HFO/optima CO for old MBNA debt - sold to link

[whymehfor]

Yes they are wanting a stay. they are claiming they didn't receive some medical documents. They did ask for them 5 weeks later under without prejudice and ofering a notice of discontinuance once this was received.

 

And yes they have put the above in a court doc. They had pestered me all week to sign a consent order

[whymehfor]

Update 21/12

 

Firstly the judge has not explained why no award sum has been made as hes looked at the n227 form and letter (bizare i know)

 

The two n244 Applications:

 

The court has moved both applications to a hearing on the 16th for 90mins.

 

My application is pretty straightforward, to add an another default that the courts did not deal with and also the n227 form. That should be easy to deal with. The claimant has put in emails that they did not provide the full disclosure.

 

Mbna's claim is the one i have to get kicked out .

 

There's revolves around, their claim about me agreeing to their counteroffer of a new time frame for document exchange. I did reply to the offer but I placed it under "without prejudice"

 

without prejudice

I have serious concerns regarding, your clients ability to provide information in a timely manner. The amended time frame that you proposed(from my proposal) , now has no benefit to me, only to you. Therefore I will not be notifying the court of the proposal and sticking to the time frame originally stated by judge Z.

 

I also believe it is your client’s interest, now to settle out of court .

 

I believe this to be admissible in court as there is no settlement offer.

 

Secondly they are claiming that I did not provide full disclosure to them and this is their email

 

WITHOUT PREJUDICE

 

Dear Mr WMF,

 

I write further to our previous email correspondence.

 

I note from my file that further to your amended Defence being filed, you have not provided me with a copy of the medical evidence referred to in the Defence.

 

To that end, please can you provide me with current copies of your medical evidence.

 

Upon reciept of copies of the medical evidence, my client has confirmed that the claim against you will be discontinued.

 

I await receipt of copies of the above documents as a matter of urgency.

 

I believe this document not admissible in court because it contains an a settlement offer of discontinuance.

 

I believe the supreme court's judgement on this case http://www.supremecourt.gov.uk/decided-cases/docs/UKSC_2010_0039_Judgment.pdf should be enough to resolve any issue on the above two docuemnts.

 

What do I need to prepare for the two hearings. ? just any revised costs and pointers for the above and get my email served to the court and Optima?

[whymehfor]

Update. 5/1/12

 

I want to use my email reply to Optima, in the application hearing. How do i go about submitting this. As general evidence or as a WS.? How do I cover page it ?

[citizenB]

I think you will need to send andyorch a pm with a link to your thread and ask him to look in on you.

[AndyOrch]

Hi WMF

 

Responding to your PM.

 

Yes you will have to draft a further WS and serve a copy on the claimant before said hearing.You may have to request the permission of the Claimant to introduce further disclosure, which really they cant object to.

 

Regards

 

Andy

[whymehfor]

As the twin applications (mine and the claimant's) are on the 16/1.

 

Should I put the full objection of their app in the WS

 

or

 

only a minimal WS which is in regards to the email that i want to disclose stating that its the reply to their counter proposal? And That even though the disclosure(email) contains a without prejudice heading but theres no actual settlement discussion and thus can be admired into court.

 

And fight the rest in court?

[AndyOrch]

Yes its just a supplemental WS in addition to any you have already served.Your main objection to the application would have been in your initial WS (I assume)?

 

Andy

[whymehfor]

errr No WS against their n244 stay application . They've not sent one to me either ..

 

Erm..

[AndyOrch]

Ok well cover the objection within this WS along with the introducing extra disclosure.They wont send/draft a WS if its just for application to stay.

 

Andy

[whymehfor]

just confirm .. as this thread is now muddled a bit (so is the case ) ..

 

An court order dated in november in favour of me with liability against the claimant for my counterclaim. A previous judge has already given judgement by default.

 

Their n244 application is for a set aside(on the judgement by default) and for new timeframe for document exchange and trail date.

 

My n244 application is for a 2nd default to be added which wasn't addressed by the court and for the award amount to be set from the n227(as the judge has said there is liability for the claimant on the counter claim but hasn't provided an award amount)

 

I hope this is slightly clearer ( i was thinking it was a stay instead of a "set aside" ) .. sorry Andy

 

 

Thanks again guys

[AndyOrch]

Ah ok WMF im with you now.

