up to speed before the hearing got going.

 

x20

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  • 7 months later...

This thread is now closed, further discussion is taking place in the following thread...

 

http://www.consumeractiongroup.co.uk/forum/general-debt-issues/208663-tale-dodgy-dn-further.html

 

 

Please join in. :)

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