Please help - very worried. Ref: IND/Hegarty LLP/Aktiv Kapital/MBNA

[mystery1]

Re: Please help - very worried. Ref: IND/Hegarty LLP/Aktiv Kapital/MBNA

28 days from today will be fine.

M1

[HB10]

Re: Please help - very worried. Ref: IND/Hegarty LLP/Aktiv Kapital/MBNA

what about date?

[mystery1]

Re: Please help - very worried. Ref: IND/Hegarty LLP/Aktiv Kapital/MBNA

I'd agree with all of it bar the costs. If they pay the consent order and the cost of your application for an unless order then the deal is done. It won't matter who presents it to the court but i wouldn't be paying £45 to get them of the hook.

M1

[HB10]

Re: Please help - very worried. Ref: IND/Hegarty LLP/Aktiv Kapital/MBNA

yes, in the email it mentions that they would send me to present to court - shouldn't they be doing this?

what do you think is best steps now?

agree with the consent order but make them pay....and what would you suggest dates etc?

or you think it would be even best to go for the hearing if they do not agree to the costs?

[mystery1]

Re: Please help - very worried. Ref: IND/Hegarty LLP/Aktiv Kapital/MBNA

2 things. 1 are they paying for the consent order ? They seem to be leaving that to you when in fact they are at fault and would lose on the original application.

2. They should be paying for your unless order application. It was their delay that caused you to apply and they should pay. Perhaps let them away with time etc but certainly not stuff you actually paid for !

M1

[HB10]

Re: Please help - very worried. Ref: IND/Hegarty LLP/Aktiv Kapital/MBNA

They have replied with the following,


Further to our conversation earlier today, if you are happy that we have provided documents for you to base your defence on, I have set out below what we propose to include in a Consent Order to be approved by the Court on the basis that you withdraw your application for request for documents.

If you approve the wording below I shall put it into a consent order format to be sent to you, via email, for you to sign it and present to the court.

UPON the defendant agreeing to withdrawing his application for documents listed to take place on 25 April 2014, the Claimant now having supplied the Defendant with the requested documents. It is agreed by both parties that.

The Court orders by CONSENT:

1. The claim be allocated to the small claims track.

2. The Defendant be given 28 days to file and serve his defence to the claim. For the avoidance of any doubt the defence to be filed and served no later than (INSERT DATE)

3. The Claimant be given 28 days from the defence being filed and served to serve its reply to the defence and counterclaim (if desired).

4. Each party must deliver to every other party and to the court office copies of all documents on which he intends to rely at the hearing no later than 14 days before the hearing.

5. The original documents must be brought to the hearing.

6. Notice of hearing date and time allowed.

7. The parties are encouraged to contact each other with a view to trying to settle the case or narrow the issues. However the court must be informed immediately if the case is settled by agreement before the hearing date.

8. No party may rely at the hearing on any report from an expert unless express permission has been granted by the court beforehand. Anyone wishing to rely on an expert must write to the court immediately on receipt of this Order and seek permission, giving an explanation why the assistance of an expert is necessary.

9. Failure to comply with the directions may result in the case being adjourned and in the party at fault having to pay costs. The parties are encouraged always to try to settle the case by negotiating with each other. The court must be informed immediately if the case is settled before the hearing.

10. No order as to costs

Kind regards,

[mystery1]

Re: Please help - very worried. Ref: IND/Hegarty LLP/Aktiv Kapital/MBNA

A consent order is an agreement by both parties. This needs agreed and signed by both parties and the courts approval.

If they are saying that when drafting the order that they cannot add a line which says " The application by the defendant dated xxxxx is vacated upon this consent order being agreed by both parties and accepted by the courts" or something similar then they need new staff as the current ones are clueless. IMO.

You could do it their way but i don't trust them.

M1

[HB10]

Re: Please help - very worried. Ref: IND/Hegarty LLP/Aktiv Kapital/MBNA

Hi M1,

Ive contacted IND. They have no problem in agreeing a future date. What would be a reasonable time frame? They said I would need to withdraw my hearing application as they can not do that after which they would then send a consent order. They mentioned that they would be looking to ask for trial at small claims. The person I spoke to is sending me an email regards conversation.

[mystery1]

Re: Please help - very worried. Ref: IND/Hegarty LLP/Aktiv Kapital/MBNA

No it doesn't.

Currently you have no time left for filing your defence. That ran out ages ago. Part of your application was for a new date for filing your defence. The claimant has no power under CPR to decide a date with the exception of an agreement with yourself under cpr 15.5 which allows the parties to extend the date for filing defences. Again this date is passed.

This part of your application should stand and the court will fix a new date as only they can. The point is that it's a waste of time and expense for everyone to turn up fully prepared for the hearing when a consent order is easier and cheaper. The claimant due to their action would foot the bill.

M1

[HB10]

Re: Please help - very worried. Ref: IND/Hegarty LLP/Aktiv Kapital/MBNA

You don't need to, no. However if you can agree with them and get them to submit this agreement via a consent order, which they should pay for, it'll save you going to court.

The hearing is for your application isn't it ? If it's an actual trial i have misunderstood.

M1

Yes, the hearing was for the documents - as they did not provide them in time.

My concern is that now that they have provided - and 14 days prior to the hearing - would that not count as time for filing a defence?

So to quote point 11 on their letter

'The Claimant agrees with the directions proposed by the Defendant to file and serve the Defence within 14 days of service of the documentation.'

[mystery1]

Re: Please help - very worried. Ref: IND/Hegarty LLP/Aktiv Kapital/MBNA

You don't need to, no. However if you can agree with them and get them to submit this agreement via a consent order, which they should pay for, it'll save you going to court.

The hearing is for your application isn't it ? If it's an actual trial i have misunderstood.

M1

[HB10]

Re: Please help - very worried. Ref: IND/Hegarty LLP/Aktiv Kapital/MBNA

Thanks M1

So at this stage i need to contact IND and ask for new timetable etc for filing defence? They provided the documents 14 days prior to the hearing - would that not be time for filing the defence?

im confused on the matter - can you please guide me - appreciate your time and effort.

[mystery1]

Re: Please help - very worried. Ref: IND/Hegarty LLP/Aktiv Kapital/MBNA

You should be looking out for accuracy. Are they correct in the respect that they are what you were given ? Then you need to check for prescribed terms. Then you need to check they haven't added stuff or done things that are not allowed under the contract.


For the hearing, as it stands your period for filing your defence has expired. Therefore the hearing is required in order that the court produces a new timetable. Obviously you will concede that they have now, belatedly and after your application, supplied the documents.

It may be that the claimant will consent to an order that they pay the costs of your application and a new timetable agreed between you if you ask them. This will save you turning up at court and if you ask them to do this, should be at their expense. I'd ask them to draw up a "consent order" for you to sign if it's agreeable.

M1

[HB10]

Re: Please help - very worried. Ref: IND/Hegarty LLP/Aktiv Kapital/MBNA

Hi M1,

To be honest im not sure what i should be looking out for etc. I need help regards the hearing and the angle that needs to be taken. They have now provided the docs requested and given approx 14 days for the defence etc. Whats the procedure now? what angle is to be taken during the hearing. Im pretty worried as to what needs to be done and now what are the prospects - considering they have now sent the docs. thanks.

[mystery1]

Re: Please help - very worried. Ref: IND/Hegarty LLP/Aktiv Kapital/MBNA

Are you happy with them or would you like advice on them ?

M1