AOL Free Trial? Not so Free! ***WON***

[legalpickle]

legalpickle, could I just ask about this...

Quote:

you can only file the Judgment in Default request the day after the deadline expires].

What would happen if one was filed just before 4pm on the day time runs out?

It depends on the court. Some courts will ignore it, others will wait till the next day. Either way it's unlikely that a court would process the form immediately. It would take a few days for them to process it anyway. Also, if a defence is filed before they process it they will take in account the defence and not process the Judgment in Default.

 

The reason is simple, if a defendant files a defence it is likely that they will file an Application to Set Aside Judgment (in Default) which will delay the case even more. So by taking into account the defence and not causing the defendant to have to make an Application on Notice, it is likely to end sooner. It's in the claimant's best interests that way, rather than having to attend court for the Application hearing and final hearing, there would only be a final hearing.

[la2006]

Sorry for the delay - currently using an internet cafe while I wait for another modem/router to be sent, can’t currently use the internet at home.

I rang the court on May 7, and customer services said they had sent a defence the day before. ( there was me thinking they are cutting it a bit fine lol - now I see my calculations were completely off)

Also, do you have any close friends / confidants that can confirm that to the best of their knowledge the internet was never signed up for or used on the relevant computer and that on the other computer you cancelled it when you did?

Family member can confirm this.

The Pc which was in the living is used by my younger brother and mother.

My mother only can use Word to write a few letters, she has no idea how to connect to the internet/ or even how to set up the pc wiring etc.

Then my brother has severe disabilities and only uses the PC for things like audio story telling CD- roms, or learning games CD roms, or music CD roms. Or he likes to press the keys on the keybroad to see what come onto the screen ( in word).

Ideally one witness should be a member of your household and another witness a close confidant who knows you very well.

My mother and older brother

The more the better, but not too many. Also, how many people live in your household and have access to each computer?

4 people including myself live within my household( my mother, older brother and younger brother)

There is currently 2 desktop PCs and one laptop

1 pc is the living room which is used my mother and young brother

My pc which is in my room, which I only used

And the Laptop is my older brother which he only uses.

Broadband connection is used thorough a Belkin wireless moden router.

My older brother pays for the broadband which is with Orange since 2006

[legalpickle]

Sorry for the delay - currently using an internet cafe while I wait for another modem/router to be sent, can’t currently use the internet at home.

 

I rang the court on May 7, and customer services said they had sent a defence the day before. ( there was me thinking they are cutting it a bit fine lol - now I see my calculations were completely off)

 

Also, do you have any close friends / confidants that can confirm that to the best of their knowledge the internet was never signed up for or used on the relevant computer and that on the other computer you cancelled it when you did?

 

Family member can confirm this.

 

The Pc which was in the living is used by my younger brother and mother.

 

My mother only can use Word to write a few letters, she has no idea how to connect to the internet/ or even how to set up the pc wiring etc.

 

Then my brother has severe disabilities and only uses the PC for things like audio story telling CD- roms, or learning games CD roms, or music CD roms. Or he likes to press the keys on the keybroad to see what come onto the screen ( in word).

I'm playing devil's advocate here. Is there no way that accidentally your mother or brother pressed a few keys and connected to the internet? Or was the internet disabled so they couldn't connect?

 

Ideally one witness should be a member of your household and another witness a close confidant who knows you very well. The more the better, but not too many.

 

My mother and older brother

That's not what I'm asking! I asked for one in your household and one out of. Your mother and older brother are both within your household. Is there no close confidant who comes round often and knows what goes on?

 

Also, how many people live in your household and have access to each computer?

 

4 people including myself live within my household( my mother, older brother and younger brother)

 

There is currently 2 desktop PCs and one laptop

 

1 pc is the living room which is used my mother and young brother

My pc which is in my room, which I only used

And the Laptop is my older brother which he only uses.

 

Broadband connection is used thorough a Belkin wireless moden router.

My older brother pays for the broadband which is with Orange since 2006

Ok.

 

Please post the defence - minus confidential details - up here as soon as you get it. Also advise of which AQ is attached (N149 or N150) and the deadline for filing it with court.

[la2006]

I'm playing devil's advocate here. Is there no way that accidentally your mother or brother pressed a few keys and connected to the internet? Or was the internet disabled so they couldn't connect?

My mother can only used Word, if she need something of the internet she always asks me or my older brother. And she would need to have a wire to connect to the phone socket and back of the pc to access AOL dial up. My mother is someone who just can not / chooses not to attempt to set up a PC. For my younger brother I don't need to go into to much details but it would be impossible for him to do.

