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// WON \\ Taking on Iceland

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  • #16
    Re: Taking on Iceland

    Originally posted by friendlyfire View Post
    @R0b - can you tell me whether the Denton Criteria is to our advantage here? The solicitors were liaising with my Father only in the capacity of insurance negotiators and were sent quotes and photos to proceed with the insurance claim. They then ignored six weeks of warnings from my father that we would take Tesco to Court if they did not hurry up. At no stage did they or Tesco advise that they should be the agent for service of a legal claim.
    The Court of Appeal in several instances has confirmed that an application to set aside default judgment is in effect an application for relief from sanctions. That is to say, the starting point for the court is to determine the grounds relied upon under CPR 13 which here they are seeking to rely on 13.3 on the basis of reasonable prospects of successfully defending the claim which is at the courts discretion. In particular, Lord Justice Vos in Gentry v Miller and Another (Practice Note) [2016] EWCA 141 said the following:

    23. It is useful to start by enunciating the applicable principles. Both sides accepted that it was now established that the tests in Denton's case [2014] 1 WLR 3926 were to be applied to applications under CPR r 13.3 : see paras 39–40 of the judgment of Christopher Clarke LJ in Regione Piemonte v Dexia Crediop SpA [2014] EWCA Civ 1298 , with whom Jackson and Lewison LJJ agreed. It seems to me equally clear that the same tests are relevant to an application to set aside a judgment or order under CPR r 39.3 .

    24 The first questions that arise, however, in dealing with an application to set aside a judgment under CPR r 13.3 are the express requirements of that rule, namely whether the defendant has a real prospect of successfully defending the claim or whether there is some other reason why the judgment should be set aside, taking into account whether the person seeking to set aside the judgment made an application to do so promptly. Since the application is one for relief from sanctions, the tests in Denton's case then come into play. The first test as to whether there was a serious or significant breach applies, not to the delay after the judgment was entered, but to the default in serving an acknowledgement that gave rise to the sanction of a default judgment in the first place. The second and third tests then follow, but the question of promptness in making the application arises both in considering the requirements of CPR r 13.3(2) and in considering all the circumstances under the third stage in Denton's case.
    For background, the quote LJ Vos was referring to in Regione Piemonte v Dexia was as follows:

    38. A question arose at the hearing of the appeal as to the extent to which the principles laid down in Mitchell v News Group Newspapers Ltd [2014] 1 WLR 795 applied to applications to set aside a default judgement. Since the hearing this Court has given judgment in Denton v TH White Ltd [2014] EWCA Civ 906 and the parties have made written submissions on it. Neither case was concerned with applications to set aside a judgment.

    39. In essence Piedmont submits that the Mitchell / Denton principles do not apply to an application to set aside a default judgment. The majority in Denton considered that the Mitchell decision was correct to attribute a particular importance to the factors listed at CPR 3.9 (1) (a) (the need “for litigation to be conducted efficiently and at proportionate cost” ) and (b) (the need “to enforce compliance with rules, practice directions and orders” ) because the Civil Procedure Rule Committee had rejected a recommendation in the Review of Civil Litigation Costs Final Report that CPR 3.9.1 should be reworded so that 3.9.1 (b) read “the interests of justice in the particular case” . But the Final Report did not propose any amendment to CPR 13.3 so that the reasoning of the majority in Denton does not apply to it. There is thus, it is submitted, no reason to conclude that the Mitchell / Denton principles apply to an application under CPR 13.3 or that promptness under CPR 13.3 should be regarded as anything more than a factor. I disagree.

    40. In my judgment the matter stands thus. CPR 13.3 requires an applicant to show that he has real prospects of a successful defence or some other good reason to set the judgement aside. If he does, the court's discretion is to be exercised in the light of all the circumstances and the overriding objective. The Court must have regard to all the factors it considers relevant of which promptness is both a mandatory and an important consideration. Since the overriding objective of the Rules is to enable the court to deal with cases justly and at proportionate cost, and since under the new CPR 1.1 (2) (f) the latter includes enforcing compliance with rules, practice directions and orders, the considerations set out in CPR 3.9 are to be taken into account: see Hussein v Birmingham City Council [2005] EWCA Civ 1570 per Chadwick LJ at [30]; Mid-East Sales v United Engineering and Trading Co (PVT) Ltd [2014] EWHC 1457 at [85]. So also is the approach to CPR 3.9 in Mitchell / Denton . The fact that the Court's judgment in Denton was reinforced by the fact that CPR 3.9 was not reworded in the manner proposed by Jackson LJ does not detract from the relevance of CPR 3.9 , and what was said about it in Denton , to applications under CPR 13 .
    If the court finds that there are reasonable prospects of success then they would need to apply the relief from sanctions Denton criteria. The criteria is:

