MBNA - Let battle commence / **DISCONTINUED**

[Mightyacorn]

I have just contacted the Court, they have NOT received anything from Howard COHEN, so the case goes ahead.

 

I questioned the clerk regarding back log of work, mail, etc., she told me that a Notice of Discontinuance is dealt with urgently, and would be attached to the file.

 

HC letter states "original has been lodged at Court." Yet another lie....

[Mightyacorn]

I now intend to wait till hearing (It's next Wednesday) and see what happens then.

[vjohn82]

Looks like you have it all in hand to be honest. Applying for costs is relatively straightforward; getting them is another matter entirely.

 

I went to a hearing on Monday but the Judge stated he did not have time to read everything that had been submitted. Case adjourned for date as of yet unknown!

 

Kept me waiting for 1 1/2 hours too! Oh well... chalk it up on the costs schedule I suspect.

[citizenB]

I have just contacted the Court, they have NOT received anything from Howard COHEN, so the case goes ahead.

 

I questioned the clerk regarding back log of work, mail, etc., she told me that a Notice of Discontinuance is dealt with urgently, and would be attached to the file.

 

HC letter states "original has been lodged at Court." Yet another lie....

 

Tsk, tsk. In which case you need to report this to the Solicitors Regulatory Authority.

[Gazza112]

Thanks Gaz,

Have you got a link to your thread please.

 

I just wonder if it's the same course of action where struck out as opposed to discontinued?

 

MA

 

 

Mightyacorn here's my link http://www.consumeractiongroup.co.uk/forum/dca-legal-successes/162249-mbna-cca-agreement-help-34.html

 

 

Gaz

[banker_rhymes_with]

Hello Mightyacorn!

 

Thanks for the PM, as I'm a bit busy, the best way I can help on the costs issue is perhaps to dump a couple of past Posts that I made somewhere else (god knows where, for once I remembered to save them to my machine here)!

 

This one deals with Lip Costs and the Case History to support the potentially capped Time Costs v uncapped Disbursement issues:

 

One good tip on Litigant in Person Costs, is to know that the 2/3 Cap only applies to your Time Costs. IOW, the LiP Rate of £9.25 an hour.

 

Thus, when drawing up your Bill of Costs, always split it into two main sections, i.e. Time Costs and then Disbursements.

 

There are no limits on Disbursements, provided they are clearly reasonable and in keeping with the work done.

 

Disbursements are things like Postage, Carrier Costs, Printing, Paper, Ink, Telephone Calls, Car Fuel & Car Running Costs (to get to/from anywhere as part of the work done), Photocopying, Scanning, Accommodation, Travel & Subsistence, i.e. anything where you can substantiate a reasonable Disbursement.

 

Thus, it is quite conceivable that a Litigant in Person's costs could exceed that of a Lawyer, because a Lawyer is not allowed to include routine items like Paper and Ink etc. This is because it is assumed they include that as part of their fees, and have Gofer Staff to do the Menial Tasks for them. By comparison, the Court knows that a Litigant in Person would have to do everything themselves, and those tasks usually have a cost.

 

For example, if you use a Car or Bike to get to Court, then establish the mileage to Court and double it (because you also have to get back). Then find out a reasonable average for the cost of Fuel in your area. Then establish a reasonable Miles per Gallon, say, 30mpg for an average vehicle and, from that you can submit a Fuel Cost. Then add a reasonable running cost per mile for a vehicle, perhaps 10p or even 20p a mile, all is OK provided you can argue it. It could be higher if you factor in Road Tax, Depreciation, Running Costs, work out the annual cost, and divide that by 10,000 Miles average, and it may well work out at 50p a mile. Multiply that by the round trip mileage to Court, and that's the Disbursement for that!

 

IOW, if a Lawyer's fees would've been £1,200 and you claim £1,000 for your Time, then the 2/3 Cap would limit you to £800, that being 2/3 of the £1,200 a Lawyer would charge.

 

However, if you can show £600 in Disbursements, then your total fees would exceed the Lawyers, i.e. £800 allowed on Time Costs, and £600 for Disbursements, makes £1,400 in total, and that could be allowed because you are not getting more than the 2/3 Cap on your time.

 

So, make sure anything that is a Disbursement is removed from your Time Costs, and make sure you do charge for every second of your time at £9.25 an hour...the Court will limit you to 2/3 of a Lawyer's fees, but better that than under-claim and get less than you deserve.

 

Finally, there is Case History to support this:

 

Wulfsohn, R (on the application of) v Legal Service Commission [2002] EWCA Civ 250 (8 February 2002)

 

Also...

 

Mealing-McLeod v The Common Professional Examination Board 2000 All ER D 436.pdf

 

The second one deals with the issue of getting full costs on what would have been a Small Claims Track, where the case never got as far as Allocation stage! I think from a quick glance, that may apply to you, anyway, here's the 2nd Thread Dump:

 

Is there any case law or CPR where cases are multi-track before allocation?

