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    • Yes please I think we would like to know all about it. Saying "I didn't foresee any problems so I didn't bother to…" As I say I didn't bother to look when I cross the road because I didn't think I would be run over
    • My WS as I intend to send it... any problems anyone can spot?         In the county court at Middlesbrough Claim No:  Between Vehicle Control Services Limited (Claimant) V   (Defendant) Witness Statement Introduction It is admitted that the Defendant is the registered keeper of XXnn XXX   Locus standi/bye-laws and Relevant land Schedule 4 of the Protection of Freedom Act 2012 (PoFA) allows recovery of unpaid parking charges from the keeper of the vehicle. However, the first paragraph 1 (1) (a) states that it only applies “in respect of parking of the vehicle on relevant land:”. The definition of “relevant land” is given in paragraph 3 (1) where subsection (c) excludes “any land ... on which the parking of a vehicle is subject to statutory control”.  The bus stop is not on relevant land because the public road on which that stand is on is covered by the Road Traffic Act.  Notwithstanding that the claimant claims that " the claimant has given the Defendant its contractual licence to enter the site", the claimant has not given any contractual licence whatsoever. This is a road leading to/from the airport which is covered by the Road Traffic Act.  A list of highways on the Highways act 1980 does not even exist. The defendant brings the attention of the court that VCS is using this non existent document issue as a deliberate strategy to debunk the fact that this road is not relevant land. VCS are put to strict proof that it is relevant land not covered by the Road Traffic Act nor by Byelaws. While it is true that landowners can bring in their own terms, it is also true that whatever terms they bring  cannot overrule Byelaws and the Road Traffic Act. If Bye Laws are involved then the bus stop is not relevant land and neither is the specious argument about First Great Western Ltd. Is the claimant ignorant of the Protection of Freedoms Act 2012? The road outside of Doncaster Sheffield Airport is not relevant land and is not covered by the Protection of Freedoms Act. That makes the charge against the claimant tantamount to fraud or extortion. The claimant mentions a couple occasions where they have won such cases. It is brought to the attention of the court that none of those cited cases were on airport land. VCS actually has also lost a lot more cases than they have won using their prohibitive signs.  Airport land is covered by Bye Laws and hence the claim by VCS is not applicable in this instance. The remit of VCS ends in the car park and does not extend to the bus stops on public roads or land which they have no jurisdiction over. All classes of people go to the airport. This includes travellers, taxis, fuel bowsers, airport staff, companies delivering food and drink for each aircraft, air traffic controllers and buses with passengers. It is therefore absolutely ridiculous to attribute VCS with any sort of permissions. The defendant submits that VCS should not confuse a major thoroughfare with a car park and presume to act as land owners and usurp the control of any land which is not relevant to them.   Protection of Freedoms Act The clearest point on section 4.1 of the Protection of Freedoms act is that “The provisions in Schedule 4 are intended to apply only on private land in England and Wales. Public highways are excluded as well as any parking places on public land which are either provided or controlled by a local authority (or other government body). Any land which already has statutory controls in relation to the parking of vehicles (such as byelaws applying to airports, ports and some railway station car parks) is also excluded.” Therefore, as this case pertains to an airport, the claimant unlawfully obtained the registered keeper’s details against the defendant’s vehicle. Thus, on this basis alone, the defendant implores the court to throw out this case. Notwithstanding the above point, if perchance Schedule 4 of the Protection of Freedoms act 2012 were to apply, the claimant is put to strict proof that they complied with the requirements of section 7 stating, “(1)A notice which is to be relied on as a notice to driver for the purposes of paragraph 6(1)(a) is given in accordance with this paragraph if the following requirements are met. The notice must — (a)specify the vehicle, the relevant land on which it was parked and the period of parking to which the notice relates;” Without such proof the court must of necessity throw out this case forthwith.   Deceit, Intimidation and Extortion The Claimant’s Particulars of Claim include £50 legal costs, yet in the letter dated  03/06/2021, the Claimant stated that they were no longer represented by Elms Legal and all further correspondence should be sent to the VCS in-house litigation department. Why should the Claimant be asking the Defendant to contribute to their employee’s salary?  Furthermore, as per another letter dated 30th July 2021, the Claimant wrote, ‘Should you fail to accept our offer of settlement then we will proceed to Trial and bring this letter to the Court’s attention upon question of costs in order seek further costs of £220 incurred in having to instruct a local Solicitor to attend the hearing in conjunction with the amount claimed on the Claim Form.’ I find this an extraordinary statement given the Claimant knows legal costs are capped at £50 in Small Claims Court. I cannot think of any reason why the Claimant would write this letter other than to intimidate the opposing party with the threat of an extortionate sum of money, hoping they would be able to take advantage of someone not knowing the Small Claims Court rules. Given that this letter came from the Claimant’s in-house litigation department, clearly well-versed in the law, this cannot be anything but deceitful and disingenuous behaviour which the court should never tolerate.    Contractual costs / debt recovery charge  In addition to the £50 legal costs, the Claimant is seeking recovery of the original £100 parking charge plus an additional £60 which is described as ‘debt collection costs’. In the Vehicle Control Service v Claim Number: 18 on 4th September 2019, District Judge Jones-Evans stated, ‘Upon it being recorded that District Judge Jones-Evans has over a very significant period of time warned advocates […] in many cases of this nature before this court that their claim for £60 is unenforceable in law and is an abuse of process and is nothing more than a poor attempt to go behind the decision of the Supreme Court in Beavis which inter alia decided that a figure of £160 as a global sum claimed in this case would be a penalty and not a genuine pre-estimate of loss and therefore unenforceable in law and if the practice continued he would treat all cases as a claim for £160 and therefore a penalty and unenforceable in law. It is hereby declared […] the claim be struck out and declared to be wholly without merit and an abuse of process.’  In Claim number F0DP806M and F0DP201T, Britannia v Crosby went further in a landmark judgement in November 2019 which followed several parking charge claims being struck out in the area overseen by His Honour Judge Iain Hamilton-Douglas Hughes GC, the Designated Civil Judge for Dorset, Hampshire, Isle of White & Wiltshire. District Judge Taylor echoed the earlier General Judgement or Orders of District Judge Grand stating, ‘It is ordered that the claim is struck out as an abuse of process. The claim contains a substantial charge additional to the parking charge which it is alleged the Defendant contracted to pay. This additional charge is not recoverable under the Protection of Freedom Acts 2012, Schedule 4 nor with reference to the judgment in ParkingEye v Beavis. It is an abuse of process from the Claimant to issue a knowingly inflated claim for an additional sum which it is not entitled to recover. This order has been made by the court of its own initiative without a hearing pursuant to CPR Rule 3.3(4) of the Civil Procedure Rules 1998…’ Vehicle Control Service v Claim Number: 19 51. Moreover, the addition of costs not specified on signage are also in breach of the Consumer Rights Act 2015, Schedule 2, specifically paras 6, 10 and 14.  It is the Defendant’s position that the Claimant in this case has knowingly submitted inflated costs and thus the entire claim should be similarly struck out in accordance with Civil Procedure Rule 3.3(4).  The Defendant is of the view that the Claimant knew, or should have known, that to claim in excess of £100 for a parking charge on private lands is disallowed under the Civil Procedure Rules, the Beavis Case, the Protection of Freedom Act 2012 and Consumer Rights Act 2015, and that relief from sanctions should be refused.   Alleged contract The court should consider if there is any contract to start with and if the alleged offence is on relevant land. The consideration will inevitably lead the court to conclude that there is no contract.  Also the court should note that there is no valid contract that exists between VCS and Peel. Under the Companies Act, a contract should be signed by the directors of both companies and witnessed by two independent individuals. This alleged contract, which makes no mention of pursuing registered keepers of vehicles to court, makes its first appearance as a Witness Statement. Thus the alleged contract is null and void.  The Beavis case referred to by the claimant is about parking in a car park. The claimant is here attempting to equate that case to stopping, not parking, in a bus stop and on a road that is covered by the Road Traffic Act. The defendant submits that there can be no contract as there is no offer but there is only a prohibition. Again, it is not relevant land and VCS has absolutely no rights over it. Further, the defendant would like to point out that motorists NEVER accept any contract just by entering the land. First they must read it and understand it and then, and only then can they realise that "No stopping" is prohibitive and cannot offer a contract.   Bus stop signage The signs around the bus stop do not mention who issued the “No Stopping” signs so it could not have been issued by VCS since the IPC CoP states that their signs should include the IPC logo and that the creditor should be identified. Nothing on the signs around the bus stop that says “NO Stopping” mentions VCS or Peel Investments who are now purporting to be the land owners of a public road. As the signage should identify the creditor, since it does not, this is a breach of the CoP.   