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

[jonji]

Interesting last few comments.......but, as I said previously, I have used a barrister once (see #223) etc etc..............

[AndyOrch]

Interesting last few comments.......but, as I said previously, I have used a barrister once (see #223) etc etc..............

 

And are you any wiser or nearer to success?

[The Mould]

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!!!

 

Jonji,

This is my further advice to you and Igive you my word, that if you should loseyour case based upon all of my advice posted here for you in relation to allmaterial posted here by you, then, you can hold me accountable and I herebypromise to help you to appeal if the judgement handed down hereon is awarded against you .

Drop the barrister, save yourself the money and represent yourself, and base your case on legislation – s.87(1)1974 (as amended) and the Court of Appeal’s qualified judgementhanded down in the Brandon v American Express case in respect of service by acreditor of an invalid statutory default notice, whichyour creditor has admitted that the saidnotice he relies upon is indeed invalid.

Also, you have the Harrison v Link Financial Ltd case that you can relyupon, where it was declared by the High Court that service of a valid statutory defaultnotice was a prerequisite to enforcement proceedings.

Disregard all negative material postedhere and try to refrain from answering to the same.

The relevant legislation that applies tothe circumstances of your case posted here, which the creditor is obligated to comply with as a statutory duty imposed upon him, is setout below.

1974 c. 39 Part VII Default notices Section 87

s.87Need for default notice.

E+W+S+N.I.

(1)Service of a notice on the debtor or hirerin accordance with section 88 (a “default notice ”) is necessary before thecreditor or owner can become entitled, by reason of any breach by thedebtor or hirer of a regulated agreement,— (my emphasis added)

(a)toterminate the agreement, or

(b)todemand earlier payment of any sum, or

©torecover possession of any goods or land, or

(d)totreat any right conferred on the debtor or hirer by the agreement asterminated, restricted or deferred, or

(e)toenforce any security.

(2)Subsection(1) does not prevent the creditor from treating the right to draw upon anycredit as restricted or deferred, and taking such steps as may be necessary tomake the restriction or deferment effective.

(3)Thedoing of an act by which a floating charge becomes fixed is not enforcement ofa security.

(4)Regulationsmay provide that subsection (1) is not to apply to agreements described by theregulations.

[F1(5)Subsection (1)(d) does notapply in a case referred to in section 98A(4) (termination or suspension ofdebtor's right to draw on credit under open-end agreement).]

s.88Contents and effect of default notice.

E+W+S+N.I.

(1)The default notice must be in theprescribed form and specify—

(a) the nature of the alleged breach;

(b)if the breach is capable of remedy, whataction is required to remedy it and the date before which that action is to betaken;

©if the breach is notcapable of remedy, the sum (if any) required to be paid as compensation for thebreach, and the date before which it is to be paid.

(2)A date specified undersubsection (1) must not be less than [14] days after the date of service ofthe default notice, and the creditor or owner shall not take action such as ismentioned in section 87(1) before the date so specified or (if no requirementis made under subsection (1)) before those [14] days haveelapsed. (my emphasisadded)

(3)Thedefault notice must not treat as a breach failure to comply with a provision ofthe agreement which becomes operative only on breach of some other provision,but if the breach of that other provision is not duly remedied or compensationdemanded under subsection (1) is not duly paid, or (where no requirement ismade under subsection (1)) if the [F114] days mentioned insubsection (2) have elapsed, the creditor or owner may treat the failure as abreach and section 87(1) shall not apply to it.

(4)Thedefault notice must contain information in the prescribed terms about theconsequences of failure to comply with it [F2and any other prescribedmatters relating to the agreement].

[F3(4A)The default notice mustalso include a copy of the current default information sheet under section 86A.]

(5)Adefault notice making a requirement under subsection (1) may include aprovision for the taking of action such as is mentioned in section 87(1) at anytime after the restriction imposed by subsection (2) will cease, together witha statement that the provision will be ineffective if the breach is duly remediedor the compensation duly paid.

s.89Compliance with default notice.

E+W+S+N.I.

If before the date specified for that purpose inthe default notice the debtor or hirer takes the action specified under section88(1)(b) or © the breach shall be treated as not having occurred.

