Cheekiness towards a DCA

[Agent Mulder]

i dont think it will be long ODC,

 

our firm has a few clients with these and if they are continuously foolish with these demands then i can assure you that the next time i am gonna throw a good case that an insolvency Barrister told me about ( Re Kirkman Moeller) which said that costs where the demand is an abuse should be on an indemnity basis and therefore they will pay more

 

I cannot believe the way they operated on my clients case, it was truly shocking

 

Here's the opinion in Re Kirkman Moeller:

CHANCERY DIVISION

LINDSAY J

 

 

19 JANUARY 2005

 

 

 

Statutory demand – Application to set aside a statutory demand – Costs – Standard or indemnity basis – Summary or detailed assessment

 

The applicant and a Mr Adamsen were the subject of bankruptcy proceedings in Denmark by the respondents. The proceedings against the applicant were dismissed on jurisdictional grounds but in respect of Mr Adamsen, whose case so far as one could tell was the same as that of the applicant, the court in Denmark held that by reference to a counter-claim it was not possible to tell whether Mr Adamsen was indebted to the respondents or vice versa. Notwithstanding this, the respondents served statutory demands on the applicant on 26 March 2004 and the applicant applied to set the same aside on the basis that he had a counter-claim or set-off which was at least equal to the sums claimed. At one of the hearings the registrar warned the respondents of the risk of indemnity costs if the statutory demands were persisted in when they were susceptible of being set aside.

 

 

Apart from applying to set aside the statutory demands, the applicant also commenced proceedings in Denmark with a view to obtaining a ruling on the validity and amount of his claims. The respondents put in a defence and counter-claim in such proceedings and applied to adjourn the hearing in this jurisdiction of the application to set aside the statutory demands on the footing that the proceedings in Denmark would determine the validity and amount of the claims between the parties, but such application was refused. The parties, therefore, negotiated and it was agreed between them that the statutory demands should be set aside with costs. The outstanding issues were the basis on which costs should be awarded and whether they should be the subject of a summary or detailed assessment.

 

 

 

 

Held - ordering payment of costs on an indemnity basis but with a detailed rather than summary assessment -

 

 

(1) Indemnity costs were appropriate as, once the proceedings in Denmark against Mr Adamsen were dismissed which proceedings were, so far as one could tell, determinative of the applicant's position, it was a risky venture to begin and persist in statutory demands.

 

 

(2) It was inappropriate to proceed by way of summary assessment given that it was not possible to arrive at any figure that was relatively free of disputability.

 

 

Statutory provisions considered

 

 

 

Civil Procedure Rules 1998 (SI 1998/3132), r 48.6

 

 

 

Cases referred to

 

 

 

Excelsior Commercial & Industrial Holdings Ltd v Salisbury Hamer Aspden & Johnson (a Firm) [2002] EWCA Civ 879, [2002] All ER (D) 39 (Jun), CA

 

 

 

 

 

 

 

The appellant appeared in person; Paul Toms appeared for the respondent

 

Marriott Harrison for the respondent

 

19 January 2005

 

 

LINDSAY J

 

 

 

[1] I need briefly to set the scene, but it is only a brief setting of the scene that is necessary. The hearing today could have been of a lengthy application - I think the estimate was up to 3 days - to set aside statutory demands made against the alleged debtor, Mr Christian Kirkman-Moeller, by two Danish companies, Innoventure AS (Innoventure) and JBJ Invest AS (JBJ).

 

 

[2] Both Innoventure, JBJ, Mr Kirkman-Moeller and another individual, John Adamsen, were, with others I apprehend, involved in the shareholding in another Danish company, Giantcode AS (Giantcode). Innoventure and JBJ held, respectively, 30% and 7% of the nominal share capital of Giantcode, Mr Adamsen 5% and Mr Kirkman-Moeller about 4%. There was a shareholders' agreement that operated, as I understand it, between those parties, and on 18 May 2004, in his first tranche of evidence moving to set aside the statutory demands made against him, Mr Kirkman-Moeller said that he and Mr Adamsen had been business partners and his circumstances, that is Adamsen's circumstances, and Mr Kirkman-Moeller's had been identical save that he had sold a minor part of the shareholding that he had had in Giantcode which led to Mr Adamsen's share being 5%, whereas Mr Kirkman-Moeller's was only 4%. But he did make it clear then, and he has repeated today, that his circumstances were otherwise identical to those of Mr Adamsen.

