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Hutchinson 3g default dispute

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I have a disagreement with 3G which is heading towards court and need some help on how to win it.

 

I got a 3g dongle - and at the same time persuaded to have a 3g phone, neither worked in my home so I complained several times, eventually returned the goods to the shop and cancelled the agreement. Actually, I left my lap top wires in the shop on the day I returned the stuff having taken the laptop in to demonstrate my difficulty with the product.

 

3g sent one more bill on each account, one for £32 and one for £35 closed the accounts and put a default on my credit file.

 

I tried to resolve the matter with them, but they just kept saying someone would call me back and of course no-one ever did.

 

I issued a stop processing data order

 

They then got their directors office to contact me, he said the shop remembered me (I'm hard to forget!) but that they had no record of my returning the goods so wanted their money. They refused to discuss anything else any further, but sent a letter saying they had tried to contact me on a number I had never owned - to which I tried to contact them and we went back to the "someone will return your call"

 

I eventually issued county court proceedings for £200 (my additional lending costs due to the two defaults) and removal of the defaults both because the product was not fit for purpose and because (as they are soooo fond of saying) its not a credit agreement, therefore, in my opinion, its not really a default as regards a credit file.

 

They responded with a defence and counter claim for £121 made up of a cancellation fee for one account and amount outstanding on the other - I'll get to the defence in a minute

 

I contacted them for without prejudice negotiations:

their first offer, I withdraw my claim they withdraw thiers

my offer, they remove the defaults and I will pay them the full £121 that isnt even owed

their second offer, I pay them the £121 they mark my credit file satisfied (which they make sound like they'll do that as a favour and ignore the fact that it gets done anyway!) and forgo the cancellation fee (which remember is what the £121 was made up of so if I pay it, they arent forgoing it are they!) and I withdraw my action.

 

so their without prejudice offer is actually asking for more than their counter claim and offers nothing for my side - surprisingly, I declined!

 

So the first three issues I want to get clarified here are:

 

1 Since without prejudice discussions are to encourage attempts at reconcilliation, doesnt their insulting offer of 'I pay more than they actually claimed and get nothing in my favour' go against the intention of such offers and therefore is there anyway that I can break the without prejudice to point out how they have made no attempts (required in CPR) to reach settlement before court?

 

2 If its not a credit agreement how can it be a default?

 

3 the not fit for purpose argument, I have seen, somewhere on here - a case of Khoparia or something like that which is precedence for such an action where telecommunications signals dont work, anyone know where I can find it or if there is a better judgement to rely on to win this argument?

 

OK so on to the case:

 

Particulars

The Claimant signed a civil contract with the Defendant in July 2008 in which it was agreed that the disclosure of personal data in relation to the contract would extend only to such times as to the conclusion of the contract

At no time did the Claimant grant permission either expressly or implied for the Defendant to arbitrarily extend that permission to store, process or disclose any personal data beyond the cessation of the contract.

It is the Claimants contention that the Defendants perceived right to arbitrarily choose to extend the length of that contract without the Claimants knowledge and agreement would be unlawful and unenforceable under the terms of the unfair terms in contracts regulations (1999)

The Defendant has failed to provide the Claimant with any evidence to prove such terms in perpetuity. It is therefore the Claimants contention that the Defendant is in breach both of the contract itself and of the Data Protection Act 1998 by the Defendants continued disclosure of personal sensitive information.

The Claimant has also served the Defendant with a “Stop Order” under the Data Protection Act 1998 and the Defendant has failed to comply with this order.

The Defendant has further expressed the above information to credit reference agencies as a default on the account.

It is the Claimants case that the contract was ended because the equipment did not operate properly and the Defendant could not resolve this problem. Therefore the information that the Defendant has passed illegally to third parties is a further breach of the Data Protection Act in that it is inaccurate information.

The Claimant wishes to claim the sum of £200 to cover the expenses already incurred in phone calls and personal visits to attempt to resolve this matter amicably and for the inconvenience and hurt feelings caused by the Defendants continued refusal to accept their responsibilities under the Data Protection Act 1998.

Further it is the Claimants contention that the Defendant has entered the information with the Credit Reference Agencies as a Default as defined by the Consumer Credit Act, whereas, the Claimant does not have and has ever had a credit agreement with the defendant which would fall under the remit of the Consumer Credit Act.

The Claimant asks that the court order the Defendant to remove such Default information forthwith from any Credit Reference Agency which it has shared the information with and pay £200 compensation to cover the expenses that the Claimant has incurred in attempting to resolve this information and for the damage that has resulted to the Claimants creditworthiness as a result of the entry of this inaccurate information. Further the Claimant asks the court to order that the Defendant complies with the Claimants stop order under the Data Protection Act 1998 forthwith.

