Paul v Accord

[biffa1965]

re above....obviously not small claim but trial status stil not yet determined.....biffa

[paulpb123]

Yeah, I agree Biffa. Something like this happened to Dolly. In her case they offered her the court fees! I'm not going to back down for some paltry sum. And of course it is bluster. I'm going to draft another letter asking for a serious offer, on the grounds that I have already set out. ie. I think my claim is rather more compelling than their meagre defence. But, since I have already made them an offer to settle I really do think its up to them to suggest a figure based on how confident they really are.

Paul

[biffa1965]

Couldnt agree more Paul...go for it !

[paulpb123]

Hi Folks,

Letter received from Clerkenwell County Court: 'It is ordered that this case is transferred to Central London County Court for the attention of His Honour Judge whatsisname QC. Well, we've been to Clerkenwell, Bradford, back to Clerkenwell, and now Central London. Phoned Clerkenwell, they don't know what's going on. Phoned Central London and guess what...nor do they! Our claim hasn't even been allocated yet. Now, in my AQ (other info section) I asked for standard disclosure. In the light of Barry's case this is essential. Can I now do the Draft Order or is it too late?

 

On another note, although I wouldn't recommend anyone to start a new ERC claim just yet, I'm keen to keep fighting because I'm so far in now. Barry's case was not for an ERC and Jamorgan can appeal so that's unfinished business. Chins up you fine people, we had a victory yesterday. Don't let the b******s grind you down.

 

And any thoughts about disclosure warmly welcomed.

Paul

[ellielou]

Hi Paul

 

I too feel I'm that far down the line now I want to see it through.

Could you tell me a little more on the disclosure issue - I'm not sure what it is, how to get it and if I've already done it

I'm not doing too well am I really.

Thanks x

[paulpb123]

Hi Ellielou,

I think you're doing very well indeed. The disclosure issue is about getting an order that the Defendant must reveal their actual losses to the court. I did ask for this in the 'other info' on the AQ, and you might well have done so too. But that may not be enough going by what happened to Barry. I'm not sure if its too late to do a Draft Order. Zoot did advise me to do this a long time ago but I didn't do it because I had too much marking to do. Its the letter giving both parties 14 days to submit loads of info to the court, and the mortgage company to provide a breakdown of costs. I think Biffa did this.

Good wishes,

Paul

[zootscoot]

Its always worth sending off a draft order. If they've not yet allocated they would not have yet considered directions.

 

Best of luck

 

Zoot

[paulpb123]

Thanks Zoot,

Sounds like its worth a try. One thing about the Draft Order - it reads like directions from the court. Are we allowed to call the shots like that? Or am I missing something here?

[paulpb123]

Hi Folks,

Am I right in thinking that I need to send a Part 18 request to the defendant in the first instance? I've read the Civil Procedure rules but can't find anything that corresponds to the Draft Order for Directions that Zoot sent me. Any help very welcome.

Paul

[alisonf]

hey Paul is this what you want...

 

Draft Order for Directions

 

The Claimant shall within 14 days of service of this order send to the Defendant and to the Court:

• a) A schedule setting out each charge repayment of which is sought, showing the date, amount, and reason given (if any) for that charge being made;

• b) Copies of any statement or other document relied upon as showing that each and every charge has been made;

• c) A statement of evidence of all matters relied upon as tending to show that the charges are irrecoverable as penalties or otherwise;

• d) Copies of decided cases and other legal materials to be relied upon.

If the Claimant fails to comply with this order, the claim will be struck out without further order.

 

 

 

2. The Defendant shall within 14 days thereafter file and serve a response to the Claimant's schedule, stating in respect of each item claimed;

• a) Pursuant to what contractual provision such charge was made, producing a copy of the contractual document relied upon;

• b) Whether such charge is accepted to be a penalty, and if not why not;

• c) If such charge is alleged to be a pre-estimate of the Defendant's loss incurred by the Claimant's actions (whether or not such action is treated as a breach of contract between the parties), all facts and matters intended to be relied upon as showing that such was a proper estimate of such loss, and all evidence to be adduced at trial as to what the true cost of dealing with the matter was;

• d) If such charge is not alleged to be a pre-estimate of the Defendant's loss incurred by the Claimant's actions then facts and matters intended to be relied upon showing the basis upon which the charge was calculated and all evidence to be adduced at trial as to show that the charge was fair and reasonable.

• e) Any witness statements.

• f) Copies of decided cases and other legal materials to be relied upon.

If the Defendant fails to comply with this order, the Defence will be struck out without further order

[paulpb123]

Thanks Alison, yes, this is what Zoot sent to me. In the rules it states that you must put in the heading that it is a Part 18 request, or does that go in a covering letter? Also, is it appropriate for a Claimant to say that the Defendant's case shall be struck out if they don't respond in time? It seems a little aggressive...or am I just being a wimp? Just don't want to make any mistakes. By the way, if anyone needs any of the documents in Zoot's bundle, or any others, I have access to a database with most of them on, even the dreaded Associated Distributors v Hall.