 

 

[3] Mr Paul Toms, who appears today for the alleged creditors, the two Danish companies, indicates quite fairly that he is not in a position to gainsay that identity between the Adamsen case and the Kirkman-Moeller case. The relevance of that is that the statutory demands were not made here in England until 26 March 2004. Before that there had been proceedings in bankruptcy in Denmark both against Mr Kirkman-Moeller and Mr Adamsen. The case against Mr Kirkman-Moeller I am told - and again Mr Toms is not in a position to say this is not the case - was dismissed on the grounds of venue, which I take, in the circumstances, to be a reference to the fact that Mr Kirkman-Moeller, although no doubt of Danish origin and Danish nationality, now lives, and has for some time lived, in England. It looks as if the bankruptcy case against Mr Kirkman-Moeller failed in Denmark at the threshold on a jurisdictional ground, namely that Mr Kirkman-Moeller was not resident, or perhaps had not carried on business, and so on, in Denmark.

 

 

[4] The case against Mr Adamsen, which, as I have indicated, so far as my best information is concerned, is or was identical to that against Mr Kirkman-Moeller, went ahead, was examined by the court in Denmark, and it was ruled that the case was such that, by reference to a counter-claim by Mr Adamsen, the court could not tell which way ultimately money would need to go. It could be, in other words, that the counter-claim overtopped or at least equalled the claim of the Danish companies against Mr Adamsen.

 

 

[5] Mr Kirkman-Moeller says to me today that from 25 February 2004 when that judgment concerning Mr Adamsen in Denmark was given, plainly it was futile to go ahead with a claim in bankruptcy based on a statutory demand against him in England because he would have an identical sort of counter-claim to the sort of counter-claim which had been successfully advanced in Denmark by Mr Adamsen. Nonetheless, the statutory demand, as I say, both of them, were served on the same day, 26 March, in substantial sums. The demand by Innoventure was for 653,000-odd Danish krone and the demand of JBJ was for almost 112,000-odd Danish krone. There were complications due, or alleged to be due, to Mr Kirkman-Moeller's illness at the time, but at all events he launched proceedings to set aside the statutory demand and his first witness statement was that of 18 May 2004 to which I have already briefly referred and which asserted the identity of the case against Adamsen to the case against him.

 

 

[6] I should say that the debts that were relied upon in the statutory demand were debts originally owed to Amagerbanken AS, which I take to be a Danish banking entity, but which had been assigned to JBJ and to Innoventure, and the date of the assignment was 17 June 2003. I am assuming that Amagerbanken was indeed a Danish bank. One could perhaps start from the position in which plainly money was owed by Mr Kirkman-Moeller to the bank. But, of course, by the time it was assigned to JBJ and Innoventure, the case would be whether there was a debt as between Mr Kirkman-Moeller and those two companies rather than looking at the original banking situation.

 

 

[7] The debt itself seems to me not truly to have been disputed. At all times the case, as raised by Mr Kirkman-Moeller, was that he had a counter-claim or set-off at least equal to and, I think he said, which considerably overtopped the claim that had emerged, by way of assignment, to JBJ and Innoventure.

 

 

[8] The timetable of the case was a fairly lengthy one. As I say, the statutory demands were served on 26 March. On 18 May there was Mr Kirkman-Moeller's first witness statement. On 22 June 2004 there was a hearing before Mr Registrar Nicholls and Mr Kirkman-Moeller says that at that hearing Mr Registrar Nicholls warned the alleged creditors of the risk of indemnity costs if what transpired ultimately to be a statutory demand susceptible to being set aside was persisted in. I have no transcript of what was then said, and there is a little dispute as to who was there or when it was said, but Mr Kirkman-Moeller tells me that was what was said. It is a prudent sentiment quite frequently uttered by Registrars. It is sound law that for an alleged creditor to persist can involve a risk as to indemnity costs and, as I say, Mr Kirkman-Moeller tells me that it was said. Mr Toms, again, quite fairly says he is not in a position to say that it was not said and I proceed on the footing that indeed it was said.

