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PRA Group claimform old MBNA card 'debt'


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As regards your ‘without prejudice’ offer in full and final settlement, if you have not waived your rights as to privilege and confidentiality, then that offer is inadmissible as evidence and cannot be relied upon by the Claimant to support his claim against you.

 

 

Can you please try and reply to this post and my other recent posts. Thank you.

 

 

ibberty bibberty

 

Thanks for this the offer was made without prejudice and the email was referring to the offer made

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Do they name the actual person attending the SJ hearing? There is likely to be a specific part within the statement that deals with the SJ.

 

"What can my response be to this, have I shot myself, like I said no address or account number as reference I was not admitting the debt just wanted to offer an amount and the default be removed and as the account was in dispute with regards to an unreadable credit agreement"

 

With regards above, I'm not honestly sure.....in fact, I haven't got a clue without reading up a bit. I'm not sure what constitutes an acknowledgement and then how any acknowledgement might affect your position with regards Act of Limitations. It would be nice to get Andyorch's view on it.

 

Where did you state 'Without Prejudice'? I'm sure there is an obvious angle from which you can use the WP basis of your proposal. Have they omitted the Without Prejudice??

 

EDIT: I have just seen your reply above with regards Without Prejudice. Have they included the original email in their WS?

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There response to my email and my next email reply to this has without prejudice on

 

 

without prejudice

 

 

Thank you for your email, and firstly I apologise for the delay in coming back to you.

 

Before I refer to the question of settlement figures, there is one point that should be addressed first namely the question of the default entry. As much as agreeing to the removal of that entry in all probability would smooth the way to a negotiated settlement I regret I cannot agree to this. The issues you have previously raised regarding this subject do not negate the fact that a notice was served, and in consequence we are under an obligation to report the status of this account truthfully to the credit reference agencies. To provide them with inaccurate information, or to remove that entry without proper justification, would place us in breach of our reporting obligations and could render us liable to any organisation that relied on the information we provide, or that the entry was removed, could result in proceedings being brought against us for damages. Therefore at best if the sum outstanding were paid in full the entry would be marked as “satisfied”, or alternatively if a reduced sum were accepted in settlement it would be marked as “partially satisfied”. In fairness to you I felt it important to provide this information early on in this round of discussions.

 

I completely echo your view that an agreed settlement is far more desirable than going down the litigation route from both our points of view.

 

As I have mentioned in earlier correspondence, particularly in our exchange of emails on the 13th March 2014, I have based any discount offered on the principle balance on what I perceive to be our litigation risk, that is to say our risk of losing any claim and what I consider to be the element of our costs that is invariably declared irrecoverable by the Court. These irrecoverable costs are not an exception in legal proceedings, but it is generally accepted that a successful litigant will not recover all their costs unless the Court decides this should be the case based on the behaviour of their opponent. Therefore I have to say that the discounted sum I previously offered for a single payment settlement of £8,252.84 remains a reasonable.

 

From your latest email it seems that this will be unachievable from your point of view, and it would seem more logical to approach the discharge of the sums due on a monthly payment basis. In an effort to bring this matter to a close I am prepared to offer a discounted sum to be paid by mutually agreed instalments, but I am sure you will appreciate that any discount offered will not be as substantial as the discount offered for a single payment. In consideration of an agreement to discharge the balance outstanding by instalments I am prepared to discount this sum to £9,903.40. Any discussions on instalment levels would have to be subject to your completing an income and expenditure questionnaire, and any information provided as a result of any reasonable requests for additional information we may make.

 

I look forward to receiving your views on my comments in due course.

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OK, these letters received in February & March 2009 provide incontrovertible evidence as to the date the creditor’s cause of action accrued and his knowledge of the same. You must keep these letters at the front of your file that you are taking with you tomorrow as they are paramount to your statute barred Defence and irrefutably prove your Defence against the claim.

 

 

Therefore, the creditor should have issued his claim against you in late January 2015 or very early in the first week of February 2015, he did not, and therefore he is 3 or 2 months out of time for the purposes of the limitation period to apply in his favour.

