Hello LB - problem with settlement payment from Argos

[Daphne]

Hi LB.

Please advise if poss.

I have a refund from Argos (a local branch) due for MONTHS. Had to take them to Court. Won by default. So they made an application to have the Judgement removed.

Did not turn up for the hearing.

I won again.

Then had to threaten enforcement several times over two months before they finally got their legal department involved.

SO...

Their legal department offered to pay me £400 (double the original default amount) if I agreed to have the Default removed from Companies House/their credit record there, as an outstanding charge was registered against them. I agreed.

Spent three weeks filling in their forms, sending them to Court, to get this all actioned. Signed a Tomlin form to say I would agree to all this if payment was received within 7 days.

Well, they told me they could not send the payment to the original account details I had sent them, and asked for another set of details.

I sent these.

That weekend, I checked my available balances over two accounts and two credit cards to see if I could afford a trip to Cornwall. Turned out I could,. and so spent £400 on non-refundable trains and accommodation. This all relied on their £400 settlement being paid into the new account, details sent, no payment seen as yet.

Then get an email from them telling me that they have in fact made payment to the original account the same day they told me it was not possible. I based my bookings on the my available balances this day, which, unknown to me, included this £400 payment. I was still expecting it, as it had not cleared into the new account, details for which I had just sent them.

I was FURIOUS.

Told them in an email.

Two days later, with no response, called the Court and told them that I did not agree to their application, due to be seen by the Judge that day.

So their application is now set for a hearing, as opposed to being done without one, as I have contested.

I have called their legal department, and then hung up as soon as they told me I would receive sanctions from the Court that they request, and be ordered to pay well of 1K in their fees for this cock-up and my email to the Court.

Then they left me a message, threatening me that I had to tell the Court within 24 hours that I withdrew my protest and allowed their application, or I would be taken on in Court for a "significant sum."

I am really disgusted by them. I told them immediately I wanted to know where to return their £400 as the deal was off, not least because I could not afford to go on vacation that I have paid for due to complete lack of spending money.

They have now emailed the Court to state I am being unreasonable and to explain their telephone message.

So thoughts people?

Thanks,

Daph.

[Daphne]

Can any of you lovely people help me?

[R0b]

On the face of it, I think you are being unreasonable.

Did the Tomlin Order specify the account number to which the money should be put into? A Tomlin Order is effectively a legally binding contract between the parties and unless there is provision for you to object to the set aside should Argos not comply with the agreed terms, it wouldn't surprise me if a judge finds you unreasonable.

I see it more often than not, people spending money that hasn't arrived in their account yet and on the one hand, it is entirely reasonable for the blame to be put squarely at your door but on the other, and in this instance, if you agreed to change the bank account for the money to be put into then that may well be argued a variation of the Tomlin Order but does that warrant you reneging on the whole of the deal? I'm not so sure.

Ultimately, any set aside is at the court's discretion and if you wanted to renege on your deal then you would be in breach and I should think that the loss to Argos is the extra £200 that they paid you.

If you wanted to contest the application then you could say to the judge that it was agreed for money to be put into a specific account and Argos failed to do that. Whatever the argument, it is a breach of contract of the Tomlin Order for which Argos are entitled to pursue a separate claim alleging any breach of that but it should not detract from the fact that it is a set aside hearing and you have the right to make representations as to why Argos should not have the claim set aside.

If you do choose to make representations then you could say something along the lines of:

1. A default judgment was obtained on X date

2. Argos sought to set aside the default judgment, failed to turn up to the hearing on X date and so the application was dismissed. Therefore Argos cannot have a second bite at setting aside the default judgment, nothing within the Civil Procedure Rules allowing for a second set aside application and in fact the correct procedure is for one to submit an application to appeal the set aside. Applying for a second set aside is considered an abuse of process and there is authority on this point using the case Samara v MBI & Partners UK Ltd (t/a M.B.I. International Partners & Co) and others [2016] EWHC 441 (QB) (link here): The judge said this (emphasis on underlined):

61. Putting to one side the arguments as to the applicability of CPR 3.1(7) in this context, I do not accept Mr Beloff's submission that a party may have a second bite at the CPR 13.3 cherry if the position has changed since the issue was determined on appeal. While that rule does not expressly prohibit a second application, the principle of finality requires, in the interests both of justice and of litigants generally, that a final order between the parties remains a final order. If there is a perceived injustice in any particular case, arising from subsequently discovered events, I agree with Mr Devonshire that the only potential route open to a party to challenge a final order on appeal would be to seek permission either to bring a second appeal out of time, under CPR 52.13, or to reopen the final appeal under CPR 52.17.

