Spiritgirl -v- Various DCAs

[car2403]

If I were you I would wait and don't rush in to providing a Defence. You may even have a Counterclaim against them if they have applied unlawful charges, or Defaulted you because of this account!

 

There is no rush here - get some sound advice from the expert and file your Defence (and Counterclaim?) at the last minute, just like they would do if it's the other way around. It can be tempting to rush in with a fresh Defence, but you don't want to miss anything at this stage.

 

Also, you will only get a definitive answer when everyone has caught up with the latest events and purused your thread in detail...

[car2403]

You are entitled under CPR to request documents relied on in the Claim, regardless of whether you are the Claimant or the Defendant.

 

There are various sanctions the Court can consider, if they think it's just to apply them, including permanently staying the case or striking it out.

 

Technically speaking, they don't have to comply unless ordered by the Court - but you have to make a request for the Court to order them to comply!

[car2403]

Hi Spiritgirl,

 

Don't let them wear you down - even if you are unsure as to how to proceed, you have plenty of support from this site...

 

To answer your question about CPR requests - you don't want them to reply really as it will strengthen your case. If they don't it will depend on which track the claim is allocated to.

 

If it's small claim, usually there's little point (although still write to the Court) as the Judge is just as unlikely to order compliance with a CPR request as he is to award costs against a vexatious litigant. You are more likely to have the entire claim thrown out, however. (Hence the advise to ask the Court to enforce compliance regardless, to bring it to their attention)

 

If you're allocated to multi- or fast-track, you can ask the Court to Order them to comply with your request.

 

Either way, wait for the 14 day period to expire, write to them again giving another 7 days to comply unconditionally, then write to the Court to tell them whats happened.

[car2403]

I don't want to set wrong expectations here, so I don't think I can tell you what you want to hear - I think this will have to go to Court, as they won't back down without that happening. Remember, they are on the understanding YOU don't understand YOUR rights here, along with the other 99% the World.

 

I don't think the Doctor's statement will help you, to be honest, as he may be called as an expert witness - at your expense, which you can reclaim if you win, but it's a risk. You can submit it as an "opinion" however, which might help the Judge understand the impact it has had on you, but if that is challenged he will probably have to appear in Court, to be questioned. This can also complicate your case, which may mean allocation to a different track, which may also not help your situation. (It's going to be easier on you to have allocation to the small claims track, but the multi- or fast-track are other options if the case is complicated - which is based on the Judges' opinion, I'm afraid)

 

All this is a long way off, though - I'd reckon you need to allow 6 months to get this sorted once and for all...

 

Sorry, I'm probably not inspiring you now...

 

:o

[car2403]

Doesn't sound right to me SG - service date is usually 5 days after issue, with Defence submission being 28 days after that date. What was the date of issue on the claim form? Was this a claim issued via MCOL or a local Court? (I've issued through my local court, who seem to think 2 days from date of issue for the date of service!)

 

IMO, if they haven't replied to your CPR request, you're well within your rights to submit a "holding Defence" stating you can't Defend until they comply. In fact, this is exactly my argument on my HFC claim if you want to see how I've worded my application notice;

 

http://www.consumeractiongroup.co.uk/forum/debt-collectors-debt-collection/110146-car2403-hfc-bank-default-7.html#post1268593 (post #124)

 

They may comply before the date your Defence is needed though, although each day means less preparation time for you...

[car2403]

NP - it's my fault really, as I submitted a Defence to the HFC claim based on what I knew their argument would be. In actual fact, they haven't particularised their claim properly, so I'm arguing in my Application Notice (which I did mention in my Defence, but should have gone in to more detail) that I can't submit a full Defence as I haven't had detailed particulars of claim. (I was just using my thread as an example of the process you can follow)

 

I'd say you need to start preparing your Defence but include the failure of replying to your CPR request for more information as the reason why you can't Defend in full. If they do reply before your Defence deadline, you'll have a stock Defence ready for submission. If they don't reply, you'll need a holding Defence, saying you can't submit a Defence until they do reply with the information you've asked for, asking the Court to stay their Claim until they have supplied the information.

 

I wouldn't worry too much about this just now - there's still time for them to reply with what you've asked for and plenty of time to work on your Defence.

