LINK Financial? Check this out...

[pumpytums]

Nice one mate,

sounds like Mr B may well be short of a hot tub this season.

 

I so wish I had put a counter-claim against them money was tight at the time plus I was new to this game.

 

Do you have to pay £300 for the hearing?

 

Pumpytums

[angry cat]

Excellent News!

[emandcole]

Nice one mate,

sounds like Mr B may well be short of a hot tub this season.

 

I so wish I had put a counter-claim against them money was tight at the time plus I was new to this game.

 

Do you have to pay £300 for the hearing?

 

Pumpytums

 

£100. Bit of a stretch for me too at the moment, work is non-existent...thanks to the bankers . Was out running the other day and met up with a few novices so tagged along for a chat.

 

Had one guy state he was having a hard time at work and he soon revealed he worked in banking...have to admit my attitude changed to him pretty quickly, just couldn't help it .

 

Got back to where this group had parked and Mr. Banker opens the door of his 2 year old white Porsche Cayman. Yeah, looks like you're having a really difficult time I thought.

 

When the architectural sector has imploded due to the likes of this lot and you meet one guy who states he's having a hard time who then gets into a car like that it's pretty difficult not to explode. Seriously, these bankers just haven't got a ruddy clue .

 

Hi AC, long time no chat .

 

Yes, seems to be going well so far. More as it happens.

[Seminole]

Well looking at the recruitment market, banking is one of the few areas of the economy that's booming at the moment.

[emandcole]

Paperwork all submitted to the court last week or so along with copies of letters etc, made quite a bundle and totally revised the claim. Having discussed it with the court at an earlier stage I took notr of the statement from the clerk who said 'You're the claimant, you can submit whatever you want'. So I did.

 

Found some of the case law hard to find but included what I had, after all I'm LIP and don't have access to legal libraries so trusting the judge will be up to speed on the claim come hearing day as they've had plenty of time to read the documents submitted pre hearing, the important bits of case law I'm using are included, just not the whole lot with all of the unrelated bits.

 

Will shortly be submitting my costs to Sink and to the court. Semi expecting a letter from Sink to try and get round a court hearing but frankly given their level of incompetence to date I'd be surprised if that happens. One of the key issues I have is the fact that as the assignment was messed up Sink had secured no permission, implied or implicit, to record data with the CRA's against my name.

 

In the case law used injury to credit occurred but critically the offending party at least had permission from the data subject to access and amend that data, they just did it wrongly. Sink therefore have no excuse and cannot argue no damage was caused, they had no business at all meddling with my personal data any more than any of us would have with each others personal data. Their intention was clear, the aim was to cause damage irrespective of having secured permission to fiddle with such data.

 

As of today the hearing is officially 'next month' so looking forward to it very much.

[pumpytums]

Hi mate,

as it's small claims how will costs work? Is it the £300 ish mark.

 

Depending on your result I may we have a crack at them so to speak. As we know they also damaged my CRF for a default that never actually occurred. The OC has stated that no DN was issued, therefore how can a default be registered on my CRF?

 

Pumpytums

[emandcole]

First off as they discontinued my costs are based on defending their original abandoned action, I'm just claimaing for that now as part of the counterclaim along with the costs for the action I've now had to bring due to their negligence/damage. As for £300 not sure what you mean? Can you explain? There isn't a limit as such as long as you can show those costs are legitimate.

 

There is a cap on hours as LIP compared to preperation time a professional would charge but disbursements have no such cap, meaning in theory the disbursements claim by a LIP could exceed that of the professional...if correctly itemised and legitimate of course.

[pumpytums]

First off as they discontinued my costs are based on defending their original abandoned action, I'm just claimaing for that now as part of the counterclaim along with the costs for the action I've now had to bring due to their negligence/damage. As for £300 not sure what you mean? Can you explain? There isn't a limit as such as long as you can show those costs are legitimate.

 

There is a cap on hours as LIP compared to preperation time a professional would charge but disbursements have no such cap, meaning in theory the disbursements claim by a LIP could exceed that of the professional...if correctly itemised and legitimate of course.

 

Hi,

its ok I remember reading in small claims the maximum costs you could get hit for was approx £300

 

Costs on the small claims track

 

27.14

(1)This rule applies to any case which has been allocated to the small claims track unless paragraph (5) applies.

