Link Claimform - old GE Money Debt - **STRUCK OUT** reinstated **WON AGAIN + COSTS**

[pt2537]

what about para 19 though?

 

I dont see anything about that

 

now the default charges isnt too much of an argument to be honest anyway but one which can help when thrown in with the rest

[MAGDA]

hi pt, just looked again at the agreement - next to monthly rate of interest on the front it refers to condition 2 overleaf: this states: In the event of FNB's base lending rate increasing or decreasing after this agreement takes effect, the rate of interest at letter D on the front of this agreement (or the rate of interest at that time) may be increased or decreased by 1/12th the monthly equivalent of such change. would this satisfy para 19?

 

The thing is, these t&c are in very small print, and were apparently on the reverse of the agreement, so it is very unlikely that the debtor would actually read them or understand them before signing, I know I certainly wasn't aware of them.

 

Many thanks, Magda

[MAGDA]

one more thing, should the NOA show the amount of the alleged debt?

 

Magda

[MAGDA]

Hi, got the order through today:

 

"upon the court considering the letter dated 14th April 2009 from the claimant,

 

IT IS ORDERED THAT:

 

1: THE ORDER OF 31ST MARCH 2009 IS REVOKED

2: THE MATTER BE RELISTED ON THE CLAINANT'S APPLICATION TO REINSTATE THE CASE.

 

This order has been made without a hearing under the court's management powers in part 3 of the Civil Procedure Rules. You may within 7 days of the service of this order apply to teh court and serve on teh other parties an applicaton that sets out your reasons for objecting to this order. The original application (if any) will be listed for hearing with yoru application unless you ask teh court to vary the order without a hearing."

 

Attached is a Notice staing that the claimant's application to reinstate will take place on xxxxxxxxx 2009.

 

I also contacted the court and asked for a copy of the letter, in addition to the copy letter posted above, with regard to the claimant's application of Oct 2008 asking that the claim be reinstated and also the response of the court to this:

 

This is Link's letter dated Oct 2008:

We write in relation to the above. It would be appreciated if this correspondence might be referred to District Judge in respect of the order of xxx Sept 2008.

 

The court ordered that the claimant file and serve a reply to the defence by 1600hrs xxxxx Sept 2008, indafault of which the claim would be struck out.

 

In compliance with that order the claimant despatched reply to defence to both the court via DX and the defendants via first class post 5th Sept 2008, even if the post was missed and the reply to defence was not despatched until 6th September allowing two days for the service the document would still have reached the court and the Defendants within the specified return date set.

 

It is unjust therefore that the claimant be prejudiced due to the arrears of the court's post room and it would be appreciated therefore if the court would rescind the order of DJ XXXXX dated xxxx September 2008 and list the matter for hearing."

 

the response to this from the court was basically that:

 

"Mail received by both DX and Royal mail is opened and date stamped on teh day of arrival, so even if there is a backlog of work the operative date that matters and which is recorded and taken into account is the date on which it is stamped as having arrived. Your resonse did not reach the court until 11th September 2008, hence it arrived after the deadline which gave rise to the order of xxxx September 2008."

 

A futher letter from the court states:

 

Further to the court's letter of xxxx October 2008, this matter has now been referred to teh District Judge who has stated that the order of xxxx September remains."

 

Interesting, I also received Links response around 11th or 12th (infact I may be able to locate the envelope it arrived in, have to check) so they did not I am sure post it when they say, it is rather a coincidence that both the Court's copy and my own arrived late, given that they were sent by different methods.

 

I consider the above to be very much an application by Link to reinstate, which of course was the opinion given by the Judge in March of this year at their hearing to reinstate.

 

They applied (in letter form rather than paying the fee for N244) and their request was refused. The point of the matter is that the claim was struck out due to non-compliance with the order of the DJ. They are now asking that the claim be reinstated on the basis that it was a court error, but this has been addressed - all post is date stamped. Therefore I see no reason why their claim should be reinstated, or why another hearing with the DJ should be permissible. They were given leave to appeal and should do so if they wish.

 

What do you think of all of this, any suggestions on where to go next?

 

Many thanks,

 

Magda

[I've got no money]

I need to think about that - do they have authority to "revoke" an order...I need to check the CPR.

 

At this point the court has re-instated their application to apply to re-instate the case - so you still get to attend and to argue that it should not be re-instated (but I don't think to be honest that you'll succeed - although you will be entitled to your costs for attending)

[MAGDA]

I need to think about that - do they have authority to "revoke" an order...I need to check the CPR.

