Wolfy vs Howard Cohen/C L Finance

[Wolfy]

They have not yet sent a witness statement, and I have kept a few things back just in case. The covering letter they provided with the docs they have sent stated that this was the evidence that they intended to rely on in court. Like to see them try and go back on that.

[Wolfy]

bumped for futher opinions

[Wolfy]

sorry to keep bumping this but I really need opinions on my defence. Only got a couple of days to send it in and I need to know if I have made any stupid mistakes

[Wolfy]

Sorry but still need opinions please. This must be sent in the next day or so.

[Wolfy]

Final bump for help

[citizenB]

Just having a read of your thread to see if I can assist:)

[citizenB]

I see nothing wrong with your defence.

 

If you want further and more expert opinion, you may want to pm the following with a link to your post asking the CAG member to pop in and give it the once over for you.

 

vjohn82

DonkeyB

foolishgirl

supasnooper

 

to name a few.

 

HTH

[supasnooper]

You seemed to have everything covered in your defence.........but please do make sure you understand what you have written as the Judge may well wish to discuss certain points, or indeed, need to to be guided on some points.

[pt2537]

i see lots wrong,

 

There is a need for an application not a defence here, at this stage, but what do i know

[Wolfy]

PT I haven't got time for an application. The unless order that Cohen have ignored gives me until 01 April to enter a defence. If I do not enter a defence by then I am not allowed to enter one at all. They win end of story. If there is something wrong here please tell me. I need all the help I can get.

[pt2537]

PT I haven't got time for an application. The unless order that Cohen have ignored gives me until 01 April to enter a defence. If I do not enter a defence by then I am not allowed to enter one at all. They win end of story. If there is something wrong here please tell me. I need all the help I can get.

not the case,

 

cant see how you can defend without the key docs you need, however, if you can file a defence which has such clarity of the issues then you dont need the documents do you

 

 

just playing devils advocate of course,

[stuck for words]

Any further news on this please?

[Wolfy]

Nothing yet. I understand it has been placed before a judge and I am just now awaiting further information.

[Wolfy]

I have now heard from the court that this has been listed for an Allocation Hearing on 15th July. HC want small claims, I want Fast Track (for the added disclosure and CPR requirements). I am however becoming tempted to make an application for default judgement given that under the terms of the unless order their claim should have been struck out automaticaly. Any thoughts anyone?

[citizenB]

I have now heard from the court that this has been listed for an Allocation Hearing on 15th July. HC want small claims, I want Fast Track (for the added disclosure and CPR requirements). I am however becoming tempted to make an application for default judgement given that under the terms of the unless order their claim should have been struck out automaticaly. Any thoughts anyone?

 

hmmm, if the original order was an "unless" order, I would have thought like you, it was done automatically. However, you may just have to apply for it on an N244 which will mean you having to cough up £75.00 unless you are exempt.

[citizenB]

The following post might give you an idea to help you make up your mind.

 

http://www.consumeractiongroup.co.uk/forum/show-post/post-2879328.html

 

HTH

[Wolfy]

Thanks citizenB, thing is according to both CPR and case law the case is already struck out under CPR 3.8

 

3.8

Sanctions have effect unless defaulting party obtains relief

(1) Where a party has failed to comply with a rule, practice direction or court order, any sanction for failure to comply imposed by the rule, practice direction or court order has effect unless the party in default applies for and obtains relief from the sanction.

It should be an automatic strike out its just unfortunate that the Judge lottery fell against me in that they choose to ignore this. If I go the application for default judgement route they then have to consider the legal position, or I then have grounds for appeal in the unlikely event that I loose.

[Wolfy]

I have an allocation hearing on Thursday with HC pushing for the small claims track and my wanting the Fast Track for the added evidential rules and obligations that this imposes on HC to play fairly (and the penalties if they don’t). I am aware that this puts me at risk of costs but that is a risk I am willing to take.

Whilst looking through the CPR and preparing I came across CPR 26.7 which states

(3) Any court will not allocate proceedings to a track if the financial value of the claim, assessed by the court under CPR 26.8, exceeds the limit for that track unless all the parties consent to the allocation of the claim to that track.

If my reading of this is correct then the court cannot allocate the case to the Small Claims track without my consent. This value of this claim falls firmly into the Fast Track. Question is am I reading this correctly?

[citizenB]

I have an allocation hearing on Thursday with HC pushing for the small claims track and my wanting the Fast Track for the added evidential rules and obligations that this imposes on HC to play fairly (and the penalties if they don’t). I am aware that this puts me at risk of costs but that is a risk I am willing to take.