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their defence

1 They are a mobile telecoms operator

2 Pending proper particuarlisation of the claime the defendant is not in a p position to particuarlise its defence,. The defendant reserves the right to amend its defence in light of further particuarlisation or evidence of the losses claimed. The defendant fails to see how the claimant reaches the sum of £200

3 the defendant pleadts to the document entitled particulars only. The claim form contains no statement of truth and therefore does not satify CPR 22.1(a) the court is requested to consider where the attached letter statisfies CPR part 16.4. The lack of a coherent and particuarlised makes it difficult for the defendant to set out their defence in accordance with part 16.5 CPR

4 for the avoidance of doubt the claim is denied in its entirety.

 

Background

5 On or around 23 June 08 the claimant entered into a contract with the defendant for the provision of mobile telephone network services, for a minimum term of 6 month ending on 22 December 2008 (contract 1)

6 On or around 23 June 2008 the claimant entered into a contract iwth the defendant for the provision of broadband internet services, for a minimum term of 18 months ending on December 22 2009, (contract 2)

7 These contracts will be referred to collectively as the contracts

8 Paragraph 1 is admitted save as to the date the contract was entered into, paragraphs 5 and 6 are repeated

9 Paragrph 2 is denied the defendant will say that the contracts were never terminated by the claimant pursuant to s10.1 (b) of the terms for 3 services section of the contract, a cutsomer can end the contract during the minimum term by giving notice to cancel to the defendant at least 30 days before the date the customer wants the agreement to end. However, the coustomer must pay all charges plus any cancellation fee. Cancellation of a direct debit insturction and failing to make alternative arrangements for payment of balances accruing on the account does not constitute cancellation. Accordingly the defendant will rely on s13.6(a) (i) and (ii) of the terms for 3 service section of the contract to thier full effect regarding the disclosure of information to credit reference agencies.

10 Paragraph 3 is denied and the defendant repeats paragraph 9 the defendant did not extend the contract the contract continued as the cliamant did not effect the cancellation in line with the defendants terms and conditions.

11 Paragraph 4 is denied and the defendant repeats paragraph 5

12 As to paragraph 5 it is admitted that the claimant has served a stop order upon the defendant It is however denied that the stop order was valid as the contracts were still active and the defendant was still entitled to pass information relating to the contracts to third parties. The defendant is therefore under no obligation to comply with the stop order

13 Paragraph 6 is admitted

14 Paragraph 7 is denied and paragraph 9 is repeated regarding the termination of the contract. It is neither admitted nor denied that the equipment did not operate properly and the defendant puts the claimant to strict proof of the same. The defendant will aver that the claimant did not contact the defendants customer service team to run through diagnostics and thereby allow the defendant the opportunity to assess the equipment for any problems. It is therefor denied that the defendant could not resolve the problem as the claimant did not provide the defendant with an opportunity to assess the equipment. It is further denied that any information that the defendant has passed to third parties is illegal or inaccurate or a breach of the data protection act as alleged or at all.

15 Paragrph 8 is denied pending particuarlisations and evidence of the losses claimed.

16 Paragrpah 9 is admitted

17 Paragraph 10 is denied as the claimant did not comply with the defendants cancellation procedure the contract continued and ias no payment were made on the contract the account entere into collections resulting in the defendant its servants or agents periodically seeking to recover from the claimant monies outstanding on the account. Pursuant to S13.6 (a) (iv) of the terms for 3 services section of the contract the defendant was entitled to do so.

18 Paragraph 11 is denied and paragraph 10 is repeated

19 Paragraph 12 is denied and paragraph 9 is repeated

20 As to paragraph 13 it is admitted that pursuant to s13.6 (a)(i) and (ii) of the terms for 3 services section of the contract, the defendant has provided information relating to the contract to credit reference agencies. The defendant denies the rest of the paragraph 13 and repeats paragraph 9 and 14

21 Paragrpah 14 is denied pending further particuarlisation of the losses claimed

22 Paragraph 15 is admitted and paragraph 12 is repeated

23 As to anything pleaded in the claim form and not specifically pleaded to above it is denied by the defendant in the premises , the defendant denies the claim makd by the claimant in the manner alleged or at all.

24 In the circumstances it is denied that the claimant is entitled to the amount claimed or at all.

25 If contrary to this defence the defendant is found liable to the claimant it will seek to reduce the claimants claim by setting off the sum counterclaimed below

Counter claim

Paragraph 1 - 22 are repeated. It was an express term of the contracts as detailed at Clause 6.13 of the terms for 3 services section of the contract that the claimant would pay the defendant for all of the charges resulting from her use of the service.