 

(Rules 44.9 and 44.11 make provision in relation to orders for costs made before a claim has been allocated to the small claims track)

 

(2)The court may not order a party to pay a sum to another party in respect of that other party’s costs, fees and expenses, including those relating to an appeal, except –

 

(a)the fixed costs attributable to issuing the claim which –

 

(i)are payable under Part 45; or

 

(ii)would be payable under Part 45 if that Part applied to the claim;

 

(b)in proceedings which included a claim for an injunction or an order for specific performance a sum not exceeding the amount specified in Practice Direction 27 for legal advice and assistance relating to that claim;

 

© any court fees paid by that other party;

 

(d)expenses which a party or witness has reasonably incurred in travelling to and from a hearing or in staying away from home for the purposes of attending a hearing;

 

(e)a sum not exceeding the amount specified in Practice Direction 27 for any loss of earnings or loss of leave by a party or witness due to attending a hearing or to staying away from home for the purposes of attending a hearing;

 

(f)a sum not exceeding the amount specified in Practice Direction 27 for an expert’s fees; and

 

(g)such further costs as the court may assess by the summary procedure and order to be paid by a party who has behaved unreasonably; and

 

(h) the Stage 1 and, where relevant, the Stage 2 fixed costs in rule 45.29 where –

 

(i)the claim was within the scope of the Pre-Action Protocol for Low Value Personal Injury Claims in Road Traffic Accidents (‘the RTA Protocol’);

 

(ii)the claimant reasonably believed that the claim was valued at more than the small claims track limit in accordance with paragraph 4.1(4) of the RTA Protocol; and

 

(iii)the defendant admitted liability under the process set out in the RTA Protocol; but

 

(iv)the defendant did not pay those Stage 1 and, where relevant, Stage 2 fixed costs.

 

(3)A party’s rejection of an offer in settlement will not of itself constitute unreasonable behaviour under paragraph (2)(g) but the court may take it into consideration when it is applying the unreasonableness test.

 

(4)The limits on costs imposed by this rule also apply to any fee or reward for acting on behalf of a party to the proceedings charged by a person exercising a right of audience by virtue of an order under section 11 of the Courts and Legal Services Act 19901 (a lay representative).

 

(5)Where –

 

(a)the financial value of a claim exceeds the limit for the small claims track; but

 

(b)the claim has been allocated to the small claims track in accordance with rule 26.7(3),

 

the small claims track costs provisions will apply unless the parties agree that the fast track costs provisions are to apply.

 

(6)Where the parties agree that the fast track costs provisions are to apply, the claim and any appeal will be treated for the purposes of costs as if it were proceeding on the fast track except that trial costs will be in the discretion of the court and will not exceed the amount set out for the value of claim in rule 46.2 (amount of fast track trial costs).

 

 

I remember in my case the cost of the hearing would be £300, I can only assume that's where the £300 I had in mind came from.

 

With relation to the other matter checked my CRF our friends black mark seems to have magically disappeared. Oddly though the account is shown as settled. So the question is can a OC change a settled account to D, I wonder.

 

The dears are sending me statements again, apparently I still have PPI insurance too. I had a read through their T&C and they even state in those that they have to abide by the law before demanding the full balance. I'm so glad that I accepted their repudiatory breach of agreement shame they ignored my letter.

 

Pumpytums

[citizenB]

Booking my ringside ticket now

[citizenB]

[ATTACH]21436[/ATTACH]

 

[ATTACH]21437[/ATTACH]

 

emandcole, do you have these two docs in respect of costs ?

[emandcole]

[ATTACH]21436[/ATTACH]

 

[ATTACH]21437[/ATTACH]

 

emandcole, do you have these two docs in respect of costs ?

 

Hi CB, yes I do but thanks awfully for the thought

 

Actually using the principles in Wulfsohn to maximise the disbursements claim, what a great case this was! I've not submitted my costs to date but planning to 'go experimental' with it in the grand interests of furthering the corner of the consumer and putting Stink in their place. In an ideal world rotten to the core firms such as Stink would only litigate as a last means when the paperwork is correct and legislation has been followed.

 

At present we all know the court system is used as an illicit sorting device to seperate the weak from the strong and playing the law of averages to secure substantial profit. A 'big' win against Stink on disbursements alone using Wulfsohn as the foundation would go a long way to forcing a re-think of the DCA business model...about time too. Might PM the final costs draft to you and a few others beforehand for your opinion and to keep you up to speed, that way you'll see how it's been maximised with the view of 'getting it out there' if I'm successful!

 

Thanks again!

