Express Solicitors @ExpressSols- Breach of Contract, court summons *** Claim Dismissed - with costs!!!***

[Manxman in exile]

Hmmmm...

 

I was in agreement with BankFodder that some posters on this thread were adopting a bit of a gung-ho approach to the OP's problem here and were being far too optimistic in thinking there was much chance of success. 

 

If you engage a NWNF firm of solicitors you will almost always be liable to pay their costs and expenses if you decide to discontinue the case.  They have to make their money some way and if the client prevents the case from going ahead they will have incurred costs they need to recoup from somewhere. 

Some posters may not like that, but that's how it is.

 

Questions about GDPR is a complete non-starter and the idea that a competent firm of NWNF solicitors is going to cock-up a SAR request is not remotely likely to happen.  (FYI my wife has been a local authority solicitor for 30 years and one of her current areas of specialisation is data protection law).  We are not likely to be talking here about people who don't understand the law.

 

Also, as the OP's wife has been successfully holding down a highly responsible and demanding job throughout this time, I think it might be difficult to suggest that she was disadvantaged in any way by the behaviour/tactics of the firm.  I don't think she would be seen to have any justification for discontinuing

 

Although I agreed with BF about others taking too optimistic an approach (and possibly giving the OP false hope) I think even BF's own estimation of success at less than 50% is optimistic.  I think I'd put it at definitely less than 40% and in all probability well below 30%.

 

Having read Ganymede's posts I tend to agree with them.  Dispute the rate and try to settle for an acceptable amount.  My view would be the OP's wife is in clear breach of contract by discontinuing the case and I think that's the view a court would take as well.  Cut you losses.

 

Oh - and the OP does need to find out if she can still make a claim against the uninsured third party.

 

I presume she thought that if they were uninsured she couldn't claim, but I'm pretty sure that's not the case.  My understanding is that if the third party's vehicle had any sort of insurance at all* then they should pay out, even if the driver was uninsured to drive it.  If the car wasn't insured and the driver wasn't insured, then a claim can still be made against the MIB - that's what they are there for.

 

As somebody else has pointed out, if a claim had actually already been started against the third party and then been discontinued, it may not be possible to go again.

 

*That's why the first thing you should do when you've sold your car is take it off your insurance - just in case the person you've sold it to decides to drive around uninsured, in which case your insurance may be liable.

[Manxman in exile]

I'm pretty sure they were uninsured.  In fact I understood that to be the reason that the wife decided to discontinue the case.  I'm presuming she thought that it either meant she couldn't claim, or it would cause even more hassle than it was already.

 

(I thought the husband explained in #1?)

 

[All these threads must begin to merge into one at some stage!]

[Manxman in exile]

On 27/06/2020 at 15:55, bigdaddy36 said:

Initially details were taken over the phone and the claim started.

 

During the 1-year process, wife’s car insurance company told her that the other party in the accident was uninsured.

 

Wife got fed-up with the constant calls from Express Solicitors requesting docs and visits to her GP and decided to withdrawal the claim.

 

I've simply taken that to mean that the news that the third party was uninsured contributed to the wife's "fed-upness" and was one of the final straws in deciding to discontinue - otherwise it's not really relevant to mention it. 

 

I should imagine that for most people pursuing an insurance claim against a third party, the news that the third party was uninsured might well be enough to put them off if they didn't know they could still claim and win a damages. 

 

Not everybody knows the MIB is an insurer of last resort. 

But I may well be wrong and it was irrelevant to the decision to discontinue.

 

As regards the constant calls and requests for documents etc, I don't know what's usual in cases like this and what isn't. 

If I'd engaged a NWNF firm to start a claim for me, I'd rather they kept in close contact with me than didn't. 

 

But I'd be unhappy if they were constantly asking me to repeat the same information or kept asking me things they'd forgotten to ask before.  If they were trying to charge me for this "duplicated" effort I wouldn't be paying for it.

 

Having said that, the wife has said she's got a stressful, responsible job and she got tired(?) of dealing with these requests and call backs after work.  But were the requests unreasonable in the circumstances of the claim, or was the wife too stressed out by her day job?  I simply don't know.

 

Please don't get me wrong

- I'm not having a go at the wife here. 

I posted here because I was concerned (like BankFodder) that some posters were being unrealistically optimistic in looking at the wife's chances of defeating this claim, and were giving her false hope. 