27 In breach of the contracts the claimant has failed to pay balances outstanding on her accounts. The claimant is indebted to the defendant in the amount of £67.50 in respect of the outstanding balances comprising:

 

Contract 1

 

27.1 £15.00 invoiced on 24 September 2008

27.2 £20.00 invoiced on 24 October 2008

 

Contract 2

 

27.3 £7.50 invoiced on 24 September 2008

27.4 £12.50 Invoiced on 24 October 2008

27.5 £12.50 Invoiced on 24 November 2008

 

28 As the claimant has not complied with s10.1 of trhe terms for 3 services section of the contract to cancel the contracts and contract 2 is still within the minimum term, the claimant is liable to the defendant for the sum of a cancellation charge payable on early cancellation of the contract 2. The early cancellation fee referred to above is a lump sum payable upon early cancellation of contracts. That such a fee is payable is clearly set out in clause 10.1(b) of the contract. The termination fee applicable to contract 2 is £53.80

29 The cliamant is therefore indebted to the defendant in the amount of £121.30 and this amount is counter claimed by the defendant.

 

Statement of truth.

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So thats the case so far,

 

I have witnesses that I returned the equipment, I caused a huge row doing so and I left my laptop wires behind. when I called the shop about that they told me not to go in because of the fuss I had caused and to send someone to pick up the wires on my behalf. I sent my son.

 

They clearly accepted that the contracts were ended because they didnt continue to accrue charges

 

they have consistently failed to speak to me about any difficulties

 

I think these companies can and do get around CCA rules with the "its not a credit agreement" but equally the other side of that coin is they cant then use CCA type defaults in their cases

 

They have - erm extracted the micheal - as far as attempts to resolve the matter with no prejudice discussions go

 

They said they wont consider removing the defaults at any cost (which is my primary target here) because 3g never have removed defaults because that would prejudice them in future cases - I think thats important though, coz I know they have from cases on here, they say that they categorically havent but that any agreement they make would include confidentiality clauses - so I'm looking for people on here who have had defaults removed and who would be witnesses if necessary.

 

OK so I think thats everything... any ideas what to start with next guys?

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Too much info.

 

Sorry, there's no network called '3G' which of the UK 3G networks are you complaining about?

 

Also your contract has nothing to do with the CCA, and by extension there is no CCA Default. You gave permission for your financial dealings to be reported to a CRA, and this is what happened. Your account is showing as being 'in default', which is perfectly usual if you don't pay the money they say us owed.

 

The contract is only cancelled if you get a letter stating so, not billing you is not a valid confirmation. As for defaqult removal - this is possible if you can identify that their entry is in error, or they miscalculated your bill. If you pay what is owed, the amount is shown as having been paid, but is not removed, as it is a statmeent of fact.

 

Since you agreed to the disclosre, you are in a very weak position to claim you've been hard done to when it all goes wrong.

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You know what, I've had this discussion with you before, a couple of times actually, and whilst meaning to cause you the minimum of offence, I dont really see anything useful in having it again - nothing useful for me I mean.

 

I am noticing that you seem to be particuarly sensitive about Hutchinson 3g and always argue their position in a manner which leads me to believe that you take these cases particuarly personally.

 

Your opinions were useful before, coz it made me check the legalities more carefully, but having done that, you're wrong, your opinions while mildly interesting are mostly ill informed and really, I'm looking for useful comments on this matter. I'd really appreciate it if they didnt come from you.

 

Oh yes, and if you work for Hutchinson and plan to use this to aid their case, at least admit it. OK?

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I think a bugbear with Buzby is 3g is a technology used by all mobile suppliers, three (3) is a network. Complaining about "3g" coverage then gets sketchy... are you worried about accessing the three (3) network or are you worried about getting broadband speeds on your mobile device?

 

If you read the Customer Credit Act you will see that it only comes in to play on the sale of money, not on mobile contracts. Part of the T & C of the mobile contract is that they get you to agree for them to contact credit reference agencies, and while the "default" from a mobile company harms just the same as a "Default" from a CCA regulated agreement, you agree to this when you sign up to the mobile contract. To stay within the remits of the Data Protection Act all they have to do is make sure that the information shown is accurate, and shows how your mobile account was managed. If this is not so, write to their compliance people and talk to the CRA's and get them to dispute this aswell.

