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    • I Submitted my defence last weekend,. In short, denying all allegations and requesting that the claim be struck out as claimant has no documents to support their claim and  have failed to provide any evidence whatsoever that any monies are owed to them by me and I considered it an abuse of process.   I have now received their directions questionnaire where they are championing 'Mediation over the telephone'   Should I agree to mediation once I receive the questionnaire from the court bearing in mind the dispute is about the existence of the alleged account and the lack of documents to prove it exists/ existed?   All I can say in mediation is that I've never heard of the account...... Do Lowell have to provide documents to the mediator?    Thanks in advance for any advice offered and sorry if the answers can be found elsewhere, but I'm not sure where to look 🤓   Spam 
    • Thank you all for the comments.. I hope to get a transcription of the recording, but I don't know if that's possible. I have asked the Court so will see what comes back. This is an overview and may not be exact wording..    I'll add the highlights from what I understood.. [both Judge & Mr D were well into the legal jargon].. some of the more technical discussion was lost on me..   Opening Statements.. VCS......Events from Incident to Court summons.. pretty much the WS opening Me........Night time, bad weather, bad visibility, children in danger walking on the road so "Signs" were not very clear VCS......Pictures on their WS were in daylight. Picture of the car we very blurry due to the rain. VCS agreed it was bad.. Me........Kangaroo Court - Every drop down on the appeal site is an admission of some sort of guilt. Needs to be an "Other" in case your situation doesn.t match Judge...Asked for clarification on POFA from VCS  VCS......Explained POFA in his terms and what he understood Judge...Was it a Parking event? VCS......No, it was a Stopping event Judge...Asked VCS who owns the land.. he didn't know so I told him Southend Council owns the freehold of the airport, but it has been leased since 1994 to London Southend Airport Company Limited Judge...Surprised VCS didn't know that Judge...Asked VCS if the Contract is relevant? VCS......Yes,  Judge...Still not clear VCS......Quoted VCS v Ward & Idle..  Me........That's not in your WS so is it admissible? Judge...That's not relevant in this case.. he had a quick look. Judge...Is the land relevant VCS......No real valid response, referred to VCS contract with the airport. Me........Why is Mr Wasi the paralegal not here as he may know? Judge...Section 46 refers to Parking/Waiting. Me........It all refers to Parking.. and I was not parked or waiting.. ## I expect Simple will see this as a loophole so may change it ##   Closing Statements: Me........VCS are aggressive in all their actions, as you can see by the Letters in their WS.. I also went through all the Arguments at a high level, such as Bye-Laws, Road Traffic Act [Public access etc.., the POFA discussed Parking, not Stopping, PO Box on the Signs, no address. VCS......Pretty much same as the Opening statement as far as I remember..    Judge...   Car was stopped for 30 seconds Multiple Signs The Driver "did" enter into a Contract as they entered the airport But.... Does POFA apply Needs distinction Stopped not Parked Only applies to Parking Judge referred VCS to Jopson v Homeguard 👍  Defendant wins the case & is not obliged to pay VCS any Fines   Judge to VCS... do you want to Appeal VCS.. Yes Sir................... but after 20 seconds he changed his mind to No Sir, no appeal at this time..  Judge to VCS... you have 3 weeks to appeal if you change your mind.   So.. VCS may appeal, but I had a feeling that he may have been tapped on the shoulder and advised to say No.. at the time..     ### As far as I can remember, this is how it went down ###.
    • Let us know when the hearing date has been set and then we will try to help you sort out your arguments and your documents. You will need to submit a court bundle. Please follow the court bundle link
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    • Hi @BankFodder
      Sorry for only updating you now, but after your guidance with submitting the claim it was pretty straight forward and I didn't want to unnecessarily waste your time. Especially with this guide you wrote here, so many thanks for that
      So I issued the claim on day 15 and they requested more time to respond.
      They took until the last day to respond and denied the claim, unsurprisingly saying my contract was with Packlink and not with them.
       
      I opted for mediation, and it played out very similarly to other people's experiences.
       
