Re: Me vs MBNA court case looming help please / **DISCONTINUED**

[creditcardmug]

does it have the bold underlined text as in post 131?...how many days to remedy?

[Mr Happy]

It does have the bold and underlined text.

 

Issue date was the 8th August remedy date the 23rd August, sent second class, including a weekend so effectivly 9 days to remedy. if maths serves me well.

[creditcardmug]

You should be ok then, you need to get a copy of s7 Interpretation Act 1978 to back it up.

[Mr Happy]

You should be ok then, you need to get a copy of s7 Interpretation Act 1978 to back it up.

 

 

Thank you, I have googled that and it brings up telecoms stuff and a blank form where can i find it.

[creditcardmug]

Thank you, I have googled that and it brings up telecoms stuff and a blank form where can i find it.

 

Dont know, these things are usually here Home - Statute Law Database

 

I have just looked at s7, and it doesnt say much, but its only the primary statute, there must be some SI regs to accompany it.

 

Have a good look around that site, it should all be there somewhere

[Mr Happy]

Dont know, these things are usually here Home - Statute Law Database

 

I have just looked at s7, and it doesnt say much, but its only the primary statute, there must be some SI regs to accompany it.

 

Have a good look around that site, it should all be there somewhere

 

 

Thanks again

 

I think I have found it, if anyone else needs it the link is here.

[Mr Happy]

Having found it im not sure what I should be printing

[summerbreeze]

I have this saved in my little album of useful info

Is this what you are looking for?

1. Interpretation Act 1978, Section 7

 

This states:-

 

Where an Act authorises or requires any document to be served by post (whether the expression "serve" or the expressions "give" or "send" or any other expression is used) then, unless the contrary intention appears, the service is deemed to be effected by properly addressing, pre-paying and posting a letter containing the document and, unless the contrary is proved, to have effected at the time at which the letter would be delivered in the ordinary course of post."

 

2. Practice Direction

Service of Documents - First and Second Class Mail.

With effect from 16 April 1985 the Practice Direction issued on 30 July 1968 is hereby revoked and the following is substituted therefore.

1. Under S7 of the Interpretation Act 1978 service by post is deemed to have been effected, unless the contrary has been proved, at the time when the letter would be delivered in the ordinary course of post.

2. To avoid uncertainty as to the date of service it will be taken (subject to proof to the contrary) that delivery in the ordinary course of post was effected:-

(a) in the case of first class mail, on the second working day after posting;

(b) in the case of second class mail, on the fourth working day after posting.

"Working days" are Monday to Friday, excluding any bank holiday.

3. Affidavits of service shall state whether the document was dispatched by first or second class mail. If this information is omitted it will be assumed that second class mail was used.

4. This direction is subject to the special provisions of RSC Order 10, rule 1(3) relating to the service of originating process.

 

8th March 1985

J R BICKFORD SMITH Senior Master

Queen's Bench Division

[Mr Happy]

Just to let you all know that I love you all.

 

You have been a great help and motivation through these hard times, without you I would be £21,000+ worse off.

 

Run down of the day in court.

 

I got there at 11:00 for my 12:00 appointment (wanted a bit of time for my nerves to die down), at 13:30 we were called to the desk and asked if it would take 40 minutes, The barrister said he doesn't think so but not sure if my evidence would, I said I have a lot of evidence to go through so it is quite likely.

The Judge said that she needed a break and something to eat so she put us off to 14:00.

 

14:05 we were called in, aggressive (pretty for an older lady) judge told us she had red through the evidence and there was not a valid defence, she also said to me that we cant go around drawing up credit card bills and expect to get rid of them through court, at this stage I stopped her and read an introduction I had prepared earlier.

 

 

"I have attended a court before as a witness to a motoring accident, I was questioned by someone who used all sorts of tactics to get me to say something different to what I saw, that was not my case and I stood to lose nothing.

Today's case directly affecting me is a different matter, I can not afford a solicitor to defend myself and I have no experience of court proceeding, I am a small fish up against the professional representatives of a multi million pound company, I am sure you have dealt with this situation before and I am sure you will take this into consideration when communicating with me, I am not familiar with the formalities of court but I am aware of the law and my only weakness may be the delivery of evidence"

 

 

She was as nice as pie after this and explained everything as clear as she possibly could.

 

I told her I do have a defence and started to read my initial defence statement.

"Default notice

There is a default notice attached to the evidence that has been supplied by Restons to the court {MBNA DEF 1}, this Default notice is invalid in the fact that there is insufficient time from date of issue to the remedy time.

Restons realised this and made up a story through a witness statement from MBNA stating that the Default notice was created in error and that the remedy date was the 24th of August and not the 23rd{MBNA DEF 2}.

The original default notice {Default notice} has been checked and it has a remedy date of the 23rd of August, this invalidates the default notice, Restons also state that the default was sent First Class Ordinary post when in fact it was sent second class {Default notice}, therefore even if the date mentioned on the falsely corrected default was true the default would still be invalid {Legal page 1}."

