Jump to content

hmmh1978

Registered Users

Change your profile picture
  • Posts

    47
  • Joined

  • Last visited

Everything posted by hmmh1978

  1. A number of things come to mind with reading your posts: 1.) As this was a year ago, permission to appeal being granted is practically impossible but as with most things, never say never. 2.) When the judge asked you if you owed the money, you wholeheartedly said yes. I am inferring that you did not qualify that with "but we agreed that I will pay later because...". He asked you twice and you stated yes you owed the money twice. In my mind that is a full admission and means you have decided to abandon the counter claim. That might not be your intention but that is how it comes across as. 3.) The order does not state that your counter claim will be heard in the lower court, it is for the costs and interest on the judgment to be heard as your counter claim was dispensed with when you admitted full liability with no qualifiers. 4.) Part of your counter claim did get heard in the lower court (FT) and that got dismissed in itself. A set aside is not possible because this needs to be dealt with by an appeal. Which decision are you appealing, the first hearing or the final hearing in the lower court? I see too many hurdles for you overcome to even get an appeal hearing.
  2. I still do not know what the general judgment was or what the outcome is. You need to appeal and not set aside. An appeal is fraught with danger and cost. As you did not ask for permission to appeal in that hearing, you will have to ask for permission and do this within 21 days. You may ask for an extension but it has to be for a good reason, such as a delay in obtaining the transcript, etc. As this was small claims, you will need the following: - Copy of order being appealed; and - Draft order; and - Evidence; and - N164 I am not sure how much they owe but you have to have a point of when it is uneconomical to carry on. Going to court is just like any other commercial undertaking, it is based on a return. Look at this case with a clinical mindset and not an emotional one. Good luck.
  3. It goes without saying that you need legal advice as this is an area of common law which is prone to complications. 1.) You stated that you did not sign a contract however when doing business online, was there no contract hidden somewhere that you consented to by a tick box? If yes, you need to go through the T&Cs in detail. 2.) Did Company 1 (bailee) get consent or authorisation from you that it will be stored with Company 2 (sub-bailee)? 3.) Were you even aware of the sub-bailee's existence before you engaged the bailee's services? If the answer to questions 2 and 3 are an emphatic "NO", then you are so far on good ground with regards to your rights. A few points to raise: 1.) A bailee who keeps a chattel to enforce his lien on it cannot ordinarily charge for keeping it. 2.) A lien confers no power to sell the chattel. If they were to sell it, they would be liable under the Tort of Conversion. 3.) At common law, the bailee is not an agent of the bailor. If the bailee went out of business due to debts, was there an administrator appointed to deal with the company's affairs until it was struck off? Is the company not active according to Companies House?
  4. You need a separate draft/Order sheet. Never ever dispense with an order except for the simplest of cases and this is not defined as a simple case. You have your claim, the counter claim and costs to consider. #### START OF ORDER #### In the ......... county court Claim No. ... Before District Judge ……… Dated ……… 20… Claimant A. B. and Defendant C. D. draft/ORDER UPON reading the Claimant’s Application Notice dated [ ] and the witness statements filed by the parties AND UPON hearing the Claimant and Counsel for the Defendant IT IS ORDERED THAT: 1. The Claimant be granted summary judgment on the whole of the claim and the counter claim by the Defendant struck out. 2. The Defendant do pay to the Claimant forthwith the sum of £[ ] in respect of the claim. 3. The Defendant do pay the Claimant’s costs of the claim, in the sum of £[ ] within 14 days. #### END OF ORDER #### Fill in the gaps where ..... or [ ] is present. Do not forget to file a N260 as well. The following are assumed: 1.) That in the hearing you will represent yourself; 2.) That the other side will be represented by counsel; If any are not true, just amend the order to suit. Good luck.
  5. I know that it is frustating but sometimes ethics and the law do not walk hand in hand but it tries via "public policy". If your contract was online and it was "signed" via a tick box or equivalent by the parents, then you have a contract with the parents and not the minor. If your contract online was "signed" by the child via a tick box or equivalent, then it is irrelevant who paid for the photos. For the latter, I would not contact the parents about this debt due to that being a potential breach of the Data Protection Act 1998, and as a "Data Controller", registered with the ICO or otherwise, you are liable for this "data breach" if a complaint is made against you by either party.
