Natwest - Judgment in Default - joint bank account ***Claim Discontinued***

[the worm that turned]

Why isn't this the case?

[tedney]

FYI

I have a stayed case, and my wife has one too, since 2008. Good Luck! t

[the worm that turned]

For the same alleged debt? Same account? Was it a joint account?

[tedney]

Yes, my case is for joint account and another account too, my other half's was for the same joint account only. HTH. t

[the worm that turned]

Did you have a joint and several liability clause in your contract? I imagine you would have done. Perhaps (as someone else I spoke with earlier today suggested) the several term allows for them to make a separate claim for the same alleged debt.

[tedney]

Yes, you are correct, I think that is the "norm" with banks when a joint current account is opened?

[Guest]

worm

when was this?

thinking of a recentish con credit act change re if joint and regulated, then any claim wld have to be against both names? ie cant then 'sue' one or the other, has to be both.

 

eg re a joint account regulated matter; s185 con act? ie s185 (1)(a) ie 'done to both'. or is that not applicable in the circs?

[Ganymede]

Why isn't this the case?

 

Because the debt is joint and several and it's a technical procedural point and a costs issue mostly in my opinion.

 

Proceedings can normally be consolidated by the Court if necessary under CPR 3.1(2)(g) but the Claimant is likely to lose out on their costs for your wife's claim.

 

Your case is slightly different as your claim is currently stayed so consolidation probably won't happen unless an application to lift the stay is also made.

 

Like I said, include it in your wife's Defence IF a claim is ever filed (it might not be) but don't solely rely on it.

[AndyOrch]

Worm lets try to get this thread back into perspective.....we are all aware of what joint and several is and its associated liabilities and who can be sued.

 

Your debt is with the Original Creditor that has issued a claim against you only and that is still pending.The " interlopers " that you refer to I assume are only acting and trying to collect on behalf of the Claimant against your better half.

 

They will most probably be unaware that a claim is pending against you only...in fact the claimant has probably also forget they have issued it...so ignore the " Interlopers " they cant do anything litigation wise as the debt has not been assigned.....only the Creditor can instigate which party they want to litigate against.

 

Should they decide to issue a claim against your wife...which I see as very unlikely for the reasons I have already stated and the costs element that Gany has referred to...then you have a couple of options.....

 

Make application to lift the stay on the pending claim against you and strike out or continue to fight it and add the the above as a further argument to your defence....or defend the new claim using the first claim reasons and the further harassment as a basis of defence.

 

The pending/stayed claim will be very useful as a stay of proceedings in UK Courts is a court order which suspends the whole of the litigation or part of it. The effect of the stay is that no party may take any step in the litigation until the stay is lifted....including further chasing of the debt from another joint party whilst they already have a stayed claim on the same debt.

 

Also you can throw in Related Proceedings:

 

There are related proceedings which should be heard and determined before the present proceedings progress, as the decision from the other proceedings may affect the outcome of the present proceedings.

 

I personally would ignore it all...until the claimant tries to instigate further.

 

Regards

 

Andy

[the worm that turned]

Thanks guys for input.

 

Very useful.

[the worm that turned]

These rotters have applied for and received a judgment in default despite the claim being stayed (for over 2 years) and me not receiving a copy of the bank's application for the stay to be lifted or for default judgment.

 

The stay automatically occurred because despite me not filing a defence the bank did not file for a judgment in default. The bank actually took out the claim against me despite there being an ongoing formal complaint raised be me in relation to the matter.

 

The bank admitted that the claim should not have been pursued with the complaint ongoing and most importantly two recorded voice calls (with bank and their solicitors)

 

 

I expressed my concerns about me not submitting a defence as I was awaiting the outcome of the complaint and then the bank submitting an application for a judgement as no defence was filed. In both recordings they said they wouldn't do this and that they would afford me 2 weeks to submit a defence if they were to continue.

 

I continue to claim that there is no debt outstanding and have a solid defence but now I'm faced with a judgement from Northampton CCBC!!

