Taylors v Nationwide 3rd Time

[natwesttookmymoney]

Hi, Mandy

 

A solicitor will, in general, be prepared to argue pretty much anything - especially if you pay them!

 

I don't think Nationwide will be able to get your claim booted out on the basis that they've paid two previous claims in full - not this time. But I'd take it as a warning shot across the bows. Make this the last one looking backwards and be certain that you're including everything you haven't previously claimed for. Don't go back to this well again.

 

The implication you have drawn is, in legal terms, neither here nor there. The fact that they've paid up merely demonstrates that....they've paid up. It may be worth mentioning, but don't count on it having any bearing - you still have to prove your claim.

 

Correspondence regarding the first two claims should form part of the bundle only if the other side is using the payment of those claims as an argument for not paying this one - which will be a tough case to make, as they still owe you money, as I understand it. The fact that one has paid back part of a debt, for example, doesn't excuse you paying the rest!

 

Your solicitor friend is clearly right on the last couple of points, which are in your favour. The fact that the previous two haven't got to court is also in your favour.

 

BTW - why claim three times? I can understand the first - that you wanted to keep it under small claims limit and you may not have had enough money to claim for the lot in one go - but, once you'd got money from the first, didn't you have enough loot to pursue the rest in one hit?

 

Westy

[taylormandy]

Hi Westy,

I split the claims because last summer the general concensus seemed to be to keep the amount under £5000. So I did 2 claims from June 2000 - July 2006. I kept the later charges for a separate claim, because I knew it would be a much more complex issue.

 

In hindsight, I would probably have done it all together, but it's too late now!

 

My hearing is set for 9th March.

 

Mr Bacon seem certain that he won't settle.

 

Has anybody actually got into court with Nationwide and what was the outcome?

 

The have not complied with the judges order to supply me with their "bundle". Mine went to them last week recorded delivery, so I have sent them the "bundle non-compliance" letter and cc'd the court.

 

I can't say I'm looking forward to it, but hopefully I'm thoroughly prepared and will have the satisfaction of getting every penny of my money back!

[natwesttookmymoney]

Hi, Mandy

 

With the non-supply of the bundle you can ask the judge to strike the claim out under S16 of CPR, which covers non-filing of a defence. The judge may be so cheesed off they haven't complied he'll boot it into touch anyway, but give him/her every encouragement and opportunity. Could also ask under CPR Part 28 (I think - could be 27) - that the defence has no realistic chance of success at trial. If they do get allowed under the wire, and things don't look healthy, ask for an adjournment or on the grounds that you haven't had time to study their defence and prepare.

 

Another possibility is to go to the court, and ask for an order compelling them to provide full details of costs involved, the activities they undertake and to justify their charges in each and every instance.

 

But I expect they will come up with an offer. Maybe even on the court steps.

 

Good luck with it

[taylormandy]

I have today received this from Nationwide

"Further to your letter of 28 Feb I write to confirm that, at present, N'wide is not in possession of any documentation which it may wish to use at the final hearing of your claim, other than that already disclosed by you and the enclosed copy Notice of Charges in respect of the items for which you are making a claim."

 

What does this mean?

 

Are they not relying on anything????

What do they intend to say then???

Does this mean they cannot defend against the limitation issue if they are not relying on any documentation?

 

Or - does "other than that already disclosed by you" mean all the info that I have put in my own bundle?

 

I would really really appreciate some help!

 

Mandy

[taylormandy]

Anyone?

[Guest bong]

I don't think I can be of much help Mandy, other than trying to interpret what they mean. It sounds as if they will be presenting their case (verbally) based on what's in your bundle, assuming they don't settle outside. I am here willing you on even though I don't have much in the way of help to offer. Maybe try and rehearse answers to some of the toughest questions you could be asked and maybe have some of your own questions ready to put them on the spot. I read what I consider to be quite good advice the other day. It was that you should only ask a question that you already know the answer to. An answer that will lead to them making your point for you. PM me if you want to go over anything.

[taylormandy]

Bong, thank you.

 

I couldn't understand how they can defend against a case, if they are not relying on any evidence. I have not read of anybody who has gone to court where the bank has not relied on any documentation.

