Settle f&fl or part 36? -help/advice

[The Mould]

Hi TM......and if they don't and their application get them summary judgment, what happens then? Do I appeal? Would I have to pay up there and then- even before an appeal could take place?

 

 

Hi mjt2013........I haven't got carried away (don't believe in counting my chickens before they hatch). I don't think it has been 'block listed' though as the last court order stated a time for next hearing as 2.5 hours! This has now been listed for a fifteen minute hearing late in afternoon!

 

 

Regards

OK jonji

Firstly, I would sincerely like you to know that my previous post herewas not intended nor designed to get your hopes up and “start the party early”.

Based upon all the material postedhere by you on this case, and let’s notforget that you have decided to withhold some information on your case as youdo not want the Claimant or his agents prying eyes identifying you, thisis perfectly understandable, therefore, based upon the matters that you have posted herein this public forum, in mypersonal opinion if it were my case andthe judge decided against me, I would most definitely appeal.

I cannot tell you what to do, but if this matter goes against you, Iwould request permission to appeal there and then to the judge on thegrounds that there has been an error of law in the judgment which you wish toput to the Appeal Court.

Further, I also personally believe that the factthat this matter has now been allocated only a 15 minute spot as opposed theoriginal 2.5 hrs is a good sign for you (this is my belief jonji).

OK, ontothe hearing, if the Claimant’s nominated agent argues thatthe agreement is expired anyway, therefore, you owe the money and it is due andowing, youmust continue to counter-arguethat Claimant terminated the agreement and brought these proceedings via thestatutory route, that being s.87(1) CCA1974 (as amended) , he cannot, therefore. Change his case and present differentarguments, this was established by the Court ofAppeal in its qualified judgment handed down in Brandon v American Express onthe issue of service of valid statutory default notices being compliant withthe creditor’s obligations to comply with the provisions of s.87(1) CCA 1974(as amended) and you rely upon that judgement and the saidsection of the statute and the Claimant’s admission that he has not compliedwith said section of the statute.

In a nut shell, Claimant has not complied with his obligationsunder s.87(1) CCA 1974 (as amended), hehas admitted this failure to comply with his statutory duties thereunder, therefore, as a matter of law and Court of Appeal’s qualifiedjudgement handed down on the issue in question, that is, the invalid default notice servedby the Claimant, in Brandon v AmericanExpress, his claim must fail in its entirety and cannot proceed in contravention of theforegoing.

Kind regards

The Mould

[The Mould]

Can someone let me know what the process is when you change from a litigant in person to being represented in court. Do you need to let the courts and the other side know?

 

Regards

 

Yes, I will just have a look in the book and report back on the above.

 

Kind regards

 

The Mould

[The Mould]

Can someone let me know what the process is when you change from a litigant in person to being represented in court. Do you need to let the courts and the other side know?

 

Regards

 

 

OK jonji

As regards changing your position from acting inperson to appointing a sol to act onyour behalf in this matter Therelevant CPR is Pt 42 & Practice Direction 42.

Your nominated agent (your solicitor) should be able to deal with the legal admin involvedfor you on this matter. (at a cost ofcourse).

Kind regards

The Mould

[jonji]

I was informed earlier to just write to the court and the claimants solicitors to let them know Mould. So there is more to it than that then?

 

Regards

[Guest]

i don't think 42.2 would apply to you jonji, you are not conducting the claim and did not previously have a sol acting?

[jonji]

Hi Ford.......I have not had any legal representation before. Why wouldn't it apply to me?

[The Mould]

Hi Ford.......I have not had any legal representation before. Why wouldn't it apply to me?

 

 

 

Jonji

Please see material set out below, which confirms you position under the CPR asregards instructing sols to act for you. In particular rule 42.2(b) confirms that if you are instructing a sol toact as advocate at a hearing, then, no duty is imposed upon you in thisrespect, therefore, Ford is quite right.

However, I amnot certain if such an instructed sol would need to hold rights of audience.

This hearing is in open Court? Yes, or is it in Chambers?

Rule42.2 Change of solicitor—duty to give notice

42.2

(1) This rule applies where—

(a) a party for whom a solicitor is acting wants to changehis solicitor;

(b) a party, after having conducted the claim in person,appoints a solicitor to act on his behalf (except where the solicitor isappointed only to act as an advocate for a hearing); or

© a party, after having conducted the claim by asolicitor, intends to act in person.

(2) Where this rule applies, the party or his solicitor(where one is acting) must—

(a) file notice of the change; and

(b) serve notice of the change on every other party and,where paragraph (1)(a) or © applies, on the former solicitor.

(3) The notice must state the party's new address forservice.

(4) The notice filed at court must state that notice hasbeen served as required by paragraph (2)(b).