 

Am I entitled to

1) be made aware of an application to have a stay lifted and an application for judgment in default,

2) a hearing in relation to these, and

3) apply for the judgment to be set aside due to a failure to follow process and because I am in a position to successfully defend the claim AND counterclaim?

[BazzaS]

1) No.

2) No.

3) Yes.

 

I t will cost you (£155?) to make your application.

 

To prevent 1) and 2) : you should have filed your defence once you were able to.

[dx100uk]

£255 set aside now..

[the worm that turned]

1) No.

2) No.

3) Yes.

 

I t will cost you (£155?) to make your application.

 

To prevent 1) and 2) : you should have filed your defence once you were able to.

 

But the bank told me they wouldn't apply for judgment without first giving me an opportunity to defend?

 

Also, after the original 28 days to submit defence had elapsed (I.e. while the review of complaint was ongoing) and then after 6 months had elapsed and claim was stayed do I even have the right to just submit a defence or is permission required?

 

So you are confirming that neither the court or claimant are required in any way to inform me that an application for lifting a stay or for judgment in default are required to be provided to defendant? How so?

 

Looks like £255 then to have this set aside as there is no outstanding debt!!!!

[the worm that turned]

I have now seen a copy of the application for lifting of stay and judgment

 

the witness statement within contains outright lies and the inclusion of prejudiced information

that was marked in correspondence 'without prejudice'.

 

Can anyone confirm what the penalty for entering false information into proceedings is,

is it covered under any criminal statute or common law?

 

Also, is entering prejudiced information punishable too, or is that just a telling off from judge?

 

Many thanks in advance

[Old Cogger]

In most, if not all, common law countries,

what this means is that negotiations by parties and letters sent to each other labelled ‘without prejudice’ are privileged,

inadmissible as evidence and should not be considered by the judge or arbitrator for deciding the factual issues.

 

They can be disclosed during the proceedings only if both parties consent to their disclosure

and are admissible either when there is a waiver by the maker or if the communication falls into the several categories of exceptions (both of these aspects will be covered later in this article).

 

In Singapore, s 23 of the Evidence Act (‘Act’) (Cap 97), states:

‘In civil cases, no admission is relevant if it is made either upon express condition that evidence of it is not to be given, or under circumstances from which the court can infer that the parties agreed together that evidence of it should not be given’.

 

The policy of the courts and legislation in common law countries in recognising the ‘without prejudice’ rule is to encourage parties engaged in disputes to try to settle their disputes as far as possible without resorting to litigation.

 

 

Conversely, the parties should not be discouraged in genuine attempts at peaceful resolution by any trepidation that their communications during negotiations may be used to their prejudice in due course during legal proceedings.

 

The other policy and rationale for the rule is that there is an implied agreement between the parties to not refer to settlement negotiations during proceedings.

 

There are many cases that have examined, analyzed and confirmed these principles.

It is not the purpose of this article to go into any elaborate and historical examination of the authorities.

 

 

However, if you would like to do any detailed reading on this subject,

the following are some of the well known common law authorities:

Cutts v Head [1984] 1 All ER 597; Re Daintrey ex p Holt [1893] 2 QB 116; Norwich Union Life Insurance Society v Tony Waller (1984) 270 EG 42; Rush & Tompkins v Greater London Council & Anor [1988] WLR 939; Unilever v The Procter & Gamble [2000] FSR 344; Lim Tjoen Kong v A-B Chew Investments [1991] SLR 188.

 

The general principle as restated by Lord Griffiths in Rush & Tompkins, is that the rule applies ‘to exclude all negotiations genuinely aimed at settlement whether oral or in writing from being given in evidence’.

 

The converse is that certain limitations and exceptions must govern the protection afforded to ‘without prejudice’ communications, or communications bearing this label, or else the privilege will become the subject of abuse.

 

 

These limitations and exceptions will be dealt with further in this article.

[martin2006]

So now you have seen for yourself that you cannot trust anything yours or any other bank say.

