Caretaker v ( Restons ) ( COA / DN )

[Caretaker237]

Hi Carlos,

The comments provided by Diana M regarding the issue of S87(1) DN and the Cause of Action are important.

District Judges are going off the date on the S87(1) DN as the Cause of Action. They aren't considering the last missed payment to be the date of accrual for the Cause of Action. This is vital to consider when using the Statute Barred defence.

If the S87(1) DN was issued within six years of the date on which legal proceeding began, then the Statue Barred defence is almost bound to fail, even if the last missed payment was outside of the six year time limit. What is important is whether or not a copy of the S87(1) DN is contained in the claimants evidence bundle. You wont have that yet, but they only need to enclose a reconstituted copy, which will almost certainly guarantee its presence in the evidence bundle once they proceed to that stage.

I am speaking from recent experience. On December 2017 in County Court I lost in a claim brought by Cabot's via Restons Solicitors. This was originally a Capital One debt sold to Cabot.

My defence was a Statute Barred defence, and I had proof of the last missed payment which was four months outside of the six year time limit. The S87(1) DN was issued within six years of the date on which legal proceedings began, and the Judge ruled in favour of the claimant.

They sent a Barrister from Temple Row Chambers in Birmingham. It was far from one sided but the Courts seem to be going with the date on the S87(1) DN and not the last missed payment date.

The claim had been stayed for almost two years. The stay was lifted without question.

There is a lot of debate regarding the accrual of the Cause of Action date for a Statute Barred defence, but the S87(1) DN is what is being accepted by the District Judges. Try finding anyone online who has used the defence successfully in Court where the S87(1) DN was issued within six years from proceedings and you will draw a blank. There is a reason for that.

There are a lot of misleading posts titled "WON" regarding Statute Barred claims, when in fact all were discontinued by the claimants. That's not the same as winning an argument in court.

In most of the discontinued claims the S87(1) DN was issued and dated outside of the six year time limit from when the legal proceedings began, and therefore the claim in those cases would not have succeeded in court where a Statute Barred defence was raised. That's the big difference.

Things to consider and I hope this helps.

Regards and good luck.

[Caretaker237]

Re: Caretaker v ( Restons ) ( COA / DN )

Good spot.

See, that just proves that there is usually always something that can be uncovered in the small print.
��
Regards

Not at all, she sounds pretty up there on CCA issues, and does Direct Access work ... always good to know specialists in that area. I don't recognise the name though, will have to have a mooch through some cases.



I'll just ignore the typo in that last sentence

[Amethyst]

Re: Caretaker v ( Restons ) ( COA / DN )

Not at all, she sounds pretty up there on CCA issues, and does Direct Access work ... always good to know specialists in that area. I don't recognise the name though, will have to have a mooch through some cases.

Consumer Credit
Katie is a respected specialist in all consumer credit – related matters, acting for established High Street banks, credit card providers, independent creditors and assignees of regulated agreements. Katie has been extensively involved in all of the well-publicised consumer arguments since 2006 including; unfair bank charges, s.77-79 CCA 1974 requests, mis-sold insurance and investment products and unfair relationships. Katie has also developed a particular specialism in debtor-creditor-supplier agreements and routinely advises, drafts, and represents clients on matters involving defective goods and a creditors’ liability pursuant to sections 56 and 75 CCA 1974. Katie has achieved consistently positive results following Strike Out/Summary Judgment Applications on the basis of limitation pursuant to the Limitation Act 1980. Such applications have involved multiple causes of action and the application of five separate sections of the statute. Successful applications have brought an end to dozens of high-value claims, saving significant trial costs.

Katie can provide expert advice and consultation services on CCA 1975 requirements and the implementation of compliant procedures.

I'll just ignore the typo in that last sentence

[Caretaker237]

Re: Caretaker v ( Restons ) ( COA / DN )

The Barrister in question was assigned only seven days before the hearing, and "she" is based in Birmingham. I had the expense summary remember, plus she said she had braved the M6 from Birmingham that morning, and had a Midlands accent.��

As for the "worrying factor" well apart from knowing that you have to be 100% on your game once the Barrister is assigned, well that's it really. The barrister had no direct contact with me other than in court. They don't write to you. In court the Barrister in question was extremely polite and personable. It's their expertise that you have to worry about.

