Is this loan agreement regualted by the consumer credit act

[The Mould]

Rudi

 

Very briefly, what directions have been served and has the claimant complied with such?

 

Have you attempted to make contact with the claimant's Solicitors and seek their agreement to further directions, such as, permission for you to file and serve a sufficiently particularized amended defence, or request disclosure of a copy of the agreement/contract that the claimant intends to rely upon in support of her claim or copies of all documents that the claimant seeks to rely upon in support of her claim?

 

Are you prepared for the pre-trial/case management conference?

 

Are you in possession of the claimant's Witness Statement and did you file a response to the same?

 

Withdraw your Part 36 offer on Monday morning. When did you serve this said offer upon the claimant (her Solicitors)?

 

Why have you been made a party, as the 2nd Defendant, to the claim issued against your friend?

 

How much money has this claim cost you as far as instructing a Solicitor to act for you?

 

Kind regards

 

The Mould

[RudiJames]

Very briefly, what directions have been served and has the claimant complied with such?

 

Have you attempted to make contact with the claimant's Solicitors and seek their agreement to further directions, such as, permission for you to file and serve a sufficiently particularized amended defence, or request disclosure of a copy of the agreement/contract that the claimant intends to rely upon in support of her claim or copies of all documents that the claimant seeks to rely upon in support of her claim?

 

Hi, no we have not asked them for this and I think we are late to ask, they have listed documents, but nothing of note was in their docs. I assume I have to now apply to make these changes and hope I can

 

Are you prepared for the pre-trial/case management conference?

I dont really know what it is, they allocated 10 minutes for it, I will attend myself I guess. Maye after you have looked at the docs you can be more clear as to what I should do

 

Are you in possession of the claimant's Witness Statement and did you file a response to the same?

I did not see any witness statements yet, but will check, I did see they have asked for 2 days for the hearing!

 

 

Withdraw your part 36 offer on Monday morning. When did you serve this said offer upon the claimant (her Solicitors)?

 

At the end of last week, maybe wednesday or thursday, we made a same offer of £5K before that they ignored. I have asked my lwayer to withdraw immediately on Monday morning by email already.

 

Why have you been made a party, as the 2nd Defendant, to the claim issued against your friend?

 

I think they have claimed he was my agent in the POC which seems non-sensical as they came up with the idea of asking me together. They rely on teh fact that I had other commercial interests with him aside from friendship I guess.

 

How much money has this claim cost you as far as instructing a Solicitor to act for you?

 

I think about £3K so far it is hard to know as I think my lawyer is hesitant to tell me as they are not sure they are advising me correctly

 

Also I found my defence and the agreement and am uploading them next thing, I was wrong on profit and dates, I made £8500 and it was between July and December 2007, they in a part 36 offer they put in said that I could pay back £7K to end the matter.

[RudiJames]

Hi all, I have uploaded the defence and the agreement, two pages. Sorry but the POC I do not have right now, but am looking. From memory this concentrated on suggesting an agents relationship between me and the First Defendant that had enticed the Plaintiff into entering this agreement.

agreement-P2.pdf

agreement-P1.pdf

Edited June 19, 2011 by MARTIN3030

[The Mould]

Hi all, I have uploaded the defence and the agreement, two pages. Sorry but the POC I do not have right now, but am looking. From memory this concentrated on suggesting an agents relationship between me and the First Defendant that had enticed the Plaintiff into entering this agreement.

 

Thank you Rudi

 

I have saved the documents to my desk top and shall review before comming back to you.

 

You will need to prepare a Draft Order for Directions seeking disclosure of the agreement/contract the claimant relies upon and copies of all supporting documents the claimant seeks to rely upon in these proceedings.

 

In the DOfD, you request permission to file and serve a sufficiently particularized amended defence in response to any documents supplied by the claimant in accordance with the said order (directions)

 

When the claim was served upon you, you should of sent a CPR 31.14/31.15 request for disclosure of any documents mentioned in the claimant's statement of case (Particulars of claim), however, never mind now, since you can still make a request for disclosure of such in your Draft Order for Directions and at the listed hearing.

 

If you have not yet filed and served any evidence (documents I mentioned earlier) in support of your defence, then you may do so under CPR 31.11 Duty to disclose continues until proceedings have concluded (this Rule applies to all parties to the proceedings).

 

Anyway Rudi, I shall get back to you shortly.

 

Kind regards

 

Good night.

 

The Mould

 

Do you know if the court gave directions previously that the claimant has not complied with?

[MARTIN3030]

RJ are you aware that the defence contains lots of identifiers ?

 

1.Claim number/Court

 

2.Solicitor details.

[RudiJames]

Thank you Rudi

 

I have saved the documents to my desk top and shall review before comming back to you.

 

You will need to prepare a Draft Order for Directions seeking disclosure of the agreement/contract the claimant relies upon and copies of all supporting documents the claimant seeks to rely upon in these proceedings.

