RBS credit card claim won now new claim after sale by OC

[hammyhound]

Thanks Donkey, thought I couldn't appeal and if I could it could end up costing thousands although I would rather pay a barrister than pay the claimants who I know how are utter slime.

 

The judge wouldn't listen regarding the second DN as I had only briefly mentioned it in my witness statement I weighed heavily on the discontinuance. I received the skeleton argument 1 day before the hearing stating "this is not discontinuance". The skeleton argument just basically was backing up what the barrister thought about this not being discontinuance.

 

Maybe what I should have done was explain to the judge I had not had time to review the skeleton argument and that we should adjourn.

 

HH

[DonkeyB]

Given the amounts involved, I would suggest you seek proper legal opinion on this. Ther's a lot at stake.

[hammyhound]

Thanks Donkey, I just thought I could not appeal a judgment. I have sent in a variation of judgment to instalments, would this go against me if I sought the help of a barrister to appeal.

 

Can anyone clarify can I appeal a judgment

 

HH

[pt2537]

hell yes you can appeal

 

CPR 52 deals with appeals

http://www.justice.gov.uk/civil/procrules_fin/contents/parts/part52.htm

[hammyhound]

Thanks PT, I will set up a meeting with a barrister for this week. I would rather pay his costs then pay theirs. What have I got to lose, will hand over my file to him to peruse and see if he thinks it is worth appealing.

 

Thank you for your help.

 

HH

[pt2537]

Do you have counsel?

 

The reason i ask is you may or may not be aware, but unless the barrister is direct access, then you will not be able to instruct him. He iwll need to be instructed by a solicitor

 

Also, Barristers are very much like doctors, you have a heart surgeon for heart work, a brain surgeon for brain work, etc, Counsel are much the same, some specialise in Criminal law, others do Conveyancing, some do planning law etc so finding the right barrister is extremely important.

[hammyhound]

PT, I dont have direct access but I do know of one barrister who my OH knows locally and is very famous in a certain MBNA case. I think he may be very busy though.

 

So do I have to instruct solicitors first who will then instruct a barrister?

 

HH

[DonkeyB]

Yes, best to instruct a solicitor, but you would have to ask him to approach this particular barrister.

[Peterbard]

Hi

Hope you dont mind me butting in here.

But before you start spending money on solicitors or barristors, it would be a giood idea i think to clarify exactly what it is you are appealing, i mean what precisley will be the grounds for your appeal.

 

Which aspects of the judgement do you dissagree with, which aspects of law.

I am not saying that you do not have any grounds, i am just saying it may be a good idea to clarify the issues that you have a chance of winning before you go any further.

 

Peter

[DonkeyB]

The judge allowed them to relitigate as they had not, they believed, issued a compliant DN before termination. Fair enough.

 

But when the new 'compliant' DN was shown by the OP to be incorrect, the judge accepted the claimant’s assertion that it was a de minimis issue (it wasn’t before!) and allowed the summary judgment. The defendant had properly mentioned the incorrect new DN in his WS, but the judge dismissed the facts.

 

The argument would be that the judge was wrong to allow the judgment on the back of an incorrect DN (given this was why they withdrew in the first place) as per Henderson v Link.

 

Hammy’s decision is to decide whether it’s likely – if an appeal wins – that they would not simply go away, reissue a DN and come back again. The fact that a judgment is now in place makes me think the third bite of the cherry might appear vexatious.

[DonkeyB]

Peter, do you have any experience of the possible issues of estoppel or res judicata mentioned in this case?

 

I’m sure the judge got it right as the previous case was halted by a consent order (albeit after the OP had filed a defence), rather than by a discontinuance.

 

But there’s a paradox, which I mentioned earlier. The facts of the case – ie. the pleadings of the PoC – must have been exactly the same, ie. default notice served, terminate, sue – it’s just that the account wasn’t actually terminated first time around, but this does not change the facts of the claim. So the renewed PoC is exactly the same, based on the same ‘facts’.

 

A bit off the wall, I know, as a theory. But if the claimant were to claim that the facts of the case have changed, surely the PoC would have to be different? After all, it’s only the PoC that the defendant can respond to.

 

I think the error was in accepting a consent order.

[Peterbard]

Hi

SO the issues are

A is the time issue on the default notice likely to be decided as critical to the creditors case and if it is can the creditor represent yet again.?

 

Peter

 

 

 

B

[Peterbard]

Peter, do you have any experience of the possible issues of estoppel or res judicata mentioned in this case?

 

I’m sure the judge got it right as the previous case was halted by a consent order (albeit after the OP had filed a defence), rather than by a discontinuance.

 

But there’s a paradox, which I mentioned earlier. The facts of the case – ie. the pleadings of the PoC – must have been exactly the same, ie. default notice served, terminate, sue – it’s just that the account wasn’t actually terminated first time around, but this does not change the facts of the claim. So the renewed PoC is exactly the same, based on the same ‘facts’.