 

Well you must object to the set a side with a WS and also introduce the new evidence by way of the WS.You got judgment by default they had plenty of time to respond.On what grounds are they basing their application to set a side, reasons?

 

Andy

[whymehfor]

Brief peroid of what happend

 

They originally defaulted on full disclosure in july after a n244 by me. Short of it they didn't provide ppi docs and full account statements.

 

I provided a fully pleaded defense and counterclaim based on what was given. I only provided the defence and counter claim but none of the exhibits at that stage(as i thought these where meant to be given at a later stage). The claiamnt asked for these at very short notice. I realised the amount that i had was alot (around 28).

 

They went for a court order for full disclosure in august. I asked for strike out due to their defgault. Mine was ignored and they got full disclosure . I sent the exhibit bundle on September 1st.

 

That is the brief outline that needs to be sumerised for you to understand their claim for set aside

 

Their Set aside is based on two things.

 

1. They are saying i agreed to new time frame of bundle hand over .

 

2. They are saying they I did not provide a medical exhibit within the bundle sent over to them .

 

 

That is their reasoning for set aside.

 

What happend from my view point is this .

 

1. Yes i did proposed a new document hand over schedule, they didn't like it and proposed a counter proposal. Why did i do this because they actually started to give some of the ppi documents. And it showed their where two ppi involed and once that had been previously involved in unfair practices with the claimant.

 

Because they weren't providing full document discloure I basically said no to their counter proposal for document exchange. This was stupidly done under Without Prejudice but with no settlement offer(which is admissible in court)

 

2. They requested a current medical report in october 12 nearly 6 weeks after the deadline for me to submit these documents and upon receipt offer to discontinue the case. This was under Without Prejudice again but obviously an offer to discontinue is a settlement and isn't admissible in court.

 

Whats made the thing worse is that two judges have gone done the same thing and hence the confusion on previous posts.

[whymehfor]

right here is my WS. It is in full ... Any alterations is gratefully useful.

 

I, defendant do not agree with the claimant’s n244 application for set aside and for a final hearing to be taken place.

Their claim is based on two different areas, their claim that I accepted their counter proposal for a extension of the bundle disclosure and their claim that I did not provide full disclosure till 11/10/11.

Both claims are denied by the defendant.

 

The proposal and counter proposal.

The claimant during the dates 22/8/11 -30/8/11 provided some disclosure based on what should have been provided by the 18/7/11 from claimant.

As the court did not deal with default created by the defendant on the 18/7/11 and despite repeated attempts by myself to get these documents I felt any appeal on the 18/8/11 order would have not succeeded.

As new disclosure had happened after the 18/8/11 order , and given the above, I proposed a new bundle timeline. This was sent on 23/8/11. The claimant took 7 days to respond and proposed a different timeline.

If one counter proposes, that party waits for the original proposer to answer. The claimant absurdly asserts that I accepted their counter proposal before even seeing it . I certainly did not.

I did in fact reply to their counter proposal on the 13/9/11. This was headed with “without prejudice” but has no settlement offer, and there for should not enjoy that privilege and is admissible into the court.

The rejection of the offer was based on the failure to provide disclosure of “the handover” documents between the two PPI insurers. That document should have been provided on the 18/7/11 as stipulated by the court. The claimant to date has not done that there for is still in default of section 2 of the 18/7/11 order.

The reasoning above is why I did not agree to the counter proposal and that part of their claim is denied.

 

The claimant’s claim that the defendant did not provide the medical disclosure.

On the 11/10/11 the claimant’s solicitors sent me an email under without prejudice, which stated

“please can you provide me with current copies of your medical evidence.

Upon reciept of copies of the medical evidence, my client has confirmed that the claim against you will be discontinued.”

My reply along with any attachments was added on top their email, and thus is a conversation/email chain and is protected by the without prejudice privilege.

To offer to discontinue the original claim is an offer of settlement, therefor not admissible into court.