 

In the DOfD, you request permission to file and serve a sufficiently particularized amended defence in response to any documents supplied by the claimant in accordance with the said order (directions)

 

When the claim was served upon you, you should of sent a CPR 31.14/31.15 request for disclosure of any documents mentioned in the claimant's statement of case (Particulars of claim), however, never mind now, since you can still make a request for disclosure of such in your Draft Order for Directions and at the listed hearing.

 

If you have not yet filed and served any evidence (documents I mentioned earlier) in support of your defence, then you may do so under CPR 31.11 Duty to disclose continues until proceedings have concluded (this Rule applies to all parties to the proceedings).

 

Anyway Rudi, I shall get back to you shortly.

 

Kind regards

 

Good night.

 

The Mould

 

Do you know if the court gave directions previously that the claimant has not complied with?

 

Hi I think that we mutually have agreed to be late with documents and dates, for instance I know we were both late with disclosure. We are at pretrial review though now so I think I am very late to make changes, look forward to your feedback thank you

[RudiJames]

Hi do I need to change these or hide them if so will do?

[The Mould]

Rudi

 

Your defence appears to be drafted well.

 

You might not need to amend your defence, depends upon seeing the claimant's full particulars.

 

It appears as though the claimant is alleging undue influence exercised in the execution of the loan agreement, clearly you did not have any knowledge of her and so she could only succeed on the grounds of undue influence against your friend who introduced you to her, in any event it appears that influence was exercised against you in order to secure the said payment, I refer to the telephone call to you whereby you were informed that baliffs were on her property.

 

As said previously, a core term of the said agreement was that she would maintain the mortgage payments, which of course she did not.

 

Did she pay any monies to your friend after she had sold the property?

 

Kind regards

 

The Mould

[MARTIN3030]

Hi do I need to change these or hide them if so will do?

 

yes I would def advise to do this.

[RudiJames]

Hi there, yes the defence was drafted by a lady at the firm, but she then went ion leave and the matter got passed on to someone who seemed less aware, My friend genuinely did this as a favour for both parties and asked for no money for doing it, she later asked him to allow her to put all the monies in his Bank and her solicitor has written a letter to him saying that she asked him to do it as her friend, so I have in writing from her lawyer that she considered him to be a friend

[RudiJames]

OK I will update and upload defence with less info showing, can you remove the errant one please thank you

[RudiJames]

properly edited defence is attached many thanks

Defence no namesv2.pdf

[MARTIN3030]

Good-.Have removed the other one now.

[Jasper1965]

IMO and in the absence of the POC's that defence looks fine if a little understated. the key points as we know them are covered, and if the claimant is trying to say the arrears were £3k and the other £17k was profit for you then they're in for a nasty surprise when you furnish the evidence.

 

I wouldn't worry about amending this defence for now, you would become liable for the claimants costs for responding and that could be very expensive. you've denied as neccesary, the burden of proof is on the claimant and the case is flawed on more than one level (imo obviously).

The CMC is nothing to worry about it's probably worth querying why the claimant wants two full days for the hearing as a large chunk of the claim has nothing to do with you and the rest of it.... well it's a crock at best very weak and tenuous and could be dealt with quite quickly upon the facts, it sounds like she's made a lot of claims in the poc's that simply are not true so they will be very short arguments if you just say "prove it" which you as defendant are perfectly entitled to do.

 

 

I wont tell you exactly what a consultant friend of mine replied when I asked him about the effects a haemorrage from 15 years ago might have had on the claimant at the time the agreement was executed as there's been enough censorship on this thread already.

From the little I've told him he's diagnosed the 2007 injury as whiplash, most probably caused when she stuck out her hand to take your money.

[MARTIN3030]

as there's been enough censorship on this thread already.

 

Censorship which was addressing a need-there is no apology going to be given for that.

[Jasper1965]

I am not criticising neither am I asking for an apology.

[RudiJames]

thank you Jasper, I think censorship was down to my csrelessness.

 

Re claim

I had another thought, that for a period of time I represented myself as my lawyers forgot a date for a hearing, no harm was done on the date but I did sau to the other side I ws representing myself to try to reduce costs and find a settlement. I was very honest in these emails and may have messed up. I made a few without prejuduce offers which were ignored and I also I guess stupidly said that I have some sympathy for their clients position and even if this matter was found in my favour I return her some money voluntary, none of this was about me admtting liability I did not know who was legally liable I just wanted to try to settle and stop all the stress, I will check my emails to see all I may have said that could be used against me now

[RudiJames]

IMO and in the absence of the POC's that defence looks fine if a little understated. the key points as we know them are covered, and if the claimant is trying to say the arrears were £3k and the other £17k was profit for you then they're in for a nasty surprise when you furnish the evidence.

 

I wouldn't worry about amending this defence for now, you would become liable for the claimants costs for responding and that could be very expensive. you've denied as neccesary, the burden of proof is on the claimant and the case is flawed on more than one level (imo obviously).