The Traffic Signs Regulations and General Directions 2016 does not prohibit stopping in a restricted bus stop or stand, it prohibits stopping in a clearway. The defendant would like to ask the court to consider if any clause of the Traffic Signs Regulations and General Directions 2016 that the claimant alleges has been violated by the defendant. There is no mention of permits on the signage. If there were, would it mean that Permit holders were allowed to stop on “No Stopping” roads? Notwithstanding what the claimant calls it, the mentioned signage is NOT a contractual clause. A “No stopping” sign is not an offer of parking terms.  Since the signage around the bus stop is prohibitive, it is as such is incapable of forming a contract. Further, the defendant would like to point out that the prohibitive sign is not actually at the bus stop but a few metres before the stand itself. There is no mention of a £100 charge for breaching the “No stopping” request, or if there is one then it is far too small to read, even for a pedestrian. As already stated, a Witness Statement between VCS and Peel Investments is not a valid document. It will need more than the Claimants feather to outweigh the case against the Defendant regardless of who was driving. There is no law of agency involved. This is not a case of employer/employee relationship. VCS cannot transfer the driver's liability to the registered keeper. There can be no comparison between a railway station and an airport. This is a totally fatuous analogy which cannot be applied to this case.  As stated in the defence, it is denied the Claimant is entitled to the recovery or any recovery at all. The nefarious parking charge notice given for a vehicle on a public road bus stop was ill advised to start with.   Conclusions:   VCS has failed to present ANY reasonable and valid cause to apply to the DVLA for the Defendants details. VCS has failed to provide ANY valid  contract with the landowners. “No stopping” is prohibitive therefore cannot form a contract the event happened on a bus stop over which VCS has no jurisdiction the signage either does not show that there was a charge of £100 for stopping, or the font size was too small for any motorist to be able to read it  the signage does not show the Creditor which fails the IPC CoP and hence the signage is not valid the WS contract does not authorise VCS to pursue motorists to Court Given all these factors it seems that VCS have breached the GDPR of the Defendant quite substantially and it would appear right that an exemplary award is made against VCS in the hope that they will drop all further cases at Doncaster airport where they are pursuing motorists on non relevant land. The Defendant wishes to bring to the attention of the court that the Claimant cites an irrelevant case of a car park and tries to apply its merits to a bus stop. That in itself invalidates the entire fallacious claim. Accordingly, this case is totally without merit. Some statements are pretty close to perjury and others are designed to mislead or misdirect. None of the analogies seem appropriate or relevant. All the false information presented as a statement of truth could have been stated using half the words and without all the repetition which appears to be trying to build a strong case where there is none at all. One particularly bad example of misdirection is in the photographs. The Clearway sign shown near the bus stop is very unclear unlike the Clearway sign two photos before it which may well include terms and conditions. The one by the bus stop is totally different.   47. Lastly I wish to bring to the attention of the court, a systematic pattern of the Claimant’s court action behaviour in several of their cases. They tend to have a VCS paralegal writing a Witness Statement, then mentioning in the last paragraph of the Witness Statement that they may be unable to attend court and subsequently the paralegals never turn up to be cross examined. In the event that Mohammed Wali is unable to attend court to be asked about his claims, then I would like to know why he is not able to attend when the hearing has been scheduled months in advance, is during working hours and as a result of covid, is online, meaning there is no travel involved. Ambreen Arshad, the other paralegal employed by VCS, does exactly the same. 
    • Hang on. don't panic!   You sent the snotty letter which has told the fleecers to put up or shut up.  So far they've haven't taken you to court.  This might change, but so far you're in the driving seat.  You don't have to deal with them any more.  It's up to them if they have the gonads to start court action or not.   Regarding DCBL, they are not representing their client in the normal way that a solicitor represents a client, because the sums of money involved are too low for that.  They are just chucked a few quid to send a couple of "threatening" letters.  There is no point in dealing with them.   If you want the original PCN send a SAR to UKPCM only.  For the SAR letter simply click on "SAR".   However, the SAR has nothing to do with the 30 days, you've already dealt with that with the snotty letter.  You need to read lots of similar threads and familiarise yourself with the legal process.  CAG is a superb free library.    
    • Hi again, so I will send a SAR to UKPC because I don't remember seeing the  NTK.  Then should I let DCBL know otherwise they will probably issue the court papers but they might hold off if i tell them about the SAR?   what do you think?  I need to do it this weekend or it will be beyond the 30 days.  Otherwise to let it run will definitely lead to a court case perhaps??   Can I get a copy of a SAR letter on here? thanks
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Swift Possession Order Post Judgement Interest