63. If Mr Beloff's submissions were correct and it was always open to a party, in the circumstances of this case, to make a second application to set aside a default judgment under CPR 13.3, the protections afforded to litigants by CPR Part 52 would indeed be circumvented and the principle of finality eroded.

66. Further, as Mr Beloff accepts, default judgments have their own self-contained regime under the CPR. In S v Beach [2015] 1 WLR 2701, the second defendant applied to set aside a judgment entered in default of acknowledgment of service, the court having granted the final injunction sought. The claimant argued that it was not enough for the defendant to satisfy the requirements of CPR 13.3 and that he also had to persuade the court to revoke the order pursuant to its general case management powers in CPR 3.1(7)

67. Rejecting that submission Warby J held as follows at paragraph 49:

"The submission that it is necessary for a party seeking to set aside a default judgment successfully to invoke CPR r 3.1(7) if there is not merely a default judgment but also an order such as a final injunction is novel and I do not accept it. I can see no good reason for regarding the provisions of CPR Pts 12 and 13 as anything other than a self-contained regime governing the procedure for the grant, variation or setting aside of judgment and all such orders as the court considers the claimant is entitled to where the conditions prescribed by these rules are, or are alleged to be satisfied."

3. Another argument you could make is that Argos are simply attempting to repair their credit history retrospectively, which is something a court should avoid doing as it would create a false impression to its creditors. More importantly, setting aside a default judgment to repair your credit is not a good enough reason, particularly when Argos have already had a chance to set it aside but chose to do nothing about it. You can't set aside a judgment that has already been satisfied.

I think out of the three, point number 2 would be your best argument. You should make sure to take evidence of the court orders etc. to back up your story.

Of course if you decide to contest the set aside, and lose then it is open to the court to award costs against you and since a set aside application is not a small claims action, the general rule of costs apply.

[4737 Carlin]

Why is the settlement payment into the old account such an issue?

I am confused because you go on to say that you wanted to return the payment which implies that you still have access to and control over the account?

Surely you are not expecting to proceed on the basis that you committed yourself to expenditure from funds you had not received?

[Daphne]

I budgeted according to available balances, relying on the £400 turning up in account B. In fact it had already been paid into the account they told me it could not be paid in to.

Completely mucked up everything.

[Daphne]

The Tomlin order only states payment to be made in 7 days.

However, arrangements have to be made to make said payment, correct?

And arrangements were made for payment to account B, not A.

So they have not fulfilled their side of the Tomlin order.

[Daphne]

Oh, I see, let me explain.

I am unable to access money in account B for several weeks. It is a long story, to do with card readers, chargebacks, etc. This is where I wanted the money sent, orignally.

I am able to access money in account A.

I then had to tell him to send to account A becuase he could not send to account B. I spent the money I could access in account A and now have no funds for my holiday as he has sent it to the account where I cannot access funds.

So mucked up my plans entirely.

[Daphne]

....bump...

[Daphne]

.......bump bump.......

[R0b]

Hi Daphne,

I don't have anything to add to what I've already mentioned.

You have signed a Tomlin Order and it doesn't specify the account so you would have to argue that Argos have broken the terms of that arrangement by paying it into an account you weren't expecting it to be paid into. I sympathise with you but on the flip side you shouldn't have spent the funds that wasn't there in the hope they would turn up on that date. It can be said that you contributed to the problem so it could be said that Argos shouldn't be held fully responsible, if at all.

Was it absolutely necessary for you to purchase the holiday on that specific day at that specific time? If yes, do you have evidence to show the court that you couldn't wait until the following day?

Just because you don't like what has happened doesn't mean you get to tear the deal you agreed - that's not how things work. You will need to explain your reasoning to the judge and I set out some examples you might want to say if you do choose to defend it.

I'm afraid we can't tell you what you should and shouldn't do, that is going to be up to you, but it looks like you've already taken steps and if you backtrack now, you could land yourself with legal costs anyway.