I wrote to them saying that the 'application form' was unenforceable and that they should take the matter up with MBNA because they had been sold a pup ;-) This is how they responded:

Here is a scan of the BOS application form that Hilisdens forwarded to me at last year:- It doesn't appear to contain any prescribed terms at all. If memory serves, it was a magazine insert and there might have been another part to it, bit it is not shown on the reverse of the document supplied - that is an underwriting sheet.

I have today received what I believe could be considered a letter before action from Aplins solicitors acting for Hilisden Securities. This is the latest correspondence in respect of MBNA Credit Card account sold to Hillisdens last March. This account was originally opened with Bank of Scotland in 2001 and sold to MBNA on 2005. The account has been in dispute with MBNA since August 2008 as they were unable to provide a copy of the original BOS agreement. Hilisdens did eventually track down a copy of the BOS application form, but this (IMHO) is hopelessly unenforceable and I wrote to tell them so. They wrote back saying that they were happy to rely on it and I've not contacted them since. In the last six months or so I have started getting regular threatograms from DLC as the case has worked through their standard collection strategy. I've ignored all of these, but I think they may now be close to issuing a claim through Northampton CC in the hope of an admission/default judgement so they can apply for a charging order. I'm wondering how best to handle this. Should I sit tight and wait for a claim or should I go on the attack now and remind them that I know the agreement is unenforceable and that I'm more than happy to defend?

Unfortunately, letsgetitsorted's case is a small claim, so cohens wernt trying it on by citing CPR 27.14. Good point though, I wouldn't take their word for anything.

Although I hate to say it, Cohens may well be correct in their assertion that you are not entitled to claim costs because it is a Small Claim case. PART 27 - THE SMALL CLAIMS TRACK - Ministry of Justice Had it been a Fast Track case, then you would have been entitled to all of your costs effectively by default. However, the costs allowable in Small Claims are strictly limited and I think the only way around this is to prove that Cohens acted unreasonably. I think most of us here would agree that Cohens can be highly unreasonable, but convincing a judge of this may not be straightforward.

What track was this claim assigned to?

CPR 27.14 refers to costs in Small Claims. Costs in this track are strictly limited - you cant ordinarily claim for work you have done, only things like court fees etc. To claim anything else, you would need to prove that the other party acted unreasonably. After the AQ, did you get a notice from the court stating which track it had been assigned to? If it was for less than £5K then its likely to have been Small Claims, but its for judge to decide.

The Mrs is away too, so I've no adult supervision... and I have a day off booked for Monday. Its fair to say that I might just have the opportunity to fit in a few beers!

Just got off the phone with the court - HC have discontinued and the trial has been de-listed! Huge thanks to everyone who has helped me through this - CAG is an amazing resource. Its been one of the most stressful things I've ever done, but its also been a real education. If it wasn't for the high-stakes I think I could have actually enjoyed it! This obviously isn't the end of the matter as there are costs to be claimed. For the time being though, I'm just going to relax and maybe celebrate a little. Actually, I'm working from home today, so I should probably get back to doing some of what I'm being paid for! Thanks again for all the advice, support, and indeed patience in dealing with a first time LiP.

Nothing in the post this morning. Hope HC arent playing games

I'm preparing a bill of cost by going back through my case file and allocating time and disbursements against everything I make it about 122 hours without counting work that hasnt had any output (i.e. preparing for the trial). This may seem like a lot, but I have spent an inordinate amount of my spare time trawling CAG, drafting and re-drafting documents. I know that LiP costs cant exceed 2/3 of what a solicitor would have charged. If HC query this, can I remind them of the letter they sent to me that advised their "...estimated costs to proceed in this case are in the region of £5000"? Disbursements for postage run to about £35. I don't really know what to charge for stationery, printing etc. Does anybody have an example of how to lay out a Bill of Costs.

Telephoned HC this afternoon and asked them why the needed my consent in order to withdraw. The just said that if I wasn't going to send it back then they would discontinue anyway. The said the notice would be going out this afternoon. Will check with the court tomorrow.

The trial is next Monday. I suspect they may be planning to discontinue by the end of this week anyway unless they get that consent order back from me.

HC must be reading this thread! Today I have recived a letter saying they have been advised to withdraw the claim and have enclosed a consent order. Here is the text of the letter and draft order: I note that the consent order hasnt been signed by the Claimant. It also doesnt quite make sense - you cant stay the action and withdraw the claim. Also, how does this work - If I sign it, what is to stop them 'forgetting' to file it? I'm fully prepared to take this to trial and present HC with a hefty bill of costs. However, I want to be resonable and would be more than happy to conclude this now.

I've cited cases in the defence - Woodchester v Swain for the DN & Harrison v Burke for the NoA. I've also cited statutes & regs, and quoted sections of text where appropriate. To be honest, I'm not at all clear about what should go into a bundle. Do I need to obtain copies of the full judgements for all case law and full copies of the relevant statutes/regulations etc? I'm sending off my updated witness statement tomorrow, as ordered. Chohens still haven't responded to my amended defence, so I'm asking that any subsequent response is set-aside on the basis that they have missed the deadline given by the judge.