 

I'm the sort of person who'd rather be warned of the potential downside of courses of action (even if the likelihood of that happening is only 20%) rather than be told "everything will be fine - don't worry", only to discover that that was 80% wrong.

 

It would seem to me that the wife is probably in breach of contract.  Or at least let's say I would not want to defend this claim in court myself.  I think the only thing to argue about is whether their costs and expenses are reasonable.  They may well not be.  And of course, I might be completely wrong about the whole thing.

 

I hate to say it (because I'm a former manager in a NHS mental health trust) but I don't think the question of the wife's mental state or medication is really relevant here - unless somebody is suggesting that she didn't have the mental capacity to engage the NWNF firm in the first place. 

 

A letter from her GP ain't going to cut any ice with a NWNF chasing their legitimate expenses - and I don't think it would with a court either.

 

Also, I personally don't think bullying behaviour or harassment is a runner either. 

From her description of her job, she's a local authority middle-manager with wide -ranging responsibilities including managing and delivering on more than one project.  (Or at least that's how I read it). 

 

In my experience, and I knew a lot of such people in the NHS and local government, they are not generally susceptible to either bullying or harassment.  [Edit: And if they are susceptible they shouldn't be doing that sort of job in the public sector].

 

I think all this is clutching at straws giving the defendant false hope.  But I hope I'm wrong.

 

On 30/06/2020 at 19:41, London1971 said:

I’d be gung ho if it was 10%...

 

I know we are all only expressing our opinions, but I'm not sure that's a terribly helpful basis on which to give advice to somebody who's being sued by a firm of solicitors.

[Manxman in exile]

I agree that stranger things have happened and that it's worth a try for the price of a stamp.  But at a <1%(?) chance of success, I would not want to put all my eggs in your basket.

 

Perhaps we'd make a good complementary team: optimist/pessimist: good cop/bad cop?

[Manxman in exile]

Hi Stormy

 

I do wish you good luck but I'd urge you not to get over-optimistic about a letter from your GP having any bearing on the outcome of this. 

 

I do not share London1971's view that such a letter will assist you in defending the claim against you

- unless you are suggesting that the diagnosis is so bad that you aren't functioning

- in which case you probably ought not to be working. 

 

Is your GP going to say that you can't be held liable for a breach of contract, but that you're perfectly OK to continue working and to make significant decisions in other areas of your life?  I don't know.

 

Also, I'm uncertain where the question of bullying and harassment first surfaced in this thread. 

You engaged them on a NWNF basis to pursue a claim for you. 

 

Apparently they contacted (or attempted to contact) you a lot - certainly more than you felt necessary or were comfortable with, and you ended up deciding to discontinue the case.  But were they harassing you? 

 

Again, I simply don't know because I wasn't there - only you were. 

Most people complain that they don't have enough contact from their solicitors, not that they are being harassed by being contacted too often.

 

  [EDIT:  I also think most people would associate "harassment" with behaviour that is in some way harmful or damaging to the recipient, and not with a situation where the alleged harasser is trying to act in the other person's interest and to their benefit]. 

 

And I'm not sure where the bullying comes from? 

They're suing you because they think you are in breach of contract and that you owe them the costs and expenses they've already incurred - and that they cannot now recover from the other party because you decided to discontinue the case. 

 

I'm no particular supporter of law firms but, unlike some people, I don't have "anti-lawyer" as a default setting. 

If they've genuinely incurred costs acting on your behalf and in your interests, then I think they've got a more than fair case to recover those costs.  Threatening to sue you or actually suing you isn't necessarily bullying.

 

I honestly think your best chance of success is questioning the level and extent of costs and expenses they claim to have incurred and try to reach a mutually acceptable settlement.

 

As I've said before, I'm not intending to be critical of you in any way and I'm really sorry that all this (the original accident, hassle with the lawyers and now them suing you) seems to have contributed to all the stress you have to bear. 

 

I'm really just interested in ensuring that you can see this problem from all points of view and that you don't place too much reliance on an approach that I think has only very limited chances of success. 

 

(But of course - as London1971 has pointed out - there's no harm in getting a GP's letter anyway AND preparing a legal defence like BankFodder is suggesting AND preparing to think about settling.  They aren't all mutually exclusive and you should keep as many irons in the fire as you can.  Use belt and braces and don't just rely on one).