 

 

[9] The matter went on with a second witness statement from the applicant. In August 2004 there was a response on evidence from the alleged creditors. On 12 August 2004 Mr Registrar Jacques ordered that the hearing should be adjourned until September and on 20 September last year Mr Kirkman-Moeller issued a summons in Denmark which, if ruled upon in Denmark, will lead to a ruling as to the validity and amount of his alleged counter-claims. On 23 September there was yet further evidence on the applicant's part. On 24 September it was adjourned to a judge. On 18 November the Danish proceedings were served on the alleged creditors, the two Danish companies. On 23 November the alleged creditors filed a defence and counter-claim in the Danish proceedings, and really quite recently, on 12 January 2005, the alleged creditors put in a witness statement asking for an adjournment of the hearing that had been fixed, the 3-day hearing from 19 January, on the footing that the proceedings in Denmark had been begun and would ultimately determine the validity and amount of the counter-claims, and hence also, in effect, the vigour of the statutory demands. Next the application for an adjournment was heard by Rimer J on 17 January and he refused it. That having been the case, the parties negotiated and it is now agreed that the statutory demands should be set aside. Moreover, it is accepted on the respondents' part, that is the alleged creditors', that they are to be liable in costs.

 

 

[10] There are a number of issues as to costs, and the first is whether liability in costs on the alleged creditors' part should be on the standard basis or the indemnity basis. Mr Toms draws my attention to Excelsior Commercial & Industrial Holdings Ltd v Salisbury Hamer Aspden & Johnson (a Firm) [2002] EWCA Civ 879, [2002] All ER (D) 39 (Jun), at [39], which poses the test: are the circumstances such as to take the case out of the norm? If the case is within the norm, then in the ordinary way the standard basis would be appropriate. If the case is out of the norm, then it may be that the indemnity basis would be the proper one. Here we are in a particular area where it is especially familiar to parties that to go ahead with prospective bankruptcy proceedings to be launched without a judgment or without a truly clear debt is a risky matter. It is perhaps more emphasised in the context of company winding-up petitions than it is in the similar (but not wholly similar) proceedings in bankruptcy, but the notion is a familiar one and, as I have mentioned, Mr Registrar Nicholls warned of that risk, quite rightly, in June 2004.

 

 

[11] I think the case is taken out of the norm because once it was the case that in Denmark the case against Mr Adamsen was examined and failed, that being a case which, on the best information I have, was identical to that of the case against Mr Kirkman-Moeller, it was a risky venture, to put it no higher, on the part of the alleged creditors to persist with or, in this case, to begin and persist with statutory demands and hence prospective bankruptcy proceedings in this country. I think the proper basis of costs here would be the indemnity basis.

 

 

Later

 

 

[12] I now turn to whether costs should be dealt with by way of a summary assessment or by way of a detailed assessment. Mr Kirkman-Moeller properly draws my attention to a footnote to the Atkins form, the form being the form for the setting aside of a statutory demand. The footnote says, inter alia:

 

 

'The general rule is that the court will summarily assess costs at the conclusion of a hearing which has lasted less than 1 day unless there is good reason not to do so: see CPR 44.7 and Practice Direction Costs para.13.2. Where detailed assessment is ordered, the court may order a specified sum to be paid on account before the costs are assessed: see CPR 44.3(8).'

