Case Management Conference coming up???? Plz help.

[chez262]

Hi,

 

I have been informed I have a Case Management Conference coming up next month in regard to my case linked below,

 

http://www.consumeractiongroup.co.uk/forum/showthread.php?302745-chez-s-HP-agreement-problems

 

I don't know what this is or what I should prepare for this. Can anyone help please?

 

Thanks.

[chez262]

Can anyone advise please?

Anything would be most appreciated!

 

Thanks.

[AndyOrch]

I assume you are the defendant chez and as such its more for the claimant to prepare than yourself.Litigation requires a time commitment by all involved and most importantly by the Claimant. At any CM conference the Judge will give directions for the future conduct of the case, deal with any specific applications and may decide to dispose of an issue there and then, or order the trial of a preliminary issue. He may also discuss settlement with the parties.

 

Regards

 

Andy

[chez262]

Hi Andy, many thanks for your reply.

 

Yes I am indeed the defendant. My solicitor has asked me for instructions on how to proceed with settlement in order for him to decide how to proceed with this matter.

He is also asking for a lot of money on account, which quite frankly I can't afford as I've already given him over £3000.

 

I am contemplating going this alone but I'm unsure of my required involvement in a CM Conference.

 

One thing is for certain, I do not want to settle on the creditors terms leaving me in a worse off situation then before without challenging this as I feel very strongly about my defence. Will I be required to put forward my defence in the CM Conference? I've never been to court before

 

Thanks again.

[AndyOrch]

I have not read your thread Chez or had the benefit of any proposed defence, whats the figure involved and the basis of your defence?

Paying £3k to a Sol and then for him to ask you how to settle doesn't sound good business to me.

 

Andy

[chez262]

Andy,

 

My defence has been going on since 2009, firstly they went to court without me receiving a court date at which I was given a judgement. The creditor then ignored all communication from my solicitor in regards to applying to have it set aside so my solicitor held out. In which time they proceeded to sell the debt to another company whom is now the claimant.

The now claimant agreed at the last minute to my set aside application. They now want me to settle on their terms at their proposed cost which is more that the orignal cost and I've already had to pay my solicitor £3000+ already.

 

My defence is basically Termination after 3 weeks missed payment. No default, no warning, nothing. It gets complex from here as the contract is over £25000 but the agreement is on regulated paperwork. There is another contract (guarantor) which is also on regulated paperwork but has no clause of relieving it of the act.

At the time, I asked for payment relief after the termination as I couldn't pay £12000+ in one payment immediately which they requested in the termination notice. They never responded to it and then I received a default notice and termination notice a few months later. Then the same again a further month later.

 

They also told me, and I have a witness and addition information that I was entering a Hire Purchase agreement but in fact it was a Hire agreement (which I only found out once I got a solicitor).

 

They went on to sell the equipment so the final cost was £6500 plus what they say is interest but my defence disputes this.

They claim they have already spent £7000 on court fees etc, with an additional estimate of £12000 if it goes to court.

I've already spent £3000 plus the estimated further £7000 if it proceeds to court.

 

My solicitor says 'he would like to think the judge would throw it out' but he can't be certain as it's judge lottery.

 

I don't know what to do next as I can't continue to pay my solicitor who want money on account to go to the CMC.

 

Regards,

C

[chez262]

Can someone please confirm whether cases are only looked at from a technical perspective?

My understanding, based on the latest high court case which went in favour of the debtor on harrassment grounds, was one that other issues can be taken into consideration by the judge when at trial. Am I wrong?

 

Thanks.

[AndyOrch]

Many elements can and should be taken into account when considering judgment.The Claimants behavior and also the Defendants

pre action protocol and mediation attempts.All have an impact not only only on the outcome and judgment but also when deciding the costs.

 

Andy

[chez262]

Thanks Andy, I thought as much.

 

I'm told by my solicitor that if I successfully defend the case then it will only be for technical reasons.

 

He continues to state that "this is one of those actions where the court will be asked whether because of "technicalities" you have any (or some) liability. The action in fact relates to a hire agreement and not a credit agreement and there is a significant number of differences. Amongst other things, you would never acquire title in the equipment and, whilst you might have been told by the supplier that you would obtain title, the agreement clearly states (for example underneath your signature) that "The goods do not become your property". The fact that you signed the agreement will more than likely be construed by the court as evidence that you were aware of the terms and conditions of the agreement, or at least that you ought to have been aware."