 

I regret I can't point you to where it lives, but it'll be buried in CPR somewhere. Try here:

 

Part 44 GENERAL RULES ABOUT COSTS

 

This bit may help, i.e. 44.11(1):

 

Costs following allocation and re-allocation

44.11

 

(1) Any costs orders made before a claim is allocated will not be affected by allocation.

 

(2) Where -

 

(a) a claim is allocated to a track; and

 

(b) the court subsequently re-allocates that claim to a different track,

 

then unless the court orders otherwise, any special rules about costs applying -

 

(i) to the first track, will apply to the claim up to the date of re-allocation; and

 

(ii) to the second track, will apply from the date of re-allocation.

 

(Part 26 deals with the allocation and re-allocation of claims between tracks)

 

See also the related Practice Directions here:

 

PRACTICE DIRECTION ABOUT COSTS

SUPPLEMENTING PARTS 43 TO 48 OF THE CIVIL PROCEDURE RULES

 

Also, Judge Patricia Pearl mentions this on page 124 of the Fourth Edition of her excellent book...

 

Small Claims Procedure:

A Practical Guide

 

Fourth Edition

 

ISBN 978 1 85811 394 4

 

This is what she says:

 

(2) What happens if there is a hearing on a case which qualifies for the Small Claims track before allocation? (for example the hearing for a summary judgment)

 

The District Judge is not restricted by the no costs rule when deciding how to deal with the costs (rule 44.9 and PD 44 para 5.1(1)) but will be concious of the discretion guidelines (see page 117).

 

CPR Rule 44.9 is below:

 

Costs on the small claims track and fast track

 

44.9

 

(1) Part 27 (small claims) and Part 46 (fast track trial costs) contain special rules about -

 

(a) liability for costs;

 

(b) the amount of costs which the court may award; and

 

© the procedure for assessing costs.

 

(2) Once a claim is allocated to a particular track, those special rules shall apply to the period before, as well as after, allocation except where the court or a practice direction provides otherwise.

 

I can't see a clear match for the "PD 44 Para 5.1(1)" that she mentions, so that could be a typo in the book, or CPR has changed since the book was written. There does not seem to be a Para 5.1(1), just a 5.1 and a 5.11, neither of which have a (1) linked to them!

 

I've had full costs awarded on a Summary Judgment Application that I made before Allocation, i.e. where the issue was otherwise heading for Small Claims Track. Because Track had not actually been Allocated when I won the issue, I received full costs...no question. Judge was quite aware, and I hardly needed to point out this was the case.

 

I hope some of the above is of use.

 

Cheers,

BRW

[Mightyacorn]

Thanks BRW, CB, Gazza, Vj, and anyone else, who has assisted, I will now spend some time preparing for next weeks' hearing. I have known Cohen's to throw paperwork at the Court the day before a hearing, so I wonder what they'll do?

 

I have just checked with the Court again, and been told that Cohen's have actually paid the hearing fee of £150 but submitted no paperwork ???????

[Mydogsawestie]

Hi Mightyacorn when I was in court I got a copy of the skeleton argument from the other side on the actual morning in the post....yet they'd had mine 7 days beforehand...amazing what MBNA's tricksters get up to....learnt since I could have asked for an adjournment on that day, but being a LIP didnt know that..hope this advice assists you ready for your hearing & "absent paperwork" next week. Good luck MDAW

[guzzleguts]

Hi MA

 

If your case has been Discontinued, then you would have to fill out an N252 from the HMCS web site and send it to Cl Finance i would guess via cohen's with a Bill of costs, it is very well explained by x20 in the cost thread that has been posted, if you haven't read it let me know and il give you the link. If you struggle with the N252 or the Bill of costs i could PM or Email you a copy of mine.

 

Thanks for the PM Wish you luck with your costs issue shouldn't be a problem with this lot:D

 

GG

[gezwee]

Hi MA

 

Has the court confirmed if these chancers have filed for discontinuance yet?

 

Gez

[Mightyacorn]

Hi Mightyacorn when I was in court I got a copy of the skeleton argument from the other side on the actual morning in the post....yet they'd had mine 7 days beforehand...amazing what MBNA's tricksters get up to....learnt since I could have asked for an adjournment on that day, but being a LIP didnt know that..hope this advice assists you ready for your hearing & "absent paperwork" next week. Good luck MDAW

 

 

MDAW, Cheers for the support, I've been there before myself, Cohens tried to 'serve' papers on my OH by posting them to her the day before the hearing, and on the Court by faxing them through on th date of the hearing, fortunately we had submitted a 'strike out' letter before the hearing and the Judge was not impressed wth Cohen, so had no hesitation in stiking it out, so I'm well prepared for this one.

