Settle f&fl or part 36? -help/advice

[jonji]

The Mould-thank you for your time and effort with your contributions.

 

I have gone through the whole of this thread and made notes. I am hoping by the end of the day that I will have put something together with which I can make a counter settlement offer. With your help, fords help and steampowered help, I am feeling somewhat calmer now! If I come up with some more questions while I am drafting I will post on here again shouting 'help'!

 

I have to start wading through my paperwork to begin putting my bundle together in the next few days; so I am prepared if this matter proceeds to trial. However, I am sure if it does, I will be successful (providing the judge takes on board Brandon's appeal re defective DN's!)

 

I did try to send you a PM, but I haven't been able to do it!

 

Thank you again

 

jonji

[The Mould]

The Mould-thank you for your time and effort with your contributions.

 

I have gone through the whole of this thread and made notes. I am hoping by the end of the day that I will have put something together with which I can make a counter settlement offer. With your help, fords help and steampowered help, I am feeling somewhat calmer now! If I come up with some more questions while I am drafting I will post on here again shouting 'help'!

 

I have to start wading through my paperwork to begin putting my bundle together in the next few days; so I am prepared if this matter proceeds to trial. However, I am sure if it does, I will be successful (providing the judge takes on board Brandon's appeal re defective DN's!)

 

I did try to send you a PM, but I haven't been able to do it!

 

Thank you again

 

jonji

 

Thank you jonji for your reply.

 

The Judge is bound by the Court of Appeal's decision as regards the Brandon appeal, therefore, if your default notice is invalid/defective, the Claimant's case is over. The lower Courts are bound by the Court of Appeals' decision on the Brandon case and indeed all lower Courts (this includes High Courts) are bound by any decision handed down by the Court of Appeal on any point of law.

 

I agree with you that between, Ford, Steampowered and myself, we should be able to help you bring closure to this matter, however, with respect, I have already given you the points of law that cannot be refuted by the Claimant, his claim cannot proceed it is over for him.

 

He terminated the agreement via the statutory route, his case turns on compliance with his obligations under that statutory route, which, according to your posts (which I do not doubt) he has not complied with. The agreement is a bilateral agreement, in order to re-instate/make live again, the creditor requires your express consent, which of course you are not going to provide because you are not willing to cure his problems, which, without your help, are impossible for him to cure.

 

Yes indeed, if you require any further help on this matter, then do not hesitate to shout to us.

 

You know this case better than any of us, I have not the details of the default notice, however, you appear to be quite an intelligent fellow and on top of your case, the one further point of law that I might add at this stage is that the creditor is the contract breaker and wrongdoer in this matter and that you are the innocent party, in this regard, on top of all other research that you are tasked with at present, have a look at breach of contract, in particular fundamental breach of contract and the innocent party's rights to elect a remedy.

 

Can you please tell me about the default notice, in what regard is it defective and how did it come about that the same was served on you?

 

Kind regards

 

The Mould

[jonji]

Thank you again The Mould.

 

With reference to the DN it 'failed to provide the requisite 14 days from service. The date was between 1-3 days late'. (Quote from the last claimants witness statement).

 

Regards,

 

jonji

[jonji]

Quick answer needed for a question........ Does the court bundle have to be at court 7 days or 7 working days before the trial?

[steampowered]

7 days, not working days. This is stipulated in CPR 2.8.

 

But these are 7 'clear' days. You do not include the day of the hearing itself or the day on which you actually serve the bundle.

[jonji]

Thank you steampowered.

 

That clears that up then. I looked at CPR 2.8 and noticed it is different times for different documentation. Is the bundle 7 days then and not 14 days? I am getting confused as I can't remember how long I had in previous court hearings to get the bundle served at court and on the claimant....looking at CPR 2.8 I didn't see a specific time for bundlles! Sorry for the questions!

 

Regards,

 

jonji

[The Mould]

Thank you steampowered.

 

That clears that up then. I looked at CPR 2.8 and noticed it is different times for different documentation. Is the bundle 7 days then and not 14 days? I am getting confused as I can't remember how long I had in previous court hearings to get the bundle served at court and on the claimant....looking at CPR 2.8 I didn't see a specific time for bundlles! Sorry for the questions!

 

Regards,

 

jonji

What track is your case and what division of High Court isit listed on?

