Penfold V Barclays (Woolwich) No agreement and taken to Court

[Edz11]

The Bank will be faced with repaying money you contend you should never have been paid in the first place. The passage of time has led the Bank to get rid of the paperwork and they cannot now substantiate the debt.

 

You have reasonable grounds for making them produce some paperwork but it appears they have none. They will write this one off and pay up. There is no overiding principle they have to defend as there aren't that many cases where they have nothing at all.

 

The procedure is simply so that they have their chance to have their say - even if they make a choice not to do so.

 

Don't forget the LIP costs when calculating your total. Best to give it to the Judge immediately he has made his decision in your favour.

[Penfold92]

Hi Edz,

 

What do you mean by LIP costs? What are they or do you mean just the total figure?

 

Thanks,

 

Penfold

[ncf355]

Tell you what P92, I wish I couldve got an order like that

 

On one of my CCA cases they managed to get leave to enter a Defence some 4 months after my Claim issue under the "overriding objective"

[Edz11]

Litigant in person - the hourly rate is £9.25 I think. So add the hours up...

 

NCF - had theirs been struck out or wasn't there a time limit?

[Penfold92]

Hi ncf,

 

I tell you if you have read the whole thread ,I have been on their case and made the mistake of telling them my actions only once, the next time I jumped in before them and made sure I made the COurt see what stalling they were doing. The irony is their actions worked in my favour...

 

Edz, Can I really charge that and over 8 months how many hours do you recon I have done and speand, not mentioning the sleepless nights etc (sob sob)...

 

Penfold

[ncf355]

Given the cases I have running, I am VERY intrigued to see how your claim for all payments goes and the judges thoughts on it

 

Its Wednesday for the hearing, right?

 

I wish you the very best

[Penfold92]

Thursday 20th Dec 10am...

 

I am also intrigued. Many on here thought I would not get anywhere at the beginning, but I blieved that as long as they had no info on the account (which I knew they wouldn't after this length of time and their attitude to paperwork maintainance) that I would stand a chance and they would mess it up somewhere along the line. I believe that if they had submitted on time and we were both in court together it would have been hard, but I still think I would have got something based on their non compliance of several laws and Act already mentioned in this thread.

 

But the beuauty was them missing the first deadline then asking for more time after another month and then missing that too...Killer mistake IMHO of course. Hence the reason I belive the Judge could see they were either not serious or knew they had no evidence to provide.

 

Hope this will help you or at least give you some confidence to go after these assuming banks! I tell you without the guys on my thread I would have given up LONG ago...

 

Edz, what is reasonable for the hours speand researching etc? I recon 12-15 hours over the 9 months? I believe that to be fair...

 

Penfold

[alanfromderby]

Robinson Way have issued a claim against me (rather foolish since they were in breach of a CCA request at the time). I am applying for a strike out on the basis of the CCA, along with no pre-action protocols, no documents, no proper POC's, grossly inflated claim etc etc.

 

I am claiming for 20 hours for research, preparation, compiling documents etc, under the courts powers to award costs in SMT when the other party has breached rules and acted unreasonably.

 

I may get it, I may not - but I work on the basis that if I don't ask I won't get!

 

If a judge feels inclined to grant costs, he will probably have a figure in his mind anyway - and if he thinks your estimate is over the top he will usually just reduce it to what he thinks is reasonable.

 

The issue is only raised after judgement, so you can't lose anything by asking.

[Edz11]

LIP costs are a lot less than a Solicitor would charge but the courts have said that while a solicitor might take two hours there is no reason why a LIP can't claim for six. (They are on a learning curve). This any help?;

Litigants in Person

 

38 Where the receiving party is a litigant in person rule 48.6 (Appendix 1) governs the way in which the question of costs should be dealt with. A litigant in person may be allowed a sum in respect of costs at the rate of £9.25 for each hour reasonably spent in preparation and attendance. He may be allowed a reasonable sum in excess of that amount if he can show that his work on the case has caused him financial loss justifying a higher award.

39 In all cases there is an absolute cap on the amount recoverable by a litigant in person, namely the reasonable costs of disbursements plus two thirds of the amount which would have been allowed if the litigant in person had been legally represented. (rule 48.6(2)). The litigant in person is entitled to recover in addition: payments reasonably made for legal services relating to the conduct of the proceedings; and the costs of obtaining expert assistance in connection with assessing the claim for costs. This does mean that a litigant in person may be able to claim both the cost of obtaining legal advice and services as well as the cost of undertaking the litigation in person. Those qualified to give expert assistance in connection with assessing the claim for costs are: a barrister, a solicitor, Fellow of the Institute of Legal Executives, Fellow of the Association of Law Costs Draftsmen, a law costs draftsman who is a member of the Academy of Experts and a law costs draftsman who is a member of the Expert Witness Institute.

40 Although the definition of litigant in person includes a solicitor, a solicitor who instead of acting for himself is represented in the proceedings by his firm, or by himself in his firm name, is not, for the purpose of the Civil Procedure Rules, a litigant in person (see Section 52 of the Costs Practice Directionpdp-43).

