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    • Well done on your victory!  👏   You must have a magic touch, it's extremely rare that the PPCs accept an appeal.
    • Court hearing today. WON on all counts of claim. The win though is not the interesting bit, but the ‘why’ is really useful. We were allocated 90 minutes but it took two hours by telephone . The defense were represented but I failed to note whether by a solicitor, barrister or other advocate.   As soon as the judge finished the introductions and before he had time to pass the time over to me to explain my case, the defense interrupted and asked the claim be struck out. He then spent the next 40 minutes discussing with the judge that I had failed to properly serve my bundle upon which I intended to rely. The judge asked me to explain and I said I had served the bundle to them and the court 3 days before the deadline, by signed for post with a tracking number to the address named in the summons being the Royal Mail Head Office in London. I said it was a bit rich that they were making this request when they had failed to serve me and the court with their bundle within the deadline and that I had only just received it. They quoted a certain principle of law (which I failed to write down) which explained that service of documents must be made to the address which either party may request service to be made. They claimed that six months earlier when they lodged their defense to my summons, the covering letter had been sent from their Sheffield office and it constituted the address for future service of documents. I of course had no idea of such a requirement and said that a simple letter heading on a piece of correspondence was not the same as a formal sentence in a letter requesting such future service. It gave the judge some concern but he decided to park the issue and allow the hearing to continue.   I was able to explain my case for the £50 compensation for the lost parcel using the evidence from the defense bundle referencing the Overseas Post Scheme. It was all straight forward. I explained the facts and let them speak for themselves. I then moved on to the delayed Special Delivery items. This is where the fun began because I had to argue against their terms and conditions. I used the defense bundle referencing the UK Post Scheme. I quoted from various clauses which explained the rules relating to claims. That ALL delay claims must be made within 3 months, then that Special Delivery was actually 14 days so not 3 months after all, then another clause which confirmed the deadline was 3 months for all delay claims. I quoted further that these were “common terms” and that some services (Special Delivery was one) had additional terms which were called “specific terms”. Another clause stated that where a conflict arises between common and specific terms, then specific terms took priority. So I turned to the Special Delivery section to quote the specific terms as these would have priority. There was only one term that referenced claims. It simply said If we do not succeed in attempting to deliver by this time (being the next day) we will refund your postage. I used this single phrase to take priority over the 3 months  or 14 day deadline mentioned in the common terms. I discussed how the various clauses conflicted with themselves as if the clauses themselves did not know what the deadlines were and how ambiguous and confusing it was.   The time was then past to the defense and he started to argue there was no contract nor liability in tort (a substantial portion of their written defense document and bundle discussed this argument). It made me smile because I was ready for that. The judge though was ahead of the game and (especially because 40 minutes had been wasted at the beginning) he did not want to hear of it. After about one minute, he stopped the defense by saying exactly what I was preparing to say. Simply that I was not suing under contract or tort but under the conditions of the various postal schemes for which they were liable. He asked the defense to answer my claims. The defense then prevaricated trying to argue the clause that distinctly mentioned the 14 day time limit within which to make a claim for delay (which of course it did) ( as an aside, most people might accept that deadline and not bother to pursue a claim). He had nothing to add about the lost parcel.   Time had run out, we had no questioning and the judge said he was summing up. He was quite happy I had served my documents sufficiently well and took the view that the defense had fallen foul of the court order so he was cancelling out the question about valid service. He had no difficulty in accepting the claim that the lost parcel was valid and awarded me the £50 compensation. He then spoke at longer length about the delay claims and the conflict in the clauses. (at this point I had no idea which way this bit would go). Then, he spoke of how a business such as Royal Mail should not be accepting clauses in their contracts which were clearly inconsistant. (that’s when I started to relax), (and then the best takeaway of the hearing), He said that common law provides in the event of a standard contract if there is any ambiguity, the interpretation should be judged against the person drafting the contract. He called it Contra Proferendem. (I had no idea of that concept but had effectively explained it anyway). I was awarded the whole claim plus costs. The defense asked for permission to appeal which was refused.    Remember the phrase “Contra Proferendem” . I shall be looking more into it. I am sure it will come in handy against any institution that have drafted contracts that cannot be individually negotiated. And will certainly be useful for a long while yet against Royal Mail et al.
    • The White House highlights the upcoming offer of free trips in the US by the ride-hailing firms. View the full article
    • Original loan was £5000 unsecured over 5 years, 28 payments remaining, he wanted to extend it back up to 5 year.........the bank offered him £6700 to clear his credit card and the bank loan, £135 per month from the original figure of £121    One debt of two years old and one debt of 15 months        
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    • Ebay Packlink and Hermes - destroyed item as it was "damaged". https://www.consumeractiongroup.co.uk/topic/430396-ebay-packlink-and-hermes-destroyed-item-as-it-was-damaged/&do=findComment&comment=5087347
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    • Hi @BankFodder
      Sorry for only updating you now, but after your guidance with submitting the claim it was pretty straight forward and I didn't want to unnecessarily waste your time. Especially with this guide you wrote here, so many thanks for that
      So I issued the claim on day 15 and they requested more time to respond.
      They took until the last day to respond and denied the claim, unsurprisingly saying my contract was with Packlink and not with them.
       