 

Anyway.  Good luck.  I'm frequently wrong and you may win outright!

[Manxman in exile]

Well that sounds like a constructive "win win" suggestion.

 

Will there be difficulties in restarting Stormy's original claim?  Does it depend how far it had progressed?

[Manxman in exile]

I don't think there'll be any self-soiling going on.

 

AIUI, a SAR request can be refused if the person/organisation it is addressed to considers that the dominant purpose of the SAR is for use in litigation.  So the solicitors obviously do not need to comply with it as the request would not have been made but for the threatened action.

 

Stormy - presumably you've either decided not to try to negotiate a settlement (or restart the claim with Express), or you have, but they won't play ball?

 

Presumably you think you have good grounds on which to base a defence?

 

Stormy - we've crossposted!

 

Before complaining to the ICO you may first want to check whether what I've suggested above is correct.

 

EDIT:  FWIW, I see nothing in their reply to you to complain about.  They are simply suing you for money they think you owe them under the NWNF agreement you freely entered into.

[Manxman in exile]

Before you do anything else I would check whether they were obliged to respond to your SAR if they consider it's for your use in litigation - which it obviously was.  I may be wrong, but I think they are entitled to ignore it.

 

I think you may also be making the mistake of taking this too personally because you don't like the approach they are taking.  Again I see nothing wrong in the tone of their response to you.

 

I think you need to consider what your defence is going to be based on - just saying "I think they're bullying me" will get you nowhere.

 

I think you may have rejected the idea of settling (or reactivating the original claim) a bit prematurely.

[Manxman in exile]

I'm not thinking of law enforcement, I'm thinking about making an SAR where the dominant or sole reason for doing so is for the information to be used in litigation.  I was pretty sure the High Court had held that SARs made in those circumstances could be ignored.  It's not a statutory exception - it's judge made.

 

There are ways of getting disclosure in civil proceedings , but it's not by a SAR.

 

But I might very well be mistaken.  (However, that would mean the solicitors were mistaken too, which seems unlikely to me if they are in the middle of suing Stormy - They'd have to be very incompetent to ignore a SAR they are obliged to comply with during legal proceedings.  It's not as if they're only threatening to sue - they are).

 

If I were Stormy I'd want to find out what the definitive answer is in respect of a SAR in these circumstances.

 

Stormy - seriously, how does their "bullish attitude" strengthen your legal defence? 

Their attitude and their behaviour is legally irrelevant. 

It's going to depend on the terms of the NWNF agreement you voluntarily signed up to, and if it says you are liable for their costs and expenses to date in the event that you decide to discontinue the original claim, that's what you need a defence against*.  I think you need to forget what you perceive as their bullying/harassing/annoying behaviour, because even if they had behaved like that, it's not relevant.

 

As I posted earlier on this thread,

my main concern is that you don't come away from here having only read posts that seem to be encouraging you to defend this claim because the solicitors haven't answered a SAR, or because people don't like solicitors and have had bad experiences with them in the past, or because the consumer must always be right.  I'm simply saying you may not be in as strong a position as some others may be suggesting, and I think you shouldn't lose sight of that.

 

*I haven't read back through all the thread, but that's what I seem to recall this is about.  Apologies if I've got the wrong end of the stick.

 

PS - are you intending still to pursue the original accident claim yourself?

 

 

[Manxman in exile]

They've given her nothing because they don't believe the Act entitles her to see what she's asked for.  They specifically say so in their response to her.  I see nothing to complain about in the tone of their response (this is after all in the middle of litigation) but Stormy feels so offended by it that it made her decide not to approach them with a view to negotiating a settlement.  I think that that is ill advised and would counsel her to re-consider.

 

As I've already pointed out, and Ganymede has reinforced, there are ways of getting disclosure during litigation via the civil Procedure Rules, and I suspect the view of the courts would be that that is the appropriate way to do this, and not through a SAR.  (I'm not a lawyer but is it Rule 31?  I don't know.)

 

If I were Stormy I'd be questioning why a firm of solicitors who have initiated legal proceedings against me have refused to answer a SAR I submitted, which I think they are legally obliged to answer.  I might conclude that they know more about the law than I (and perhaps you) do.