[emandcole]

Pumpy...planning to use the fact that Stink behaved in a manner amounting to misconduct in order to secure my wasted costs, added to by the fact they discontinued after failing to abide by court directions...therefore the action was without merit and wholly avoidable. Few more bits too but this part of the CPR is useful:

 

Court’s powers in relation to misconduct

 

44.14

 

(1) The court may make an order under this rule where –

(a) a party or his legal representative, in connection with a summary or detailed assessment, fails to comply with a rule, practice direction or court order; or

 

(b) it appears to the court that the conduct of a party or his legal representative, before or during the proceedings which gave rise to the assessment proceedings, was unreasonable or improper.

 

 

(2) Where paragraph (1) applies, the court may –

(a) disallow all or part of the costs which are being assessed; or

 

(b) order the party at fault or his legal representative to pay costs which he has caused any other party to incur.

 

 

(3) Where –

(a) the court makes an order under paragraph (2) against a legally represented party; and

 

(b) the party is not present when the order is made,

 

the party’s solicitor must notify his client in writing of the order no later than 7 days after the solicitor receives notice of the order.

 

I'd say the 'attempt to perverse the course of justice' as upheld by Trading Standards was a fine example of 'misconduct' in reference to their pre hearing conduct as outlined in point 1 b above.

 

I can show their action was essentially vexatious and the additional failure to have executed the assignment process correctly adds further weight to the claim they should never have started litigation, they simply had no right to have done so.

 

I also happen to know for certain that the judges at Northampton are becoming increasingly fed up with companies such as Stink, my judge in particular being openly scathing of their failure to support their litigation efforts with appropriate documentation resulting in wasted time and effort for the court and the defendant.

 

Given that dislike would you want to go into court representing Stink knowing the judge is likely to be very happy to use any reason they can find to award against your client for basically...

 

'being a bunch of @ossers?!'.

Me neither!!!

[batman1956]

This may be of interest

http://www.justice.gov.uk/civil/procrules_fin/contents/practice_directions/pd_part03c.htm

 

[emandcole]

Thanks, will have a look over it

[pumpytums]

Pumpy...planning to use the fact that Stink behaved in a manner amounting to misconduct in order to secure my wasted costs, added to by the fact they discontinued after failing to abide by court directions...therefore the action was without merit and wholly avoidable. Few more bits too but this part of the CPR is useful:

 

Court’s powers in relation to misconduct

 

44.14

 

(1) The court may make an order under this rule where –

(a) a party or his legal representative, in connection with a summary or detailed assessment, fails to comply with a rule, practice direction or court order; or

 

(b) it appears to the court that the conduct of a party or his legal representative, before or during the proceedings which gave rise to the assessment proceedings, was unreasonable or improper.

 

 

(2) Where paragraph (1) applies, the court may –

(a) disallow all or part of the costs which are being assessed; or

 

(b) order the party at fault or his legal representative to pay costs which he has caused any other party to incur.

 

 

(3) Where –

(a) the court makes an order under paragraph (2) against a legally represented party; and

 

(b) the party is not present when the order is made,

 

the party’s solicitor must notify his client in writing of the order no later than 7 days after the solicitor receives notice of the order.

 

I'd say the 'attempt to perverse the course of justice' as upheld by Trading Standards was a fine example of 'misconduct' in reference to their pre hearing conduct as outlined in point 1 b above.

 

I can show their action was essentially vexatious and the additional failure to have executed the assignment process correctly adds further weight to the claim they should never have started litigation, they simply had no right to have done so.

 

I also happen to know for certain that the judges at Northampton are becoming increasingly fed up with companies such as Stink, my judge in particular being openly scathing of their failure to support their litigation efforts with appropriate documentation resulting in wasted time and effort for the court and the defendant.

 

Given that dislike would you want to go into court representing Stink knowing the judge is likely to be very happy to use any reason they can find to award against your client for basically...

 

'being a bunch of @ossers?!'.

Me neither!!!

 

Got you, well lets be honest they have behaved in a very inappropriate manner.

 

If you want a laugh have a read of the post on my Sunk thread Santandur beg belief.

 

http://www.consumeractiongroup.co.uk/forum/showthread.php?236115-Pumpytums-goes-to-Northampton-Help-Please!/page6

 

Cheers

 

Pumpytums

[emandcole]

More news from the front. As you know I had to submit my documents/claim etc a while back and this was all done in time. Presumably the court would have copied this file and forwarded it to Stink so that they could provide a defence.

