Alphageek Vs Sainsburys CC

[Alphageek]

Hi Shadow,

 

I think you're right with the costs and this wouldn't be an issue at the moment.

 

I am quite happy that they want to rely on McGuffick as it seems almost totally irrelevant to this case. Relying on McGuffick weakens their defence if you ask me.

[the_shadow]

I am quite happy that they want to rely on McGuffick as it seems almost totally irrelevant to this case. Relying on McGuffick weakens their defence if you ask me.

 

It is a strange one, I cant think of a reason for it, if they have read the judgment they will know the judge cited at different points in the ruling that this judgment was NOT a one size fits all ruling.

 

If they want to cherry pick paragraphs out of it then you can concentrate on the actual judges comments to knock that down straight away.

 

S.

[slick132]

Hi Guys,

 

This wouldn't be the first time a defendant's legal reps have suggested they would use a specific case aginst you, even though the case in question is either irrelevant to your case or it offers them no help in their defence.

 

I think they do it in the hope that it'll intimidate you.

 

Fat chance.

[Alphageek]

It tickled me. Well, I'm still laughing anyway

 

I think I will write to them and tell them I will not be seeking a set aside of the order giving them permission to amend their defence.

 

Unless someone advises me otherwise...

[Alphageek]

I asked the bank to provide me with copies of the documents it filed at court.

 

Here they are;

 

N244:

That:

 

1. The defendant have permission to amend its defence in accordance with the draft exhibited to the witness statement filed in support of this application

 

2. The directions order dated 05 October 2009 and incorporated into the Notice of Allocation to the Small Claims Track be amended in the light of the amended defence and of the representations in the attached witness statement

 

3. The directions order of 05 October 2009 be stayed pending the hearing of this application

 

4. There be no order as to the costs of the application

Draft Order:

UPON HEARING the claimant in person and the solicitor for the defendant

 

It is hereby ORDERED

 

1.The defendant has permission to amend its defence in accordance with the draft appended to the application notice herein

 

2.The defendant is to file and serve the amended defence within seven days of the date of this order

 

3.The directions order made on 05 October 2009 and incorporated into the Notice of Allocation to the Small Claims Track under paragraphs 1 and 2 is set aside and the following directions are substituted in place thereof:

 

3.1.Each party shall deliver to every other party and to the court office copies of all documents on which he intends to rely at the hearing no later than 14 days before the hearing. The documents shall include, without limitation, any witness statements (including a party's own statement) and any legal authority to which a party intends to refer at the hearing.

 

3.2.The original documents shall be brought to the hearing

 

4.The other directions given on 05 October 2009, namely allocation to the small claims track, the hearing date of 12 March 2010, the time estimate, and matters relating to the payment of the hearing fee shall stand.

 

5.There be no order as to the costs of this application.

 

Witness Statement:

 

I, PERSON, of c/o Retail Legal Department, HBOS plc, Trinity Road, Halifax West Yorkshire HX1 2RG, state as follows:

 

1.I am employed by HBOS plc as a litigation assistant in its Retail Legal Department. Subject to the ultimate control of the head of the department I have the conduct of this matter on behalf of the defendant. I am duly authorised by the defendant to make this witness statement on its behalf. I make this statement either from personal knowledge, or from an examination of the papers which I have obtained from the bank's records or from discussions which I have had with colleagues within the bank; it is true to the best of my knowledge and belief.

 

2.There is now produced and shown to me, and exhibited to this statement, a bundle of papers marked "PERSON 1" which consists of true copies of correspondence and other documentation and to which I shall refer in this statement.

 

3.I make this application on behalf of the defendant ("the bank") for an order that the bank be allowed to amend its defence in this matter, and that the directions order made on 05/10/2009 be set aside and fresh directions be given. A draft of the proposed amended defence ("the draft") is included at Document 1 of PERSON 1.

 

4.Most of the amendments set out in the draft are aimed at simplifying some of the issues which the court will ultimately have to consider, and thus at saving time and costs for the court and for the parties. I refer specifically to the amendment proposed at paragraph 6 of the draft.

