Legalcare or Aska Professional Ltd file court claim **Claim Dismissed + Wasted Costs Order**

[slick132]

Hi Eversir,

 

Because this case is important to many folk who are also being pursued by Legalcare, I'll ask for further input from the Site Team.

 

I'd like you to have the best possible chance of defending and winning.

 

[AndyOrch]

1. Paragraph 1 is denied there is no written agreement that this claim relies on.

 

2. Paragraph 2 is denied there was no visible on screen instructions with regards to cancellation of their on line service.

3. Paragraph 3 is denied in that terms (b) to (f) were clearly visible on the Claimant's website. Term (a) was only visible insofar as that a 14 day free, no obligation trial was mentioned during the sign-up process.

 

4. Paragraph 4 is denied, dissatisfied with the service I cancelled the agreement on 13th March 2013. Stopping payment was the only possible option available .As above the web page was designed to miss lead and deficient of any cancellation procedure.

 

5. As I cancelled the free trial within the 14 day period on 13th March 2013, have not used the service since and terms (b) to (f) were not made clearly visible.

6. There is no contractual obligation for payment to the Claimant. Furthermore the fees imposed are disproportionate under the Unfair Terms in Consumer Contracts Regulations 1999.

7. As no sum is owed to the Claimant, sec69 Interest is denied.

8.As per Civil Procedure Rule 16.5(4), it is expected that the Claimant prove the allegation that the money is owed.

9. By reason of the facts and matters set out above, it is denied that the Claimant is entitled to the relief claimed or any relief.

[Eversir]

Slick, Andyroch - thanks for your assistence!

 

Just a query on the amended Paragraph 5 - should there be a bit on the end of that e.g. "it is therefore denied any payment is due to the Claimant." or should it follow the format of "Paragraph 5 is denied..."

 

EDIT:

 

Actually just comparing this to their Claim, is the current response to Paragraph 2 still relevant? They don't actually bring up the issue of cancellation in that paragraph, just the date "an agreement in writing" was entered into and a mention about "terms and conditions for use of the Site".

[AndyOrch]

You will have to marry up my defence reference paragraphs...didn't have time late last night...split their PoC into paragraphs...number them and then re number the defence.

 

 

Regards

 

 

Andy

[AndyOrch]

If refute 2 is not referred to in their particulars then amend it but it is important to your defence as that is what your defence balances on.

[Eversir]

Sure, no problem. I appreciate you were working on it pretty late too

 

I've made alterations to make sure statements refer to the right paragraphs. I've also made some significant changes to paragraph 1, after reading through CPR 16 in full. Feedback would be hugely appreciated!

 

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1. It is accepted that LegalCare make claims to offer online legal advice through the website http://www.legalcare.co.uk, however I can neither admit or deny such advice is provided by solicitors or legally trained staff and require the Claimant to prove this statement as per Civil Procedure Rule 16.5(1)(b).

2. Paragraph 2 is denied; there is no written agreement that this claim relies on.

3. Paragraph 3 is denied in that terms (b) to (f) were clearly visible on the Claimant's website. Term (a) was only visible insofar as that a 14 day, free, no obligation trial was mentioned during the sign-up process. There were no visible on-screen instructions with regards to cancellation of their online service or clear presentation of terms to that effect.

4. Paragraph 4 is denied; dissatisfied with the service I cancelled the agreement on 13th March 2013. Stopping payment was the only possible option available. As above, the web page was designed to mis-lead and deficient of any cancellation procedure.

 

5. Paragraph 5 is denied as I cancelled the free trial within the 14 day period on 13th March 2013, have not used the service since and terms (b) to (f) were not made clearly visible.

6. Paragraph 6 is denied; there is no contractual obligation for payment to the Claimant. Furthermore the fees imposed are disproportionate under the Unfair Terms in Consumer Contracts Regulations 1999.

7. Paragraph 7 is denied; there is no contractual obligation for payment to the Claimant. As per Civil Procedure Rule 16.5(4), it is expect that the Claimant prove the allegation that the money is owed.

8. Paragraph 8 is denied; as no sum is owed to the Claimant, section 69 interest does not apply.

9. By reason of the facts and matters set out above, it is denied that the Claimant is entitled to the relief claimed or any relief.

[AndyOrch]

No.... paragraph one is not required...its not for you to explain the claimants status and claim at this stage that can be done in a Witness Statement further into the process.

 

 

I would stay with my initial 1. and restore 8.As per Civil Procedure Rule 16.5(4), it is expected that the Claimant prove the allegation that the money is owed.

[Eversir]

Ok, will scrap that then - thanks for the heads-up.

 

Paragraph 8 in the Claim refers to interest as per section 69. So, should I amend like this:

 

7. Paragraph 7 is denied; there is no contractual obligation for payment to the Claimant.

 

8. Paragraph 8 is denied; as no sum is owed to the Claimant, section 69 interest does not apply. As per Civil Procedure Rule 16.5(4), it is expect that the Claimant prove the allegation that the money is owed.

[AndyOrch]

Perfect...now you are getting the hang.

[Eversir]

Thanks andyorch, I'm (slowly) getting there

 

Final version. Will leave it up here in case there are any more alterations that come to mind and will post it Friday.

 

--------

 

1. Paragraph 1 is denied; there is no written agreement that this claim relies on.

2. Paragraph 2 is denied; there is no written agreement that this claim relies on.

3. Paragraph 3 is denied in that terms (b) to (f) were clearly visible on the Claimant's website. Term (a) was only visible insofar as that a 14 day, free, no obligation trial was mentioned during the sign-up process. There were no visible on-screen instructions with regards to cancellation of their online service or clear presentation of terms to that effect.

