Wescot taking me to court for MBNA debt ***STRUCK OUT***

[AndyOrch]

Many thanks SP

 

Regards

 

Andy

[citizenB]

This is great news, Clayt..

 

I'm losing count of the thread title amendments already this year

[DonkeyB]

CAG strikes again! Well done.

[clayts]

Cheeky blighters have rejected the whole amount of my costs, and offered me less, their 137.25 vs my 240.75, in particular disagreeing with the 6 hours I put down for researching consumer credit law and civil procedure rules, suggesting 3 was more accurate and also, laughably, disagreeing with my 2 hours for filing a defence as they state they never got it.... They also felt 2 hours was excessive for filing my acknowledgement of service, suggesting 15 minutes was nearer the mark. Clearly I shall argue the toss with them on those issues.

 

Of more concern is their magician's hat when in a separate letter they suddenly produce copies of my CCA from 1999, a statement of all transactions, and a rather odd looking Notice of Assignment which mentions the account went into Default. But, still no Default Notice interestingly.

 

They state that I now have 21 days to enter into a voluntary arrangement or they 'have the option of an application to the court to have the action reinstated or issuing a fresh Claim exhibiting in evidence the Documents we have enclosed'.

 

Is it worth me contesting their assertion that they can apply to the court for reinstatement, or should I just let them do it and then see them laughed out of court for still failing to produce all the documents requested ? Your advice would be most helpful...

[AndyOrch]

Res judicata refers to a decision in English law which has been decided once and for all by a judicial tribunal, such that the decision may only be challenged on appeal by another judicial tribunal higher in the court hierarchy. For example, a decision made at first instance by a High Court judge at a hearing may only be challenged by appealing to the Court of Appeal, and then to the House of Lords. Other than this procedure through the court hierarchy, the subject matter of the decision may not be relitigated by the parties at a later date.

The principle prevents the same claim from being raised again between the parties to the litigation (for example, the claimant raising the same claim for recovery or damages or other relief) or calling into question the correctness of the earlier decision (for example, where the defendant argues that a damages award is excessive). The principle applies to matters of fact and law, and mixed questions of fact and law. When a judgment is entered in respect to the facts, the cause of action and legal rights of the parties are extinguished and said to 'merge in the judgment'. The correctness of the decision is irrelevant, other than on appeal. A final decision must be appealed in order to be set aside the judgment or have it varied.

As such, the judgment operates as an estoppel to further litigation and extinguishes the legal rights that gave rise to the litigation in the first place.

 

Regards

 

Andy

[clayts]

Thanks Andy.

 

Could you just clarify one point for me - given that the judgment (strike out of the claim) was delivered by way of a timebound Court Order does that still hold good - in other words no formal judgment was ever issued ? Presumably the only way they can reopen proceedings is to apply to have the strike out order set aside - is that correct ?

 

(Sorry, that was two points )

[AndyOrch]

IT IS ORDERED THAT

1. Claim is struck out pursuant to CPR 3.4(2)(a) as disclosing no reasonable cause of action.

 

2. Either party may apply to have this order set aside, varied or stayed, but such an application must be made within 7 days of receipt of the order by the party so applying.

 

 

So res judicata stands.

 

Andy

[clayts]

Yay - nice one.

 

So essentially they are stuffed either way.

[AndyOrch]

In a word.....yes.

[clayts]

IT IS ORDERED THAT

2. Either party may apply to have this order set aside, varied or stayed, but such an application must be made within 7 days of receipt of the order by the party so applying.

 

 

So res judicata stands.

 

Andy

 

Andy, sorry to doubt your incredible legal mind, but I'm struggling to find where this is set down in CPR - can you point me to the relevant section so that I can quote it at Wescot please ? The only references I can find are 'within a reasonable time' and 'within 14 days' - I'm probably being a bit dim.....

 

Thanks

[citizenB]

http://www.consumeractiongroup.co.uk/forum/showthread.php?213664-Struck-out-claim-can-it-be-reinstated

 

You will find some information in the thread above.

 

Why do you need to quote anything at Wescott ?

[clayts]

http://www.consumeractiongroup.co.uk/forum/showthread.php?213664-Struck-out-claim-can-it-be-reinstated

 

You will find some information in the thread above.

 

Why do you need to quote anything at Wescott ?

 

Thanks for the link - v. useful

 

Well technically I don't need to quote anything I suppose, but I'm just trying to save them and me the hassle - I basically want them to admit they cannot pursue this debt and to get closure on it once and for all

[clayts]

Just realised I really was being incredibly thick - the reference to 7 days is on the Order itself. D'oh - a serious face-slap moment there, folks....

