Robinson Way/horwich claimform - old Cahoot Flexi loan [got backdoor CCJ/CO] -** WON (TWICE) WITH COSTS **

[cymruambyth]

Shadow25, mine was with Cap1; good luck with Cahoot, it's a battle in waiting.......

[Shadow25]

All set for Trial on Thursday and am best prepared as I can be with my arguments clearly thought through and confident of the law. Trial bundle sent to me containing no surprises & now it's down to me.Cost schedule just received in excess of £5k on an alleged £6k debt including estimated counsel fees of £1650. According to my research counsel fees are limited to £690 for this level of debt in Fast Track- could someone confirm please? I have also read that you only need to submit a schedule of costs normally on N260 ( not so by RW's solicitors!) in advance of Trial if it is due to be more than one day and it isn't. I have spent many many hours in preparation and am aware that the litigant in person hourly rate is £18. Bearing in mind the ridiculous costs served on me I'm determined to seek reasonable costs which may act as some sort of deterrant to RW going forward. If anyone can provide a general guide on what may prove acceptable I'd be most grateful as I assume not all of my needed research will be acceptable to the DJ.

[GAVBU28]

Good luck Shadow, following with interest.

 

I too have a case very similar to yours, I'm awaiting a reply to my defence.

[Shadow25]

Thanks gav- never been to Trial before but pretty confident that I will do myself justice.Win ,lose or draw I will post up my experience.Could do with some advice regarding my own costs as detailed in my previous post. Anyone able to help?

[cymruambyth]

Good luck

[Andyorch]

All set for Trial on Thursday and am best prepared as I can be with my arguments clearly thought through and confident of the law. Trial bundle sent to me containing no surprises & now it's down to me.Cost schedule just received in excess of £5k on an alleged £6k debt including estimated counsel fees of £1650. According to my research counsel fees are limited to £690 for this level of debt in Fast Track- could someone confirm please? I have also read that you only need to submit a schedule of costs normally on N260 ( not so by RW's solicitors!) in advance of Trial if it is due to be more than one day and it isn't. I have spent many many hours in preparation and am aware that the litigant in person hourly rate is £18. Bearing in mind the ridiculous costs served on me I'm determined to seek reasonable costs which may act as some sort of deterrant to RW going forward. If anyone can provide a general guide on what may prove acceptable I'd be most grateful as I assume not all of my needed research will be acceptable to the DJ.

 

Here is a draft bill of costs you will have to disregard the rate as its now £18 ph Draft LiP bill of costs for detailed assessment.pdf‎

This is for detailed assessment but will give you an idea of format and layout.

 

Also another here post#55 http://www.consumeractiongroup.co.uk...HELP-PLZ/page3

 

Regards

 

Andy

Edited March 1, 2012 by Andyorch

[Shadow25]

Well guys my confidence was misplaced as I had a very difficult 4 hours today battling against RWs barrister & witness. My defence was no DN issued by OC & defective NoA from old RW to new RW-date & assignee,also half a stab at vague particulars. Unfortunately due to my lack of Court know how I wasn't allowed to use all my ammo regarding why the NoA was effected the way it was. I had evidence that the licensee had not been changed on their Consumer Credit licence until 5/10-5 days after the assignment-couldn't use it as it was only mentioned in my WS not Defence and all my stuff surrounding the 1986 Insolvency Act was also ruled out for the same reason.

 

That left the dual dates on the NoA which was quickly dismissed. The POC were allowed as proceedings were commenced in Northampton & it soon came down to the lack of a DN. I did well at this point pointing out that the DN missed most of the required elements. The DJ found in my favour in his Judgement on that point but unfortunately he considered that the bad notice was sufficient to rely on for non-default contractual termination which had only been brought in as an argument in their last WS-not sure how it was allowed for them to add argument &that point but it was allowed all the same. The individual term quoted-9d- was actually 9a and required giving me 30 days notice and the letter only gave me 10 days. I had brought in Brandon v Amex Court of Appeal supposedly to support my case but nowhere in it could I see a categoric ruling out of the ability to non-default contractually terminate and the DJ found against me on that point.

 

This only left the fact that I had correctly said that I had not been sent a DN and they had only produced a template instead of a copy or reconstituted copy together with an unintelligible data print with no explanation of what it meant from the Witness. After 40 minutes of living on a knife edge the DJ finally found in my favour dismissed the case and I handed over my modest costs of c £400 which I had decided to just bring along on the day. These were not objected to as they were modest-compared to the £5k+ of the other side. The DJ commented on the high standard of my 5 page skeleton argument and case law which I handed over to DJ & RW 30 minutes before the Trial. Their skelton was pretty poor by comparison.