    (a) the seriousness and significance of the default
    (b) Was there any good reason for the breach
    (c) The court is to consider all of the circumstances of the case as to whether relief should be granted

    My view is that there is no reasonable prospects of successfully defending the claim. The Tesco had contracted with the recovery company to get remove the van whom acted on Tesco's instructions that recovery company and therefore Tesco is liable for the damage caused by the recovery company. If Tesco suffers losses as a result of the claim then it is up to them to seek recovery of those losses against the recovery company, not you. Also they could have joined the recovery company as a party to the claim had they acknowledged it.

    As for the Denton Criteria, there is a case that is similar in respect of the current situation. In Hockley v. North Lincolnshire & Goole NHS Foundation Trust 2014, the Defendant actually filed an acknowledgment of service 13 days after the deadline but the claimant obtained a default judgment. The District Judge granted relief from sanctions 'for fairness and justice' but this was appealed to the High Court. The High Court allowed the appeal and refused relief from sanctions applying for the following reasons:

    (a) the seriousness and significance of the default
    The failure to acknowledge the claim and file a defence was serious and the consequences of not doing so must have been obvious.

    (b) Was there any good reason for the breach
    There was incompetence on the Defendant's part, no good reason for the breach.

    (c) The court is to consider all of the circumstances of the case as to whether relief should be granted
    The application to set aside was promptly made, however the Defendant did not file any defence in support or any evidence which indicated a reasonable prospect of successfully defending the claim. For those reasons, relief from sanctions were refused and the judgment in default remained.

    Obviously you've uploaded the witness statement from Plexus which suggests they are relying on the prospects of successfully defending the claim, did Plexus file a draft defence at all or just the witness statement (I also note you said they asked for leave to file a defence)? Also have they claimed costs in the set aside application? There is the risk of costs being awarded against you if it is successfully set aside but in this case you could argue otherwise because it is the Defendant's own fault for not acknowledging or filing a defence. If you wanted to oppose the application you could send a Witness Statement (your fathers name) setting out your reasons why the set aside should be opposed and that (perhaps) this particular application is not appropriate for a decision to be made without a hearing and you could argue that a hearing for this application should be made instead.

    Although it doesn't seem clear who's fault it is whether Tesco or Plexus as to the acknowledgment but it is admitted in their claim that Tesco received the claim on 30 May so at the very least it was incompetence by either party (either Tesco failing to acknowledge or by Plexus failing to act promptly in acknowledging the claim if it was sent onto them).

    Whichever route your father is entirely up to him but it is a decision he will have to make himself after taking everything into account. I have experience of dealing with Plexus and my opinion is they are not at all professional and have been known to be slow in doing things however there's not enough information to suggest it in this case although they are trying to pull a fast one by having it heard without a hearing. I am sure there is case law previously to suggest that an application for relief from sanctions should always require a hearing because the of the factual nature of each individual case to determine whether relief should be granted - If I can find a case on it I will let you know.
    DISCLAIMER: ANY CONTENT I POST IS INTENDED FOR EDUCATIONAL AND INFORMATIONAL PURPOSES ONLY AND IS NOT A REPLACEMENT OR SUBSTITUTION FOR LEGAL ADVICE. I MAKE NO REPRESENTATIONS AS TO THE ACCURACY OF MY POSTS NOR DO I ASSUME ANY RESPONSIBILITY. USE OF ANY CONTENT IS SOLELY AT YOUR OWN RISK AND COST AND I ACCEPT NO LIABILITY. YOU SHOULD SEEK INDEPENDENT LEGAL ADVICE BY GOING TO Law Society's Find A Solicitor OR CONTACT YOUR LOCAL Citizen's Advice Bureau.

    Comment


    • #17
      Re: Taking on Iceland

      Hello all,

      So we have this application hearing next week.