 

Incidentally, something I've noticed about your thread is that it might get confusing from now on in, in that you have many DCA's on the same thread - this is ok now, as you've followed the same process with each of them, but from now it could get tricky keeping the one thread up to date. Might be worth working with a site helper/Mod to get your thread split in to each of the DCA's names? (spiritgirl -v- DCA 1, spiritgirl -v- DCA 2, etc) Just my opinion, but I thought I'd suggest it.

 

Hope I didn't confuse you too much with the HFC thread thing... and you aren't thick at all! (I'd tell you if you were! )

[car2403]

I think tomterm8's Moonhawk Defence will work in your case - see what you think;

 

http://www.consumeractiongroup.co.uk/forum/general/113490-next-directory-making-claim-2.html#post1167633 (post #33)

[car2403]

Thanks for the scales thingy, SG, but what is more important is that you are feeling better about this already... I found that, when I received my Claim form from HFC Bank, I was ready to sit back and admit the whole claim - I've learnt from a lot of CAG-ers that some calm reflection, reading threads of others that have gone through similar circumstances and had the same issues and learning, learning, learning lots along the way has really helped me! I'm now more empowered to take these swines on at their own game - hence the 7 claims I issued a few weeks ago... I couldn't have done all that without CAG.

 

I've now dedicated my spare time to helping others do the same thing... but... you should remember I haven't done anything yet - I've simply pointed you in the right direction and given some opinion.

 

Glad your feeling better now, because I was worrying about you for a (little!) while there...

 

Chin up, missus!

 

[car2403]

To be honest, I'm surprised they've even replied to your request at all. I'm not surprised they've totally ignored what you've said though.

 

There's a few ways you can deal with this now;

1. Place an Application Notice with the Court asking them to Order that they comply with your request.
   
2. Enter a "holding Defence" stating that you can't enter a complete Defence until they disclose their case against you.
   
3. Enter a Defence against their claim as you know it now and hoping that they don't change their POC when you come to trial.

For me;

1. Will be a waste of £40 for the Court fee to submit it and they are more than likely to only stay the claim while they particularise their POC sufficiently. Yes, they probably haven't met CPR Part 16 in that they haven't disclosed enough information to you to fully Defend, but requesting the claim is struck out (which would probably happen if YOU had issued against THEM!) will most probably only result in a short stay, which will extend the time this whole saga runs on for.
   
2. The holding Defence will have to state that you can't Defend in full without assuming facts in the case that may not form part of the POC, the Claimant having failing to meet the requirements of CPR Part 16, (providing the Defendant/Court with a consice statement of claim by particularising the initial POC sufficiently) and request that the Court either order the Claimant to amend the POC or order full disclosure of documentation to allow you to enter a full Defence.
   
3. As you can't fully Defend without "assuming" something along the way - which may or may not be part of their actual Claim, once you get further down the timescale for the proceedings. Also, if you don't Defend an item in their POC completely, you may find they apply for Summary Judgment against you on that issue, or another issue that you haven't covered in your Defence. It's a bit tricky wording it properly, but I'm sure we can all knock heads together to get it sorted whatever they have up their sleeve!

It's your call really, Spiritgirl. It all depends how the Judge sees your attempts to clarify details - they may allow the case to continue unabaited if they favour the creditor and they don't have to allow you to amend your Defence at a later stage, or they may allow the whole claim to be thrown out as they haven't met CPR correctly. A bit of a lottery, IMO!

 

Having said that, I've just thought of a 4th alternative! You could do a combination of 2. and 3., above, in that you can enter a holding Defence with an "in the alternative" statement giving your full Defence to the Claim as you know it. Something along these lines;

 

1. The Defendant denies the allegations made in the Claimants particulars of claim and puts the Claimant to strict proof thereof.

 

2. The Particulars of Claim are summary in nature and do not disclose sufficient grounds for bringing any action. Despite this, the Defendant pleads as follows, but seeks to reserve the right to amend this Defence in such circumstances that the Claimant provides more detailed particulars at a future point in these proceedings;

 

[Then state the rest of your Defence as you know it...]

 

This is probably the way to go, as you've pointed out their failings, so can ask the Court at Allocation stage (to order the POC be amended) to give Special Directions ordering the Claimant to disclose in full and allow you to amend your Defence only once that has happened, (also asking that the Claim be struck out if they don't comply) while allowing a full Defence (albeit one surrounding a claim that isn't concise!) to be entered.