      I opted for mediation, and it played out very similarly to other people's experiences.
       
      In the first call I outlined my case, and I referred to the Contracts (Rights of Third Parties) Act 1999 as the reason to why I do in fact have a contract with them. 
       
      In the second call the mediator came back with an offer of the full amount of the phone and postage £146.93, but not the court costs. I said I was not willing to accept this and the mediator came across as a bit irritated that I would not accept this and said I should be flexible. I insisted that the law was on my side and I was willing to take them to court. The mediator went back to Hermes with what I said.
       
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      So this is a great win. Thank you so much for your help and all of the resources available on this site. It has helped me so much especially as someone who does not know anything about making money claims.
       
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18 years of Harassment by Aktiv Kaptial


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I had a set aside hearing last year, which took all of 30 secs for the Judge to grant

(DCA used previous address trick, judge wasn't happy with the 100+ letters from the claimant to my current address and duly awarded me full costs :-D)

 

judge didn't order them to refile claim, although I am aware they can whether or not the judge orders it.

 

move on year, they have now rerepresented the claim.

 

My question is does this claim go exactly back to beginning ?

 

i.e. I do acknoweldgement of service, plus time to file a defence etc, etc ?

 

the reason why I ask, I havn't been sent the original (or a new one) claim, and the refiling of the claim has come from a judge.

 

The letter states "IT IS ORDERED THAT the defendant do file and serve a defence by xx on XX/XX/XX"

 

does this mean I have to whack in the full defence by xx/xx/xx?

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Thanks Andy, and thanks again for all of that help years ago, much appreciated

Yes Batty AoS will have been dispensed with.

 

Regards

 

Andy

We could do with some help from you.

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Thanks Andy, thought so.

 

So claimant is still gaining an advantage again because they supplied the court with information that they knew was wrong (i.e. my address).

 

I have only a few days to get this defence in now, what are my options for creating more time for myself?

 

Also as this has suddenly come randomly out of the blue from the judge, how come I wern't informed before it went to the judge ?

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Well you should have received General Order after the set a side with directions.

 

An incorrect address is not fatal to their claim...providing they have not received judgment (bad service)

An incorrect name is and they would have to re present and discontinue the original claim.

 

If the DJ as ordered a defence be submitted by xxxxxxx Im afraid there is very little wriggle room to extend it...unless you agree with the Claimant to an extension and vacation of any hearing with the courts permission...at your cost.

We could do with some help from you.

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Hi Andy the directions given by the judge were "Judgement to be set aside and costs awarded to the defendant", judge gave no directions about refiling the claim.

 

I asked the judge to include that direction, as I feared that the claimant being able to refile at a time of their chosing would be abused in future, but the judge slapped me down.

 

The wrong address is irrelvant to the claim now, however it was relevant to my set aside as I used that as the grounds to have it granted.