      In the first call I outlined my case, and I referred to the Contracts (Rights of Third Parties) Act 1999 as the reason to why I do in fact have a contract with them. 
       
      In the second call the mediator came back with an offer of the full amount of the phone and postage £146.93, but not the court costs. I said I was not willing to accept this and the mediator came across as a bit irritated that I would not accept this and said I should be flexible. I insisted that the law was on my side and I was willing to take them to court. The mediator went back to Hermes with what I said.
       
      In the third call the mediator said that they would offer the full amount. However, he said that Hermes still thought that I should have taken the case against Packlink instead, and that they would try to recover the court costs themselves from Packlink.
       
      To be fair to them, if Packlink wasn't based in Spain I would've made the claim against them instead. But since they are overseas and the law lets me take action against Hermes directly, it's the best way of trying to recover the money.
       
      So this is a great win. Thank you so much for your help and all of the resources available on this site. It has helped me so much especially as someone who does not know anything about making money claims.
       
      Many thanks, stay safe and have a good Christmas!
       
       
        • Thanks
    • Hermes and mediation hints. https://www.consumeractiongroup.co.uk/topic/428981-hermes-and-mediation-hints/&do=findComment&comment=5080003
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    • Natwest Bank Transfer Fraud Call HMRC Please help. https://www.consumeractiongroup.co.uk/topic/428951-natwest-bank-transfer-fraud-call-hmrc-please-help/&do=findComment&comment=5079786
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Was its offer in response to your email, was it presented to you as w/p?

 

You'll have to remind me.. has this been allocated to track yet?

 

Offers almost always start very low, pretty much at the level of the filing fee is the norm.

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Evening Mike,

 

Yes it was marked w/p save as to costs and referred to email.

 

The N149a says - It appears that this case is suitable for the small claims track

 

They have put my local court on the Tomlin Order, but have said they are confident that the court will set aside judgment and reinstate their defence at the hearing on 17th March (which has now been vacated by Chester) and strong prospects of defending my claim.

 

Up2

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Here's my revised WS

 

I have made a list at the end of it of evidence I will be submitting with it. I know there should be more but am not sure what is relevant and what isn't so again I would appreciate some help please.

 

Up2

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I`ve seen better... it doesn't appear to understand its proposal! A district judge won't agree to seal the order constructed like that.

 

For the sake of a few quid and a day lost for the hearing I'd be inclined to call her and ask for a chat off the record.

 

It will probably be granted the set aside and you'll probably come away with general directions for defence, disclosure, hearing etc on the sct... by the time you've run through the process there's no real win when you consider your time, travel, copying, phone... the list is endless.

 

Try her at say 90% and offer to draft the schedule.

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Up2

 

Let me know if/when you've had a chat with MBNA.

 

One point worth noting, if this proceeds to the hearing don't allow yourself to be drawn on the f&f settlement of PPI.. keep in mind the 2 separate elements of PPI and those of default/penalty charges.

 

S29 of the LA may also provide you with a greater chance of relief instead of s32 as you have a signed acknowledgment from the other side within the PPI redress.

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Hi Mike,

 

Have been without my dino laptop for what seems like forever (don't know how I managed lol) and since I last posted I have received a new hearing date for my local court, and have sent my W/S to them.

 

I have not been able to reply to MBNA offer by the deadline so not sure if I still can, but I really do not want to call.

 

I didn't manage to see your posts regarding S29 until today, and my w/s has already been sent so I'll have to hope that S32 is enough :|. Will the Court send a copy of it to MBNA? or should I have done that?

 

I wont let them try and bamboozle me into the f&f for PPI, I will have copies of the letters sent questioning their calculations after the PPI was received.