      Here's what I am going to have my father submit in a Witness Statement -

      "I have not and do not give consent for this set aside application.

      As per the law of agency, Tesco drove onto my property uninvited. Tesco then instructed a third party to retrieve their vehicle. That third party, acting as agents for Tesco, damaged my driveway. Tesco are liable for the action of their agents.

      Tesco put me in touch with Plexus Law and told me that Plexus would facilitate an insurance claim with Tesco’s insurers. Plexus tasked me with sending photographic evidence of the damage, quotations for the repairs, an explanation of what had happened, etc, and then completely ignored me for four months. I made it known several times that I would be taking this through the Small Claims Court and was eventually forced to do just that. I served Tesco using their registered address on Companies House website. At no point was I told that Plexus were agents that had been instructed to accept service for proceedings nor that they were in any way, shape or form regarded as the official legal representation for Tesco.

      Plexus have not provided a draft defence as to why Tesco is wrongly named as the Defendant. To the contrary they have admitted that Tesco called the tow company that came to pull their delivery vehicle away and subsequently damaged my driveway.

      They also admit that Tesco received the initial claim form on the 30th May – three weeks before Default Judgement was entered.

      Court records show that Plexus called the Court after the Default Judgement was received to ask what date the claim was considered officially served. It is extraordinary that a legal firm needs to do this, and is not able to calculate such for themselves. Furthermore, Tesco had three weeks from the date they received the initial claim to acknowledge it.

      My view is that there is no reasonable prospect of Tesco successfully defending the claim. Tesco contracted the recovery company to remove their van and said company acted on Tesco's instructions, therefore Tesco is liable for the damage caused by the recovery company. If Tesco suffers losses as a result of the claim then it is up to them to seek recovery of those losses against the recovery company, not me. Also Tesco could have joined the recovery company as a party to the claim had they acknowledged it.

      The failure to acknowledge the claim and file a Defence, and the consequences of not doing so must have been obvious to both Tesco and Plexus.

      The Default Judgement was due to incompetence on the Defendant's and/or Plexus’ part. There is no good reason for this breach of the CPR.

      The application to set aside is promptly made, however the Defendant had not filed any Defence in support or any evidence which indicates a reasonable prospect of successfully defending the claim.

      For those reasons, relief from sanctions should be refused and the Judgment in default should please remain."


      What are your opinions on it?

      I also need to know -

      1) when is the deadline for submitting this to Court? i.e. can he take it on the day of the hearing. If not then does he have to send to the other side by the same deadline as he needs to get it to Court?

      In particular I want to make sure that they don't try to submit a draft Defence by any kind of deadline they might have to adhere to after seeing the above. Ideally my father could just take this in on the day of the hearing?

      and

      2) Should my father put together the quotations, photos and emails in an evidence bundle? And a couple of Witness Statements of friends and family testifying to the damage to the driveway? Or does he not need to waste his time? The Defence are not sending anything else by the looks of it, and I feel that the application hearing itself will not need my father to prove his case re: the damage done, as we are solely looking to ridicule their claim that the wrong party has been named and filed against?

      Just concerned that they are using this 'wrong named party' nonsense as a red herring, and will accept that the right party was named at the hearing, in which case they could say they dispute the damage was done by the tow company, and/or want leave to name the company as co-Defendants - I don't want my father to be there with no evidence of his claim.

      Or could we just say, if the above happened, that this was not part of their application and should therefore not be considered at the hearing, even if they ask for it to be included there and then?

      Thanks all!!!

      We'll get them buggers yet!

      Comment


      • #18
        Re: Taking on Iceland

        It is likely that the set aside will be allowed. You ( well your father) can attend and argue against the set aside and submit the WS of course but be ready to accept the setaside being granted and Tesco being able to submit their full defence.

        The Defendants will then defend their position that they are not the correct party to be suing and you will put your case that they are. Then once that's settled, and potentially join the tow truck firm as a second defendant, it will move on to the damage and recompense due.

        The Witness Statement needs a bit of work - it is a bit of a rant at the moment. You need to take emotion and accusations out of it. So take it back to facts and keep it simple. Also remember it is your father's claim and the Witness Statement needs to be facts from his knowledge.

        As you have claimed over £10k and isn't a simple contract case it is likely to be put into the fast track with the accompanying costs liabilities and disclosure rules.

