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Wolfy vs Howard Cohen/C L Finance


Wolfy
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Well it seems like Howard Cohen/CL have finally tried to get me in their sights. Fortunately they are such awful shots that they have undoubtedly shot themselves in the foot.

 

I received yesterday a claim from Northampton in regard to an Egg credit card account which is around £15K. There is a long sequence of events so please bear with me.

 

1. Account opened in 1999

2. I was in financial difficulty in August 2006 and fell behind with my payments. capquest were appointed to chase the debt and I sent them, as agents for Egg, the usual s.78 letter requesting a true copy of the agreement.

3. In October 2006 they sent me what they stated was a copy in accordance with the CCA 1974. I begged to differ with them as it was illegible and lacked copies of the T & C’s, normal story with Egg.

4. At that time I became aware that they had been charging me for PPI, which I hadn’t requested and so made a compliant to the FOS who decided in my favour.

5. In the meantime Egg and their minions continued to chase for payment despite being told on each occasion that they hadn’t complied with my s.78 request and were therefore unable to do so. Each time I told them this it was passed onto a different debt collection agency. The last contact from anyone in connection with Egg was January 2007.

6. Fast Forward to November 2008 when I am told that my “debt” has been sold to Lewis Debt Recovery who I immediately write to and point out that the assignment of this debt is in breach of both the OFT guidelines and Consumer Credit law as the matter was still in dispute as above.

7. No further contact from then until yesterday when the court papers arrived.

 

Please see below for both a copy of the POC that they have filed and a copy of the papers they sent me in October 2006.(Will post them up tonight)

 

I have acknowledged service and told them that I intend to defend the whole amount.

 

I have sent Howard Cohen the usual CPR 31.14 letter without much expectation of them complying and am drafting up my defence. I am unsure at this stage whether to point out to the court that Egg/CL have failed since 2006 to comply with my s.78 request, and of course there is the whole issue of “approved limit” to consider. Would anyone be able to help me out with this?

Edited by Wolfy
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Please see below for the POC and a copy of the agreement that Egg sent me in 2006.

 

Another thought that has occured to me is that Egg never sent me a valid default notice. They sent me one but when I pointed out the account was in dispute they sent a further letter apologising and confirming that they should not have sent a DN. More ammunition me thinks

POC and agreement.pdf

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Hello Wolfy,

 

Agreement seems ok to me, but you need more seasoned input. ;)

 

Did you get a Notice of Assignment or Default Notice from CL/Cohen?

 

Keep an eye on your dates and don't rely on Cohen replying to your letter, you will probably need to use an embarressed defence to start with.

 

Regards

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My understanding, based on reading other posts re Egg agreements, is that there are a number of issues with their agreements. Not least the approved limit point.

 

No DN or NOA from CL. Egg wrote to me and told me they had assigned the debt, but sent by ordinary post which I dont think qualifies as they are required to send it either by registered or hand deliver.

 

Fully prepared for Cohens not to respond to my CPR request but I have to show any judge that I have acted reasonably, and it makes Cohens look even more incompetent.

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fire this off edit to suit.

 

have a read.

 

1. It is denied that the matters pleaded in the Particulars of Claim actually disclose any cause of action. In particular:-

 

 

a) It is denied that that the Defendant can have liability to "pay" the Claimant sums of money simply on account of "requests for payment" in relation to a egg credit card- the only matters pleaded.

 

 

No cause of action known to English Law exists on the basis of such "requests for payment" (whether repeated or not).

 

 

 

b) Neither the Claimant being howard cohen can give rise - on its own - in English Law to a liability to the Claimant to pay sums which it appears (on the face of the Particulars, although due to their vagueness it is hard to know) to be being alleged were due

 

 

c) In any event, it is denied that the Defendant has or ever has had liability to pay - whomever that may be - any sum whatsoever.

 

2. It is expressly denied the Defendant is liable to pay any money pursuant to contract or otherwise to the Claimant.

 

3. Without prejudice to the above contentions, the Defendant asserts that in particular, given that the original of the liability is said to be a credit card given by " egg (which is a person / entity / company not known to the Defendant), it will be the case, taking into account the amount of the liability, that the transaction and the underlying agreement (if any) between egg credit card and the Claimant would be regulated by the terms of the Consumer Credit Act 1974.

