Dissecting the Manchester Test Case....

[Its WAR]

I have used the following thread to try to get the original agreements, but I did not want to wait to be defaulted, so I issued my actions.

why you shouldnt use section 77/78 CCA 1974 if you want the signed agreement

Before issuing, I wrote letters, then sec 78 request plus reminders, Subject Access Request, then cpr request plus reminders, then letter before action, then issued the application on N244. Non of these efforts produced the original agreement, until the minutes before the hearing I get reconstitued versions.

 

Yes, I have a good argument why the barristers costs should not be allowed, but to give the argument means attending the new hearing and risks the barrister defending and doubling the costs to £5000.

 

These risks give a different slant to trying to get original agreements, now that the Manchester case agrees that reconstituted agreements are ok. (having all had these and continueing to fight for the originals) It seems that attack is not the best sort of defence and we must patiently wait to be defaulted , credit references trashed and then get sued, before we can get half a chance at seeing if an enforceable agreement exists or not.

 

I have tried to ward off these events in advance, and tpo some degree it worked, they did cough up the paperwork (confirmation that they only have a reconstituted agreement and an application form which excludes the prescribed terms). In the light of Manchester, I have got what I asked for, but the costs issue is a risk too far imho. And the risk contunes to get the court not to allow them.

 

In short, I had two non money claims to get agreements, and now have to fight 2 claims totaling £2500 for costs.

Edited January 7, 2010 by Its WAR

[Basil Fawlty]

How much are ATE premiums (a rough idea), and if you win the case, are the premiums paid by the losing side?

 

BF

[nick20045]

How much are ATE premiums (a rough idea), and if you win the case, are the premiums paid by the losing side?

 

BF

 

http://www.communitylegaladvice.org.uk/en/legalhelp/leaflet12_1.jsp

 

Give them a ring or use the site to get an idea.

[Basil Fawlty]

Cheers nick

 

BF

[diddydicky]

i think you will find that you cannot get any insurance to cover your costs as a LIP

 

haven't read the link but i think you will find it refers to covering your legal costs if handled by a lawyer( who would i imagine need to show them that a reasonable prospect of success exists)

[Basil Fawlty]

Ah right diddydicky, I didnt realise this. Then again, as someone who has never seen the inside of a court room, I think it would be in my best interests to use a lawyer if and when I'm taken to court (hasnt got that far.....yet!).

 

If it can be covered by insurance, its surely in our best interests to use the best lawyers/barristers we can find, rather than go as a LIP?

 

BF

[diddydicky]

Ah right diddydicky, I didnt realise this. Then again, as someone who has never seen the inside of a court room, I think it would be in my best interests to use a lawyer if and when I'm taken to court (hasnt got that far.....yet!).

 

If it can be covered by insurance, its surely in our best interests to use the best lawyers/barristers we can find, rather than go as a LIP?

 

BF

 

if it is a cca matter i would suggest that you would get just as good (if not better) advice through this forum from people who have been there done that and got the t shirt

 

the lawyer lottery is almost as bad as the judge lottery

[Basil Fawlty]

After reading the fantastic advice and knowledge on here, I would say

you're definitely right. Thanks dd

 

BF

[PriorityOne]

On a lighter note for a moment....

 

I wonder how the banks would react if we decided to offset the amount they'd been bailed out by us (taxpayers) against any remaining debts (alleged or otherwise) that they currently had on file.

 

[nick20045]

if it is a cca matter i would suggest that you would get just as good (if not better) advice through this forum from people who have been there done that and got the t shirt

Fully 100% agree.

the lawyer lottery is almost as bad as the judge lottery

Remember, a solicitor is primarily an Officer of the Court and his main obligation is towards the Court not the client. (Well supposed to be cos I have seen one stand up, look the Judge straight in the eye and lie bluntly). And when it comes to Duty of Care by a solicitor believe me........... their duty of care is primarily how much money they are going to get as a fee. Anything happens and expect the words "Well we gave it our best shot".

 

Also, you should never look at it as "If we win". You should look at it as "I will win". Never go into a fight (literally speaking) with doubts in your head. Do the research, do the homework, ask, query, take notes and be ready. Think of what they might try to say/do and have the necessary reply ready. Read a few threads on here and see what people experiences were and what they did.

[Basil Fawlty]

Fully 100% agree.

Remember, a solicitor is primarily an Officer of the Court and his main obligation is towards the Court not the client. (Well supposed to be cos I have seen one stand up, look the Judge straight in the eye and lie bluntly). And when it comes to Duty of Care by a solicitor believe me........... their duty of care is primarily how much money they are going to get as a fee. Anything happens and expect the words "Well we gave it our best shot".

