Application to lift stay

[liberty24]

I have been quoted £720 for a solicitor to take on this case, but am unsure whether to go ahead as it's quite a substantial amount of money when you have a family to provide for. How common is it for Cabot to proceed to lift the stay, and do you have any suggestions on what I can do to prevent it?

[pt2537]

I have been quoted £720 for a solicitor to take on this case, but am unsure whether to go ahead as it's quite a substantial amount of money when you have a family to provide for. How common is it for Cabot to proceed to lift the stay, and do you have any suggestions on what I can do to prevent it?

Hi there

Ok well £720, what does that cover? If its all the way to trial then yes thats not a bad fee on the face of it, but if thats just to deal with an application to lift the stay thats a lot in my opinion.

The biggest error consumers make, is letting their case get stayed, it gives the likes of cabot a free shot at getting all their papers together. The longer stayed the worst it gets in my opinion.

There is nothing you can do to stop them lifting the stay, the best option is to litigate your case in accordance with the CPR, and make sure you raise all the key issues in your case in the Defence

[Amethyst]

They know you intend defending any application so all to do really is to wait and see if they do apply. There will still be opportunities to negotiate to settle ( or continue defending of course ) if they do apply.

Whats your primary objective ? I mean, how imperative is it that you not have a ccj vs having a ccj and paying affordable instalments ? ( as really that says what risk you are willing to take going forward ) If not getting a CCJ is your main aim then negotiating to settle under a Tomlin order could be an idea, but if defending and not having to pay the claim is your main aim and a ccj wouldnt hugely affect you then you are more able to push on. A full and final settlement at this stage might be worth looking at - potentially 50-70% - if financially viable.

As things stand if they do get the stay lifted you only have the default notice issue remaining to defend on ?

[liberty24]

Hi there

Ok well £720, what does that cover? If its all the way to trial then yes thats not a bad fee on the face of it, but if thats just to deal with an application to lift the stay thats a lot in my opinion.

The biggest error consumers make, is letting their case get stayed, it gives the likes of cabot a free shot at getting all their papers together. The longer stayed the worst it gets in my opinion.

There is nothing you can do to stop them lifting the stay, the best option is to litigate your case in accordance with the CPR, and make sure you raise all the key issues in your case in the Defence

Hello PT2537, thank you for you reply. The £720 fee is inclusive of VAT, and includes assistance all the way to trial, however excludes court fees e.g. application to amend the defence or the cost of a Barrister at the trial hearing. I am not sure whether I can amount enough of a defence alone, or argue it sufficiently at court unaccompanied. Is it correct that I am not likely to recoup costs with a small claims case? If costs cannot be recouped, I was wondering whether to make a without prejudice office to save on solicitor costs but am not sure how to go about this.

[liberty24]

They know you intend defending any application so all to do really is to wait and see if they do apply. There will still be opportunities to negotiate to settle ( or continue defending of course ) if they do apply.

Whats your primary objective ? I mean, how imperative is it that you not have a ccj vs having a ccj and paying affordable instalments ? ( as really that says what risk you are willing to take going forward ) If not getting a CCJ is your main aim then negotiating to settle under a Tomlin order could be an idea, but if defending and not having to pay the claim is your main aim and a ccj wouldnt hugely affect you then you are more able to push on. A full and final settlement at this stage might be worth looking at - potentially 50-70% - if financially viable.

As things stand if they do get the stay lifted you only have the default notice issue remaining to defend on ?

Thank you for your reply Amethyst. Would a CCJ incur a charging order against my home? If so, I would not want a CCJ, and would consider seeking a Tomlinson order, but have no experience in this. Otherwise, defending and not having to pay the claim would be the main aim. If I were to continue defending this claim, I would need to amend my defence, and so emailed MCOL to request a copy of my defence. However, they said that they do not hold this information for longer than 3 years, and the case has been stayed for 4 years+. I noticed you mention that I would only have the default notice issue remaining to defend on. Would I not also be able to put other things in the defence e.g. no deed of assignment (looking back through previous paperwork, the debt was also assigned to Marlin Financial Services, and no deed of assignment has been supplied to evidence this either), lack of 2nd signature of creditor on the signed credit agreement, lack of annual statement of account?