 

But this is the problem, in preparation for the set aside hearing, I didn't set out to defend the claim as the set aside hearing was not about the merits of my case but wether the judgement was "faulty".

 

Now I am in the position of not being anywhere near having a defence jotted down, but have to get one ready by early next week :(

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Hi I realise why I am at 6 & 3's, it's because i havn't been sent the response pack.

 

I've been given no info from the court about what happens next.

 

Do I just need to fill in form 9NB (I'm going to counterclaim) by that date ?

and does it just need the grounds for my defence, not the full (and quite lengthy) details of the defence ?

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You don't get a response pack after a successful set a side.As already stated you should have received a General Order...check with your Court.Having said that if thats all the DJ has directed ie submit your defence by xxxxxxx then prob not even that will be issued.You submit your CC with your fully particularised defence.

 

Andy

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there seems to be some confusion over what has happened here, so here's a quick timeline and what the problem is.

 

Jan 2012, claimant took out claim using my previous address, a few weeks later default judgement is granted.

 

March 2012, Set aside granted because it was an irregular judgement due to irregular service. Because I could prove Claimant knew my true address, I was awarded costs. :smile:

 

The Judgement read "Judgement is set aside and costs of XX awarded to defendant", i.e. no instruction was given to claimant to refile (although I'm fully aware they can because claim is still live, it's only the judgment that has been set aside not the claim)

 

April 2012: Claimant coughs up my costs

 

Since then nothing, nothing from court, nothing from claimant, nothing from anyone.

 

roll forward a year:

 

Feb 2013, letter comes from Judge, "General form of order or Judgement" instucting me to file a defence by xx/xx/xx

 

problem is I don't know what part of the process I'm in now!

 

Google and searching on here hasnt revealed anything, asking the court has been like using a chocolate teapot.

 

i.e. I ring up court,

gave them my case number,

then asked "what do I next",

response "I'm not allowed to say as that constitutes legal advice",

"Ok I know I need to give a defence, but how ?

What form do I need to use?",

"Sorry sir I'm not allowed to tell you which forms you need to submit as that constitutes legal advice"

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Not really...... straight forward ...it has taken the claimant 11 months to represent the claim after set a side...you now just submit your defence /PT 20 CC by xxth ...job done(Copy to Court and to Claimant also)

We could do with some help from you.

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Thanks again for the reply Andy, what is "/PT20" ?

My Defence is the full and detailed defence, i.e. defending each of the POC's, with concise rebuttal and documentary proof.

 

e.g. Claimants claims £ XXXX as of XX/XX/XXXX,

However the first contact from the Claimant was on XX/XX/XXXX where they claimed an amount of £XXXX. (exhibit x.x)

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Thanks again for the reply Andy, what is "/PT20" ? The proper Court term for a Counter Claim

 

So My Defence is the full and detailed defence, i.e. defending each of the POC's, with concise rebuttal and documentary proof.

 

e.g. Claimants claims £ XXXX as of XX/XX/XXXX, However the first contact from the Claimant was on XX/XX/XXXX where they claimed an amount of £XXXX. (exhibit x.x)

 

Yes respond to their PoC and attach your PT20.

 

Andy

 

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Thanks Andy, I'm starting to think I understand where I am in the process now.

Sorry for the handholding.

Doing a set aside or defending a claim from scratch is well documented on the net, this doesnt seem to be (or I'm not searching the correct places)

 

Fortunately I do have all my Evidence and documents compiled, it's just a case of typing them up, there's 9 year worth of paperwork to go through, it's going to be a very long weekend for me!

 

Just for clarification,

is this defence different to my WS,

i.e. where I give a timeline of events and draw all the strands together.

Or does this defence need to act as my WS aswell ?

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If the DJ has requested a defence then it a particularised defence...but not as in depth as a WS.I personally would not attach anything or refer to case law...save that for your WS later in the process.

We could do with some help from you.

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Yes it will be dispensed with however you should be allowed to suggest Directions.

We could do with some help from you.

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Do you know what the PoC was? have you done a CPR request? If you need any help with the merits of your case, we’ll need a lot more info.

