Dissecting the Manchester Test Case....

[brooooooooooce]

DD take your ribbing just not in a great mood tonight. Tried to chill (4 pints & 4 large VAT's is normally enough to chill me these days) but I don't want to enter the judge Waksman / Humbleman / & others lottery without someone in my corner who knows what he is doing - cos I don't. And I wonder how many other CAGers truly know their onions and even if they do whether the outcome would have been different it they were'nt a LIP.

[brooooooooooce]

DD I want someone on my side who will take my 120 quid and tell me something I don't know.

[PriorityOne]

DD take your ribbing just not in a great mood tonight. Tried to chill (4 pints & 4 large VAT's is normally enough to chill me these days) but I don't want to enter the judge Waksman / Humbleman / & others lottery without someone in my corner who knows what he is doing - cos I don't. And I wonder how many other CAGers truly know their onions and even if they do whether the outcome would have been different it they were'nt a LIP.

 

With all due respect Broooo....ce, you have 57 posts to your name. No-one would expect you to know what to do, but the biggest favour you could give yourself right now is to get reading about the experiences of ordinary LIPs on here and how/why they won....instead of handing your life over to someone in a nice suit in the belief (often misguided) that you stand a better chance of success.

[angry cat]

by PriorityOne:

 

"it's not always necessary to make a Subject Access Request... I've only ever made one and that was only because the DCA was telling lies. I managed to catch the DCA out quite nicely this way...."

 

IMO, making a SAR is an invaluble information tool; how else can one find out what has transpired over the years?

 

by PriorityOne:

 

No. Only if a creditor/DCA starts court proceedings. They often don't and none of mine have. One was going to but called off their sols. after I pointed out that they had nothing remotely enforceable in a court."

 

I was referring to CPR pre-action 4.6© and;

CPR Part 31.16.

 

by PriorityOne:

 

I don't really see why anyone would necessarily need professional help... unless they had a morbid fear of entering a court and talking in front of a Judge."

 

This is nothing to to with some kind of paranoia, rather more, reaching the stage where they realise that, they are out of their depth.

 

by PriorityOne:

 

People either have the choice to defend or the choice to do nothing and experience a CCJ by default."

 

Of course, it would be extremely foolish indeed to do nothing, whereby the claimant obtains a judgement by default.

 

People must always defend/counter-claim if they have a valid defence/counter-claim.

But, this can only be taken so far, after that point is reached they must obtain proper advice and representation.

 

There is so much help out there, especially if one is in danger of losing ones home!

 

I am not nit picking, just speaking the plain truth (as I see it)

[brooooooooooce]

Hi PO. Yes I have less than 1% of your posts and am something of a virgin. I have read a number of the threads and what I'm trying to do is work out a strategy that will work for me. I think (I know) the LIP avenue is not for me.

 

I want to go down the route of agreeing lowish full & final settlements as I think this will be best for me. Without giving you too much detail I have a long history of mental health problems and haven't worked since January 2003 - in the words of my pyschiatrist I am 'burnt-out'. I am struggling to deal with some of the BS I've been getting from my CCC's - reminds me too much of my former profession.

 

I'd just like someone, a solicitor or other, to deal with some of the crap if and when it hits.

[angry cat]

With all due respect Broooo....ce, you have 57 posts to your name. No-one would expect you to know what to do, but the biggest favour you could give yourself right now is to get reading about the experiences of ordinary LIPs on here and how/why they won....instead of handing your life over to someone in a nice suit in the belief (often misguided) that you stand a better chance of success.

 

 

 

Agree, with P1,

 

you will not obtain the correct advice from your regular high street solicitor.

 

Read as many threads as you can;

learn as much as you can;

keep reading...

 

without a doubt, there is much good advice on the forums.

[PriorityOne]

 

There is so much help out there, especially if one is in danger of losing ones home!

 

I am not nit picking, just speaking the plain truth (as I see it)

 

Losing your home is way, way down the track AC. A consumer would need to go to court and get a CCJ against him first for a start. All this thread seems to be doing lately is causing waves of panic amongst various people who cannot seem to be bothered to read around the site. Imagination then runs riot.

 

I was threatened with a property charge myself nearly 3 years ago, with sols. on my back. All legal action was dropped before it got started because they had no enforceable docs. to go into court with. This was under CCA, 1974... yes... but under CCA, 2006.... there are other ways of defending your position without hiring someone else to do it for you.