Edited February 26, 2010 by Mightyacorn

[Mightyacorn]

Hi MA

 

If your case has been Discontinued, then you would have to fill out an N252 from the HMCS web site and send it to Cl Finance i would guess via cohen's with a Bill of costs, it is very well explained by x20 in the cost thread that has been posted, if you haven't read it let me know and il give you the link. If you struggle with the N252 or the Bill of costs i could PM or Email you a copy of mine.

 

Thanks for the PM Wish you luck with your costs issue shouldn't be a problem with this lot:D

 

GG

 

Thanks GG, I may well take you up on your offer. I have no intention of just accepting that the case will, hopefully, be discontinued or struck out, and leave it at that.

[Mightyacorn]

Hi MA

 

Has the court confirmed if these chancers have filed for discontinuance yet?

 

Gez

 

I am contacting the Court again this morning, in fact I am going in to the Offices to confim where we are up to, if the Court has heard nothing I will be leaving them with a strike out letter.

[Mightyacorn]

Called in at the Court on Friday, confirmed that other than the Court fee (?????) they've had nothing at all from Cohens, so the case goes ahead on Wednesday. Can't understand why they've paid the Court fee as that was due AFTER the required documents were due to be served. I am looking forward to Wednesday now, should be interesting to see what they serve up next.

[Gazza112]

Hi Mightyacorn

 

Good Luck for Wednesday, look forward on your result.

Give Cohens some stick, that's if Cohens turn up at the Courts Doors on Wednesday.

 

Gaz

[citizenB]

MA, I have removed "Discontinued" from your thread title.

 

Best of luck on Wednesday:)

[citizenB]

I trust you will be taking those letters from HC to the court and also advising the Solicitors Regulation Authority ?

[Mightyacorn]

I trust you will be taking those letters from HC to the court and also advising the Solicitors Regulation Authority ?

 

Of course CB, as you know I've already got one complaint with the FOS, over Cohens/SRA so another would be really nice, but let's see what happens on Wednesday, with Cohens there are too many possibilties.

 

Thanks all

[guzzleguts]

Hi MA

 

Im not up to speed with your thread, Have they filed their AQ's, or have they complied with any orders from the court to supply doc's.

 

Cohen's are very poor with any sort of compliance to court orders, i have won in court 3 times against them.

 

Good luck for wednesday but i doubt you need it.

 

GG

[Mightyacorn]

Hi MA

 

Im not up to speed with your thread, Have they filed their AQ's, or have they complied with any orders from the court to supply doc's.

 

Cohen's are very poor with any sort of compliance to court orders, i have won in court 3 times against them.

 

Good luck for wednesday but i doubt you need it.

 

GG

 

No papers at all from Cohens GG, for some strange reason they've paid the Court fees, and sent a Discontinuance just to me and not the Court.....the usual Cohen approach !!!!

[gezwee]

Not being the devious type or anything but.......... I'd be inclined to drop a copy of the discontinuance notice into the court on Monday and advise them that you have been passed the letter in error and could they possibly assist by filing with the claimants particulars

 

Gez

[guzzleguts]

Hi MA

 

Has the court not ordered Cohen's to file and serve documents that they rely on in this case.

 

GG

[Mightyacorn]

Hi MA

 

Has the court not ordered Cohen's to file and serve documents that they rely on in this case.

 

GG

 

The Judge has yes, and ordered the Court fees by Cohen, that's what I can't understand, the date for papers (CCA, DOA, etc.) was the beginning of Feb, the fees by middle of Feb, but Cohens have paid the fees, but not filed or served any papers.......weird (but it is Cohens)

[guzzleguts]

What order was it, an unless order.

 

I dont understand how this case is going ahead if they have not supplied any doc's to you or the court.

 

I think an easy defence on wed, the claimant hasn't complied with the court order, no documents have been furnished, and the claimant has served a notice of discontinuance, upon me, please can i claim wasted costs sir/madam.

 

you might need to put together a bill of costs to take with you to court for the judge and a copy for the other side. (a breakdown of your costs and expenses

[Mightyacorn]

What order was it, an unless order.

Funnily enough no. All it says is unless the fee paid by 17th Feb, case will be struck out. The only order re documents is to be filed by 3rd Feb, but no unless. And then 14 days for me to do amended defence.

I dont understand how this case is going ahead if they have not supplied any doc's to you or the court.

I agree, but I take nothing for granted in County Court

I think an easy defence on wed, the claimant hasn't complied with the court order, no documents have been furnished, and the claimant has served a notice of discontinuance, upon me, please can i claim wasted costs sir/madam.

As above

 

you might need to put together a bill of costs to take with you to court for the judge and a copy for the other side. (a breakdown of your costs and expenses

Already done

 

I do not trust Cohens one little bit, and I have no confidence in our civil court system, so I'll just be prepared for anything on Wednesday.

Edited March 1, 2010 by Mightyacorn