Lowell Portfolio I Ltd v dasher13

[dasher13]

Re: Lowell Portfolio I Ltd v dasher13

costs were part of the counterclaim - or is that completely separate?

[R0b]

Re: Lowell Portfolio I Ltd v dasher13

@R0b

At a recent SCT hearing which I attended (Claimant lost), the issue of costs was brought up but, apart from any application costs, the judge refused costs to the defendant as the other party (Claimant) had not been notified of the Defendant's intention to claim before the hearing.

Of course, but I believe the costs were pleaded as part of dasher's counterclaim if I recall form one of these posts

[charitynjw]

Re: Lowell Portfolio I Ltd v dasher13

For the purposes of the counterclaim, you are the Claimant.
Were costs mentioned in your c/claim?

Haha
X-posts with [MENTION=71570]R0b[/MENTION]

[dasher13]

Re: Lowell Portfolio I Ltd v dasher13

hello both - yes costs are in the counterclaim. What does this mean?? Sorry to be a little clueless on this front!

[R0b]

Re: Lowell Portfolio I Ltd v dasher13

Arguably, in this type of claim, costs of defending the case could be included as damages.

Lord Wilson in Crawford Adjusters v Sagicor (who also formed part of Willers v Gubay panel of judges) said that cases of the tort of abuse of process and malicious prosecution should compensate for economic losses (financial losses) suffered as a consequence of the civil proceedings. The time and costs incurred in defending a malicious claim or one without reasonable and probable cause ought to fall into that category and become recoverable in addition to the injury caused by the default notice on your credit file.

[dasher13]

Re: Lowell Portfolio I Ltd v dasher13

Hi all - can anyone point me in the right direction for case law where there has been no evidence that there was a legal assignment pursuant to the Law of Property Act 1925 (“LPA”) and a claim has been dismissed please?

thanks in advance.

[charitynjw]

Re: Lowell Portfolio I Ltd v dasher13

http://www.bailii.org/ew/cases/EWCA/Civ/1973/5.html

Holwell Securities v Hughes [1973] is a pretty good all-rounder for NoA.

[dasher13]

Re: Lowell Portfolio I Ltd v dasher13

Hello all.

On Friday I was contacted by Lowell Solicitors to say they (well Lowell) were accepting my drop hands offer which I made ten days ago for both of us to walk away and bear our own costs with both claim and counterclaim discontinued.

They sent through a Consent Order which actually asked the Judge to rubber stamp both claim and counterclaim being dismissed not just discontinued. We both signed it and emailed it to the court but as it was mid-afternoon Friday I didn't get any confirmation on the day that everything was ok with it.

So attended court this morning and the Consent Order was accepted by the Judge and claim and counterclaim were dismissed.

Just wanted to say a huge thank you to everyone who has helped me with this. Could never have got to this point without you all and am just so very, very grateful. I also want to say a special thank you to R0b, charity and Di who have been brilliant.

Not sure what happens now really and whether I'll have to re-live this all over again in the future but for now relieved!

Thanks again!!

dasher

[R0b]

Re: Lowell Portfolio I Ltd v dasher13

Well done at least you got the result you wanted in the end.

Because the claim is dismissed that is the end of it for you. I suggest you keep hold of the order and keep it somewhere safe or perhaps an electronic copy in case this crops up at a later date or Lowell for some reason decide to sell the debt on to another.

[Diana M]

Re: Lowell Portfolio I Ltd v dasher13

I was contacted by Lowell Solicitors to say they (well Lowell) were accepting my drop hands offer which I made ten days ago for both of us to walk away and bear our own costs with both claim and counterclaim discontinued.

They sent through a Consent Order which actually asked the Judge to rubber stamp both claim and counterclaim being dismissed not just discontinued.

As we discussed (off the forum) you put the Claimant in a difficult position in that they couldn't discontinue the claim because you had filed a counterclaim. That's why you wisely made them a drop-hands offer.

If they had discontinued (which I expect they were minded to do once you'd filed your WS) they would still have been left dealing with your counterclaim.

The alternative would have been to go to trial where the DJ may have been unimpressed with your request for him to order damages against the Claimant. It could have coloured his whole attitude towards you.

My personal view all along has been that counterclaiming for £250 damages for "malicious prosecution" was a high risk strategy especially on a small claim of £800.

It may have been an unpopular view but I felt the need to share it in case anyone reading this thread feels inspired to do the same. All I can add to that would be "Don't Try This At Home"

Di

[R0b]

Re: Lowell Portfolio I Ltd v dasher13

[MENTION=87380]Diana M[/MENTION]

Of course we are all entitled to our opinion but may I ask what you mean high risk strategy by claiming £250 for MP on a claim for £800? Are you suggesting that the counterclaim is too high for the amount being claimed by the Claimant?

