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

[jonji]

Hahahaha........I do like the ending Mould! That's put my mind at rest! Thanks again.

 

I'll be back later as I will have some posting to do!

 

Regards,

 

jonji

[The Mould]

Hahahaha........I do like the ending Mould! That's put my mind at rest! Thanks again.

 

I'll be back later as I will have some posting to do!

 

Regards,

 

jonji

 

Godzilla my dear fellow. I shall look forward to your posts later on.

 

Keep calm and drink tea or rum or brandy or vodka or whatever drink you really enjoy and places you at a relaxed pace.

 

Kind regards

 

The Mould

[mjt2013]

The Mould, how dare you call me "worthless" when my post was perfectly polite and expressly complimented the helpful nature of the advice you give? All I advised the OP is that he should not follow your style in court and I absolutely stand by the advice because if he starts talking like Rumpole he'll be laughed out no matter how accurate his actual point may be.

[The Mould]

The Mould, how dare you call me "worthless" when my post was perfectly polite and expressly complimented the helpful nature of the advice you give? All I advised the OP is that he should not follow your style in court and I absolutely stand by the advice because if he starts talking like Rumpole he'll be laughed out no matter how accurate his actual point may be.

 

 

This is my apology to you mjt.

Firstly, I have not advised the op to follow my style;

Secondly, I am not Rumpole of the Old Baily and I do not undertake anycriminal cases;

Thirdly, I am not Victorian and neither is my “style”, referring to cases that are 2and 4 hundred years old, demonstratesmy respect for the law and the extent of my research into a diverse area of lawin order to help the op or indeed any fellow CAG member, inthis regard, I must admit that I did feel offended by yourprevious post, however, in the light of your recent post, it is clear to me now that you did not indeed intend to offend meand in this respect I offer my apologies to you as to my last post here whichmade reference to you being worthless, I am embarrassed and ashamed of my commentsin relation to the same and I sincerely wish that you will accept my apologieshere and that you and I can and will continue to help the op on this matter.

Yours sincerely

The Mould

Who is in an embarrassed state as of thedate hereof because of certain material; that should not have been posted against youmjt, but were, because I misunderstood the meaning of your postingand took the same personally toheart, I am trulyand deeply sorry to you sir. Godzilla

[jonji]

Sorry for not posting after the hearing but I needed the break away from it all and anything to do with legal stuff!

 

Anyway, as the hearing was only listed for 15 minutes, the judge wasn't very pleased. It was therefore adjourned again! I was represented by a barrister via the the public access scheme. He had provided a skeleton argument. Judge didn't want to consider it's contents either (not enough time). My application to strike out the claimant's application was struck out (which my barrister said I shouldn't have done as it wasn't the correct procedure) and which I was asked in court to agree to. Due to my ignorance, I was made to feel my application was a complete mess! However, my application also asked for permission to amend my defence, which the judge said would be considered at the next hearing. The barrister has offered to assist me with the amended defence, but there is no certainty that it will be considered at the next hearing anyway; but still it has to be done just in case it is!

The Brandon case seems to have taken a back seat and Woodchester appears to be a hurdle in which lurks the possibly of it not being capable of getting over. The barrister working on my behalf, thinks the court 'might' decide to follow the Woodchester case when it comes to monies now due and if so, I 'might' have to pay what was due under the agreement on the basis that the agreement wasn't technically terminated; which would mean the balance of the whole sum!

I am somewhat lost with the whole thing now, as I thought Brandon's appeal would go in my favour, but the Woodchester judgement appears not to!

[The Mould]

Sorry for not posting after the hearing but I needed the break away from it all and anything to do with legal stuff!

 

Anyway, as the hearing was only listed for 15 minutes, the judge wasn't very pleased. It was therefore adjourned again! I was represented by a barrister via the the public access scheme. He had provided a skeleton argument. Judge didn't want to consider it's contents either (not enough time). My application to strike out the claimant's application was struck out (which my barrister said I shouldn't have done as it wasn't the correct procedure) and which I was asked in court to agree to. Due to my ignorance, I was made to feel my application was a complete mess! However, my application also asked for permission to amend my defence, which the judge said would be considered at the next hearing. The barrister has offered to assist me with the amended defence, but there is no certainty that it will be considered at the next hearing anyway; but still it has to be done just in case it is!

