Just Cash Flow PLC business bank personal guarantee Court Claim.

[MOSS 41]

They have responded with PR1 in bundle it’s 

short and as expected - application and 

loan agreement - and acknowledged reciept of mine within the 7 days 

 

so all timescales  appear to be met and in order 

 

 

they included phone number for court of their barrister too - saying they will represent claimant - 

does that mean witness won’t be on zoom call ? Just the barrister , they didn’t include the witness number 

 

 

 

getting so scared - I have my barrister ready and written advice from another confirming advice of no enforceable guarantee - 

no written note or memorandum signed to provide a guarantee so unenforceable - 

 

not admitted or even claimed by other side oral agreement to terms of a guarantee that has been signed to get around second limb of statute - formalities of a clause preclude any argument over that (barrister words) 

 

 

so what Am I  so scared , can’t find any possible legislation to go around the law - 

 

I might point out - they don’t know I have a barrister , they think I am just a litigant in person - with no knowledge , so maybe they could just win against an unarmed person ?

[AndyOrch]

I really cant offer any consolation if the hearing is by video ...it will be you the judge and their Barrister. Who signed their application n244 ...does it state they will be represented and by who ?

[MOSS 41]

Their solicitor signed the n244 

 

but they say the barrister is representing the company at the phone hearing - someone new to the proceedings 

 

the n244 does not state any representation or who will be doing it 

 

remember I wasn’t served anything and they ticked a box to get it done without a hearing 

hoping it would slip under the radar 

[AndyOrch]

Impossible to deal with a SJ application without a hearing.....very difficult by video conference.

 

But bear in mind the following.....

 

Summary judgment is a procedure by which any of the parties or the court can dispose of all or part of a case without a trial where:

·        A claim or issue or a defence to a claim or issue has no real prospect of success and

·        There is no other compelling reason for a trial.

 

(CPR 24.2)

 

An application for summary judgment may be based on:

 

·        A point of law (including a question of construction of a document).

·        The evidence which can reasonably be expected to be available at trial (or the lack of it).

·        A combination of these.

 

(PD 24.1.3)

 

 

·   A summary judgment application could result in delay and costs. Until heard, proceedings are suspended for other purposes. Unsuccessful applications will likely lead to adverse costs orders against the applicant.

 

·    Bearing the adverse costs risk in mind, remember that, even if the application is unsuccessful, it may bring about a tactical advantage and save time in that the other party has been forced to set out its position and evidence at an early stage. It certainly sends a message that the matter will be pursued or defended vigorously.

 

A court may not grant summary judgment if a defendant needs more time to investigate the claim or the case is highly complex.

 

 

 

[MOSS 41]

i have a defence in law fully backed with evidence that requires a trial, 

i was actually advised to do an application for strike out of claim as no basis in law under statute of frauds

in that no action should be brought without a signed guarantee, as the judge should award it as 

they have no evidence , that the signature is anything other than a company signature 

 

signatory lines on contract are (example names)

 

between 

 

Mr John Smith

Director for and on behalf of Just Cash Flow plc

 

Mr James smith

Director for and on behalf of xxxxx Ltd

 

if i am singing personally then so is john smith not just cash flow

 

all case law is that 'director for and on behalf of a company is direct clear unambigous capacity line

leaving no doubt in which capacity you signed

 

execution clause  -is that the lender and borrower (company) AND any guarantor must sign 

 

Their  claim is literally -'you signed it personally' 

yet no explanation or evidence of how they reached that conclusion has come out yet.

 

 

 

 

but its too close to hearing to throw that in aswell, i just want it dismissed and them to pay

i can do a strike out after, or they can settle for a small amount to go away

 

 

 

[MOSS 41]

Development - 

that have asked for me to consent to withdraw the SJ in light of my written response 

 

this has cost me money - shall I say no 

and they have made me reveal my hand early !

[AndyOrch]

Strange.....and very rare....so obviously from their request they need your consent and also they require the courts permission to withdraw and vacate.

 

This claim 2 I recall is Small Claims Track or will be if it gets to allocation stage ? 

 

 

[MOSS 41]

Fast track 

[AndyOrch]

Thanks...well CPR 38 makes no reference to withdrawing applications and costs implications. I suppose it is possible that they may be liable for wasted costs and that is something you could refer to within your response. Bear in mind that with wasted costs its the claimants solicitor that is liable...not the claimant..

 

The SCA 1981, section 51(7) defines the concept of “wasted costs” as being costs incurred by a party resulting from the improper, unreasonable or negligent act or omission of any legal or other representative or anyone employed by the representative, or costs which, in the light of any such act or omission occurring after the costs are incurred, the court considers it is unreasonable to expect that party to pay.

 

and therefore should you be in agreement to consent to its withdrawal  you will expect some form redress direct.

[MOSS 41]

Well it takes one thing off my plate for about 4-6 months - and if I win 5 March 

 

they have no chance with claim 2 - but we won’t know that until claim 1 is dealt with 

[MOSS 41]

so we consented to withdrawal of SJ and the proposed directions submitted , so chasing today to see whats happening, has hearing been vacated so husband can go to work

 

and court says its not vacated, but the judge has the agreed proposed directions to look at, at the hearing

but it wont be looked at before then , the judge might not need to ring us, but wont know until the actual hearing!

 

so has this become a case management hearing ?

 

as we were told by courts solicitors to cancel counsel etc 

[AndyOrch]

As I stated earlier its very unusual and rare to withdraw an application for SJ...appears the judge is in agreement and seeks clarity.

 

Quote

as we were told by courts solicitors to cancel counsel etc 

 

 

Who are they ?