 

Write to 3 at

Data Protection and Privacy Officer,

Hutchison 3G UK Limited,

Star House,

20 Grenfell Road,

Maidenhead,

Berks SL6 1EH

 

Or email

 

Data Protection Officer :-

 

dpa.officer@three.co.uk

 

 

 

And for the CRA's

 

Callcredit Limited

One Park Lane

Leeds

West Yorkshire

LS3 1EP

t. 0113 244 1555

f. 0113 234 0050

 

 

Equifax Credit File Advice Centre

P.O. Box 1140

Bradford

BD1 5US

 

Experian

Landmark House

Experian Way

NG2 Business Park

Nottingham, NG80 1ZZ


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You know what, I've had this discussion with you before, a couple of times actually, and whilst meaning to cause you the minimum of offence, I dont really see anything useful in having it again - nothing useful for me I mean.

 

No offence taken, as I'm sure you'll appreciate my position - if you were told once, and din;t learn the chances of any subsequent debate from anyone anywhere doing you any good will be equally limited.

 

This begs the question, since - as it appears - you are asking the same question again, what do you expect? A different answer and one more attune to your liking? You comments regarding the CCA are nonsensical and are an established fact, trying to twist the circumstances to create controversy where there is none is wasteing time from the real issues.

 

As to Hutchison 3G, I am no more sensite to them than any other real mobile network (as opposted to 'fake' virtual networks like Lebara, Tesco and Virgin that simply rebrand services from another supplier. For the sake of accuracy, there is little point complaining about '3G' when this technology is supplied from a multitude of carriers - you may know what you mean, but I certainly don't, and if you cannot be accurate, no not expect an accurate response. No, I don't work for them, but with 30 years in the industry, I probably know more about them than you do.

 

Still, since it appears my input isn't appreciated, I'll not waste trying to point out your ongoing errors, as you'll find wasting money is a better teacher.

 

However,

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No offence taken, as I'm sure you'll appreciate my position - if you were told once, and din;t learn the chances of any subsequent debate from anyone anywhere doing you any good will be equally limited.

 

This begs the question, since - as it appears - you are asking the same question again, what do you expect? A different answer and one more attune to your liking? You comments regarding the CCA are nonsensical and are an established fact, trying to twist the circumstances to create controversy where there is none is wasteing time from the real issues.

 

As to Hutchison 3G, I am no more sensite to them than any other real mobile network (as opposted to 'fake' virtual networks like Lebara, Tesco and Virgin that simply rebrand services from another supplier. For the sake of accuracy, there is little point complaining about '3G' when this technology is supplied from a multitude of carriers - you may know what you mean, but I certainly don't, and if you cannot be accurate, no not expect an accurate response. No, I don't work for them, but with 30 years in the industry, I probably know more about them than you do.

 

Still, since it appears my input isn't appreciated, I'll not waste trying to point out your ongoing errors, as you'll find wasting money is a better teacher.

 

However,

 

I'll appreciaqte you not wasting anymore of your time on this. Ta

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I think a bugbear with Buzby is 3g is a technology used by all mobile suppliers, three (3) is a network. Complaining about "3g" coverage then gets sketchy... are you worried about accessing the three (3) network or are you worried about getting broadband speeds on your mobile device?

 

If you read the Customer Credit Act you will see that it only comes in to play on the sale of money, not on mobile contracts. Part of the T & C of the mobile contract is that they get you to agree for them to contact credit reference agencies, and while the "default" from a mobile company harms just the same as a "Default" from a CCA regulated agreement, you agree to this when you sign up to the mobile contract. To stay within the remits of the Data Protection Act all they have to do is make sure that the information shown is accurate, and shows how your mobile account was managed. If this is not so, write to their compliance people and talk to the CRA's and get them to dispute this aswell.

 

Write to 3 at

Data Protection and Privacy Officer,

Hutchison 3G UK Limited,

Star House,

20 Grenfell Road,

Maidenhead,

Berks SL6 1EH

 

Or email

 

Data Protection Officer :-

 

dpa.officer@three.co.uk

 

 

 

And for the CRA's

 

Callcredit Limited

One Park Lane

Leeds

West Yorkshire

LS3 1EP

t. 0113 244 1555

f. 0113 234 0050

 

 

Equifax Credit File Advice Centre

P.O. Box 1140

Bradford

BD1 5US

 

Experian

Landmark House

Experian Way

NG2 Business Park

Nottingham, NG80 1ZZ

 

 

OK the company is called Hutchinson 3g and I am (and actually they are too in most of their correspondence) shortening that to "3g services" - thats a red herring we're talking about the network coverage for the equipment supplied by the company - on their network which in this case was 3.