The CMC is nothing to worry about it's probably worth querying why the claimant wants two full days for the hearing as a large chunk of the claim has nothing to do with you and the rest of it.... well it's a crock at best very weak and tenuous and could be dealt with quite quickly upon the facts, it sounds like she's made a lot of claims in the poc's that simply are not true so they will be very short arguments if you just say "prove it" which you as defendant are perfectly entitled to do.

 

 

I wont tell you exactly what a consultant friend of mine replied when I asked him about the effects a haemorrage from 15 years ago might have had on the claimant at the time the agreement was executed as there's been enough censorship on this thread already.

From the little I've told him he's diagnosed the 2007 injury as whiplash, most probably caused when she stuck out her hand to take your money.

 

I think I should have found this site a long time ago

[RudiJames]

I am going to check all my emails and post all ckangesr that I may have made during the time I represented mysefl, to see how much damage was done

[RudiJames]

Extracts, sorry for the length of this email but I thuink best i do not precis this list

 

7-01-2011 to other side

I should also explain my relationship with Mxxxxx. I first met Mxxxxx about 25-30 years ago and he worked for my Father where i worked for an overlapping time, we knew each other very well for about 10 years and he lived at my house for a couple of years and then he moved down to Verwood and we stayed friends. I would also occasionally see Mxxxxx. I am not in the business of lending money to anyone this was a one off request by him and Fxxxxx. Another thing I did with Mxxxx I think after this was that he also approached me about buying the building that was alongside his house, he had a view that if we sold our properties at the same time the whole site may be a development opportunity and wanted me to do this with him and to share the benefits if we could sell both properties on. I recognise that was something that I did with Mxxxx with a commercial end where we would both benefit if a sale took place, but I think this was after any arrangement I made with Fiona and unrelated. I I retain the building now, I never in the end did the development, I was happy to keep the building as an investment opportunity,

 

Please bear in mind I have for the last 30 years been a Marketing Director, not a money lender and I would have no issue if feasible to show my bank statements to support that if it is in question.

 

I have kept in touch with Mxxxxx since but less closely, but generally help him when I can. I hope that helps gauge the situation better. I need to talk to you today urgently about the list of documents etc, so will call when your office is open.

 

7.01.2011 to other side

I am sorry to chase so much today, but I have run into difficulty as when I tried to do my list of documents I realised that I handed almost all I had to my lawyer, I also have an advertisement to do for work that I really should do today through to Monday.

 

I have asked XXXXXX to get my documents together for me, but it will not happen instantly.

 

I would be grateful if you would respond as soon as you can as I need to plan my day and work very soon. I trust you received the email I forwarded to you from Mxxxxx that has also his email address and this may also help you to communicate with him.

 

8.01.2011 to other side

Thank you for your letters. I note your comments about not being my advisor and I understand this fully and apologise for making you feel this was an issue, aside from this rather long email, I will not communicate with you other than on directly relevant issues or with the intention to try to come to an agreement if possible, I am still happy to also assist in you communicating with Mxxxxx, but I would rather you request this now if you feel it will help as I am not sure from your letter whether I have done the right thing or not by interacting so far. There is a reality that I have to face that as your client is legally aided I understand I will not recover legal costs even if I am successful in my defence, so I am trying to mitigate this by acting on my own behalf, though I understand I may need to change this.

 

For the record I have always found you very professional and polite and keen to point out any potential risk before our communications may be inappropriate.

 

I tried many times Thursday and Friday to contact you to see if you planned to stick to Friday for exchanging lists or not as the night before I had realised some documents remained with XXXXXXX, I wanted a quick yes/no answer so I could either cancel work and sort things out on this case or work and do this another time. When your receptionist spoke to you and you gave a message back to me that you had received all my messages and were not in a position to answer my request at that time and later that you would be unavailable all afternoon. As I would have trouble with my work I tried again and was told you were at lunch and would not be back until 2.00pm. I told your receptionist that this would mean I had to assume you meant no and I would have to act accordingly, so I cancelled my work and planned to come to you with the papers I had. Just after 2.00pm I called again to see if something may have changed before I drove down as it is a long drive and I was told again you were back but I would not be able to talk to you. So I assumed that you had no plan to look at an extension and drove to your office arriving there at about 3.30pm. Now you are in possession of my list without me being aware of yours. I understand that you were not obliged to reconsider on Friday but when you passed the message on that you would be unavailable all afternoon and had no plan to talk to me I had to assume that you would not be looking at an extension.

 

Can I suggest that, as you probably had had your list of documents ready yesterday you send these now in the cause of fairness.

 

Regarding my email, I had agreed with you that I would voluntarily help you to communicate with Mxxxxx and that I would advise him to communicate with you. I did this partly as I wanted you to be fully aware of the truth of what happened in 2007 and partly because I think it is right that you should have the ability to communicate with Mxxxx and him to respond, if in any way I can help that. I told you that I would ask him to send his view of what happened between us all by email to me and I would forward it to you and that way you would also have his email to open communication with him. You agreed to this but made it clear I was under no obligation to help you with Mxxxxx. Your letter implies there is now something wrong in me doing this now, but it was done with the intention that you were more aware of the events in 2007 so you could double check your position against them and that you had the ability to communicate with Mxxxx. I have discussed your situation with Martin at length and I think you should email him to state your position and I think he will take advice and respond.