 

Still waiting to hear back from Wescot with regards to my revised claim for costs...

[citizenB]

Ok, I understand now

[clayts]

Well after a bit of to-ing and fro-ing we've agreed the level of costs they are paying. I couldn't be bothered to argue the toss about 2 and a half hours, but I did at least get them up from their original derisory offer.

[citizenB]

Excellent.. so when are they going to send you a cheque

[clayts]

Within 14 days or I'll send the Boys round....

[citizenB]

[clayts]

Cheque has now been received (donation on its way) and I'm now drafting a complaint with them about their conduct (sending letters saying I had a CCJ entered against me when I did not) and advising them strongly that if they intend to pursue this matter again I will defend it 'vigorously' - the resolution I will be seeking is them closing the case (and if possible getting them to remove records from credit ref agencies, tho' that might be pushing it...

 

Will post up my draft in the next day or so.

[clayts]

This is the substance of my complaint (the covering letter sets down a reasonable timeframe for their responses - acknowledge by e-mail within 2 working days giving name and contact info of person investigating, formal response in writing by letter within 10 working days or if unable to achieve this an e-mail within 10 working days stating when they intend replying and advising what information theyt are seeking (taken from my own employer's complaints policy)

 

This is the substantive complaint :

 

(1) Background

 

Wescot SPV Limited (‘Wescot’) brought a claim against myself in Northampton County Court Bulk Centre on 29 September 2011.

 

The proceedings alluded to certain documents which Wescot intended to rely upon in support of their claim.

 

Despite requesting sight of these documents, and mutually agreeing a timetable with Wescot enabling them ample time to provide the documents, it became necessary for myself to apply to the Court to issue a General Directions Order to seek possession of the documents in order that I could prepare my defence to the Court claim.

 

The Court issued an Order on 6 December 2011, directing Wescot to produce the documents by 20 December 2011 (copy enclosed for reference).

 

Wescot failed to produce the documents within the timescale and on 21 December 2011 the Court struck out Wescot’s claim.

 

(2) Details of Complaint

 

My complaint relates to three letters issued by Wescot Credit Services Limited on 10 December 2011, 22 December 2011 and 31 January 2012, copies of which are attached for your reference.

 

The two letters issued in December 2011 contain information which is a direct breach of the OFT Debt Collection Guidance.

 

The letter issued in January 2012 contains inaccurate information about the legal standing of Wescot in this matter.

 

I shall now expand further, looking at each letter in turn.

 

 

(a) The letter of 10 December 2011 notes in the opening paragraph :

 

As you have failed to respond to our attempts to contact you and agree repayment of the above account, a County Court Judgment (CCJ) is now registered against you for the full amount shown above. You should have received a copy of the CCJ from the County Court.

 

This is factually incorrect as the Court has never issued such a Judgment, and confirmed this with me.

 

This statement is a direct breach of the OFT Debt Collection Guidance, namely Section 3, Unfair or Improper Business Practices: False representation of authority and/or legal position, which states

 

3.5. Examples of unfair or improper practices are as follows…

 

… (e) falsely implying or stating that action has been taken when it

has not (For example, stating that civil action has been taken when it has not or that a court judgment has already been obtained when it has not

been.)

 

(b) The letter of 22 December 2011 notes in the opening paragraph

 

You have failed to pay in accordance with the terms of the County Court Judgment. Unless this default is paid within the next 7 days, the claimant may commence enforcement action….

 

…Further, an application may be made to the Court for an Order for Questioning. This would result in court documents being personally served on you, ordering your attendance at your local County Court…

 

Again, these two statements are factually incorrect and are a direct breach of the OFT Debt Collection Guidance referred to at (a) above.

 

You will note that the dates of both letters relate to the period just after the Court had issued the General Directions Order of 6 December 2011.

 

By the date of this second letter, Wescot had in fact already failed to comply with the Court’s Order of 6 December 2011 and by definition their claim had been already been struck out by the Court, which gave them no legal right to pursue the debt.

 

I do concede that both of these letters are apparently computer produced but they are ‘signed’ by S de Tute, who I understand is the President of the Credit Services Association. I find it incredible that Sara de Tute would be putting her name to such letters, which so clearly fall foul of the OFT Guidance.

