MCOL For cancelling Life Insurance Policy

[Basejumper]

Ok, I will agree with you unclebulgaria67 on that, but to not send any documents, surely they can not ALL be commercial confident. The questions asked in my PART 18 only asks for a name and if such a document exists. that has not even been responded to. Ahhhhhhhhhh!!!!!

[Mike_hawk]

It's small claims track [or it should be at allocation] usual order is for parties to exchange evidence they will rely upon, non specific disclosure on sct unless a party makes an application. If they don't disclose a relevant doc or some form of agreement with consideration/value stated they won't have much of a case. You will be in a position to bring this [and your previous requests] to the courts attention in your witness statement.

[Basejumper]

Morning all - I have, today received the AQ149 back from the claimants solicitors, along with a covering letter, Be grateful if someone could pop by and give me their thoughts

 

Thank you

 

[ATTACH]39014[/ATTACH]

[unclebulgaria67]

Pass. I don't think it is unreasonable for them to answer the part 18 request. I would suggest telling them that you want to proceed to a hearing. But wait for other advice.

[Mike_hawk]

Looks like a crock of ..... to me, disproportionate to prove the cause & quantum of its claim. All you really requested was the title of one document bearing the consideration value, with dates and values at signing.

 

You could I suppose send it a reminder to get on with it and provide you with the copy of the agreement containing the consideration value. Either that or bring it to the courts attention within your w/s later in proceedings.

[Basejumper]

Thank you both. It is strange almost smacks of a threat hoping I will go to mediation as to not expose a fault which could cost them. If they had read my original letter months ago for mediation then we would not have even got here.

Mike_hawk I am sorry but I had to laugh at your post where it states " get on with it"

How do I construct a letter or reminder, to that effect? then I can consider this or wait until the w/s point of proceedings

[Mike_hawk]

Hi Base

 

Tbh, I wouldn't ask again......preferring to leave it to the court to decide.

 

If you do feel the need to reply to it I'd be inclined to keep it short and sweet

 

Dear .......

I am in receipt of your response to disclosure requests dated ........., in reply, it would seem sensible to reiterate that the part 18 request was merely a requirement for perhaps a few short words of information.

1. The title of the document containing the consideration value

2. The total of the consideration value

3. The date the contents of same were agreed upon by the parties to case.

It would seem prudent for your client to provide same to establish the cause and quantum of its case.

If it feels that this is a disproportionate expense to proving its claim I can only suggest that it must therefore have felt this was also disproportionate at the time the alleged consideration value was agreed.

Whilst I appreciate that it may not have immediate access to the required data [if any exists], the original document could be copied for less than the price of a stamp. I am sure you will agree that in the great scheme of things it would be a very cost effective means to settling the issue and clearly far more productive than drafting contrived replies to requests.

I look forward to receipting the information requested, absent which, I will have no hesitation in bringing this correspondence to the attention of the court.

Regards.......

[Basejumper]

Thanks Mike_hawk. I am of the same opinion and perhaps leave it to the court to decide. However I feel that some of the contents of their letter worry me. I will try and explain as best I can.

Most of the issues our posters have concern the SCT. To that end our CPR 31.14 approach is fraught with danger, if we get excited that we will be on the front foot and gain some advantage and then Sols turn round and use the CPR 31.1(2) card, what is our next strike.

Are there any other rules we should / could use specifically for SCT to gain an advantage?

Also I am sure that I read of the Rules that in a claimants POC they must mention what they have tried as to prevent court action - mine and I am sure others don't either so does that need pointing out?

Thanks in advance

[Mike_hawk]

Hi Base

 

No disclosure, no evidence/proof....... personally I prefer the other side to embarrass itself with nothing of value at trial.

 

Sometimes less is more

 

If it troubles you, I suppose you could respond to it and send copies to the court asking for them to be placed before the judge when considering directions for the case.

[Basejumper]

Evening All

It has been a while with not much happening I have had a notice letter informing me that my case will be heard in my local court, but today I have received a notice stating that there is to be an allocation hearing Jan 2nd and that 30 mins has been given for it to be heard.

Could anyone let me know what this means please and what is the next part of the process

Thank you

[unclebulgaria67]

From what I read, the court has given a reason for this allocation hearing in the form (N153) sent to you. What is that reason ?

 

This is taken from practice direction 26- Case Management. Perhaps the claimant has not sent back the allocation questionnaire or paid a fee that was due ?

