In Court Friday LLoyds credit Card T&C's Check please.. **DISCONTINUED**

[jackreacher]

THANKS GUYS.. FEELS GREAT..

 

Back to business... Lets finish this thread off . Is there a good link for the discontinuance part..

 

Should I bother with the counterclaim and if so how do I do it.

 

Are they still defending against it. The notice says the claimant Lloyds Bank discontinues all of this claim.

 

I do not want to go for the counterclaim and lose and owing them costs.

 

 

Also who do I contact about costs, is it a wasted order..

 

I probably have £900 in costs and the same in lip costs. It was £720 in the last hearing but have had to do a paginated WS of 15 pages plus a Skeleton.

[jackreacher]

Could someone go over my letter I intend to send.. (Not sure)

Without prejudice (except as to costs)

 

I am now in receipt of your Notice to Discontinue your claim against me.

 

There still remains my counterclaim.

 

As you are aware I am unable to put a full list of the charges as you have failed to provide a full list of statements and or default charges. However I have attached a claim calculation of £1293.11, based on traceable default fees.

 

As per my Counterclaim I seek compound interest in restitution. You have been unduly enriched.

 

At no point have you been lawfully entitled to add charges to my account. Below are some but not all the points to be included in my skeleton argument.

 

The 2003 Agreement that you sought to rely on is not signed by the Creditor and as such is an Unexecuted Agreement and lawfully you have no right to charge any fees. You could of course ask the court to enforce the Agreement but that could not be done without a full hearing and you have discontinued.

Your defence to the counterclaim relies upon a pleaded date 1st May 1997, this is not in line with the above 2003 Agreement.

Further You have pleaded some information at Para7 of your defence to the counterclaim, stating among other things

(1) “at the time of applying for the the Credit Card and at the time of the account opening a customer is provided with details of the Bank’s Charges that are set out in clause 8 of the Terms and conditions that Govern the Agreement. “....It is clear as a pikestaff, there are no default charges set out in clause 8 of the 2003 conditions. You are attempting to mislead the court.

 

(2) Later in Paragraph 7 of the defence to the counterclaim you include clause 8.1 showing the default Charges were £12. Again this information is not included in your terms and conditions provided with the 2003 agreement. On that basis it is clear you have attempted to mislead the Courts and myself as the defendant.

 

(3)Further you are in breach of Schedule 1 para 22 of the regulations. You have failed to set out in your terms and conditions the default charges payable by the defendant on breach of the agreement, that is in itself unexecuted!

 

In recent years, Courts have been happy to accept claims for bank charges that exceed 6 years, whilst having regards to the precedent set between KLEINWORT BENSON -v- LINCOLN CITY COUNCIL under section 32 of the limitation act 1980.

Should County Court action be needed I will be seeking to rely on this.

 

Given the above and in order to bring this Claim to a fair, quick and satisfactory Closure, I suggest the following;

The counterclaim in Full £1293.11.

I remind the claimant, given the nature of this account there are undoubtedly more charges I could add. Should this matter go to court I reserve the right to amend this amount

 

 

COSTS.

At the last hearing You were given a schedule of costs to date of some £720. Since then I have done a long and complicated paginated witness statement and a detailed inclusive skeleton Argument. Plus further readings and preparation. I note I am allowed to claim up to 2/3rds of what you would your costs would be.

Costs = £1070.

I reserve the right to amend the amount should the counter claim go to court

[jackreacher]

After an hour of negotiations we have agreed to bear our own costs on the counterclaim. I would have had a 90% chance of winning..but hey! Take the £10,000 and be happy. If I had lost they would have had costs in at £3,000., and if the Judge did award them, it would hurt.

 

I have to say I had to threaten to turn up on Thursday and add "you know how stubborn I am"

 

Again thank you for your help

[citizenB]

Well done. So you can now put this one under "sorted"

[AndyOrch]

Or perhaps consider making a donation ?

[jackreacher]

Donation is definitely coming.. skint at moment.. really skint!!