 

5.As a consequence of the amendment proposed at paragraph 6 of the draft, a number of matters set out in the particulars of claim would become irrelevant. In this respect, by way of example, I refer the court to paragraphs 10, 14.5, and 15 of the draft.

 

6.Since the defence in this matter was filed on 02/09/2009 the Commercial Court (Flaux J on 06/10/2009)) has handed down its judgment in the case of Phillip McGuffick v. The Royal Bank of Scotland plc [2009] EWHC 2386 (Comm). This is a case which is directly on point as regards a number of the allegations made by the claimant in his particulars of claim. In the draft (at paragraph 28) I have taken the opportunity to plead this case in aid of the bank's defence.

 

7.I have also taken the opportunity to correct (e.g. at paragraph 7) or to clarify (e.g. at paragraph 5) matters included in the original defence, albeit that such matters would normally have been dealt with at trial on the basis that no prejudice had been caused by them.

8.As a result of the amendments proposed in the draft, many of the directions set out in the order dated 05/10/2009, and which was incorporated into the Notice of Allocation to the Small Claims Track of the same date, would become irrelevant. Many of the directions are, in any event, already irrelevant, and most are disproportionate to the matters in issue. I refer the court to paragraph 2 of the directions order.

 

8.1.If the proposed amendment at paragraph 6 of the draft were to be allowed, then I would submit that the directions given at sub-paragraphs (a) to (f) inclusive would no longer be relevant to the matters in issue between the parties.

 

8.2.It is also my submission that sub-paragraph (i) – provision of a copy of the default notice - is not relevant to the matters in issue. This is a claim which is brought not by the bank but by its customer. The bank is not currently seeking (nor has it in the past sought) to enforce the agreement.

 

8.3.Paragraph (j) is entirely disproportionate in a small claim such as this. The claimant has not sought to deny the agreement, indeed the very first paragraph of his particulars of claim confirms that he entered into the agreement. He appends a copy of the agreement to the particulars of claim (as Schedule 1). It is difficult to see, therefore, what is to be gained from the directions given in sub-paragraph (j) insofar as they relate to the physical copy of the agreement.

 

8.4.Insofar as sub-paragraph (j) relates to a copy of a notice of default, I reiterate the comments in paragraph 8.2 (above) of this witness statement. The bank is not seeking within these proceedings, nor has it previously sought to enforce the agreement and therefore the provision of a copy of a notice of default is irrelevant.

 

9.I submit that the directions order of 05/10/2009 should be set aside. I acknowledge that such an application should have been made within 7 days of receipt, i.e. by 14/10/2009. I confess that initially I did not appreciate how disproportionate the directions actually were. It was only when I began looking into the work necessary to comply with the order that this became fully apparent.

 

10.In any event, in the light of the amendment sought at paragraph 6 of the draft, and for reasons set out above, I believe that this is a matter which can and should now be dealt with effectively by standard small claims directions. Paragraph (j), in particular, of the current directions is designed to increase the burden on the claimant without a proportionate benefit for the court or either of the parties in dealing with this small claim.

 

11.I acknowledge that the usual order on costs is that they follow the event. This is so even in a small claims scenario, although in such a case there is a limit on the amount and the type of costs which can be recovered. However, for reasons which follow I would ask the court to say that there should be no order for costs on this occasion.

 

12.I refer the court to Document 2 of PERSON 1. This is a letter which I sent to the claimant on 22/10/2009 as an e-mail attachment. It was specifically drafted as an 'open' letter. The court will note that this letter sets out proposals for settlement of part of the claimant's claim, specifically with reference to the claims for refund of default charges and payment protection insurance, and in both cases together with interest.

 

13.I refer now to the claimant's response (also sent by e-mail attachment) to my letter. This response is at Document 3 of PERSON 1. The court will note that the offer of settlement is rejected. The claimant seeks to justify his rejection of the offer by concentrating upon my assertion that the directions are no longer relevant, or are disproportionate.