lesterlass
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This is a long post.

 

Swift took us to court in JAN 08 and had a possession order granted. I was naïve, I could not get to see anyone so I went along with there solicitor. I have asked swift on many occasions for details of the order interest costs ect. They have eventually sent me a copy of the possession order this week but no details of costs interest charges ect. They are trying to enforce the order again. I spoke with swift and they told me I have paid them over 4k in charges and am still over 2k in arrears. And £1,600.00 with the court arrears but they will not give me any answers about being charged interest on the court arrears. This is a second charge loan so not sure if the following will apply.

 

I found this on the OFT website.

 

7 NOTICES OF POST-JUDGMENT INTEREST

7.1 From 1 October 2008, creditors will be required by section 130A of the

1974 Act59 to notify the debtor if they intend to charge post-judgment

interest under a regulated agreement in connection with a sum that is

required to be paid under a court judgment. The creditor will not be

entitled to charge interest on the judgment sum until the first required

notice has been served.

 

7.2 Further notices must be given at intervals of not more than six months

for such time as the creditor wishes to charge post-judgment interest.

7.3 The notice may be incorporated in any other statement or notice under

the 1974 Act. The provisions do not apply in respect of post-judgment

interest which is required to be paid by virtue of a court order.

7.4 The 2007 Regulations set out the information and forms of wording to

be included in notices of post-judgment interest.60

7.5 The first required notice must include a prescribed statement indicating

the creditor's intention to charge post-judgment interest, and the

procedures involved. This must indicate the rate of interest payable, and

the date from which it will be payable, and that further notices will be

given at least every six months for so long as the creditor intends to

charge post-judgment interest.61

7.6 In addition, the notice must indicate the amount on which post-judgment

interest will be charged. It must also include prescribed statements

highlighting the debtor's right to apply to the court to vary the terms of

the instalment order or to reduce the amount of interest payable, and

that the debtor can obtain advice and information about dealing with the

59 As inserted by section 17 of the 2006 Act

60 Regulations 34-35 and Schedule 5 as amended

61 Schedule 5 Part 3

OFT1002 24

debt from a number of organisations (with contact details taken from the

OFT default information sheet).62

7.7 Subsequent notices must also indicate the total amount of post judgment

interest charged since the date of the last notice, the dates on

which interest was charged, and the rate of interest (and whether this

was variable).63

Swift have done none of the above. Are they in the wrong and if so can I take them to court? Could I get them on the fraud act, and what do I do next?

Hope some of you caggers who have more knowledge than me can help can help.

 

Many thanks LL:confused:

Edited by lesterlass
SPELLING AGAIN
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Hi there, do you have a copy of the order the court sent you after the hearing? Need to know what was on the order regarding payments.

 

Have they sent an eviction notice or just threatening to enforce?

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Hi lesterlass:)

 

Thanks for the PM - unfortunately despite my experience with Swift, your problem lies outside my area of knowledge. However, I see that Ell-enn is now on the case and she should be able to offer you guidance and advice with this. Regarding the Fraud Act, I'm not sure - but Dougal16T is the expert on this so it might also be worth sending him a message.

 

I'm very sorry I couldn't be of assistance to you..........

 

All the best with getting it sorted,

 

Landy x

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Hi Ellen

Here is a copy of the order. I spoke to them on the phone they did not mention enforcing the order as long as I send in income and expenditure and pay £400.00 every four weeks. But in the letter they sent me with the court order they are thretening to enforce.

 

 

sorry not sure if I have attached right

 

LL

CCF09072010_00000.pdf

Edited by lesterlass
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OK, have you been paying £68.47 extra every month since 1st February 2008 ?

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Not every month we are behind, but Swift do not give exact details to work out I usually pay on line, and with charges it gets swallowed up anyway IE were charging us £70.00 a month and now £68.00 so the court order balance never comes down and do not know what interest they are applying - will try to work out and get back to you.

 

LL

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By the way Ellen I was never sent an order after the hearing, I requested on many occasions and they never sent one. They only sent this week with a letter and that is the first time they have given me a balance on the court order arrears but no other figures payments/interest/cost of hearing ECT.

LL

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The amount you pay in accordance with the court order should be reducing the arrears - they can't add the charges on each month or the arrears will never reduce.

 

The only thing you can do is apply to the court for another hearing (it will cost you £70) and let the judge know that the money you are paying to reduce the arrears is being wiped out by Swift adding charges.

 

Alternatively you could write to Swift threatening to take the matter back to court as they are frustrating your efforts to reduce the arrears.

 

How many payments have you missed since the court order in Feb 08.

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By the way Ellen I was never sent an order after the hearing, I requested on many occasions and they never sent one. They only sent this week with a letter and that is the first time they have given me a balance on the court order arrears but no other figures payments/interest/cost of hearing ECT.

LL

 

 

The court should have sent you a copy straight after the hearing.

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Please consider making a donation, however small, if you have benefited from advice on the forums

 

 

This site is run solely on donations

 

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The court may have done I cant remember seeing one though. I will have to work out how many payments are missing.

 

How do I get Swift to send me information regarding the court order I have asked many times - they do not send. I do not know if they are charging interest or not.

 

Should they have sent me the the below?

 

7 NOTICES OF POST-JUDGMENT INTEREST

7.1 From 1 October 2008, creditors will be required by section 130A of the

1974 Act59 to notify the debtor if they intend to charge post-judgment

interest under a regulated agreement in connection with a sum that is

required to be paid under a court judgment. The creditor will not be

entitled to charge interest on the judgment sum until the first required

notice has been served.

 

7.2 Further notices must be given at intervals of not more than six months

for such time as the creditor wishes to charge post-judgment interest.

7.3 The notice may be incorporated in any other statement or notice under

the 1974 Act. The provisions do not apply in respect of post-judgment

interest which is required to be paid by virtue of a court order.

