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Fluffystuff's OH v HFC


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Thanks CB - what are the chances of them responding before the SJ hearing, are they bound to, as you say, it's something they intend to rely on?

We all know Restons have a habit of leaving everything to the last second, that's if they respond atall!

Notwithstanding the fact that I sometimes ramble and I'm such a worrier, all postings are made with the best intent and entirely without prejudice.

You are welcome to use any information you may find here entirely at your own risk. Please do not hold it against me! :p

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Thanks CB - what are the chances of them responding before the SJ hearing, are they bound to, as you say, it's something they intend to rely on?

We all know Restons have a habit of leaving everything to the last second, that's if they respond atall!

 

They have 7 days to respond.. so the quicker you get it in the post the better.

 

When is the hearing ?

 

If they dont respond, or too late, then you should be able to make this known to the judge. Perhaps obtain an adjournment in order for you to study the document they are going to rely on. :)

 

One assumes that as it is a recent decision, it is not available to the wider public just yet.

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SJ hearing on Wednesday!

Notwithstanding the fact that I sometimes ramble and I'm such a worrier, all postings are made with the best intent and entirely without prejudice.

You are welcome to use any information you may find here entirely at your own risk. Please do not hold it against me! :p

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SJ hearing on Wednesday!

 

ah... are they accepting service of documents via fax or email ? if so, email/fax them with the request.. give them a temporary email address in order for them to respond.

 

Other than that, I dont know what you can do.

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Wondering aloud if PT might be able to assist here?? :idea:

Notwithstanding the fact that I sometimes ramble and I'm such a worrier, all postings are made with the best intent and entirely without prejudice.

You are welcome to use any information you may find here entirely at your own risk. Please do not hold it against me! :p

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Fax them & require copy of Judgment by return prior to hearing on Wednsday if they are seeking to rely on it . Tell them if they don't you will ask judge for adjournment so you can take legal advice on it

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In the absence of any alternative Josie, I think that's what we'll have to do.

 

Does this have to be in the form of a CPR Part 18 request as CB has suggested or just a letter?

 

I note that a request for adjournment should be submitted to the court at least 3 days prior to hearing and with the agreement of both sides. Obviously we cannot meet that requirement so assume a request to the judge on the day if Restons produce this new 'evidence'.

 

Also, should I send them a copy of the D/N envelope or should I stick with the stance that it's for them to prove 1st class service as they have sworn?

Notwithstanding the fact that I sometimes ramble and I'm such a worrier, all postings are made with the best intent and entirely without prejudice.

You are welcome to use any information you may find here entirely at your own risk. Please do not hold it against me! :p

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If they have stated in witness statement 1st class service then you need to serve further statement with copy of your envelope showing second class post. Fax it.

 

The case they refer to is being appealed. I'm sure if the case is as good for Restons as they think they will happily disclose a copy by return or not if it isn't. If they don't provide you with copy and then ambush in court you ask DJ for adjournment because you need to take time to digest it & seek legal advise. Also tell DJ that you understand case is currently subject to application for permission to appeal to Court of Appeal

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If they have stated in witness statement 1st class service then you need to serve further statement with copy of your envelope showing second class post. Fax it.

 

So..............set out as an addition to my original WS?

 

The case they refer to is being appealed.

 

Are you able to disclose your source?

What form should the request for copy of Judgement take?

Notwithstanding the fact that I sometimes ramble and I'm such a worrier, all postings are made with the best intent and entirely without prejudice.

You are welcome to use any information you may find here entirely at your own risk. Please do not hold it against me! :p

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Restons state on their letterhead they -

"are unable to accept service of documents or proceedings by Fax or Email."

Notwithstanding the fact that I sometimes ramble and I'm such a worrier, all postings are made with the best intent and entirely without prejudice.

You are welcome to use any information you may find here entirely at your own risk. Please do not hold it against me! :p

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Restons state on their letterhead they -

 

"are unable to accept service of documents or proceedings by Fax or Email."

 

Just checked an old Rectums letter of mine, so unless things have changed recently, they actually say; "We do NOT accept service of documents or proceedings by Fax". Just me being pedantic ;)

 

But isn't that unreasonable behaviour?

 

However, more to the point, there is no mention of email in the above statement. ;)

 

Cheers

Rob

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Rob, just checked letterhead.

 

Hands up to my typo - it is "do not accept" but now definately states fax & e.mail.

Notwithstanding the fact that I sometimes ramble and I'm such a worrier, all postings are made with the best intent and entirely without prejudice.

You are welcome to use any information you may find here entirely at your own risk. Please do not hold it against me! :p

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Rob, just checked letterhead.