 

4. It is the express contention of the Defendant - again without prejudice to the contention that there is in fact no agreement - that any such agreement as exists does not comply with the Act. It is impossible to plead further in the absence of a pleading by the Claimant as to what the agreement was and what its terms were and the Defendant reserves the right further to plead Particulars of failure to comply in the event that the Claimant amends it Particulars of Claim to allege the agreement.

 

 

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Thanks Lillywhite but I am not sure that I can claim in 3 that

 

the Defendant asserts that in particular, given that the original of the liability is said to be a credit card given by " egg (which is a person / entity / company not known to the Defendant)

 

When I have been in communication with Egg over this matter in the past. Wouldn't that predjudice any letters that I then produce from Egg in relation to things like the DN?

 

Anyone else got any views on the agreement?

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  • 2 weeks later...

I need to enter in my defence this week and, as expected, HC have not bothered to respond to my CPR request. Would someone mind looking this over for me and letting me know what they think.

 

Thanks

 

 

Defence

 

 

1. I XXXXXXXXXXXX am the Defendant in this action and make the following statement as my defence to the claim made by Howard Cohen & Co on behalf of C L Finance Ltd.

 

2. Except where otherwise mentioned in this defence, I neither admit nor deny any allegation made in the Claimants Particulars of Claim and put the Claimant to strict proof thereof.

 

3. The Defendant is embarrassed in pleading to the Particulars of Claim as it stands at present, inter alia: -

 

4. The Claimants' particulars of claims disclose no legal cause of action and they are embarrassing to the Defendant as the Claimant's statement of case is insufficiently particularised and does not comply with CPR part 16. In this regard I wish to draw the courts attention to the following matters;

 

a) The Particulars of Claim are vague and insufficient and do not disclose an adequate statement of facts relating to or proceeding the alleged cause of action.

b) The Claimant refers to a regulated credit agreement within the Particulars of Claim but does not substantiate the type of regulated agreement or the date upon which this agreement was executed.

c) A copy of any evidence in relation to any amount outstanding under the agreement has not been served attached to the claim form nor has any attempt been made by the Claimant to substantiate how the amount claimed has been reached.

d) A copy of the purported written agreement referred to in the Particulars of Claim has not been served attached to the claim form, or served under separate cover. In accordance with the provisions of CPR PD 16 paragraph 7.3:

 

‘where a claim is based upon a written agreement, a copy of the contract or documents constituting the agreement should be attached to, or served with, the particulars of claim and the original(s) should be available at the hearing. Further, that any general conditions incorporated in the contract should also be attached.’

 

5. In a letter dated 23/09/2009, sent by both fax and recorded delivery, and received by the Claimants solicitors on 23/09/2009 (in respect of the fax copy) and 24/09/2009 (in respect of the copy by recorded delivery) the Claimant was asked to provide information, in accordance with CPR 31, and that which is necessary before the Defendant is able to submit a fully particularised defence or counter claim.

 

6. The Claimant has thus far failed to comply with the request made and I am unable to submit an adequate defence or counter claim. It is requested by the Defendant that the court, in accordance with CPR part 18, orders the Claimant to comply with the following request for information.

 

a) Inspection of the original written agreement upon which the Claimant’s claim is based and/or for the original agreement to be made available in court.

b) A copy of the written agreement.

c) A copy of the default notice.

d) A copy of all statements/transactions showing how the claim of £xxxxxx has been reached.

e) A copy of the notice of assignment sent by the assignee to the defendant in compliance with s136 of the Law of Property Act 1925 together with proof of delivery.

f) A copy of the assignment, referred to in the notice of assignment, giving the claimant entitlement to the make the claim.

 

7. Consequently, I neither admit nor deny all allegations on the Particulars of Claim and request that, upon receipt of the documents requested in [6], sufficient time is allowed for me to submit an amended defence.

 

8. The Claimant’s claim to be entitled to £xxxx.xx or any other sum is denied.

 

Statement of Truth

 

I xxxxxxxxxxx, believe that the facts stated in this defence are true.