The Brandon case seems to have taken a back seat and Woodchester appears to be a hurdle in which lurks the possibly of it not being capable of getting over. The barrister working on my behalf, thinks the court 'might' decide to follow the Woodchester case when it comes to monies now due and if so, I 'might' have to pay what was due under the agreement on the basis that the agreement wasn't technically terminated; which would mean the balance of the whole sum!

I am somewhat lost with the whole thing now, as I thought Brandon's appeal would go in my favour, but the Woodchester judgement appears not to!

 

Dear jonji

I am very disappointed for you as regardsthe facts of your case that you have posted here.

Firstly, you must acquaint yourself withthe fact that any judge sitting this matter will only have had a quick glanceto read the issues of your case, this includes a very brief reading by him of the same shortly (less than Hr.) before the hearing/trial.

Take the positive from this hearing onboard for your case/Defence in this matter; did the Claimant succeed with his summaryjudgement hearing – no he did not.

The judge clearly could not be bothered toread either yours or the Claimant’s application, because he considered that 15 mins for thesame was insufficient.

With respect, your PAIDbarrister is wrong as regards his comments to you that, as an untrained litigant acting in person (until the date of the hearing), you should not have made your strike out application, in my opinion he has not read your caseproperly (regardless of his year of call and experiencein these matters) and he should have argued your case withconviction based upon Brandon which is the key authority in this area of consumerlaw.

If, as your counsel has advised, that “technically” thecreditor has not terminated the agreement; then, by reason of parity, yourcounsel must accept that the agreement is still live and that the creditor mustserve a valid default notice upon you that is compliant with s.87(1) of CCA1974 (as amended) and all you would need to do is pay the actual arrears owingat that time and within the 14 clear days’ time-scale – therefore, the agreement would continue andyou most certainly will not owe the full amount/balance claimed thereon nor thecreditors’ legal costs claimed in these proceedings.

There is no technicality to thismatter; either the creditor has terminatedthe agreement via the statutory provisions imposed upon him under s.87(1) ofthe CCA 1974 (as amended) or he hasnot!

If at the trial, basedupon the circumstances of your case, the Court concludes that he has, which it is clear from your postings that hehas, then Brandon is your Defence.

If at the trial, based upon your postings here on thecircumstances of your case, theCourt concludes that the creditor has not, then the Court must also conclude that he has not complied with s.87(1)CCA (as amended) and so you will only owe the arrears that were due and owingat the time od creditor’s “technically incorrect” termination of theagreement, therefore, you pay the actualarrears that were claimed as due and owing at that point and within the statutory14 clears days and the agreement must continue as though no breach had occurred. In this respect, youwill not owe the creditor his claimed costs, because he could not possibly succeed thereonin the light of his failure to comply with his statutory duties imposed uponhim under s.87(1) CCA 1974 (as amended).

What Court is this matter in - County or High Court? What level of judge “heard” this matter?

You are not wrong in law to make across-applicatrion to strike out the Claimant’s summary judgementapplication, because, you have statute and the Court of Appeals’qualified judgement on this matter – PLUS , the Claimant’s admission that hehas not complied with his statutory duties in respect of the obligationsimposed upon him under s.87(I) CCA 1974 (as amended).

I sincerely hope that the foregoing haslifted your spirits, keep your chin up, this is only the beginning jonji, andremember, the Claimant didn’t get what he wanted – did he?

Kind regards

The Mould

[The Mould]

Jonji

 

Post up the Court's Directions as soon as you receive them.

 

I sincerely hope that you do not feel as though I have let you down my dear fellow, I stand firm with all of my advice, opinion and support given to you based upon your postings here and I will of course continue to offer you the same, if you find that is acceptable.

 

Godzilla.