 

I just wondered how on earth they can rely on my own evidence. (Unless I've made a horrible mistake in my bundle and proved their defence for them! )

 

Anyway, thanks for offering the support. It really is very much appreciated. I will let you know how I get on!

[joneshousehold]

Just subscribing and wishing you luck for Friday.

[Guest bong]

all the very best

[Glenn UK]

Mandy

 

Seems to me they could be setting you up to try to argue doctirne of laches based on the ir inabiltiy to defend because they dont have the documentary evidence to support thier position. Could be wrong mind,but it shold have been menionted in their defence if they wish to raise it and i havent seen it mentined in your thread so far.

 

Re Limitations Act have you read Cave vs Robinson whihc deals extensivley with the concealement issues?

 

HTH

 

glenn

[taylormandy]

Thanks for the good wishes!

 

Glenn, yes, I have read that case, However, it is not in my bundle because I had already posted it to them at that point.

Do you think I can get away with taking extra evidence along with me on Friday that is not in my bundle?

I do have DMG v Inland Revenue and Kleinwort Benson, but they are dealing with the mistake issue (as you know!!!)

 

Sarahpp has also sent me some OFT stuff I would like to take, but again, that is not in my bundle because I only got it yesterday!

[Glenn UK]

Id take it all along, its also worht asking did they mention everything they are relying on in their defence?

 

Mind you you dont know what theyre relying on since you dont have their bundle, do you?

 

JMHO

 

Glenn

[telnkate]

Hiya - I am taking Halifax to court on 20th March to discuss the statute barred time issue as my claim goes back 11 years and they defended. I would be inclined to phone the court and ask them what they suggest is appropriate under these circumstances and whether, with the limited time you have left and the time it would take to send something in post in time, whether you could take some additional case studies in with you to discuss as the time - I'm sure the judge - being on your side - would know of the information anyway and be prepared to listen. Specially as you have been hoodwinked at the last hour by your defendant. phone the court I say!

[Glenn UK]

Hiya - I am taking Halifax to court on 20th March to discuss the statute barred time issue as my claim goes back 11 years and they defended. I would be inclined to phone the court and ask them what they suggest is appropriate under these circumstances and whether, with the limited time you have left and the time it would take to send something in post in time, whether you could take some additional case studies in with you to discuss as the time - I'm sure the judge - being on your side I feel this is a big assumption to make and one you wont find is the reality. its likley the court would be sympatheitc to a litigant in person in as far as the fomralities of the court go, when it comes to your claim they have to deal with the law and facts as presented. - would know of the information anyway and be prepared to listen. Specially as you have been hoodwinked at the last hour by your defendant. phone the court I say!

 

As a matter of principle i would be really surpirsed if the court would give any advice at all. They are not allowed to give any legal advice whatsoever as far as I can make out, if you were asking them which form to fill out id expect them to help, otherwise i think you will be lucky if they will coment at all.

 

JMHO

 

Glenn

[telnkate]

I didn't realise that - I just phoned the court to ask about adding some case reports into my bundle for my hearing (cave V Robinson - cos I read your note) and they said just pop it in the post with a covering letter and send a copy to the defendant. Now my hearing is on the 20th so I've got the luxury of a bit more time, not like the lady whose hearing I was responding to, so I thought the court could advise her on the best way to deal with the situation she's in.

 

I have not ever been to court but I have been told that in small claims, the judge is slightly biased toward the lay-man. I'm no professional by any means - that much is obvious by my ramblings!

[Glenn UK]

LOL telnkate

 

It may be im wrong but its myunderstanding the court will not be biased to one side or the other, the point of the small claims court is to try to put the 'small' person on an equal fooitng with the bug boys and no more.

 

Youre approach about adding extra info and the courts response is fine, but many courts are not that helpful when it comes to 'what should i do' questions in my experience.

 

HTH

 

Glenn

[paulwlton]

Mandy

 

If they use the element of surprise tactic by using Latches to rely on i would ask the Judge to adjourn the hearing.

 

Paul

[taylormandy]

Thanks to you all.