 

Hands up to my typo - it is "do not accept" but now definately states fax & e.mail.

 

OK, sorry about that! ;)

 

Cheers

Rob

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No worries Rob, all comments are greatfully received. :smile:

Notwithstanding the fact that I sometimes ramble and I'm such a worrier, all postings are made with the best intent and entirely without prejudice.

You are welcome to use any information you may find here entirely at your own risk. Please do not hold it against me! :p

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Thanks for the PM. That's an interesting development then?

 

Think it's absurd that a judge can push aside the very clear intention of parliament in the case they quoted - good it's being looked at or it makes a mockery of the entire system we all rely on.

 

The law is quite clear, 14 days must be observed before the creditor is even entitled to take the next step. I suspect the decision by this judge was one of personal distaste for those 'seeking to avoid their financial responsibilities yaddah yaddah' and not one founded on well recognised and publicised legal principle itself.

 

The proverbial 'judge lottery' in all its glory.

 

I would certainly seek disclosure from Restons as they can't spring stuff on you, you have every right to ensure you are fully prepared come court day so if they refuse make sure the court is alerted to their underhanded efforts to off-balance you.

 

As for the postage issues can't recall the ins and outs of this thread but if you do have the envelope showing 2nd class service and Restons have sworn service was otherwise it will be Restons on the day who will look foolish. You have infomed them of the reality of the dispute, which is all you are expected to do. If they wish to play games thats entirely their choice.

 

Ultimately you are relying on sound legal principles long established in consumer credit law and should also have case law to support your argument that it is the creditor who ignored CC law and an invalid DN is fatal to their claim to seek recovery of sums not yet payable (the full balance).

 

In comparison Restons are throwing all their eggs into the basket of a recent case that quite simply appears to be flying in the face of well founded parliamentary intention and should be successfully appealed.

 

We all know the role of a judge is to apply the law to a dispute irrespective of personal opinion or preference - not to make the law up as they go along to suit the business demands of reckless and arrogant financial corporations who are now getting their fingers burnt.

 

I say stick with it. Make Restons provide you with whatever they intend to rely on and trust in the simple fact that it is you who has been incorrectly processed by the creditor irrespective of any gain you may have enjoyed and insist the court gives no weight to arguments of 'de minimus'.

 

14 days is 14 days and for very good reason :D. If the judge was to accommodate such an argument make sure you very politely request that he or she details that decision and the thinking behind bypassing the 14 day requirement in order to ensure your appeal can proceed with complete clarity.

 

Given the time limitations and the eventuality that Restons will not provide you with this info in time perhaps a call to the court would result in a suggestion as to how you can best deal with the late provision of Restons argument.

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Just checked on LexisNexis and can't find any reference to Amex v Brandon. Is this just a case that Restons acted for Amex and rammed through an ill prepared judge?

 

The change from 7 to 14 days was in the body of the 2006 Consumer Credit Act (s 14). In other words, Parliament determined that this was so important that they didn't leave it to secondary Regulations or to a schedule of the Act. They put it up front and very visible and IMO that makes it quite the opposite of 'de minimis'.

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14 days is 14 days and for very good reason :grin:. If the judge was to accommodate such an argument make sure you very politely request that he or she details that decision and the thinking behind bypassing the 14 day requirement in order to ensure your appeal can proceed with complete clarity.

 

And if Parliament were to have meant 13 day or 11 days then they would have specifically said so.

 

In any event, they felt it was such an important part of the procedure.. that they increased from 7 days to 14 on 19th December 2006

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Advice & opinions given by citizenb are personal, are not endorsed by Consumer Action Group or Bank Action Group, and are offered informally, without prejudice & without liability. Your decisions and actions are your own, and should you be in any doubt, you are advised to seek the opinion of a qualified professional.

 

PLEASE DO NOT ASK ME TO GIVE ADVICE BY PM - IF YOU PROVIDE A LINK TO YOUR THREAD THEN I WILL BE HAPPY TO OFFER ADVICE THERE:D

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Consumer Credit Act (1974) and related Regulations

Comments from x20

If a default notice is prepared and delivered so as to create a situation where less than 14 days is expressed to be available for the debtor to meet the requirements of the DN, the DN is ineffective. The DN is a powerful tool in the creditor's armoury though it was created within a statutory framework designed to provide consumer protection. As such the DN must pass the requirements of section 88 Consumer Credit Act 1974.