  6. I am not sure when you signed this but I am assuming it was after 31 May 2005 for the purposes of the Consumer Credit (Agreements) (Amendment) Regulations which came into force on that day. This amended the Consumer Credit (Agreements) Regulations 1983 so I needed to draw a line on which regulation to work under. If you did sign it before the 31 May 2005, please let me know. Seems that your agreement was unexecuted when you received it and then when you signed it, it was still unexecuted. It became executed once you sent it back to the claimant and they signed it and communicated it to you. This is termed a bilateral credit agreement. You are going to have to divulge that you did sign an agreement around that time for some of the finer aspects of the defence to work. These are my ramblings that I wrote straight down with no filtering... Some aspects, especially the ones regarding enforceability need to be double checked (no typos) but I am sure the others will correct something if they see it as wrong. Normally, the defence would be cut down to only show the strongest hand however I tried to make it inclusive so the other forum regulars can help and see the bigger picture in case I am missing something. There are some points missing such as: 1.) Default notice; 2.) PPI set off; I trust the other knowledgeable regulars here will help you with the rest. Good luck.
  7. As your agreement was made before 6 April 2007, if there were any defects with it, then the court has no power to enforce. Apart from the NoA issue, Default Notice and breach of s 67, there are also the possible defects mentioned: - credit misstated as it included charges for credit; - failure to give notice of cancellation rights; - defect in notice of cancellation rights; Did you have PPI by the way? I just checked and see that the date of the claim was the 14th May so you have until next week to formulate a defence so there is no need to panic just yet. I would call the solicitors and ask them if they received your CPR 31.14 request? Also, whether they would consent to an extension for the defence to be filed by "28 days" (CPR 15.5) whilst they respond to your CPR 31.14 request. Advise them that the alternative is an application to be made which would deal with disclosure AND the extension of time and that because they did not comply with pre-action protocol in terms of divulging all the paper work required for the claim, there may be an adverse costs order against them. If they do agree to the extension, ask them to email you their agreement and to send it via snail mail as well. Also state that if you do not get the email by tomorrow 12:00pm, you will be filing an application for their compliance. I am not going to be back online until this evening so if you get stuck, there are enough knowledgeable people here to help you through however right now, you should be contacting the solicitors and making sure they are aware of their obligations. Ps. Forgot to add that the defences mentioned previously may or may not suit your circumstances. It all depends on what you remember, what paperwork you have in your possession and the paper work received from the claimaint, if any.
  8. Flaming... Moi? Monsieur, you judge me so harshly! My posts may have a slight acerbic tone but a fully developed flame they are not.
  9. Unless the minor re-affirms the contract when they reach majority and have not repudiated the contract in the first place.
  10. What do you remember about this loan? Do you have any paperwork? Did you sign an agreement and if yes, did it comply with the requirements of CCA 1974? Did you receive a default notice? Did you receive statements about the account? Look at the information you do have and formulate a response based on that.
  11. andyorch, may I suggest that you purchase the White Book off ebay and look up the section on "Holding Defences" and why they are a non-starter. It is under CPR r. 15.5. I would copy the paragraph here however that would have copyright implications. To summarise: Defendant cannot get more time by filing a holding defence. Holding defence does not comply with CPR r. 16. Such a defence is liable for a strike out application under CPR r. 3.4. A defence based on what is currently known is the best way forward, not a holding defence, even if that is scant. A line about not being able to enforce due to breach of s 77 is a start. Was a default notice received to the best of your memory? Did you sign an agreement to the best of your recollection? A defence is not solely based on what you get from the claimants but is also reliant on your own experience and the paper work you have in your possession. I will step out of this thread now as I only wanted to intervene on a matter of importance before it becomes mainstream.