[jaguarsuk]

Hello PT2537, thank you for you reply. The £720 fee is inclusive of VAT, and includes assistance all the way to trial, however excludes court fees e.g. application to amend the defence or the cost of a Barrister at the trial hearing. I am not sure whether I can amount enough of a defence alone, or argue it sufficiently at court unaccompanied. Is it correct that I am not likely to recoup costs with a small claims case? If costs cannot be recouped, I was wondering whether to make a without prejudice office to save on solicitor costs but am not sure how to go about this.

Yes costs are limited in the small claims track and only really awarded when there is poor conduct by the other party in the claim.

If you wanted to make an offer you simply draft a letter headed "Without Prejudice Except as to Costs" and inform them you are minded to offer to settle the claim at X, each party to pay £50 of the fee to seal a consent order if that's how they wish to deal with it or them to confirm in writing that they will accept the amount in full and final settlement and upon payment they will file a Notice of discontinuance in the claim.

You'll send it off and see what they say, you can always post a draft of the letter here for advice if you want to be sure before sending.

Thank you for your reply Amethyst. Would a CCJ incur a charging order against my home? If so, I would not want a CCJ, and would consider seeking a Tomlinson order, but have no experience in this. Otherwise, defending and not having to pay the claim would be the main aim. If I were to continue defending this claim, I would need to amend my defence, and so emailed MCOL to request a copy of my defence. However, they said that they do not hold this information for longer than 3 years, and the case has been stayed for 4 years+. I noticed you mention that I would only have the default notice issue remaining to defend on. Would I not also be able to put other things in the defence e.g. no deed of assignment (looking back through previous paperwork, the debt was also assigned to Marlin Financial Services, and no deed of assignment has been supplied to evidence this either), lack of 2nd signature of creditor on the signed credit agreement, lack of annual statement of account?

A charging order could be used as a method of enforcement if they are successful in obtaining a CCJ and you did not pay that CCJ.

You could argue all those points in an amended defence, if I were dealing with the application to lift the stay and given new evidence has been brought forward, I would oppose the summary judgement obviously and request the claimant file and serve an updated Particulars of Claim within 14 days and then you are able to file and serve an updated defence within 21 days.

It gives you a free shot at an amended defence then, which often pays off.

[liberty24]

Thank you jaguarsuk, what would be the difference between a full and final settlement offer and a Tomlin order? Would it be possible to make a full and final settlement offer before they make the N244 application?

[jaguarsuk]

Thank you jaguarsuk, what would be the difference between a full and final settlement offer and a Tomlin order? Would it be possible to make a full and final settlement offer before they make the N244 application?

A Full and Final Settlement letter would mean they wouldn't have to apply to lift the stay, they would just discontinue when you have paid up. If they did later apply to lift the stay then the letter would be your proof the matter is already settled (assuming you paid as agreed) and that the stay should be lifted, then the claim dismissed.

A Tomlin Order is a legal document, it's a consent order between you that is filed with the court, hence my comment about sealing it in my previous post and a fee for the sealing.

Really for both parties if you are going to settle it's better to be by a letter as there's no added costs, offer them 60% if you are intending to settle and see what they say.

It's really important that they must confirm in writing it's "Full and Final Settlement" and that they will file a Notice of Discontinuance upon receipt of payment in any response to you.

[travelboi]

Hey,
how did you get on with this please? I’m in similar situation and don’t know what to do?
thanks

[jaguarsuk]

Hey,
how did you get on with this please? I’m in similar situation and don’t know what to do?
thanks

You should start your own thread with your own particular circumstances to avoid confusion.

[travelboi]

I have... but not had reply

[jaguarsuk]

I have... but not had reply

As far as I can see you have had replies on both, perhaps not the ones you were hoping for, but your case is not similar to this one.

You have been provided with copies of the terms and as advised the SB clock stopped when the claim was filed.

The poster in this thread has never been provided with terms and in fact the claimants solicitors admitted none existed, completely different circumstances.