Its the lawyers who like to play the worrying tactics card. I had almost two years of that, well 22 months to be exact. I must say the lawyers are good with their tactics. I can see why they do it. That's the game, you take a chance and I lost, but there are no hard feelings, it is just business. I paid the money within the 28 days and that's that. The cost award was the statutory minimum, and a fraction of what they were claiming. So I got a result there at least.

The Barrister is listed under Commercial and Chancery, which covers Consumer Credit on their website.http://www.43templerow.co.uk/barrister/katie-wilkinson/.

I hope I'm not breaking any site rules by providing the link to the info you are looking for.

I'm sure its in everyone's interests to be aware of what they are likely to be up against in court regarding these matters. Hopefully it may help. Oh, it was Cabot UK on the claim.

Regards

Cabot? Cabot UK - there are lots of different versions

Restons are rather hard nosed and will probably like me for saying that but they are also duplicitous

Remember as well, the barrister will no doubt try to worry people before they go into court as they want to win - also you have no idea where that particular barrister may actually live - just because his chambers are here in Brum means little

I am not disputing you put up a good fight and I can not comment on the case because I am not privy to the full deal but I will say that in my opinion the whole justice system is biased in favour of people with deep pockets and hence good legal representation is often what is needed to level the playing field.
If the Gov increase the limit for SCT it will only get worse
As it is they have removed the success uplift to costs so that some solicitors charge a success fee even when they get costs and that only puts justice further out of some peoples reach. Luckily the solicitor I used charged me a fixed fee so I knew right from the start the worst case scenario

[MIKE770]

Re: Caretaker v ( Restons ) ( COA / DN )

At 43 Temple Row Chambers we pride ourselves on offering an unparalleled level of service both to our lay and professional clients. We offer a personal approach to each and every instruction complimented in equal measure with exemplary advocacy skills. Each of our Barristers ensures that they keep abreast of all the developments in the law affecting our clients. Our understanding of the different issues faced by clients from a diverse range of cultures and countries enables us to inspire confidence in our clients. Every case is presented in a highly professional and meticulous manner, whilst never losing sight of the individual needs of each client.

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not listed but must be an addendum?

[warwick65]

Re: Caretaker v ( Restons ) ( COA / DN )

Would you care to name the barrister

Its odd 43 TempleRow do not say they do consumer credit litigation although they clearly must do

[warwick65]

Re: Caretaker v ( Restons ) ( COA / DN )

Cabot? Cabot UK - there are lots of different versions

Restons are rather hard nosed and will probably like me for saying that but they are also duplicitous

Remember as well, the barrister will no doubt try to worry people before they go into court as they want to win - also you have no idea where that particular barrister may actually live - just because his chambers are here in Brum means little

I am not disputing you put up a good fight and I can not comment on the case because I am not privy to the full deal but I will say that in my opinion the whole justice system is biased in favour of people with deep pockets and hence good legal representation is often what is needed to level the playing field.
If the Gov increase the limit for SCT it will only get worse
As it is they have removed the success uplift to costs so that some solicitors charge a success fee even when they get costs and that only puts justice further out of some peoples reach. Luckily the solicitor I used charged me a fixed fee so I knew right from the start the worst case scenario

[mystery1]

Re: Caretaker v ( Restons ) ( COA / DN )

What is the purpose of the limitations act with regards statute barred ?

To ensure that debtors are not on the hook for potential legal action forever if a lender doesn't take action to recover in a timely manner.

What is the purpose of the consumer credit act ?

To protect consumers from the unscrupulous practices of those in the finance sector.

So at what point does an act to protect consumers restrict the rights under another act that would otherwise be available ? I cannot see how the results we see can ever have been the intended will of parliament.

M1

[Caretaker237]

Re: Court Claim - Cabot Financial (UK) Ltd / Capital One - 15-11-2017

The claimant was Cabot, represented by Restons, who then sent a Birmingham based Barrister (43 templerow) to an East Lancashire court.

The Barrister in question certainly has some plaudits regarding knowledge of the Limitations Act to mention. It certainly wasn't an appointment of convenience, not on a 250 mile 5 hour round trip up and down the M6.

I suspect this Barrister will feature heavily for this firm in court.

Regards

Tell me, who were the claimants ?

I am sure Di will be the first to say, SB should not be your only defence, there are usually several

You may not agree but Di represents possibly the best consumer credit solicitor in the country

[Caretaker237]

Re: Court Claim - Cabot Financial (UK) Ltd / Capital One - 15-11-2017

Given that the law firm did send a Barrister, and that Barristers work to higher standards than solicitors, then I would say that the facts here suggest it was not hearsay.

