OH v Cap 1 & Rob Way *** WIN ***

[car2403]

Hi car, the court order states that judge considers case suitable for mediation and there is a mediation form to be returned to mediation service.

 

I had read a post about costs and mediation, but don't know where.

 

Okey dokey, so they are recommending mediation, but not ordering it? I can't see how this links in with costs, but if we don't know where you've read it then we can probably park that.

 

You can try mediation, but aren't being forced in to it.

[cymruambyth]

There's a few ways you can go now. You can either;

 

* keep this to yourself, until you win, then pull this out of your pocket to show just how unreasonable they have been. If you're going to do this, I think a Without Prejudice letter is in order, pointing out the flaws in their claim, highlighting that you have 'grounds' to believe that they have acted unreasonably in bringing the claim and that you will bring all this to the attention of the Court when they are considering the question of costs when you go on and win/

 

By doing this will I not be giving them a run down of my defence?

Will this not prejudice my case?

Do I not mention the CO letter?

 

Sorrry if these are obvious, trying to think which always seems to raise more questions than answers!

[foolishgirl]

By doing this will I not be giving them a run down of my defence?

 

You don't have to give them chapter & verse - just refer to the defence you have submitted already eg. for the reasons stated in my defence of xxxx, I consider that you have no grounds for making this claim

 

Will this not prejudice my case?

 

How? You are sending it 'without prejudice'. It will not be shown to the court until after the outcome of the hearing when costs are to be decided.

 

Do I not mention the CO letter?

 

Of course. Isn't that why you are sending the letter?

You just need to mention that unless there is a CCJ in place they have no legal rights to apply for a CO & also draw their attention to the OFT Guidance. Then point out that you consider their behaviour in (a) bringing a unsustainable claim & (b) following up with an application for a CO is unreasonable & vexatious & that they may wish to discontinue. If they do not respond positively to your letter you will show it to the court when costs are to be decided.

 

If you are unsure about the wording, post it up here for comment before sending.

[car2403]

You'll need to tell them what's in your defence sometime, so sooner or later doesn't really matter as it won't change things

 

What you're doing by doing it this way is taking the game to them - hopefully they will capitulate.

[cymruambyth]

Thank you for the replies; having been 'bitten' by LTSB who had obviously read CAG I have become a little neurotic and am losing what common sense I may have!

[babybear39]

Many OCs/DCAs frequent here so, nah, you aren't being whatsitthinglbob lol...

[cymruambyth]

Hi everyone

Does a letter before action i have include any specific information?

Is this sufficient

'our client advises that you have ignored many requests for payment; they are now considering Court Action against you, unless you pay etc within 10 days.

Do not ignore, court action may increase amount owed plus court fees and costs.'?

This is the only reference to court action and was posted 16 days before court action began.

Thank you

Edited August 21, 2010 by cymruambyth

[citizenB]

Was it headed as a Letter before Action. I think it is usually the solicitor acting on behalf of the Creditor/claimant that sends them out.. not a DCA ?

 

TBH, DCAs, usually threaten Court action as a matter of course so how would you differentiate a genuine LBA from one of the usual template letters they send out.

[RobinWayRobinme]

I would say no, not a LBA. I described something very similar in one of my witness statements as the first time the claimant intimated court proceedings (picked up wording from some case law that I can't think of which one at mo but let me know if it becomes relevant). Sure you are aware that Pre-Action conduct is found here. http://www.justice.gov.uk/civil/procrules_fin/contents/practice_directions/pd_pre-action_conduct.htm

Hi everyone

Does a letter before action i have include any specific information?

Is this sufficient

'our client advises that you have ignored many requests for payment; they are now considering Court Action against you, unless you pay etc within 10 days.

Do not ignore, court action may increase amount owed plus court fees and costs.'?

This is the only reference to court action and was posted 16 days before court action began.

Thank you

[cymruambyth]

Hi cb

 

It was the solicitors acting for the DCA.

 

robway

I have read the Pre Action protocols and thought that the letter should be more specific, but as you are aware, this lot seem to get away with quite a lot that us LiPs are unable to!!!!!

[cymruambyth]

Thank you to everyone whose help has been invaluable, bute especially foolishgirl who has guided me, educated my and held my hand!

WE WON today, due to the greed of Rob Way who would not accept our 2 offers of a full and final.