7.4 The 2007 Regulations set out the information and forms of wording to

be included in notices of post-judgment interest.60

7.5 The first required notice must include a prescribed statement indicating

the creditor's intention to charge post-judgment interest, and the

procedures involved. This must indicate the rate of interest payable, and

the date from which it will be payable, and that further notices will be

given at least every six months for so long as the creditor intends to

charge post-judgment interest.61

7.6 In addition, the notice must indicate the amount on which post-judgment

interest will be charged. It must also include prescribed statements

highlighting the debtor's right to apply to the court to vary the terms of

the instalment order or to reduce the amount of interest payable, and

that the debtor can obtain advice and information about dealing with the

59 As inserted by section 17 of the 2006 Act

60 Regulations 34-35 and Schedule 5 as amended

61 Schedule 5 Part 3

OFT1002 24

debt from a number of organisations (with contact details taken from the

OFT default information sheet).62

7.7 Subsequent notices must also indicate the total amount of post judgment

interest charged since the date of the last notice, the dates on

which interest was charged, and the rate of interest (and whether this

was variable).63

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Ring the court that issued the order and ask them if post judgment interest was included.

Help us to keep on helping

Please consider making a donation, however small, if you have benefited from advice on the forums

 

 

This site is run solely on donations

 

My advice is based on my opinion and experience only. It is not to be taken as legal advice - if you are unsure you should seek professional help.

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Hi Ellen

I called them last Friday had to write a letter, called them back this week, have recieved the letter I sent by email and but they are 10days behind with the post, cannot give me an answer when I will receive the information.

LL

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Hi Lester Lass,

 

Before you make your application to court I would just like to add a couple of points which might affect what you want to say.

 

To my knowledge, Swift do not add arrears charges to the arrears, they are added to the capital balance but not reflected in the arrears figure.

If you look at your repayment record this should reflect the payments due and received to the mortgage and should not show arrears charges, the arrears figure on this document should just be a reflection of the contractual monthly instalments due minus payments received. The list of transactions should show fees and charges as well as payments but this reflects what is going on with the whole loan not how the arrears are calculated.

Swift may have changed their procedures very recently but this is based on my experience, also their monthly arrears fee should be £64.00 according to the most recent tariff of charges I have seen not £68.00.

 

As far as I am aware the rules relating to post judgment interest apply to county court judgments or CCJ's not possession orders. Generally interest continues being charged in accordance with the contract when a possession order is granted as the loan is still live. In the case of CCJ's obtained after default on unsecured loans the debt is crystallised and the contractual terms no longer apply so the rules on post judgment interest come into play along with some quite complex law in the case of CCA regulated debts. Therefore as far as I am aware (and I would not claim to have a definitive answer here) Swift do not need to issue you with the notices described in the OFT guidance.

 

Hope this is useful.

 

KC

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  • 1 month later...

Swift have got the possession order illegally and most other peoples as well I suspect. I have written to the court to have to have it struck out or another hearing. I Am also reporting to the police as a criminal offence. I could not have got this far without all the help from Sparkie I am sure he is a magician......he is making SWIFT disappear. Sparkie will be along shortly he has some cracking comments to ad. If anyone has a possession order and wants to know if there order is illegal PM me and I will do all I can to help.

 

This is taken from the SRA site

 

I am now going after the solicitor.

 

Suspected dishonesty

We do not tolerate dishonesty within the profession we regulate. Those we regulate are in a position of trust. Personal integrity is central to their role.

 

If you think a person or firm, regulated by us, has been dishonest towards you or a third party, contact us immediately (by emailing or writing to our Fraud and Confidential Intelligence Bureau).

 

Dishonesty can take many different forms—from misleading a client about a document, to complex frauds. We treat any form of dishonesty seriously, because the risk to clients is grave.

 

A finding of dishonesty against a person regulated by us has serious consequences for him or her. Therefore, we must be sure that he or she has been dishonest.

 

LL

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Dishonesty..now here is word that "conjures" up some ideas for me....The second page of our possession application by Swift Advances in the statement of truth says this..... Signed .....Mathew Payne.... position......"Assistant Solicitor" ......he was/is the Senior Solicitor in the employ of "Swift Group Legal Services"....in the box which asks name of Solicitor he has put " Swift Group Legal Services"............according to their registration with the Law Society Public Record....... Swift Group Legal Services are registered as an "Organisation"........not a Law firm regulated by the SRA, ........now Swift Group Legal Services have gone and registered themselves as a trading Style of Swift Securities Ltd, it appears that they do not know who or what they are..........so how can anyone else know.....they are in a bit of a mess really.

 

The SRA do regulate the solicitors though, and no matter who they are the solicitors themselves can be charged with bringing the profession into disrepute......no one has done more to do that than this man in my opinion.