 

Hope I haven't confused you even further now...

[car2403]

Knowing MoneyClaim Online, SG, they will want this on a formal Application Notice and a £40 fee () for processing it!

 

The form you need is N244, which you'll find here;

 

http://www.hmcourts-service.gov.uk/courtfinder/forms/n244_0400.pdf

 

Send this letter to them, but I think will reply wanting the formal Form completing and a fee paid first. When do you have to submit a Defence by? (You may need that holding Defence after all!)

[car2403]

OK have phoned the court helpline now and explained the situation.

 

The lady there suggested first of all that I phoned SC&M and asked them for the CPR information (!) or phone Lloyds TSB and ask them for it (!)

 

I told her that Lloyds have totally ignored me and SC&M are now doing the same so she suggested the best option would be to submit my defence asap together with any documents I want to rely on.

 

She said to include in the defence that I have not been supplied with the information I need to properly prepare a defence.

 

The actual deadline for my defence going in is 21st December.

 

So car I think its now best if I submit the holding defence as you have advised. She suggested it goes by mail and not online, and in any case MCOL is going to be off line for maintenance from 16th to 31st December apparently!

 

I'll set to preparing it and post it for you to have a look at if that's ok?

 

Love SG x

 

This is interesting, as everything I've seen from MCOL says "Staff on our Helpline cannot give legal advice"!

 

You must have caught them on a good day, (well, it is Christmas, after all!) but I'd take that advice with a pinch of salt - CPR Part 16 requires concise POC, without it the Court stay/strike out the claim, but aren't compelled to do so.

 

Moonhawk - I think I've pointed Spiritgirl to you Defence previously, definately something she can use I feel.

[car2403]

Looking good SG!

 

I would give the full citation for Woodchester, in case the Judge wants to look it up - Woodchester Lease Management Services Ltd v Swain & Co NLD 14 July 1998

I also wouldn't be submitting supporting documents at this stage, as this will be ordered before the hearing - if it gets that far!

 

I'm not sure what effect the letter to the Clerk will have, but it can't do any harm at this stage.

 

Don't forget to send a copy of your Defence to the Claimant, by way of service - we don't want them challenging YOU under CPR now we are challenging THEM...

[car2403]

(((babybear))) all supportive hugs are very welcome right now bless you xx

 

Holding Defence and accompanying letters are being sent Recorded Delivery tomorrow and as soon as I have some news I will post back.

 

Once again a BIG thank you to all you guys for helping to get me through this so far, for all your caring and support, I could not have done this without you xxx

 

 

Love SG x

 

SG, I'm normally not one to blow my own trombone (I never did master the trumpet!) but I just have to speak out again... (Not like me, as you know!)

 

YOU are the one that has gotten yourself through all this already - you've had a battle on your hands already, bless you, and you've come out fighting and with your fists up ready! This, I think, is down to your character and drive not to let this beat you up! Good to see.

 

Yes, you've had some help along the way, but really you've done all the hard work to get this far - not us. It's easy to sit this side of the forum and offer support from afar, (which I know you rely on, which is cool) but it's something completely different to having to take this on "in person", so to speak, and fight your corner - with or without top-notch support from CAG.

 

It's your drive and determination that will see this through. We are just the audience that shares you pain when you suffer and offers a round of applause when you do something right in support. We are also the ones that shout "he's behind you" when you're heading in the, perhaps not right, direction and get you to think in a different way. (Well, it is the Season for this, after all!) This is what I've seen in your posts over the last few weeks - I can see you gaining more composure, taking an objective view of your issue, grasping the bull by the horn and putting up a formidable defence to attack!

 

This post doesn't really add anything to your case or to what I've said already, but I felt I needed to point out to you that you are doing a fab job! I hope I don't ever have to be a Defendant against you, Mrs!

 

:grin:

[car2403]

It's a template letter alright, SG.

 

The Claimant gets a copy of your Defence then has to contact the Court to tell them if they want to proceed, considering your Defence, or not.

 

The next step will be that you get an AQ to fill in with a date that it needs to be sent back to your Local Court along with Notice of transfer to that Court. (If they decide they want to pursue the claim, that is!)