Thanks GD In my case:- The DN doesn't allow sufficient time to remedy The account was assigned before the remedy date No proof of service for the NoA DoA is dated months before the account was assigned and refers to an "agreement for the continuous assignment of accounts". Also, the agreement is over two documents - nothing to link them. They say they don't have the original and haven't properly adduced hearsay. I didn't make a counterclaim though - couldn't come up with strong arguments to support one and couldn't really afford the fee anyway.

Congrats on your result GD I'm due to go to trial with Cohens in just over two weeks. They have failed to reply to my amended defence and have just made me an offer to settle by consent for just over £2K. This smacks of desperation to me, but I'm willing to offer them the same outcome the offered you. Could you let me know how the offer was made and who drafted the order. If you could post up the de-personalised text of the order that would be great. Once again, congratulations on a great result.

Back on the 10th of Feb, the judge ordered, inter-alia: "There be leave to the Claimant (if so advised) to file and serve a reply to the amended defence and defence to the amended counterclaim within 14 days." I've not received any such response. However, I have just received a Without Prejudice (save as to costs) offer to settle by consent. This is half what they wanted last time, but still over £2K. I belive I have a strong defence and I think that their lack of any response indicates they are well aware of this. I'm thinking of responding with what I believe is known as a "drop hands" settlement i.e. they drop the claim and we both agree to pay our own costs. I think this is very fair as I already have an order for costs from last year that I haven't yet claimed. Does anyone have an idea or how best to pitch such an offer - template letters etc? Also, should I draft the consent order or is it reasonable for me to ask them to do it (I know they have done one recently anyway)?

No, their solicitor was there. I posted the text of the order in #159 - id be interested in what you make of point 2 particularly.

Here is a summary of what I'm thinking I should write to the court: 1. Apologise to the court for missing the trial hearing and thank the judge for allowing the trial to be re-listed. 2. Explain that, as an LiP, I wasn't aware that the trial would go ahead because: a. I had not heard from the court after the unless order issued for non-filing of the Claimants pre-trial checklist b. I had not, and still have not, been served with the Claimant's trial bundle and that I have not received a response to the amended defence. c. I had assumed that no response to the amended defence meant that the claimant had discontinued/withdrawn their claim. 3. That I will provide an updated witness statement as ordered, but that there are no further material facts for me to attest to other than the claimants procedural non-compliance since the the original WS was filed. Most of which is already pleaded in the amended defence. 4. Reiterate that the Claimant's witness statement and documentation was served late (posted 2 days after date of service as ordered); that there was no reply to the amended defence, and that there was no trial bundle. 5. Consequently, I respectfully request that the claim should be struck out if the claimant fails to serve a pre-trial bundle and response to the amended defence at least 14 days before the trial. Otherwise I shall be significantly disadvantaged at trial. Any other ideas? Should I copy this to the Claimant?

Fair point - walls have ears and all that. I think they will have managed to piece it together by now though. I usually try to avoid putting references, judges names, exact figures and dates just so they cant conclusively link the thread to the case.

right, here is the exact wording of the order: -------------- Before Deputy District Judge Upon hearing the Solicitor for the Claimant and the Defendant not attending. IT IS ORDERED THAT 1. The trial be relisted for XX March 2010. 2. There be leave to the Claimant (if so advised) to file and serve a reply to the amended defence and defence to the amended counterclaim within 14 days. 3. The defendant shall file and serve his witness statement not less than 14 days prior to the trial. 4. Costs of today be reserved to the trial. ----------------- Point 2 is quite strange - "if so advised"??? Also, I didn't actually file a counterclaim - couldn't really work out the particulars and didn't have £150 to pay for it anyway. I also filed a WS ages ago - not much to add to that. No mention of the missing trial bundle. I think I will write to the court apologising for not attending and making a bit of a stink about the trial bundle.

I think the assignment process is something that we sould be looking into. In my case, the deed of assignment was dated months before my particular account was assigned - they called it an agreeemt for 'continuous assignment of accounts', whatever that means. I guess that the assignee agrees in advance what types of accounts it will accept and these accounts are routinely assigned over the period of the deal. I know a little about securitisation deals (I work in IT for a high street bank) and this kind of arrangement seems somewhat similar to a securitisation pool i.e the assignee agrees the criteria, but doest actually get to pick and choose individual accounts. The difference being that securitised accounts are, at the outset at least, live running accounts. Its the security (i.e . agreement) being assigned, rather than a due debt. I may be talking out of my arse, but the whole arrangement seems dodgey to me. I don't know enough about property law to understand how it works.

I wonder about the set up at cohens. Their litigation seems to be conducted from within the same offices as CL Finance/Lewis Group etc/ I don't think they have any in-house solicitors at all - just 'legal assistants' with a Cohen & Co letterhead. I assume this is why they prefer to instruct a local junior barrister instead of sending someone who might actually have some background in the case. Not that I'm complaining, it just seems like a haphazard way to conduct such a business.

Indeed. Just mentally preparing myself in case it doesn't go my way! No Cohens didn't serve a bundle. I guess their guy didn't have anything to show the judge in Court either - hence their being ordered to file a response to my defence. All in all, I think an unmitigated disaster has been commuted to a missed opportunity!