The supreme court ruling in “Oceanbulk Shipping & Trading SA v TMT Asia Ltd & Ors [2010] UKSC 44” explored where “without prejudice” can be admissible, in the case of the claimant this doesn’t apply as there was no common facts addressed in the conversation. Again another reason why the email should remain “without prejudice”.

Given that their argument about the “the medical exhibit missing” is based upon no evidence and now should be dismissed.

If the email is to be admissible into the court the below is my reply to their claim.

I spent most of 30th, 31st and the 1st either printing, photocopying or collating the 3 bundles, Court, claimant and myself.

To my knowledge and recollection the medical exhibit was sent on the 1st September to the claimant. They received this bundle on the 2/9/11, at 6.30am in the morning.

Surely if it was missing and you had been requesting that information several times as in the claimant’s case, wouldn’t one phone or email to request that on receipt of the bundle.

There were email conversations going on at the time. As stated previously and in the evidence given they emailed me about documents they had missed. Surely one would ask for these missing documents then.

It’s all very odd to me that, if they were genuinely missing (the evidence) that they wait 28 working days (6 weeks) later to ask for them.

Therefore I deny the claim made in the n244 application by the claimant in full. Their request for a set aside and a trial date should be denied.

[whymehfor]

A quickie Q..

 

say if a court order was :

Dated:21/11/11

Stamp seal: 25/11/11

 

The order was delievered first class ( i got mine on the 26/11/11)And parties had 7 days to appeal when is the 8th day .. 2/12/11 or 3/12/11 ?

[citizenB]

I would err on the side of caution and go with the earlier date.

[whymehfor]

Thanks CB,

 

Because the claimant served me with document via email on the 2/12/11 ..

 

Sorry an explaintion.

 

The claiamnt's n244 for set aside was emailed to me on the 2/12/11. 8 days after the 25/11/11 (even if you included 2 business days after teh the 27 and 2nd respectuflly).

 

Basically a giant "WHOOPS" by the claiamnt..

Edited January 9, 2012 by whymehfor
further explaination

[citizenB]

Who is doing the appealing.. ? Sorry I think I might have lost the plot !

[whymehfor]

Both the cliamant and myself are doing applications on monday.

 

claiamnt= set aside and new trial dates.

defendant (me)= to vary the order, to add an another default to the order and for the award amount to be sorted out as the judge, as the nudge has seen the n227 form. the n227 was accompanied with 4 pages of explanation of awards amounts (4 seperate issues in counter claim) along with wasted costs ..

[whymehfor]

update : claiamnt got set aside ..

 

Judge allowed the wp conversation as evidence and said they(claimant) are allowed to release it ..

 

Have costs to pay too as he though i had acted unreasonable and should of have told the court about the time table change and wp conversation.

 

I am quite concerned that the wp privilege can be dropped by the issuing party at any time to prove a point. Then why have wp, its pointless.

 

I hope the forum heavy weights can help.

[42man]

During the pre-action stage of a civil claim, the proceedings and even during the trial itself, there will be opportunities for both sides to negotiate. Any negotiations that take place as a part of a genuine attempt to settle a claim are impliedly ‘without prejudice’; however, it is preferable to mark any correspondence accordingly, or to clarify that you are proceeding on a ‘without prejudice’ basis at the start of a meeting or telephone negotiation.

What is the purpose of ‘without prejudice’ negotiations?

Negotiating on a ‘without prejudice’ basis means that a concession made by a party when genuinely trying to settle a case cannot be used against him at trial.

An example is where: X sues Y for damages of £120,000 and X’s solicitor writes to Y’s solicitor on a without-prejudice basis saying that X will accept £100,000 if that sum is paid immediately. Y rejects this offer; however, Y cannot refer to this letter at trial and X can still try to obtain judgment for the full amount of the claim, £120,000.

Essentially, this rule exists to encourage litigants to make genuine attempts to reach a settlement. It applies irrespective of whether the negotiations are oral or in writing and therefore applies to an attendance note of a without-prejudice conversation as well as to formal correspondence. It means that all negotiations that are aimed at a settlement are excluded from being given in evidence.