 

At this point the court has re-instated their application to apply to re-instate the case - so you still get to attend and to argue that it should not be re-instated (but I don't think to be honest that you'll succeed - although you will be entitled to your costs for attending)

 

Hi IGNM, thanks for the above. There will be a hearing, but it seems wrong that LInk are applying to reinstate based not on the merit of their claim, but on the fact that they claim they were unfairly prejudiced by the court. In actual fact that was not the case, as the court has already confirmed - I think I have managed to locate the envelope the response came in, although will need to double check, and it was stamped 10th September, with a deadline given of the 8th to comply with the order. So they have only themselves to blame that the deadline was missed. The order stated, if you do not serve and file a response by 8th September 2008, the claim will be struck out, and it was.

 

The letter they sent in October did constitute an application IMO and that of the DJ in March, and the 'application' was refused.

 

I really think I should have some right in contesting this whole 'new' hearing thing and the fact the order has been revoked with no good reason.

 

So appreciate the fact that you are taking the trouble to look at this for me,

 

Many thanks,

 

Magda

Edited May 7, 2009 by MAGDA

[MAGDA]

have sent the cpr 31.14 follow up letter, as Link failed to respond to the original letter last year. Still requesting all of the info needed, including deed of assignment - I know nicklea that you were saying the deed and what they allege to be the NOA should tie up, so be interesting to see what their response is this time.... Magda

[MAGDA]

Will have to sort something out soon on this if I am going to object to the current order (within 7 days), so any advice really appreciated,

 

Many thanks, Magda

[I've got no money]

I hadn't forgotten - I've spent some time this afternoon looking - I don't think that there is a lot you can do

 

Basically, as I've said already the correct procedure was to apply on an N244 for relief from sanction under CPR 3.9 When they wrote in that was not an application and therefore the Judge should not have made an order - they should just have been told to do it properly.

 

Therefore the decision, at the oral hearing, to say that there is already a decision - you have to appeal was wrong - two reasons it was based on a flawed order and in any event the first order was made without a hearing and the parties have a right to apply to set it aside.

 

The court, aided and abetted by the other side screwed the procedure up - under CPR 3.10 there is a general power for the court to remedy cock ups

 

PART 3 - THE COURT’S CASE MANAGEMENT POWERS - Ministry of Justice

 

So I don't think that there is anything to be gained by opposing that particular order.

 

Other Caggers may have a different view - any comments gratefully received.

 

As far as the issue of re-instatement is concerned that is covered by CPR 3.9 and again (and I speak from experience as someone who was once struck out because his secretary posted a letter by 2nd class post...) if they did comply within a few days of the order I would expect them to be re-instated.

 

Of course this is only my opinion - you should of course take proper legal advice from a Practising Solicitor

[I've got no money]

The other thing, is your costs - you should make payment of your costs conditional on re-instatement

[MAGDA]

Many thanks IGNM, your opinion is very much appreciated. I'm not so sure that they will have such an easy time reinstating, as from past experience some of the judges at my local court do seem to be quite fair, so I guess the best I can do is to attend the hearing and take it from there. I do intend to oppose any reinstatement strongly as the claimant did fail to respond to the order - the envelope I have shows they posted their response on 10th, although the court had ordered a response by 8th if they did not wish the claim to be struck out. This was the second order to respond to my defence, so they had ample time, and in fact the court was more than generous with the deadlines from Link's point of view. The courts dates of course confirm Link's failure to respond, as we both appear to have received Link's paperwork around the 11th, by different methods. They obviously did not then as they claim post or send the item by DX on the 5th or 6th, as both sets of documentation would not have arrived late - one possibly, but not both.

 

Thanks also for the advice regarding the costs, will certainly bear that in mind.

 

I really appreciate you taking the time and trouble to look into this further, and will let you know how it all goes, fingers crossed!!

 

Many thanks,

 

Magda

Edited May 8, 2009 by MAGDA

[MAGDA]

Oh, Just one other thing IGNM: the courts revoking order stated:

 

"You may within 7 days of the service of this order apply to the court and serve on the other parties an applicaton that sets out your reasons for objecting to this order."

 

If I don't object in some way as stated above, does this imply that I agree with the order and that I therefore do not object to the claim being reinstated because I haven't stated otherwise? Magda

[I've got no money]

Many thanks IGNM, your opinion is very much appreciated. I'm not so sure that they will have such an easy time reinstating, as from past experience some of the judges at my local court do seem to be quite fair, so I guess the best I can do is to attend the hearing and take it from there. I do intend to oppose any reinstatement strongly as the claimant did fail to respond to the order - the envelope I have shows they posted their response on 10th, although the court had ordered a response by 8th if they did not wish the claim to be struck out. This was the second order to respond to my defence, so they had ample time, and in fact the court was more than generous with the deadlines from Link's point of view. The courts dates of course confirm Link's failure to respond, as we both appear to have received Link's paperwork around the 11th, by different methods. They obviously did not then as they claim post or send the item by DX on the 5th or 6th, as both sets of documentation would not have arrived late - one possibly, but not both.

 

Thanks also for the advice regarding the costs, will certainly bear that in mind.