[car2403]

Thanks Spiritgirl and the same back to you! It's nice to hear you talking about enjoying Christmas rather than worrying about these problems... a yuletide turnaround if ever I've seen one

 

Santa has been nice to me already, delivering Judgment by Default on my 4 (yes, read 'em, 4!) claims against O2! Woo hoo!

 

http://www.consumeractiongroup.co.uk/forum/data-protection-default-issues/111666-car2403-o2-wescot-dca-2.html#post1292180 (post #39)

[car2403]

Personally, I wouldn't worry about this until you've had OFFICIAL notification from the Court.

 

This, to me, appears to be a blantant breach of OFT Debt Collection Guidance, in that they seem to be implying they have already had Judgment already - which isn't the case if it ISN'T official!

 

Wait until Monday, (take the weekend to calm down!) then call the Court to find out what stage the claim is at. If they have filed a request for Judgment, make sure that the Court has received your Defence (they've confirmed receipt already!) then send them this;

 

URGENT - TO THE COURT MANAGER;

 

Dear Sir/Madam,

 

Claim Number XXX

DCA -v- SG

 

I refer to correspondace that I have received relating to this claim that implies that the Claimant in this case has submitted a request for Judgment by Default to be entered.

 

After speaking to the Court staff today by telephone, I understand that this is the case and such a formal request has been received by the Court.

 

I would like to refer the Court to the correspondance I received from you dated xx/xx/xx in which you confirmed receipt of service of my Defence.

 

I would like the Court to note that, due to the service of such Defence, the Court is excluded from granting Judgment by Default under CPR Part 12 Practice Direction 1.1(2) and 4.1(2).

 

Where the Court has already wrongly entered Judgment by Default, I would hereby request that such Judgment is set aside under CPR Part 13 Practice Direction 13.2(b) in that a Defence was entered within the timescales allowed within CPR Part 15 Practice Direction 15.4(1).

 

Yours faithfully,

 

SG

 

Good old CPR! Sometimes they get this wrong, but a prod in the right direction usually always works...

 

[car2403]

Just to make you feel a little bit better, SG - this now seems to be a standard process for these Solicitors to follow while waiting for the Allocation process the Court follows to start, as they've done exactly the same thing on this thread, at this post;

 

http://www.consumeractiongroup.co.uk/forum/general-debt/122545-help-wit-court-clainm-2.html#post1324317

[car2403]

I'd say no - did you get the name of the person you spoke to for future reference, BTW?

 

I think this will "often happen" a lot more as these Solicitors seems to have adopted this as standard tactics! It might be worth a complaint to the Law Society, if they are regulated, (you'd be surprised how many "Solicitors" aren't!) to point out the impact it has having on litigants in person?

[car2403]

ncf I'm a bit naffed off to be honest - all the stress and worry I had, and all the effort put into preparing such an ace Defence with the help of everyone on here, and it looks like it will come to nothing.

 

Er... Don't you think they've seen your Defence and decided it isn't worth continuing? I'd disagree that the Defence has "come to nothing", if it works!

 

I wouldn't worry about doing anything until you know what's happening next - it's fine Court staff telling you what to do and how to do it, but ultimately only a Judge can stay the claim. I don't want to scare you, but that's the truth.

 

On the other hand, not long to wait now before you know what's going on - either the claim is stayed or you'll have a Court date set where you can put an end to this sorry state of affairs. It's win-win either way, but the war isn't over yet, SG... IMHO...

[car2403]

I think this is standard practise by MCOL - they do say that receipt of a defence will be referred to the claimant to see if they want to proceed, but they have such masses of claims that I think they continue with the normal process anyway, regardless.

 

Either way, as you've been asked (note: not ordered) to send it, we need to complete the AQ so you get a crack at that particular whip!

 

Judging by your post, you've received a N150 Allocation Questionnaire? Am I right? There are different ones, so this is crucial.

 

Don't worry about the wording, as we'll be using this;

 

I recommend that you include a request for the Judge to order Special Directions, as follows; (Thanks and recognition goes to Paul - pt2537 - for this template)

 

If the court is in agreement, the defendant respectfully requests that special directions may be given as per the attached draft order.