During the disclosure and inspection part of the litigation process, without-prejudice correspondence is not privileged from inspection in the same way that solicitor-client correspondence is, as both solicitors will have seen the letter anyway. If, however, there are, for example, three parties involved in a claim and the without-prejudice correspondence has taken place between only two of the parties, such correspondence is privileged from inspection by the third party.

How is without-prejudice correspondence identified?

It is good practice for the words ‘without prejudice’ to be written on this type of correspondence; however, correspondence can still be considered as being on a without-prejudice basis even in the absence of these words, as long as it appears to be a genuine attempt to settle the case.

In the event of a dispute, the court can look at alleged without-prejudice correspondence prior to the trial (so that the trial judge does not see it) to determine whether or not its purpose was to settle the dispute. If it was, it is excluded from being given in evidence. If the court considers that it was not a genuine attempt to settle the case, then it will not be privileged, even if it carries the words ‘without prejudice’.

[whymehfor]

During the pre-action stage of a civil claim, the proceedings and even during the trial itself, there will be opportunities for both sides to negotiate. Any negotiations that take place as a part of a genuine attempt to settle a claim are impliedly ‘without prejudice’; however, it is preferable to mark any correspondence accordingly, or to clarify that you are proceeding on a ‘without prejudice’ basis at the start of a meeting or telephone negotiation.

What is the purpose of ‘without prejudice’ negotiations?

this was headed by the claimant "wp" an email exchange occurred, with the claimant creating an estoppel on its offer, defendant deleined offer.

 

[

Negotiating on a ‘without prejudice’ basis means that a concession made by a party when genuinely trying to settle a case cannot be used against him at trial.

 

An example is where: X sues Y for damages of £120,000 and X’s solicitor writes to Y’s solicitor on a without-prejudice basis saying that X will accept £100,000 if that sum is paid immediately. Y rejects this offer; however, Y cannot refer to this letter at trial and X can still try to obtain judgment for the full amount of the claim, £120,000.

 

Can X use that in an application hearing?

 

In the event of a dispute, the court can look at alleged without-prejudice correspondence prior to the trial (so that the trial judge does not see it) to determine whether or not its purpose was to settle the dispute. If it was, it is excluded from being given in evidence. If the court considers that it was not a genuine attempt to settle the case, then it will not be privileged, even if it carries the words ‘without prejudice’.

 

The claimant offered discontinuance that would satisfy the above that its privileged ..

[whymehfor]

Legal bods out there.

 

I am pondering set aside on last weeks order, as the basis for the order was based on:

 

allowing a wp conversation to be used as evidence which i had not consented to being used. The judge claimed that the claimant could use the wp conversation without my permission.

 

Saying that i did agree to the new time frame.

 

That i wasted time by not telling the court of the wp convo and the new time frame for document service.

 

Ignored the issue of the defaults that the claimant racked up.

 

 

Is the WP cockup alone enough reason for set aside to be granted or will the amended timeframe be against me.

[whymehfor]

In 2012, after a year of delays and their solicitors going on hoilday and just genrally messsing around.

We came to an out of court agreement where we would not pursue monies from either party.

 

Because in effect they would pursue the ammount i asked for the account to be closed and the debt wiped off of my Credit score.

They refused to do that as part of the agreement.

 

I thought i was covered it would fall of my credit file and record after six years(2012 +6 years = 2018)

 

I just recieved a letter dated the 10/4/2019 saying the account has been settled in full £0.00 and that they will inform the credit references. And that the default will stay on my credit reference for a further 6 years ..

 

My Questions are:

 

A) shouldn't the account have been removed after 6 years (ie last march/april)

B) are they legally entitled to do this.

c) if not, whom should I contact and what redress do i have.

 

 

[dx100uk]

who has written to you saying this?

what is the defaulted date if the debt id even still showing 

which I doubt it is

so it cant ever comeback anyway.

 

5 threads merged on this MBNA debt for complete history

 

dx

 

[whymehfor]

MBNA themselves have written to me. I received the letter today.

The original default was nov 2010.

 

The case was settled out of court in 2012 march/april.

 

Thanks for the thread Merge.

 

What should I do now.