 

I think I will take along the extra case laws I want to rely on, with copies for N'wide and the judge.

 

Paul - I thought if they wanted to rely on something in the hearing, then it needed to be mentioned in their defence?

 

Or is their defence of my claim being statute barred sufficient for them to spring Laches?

[natwesttookmymoney]

Hi, Mandy

 

Just quickly scanned through their defence (as amended) again. It does seem that it hangs on three points:

1. we've already paid you.

2. It's statute-barred.

3. You're asking for too much interest.

 

1 - as discussed before, is irrelevant. They haven't repaid the charges over this period.

2. You already have the arguments for it.

3. They might get a hearing for this one.

 

Bong's given you a good argument for 2. Be prepared to argue the interest you're claiming covers both

the debited interest - therefore, our loss - and loss of benefit. Also be prepared to argue debited interest plus 8% in the alternative.

 

Now, I really must stop posting, as I'm taking time out to catch up on work, family, etc!

 

Good luck for Friday

[taylormandy]

Cheers Westy.

 

I am here at 04.33 hrs, absolutely terrified about tomorrow!

 

Reading through the Guides to Court Hearing etc and it says to "tell my story", which I have have just started to write out.

 

It then occured to me that I wrote an 8 page witness statement for my bundle - is this what I should be reading to commence the hearing?

 

Can I add to it if I want to?

[redsue]

taylormandy - I can see you're about - have you been to court yet - I want to know if I can UNcross everything - its kinda uncomfortable!

[Guest bong]

redsue just noticed the hearing is at 2pm so its going on right now.

 

 

oooohhh good luck Mandy!!! loads of good vibes coming your way.

[newbody]

All the best taylormandy thoughts are with you

[taylormandy]

Thanks for your good thoughts everybody.

 

Sadly I had my case dismissed under the terms of the limitation act.

 

However much I argued my point, both the judge and the barrister said the issue was that there had been NO judicial decision on whether or not the charges are unlawful.

Therefore my argument that there was concealement, or that I paid under a mistake of fact or of law, was irrelevant. If the charges are not PROVED to be unlawful in a court of law, then I cannot claim concealement or mistake because in law, there is nothing to conceal or make a mistake about.

 

So basically, my particular judge said that until there is a JUDICIAL decision regarding the unlawfulness of the charges, I cannot claim postponement of the period of limitation.

 

The barrister kept saying he was not there to discuss the charges, he was there to discusss the limitation isssue.

 

The barrister also tried to state that I had "harrassed" the Nationwide and was vexacious. I put my point, and the judge was very nice and said that I had every right to bring the claims that I had! He said "it behoved badly" on the N'wide that they had tried to present me in any way vexacious.

 

the barrister also said that because I was relying on UTCA 1977 and other earlier case law, e.g. Dunlop v New Garage, that with "due diligence" I could have discovered many years ago that the charges were unlawful and brought my case then.

I said the said test appied to them. They therefore with due diligence could have found the charges were unlawful and they therefore concealed the true nature of the charges from me.

 

In his summing up, the judge rejected the point the barrister tried to make. He said you could only have been expected to find out this type of information if you were a good lawyer, not a layperson.

 

So all in all, I feel that I held my own. The judge commented on the fact that I had obviously put a great deal of work and research into my case.

 

Redsue, Bong - we didn't even get onto the the contractual interest issue, so I can't provide any additional insight from that point of view.

 

So, I have to console myself with the fact that I tried, and the N'wide had to fork out for a barrister for the day!! (Also also that I've already had approx £9000 off them already!)

 

I would just like to say a HUGE thank you to those who have taken the time and trouble to provide advice and support. It has been much appreciated, and I wish you all well in your own claims.

 

XXXX

[bill-k]

I am so sorry, Mandy.

 

It looks like you walked out of there with respect from the Judge, and of course you have it from all of us here. Most of all, you can keep your own, as you have not only stood up brilliantly in court, but you have come back here to impart your painfully hard-earned wisdom, for our benefit.

 

Thank you so much for that, and I believe you deserve congratulations for doing everything that you have done, and doing it so well.

 

Bill.