(5) Subject to paragraph (6), where a party has changed hissolicitor or intends to act in person, the former solicitor will be consideredto be the party's solicitor unless and until—

(a) notice is filed and served in accordance with paragraph(2); or

(b) the court makes an order under rule 42.3 and the orderis served as required by paragraph (3) of that rule.

(6) †Where the certificate of a LSC funded client or anassisted person is revoked or discharged—

(a) the solicitor who acted for the that person will ceaseto be the solicitor acting in the case as soon as his retainer is determined—

(i) under regulation 4 of the Community Legal Service(Costs) Regulations 2000; or

(ii) under regulation 83 of the Civil Legal Aid (General)Regulations 1989; and

(b) if that person wishes to continue—

(i) where he appoints a solicitor to act on his behalf,paragraph (2) will apply as if he had previously conducted the claim in person;and

(ii) where he wants to act in person, he must give anaddress for service.

(Rules 6.23 and 6.24 contain provisions about a party'saddress for service.)

("LSC funded client" and "assistedperson" are defined in rule 43.2).

(7) "Certificate" in paragraph (6) means—

(a) in the case of a LSC funded client, a certificate issuedunder the Funding Code (approved under section 9 of the Access to Justice Act1999) [>>Text], or

(b) in the case of an assisted person, a certificate withinthe meaning of the Civil Legal Aid (General) Regulations 1989.

"dutyto give notice"

42.2.1 Rule 42.2, where it applies, imposes a duty to givenotice. This is emphasised by the use of the word "must" inr.42.2(2), 42.2(3) and 42.2(4).

"changeof solicitor"

42.2.2 Rule 42.2 applies to three distinct situations setabout in r.42.2(1), namely a party changing their solicitor; a party who hasacted in person now appointing a solicitor; and a party having employed asolicitor who now intends to act in person. CPR r.42.2(1)(b) does not require noticewhere a party who has acted in person appoints a solicitor only to act as anadvocate. CPR r.42.2 does not apply to a solicitor acting as agent for anothersolicitor.

"noticeof the change"

42.2.3 In the case of the three situations to which r.42.2(1)applies, no order of the court is required. All that is required is that anotice of the appropriate change which complies with r.42.2(3) and (4) must befiled with the court and served on every other party and the former solicitor:r.42.2(2).

Rule 42.2(5) is not really necessary having regard tor.42.1, but suffices to emphasise the mandatory requirements of the rule andthat once a solicitor is appointed to act, that solicitor is considered to bethe party's solicitor unless and until the requirements of Pt 42 are compliedwith.

Kind regards

The Mould

[Guest]

Hi Ford.......I have not had any legal representation before. Why wouldn't it apply to me?

see 42.2 etc, re when the rule applies

 

(1) This rule applies where –

(a) a party for whom a solicitor is acting wants to change his solicitor; you don't have a sol acting to change

(b) a party, after having conducted the claim in person, appoints a solicitor to act on his behalf (except where the solicitor is appointed only to act as an advocate for a hearing); you are not conducting the claim, they are (unless that applies to your SO app'n?), and in any case a sol just for a hearing is 'excepted'or

© a party, after having conducted the claim by a solicitor, intends to act in person. as above

etc

 

anyway, as a matter of 'goodwill'/good practice it may be an idea to inform them that you have a legal rep for the hearing.

Edited November 19, 2013 by Ford

[jonji]

Hi Mould, thank you for getting that posted. I did read through it before but the way I am at the mo, it all goes over my head! The hearing is in court and not chambers......

[jonji]

Hi Ford.......doesn't b) apply to me then? ie. (b) a party, after having conducted the claim in person, appoints a solicitor to act on his behalf (except where the solicitor is appointed only to act as an advocate for a hearing)

[Guest]

see my edits in #183

[jonji]

"b) a party, after having conducted the claim in person, appoints a solicitor to act on his behalf (except where the solicitor is appointed only to act as an advocate for a hearing); you are not conducting the claim (unless that applies to a SO app'n?), and in any case a sol just for a hearing is 'exempt'"

 

So, it could be applied to the SO. What is meant by in any case a sol just for a hearing is 'exempt'"

[Guest]

it says that a sol/advocate appointed just for a hearing, after an LiP has 'conducted the claim', is excepted from the notification requirements of 42.2.

i don't think your SO app'n means that you are 'conducting the claim'. was just posing the question. and even if it was, then notification not required if appointment is just as an advocate for the hearing.

if in doubt ask the court.

and/or, just inform them anyway.

Edited November 19, 2013 by Ford

[jonji]

Yes Ford........the actual 'Claim' was not my claim but the other side's! I'll phone the court to check it out tomorrow!

[The Mould]

Should be perfectly alright to appoint a sol to act for youat the 15 mins strike out/summaryjudgment hearing.

As a matter of respect and in keeping with proper conduct, advise Claimant’s sols that you areinstructing xyz sols (state name ofsols) to represent you at the hearing listed for (state date).