 

The Mould

[Guest]

jonji

am inclined to agree with mould there re if it is held that the agreement still subsists live, then poss only the arrears payable. and then could you be entitled to claim damages/compensation for their 'mistake' (ie under the law of Mistake for eg) re all that has followed since their non compliant unlawful dn eg re collection activities including court action, your distress, inconvenience, expense, etc. ie you should be put back also. which could, in the end, negate their claim entirely? should work both ways? just an opinion maybe something also to ask your counsel about?

 

ps, what i was getting at before, is that at an SJ hearing a J can under cpr rules strike out a claim anyway.

Edited November 28, 2013 by Ford

[jonji]

Mould.......I do not think for one minute that you have let me down in any way whatsoever. If anything, I agree with what you have said.

The part I cannot get my head around is this Woodchester part. I just need a simple straightforward explanation to what he had to pay and why he had to pay it. I know it was a hire agreement, whereas mine was a loan agreement. In my case, the claimant seems to think that if they fail on Brandon, they have the Woodchester as a back up and they state that "as in Woodchester, all monies would be now due and payable in full, including interest".

The other thing is, my agreement would have naturally come to an end last year. Therefore, is the balance now due and payable in full?????

 

Ford.....why only the arrears? Who stated only the arrears as from termination? Would this be the amount that is on the defective default notice? I wish I could claim for the stress they have caused me. No one should have to go through this torture......I have been eating and sleeping courts and law lol

 

Thank you both for your support.

[Guest]

re if held to be still 'live' mould mentions arrears above #206, and wasn't that mentioned in woodchester?

[jonji]

If, as your counsel has advised, that “technically” thecreditor has not terminated the agreement; then, by reason of parity, yourcounsel must accept that the agreement is still live and that the creditor mustserve a valid default notice upon you that is compliant with s.87(1) of CCA1974 (as amended) and all you would need to do is pay the actual arrears owingat that time and within the 14 clear days’ time-scale – therefore, the agreement would continue andyou most certainly will not owe the full amount/balance claimed thereon nor thecreditors’ legal costs claimed in these proceedings.

 

What if the agreement naturally ended last year (regardless whether it had been terminated or not) and the court proceedings had been adjourned pending the Brandon appeal? How can the claimant serve a valid default notice in that scenario? There is no agreement existing now! What would be owed in these circumstances?

 

 

 

If at the trial, basedupon the circumstances of your case, the Court concludes that he has, which it is clear from your postings that hehas, then Brandon is your Defence.

 

If at the trial, based upon your postings here on thecircumstances of your case, theCourt concludes that the creditor has not, then the Court must also conclude that he has not complied with s.87(1)CCA (as amended) and so you will only owe the arrears that were due and owingat the time od creditor’s “technically incorrect” termination of theagreement, therefore, you pay the actualarrears that were claimed as due and owing at that point and within the statutory14 clears days and the agreement must continue as though no breach had occurred. In this respect, youwill not owe the creditor his claimed costs, because he could not possibly succeed thereonin the light of his failure to comply with his statutory duties imposed uponhim under s.87(1) CCA 1974 (as amended).

 

The agreement can not continue in this case as the agreement had naturally come to an end last year.

[The Mould]

If, as your counsel has advised, that “technically” thecreditor has not terminated the agreement; then, by reason of parity, yourcounsel must accept that the agreement is still live and that the creditor mustserve a valid default notice upon you that is compliant with s.87(1) of CCA1974 (as amended) and all you would need to do is pay the actual arrears owingat that time and within the 14 clear days’ time-scale – therefore, the agreement would continue andyou most certainly will not owe the full amount/balance claimed thereon nor thecreditors’ legal costs claimed in these proceedings.

 

What if the agreement naturally ended last year (regardless whether it had been terminated or not) and the court proceedings had been adjourned pending the Brandon appeal? How can the claimant serve a valid default notice in that scenario? There is no agreement existing now! What would be owed in these circumstances?

 

 

 

If at the trial, basedupon the circumstances of your case, the Court concludes that he has, which it is clear from your postings that hehas, then Brandon is your Defence.