 

Also, you should never look at it as "If we win". You should look at it as "I will win". Never go into a fight (literally speaking) with doubts in your head. Do the research, do the homework, ask, query, take notes and be ready. Think of what they might try to say/do and have the necessary reply ready. Read a few threads on here and see what people experiences were and what they did.

 

 

Excellent advice..... but still bloody scary if you have never even been in a court room before.

 

BF

[vint1954]

I have used the following thread to try to get the original agreements, but I did not want to wait to be defaulted, so I issued my actions.

why you shouldnt use section 77/78 CCA 1974 if you want the signed agreement

Before issuing, I wrote letters, then sec 78 request plus reminders, Subject Access Request, then cpr request plus reminders, then letter before action, then issued the application on N244. Non of these efforts produced the original agreement, until the minutes before the hearing I get reconstitued versions.

 

I assume that you used the small claims court and CPR 31.16?

 

Yes, I have a good argument why the barristers costs should not be allowed, but to give the argument means attending the new hearing and risks the barrister defending and doubling the costs to £5000.

 

Not sure why they need a Barrister to defend disclosure of documents, unless your claim also asked for a judgement on enforcability?

 

These risks give a different slant to trying to get original agreements, now that the Manchester case agrees that reconstituted agreements are ok. Only for s 78 requests. (having all had these and continueing to fight for the originals) It seems that attack is not the best sort of defence and we must patiently wait to be defaulted , credit references trashed and then get sued, before we can get half a chance at seeing if an enforceable agreement exists or not.

 

I have tried to ward off these events in advance, and tpo some degree it worked, they did cough up the paperwork (confirmation that they only have a reconstituted agreement and an application form which excludes the prescribed terms). In the light of Manchester, I have got what I asked for, but the costs issue is a risk too far imho. And the risk contunes to get the court not to allow them.

 

In short, I had two non money claims to get agreements, and now have to fight 2 claims totaling £2500 for costs.

 

As stated earlier, the costs in small claims court are limited.

[nick20045]

Excellent advice..... but still bloody scary if you have never even been in a court room before.

 

BF

First of all no problem. I understand that there are people who walking into a court room is like going to the pub for them and there are others where it is like going to meet the inlaws of their girlfriend for the first time. (Just to put some humour into it )

 

Seems for you it is the latter. BUT remember, once you have been to the inlaws a few times it becomes like second nature (unless they bloody hate you like my first ex wifes parents did )

 

IF you have never been in a Court room why not go round to your local country court? Ask the usher if it is ok to go in a Court room as spectator. You can actually have some fun listening to the prosecutor and the defense AND even possibly trying to find where, for example, the defendant has made mistakes or witnesses have made mistakes (obviously you keep your mouth shut lol).

 

Alternatively look at it like you have never dated for ages and is now going on a first date. You are nervous, you do not know what to do, you hope you do everything right BUT take it easy, plan things in advance and hopefully it will all fall in place.

[diddydicky]

Fully 100% agree.

Remember, a solicitor is primarily an Officer of the Court and his main obligation is towards the Court not the client. (Well supposed to be cos I have seen one stand up, look the Judge straight in the eye and lie bluntly). And when it comes to Duty of Care by a solicitor believe me........... their duty of care is primarily how much money they are going to get as a fee. Anything happens and expect the words "Well we gave it our best shot".

 

Also, you should never look at it as "If we win". You should look at it as "I will win". Never go into a fight (literally speaking) with doubts in your head. Do the research, do the homework, ask, query, take notes and be ready. Think of what they might try to say/do and have the necessary reply ready. Read a few threads on here and see what people experiences were and what they did.

 

can't agree that a solicitor is an "officer of the court" or that his main obligation is to the court not his client

 

quite the opposite i would say!

 

a lawyer has no obligation towards a court whatsoever, save to show it respect

[Its WAR]

Hello again Vint.

My discolosure request was just for disclosure, not for an enforceabilty. By sending a barrister, they cause worry with the risks of costs.

Can you explain about the costs in a small claims being limited, when I am faced with £2000 from one barrister and £345 from another, in their defence of my N244 application. Am I worrying over nothing?

[vjohn82]

Hello again Vint.

My discolosure request was just for disclosure, not for an enforceabilty. By sending a barrister, they cause worry with the risks of costs.

