MCOL For cancelling Life Insurance Policy

[Basejumper]

Hi All. Well, it appears they wish to continue as an AQ N149 has landed on my doormat. Would it be possible to get some guidance on the filling in, in particular section G - Other Information.

Here is what I have got up to that point.

A - Settlement. Yes

B - Location of Hearing. Yes - my local court etc

C - Track. Yes agree to SCT

D - Witnesses. 0

E - Experts. No

F - Hearing - No issues with attending

G - Other Info???

H - Fee. No fee applicable I believe as I am a Defendant

I- Signature. No problems

 

Back to section G - Shall I compile a Draft Order requesting the disclosure of documents then an amended defence as I have STILL NOT received a response to my CPR 31.14 or PART 18 requests therefore disadvantaged or ask for something else because I don't want to put something that is counter productive to my defence or contradict it.

Thanks:???:

[Mike_hawk]

Hi Base

 

You can draft directions for the court to consider, not always indulged but no harm in asking.

 

There's a short guide here http://www.consumeractiongroup.co.uk/forum/showthread.php?131499 but you'll need to adjust to suit your case.

 

One thing I would suggest [only because it worked for me in the past], attach a copy of the other sides p.o.c, your defence and the TOB for the dj to refer to. It may get you nowhere but I think I'd want to ensure that the court has everything pertinent to the case so it can understand the issues and the need for disclosure in aiding narrowing of same.

[Basejumper]

Morning Mike_hawk I have had a look at your link - thanks, and I have another which goes back in time a bit, but be glad of some additional light being shed.

 

http://www.consumeractiongroup.co.uk/forum/showthread.php?53570-New-strategy-for-Allocation-Questionnaires

 

I also like the idea of attaching the additional info, I too believe that judges may look at documents in isolation thus not getting the full picture earlier, thus perhaps, saving court time.

Got to reply by 26 Oct so have a bit of time for thought.

[Mike_hawk]

Can remember reading it a loooooooong time ago but too much digest on a Sunday morning with a hangover

 

 

My own personal thoughts are that the first couple of posts in the link you mention could be counter productive, in essence you would be asking the court to strike out your defence if the claimant complies with an order to disclose. The hurdle is very low for the claimant especially with some creations that have been witnessed on this site over the years.

 

If it were me........ I'd probably draft something along the lines of the following and draft an order to match your disclosure request/s:

 

If the court is in agreement, the Defendant respectfully requests that directions may be given as per the attached draft order.

 

The defendant proposes these directions in mind of the Overriding Objectives, and in particular the duty of the parties to help the court further them. The issues outlined below are the crux upon which this claim rests, and the proposed directions identify these issues and will allow them to be assessed in advance of the hearing so that this claim may proceed justly and expeditiously;

LIST DOCS AND/OR INFORMATION DISCLOSURES REQUESTED HERE

 

Without production of the requested documents and/or information, I am at a disadvantage and unable to understand the quantum or cause of the case brought against me. Failure of the claimant to supply the requested documentation will make the case much harder for the court to deal with, without production of the requested documentation it will inhibit the courts ability to deal with the case

I attach at xx copies of case particulars, my defence and the Terms of Business agreement previously served with the Claim and trust that the court will consider those documents in making any order.

 

It is a straight forward case and should be capable of simple remedy on production of the required documentation by the claimant, should the claimant not have the documentation required to progress this case I suggest that there will be no case to answer.

[Basejumper]

Lovely Mike_hawk. I will have a tinker add some more info if I think it may assist and then post. Be grateful if you or a Mod could have a critique before I send. Hopefully post by cop Monday.

Do you have any knowledge of a Tacit Agreement / Contract and its legality in this overall process?

[Mike_hawk]

Hi Base

 

Not sure I get you?

 

Tacit agreement between parties......... usually implies there is a silent term, can't see how this would apply in your case as the other side seek relief to enforce the agreement without stepping outside of the stated terms. It hasn't mentioned anything but the TOB, if it wishes to extend it's p.o.c beyond that it may as well discontinue, start again, and risk costs exposure.

[Basejumper]

Hi Mike_Hawk, sorry if I have thrown you of course slightly. I will try and explain. We seem to be getting hammered and everytime I log on I see more and more people having issues with people (DCAs, Solicitors) not returning information within laid down timescales and then not being 'punished' accordingly, whereas if we as the LiP miss a deadline the other side win by default - unfair.

So as I was reading I came across the Tacit Agreement scenario. Could 'We' as comsumers add a piece to our (CAG) Templates that would bind the other party to this? for example, If you do not return my CPR 31.14 or PART 18, CCA etc request in such a time or you ignore my request altogether, then we agree that a. the debt does not exist, b. you will not sell this or pass it on to anyone else, c. you will not persue me any further for this alleged debt. If you do then you agree to pay me £xxx.

I am interested if this has been tested at Court level and/or it holds any merit

[Mike_hawk]

Hi Base, don't think it would hold water...... it's a bit like some of the DCA's with their 'valid if not read' nonsense.