[Diana M]

Re: Lowell Portfolio I Ltd v dasher13

@Diana M

Of course we are all entitled to our opinion but may I ask what you mean high risk strategy by claiming £250 for MP on a claim for £800? Are you suggesting that the counterclaim is too high for the amount being claimed by the Claimant?

No it wasn't the amount which bothered me it was the whole strategy regardless of the amount.

You posted earlier on the thread that Amethyst was also concerned and felt the issue needed discussion before any other LB members tried it.

I believe this may be the first LB member as I did previously suggest this could be an option to deter them from bringing claims without any proof in this case that they have standing and the evidence to show the debt is actually owed. The choice was up to dasher whether a counterclaim should be made, and I have since stopped suggesting this on the request of Amethyst until further discussions on this is made (though none of us have got round to having a proper discussion on it yet).

If the Claimant loses then the Defendant can always ask for a Costs Order against them due to conduct issues even in the Small Claims Court. I feel that would be a more attainable solution for the time and energy wasted defending a claim which should not have been brought in the first place.

LB member Addled was awarded £200 costs against Lowells in the small claims court last week. The DJ decided that the Claimant should pay

Yaaaay!!! Struck out, and the DJ was a demon; she relished it, her closing statement was elaborate and scathing.

And £200 costs awarded.

Di

[R0b]

Re: Lowell Portfolio I Ltd v dasher13

I have stopped suggesting MP since yes, but dasher at the time was happy to pursue that route nonetheless. So which part of the strategy bothers you?

Costs orders against a party are not always automatic and dependent on the circumstances but more importantly they vary quite a lot. If it is plain and clear that a claimant doesn't have the relevant documents and information or even any knowledge of the contents of them (and in this case highly probable that the NOA was at least fabricated in some way) then why not bring a claim for MP as the right to such a claim is there? It would be a similar way to bringing a claim for breach of data protection, whilst there may not necessarily be any financial loss to the person per se, it is the act that is carried out which gives rise to a claim for damages which can result in the distress.

As I've pointed out before, the Supreme Court in Willers v Joyce has made it known that it is unjust for someone to to suffer injury for a claim brought against them with no reasonable cause yet the person who instigated it gets away with it. As my personal view differs from yours on this and I am in no way saying you are wrong by the way, but if there is a cause of action in law then why rely on something else for the same effect that you may or may not get?

£250 is a reasonable sum I think for something such as this although there could be scope for it to be a larger amount, again depending on the circumstances. It is common that all claims for malicious prosecution previously (both criminal and older civil case law) have attracted claims of exemplary damages but not less than aggravated damages.

Not everyone will be happy to go down the counterclaim route and a discontinuance will be sufficient for them but for others who feel they have expended time and effort into defending claims such as these may want to pursue it further. I see no reason why they cannot do this and I wouldn't consider it a high risk strategy, when there is a cause of action for it. I certainly can't see how a judge will be unimpressed considering the judgement has come from the highest court in the land, and the only risk being here is the loss of £25 should a judge feel that it is not warranted in the circumstances.

Everyone's opinion is different and as the saying goes, if you ask a room full of lawyers the same question you'll get a different answer from each

[Diana M]

Re: Lowell Portfolio I Ltd v dasher13

If it is plain and clear that a claimant doesn't have the relevant documents and information or even any knowledge of the contents of them (and in this case highly probable that the NOA was at least fabricated in some way) then why not bring a claim for MP as the right to such a claim is there?

At the time the counterclaim was brought the Defendant would not have known that the NOA was reconstituted because it hadn't been disclosed. That came later on in the proceedings.

In the Small Claims Court (Standard Directions) both parties are ordered to disclose the documents which they intend to rely on 14 days before the hearing. That seems to be sufficient in the eyes of the DJs.

If a Claimant issues a claim without the paperwork but subsequently provides valid documents (which happens) then the Defendant would lose their counterclaim or have to discontinue it with the risk of costs consequences - albeit those costs would be at the discretion of the court.

If the Defendant hasn't got enough documents in order to plead their Defence then they can serve a Part 18 Request and/or make an application for an Unless Order.

Like you, I don't think either of us is right or wrong, I just thought it was a bad idea

Di

[R0b]

Re: Lowell Portfolio I Ltd v dasher13

The NOA you could say was an added bonus but wouldn't have been key to the claim for MP. My suggestion of MP was based around precedents rather than any CC decisions, and there's clearly arguments to both sides of the story but lets not detract too much from the thread, and at the end of the day, dasher has got the needed result and that's what matters!