4. Paragraph 4 is denied; dissatisfied with the service I cancelled the agreement on 13th March 2013. Stopping payment was the only possible option available. As above, the web page was designed to mis-lead and deficient of any cancellation procedure.

 

5. Paragraph 5 is denied as I cancelled the free trial within the 14 day period on 13th March 2013, have not used the service since and terms (b) to (f) were not made clearly visible.

6. Paragraph 6 is denied; there is no contractual obligation for payment to the Claimant. Furthermore the fees imposed are disproportionate under the Unfair Terms in Consumer Contracts Regulations 1999.

7. Paragraph 7 is denied; there is no contractual obligation for payment to the Claimant.

 

8. Paragraph 8 is denied; as no sum is owed to the Claimant, section 69 interest does not apply. As per Civil Procedure Rule 16.5(4), it is expected that the Claimant prove the allegation that money is owed.

9. By reason of the facts and matters set out above, it is denied that the Claimant is entitled to the relief claimed or any relief.

Edited January 3, 2014 by Eversir

[slick132]

Hi Eversir and thanks to Andyorch for advising with the Defence. This looks far better than my suggestions and will improve your chances of winning.

 

[Eversir]

Hi guys,

 

 

Just a brief update really - I have received the Directions Questionaire. All fairly straight-forward and filled in, ready to be posted shortly

[Eversir]

Update:

 

I have received Aska Professional's directions questionnaire this morning. Similar to Danielle's case (http://www.consumeractiongroup.co.uk/forum/showthread.php?395012-Legalcare.co.uk-Court-Claim-**Settled-at-Mediation**/page4/#64), under "hearing venue" the Claimant has stated:

 

"Brighton County Court. The Claimant's registered office and operations are in Hove. It will be costly for the Claimant to attend a trial in [location some 300 miles away] unless the Defendant is willing to agree to a disposal without a hearing pursuant to CPR27.10."

 

Although unlike Danielle's case, I have not (as of yet) received a letter asking to agree to disposal without hearing.

 

Should I ignore for now and then do what Mike_Hawk suggested in Danielle's case if a letter comes through my door?

[AndyOrch]

You are the Defendant and LiP...all hearings will be held in your local County Court...not theirs.You did stipulate this on your DQ Eversir?

 

Regards

 

Andy

[Eversir]

I asked for the hearing to be held at my local county court, also stating that travelling to the Claimant's local county court would be difficult for me owing to being a full-time student in higher education.

 

I'm also the Defendant (typo I assume!)

[AndyOrch]

Oops yes apologies...All claims and hearings are held in the defendants CC automatically....its their claim their problem.

[Eversir]

Mediation appointment now booked for next month.

 

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whatnottodo, you might be best off posting in the general forum (or starting your own thread). I'm not sure how many people are following this thread as it's sort of specific to my own case.

 

http://www.consumeractiongroup.co.uk/forum/showthread.php?388765-Legalcare.co.uk-BEWARE-Sting-In-The-Tail!!!!/page12

 

That said, I totally agree with you: LegalCare have been changing their terms and conditions since March (several times, actually). I wasn't even given a phone number to call them on when I signed up - they didn't advertise it. No geographical address either. Looking back now I should have known it was dodgy, but you learn.

 

If I were you I'd get an exact date and time you called them (phone record/statement etc) for use as evidence later on, if it comes to it.

 

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Edited February 10, 2014 by slick132

[slick132]

Whatnottodo's post and a copy of Eversirs reply has been moved - http://www.consumeractiongroup.co.uk/forum/showthread.php?417353-Legalcare-and-their-quot-solicitors-quot-demands&p=4466929&viewfull=1#post4466929

 

[Eversir]

Hi guys,

 

Just a refresh as I will have the mediation appointment shortly. I've got a list of everything I was to say; short and sweet but it get's the point across.

 

One thing I wanted to query: if this whole situation causes me that much stress that I feel I have to suspend my studies, any idea if I would be entitled to claim back my tuition fee (this year's) from Aska Professional Ltd?

[AndyOrch]

" One thing I wanted to query: if this whole situation causes me that much stress that I feel I have to suspend my studies, any idea if I would be entitled to claim back my tuition fee (this year's) from Aska Professional Ltd? "

 

Dealing with personal debt problems is not a viable reason Im afraid.

 

Andy

[Eversir]

Mediation has failed.

[honeybee13]

I'm sorry to hear that, Eversir. Are you able to tell us anything about what happened please?

 

HB

[Eversir]

Certainly

 

The mediator opened with the Claimant's arguments, summing up basically what they've already said in their PoC. Interestingly they also noted that although I'd cancelled via PayPal, they still do not think this counts as cancellation of contract.

 

I explained to the mediator my side of the argument (again, a summary of the points raised in the defence), in particular stating that the terms the Claimant is claiming under were not made visible and I cancelled via the only method I knew how, the very same day.

 

I also stated that the Claimant appears to have changed their website as a result of these complaints, and there are countless instances of other people complaining about the same problem (so much so, trading standards are now investigating the company). Finally, I quoted the relevant case law (OFT v Ashbourne) and explained the decision that consumers may cancel a contract in ways other than the supplier's T&C's, including by cancellation of the payment mandate. My offer to the Claimant was to discontinue by consent with no order as to costs.

 

The Claimant refused this offer and stated that OFT v Ashbourne is not relevant in these circumstances. They stated that I'd expressedly agreed to the terms they are claiming under, and so on and so forth. They claimed that the changes to the website had nothing whatsoever to do with any complaints. They offered to settle for £100, which I refused.

 

Obviously the above is merely a summary, but that covers the main points discussed.

[honeybee13]

Thank you for all that. I hope the people in the know will be along later.

 

HB

[slick132]

Hi Eversir,

 

Have court Directions already been given as to what follows if Mediation fails.