[Old Cogger]

Could add something like;-

 

Your non compliance for not submissions of the required Documents at the latest due date as per requirements, means you have no reason to continance and an Estoppel is now in place between parties.

 

or something like that??

 

Estoppel is a powerful Tool.

Edited October 15, 2012 by Old Cogger

[Basejumper]

Evening MIKE770. Perfect, just had a google on estoppel. Could we as a group perhaps make an amendment to some of our templates. This section below appears to give us an advantage. I was wondering when it can be used in the court procss that I am, for example, in at the moment. I recall using a similar statement you put at the end of my CPR 31.14 request.

 

Extract taken from Wikipedia Estoppel in English Law.

 

"Estoppel by acquiescence

A legally binding contract occurs when one party makes an offer and receives an acceptance from the other party. A contract must consist of an offer and acceptance, the intention to create legal relations and consideration all must be present to make the contract legally enforceable. In contract law consideration is concerned with the bargain of the contract, each party to a contract must be both a promisor and a promisee. They must each receive a benefit and each suffers a detriment. The classic definition of consideration was given by the court in the case of Currie v Misa (1875) LR 10 Ex 153, referred to consideration as consisting of a detriment to the promisee or a benefit to the promisor, Lush J: “A valuable consideration, in the sense of the law, may consist either in some right, interest, profit or benefit accruing to one party, or some forbearance, detriment, loss or responsibility given, suffered or undertaken by the other".

The doctrine of consideration can therefore be seen as a set of rules, which play the principal role in the decision by the courts as to which agreements or promises are found to be legally binding. Promissory estoppel is a term used in contract law that applies where, although there may not otherwise be an enforceable contract. The importance of promissory estoppel in contract law is that it has enabled legal obligations, which fall into the category of contract law but fail to show any consideration, to be argued for. Promissory estoppel provides a way in which promises can be legally binding even if no consideration has been given. Promissory estoppel relates to a form of future conduct. The doctrine of promissory estoppel may not make the total contract fully enforceable. The specific facts in the case must actually establish the elements of promissory estoppel before the contract becomes enforceable in law. The promises within a contract will be enforced under the promissory estoppel doctrine, when enforcing the contract promises avoids injustice. Lord Justice Denning is a leading figure in the field of promissory estoppel in the case of Central London Property Trust Ltd v High Trees House Ltd (1947) KB 130, was concerned with the modification of the rent payable on a block of flats during the Second World War. The importance of the case, however, lies in the an obiter statement of principle which LJ Denning set out, “a promise intended to be binding, intended to be acted on, and in fact acted on, is binding so far as its terms properly apply”. Applying this principle, Denning held that a promise to accept a lower rent during the war years was binding on the landlord, regardless of the fact that the tenant had supplied no consideration for it. There are limitations which must be satisfied to this doctrine which derived from both Lord Cairns in the case Hughes v Metropolitan Railway Co. (1877) 2 AC 439 and LJ Denning in High Trees case. They are: There must be a promise There must be a clear promise intended to alter the contracted obligation. The court assesses intention objectively rather than taking evidence on the party's state of mind. Woodhouse Israel Cocoa Ltd v Nigerian Produce Marketing Board [1972] AC 74, A contract for the sale of some coffee beans was agreed to be payable in pound sterling. The sellers mistakenly sent an invoice stating price was payable in Kenyan Shillings. At the time the value of sterling and Kenyan shillings was equal. The buyers accepted the delivery and invoice without objection. Subsequently the value of the pound fell quite dramatically in relation to Kenyan shillings. The buyers then sought to revert to pound sterling as stated in the contract. The buyers conduct in accepting the invoice unquestionably amounted to an implied clear and unambiguous promise to accept on those terms"

[Old Cogger]

It would be up to the site Team, see what comments transpirs on here for a start.

[Basejumper]

In fact to sharpen our focus to my post above this from the same place would be more fitting "Acquiescence"

Main article: Estoppel by acquiescence

Estoppel by acquiescence may arise when one person gives a legal warning to another based on some clearly asserted facts or legal principle, and the other does not respond within "a reasonable period of time". By acquiescing, the other person is generally considered to have lost the legal right to assert the contrary.

As an example, suppose that Jill has been storing her car on Jack's land with no contract between them. Jack sends a registered letter to Jill's legal address, stating: "I am no longer willing to allow your car to stay here for free. Please come get your car, or make arrangements to pay me rent for storing it. If you do not do so, within 30 days, I will consider the car abandoned and will claim ownership of it. If you need more time to make arrangements, please contact me within 30 days, and we can work something out." If Jill does not respond, she may be said to have relinquished her ownership of the car, and estoppel by acquiescence may prevent any court from invalidating Jack's actions of registering the car in his name and using it as his own.

[Old Cogger]

Could incorporated but would need alot of debate before hand, see what is said by CAG.??

[Basejumper]

Continuing on and I may be prepared to take one for the team, as in my case the Solicitors have not responded to my lawful request for info via the CPR 31.14 and PART 18 route. The knock on effect is I have to fill in my AQ 149 and in section G ask the DJ if he / she will accept my draft order, whereby I want them (the court) to order disclosure so then I can amend my defence accordingly - how is this dealing expediently and with the overriding objectives to save the court time. Why can I not serve the Solicitors and Inform the court with a Notice of Irrevocable Estoppel by Acquiescence?

