As I understand things the Claimant is not the party with whom you entered into a Consumer Credit Agreement. The creditor to the agreement is Fortis UK Lease Retail Limited. That is evident from the agreement. The Claimant is described as Fortis Lease UK Limited (company number 01881042). After straining my eyes, I think this company number appears on the covering letter. To be absolutely certain, I've checked the company registration number of the company 01881042 and it does not have a previous name of Fortis UK Lease Retail Limited. On that basis the Claimant has no right to sue you unless the Claimant acquired its right by virtue of an assignment. If it claims such a right it would be a pre-condition of that right that there had been served upon you a notice of that assignment. Further I would expect to see reference to the assignment and to the delivery of notice of assignment in the Particulars of Claim. Moreover, after service of a Defence I would expect to see something similar advanced in a Reply. Nothing of that kind is mentioned there. I am concerned the DN and especially the TN were issued by Fortis Lease UK Limited. As mentioned, Fortis Lease UK Limited are not a party to the agreement and incapable of terminating the agreement unless prior to termination there was an assignment and delivery of notice to you of that assignment. It may be possible to contend in any later proceedings that there was some form of agency whereby the DN and TN were notices delivered under instructions provided by Fortis UK Lease Retail Limited. I would keep these issues very close to your chest and spring them at the hearing next month. The directions for the hearing will almost certainly direct that Fortis are to supply to you copies of the documents they intend to rely on. When these arrive let us know. On the basis you have been sued by a disinterested party, all other defences fall by the wayside in the sense they are unnecessary for success. I have read you have attacked the interest claim for section 69 interest. It is right that the claim should be attacked because the right to section 69 interest is a discretionary right in the absence of a contractual right. Without reading the entire agreement I would imagine a term is incorporated whereby interest on late payments may be claimed. If so, the discretionary right fails and since there is no claim to contractual interest in the Particulars of Claim there is no right claimed to be entitled to interest at all. x20

I'm having difficulty in understanding how a DN can be shown to be fraudulent and I'm having equal difficulty in appreciating how the presence of a DN, even a fraudulent one if there be such a thing, operated to induce you to compromise the case. A little more about the facts surrounding the DN you rely on wouldn't go amiss. x20

I just read your report of the hearing. What an absolutely smashing read! Sincere congratulations on the result you achieved and well done to all those who helped you. x20

Mini, Calling the court up on the 'phone is no good. You need to make a formal written application. Have a look at Form N245. It's the form of application you would need to deliver to the court and contains all the information you would need to supply in your application. There will be a court fee though. You could call the court to find out how much that would be. Any queries on compleitng the form, let us know. x20

Quickly, because I have little time at this moment, there is provision in the Gas Code and Electrictiy Code and given statutory authority (I think through The Gas Act and The Utilities 'somethingorother' Act) for what is known as a 'deemed contract'. A contract is deemed to arise in the absence of documentary evidence showing the existence of a formal contract where there is a supply and a user. The user will be deemed to have contracted for the supply and be liable for the price of it. If SP's claim for money is based upon a deemed contract and you are indeed a user, there may be little scope for argument about whether as a user, you are liable to pay. The only probable argument would concern how much you used. If you are a user but you take issue with the value of the claim you should raise that as a genuine issue. If you are not a user then that of itself is a genuinine issue. Again if this has not already been done, notify SP that the claim is disputed on these grounds. It is a pre-requisite for the grant of a warrant that the applicant declares there is no reason known to him, like an unresolved dispute, why the warrant application should be refused. The existence of a genuine dispute operates to prevent an applicant for the issue of a warrant from declaring that there is not a genuine issue. If a dispute is declared to exist but in truth the dispute has been resolved so that no ordinay man might fairly conclude that a genuinie issue really exists, that sort of dispute will be ignored. Likewise a person who obtains a warrant issued on his false testimony that there is no genuine issue when in truth there is one,commits a contempt of court or worse. In my view, your ordinarty bot at SP is unlikely to take that step. Try googling 'gas deemed contract' and that should point you in the right direction. If that doesn't draw anything helpful out let us know. If you have any more queries, again, let us know. x20