He has pulled the wool over so many peoples eyes for so long, he must have knitted more" wooly" sweaters than Val Doonican ever had ......if you can remember him....shows how ancient I am.

 

 

Have people noticed he does not sign many letters these days .....he gets Swift Group Legal Services to sign then...how they get a non existant entity to sign letters in biro I don't know... but.... they achieve it somehow:rolleyes:.

 

sparkie

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I'll be posting how Mr Mathew Payne posed as a Commissionaire of Oaths later on and post the document he signed as a Commissionaire of Oaths ....he can act as one as long as he is not involved in the document he is signing and does not know the persons involved on a personal basis ...another fine mess really!!

You never know who views these threads???????;) someone might pick this up and take some action

 

sparkie

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Taken from the SRA website, Not all the rules of conduct just what may be relevant.

 

Solicitors' Code of Conduct 2007

 

Rule 10: Relations with third parties

 

10.01 Not taking unfair advantage

 

You must not use your position to take unfair advantage of anyone either for your own benefit or for another person's benefit.

 

Guidance to rule 10 - Relations with third parties

Not taking unfair advantage - 10.01

1.

Rule*10.01*does not only apply to your actions which arise out of acting for a client. For example, if you are personally involved in a road accident and use your position as a solicitor unfairly to harass or intimidate the other motorist, you would breach*10.01.

2.

Particular care should be taken when you are dealing with a person who does not have legal representation. You need to find a balance between fulfilling your obligations to your client and not taking unfair advantage of another person. To an extent, therefore,*10.01*limits your duty to act in the best interests of your client. For example, your duty may be limited where an unrepresented opponent provides badly drawn documentation. In the circumstances you should suggest the opponent finds legal representation. If the opponent does not do so, you need to ensure that a balance is maintained between doing your best for the client and not taking unfair advantage of the opponent's lack of legal knowledge and drafting skills.

3.

You should take care, when dealing with an unrepresented third party, that any help given does not inadvertently create a contractual relationship with that party. For further information see*Cordery on Solicitors. See also note 3 of the guidance to rule 2 (Client relations). You should also be careful, when dealing with unqualified persons, that you are not involved in possible breaches of the*Solicitors Act 1974, in terms of the prohibitions relating to reserved work. For further details see*20.01*(Reserved work and immigration work) and the guidance to that rule.

4.

There may be situations where it is inappropriate for you to use your professional title in advancing your personal interests. You should consider public confidence in the profession - see*1.06 (Public confidence).

5.

It would be unfair to demand anything that is not recoverable through the proper legal process. This would include a letter of claim and any other communication with another party to the action. For instance, where you are instructed to collect a simple debt, you should not demand from the debtor the cost of the letter of claim, since it cannot be said at that stage that such a cost is legally recoverable.

6.

The following are some further examples of how you should act in order to ensure you comply with*10.01*and core duty1.02 (Integrity):

(a)

If a person sends you documents or money subject to an express condition, you should return the documents or money if you are unwilling or unable to comply with the condition.

(b)

If you are sent documents or money on condition that they are held to the sender's order, you should return the documents or money to the sender on demand.

©

If you ask anyone to supply copies of documents, you should expect to pay a proper charge for them.

 

 

36.

A promise to give an undertaking is normally treated as an undertaking and will be binding.

37.

Where an undertaking has been breached, the aggrieved party may seek compensation. Your firm's insurance as required by the*Solicitors' Indemnity Insurance Rules*should cover valid claims. If you are in in-house practice, you should consider whether your employer has appropriate insurance. You will remain personally liable in conduct, and may also be financially liable, regardless of whether you have adequate insurance.

38.

An undertaking is binding even if it is to do something outside your control. For example, if you undertake to make a payment out of the proceeds of sale of an asset, unless you clearly state to the contrary, you will be expected to make the payment even if the fund (gross or net) is insufficient.

 

Rule 11: Litigation and advocacy

 

Deceiving or misleading the court – 11.01

12.

Rule*11.01*makes a distinction between deceiving the court, where knowledge is assumed, and misleading the court, which could happen inadvertently. You would not normally be guilty of misconduct if you inadvertently misled the court. However, if during the course of proceedings you become aware that you have inadvertently misled the court, you must, with your client's consent, immediately inform the court. If the client does not consent you must stop acting. Rule*11.01*includes attempting to deceive or mislead the court.

13.

You might deceive or mislead the court by, for example:

(a)submitting inaccurate information or allowing another person to do so;

(b)indicating agreement with information that another person puts forward which you know is false;

©calling a witness whose evidence you know is untrue;

(d)not immediately disclosing a document you have become aware of during the course of a case, which should have been, but was not, disclosed;

(e)attempting to influence a witness, when taking a statement from that witness, with regard to the contents of their statement; and

(f)tampering with evidence or seeking to persuade a witness to change their evidence. To avoid such allegations it would be wise, when seeking to interview a witness for the other side, to offer to interview them in the presence of the other side's representative.