That's not what I'm asking! I asked for one in your household and one out of. Your mother and older brother are both within your household. Is there no close confidant who comes round often and knows what goes on?

Because of my younger brother's disabilities we have carers everyday of the week (morning/evening/ weekends), so having people come around on a social level is non existence. I can only think of two of my mother's friends who have known us for a long time and visit.

Ok.

Please post the defence - minus confidential details - up here as soon as you get it. Also advise of which AQ is attached (N149 or N150) and the deadline for filing it with court.

 

I received Mason Hayes defence today. I was slightly shocked initially by how many pages it was they say this claim should be stuck out. The defence is 8 pages long, and then around 50 pages is of the AOL Access terms and conditions and AOL Conditions of Service,

The AQ is N149 and is due back 1 June ( and states that ‘no fee is due’)

Manson Hayes Defence 1.doc

Manson Hayes Defence 2.doc

Manson Hayes Defence 3.doc

Manson Hayes Defence [41 -46] PT1.doc

Manson Hayes Defence [41 -46] PT2.doc

Edited May 17, 2009 by la2006

[legalpickle]

I'll look through this in detail tomorrow, all being well and respond then. There are a few points I want to examine in more detail.

 

Is there any way you can scan in the parts of the terms & conditions they refer to in the defence and post them up here?

 

It seems they've changed their tactic, because I know of several defences received by Mason Hayes that were basic denials of liability with no detail.

[la2006]

[3-29]

Manson Hayes Defence [3-29] PT1.doc

Manson Hayes Defence [3-29] PT2.doc

Manson Hayes Defence [3-29] PT3.doc

Manson Hayes Defence [3-29] PT4.doc

Manson Hayes Defence [3-29] PT5.doc

[la2006]

[3-29]

Edited May 18, 2009 by la2006

[la2006]

[3-29]

Edited May 18, 2009 by la2006

[legalpickle]

Please do me a favour rather than making me look through all the junk, point out the pages they referred to. I don't have all week to spend on this for you.

[la2006]

They refer to the entire AOL access agreement pages 3- 29 pages 30-40

which is the same as:

 

http://bbterms.aol.co.uk/memserv/tc_access_agreement.htm

Manson Hayes Defence [3-29] PT15.doc

Edited May 17, 2009 by la2006

[legalpickle]

I think there's a misunderstanding. When I glanced through the defence they referred to specific terms. Please can you re-read the defence and check which numbers of the terms & conditions they refer to and then find those pages and advise me of them?

 

To read through the entire agreement plus the defence is going to be VERY time consuming.

[la2006]

Point 3 - says "Numbers within brackets in this amended defence refers to page numbers in that ‘A’ bundle".

 

I’ve attached the following sections

 

From the AOL access agreement

‘intro’ and 1 Personal Data [3-5]

3. Charges and Billings [pg 6-8]

9. Cancellation [pg 12 – 15]

 

From the AOL Conditions of Service (COS)

2. Some Basics of Your AOL membership

3 Charges, billings. And trial periods [42-43]

8. Cancellation. [44- 45]

Manson Hayes Defence AOL access agreement ‘intro’ and 1 Personal Data [3-5].doc

Manson Hayes Defence 3. Charges and Billings [pg 6-8].doc

Manson Hayes Defence 9. Cancellation [pg 12 – 15].doc

Manson Hayes Defence 2. Some Basics of Your AOL membership, 3. Charges, billings and trial per.doc

[legalpickle]

1. You've written "Manson Hayes" as the firm's name on all filenames. Not that it matters but they are called "Mason Hayes", i.e. no 'n'.

2. Is this the first defence you've received, or is it a second document? Or are there two documents entitled "defence"? Because you've written "amended defence".

[la2006]

Its the first defence, but they use 'amended' on the first page.

[legalpickle]

Its the first defence, but they use 'amended' on the first page.

Interesting.

 

Apologies for the delay. I have been very busy. I doubt I'll be able to draft responses to the defence by the deadline of filing the AQ due to unforeseen events. However there is no obligation to actually file a response to the defence, I prefer doing so as it responds in writing which is easier for me. Therefore I recommend filing the Allocation Questionnaire and we'll deal with responding to the defence and witness statements at a later stage.