 

(a) Where an allocation hearing takes place because a party has failed to file an allocation questionnaire or to provide further information which the court has ordered, the court will usually order that party to pay on the indemnity basis the costs of any other party who has attended the hearing, summarily assess the amount of those costs, and order them to be paid forthwith or within a stated period.

 

(b) The court may order that if the party does not pay those costs within the time stated his statement of case will be struck out.

 

(3) Where a party whose default has led to a fixing of an allocation hearing is still in default and does not attend the hearing the court will usually make an order specifying the steps he is required to take and providing that unless he takes them within a stated time his statement of case will be struck out.

[Basejumper]

Hello unclebulgaria67

The form I have to which I referred above is a N24 Notice of Hearing. It does not state a reason, I know that the Claimants Sols have not replied to either my Part 18 or CPR 31.14 and I have told the court this in my Defence and an accompanied covering letter.

So perhaps this and / or the reason for the hearing, I am at a loss to be honest.

[Basejumper]

Hi All

I have also been re-reading all of the correspondence in this case and noticed that the Solicitor I have been sending letters to (and the one whose name appears on the Claim form) has now changed to the senior partner of the firm. Should I have, and the Court, been informed of this change?

[Basejumper]

Good afternoon all

Previous to my last regarding the Notice of Hearing, I have today received a letter from the Claimants Sols stating they have made a request to court that this matter (assuming the Notice Hearing letter) be dealt with at a telephone hearing on same date same time. Given that this will save both parties time and costs. They then go on to say, we trust that you will be in agreement with this approach. Then asking me to confirm whether I am happy to deal with this matter on the phone. They then go on to ask for my number on which I can be contacted and if the court is happy to make this a telephone hearing they will st up a conference call

 

Any advice?

 

I am of the opinion that they should attend my local court and but I am willing to apply correct protocols

[unclebulgaria67]

I agree that I would probably state that a telephone hearing would not be adequate to explore any issues with key documents and allow arguments to be made in a proper way. As they have taken you to court, it is your right I believe to expect them to attend your local court.

 

I am sensing that they believe that you have no proper defence and they don't want the hassle of attending a court hearing.

[Basejumper]

Thanks unclebulgaria67.

In reference to your previous post I have just called the court to find a reason for this hearing. The nice lady said that the DJ wishes to see more evidence and what documents are missing. Based on this hearing he/she will give further directions on how it will be proceeded thereafter.

I appreciate your comments and I will see if anyone else has the same opinion. Based on this, yours and what I think already I will act accordingly and of course will post here to get clarification as this could be a turning point.

[Basejumper]

Morning All

By way of an update, I have been called twice by the claimants solicitors asking if I am happy to have a conference call. I have told them that I do not want a conference call and I have also informed the court.

Is there anything I should be guarded against or should take in preparation

Thanks

[unclebulgaria67]

They brought the claim, so they will have to accept the process or withdraw the claim. Just make sure you have a proper explanation for not wanting a conference call, if there is a question of costs later on. This may be that you were unhappy as a litigant in person to take part in a legal discussion on a telephone conference regarding issues/documents and legal processes, where a court hearing would be more suitable.

[Basejumper]

Thats great unclebulgaria67, thanks.

I have included that in my reply. i will post and i welcome your thoughts, although too late now i suppose.

Although i have contacted the court and informed them of my decision, do you happen to know if that is my responsibility or the claimants solicitors. i suppose i have done it out of courtesy.

 

[ATTACH]40132[/ATTACH]

[Basejumper]

UPDATE.

Hi all, I went to court to day for the allocation hearing. The proxy solicitor for the claimants solicitor made the request that it be allocated to fast track after I put my point across the DJ decided that it goes for SCT, which is good news as I believe it will hopefully keep the costs down, it may also persuade the claimants not to pursue as it may not be cost effective and if they lose will be worse.

However, in the discussion the judge allowed me to amend my defence to show that the TOB agreement is an Unfair contract under the guidelines. I asked about my PART 18 request and could he make a direction that the claimants give me this info. He suggested waiting until the witness statement stage to see if they list the quantum of costs document otherwise being mindful of costs to me by submitting an application etc if I lose.The judge also gave directions that the costs for today would be reserved and determined at final hearing, should there be one.

Therefore I would be grateful if anyone could stop by and offer some assistance on the construction of an amended defence which I can include what I have already. I have 28 days to submit to court and to claimants solicitors

Thanks in advance

[unclebulgaria67]

UPDATE.

