walton v rbos

[paulwlton]

I'm not sure on this, a counterclaim is considered as a claim and i beleive the fixed costs of preparing the counterclaim can be recovered, if this is the case the claimant is warned of the amount claimed in advance of the hearing.

I think costs are reserved for each application hearing and should only be forwarded on appeal.

 

I think it's a wind up tactic.

[paulwlton]

Not sure what you're on about here Paul - in this thread I don't see any evidence of them making a counterclaim against you?

 

Their continued sending of cost schedules is clearly meant as an intimidatory tactic, since it doesn't even appear that your case has been allocated to a track yet (at least, I can't see that from your thread)!

 

Cheers

 

Michael

 

Sorry Michael what i'm saying is the defence should only be sending a schedule of costs if it's a counterclaim, the claim was allocated to small claims on the 17th October with a hearing date on the ist Dec, i've stated this in an earlier post.

What are they playing at.

[paulwlton]

Michael the reason the defence keep a schedule of costs is if the bank wins on appeal then i am liable for the costs but to send a costs schedule to a litigant in person just before the hearing i think is out of order.

 

The hearing is an application to strike out, the defence are using sec 5.

 

Thanks will post later.

[paulwlton]

Bad news i'm afraid the judge has struck the claim out.

 

I'll post details later or tomorrow.

[paulwlton]

Ten minutes before the hearing an 8 page skeleton argument aswell as cases the defendant was relying on was placed onto my lap, i made the solicitor aware that i wasn't happy because this looked very much like an ammended defence, and why hadn't this been sent to me before the 18th December on the courts directions.

 

The hearing lasted nearly two hours and at times my arguments did get the judge thinking, a major problem i had was the unlawfull charges in the ccj the judge was not interested at all, he also dismissed my claim that the debt could not be time barred by one party whilst enforced by another it was realy hard work trying to convince the judge that my cause of action was April 2006 he seemed to think that if i had contacted a solicitor at the time the charges were being levied then it whould some how been sorted.

 

Moving on to the mistake argument the judge dismissed my claim that the bank was mistaken and the claim that i was mistaken was also dismissed with the judge saying the fact is you've allways been mistaken nothings changed, i think i know what the means.

 

So onto concealment my argument was that the banks failure to reveal constituted concealment the defence hit back and refered to a case where not disclosing information wasn't deemed concealment.

 

I made the judge aware that the documents the defence had subbmited should have been forwarded to me and that i wasn't happy, i don't think the judge wanted another adjournment.

 

I think i put sound arguments to the court but it wasn't to be, then came the costs the solicitor made a claim that i'de acted unreasonably and therefore should incurr the costs, the judge asked for my response and i quoted a couple of paragraphs from Praticia Pearls book on small claims, the judge ordered no costs to apply so the RBS have a bill of £2,500 to pay. At least that put a smile on my face.

 

Paul.

[paulwlton]

Cheers mate, i'll scan and post anything thats likely to help others.

[paulwlton]

Good!

 

So, do you think you'll appeal? I know that you must be feeling a little 'raw' but do you have any plans?

 

Wxxx

 

Stitched up thats how i feel.

[paulwlton]

A different day a different judge who knows.

[paulwlton]

It's a possibility.

[paulwlton]

[paulwlton]

[paulwlton]

the defence only received the documents on the 10th it seems the kings chambers of barristers drafted them up. I agree, with help, i could have prepared a better response and got a full hearing.

 

Paul

[paulwlton]

Thanks for all your support, it just goes to show that we're all in this together, and hopefully we learn from this.

 

Paul

[paulwlton]

I think the barrister must have been on some kind of bonus because the ammount of effort he put into stinging me for costs was embarrissing, i quote, if mr Walton had sought advice from local solicitors 99.9% would have made it clear to him that the claim was doomed, therefore he acted unreasonably, he also caused an adjournment by springing a document on the defence whithout submitting it beforehand, the defence also stated that the application to strike out was made before the allocation to small claims so costs should be awarded.

The judge made no order for costs.

[paulwlton]

The fact that there's a number of people veiwing this thread i would like to draw attention to the CCJ. A number of months before i issued the claim i wrote to the credit management department for a statement of account.

 

Since 1998 theres been no correspondance what so ever apart from my monthly payments to reduce the debt.

 

So to receive a statement of account that had grew not reduced was frightening, furtheremore the bank had been applying interest at £400.00 per qaurter.

 

When i contacted the bank asking why the interest was being applied they revealed, wrongly, that the debt had never been subjected to a CCJ so interest would still apply, i then rang Manchester County Court to see if they still had records of the CCJ, apparently the court remove all records after 6 years.

 

After much searching i found the original judgement (big relief) and got in touch with the CAB who then contacted the bank on my behalf, suprise suprise the bank revealed they had set the account up wrong, and would alter to suite.

 

I don't know how wide spread this is but i've had 2 pms with people in the same boat, but unfortunatley have no proof the debt was a CCJ. Now thats what i call shafted.

 

Paul.

[paulwlton]

Paul, firstly can I say I'm gutted for you, and while my sympathy (and that of others) is heartfelt, I'm hoping that some of those who have been so healthily debating these issues will be along in force with some ideas to turn this around.