 

Your comment that you did not read Mxxxxx’s email, has worried me that I may have breached some protocol and I assume that same protocol would mean that I should not have added it to my list of documents, though the form said to disclose all documents on my PC.

 

My position on this is very much the same as I said to you, if the law says that based on the true facts I was not entitled to receive what was agreed at the time then that is the law, but I want to be very clear with you to establish the true facts first and understand how the interpretation of the law applies to these. Some things are certain to me, I am not in the business of lending money and I arranged the money in good faith for Fiona based on terms she put to me and I spoke to her personally to verify this, I never put any pressure on her and bearing in mind that I think this was quite a risky situation as although I had power of attorney this could be revoked at any time and I may not have been repaid for years, I also had to make many calls to her mortgagees and travel at close deadlines to stop the bailiffs and I had to raise the money. As I said on the phone if Fiona had called me and said she would give me £2,000 or £3,000 for doing this I would have definitely said no, I think I may have done it for £5000, but it was risky, she suggested the amount I would make not me.

 

To make you aware, XXXXXXXXhas also confirmed she will make a statement of facts for us to review, but I will not request this until the witness stage. I am due to get married on the 21st and have a very demanding job to do so I am still minded to make a fair settlement if we can come to one, but I think it should be reasonable and bear in mind that this money I provided was at FiXXXXX’s request and I did exactly as she requested and I promised and that this was a risky transaction for me that could have seen my money unavailable almost indefinitely as although Mxxx spoke well of her it is very clear that lending money to someone that has not kept up with her mortgage payments is very risky and I was not sure I would be able to force the sale of the house if she decided to never sell it as the Power of Attorney can be revoked at any time as I understand it.

 

Re limiting the number of conversations, most of the exchanges we have had recently have either related to trying to agree a settlement or me helping to arrange communications between you and Martin, the former is at my request as I would rather move on from this action with my other obligations, but on the latter you asked me if I had spoken to Martin and that prompted my feeling of obligation to share with you as much as I can in a manner that Martin would not see as unreasonable.

 

09.01.2011 to other side

 

Please read this and if possible call me ahead of my other correspondence.

 

I would like to try to come to a settlement of some kind before you read or respond to my other emails. I have a very high pressure job and not being able to communicate Friday really created me problems with Ad deadlines and with the commitments from my Marriage I would like to try to try to come to an agreement that is fair on both sides. My job is very creative and I need to have a clear mind when I work, this also has a value to me. (Jasper I wrote this as we had to exchanmeg documents on Firday and NR made herself unavailable all day so I had to drive 150 miles to deliver mine)

 

I would also be grateful if you would agree with me what documents I sent by email or whatever that are in error and what should be returned and where we stand on disclosure or should we redo this and on dates. I have not meant to breach any processes and I appreciate your kindness in trying to make me aware of this.

 

If your client does not wish to settle at any amount that I would see as fair in the circumstances, then I will do you have asked me to consider and revert to legal representation.

 

With kind regards

 

10.01.2011 to other side

I am sorry to email again, but I feel we have some unresolved matters from Friday and unless you feel otherwise, I would like to find time outside my work to discuss with you. Do you think you can schedule in a time for a call. What I think is still open is:

 

1. Whether settlement is possible. It occurred to me today that the first I heard of this matter was a court order saying I had been joined as a party and your claim. Would we not normally have had a period of understanding each other’s position and attempting to settle before proceedings. I may be wrong but normally I had thought I would have received at least a letter or a letter before action or something, or maybe because I was added to your claim this is not necessary.

2. We should also discuss your email regarding an extension for lists of documents. I had to assume that you did not want to give an extension on Friday from your unavailability and the message I got back from your receptionist and feel I am at a disadvantage now and would appreciate us taking steps if agreeable to remedy this.

3. As I said before if we can’t settle, then I will revert to legal representation.

 

Kind regards

 

11th January 2011 from other side

 

Without Prejudice Save as to Costs

 

Dear Mr xxx

Thank you for your emails.

 

Disclosure/Court Timetable

 

Firstly with regard to disclosure, when we spoke early last week I explained that we would both need to prepare a list of documents and that we would then speak on Friday to arrange a simultaneous exchange of the lists probably via email and then following on from that both parties would have the opportunity to consider the lists and request copies of any documents they required. It is not entirely clear therefore why you felt it necessary to drive to the office to hand deliver the documents on Friday. I appreciate you were concerned as you were unable to speak to me on Friday (I did not receive any messages that you had tried to contact me on Thursday) however it is unreasonable to expect me to be able to respond to all messages and emails by return.

 

I note from your emails that your previous solicitors still have some of your paper work and I am unclear whether you have had the opportunity to attend your storage facility yet and in the circumstances I consider it appropriate to return your documents to you so that we can adhere to the directions set out in the previous court order properly. I will return the documents you hand delivered on Friday in this evening’s post and I confirm I have not looked at these.