But they admit they don't have it already! x20

Vienna, The fee for enforcing an award is the fee the court will require for the registration of an award made by one of a range of tribunals we have in this country, as a judgment of the county court. Let's say you are awarded £5,000.00 by an employment tribunal but it's not paid. You would fill out a form as evidence of the award and pay the £35.00 fee to the court to have the employment tribunal's award made a judgment of the county court. So now you've got a judgment of the county court and access to all of the enforcement powers the county court provides. THese powers are not available through the tribunals. Unfortunately you'd need another £100.00 to send the bailiff around. Hope this explains the difference. x20

Stroke, The position as I understand it, is that a creditor is unable to enforce an agreement whilst it is in default of a request made under Consumer Credit Act 1974 section 77/78; that is, a request made during the currency of the agreement. If the request was made after termination of the agreement then section 77/78 would not operate. They are also of course, unable to enforce the agreement once the limitation period has expired. It would appear Citi and 1st Credit's reluctance to pursue the claim is rooted in their inability to to produce the relevant agreement. That would appear to be an advantage to you. Whereas a prospective litigant may make application to the court for disclosure in the circumstances set out at CPR 31.16, I'm not yet clear why you would want to do that. Presumably the litigation you threaten is for an award of damages for the wrongful publication of information damaging to your credit reputation. I'm not clear how having the agreement assists in establishing your claim to damages. On the contrtry, doesn't the creditor by having the agreement to hand, assist them in overcoming the restraints of section 77/78 and generally pursuing you in a way in which they would be unable to if they did not have the agreement to hand? x20

Lynne I said this a couple of hours ago on anothe thread in relation to the court's discretionary power to grant a charging order. Some of the stuff I said may be helpful to you. If you have any questions after reading my post number 6, let us know. x20

Permission to bring a second action after discontiunnace of an ealier one ir requiried as Michael has pointed out, under CPR 38. There's no time limit within which an application might be made to bring the second action, apart from Limitation Act considerations and objections which might be made as to how the passage of time may have affected the ability of the court to try the case justly (a witness has died for example) Further, you might gain some assistance from reading this thread and exploring the law regarding issue or cause of action estoppel. If you have a particular case or set of facts let me know and I can give it some more thought. Otherise CPR 38, res judicata etc will apply. x20

A consent order can be set aside but on limited grounds. Essentially a consent order is the court's approval of a compromise agreement reached between the litigants. It can be set aside on the same or similar grounds on which a contract can be avoided. For example, if you entered into a compromise subsequently approved by the court but your agreement was achieved through the fraud of another party, the court would be able to set aside the consent order subject of course to satsifactory proof. x20

Yep that's fine. All I'd add is that you ask them to confirm by return of email that they arranging to deliver a cheque. If the other side are edgy about anything they'll be sure to let you know. x20

Mini, A claim for money was issued out of the county court, wasn't defended and therefore, resulted in the court awarding judgment to the creditor. Notice of the judgment is what arrived this morning. It explains that the amount mentioned in the judgment is now payable. It may not say this but the present posiion is that if the debt is not paid the creditor will be able to enforce payment. What to do? If there's a defence to the claim, the thing to do is to apply to the court to set aside the judgment. That is achieved by completing an application notice in which you explain the legal nauture of the defence (goods defective or whatever) and the reason why the claim was not answered in the first place. If you believe you have a defence, explain what that defence is and we can look at it in more detail and give you further guidance. If as I suspect you do not have a defence (for otherwise there would have been no reason to explain the failure to pay by reference to your income and expenditure etc) then the thing to do is apply to the court to vary the order for the payment of the debt at once in to one which enables you to pay by affordable instalments. If this alternative is more to your liking say so and we can give more guidance about the procedure to gain an instalment order. x20

That message is fine. There is no attempt to shaft you in my opinion. you may tell them that papers have not been lodged at court and all further steps in the detailed assessment proceedings will be stayed conditional upon receipt of the cheque they promise to provide you forthwith. If you respond today, you should have the cheque by the weekend. x20