 

The defendant proposes these directions in mind of the Overriding Objectives, and in particular the duty of the parties to help the court further them. The issues outlined below are the crux upon which this claim rests, and the proposed directions identify these issues and will allow them to be assessed in advance of the hearing so that this claim may proceed justly and expeditiously;

 

without production of the requested documents, I am at a disadvantage and am unable to serve a proper defence. Failure of the claimant to supply the requested documentation will make the case much harder for the court to deal with as without production of the requested documentation will inhibit the courts ability to deal with the case

 

The House of Lords in the case of Wilson v First County Trust Ltd - [2003] All ER (D) 187 (Jul) made it clear in paragraph 29 of LORD NICHOLLS OF BIRKENHEAD judgment

 

29. The court's powers under section 127(1) are subject to significant qualification in two types of cases. The first type is where section 61(1)(a), regarding signing of agreements, is not complied with. In such cases the court 'shall not make' an enforcement order unless a document, whether or not in the prescribed form, containing all the prescribed terms, was signed by the debtor: section 127(3). Thus, signature of a document containing all the prescribed terms is an essential prerequisite to the court's power to make an enforcement order. The second type of case concerns failure to comply with the duty to supply a copy of an executed or unexecuted agreement pursuant to sections 62 and 63, or failure to comply with the duty to give

notice of cancellation rights in accordance with section 64(1). Here again, subject to one exception regarding sections 62 and63, section 127(4) precludes the court from making an enforcement order.

 

Its is respectfully requested this case be allocated to the small claims track, it is a straight forward case and is easily resolved on production of the required documentation by the claimant, should the claimant not have the documentation required to progress this case I suggest that there will be no case to answer

 

Therefore it stands to reason that this document must be disclosed before this case can progress any further

 

A suggested template for Draft Directions, which we advise that you include with your AQ... (Thanks and recognition goes to Paul - pt2537 - for these Draft Directions)

 

 

 

 

In the XXXXXX County Court

 

 

 

Case Number XXXXXXX

 

 

 

 

 

 

number XXXXXX

 

 

 

 

 

 

 

 

Between

 

 

 

 

 

XXXXXXXX - Claimant

 

 

 

 

 

and

 

 

 

 

 

 

XXXXX - Defendant

 

 

 

 

 

 

Draft Order for Directions

 

 

The Claimant shall within 14 days of service of this order send to the Defendant and to the Court:

• Copies of the Credit Agreement and any documents referred to within it which complies with the consumer Credit Act 1974 and all subsequent regulations
  
• Default Notice compliant with s87 (1) Consumer Credit Act 1974 andConsumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) as amended,
  
• Document, contract or deed of assignment
  
• Notice of assignment, with proof of service of the same compliant with s196 of the Law of Property Act 1925.
  
• Copies of any statement or other document relied upon

If the Claimant fails to comply with this order, the claim will be struck out without further order.

 

 

The Defendant shall within 14 days thereafter file and serve the following

• An amended defence sufficiently particularised in response to the documents supplied by the claimant

If the Defendant fails to comply with this order, the Defence will be struck out without further order.

[car2403]

(A) Settlement - well I can't see the point in a 1 month stay to settle it so here I would say no?

 

This is a "no"

 

(B) Location of trial - I will say yes to my local court here as I am the Litigant in person, is that correct?

 

As long as the AQ should be returned to your local Court, say yes. If it doesn't, say no and state you want it transferred to your local Court as you are a litigant in person and the other party is a business that carries out its work in your local area.

 

© Pre-action Protocols - this is the bit I don't understand and am not sure what to put since they have totally ignored the pre-action protocols

 

There is no Pre-action protocol for your case, so leave Part 1 blank and tick "yes" in part 2.

 

(D) Which track is most suitable - the alleged debt is over £5000 but under £7000 so which one shall I tick?