Can you explain about the costs in a small claims being limited, when I am faced with £2000 from one barrister and £345 from another, in their defence of my N244 application. Am I worrying over nothing?

 

Remember... the threat of court costs is just that... a threat. In the Small Claims Court costs are limited. I think any reasonable person will see that £2000+ to defend disclosure of documents is "excessive".

[oilyrag]

Hi Diddydicky,

 

Fully support your comments about solicitors. I don't have a lot of love for them but:- By definition they are "Officers of the Court" however their first obligation is to the client. I do not know of any solicitor who would willingly face an inquiry into his/her conduct by the Law Society or the Solicitors Regulation Authority. Take a look at those sites. Most wither at the knees at the suggestion. The sanctions are indeed harsh for failure to comply. Of course bank lawyers will bluff and bluster and hope that you are ignorant. Just think on people, if these legal hacks for the banks/dca's were really any good, would they not be in far better flourishing practices?

 

Greed is a fundamental/primeval motivation in our genes.

 

regards

oilyrag

[slick132]

Looking at It's War's costs exposure, I don't see that a great risk exists.

 

Surely, the CPR31.16 proceedings were properly issued in order to get sight of the agreement. The agreement was produced at the 11th hour and I would have thought It's War had good reason to seek costs from the defendant who could have produced the agreement long before.

 

I would only envisage a risk of costs if It's War had then gone on to seek a ruling of unenforceability in subsequent proceedings and THEN decided to withdraw following the Waksman rulings.

[Basil Fawlty]

First of all no problem. I understand that there are people who walking into a court room is like going to the pub for them and there are others where it is like going to meet the inlaws of their girlfriend for the first time. (Just to put some humour into it )

 

Seems for you it is the latter. BUT remember, once you have been to the inlaws a few times it becomes like second nature (unless they bloody hate you like my first ex wifes parents did )

 

IF you have never been in a Court room why not go round to your local country court? Ask the usher if it is ok to go in a Court room as spectator. You can actually have some fun listening to the prosecutor and the defense AND even possibly trying to find where, for example, the defendant has made mistakes or witnesses have made mistakes (obviously you keep your mouth shut lol).

 

Alternatively look at it like you have never dated for ages and is now going on a first date. You are nervous, you do not know what to do, you hope you do everything right BUT take it easy, plan things in advance and hopefully it will all fall in place.

 

 

LOL.... well put...and thats a great idea about going to court as a spectator, I didnt even know you could do that!

 

cheers

BF

[the_shadow]

Looking at It's War's costs exposure, I don't see that a great risk exists.

 

Surely, the CPR31.16 proceedings were properly issued in order to get sight of the agreement. The agreement was produced at the 11th hour and I would have thought It's War had good reason to seek costs from the defendant who could have produced the agreement long before.

 

I would only envisage a risk of costs if It's War had then gone on to seek a ruling of unenforceability in subsequent proceedings and THEN decided to withdraw following the Waksman rulings.

 

I agree with the above and can only add the CPR 31.16 proceedings are for disclosure of the original executed agreement not a request asking under s78 so the Manchester rulings should have no effect imvho, the disclosure of the document is to see if it contains the prescribed terms as per s127(3) not s78 hence reconstructed documents given at the last minute surely will not do as it doesnt comply with the disclosure request still.

 

S.

[vjohn82]

I agree with the above and can only add the CPR 31.16 proceedings are for disclosure of the original executed agreement not a request asking under s78 so the Manchester rulings should have no effect imvho, the disclosure of the document is to see if it contains the prescribed terms as per s127(3) not s78 hence reconstructed documents given at the last minute surely will not do as it doesnt comply with the disclosure request still.

 

S.

 

Agreed

[banker_rhymes_with]

Hello Folks!

 

Just a comment on costs. The thing to bear in mind is that all Claims are Multi-Track until Track has been allocated.

 

Thus, even a small Claim that is simple and below £5,000 is Multi-Track until Claim, Defence and Allocation Questionnaires (AQs) have all been received by the Court and a Judge allocates the Claim to Track.

 

This can work in our favour. For example, if a bank fires off a naff and poorly pleaded Claim that is just a fishing exercise, and you send back a short two-line Embarrassed Defence, followed almost immediately by an N244 Application to have their naff Claim Struck Out, then it's still Multi-Track. You can submit a Bill of Costs, and claim for both Litigant in Person time costs at £9.25 an hour (2/3 cap relative to what a Solicitor would charge), and also your Disbursements (no cap, provided they are genuine).