 

A bit off the wall, I know, as a theory. But if the claimant were to claim that the facts of the case have changed, surely the PoC would have to be different? After all, it’s only the PoC that the defendant can respond to.

 

I think the error was in accepting a consent order.

 

HI

No experiance of either of those only an understanding i think of how they work.

But wern't these dissregarded in this case because the action had not been discontinued. Is this also part of the appeal?

 

Peter

[DonkeyB]

Don’t ask me – I’m only looking at what happened and making suggestions.

 

I think I summarised my opinion with this point:

 

Hammy’s decision is to decide whether it’s likely – if an appeal wins – that they would not simply go away, reissue a DN and come back again. The fact that a judgment is now in place makes me think the third bite of the cherry might appear vexatious.

[DonkeyB]

Please also note that Hammy has not yes stated on what grounds there might be an appeal, and neither has anyone else bar me. All that has been mentioned about an appeal so far is my allusion to one, Hammy’s surprise that an appeal was possible, pt2537’s clarification of the fact that it is possible. We await Hammy’s response.

[hammyhound]

Thank you both for helping me on this one.

 

Donkey you have clarified it correctly.

 

My error was signing the consent order as I now know then it could possibly have meant that they would have lost in the first proceedings. The Judge said "you must have known they had not sent a DN as you mentioned it in your original website defence" I did not I said it could quite possibly be invalid.

 

PT mentions in a post somewhere that issue estoppel comes into action when a claimant reissues even if it is by consent - but I cant find the bloody thing and I cant find the case law.

 

Donkey regarding the appeal, yes I think you are right they could just go away and come back with a new DN. They say they don't have to terminate so I assume they can just reissue time and time again.

 

HH

[Peterbard]

HI

So As said the issues as far as i can see are , is the default gong to stand.

In my opinion it depends on the nature of the deffect, if it is a time ellement dispute , then did the poceedings actuially commence within the 14 days i am not talking about the date on the termination notice i am talking about the actual court proceedings, if not i do not think this will present sufficiant predjudice to defeat the claim.

 

If the DN is found to be defective could the reissue be vexatious, i think that the creditor would be considered as having a "reasonable chance of success" in reissuing a claim. There is nothing in the legislation that says he cannot and no one ii take it is disputing the presense of the debt.

Pete

[DonkeyB]

I think what Peter’s suggesting is that you need to clarify these issues and get chapter and verse on the likelihood of an appeal succeeding, and also look at what might happen after this, and I would agree.

 

Maybe if your wife’s barrister friend is a friend rather than acquaintance, some informal discussion may be possible. There are lots of routes worth exploring.

 

There are other things you can do such as request a transcript of the hearing so you can be sure why the judge did what he did – to legally trained ears, the judgment may mean something slightly different.

 

But all these things will cost money. What you don’t want to do is compound the problem through chasing an appeal when there may be little chance of success, or where the claimant may simply reissue again (if they can show they not being vexatious as well as incompetent).

 

In that respect, the choices are yours.

 

When I get time I’m going to read through your whole thread again, and your other thread. We’ve all learned a lot, and there have been a few judgments relevant to your case since your problems started.

[DonkeyB]

Sorry Peter, posts crossed.

[hammyhound]

Thank you both for your invaluable time. It is very much appreciated.

 

Just another little point but I dont know what bearance it would have - They sent the consent order to me on 29th April and told me to send it back before 4th May as in their words the CMC was 2 days later which would incur further costs. It was sealed by the court on 6th May. On the same date the claimant sent the new DN which I received on 4th May so they had issued the DN whilst as far as I can see the account was terminated by court proceedings.

 

All I am trying to find out is what is the time length for an appeal - I dont know if I will be appealing but spending out some money on a solicitor to tell me it is is probably worth its weight in gold. If he says you cant appeal well that's fine also - at least I have tried.

 

HH

[Peterbard]

I think what Peter’s suggesting is that you need to clarify these issues and get chapter and verse on the likelihood of an appeal succeeding, and also look at what might happen after this, and I would agree.

 

Maybe if your wife’s barrister friend is a friend rather than acquaintance, some informal discussion may be possible. There are lots of routes worth exploring.

 

There are other things you can do such as request a transcript of the hearing so you can be sure why the judge did what he did – to legally trained ears, the judgment may mean something slightly different.

 

But all these things will cost money. What you don’t want to do is compound the problem through chasing an appeal when there may be little chance of success, or where the claimant may simply reissue again (if they can show they not being vexatious as well as incompetent).

 

In that respect, the choices are yours.

 

When I get time I’m going to read through your whole thread again, and your other thread. We’ve all learned a lot, and there have been a few judgments relevant to your case since your problems started.