 

Signed .....................

 

Date

Edited by Wolfy
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Any opinions on my defence anyone. I need to get this in but would really like someone else's view before I submit it. I am especially unsure about asking for a CPR18 order already byt cannot see the harm in doing so.

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Defence

1. I ****** of **address*** am the defendant in this action and make the following statement as my defence to the claim made by CL Finance Limited.

 

2. Except where otherwise mentioned in this defence, I neither admit nor deny any allegation made in the claimants Particulars of Claim and put the claimant to strict proof thereof.

 

3. I am embarrassed at pleading to the particulars as they fail to comply with the Civilprocedure rules, in particular part 16 and practice direction 16, in particular paragraph 7.3 as the claimant has failed to supply a copy of the written document which forms the basis of this claim.

 

4. The claimant has failed to set out how the figures which they claim are calculated nor do they set out the nature and scope of any charges contained within the figure claimed

 

5. The claimant has failed to also attach a copy of the default notice which they claim has been served under s87 (1) Consumer credit act 1974

 

6. The courts powers of enforcement in cases relating to Regulated Credit Agreements under the Consumer Credit Act 1974 are subject to certain qualifications being met with regards to the form and content of the documentation, in particular the Credit agreement and the Default notice. Therefore these Documents must be produced before the court and must comply with the relevant sections of the consumer credit act and the regulations made under the act, I will address these requirements later in this defence

 

7. Furthermore the claimant has failed to attach a copy of the deed of assignment and proof of posting for the notice of assignment which is required to comply with Section 196 of the Law of Property Act 1925. I received the Notice of assignment, on 16th September 2009 and I note the date of issue on the claim as the 14th September 2009 which suggests that the notice of assignment, which must be served before the assignment if it is to be effective in law, was not posted before the claim was filed, so I place the claimant to strict proof that the notice of assignment was posted prior to the start of this action. Should the claimant not be able to produce this proof, I contend that the claimant would not have a legal right to this action and the case should be struck out without further notice.

 

8. Consequently due to the claimants failure to supply the documents required under the civil procedure rules and the fact that the claimant has failed to sufficiently particularised the claim I deny all allegations in the particulars of claim that I am indebted to the claimant in any way and put the claimant to strict proof thereof.

 

9. I will now look at the important issues relating to this case which must be brought to the courts attention.

 

 

Pre-action protocols

 

10. The claimant CL Finance Limited has failed to follow the pre-action protocols insofar as they did not send any letter before action as required by paragraph 4.3 of Practice Direction-Protocols, nor did they attempt to enter into any negotiations to try and resolve the issues. Instead they launched into immediate litigation and it would appear that they did this before the assignment was carried out correctly.

 

The Request for Disclosure

 

(Do I attach copies of my CPR 31.14 request to Howard Cohen & Co. and also their response and the proof of delivery??)

 

12. Further to the case, on 17th September2009 I requested the disclosure of information pursuant to the Civil Procedure Rules, which is vital to this case from the claimant. The information requested amounted to copies of the Credit Agreement referred to in the particulars of claim and any default or termination notices, a transcript of all transactions, including charges, fees, interest, alleged repayments by myself and payments made by the original creditor. Also any other documents the Claimant seeks to rely on, including any default notices or termination notice, and a copy of the Notice of Assignment required to give the claimant a legitimate right of action. This request was delivered by Royal Mail’s recorded delivery service on 18th September 2009.

 

13. To Date the claimant has ignored my request under the CPR and I have not received any such documentation requested. As a result it has proven difficult to compose this defence without disclosure of the information requested, especially given that I am Litigant in Person

 

14. The claimant is therefore put to strict proof that a document which is legible and Compliant with the Consumer Credit Act and subsequent Regulations made under the Act exists.

15. The defendant made a request on 21st August 2009 under the Data Protection Act for Subject Access, it included the statutory fee of £10 and was signed for on the 25th September 2009 at Santander Cards (previous owner). A chase up letter was sent to Santander on 18th September 2009 and has been delivered. The request detailed access to all information relating to the said account including histories and the original true signed credit agreement. To date no information has been forthcoming and a complaint has been registered with the Information Commissioners Office.