The point we won on was missing prescribed terms, assignment and DN were ignored though the DJ agreed that s69 interest was at the court's discretion and should not have been added earlier. I will give loads more information later today in the hope that they may help someone.

[Gallahad]

Congratulations my friend sounds like another win for the good guys and maybe you can afford the other shoe now:whoo:

[the_shadow]

Wow brilliant... I know the other cases didnt go your way so congrats on winning the judge lottery this time and getting the right result.. it'll be a pleasure to mark this as a WIN....

 

S.

[cymruambyth]

That looks good! Thank you

[summerbreeze]

Thank you to everyone whose help has been invaluable, bute especially foolishgirl who has guided me, educated my and held my hand!

 

So pleased to read this news and I agree wholeheartedly that with FG in your corner you CAN win

[underdog13]

Congratulations; delighted for you.

[rev.ian]

Well done

[foolishgirl]

First of all a big CONGRATULATIONS to Cy for today's result but let me just say, shadow, 'cos she's too modest to say so herself

 

congrats on winning the judge lottery this time

 

This was not down to drawing the right straw in the judge lottery, this was a determination by Cy to immerse heself in the CCA & the case law so she understood every point & then she could stand in court & throw any rubbish they flung at her straight back at them with knobs on it.

 

Cy will no doubt tell you the full story in due course but she should not just feel pleased with the result but immensely proud of herself.

 

You have my admiration Cy for triumphing in the face of adversity

 

[wittsend]

congratulations

[babybear39]

:whoo:Congratulations. When's the party

[cymruambyth]

Some bits that I learnt today that may help.

This was my OH's case but I had done all the work and had applied to be his Lay Representative; this was rejected as it only applies to people who are vulnerable; however when the DJ saw how useless OH was she let me present the case.

I had sent a N268 notice to prove but this was not applicable because the court order had not stipulated the production of documents.

 

The secret was that all the prescribed terms were not present. The opposition kept on mentioning Carey, but the DJ had read this and kept mentioning the prescribed terms. Anyone who goes to court needs to know Carey and have marked the relevant sections to both support their argument and counter the opposition.

Take copies of all cases and mark them I had quoted but was able to give copies of the cases to the DJ; this was Small Claims.

I had copies of all the relevant sections of the CCA and associated schedules which I gave the DJ to save her looking them up.

 

When you present your case, have each section as a seperate document, mine flowed nicely, unfortunately the DJ flowed differently from me, so my presentation could have been smoother.

 

I had all the arguments about DNs but Rankine was quoted to counter charges in the DN, 10 days was a mute point (I think because the DJ already knew the agreement wasn't enforceable), finally we differed on how the DN was laid out and the emphasis that was needed.

Finally the NOA, you do not need them for name changes, only company changes. Once again I think my DJ may have pushed this further but didn't need to.

S69 interest, I used the argument it is not applicable to the CCA, however it was countered that as the agreement was terminated it could be applied.

Following my recent failures, my strongest argument was the lack of prescribed terms. If this is applicable know it well and have supporting evidence. Either through ignorance or desperation, Rob Way kept on pointing out different things, you had used the card etc but the DJ kept saying BUT WITHOUT THE PRESCRIBED TERMS this does not count.

Also remember s127(3) applies to all agreements pre 2006, and although the solicitor wanted leave to apply for enforcement she was told this would fail.

I will post statements and letters when I have deleted personal information.

I hope that thi will help someone.

[Hadituptohere]

Well Done Cym, really pleased for you and your other half

 

Hadituptohere

[the_shadow]

First of all a big CONGRATULATIONS to Cy for today's result but let me just say, shadow, 'cos she's too modest to say so herself

 

 

 

This was not down to drawing the right straw in the judge lottery, this was a determination by Cy to immerse heself in the CCA & the case law so she understood every point & then she could stand in court & throw any rubbish they flung at her straight back at them with knobs on it.

 

Cy will no doubt tell you the full story in due course but she should not just feel pleased with the result but immensely proud of herself.

 

You have my admiration Cy for triumphing in the face of adversity

 

 

Fair enuff, I'm more than happy to be corrected

 

S.

[Guest]

well done 'Cy'

thanks for the debrief info.

[caro]

Congratulations. I'm so pleased for you, especially after last time.

 

Did you ask for wasted costs?