 

The Court order dated 9th November 2010 sets out the steps each party must take and the order in which these should take place. We have agreed amendments to the dates only and other than that the court timetable remains unchanged. I suggest we work to the dates set out below and I should be grateful if you would confirm that this is agreed.

 

Settlement

 

As previously discussed my client is keen to settle matters as quickly as possible and will consider any reasonable offers of settlement you wish to make. It is in all parties bests interest to try and settle matters without a fully contested hearing. We have had various discussions in which you have put forward your views on the case and you are aware of my client’s position.

 

For the avoidance of any doubt I confirm my client’s previous offer is still open if you wish to accept it. Alternatively if you wish to make a further offer to my client please let me know and I will take instructions on the same.

 

13.01.2011 to other side

 

 

Thank you for your email/letter. I am not sure what is happening with my email address but please use this one for correspondence.

 

Re Friday: I had had the urgency as the Court Order seems to read to me that both lists and copies of documents had to be sent on the day. I know we had extended by a month, but we had not revised the terms. I had called Thursday afternoon, but was told you were off. I worried on Friday as you passed a message to me that you would not be available all day after I had waited during the morning for a response. I think it was reasonable to assume you therefore did not plan an extension for that day as you would have told your receptionist to tell me, instead of saying you would be unavailable. When I got that message, I made it clear to your receptionist that I would have to assume that we were not extending and act accordingly.

 

Re the papers you returned, I have concerns as these were both opened and re-organised into reverse order, I don’t know what of all I have sent is declared and what is not.

 

I do take your point that I should not expect an instant reply, but it was Friday and the previous day we could not talk when I called as I was told you had the afternoon off and we had a deadline to meet. I apologise if I am misunderstanding the processes but I assumed the dates were vital to meet.

 

I have sent full explanations of my position and many attachments over a series of emails and the letter and I don’t understand your position as to why you feel I will not be successful in my defence, this also means it is hard to know how to calculate an offer.

 

To help me to know what considered offer I should make to see an end to this matter before I get married next week. I would ask you please let me have some pieces of information that will help me understand if I am misunderstanding something.

 

1. Is your client legally aided, I have assumed so but please confirm, assuming I am entitled to know this. I think I should know as it will affect my cost position as I think I will not recover costs.

2. Please correct me if I have this wrong, but you said before that your position was that as you felt I did not know Fxxxxx before the transaction then you had been advised that this was a business relationship and therefore subject to the Act and this would be born out in your documents or disclosures. I have shared so far the account from Mxxxxx of the events at the time, an account of my relationship to Mxxxxx as explained by myself and the main agreement I entered into with Fxxxx, these I believe bear evidence that this was a friend of a friend relationship and that also the main agreement had many more elements than simply a loan and I had very importantly the risk of Fxxxx never selling the property and me being out of hand of over £11,000 for potentially decades. Further I had to negotiate with her mortgagees on her behalf and also with professionals. Whatever is said this was a very high risk transaction for me that involved much effort, that I was expected to respond to instantly with very little time to judge the risks etc and it involved most, if not all, of my available moneys to complete and as such a long delay would have a major impact on my ability to run my life.

3. In relation to 2 above, can you suggest to me what you rely on whether by statute or documentation that makes you come to this conclusion. I know that we have a process about disclosure but I have said all along I will do what is right and fair and if you have a convincing argument that I am in the wrong by explaining it, it gives me a chance to gauge my responsibility to make an offer and the extent of the offer. So you fully understand my side, on my initial investigations of what happened, my contention is that the relationship with Fxxxxx is not part of any trade or business, it was private and I cannot see that an act could be drafted to try and interpret this kind of transaction as business. I also sent to you the main agreement and this is not a loan agreement and I am therefore not sure if the act you refer to applies. There was no pressure from me or vulnerability taken advantage of, the offer put to me was clearly considered over a period of time by Fxxxxxx and the pressure was placed more on me to act very, very quickly, for instance I took a day off work to take out funds and drive to pay them in to Fxxxxx’s Mortage account at one days notice. Finally Fiona always told me that she wanted me to do this transaction and was very grateful for my help. Her view as explained to me was that she would keep a very large sum from the sale.

4. Also were you under no obligation to send me a letter before action or the like, is it normal that I would just be joined to proceedings, without being told why and given the opportunity to discuss things first. For instance the claim I was joined into says that I lent your client I believe £3000, whereas I have a payment receipt for over £11,000, I think her statement was misleading and this may have influenced the order to add me to the proceedings.

 

I ask all these questions as I am minded to make a serious offer based on what is right taking into account a full understanding of the facts, the agreement we entered into and the law.

 

I also have previously sent you MXXXXX’s email to assist you to continue your communications with MXXXXX and feel that it is in your interest to contact Mxxxxx as I think he should be fully aware of your claim. Would you like me to contact him any more to help resolve that side or do you now want me to step back from that? I have not asked MXXXXX for any fixed address and I do not know it, but I feel the email is a fair step to assist you.