[MOSS 41]

It’s just annoying - 

We  incurred costs and time - 

they brought an SJ to bully us into paying quickly 

 

realised , it wouldnt work in their favour when our evidence revealed - so last minute want to withdraw , we have consented 

 

they can do what they want and abuse the processes while we keep paying - 

still need to have a day off work and judge might not even want to talk to us according to court clerk 

 

 

[MOSS 41]

Back to claim 1 - 

 

just going through credibility of claimants witness staments which is all factually wrong , dates time’s etc 

 

but the best one has to be they state 

 

7 June sent offer of terms blah bla (see doc xx) ( this is the fake email doctored of dates and times I know is made up ) 

 

but directly below state 

6th June their broker accepted these terms (see file note xx dated 6 June) 

 

didn’t realise 1) your broker can do deals on your behalf 

2) they can accept one day before being sent details of an offer !

[MOSS 41]

just has an email about claim 1 - trial 7 days away

 

 

their solicitor- 'heres some further disclosure, your broker says you agreed to pg ' so just pay up and lets avoid cout!

 

 

cue list of emails between two people , with no one else cc'd or copied in

 

i said unless xx and xx have provided a witness st and are going to be cross examined at court, this is inadmissable hearsay (its never been disclosed)

weve never seen or heard of any of it. (to note this was not presented as supplementary, paginated etc so obv was meant for my eyes only and hasnt been sent to court)

 

they may have had a lovely conversation, but where are we involved or proof this has been sent or included to us (it hasnt)

 

so bugger off

[MOSS 41]

well had their costs schedule today -ridiculous,

 

claiming over 5 hours or letter writing twice at £201 an hour -so £2000 in fees alone for that compared to our 1 claimed hour for both of us in reply!

 

claimed £650 for photocopying trial bundle 122 pages (and was one by admin or secretary not a £200 and hour solicitor

 

claiming all the hours of attending the hearing even though barrister attending the hearing on their behalf.

 

absolute joke, unreasonable and not capped at any fast track rates. nor the court fees claimed

[AndyOrch]

For claim 1 or Summary Judgment Application ?

[MOSS 41]

Claim 1 -

hearing tomorrow 

[AndyOrch]

I assume Summary Assessment using form N260 ?

 

PD 44

Timing of summary assessment

 

9.2

The general rule is that the court should make a summary assessment of the costs –

(a) at the conclusion of the trial of a case which has been dealt with on the fast track, in which case the order will deal with the costs of the whole claim; and

(b) at the conclusion of any other hearing, which has lasted not more than one day, in which case the order will deal with the costs of the application or matter to which the hearing related. If this hearing disposes of the claim, the order may deal with the costs of the whole claim,

unless there is good reason not to do so, for example where the paying party shows substantial grounds for disputing the sum claimed for costs that cannot be dealt with summarily.

https://www.justice.gov.uk/courts/procedure-rules/civil/rules/part-44-general-rules-about-costs/part-44-general-rules-about-costs2#para9.5

 

 

 

[MOSS 41]

How would you dispute it - I mean they’ve claimed the court fee three times now - once in statement , then in claim form and again on n260 -

it’s a fixed fee that only needs to be covered once 

 

excessive charges way outside hours of response etc 

[AndyOrch]

Its irrelevant how many times they refer to the court fee..it can only be claimed once within their total claim figure.

 

As for disputing their costs...then you object to costs being summarily assessed ...refer to the link above,

 

Disproportionate or unreasonable costs

9.10

The court will not give its approval to disproportionate or unreasonable costs. When the amount of the costs to be paid has been agreed between the parties the order for costs must state that the order is by consent.

[MOSS 41]

well todays the day for claim 1

 

claimant counsel filed skeleton argument 12 pages long of which numerous pages refered to case law proving people to be liars!! and witnesses can be be mistaken , and not tell the truth- along with 282! pages of citations-judge is going to love them getting that 1/2 a day before 

1)its insulting, our evidence is perfect and backed up with hard written documents, in direct contrast to theirs, which is factually inaccurate and provable lies from docusign evidence.

2)the rest is all irrelevant, and does nothing to prove they see a personally signed document

 

in contrast ours is a couple of pages long 

1) we didnt agree to or

2) sign any personal guarantees under statute of frauds 1677-end of

 

 

who knows the outcome, but forget the money, i want the satisfaction of defeating these smug, patronising bullies, 

 

 

[AndyOrch]

Best of luck....lets hope you get a reasonable DJ

[MOSS 41]

So update , 

no result yet , as submissions went to 3.30 and judge wanted to go home and send decision in post 

 

their barrister was horrible , tried to put words in my mouth , tried to get judge to allow them to change pleadings to an oral agreement instead - and amend their particulars - it was denied 

 

which then meant their citations didn’t work , 

as they relied on oral stuff not allowed 

 

so no further  forward yet - when things weren’t going his way, basically told judge to disregard my witness st and called me a ‘liar’ 

 

I’m sorry that’s a a serious allegation , and all my WS was backed up by evidence 

 

so frustrated not to get an end today 

 

my barrister said , a little positive is that judge hasn’t awarded favour to them instantly and told us off for wasting his time, so he obviously sees merit in our defence and is giving it full consideration 

[MOSS 41]

waiting for decision is worse than waiting for the hearing

 

if we dont get the result we want (hopefully we will)

 

 

does paying the debt i.e (only claimed amount) stop ccj being registered?

 

do the costs count in the order-? i mean to stop a ccj do you have to pay amount and costs all together-or are they treated seperately

 

 

im obviously going to dispute the costs, so would rather pay correct amount claimed and argue costs later

 

otherwise if you have to pay 'everything' then im better applying for a payment plan (of not a lot as currently unemployed so about £10 a month)-and just letting my credit report get trashed instead of handing over savings im living on until i can work again