Hi all, I went to court to day for the allocation hearing. The proxy solicitor for the claimants solicitor made the request that it be allocated to fast track after I put my point across the DJ decided that it goes for SCT, which is good news as I believe it will hopefully keep the costs down, it may also persuade the claimants not to pursue as it may not be cost effective and if they lose will be worse.

However, in the discussion the judge allowed me to amend my defence to show that the TOB agreement is an Unfair contract under the guidelines. I asked about my PART 18 request and could he make a direction that the claimants give me this info. He suggested waiting until the witness statement stage to see if they list the quantum of costs document otherwise being mindful of costs to me by submitting an application etc if I lose.The judge also gave directions that the costs for today would be reserved and determined at final hearing, should there be one.

Therefore I would be grateful if anyone could stop by and offer some assistance on the construction of an amended defence which I can include what I have already. I have 28 days to submit to court and to claimants solicitors

Thanks in advance

 

Not quite sure of the arguments regarding the TOB being unfair. Have answered mainly to bump the post, so hopefully you may get a more knowledgeable response.

 

What I think you will have to do, is go through the whole process of how this life policy was sold to you. What was explained to you about the fees and exactly what did you sign. The question is whether you were made fully aware of the cost implications of cancelling early. Because of the amount involved, in my opinion it would have had to be something that was made very clear. There may be FSA rules that you can mention, which would help, so you will need to research ( http://fsahandbook.info/FSA/html/handbook/COBS ).

 

Awareness of the fees would be my main argument. If you were made aware that it could cost you nearly £1000 in fees for cancelling early, then you would not have made this choice. Then there is the argument about whether these fees are appropriate for the product/service being sold to you and comply with unfair trading regulations. This is where it becomes more difficult. Also there is the question of whether the amount being requested relates to the actual clawback taken from the financial advisor by the life company.

[Mike_hawk]

Hi Base

 

Sorry, not had any time to catch up on here lately.

 

Glad to see the judge took the sensible route and allocated to sct, perhaps he's as keen to see the document embodying the agreed quantum as you are. If the other sides case rests on a single document all it needs to do is disclose the bliddy thing.

 

You could use Beacon as a guide to assist with your defence if you've been granted relief to expand to include the seemingly unfair term. I seem to remember posting the link a while ago but have copied again below for ease of reference.

 

http://www.fsa.gov.uk/pubs/other/undertaking_beacon.pdf

 

This link may also be useful, it simplifies the issue to a couple of pages but I'm sure you'll be able to google any specific points noted within

 

http://www.e-lawresources.co.uk/Unfair-Terms---Regulation-by-statute.php

 

You shouldn't need to go into too much detail for a defence, you'll get the opportunity to argue the finer points of statutory instruments and law if it proceeds to trial

 

The reasonableness test should prove useful to you, try the following link to schedule 2 for indicative terms http://www.legislation.gov.uk/uksi/1999/2083/schedule/2/made

 

Best of luck

[Basejumper]

Hi Mike_hawk

Thanks for your asistance, I was begining to think that it was only us that had the same points, and when I had not heard from you in a while I was concerned. but you are back and that is comforting. The Beacon undertaking is perfect and it goes alot of the way to satisfy my thirst that the renumeration value is not mentioned in my TOB agreement thereby allowing the conpany too much flexibility to the detriment of me, the consumer. A point worth noting is that when the TOB was signed the amount discussed by the agent is only a quotation and not the actual cost of the policy. as it happens i do not recall having received a 'suitability' letter, which may or may not have included the commission payable if I decided to cancel my policy, however that said I must have been suitable otherwise I would not have been paying out. but that does not make it lawful.

I will construct a defence and I would be grateful if you could cast a critical eye.

 

Thanks again

[Basejumper]

Hi All

I would like to let you know that having followed the advice on here, i constructed a defence based around the Beacon case and alluded to the fact that this TOB agreement was in essence the same and thus an unfair contract..... The claimants and their solicitors wished to use the free court mediation service, but after several missed opportunities we finally chatted via this service. i was asked what my standpoint was and then I was asked if I would be willing to deal. I said no plain and simple as I wished a ruling as to whether this TOB agreement was an unfair contract.

I have today received a letter from the claimants solicitors attached was a Notice of Discontinuance - great I thought, but still no ruling. could someone advise me should I ask for a stay?, walk away happy or walk away but claim for costs? now if I claim for costs, which I think can not be done in a SCT case, how do I submit an order or letter asking for them.

 

thanks all:-D

[Mike_hawk]

Hi Base

 

Could you confirm what exactly they have sent you, post a copy on here if you can.

 

Assume its a 279 signed and dated?