 

14.In fact, if the claim were allowed to go to a hearing on the basis of the defence as originally drafted the most that the claimant could hope to recover in respect of default charges and payment protection insurance is the amount already offered to him by way of settlement in my letter of 22/10/2009. However, in such a scenario the two parties, and the court, would have to undertake unnecessary extra work in preparation for the hearing. I say "unnecessary" because even if successful the claimant would be in no better position (as regards default charges and payment protection insurance) after a final hearing, some way down the line, than he would be at this point by accepting the offer.

 

15.In essence, the amendments put forward in the draft would not have been necessary if the claimant had accepted the offer put forward in my letter of 22/10/2009. The settlement could have been incorporated into a consent order, or notified to the court by letter. It could have been dealt with by mention at the ultimate hearing. It would not have required a separate hearing such as the one occasioned by this application. The settlement, had it been accepted, would not have affected other aspects of the claim and would not have avoided the need for a final hearing, but it would have avoided the need for the hearing which this application will occasion.

 

16.In the circumstances I submit to the court that the more just order would be that there be no order for the costs of this application.

 

17.Finally, given the effect of non-compliance by the defendant with paragraph 2 of the directions order of 05/10/2009, I would ask the court to stay the order pending the outcome of this application.

 

I believe that the facts stated in this witness statement are true

 

I need some advice as to my next move please.

[citizenB]

Just giving you a little nudge.

[the_shadow]

I've reread your PoC's and I'm perplexed at how they think this case will help them given the narrative by the judge on where this case is relevant.

 

McGuffick v The Royal Bank of Scotland Plc [2009] EWHC 2386 (Comm) (06 October 2009)

 

 

S.

[Alphageek]

Just a little update.

 

I was not at home over the holidays and have just opened my pile of mail today.

 

Here's what I have received.

 

18th Dec 2009: CapQuest Debt Recovery telling me that CapQuest Investments Limited have bought the Sainsbury's debt and instructed CapQuest Debt Recovery to collect. I had to make contact by 31st Dec 2008 or else they will instruct -

 

4th Jan 2010: HL Legal Solicitors telling me that have been appointed by CapQuest because I have not replied to their letter dated 17th Dec 2009 and if I don't reply to them by 14th Jan 2010 then they may issue court proceedings.

 

4th Jan 2010: Letter form the bank confirming they have refunded LATE PAYMENTS fees and INTEREST (as they have previously stated, but not proven) and enclosed a statement of account dated Dec 2009. They will be writing to me in the near future with the bank's proposals to settle my claim.

 

You could not make this up could you?

 

If I was a new cagger, I might get worried and/or confused by this.

 

Stupid lot!!!!

[tosh1]

subbing

[banker_rhymes_with]

Hello Alphageek!

 

Unless I have mis-counted, I make that four DCAs, and three DCA Lawyers in tow...potentially seven groups grasping and scrabbling after your hard earned real money. This is the list of honour:

 

(1.) Robinson Way DCA

 

(2.) Horwich Farrelly Solicitors (DCA Lawyers).

 

(3.) Wescot DCA.

 

(4.) Nelson Guest & Partners Solicitors (DCA Lawyers).

 

(5.) CapQuest Investments Limited (DCA).

 

(6.) CapQuest Debt Recovery (DCA).

 

(7.) HL Legal Solicitors (DCA Lawyers).

 

Plus the bank is defending itself against your Claim for the return of unlawful charges, interest added on to the unlawful charges, mis-sold PPI, interest added on to the mis-sold PPI, s69 interest on top of the lot for good measure, and a claim in restitution asking them to hand over their ill-gotten gains amassed when lending out your money to other people!

 

What on earth are HBOS-Sainsburys doing selling a Debt that is so clearly in dispute, and what the F are they doing allowing so many DCAs to come snarling at you for the same issue?

 

Are they trying to break some record for making the most OFT Debt Collection Guidelines breaches in relation to one Agreement?