 

A Hearing could well then take place to consider your N244 Application, and that could well happen before Track has been allocated, for the simple reason that the Judge cannot really allocate Track until he/she has seen the full Claim and full Defence. This can really see off a Claimant who has abused the system and stumbled into Court with their trousers down.

 

Now, in reverse if, say, the above disclosure issues came to a head before Track was allocated, and the Claimant sent in a Barrister at £2,000, and the Claimant won that round, then they could well get the £2,000 awarded, even if the Claim was then later allocated to the Small Claims Track. The point being that the disclosure issues could well be heard while the case is still in Multi-Track land.

 

Things like CPR 31.14 (once a Claim has been issued), can only be used in a Claim heading for the Small Claims Track, whilst that Claim has not yet been allocated to Track.

 

So, keep an eye on allocation, and use it to your advantage. Slip in a CPR 31.14 before Track and/or slip in an N244 Strike Out before Track, but only if you are Captain of your own Destiny, and understand what you are doing. Remember, this can work two ways, so use it carefully. Used to your advantage it can land the Claimant with a fat round of costs for being dull.

 

Cheers,

BRW

[nick20045]

can't agree that a solicitor is an "officer of the court" or that his main obligation is to the court not his client

 

quite the opposite i would say!

 

a lawyer has no obligation towards a court whatsoever, save to show it respect

Sorry but you are incorrect. That is why, for example, you may have to take the Oath but you will never see a solicitor taking an oath in a Court (unless as a witness and that might be bypassed as well).

[nick20045]

I do not know of any solicitor who would willingly face an inquiry into his/her conduct by the Law Society or the Solicitors Regulation Authority. Take a look at those sites. Most wither at the knees at the suggestion. The sanctions are indeed harsh for failure to comply.

 

regards

oilyrag

Sorry have to disagree with that one. YES they do not like the idea of being reported (that black note on their book I guess) BUT the awards (actually if any at all) are punitive even if found that have done something wrong. It is ONLY in extreme cases that a fair award can be awarded. What you will be told is "You must not expect the solicitor to give an excellent service but at least a reasonable service".

 

I will give you a complaint in short. A trust is made. 3 Trustees appointed 2 of which are solicitors and 1 is a layperson (but represented and advised by a solicitor). 2 to look after the interest of 50% of the trust (a property to be sold later on) 1 to look after her share of the property.

 

High Court order (trust). High Court order for example one of the conditions was that the property had to be kept in market conditions so when it is sold it will fetch market value. Property in time sold for two thirds market value (all properties round the area were fetching say in the £90,000 this property was sold for £60,000). Claim was it was not kept to market value and obtained best price.

 

2 Arguments: (1) The two trustees protecting the 50% should not have agreed to sell until property repaired and brought up to market value. Fair comment I would say. (2) The two trustees should have checked the charges to ensure all were fair and good.

 

Legal complaints awarded £2,000 damages of which £400 were wrongful charges applied and never found to be a mistake. So that makes it £1600 damages and £400 refund.

 

Property was resold 3 months later for £97,500 (while complaint with Legal Services was still ongoing).

 

Is that a fair compensation? Heck no. Not when the 50% of difference is £18,750 lost. Told that if want to contest have to apply for a High Court hearing which, most lay people cannot afford to do.

 

Another complaint:

 

Solicitor to do an oral examination and attachment to earnings gives an estimate of £500 to be paid in advance. Three months later comes up with an oral examination and a letter saying "Job done". Told "what about the attachment to earning? Job not done". A year letter complaint filed. Says need to do a new oral examination and then attachment to earnings. Wants another £250 (so 50% increase on estimate). Then advises to get an injunction to make a stop on proceeds as better. Authorised to make application. Judge throws it out of Court as wrong jurisdiction. Solicitor fired. Before he will release the file he wants............... wait for it........... £7500+. Complaint filed with Solicitors complaints. Did they make any offer for damages/neglect/professional negligence? No. The only thing that they agreed was that as he had never sent a rule 15 customer care letter I had the right to refuse to pay him the difference (as the only thing that was of value that really got was the oral examination and attachment to earnings). Did they even penalise him for having been stating the he "had never received any payments from the attachments" but later found to have been keeping the money for about a year instead of passing it on? Heck no. Just ordered to send the money to client.

 

Solicitors regulation authority? That one I do not know how they operate.

[diddydicky]

Sorry but you are incorrect. That is why, for example, you may have to take the Oath but you will never see a solicitor taking an oath in a Court (unless as a witness and that might be bypassed as well).

 

we agree to disagree then, i think