 

S29 of the LA may also provide you with a greater chance of relief instead of s32 as you have a signed acknowledgment from the other side within the PPI redress Sorry Mike, I'm not sure what you mean by this remark. The PPI redress was less than 2 years ago, and as far as I remember nothing was signed! does that make a difference? Or am I totally confusing myself (again :-( )

 

I also received a bailiff warrant returns report, that says:- To the Claimant, TAKE NOTICE that the WARRANT in this action has not been executed for the following reasons:- 149 DESCRIPTION - ORDER MADE XFERRING CASE TO XXXX. UNABLE TO XFER OUT WITH LIVE WARRANT. WRT TO BE REISSUED IF APPL SAJ UNSUCCESSFUL. The warrant has been returned to the Court which issued it.

 

That was from Wrexham CC, (where I was told by CCBC to send the request) and it appears to have been sent to Chester CC, but received the report from my court. I assume this means I will not have to pay for a new one if their set aside request is refused?

 

Thanks as always

Up2

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You should serve copy w/s on the other side and attach any docs you refer to and rely upon.

 

There is no time limit on your response, MBNA may want you to believe there is but the parties should be seeking to resolve the issues, setting time limits seems to contradict the overriding objectives.

 

Limitation act s29(7) refers to the extension of time by ack or payments, its PPI redress letter may satisfy the extension of usual 6 year bar. I note the account was assigned in 2005 and the redress was settled in 2012 so you may need to lay your hands on correspondence from it in the intervening years to fully satisfy the court.

 

Warrant fee, you should be able to recover this, send the other side a brief summary of your costs in the case to include the sa hearing and take a copy with you on the day.

 

Don't duck out of calling the other side, it can pay dividends and save a lot of time.

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You should serve copy w/s on the other side and attach any docs you refer to and rely upon. - [i]Will do[/i]

 

There is no time limit on your response, MBNA may want you to believe there is but the parties should be seeking to resolve the issues, setting time limits seems to contradict the overriding objectives. I will draft a letter explaining why their offer is unacceptable and that I have submitted a W/S and enclose a copy (and 15 pages of docs I refer to) The hearing is at the end of April so plenty of wiggle space. Should I also prepare my version of terms?

 

Limitation act s29(7) refers to the extension of time by ack or payments, its PPI redress letter may satisfy the extension of usual 6 year bar. I note the account was assigned in 2005 and the redress was settled in 2012 so you may need to lay your hands on correspondence from it in the intervening years to fully satisfy the court. I have letters from Link between 2005 and 2012, but alot of correspondence from MBNA from 2012 when the PPI refund was originally requested. As you say, they have paid the PPI after the six year period, so have they not basically acknowledged that the LA does not apply due to fraud/concealment/mistake? [/I]

 

Warrant fee, you should be able to recover this, send the other side a brief summary of your costs in the case to include the sa hearing and take a copy with you on the day. I will have a go, but I may need help with this bit

 

Don't duck out of calling the other side, it can pay dividends and save a lot of time. [I]I have been trying to build myself up to this but can't even get the first line rehearsed in my head - I deal with this sort of thing much better in person and am not as scared of having to go to court as I am picking up the phone. Nuts I know, but I don't want to call and get myself all tongue tied and appear weak and inexperienced for them to use against me

 

Thanks Mike

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S32 is always difficult to prove, s29 is far simpler 'if' you can show correspondence from the intervening years resulted in the 2012 redress.

 

MBNA's defence appears to be attempting to reverse the burden of proof to you. If it pleads the terms are fair you must press for disclosure of it breakdown of costs to establish whether the charges were a genuine pre estimate of loss.

 

Don't get in a flap, ring the other side and state you are prepared to settle for £xxx, don't get drawn on any arguments its purely to agree the quantum.

 

Costs summary is straightforward, something along the following lines but amended to suit your case;

 

13th February 2014

 

Dear xxxx

 

Re: Case no xxxxxxx Mr xxxxxxxxxxx v xxxxxxxxxxxxx Ltd

 

By way of service please find below summary of costs in the matter of xxxxxxxx hearing at 20th February 2014.

 

 

1. 1 day loss of earnings at Litigant in Person rate of £90.00 [Practice direction 27, para 7.3 (1)

2. Travel 20.4 miles round trip from XXXX XXX @ £00.45 per mile - £9.18

3. Parking £5.00

 

Total at £104.18

 

 

I trust the above is in order.