 

Talking of Agreement, where's that then? All we have seen so far from them is a crabby Application Form, that appears to be devoid of any Prescribed Terms!

 

Prescribed Terms clearly don't ring any bells with the bank, or they would not have said this:

 

8.3. Paragraph (j) is entirely disproportionate in a small claim such as this. The claimant has not sought to deny the agreement, indeed the very first paragraph of his particulars of claim confirms that he entered into the agreement. He appends a copy of the agreement to the particulars of claim (as Schedule 1). It is difficult to see, therefore, what is to be gained from the directions given in sub-paragraph (j) insofar as they relate to the physical copy of the agreement.

This may well tie in with why they wanted to sell this Debt so fast, even while the matter is subject to litigation! The real reason for the above is the bank does not want enforcement to be mentioned, otherwise I think they fear you might use this opportunity for a ruling on the rights of the parties to the Agreement via s142.

 

Talking of litigation, I note that the bank also seems determined that the s87(1) Default Notice (or lack of one), does not see the light of day either!

 

I particularly liked this bit:

 

8.2. It is also my submission that sub-paragraph (i) – provision of a copy of the default notice - is not relevant to the matters in issue. This is a claim which is brought not by the bank but by its customer. The bank is not currently seeking (nor has it in the past sought) to enforce the agreement.

Then, just a paragraph or so away, he bangs on about the Default Notice yet again, i.e. here:

 

8.4. Insofar as sub-paragraph (j) relates to a copy of a notice of default, I reiterate the comments in paragraph 8.2 (above) of this witness statement. The bank is not seeking within these proceedings, nor has it previously sought to enforce the agreement and therefore the provision of a copy of a notice of default is irrelevant.

Pull the other one HBOS, it has seven DCAs hanging off it! If just one of the four appointed by the bank, just once, demanded early payment (of a sum not otherwise due) then, according to McGuffick and the OFT, that would amount to enforcement!

 

On that issue, here's my summary of what is currently regarded as enforcement, or not, as the case may be, i.e. even by the pro-bank lobby:

 

Not-Enforcement

 

• Saying nasty things about you to the Debt Reference Agencies.
  

 

• Demanding Payment (i.e. of sums already due).
  

 

• Issuing a Default Notice.
  

 

• Bringing Legal Proceedings.
  

Enforcement

 

• Obtaining Judgment.
  

 

• s76(1) and s87(1) actions, such as...
  

 

• Demanding earlier payment (i.e. of any sum not yet due).
  

 

• Recovering Possession of Goods or Land.
  

 

• Treating any Right conferred on the Debtor by the Agreement as terminated, restricted or deferred.
  

 

• Enforcing any Security.
  

 

• Terminating the Agreement.
  

For confirmation of the above, see McGuffick and also the new OFT Consultation Document on s77/s78/s79 Requests.

 

I think the bank is trying to avoid disclosing the s87(1) Default Notice for some reason! I wonder why?

 

The bank also seems to have confused Defendant and Claimant here:

 

10. In any event, in the light of the amendment sought at paragraph 6 of the draft, and for reasons set out above, I believe that this is a matter which can and should now be dealt with effectively by standard small claims directions. Paragraph (j), in particular, of the current directions is designed to increase the burden on the claimant without a proportionate benefit for the court or either of the parties in dealing with this small claim.

Too used to being the Claimant I assume?

 

What will they do next I wonder! Can't wait!

 

Cheers,

BRW

Edited February 23, 2010 by banker_rhymes_with
Added URLs to help.

[Alphageek]

Hi BRW, I have no idea what they will do next and judging on the recent intervention of CapQuest and the bank re-purchase I don't think they do either.

 

It's just a shame my POC does not claim for harassment!

[banker_rhymes_with]

Hello Alphageek!

 

It's just a shame my POC does not claim for harassment!

 

Well, that may change, as the Harassment is on-going, so you may be able to introduce it given the way the bank and their multiple DCAs have behaved!

 

Cheers,

BRW

[Alphageek]

That's a good point!