 

© The letter of 31 January 2012 encloses the documents which were Ordered by the Court on 6 December 2011, over a month later than the deadline date. The documents are now purely academic as the Court claim has been struck out.

 

The letter notes that

 

We have the option of an Application to the Court to have the action re-instated or issuing a fresh Claim exhibiting, in evidence the Documents we have enclosed

 

On the first point, this is factually incorrect – it would not be possible for the Court to reinstate the Claim. The General Directions Order of 6 December 2011 clearly states that

 

This order has been made without a hearing under the Courts case management powers contained in the Civil Procedure Rules Part 3. You may within 7 days of the service of this order, apply to the Court to set aside or vary the order under Part 23 Rule 10…

 

As no such application was made within 7 days, the option for Wescot to apply to reinstate the original Claim had long passed.

 

On the second point, whilst it may be technically possible for Wescot to issue a fresh Claim, the claim would be vigorously defended by myself under Res judicata, in that it is not possible for a Claimant to bring the same proceedings again when a decision (in this case, the first claim being struck out) has already been made.

 

Once again, Wescot have breached the OFT Debt Collection Guidance namely Section 3, Unfair or Improper Business Practices: False representation of authority and/or legal position, which states

 

3.5. Examples of unfair or improper practices are as follows…

 

…(b) falsely implying or stating that action can, or will, be taken,

when legally it cannot be taken

 

(3) Resolution

 

I propose the following resolutions to this complaint :

 

(1) With reference to the letters of 10 and 22 December 2011, I seek your written assurances that you will review your procedures to ensure that other customers are not victims of the same type of computer-produced letter whilst legal proceedings are still underway (unless of course a County Court Judgment has actually been issued by the Court)

 

(2) With reference to the letter of 31 January 2012, I seek your written assurances that :

 

• Wescot will not be pursuing this matter in the Court in the future

• Wescot will be closing the matter

• Wescot will be removing any adverse information entered by them on any Credit Reference Agency records during the time they were assigned this debt

 

 

Should this matter not be resolved to my satisfaction, I shall have no alternative but to escalate this complaint with the Office of Fair Trading, which could result in financial penalties being imposed upon your organisation. I trust this will not be necessary.

 

 

 

Thoughts ?

[asokn]

The letter notes that

 

We have the option of an Application to the Court to have the action re-instated or issuing a fresh Claim exhibiting, in evidence the Documents we have enclosed

 

On the first point, this is factually incorrect – it would not be possible for the Court to reinstate the Claim. The General Directions Order of 6 December 2011 clearly states that

 

This order has been made without a hearing under the Courts case management powers contained in the Civil Procedure Rules Part 3. You may within 7 days of the service of this order, apply to the Court to set aside or vary the order under Part 23 Rule 10…

 

As no such application was made within 7 days, the option for Wescot to apply to reinstate the original Claim had long passed.

 

Technically the creditor could have applied under CPR r 3.1(2)(a) for the court to extend the time for compliance with that order. Therefore in theory an application could still have been made and succeeded.

[ScarletPimpernel]

The De Tute woman is a solicitor, so I suspect that her signature on these letters which deliberately misrepresent the legal position may be a rather more serious matter than just a breach of OFT guidance. May be worth checking what the SRA has to say about integrity.

 

If I were a betting man, I would wager that Westcot will pull the 'isolated human error' excuse as their response.

[clayts]

Technically the creditor could have applied under CPR r 3.1(2)(a) for the court to extend the time for compliance with that order. Therefore in theory an application could still have been made and succeeded.

 

Does this mean what I have written is incorrect then ? Has that time under 3.1(2)(a) now passed or is it open-ended ?

[citizenB]

Does this mean what I have written is incorrect then ? Has that time under 3.1(2)(a) now passed or is it open-ended ?

 

One assumes that they would have already applied for an extension had they intended to.. so I would say your letter "in theory" is correct.

 

Plus their letter states they "Have the option of an Application to have the case reinstated".. they do not say that they are going to apply for an extension to that application.

[AndyOrch]

The court’s general powers of management

3.1

(1) The list of powers in this rule is in addition to any powers given to the court by any other rule or practice direction or by any other enactment or any powers it may otherwise have.

(2) Except where these Rules provide otherwise, the court may –

(a) extend or shorten the time for compliance with any rule, practice direction or court order (even if an application for extension is made after the time for compliance has expired);

 

I would state that most DJs wouldn't accept or enforce it, 7 days is seven days, to allow would be a back down and detrimental to the DJs actions and opinion.

 

Regards

 

Andy