 

If at the trial, based upon your postings here on thecircumstances of your case, theCourt concludes that the creditor has not, then the Court must also conclude that he has not complied with s.87(1)CCA (as amended) and so you will only owe the arrears that were due and owingat the time od creditor’s “technically incorrect” termination of theagreement, therefore, you pay the actualarrears that were claimed as due and owing at that point and within the statutory14 clears days and the agreement must continue as though no breach had occurred. In this respect, youwill not owe the creditor his claimed costs, because he could not possibly succeed thereonin the light of his failure to comply with his statutory duties imposed uponhim under s.87(1) CCA 1974 (as amended).

 

The agreement can not continue in this case as the agreement had naturally come to an end last year.

 

 

Dear jonji

You would only owe the arrears that were due andowing, because the creditor has terminated the agreement on the foundation of adefective default notice. There hasbeen no “natural ending” of the agreement pursuant to the terms andconditions stated therein, because, waitfor it, the creditor terminated the agreement in contraventionof statute and thereby he hasdeprived himself of his entitlement under s.87(1) CCA 1974 (as amended). Basedupon your postings here, the foregoingis an irrefutable fact.

You do not owe the full balance claimed as due and owingunder the agreement, because, the creditor is not entitled to it. Inorder to be entitled to the full balance claimed as due and owing under theagreement and in order for the creditor to hold standing in Court to enforcethe same, he must establish that he has complied withhis statutory duties under the said section of statute and you have it inwriting from him that he has failed to comply with his statutory duties in thisrespect.

Therefore, youonly owe the actual arrears that were due and owing at the time that thecreditor terminated after serving and relying upon the invalid default noticeand he is not entitled under statute or common law to any more.

After the creditor served the invalid default notice onyou, how many days or weeks passedbefore he sent you notice that theagreement was terminated?

Thank you for your continued faith in me.

Kind regards

The Mould

[jonji]

Thank you Mould.......that was something that I needed to clear so I know what to throw back! It was the fact that the agreement would have naturally ended if it had been live still. Although I thought this would be the case, I just needed to hear it from someone else!

Really appreciate this Mould. It has been bugging me for days!

 

Cheers

[Guest]

jonji

thats the issue, they did not serve a compliant dn and so did not comply with statute.

they try and rely on woodchester prob cause brandon now goes against them. if the J follows woodchester, then should only be the arrears ie sums due prior to unlawful termination/non compliance with statute (the full balance is not outstanding/due prior). wasn't that the gist of woodchester? and, would they want to reinstate?

but, as you say, woodchester was re HP so it may well could be distinguishable, in which case brandon is def'y the foremost authority ie no enforcement/entitlement following non compliance with s87?

see what your counsel says?

ps, just to add that CofA cases are not binding on each other.

Edited November 29, 2013 by Ford

[The Mould]

Excellent advice/support and opinion posted by Ford.

 

Thank you for your continued contribution to this case, which, in my opinion, is correct in law.

 

 

We can only but hope that jonji's counsel is experienced in consumer law and that he will vigorously argue the facts, statute, Brandon case and the creditor's admission as to his failure to comply with his statutory duties imposed upon him under s.87(1) CCA 1974 (as amended).

 

Keep your chin up jonji, statute law is on your side.

 

Kind regards

 

The Mould

 

Kind regards

 

The Mould

[jonji]

Thank you Mould and Ford.

I am hoping the law is on my side Mould.

 

I am about to get a draft amended defence together, but my barrister has his own ideas of what this should consist of! He has not shared these ideas with me either as he says he is not sure what will end up in there yet. I have made suggestions as to what I believe should be in it and he doesn't appear to be happy with me when I make suggestions. He is awaiting my go-ahead to draft and of course, his fee upfront, but I am unsure if I would be happy with the result and I cannot afford the fee twice! Are barristers in general like this? I paid a lot of money upfront for him to read through my case and represent me in court for all of fifteen minutes. I have had my cross application struck out and my amended defence will only be considered at the next hearing. I wasn't happy with the strike out, but the barrister thought it wasn't the correct procedure anyway. If I ask for an explanation why that is the answer I get. I'm so unsure what to do at this point. Things seem to be getting more complicated for me instead of easier! There is an issue with sums owing and whether these are payable at the time of termination; the time the proceedings began or the time the proceedings ended??? I am sick of quoting statute and s.87(1) CCA 1974 (as amended). It seems irrelevant as 'we don't know why the C of A said money due at time of termination.' My response to this is it was because that is what statute states.............HELP, I am truly going to go insane!!!