 

I was also ordered to send copies to Stink and this was sent off, however I ddn't use a recorded service as I've got bored of spending so much on this. Besides, they have ages to respond if they have any problems and they should be aware that I had submitted my counter claim details to the court as presumably they'd have had a copy of the general directions order I had to comply with.

 

Despite this I also sent off my costs schedule just over 2 weeks ago, including the Wulfsohn references in support of the amount claimed. I also included a cover letter asking them to respond if they had any queries about the costs (which they are required to do anyway if they dispute them) and reminding thej that I had complied with the earlier court directions to file and serve my counter claim paperwork and all documentation. This was sent recorded so they can't say they've not had it.

 

Got a letter from the court today advising that:

 

Upon it appearing from the papers that the claimant has failed to file witness statements and/or copy documents as ordered by the court, and of the courts own motion it is ordered that:

 

1 - The claimant shall by (pretty soon) file at court and serve on the defendant statements (including a statement or his own evidence) and copy documents on which he relies and if he fails to do so the claim and any defence to any counterclaim be struck out without further order and the defendant shall be entitled to enter judgment on any counterclaim without further order.

 

2 - This order has been made without a hearing under the courts case management powers etc etc.

 

I rang the court to check the terminology and although I am technically the claimant by way of counterclaim I am listed as the defendant still to avoid confusion. So, I've not heard anything from Stink, no response to my counterclaim and no response to my costs schedule.

 

They've not responded to anything and if they try and say they've not had the paperwork I can produce the cover letter sent with the costs that asked them to get in touch if they had any queries about the earlier paperwork I had also submitted to the court.

 

Surely they would have had copies from the court anyway or doesn't this happen?

 

Looking good anyway but confused as to what they're doing. Perhaps they've resigned themselves to a loss, let's face it they haven't got a leg to stand on and the perversing the course of justice shambles is hardly likely to go down well with the court if it does go to a hearing.

[pumpytums]

Hi mate,

maybe send them a copy (registered of course) out of courtesy just in case they play the 3 wise monkeys.

 

Had an interesting conversation with our mutual friends regarding the big D they still show on my CRF queried this and was told well you are behind with payments so we are allowed to show a default on your CRF. So as I see it Sunk have now shown a erroneous default on my CRF for over a year. In addition The OC has confirmed in writing that any entry relating to the account with reference to Sunk has been removed. So I must therefore assume Sink have done this off their own bat so to speak.

 

"They that sow the wind shall reap the whirlwind"

 

 

Pumpytums

[emandcole]

Sounds like a breach of the data protection act if the OC states all references have been removed. I take it Sink have all of the correct assignment paperwork in place after a faultless default and termination process to justify their 'right' to have placed an entry on your credit file?

 

If they cannot demonstrate consent on top of any lawful assignment they have as much right to add to your file as I do!

[pumpytums]

Indeed,

apparently the OC supplied them with the date that it was defaulted, which is rather bizarre as the OC didn't actually own it then. How odd

 

Surely a company as upstanding as our friends would never alter information to suite their own ends? The mere thought of such an act sends shivers down my spine.

 

 

Pumpytums

[emandcole]

Sink provided a defence the day after it was expected so I didn't bother applying for SJ in line with the directions order as they would have just had it set aside anyway...so we're off to court this week. Their defence is the usual mix of 'No we didn't', 'Yes we did but we can', and the favourite 'The claim is vexatious' whilst providing no opinion on why that should be other than the fact that they don't like being taken to court and exposed for the cheating parasitic wastes of space they are...that's a very fair conclusion given the immense hassle and waste of time they've stolen from me for many many months.

 

One particularly intelligent argument their manager Mr. Thomas presents is that they are not liable for the action of the original creditor (contrary to OFT guidance provided to the court) however despite this claim of being whiter than white with no connection to the claim I've made there is nothing wrong with them interfering with my credit file and sticking a dirty great invalid DN on it. It's entirely contradictory and frankly pathetic.

 

One thing they did alert me to though...thank you Stink...is the CPR rule on costs as they are not payable even though Stink discontinued. I beleive in this scenario I am entitled to recover the basic costs of defending their abandoned claim as that's only fair, you can't have a system that allows the random filing of claims against people with no recourse for the party instigating action.

 

So, a dig through the CPR found that costs are indeed allowed under small claims if the other party has been unreasonable prior to, during or after any action. I've added the section below I've used as they'll have a copy soon enough anyway and it makes no difference at this stage of play. Looking forward to watching the poor sap they instruct to defend get round all of this, I'm hoping their efforts to perverse the course of justice will go down like a lead balloon and that the judge won't be impressed with them from the off.