 

Whilst looking through the CPR and preparing I came across CPR 26.7 which states

 

(3) Any court will not allocate proceedings to a track if the financial value of the claim, assessed by the court under CPR 26.8, exceeds the limit for that track unless all the parties consent to the allocation of the claim to that track.

 

If my reading of this is correct then the court cannot allocate the case to the Small Claims track without my consent. This value of this claim falls firmly into the Fast Track. Question is am I reading this correctly?

 

 

That would be my interpretation as well. I will flag the question for the site team for their input though.

[pt2537]

yup

 

you should politely point out that, the Claim has a value that falls within the fast track.

 

In addition, since the matter revolves around a credit agreement, a written document and the matter is an assigned debt therefore there will be further documents which you will need to get sight of, then the disclosure provisions of the fast track will be suitable.

[Wolfy]

Thanks for the help all. I am actually feeling quite confident about tomorrow. Just a point on costs. If this does go down the fast track route I believe that the maximum that can be awarded to them is £1,035 as per

 

Amount of fast track trial costs

 

46.2

 

(1) The following table shows the amount of fast track trial costs which the court may award (whether by summary or detailed assessment).

 

Value of the claim Amount of fast track trial costs which the court may award

 

No more than £3,000 £485

More than £3,000 but not more than £10,000 £690

More than £10,000 but not more than £15,000 £1,035

 

 

(2) The court may not award more or less than the amount shown in the table except where –

(a) it decides not to award any fast track trial costs; or

 

(b) rule 46.3 applies,

 

Am I correct? Not that I intend loosing but its nice to know.

[Josie8]

Barristers costs for trial.

 

Solicitors costs are extra

[citizenB]

Good luck for today, Wolfy

[Wolfy]

Ok so had my allocation hearing today. Went a mixture of good and bad.

Sitting waiting to go in I was approached by the solicitor acting for HC who “just wanted a quick word”. Apparently this hearing was just a formality to get the case put onto small claims. I had previously overheard him talking to a colleague about how he was dealing with one of those people who just copied and pasted large chunks of a defence from the internet. He seemed rather unhappy when I pointed out that a far more fundamental question was why we were having an allocation hearing on a claim that stood struck out since HC failed to comply with the Unless Order above. He replied that he knew nothing about the order and immediately started making panicked phone calls.

 

In front of the judge I again asked why we were having an allocation hearing on this case and was told that the case wasn’t struck out. I disagreed and pointed out the breeches of the order and also that under CPR and case law that the sanction took effect without any further need for an action. The judge reviewed the CPR and the case law that I provided and discussed the matter with the other sides solicitor who was trying desperately to cover all the points that I had raised. The judge finally stated that at this stage the case was struck out BUT that she was exercising her discretionary powers under CPR to reinstate the claimants case. She stated that there was no prejudice against my case. Once again I disagreed pointing out that without sight of the Default Notice, the Deed of Assignment or the proof of posting I had been unable to enter a full defence. She said she would make an order reinstating the case. I replied that of course I would appeal.

 

The judge asked specifically about the default notice and was told that MBNA had not yet supplied it. Rather confusing as this was an Egg credit card. The judge didn’t seem impressed that they didn’t even know what they were here for.

 

We then turned to the case allocation. Other side quite naturally pushed for Small Claims but the Judge was having none of it. She pointed out that due to the large number of complex points raised in my defence that in her opinion Fast Track was the correct track and that was what she was ordering. Other side replied that my defence was no more than a cut and paste job from the internet and contained no points of law. Judge asked if he had seen my defence dated 30 March and he admitted he hadn’t. She suggested he might like to look at it at some stage. She said to me that the Fast Track would give me access to their documents and pointedly told their solicitor this would include all internal memos and correspondence but that if documents had been lost or destroyed , such as the default notice, then there was little I could do. She referred to the Carey case and seemed a little surprised when I pointed out this was only in relation to s77/78 of the CCA1974.

 

Upshot is disclosure by both parties by 30th July - inspection by 16th August

 

Witness statements by 30th September

 

Trial as soon after 14 October as possible

 

So she will be sending the order through as soon as possible. Must say overall I quite enjoyed the experience even if things didn’t go totally my way it was fun watching the other side sweat and panic.

[citizenB]

Thanks for the review, Wolfy. Sounds like you held your own and they have seen that you are not to be initimidated by their antics.

 

I find it amusing they could criticise your defence without having had sight of it..

 

Well done for the first round.

 

Will be interesting to see what they come up with for disclosure.