Hoist Holdings - Tesco CCard, Mediation agreement take priority over a court order ?

[xian4]

Hi learned friends, just wanted a little bit of advice.

Anyway, I thought a had a statute barred debt with Tesco which in my opinion was over 7 years, the debt company Robinson Way claimed a different date and they took the claim to claim just under six years.
To cut a long story short, I cannot prove if a payment was made on the date they claim and I have been to court before where documents have miraculously appeared and a court order made. So I don't trust the system either.
So on the 26th Jan 2018, I made an agreement via the small claims mediation service to pay a lump sum within 28 days and get rid of this claim.

On the 6th Feb 2018, I received a letter from Robinson Way where they state that they have the mediation order where I agreed to pay £••••.•• in full by Feb 22nd 2015 and we apologise for the delay in contacting you. They then go on to say that because of the delay setting this up we have set up your payment of £••••.•• to be received by 22nd April 2018

Today, I have received a General Form of Judgment or Order from the county court advising me that
1. Unless the claimant files and serves a particular of claim complying with Civil Procedure Rule by 2nd March 2018, the claim shall stand struck out without further order. Such particulars must annex copies of the documents referred to within it.
2. Because the order was made without a hearing any party may apply to have it varied, stayed or set aside within 7 days of being served with the order and pursuant to CPR 3.3 (5).

Any idea what is going on here and should I just pay the agreed lump sum ?

[Amethyst]

So you had entered a defence, claiming statute barred, and document issues ( CCA / CPR Requests ?)

Just coincidentally someone else has very similar in their case, different claimant though... wonder if same Judge?

[xian4]

Yes I did and yes the letter is the same

[Amethyst]

Cool beans. Do you have a copy of the mediation agreement ?

[xian4]

Yes I do but I don't want to attach it here

[Amethyst]

Okay can you give me the terms of it ... particularly regards what happens with the claim in the court ( ie their ( Hoists) side of the agreement )

[xian4]

Mediation agreement

On 25^th January 2018 the parties agreed that:

1. The defendant agrees to pay to the claimant the sum of £••••.•• (the settlement sum) in full and final settlement of the claim to be paid by bank transfer by 22^nd February 2018 to:

PAYEE: ROBINSON WAY

LLoyds Bank

2. In the event of any default by either party, the other party shall be entitled to apply to the court:

a) For judgment, without any further court hearing, for the unpaid balance of the settlement sum; or

b) For the claim to be restored for hearing for the full amount claimed.


3. The court will stay the case (i.e. the court will take no further steps in relation to the case) and the claim, defence and any counterclaim will be struck out without further order of the court (meaning that the case will no longer be treated as active) if the court has not heard from either party by 22^nd May 2018.

4. The parties will keep the information contained in this agreement confidential and not use it for any other purposes. Other than a final written agreement, any information – whether written in a document prepared for mediation or written or spoken during the mediation – can only be used for the purpose of mediation and cannot be referred to in any court action unless the parties agree. The parties agree that they will not call the mediator to give evidence in any court action.

5. This agreement is in full and final settlement of both parties' claims, including any claim for costs, court fees, expenses or interest.

[Amethyst]

Thank you. That sounds pretty standard. If you pay the agreed amount the claim is ended on 22nd May 2018, no CCJ etc... if you don't the claimant can enter judgment for the agreed settlement amount or pick the case back up for the full amount claimed.

Did you get a decent discount as a f&f settlement ? ( that would outweigh continuing on the hope the claimant doesn't comply with the new order of the court )

Was the mediation before or after the date of the order ?

[xian4]

Yep very nice discount (60%) and the mediation was on the 25th Jan, I don't think they had the paperwork but i can't be certain

[Amethyst]

Sorry and the amended date from Robinson Way

to be received by 22nd April 2018

[xian4]

that was the 6th Feb, letter from Robinson Way

[Amethyst]

Okay, so the claimant wouldn't have had this strike out threat when they sent that or entered into the mediation agreement.

Basically your mediation agreement stands unless you breach it/tell them you have changed your mind and wish to proceed, then the court order comes back into play and you take your chances.

60% is pretty decent. If it's not too painful to pay it ( I don't know how much the claim is ) then it does get rid of the claim/debt for good and no worries about it resurfacing in the future, no effect on credit file, and so on.

But then there's a couple ifs and buts in waiting ....
1) as there is a mediation agreement in place it is unlikely Hoist would comply with the order, so saying "wait and see if they comply with the order" , won't work.
2) if the claim did get struck out, then as the mediation agreement was for it to remain on 'stay' until being struck out in May, they might be able to get the claim reinstated on the grounds settlement agreement had already been made with specific terms.
3) if you go against the mediation agreement and the claimant did then comply with the order you'd be back to square one with the court claim.

If your defence is based on statute barring primarily, and the only evidence they have provided is, basically, their word that a payment was made ( randomly just inside the 6 years ? ), you could follow that up and go back asking for payment method, date / time etc then go back through your records to show court that the payment wasn't made.

Sorry this isn't a direct answer I'm overthinking it for you .... yes the mediation agreement takes precedent. If you breach it they could enter judgment regardless of the courts later order for the agreed settlement amount ..... or they could continue for the full amount complying with the order.

[xian4]

Thank you Amethyst,

this is what I thought, bottom line for me is that I borrowed this money and I think the amount I am now paying back is probably on balance about fair.
However, I have grave misgivings on the whole system on how these debt companies work and the way they abuse the system regarding info, disclosure, deceit etc. At the end of the day, I exposed myself to it even though it was all in good faith at the time. These companies don’t play by the same rules and so people end up fighting when they should just find a solution.

thank you again and best wishes

[Amethyst]

100% agree with you there and I think if you are not pained by the settlement amount and it feels fair to you, get it done and out of your hair. Sometimes we fight back just because we feel we should. I've just agreed a 70% discount on a debt I know I owe and know will end up at court in the next couple years, it will be painful to pay it, but , big picture wise, it is the best option for me.