 

Final note is that as all of their paperowrk was of course useless they haven't a leg to stand on when it comes to arguing about the data they added to the CRA's. They had no more right to interfere with my personal data than the man in the street so any defence they offer is useless. I guess the next time I post on here the case will be over with so I'm hoping I get a decent judge (have to say so far they've been quite switched on) and that Links reputation will precede them having no friends in the court as I know that certain judges are sick to the back teeth of them and how they operate. Excerpt from my argument for costs below:

 

The claimant relies upon CPR 27.14 (2)(g) Costs On The Small Claims Track that states:

 

 

 

‘The court may not order a party to pay a sum to another party in respect of that other party’s costs, fees and expenses, including those relating to an appeal, except –

(g) such costs as the court may assess by the summary procedure and order to be paid by a party who has behaved unreasonably’.

 

 

 

 

20(a) The claimant respectfully submits that any of the following facts amount to unreasonable acts:

 

 

• The defendant has demonstrated no lawful right to have commenced litigation producing no deed of assignment.
  
• The defendant was forced to provide documentation at additional cost to the claimant before Judge McHale after failing to voluntarily produce paperwork such as a default notice despite requests made under the CPR.
  
• The notice of assignment handed to Judge McHale was examined, declared as invalid and rejected.
  
• The default notice handed to Judge McHale was examined, declared as invalid and rejected.
  
• The defendant also failed to supply full or even partially full statement histories preventing the claimant from being able to assess the merits of the original claim.
  
• Such failure to maintain accurate statement history also meant the defendant was entirely incapable of evidencing the amount claimed in the court, they proceeded anyway.
  
• The defendant chose to discontinue after being put to strict proof of their documentation and associated right to commence litigation.
  
• The defendant was reported to Trading Standards and independent review of the complaint was upheld about an attempt to misdirect court paperwork and perverse the course of justice.
  
• These details and findings were forwarded to the Licensing Section of the Office of Fair Trading by Northampton Trading Standards officers.
  

 

20(b) It is respectfully submitted therefore that the claimant should be entitled to costs. It was unreasonable of the defendant to have attempted to mislead the claimant into directing the court paperwork not to the court, but to the address of the defendant.

 

20© This would have resulted in the defendant securing Summary Judgment by default, an undeserved reward that cannot be considered to be ‘reasonable’ at all.

 

20(d) It is submitted that a court can never condone the sort of practice identified by Trading Standards officers as ‘an attempt to perverse the course of justice’ and can come to no other conclusion that this particular act was indeed ‘unreasonable’.

 

20(e) If the court accepts this argument the claimant would rely on the following in support of the costs application.

 

CPR 44.3 details discretion as to the award of costs.

 

(1) The court has discretion as to-

 

(b) The amount of those costs

 

(2) If the court decides to make an order about costs –

 

(a) the general rule is that the unsuccessful party will be ordered to pay the costs of the successful party

 

(4) In deciding what order (if any) to make about costs, the court must have regard to all the circumstances, including –

 

(a) the conduct of all the parties;

 

(b) whether a party has succeeded on part of his case, even if he has not been wholly successful; and

 

© any payment into court or admissible offer to settle made by a party which is drawn to the court’s attention, and which is not an offer to which costs consequences under Part 36 apply.

 

20(d) With reference to point (a) it is clear the conduct of the defendant has been far from reasonable or acceptable.

 

20(e) With reference to (b) the defendant was wholly unsuccessful in their claim, not even getting to a hearing due to invalid documentation.

 

20(f) With reference to © the defendant has made no effort to settle the dispute out of court, merely issuing statements denying liability. The court has already established they are the liable party after the request made by Judge Watson dated 21st May 2010 that ultimately allowed the counterclaim to continue.

 

CPR44.3 continues…

 

(5) The conduct of the parties includes –

 

(a) conduct before, as well as during, the proceedings and in particular the extent to which the parties followed the Practice Direction (Pre-Action Conduct) or any relevant pre-action protocol;

 

(b) whether it was reasonable for a party to raise, pursue or contest a particular allegation or issue;

 

© the manner in which a party has pursued or defended his case or a particular allegation or issue; and

 

(d) whether a claimant who has succeeded in his claim, in whole or in part, exaggerated his claim.