 

SCM seemed happy to get a check out quickly.. so putting my costs together now.. Can I claim for ink and paper etc or just hours spent

[jackreacher]

Aah donation may be delayed .. offering around a third of what I was asking.

 

which is aproximately half what the judge gave his approval to in the second hearing.. Noting it was acceptable given the chaos/complexity of the case.

 

All help appreciated.

[DonkeyB]

Suggest a letter to them, recorded, restating your claim. You might want to offer a small compromise on a without prejudice basis in the interests of getting things sorted, but that’s down to you.

 

Make clear that you will resort to the court via an N252 if necessary. Should wake them up. They’re hoping you’ll go away.

[jackreacher]

Suggest a letter to them, recorded, restating your claim. You might want to offer a small compromise on a without prejudice basis in the interests of getting things sorted, but that’s down to you.

 

Make clear that you will resort to the court via an N252 if necessary. Should wake them up. They’re hoping you’ll go away.

 

Thanks DB as I thought... Will this do it?

 

Without Prejudice save as to costs.

 

I note your letter dated July 2014.

 

Your offer is not accepted. It does not represent the true, fair, reasonable and proportionate costs, of the time I have spent defending your somewhat chaotic Claim, that you Discontinued.

 

You state, “you do not agree that £xxxx.xx is reasonable or proportionate” yet you fail to specify why you do not agree.

 

 

 

In the second hearing, Judge X held that my Costs up to the second hearing in March were; “reasonable at £720, given the complexities of the case”. He also advised me “to make sure all of my costs were up to date and presented at the next hearing”. Since then I have done a lot of unnecessary work as you discontinued at the last minute. All of the above will undoubtedly have an influence on any detailed assessment hearing.

 

It is worth pointing out however, that the court will recognise that a LiP will most likely spend more time in a case than a solicitor. The relevant Rule is CPR 48.6 with guidance appearing in The Supreme Court Costs Office Guide (COG) Practice Direction at CPR PD 48 COG 22.4 and .5.

 

The question for the Judge considering the bill is if this case had been conducted by a solicitor, what would that solicitor’s reasonable total charge have been for doing that work? Having arrived at that hypothetical figure, the costs judge will assess the bill but disallow whatever the total bill comes to from exceeding two-thirds of the hypothetical figure.

 

It seems to me , given the amount and length of All of your Varied and conflicting Witness statements, agreements etc. Any detailed Assessment will find my Costs to be absolutely fair.

 

However in order to avoid further wasted courts time, I will make a reduction in my defence costs to xxxx.xx. This amount to be paid within 7 days.

 

If this is not acceptable, please identify where you think I have not been proportionate or reasonable. It is not my wish, but I will resort to the court via an N252 if necessary.

 

Kind Regards

[DonkeyB]

Sounds a bit complex to me, but it covers points that you were party to.

[jackreacher]

Sounds a bit complex to me, but it covers points that you were party to.

 

 

Bit complex = yes. I could simplify, but if it goes to assessment should I have stated my case? ..

I will give it some thought.

 

 

Thanks as always DB..

[jackreacher]

I keep getting demand letters from a certain DCA about this case.

 

bit annoyed as I thought this was done and dusted by way of a tomlin order. Is this normal or should I write a letter saying this has been dealt with by way of a tomlin order?

 

One thing that worries me is itv was one of SCM kast cases and I wonder if they did all their paperwork properly..

[AndyOrch]

Tomlin Order....thought the claim was Discontinued?

[jackreacher]

Tomlin Order....thought the claim was Discontinued?

 

Had to sign a confidentiality clause.

 

they sent a Notice of discontinuance to me and filed one with the court.

 

they further sent me a tomlin order stating they had discontinued

[AndyOrch]

Ah ok...well just drop them a little ditty stating the above.

[DonkeyB]

Is it the same in-house DCA?

 

Did the Tomlin order make clear that the debt would no longer exist, or prevent them from selling it on or re-litigating?

[jackreacher]

hello DB..hope you are

 

Different DCA. pm'd you

[DonkeyB]

Ah. It seems the Tomlin order did not end things. Rather left it open. You’re simply in a position where you’re back to square one, as if the previous case never happened.