 

17th 01.2011 to other side

Hello NXXX

I have to be honest I do not feel that I am in the wrong at all in this matter, this was a transaction that was put to me by your client. I never proposed or altered any of the numbers she suggested, there were very high risks involved in doing this and I honoured my part in its entirety. I also believe I can arrange for a witness statement from XXXXXXX that I hope will provide further evidence of this. I also am not at all sure that the act applies to this transaction, at least the spirit of the act seems to me that it should not apply.

 

All that said I want to get on with my own life and want to make a without prejudice offer. This I feel is more out of good faith than because there is any responsibility on me to do this. I therefore make a without prejudice offer of £4000 open until end of business Wednesday 19th January 2011. I would ask you to quite quickly advise me if you will accept this or not and if you say no please answer to some extent my previous email so I understand if I am missing something. If you are to accept the £4000 I would ask for a reasonable period of time to raise the funds.

 

19th January 2011 to other side

 

Hello NXXX

 

Did you receive the email I sent with the without prejudice offer for settlement on Monday?

 

I wonder if you are in a position to reply, I would remind you I get married on Friday and for courtesy it would be nice to know where things stand.

 

As mentioned previously please use this email as you had issues with delivery to dxxx

Kind regards

 

(Reply from other side)Dear xxxxxxx,

 

Thank you for your email. I confirm safe receipt of your offer of settlement and confirm I am taking my client’s instructions and will revert to you in due course. I cannot guarantee that this will be before Friday. If the offer is rejected I confirm I will provide a substantive response to the previous issues raised as requested.

 

Yours sincerely

 

NXXX

Solicitor

20.01.2011 to other side

Hi NXXXXX

 

Yes thank you, I can be available Monday and will call in the morning. It would be nice if I knew about your offer or any substantive reasons you disagree before we raise further actions and costs as I would rather find a fair settlement and concentrate on my work, so if you do hear back or wish to explain more, this would be very well received.

 

If we do not get any progress, then I assume we agree to discuss documents we know of on Monday and arrange to email or post them or confirmation or list, whichever is agreed on Monday if necessary,

 

26.01.2011

 

Hello Natasha

 

Thank you for your list of documents of which I confirm receipt.

 

Regarding its contents I note that you have included the title for xxxxthat I had preciously informed you that I own having purchased I think just after I was asked by xxxxx for her help. I trust that you will be ethical in sharing that with the court. I also have explained how that transaction came about.

 

I also have explained that my trading company is xxxxxx that is a marketing company and that can be easily evidenced.

 

Please would you now explain your position as promised in our call and also advise what cost would be involved in seeing the document which is named extracts from xxxx Diary and also xxxx’s file.

 

Thank you David

 

 

27.1.2011

Kindly let me know when you will be

 

1. Providing the promised substantive explanation of your position so I can review where I stand and check I did not get anything wrong (I have waited for this for quite a time now)

2. Answer me regarding my request to see documents, we are under quite an urgency to follow things up.

 

My position has not changed and it is if based on the truth and the term of an act or precedent shows I am likely to be unsuccessful in my defence, whether I feel that is morally right or wrong I will take account of that and attempt to settle accordingly, so I would ask that you take this positive approach to help us get to the bottom of this matter as quickly as possible.

 

Finally I had also asked if your client was legal aided a while ago so I can understand my likely costs position if I am successful and also you did not answer me as to whether you still want my assistance in helping you to communicate with Mxxxx.

 

28.01.2011 to other side

Hi NXXX

Please would you call me today reference our lists and exchange of documents I think we may have another deadline to meet also I think it may be useful for me to declare further documents, if that is agreeable.

 

My number is XXXXXX

If you do not plan to call please let me know as I would like to receive copies of various parts of your papers and to know the costs involved in receiving them.

 

Please also as promised provide the substantive explanation of your claim, you had promised this and I think it will help me make a decision as to whether I should make a further offer and prevent further costs ... and the other questions that are still outstanding.

 

Kind regards David

 

28.01.2011 to other side

Hi NXXXX

I understand your point regarding the explanation, but I do have very trying work commitments and as a result I am more inclined to settle than to proceed with the complications and costs of this action, I did say this many times, but I feel I have to settle at an amount that is fair and based on the truth.

 

When we spoke 2 months ago you mentioned I would have to wait for disclosure before your arguments would become clear, I have said and I reaffirm if your arguments are convincing in law and based on the truth then I will respond to them with a fair and correct offer of settlement, whether I think the result is morally correct or not. Even if I am 100% in the right legally I have some sympathy for xxxxa’s position and would not be happy to walk away without redressing the situation in her favour to some point.

 

I say this respectfully and with no mean to make offence but if you understood this from my point of view I was asked to do something by Fxxxxx and Mxxxxx three years ago, I did it and now without any letters of warning first I receive a summons adding me to a claim and I really think it would have been better to explain the matter understand the facts and legal arguments and try to settle before proceedings. I am also fully willing to disclose any information about what I do for my income now and in the past, what I own, my relationship in the past and now with Mxxxx and anything else you may wish to ask that helps properly establish the facts. You did ask if I could help you contact Mxxxx and I did so and I have made him aware that he is party to your action, to be clear on that I did so with no request for any change in your position.