Kind regards

The Mould

[The Mould]

Thank you again The Mould.

 

With reference to the DN it 'failed to provide the requisite 14 days from service. The date was between 1-3 days late'. (Quote from the last claimants witness statement).

 

Regards,

 

jonji

 

Then there is no doubt as to your case relying upon the Brandon appeal as a complete Defence against this claim brought by the Claimant.

 

Kind regards

 

The Mould

[The Mould]

Thank you steampowered.

 

That clears that up then. I looked at CPR 2.8 and noticed it is different times for different documentation. Is the bundle 7 days then and not 14 days? I am getting confused as I can't remember how long I had in previous court hearings to get the bundle served at court and on the claimant....looking at CPR 2.8 I didn't see a specific time for bundlles! Sorry for the questions!

 

Regards,

 

jonji

Appendix 6 - Guidelines on Bundles- CHANCERY GUIDE

Bundles of documentsmust comply with paragraph 3 of PD 39 Miscellaneous Provisions relating toHearings. These guidelines are additional to those requirements, and theyshould be followed wherever possible.

1. The preparation ofbundles requires co-operation between the legal representatives for allparties, and in many cases a high level of co-operation. It is the duty of alllegal representatives to co-operate to the necessary level. Where a party isacting in person it is also that party's duty to co-operate as necessary withthe other parties' legal representatives.

2. Bundles should beprepared in accordance with the following guidance.

1A–203 Avoidance ofduplication

3. No more than onecopy of any one document should be included, unless there is good reason fordoing otherwise. One such reason may be the use of a separate core bundle.

4. If the samedocument is included in the chronological bundles and is also an exhibit to anaffidavit or witness statement, it should be included in the chronologicalbundle and where it would otherwise appear as an exhibit a sheet should insteadbe inserted. This sheet should state the page and bundle number in thechronological bundles where the document can be found.

5. Where the courtconsiders that costs have been wasted by copying unnecessary documents, aspecial costs order may be made against the relevant person. In nocircumstances should rival bundles be presented to the court.

1A–204 Chronologicalorder and organisation

6. In generaldocuments should be arranged in date order starting with the earliest document.

7. If a contract orother transactional document is central to the case it may be included in aseparate place provided that a page is inserted in the chronological run ofdocuments to indicate where it would have appeared chronologically and where itis to be found instead. Alternatively transactional documents may be placed ina separate bundle as a category.

39APD.3 - paragraph 3 of PD 39 MiscellaneousProvisions

Bundles of documentsfor hearings or trial

3.1 Unless thecourt orders otherwise, the claimant must file the trial bundle not more than 7days and not less than 3 days before the start of the trial. (My emphasis added on this point)

3.2 Unless the court orders otherwise, the trial bundleshould include a copy of:

(1) the claim form and all statements of case,

(2) a case summary and/or chronology where appropriate,

(3) requests for further information and responses to therequests,

(4) all witness statements to be relied on as evidence,

(5) any witness summaries,

(6) any notices of intention to rely on hearsay evidenceunder rule 32.2,

(7) any notices of intention to rely on evidence (such as aplan, photograph etc.) under rule 33.6 which is not—

(a) contained in a witness statement, affidavit or experts'report,

(b) being given orally at trial,

© hearsay evidence under rule 33.2,

(8) any medical reports and responses to them,

(9) any experts' reports and responses to them,

(10) any order giving directions as to the conduct of thetrial, and

(11) any other necessary documents.

3.3 The originals of the documents contained in the trialbundle, together with copies of any other court orders should be available atthe trial.

3.4 †The preparation and production of the trial bundle,even where it is delegated to another person, is the responsibility of thelegal representative who has conduct of the claim on behalf of the claimant.

3.5 The trial bundle should be paginated (continuously)throughout, and indexed with a description of each document and the pagenumber. Where the total number of pages is more than 100, numbered dividersshould be placed at intervals between groups of documents.

3.6 The bundle should normally be contained in a ring binderor lever arch file. Where more than one bundle is supplied, they should beclearly distinguishable, for example, by different colours or letters. If thereare numerous bundles, a core bundle should be prepared containing the coredocuments essential to the proceedings, with references to the supplementarydocuments in the other bundles.

3.7 For convenience, experts' reports may be contained in aseparate bundle and cross referenced in the main bundle.

3.8 If a document to be included in the trial bundle isillegible, a typed copy should be included in the bundle next to it, suitablycross-referenced.