 

I informed the DJ that the only access to legal advice I had was via this forum and without it I would not have defended! A mighty big thank you to Jasper and everyone else and thanks for your well wishes guys. I need a drink now but in a weird way I kind of enjoyed the experience and wouldn't be fearful in the future. I got the distinct feeling that the DJ was keen to find against me as he didn't seem to care that the DN was for an overdraft,the WS said credit card & the product was actually a flexible loan! However I must say he guided me particularly kindly and if there is ever a repeat I would like to think that my oral evidence could match the written evidence. Thanks once more jasper.

[DonkeyB]

What a great result. You overcame the double standards and stood your ground. Well done.

[cymruambyth]

Well done, a brilliant success. It always seems strange when you win and nearly all your hard work is dismissed, just for one point to succeed.

[Shadow25]

Thanks Cym. The Witness was a sweet girl who had clearly not written the statement and as soon as the topic got on to anything supplied by the OC-cahoot-she kept saying "that's what they sent us". When I said to her "I hope you can make more of this diary print than I can as it is just a load of dates & numbers" she agreed with me! What surprised me was how friendly the barrister was and the DJ for that matter although he did get quite hot under the collar when I was talking about the NoA. Can't quite believe it's over-been hanging over me for 3 years.

[Jasper1965]

Oh well done Shadow!!

 

must have been exruciating for you because I've just found myself shaking my head and saying "No,no.no" and worse whilst reading the first two and a half paras of your report from the Court.

IMO The Judge gave them their moneys worth and enough rope to hang the entire staff of Robbers away but had to eventually concede and find in your favour.

 

Not to allow you to argue a pertinent point which was in your witness statement is technically correct, to do so would have opened the door to an appeal from the claimant, sadly and not for the first time the judge then FAILED to apply the same standards to the claimant who quite patently was permitted to adduce from their WS.

 

Incorrect dates etc on the NOA is almost common ground such is the precedent, Judge might have found his findings ripped to shreds if this had ever gone to appeal. (IMO obviously).

 

Almost permitting a non default termination which was contrary to the t&c's of the account .... well you get the gist about how I feel you were treated by the Judge today, we'll leave it at that.

 

But the bottom line is you may have lost "The Judge Lottery" but you still won!!!!!

[Shadow25]

It certainly was nerve wracking listening to the judgement which went one way an then the other and back again! I was kicking myself for not getting the non default argument kicked out as I qoted Lord Justice Gross saying that once you've started down the DN route and failed to meet the necessary requirements you can't then say oh well never mind we will do it another way. Neither the barrister nor DJ were familiar with Brandon v Amex & so I'd probably have done better not mentioning it! Is there anything in there that I should have quoted as they were picking up on snippets like "well if you'd argued it earlier I might be minded to agree "etc. I kept saying no DN means that the debt is legally unenforceable but to no avail. Are there many T&Cs that seek to overide the need for a DN?-I know Capital One can't for instance and they fall down on prescribed terms in the Agreement as well . I had another RW case struck out last year when going for SJ and a couple of days ago they sought my proposals for repayment in view of the similar Defence to my Trial today with evidently little hope of success and threatening to go to Trial if I don't co-operate. Now these nice people might just be reviewing their decision on that one............and there are no others from anyone!!

[Shadow25]

Jasper- I can't thank you enough for your assistance. The majority of my skeleton argument came from the steers you gave me & the DJ actually said the standard of the paperwork was probably the best he'd seen from a LIP. He then said no one could object to my modest claim for costs as it was obvious that I had spent a lot of time preparing for the case looking straight at the barrister as he said it! That would be my best advice for anyone else attending Trial as preparation is key. The DJ was able to see past my stumbling around in the Court room because of the written word and obviously the cross examination of the Witness is your opportunity to destabilise their case and that is an art that needs working on for my part. Perhaps someone can now move this thread to the victorious with costs section! Immense feeling of relief- over & out.

[GAVBU28]

Congratulations Shadow, just goes to show that being well prepared for court is a must, go in half-heartedly and you’ll struggle.

Well done.

[Andyorch]

Well done shadow, preparation has always been key.

 

I will get your thread title amended to reflect the result.

 

Regards

 

Andy

[ims21]

Excellent result...congratulations

 

Thread title changed to reflect the outcome

 

ims

[Andyorch]

Many thanks Ims21

 

Andy

[citizenB]

Well done shadow

[Shadow25]

Well I've seen some bad losers in my time. Letter received this morning:

 

Further to our previous correspondence,we note that our client's claim at Trial was not successful due to the Judge's concern over the service of a DN.

 

As the Judge accepted that the debt was validly assigned,our client is clearly entitled to pursue this debt (Yeh right!). Accordingly,our client will now be serving a DN upon you in respect of the Abbey/Cahoot Agreement balance with the intention of bringing a further claim if the DN is not remedied and the balance paid.(LOL!)