 

Regarding documents I don’t remember whether we agreed Wednesday on the phone, I am sorry for that. I have a letter from you that says the 28th January 2011 and I am trying to meet commitments correctly.

 

I will make the papers you requested available to you, but I travel to Holland next week and wonder whether there is a date you would expect to receive them. I do not have a copier at home either so I would need to find a chance to go out and make copies. I will double check what entries 1,2,3 and 5 were after I have sent this email.

 

For my part I would like to receive the xxxx file please for the £50 + VAT and add the medical record and the diary entries. Would I also be able to inspect the originals of these documents please, or is that preferable instead of copying if it can be arranged.

 

The further documents I would like to consider to add would be my bank statements for the time, which would show you that the money lent was a very large element of my disposable funds and also that there was no arrangement with Martin regarding him being my agent as you appear to be asserting in your claim.

 

I am sorry to labour this but I repeat again I want to settle this in a fair way and I ask that you show me a reasoned argument why I should reconsider any offer and I will do so in good faith, it is appreciated that this will be early next week and I am grateful for that. All I would ask is that the explanation illustrates to me the clause or precedent which you feel my actions fall foul of and what is contended is based upon an honest interpretation of events.

 

If you have any questions at the same time concerning xxxxx, xxxxx (my design company), the properties or any of the other documents you placed in your list please also give me the opportunity to explain before making assumptions. I am not sure why you have included Mxxxx’s old house and his business or even xxxxx, but I did have a relationship with Mxxxxx outside of Fxxxxxx and I am happy to explain anything you have concerns about if I have not already done so.

 

04.02.2011 to other side

 

Hello Nxxxxxx

Please urgently advise me when you will be in a position to respond to my correspondence. I have anticipated a letter from you all week and am going away for a series of business trips that span a month and would like to discuss with you when you plan to let me have the requested input and access to documents.

 

You did promise me I would receive more detailed information so I could reassess my offer at the start of this week, this would be very helpful to achieving a fair conclusion. I would also be grateful for your confirmation that you received the requested copy documents sent in the post to you and also whether you will be sending those requested to me and allowing inspection.

 

Finally as I am in Europe and Asia for a long period of time I would like to check with you how this impacts the dates and to see if we can agree alternative timings if possible.

 

10.02.2011 to other side

Hi NXXXX

Some time has now passed since the promised correspondence and I did not receive anything re requested documents, availability for inspection or the more substantive explanation of your position, please respond as you promised to .

 

Kind regards

 

 

10.02.2011 to other side

I have now not heard anything on any of the matters so need to advise you of the following.

 

I now have to travel and will be out of the country for my client work in Germany and the Far East until after March 10th.

 

I therefore will have difficulty in arranging witness statements etc in time and also re the hearing.

 

I would like to ask you to agree a suitable extension, I will still be available on email while away and would ask that you still forward documents to my home address in the meantime and confirm re inspection.

 

As a reminder I am doing all I can to reasonably avoid this going on unnecessarily and only want what is a fair outcome so a fair explanation of your side is eagerly awaited.

 

Re Mxxxxx, I cannot make a judgment as to whether he is right or your client is right, but I have discussed this matter with him in detail now and am happy to help you to contact him, but I have not asked him for a UK address.

 

Re documents I would like to amend my list of documents if you are agreeable to cover correspondence between parties that I left off and bank information which I understand I have to give the Bank notice to forward, I have not found any further papers in my storage and someone is checking my boxes in storage in Poole for me.

 

You can get me any time up to 7pm this evening on my mobile if you would like to discuss any of this further

 

 

21.02.2011 to other side

I would like you to confirm whether you would kindly send me the promised update. A lot of time has passed and I neither did not hear from you regarding the availability of your documents and the adjournment.

 

I have finished my stay in Europe and am now in the Far East for my work. I would expect to be available again during late March, but we need to agree witnesses and agree a hearing date. My trip was inevitable for work, but I am keen to attend the hearing when it takes place.

 

Please have the courtesy to reply to my emails and give me some clarity,

 

If you can explain to me where what I have done falls foul of the law, then I will be happy to double check and if you are correct make an appropriate offer in accordance with the law, this surely is preferable to running up more costs, whether your client has legal aid or not. You have said to me before that it would become clear in disclosure, but you did not disclose anything yet or confirm to me receipt of my documents.

 

I am not in the UK to receive post, but have been told that no parcel of documents has been sent to me as of yet.

 

Please respond,

 

Many thanks

 

28.02.2011 to other side

 

Hello Nxxxx

 

As I have not heard anything back re list of documents or other communication and as I am still abroad, I have to pass this matter back to my lawyers to handle. I sent you all the documents you requested before I left the Country by email and post and made some requests for documents and inspection of your side, which you have received but have never responded to.