 

As for the Consumer Credit Act, it doesnt apply, BUT there is case law on the use of "defaults" under that act and if youre not under that act, you cant use them in the same way - (I think it someone v British gas??) so I think this isnt a default - anyone seen anything else on this subject?

 

So the REAL issue in this case is the sharing of information. Now I understand that the contract had a term to share information, (but an additional point is I had crossed that term out before signing, the assistant didnt notice it and accepted the amended contract) even so, the term of the contract only lasts for as long as the contract lasts, it doesnt say "and for 6 years afterwards" or for that matter "for 6 days afterwards" so the question becomes when did the contract end?

 

I argue that the contract ended when the equipment failed to work as it was meant to do and when Hutchinson 3g (full name for clarity) failed to resolve that problem.

 

my two real points of interest here are

 

1: the without prejudice rules are there to allow REAL attempts at negotiation in order to avoid court action, so that a GENUINE effort at resolution cant be used as an addmition of liability.

 

Hutchinson absolutely didnt follow the spirit of this, in fact their attempt at "amicable" solution was to ask me for more than they'd put in their claim in the first place without any attempt at movement to accomodate me.

 

Therefore, my OPINION is that this has allowed them to dishonestly claim that genuine without prejudice discussions took place and failed.

 

what I want to know is that in light of that is there anyway that I can reveal the nature of that offer? I think probably not, but I figure its at least worth asking the question.

 

2: The other point is the 'not fit for purpose' nature of the equipment - I have got some case law for this but I know there is a more up to date Judgement, I think its called Khoparah - or something like that and I was wondering if anyone looking at this would have any ideas of the case.

 

the final thing I'm looking for (an extra) is anyone else who has successfully had a Hutchinson 3g default removed - I need details and preferably someone who would be a witness to that. In their case they say that they do not and never have ever removed a default as to do so would jeapordise future similar cases.

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I'd say the strongest part of your argument is that you crossed out the specific term relating to them passing on your information to credit reference agencies, however I still think you will have a battle on your hands.

 

I'd say that your complaint will go something like this :-

1st Contact the ICO https://forms.ico.gov.uk/enquiry.aspx

 

2nd if you have a copy of your contract including the relevant bits crossed out, explain to the CRA's and get them to remove the details. (if not, maybe a SAR for this? Send that to the 3 address I posted before)

 

3rd You need to complain to 3, point out all the facts (including the fact that they agreed to the modified contract by providing service)

 

If none of that has worked, follow it with small claims action.

 

None of that is guaranteed to work. I believe this case is gonna be interesting reading for you (even though this was a CCA regulated agreement and yours isn't) RICHARD DURKIN v. DGS RETAIL LIMITED+HFC BANK PLC, 26 March 2008, Sheriff J K Tierney


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OK the company is called Hutchinson 3g and I am (and actually they are too in most of their correspondence) shortening that to "3g services" - thats a red herring we're talking about the network coverage for the equipment supplied by the company - on their network which in this case was 3..

 

I'm sure you'll not mind me pointing out you still haven't got the name of the company correct.

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I'm sure you'll not mind me pointing out you still haven't got the name of the company correct.

 

Oh Buzby please just go tell it to the company, its hardly an earth shattering element in the case. I really think that you were right, you really shouldnt waste any more valuable time on inputting in my case, I'm sure there are others that would appreciate you much more.

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I'd say the strongest part of your argument is that you crossed out the specific term relating to them passing on your information to credit reference agencies, however I still think you will have a battle on your hands.

 

I'd say that your complaint will go something like this :-

1st Contact the ICO https://forms.ico.gov.uk/enquiry.aspx

 

2nd if you have a copy of your contract including the relevant bits crossed out, explain to the CRA's and get them to remove the details. (if not, maybe a SAR for this? Send that to the 3 address I posted before)

 

3rd You need to complain to 3, point out all the facts (including the fact that they agreed to the modified contract by providing service)

 

If none of that has worked, follow it with small claims action.

 

None of that is guaranteed to work. I believe this case is gonna be interesting reading for you (even though this was a CCA regulated agreement and yours isn't) RICHARD DURKIN v. DGS RETAIL LIMITED+HFC BANK PLC, 26 March 2008, Sheriff J K Tierney

 

I'm abit ahead of you on this, already been through all of this Hutchinson 3g not at all interested and County Court papers now issued (see above) I'm essentially arguing

 

- one that their failure to provide the service was breach of contract and that led (after much effort to resolve it on my part) to my recinding the contract AND THE TERMS WITHIN IT

 

two that the contract was in any case in dispute - so could not be defaulted pending resolution of that dispute - which we havent reached yet

 

three that their actions regarding the lack of service and the placing of incorrect defaults caused me loss.