3.9 The contents of the trial bundle should be agreed wherepossible. The parties should also agree where possible:

(1) that the documents contained in the bundle are authenticeven if not disclosed under Part 31, and

(2) that documents in the bundle may be treated as evidenceof the facts stated in them even if a notice under the Civil Evidence Act 1995[>>Text] has not been served.Where it is not possible to agree thecontents of the bundle, a summary of the points on which the parties are unableto agree should be included.

3.10 The party filing the trial bundle should supplyidentical bundles to all the parties to the proceedings and for the use of thewitnesses.

I hope the foregoing is helpful to you.

Kind regards

The Mould

[jonji]

There is has not been a 'track' allocated. It is in the County Court The Mould. My case is relying on the Brandon case re DN.

Back to the bundle question (phone ringing now!); is it 7 or 14 days please?

 

jonji

[The Mould]

There is has not been a 'track' allocated. It is in the County Court The Mould. My case is relying on the Brandon case re DN.

Back to the bundle question (phone ringing now!); is it 7 or 14 days please?

 

jonji

 

File and serve your bundle 7 clear days before the hearing, clear days meaning = working days - Mon to Fri.

 

Brandon is still in your favour and you must refer the district judge to it and provide both him and the Claimant with a copy of the Transcript from the Court of Appeal, invite the judge to peruse the same and draw his attention to the relevant paragraphs thereof in respect of the statutory provisions of s.87(1) of CCA 1974 (as amended) and the Lords qualified judgement handed down thereon in favour of Brandon.

 

Kind regards

 

The Mould

[Guest]

jonji

36 offers are not considered by the J until the end re costs. so, if you decide not to accept etc/or your counter is not accepted, and it continues to hearing, and you lose (not saying you will, just for eg), and they bring their 36 up, then you can argue that it was not in the prescribed form etc (presuming it is non compliant?) and so it should not be considered? if that makes sense!

as though this is re a summary judgment application, then you should have grounds, as mould says, to avoid SJ? see the cpr rules (24.2 etc) re summary judgment applications and the grounds for SJ.

how long roughly have you got until the hearing? 7 days?

Edited October 31, 2013 by Ford

[The Mould]

The Mould-thank you for your time and effort with your contributions.

 

I have gone through the whole of this thread and made notes. I am hoping by the end of the day that I will have put something together with which I can make a counter settlement offer. With your help, fords help and steampowered help, I am feeling somewhat calmer now! If I come up with some more questions while I am drafting I will post on here again shouting 'help'!

 

I have to start wading through my paperwork to begin putting my bundle together in the next few days; so I am prepared if this matter proceeds to trial. However, I am sure if it does, I will be successful (providing the judge takes on board Brandon's appeal re defective DN's!)

 

I did try to send you a PM, but I haven't been able to do it!

 

Thank you again

 

jonji

By the way, if you domake any settlement offers, you mustensure that, as one of the clauses, theoffer to settle is made “withoutany admission of liability to the amount claimed”.

The Claimants’ Part 36 offer is not valid, because, as Isaid earlier, his claim cannot proceed as his Pt 36 offer relates to a claim that is badin law and therefore not recognised as a valid one. (Brandon case is central to your Defence inrespect of invalid default notice served and relied upon by the Claimant).

What is the total amount claimed by the Claimant under thecredit agreement as due and owing?

As regards his costs incurred as of the date hereof, you arenot legally responsible for such, becausehis claim is bad in law and cannot proceed. Therefore, any settlement offer made by you in full and final should notinclude any costs incurred by the creditor/Claimant.

The text of your settlement offer (if you decide to make one) ought to be consideredso that if accepted, once concluded, brings about a complete clear and unequivocal closureto this matter.

If you do make a full and final settlement offer, post thesame up here – minus all personal details, and I shall peruse the same for youand post my advice and opinion thereon. I have substantial experience in full and final settlement contracts andhave secured numerous binding settle agreements for many members of Cag overthe last 3 years.