        Have you posted up a copy of your original particulars of claim ?


        1) when is the deadline for submitting this to Court? i.e. can he take it on the day of the hearing. If not then does he have to send to the other side by the same deadline as he needs to get it to Court?
        Normally for a WS for the hearing it would be 7 days before. When is your hearing ? Even if late it is worth submitting so it is in the Judge's (and Defendant's) hand on the day, and your father should have a copy with him to refer to.

        2) Should my father put together the quotations, photos and emails in an evidence bundle? And a couple of Witness Statements of friends and family testifying to the damage to the driveway? Or does he not need to waste his time? The Defence are not sending anything else by the looks of it, and I feel that the application hearing itself will not need my father to prove his case re: the damage done, as we are solely looking to ridicule their claim that the wrong party has been named and filed against?
        I'd have everything together in a bundle so you can provide if asked on the day, although it is unlikely to be needed at this hearing as it is solely about the set aside application.
        Last edited by Amethyst; 1st August 2017, 08:32:AM.
        Common Sense .... if in doubt, use it !

        “We may not win by protesting, but if we don’t protest we will lose. If we stand up to them, there is always a chance we will win.” Hetty Bower

        Any support I provide is offered without liability, if you are unsure please seek professional legal guidance.

        Find Solicitors offering fixed fees on our sister site - JustBeagle.com

        Comment


        • #19
          Re: Taking on Iceland

          So Witness Statement - would need to go to the court and the defendant ( or their solicitors ).

          Needs to be laid out like this...


          here's a starting point of how it should be.... remember the court know nothing..... this is just rough so you can see how it should be written;

          WITNESS STATEMENT

          I, xxxxxxxxx, of xxxxxaddressxxxxxxxxxxxxxxxxxxxxxx , am the Claimant (Respondent) and make this statement in defence of the Claimant's application to set aside the Default Judgment in this case.

          1: I issued the claim number XXXXX on xx/xx/2017 via the Moneyclaim Online service. I received a receipt by email [EXHIBIT X].

          2: The claim was issued against Tesco XXXXX Plc at their Registered Office being xxxxxxxx address xxxxxxxxxxxxxxxxxxxxxxx.

          3. The Defendant was allowed until xx/xx/2017 at 4pm to acknowledge the claim.

          4: On xx/xx/2017 at xpm the Defendant had not acknowledged the claim and I therefore requested Default judgment be entered against them.

          5: I received confirmation [EXHIBIT X] that Judgment had been awarded against the Defendant on xxxxxxxxxxxxxxxx and understood that they had until XXXXXXX to pay the judgment sum.

          6: On xx/xx/2017 I received a letter from the Defendant's Solcitors, Plexus Law requesting that I consent to set aside the Judgment by Default [EXHIBIT X]

          7: I responded by telephone/letter[EXHIBIT X] on xxxxxxxxxxxx .............................

          8. ................................

          9.......................................

          THE CLAIM AND THE PARTIES

          10. The Defendant pleads that they are not the correct party in this case.

          11. It is my contention that Tesco xxxxxxxxx Plc are the correct party.

          12. The facts of the case are;
          i) lorry wrong address
          ii) reversed/damage
          iii) tow trucks sent by Tesco
          iv) damage caused etc

          13. explain why Tesco are correct party and why not tow truck co etc.

          14.

          15.

          16.

          and so on down to statement of truth as per example image.

          More examples and a bit of guidance here >>> http://legalbeagles.info/forums/show...ness-Statement
          Last edited by Amethyst; 1st August 2017, 09:14:AM.
          Common Sense .... if in doubt, use it !

          “We may not win by protesting, but if we don’t protest we will lose. If we stand up to them, there is always a chance we will win.” Hetty Bower

          Any support I provide is offered without liability, if you are unsure please seek professional legal guidance.

          Find Solicitors offering fixed fees on our sister site - JustBeagle.com

          Comment


          • #20
            Re: Taking on Iceland

            UPDATE:

            Application dismissed and Judgement remains.

            Reason: lack of Defence

            Thanks all!!!!!

            Comment


            • #21
              Re: Taking on Iceland

              Beautiful. Well done xxx
              Common Sense .... if in doubt, use it !

              “We may not win by protesting, but if we don’t protest we will lose. If we stand up to them, there is always a chance we will win.” Hetty Bower

              Any support I provide is offered without liability, if you are unsure please seek professional legal guidance.