The interim charging order was granted on 2 June. The variation order was made on 4 August 2009. The variation provided for the judgment debt to be paid at the rate of £20.00 pcm. The court has jurisdiction to make a final charging order despite the making of an instalment order in the period between the making of the interim order and the hearing at which consideration is given to the making of a final order: Ropaigealach v Allied Irish Bank plc [2001] EWCA Civ 1790. In my view the most important aspect to bear in mind is that the conversion of an interim order into a final one is in the discretion of the court. In exercising discretion the court is bound to pay regard to section 1(5) of the Charging Orders Act 1979, which provides: "In deciding whether to make a charging order the court shall consider all the circumstances of the case and, in particular, any evidence before it as to (a) the personal circumstances of the debtor, and (b) whether any other creditor of the debtor would be likely to be unduly prejudiced by the making of the order." If you were able to show for example, that one or more other creditors would be prejudiced that would be something the court ought to weigh in the balance. If the equity in the house is say £30,000.00, and you have debts greater than this sum, then the creditor seeking the charge would be placed in a superior position by reason of his achiving security for the judgment to the disadvantage of one or more of the other creditors. That is real prejujdice to those other creditors, though I have to say that if an other creditor is concerned about being prejudiced that other creditor ought to voice his own objections. In an application for a charging order the creditor is bound to list all other creditors of the debtor which are known to him. If you know of others besides you ought to take a list of those other creditors along to court. The court may then adjourn the hearing to enable those other creditors to be informed of their right to raise objections at the next hearing. If this argument is unavailable I'd still argue the variation is nonetheless something which the court may pay regard to in exercising its discretion. The court may for example adjourn the final hearing fo so long as the instalments due under the variation order are met. Or direct that the creditor be prohibited from further proceedings to enforce the charge for so long as the instalments are met. x20

Gooner, It is rare to recover the entire claim and 80% of the total applied for is a good offer. I'd accept the offer by writing back confirming acceptance (don't mark your acceptance letter 'without prejudice') and demand a cheque in 7 days failing which say you will apply to the court for a final costs certificate under CPR 47.10. x20

So this judgment arose owing to your absence at a court hearing and is not a default judgment under CPR 12. You do not say whether you entered a written defence before the hearing nor what type of hearing it was (full blown trial, small claims final hearing, return of goods hearing …) when the hearing was and when you made your application to set aside nor briefly, what the case was about and what you put in your application notice. Knowing this would enable us to be more precise in the advice we provide. However, I can say that .. if it was a small claims hearing (as they often are), then CPR 27.11 says (2) A party who applies for an order setting aside a judgment under this rule must make the application not more than 14 days after the day on which notice of the judgment was served on him. (3) The court may grant an application under paragraph (2) only if the applicant— (a) had a good reason for not attending or being represented at the hearing or giving written notice to the court under rule 27.9 (1); and (b) has a reasonable prospect of success at the hearing If the judgment was after trial then CPR 39.3 says as follows: (3) Where a party does not attend and the court gives judgment or makes an order against him, the party who failed to attend may apply for the judgment or order to be set aside (4) An application under .. paragraph (3) must be supported by evidence. (5) Where an application is made under paragraph .. (3) by a party who failed to attend the trial, the court may grant the application only if the applicant (a) acted promptly when he found out that the court had exercised its power to strike out or to enter judgment or make an order against him; (b) had a good reason for not attending the trial; and © has a reasonable prospect of success at the trial In other words, you must act to set aside swiftly (ideally within 14 days of the judgment), your reason for failing to attend the hearing must be what the court deems to be a good one (not foolish you will note) and in addition, you must show you have reasonable prospects of success if the court granted your application and ordered a re-hearing. If it was after some other type of hearing I would expect the same criteria to apply. x20

I believe it should read: (2) Interest under section 69 of the County Courts Act 1984 at the rate of 8% per annum from the date of payment of the Charge to date in the sum of £46.29 and at the daily rate of £0.046 until judgment or sooner payment. x20

Those directions have long since and are still cranky. Only a moron proposes directions which result in his defence being struck out. I mean to say .. If the Defendant fails to comply with this order, the Defence will be struck out without further order. Eh? Is that for real?? x20