 

I will have a witness also Miss Sxxxxx who used to be Mxxxxx’s partner and worked in the shop with him and Fiona. Please communicate directly with Brian Fogarty, you did promise to explain your position and answer my questions which I would respond fairly too, but you have never done what you promised to do, so it is very difficult for me to revisit any offer I make fairly.

 

Brxxxn will communicate with you I hope quickly re the court dates adjournment request and witness statements and disclosure.

 

ys

 

Edited June 19, 2011 by RudiJames
names removed

[RudiJames]

Finally the only other useful information I can provide is where we stand on court papers, Actually I think I am in a mess, they have posted their listing questionnaire just in time but we were late to post and I think that the lawyer has not sent a payment of £1K with it as they have asked me for a £1k fee, also we have asked to transfer this to a mutli-track system. I think from previous correspondence I have more disclosures to make and request and I am unprepared for the PTR for thursday. We have told the court that we would like to adjourn thursday while we try to negotiate a settlement.

 

I know it is not clear from correspondence but other side have ignored my offers completely never saying they would not accept them. I thnk they may have problems consulting with their client or really feel they are guaranteed to win and can treat me and my lawyers without any consideration

[The Mould]

Good morning Rudi

 

Can you scan in and post up the claimant's Particulars of Claim please. We need to know, precisely, what her arguments are against you and why it is alleged that the said loan agreement is regulated by the CCA 1974 (as amended).

 

You appear to say everything with conviction and therefore you should not feel responsible to offer a settlement.

 

Did you say that the claimant paid £75k into your friend's bank account? When did your friend go of to Spain and what happened to the sum of money that was paid into his account by the claimant?

 

I think you should make the effort and prepare for the pre-trial hearing and speak only for yourself in this matter, you are not in a position to answer for or speak on behalf of the 1st Defendant (your friend).

 

Further, you should not engage in any further correspondence with the claimant's Solicitors unless it is relevant to the case and the issues thereof.

 

Please try and post the full particulars.

 

Kind regards

 

The Mould

[Jasper1965]

Morning.

 

the emails make interesting reading and some good evidence as you have brought up their failures under CPR and pre action protocols namely their failure to make contact with you before just adding you as a second defendant. You must be prepared to use this to your advantage if possible citing this failure and the general unwillingness over an extended period of the claimant to negotiate the exchange of information as a reason for any tardiness on your behalf in respect of filing deadlines etc. These failings could have a severe effect on any costs award and have caused you to run up unnecesarily costs already.

 

You've also set out your position very clearly and imo it is a favourable position and shows you to have been a very reasonable person to deal with both during the event and this subsequent action.

 

I'm a little puzzled when you say they asked for the fee for the n170 as it is for the claimant to pay the fee not the defendant. Who asked you for the £1,000?

 

The n170 fee is £110 it's the hearing fee that's £1090 and again that's for the claimant to pay.

 

All in all I'd far rather be on your side in this than the claimants. the claimant has breached CPR from inception of this claim, made claims in their case statement which are untrue and can be proven false etc. etc. etc. You have tried to be reasonable at all times and have been frustrated by the claimant/claimants reps.

They clearly see you as a cash cow. You must rescind your offer of settlement but I don't think they could accept it if they wanted to as the sols have seen this as an easy way to rack up some fees and I'd guess if you offered every penny of the £8k back it still would not be accepted as by the time the sols got their cut there'd already be nothing left for the claimant.

It's hit or bust for the claimant here, she is taking a heck of a gamblein bringing this claim though if the first defendant is unrepresented she might feel it's justified as the case will be awarded against him by default but I don't understand what she's hoping to gain from suing you.

The risk far outweighs the gain and the facts and evidence are overwhelmingly against her. You've openly identified the basic fraudulent error in the claim in your emails that she's claiming you only paid her £3k yet they've proceeded without amendment. The agreement was drawn up by a solicitor, the same solicitor she instructed to pay you and was clearly drawn up as a private loan agreement nothing to do with the CCA 1974. I despair for her I really do, she's been given advice which could cost her very dearly but she's in too deep now to consider discontinuance as she would be liable for costs to date. For her sake this case needs euthanised but that wont happen until it's too late if it's not already.

[The Mould]

Do not undertake to communicate with your friend, let the claimant's Solicitor undertake that aspect of the case, it is not your responsiblity Rudi.

 

Kind regards

 

The Mould

[RudiJames]

Hi good morning Sir

 

I will only have POC on Monday morning but I will upload

 

My firend and I say the word aith caution as now I really see him as someone I am best to not stay in touch with I believe was asked by her to put the £75K into his Bank, he claims that he returned the money and paid many bills on her behalf, but he also says maybe not all, maybe £10K short. I have no idea what is really true, but I would expect taht he paid back over half, he then got in financial trouble and left the country to avoid his creditors (in my opinion) He says he cannot get his bank details to prove ewhat he did pay as the bank have foreclosed on him, However as you say I should not get so involved in this I guess, I think her motivations for putting the money with him were bad as were his when he received it.

 

I will do as you say re pretrial hearing and communication thank you