 

(6) The orders which the court may make under this rule include an order that a party must pay –

 

(a) a proportion of another party’s costs;

(b) a stated amount in respect of another party’s costs;

© costs from or until a certain date only;

(d) costs incurred before proceedings have begun;

(e) costs relating to particular steps taken in the proceedings;

(f) costs relating only to a distinct part of the proceedings; and

(g) interest on costs from or until a certain date, including a date before judgment.

 

20(g) With reference to point (5a) above the conduct of the defendant has already been detailed in the full counterclaim and partially detailed earlier. There can be no doubt that their conduct was wholly unreasonable, the aim being to deprive the claimant of the right to offer a defence.

 

20(h) With reference to point (5c) above the defendant pursued the original claim having established no lawful right to do so and having failed to ensure the documentation they would ultimately need to make available for the court was valid. Such action could be considered as an abuse of the court process.

 

20(i) Finally, with reference to section 6 detailed above it is clear the court is able to order the payment of another party’s costs, or any part thereof as decided.

 

20(j) The conduct of the defendant cannot ever be considered as reasonable and in the humble opinion of the claimant the intention of the defendant to deny the claimant the right to submit a defence to the appropriate recipient (that being the court and not the defendant) along with the failure to ensure all documentation was legally complicit is inexcusable.

 

20(k) Consulting the Pre-Action Conduct section of the Practice Directions further guidance is offered as to issues of compliance. In Section 2 entitled ‘The Approach Of The Courts’ the nature of compliance is addressed. It states:

 

4. Compliance

 

4.1

 

The CPR enable the court to take into account the extent of the parties’ compliance with this Practice Direction or a relevant pre-action protocol (see paragraph 5.2) when giving directions for the management of claims (see CPR rules 3.1(4) and (5) and 3.9(1)(e)) and when making orders about who should pay costs (see CPR rule 44.3(5)(a)).

 

44.3(5) The conduct of the parties includes –

 

(a) conduct before, as well as during, the proceedings and in particular the extent to which the parties followed the Practice Direction (Pre-Action Conduct) or any relevant pre-action protocol;

 

Examples of Non-Compliance

 

 

4.4

 

The court may decide that there has been a failure of compliance by a party because, for example, that party has –

 

(1) not provided sufficient information to enable the other party to understand the issues;

 

(2) not acted within a time limit set out in a relevant pre-action protocol, or, where no specific time limit applies, within a reasonable period;

 

(3) unreasonably refused to consider ADR (paragraph 8 in Part III of this Practice Direction and the pre-action protocols all contain similar provisions about ADR); or

 

(4) without good reason, not disclosed documents requested to be disclosed.

 

20(l) With reference to point 1 above the defendant failed to provide sufficient statement information in order that the claimant could fully audit the sum claimed. This lack of essential information made it impossible for the claimant to assess the true position of the original claim. The defendant also failed to provide valid notices of assignment, valid default notices and any deed of assignment.

 

 

20(m) With reference to point 4 above the defendant has still failed to provide any reasons, good or otherwise, for the lack of statement history. The claimant is entitled to this history, especially where it is subject to litigation.

 

20(n) This statement history was requested by the claimant in the first Subject Access Request acknowledged and partially fulfilled by the defendant.

 

20(o) There is also no reason given for the lack of other valid documentation, some of which was used to terminate the agreement unlawfully.

 

Sanctions for Non-Compliance

 

 

4.5

 

The court will look at the overall effect of non-compliance on the other party when deciding whether to impose sanctions.

 

4.6

 

If, in the opinion of the court, there has been non-compliance, the sanctions which the court may impose include –

 

(1) staying (that is suspending) the proceedings until steps which ought to have been taken have been taken;

 

(2) an order that the party at fault pays the costs, or part of the costs, of the other party or parties (this may include an order under rule 27.14(2)(g) in cases allocated to the small claims track);

 

(3) an order that the party at fault pays those costs on an indemnity basis (rule 44.4(3) sets out the definition of the assessment of costs on an indemnity basis);

 

(4) if the party at fault is the claimant in whose favour an order for the payment of a sum of money is subsequently made, an order that the claimant is deprived of interest on all or part of that sum, and/or that interest is awarded at a lower rate than would otherwise have been awarded;

 

(5) if the party at fault is a defendant, and an order for the payment of a sum of money is subsequently made in favour of the claimant, an order that the defendant pay interest on all or part of that sum at a higher rate, not exceeding 10% above base rate, than would otherwise have been awarded.