 

I know its not going to be an easy win, but I believe its do-able, especially since I have just discovered that their "without prejudice" negotiations COULD be overturned and produced as evidence that they made no efforts to reach resolution before court - still finishing checking that out but have found a possibly relevant judgement in Unilever plc v the proctor and gamble co [2001] 1 All ER 783

 

I'm also planning to witness summons their staff member and I have my own witnesses

 

I'm already using Durkin, but I was aware that there is a more up to date and relevant English Judgement which is the Khoparah one I'm looking for - I have a court date for October 15th but I need to start getting my bundle together - it may not be straight forward but I'll give them everything I've got.

 

Still looking for helpful input though, my problem with Buzby is a separate issue completely

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I take it you have a copy of the original contract with the relevent term crossed out then? I think that will be your bombshell.


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I take it you have a copy of the original contract with the relevent term crossed out then? I think that will be your bombshell.

 

Yes I do, but I disagree about its importance really, I'll use it obviously, but my argument hinges on when the contract ended, I claim breach of contract thats what I want to concentrate on most strongly, which is why I need that case (and any other similar ones anyone may know about)

 

I argue that at the termination of the contract the term was also terminated, there is nothing in the contract saying it survives the contract, so no contract no term no right to process.

 

Also the recinding of the contract due to the breach means that there is no "default" so that information is also incorrect.

 

It also now looks like I can overturn the without prejudice priviledge to show that they have made no efforts to reach resolution, which the courts take a dim view of - point scoring? abit, but if it helps it helps and I'm preparing to witness summons their staff member about what happened at the shop that day.

 

I made an offer to them during the without prejudice discussions that I would pay the full amount that they wanted even though I didnt owe it if they would just remove the default and we could then agree to disagree and go our separate ways - they declined it so I'm left having to fight it in court and I intend to win.

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Since the defendants have acknowledged the claim and submitted a defence with no reference to the name issue,then thats not going to be a problem.

The lack of a statement of truth is the one which needs to be sorted.

 

Insofar as the data protection issues go,then that can really only be established once it can be shown beyond any doubt that the course of events followed the pattern you say.

Why did you not ask for a signed receipt for the returned items ?

 

The issues you refer to under the CCA (or issues that are not CCA inclusive) could be more complex ones-but the you seem to have done some homework even if you cant at this stage show something definitive to support it-you will have to be more prepared than just saying you "think" there was a case with British Gas.

This £200 is also questionable and you will need to substantiate it further at some point in particular separating those amounts which were a costs you incurred to you before you made the claim aside from those you have incurred in bringing it.

 

Once you address those points that favour the defendant (the points they raise in their defence) maybe they will look at settling.I imagine they wont be in too much of a hurry at the moment.

The claim is ok for SCT,and perhaps you should be thinking of draft disclosures for allocation stage.

Personally I think there will in all likelyhood be a case management hearing early on for some directions.

 

Keep us posted

Again we see an organisation which in Marcs words "Would sooner cut off their own legs than remove a default entry"....flatly refusing to consider it in pre action discussions.If the Court decides that you need to amend your POCS then you could refer to your efforts to reach an ammicable settlement,and state that the defendants refused to consider,you dont have to go into specifics,but it tells the Court that you did not litigate lightly and only as a last resort.

 

Its unlikely that the Court will allow the use of priviledged negotiations that attempted resolution to be used in any evidence.

I would be very suprised if it did.

Edited by MARTIN3030
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Have a happy and prosperous 2013 by avoiiding Payday loans. If you are sent a private message directing you for advice or support with your issues to another website,this is your choice.Before you decide,consider the users here who have already offered help and support.

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Since the defendants have acknowledged the claim and submitted a defence with no reference to the name issue,then thats not going to be a problem.

The lack of a statement of truth is the one which needs to be sorted.

 

Insofar as the data protection issues go,then that can really only be established once it can be shown beyond any doubt that the course of events followed the pattern you say.

Why did you not ask for a signed receipt for the returned items ?

 

The issues you refer to under the CCA (or issues that are not CCA inclusive) could be more complex ones-but the you seem to have done some homework even if you cant at this stage show something definitive to support it-you will have to be more prepared than just saying you "think" there was a case with British Gas.

This £200 is also questionable and you will need to substantiate it further at some point in particular separating those amounts which were a costs you incurred to you before you made the claim aside from those you have incurred in bringing it.

 

Once you address those points that favour the defendant (the points they raise in their defence) maybe they will look at settling.I imagine they wont be in too much of a hurry at the moment.