He goes on to say that the T&Cs clearly state that I was required to make monthly payments and if I didn't there would be consequences.

I do not want to disregard or disrespect my solicitors views and/or opinions but surely the claimants behaviour has to be taken into account.

 

The company in question told me the machine would be mine, they still do make these claims to potential customers purchasing similar products and using this method of finance to do so. Is this not taking advantage of my 'normal person' status? Can this not be taken into account as me being prejudiced by their actions? Or is not solicitor right in saying it doesn't matter how they act, what I signed is what I signed?

 

Thanks again.

[Gaston Grimsdyke]

Be very careful. When you say "the company in question" told you the goods would be yours, you probably mean the supplier and not the finance provider. If that is the case, that is not a defence. The supplier and financer are two separate entities and it is settled case law that the supplier is not the agent of the financer, so whatever the supplier said to you has no effect on your liability to the financer (whether the agreement is regulated or not). Similarly, the form of the agreement is irrelevant - if your repayments exceeded £25K then the agreement is in fact unregulated, whether it is done on a regulated agreement or not. Your solicitor should have told you this.

[chez262]

Thanks Gaston, it was both the supplier and the finance provider who told me the goods would be mine.

I was initially told by the supplier that I could pay for the goods via a financial agreement. Then I received the agreements to sign which said Hire Agreement, so I called the finance provider and spoke directly with the Manager because of my concern and he confirmed it by saying the goods would become mine at the end of the agreement. (They are still proceeding with this type of finance now).

When I contacted my solicitor at the very beginning, he told me it was unregulated but that the guarantor contract was regulated. It is this I want to challenge (regardless of the fact that I'm unhappy I signed an agreement warning me I was entering into a regulated agreement next to the signature strip). He also said these type of cases are judged only on whether the defendant is prejudiced, surely if this is the case then other factors will have to be take into consideration? Like behaviour?

I am aware that the judge could rule out technicalities like the one you describe, but is this all he will do?

What about the recent high court judgement that favoured the debtor on grounds of harassment? I understand this is not a harassment case however doesn't it prove that the judge doesn't only look at technicalities or am I way wide of the mark here??

 

Thanks.

[chez262]

What I'm trying to establish is whether I have a case based on anything other than just technicalities? By technicalities I mean no default notice, wrong default notice, wrong calculations etc. I know cagers are very dubious of these defences now and for good reason.

 

By anything other I mean, the 'creditors' behaviour. Like for instance, telling me I would own the goods at the end of the agreement but they terminated so I own nothing! Granted I had a late payment (by 3 weeks) but does this justify demanding an extremely high sum of £12000 I quite clearly couldn't pay as a one off payment?

 

The claimants demanding the total sum ramaining on the balance of the agreement but I was never informed I actually only owed that sum minus the cost of the goods.

 

I explained my situation to them and they asked me to write in for a payment relief. They apparently sent the response of 'NO' to the burnt down property (based on the SAR), I never received it leading to a DN and another TN.

 

Giving me an unregulated agreement (on regulated paperwork) with the relating Guarantor agreement being regulated!

 

Arguing the agreement is not regulated but not relying on the first termination (the one without the DN). Instead using the Third DN and TN.

 

No communication with my solicitor for 8 months after numerous emails sent requesting information. This was after it had been to trial without me and I was trying to have it set aside for this reason. Leaving me to sit around twiddling my thumbs! First communication regarding the case was when they applied for a CO, next was to hear they had sold the debt on.

 

The new claimants informing us they would be challenging the set aside application. Only to accept it 2 days before the hearing!

 

When it went to trial the first time (without us knowing), one defendant received a judgement (out of four). The CO was for two of the defendants that didn't receive the judgement. Once my solicitor raised this, the court issues the other three judgements. Eight months after the first!

 

They sold the goods five months after taking receipt of it from me even though they have a buy back agreement with the supplier, claiming in their reply that it was damaged and missing parts... This is a lie!