[mjt2013]

To be honest, and I know others here will disagree because they want to do it themselves, you've hired a barrister and I really think you should work with him and not rely on the well meaning but ultimately unaccountable advice from lay people on a self help forum.

[jonji]

Thanks mjt2013......do you really think the advice on here is unaccountable? I hired a barrister for the last hearing but it is not set in stone that he will continue to work with me at this point in time. Obviously I read what others say, but I have also read the relevant law that applies in my case. I cannot change that law-it is what it is! This is what has caused so much confusion for me ie I read the relevant law and although it does apply to my case, I am confused when it is implied that it doesn't!

Thank you for your input anyway

[AndyOrch]

To be honest, and I know others here will disagree because they want to do it themselves, you've hired a barrister and I really think you should work with him and not rely on the well meaning but ultimately unaccountable advice from lay people on a self help forum.

 

So why are you here mjt ?

 

Unfortunately most members are not fortunate enough to appoint legal representation and CAG is their only source of help and guidance which is far superior to like of CAB and other Government funded services likes of Money Advice Services

 

http://www.consumeractiongroup.co.uk/forum/showthread.php?411407-Money-Advice-Service-not-fit-for-purpose.

 

The ethos of CAG is a self help....no one needs to be accountable......the members are offered information and its their ultimate decision to accept or reject but they will be far more enlightened with the help of this forum.

 

Regards

 

Andy

[mjt2013]

Everyone on this forum is completely unaccountable to you for the advice you get. If you follow my advice and it turns out to be terrible there's nothing you can do, if your barrister does the same then there's a very clear structure for complaints. A lot of people on the forum like to try and help but, if you've got access to a real lawyer, I suggest you use it.

[mjt2013]

Andyorch, I'm here for the same reason you are; to help those who don't have access to a lawyer. As the OP plainly does I suggest he uses it. Is that a problem?

[mjt2013]

So why are you here mjt ?

 

Unfortunately most members are not fortunate enough to appoint legal representation and CAG is their only source of help and guidance

 

Precisely. That is not the OP's position, luckily for him, so my point is that he's better off using his lawyer than resorting to CAG advice which, as you say, is for people who can't afford advice and have to resort to Internet forums as their "only source" of help.

[jonji]

As I have already mentioned mjt2013, I only hired a barrister for the last hearing and I do not know at this point if I can afford to continue to use him! You say you are here to help those who don't have access to a lawyer. You say the advice on here is unaccountable too......so why would your advice/help be any different? I have stretched my resources to get legal advice because of my health issues, but that doesn't mean I am no more entitled as the next person to research, ask questions or seek the help and advice of people with more knowledge that I have on here. Actually, from what I have seen of your posts on this thread alone, they have appeared to be negative and at one point, a comment you made appeared to be insulting to another member! I don't have a problem if you wish not to provide any help or advice on this thread and if you feel I am not worthy of your advice, or anyone else's on here, feel free not to make any comments.

jonji

[mjt2013]

OK, well I'm sorry if I upset anyone. I still maintain that it's fairly obvious that you should prefer the services of a trained barrister if you have access to one but I think I've made that point and it's up to you if you wish to ignore it. As all of my comments on this thread have rubbed you up the wrong way I'll leave you in the hands of the others and I wish you good luck with your case.

[Ganymede]

OK, well I'm sorry if I upset anyone. I still maintain that it's fairly obvious that you should prefer the services of a trained barrister if you have access to one but I think I've made that point and it's up to you if you wish to ignore it. As all of my comments on this thread have rubbed you up the wrong way I'll leave you in the hands of the others and I wish you good luck with your case.

 

 

 

I totally agree with you and you've made some good points. The OP is paying for a fully trained and insured barrister so should listen to what he says.

 

Don't see anything wrong with that.