 

I really appreciate you taking the time and trouble to look into this further, and will let you know how it all goes, fingers crossed!!

 

Many thanks,

 

Magda

 

I'm not saying that it'll be easy for them to re-instate the claim - I just think that if they present their case properly they'll succeed.

 

On costs generally - if they do get the case re-instated there is an argument that they should still pay your costs of attending the hearing to re-instate...you're only there because they failed to comply with the order in the first place.

 

Good luck

[I've got no money]

Oh, Just one other thing IGNM: the courts revoking order stated:

 

"You may within 7 days of the service of this order apply to the court and serve on the other parties an applicaton that sets out your reasons for objecting to this order."

 

If I don't object in some way as stated above, does this imply that I agree with the order and that I therefore do not object to the claim being reinstated because I haven't stated otherwise? Magda

 

No - its' a different issue...

 

The order made without a hearing, as I understand it relates to the decision not to hear argument in respect of the application to re-instate and all it does is to direct that the claimants' application for permission to re-instate will be be re-listed.

[MAGDA]

Thanks again IGNM, just have to hope it all goes well on the day, and of course, as always, it depends very much on the particular judge as well doesn't it. Be nice to get it all over and done with as I had four claims submitted against me/us by link within a matter of days, and I have another one I am dealing with at present as well. The hearing isn't too far away now, so will certainly let you know how it goes, and thanks for taking the tme to help. Magda

[MAGDA]

have just noticed on the order that Link do not have to attend the allocation hearing, it is being done by conference call, and the tel no. for this is given, however, we have been ordered to attend. That seems a little bit unfair to me, why don't Link have to attend if we do? it is their claim after all??????

[diamondgirl]

I don't know the reason for that. Where I used to work we did one on the phone. What happened was the mediator spoke to us, then they spoke to the defendant, then they rang us back and so it went on till reaching an agreement.

It might be worth a call to the courts to find out.

DG

 

These calls can last up to 1hr or so (ours at work lasted 1hr 15min

Edited May 10, 2009 by diamondgirl
line added

[MAGDA]

Thanks DG, going to ring the court next week to get a copy of some correspondence, so will ask about this as well. I don't see why the court should say we have to attend, with no choice in the matter, but the claimant can just phone in. It's probably a lot cheaper for Link this way, rather than having to send a solicitor in to court and all the associated costs, but that's just too bad, it's their claim after all - talk about one rule for them and another for us:mad: Magda

[diamondgirl]

Really is one law for them and one for us.

I don't see why they should get away with that think it's time for a rocket to be put under them.

I'm waiting to see what response I get from the plonkers before I put my letter to the judge asking for them to pay my costs. If I get no response from it god help them.

DG:)

[MAGDA]

Yes, well good luck DG, Link deserve all they get!!! Magda

[MAGDA]

Been going through all the paperwork for this claim, and noticed that in the POC Link has stated that the claim is brought based on agreement no.xxxxxxxx dated xxxxxxxxxxxxxx. When I checked, the agreement they sent me has a different date, so they appear to have entered the wrong date on the claim form (either that or the agreement has been reconstructed and is showing the wrong date!) Does this make any difference if they have made this error in the POC? Magda

[diamondgirl]

Is the dates much out?

I suppose if its only a day either side they could claim it to be typing error but its still worth a mention.

Did you ring the courts about the mediation?

DG:)

[MAGDA]

Hi DG, thanks for the reply, had a look at your thread yesterday and really pleased it's all going well for you.

 

Probably as you say worth mentioning about the date being wrong, not sure if it will make a lot of difference or not. Just going to ring the court now, so will let you know what they say, Magda

[MAGDA]

spoke to the court - they don't know why the decision has been made to allow Link to have a conference call, but insist that we attend. He said the judge, for some reason, had made that decision. The person I spoke to said normally all parties would take part by conference call, not just one. He also said that Link are not that far from the court that they couldn't attend, so seems strange. He said I could write in to the court and object, but think we will just go now anyway and see what happens..... Magda

 

DG, Link are also trying to reinstate another of their claims against us at the moment as well (all fun and games at the moment!) http://www.consumeractiongroup.co.uk/forum/legal-issues/189645-outstanding-costs-2.html

 

Already been to court once with this, and the judge refused to reinstate, but here we go again.......

Edited May 11, 2009 by MAGDA

[MAGDA]

one other query I had. When a claim is struck out, I believe the claimant normally has seven days in which to ask for the order to be varied or set aside. Link waited a month before first contacting the court (their letter date xxxx Oct 2008). If their items were genuinely delayed (both by DX and Royal Mail - which I know of course is not the case) then It could be said that you would contact the court as soon as the order striking out was received (in this case September) and explain that you had missed the deadline through no fault of your own, and request the claim be reinstated, but they waited a full month. Doesn't this affect their subsequent application in some way??? Magda