Kind regards

The Mould

[Guest]

jonji

hope my posts didnt confuse things?

re law of Mistake as a poss remedy re a duff DN- that was something mooted in Sweet & Maxwell (legal text) some time ago (before brandon). i don't know if it has been tested in court, hence suggested perhaps asking your counsel about that.

re SO - what i meant before is that at an SJ hearing court can, under the CPR (Practice Direction 24 para 5.1), strike out a claim of its own accord. (so maybe a formal app'n wasn't needed, perhaps just some submissions? but, it has been adjourned?)

as you say, it seems as if your counsel doesn't want to do/say much more until he gets the further instruction and the required fee? but, he should of at least explained things re his representation re the hearing, and the general gist of things then. you should be entitled to ask/query/suggest etc as you like re his work done (which you paid for), and further if you do instruct.

imo, as an 'unaccountable' 'lay' person

Edited December 6, 2013 by Ford

[jonji]

Mould and Ford, you are both a breath of fresh air! Sorry for late response, but hospital yesterday for a procedure and groggy today!

 

I hear what you say Mould and as I have said previously I know you are right to quote s.87 and s.88. Thank you

 

Ford- counsel not prepared to discuss what he might be putting in the amended defence until fee is paid and I am not prepared to pay unless I have some idea of what he will put (cannot afford to waste any more money for nothing). I have made some suggestions, but that just seemed to get his back up and he wants just a 'yes or no' answer to go ahead! Doesn't like both my 'lengthy' emails and is 'too busy' to answer my questions in response to his emails! Doesn't speak direct to me; just emails! Hence my question a few days ago re are all barristers like this? Totally bizarre situation to be in......

Will look into the CPR Practice Direction para 5.1. Thank you (you 'unaccountable lay person )

[jonji]

And are you any wiser or nearer to success?

 

Wiser......yes, very much so! Nearer success...... Who knows how this will all pan out?

[Guest]

Mould and Ford, you are both a breath of fresh air! Sorry for late response, but hospital yesterday for a procedure and groggy today!

 

I hear what you say Mould and as I have said previously I know you are right to quote s.87 and s.88. Thank you

 

Ford- counsel not prepared to discuss what he might be putting in the amended defence until fee is paid and I am not prepared to pay unless I have some idea of what he will put (cannot afford to waste any more money for nothing). I have made some suggestions, but that just seemed to get his back up and he wants just a 'yes or no' answer to go ahead! Doesn't like both my 'lengthy' emails and is 'too busy' to answer my questions in response to his emails! Doesn't speak direct to me; just emails! Hence my question a few days ago re are all barristers like this? Totally bizarre situation to be in......

Will look into the CPR Practice Direction para 5.1. Thank you (you 'unaccountable lay person )

 

hi

seems a stalemate with counsel. as mentioned, he won't do/say much more until he has the further instruction and fee! but, you should be able to ask/query re the work he has already done as instructed, that you have paid for?

re your q 'are all barristers like this?' - maybe not all, some may be more forthcoming, depends on each circumstances i suppose. but, as the saying goes, money talks! (if you see what i mean)

Edited December 12, 2013 by Ford

[steampowered]

Its partly based on how barristers work. The kind of work done by a barrister is much more limited than the work done by a solicitor. Barristers are generally used to being instructed by solicitors; who would already have done the legal leg work and essentially tell him what needs to go into the Defence without any need for the barrister to take instructions directly with a layperson. Still, the barrister should be a bit more forthcoming as this is what he signed up for when he decided to accept an instruction directly from a member of the public rather than from a solicitor.

 

It is fairly common practice for lawyers to require payment on account before they do work.

[jonji]

Thanks Ford and Steampowered for the above.

 

I couldn't work with that barrister as he wasn't forthcoming at all. I agree that it's common practice for the payment to be made before they do any work, and quite right too! However, to make your client feel that they should not ask questions or to keep your client in the dark about what he was going to put in their defence, didn't quite sit right with me! Then when you get a telling off for making suggestions as to some points I wanted in the defence, then it was time to call it a day! He was not person centred or user friendly

[Guest]

hi jonji. how are you?

fair dos.

have you considered seeing an experienced solicitor instead? they can represent in the county court, and their fee may be lower (would they be able to act no win no fee re a SJ hearing?). plus maybe more forthcoming?