 

20(p) The claimant also submits that there is evidence of non-compliance contrary to the above practice direction enabling the court to award costs at its own discretion.

 

20(q) Point (2) detailed above confirms such orders can be made to order the party at fault to pay the full costs of the other side for claims allocated to the small claims track.

 

20® Point (5) detailed above provides details as to sanctions available to the court for the addition of a higher rate of interest that shall not exceed a rate 10% above the base rate.

 

20(s) The claimant respectfully requests the discretion of the court in this matter and submits that given the history of this particular claim and the conduct of the defendant that costs are awarded in full as detailed in the Bill of Costs submitted to the defendant in September 2010 and to the court by hand on the 13th October 2010.

[pumpytums]

As you have said Sunk had no right to the monies they claimed. They were just chancing their arm, if you had not asked for the documentation they would have won. They know 100% that the case is flawed yet they still carry on both mine and hammys prove this. In my case I even wrote to they and stated that no DN was issued they still proceeded.

 

I had a conversation with a no neck individual at Santanduur recently he basically said that it was my fault that I had been dragged to court and as I had spent the money. I said so that gives you the right to ignore by Consumer rights under an act of parliament and also the terms in the agreement we signed then does it because I get into financial hardship? He back tracked at that point. Point to note don't bother discussing consumer credit law with collections managers they only have one line "Well you spent it". I also stated that to be honest I wasn't surprised about the way they dealt with customers as basically you don't have a blooming clue. He said that's your opinion I said to be honest that's fact and also the opinion of lots of people including the BBC.

 

I basically ended the conversion by saying do what the hell you like because I'm not paying you a penny, and please take me to court because your going to have a fat counter claim.

 

Their numptiness knows no bounds even their complaints procedure is broken. Can you actually write a letter of complaint about a complaints procedure?

 

Pumpytums

[DonkeyB]

So much better if you record the calls...! Would give us all something to laugh at, and something to send their complaints department so they can ‘redeploy’ a numpty collections manager into the full time role of ‘admin error’.

[emandcole]

Just back from court - not awesome result by any means and my counterclaim appeared to fail on something of a technicality and as a result the judge was powerless to do any more, claim dismissed and no award for costs.

 

A while ago the court wrote asking me to detail how Stink were liable in law for the actions of GE, the former creditor. I had a look at the OFT guidlines on what constitutes a creditor and submitted the following:

 

Liability.

 

 

The claimant would rely on the Office of Fair Trading (OFT) publication entitled Guidance on sections 77/78/79 of the Consumer Credit Act 1974, which states in point 2.4 that:

 

 

The definition of these terms is to be found in section 189(1) of the Act. It clearly includes the creditor or owner who enters into the agreement and also anyone to whom the rights and duties under that agreement have passed by operation of law. In the OFT’s view, where there has been a novation (that is, the debtor or hirer has agreed that a new party will be substituted as creditor or owner for all purposes under the agreement) the new party is the creditor or the owner.

 

 

It is further the OFT’s view that, giving the definition of the terms a purposive construction and one which is most likely to assist the consumer, the 'creditor' or 'owner' includes an assignee of only the rights under the contract. Thus, the OFT considers that the 'creditor' in sections 77 and 78 and the 'owner' in section 79 includes a person who has merely bought the debts under the agreement.

 

 

Section 78 is the applicable section for an agreement of this type and as detailed above the OFT consider that the role of ‘creditor’ includes a third party who has merely bought the debt. Accordingly the defendant is the creditor for the purposes of this action.

 

The court appeared to be happy with that and I received notice that the hearing had been allocated for today. When I arrived I waited for ages, the representative for Link not having all of the documents so I gave her a copy of the folder I had, no point in being awkward and less chance of her requesting adjournment due to no docs.

 

Got into the room and the judge quickly addressed issues of Data Protection breach and stated she would not be dealing with that today as I'd not put it into the original counterclaim, it had been a later submission - to be honest I quickly felt like I had lost my bearings when she asked me how they were liable for the actions of the original creditor. I had submitted the OFT guidance and thought that was sufficient, after all the court had clearly asked for this before and had surely read what I'd provided.

 

As such if what I'd submitted was useless why did the court essentially approve it by granting a hearing date? I mean, if I'd submitted a bit of chocolate glued onto a bit of orange card would they have considered that fine too and on the back of it allocated a hearing date?