The claim is ok for SCT,and perhaps you should be thinking of draft disclosures for allocation stage.

Personally I think there will in all likelyhood be a case management hearing early on for some directions.

 

Keep us posted

Again we see an organisation which in Marcs words "Would sooner cut off their own legs than remove a default entry"....flatly refusing to consider it in pre action discussions.If the Court decides that you need to amend your POCS then you could refer to your efforts to reach an ammicable settlement,and state that the defendants refused to consider,you dont have to go into specifics,but it tells the Court that you did not litigate lightly and only as a last resort.

 

Its unlikely that the Court will allow the use of priviledged negotiations that attempted resolution to be used in any evidence.

I would be very suprised if it did.

 

 

the company name thing really isnt a live issue, they are called Hutchinson 3g UK Ltd both they and I have when speaking to each other or to other people shortened that for brevity to either Hutchinson or Hutchinson 3g - nobody has suggested that there is any fault in this, we all know who we are talking about and they shorten it just as much as I do.

 

Anyway, I found your post really helpful, thanks and would welcome your input as the case progresses.

 

I know that I will need to put in new POC's and intend to do so, but first I want the case all lined up, I know I have seen references to these cases but I dont have access to butterworths so cant go looking them up, I'd appreciate anyone who could supply me with the correct references for these or other similar cases coz I want those issues included in the case obviously.

 

I agree that the data protection issues are reliant on proving the course of events, when I took the goods back to the shop I had already made earlier visits that hadnt resolved anything, they didnt even try and told me that if I couldnt get a signal at home I would just have to come into town to use the equipment. It is fair to say that relations were breaking down and on the actual day, discussions were very heated, which led to me leaving the stuff (and my laptop wires) I then called to say I needed my wires back and they said they didnt want me in the shop AS I WAS NO LONGER A CUSTOMER and to send someone else to get the wires. My son went to get the wires, they kept the equipment.

 

The british gas case or any case backing up that CCA defaults and normal "defaults" are not the same thing and shouldnt be reported as if they are is soooooooooooooooooooooo important - I need to find it, any ideas?

 

The £200 I can substantiate both in terms of visits back to the shop, phone calls and the requirement to get higher cost loan due to the so called defaults on the file - but in truth I'm not even bothered about the money, I can justify it, but I'd happily drop it anyway coz the important thing for me is 6 years of default on my otherwise clean credit file.

 

I'm probably being dim but what is SCT? the case is set for 15th October if settlement isnt reached by mediation first - so far they dont seem to have opted for the court mediation service

 

I'd appreciate any advice you could give me regarding draft disclosures for allocation

 

I also didnt think there would be any chance of overturning the without prejudice priviledge but found that case which indicates it can be done, I may make the application abit further in - before the final bundle for the hearing goes in.

 

I do need some help with this, I'm new to the County Court System and I feel I can win this, with a bit of help, so your comments are very much appreciated.

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Ok points taken.

I think its fair to say that in 99% of cases,if you have the zest drive and determination to see it through,and also can put things on the table to support your case,then that is the best start anyone can have to go on.

The defendants legal teams will know that.

 

SCT is small claims track.

I would advise against mediation in this case since the nature of the issues here are not straightforward,and there is bias.

I must have missed the orders somewhere-you say that there is a listed hearing for October ? Can you tell where this hearing was decided ? if you can-post up here the wording.

 

If you are going to have to amend your POCS then it will provide opps to introduce any further arguements.

 

Without knowing what the October hearing is for its difficult to advise further-but it sounds like it will be a case management hearing.


Have a happy and prosperous 2013 by avoiiding Payday loans. If you are sent a private message directing you for advice or support with your issues to another website,this is your choice.Before you decide,consider the users here who have already offered help and support.

Advice offered by Martin3030 is not supported by any legal training or qualification.Members are advised to use the services of fully insured legal professionals when needed.

 

 

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The orders that I got say:

On Thursday 6th August 2009

District Judge XXXXX sitting at xxxxx county Court considered the papers in the case and ordered that:

1 This cliam is allocated to the small claims track and the parties are referred to part 27 of the Civil Procedure rules and the Practice Direction of that part for guidance on how the hearing of the claim will be conducted.

2 The claim will be heard at XXXXX County Court on a date and time which is set out on a notice attached to this Order, or which will be sent to you later. The Court reserves the right to change the place and/or time of the hearing.

