Woodchester V Swain (default) Debate

[postggj]

Re: Woodchester V Swain (default) Debate

thanks people for keeping this thread on topic and a healthy debate

knowlege is power

[Guest]

Re: Woodchester V Swain (default) Debate

Hi
From what I have read I don’t think that a case can be resurrected after it has been discontinued, not on the same evidence anyway. I think the cause of action (default notice) would have to be rectified.
It seems that the trick is getting the judge to discontinue rather than just stay proceedings whilst the faulty DN is remedied. I suspect this is dependent to a large extent on the way the debtor presents his case.
If he makes it clear that he has been unduly prejudiced by the error to the extent that the judge gets pi**ed with the creditor then there is a good chance.
This is really what makes the whole challenging a default notice so difficult to pull off. You have two problems to overcome; first you have to get the court to agree that the notice is defective.
This should be straight forward, the act states quite clearly what is need to comply with section 87, there is no leeway, there is nothing within the act that says “dependant on the amount of prejudice caused by the error”, as there is in a section 127(1)/65 breach, it should in my opinion be a case of ; does it comply or doesn’t it, if it does then you can continue if it doesn’t then the case must be thrown out. But we know that this is not what happens.
First there was the concept of de minimus where small errors are ignored and now, thanks to Brandon there is the element of prejudice caused.
Then if you get over that hurdle you run the risk of the judge just saying, ok this is defective so I will hold up the hearing for two weeks whilst the rectified DN is presented then continue.
I am not saying it cannot be done, our friend on the thread I indicated proves it can, but you really have to know what you are doing and be aware of the hurdles you have to negotiate. Of course all this is just my opinion
Peter

[gwenlillian]

Re: Woodchester V Swain (default) Debate

Hi - reviving an old thread here, but this seems closest to my query. I have a claim against me in court, dispute over a hire purchase agreement. The claimant issued a defective default notice and the court ordered the case adjourned generally with liberty to restore. Several months later the claimant applied to restore the claim and the court gave permission. At the same time they issued new particulars and had service of these dispensed with. In the interim period the claimant issued a further default notice, however, this was after the six month period allowed and is defective again. So, do I take the approach that the first issue didn't exist and that therefore the second is the first now, as I note that the wording will alter for first and subsequent notices, and, more to the point, can I ask the court to dismiss this new claim given that they have repeated their errors, and ask for costs in repeatedly defending a claim that should not progress any further? Happy to clarify that more if necessary. many thanks.

[miliitant]

Re: Woodchester V Swain (default) Debate

you need to be looking at cpr part 38. discontinuance

may i ask how a claim can be restored with new particulars

what should have happened is the claim be withdrawn, the creditor then serves you with a new default notice, you then fail to rectify within 14 days, the creditor

THEN ISSUES A NEW CLAIM AGAINST YOU

if the default notice is again defective, i would put in an application notice to strike out the claim for breach of process

WE CAN ALSO PUT BRANDON V AMMEX INTO THE EQUATION ME THINKS AS WELL

Appeal allowed because LJ Gross disagrees that defects in a S87 DN are not "de minimis" and that a lender cannot (easily) switch to a S98 claim if his S87 claim fails due to those defects and he fails to serve a S98 notice prior to termination

THIS IS NOT A WELCOME AGREEMENT IS IT

[gwenlillian]

Re: Woodchester V Swain (default) Debate

Hi - wow that was quick - thank you. In the interim, they (who read all the threads everywhere) engaged a solicitor, sent a new particulars to court, and copy to me, saying that it would best to dispense with service and deem everything served already, to save costs, and have permission to have the stay lifted and move the claim to fast track. So the judge said OK, but would send out AQ's re the track, as I protested about it, and I am waiting to hear. But, think I should be asking to have this thrown out in my pleadings - not sure.

[miliitant]

Re: Woodchester V Swain (default) Debate

WELL YOU DO A GENERAL DIRECTIONS statement IN THE AQ when you receive it to have the claim dismissed AS TO CPR PART 38

who is the claimant and/or the original creditor

[Guest]

Re: Woodchester V Swain (default) Debate

Hi just a word of caution here;

The OP didnt say that the case had been discontinued, and what exactly was the problems with the DN's.
There are cases that have been put on hold under CPR3.4, I think and the creditor has been given leave to present a new notice.

D

[gwenlillian]

Re: Woodchester V Swain (default) Debate

thank you, I will take heed but having done that already we seem to be going round again. This is just one of many errors overall and I am wondering when this becomes 'abuse of process'.

[miliitant]

Re: Woodchester V Swain (default) Debate

tell me davy

how can a creditor submit new particulars of claim , that can only be done with an application notice N244 and permission from the judge

this seems to me to be an abuse of process, or the old duffer of a judge has allowed a possible reason to appeal

[Guest]

Re: Woodchester V Swain (default) Debate

tell me davy

how can a creditor submit new particulars of claim , that can only be done with an application notice N244 and permission from the judge

this seems to me to be an abuse of process, or the old duffer of a judge has allowed a possible reason to appeal

Yes i think there is a court order on here somewhere posted by amethyst where a case had been stayed whilst a corrected default was was issued, the case hasn't been discontinued so no permission under 38.7 is required.

D

[miliitant]

Re: Woodchester V Swain (default) Debate

THE PROBLEM I HAVE IS THE DEFENCE HAS ALLREADY BEEN EXCHANGED WITH THE CLAIMANT AND THE COURT

that is where the defective default notice came into the equation, once court bundles have been exchanged, thats it

the creditor needs to withdraw the claim and re-issue new particulars after a new default notice has not been rectified and pay all the court fees again

[Guest]

Re: Woodchester V Swain (default) Debate

Perhaps so, but the fact is that courts have treated this as a procedural breach and used its powers under the CPR to halt proceedings and recommenced on the issue of a new notice.

To me this sounds like what has happened here.

D

[gwenlillian]

Re: Woodchester V Swain (default) Debate

hi and thanks - can i add another question please, being asked under the default notice to pay the sums in total when there is still time to run on the agreement, surely represents an early settlement? I can't find any rules that say I am not entitled to an early settlement rebate within the sums they show, yet there aren't any?

[Guest]

Re: Woodchester V Swain (default) Debate

hi and thanks - can i add another question please, being asked under the default notice to pay the sums in total when there is still time to run on the agreement, surely represents an early settlement? I can't find any rules that say I am not entitled to an early settlement rebate within the sums they show, yet there aren't any?

HI

Unfortunately you are only entitled to early settlement rebate if you terminate the agreement early, it doesn't apply if you default and the creditor has to terminate, in that case the full amount under the agreement is due.
D

[miliitant]

Re: Woodchester V Swain (default) Debate

again, this is what is totally going everything i know

how can the creditor ask for sums not yet due, the default notice is a prelude to enforcement

if they are asking for sums not yet due then they will be wanting to terminate the agreement.

if that is they case the debtor needs to be given a termination figure with any due interest rebate etc as it stands at the moment

how can the creditor bring court action on a live agreement that has not been terminated, they can on any arrears, but to ask for all sums due without termination is not on

thats the way i see it anyway