 

 

It is irrelevant that there was a dispute on the credit agreement and further irrelevant that he did not issue a default notice until October 2009, because none of these facts extinguish the date his cause of action accrued and his knowledge of the same, as evidenced in his two letters informing you that you have defaulted on the credit agreement and which is the precise date that the limitation period began to run from for the 6 year limitation period.

 

 

Can you post up the letters word for word – minus your personal details please?

 

 

ibberty bibberty

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Yes I am going to spend the morning reading through and writing some notes.

 

There only two arguments are the email, but I will inform that this was a without prejudice forum and should not be brought in to court, I will print off the emails before and after showing without prejudice.

 

Also the dispute I have a letter from them dated March 2009 that states the account is not in dispute.

 

Finally I will read the statements that Andy provided on SB.

 

The credit agreement is unreadable and you are not able to process the contents and I have two default notices dated 9th October 2009 one wanted the arrears the other demanding the full balance!

 

So they are making documents up as they go along.

 

Fingers crossed

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The following material should be printed off and referred to by you in your oral arguments (known as submissions) when you speak to the judge regarding your without prejudice settlement offer.

 

 

Also, print off the statute barred arguments that I have posted for you and refer to these arguments.

 

 

Without Prejudice.

 

Without Prejudice” documents (which are also “Privileged” documents) are those documents that relate to all negotiations genuinely aimed at a settlement between the parties.

 

Any communications which are intended to be part of a genuine settlement attempt should be clearly marked “Without Prejudice” at the top of the letter.

 

 

The courts have held, however, that the principle of “Privilege” can protect subsequent and even previous letters in the same chain of correspondence. Strictly speaking, therefore, it is not necessary that every letter be marked “Without Prejudice” if it is clear that the communication is intended to be part of the settlement negotiations.

 

 

The converse of this being that, just because documents are marked “Without Prejudice”, unless they are intended to be part of a genuine settlement attempt they will not actually enjoy “Privileged” status and they will not be protected from disclosure.

 

 

Without Prejudice” correspondence remains “Privileged” even after a compromise has been reached and is generally inadmissible in any subsequent litigation on the same subject matter whether between the same or different parties. However, where the negotiations are successful and the “Without Prejudice” correspondence constitutes a binding contract the correspondence may be produced to prove that such a contract has been entered into (if, say, one party does not comply with the terms of the settlement, and the other wishes to enforce it). (Ref: Rush & Tompkins v Greater London Council (Court of Appeal) 21 December 1987).

 

 

Although it is often considered that the “Without Prejudice” rule is founded on the public policy of encouraging litigants to settle their differences rather than litigate them to a finish, in the case of Muller v Linsley & Mortimer [1996] 1 PNLR 74, Hoffmann LJ stated that the justification of the “Without Prejudice” rule was an implied agreement between the parties “arising out of what is commonly understood to be the consequences of offering or agreeing to negotiate without prejudice, not the public policy of encouraging parties to negotiate and settle”.

 

 

The rule applies to exclude “Without Prejudice” documents from being given in evidence, and the purpose of the rule is to protect a litigant from being embarrassed by any admission made purely in an attempt to achieve a settlement (Ref: CPR Rule 31).

 

 

In the recent Court of Appeal case of Reed and Reed v Reed and Reed and Totaljobs.com (14 July 2004) the question was raised as to whether the Court could compel the parties to disclose the detail of “Without Prejudice” negotiations (or documents) when dealing with the question of costs.

 

As long ago as 1889 the Court of Appeal held, in Walker v Wilshire (23 QBD 335) that “Letters or conversations written or declared to be “without prejudice” cannot be taken into consideration in determining whether there is a good cause for depriving a successful litigant of costs”, and, in respect of the question posed in the “Reed” case, the Court of Appeal found that parties who have negotiated on a wholly “Without Prejudice” basis have always done so in the faith and expectation that what they say cannot be used against them even on the question of costs.

 

 

The Court of Appeal found that the rule established in Walker v Wilshire remains good law and the Court therefore cannot order the disclosure of “Without Prejudice” documents against the wishes of one of the parties.