 

14.Whilst a person may call themselves by whatever name they choose, you must (in the context of court proceedings) be satisfied that the client is not adopting a different name or date of birth to avoid previous convictions becoming known to the court, or to deceive the court in any other way.

 

15.If you are acting for a defendant, you need not correct information given to the court by the prosecution or any other party which you know may allow the court to make incorrect assumptions about the client or the case, provided you do not indicate agreement with that information.

 

16.Where a client admits to having committed perjury or having misled the court in any material matter relating to ongoing proceedings, you must not act further in those proceedings unless the client agrees to disclose the truth to the court.

 

17.If, either before or during the course of proceedings, the client makes statements to you which are inconsistent, this is not of itself a ground for you to stop acting. Only where it is clear that the client is attempting to put forward false evidence to the court should you stop acting. In other circumstances it would be for the court, and not for you, to assess the truth or otherwise of the client's statement.

 

18.There are some types of information which you are obliged to disclose to the court, whether or not it is in the best interests of the client to do so. Failure to disclose such information could amount to a breach of*11.01. For example:

(a)The advocates on both sides must advise the court of relevant cases and statutory provisions. If one of them omits a case or provision or makes an incorrect reference to a case or provision, it is the duty of the other to draw attention to it even if it assists the opponent's case.

(b)Except when acting or appearing for the prosecution, if you know of facts which, or of a witness who, would assist the adversary you are not under any duty to inform the adversary, or the court, of this to the prejudice of your own client.

 

19.You are permitted, even when acting as an advocate, to interview and take statements from any witness or prospective witness at any stage in the proceedings, whether or not that witness has been interviewed or called as a witness by another party. (However, see note*13(e)*and*(f)above.)

 

 

Rule 13: In-house practice, etc.

 

Rule 13 of the Code of Conduct was amended on 31 March 2009 as part of a general updating of the rules to introduce firm-based regulation and legal disciplinary practices as provided for in the Legal Services Act 2007

Introduction

Rule 12 (Framework of practice)*allows a solicitor or an*REL to practise in-house from an office in England and Wales as the employee of a business which is not a recognised sole practitioner, recognised body or authorised non-SRA firm, but subject to restrictions. The solicitor or*REL may act only for the employer or in the circumstances set out in*rule 13.

Rule 12 also provides that a solicitor,*REL or*RFL in an authorised non-SRA firm may do work which falls outside the firm's authorisation, but only if acting for the firm or within*13.02 (Work colleagues),*13.03 (Related bodies)*or*13.04 (Pro bono work). The rule, except for*13.04, does not apply to your overseas practice, but you must comply with*15.13 (In-house practice overseas).

Rule

13.01 Conditions applying at all times

(1)(a)You must not, as an in-house solicitor or*REL, act for a client other than your employer under*13.02 to 13.12if to do so would compromise:

(i)your professional independence or integrity;

(ii)your duty to act in the best interests of that client;

(iii)your duty to comply with*rule 3 (Conflict of interests);

(iv)your duty to keep information about that client's affairs confidential from your employer (unless the other client consents to disclosure, or you are acting under*13.11*as the employee of a foreign law firm); or

(v)your ability to discharge any other duty owed to that client under these rules.

(b)(i)In order to act for a client other than your employer under*13.04,*13.07,*13.09*and13.11, you must have professional indemnity insurance cover.

(ii)In all other cases you must consider whether your employer has appropriate indemnity insurance or funds to meet any award made as a result of a claim in professional negligence against you, for which your employer might be vicariously liable. If not, you must inform the client in writing that you are not covered by the compulsory insurance scheme.

(2)If you are a solicitor,*REL or*RFL in an authorised non-SRA firm, you must comply with this rule as if you were an in-house solicitor or REL when, as:

(a)a manager or employee; or

(b)a manager or employee of a body which is a manager of the firm,

you do work of a type which is outside the scope of the firm's authorisation in accordance with*rule 12, either for the firm itself or within*13.02 (Work colleagues),*13.03 (Related bodies)*or*13.04 (Pro bono work).

 

13.03 Related bodies

(1)You may act for:

(a)the employer's, or authorised non-SRA firm's, holding, associated or subsidiary company;

(b)a partnership, syndicate,*LLP or company by way of joint venture in which the employer, or authorised non-SRA firm, and others have an interest;

©a trade association of which the employer or authorised non-SRA firm, is a member; or

(d)a club, association, pension fund or other scheme operated for the benefit of employees of the employer, or the employees or managers of the authorised non-SRA firm.

(2)If you are employed in local government,*(1)(a)*and*(b)*above do not apply.

(3)For the purpose of*13.04 to 13.07*references to your employer or authorised non-SRA firm include related bodies of the employer or authorised non-SRA firm as set out in*(1)*above, and "employment" and "employed" must be construed accordingly.