 

I think you've missed a page out here? Use this info to complete Section D

 

"What amount of the claim is in dispute?" - enter the whole amount of the claim on the claim form

 

Applications - Tick "no"

 

Witnesses - Enter your name under "Witness name" and "those contained within the Defendants Defence statement" in the "Witness to which facts" part

 

Experts - Tick "no"

 

Track - Tick "Small claims track" and enter this in the box;

 

"

ALTHOUGH THE VALUE OF THE CLAIM IS OVER THE SMALL CLAIM TRACK VALUE AMOUNT, IT IS A STRAIGHT

FORWARD DISPUTE OVER HOW THE LAW APPLIES TO THE FACTS. THE LAW INVOLVED IS PRIMARY LEGISLATION

THAT HAS BEEN ENACTED SINCE 1974 AND MORE RECENT BINDING DECISIONS OF THE COURT OF APPEAL AND THE

HOUSE OF LORDS. THE CASE DOES NOT INVOLVE COMPLEX LEGAL ARGUMENT, NOR DOES IT INVOLVE COMPLEX

QUESTIONS OF FACT. THE CASE SHOULD BE ALLOCATED TO THE SMALL CLAIMS TRACK TO MINIMISE THE PARTIES

EXPOSURE TO THE COSTS OF CONTINUING AND TO SAVE TYING UP THE COURTS RESOURCES FURTHER. THE

PREDICTED LENGTH OF A HEARING IS LESS THAN 1 HOUR.

"

 

(Copy paste it and it **should** fit inside the box - if it doesn't, just play with it until it does)

 

(E) Trial or final hearing - I was going to put an estimate of half a day for this? No expert witnesses.

 

Enter 1 hour

 

(F) Proposed Directions - As per your post,the suggested Draft Order?

 

Use my post above

 

(G) Costs - have no idea of an estimate here, do I need to fill it in?

 

Leave it blank

 

Other Information :

 

Use my post above

 

Have you attached documents to this questionnaire - Yes

 

What documents are you attaching? It should be "no"

 

Have you sent these documents to the other party(s) - No ?

 

Leave blank - see above

 

If yes when did they receive them? N/A I assume - Don't the court have to send them when they receive my AQ?

 

Leave blank - see above

 

Do you intend to make any applications in the immediate future? No?

 

Tick "no"

 

In the space below set out information to help the judge etc - Info as per your post?

 

Copy/paste this, which should fit;

 

"

If the court is in agreement, the Defendant respectfully requests that special directions may be given as per the attached draft order. The Defendant proposes these directions in mind of the Overriding Objectives, and in particular the duty of the parties to help the Court further them. The issues outlined below are the crux upon which this claim rests, and the proposed directions identify these issues and will allow them to be assessed in advance of the hearing so that this claim may proceed justly and expeditiously;

- Without production of the requested documents, I am at a disadvantage and am unable to serve a proper defence. Failure of the

Claimant to supply the requested documentation will make the case much harder for the Court to deal with this inhibits the Courts

ability to deal with the case.

- The House of Lords in the case of Wilson v First County Trust Ltd - [2003] All ER (D) 187 made it clear in paragraph 29 of

LORD NICHOLLS OF BIRKENHEAD judgment

29. The courts powers under section 127(1) are subject to significant qualification in two types of cases. The first type is where section 61(1 )(a), regarding signing of agreements, is not complied with. In such cases the court shall not make an enforcement order unless a document, whether or not in the prescribed form, containing all the prescribed terms, was signed by the debtor:

section 127(3). Thus, signature of a document containing all the prescribed terms is an essential prerequisite to the courts power to make an enforcement order. The second type of case concerns failure to comply with the duty to supply a copy of an executed or unexecuted agreement pursuant to sections 62 and 63, or failure to comply with the duty to give notice of cancellation rights in accordance with section 64(1). Here again, subject to one exception regarding sections 62

and 63, section 127(4) precludes the court from making an enforcement order.

Its is respectfully requested this case be allocated to the small claims track, it is a straight forward case and is easily resolved on production of the required documentation by the Claimant, should the Claimant not have the documentation required to progress this case I suggest that there will be no case to answer. Therefore it stands to reason that this document must be disclosed before this case can progress any further

"

 

(Attach a draft order, set out as in my post above)

 

 

We are going for small claims anyway, regardless of the claim amount - the claim amount is one consideration, but so is the complexity of the case, how many expert witnesses are needed, etc, so pitch for small claims as you might get it. Might not neither, but worth a try!

 

Remember to send a copy of all this - AQ and draft order for special directions - to the other party.

 

This is also a unique opportunity to continue to show your willingness to settle the claim, out of Court, so send them this;

 

Dear Sir/Madam,

*** –v– ***, in the *** County Court

Claim No: ***

Your reference: ***

Please find enclosed Allocation Questionnaire and Draft Order for Directions in the above claim, by way of service.