[Old Cogger]

Continuing on and I may be prepared to take one for the team, as in my case the Solicitors have not responded to my lawful request for info via the CPR 31.14 and PART 18 route. The knock on effect is I have to fill in my AQ 149 and in section G ask the DJ if he / she will accept my draft order, whereby I want them (the court) to order disclosure so then I can amend my defence accordingly - how is this dealing expediently and with the overriding objectives to save the court time. Why can I not serve the Solicitors and Inform the court with a Notice of Irrevocable Estoppel by Acquiescence?

 

To be honest with you I would be very surprised if anybody on this Site has been there or researched the said item, as per the 2nd posting it would in essence sound good, but you would have to incorporate into an official layout letter to the Solicitor, send it 1st class Recorded Delivery, until it has been used we will not know they might run away from the test,, until it is tried difficult to respond on an actual case.

 

I have read somewhere that an Estoppel is a very useful tool, so why not use it as you say by Acquiesence give the 4 or 7 days to supply whatever you need>>?? worth a try but work on that letter as a legal type action required.

 

Might get others to respond, but could be a vage area. good luck I am interested to see what action you get as that would be a very good Tool to use, did read somewhere 4 days was given in one instance and the case was dropped or something like that.

[Basejumper]

Ok, thanks for the support. As you are aware I am in the middle of this so I will also have my AQ ready by the required timescales, with directions and a draft order just in case. I will draft a notice and post, hopefully by Wed so please spread the word and with the great confidence I get from here lets press to test...

[Basejumper]

Hi all would someone be able to have a look at the attached with reference 'pressing to test' - thanks

 

[ATTACH]38800[/ATTACH]

[AndyOrch]

Link was not working ok now.

 

Andy

[Basejumper]

Thanks Andy - perhaps its the system I am currently using. It was from this one that the last attachment did not work either - lesson learnt:lol:

[Mike_hawk]

Base

 

Really not sure it will amount to anything, it's bad form not to disclose but it's common ground that Claimants with weak cases will withold unless ordered. If the case is particularly weak the other side may try to hide behind part 31 privilege status anyway.

 

Tbh...... it reads much like fmotl

[Basejumper]

fmotl ???

 

Perhaps you are right. this topic or issue does not to appear to have much attention apart from a couple of Caggers like you Mike_hawk and MIKE770 so it is harder to get the right balance of opinion to make an informed decision. I am confused but at the same time which to make headway and help us all not to get railroaded. I read many posts that we as consumers accept this common ground and roll over to get our tummy tickled because over the years we have used the process as the likes of SurfaceAgentx20 taught us to with great success, but the DCAs and alike are changing their strategy so let the great minds of this site look into new lawful ways of snatching the advantage back. CPR 31.14 getting them to reveal was a brilliant piece of work, but when the opponents don't reply LiPs have to battle on getting muddled up in directions and draft orders which may be counter productive to their defence, then miss a deadline lose by default and the opponents have won when they were at fault. I would like to use the estoppel if what I have researched as being a powerful tool. but also mindful that I may lose or get back in my box and go the standard route.. Im sorry for ranting forgive me... I welcome anyones thoughts

[Old Cogger]

If you do not continue with that letter, maybe non-disclosure complaint to the courts and force them or it might get struck out I believe. Sure Andy could advise on that area.

 

But if you do send that letter well Solicitor worth his weight would see the seriousness of the situation, like I said it needs trying? but it is up to the Individual.

[Mike_hawk]

fmotl - Freeman on the land........... each to their own, just not for me

 

 

Wouldn't worry, you have plenty of people keeping an eye on your thread. Not everyone contributes unless or until more assistance is needed, I watch plenty but rarely butt in unless I spot something that could go awry for the poster or believe I have an alternative remedy to an issue with a greater chance of success and no risk to costs exposure. I suppose in some respects you're right about strategy but........ if it aint broke I don't try to fix it. Sometimes the simplest solution is the best.

 

It's a frustration at times sitting on your hands but it's all part of the process, disclosure rules do work [even on the sct] and your previous requests will come in to play post allocation.

[Basejumper]

A point mentioned earlier about disclosure of documents.... could someone explain this to me please:???:

 

31.21

A party may not rely on any document which he fails to disclose or in respect of which he fails to permit inspection unless the court gives permission.

 

The way I read it is if in my CPR request the opponents fail to comply with what I have asked for, providing they have not made an application to the court NOT to disclose, can not use it for bash me with on the day of the race unless the court allows later, in which I would need time to inspect and respond...

So as of today I have called the court and NO application has been made under CPR 31.19

[unclebulgaria67]

No. I think in your case, the claimant could have a document which you have asked them to provide, which they turn up with on the date of the hearing and ask the judge to inspect, but not to disclose to the defendent on the basis of commerical confidentiality. It is then up to the judge how they deal with it. I guess you need do your homework on cases than can be quoted to ensure that any document in this situation is disclosed to you.