If it cost you a heap of money, sounds like you used a lawyer to achieve the setting aside of thr statutory demand. In which event the court order on setting aside ought to have included provision that the costs of the set aside should be paid by the opposition. If so, get those costs paid. If not, then the case is at an end. Sadly, there is no allowance for the sleepness nights and the general worry of litigation. The courts approach (ie the approasch that counts) is that a litigant has nothing to fear from being a party to litigation before the courts of England and Wales, because the quality of justice is premier league and second to none. In short, there was never anything to worry about. Lying in the scenario of legal proceedings is of course a serious matter. That's why lying is taken up as a public rather than a private matter. The first determiner is the judge trying the case. If he is persuaded he has heard false evidence from a witness and wants to have that witness dealt with, he refers the case to the Attorney-General (A-G). If he doesn't do that you will have the up hill struggle of trying to persuade the A-G that it is in the public interest to prosecute the offender. Ultimately, the decision is in the hands of the A-G, not you. x20

It's not so much a matter of law as a matter of logic. A contract can be terminated a maximum of once. Which is precisely the same number of times that a man can be murdered. Once the contract is 'over', that's it. A contract which has been terminated is incapable of any further termination. There just ain't nothing left to terminate. As for the amount owing under the agreement at the date of termination, that will be depend upon whether the default notice was in prescribed form and what provision there was in the agreement for the addition of recovery charges etc. If it's £600.00 flat, that smells heavily of a penalty charge which the court would be likely to rule as irrecoverable. On the matter of 'arrears' only, if I read you right, I think the legislation you are looking for is Consumer Credit Act 1974 section 87(1). If you were thinking of something else, let me know. x20

Shadow said it. If you've been awarded invalidity benefit and obviously therefore, been medically assessed as entitled to it, that would seem to me to bury the need for the disclosure of a 3 year medical history. All they need is evidence that you are in receipt of the benefit. x20

I do not believe your creditor has any legal right to the production of a report from your GP on your medical history or on anything else for that matter. These things are confidential. However, if your creditor believes (rightly or wrongly, it doesn't matter) that such information is necessary in order to assess the reasonableness of your offer they are free to ask for it, just as much as you are free to tell them to get lost. As you say, you have nothing to hide, so if you adopt a position where you decline the creditor's request the creditor may conclude that you do have something to hide in which event, your reluctance to give full and frank disclosure of something your creditor believes is necessary in order to make an assessment, may result in your offer being rejected. It may be rejected after disclosure of the medical report as well of course. Ultimately whether to agree to disclose a report is a matter entirely for you after weighing up the pros and cons. x20

Just complete the PF85A and send that in to the court. Don't send it anywhere else and there's nothing else required to go with it. Once it has gone, just wait for the judgment to issue. You will be sent a sealed copy. The judgment for costs will constitute your right to proceed to detailed assessment. x20

So the email was produced to resist your application for the striking out of the possession claim against you. Your application failed and the claim continues. If the value of the email related to the strike out application and in some way and from your point of view, with it being declared a forgery, in the context of the strike out application the value of the email vanished on the decision to refuse the strike out application. I say this on the basis that the issues which remain to be decided at trial are not dependent upon the content of or anything else concerning the email. If I am right, whereas you continue to have a right to inspect (and that includes a right to a physical inspection as pt most importantly mentions), the right is limited to documents which have been disclosed. If the opponent does not disclose the back ups or whatever electronic documents may be in existence surrounding the creation and delivery (or non-delivery) of this email, it will be necessary for you to obtain an order for specific disclosure of back ups etc in order to obtain a right of inspection. Any application for specific disclosure will be decided in terms of fairness, proportionality etc after having paid regard to the issues in the case - to the big picture. Having your opponent's lawyer struck off does not assist in the deciding of the big picture. Your opponent may instruct somebody ele. In which case the big picture changes not one jot. This case's big picture is concerned with whether or not your opponent's security should be enforced or not. It is to that fundamental issue that I suggest you concentrate your efforts. I would pull back from seeking to establish fraud on the part of an officer of the court who represented my opponent, especially if deciding that point had very little to do with the fundamental issue in the case. I could go on, but I hope I am making plain that what I am talking about is scoring proper goals. It's not about winning a soppy throw in. x20