Finally, and this ismy personal opinion, given the circumstances of your case that havebeen posted here, If I was in yourposition, I would not offer any amount to the creditor. Heterminated via statutory route, thattermination was in contravention of statute, he cannot unilaterally reinstate the agreementbecause it is a bilateral contract; thereis no longer any contract extant between you and the creditor, the actual amount owed under the terminated contract– the debt, will still exist, however, becauseof the creditor’s actions, him being thecontract breaker and requiring your consent to make the contract liveagain, he cannot enforce the debt in anyCourt of England and Wales.

So, personally, I would state all of my valid assertionsposted here to the creditor and I would not offer him a single penny. I would state this to him and his instructedsols in the most respectful manner ofcourse and inform him that he would require a Supreme Court decision to be heldin his favour if he wishes to continue to pursue you for the amount claimed, which you do not accept any liability for, and in order for him to pursue you and enforcethe debt claimed, he will first requirepermission from the Court of Appeal on the grounds that their decision, which was based on statute, in the Brandon case was wrong in law. (I thinknot)

Stuff your creditor, toput it mildly, he cannot enforce the contractagainst you and the Supreme Court is not going to overrule the Court of Appeal in this matter nor disregard nor override the statutory provisions of any of thesections of the CCA 1974 (as amended) (my emphasis added)

It is still your call, you decide on what is best for you and yourfamily.

Kind regards

The Mould

[jonji]

Thank you TM for the above posts.......I haven't read through the bundle yet, but I will!

 

The offer to settle hasn't been made yet, as I am so unsure whether to offer them ie the full amount or less than their offer;the actual amount the bank sent on a recent statement, or nothing at all. I have less than three weeks before the court hearing, so I am not sure how long to give them to accept/decline the offer too!

 

I would just like to see the back end of it all as my health is an issue atv the moment. The point you make above is something I had thought about too that should be included in the offer. Another point is I think it should also be mentioned that the courts should be notified if they accept the offer (?)

I understand where you are coming from re your last post on here about not even making an offer, but although I know that I have a good chance of being successful at court, no one can ever be 100% and I really cannot afford to pay their costs.

 

I do not like to post too much information on here for obvious reasons, so putting figures and dates could all be linked to me for those that know the figures and dates! However, the bank say higher than the offer made as a p36. I could make the full amount providing there are no costs included and that would put an end to it hopefully! However, if they don't accept and it does end up in court, then they will have got more than their p36 offer and if they win, I would then have the costs to pay anyway! If I offer them less than their offer they could refuse and it goes to court too!! It's one big dilemma knowing the best way forward!!

 

Ford........the hearing is not far off three weeks.

 

Thank you both, you help is much appreciated jonji

[jonji]

..........forgot to ask if I should let them know that their offer is null and void? They did state on their offer to let them know if it was defective or non-compliant with Part 36! Could they not just make another? Also, do copies of offers need to be sent to the court?

 

Regards

[steampowered]

File and serve your bundle 7 clear days before the hearing, clear days meaning = working days - Mon to Fri.

 

Hi Mould, clear days is a slightly different concept. Clear days means you exclude the day on which the period begins and, if the end of the period is defined by reference to an event such as a hearing, you exclude the end of the period as well.

 

It does not mean you exclude Saturday/Sunday. These are included if the period is more than 5 days, and excluded if the time is 5 days or less.

[steampowered]

..........forgot to ask if I should let them know that their offer is null and void? They did state on their offer to let them know if it was defective or non-compliant with Part 36! Could they not just make another? Also, do copies of offers need to be sent to the court?

 

Regards

 

I am not sure why we seem to have reached the conclusion that the P36 offer is not valid?

[Guest]

I am not sure why we seem to have reached the conclusion that the P36 offer is not valid?

 

 

it is compliant then? had thought from posts that maybe it might not have been cpr compliant?

Edited November 1, 2013 by Ford

[jonji]

Hi Ford and Steampowered.

 

The Mould has mentioned in one of the above posts that their offer was not valid as they terminated when they shouldn't have. I will go back and see what number post it is!

 

Jonji

[jonji]

"Further, his CPR Pt 36 offer is not valid, because it relates to a claim that cannot, as a matter of law, proceed any further." #25

 

Regards

[Guest]

hi

i know mould said it would be n/a due to the claim itself being unfounded. but, that aside, i had thought for some reason maybe it wasn't actually cpr compliant? hence thoughts in #37 re that. maybe i misread something

[steampowered]

"Further, his CPR Pt 36 offer is not valid, because it relates to a claim that cannot, as a matter of law, proceed any further." #25

 

Regards

 

With respect to the Mould, I don't think this is right. Whether or not the Claimant has a valid claim does not affect whether the P36 offer is valid. You would basically just be writing back to the Claimant saying you don't think they have a case and of course they will disagree with that. Of course if the claim failed at trial the P36 would not have any affect.