 

For the AQ, download the form from http://www.hmcourts-service.gov.uk/courtfinder/forms/n149.pdf and follow the following instructions;

 

Page 1:

1. Top right hand corner, in Name of court, write the name of court in capitals, for example: MANCHESTER COUNTY COURT

2. Directly below 1 above, write the claim number in capitals, for example: 9MA00000.

3. Directly below 2 above, write: 1st June 2009

4. On the left hand side write your name as in the claim form. When printing cross out the word 'defendant' directly below the box.

5. A. Tick Yes.

6. B. Tick No.

7. C. Tick Yes.

 

Page 2:

8. D. Write 0.

9. E. Tick all No boxes.

10. F. Are there any dates over the next 4 months when you're not available or days of the working week [reasonably] that are best not? If yes, tick Yes and specify them in short format [for example 25/05] in the Yourself line. Otherwise tick No.

11. F. Tick No for the interpreter option.

 

Page 3:

12. G. Write the following:

The Claimant attaches to this Allocation Questionnaire the Claimant's Proposed Directions for the allocation of this claim.

 

The Claimant vigorously denies the defence raised by the Defendant as without reasonable prospects of success and untrue, and will respond to the defence in detail sufficient time prior to the hearing.

 

13. H. Tick No. When printed write 'N/A' directly below the No box.

14. I. Fill in the date as 29th May 2009.

15. I. Fill in your name in CAPITALS.

16. I. Write your address only. Do NOT give an e-mail address or fax number.

 

Print the completed copy [excluding the last page] into PrimoPDF and then print 3 of those. Complete the attached document, filling in the gaps and print 3 copies, attach the document to the back of the AQ.

 

Please advise which court your claim is in? I'll prepare a cover letter for you later and post it up here.

 

Send a copy of each with the relevant cover letter to Mason Hayes and to the court office [not to the London Court Services address].

proposeddirections.rtf

[la2006]

Please advise which court your claim is in? I'll prepare a cover letter for you later and post it up here.

 

BOW County Court, 96 Romford Road London E15 4EG

[legalpickle]

Ok, these are the cover letters to send with the AQ TOMORROW by SPECIAL DELIVERY.

 

The Court Manager,

Bow County Court,

96 Romford Road,

London,

E15 4EG

 

29th May 2009

 

Dear Sirs,

 

Re: Claim No.: 9.......

Parties: la2006 vs. AOL (UK) Limited

 

I write further to the above matter. I am the Claimant in this action.

 

Please find attached my Allocation Questionnaire in respect of this matter.

 

Sincerely,

 

 

la2006

 

---------------------------------

 

FAO: Mr. Marcus David Hayes,

Mason Hayes Solicitors,

 

29th May 2009

 

WITHOUT PREJUDICE, SAVE AS TO COSTS

 

Re: Claim No.: 9.......

Parties: la2006 vs. AOL (UK) Limited

 

I write further to the above matter. I am the Claimant in this action against your client.

 

I attach a copy of my Allocation Questionnaire by way of service which has also been sent today by Special Delivery to Bow County Court. I assume you will be filing your client's Allocation Questionnaire with the court office as well. Kindly serve a copy on myself.

 

It is my view that your client has no reasonable prospects of success in this action. I will detail the reasons in a response to your client's ridiculous and frivolous defence in due course.

 

It is my contention that defending an action without reasonable prospects of success is unreasonable behaviour in accordance with CPR 27.14[2][g]. Therefore if your client does not settle this claim satisfactorily, it is my intent to seek costs pursuant to CPR 27.14[2][g] against your client.

 

Should you wish to make an offer of settlement please do so in writing. In the alternative, I am open to utilizing the free small claims mediation service of HM Courts Service.

 

Sincerely,

 

la2006

[la2006]

Hi Legalpickie,

 

I got a reply back from Mason Hayes this morning with 2 letters enclosed and a copy of their Allocation questionnaire.

 

Of the allocation questionnaire:

Part d = they will be using 1 witness

Part :G The Court is requested to make an order that the claimant provides information showing that she cancelled her accounts with the Defendant in accordance wit the terms and conditions of the Defendant.

Mason Hayes Reply 3 june 09.doc

[legalpickle]

Ok. I seriously doubt they'll get their order without making an Application on Notice which would cost them £75 and we'll deal with that in the responses to their defence.

You've already written in your Allocation Questionnaire that you're willing to mediate, there's no reason to write a letter about it as well!

All you need to do is to wait for the Allocation Order from the court for now.