 

How long do you have to appeal this decision? I am currently at the start of this very same process (S.A.R - (Subject Access Request) stage) and if I can do anything differently that may help you (and others) out than please let me know.

 

I am thinking there is a method here by the bank and perhaps it would be good to find out exactly how many people the bank have 'set up the account wrong' for, have they now removed the interest from your account and has the debt been paid in full?

 

Hi Janquinny, no the debt is still ongoing and will take a number of years before it's settled, the answer to your second question is no i requested a statement about 6 weeks ago and the interest is still being added.

 

If the bank continue to say the debt has never been subjected to a CCJ and i think i'm the only one that can prove it, i may just play them at their own game, i know they don't have the original signed agreement because i've made 2 SARs and CCA requests, and we all know that a debt is unenforceable whithot a signed agreement.

 

You have 14 days to appeal.

 

Paul.

[paulwlton]

:o :o :oHow much????

 

 

So, what does that mean? that they'll refund the interest? If they refunded the interest since the CCJ was put in place would it clear the debt? we are talking 9 years of quarterly interest of £400 aren't we?

 

Hummmm the CCA issue....been thinking about doing the same with our Abbey Loan which is defaulted....just taking it all in!

 

My payments are reducing the debt, it wouldn't be a case of refunding the interest just removing it.

[paulwlton]

Paul, this kind of thing makes my blood boil. How can they be allowed to get away with springing this on you just as you were about to go in? Particularly in light of their comments in para 2! It doesn't sound as if you could have done any better with a judge like that, and I think you did a tremendous job.

 

Having read their document I think they were really struggling to put forward an argument against your mistake (paras 17 and 18]. These seem very weak arguments to me.

 

Anyway, I'm sure you need a bit of time to get over this and its not for me to start suggesting that you should carry on after what you've been through (although you will be supported I am sure if you do decide to appeal). Can I just give one tiny criticism? I had no idea you had this hearing coming up until this week when you mentioned it. If you do go back for more, PLEASE ask for more help with it. You seemed to keep this all to yourself, I'm not saying we could have changed what happened at the hearing, but if there is a chance of undoing this it makes sense to get lots of ideas and help with it.

 

I'm sure everyone here will be behind me in extending a very much deserved group hug. WELL DONE for having the courage that was needed to take them on, never mind what happened, they are IN THE WRONG and they had to STOOP TO DIRTY TRICKS to get this past you.

 

 

Bong, the court directions order was for the defence to reply before the 18th Dec, beleive me if they had complied with this you would have known about it.

[paulwlton]

I am considering appealing. To have the new defence and cases relied on submitted just before the hearing was surely wrong, and i'm going to spend some time reading.

 

The judge did not like the fact a ccj was in question, the way i got round this was explaining that through the running of the account the defendant was unjustly enriched on a monthly basis, ie, when the account was in debit after a payment of salary.

 

If the defence had been forwarded has insructed by the court order the outcome may have been totaly different.

 

Yes i know the judges name.

[paulwlton]

Deputy District Judge Munroe.

[paulwlton]

this is a very complicated thread i am sure you will agree

 

paulwlton - can you, in simple terms explain the EXACT reason for the strike out, so other claimants can make sure that we can minimize the risk of being struck out?

 

it seems the judge penalized you for not realizing that the charges are unlawful, but how are you supposed to know that? we expect our banks to act lawfully, no?

 

The defence made it clear to the judge that the hearing wasn't to determine that the charges were unlawful, it was the fact that i had waited 8 years to start proceedings, the defence argument was that the charges should have been questioned at the time, and by not doing so should invoke the doctrine of laches.

 

To date no bank has had their charges judged unlawful in court. I don't think this is likely to happen.

 

As a layperson it's difficult to know how to proceed from here, but an Application for a rehearing could be made under order CCR 37.

 

Paul.

[paulwlton]

Paul are you considering an appeal on the basis that the documents weren't submitted to you before the hearing?

 

Yes but it wouldn't be an appeal as such, i would be asking for a rehearing.

[paulwlton]

cant you say that, you were only made aware that the charges are unlawful in April 2006 (OFT report)?

also do you have any correspondance from the banks that state that the charges are not unlawful (i have from mine)? if you have, my opinion would be that you have challenged the lawfullness of the charges, only to be told that the bank isnt acting unlawfully - surely this would hold some weight?

 

I stated my course of action was April 2006,

Like i've said the hearing wasn't to judge that the charges were lawful, and yes i have the banks letters stating that their charges are fair and reasonable. Even if the charges were ruled unlawful the defence will still pleed laches.

[paulwlton]

paul, have you seen this interesting post by millymolly regards some research she has done on statute of limitations?

I like Molly's reference to section 61, and I also like section 52.

 

http://www.consumeractiongroup.co.uk/forum/post-491940.html

 

Best Regards

 

This would have been one of many responses to their defence, the current law on Limitation also states that not revealing is concealment, i refered to this in court.

[paulwlton]

bong this in simple terms is what the judge went on.

 

(1) Laches

9.14 The equitable doctrine of laches allows a defendant a defence where, because of

the delay by the plaintiff in asserting his rights,39 it would be unjust to allow the plaintiff a remedy.