 

 

[13] Mr Kirkman-Moeller, against argument from Mr Toms for the losing alleged creditors, says that that is the general rule, as indeed it is, and that it should be applied here. Mr Kirkman-Moeller has taken me through various categories of costs in what has been a relatively complicated case. Mr Kirkman-Moeller is qualified as a Danish solicitor but not, as I apprehend, an English solicitor, although he is resident in England; his practice is in England, presumably mainly on matters that, in one way or another, involve Denmark or Danish language cases. He says, and I can understand that it is the case, that the very considerable amount of documentation in this case, coupled with the natural anxieties of a litigant, have led to a good deal of personal anxiety and difficulty and that that in itself tends towards a summary assessment in that a detailed assessment obviously does not lead to an immediate recovery. I think the answer to that sort of objection or that sort of claim is better met with when discussing whether a specified sum should be paid on account.

 

 

[14] Reverting more to the question of what sort of assessment there should be, detailed or summary, I am bound to say there are difficulties which seem to me to arise in my being able to arrive at any figure that is relatively free of disputability. Mr Kirkman-Moeller draws attention to translation costs which, as claimed, amount, including VAT, to over £ 64,000. He understands that they have been computed by the translator, not himself, at some £ 90 an hour. That rather indicates, and I am only speaking in approximate terms, that over 640 hours have been spent in translation of documents. Whilst I quite accept that here some at least of the documents were detailed, technical and complex and would have taken an above-average length of time to translate adequately into English, it does seem to me a surprising total, so surprising that I am unhappy about arriving at some summary assessment on the footing of such a number of hours having been spent. So much for translation costs.

 

 

[15] The second batch of costs to which I have been specifically drawn are costs incurred in the drawing up and preparation of witness statements, not by legal advisers advising, as they ordinarily would, as to the form and shape, and so on, of the witness statements, but by the prospective witnesses themselves. In this regard some of the evidence was prepared by Mr Adamsen, a Danish solicitor, and some other by Mr Sejersen, and the charges there come respectively to £ 4,600-odd and £ 1,400-odd. Mr Kirkman-Moeller indicates that he has looked at those charges on the footing that they were as if expert witnesses. But they were not as if expert witnesses, because there had been no order for expert witnesses, and it seems to me that those charges may be vulnerable on that account. Mr Kirkman-Moeller says that he could have used professional Danish solicitors as such and that doing as he did and allowing those witnesses to be paid, prospectively at any rate, the sort of sums I have mentioned, in fact, represents less than would have been the case had he, for example, gone to English solicitors familiar with Danish and had them assist in the drawing up of witness statements. What, ultimately, the answer is on that topic I am far from sure about, but the very fact that I am far from sure about it makes me uneasy about progressing towards a summary assessment that includes some reflection of such comparatively unusual claims.

 

 

[16] Next, Mr Kirkman-Moeller claims for loss of earnings. As I say, he is not an English solicitor but he is, in effect, a litigant in person, and the rules as to the amounts that such persons can claim are set out in the White Book and, broadly speaking, the technique is that the litigant in person, if he is able to prove loss related to the time that he has spent on the proceedings, is able to claim in respect of that loss but with a cap such that he can never recover more than two-thirds of the sum that would have been recovered had English solicitors been engaged. Here, Mr Kirkman-Moeller gives a good deal of detail about the hours that he has spent, but I am not at all sure that he will emerge as able to charge the hourly rate which he has sought to charge, namely £ 200 an hour. Had he gone to English solicitors to assist him, would they have charged so much more that his total claim on a time basis of roughly £ 105,000 would represent no more than two-thirds of what those English solicitors would have charged? Again, I just have no sufficient information that enables me to take any view on that subject, and that leads me, again, to prefer a detailed assessment.

 

 

[17] As an alternative to a time basis, Mr Kirkman-Moeller says - and there is some evidence as to this - that in consequence of his work on this case, he had to decline a big case involving Danish considerations and had to turn down a good client, and that the work thus lost represents a loss of some £ 74,500. Again, quite how detailed is the proof that is normally required of the loss within CPR 48.6 I know not. It may be that such indications, indeed evidence, as Mr Kirkman-Moeller has produced would suffice, but it may be that more would be required and it is the case that although the allegations of such loss of big opportunities has been in the papers for a while, one would not ordinarily expect anything by way of challenge on the part of the losing party until the end, and so it has only recently become material. One cannot therefore, I think, assume that there would be no challenge to that basis, namely the £ 74,500 basis, merely because there has been none raised so far.