 

HI

Yes i agree.

Particularily in gettinag a transcript of the case. I think it would go a long way in clarifying matters.

 

Some times it is difficult to look at htese things with a "cold eye" and just having the details in black and white from the courts perspective helps i have found.

Peter

 

Peter

[caro]

Hi feeling quite deflated, my application was struck out and the Claimant's application was successful. The Judge said they were quite right to reissue as they had not served a default notice. The barrister said that the Henderson case did not apply nor did issue estoppel as they had not served a notice of discontinuance. The Judge agreed although he had no papers and so all the papers had to be reconstructed from ourselves - not a good start. Mentioned the fact that the present DN was invalid - this was mentioned in my second defence but judge said that as I had not gone into detail regarding the time issue this could not be taken in consideration. I did not elaborate on the DN as my concentration was more of res judicata. The barrister harped on for 30 minutes and I was beginning to feel that at that point I knew I was losing.

 

The bank know they have done wrong and tried to rectify by getting me to sign a consent order - As far as I was aware they were withdrawing - not so they could reissue proceedings. The Judge elaborated on this and said "you must have known they would withdraw and reissue as you mentioned in your original defence that the DN might have been invalid!!!

 

The good thing about it I suppose was that fixed costs were awarded - they were claiming over £3000 they got less than £500!!

 

I think they are expecting me to pay up in full - this is big money.

 

Haven't been able to sleep since it happened!!

 

HH

 

So sorry to hear this hammy, if not entirely surprised based on so many other cases. I think you're getting some very sound advice here. You've been lucky to escape with reduced costs, and I'm sure I don't need to tell you that appealing might well increase costs for both sides if you start getting solicitors and barristers involved.

 

I would not say this if there appeared to be strong grounds for appeal which I though you might not be capable of presenting yourself, but the consensus seems to be that there aren't.

 

You mention not being able to sleep since, but maybe if you get your head round actual events and their outcome, you can start to deal with what's happened in a way that you can comfortably live with and sleep better and move on from this. If you have other battles you need to fight you can turn your attention to them knowing that this one is sorted - if not in a way you would have hoped for. At least you know you gave it your best shot.

 

Just do what is right for you and your family.

[pt2537]

http://www.bailii.org/ew/cases/EWHC/Mercantile/2011/B3.html

 

The notice of enforcement was a statutory pre-condition of enforcement. It was a bad notice and enforcement cannot be attempted in dependence upon it. However, bad notices can often be remedied by the service of good notices and I see no reason why that should not be so in respect of credit agreements.

 

Id say, enforcement has been attempted in dependence on a bad notice,

 

Id say given this is a High Court judgment, that this would be a ground of appeal myself, wouldnt it?

[caro]

And what about the first notice? This has been overlooked so far due to the timing of the consent order? Is that right? Would the fact that Hammy agreed to the consent order override this? I guess this was possibly irrelevant, even though it was compliant at the time?

 

Was this case different in that there was a consent order which hammy subsequently defaulted on?

 

If won, even at appeal, could a new DN and TN be issued.

 

There was also the issue of harassment in the case you've linked. That was the reason given for non-recovery now.

 

MBNA and the Defendant have harassed the Claimant in such a way as to disentitle the Defendant from any recovery under the agreement.

 

Is this something that Hammy has mentioned before? If not then can this be used as a reason for appeal? Is there a reason why a new DN can't be issued even if won at appeal?

 

Would Hammy have to pay any upfront costs to a solicitor/barrister?

 

What might the costs be if he lost or could he be guaranteed that insurance would cover these?

 

If so would the insurance cover the costs of both legal teams?

 

It's all very well having grounds, but if you're looking at having to have legal representation then it's entirely possible that it might end up costing a hell of a lot more.

 

As I said - you need to consider what is right for you and your family Hammy, not forgetting the consequences.

 

Maybe it would be right to appeal. Only you can decide. I would urge you to think very carefully about your next move Hammy, and make sure that you check out that the answers you get are complete and accurate.

 

Don't get me wrong. I'm a great believer that everyone should comply with the law, not least creditors. Sometimes, as Peter says, it can be hard to look at things with a cold eye so you need to weigh up the pros and cons with a clear head. Maybe you would prefer to pay a legal team instead of the debt, but you might find yourself having to pay both, and I'd hate to see that.

[pumpytums]

Really sorry to hear that Hammy,

 

I hope you don't mind asking a quick question it is pertinent.

 

I had a case discontinued ( I filed a defence) , the DCA who claimed have now sold the account back to the OC. Firstly I have never received a NOA, secondly the OC has now filed a Claim.

 

What should I do first do i need to write to the court asking if they requested permission, or does that go in my defence?

 

Thanks

 

Pumpytums