 

Do I have to just accept that I am the debtor therefore I should expect this leaving me fighting a losing battle or can these actions be defended? I understand a lot of it is probably based on my naivity but does the judge not take this into consideration?

 

Please help, I only have a week!

[Gaston Grimsdyke]

I remember this from your other thread now. Your solicitor has done a spectacularly bad job for you. Fact number 1: the main agreement is not regulated, it's been done on a dual document. Fact number 2: despite what it says on the face of it, the guarantee is also unregulated - you can't have a regulated guarantee of an unregulated agreement. So forget any technical arguments about non-compliance with the CCA, the CCA just does not apply. I don't think you have a great case on the misrepresentation of the agreement as a hire purchase instead of a finance lease either. Lets say you were misled by the finance co that you would own the kit at the end of the hire term (i.e. a hire purchase agreement). What is your loss? Given that you defaulted, what would have happened is that they would have repossessed the kit, sold it, and applied the sale proceeds against the amounts due under the agreement. That is in fact precisely what happened anyway. So in other words, there is in fact no loss as a result of the misrepresentation. Apart from that, you are going to struggle (as a businessman) to persuade a court that what you were told overrode what the agreement said. You might have an argument on whether they achieved the proper value when they sold the kit.

 

Having said all of that, their own solicitors appear to be totally hopeless, so I think you can negotiate a good deal for yourself. In terms of preparation for the CMC, you don't really need to do anything. They are the Claimant, it's up to them to suggest what directions for trial should be given. If there is anyone at court with authority from the Claimant, you might try and use the occasion to explore what sort of settlement they would expect - I think you should not let this case get to trial. Their costs are absolutely ludicrous though, 2K is more like reasonable.

[chez262]

Hi Gaston,

 

Yes that is I unfortunately.

 

I am starting to understand that the chances of a DJ recognising the contract as being regulated, or afforded the benefits of the act being slim to none and I appreciate what your saying about the fact that the guarantee can therefore not be regulated. However, the guarantee signed is presented as regulated therefore it must stand for something, even a claim of unfair relationship should it not?

Is that then not like saying 'you shouldn't commit a crime, but if you do it doesn't matter there is no consequence'?

 

Again, I totally understand your point on the misrepresentation of the agreement and your correct, had I of continued with the same actions then the goods would of been repossessed and sold. However, my actions were based on the understanding that the kit was indeed mine and that I had paid over half of the 'finance' and therefore they required a court order. Had I of not been misled into believing I was signing into a finance agreement I think I would have acted completely differently when I received the termination letter. Then again, do I just accept the fact that I was naive enough to believe what they told me over what the contract actually said and put it down to an expensive lesson learnt, afterall isn't this how a DJ would see things?

 

These 2 points above are a contradiction in my view... On the latter point I should accept what the contract says as opposed to anything misleading but on the former point, I should disregard what the contract says as it is just misleading but untrue.

[Gaston Grimsdyke]

Ok, on the unfair relationship point unfortunately that is a non-starter. It only applies to credit agreements, whereas the agreement in question is a hire agreement. Secondly, as to the application of the half and third rules had it been a hire purchase agreement, that only applies to regulated agreements - which of course this isn't. You definitely have a partial defence on the VAT point, and possibly the sale proceeds of the repossessed kit, but want you don't want to do is antagonise the judge by taking too many technical points. You could try arguing that the presentation of a regulated form of guarantee made you believe the main agreement was regulated, but you would have to then prove to the judge that you would never have entered into the agreement had you known that in fact it was not regulated. As you needed the kit for your business, I think a judge would find it hard to believe that you would have rather not had it at all than had it on an unregulated agreement.

[chez262]

Thanks Gaston, I very much appreciate your information. The last thing I want is to go into this with any form of false hope and I certainly don't want to be blinded by an emotional view.

Is there any form of alternative to 'unfair relationship' in hire agreements or do hire agreements leave the debtor with no protection at all? I guess this answers your final point above, had I of known I had no protection and was signing a 'financial' agreement where I owned nothing I most definately wouldn't of entered this agreement. I didn't need the goods for the business, it was more of a long term investment to the business once I owned it and it was paid off. In hindsight I'd of never of got it as it was never going to be mine anyway.

I will take your advice and not use non starting technicalities.

Thanks again, much appreciated.

C