 

Guidance to rule 13 - In-house practice, etc.

1.If you are a solicitor working in-house (whether in or outside England and Wales) you must comply with*20.02 (Practising certificates). Examples of situations where you will be practising as a solicitor, and will therefore need a practising certificate, include:

(a)you are employed as a solicitor;

(b)you are held out, on stationery or otherwise, as a solicitor for your employer;

©you administer oaths;

(d)you appear before a court or tribunal in reliance upon your qualification as a solicitor;

(e)you instruct counsel;

(f)you undertake work which is prohibited to unqualified persons by the*Solicitors Act 1974*and under the forthcoming provisions of*Part 3 of the Legal Services Act 2007, unless you are supervised by, and acting in the name of, a solicitor with a practising certificate or another qualified person;

(g)your only qualification as a lawyer is that you are a solicitor, and:

(i)you are employed or held out as a lawyer;

(ii)you undertake work in another jurisdiction which is reserved to lawyers;

(iii)you are registered in a state other than the UK under the Establishment Directive; or

(iv)you are a registered foreign legal consultant in another jurisdiction.

 

2.In England and Wales a number of statutory exceptions apply to qualify this. Certain in-house government solicitors are allowed to practise as solicitors without practising certificates. Some reserved work can be undertaken by non-solicitors working for local government, and therefore by non-practising solicitors working for local government. See also*rule 20 (Rights and Obligations of practice)*and the guidance to it.

 

3.A solicitor acting only as a justices' clerk in England and Wales is not practising as a solicitor and can instruct counsel without a practising certificate.

 

4.Although the guidance to this rule will generally apply to practice in and outside England and Wales unless otherwise stated, the only provision of rule 13 which applies to practice outside England and Wales is*13.04 (Pro bono*work). However, you must also comply with the provisions of*15.13(which relates to in-house practice overseas) in relation to your in-house practice, if you are employed at an office outside England and Wales (or if you are an*REL, employed at an office in Scotland or Northern Ireland).

 

5.If you are an in-house solicitor or in-house*REL you are personally bound by undertakings given in the course of your professional duties - see*10.05 (Undertakings)*(or, if you practise overseas,*15.10(2)).

 

6.When you act in your capacity as an in-house solicitor or in-house*REL you should not communicate with third parties who you know are represented by another lawyer, except with that lawyer's consent. Any communication should be made through the lawyer acting for the third party.

 

7.You may use the stationery of, or stationery including the name of, your employer for professional work, provided:

(a)the letterhead or the signature makes it clear that the stationery is being used by an in-house solicitor or in-house*REL on legal professional business and that person is responsible for the contents of the letter; and

(b)the stationery is being used for the business of the non-lawyer employer or for third parties in circumstances permitted by*rule 13*or*15.13*(which relates to in-house practice overseas).

 

8.You may, as an in-house solicitor or in-house*REL, use a style of stationery or description which appears to hold you out as a principal in a firm. However, if you are held out as a principal on notepaper and you hold or receive clients' money, you will be required to pay the full contribution to the Compensation Fund. Note that you should be careful not to hold out a non-existent entity as if it were regulated by the SRA. There is no objection to your stating "John Smith, solicitor, is regulated by the Solicitors Regulation Authority".

 

9.If you are an in-house solicitor the address of your employer's legal department is the place (or one of the places) where you practise and must therefore be notified to the SRA.

 

LL

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7.You may use the stationery of, or stationery including the name of, your employer for professional work, provided:

(a)the letterhead or the signaturelink3.gif makes it clear that the stationery is being used by an in-house solicitor or in-house*REL on legal professional business and that person is responsible for the contents of the letter; and

 

Look at your letters from Swift Group Legal Services, remember One they are an organisation and Two they are now a trading style....look at the signatures at the end of the letter.....I bet it looks as if it was signed by a 2 year old on the vast majority of them ......I've got loads....but all this is ammo for later in my Unfair Relationship Claim

By the way this is what the OFT guidance states at the end of the Guidance,

Consumers may find section 140 particulary useful in defence of possession claims.

 

sparkie

Edited by Sparkie1723
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Examples of situations where you will be practising as a solicitor, and will therefore need a practising certificate, include:

(a)you are employed as a solicitor;

(b)you are held out, on stationery or otherwise, as a solicitor for your employer;

 

The above is something for debate and to think about ....all the solictors listed on the letters headed Swift Group Legal Services hold practicing certificates.....but here is where they come unstuck....their employers are Swift Group Legal Services...who are an Organisation not a law Firm......but now they have decided to become a Trading Style....in any event they can only act for their employers who are not Swift Advances plc ....So they cannot act for them, because they cannot have " OUTSIDE CLIENTS" they are acting unlawfully.

 

sparkie

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