 

((is this ok because the request was made to the previous owner of the debt, although it was delivered before it was transferred?))

 

 

 

The Credit Agreement

 

 

16. The Agreement referred to in the particulars of claim relates to a Credit agreement regulated by the Consumer Credit Act 1974. Under the said act there are certain conditions laid down by parliament which must be complied with if such agreement is to be enforced by the courts.

 

17. Firstly, the agreement must contain certain terms under regulations made by the Secretary of State under section 60(1) CCA 1974, the regulations referred to are the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553).

 

18. The prescribed terms referred to are contained in schedule 6 column 2 of the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) and are inter alia: -

 

A term stating the credit limit or the manner in which it will be determined or that there is no credit limit, A term stating the rate of any interest on the credit to be provided under the agreement and A term stating how the debtor is to discharge his obligations under the agreement to make the repayments, which may be expressed by reference to a combination of any of the following:

 

1. Number of repayments

 

2. Amount of repayments

 

3. Frequency and timing of repayments

 

4. Dates of repayments

 

5. The manner in which any of the above may be determined; or in any other way, and any power of the creditor to vary what is payable

 

19. If the agreement does not contain these terms it does not comply with section 60(1) CCA 1974, the consequences of which means it is improperly executed and only enforceable by court order

 

20. Notwithstanding point 18, The agreement must be signed in the prescribed manner to comply with s61 (1) CCA 1974, if the agreement is not signed by debtor or creditor it is also improperly executed and again only enforceable by court order

 

21. The courts powers of enforcement where agreements are improperly executed by way of section 65 CCA 1974 are themselves subject to certain qualifying factors. Under section 127 (3) Consumer Credit Act 1974 the requirements are laid out clearly what is required for the court to be able to enforce the agreement where section 65(1) has not been complied with127(3) The court shall not make an enforcement order under section 65(1) if section 61(1)(a)(signing of agreements) was not complied with unless a document (whether or not in the prescribed form and complying with regulations under section 60(1)) itself containing all the prescribed terms of the agreement was signed by the debtor or hirer (whether or not in the prescribed manner).

 

22. The courts attention is also drawn to the authority of the House of Lords in Wilson-v- FCT [2003] All ER (D) 187 (Jul) which confirms that where a document does not contain the required terms under the consumer credit act 1974 and the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) and Consumer Credit (Agreements) (Amendment) Regulations 2004 (SI2004/1482) the agreement cannot be enforced

 

23. With regards to the Authority cited in point 21, I refer to LORD NICHOLLS OF BIRKENHEAD in the House of Lords Wilson v First County Trust Ltd - [2003] All ER (D) 187 (Jul) paragraph 29

 

" The court's powers under section 127(1) are subject to significant qualification in two types of cases. The first type is where section 61(1)(a), regarding signing of agreements, is not complied with. In such cases the court 'shall not make' an enforcement order unless a document, whether or not in the prescribed form, containing all the prescribed terms, was signed by the debtor: section 127(3). Thus, signature of a document containing all the prescribed terms is an essential prerequisite to the court's power to make an enforcement order."

 

24. Therefore it is submitted that without production of the credit agreement no enforcement order should be made as this would be unjust and against the rulings of the House of Lords and also against the Consumer Credit Act 1974 which was enacted clearly to offer a certain level of protection to consumers

 

 

The Default Notice

 

25. Notwithstanding the matters pleaded above, the claimant must under section 87(1) Consumer Credit Act 1974 serve a default notice before they can demand payment under a regulated credit agreement

 

26. It is neither admitted or denied that any Default Notice in the prescribed format was ever received and the Defendant puts the Claimant to strict proof that said document in the prescribed format was delivered to the defendant

 

27. Notwithstanding point 25, I put the claimant to strict proof that any default notice sent to me was valid. I note that to be valid, a default notice needs to be accurate in terms of both the scope and nature of breach and include an accurate figure required to remedy any such breach. The prescribed format for such document is laid down in Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) and Amendment regulations the Consumer Credit (Enforcement, Default and Termination Notices) (Amendment) Regulations 2004 (SI 2004/3237)

 