Paul

[ellielou]

Thanks for the support Paul, I just want to make sure I get every angle covered. My claims already been allocated to fast track but with a hearing date sometime in June - do you think it's worth submitting a CPR 18 request?

 

Kensingtons sols have asked for a months extension for all dates due to them only just receiving allocation notification. I was thinking of agreing to this but also advising them I would be issuing a CPR 18 Request to gain Kensingtons true costs but would be willing at this stage to settle for ERC minus interest - kind of what you did really.

 

Worth a go do you think?

[paulpb123]

Hi Ellielou,

Yes, it seems it probably is worth a go. I've not done it yet because I don't know enough about it. What I mean is, the way its worded sounds like a judges order. I'm going to have to find out more. Charbydis has just sent one off.

Paul

[dolly]

Any news on negotiations, Paul?

[paulpb123]

No news on anything yet, Dolly.

[paulpb123]

I'm still a little confused about what to do next. Should I send a Draft Order to the court or a Part 18 request to the defendant? Aren't they effectively the same thing?

[zootscoot]

The Draft Order for Directions is basically your suggestion as to what the judge should issue as Directions. The a/q for fast track asks for proposed Directions. So the correct time for sending them should be with the a/q. However, if no Directions have yet been ordered it is worth submitting the Draft Directions.

 

A CPR Part 18 request is a request for further information regarding their defence. You send it to the Defendant in the first instance stating clearly that it is a request under Part 18 CPR. Give a time limit for compliance. If they do not comply you can ask the court to order compliance.

 

Hope this helps

 

Zoot

[paulpb123]

Yes, that helps a lot. I'll get them both prepared ready to go off on Monday. Thanks once again Zoot.

Paul

[paulpb123]

I don't know if this makes any difference, but the AQ I was sent was for small claims and there was no issue about proposed Directions, so I never had a chance to do a Draft Order. I simply ticked the box that said are you OK about this being allocated to the small claims. Bet Accord's solicitors didn't though. I've been kept completely in the dark by the courts regarding this claim. Its a joke. The only info I've had is to say 1) this claim has been transferred to Shoreditch County Court 2) This claim has been transferred to Bradford County Court 3) this claim has been transferred to Shoreditch County Court (upon reading Claimant's letter) 4) this claim has been transferred to Central London County Court. That's it! We amended the claim to include the other person on the mortgage but have no idea if that's been sorted out...that was when it was originally at Shoreditch. Whenever I've phoned the relevant court they can never give me any info because they've either not got the papers yet or they've just sent them to a different court. Don't know whether to write 'I' or 'we' in the letters! Call me unreasonable but I feel like I'm in a bloody Kafka novel.

 

Right, onto my main point (sorry for excessive ranting here). I want to send a Part 18 request and I've already got the Draft Order for directions ready to go. Is there anything other than asking for a breakdown of costs that I should put in the P. 18 because I suspect that they may write back saying they've already provided this in response to my LBA. Thanks in advance for any help. We could really do with a win, eh?

Paul

[zootscoot]

Ask for any info regarding how they estimated their losses to be the amount stated in the ERC and minutes of any meetings where this was discussed or who had responsibility for setting the fee and how this was ratified or adopted by the company.

[paulpb123]

You don't give up easily do you Zoot! Nor do I. Let's see what happens next.

Very best,

Paul

[paulpb123]

I've been talking to a number of people over the last few days and looking at the advice of the mods and its very clear that now is the time to get out. Accord are not willing to negotiate a settlement and I have no legal training so its pointless going up against barristers (as we all know only too well). It does hurt a little because of the amount of time and effort that we've all put in, and I still haven't had an answer from Accord as to how they can justify a charge of £9,750 for redeeming early. Sounds like an unfair penalty to me. I don't know why the OFT are so concerned about mortgage exit fees while ignoring the question of these excessive ERCs. Maybe they will get around to tackling ERCs at some point. Maybe things will change.

 

Can I say a hearty thank you to everyone on this forum for your spirited support, it really has been very much appreciated. You are like friends although I've never met any of you. To the lovely Zoot, what can I say? I'm sure everyone will agree with me when I say that you've been exceptionally patient and selfless, thank you so much for all your time and effort. I've no idea as to an effective exit strategy but I'm going to start by asking the court to withdraw my claim in the morning. I'm going to lick my wounds and then sharpen my claws for Barclaycard, Natwest and Lloyds TSB.

Very best wishes to you all,

Paul

[dolly]

Paul, you are doing the right thing, and after all the effort we have all put in I know exactly how you feel.

 

Have PM'd you.

 

xx

[zootscoot]

Hi Paul,

 

Brave decision and the right one. Have you tried negotiating to withdraw on terms of no costs? If you withdraw directly via the court you will be automatically liable for their costs to date.

 

The fight will continue but on different tac no more claims. We'll have to think of other ways to keep the heat on these companies which doesn't involve handing money over to them and their legal teams.

 

Best wishes

 

Zoot

[paulpb123]

Dear Zoot,

I'm going to do just that. Rather than withdrawing first, I'll have a chat with their legal team.

Kind regards,

Paul