 

 

[18] All these considerations lead me to the view that I could not come to what I could safely regard as a fair summary assessment at this juncture. There are complications because of Mr Kirkman-Moeller's position as a litigant in person. There are complications because the size of the award sought is considerable, and although the hearing before me will last less than one day - when we are now almost at 12.45 pm on the first day - it has to be remembered that it was prepared as a case listed for some 3 days. There are very extensive bundles of papers, far more than one would normally expect for a case that could reasonably be expected to last less than one day.

 

 

[19] All in all, I order there to be a detailed assessment, but that leads to the possibility that I have already touched on and which I will now move to, of whether there should be some and, if so, what, specified sum to be paid on account.

[pt2537]

Cheers Agent M.

 

 

of course the argument for costs on an indemnity basis is also clarified in Hammond and Pro Fit at para 27 of Mr Justice Warrens judgment,.

[Agent Mulder]

Cheers Agent M.

 

 

of course the argument for costs on an indemnity basis is also clarified in Hammond and Pro Fit at para 27 of Mr Justice Warrens judgment,.

 

I'm on my way over to the Lexis/Nexis site next to look it up. UK consumer law is new to me as my practice was in the United States. It's a very interesting area of law but one I'm not sure I could handle full-time.

 

n.b. I had a quick look for the Hammond case but couldn't locate it. Have you got a cite?

Edited February 15, 2009 by Agent Mulder

[fuzzybobble]

On 15th February 2008 at 2-56pm, Mr Ton wrote these immortal words......

 

 

"I'd be interested to know if anyone has ever shown any "cheekiness" towards a DCA on the phone/or in writing & if so, to what degree?

For example - when i spoke to Credit Solutions on the phone yesterday (quite willingly) i informed the guy that, "due to extreme financial difficulties, no offer of payment can be made at this time, however should circumstances improve in the future, i will be happy to review this."

I will be sticking to that official line for as long as need be

So have other members said/done anything similar towards a DCA?

I'd love to hear your stories on this. :grin:"

 

 

 

 

 

 

 

 

 

And exactly a year later, we can all say.......

 

 

 

 

To the Cheekiness to DCA's Thread. Here's to lots more annoyance to DCA's in the second year.

[pt2537]

I'm on my way over to the Lexis/Nexis site next to look it up. UK consumer law is new to me as my practice was in the United States. It's a very interesting area of law but one I'm not sure I could handle full-time.

 

n.b. I had a quick look for the Hammond case but couldn't locate it. Have you got a cite?

Hammonds (a firm) v Pro-Fit USA Ltd [2007] EWHC 1998 (Ch) (17 August 2007)

 

[clemma]

On 15th February 2008 at 2-56pm, Mr Ton wrote these immortal words......

 

 

"I'd be interested to know if anyone has ever shown any "cheekiness" towards a DCA on the phone/or in writing & if so, to what degree?

For example - when i spoke to Credit Solutions on the phone yesterday (quite willingly) i informed the guy that, "due to extreme financial difficulties, no offer of payment can be made at this time, however should circumstances improve in the future, i will be happy to review this."

I will be sticking to that official line for as long as need be

So have other members said/done anything similar towards a DCA?

I'd love to hear your stories on this. :grin:"

 

 

 

 

 

 

 

 

 

And exactly a year later, we can all say.......

 

 

 

 

To the Cheekiness to DCA's Thread. Here's to lots more annoyance to DCA's in the second year.

 

 

Here here Fuzzy. Long may this thread continue. Congrats Mr Ton :D

[Agent Mulder]

Hammonds (a firm) v Pro-Fit USA Ltd [2007] EWHC 1998 (Ch) (17 August 2007)

 

 

An interesting judgment. Have you got anything pending in which you can use this?