You may want to consider settlement of this matter to avoid the costs of any future proceedings. ( you couldn't make it up!)

We also note that you were awarded the sum of £394.40 in respect of your costs. As you are indebted to our client well in excess of this sum,it seems sensible to offset this sum against the balance due and owing. Are you prepared to agree to such offset? (Answers on a postcard but I think not!)

 

Finally, and with regard to the second claim being run by our client for the Cpaital One account (application for SJ struck out May 11 as RW failed to respond to directions) our client has the evidence relating to service of the DN from Capital One ( but not an Agreement with prescribed terms or valid NoA & the DN will be bad in any case!) and is content to run the matter to Trial. (like to see you try!) We would invite you to consider settlement of this second claim should you wish to avoid the costs of litigation. (yeh right!)

 

We will await hearing from you.

 

I'm aware that RW monitor this sight but am not bothered as their letter amounts to harassment in my eyes and I wish to take pre-emptive action with these bunch of jokers. My initial reaction is that non payment of the court costs will represent contempt of court, reissuing of a DN after the debt has been assigned achieves absolutely nothing as the debt has been judged legally unenforceable at Trial & restarting the second claim appears to me as an abuse of court process but in some ways I would be delighted to go to Trial as this time I would nail them with the Insolvency Act & Consumer Credit Licence issues in relation to the NoA (which bears the wrong date of assignment in any case) as well as the other breaches. Can jasper or anyone else advise on whether the above should be reported to the relevant authorities and can I issue some form of counterclaim as now that I've done my research I'm really up for a fight with these guys. Thanks in anticipation!

[DonkeyB]

Certainly report to the OFT.

 

I think res judicata may apply. Their claim would essentially be identical - they could have withdrawn, issued the DN and claimed again. But they let the DN evidence be tested and lost. So the PoC would be identical. I don't think a judge would be happy to see this back in court.

 

Demand your costs by return failing which you will enforce through the courts.

[citizenB]

Cheeky sods.. they do like to try it on. Agree with DB..

[Andyorch]

Res Judicata most certainly applies DB:wink:

 

Andy

[Shadow25]

Thanks guys. Having researched the situation there is only party that needs to worry about incurring additional costs. Good to see DWF spending their clients money wisely-lol!

[ScarletPimpernel]

Sounds like the office junior trying to impress.

[Shadow25]

Well the good news is that I received my costs at the weekend. The "bad" news is that on 12/3/12 RW sent me a DN . Evidently they intend to issue a termination notice on the basis of non compliance with the DN and then issue fresh proceedings. They claim res judicata/estoppel does not apply as the issuing of a new DN ,followed by termination, represents a separate cause of action & does not represent a re-hearing. However I cannot agree as the POC will be essentially the same-£6180 + interest on a Flexible Loan. They went to Trial on the back of an unlawful termination as no DN had been issued and now seek to rectify their position by pretending there is an enduring agreement.

 

For the record the DN is imho defective as it is laid out as follows:

 

Provision breached:

 

Payment of the minimum monthly repayments on the payment dates

 

Nature of breach

 

You have failed to pay sums due of £6180

 

Acition required by you

 

Payment of the total arrears of £6180 by 4/4/12

 

The best bit of all- failure to comply with this notice will result in further action:

 

a The termination of your Agreement with us

b Legal action for recovery of all sums due under the Agreement.

 

In summary I believe that res judicata/estoppel does apply but in any event the actions taken by the OC ,assignee & claimant provide irrefutable proof that the agreeemnt was terminated in 2005. Namely that the OC had intended to issue a DN in 2005, issued a termination notice, passed the collection on to debt collectors before eventually selling my alleged account on to RW & Co in 2008 as a "charged off and defaulted account". This was followed by a series of letters and phone calls demanding full repayment before a Court claim was issued on 31/3/09. Three years later the case is dismissed with costs awarded in my favour as the DJ concluded that the account had been terminated unlawfully as no DN had been issued.

 

Now RW are prepared to issue a fresh claim on the back of an argument that as no DN was issued by the OC no termination could take place & by issuing a DN themselves for the full amount of the alleged debt this will now give them rights under s 87(1) of the CCA. An Act drafted to protect the consumer from unscrupulous lenders not provide lenders infinite attempts for them to follow correct procedure. If you take their argument to its logical conclusion they could go to Trial a thousand times with their "separate cause of action" being a new DN followed by a termination. Surely any reasonable person can make a distinction between lawful termination and unlawful termination. Follow procedure & its lawful ,do not follow procedure and its unlawful but the agreement is clearly terminated by the subsequent actions of both parties. Any attempt to issue a DN after termination will by definition not comply with the prescribed terms as there is no enduring Agreement and therefore no identifiable breach.

 

Or am I missing something??