3 From the available papers it is estimated that the hearing will take one hour. If a party is aware of a reason why this estimate might be substantially inaccurate that party must notify the court immediately

4 The parties are encouraged to always try to settle the case by negotiation. The parties are encouraged to contact each other with a view to trying to settle the case or narrow the issues. The court must be informed immediately if the case is settled

5 The following paragraphs set out the Judges directions for preparation of the hearing. Faillure to comply with the directions may result in the case having to be adjourned and the party at fault having to pay costs.

The following directions apply to this claim

6 Each party must deliver to every other party and to the court office copies of all documents on which that party intends to rely at the hearing no later than fourteen days before the hearing.

7 The original documents must be bought to the hearing

8 The Judge may refuse to consider a document or take it into account if a copy of it has not been sent to all parties as required by this order.

9 The documents to be sent to the parties and the court must include the statements of all witnesses (including the parties themselves

10 Witness Statements must:

a) Start with the name of the case and the claim number

b) State the full name and address of the witness

c) Set out the witness’s evidence clearly in numbered paragraphs on numbered pages

d) End with this paragraph: ‘I believe the facts stated in this witness statement are true, (or words to that effect; and

e) Be signed by the witness and dated.

11 The Judge may refuse to hear the evidence or consider any statement of any witness whose statement has not been prepared and copied to all parties and the court in accordance with the paragraphs above

12 Neither party may rely on any report from an expert at the hearing unless permission has been granted by the court beforehand. Anyone wishing to rely on an expert must write to the court immediately on receipt of this Order and seek permission, giving an explanation of why the assistance of an expert is necessary

13 Because this order has been made by the court without considering representations from the parties, the parties have the right to apply to have the order set aside varied or stayed. A party wishing to make an application must send or deliver the application to the court (together with any appropriate fee) to arrive within seven days of service of this Order.

The front of the Order says

District Judge XXXXX has considered the statements of case and allocation questionnaires filed and allocated this case to the small claims track

The Judge considers your case is suitable for mediation and you are therefore invited to use the Small Claims Mediation Service. (bla bla info on how the scheme works)

Alternatively if you do not wish to try mediation a hearing has been arranged as follows:

The hearing of the case will take place at 10am on 6th October 2009 at xxxx County Court and should take no longer than 1 hour. A hearing fee of £25 is payable by 15 September 2009 by the claimant unless you make an application for a fee concession. Failure to pay the fee will result in the hearing being removed from the list.

11 August 2009

I have two witnesses that were with me both when I went to the shop and was told I'd have to only use my equipment when I came into town and when I returned the goods - and of course my son (one of these witnesses) also went to pick up the laptop wires because the shop had banned me after I returned the goods. they actually said "as you are no longer a customer" which I think is important.

 

I would also like to witness summons the member of staff, which I know is a bit dodgy to do but I doubt she would lie to the court under oath. I think she would be really upset being hauled to court actually, (but then so am I) - my worry is that such an action would make them dig in their heels rather than settle, I'd much rather they settled - and of course it could possibly be seen as a move out of spite because I know it would cause her distress.

 

I have to redo the particulars - I typed them up on a separate sheet when I first issued the case so there is no statement of truth on that sheet, its a technical point but the defendants have (quite properly) raised the issue in their defence so I must correct it. I dont mind this really, coz I do want to throw in the additional details and arguments including putting in the case referrences for the cases that support my case. thats my most urgent need - especially the British gas one.

 

You think dont go for the mediation? I was wondering, because the previous attempts at resolution were ludicrous, and I have a feeling that they wont sign up for it anyway, but then theres a part of me that thinks wont it look better if I did and they didnt?? If they didnt it also would stregnthen my application to have the without prejudice priviledge revoked (I'm a woman and not used to civil cases - therefore I'm abit indecisive - what can I say??!) Given that its actually on the order to mediate do you still think dont?

 

Also I need to find out what part 27 of the civil procedure rules means - I havent looked it up yet.

Edited by MARTIN3030
removed identifiers

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OK understood so plenty of time to prepare.

I have removed identity of Judge and Court for obv reasons.

Will look at this over next few days.I must admit-I have not seen such orders issued for a long time-they are very thorough so looks like the Judge gave lots of thought here.

Feel free to give me shout via red triangle report or my contact details in thread here.

 

To anyone subscribed or looking-equally feel free to post thoughts advice or comments.


Have a happy and prosperous 2013 by avoiiding Payday loans. If you are sent a private message directing you for advice or support with your issues to another website,this is your choice.Before you decide,consider the users here who have already offered help and support.

Advice offered by Martin3030 is not supported by any legal training or qualification.Members are advised to use the services of fully insured legal professionals when needed.

 

 

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OK so I had a VERY busy month at work and now not so much time left, anyone got any input that may help me?

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so what happened with this? did you win? I have a very similar case

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