28. Failure of a default notice to be accurate not only invalidates the default notice (Woodchester Lease Management Services Ltd v Swain and Co - [2001] GCCR 2255) but is a unlawful rescission of contract which would not only prevent the court enforcing any alleged debt, but give me a counter claim for damages Kpohraror v Woolwich Building Society [1996] 4 All ER 119

 

 

 

The Assignment of the debt

 

29. As stated in point 7, the notice of assignment was delivered to me on the 16th September 2009 after the claimant had instigated this action, consequently, I require the claimant produce the Deed of Assignment to show that it is indeed valid and compliant with the Law of Property Act 1925 and further more I require the claimant disclose proof of posting per s196 LoP Act 1925.

 

30. I refer to W F Harrison & Co Ltd v Burke and another - [1956] 2 All ER 169 where it was held that the notice of assignment was bad because the date of the assignment was wrongly stated therein and, therefore, the legal right to the debt under the hire-purchase agreement had not been assigned effectually at law within s 136(1) a of the Law of Property Act, 1925 and put the claimant to strict proof that the assignment has been carried out correctly

 

31. If no Deed of Assignment can be produced it is requested that the court strike out the claimants’ case as the claimant will not have a right to bring this action against me in their name

 

Conclusion

 

32. I respectfully ask the court to use its case management powers to order the claimant to disclose the information requested within this defence document as it is vital to allow me the opportunity to defend this action properly and would be unjust and totally unfair to allow this action to continue without allowing me the opportunity to view the documents which form the basis of this claim

 

33. I further ask the court consider striking out the claimants’ case as it fails to comply with part 16 and practice direction 16 insofar that no documents have been supplied and fails to show any consideration to the overriding objective to allow the court to deal with this case justly

 

34. In addition, if the claimant cannot produce a credit agreement in the prescribed form signed in the prescribed manner by debtor and creditor, the court is precluded from making an enforcement order under s127 (3) Consumer Credit Act 1974 and it is requested that the court use its powers under section 142 Consumer Credit Act 1974 to declare the agreement unenforceable and strike out the claimants case accordingly

 

35. Alternatively, I respectfully request a stay in proceedings until such time as the claimant complies with the requests outlined in point 12 above or until the court orders its compliance with the same. I will then be in a position to file a fully particularised defence and counterclaim and will seek the courts permission to amend my statement of case accordingly.

 

36. In addition it is drawn to the courts attention that schedule 3, s11 of the Consumer Credit Act 2006 prevents s15 repealing s127 (3) of the 1974 Act for agreements made before s15 came into effect since the agreement is alleged to have commenced under the Consumer Credit Act 1974 which is the relevant act in this case.

 

 

 

Statement of Truth

 

 

I ******** believe the above statement to be true and factual

 

 

Signed .....................

 

Date

 

 

read through it and eddit some things out

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  • 1 month later...

Well HC didn't bother to respond to my defence and this case is now stayed as from 24th November. Not entirely sure what this means as I think that they can simply apply to have the stay lifted at any time and the case would then continue. Seems a bit unreasonable to me as had I not entered a defence in time I have no doubt I would now have a CCJ against me. Anyone know if there is anything I can do as I don't like to just leave things in limbo like this.

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Filling in the Form N150 now. So far I have

 

A no

 

B yes (already been transferred to my local court) .

 

C yes

 

D all and none ticked track box fast

 

E Have estimated 3 hours

 

F have ticked yes and no

 

I I have ticked the box for attaching douments to the questionaire and have attached as below

 

 

Other Information

 

 

 

 

Section F

 

If the court is in agreement, the defendant respectfully requests that special directions may be given as per the attached draft order.

 

The defendant proposes these directions in mind of the Overriding Objectives, and in particular the duty of the parties to help the court further them. The issues outlined below are the crux upon which this claim rests, and the proposed directions identify these issues and will allow them to be assessed in advance of the hearing so that this claim may proceed justly and expeditiously;

The defendant wrote to the claimant’s solicitors on 23 September 2009 with a request under CPR31.14 for the documents mentioned in the claimants Particulars of Claim. As of this date no information or documents have been supplied by the claimant.