Makesure that your instructed sol is experienced in consumer law, the Brandon v American Express case decidedby the Court of Appeal and of course the full factual details of thecircumstances of your case.

Kind regards

The Mould

[jonji]

I haven't actually 'agreed' to it as such. He is looking at the files and we are having a chat in the morning. I dropped off my files today and he is phoning me tomorrow!

[The Mould]

I haven't actually 'agreed' to it as such. He is looking at the files and we are having a chat in the morning. I dropped off my files today and he is phoning me tomorrow!

 

 

Jonji

You have conducted your strike out application, although I feel that this will not go against you.

What type of sol is he? Experienced in Consumer Law?

How big was the bundle on your case, whichcovers all circumstances of it thatyou provided to sol?

When is the hearing? Thisweek or next week, andfinally, please remind me what track your case is on?

Kind regards

The Mould

[jonji]

Mould........in the Woodchester case, the court held that the DN was deficient so the agreement hadn't been terminated. It awarded judgement in the amount of monthly sums that were accruing under the agreement and ordered the debtor to pay the bank's fees?????

Would this therefore apply in my case??

[The Mould]

Mould........in the Woodchester case, the court held that the DN was deficient so the agreement hadn't been terminated. It awarded judgement in the amount of monthly sums that were accruing under the agreement and ordered the debtor to pay the bank's fees?????

Would this therefore apply in my case??

 

 

If the Claimant presents any such argument in Court, thensimply state that the agreement hasbeen terminated by the Claimant without just cause or legal excuse andhe has abandoned the agreement andtreated his obligations thereunder as discharged and therefore brought this regulated agreement under the rule of common law, and it should be noted, that neither party thereto has given his consent thereunderto forego his rights at common law.

As the innocent party in this matter, I havea right at common law to treat my obligations under the agreement as dischargedalso. This is a bilateral agreement, the Claimant being the first party and I thesecond party, with respect, this Court is a stranger to theagreement and it cannot, therefore, interferewith the same nor the actions taken by either party thereto.

Theagreement has been terminated by the Claimant, however, he failed to comply with his statutoryduties under s.87(1) of the CCA 1974 (as amended), in this regard, the Claimant is the wrongdoer and he has infact repudiated on the agreement and abandoned the same, thisfact is irrefutable.

If the Claimant is entitled to any monies at allunder the agreement, then, it is averred that he is only entitled to theactual arrears that were due and owing at the time of his wrongful terminationand repudiation of the agreement.

As the second and innocent party to theagreement, the Claimant will require myexpress written consent to reinstate and make live again the agreement, which, in these circumstances I am not willingto give on the same. The Claimant’s ownactions of failing to comply with his statutory duty under the agreement has sweptthe ground from beneath his own feet as regards the sums he now claims in theseproceedings as due and owing thereunder, because this matter is now ruled bycommon law on the grounds of the Claimant’s said failure to comply with statuteand his obligations imposed upon him by the prescribed language laid downtherein.

Argue the above, if you wish, please do not feel obligated. Argue the Brandon Court of Appeal case andthe Harrison v Link Financial Ltd case in respect of invalid default notice servedby the creditor and his termination of the agreement in reliance of such.

The creditor has indeed terminated theagreement, he was not entitled to, however, he disregarded statute (CCA1974 (as amended)) and hisobligations imposed thereunder, whichclearly shows that the Claimant has no regard for the same. TheClaimant, in bringing this claim, based upon the circumstances, is in fact, looking to this Court to cure his problemsfor him and clearly looking to this Court to disregard his failures of hisstatutory duties.

I believe that this Court ought not to accept theClaimant’s claim and I also believe that this Court is bound by the Court ofAppeal’s qualified decision handed down in the Brandon v American Express casein respect of the Claimant’s admission that his default notice served andrelied upon in these proceedings is invalid and he cannot therefore continuewith his claim to enforce the agreement in reliance upon the same, which, if he were allowed by this Court to doso, would be in contravention of statuteand the said qualified decision handed down by the Court of Appeal in theBrandon case.

Kind regards

The Mould

[jonji]

Thanks Mould.....not sure that the above will work if that's what happened in the Woodchester case. I might win on the Brandon part, but they have this to throw back! Must be another way around it?????

[mjt2013]

By the way, as helpful as The Mould's advice is please don't follow his style. Don't go in to court talking like a Victorian lawyer because you will just antagonise the judge and the actual point you're making will be lost amid the speech pattern.

[jonji]

Oh dear mjt2013! Bit personal

 

Can anyone tell me the reason why Woodchester had to pay costs? I cant work it out because it was a different case, his being a hire agreement and mine is to do with a bank loan and overdraft. If I win re the Brandon appeal, but then there is the subject of what is left to pay, would this be the amount up to default notice, termination or start of trial? I really need to clarify this!