              Find Solicitors offering fixed fees on our sister site - JustBeagle.com

              Comment


              • #22
                Re: Taking on Iceland

                Originally posted by friendlyfire View Post
                UPDATE:

                Application dismissed and Judgement remains.

                Reason: lack of Defence

                Thanks all!!!!!
                Great to hear, did your father get any costs on this set aside?

                Could you give us a bit more info on this as to why the judge dismissed for lack of defence. Did Plexus submit a draft defence or not? Did the judge go through the Denton Criteria and if so what were the conclusions - did you refer to any case law I mentioned above that swayed the judge?
                DISCLAIMER: ANY CONTENT I POST IS INTENDED FOR EDUCATIONAL AND INFORMATIONAL PURPOSES ONLY AND IS NOT A REPLACEMENT OR SUBSTITUTION FOR LEGAL ADVICE. I MAKE NO REPRESENTATIONS AS TO THE ACCURACY OF MY POSTS NOR DO I ASSUME ANY RESPONSIBILITY. USE OF ANY CONTENT IS SOLELY AT YOUR OWN RISK AND COST AND I ACCEPT NO LIABILITY. YOU SHOULD SEEK INDEPENDENT LEGAL ADVICE BY GOING TO Law Society's Find A Solicitor OR CONTACT YOUR LOCAL Citizen's Advice Bureau.

                Comment


                • #23
                  Re: Taking on Iceland

                  Originally posted by R0b View Post
                  Great to hear, did your father get any costs on this set aside?

                  Could you give us a bit more info on this as to why the judge dismissed for lack of defence. Did Plexus submit a draft defence or not? Did the judge go through the Denton Criteria and if so what were the conclusions - did you refer to any case law I mentioned above that swayed the judge?
                  What costs could he have requested? The Judge did ask, and he said no.

                  Plexus did not submit a draft defence - the Judge said how ridiculous it was that Tesco were so poorly representing themselves.

                  Denton criteria were not mentioned.

                  I didn't refer to any case law - here is the letter my father signed -

                  "Dear Sir/Madam,

                  I have not and do not give consent for this set aside application. The Defendant had until 19th June to acknowledge the above claim. I asked for Default Judgement on 20th June and it was processed on 21st June. The defendant by their own admission sent their acknowledgement on 22nd June. Ten days later Plexus asked me via email to reverse the Default and to instead hold the tow company that Tesco ordered onto my property responsible. This was the first time they asked for this and my son Andrew Calo immediately made it known in a phone call that I did not consent to such, and expected the Default to be paid within 30 days of the date of said Judgement. Preparations were by now already underway to effect repairs of my driveway.

                  My view is that there is no reasonable prospect of Tesco successfully defending this claim. Tesco contracted the recovery company to remove their van and said company acted on Tesco's instructions, so therefore Tesco is liable for the damage caused by the recovery company. As per the law of agency, Tesco drove onto my property uninvited. Tesco then instructed a third party to retrieve their vehicle. This third party, acting as agents for Tesco, damaged my driveway. Tesco are liable for the action of their agents. If Tesco suffers losses as a result of the claim then it is up to them to seek recovery of those losses against the recovery company, not me. Also Tesco could have joined the recovery company as a party to the claim had they acknowledged it.

                  The failure to acknowledge the claim and file a defence, and the consequences of not doing so must have been obvious to both Tesco and Plexus.

                  The Default Judgement was due to incompetence on the Defendant's and/or Plexus’ part. There is no good reason for this breach of the CPR.

                  The application to set aside is promptly made, however the Defendant had not filed any defence in support or any evidence at all, that might indicate a reasonable prospect of successfully defending the claim.

                  For those reasons, relief from sanctions should be refused and the Judgment in default should please remain.

                  OF NOTE:

                  Tesco put me in touch with Plexus and told me that Plexus would facilitate an insurance claim with Tesco’s insurers. Plexus tasked me with sending photographic evidence of the damage, quotations for the repairs, an explanation of what had happened (this evidence follows my letter), and then completely ignored me for four months. I made it known several times that I would be taking this through the Small Claims Court and was then eventually forced to do just that. I served Tesco using their registered address on Companies House website. At no point was I told that Plexus were agents that had been instructed to accept service for proceedings nor that they were in any way, shape or form regarded as the official legal representation for Tesco.