 

Without production of the requested documents, I am at a disadvantage and am unable to serve a proper defence. Failure of the claimant to supply the requested documentation will make the case much harder for the court to deal with as without production of the requested documentation will inhibit the courts ability to deal with the case.

 

The House of Lords in the case of Wilson v First County Trust Ltd - [2003] All ER (D) 187 (Jul) made it clear in paragraph 29 of LORD NICHOLLS OF BIRKENHEAD judgment

 

29. The court's powers under section 127(1) are subject to significant qualification in two types of cases. The first type is where section 61(1)(a), regarding signing of agreements, is not complied with. In such cases the court 'shall not make' an enforcement order unless a document, whether or not in the prescribed form, containing all the prescribed terms, was signed by the debtor: section 127(3). Thus, signature of a document containing all the prescribed terms is an essential prerequisite to the court's power to make an enforcement order. The second type of case concerns failure to comply with the duty to supply a copy of an executed or unexecuted agreement pursuant to sections 62 and 63, or failure to comply with the duty to give

notice of cancellation rights in accordance with section 64(1). Here again, subject to one exception regarding sections 62 and63, section 127(4) precludes the court from making an enforcement order.

 

Its is respectfully requested this case be allocated to the fast track, it is a straight forward case and is easily resolved on production of the required documentation by the claimant, should the claimant not have the documentation required to progress this case I suggest that there will be no case to answer

 

Therefore it stands to reason that these documents must be disclosed before this case can progress any further

 

 

 

 

Draft Order for Directions

 

 

1 The Claimant shall not later than 4:00pm on (date) (being a date 2 weeks from the date of the making of the case management directions) deliver to the Defendant a certified true copy of each of the following documents mentioned in the Particulars of Claim

 

(a) the executed regulated consumer credit agreement made between the defendant and xxxxxxxxxxxxxxxxx under reference xxxxxxxxxxxxx together with any terms and conditions that applied to it, the original document must be brought to the hearing.

(b) the default notice together with proof of service the original document must be brought to the hearing

© notices of assignment together with proofs of service

(d) the deeds of assignment, the original document must be brought to the hearing

(e) a full and complete statement of account including all payments made and charges applied covering the period beginning with the day of the making of the agreement and ending on the date of the commencement of this case.

f) A statement from Egg, being the assignor of account number xxxxxxxxxxxxxxxx confirming that said account had not been securitised prior to that account being assigned to CL Finance Ltd.

 

2 In the event that the Claimant shall fail to comply with paragraph 1 of this order the claim shall stand struck out and the Defendant shall be at liberty without further order to apply to this court for judgment and for costs on the standard basis to be subject to detailed assessment proceedings if not agreed.

 

3 In the event of compliance with paragraph 1 of this order this case shall be allocated to the fast track and

 

4 The Defendant shall be at liberty to file and serve a consequentially Amended Defence by 4:00pm on (date) (being a date 6 weeks from the date of the making of the case management directions).

 

 

The only bit that I am really unsure of is whether I could actually try and get this into the small claims track as although the amount is higher than the usual limit this doesn't involve any complex areas of law. Any thoughts anyone?

Edited by Wolfy
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I would advise against going Small Claims Track even though the exposure to costs is reduced by going SCT

 

I still think that you should try allocating to the fast track - the problem with the SCT is that you don't get proper disclosure.

 

Another very good reason for going Fast Track is that you will get a District Judge to look at your case.

If you go SCT, you could end up with a duffer of a part time Deputy District Judge that has no idea of Consumer law.

 

I would advise that you do some research to understand the risks of the Tracks.

Edited by supasnooper
removed incorrect info relating to OP's case and added "against"

 

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Sorry, my fault.

 

I have edited my previous post.

 

 

 

I would advise against going Small Claims Track even though the exposure to costs is reduced by going SCT

 

I still think that you should try allocating to the fast track - the problem with the SCT is that you don't get proper disclosure.

 

Another very good reason for going Fast Track is that you will get a District Judge to look at your case.

If you go SCT, you could end up with a duffer of a part time Deputy District Judge that has no idea of Consumer law.

 

I would advise that you do some research to understand the risks of the Tracks.

 

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