[la2006]

Hi Legalpickle,

 

I got the Allocation Order today, the date for the hearing is 10 August 2009 for 1 1/2 hours. Also, 20 July 2009 is the deadline for all documents to be delivered to the court and defendant.

 

I need to make an application for 'fee concession' for the hearing fee, which I assume is by completing the EX160 form, this I can post tomorrow.

Order Hearing - court docs.doc

Edited June 25, 2009 by la2006

[legalpickle]

Hi Legalpickle,

 

I got the Allocation Order today, the date for the hearing is 10 August 2009 for 1 1/2 hours. Also, 20 July 2009 is the deadline for all documents to be delivered to the court and defendant.

 

I need to make an application for 'fee concession' for the hearing fee, which I assume is by completing the EX160 form, this I can post tomorrow.

1. Yes, make the application for fee concession/remission for the hearing fee immediately. Copy the first page of the court order, fill in the court form, and write a brief, polite cover letter, referring to the time & date of the hearing, claim number and parties. Send it SPECIAL Delivery, as it's VERY important. If it doesn't arrive, and you don't pay, then your claim will be struck out!

 

2. Evidence needs to be served on the other party & the court by no later than 4pm on 20th July.

 

3. There's a mistake in the order. See number 7 at the bottom of page 1 of the attachments [or page 2 of the whole thing] - it says that witness statements must be exchanged by 4pm on 10th August, but that is the date of the hearing. It's obviously a mistake. I suggest you call the "orders section" in the court and point out the mistake, to get them to correct it. Call them immediately.

 

4. Most, if not all, courts have the free small claims mediation advice service. Check if your court has it, and if it does get their number. Will then draft a fax to Mason Hayes to advise them that you're willing to go through mediation, if they are. In the alternative, they should make an offer.

[la2006]

I called Bow County Court again and spoke to someone else. The first guy I spoke to said no they don't have the service but seemed so unsure, he actually told me to "google for it".

 

I called again today and the lady said that Bow county court don't have the free small claims mediation advice service.

[legalpickle]

I called Bow County Court again and spoke to someone else. The first guy I spoke to said no they don't have the service but seemed so unsure, he actually told me to "google for it".

 

I called again today and the lady said that Bow county court don't have the free small claims mediation advice service.

Every area has the free small claims mediation advice service apparently. Some areas will have the mediators with the larger courts. They can get copies of the court file at a day or two notice. I couldn't find where the one that covers Bow County Court is, so call the National Mediation Helpline tomorrow, please, on 0845 6030809. Their number was under the mediation for Central London County Court.

 

Advise them that you have a small claims case in Bow County Court and would like to attempt telephone mediation, if they could please advise how to reach the small claims mediation advice service that covers Bow County Court as the court staff at Bow County Court have no clue what you're talking about.

 

Please keep us posted.

[la2006]

I contacted Central London County Court, who have confirmed I can used the Free Mediaition service. I requested they send me the form via e-mail which they did straight away.

Mediation_reply_form_-Jan_09[1].doc

[legalpickle]

I contacted Central London County Court, who have confirmed I can used the Free Mediaition service. I requested they send me the form via e-mail which they did straight away.

Excellent. Fill it in and e-mail it to them. In the e-mail write the contact details for Mason Hayes Solicitors.

 

Also fax Mason Hayes & send 1st class post with the following (send a blank copy of the form the mediation service e-mailed you);

 

FAO: Mr. Marcus David Hayes,

Mason Hayes Solicitors,

 

6th July 2009

 

Dear Sirs,

 

Re: Claim No.: 9....

Hearing scheduled for: ... at ...

Court: Bow County Court

Re: Your Name vs. AOL (UK) Limited

 

I write further to the aforementioned claim.

 

I have been in touch with the free small claims mediation advice service, offered by HM Courts Service. I attach to this fax the form they sent me, which I have e-mailed back consenting to mediation. Should you also consent to using the mediation service, please fill in the form and send it to the details on the form. I would also appreciate if you confirm as such by return to me.

 

I should advise that mediation is useless if your client blanketly refuses to negotiate a settlement to my claim. I contend that your client has no reasonable prospects of success and therefore should your client refuse to settle this claim, I will seek costs pursuant to CPR 27.14[2][g] as I contend that such a blanket refusal alone will be sufficient to class as unreasonable behaviour. Further supporting such a contention is the excessive defence, none of which actually raises realistic prospects of a successful defence.

 

Your client is of course welcome to make an offer without using the mediation service, which would save time for all concerned.

 

Sincerely,

 

 

.... - Claimant