                  Plexus have not provided a draft defence as to why Tesco is wrongly named as the Defendant. To the contrary they have admitted that Tesco called the tow company that came to pull their delivery vehicle away and subsequently damaged my driveway.

                  They also admit that Tesco received the initial claim form on the 30th May – three weeks before Default Judgement was entered.

                  Court records also show that Plexus called the Court after the Default Judgement was received to ask what date the claim was considered officially served. It is dumbfounding that a legal firm needs to do this, and is not able to calculate such for themselves. Furthermore, Tesco had three weeks from the date they received the initial claim to acknowledge it.

                  Finally, I have already started preparing to facilitate the repair of my driveway, following default Judgement. I had planned to sell my property this month and am already delayed because of all this. I have given the Defendant fair warning that I will be seeking £1,000 a month due to the delay in the sale of my house, which represents the amount I would be saving had I been able to effect said sale last month as planned.

                  Sincerely,"

                  Comment


                  • #24
                    Re: // WON \\ Taking on Iceland

                    Costs of time spent resisting the application at £19 per hour, parking (if any), time taken off work if lost money as self-employed or loss of one day's holiday to attend.

                    The above is assuming he did go to court yes, or was this heard on paper?

                    Either way he has judgment and the default will stay, not particularly good for Tesco. Have they been in touch to pay up yet?
                    DISCLAIMER: ANY CONTENT I POST IS INTENDED FOR EDUCATIONAL AND INFORMATIONAL PURPOSES ONLY AND IS NOT A REPLACEMENT OR SUBSTITUTION FOR LEGAL ADVICE. I MAKE NO REPRESENTATIONS AS TO THE ACCURACY OF MY POSTS NOR DO I ASSUME ANY RESPONSIBILITY. USE OF ANY CONTENT IS SOLELY AT YOUR OWN RISK AND COST AND I ACCEPT NO LIABILITY. YOU SHOULD SEEK INDEPENDENT LEGAL ADVICE BY GOING TO Law Society's Find A Solicitor OR CONTACT YOUR LOCAL Citizen's Advice Bureau.

                    Comment


                    • #25
                      Re: // WON \\ Taking on Iceland

                      Originally posted by R0b View Post
                      Costs of time spent resisting the application at £19 per hour, parking (if any), time taken off work if lost money as self-employed or loss of one day's holiday to attend.

                      The above is assuming he did go to court yes, or was this heard on paper?

                      Either way he has judgment and the default will stay, not particularly good for Tesco. Have they been in touch to pay up yet?

                      They have not been in touch but then we only got the Judgement yesterday.

                      How long to give them? Should we continue to add interest? I think they had thirty days from the original Judgement when they did not continue to incur interest?

                      Can we ask for costs now? My father went in person to the hearing.

                      Comment


                      • #26
                        Re: // WON \\ Taking on Iceland

                        What should I do?

                        Comment


                        • #27
                          Re: // WON \\ Taking on Iceland

                          You can't recover costs now you should have raised that at the hearing, though you should be entitled to your application costs but again, if it wasn't mentioned then the judge may not have put it on the Order.

                          What did the judge say about making payment? Have you received the Order from the Court yet?

                          Usually payment is ordered within 14 days of the judgment date so you might be best sending a quick response to Plexus and saying that you note there has been no payment by their client in relation to the outstanding judgment. You could give them you bank details for transfer and expect payment within the next 7 days otherwise you will consider taking further steps to enforce the judgment.
                          DISCLAIMER: ANY CONTENT I POST IS INTENDED FOR EDUCATIONAL AND INFORMATIONAL PURPOSES ONLY AND IS NOT A REPLACEMENT OR SUBSTITUTION FOR LEGAL ADVICE. I MAKE NO REPRESENTATIONS AS TO THE ACCURACY OF MY POSTS NOR DO I ASSUME ANY RESPONSIBILITY. USE OF ANY CONTENT IS SOLELY AT YOUR OWN RISK AND COST AND I ACCEPT NO LIABILITY. YOU SHOULD SEEK INDEPENDENT LEGAL ADVICE BY GOING TO Law Society's Find A Solicitor OR CONTACT YOUR LOCAL Citizen's Advice Bureau.

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