Edited January 11, 2014 by Ford

[jonji]

Hi Ford, I am fine thank you. Hope you are too!

 

I have looked for a solicitor in my area, but consumer credit solicitors are difficult to find, as are barristers in that area! The barrister I had turned out to have little experience in that area.

 

Do you know of any links on here to help me with my costing schedule?

 

Regards

[steampowered]

Personally I wouldn't get too excited about finding a consumer credit solicitor/barrister. There is not a great deal of money to be made in that sector so not too many true specialists ... a generalist solicitor should be fine and many will have at least some experience of CCA issues.

[jonji]

Costing anyone? Is there a template to help people do this on here?

I know it is set out in columns. Is it time for one and disbursements in the other and do you have to name every single document/letter on the schedule you produce?

 

Cheers

[jonji]

Hi all- have been searching for a link on here for a template for costing. Can anyone help out please, or give some advice on how to go about doing it.

 

Regards

[AndyOrch]

Bill of costs for forum.pdf

 

 

One that CitizensBand drafted with success.

[jonji]

Andyorch, thank you so much for that. I will have a look now.

 

Regards

[Guest]

cheers andy

jonji, note LiP hourly rate is now 18 / hour http://www.consumeractiongroup.co.uk/forum/showthread.php?326875-***Change-to-Litigant-in-Person-Rates***

edit pdf to suit

Edited January 11, 2014 by Ford

[jonji]

cheers andy

jonji, note LiP hourly rate is now 18 / hour http://www.consumeractiongroup.co.uk/forum/showthread.php?326875-***Change-to-Litigant-in-Person-Rates***

edit to suit

 

Thank you for that Ford.....will check through that

[jonji]

Hi all..........still doing my costs schedule. I thought the best way forward was to go through my files and on paper make a list down one side headed 'time' and then on the right 'headed' disbursements.

I have started from receipt of the claim form and worked through to the present day. I have been ridiculously low with the time spent allocated to each time recorded. For example, I have put 2 hours for research, when in fact I could have worked all through an evening until early hours in the morning looking up stuff here, on Google etc.

I have now got a long list which I have done on a spare roll of (unused) wallpaper!

 

OK......so now to do whatever with this information! Help needed again!

 

Looking at CitizenB's template (link above about about #240), there is mention to 'schedule 1' and 'schedule 2'. I do not know what these are as I have a copy of a 3 page doc done by CitizenB, in which the two schedules mentioned are not included. So, Would these be a whole listing of each document as I have already done? Do I then total them up and produce a 'Bill of Costs' as in CitizenB's template?

 

I need answers to this asap, as I want to have this done before morning. Also some idea of the times for research etc that are reasonable! Also what is the mileage rate we are allowed to claim as a LiP?

 

Regards

[jonji]

Anyone there to help with the above post would be much appreciated

[Guest]

as long as you cover the basics, think would be ok for assessment.

eg?

your preparation - research/drafting etc per hour

travelling - per hour/mileage (mileage rate covers vehicle costs)/parking/bus etc

admin costs? - photocopying, postage, etc

then actual legal costs - your counsel

yes, a schedule could be re itemising things?

[jonji]

I've completed it now Ford, but thank you for the help!

 

It's not such an easy thing to do! It took me much longer than I had anticipated and there is not much information on here to help out. I spent hours looking on here too!

The biggest problem was knowing how much you are allowed to claim for petrol, photocopying etc. From the info I did find, I used 40 pence a mile for working out mileage costs and 15 pence per printed sheet of paper; which included the ink.

 

It might be an idea for others who are new to being sued to start a costing file from the word go! It would eventually make things a lot easier when it comes to actually doing a costing schedule of their own. If I am ever taken to court again, that's what I would do!!

 

Regards

[Guest]

hi

no worries. as you were short of time, suggested #246. generally, that should be ok absent anything more detailed.

the mileage rate is to cover vehicle costs, including petrol. 40p should be ok

good luck.