 

 

In other words, “Without Prejudice” documents effectively have “Privileged” status for both parties, and therefore, even when only the matter of costs is being considered, it needs both parties to waive their rights to non-disclosure, if the document is to be disclosed.

 

 

Source: Curtesy of The Mould’s Sticky in this legal issue forum.

 

 

ibberty bibberty

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Reed Executive Plc & Anor v Reed Business Information Ltd & Ors [2004] EWCA Civ 887 (14 July 2004)

 

 

Type the above case into your search engine and you will find the case on Bailli, print off the transcript of the judgment x 3 copies and bring it with you to the Court tomorrow.

 

 

Give one copy to the Usher, one copy to the counsel or solicitor representing the Claimant and keep one copy for yourself.

 

 

This is a Court of Appeal authority which confirms that your ‘without prejudice’ offer and subsequent emails relating to the same cannot be disclosed. All lower Courts, such as County Courts and including High Court Queen’s Bench Division and Chancery Division, are bound by this authority and therefore the DJ at the SJ hearing is bound by the same and he has no power or authority to allow the Claimant to disclose you’re without prejudice correspondence exchanged with the Claimant.

 

 

Ibberty bibberty

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Reed Executive Plc & Anor v Reed Business Information Ltd & Ors [2004] EWCA Civ 887 (14 July 2004)

 

 

Type the above case into your search engine and you will find the case on Bailli, print off the transcript of the judgment x 3 copies and bring it with you to the Court tomorrow.

 

 

Give one copy to the Usher, one copy to the counsel or solicitor representing the Claimant and keep one copy for yourself.

 

 

This is a Court of Appeal authority which confirms that your ‘without prejudice’ offer and subsequent emails relating to the same cannot be disclosed. All lower Courts, such as County Courts and including High Court Queen’s Bench Division and Chancery Division, are bound by this authority and therefore the DJ at the SJ hearing is bound by the same and he has no power or authority to allow the Claimant to disclose you’re without prejudice correspondence exchanged with the Claimant.

 

 

Ibberty bibberty

 

Do I hand this out as soon as I enter the court room or before

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Andy

 

I have just found a letter from MBNA dated 6th March 2009 that MBNA do not hold my account in dispute.

 

See post 62

 

Kind regards

 

Excellent well show that to the Judge after you have quoted what I have already told you.......that makes the claimants witness statement irrelevant and made up.

 

You will most probably only get a couple of chances to speak so forget all the above.....this is smalls claims track

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The following material should be printed off and referred to by you in your oral arguments (known as submissions) when you speak to the judge regarding your without prejudice settlement offer.

 

 

Also, print off the statute barred arguments that I have posted for you and refer to these arguments.

 

 

Without Prejudice.

 

Without Prejudice” documents (which are also “Privileged” documents) are those documents that relate to all negotiations genuinely aimed at a settlement between the parties.

 

Any communications which are intended to be part of a genuine settlement attempt should be clearly marked “Without Prejudice” at the top of the letter.

 

 

The courts have held, however, that the principle of “Privilege” can protect subsequent and even previous letters in the same chain of correspondence. Strictly speaking, therefore, it is not necessary that every letter be marked “Without Prejudice” if it is clear that the communication is intended to be part of the settlement negotiations.

 

 

The converse of this being that, just because documents are marked “Without Prejudice”, unless they are intended to be part of a genuine settlement attempt they will not actually enjoy “Privileged” status and they will not be protected from disclosure.

 

 

Without Prejudice” correspondence remains “Privileged” even after a compromise has been reached and is generally inadmissible in any subsequent litigation on the same subject matter whether between the same or different parties. However, where the negotiations are successful and the “Without Prejudice” correspondence constitutes a binding contract the correspondence may be produced to prove that such a contract has been entered into (if, say, one party does not comply with the terms of the settlement, and the other wishes to enforce it). (Ref: Rush & Tompkins v Greater London Council (Court of Appeal) 21 December 1987).