 

Regards

[The Mould]

Oh dear mjt2013! Bit personal

 

Can anyone tell me the reason why Woodchester had to pay costs? I cant work it out because it was a different case, his being a hire agreement and mine is to do with a bank loan and overdraft. If I win re the Brandon appeal, but then there is the subject of what is left to pay, would this be the amount up to default notice, termination or start of trial? I really need to clarify this!

 

Regards

http://www.bailii.org/ew/cases/EWCA/Civ/1998/1209.html

The above link is to the Woodchester v Swayne, it wasagreed that the agreement had been terminated, it was agreed that the default notice wasinvalid and so the debtor was ordered to pay costs of around £600.00 odd poundsto the creditor and not the inaccurate figure stated in the invalid defaultnotice, nor the amount the Claimant soughtwith interest. He had to pay, because that was the figure that he actuallyowed at the point of termination.

You have in your favour the statute itself – s.87(1) CCA1974 (as amended), theClaimant’s admission that the default notice he served on you and which herelied upon to commence with these proceedings against, isindeed invalid and you have the Court of Appeal’s qualified judgment handeddown in favour of Brandon.

You also have the fact the judge who sat this matter andstayed the same pending the outcome of the Brandon appeal, said that if Brandon was to succeed, then he would have no option but to hold inyour favour.

As you are aware, I have not seen the Claimant’s summaryjudgement application and his witness statement and any evidence served insupport thereof.

If you would kindly posts up the same, minus all personal details, I andothers will have a greater understanding of the Claimant’s summary judgment appand this may place us in a far better position to post further valid legalargument in your favour against the same, in addition to the substantive arguments thatI have posted that hold in your favour and to which the Claimant cannot refute.

I am not Victorian and that fkg post is far to personal mjtand uncalled for, you useless piece of clay.

Kind regards

The Mould

[jonji]

Thanks again Mould.....

 

In light of what you say above, then I could be ordered to pay the amount owing at time of termination.....which therefore would be the whole balance! However, the more recent authority of Brandon should take precedence over the woodchester appeal shouldn't it-with respect to they shouldn't get summary judgment anyway? But, there is a balance which I could afford to pay at a push- but not the costs that would come from all of this! That's the part I am trying to get my head around.

I know I have the other points you mention above, but the issue at the mo is the alleged balance that is owing....because in court that will raise it's ugly head!

I have posted somewhere the claimant's application and cannot do it right now as I am pushed for time at the mo.

[The Mould]

Thanks again Mould.....

 

In light of what you say above, then I could be ordered to pay the amount owing at time of termination.....which therefore would be the whole balance! However, the more recent authority of Brandon should take precedence over the woodchester appeal shouldn't it-with respect to they shouldn't get summary judgment anyway? But, there is a balance which I could afford to pay at a push- but not the costs that would come from all of this! That's the part I am trying to get my head around.

I know I have the other points you mention above, but the issue at the mo is the alleged balance that is owing....because in court that will raise it's ugly head!

I have posted somewhere the claimant's application and cannot do it right now as I am pushed for time at the mo.

 

No, jonji, you will not owe the balance of the agreementat the point of termination, because, youwill only owe the actual arrears that were due and owing at the time oftermination which was founded on the invalid default notice, therefore, we must go back in time to thedefault notice and you will only owe the actually arrears that were due andowing at that point, thereafter, thecreditor terminated the agreement in reliance of said default notice, whichhe has admitted was not compliant with his obligations imposed under s.87(1)CCA 1974 (as amended).

You cannotpossibly owe the full balance claimed by the creditor, because he is not, by his own admission, entitled to such, he terminated prematurely and failed to securethe entitlement afforded to him under s.87(1) CCA 1974 (as amended), thecreditor, in these circumstances has in fact repudiatedon the agreement and abandoned the same and in doing so, he has denied himselfthe fruits of s.87(1) CCA 1974 (as amended), he, the creditor is the contract breaker.

If you wereordered to pay the full balance claimed under the agreement, when the creditor has admitted that he hasfailed to comply with his obligations imposed upon him under s.87(1) CCA 1974(as amended), this would be incontravention of statute and the Court of Appeal’s qualified judgement handeddown in the Brandon v American Express case.

You can only, as a matter of law, be held accountable for the actual arrearsthat were due and owing under the agreement, thereafter, when the creditorterminated the agreement in reliance of said invalid default noticeserved, his own actions were wrongfuland have deprived him of the fruits of s.87(1) CCA 1974 (as amended).

As the onlyother party to this contract, thecreditor requires your express consent to reinstate the agreement, the Court cannot reinstate the same nor orderyou to consent to such. The debt will still exist, however, thecreditor is no powerless to enforce the agreement.

He shouldhave accepted your full and final settlement offer!

Boll**ks tohim.

Kind regards

The Mould