[Jeff2000]

Here here Fuzzy. Long may this thread continue. Congrats Mr Ton :D

 

 

 

I agree wholeheartedly!

 

 

Happy Birthday!!!

[pt2537]

An interesting judgment. Have you got anything pending in which you can use this?

funnily enough yes i have, got a hearing on Thursday that i may just test it on

[cas93]

I thought my reply to bristow and sutor was pretty cheeky

 

http://www.consumeractiongroup.co.uk/forum/bailiffs-sheriff-officers/184146-cas93s-son-bristow-sutor.html:grin:

[clemma]

I thought my reply to bristow and sutor was pretty cheeky

 

http://www.consumeractiongroup.co.uk/forum/bailiffs-sheriff-officers/184146-cas93s-son-bristow-sutor.html:grin:

 

The link didn't work.....try this:

Here

[Agent Mulder]

funnily enough yes i have, got a hearing on Thursday that i may just test it on

 

Good luck.

[pt2537]

Good luck.

Thanks although the opponent shouldnt be too troublesome, after all we are dealing with the DCAs of this world, devoid of commonsense in many cases and quite easily over come

 

the only person really who stands in my way of costs on an indemnity basis is the judge,

[cds]

thanks clemma

 

cas

 

oops i am logged in as my oh again!!

[Agent Mulder]

Thanks although the opponent shouldnt be too troublesome, after all we are dealing with the DCAs of this world, devoid of commonsense in many cases and quite easily over come

 

the only person really who stands in my way of costs on an indemnity basis is the judge,

 

Surely a well-drafted memorandum of points and authorities will suffice.

[ODC]

As Paul points out DCAs are totally devoid of commonsense and even when the blindingly obvious is pointed out to them the sheer GREED takes over

[jobmid]

well today is the day i start to sue Aktiv Krapital as so been cheeky towards a dca then is well and truely under way for a 2nd year. they should never had contacted me in the first place for a debt they knew was not mine

[babybear39]

A belated Happy Birthday to the thread and congratulations to mr.ton for starting it

[mr.ton]

Oh my goodness...id totally forgotten that it was the 1st birthday of my famous thread - how could i have?

Anyway..thanks everyone & here's to the 2nd birthday in 2010

[clemma]

Oh my goodness...id totally forgotten that it was the 1st birthday of my famous thread - how could i have?

Anyway..thanks everyone & here's to the 2nd birthday in 2010

 

OMG :eek: How could you mr.ton. Disgraceful.......

[mr.ton]

To be fair..my attention has been away from this site recently..so i can be forgiven

[ODC]

Mr Ton Im shocked. After the effort you have put into this thread and the apoplexy you suffered when it was pulled for a few hours:p.

 

This thread along with a few others provides hours of endless amusement to me and many others

[mr.ton]

Mr Ton Im shocked. After the effort you have put into this thread and the apoplexy you suffered when it was pulled for a few hours:p.

This thread along with a few others provides hours of endless amusement to me and many others

 

I do have a life away from this forum you know ODC...i still post on here, just havent been on as much recently & totally forgot about the anniversay of this thread

Anyway..the legacy of my thread will always be here for future generations to appreciate regardless if im here or not

[vengeancedemon]

This is valid even if not read by you, Mt Ton, and your conduct in this matter is totally unacceptable, it will not go away and other meaning phrases from the dear fiends out there in Cloud Cuckoo land

 

Congratulations on the 1st anniversary

[fuzzybobble]

I do have a life away from this forum you know ODC...i still post on here, just havent been on as much recently & totally forgot about the anniversay of this thread

Anyway..the legacy of my thread will always be here for future generations to appreciate regardless if im here or not

 

Ignorance is no defence in the eyes of the law.

 

Judge Bobble now sentences you to phone some DCA's and put the results on here before the weekend.

 

Oh, and you must write out 200 times. "I must not forget this threads birthday and leave the hard work of making an animated banner to Fuzzybobble"

 

Then you must stand in the naughty corner with your back to the class with your hands on your head.

 

:)