 

Read. Learn. If you don't know the answers, then read some more. Ask. This is a self-help forum. If people prefer to go to solicitor, then it remains their choice... but if that's the case, then why waste their time on here anyway?

 

[PriorityOne]

Hi PO. Yes I have less than 1% of your posts and am something of a virgin. I have read a number of the threads and what I'm trying to do is work out a strategy that will work for me. I think (I know) the LIP avenue is not for me. Ok... but you seem to be writing it off before trying it out....

 

I want to go down the route of agreeing lowish full & final settlements as I think this will be best for me. It's the best for everyone.... the problem is getting a creditor/DCA to play ball with you. Without giving you too much detail I have a long history of mental health problems and haven't worked since January 2003 - in the words of my pyschiatrist I am 'burnt-out'. I am struggling to deal with some of the BS I've been getting from my CCC's - reminds me too much of my former profession. That must be very hard for you and I do sympathise. However, there are times in life when your back is far up the wall, that you can't press yourself any further into it. I think you know what I mean.... so assuming you can't afford to hire someone to help you, are you saying that you wouldn't have a go at defending yourself?

 

I'd just like someone, a solicitor or other, to deal with some of the crap if and when it hits.

 

We'd all like someone else to carry our loads Broooo... ce, but my reality has been that no-one ever has. Your reality may be similar and you need to be ready for that if it happens.

 

In retrospect, dealing with creditors/DCAs has been a very steep learning curve, but being in control of your own situation has its plus points. It also makes you much stronger in the long term...

 

[brooooooooooce]

Sadly I just can't cope with stress anymore. Used to love it - the more the better! But that day when my shoelaces snapped - never got over it.

[basa48]

One of the problems I feel is just how to present our case, either in documents before trial and then at trial itself.

 

It's OK knowing what your arguments are, but for instance I've read that chapter and verse in a WS response to an initial claim is not only unnecessary but gives the claimant all the ammo to pursue their case knowing what your defence is going to be.

 

Then again a simple "the defendant denies the debt 'cos they claimant has no enforceable agreement" is not really up to it is it??

 

It's knowing how and when to state our case is the problem. How do we format our replies at each stage.

 

I also fear the sharp QC who drags in peripheral arguments of common law or picks out obscure cases that would sway a malleable, anti LiP judge.

[PriorityOne]

Sadly I just can't cope with stress anymore. Used to love it - the more the better! But that day when my shoelaces snapped - never got over it.

 

 

Ok.... I hear you.

 

If finding a reputable sol. is the best way forward for you at this point in time, then that's fine.

 

Read around the site anyway though....

[basa48]

We'd all like someone else to carry our loads Broooo... ce, but my reality has been that no-one ever has. Your reality may be similar and you need to be ready for that if it happens.

 

In retrospect, dealing with creditors/DCAs has been a very steep learning curve, but being in control of your own situation has its plus points. It also makes you much stronger in the long term...

 

 

It's also a necessity for anyone like me who has no disposable income to throw at solicitors who, from experience, only like to spread out a case a far as it will stretch (appeal anyone?) to up the bill. They also usually spend about half an hour reading your notes and then ignore them thinking an LiP can't know more than he does.

 

I'm finding the more I learn, the less I know (or learn that I know so little).

[brooooooooooce]

PO Thanks for your posts. Don't misunderstand me - I want to go as far as I am able and I want to use CAG and all its great posters / resources to do that - I just fear I will reach a point where I won't be able to cope and need a parachute. The only one I can think of is to use a solicitor (a 1st rate one who knows his arse from his elbow!!) because if I can't do it myself, who else will?

[PriorityOne]

One of the problems I feel is just how to present our case, either in documents before trial and then at trial itself.

 

It's OK knowing what your arguments are, but for instance I've read that chapter and verse in a WS response to an initial claim is not only unnecessary but gives the claimant all the ammo to pursue their case knowing what your defence is going to be.

 

Then again a simple "the defendant denies the debt 'cos they claimant has no enforceable agreement" is not really up to it is it??

 

It's knowing how and when to state our case is the problem. How do we format our replies at each stage.

 

I also fear the sharp QC who drags in peripheral arguments of common law or picks out obscure cases that would sway a malleable, anti LiP judge.

 

Everyone is presuming that it will go to court.... yet many get dropped long before this ever happens. There are stages.

 

My own strategy has always been to take one letter at a time.... I really did believe that HFC would have issued papers out of all I was dealing with, but the reality of that one was that they simply got fed up with corresponding with me because they were pulled up over everything. There were 3 complaints going at one point.... just before they sold it to a DCA.