“The industry is rotten to the core, whether it is in-house recovery and collection, or where agents are used, or where the debt has been sold.” Andrew Mackinley MP, House of Commons, 22 April 2009

 

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i have the PoC's, I've done DSAR's on various parties which have all been complied with ?

 

Can I still do CPR requests

or is it moot point in that if they produce something in court which they didnt disclose with the DSAR I can challenge it ?

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Depends what the basis of your defence will be! CPR is useful in that CPR31 can lead you to CPR18... all depends on the facts of the case. And your counterclaim. Difficult to answer without knowing what the case is about.

 

Have you been given 14 days to file? That’s usual.

“The industry is rotten to the core, whether it is in-house recovery and collection, or where agents are used, or where the debt has been sold.” Andrew Mackinley MP, House of Commons, 22 April 2009

 

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Merits of the case are straight forward,

 

POC: The claimant (a DCA) claims to have bought a debt off Bank A

 

Defence: The defendant is still a customer of Bank A and the alleged debt could not have been assigned as the account is still open with bank A and never been in default. Claimant then shows court his latest statement from bank A.

 

you cant get anything more straightforward than that!

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Not really. But it sounds like the claimant has done something wrong somewhere.

 

Has Bank A confirmed that the account is open, has not been sold and that they have no relationship with the claimant? Have they made a generic claim (‘an account’) or given a specific account number?

“The industry is rotten to the core, whether it is in-house recovery and collection, or where agents are used, or where the debt has been sold.” Andrew Mackinley MP, House of Commons, 22 April 2009

 

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Yes specific account number been given in POC's, bank cant confirm if that account is open/closed/sold to a debt collector as the account number does not pertain to me. however bank has confirmed my account is open and has been for a long time.

 

Yes something is seriously wrong,

thought the claimant would shove off after the set aside as the case is clearly without merit and i thought they did as they left it a year.

 

However what has happened is that I have applied for a mortgage recently,

next thing I have a strange footprint on my credit report,

then bang they have resubmitted the claim.

 

I think they are trying to put pressure on me to cough up,

as they did something similiar first time round.

 

First time round,

I got a new job which required a credit check as i work in the finance industry,

then next thing same strange footprint on credit report.

 

Then claimant whacks in a claim and get default judgement as they provided false address to court.

 

After Judgement given,

claimant contacts me to tell me I have CCJ,

and that I should cough up or they will apply for an AoE and my employers would then find out about my CCJ putting my career in jeopardy.

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Is this damage the basis of your counterclaim? Would love to see their evidence!

 

The problem I see is that they are probably basing their claim on data supplied by your bank – perhaps info bundled with dozens or hundreds of other sold accounts.

But they would have to revert to your bank for proof, which would be interesting.

 

Have you ever told them directly the debt is not yours, and to prove it or ‘do one’?

“The industry is rotten to the core, whether it is in-house recovery and collection, or where agents are used, or where the debt has been sold.” Andrew Mackinley MP, House of Commons, 22 April 2009

 

If a Cagger helps you, click their star. Better still, make a donation however small, so that CAG can continue to help others.

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That will be part of it, the CC will be about all the time, expense and damage to reputation I have suffered due to having to deal with such a vexatious claim!

 

yes several occasions,

CCA'd them,

done the lot of the stuff that is suggested on this site,

went through all the motions.

 

After a year I got bored of it,

and started sending them a bog standard reply which said take me to court.

They never did for 5 years,

until they seen the credit search for my new job on my report.

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Five years? Blimey, wasn’t it SB by then, even if it was yours? Not that that should be any defence as it’s not your account.

 

Ditto, asking for a copy of the agreement via CCA can also be taken to imply you know something about the account – only encouraged them to keep pestering.

 

Is it a credit card? Did they respond to the CCA request?

“The industry is rotten to the core, whether it is in-house recovery and collection, or where agents are used, or where the debt has been sold.” Andrew Mackinley MP, House of Commons, 22 April 2009

 

If a Cagger helps you, click their star. Better still, make a donation however small, so that CAG can continue to help others.

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