Then

 

"Accordingly the ‘default notice’ was invalid and failure of a default notice to be accurate invalidates the default notice [Woodchester Lease Management Services Ltd v Swain and Co - [2001] GCCR 2255] {Case Study 1} which would not only prevent the court enforcing any alleged debt, but would also give rise to a potential counter-claim for damages where damage occurs to my credit rating (Kpohraror v Woolwich Building Society - [1996] 4 All ER 119) {Case Study 2}"

 

 

She asked to see the default and I gave her and the barrister a copy with a copy of the envelope to show it was second class, I then quoted S7 of the Interpretation Act 1978 advising her that weekend did not count and that using second class I had only 9 days to act.

 

She worked it out in her head and had to agree, the poor barrister asked to have time to look into it and we left the room for him to get advice, he tried to contact his client but was unable too so we returned.

 

The Judge ruled that the court be adjourned for 4 weeks to allow the claimant to investigate the document, at the end of these 4 weeks if they have not been contacted the case will be struck off. she was not interested in my other evidence as the DN was sufficient to make their case.

 

I was ordered to make a new defence with all the evidence I have and supply it to the court and Restons within 2 weeks, this was because the default notice was not listed on my defence documentation, I was ordered to pay £150 to the barrister for his time because it was not listed, the judge advise me that had it been listed the case may not have reached court, I only found the DN yesterday so I had little chance to make them aware, still £150 is better than £21,000.

 

I am not out of the woods yet but I cant see there being any comeback.

 

I asked the barrister if I could pay for his fees with a credit card, a forced snigger was his reply.

 

The Judge and the Barrister said I did very well, in fact I was a fumbling wreck, I advised the barrister that I would definitely take a solicitor even if I had to sell the kids next time because I was so nervous, he said I did very well and didn't need to, I said I would anyway just so he knows if he comes back he has an effective nervous wreck and a professional to contend with.

 

But thanks for everyone who helped you are a life saver.

 

BTW text in red was for reference to handouts I took.

Edited May 18, 2009 by Mr Happy

[WelshMam2009]

Congratulations...wrecking your office seems to have paid dividends!!

[supasnooper]

Well done on your afternoon in court.

 

Sounds like you've given Restons another headache.

 

Bit of a blow though having to pay £150 costs though.

[banker_rhymes_with]

Hello Mr H!

 

Very well done, that now sets the stage for the killer blow you can deliver next time around. The Judge did not start off well, but appears to have come to her senses when you presented your opening statement.

 

That was a wise move I think.

 

I'm not sure about the costs issue, I think that can and should be challenged, but you'll need some better advice on that than I can offer. I would try and get PT2537 to comment on that.

 

Anyway, delighted to hear how it went.

 

Cheers,

BRW

Edited May 18, 2009 by banker_rhymes_with
Typo.

[summerbreeze]

Very well done Mr. H

[creditcardmug]

Well done mate!

[cashins]

I

was ordered to make a new defence with all the evidence I have and supply it to the court and Restons within 2 weeks, this was because the default notice was not listed on my defence documentation,

Very well done on standing your ground and getting her to give you a fair hearing.

The above in red, could have been an absolute disaster for you if she had made something of it.

Don't knock yourself - you clearly did better than you think.

David

[Mr Happy]

I

 

Very well done on standing your ground and getting her to give you a fair hearing.

The above in red, could have been an absolute disaster for you if she had made something of it.

 

Don't knock yourself - you clearly did better than you think.

 

David

 

 

She did look a bit concerned because it was not listed, I think my initial statement made her a bit more generous towards me.

 

I think she knew I would have it in the appeal if it went the other way anyway.

[chippo]

well done mate.

[tiokim]

Restons must hate us!!

[pompeyfaith]

Well done Mr Happy a good result that has given me light at the end of the tunnel.

 

she was not interested in my other evidence as the DN was sufficient to make their case.

 

They will have a field day with my Default Notices and they are in my defence.

 

Fantastic!!!!!!!!!!!!!!!!!!

 

Regards

 

PF

[Docman]

Well done Mr H!. You have done yourself proud and it won't be as difficult when you go back - assuming MBNA don't throw in the towel.

 

BTW, I always thought that a barrister could only appear he court if he was accompanied by his instructing solicitor. Does anyone know what the rules are these days? The barrister's request smells suspiciously like he knew he wouldn't get paid by Restons if he did not win and so asked the court for a fee.

[pompeyfaith]

Docman i had this at my last hearing where just the barrister was in attendance the judge was clearly not happy about that so much so it got adjourned and she put on the order that i can request the witness from MBNA and Optima Legal if i so wish.

 

PF

[underdog13]

Congratulations, Mr H - well done you!!

[sunflower99]

Congratulations Mr H! Reading this thread just cheered my morning up and gives us all who are in same boat as you great hope!

[exchange]

Fantastic to see results like this,makes us all stronger.

It's a pity there is no way of highlighting threads like this one as I stumbled across it by chance.

[citizenB]

Restons must hate us!!

 

Good

 

Well done Mr Happy, I am really pleased for you. x