 

I think if people are complacent, then creditors/DCAs will go forward with court action because they think those people are easy CCJs (so to speak). Once you start playing a little letter tennis with them..... far from being pointless (up to a point).... it lets them realise that you're not a complete ignorant oaf and they need to be careful what they put on paper to you.

 

I do appreciate that all of this is un-nerving for most people.... as it was for me when I began my journey.... but don't just assume that it'll all end up in a courtroom because there are many, many cases on here that haven't been anywhere near.

 

[angry cat]

All cases are different; it is not a situation of, one size fits all.

 

Most certainly, I was not attempting to cause waves of panic to some members.

[angry cat]

PO Thanks for your posts. Don't misunderstand me - I want to go as far as I am able and I want to use CAG and all its great posters / resources to do that - I just fear I will reach a point where I won't be able to cope and need a parachute. The only one I can think of is to use a solicitor (a 1st rate one who knows his arse from his elbow!!) because if I can't do it myself, who else will?

 

It may be helpful, if you start your own thread;

I note that to date you have not started one!

 

We may be able to assist you.

[basa48]

Everyone is presuming that it will go to court.... yet many get dropped long before this ever happens. There are stages.

 

My own strategy has always been to take one letter at a time.... I really did believe that HFC would have issued papers out of all I was dealing with, but the reality of that one was that they simply got fed up with corresponding with me because they were pulled up over everything. There were 3 complaints going at one point.... just before they sold it to a DCA.

 

I think if people are complacent, then creditors/DCAs will go forward with court action because they think those people are easy CCJs (so to speak). Once you start playing a little letter tennis with them..... far from being pointless (up to a point).... it lets them realise that you're not a complete ignorant oaf and they need to be careful what they put on paper to you.

 

I do appreciate that all of this is un-nerving for most people.... as it was for me when I began my journey.... but don't just assume that it'll all end up in a courtroom because there are many, many cases on here that haven't been anywhere near.

 

 

Indeed, I've seen many posts from CAGgers who've been playing 'letter tennis' for years. I've been at it a year! And I'm in no way unnerved.

 

It is a fact my earlier responses were perhaps a little naive, but I'm learning all the time. My usual gambit now is to explain a little rather than a lot. Tell 'em nothing they don't need to know, until it really matters, i.e. to the judge.

[Dotty50]

It may be helpful, if you start your own thread;

I note that to date you have not started one!

 

We may be able to assist you.

 

Hi AC,

 

Already suggested!

 

See posts 1183,1190,1191,1193 but most importantly 1198!

[diddydicky]

PO Thanks for your posts. Don't misunderstand me - I want to go as far as I am able and I want to use CAG and all its great posters / resources to do that - I just fear I will reach a point where I won't be able to cope and need a parachute. The only one I can think of is to use a solicitor (a 1st rate one who knows his arse from his elbow!!) because if I can't do it myself, who else will?

 

ok brooooooo joking apart this is the way things are:-

 

the legal profession can be likened to the the medical profession

 

it is so vast that it has been necessary for legal bods to "specialise"

 

the days of the "jack of all laws" high street family solicitor have all but gone save for the most basic of disputes

 

the problem is that the area of consumer law, and more specifically disputes centred around the CCA didnt (at the time) attract much legal aid and also as it is now- doesn't pay very well as far as the legal profession is concerned.

 

the result is that not many legal bods have specialised in this area

 

the problem then of course is that when you go to your local high street solicitor , he is almost as wise on the subject as you are, and in order not to drop himself in the doo doo will play safe and suggest you might be on dodgy ground.Of course he would have the not inconsiderable advantage of the proceedures involved and the court process, and of course although he would more likely than not be well capable of handling himself in court, he would STILL need guidance as to the arguments to use.

 

My earlier cheeky remark is far more pertinent than it seemed for if you type into your browser no win no fee consumer credit lawyers

 

or CFA in consumer credit, several lawyers, including direct access will pop up out of the ether

 

further although peeps are not allowed to adverise on the forum-

 

if you read, say the legal successes threads, there is nothing stopping you from pm'ing the thread starters and getting details of specialist solicitors in that way

 

that is why, through trial and error and boning up on other peoples threads , you can gain the information and contacts you need right here at no charge.

 

as AC has said , even if you grasp the general principles if you dont feel comfortable or able to present your case in a courtroom scenario and feel out of your depth - then clearly legal representation is advisable.