 

 

Although it is often considered that the “Without Prejudice” rule is founded on the public policy of encouraging litigants to settle their differences rather than litigate them to a finish, in the case of Muller v Linsley & Mortimer [1996] 1 PNLR 74, Hoffmann LJ stated that the justification of the “Without Prejudice” rule was an implied agreement between the parties “arising out of what is commonly understood to be the consequences of offering or agreeing to negotiate without prejudice, not the public policy of encouraging parties to negotiate and settle”.

 

 

The rule applies to exclude “Without Prejudice” documents from being given in evidence, and the purpose of the rule is to protect a litigant from being embarrassed by any admission made purely in an attempt to achieve a settlement (Ref: CPR Rule 31).

 

 

In the recent Court of Appeal case of Reed and Reed v Reed and Reed and Totaljobs.com (14 July 2004) the question was raised as to whether the Court could compel the parties to disclose the detail of “Without Prejudice” negotiations (or documents) when dealing with the question of costs.

 

As long ago as 1889 the Court of Appeal held, in Walker v Wilshire (23 QBD 335) that “Letters or conversations written or declared to be “without prejudice” cannot be taken into consideration in determining whether there is a good cause for depriving a successful litigant of costs”, and, in respect of the question posed in the “Reed” case, the Court of Appeal found that parties who have negotiated on a wholly “Without Prejudice” basis have always done so in the faith and expectation that what they say cannot be used against them even on the question of costs.

 

 

The Court of Appeal found that the rule established in Walker v Wilshire remains good law and the Court therefore cannot order the disclosure of “Without Prejudice” documents against the wishes of one of the parties.

 

 

In other words, “Without Prejudice” documents effectively have “Privileged” status for both parties, and therefore, even when only the matter of costs is being considered, it needs both parties to waive their rights to non-disclosure, if the document is to be disclosed.

 

 

Source: Curtesy of The Mould’s Sticky in this legal issue forum.

 

 

ibberty bibberty

 

Where is this information from if they ask

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Excellent well show that to the Judge after you have quoted what I have already told you.......that makes the claimants witness statement irrelevant and made up.

 

You will most probably only get a couple of chances to speak so forget all the above.....this is smalls claims track

 

 

Thanks Andy for all your help, feel a lot better and more confident, keep it small and sweet.

 

Am I going for a full hearing or for it to be thrown out?

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Summary Judgment hearing....30/45 mins tops

 

Post #68 is all the argument you need:wink:

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Johno -

don't go giving anything to the judge unless it's raised in discussions and you happen to have the material with you and he/she is willing to view it (e.g. letter saying account was not in dispute).

 

 

I was advised on this forum to hand documents to the usher before my SJ hearing last year and I had a rollocking about it and was referred to as 'an ambush'.

 

The purpose of tomorrow is to decide whether your defence has any merit and deserves a proper hearing.

 

 

Keep your points clear and concise and don't get bogged down trying to remember too many minor details.

 

 

I'd stick to focusing on four main points -

1. the claim is statute barred as it was issued outside the six year timeframe.

 

 

2. There was no dispute on the account and there is no evidence to suggest otherwise.

The claimant has fabricated this within their WS.

 

 

3. The date of DN is not relevant as far as cause of action is concerned...

the claimant is totally incorrect..

.but is irrelevant anyway,

as their explanation for waiting 8 months (i.e. dispute on the account) was completely made up (i.e. point 2).

 

 

4. (If the emails are raised) The emails referred to were 'Without Prejudice' and therefore not admissible.

The claimant has been selective and omitted the 'Without Prejudice' statement for their own benefit.

Furthermore, the correspondence put forward by the claimant shows no direct link to this case.

 

I wouldn't do printing off full case documents

- maybe just the front page and any relevant other pages.

Highlight the bits that will support your points.

 

 

Only ask to refer to them if the situation warrants and you need to enforce a particular point.

 

 

This is just my view based upon being through a SJ hearing myself.

I'm sure the judge will be well aware of what Without Prejudice means, for example, anyway.

 

Was the claimant asked to prepare a file for this particular hearing? If so, they'll have asked you if you wished to include any particular documents.

 

Relax and get a good night's sleep!

 

P.S. Points 2, 3, and 4 would only be needed in the event that the judge gives the claimant's WS full consideration. Hopefully they will know their stuff and not accept it.

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