 

Regards

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EDITED POST I have decided not to send a variation of the Tomlin Order as I do not fully understand its use and have removed the attachment

 

 

Many thanks

 

Up2

Edited by up2meears
Have decided not to send a variation of Tomlin Order
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  • 1 month later...
EDITED POST I have decided not to send a variation of the Tomlin Order as I do not fully understand its use and have removed the attachment

 

 

Many thanks

 

Up2

 

Seems sensible Up2, any news from the other side yet?

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Hi Mike,

 

Since last posting, I have sent them another offer (when I sent my witness statement) but have heard nothing - that was about a month ago (Their solicitor needed to read my copy of the WS because MBNA didn't give her a copy).

 

The hearing for set aside was yesterday, and as you correctly advised it was allowed as it seemed they had submitted the docs correctly.

 

The Judge apologised that it had been an error of the court and explained that it will go back to the stage it was at. Fair enough.

 

He asked whether I had filled out the mediation form, which I do not remember seeing so I said no, but told him that I had requested mediation on the N180. He said that if mediation doesn't work or I am not happy with any offer they provide, then I can carry on through the court at the end of May.

 

I asked their solicitor lady where I get the mediation form from and she said the court will send me one - is that right or am I best requesting one?

 

In the assumption that this will now go to court I am starting to get paperwork ready and will be writing a letter to MBNA to press for disclosure (like you mentioned in post #264) for its breakdown of costs to establish whether the charges were a genuine pre estimate of loss. - I am assuming I can request this info now as I will need this in order to prove what they've stated I will need to prove - hope that makes sense

 

I am also sending a SAR to the DWP for confirmation of the dates I was in receipt of IB (although I have a copy of the letter I sent MBNA at the time asking for help which states the dates) but I thought this would be useful and also a letter to my local constabulary asking them to disclose the reason the job offer was withdrawn although I'm not sure if I can request this via a SAR or under something else like the Freedom of Information Act? - I will have to research.

 

I have started highlighting all the points in the OFT debt collection guidelines 2003 which MBNA have breached (getting all the evidence together I have to prove their breach) and have downloaded a copy of the UTCCR 1999 as they are using this in their defence regarding the legitimacy of the charges.

 

I am now going to dig out the dummys guide to preparing a court bundle which slick kindly provided me with a few months ago.

 

Up2

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Hi Up2,

 

I am now going to dig out the dummys guide to preparing a court bundle which slick kindly provided me with a few months ago.

 

Did I send you as copy by e-mail as the Site link may not be working.

 

:-)

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Hi Up2

 

I've sort of lost track of where you are with service of documents at this stage... do you have a copy of it's defence? If you've already posted it could you point me in its direction please.

 

Also, did the dj state whether he would allocate to small claims?

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Hi Mike,

 

Their defence is at post #56

 

The dj said he would allocate to small claims track

 

Up2

 

SCT is good news, not much prospect of it recovering it's costs for instructed counsel....... should provide you with a little more leverage to get this thing settled.

 

I'd start pressing it for disclosure of it's charges breakdown now, it will probably ignore but it should be under notice that if it seeks to defend on the basis that the charges are fair and is attempting to put the burden of proof on you it will be compelled at some stage to disclose. Perhaps remind it of schedule 2.1 (q)

 

(q)excluding or hindering the consumer’s right to take legal action or exercise any other legal remedy, particularly by requiring the consumer to take disputes exclusively to arbitration not covered by legal provisions, unduly restricting the evidence available to him or imposing on him a burden of proof which, according to the applicable law, should lie with another party to the contract.

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Brilliant Mike,

 

Many thanks for that I will draft a letter to send - probably tomorrow now as I am swimming in paperwork, but will post up for checking before I send.

 

Up2

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hi up2, just looking in :)

as expected, they got their setaside down to the 'error'. at least the j apologised! and you didnt get stung for any costs for the hearing. good luck.

IMO

:-):rant:

 

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