 

The judge went into detail and stated that as the OFT guidance specifically mentioned a novation and not an assignment that what I had submitted was not good enough to confirm that Stink were liable for the actions of the previous creditor. It seems that an assignee can get all of the good stuff, with no liability for the bad stuff. Had it been a novation then I would have been ok. Of course it threw me as my entire case was based on that liability and if that fell away I had no claim.

 

The judge did hint that I should have bought a claim against the original creditor for a data protection breach and possibly for the repudiation of contract, the judge seemed quite clued up on the concept of a creditor misbehaving and effectively binning the contract and I suspect that she deliberately refused to deal with that aspect of the claim so that I was able to go back and bring a claim on that head, having not already had a bite of the apple in this counterclaim.

 

After that the case quickly unravelled. I pointed out that Stink had been wholly unreasonable with their attempts to misdirect court paperwork and pointed her to the Trading Standards letter and the offending Link letter. She agreed it wasn't great but pointed out that had I followed that direction and fallen victim to it I could have applied for set aside and as that hadn't happened there was no harm done.

 

I pointed out all of the other points leading to what I considered to be unreasonable such as starting litigation without full documentation, incomplete statement histories, not providing documents causing me to have to pay for a seperate hearing to gain sight of them and she said none of that was particularly unreasonable and the court would have to see a far higher level of 'unreasonableness' to order costs against them - basically if you're the claimant do whatever you want, short of physically attacking the defendant anything goes.

 

She refused to make any order that Stink remove the invalid default notice, saying I should take that up with Stink myself. Thanks very much. She also refused to declare any rights of the parties, quickly concluding all was done and that's that. What did I learn from this?

 

 

• The representative for Stink told me that had I used the correct argument the judge would have done all she could to rule in my favour as all of the judges detest Stink.
  
• I should consider legal help concerning the Data Protection issues and repudiation as she considered that the judge had essentially nudge me in that direction instead.
  
• Although I wasn't awarded costs (meaning I'm about £280 down) technically I'm up as the original debt was in excess of £1300 and I'm a whole lot wiser for the experience.
  
• When you get in there it's incredibly easy to get flustered when you're asked a question - you have all of this stuff in your head spinning about and suddenyl you need to access it and tie it all in with what you've submitted in paper form. So...organisation and keeping it as simple as you possibly can is absolutely critical. Regardless of how sharp you are or how well you know your argument when a question is fired at you it feels like an eternity as you sit there thinking.
  
• I thought the judge would be more clued up on the documents I'd submitted. Yes, she'd read them and claimed to have spent an hour digesting them but I got the distinct impression that actually she hadn't got a clue about all of the ins and outs and was more content on firing a question at me.
  

So, a draw I guess between me and Stink. They've had the costs of the case and their lost revenue as I defended and won.

 

I am a bit hacked off that the OFT stuff I submitted on what constitues a creditor was seemingly good enough to allocate a hearing on but not good enough to support the liability, hence the entire claim falling down. Quite how you can have it both ways I'm not sure, I explained to the judge that as far as I could see Stink had issued litigation in their own name and had the potential bnefit of 'the good stuff' and failed to see how that also excluded them from 'the bad stuff'. It seems they can have their cake AND eat it and no-one is resonsible for the failings but all expect to prosper from the rest of it.

 

Think I'll try and see a solicitor about the Data Protection issues and repudiation etc, if it's a strong enough case I'm hoping they'll take it on with no fees up front.

[pumpytums]

Sorry to hear that mate.

 

Very interesting though in my case because as you know it's been handed back to the OC. I wonder if GE/Santanduur will repurchase yours because if that's the case the judges nudge could be handy. The OC very clearly had no intentions of sticking to the agreement, and decided to bin it as you said. I said earlier the OC said that it was my fault they decided to break the agreement and acts of parliament. I would always admit yes I missed payments but it's no reason to behave like a loan-shark of years gone by and ignore the CCA.

 

Pumpytums

[pumpytums]

Just looked up "Novation",

so as it's an assignment Link buy the good bits and leave the bad bits with the OC so if you had called GE/Santander as a second Defendant would that have worked then? If so that's very useful to know.

 

http://www.alway-associates.co.uk/legal-update/article.asp?id=8

 

The interesting point is though I suppose GE assigned the rights but not the obligations, so in the light of what you have found out we should therefore go after the OC for breaches of agreement and statutes. I have it in writing that all "Rights" were transferred but it doesn't mention duties or obligations even through the T&C mentions they can transfer such things.

 

Pumpytums