  12. Ganymede is absolutely right! You cannot sue the parents under the contract you have with a minor because they are NOT guarantors. To do so would leave you liable for a huge costs application because as soon as that claim is lodged, a strike out application or even summary judgment could be filed before allocation thus reneging fixed costs. You have two options, file a claim against the minor (not using MCOL) and argue that the service you provided is defined as “necessaries" OR wait until the minor reaches age (s. 1 of the Family Law Reform Act 1969 reduced the age from 21 at common law to 18) and ensure that they ratify the contract made by them during their minority, then it will be binding on them. Ratification can be express or implied. If the minor repudiates the contract whilst they are still a minor or shortly after reaching majority, you have no recourse but you may try but you have been forewarned about suing the parents. Please seek professional legal advice before you lodge a claim as it may be the best thing you ever did.
  13. That is great news about you seeing the solicitor. Be sure to question him/her about the "variation of a costs order" and not a variation of an instalment order or stay of execution. That is particularly important because the variation of a costs order is not as well documented as you stated. The County Court Rules (CCR) have some pertinent information however it is in very vague detail. Be sure to press him/her for evidence of what he/she says so you can go back and research it and don't be shy to ask for a letter confirming everything he/she said. Ps. Make sure they are a solicitor and not a law student or graduate supervised by a solicitor.
  14. The costs order is not set to instalments. It is immediately payable within 14 days (CPR r. 44.8) if no other date is set. I am trying to understand how the N245 comes into effect in this instance. Not to step on anyone's toes here however I would contact the solicitors and ask if they would accept instalments. If they don't want to entertain the thought, then I would submit a N244 (with hearing), draft order, witness statement, I&E form, to get the court to order an instalment order or even to postpone the costs order if there is a counter-claim or a right of set off. In practice, the use of the wrong form is not a show stopper as the court has the power to remedy errors in procedure.
  15. Summary assessment under CPR r. 43.3 is when the judge in a hearing assesses the cost of the case if practical. Usually involves all parties filing a N260. Detailed assessment as per CPR r. 43.4 is when the amount of costs is decided by a  cost officer. The costs officer means a costs judge, a district judge and an authorised court officer as per CPR r. 43.2(1)©.
  16. You may do what you want. However I have to correct you for the record and suggest you read the whole of the CPR before you say something is in line with the CPR as a CPR rule is not an island. First of all, you have to read just the first rule to see the overriding objective: http://www.justice.gov.uk/courts/procedure-rules/civil/rules/part01 ... and as part of that, to keep the points of contention down and to keep expense/time wasted to a minimum, admission to what ought to be admitted is not only good practice but is supposed to be a rule. Also, read CPR part 16.5(4): (4) Where the claim includes a money claim, a defendant shall be taken to require that any allegation relating to the amount of money claimed be proved unless he expressly admits the allegation. So it is already implied that the claimant will have to prove their case with regards to money owed as part of that rule. No one admits liability by admitting to opening an account. It is obvious you opened an account and had use of it. You are supposed to admit those facts for which there is no point in denying. By denying the obvious, you are not doing yourself any favours and leave yourself open to a Part 18 request by the claimant if they are on the ball and for which there is no hiding from. This Part 18 request if refused, can be enforced by an order of the court with you stumping the costs for this. Tactically, there is more to a "Holding Defence" than meets the eye. As I said, good luck and I hope it works out for you and I only meant to correct a wrong which I perceived before it can happen.
  17. Seeing that you admitted liability and offered him recompense, I would make him an offer as a Part 36 offer to cover your back with regards to costs. This is purely tactical. I will not give you any advice on the amount to offer him however think about how much it would have cost to purchase a license to use the image, then put on top how much you would pay to not have any headaches about this any more and frame it in form N242A: http://hmctscourtfinder.justice.gov.uk/courtfinder/forms/n242a-eng.pdf This is the official form for framing Part 36 offers which ensures that there are no technical breaches with regards to format, etc. which would render it a non-Part 36 offer. I would read up on CPR part 36 and FYI, there are flowcharts out there which show you the process step by step and what the repercussions are of undertaking such a move but the thing about a CPR part 36 offer is that it should not be low enough to render it useless.