 

The period of 14 days is an express requirement of section 88(2). Once upon a time it said not less than 7 days was required. Then in late 2006 Parliament decided 7 days was insufficient and decided that the period of time should be not less than 14 days. If in 2006 Parliament had thought that 13 days or less was required, Parliament would have said so. When Parliament fixed the period as one which 'must not less than 14 days' that is what it meant and it is impossible to imagine in law that a DN is effective where the period is less than 14 days.

 

I am afraid this smacks of an example of a DJ's ignorance, failure to grasp the law or simply not being directed to the specifics of the statute. He might be on the ball when it comes to Landlord and Tenant work and if that were so I doubt he would, for example say a Landlord's section 21 Housing Act 1988 notice was effective where 6 weeks rather than two calendar months notice was given to the tenant.

 

Wherever a DJ is leaning towards declaring a DN effective where it plainly is not, let him know (as politely and deferentially as humanly possible) that if he carries on leaning that way, you will require him to set out his reasoning as part of his judgment and that you want him to spell out his reasoning so that it forms part of the record for appeal purposes. That should sharpen him up a bit.

 

x20

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2: Does your Bank play fair - You can force your Bank to play Fair with you

3: Banking Conduct of Business Regulations - The Hidden Rules

4: BCOBS and Unfair Treatment - Common Examples of Banks Behaving Badly

5: Fair Treatment for Credit Card Holders and Borrowers - COBS

 

Advice & opinions given by citizenb are personal, are not endorsed by Consumer Action Group or Bank Action Group, and are offered informally, without prejudice & without liability. Your decisions and actions are your own, and should you be in any doubt, you are advised to seek the opinion of a qualified professional.

 

PLEASE DO NOT ASK ME TO GIVE ADVICE BY PM - IF YOU PROVIDE A LINK TO YOUR THREAD THEN I WILL BE HAPPY TO OFFER ADVICE THERE:D

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Just checked on LexisNexis and can't find any reference to Amex v Brandon. Is this just a case that Restons acted for Amex and rammed through an ill prepared judge?

 

Just done a very quick search and if I'm not mistaken, it appears that the Judge is a personal injury specialist and sits in the Welsh courts!

Notwithstanding the fact that I sometimes ramble and I'm such a worrier, all postings are made with the best intent and entirely without prejudice.

You are welcome to use any information you may find here entirely at your own risk. Please do not hold it against me! :p

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Just done a very quick search and if I'm not mistaken, it appears that the Judge is a personal injury specialist and sits in the Welsh courts!

 

There we go then. Butcher doing the plumbing :p.

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There we go then. Butcher doing the plumbing :p.

 

 

:)

Appreciate all your comments, now need to draw up the action plan.

Notwithstanding the fact that I sometimes ramble and I'm such a worrier, all postings are made with the best intent and entirely without prejudice.

You are welcome to use any information you may find here entirely at your own risk. Please do not hold it against me! :p

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Action plan is:

 

1. Send copy of d/n envelope to Restons as they have requested.

 

2. Request Restons provide details of this new case they seek to rely on, including confirmation of any appeal. ( Just letter or CPR 18?)

 

3. Draft 2nd WS disclosing envelope and also todays letter from Restons revealing new 'evidence'.

 

Restons communication to be recorded/special delivery. Copies to court by hand.

 

 

If anyone is able to add anything further, please let me know. :)

Notwithstanding the fact that I sometimes ramble and I'm such a worrier, all postings are made with the best intent and entirely without prejudice.

You are welcome to use any information you may find here entirely at your own risk. Please do not hold it against me! :p

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I am very new to this, but if the Claimant's witness statement says the DN was sent First Class, isn't it down to them to prove it if challenged? The onus is not on the defence to prove otherwise, is it? Just to pose the challenge to the WS.

 

Experts please comment!

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I am very new to this, but if the Claimant's witness statement says the DN was sent First Class, isn't it down to them to prove it if challenged? The onus is not on the defence to prove otherwise, is it? Just to pose the challenge to the WS.

 

Experts please comment!

 

You're quite right, but it's always good to be able to prove to the court that Rectums are allegedly lying through their back teeth on these occasions. :rolleyes:

 

It throws doubt upon them, and if you show that they're making false statements on one matter who's to say there aren't other porkies involved?

 

cheers

Rob

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Rob, just checked letterhead.

 

Hands up to my typo - it is "do not accept" but now definately states fax & e.mail.

i can just hear it now

 

Judge: so you say you recieved the fax at your offices but because of your policy you didnt read it?

 

Restons: no your honour, we decided that we would just ignore it.........

 

 

seriously, they would get hammered for that, just because they do not want service by fax, they really would be in difficulty with a judge in a case with a LIP

 

I agree with Josie that you must seek an adjournment AND COSTS of the adjournment due to their attempts to ambush:)

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