[alanfromderby]

I would add that most solicitors charge their time at between £130 - £150 per hour. So if you are putting in a request for costs for 15 - 20 hours at £9.25 per hour, the judge will probably not raise his eyebrows too much.

[Penfold92]

Thanks Alan,

 

I think the following is fair and Barclays if you are reading this just send the payment today and save time!

 

Total Claim now at Hearing based on Thursday 20th December 2007

Payments Made under the Unenforceable Debt Collection Agency - £1038.00

Court Fees - £260.00

Interest under section 69 of the County Court Act 1984 at a rate of 8% a year from the 28/05/1998 to the hearing date of 20/12/2007 giving a figure of - £516.43

Costs incurred (£19.80 photocopying, £16.60 postage and £5.30 travel and parking costs).

£41.70

I would also request the Your Honor grant me time spent researching and preparing my claim over the last nine months. I estimate this to be a total of around 25 hours in total and I believe the hourly rate of a Litigant in person is £9.25.

This would give a total of £231.25

This gives a total judgment requested of £2087.38

 

 

Have I missed anything? I do not feel due to the fact I entered an IVA that I can go for damages on this one, but I am happy with the above if I get it.

 

Penfold

[Edz11]

That seems reasonable enough. I don't think Barclays will suffer rom lack of sleep over this. You won't hear from them before the court date methinks. "Not an admission - more, "not economic to continue"

[Penfold92]

I've just realised that it is the 17th today so as they have not filed an application they cannot do so now under the Order of the 4th December. So they cannot defend...That just sounds funny to me...

 

Oh well see what happens now...

 

Penfold

[Penfold92]

Hi Guys,

 

Got this email today after my letter and email yesterday morning:

 

Without prejudice

Dear Mr Penfold

Thank you for your email.

To save the time and expense of an attendance at court on Thursday 20 December, I would be willing to negotiate settlement terms with you.

You had previously intimated that you were prepared to accept £1,736 (email 04.09.07) in full and final settlement. You are now seeking £2,087 to include costs.

Whilst I would agree to start at £1,736 as the basis of settlement, I would direct you to the Civil Precedure Rules governing costs in relation to small claims cases. These are strictly limited. Over and above your court issue fees, if your claim was successful you would be entitled to £80. Please see Part 45.2 of the CPR.

I would be willing to refund you all you court fees incurred, plus the £80, but not the hourly charges.

As regards the practicalities of settlement, once we have an agreement in principle we would need to have that confirmed on a formal basis in writing. I can provide a formal letter of settlement for you to sign and return as an email attachment or by fax. It may not be practical to have the funds in your account by Thursday. As a lawyer I do not have access to funds, so I need to arrange for our Accounts dept to implement the payment for me. Once we have a firm settlement agreement it will then be in open correspondence for the court to see. We are absolutely bound to pay you, so you can be rest assured that you would be paid. I would be obliged if, once we agree on the sum to be paid, we both write to the court indicating that the parties have agreed settlement terms and payment is still to be made. The hearing can then be adjourned to save either party having to attend.

I look forward to hearing from you.

Yours sincerely

I have emailed back to say CHAPS payment today for £2050 and that is it and no confidentiality clause...

Penfold

[Edz11]

CPR 45.2 only refers to commencement costs. You've passed commencement...

[Penfold92]

Thanks Edz,

 

He has emailed back to say he accepts the £2050 settlement. I am now waiting for an attatchment to sign to agree it in writting then I will call the court to adjourn the hearing until payment has cleared.

 

Penfold

[alanfromderby]

Nice work.

[Penfold92]

Thank you kind sir! Your help was much appreciated as well as all the others who I forced to look at this thread!

 

Mind you do not have the offer letter in attatchment form yet...

 

Penfold

[Edz11]

Ermm, is this going to be incorporated into an order or are they going to pay up and you withdraw. I'd favour an order. These informal arrangements have a habit of fouling up afterwards. Get the terms agreed and get an order that incorporates them. They don't have to turn up on 20th but you should and show the Judge the agreed terms so they can be included.

[Penfold92]

Hi Edz,

 

You saw the email he sent me above. So I will only call and adjourn the hearing or you think I should go and say they have agreed to pay and these are the terms...

 

Penfold

[Edz11]

As he is probably reading this anyway...

 

It makes sense to get the terms incorporated into an order. Just get them agreed before and then everyone is happy.

 

If you go along to the Court and say that "the defendant is not going to show up as we have agreed settlement terms" "could the terms be incorporated ito an order please" you'll get one. It deals with the case permanently.

 

So tell him who is reading this that you'll be applying for an order that includes the settlement terms.

[itsamomentintime]

I agree. The order should include the terms that you have agreed.

 

Congratulations BTW!!!

[Penfold92]

LOL,

 

But I have already said that I will not accept any terms until payment has been processed. I do take your point on board and will see if they cooperate on this.

 

Thanks,

 

Penfold

[Edz11]

Don't bother about payment before the terms are agreed. You want the order!!!

[Penfold92]

Ok end result is they have arranged for me to pick up the bankers draft tomorrow morning from my local Barclays!

 

Penfold

Edited June 14, 2008 by Penfold92