The facts do support the statement made by the Barrister.

Regards

That would be 'hearsay' wouldn't it?

Diana M

[warwick65]

Re: Caretaker v ( Restons ) ( COA / DN )

I agree, too many people on all sites assert last payment date. It is of course far more complex than that

[Amethyst]

Re: Court Claim - Cabot Financial (UK) Ltd / Capital One - 15-11-2017

Caretaker, I'll move your posts to your own thread as we're kind of running away from the OP's thread here.

( EDIT: DONE ) I've left the first couple on Carlos' thread and copied them to here so all makes sense.


Not entirely sure why this seems to be getting heated - we know Judges are ruling on the Default/Termination date as cause of action as opposed to last payment/first missed payment, and have been doing for a while since BMW, and that other cases ( represented and unrepresented ) are backing up BMW more and more, and SB is only used in 'additional' arguments where the DN is within 6 years.

Caretaker's case seems to simply back up that we're right in discouraging SB only defences where they fall between payment and default, and I appreciate it being posted about.

There will be clarity at some point, when a case gets to the court of appeal - but for now, and since BMW - SB just needs to remain a cautious argument.

On the SAR - it can be useful if a creditor has issued a DN a lot earlier than the Claimant says they issued a DN.

[MIKE770]

Re: Court Claim - Cabot Financial (UK) Ltd / Capital One - 15-11-2017

too many assumptions being given by one poster, this is not an argumentative site. we are here to try and help posters, after reading a lot here they would no doubt shy away and go elsewhere,

[Caretaker237]

Re: Court Claim - Cabot Financial (UK) Ltd / Capital One - 15-11-2017

"You say they will reconstruct a DN - not always"

No I stated that they only need to produce a reconstituted copy. Its not a signed document, so it is effectively always a reconstituted copy lifted electronically form a CRM.

My legal advice was good, as was my evidence and witness statement, but the judge decided on a different Cause of Action. It was always going to come down to that.

All documents were requested and checked and everything was in order.

My defence was that the debt was Statute Barred based on the last missed payment being outside of the six year limit. The S87(1) DN was issued within the six year limit, and that was the point from which the Judge decided that the Cause of Action Accrued.

The SAR request gets a lot of hype but it wont help you if everything is in order.

How many instances do you know of where a person has won in court on a statute barred defence where the S87(1) DN was issued within six years of proceedings?

I thought I would win but I lost, but it wasn't due to poor legal advice. Its County Court, it happens everyday. It can only really go one of two ways, S87(1) DN or last missed payment.

The Barrister who beat me told me that they wouldn't defend a claim where the S87(1) DN was issued within six years of proceedings, because they know the Judge will go with that date. So I could have had a Barrister in there with me and I still would have lost.

I'm sure some people will want to believe that I did something wrong or received poor advice and that is why I lost, and in fact the "last missed payment" defence is sound, with regards to a statute barred defence. Well I'm sorry but that's not the case.

The Judge actually complimented me on the strength of my Witness Statement at the beginning of the hearing declaring "it is great document, and well put together" I still didn't win, and the hearing lasted an over an hour with two breaks for the Judge to read over the BMW Hart case and listen to my objections as to why it wasn't relevant.

I couldn't have been more prepared for that hearing, but I lost on an interpretation of a point of law.

Hung out with poor advice? Well maybe, if you consider the advice that the last missed payment is the Cause of Action to be poor advice?

You talk about other sites, but there are a lot of people on this site talking about the Cause of Action being from the last missed payment and rubbishing both the BMW Hart Case Law, and the suggestion that it is the S87(1) DN date that is relevant.



Regards

Hi. Quick comment. If you send a SAR may give you details the debt purchaser doesn't have which could cast doubt on their 'evidence'.
You say they will reconstruct a DN - not always.
There may also be other arguments. @Caretaker237, it does seem you were hung out a little either with poor advice.

I do know another forum who are not up to date on legal arguments, hell they still say no signed agreement no claim for pre 2007.
Why not double check with a solicitor about any potential arguments for an appeal, off course get free I I tial advice.

You suffered if you were stung for costs.

[Diana M]

Re: Court Claim - Cabot Financial (UK) Ltd / Capital One - 15-11-2017

Who told me? The Barrister whom I went up against two weeks ago

That would be 'hearsay' wouldn't it?

Diana M