Gather your evidence together and apply to set aside as advised

[Old Cogger]

Without prejudice is one of those legal phrases which are often used in casual conversation, but what does it really mean?

 

Without prejudice is a useful way of protecting your position in a dispute. Say you are a landlord and have a dispute with your tenant about a broken fridge freezer.

 

You are pretty sure that they damaged it during a party, they are positive that it was already broken when they took the flat over. It was brand new and to get a replacement is going to cost you £600.

 

You are very busy right now and don’t really want the hassle of dealing with a court claim. You would be prepared to accept just £300 just to get rid of the problem so you can move on.

 

However if the matter can’t be settled and you DO have go to court, you would want to claim the whole £600. If you offer to accept £300 now, will this prejudice your claim? Will the Judge say “Well if they were prepared to accept £300 for it back in August, their claim for £600 must be grossly inflated and should be disallowed?”

 

The answer is that if the offer is made ‘without prejudice’ he won’t (or shouldn’t) ever see it. Because without prejudice offers are confidential, and information about them should not be given to the Judge (or arbitrator if this is an arbitration) during the hearing.

 

The only time the Judge gets to hear about the offer is after Judgment is made. If the Judge, quite independently, comes to the conclusion that the landlords case is not the best, but that he should at least be entitled to £300, the landlord can say ‘Well I made an offer to settle for that back in August, but the other side rejected it”.

 

Then the Judge may decide to make a costs order, ordering the tenant to pay more in legal costs than he would normally, on the basis that the tenant has been wasting his time as the case could have been settled earlier. The courts are so busy now, and so underfunded, that wasting the Judge’s time is almost a capital offence.

 

Using without prejudice in legal cases

 

The example above is only a small fictitious case to illustrate the point. In big litigation cases run by solicitors, there are always negotiations to settle (and in fact most cases are settled before trial). The solicitors will generally have two completely separate sets of correspondence, the ‘open’ correspondence and the ‘without prejudice’ correspondence.

 

So for example the solicitors might write quite an aggressive letter setting out all that is wrong about the other side’s case, and then in the same envelope include a ‘without prejudice’ letter offering to settle the claim for £5,000!

 

If the attempts to settle fail, and the claim comes to trial, the open correspondence is generally put in a bundle for the Judge to see. It is very important when doing this that none of the ‘without prejudice’ correspondence is included by mistake, as if it is and the Judge sees it, in some cases there may have to be a re-trial. Which could be very expensive.

[the worm that turned]

Thanks!

I'm applying to set aside today but wanted to know if there are any implications for the bank

and their solicitors for including prejudiced information to support their claim

that there is an admission of an outstanding debt,

which there isn't.

And for knowingly including factually incorrect information?

[martin2006]

For now the objective is to set aside which will basically put the case back to the beginning again and remove the ccj.

The evidence you will need can be notarised in the application as reasons for set aside but dont have to be detailed, just to the point.

The judge will not want to read a 20 page document, he/she will only want to know you have a basis to set aside and have the case re heard.

[the worm that turned]

Thanks. That is my plan. Something short and to point but factually correct and not half truths scattered with the occasional lie!!

 

I am still keen to know of follow up action as otherwise what is to stop them doing this to others.

[the worm that turned]

N244 lodged. Let's see what happens next...

[martin2006]

Your never going to change the industries malpractices with this so you just need to concentrate on getting the result that you want

[the worm that turned]

That's not the spirit I expect from Consumer Action Group, I thought you would encourage me to let them have it!

[9000Parts]

I have found the same thing in my case where the DCA knowingly used the wrong address.

I was told life is too short and to move on.

 

 

For what its worth,

my belief is that if anybody has something that has a good chance of standing up to scrutiny

then it should be taken forward as far as it will go.

 

 

Unlikely an individual case will make a lasting difference but one day,

somebody will take an action on and it WILL end up with massive ripples running through the industry.

Just needs people to take it on and others to encourage and assist.