 

What worries me is the possibility that all this is giving Stormy a false reassurance that she has a winnable defence.  Her winning this case will depend on persuading a judge that she has a good defence.  It's got nothing to do with how SARs were dealt with, or whether the OP has been suffering from depression or anxiety, or whether her perception of "bullying" is correct.  She won't win because you or I feel sorry for her.  She'll only win by demonstrating to the court that she was not in breach of contract.

 

I've got no problem with suggesting that she has nothing to lose by complaining to the ICO or initiating some sort of social media assault, but (1) I think there's a danger of focusing on that diverting her from the main task of putting together a sound legal defence, and (2) what is the likelihood of success?  You've already admitted in #105 that you'd take a gung ho and optimistic approach even if you had only a 10% chance of winning.  Well that may be all very well for you, but unless you clearly spell that out for the OP every time, I'm not sure it's a very responsible approach and I think there's a very real chance of misleading her.

 

I'm also a bit concerned that your own apparently jaundiced view of lawyers might not be helpful to Stormy in this instance.

 

EDIT:  We've cross-posted.  OK - if the ICO think that there's no exemption whilst in the middle of litigation I'm clearly wrong.  See what you can get out of them.

Edited July 22, 2020 by Manxman in exile
ICO says I'm wrong!

[Manxman in exile]

The point about NWNF lawyers is that they provide a service to litigants who don't want or aren't capable of suing a third party themselves.  The lawyers in this case didn't volunteer to intrude on Stormy's life, she went to them because she wanted their help to sue somebody, and then she freely entered into an agreement with them which presumably entitled them to recover costs and expenses they incurred before she (allegedly) breached the contract by discontinuing the case.

 

If the OP has, by discontinuing the original claim,  prevented the solicitors from recovering the expenses they have already incurred from their "success fee", then it seems perfectly fair* to me that they should seek to recover those costs from Stormy under their NWNF agreement.   And I'm talking there about legitimate costs and expenses.  I think Stormy is entitled to make them justify what they are claiming.

 

I'm not a fan of NWNF arrangements, but unless a litigant can afford to pay a retainer and pay as they go, how else will people have access to legal advice?

 

It's still not clear to me how a SAR assists Stormy in putting together a defence.  If the NWNF agreement included terms where she agreed to co-operate fully with the firm and to comply with reasonable requests to assist in making the claim, it might backfire if the SAR reveals that the solicitors were having to chase her constantly for information and instructions.

 

*And that is still fair whether they are "ambulance chasers" or not.  If they can't recover from a Stormy, they'll have to recover from other clients who may be posters here...

 

London1971 - apologies if I've misunderstood your views on lawyers.  There are good and bad lawyers like in every other profession.  I'm just concerned that some of your comments (which could be described as derogatory) might colour Stormy's approach to this.  You were, after all, in an earlier post surprised at the positive reviews this firm got on social media...

Edited July 22, 2020 by Manxman in exile
Asterixed comment

[Manxman in exile]

The two words "no fee" are the important words; it's not "no cost"

 

If you enter into a NWNF agreement and you lose your case, you may not have to pay a fee but you will almost certainly end up paying your solicitors' expenses in bringing the case.  And you may have to pay the other side's costs too.

 

All this should be explained to the client beforehand.  They should also be told about insurance arrangements to cover these costs if they end up losing the case.  I think it's called "After the Event" (ATE) insurance.  (Or maybe it's "Before the Event" - I can't remember!).

 

Of course it might be that the SAR is helpful to Stormy if it reveals that these points were not discussed at the outset.*

 

 

Just to add - the "exemption" I think might exist in respect of pending litigation comes from a High Court decision.  (I think.  Maybe I've made it up).  It's not in the legislation.  Now I'm sure staff in the ICO are familiar with the statutory exemptions, but perhaps they are less familiar with decided case-law.  But perhaps I have made it up and am completely wrong...

 

* Maybe not where the client simply decides not to continue with the case.  A bit like "Decisions not to travel" not being covered by travel insurance.

Edited July 22, 2020 by Manxman in exile

[Manxman in exile]

I'm not sure what the SAR covered.  The solicitor's letter implies it was a request for only the entire case file, and Stormy's post was ambiguous as to whether the request was only for dates and transcripts of 'phone conversations, or whether it included the case file too.