I am mindful of the Courts use of resources here, so in order to more speedily resolve this matter, I am willing to accept the sum of £*** to settle this claim, along with *** and complete cessation of all collection activity on the account. I do not agree to waive my rights in respect of any other actions, nor do I agree to a clause of confidentiality.

The above offer is available for acceptance for a period of 21 days. In the event that you choose not to accept it, or fail to reply to the offer, the right to refer this correspondance to the Court at any future appropriate determination of costs is unconditionally reserved, without further notice.

I hope to hear from you very soon so that a reasonable conclusion to this claim might be achieved. I am sure that the Courts would approve of our settling this matter in a timely manner and without their further intervention.

Yours faithfully,

There are 2 reasons why you want to include this in your cover letter;

 

Firstly, if you wrote to them offering settlement outside of "serving" something that is required, (such as the AQ here) they may have a claim of harrassment against you. That's right folks, THEY may be able to sue YOU for harrassment if you continue to chase them for settlement... Doing it this way is within CPR, as you should serve the AQ on them, but means you aren't "harrassing" them in to a settlement. (I haven't seen this happen myself, but I can see some unscrupulous companies trying it on!)

 

Secondly, (refering to the paragraph I've bolded) it gives you the opportunity to offer a settlement that, should it be refused or ignored, will make it **easier** to apply for wasted costs at a future point in the proceedings once you've won. There are some threads on the forum for applying for wasted costs under bank charge claims, but the principle is the same here - we'll be able to cover that later if need be - just make sure the bolded paragraph is included.

 

This also gives them the impression that, even know you are a litigant in person, that you **know** what you are doing. (If you get a tick, read CPR Part 36 to see what I mean and it's effect) It's unlikely you'll get costs awarded in the small claims track, more likely if not in small claims - either way, this is part of the game of "litigation" and making them think we know more than them, giving the impression they should settle sooner rather than later. Whether or not that is true is irrelevant to the fact that's the intention...

[car2403]

There's caselaw that says you can claim £1000 in damages - I'd suggest asking for £500, if they settle out of Court, or continue to claim £1000 via your counterclaim.

[car2403]

Has anybody actually got £1,000 + amount of default (or even just the £1,000) using this case law?

 

The court seems more likely to award £500 as it seems to be the figure most people throw around here.

 

I haven't seen any, but I have some claims pending where it looks like it will go all the way, so watch this space.

 

The pursusaive precedent is for £1k, though;

 

1. Failure of a Default or Termination Notice to be accurate not only invalidates such Notice, (Woodchester Lease Management Services Ltd v Swain & Co NLD 14 July 1998) but is an unlawful rescission of contract which would not only prevent the Court enforcing any alleged debt, (Wilson v First County Trust Ltd [2003] UKHL 40, Wilson v Robertsons (London) Ltd [2006] EWCA Civ 1088, Wilson v Pawnbrokers [2005] EWCA Civ 147) but would also give the Claimant a claim for damages in the sum of £1,000. (Kpohraror v Woolwich Building Society [1996] 4 All ER 119)

 

It has to be worth settling for £500, isn't it?

[car2403]

yes, it should be worth settling at £500 but most banks and DCA's i've asked laugh it off and say 'prove your loss' which, having other defaults and not applying for credit, i would not be able to just on the one default but as a whole credit score only. But every default makes an impact.

 

i've had £200 - £300 awarded by the FOS for defaults but they've said the money can go to the DCA, despite no CCA compliance.

 

next is to take it to court but with an offer already from the bank i may be seen as being aggressive, even though the money is not coming to me.

 

Having to prove your loss implies you've had special damages - the cases I've referred to offer authority for £1k in substantial damages, which requires no proof on your behalf, so their testing the water by asking you to prove your damage.

[car2403]

SG, have you entered a counterclaim against them? CPR states you can enter a counterclaim against a claim when you enter your defence without the permission of the Court - if you want to counterclaim now, you will have to seek permission.

 

CPR Part 20;

 

20.4 (1)A defendant may make a counterclaim against a claimant by filing particulars of the counterclaim.

(2)A defendant may make a counterclaim against a claimant –

(a)without the court's permission if he files it with his defence; or

(b)at any other time with the court's permission.