[jonji]

OK, thank you Ford and Steampowered for the information above. I have to complete the offer by the end of the today and put it to them. Obviously, if they don't accept then off to court we go.

In my eyes, it is better that they get something rather than nothing if they lose at court......I am sure court have to take the Brandon appeal into account? I know The Mould says they do. Do you both feel the same on this point too, or do you have a different angle on it?

[The Mould]

Thesuccessful Brandon appeal; Harrison vLink Financial Ltd & Woodchester v Swain are all authorities on service of statutory default notices which are found to be invalidand which clearly show that the Claimant’sclaim in this present case cannot continue, because to allow it to do so would be incontravention of statue – CCA 1974 (as amended). His Pt 36 offer is therefore irrelevant. His claim must either be withdrawn or struckout by way of application.

Theabove facts mean that jonji is not liable for Claimant’s costs, because the claim is bad in law and cannotproceed. The Claimant’s costs are his(the Claimant’s) own wasted costs.

Jonji, your full and final offer ought to reflectthese facts and state to Claimant’s sols that it is made without any admission ofliability to the Claimant’s claim dated (put date here) and all amounts claimed therein.

In thelight of the above authorities, youinvite their client to discontinue with his claim. This offer is open for acceptance within 14days of receipt of such..

If yourclient rejects this offer or if no satisfactory resolution is reached as acompromise settlement between the parties at the end of the 14 day time-scalethat is suitable to both parties, pleaseadvise your client that I intend to make an application under CPR Pt 3 to strike out his claim and seek my costs forthe same.

Furtherand separate to the above, for the avoidanceof any doubt as regards service of Court documents, please see material set outbellow.

Rule6.1 Part 6 rules about service apply generally

6.1

ThisPart applies to the service of documents, except where—

(a)another Part, any other enactment or a practice direction makes differentprovision; or

(b) thecourt orders otherwise.

(OtherParts, for example, Part 54 (Judicial Review) and Part 55 (Possession Claims)contain specific provisions about service.)

Effectof rule (r.6.1)

6.1.1Other Parts and practice directions in the CPR making significantly differentprovision to that made in Pt 6 include Pt 54 (Judicial Review and StatutoryReview) and Pt 55 (Possession Claims) and the practice directions supplementingthose Parts.

InGodwin v Swindon BC [2001] EWCA Civ 641; [2002] 1 W.L.R. 997, CA, it was heldthat the court could not dispense with service under r.6.1(b) (or under what isnow r.6.16) where such a dispensation would constitute a retrospectiveextension of time for service specifically forbidden by r.7.6(3) (see furthercommentary following r.6.16).

Rule6.2 Interpretation

6.2

In thisPart—

(a)"bank holiday" means a bank holiday under the Banking and FinancialDealings Act 1971 in the part of the United Kingdom where service is to takeplace;

(b) "business day" means any dayexcept Saturday, Sunday, a bank holiday, Good Friday or Christmas Day; (my empathise added – businessday means a clear day)

©"claim" includes petition and any application made before action orto commence proceedings and "claim form", "claimant" and"defendant" are to be construed accordingly;

(d)"solicitor" includes any other person who, for the purposes of theLegal Services Act 2007 [>>Text], is an authorised person in relation toan activity which constitutes the conduct of litigation (within the meaning ofthat Act); and

(e)"European Lawyer" has the meaning set out in article 2 of the EuropeanCommunities (Services of Lawyers) Order 1978 (S. I. 1978/1910).

(TheEuropean Communities (Services of Lawyers) Order 1978 is annexed to PracticeDirection 6A.)

Kindregards

TheMould

[jonji]

Thank you TM.........I think I have enough information to finish the offer now and get it off to them.

 

If they accept, what is the procedure of notifying the courts that a settlement as been reached?

Do both parties sign some sort of document and hand it to the court? If so, should the claimant's solicitors sort this and should this be mentioned on the offer?

I don't have a 14 day period to wait for a response! Can it be 7 or 10 days?

 

Regards