 

I'm still not sure how any response to a SAR assists in building a defence.

[Manxman in exile]

Of course we don't want to give the firm even more reason to chase Stormy (and other clients) to pay their bills...

 

I find it very difficult to believe that even a common or garden high street firm of solicitors would be unaware of their GDPR obligations.

[Manxman in exile]

Stormy - if the deadline for your defence is looming, you can always go back to the solicitors and tell them you have been advised by the ICO that there is no such exemption as they are claiming (or whatever the ICO actually said).  Tell them that if they don't comply immediately (or if they don't agree to let you file a late defence) you will definitely be making a formal complaint to the ICO, [and that you hope they have deep pockets] (I added that last bit for London1971's benefit only!).

 

Whether that is a good idea or a foolish one - I do not know...  See what others think.

 

But, like Ganymede, I'm not sure how any response to a SAR aids your defence against a breach of contract claim.  And if you allow the deadline for your defence to pass while concentrating on this SAR, you are stuffed.

Edited July 22, 2020 by Manxman in exile

[Manxman in exile]

I'm not sure but I think Ganymede may be suggesting(?) you need to ask for that information formally under the Civil Procedure Rules rather than via a SAR.  That way they can't refuse to comply.

 

I'm not certain because I'm not a lawyer, but I think it might be rule 31?  I'm sure somebody else will know.

 

(Sorry - all getting complicated).

[Manxman in exile]

Stormy1976 might welcome some advice on what* to send off in respect of CPR 31?  Or she first needs to draft something and ask for comments on it here?  [EDIT:  I think it may just have become more complicated than she was expecting].

 

It's still not clear to me what she hopes to have disclosed and how that will contribute to her defence?

 

 

*Is it just a request for the info Ganymede suggested in #190?

Edited July 22, 2020 by Manxman in exile

[Manxman in exile]

I presume that the defence suggested by BankFodder at #45 has been used(?).

[Manxman in exile]

Claim is attachment at #19(?), agreement at #42

[Manxman in exile]

It may or may not have been along the lines suggested by BankFodder.

[Manxman in exile]

Hi again Stormy  -  good luck fighting the claim.

[Manxman in exile]

How do you make that out? 

 

The OP voluntarily entered into a NWNF arrangement with a firm of solicitors.  Nobody forced her into it.

 

 It seems the solicitors are of the view that the OP either failed or refused to cooperate with them according to the T&Cs of the NWNF agreement, and that the OP then discontinued the claim unjustifiably.  The solicitors believe that is a breach of contract, that they have suffered loss as a result of thet breach, and they have made a court claim against the OP - which they are perfectly entitled to do.  The OP has decided to defend the claim.  If she has a valid defence to the claim then the court will find in her favour.

 

As I've explained previously in this thread and other threads, NWNF solicitors (despite what you think) actually provide a service that people need.  Somebody in the OP's position who has suffered injury of some sort at the hands of a third party is very unlikely to be able to afford to retain a solicitor to fight their case on a fee basis, so NWNF is their only feasible alternative. 

 

one of the (few) advantages of NWNF arrangements is thet the client can't be encouraged to keep fighting and throwing good money away after bad on an unwinnable case.  And yes, NWNF solicitors will take a significant amount of any compensation, but that's because they are not being paid a fee.  In a society where normal legal fees are ridiculously unaffordable and out of the reach of 90%+ of the population, I'd rather see NWNF lawyers than not have access to the law at all.

 

Let's see what the court decides...

 

[Manxman in exile]

I think Stormy has got confused.  She's defending the claim.

 

It's her former solicitors who are claiming against her for breach of contract.  (I think she unilaterally discontinued a NWNF agreement with them, and they are trying to recover costs and expenses for work they had done - if I recall correctly - I can't remember exactly).

[Manxman in exile]

Congratulations and well done.  You've actually done much better than I feared you would!

 

I'd be very interested to see the judge's thoughts.

 

Again - well done!

[Manxman in exile]

7 hours ago, BankFodder said:

I've been looking through this thread carefully and I see that in its early stages I actually said that I thought that there was zero chance of winning.

How wrong I was and am very pleased that @Stormy1976 persevered even in the face of such negativism.

Bravo!

 

To be honest I didn't think much of Stormy's chances either!  I'm surprised - but delighted - she won... !