 

a further benefit of course is that if you are offered CFA terms it is usually a good indication that you have a sound case

 

 

a local non specialist solicitor will not have the confidence in his knowledge of the subject to make that judgement and will err on the side of ultra caution

 

As far as knowledge is concerned, it is my own opinion that it cannot be acquired by an odd appearance or two on this forum

 

people serious about a DIY job must (IMO) expect to spend very many hours on this forum reading reading and re reading

 

there is absolutely nothing wrong for people to take the attitude that they "can't be arsed to commit themselves to that much research" to which the answer is don't attempt to DIY

 

 

hope that helps

Edited January 29, 2010 by diddydicky

[nick20045]

Expanding on what diddydicky has said, every solicitor is bound to advise their client (or as called "the retainer") on all pitfalls and hidden pitfalls. This case law from the Court of Appeal refers to buying a property. The buyer was experienced in negotiations as to property but was not experienced in law. IF you contact a solicitor do NOT go asking for what are the pitfalls and what are the hidden pitfalls. Just ask them to advise whether it is worth proceeding or not. It IS their duty to tell you what they think. Hence, if they do not advise you of these you can actually sue them for Professional Negligence.

 

Reeves -v- Thrings & Long [1996] PNLR 265

 

1996

CA

Sir Thomas Bingham MR, Simon Brown LJ, Hobhouse LJ Legal Professions, Professional Negligence

 

Solicitors were sued for failing to advise their client fully as to the wisdom of the transaction he was entering into. The client was an experienced businessman. Held: (Hobhouse LJ) "Once Mr Reeves was told what the legal position was, he required no further advice from Mr Sheppard in order to evaluate its implications and commercial significance. Mr Reeves was an experienced businessman and under no disability." (Simon Brown LJ) "I cannot accept that Mr Sheppard was under any further duty to his client, any duty to advise him upon the commercial implications or importance of the access provision or to warn him against the risks that it might pose for the future development, operation or sale of the hotel. These matters are well within the client's competence to appreciate and evaluate for himself, business considerations rather than legal ones." (Sir Thomas Bingham MR, dissenting) "It will always be relevant to consider what the solicitor is asked to do, the nature of the transaction and the standing and experience of the client. Thus on the facts here Mr Sheppard was not retained to advise on the wisdom of offering the price Mr Reeves had informally agreed to pay … But it was in my view Mr Sheppard's duty to draw Mr Reeves' attention to any pitfall, particularly any hidden pitfall, the contract might contain."

[paulwlton]

We mustn't forget that recent cases including Mcgufick were decided in the high court which does not set precedent and are subject to challenge....I assume this will be the case?

 

PW

[brooooooooooce]

Hello DD, Nick, PO. Thanks for all your advice. I'll see if I can suss out how to start my own thread.

 

I have been on this now since July but I started out using a different forum. I've only recently moved over to CAG because I didn't feel 100% about some of the posts - a bit too pro the CCC's. I can assure (you can ask my wife!) that I have spent many, many hours trawling threads on CAG and other sites. But what I have come to realise is there isn't a one size fits all approach but that each person has to adopt a strategy that best fits their circumstance / abilities.

[nick20045]

We mustn't forget that recent cases including Mcgufick were decided in the high court which does not set precedent and are subject to challenge....I assume this will be the case?

 

PW

As far as I know it is supposed to be in the process of being appealed. Then again I hope it is not the same solicitor that is doing it. What was his name? IF I remember correctly Mr Moron.

 

As to setting precedent, even in the judgement it says that his solicitor says that "it is not the best of cases to take as a test case". BUT I guess the judgement favours the OFT the banks and the DCAs so they will most probably use it.

[lookinforinfo]

We mustn't forget that recent cases including Mcgufick were decided in the high court which does not set precedent and are subject to challenge....I assume this will be the case?PW

 

I don't think that is quite right Paul. I think the Mcguffick and Carey cases have set a precedent in the High Court. Other Judges in the High Courts will tend to go along with the decisions of the two previous judges if only to prevent confusion in future cases.

Judges in the High Court cannot now overrule Judge Waxmans

decisions [that can only be done by higher courts] but paradoxically they are not obliged to follow his decision. So by

explaining in which way their case is distinct from the Carey one,

a Judge could circumvent the earlier decision without appearing to overrule it.

[angry cat]

I was under the impression that the case: Emma Carey V HSBC, was proceeding to full trial!

 

Obviously, I do not refer to Carey et al.