  18. Marloes, do you not admit to having opened an account with Lloyds? That is the banality of the holding defence. It is not a "defence in law" as there are some things which you cannot deny. The holding defence is contrary to CPR 16.5 which is why I mentioned CPR 16 in the first place. However I wish you luck with this and hope whatever happens, you come out of this unscathed. Good luck.
  19. Ok, I was under the impression that he didn't get the extension which is why I put it down as a FYI for next time. The point still stands as to the defence: You are arguing over semantics. It is quite clear what is meant and technically speaking, an overdraft can be defaulted on if a request for payment is made and none is provided. Exactly the same way if a request for immediate payment of a loan is made due to a breach or with notice and payment is not made, a "default" occurs. This is conjecture on your part but again it is quite plain what is meant. They recalled the over draft and maybe asked the OP to either pay it all off in full or via instalments (unlikely but not unheard of if asked). The end point is that this current account was terminated due to lack of deposits. Having penalty charges does not mean that there should be no deposits. Having penalty charges on an account does not extinguish a debt as the original debt was not paid off anyway. Do you know if the assignment received is compliant with s 82A of CCA 1974 which repeats the requirements of the LoPA 1925? Even if it wasn't, what are the sanctions for non-compliance? Would they just make the assignment equitable? These are all rhetorical questions. Thanks for para-phrasing 16.5 and I hope the OP will take note of what their defence should contain as a holding defence is not a defence at all. Something along the lines of the first point is admitted, second point is admitted, third point is denied, blah blah blah. That is the format of a defence however be careful of perjury as I see no defence based on what is said to the liability incurred, the only question is how much does the defendant owe. Putting in a holding defence has the following disadvantages: 1.) Strike out by the court or by the claimant as not compliant with CPR; 2.) Perjuring one self; 3.) Potential to incur costs as the defence will need to be amended at some point as the case cannot go ahead without the defence being amended; Food for thought.
  20. There is the tort of malicious prosecution. You must prove all of the following: 1.) that you were prosecuted by the defendant; 2.) that the prosecution was determined to your advantage; 3.) that it was without reasonable and probable cause; 4.) that it was malicious; I will start you off on your journey by providing a key case: Martin v Watson 1996 HoL. I would recommend a search on Bailii for the key term Malicious Prosecution as there is a lot of case law on this. I would recommend you try and read up on this tort in detail before making any decisions. Someone wisely stated seeing a solicitor, that goes without saying however I will repeat it here for the record, go see a solicitor who specialises in the common law. Good luck.
  21. I think this is another case of misinterpretation regarding what I wrote. I am saying if he couldn't get the agreement from the claimant with regards to the extension, NOT the actual application for an account. Agreement means approval in this case. I do see how that could have thrown you off however I am clarifying that point now. Anyway, back to the point of my post. Why are we using a holding defence in line with what I said above? What seems to be missed is the fact that the defendant has enough to plead on. Anything less is a porky especially when signed with a statement of truth.
  22. CPR lesson 101: Holding defences are bad and should never be used. They do not comply with CPR part 16 and a defence such as the above leaves the defendant open to a strike out application under r. 3.4 or even r 3.2 and 3.3. I believe the information you have is enough for you to plead. Do you deny ever having an account? No. Do you deny ever receiving the NoA? No. So you do know about the account. You are also aware that you owe them money and that the debt has been assigned. The only think you are not sure of is the quantum or the amount of the debt, so you could: 1.) either part admit to the amount you know you owe them which will result in a CCJ and let them try and justify the rest; or 2.) either admit to everything which will result in a CCJ; or 3.) deny ever owing any money in the hope that something will come up; Also, if you are hoping to later amend the defence, that will leave you open to costs on the claimant's side as IMHO, you have everything in the PoC to help you plead. Just showing the technical side of the CPR and what the claimant might do if faced with such as defence. Just FYI, if you wanted more time and you couldn't get the agreement from the claimant, you could have filed an application with a hearing for an extension. Good luck.
  23. If the person in question got a fine AND a community sentence, then that discounts a caution and an administrative penalty from the list given by you Hence it is a conviction.
×
×
  • Create New...