 

However, I think you have two choices.

 

1. Ignore them/tell them to go away.

 

2. Refer them to two significant judgments that would make them look foolish in court. They’re not binding as they’re from the lower courts, but they would look like idiots if they ever threaten any further legal action (has a threat of legal action been made by the DCA?).

 

The first judgment concerns MKDP. The judge stated clearly that the claimant should have stated clearly the documents on which it wished to rely (your claimant didn’t have a clue), and should not breach court orders regarding disclosure, which your claimant did. The confused evidence also called into question their statement of truth, which the judge commented on in this case. https://consumercreditlitigationanddebtcollection.wordpress.com/2015/02/06/the-mkdp-judgment/

 

The second case to look at is Grace v Blackhorse – http://www.bailii.org/ew/cases/EWCA/Civ/2014/1413.html and https://consumercreditlitigationanddebtcollection.wordpress.com/2014/10/31/grace-v-blackhorse-court-of-appeal-ruling-my-view-as-the-fee-earner-responsible-for-the-case/

 

It seems very clear to me – and probably the reason for Lloyds’ discontinuance – that they had no enforceable agreement, such was the mess of their case and the number of unlinked agreements. I think this makes any agreement (whichever one they choose) very probably irredeemably unenforceable, and that further means the debt should not be recorded with the credit reference agencies (check this).

 

There’s loads of other cases you could throw at them, but I would also suggest, for the sake of £1, sending off another CCA request to Westcott. Bound to confuse them and Lloyds...

 

Things would have been a lot simpler if you’d come back to us for advice on the Tomlin order. They have well and truly fooled you, avoided paying costs, and potentially left the door open for further litigation unless you close them down sharpish.

[jackreacher]

THanks DB...2. Refer them to two significant judgments that would make them look foolish in court. They’re not binding as they’re from the lower courts, but they would look like idiots if they ever threaten any further legal action (has a threat of legal action been made by the DCA?).

 

NO .

 

Things would have been a lot simpler if you’d come back to us for advice on the Tomlin order. They have well and truly fooled you, avoided paying costs, and potentially left the door open for further litigation unless you close them down sharpish.

 

It seems that way... however I did get costs! and they agreed it was the end of the matter full stop.

 

pm'd you

[jackreacher]

I have pM'd you.

 

No legal threat as yet.

 

I did get costs letter and cheque as proof.

 

They discontinued on the 8th Jly sent a tomlin on the 14th court on the 16th. I was not happy with the tomlin and phoned them ! they agreed to remove the costs bit and confirm no further action.

 

Fortunately I have a letter jly 14th confirming the phone call took place and they further confirm they would be paying my costs. plus it states; it contains attached a consent order containing the terms agreed over the phone regarding the withdrawal of my counterclaim.

 

The consent order was not attached just the tomlin order.

[DonkeyB]

Was the Tomlin Order completed though? Could be a problem there.

 

Do you have it in writing that it’s the end of the matter?

[DonkeyB]

Sorry, posts crossed.

 

Consent order/Tomlin pretty much the same thing, though a Tomlin order gives the right to continue the legal process without starting new proceedings – which is not needed here. A Tomlin order actually keeps the case live in case of a breach of the order, but they have discontinued. A Tomlin order would only be needed to protect them from your counterclaim, as the discontinuation of their claim was already effective, which makes it a bit one-sided.

 

So you’d need to rely on their word that it’s the end of proceedings – do you have that in writing?

 

Without a signed Tomlin or consent order, things are a bit tricky otherwise. If the order stated there would be no further action, then they would have breached it and you could have gone for damages.

[jackreacher]

can anyone point me in the direction of the latest failure to comply s78 request template please. I have looked ..promise.

[dx100uk]

current wisdom is don't bother

simply invites letter tennis

 

 

dx

[jackreacher]

current wisdom is don't bother

simply invites letter tennis

 

 

dx

 

Thanks DX. Yes..I agree. Just thought I would follow cag guidance always served me well in the past.