Cheshirelad v SPML ( set aside hearing 6th Nov )

[righty]

Re: Cheshirelad v SPML

did they make their offer without the disclaimer only including it in the final written offer - if so they arbitrarily altered the agreement thereby invalidating their offer

Many firms will include the term 'full & final' as normal practice without even thinking, or more importantly from you point of view as a LiP, discussing it expecting that like other professional lawyers you will accept it as read - this can be a big & common mistake on their part as it allows you the opportunity to say to the court that they altered the terms of the agreement without your express consent - this will be your argument should they produce what amounts to a Pt36 offer to the court

[Cheshirelad]

Re: Cheshirelad v SPML

did they make their offer without the disclaimer only including it in the final written offer - if so they arbitrarily altered the agreement thereby invalidating their offer

Many firms will include the term 'full & final' as normal practice without even thinking, or more importantly from you point of view as a LiP, discussing it expecting that like other professional lawyers you will accept it as read - this can be a big & common mistake on their part as it allows you the opportunity to say to the court that they altered the terms of the agreement without your express consent - this will be your argument should they produce what amounts to a Pt36 offer to the court

Righty....thanks for this, I amended the terms and they have agreed. The court order has been sent back to court so just waiting for confirmation the court are happy then my Cheque!:tinysmile_grin_t:

[Cheshirelad]

Re: Cheshirelad v SPML

I have another case going now 'Cheshirelad v Mortgages Plc' possibly should have its own thread?

Done all the prelimary stuff SAR, request letter for unfair charges and penalties with interest circa £2500, LBA

All the usual replies so I MCOL and they submitted a defence earlier this week a copy of which the court has sent me today

Their defence handwritten on one of their compliment slip's says ' Account number can't be traced for this customer. regards'

I clearly stated my account number on the claim and have double checked it and its the same as the one quote on all letters and SAR

I was g**smacked, I would appreciate comments and opinions from anyone. My questions are

1. Is this a real defence?

2. The court has accepted this as a defence, should they?

3. Its not signed and there's no name on it

4. What should my next course of action be, the court are asking me for an AQ

regards
Cheshirelad

[righty]

Re: Cheshirelad v SPML

Seek summary judgment in that defendant's have failed to defend the action & if the court suggest otherwise write back telling them that the defendants response is nonsense Include copies of correspondence showing they know exactly who you are & are attempting to abuse the system

[Cheshirelad]

Re: Cheshirelad v SPML

Seek summary judgment in that defendant's have failed to defend the action & if the court suggest otherwise write back telling them that the defendants response is nonsense Include copies of correspondence showing they know exactly who you are & are attempting to abuse the system

thanks Righty, do you think I shourld add anything else to the below:-

Dear Sir/Madam,

I refer to the above case which has been transferred from Northampton (CCBC) County Court following the submission of a defence by the defendant.

I’m writing to seek a summary judgment against the defendant, as the defendant has failed to enter a valid defence.

The defendants defence states:

‘Account number can’t be traced for this customer’

I have attached copies of 4 letters received from the defendant all confirming the correct account number as submitted on the claim:

• Letter (dated 15th April 2009) from defendant confirming they have sent all information regarding Account number ********
• Letter (dated 23rd April 2009) from defendant confirming my they had received my letter on complain regarding unfair penalty charges, this letter also confirms account number *********.
• Letter (dated 5th May 2009) from defendant confirming they had received a further letter from me, this letter also confirms account number ********.
• Letter (dated 8th May 2009) from defendant confirming account number ********.

The claim form submitted by Northampton County Court clearly states the mortgage account number ********** and that details of the claim had already been notified to the defendant.

I believe the defendants defence to be nonsense, they know exactly who I am. I believe they are attempting to abuse the system and mislead the court. Further more the defence is neither signed or dated

Cheshirelad

[righty]

Re: Cheshirelad v SPML

Yup send that

[scoobydoo]

Re: Cheshirelad v SPML

I assume this is a mortgage that has been repaid now - and that you made that clear on your court claim?

[Cheshirelad]

Re: Cheshirelad v SPML

I assume this is a mortgage that has been repaid now - and that you made that clear on your court claim?

How would that make a difference??

[scoobydoo]

Re: Cheshirelad v SPML

Because some of these mortgage companies need things spelling out to them and they may just be checking their existing mortgage accounts and it wont be there,



the fact that you are claiming on a repaid account I dont think should make any difference at all. But they may not put two and two together - even if you are claiming back fees associated with the possession.

[Cheshirelad]

Re: Cheshirelad v SPML

Because some of these mortgage companies need things spelling out to them and they may just be checking their existing mortgage accounts and it wont be there,



the fact that you are claiming on a repaid account I dont think should make any difference at all. But they may not put two and two together - even if you are claiming back fees associated with the possession.

Fair point, but surely the girl in the post room receives enough legal types of coorespondance to know what had arrive in the post in terms of document importance???

[scoobydoo]

Re: Cheshirelad v SPML

I am not excusing them - and I hope the court comes down on them hard.

[Cheshirelad]

Re: Cheshirelad v SPML

I am not excusing them - and I hope the court comes down on them hard.

Fingers crossed I hand deliveried the letter (slighty modified to include copies of my letters as well to give the complete picture, that's my request for a refund and letter before action)

My local court hadn't had the full file from Northhampton as yet so think it will be a week or so before I know. But met the helpful person I have already been talking to regarding th SPML case. so good to know the person I can speak to regarding court process.

Will keep the thread posted

regards
Cheshirelad:tinysmile_grin_t:

[scoobydoo]

Re: Cheshirelad v SPML

yes I will be watching with interest as well.

[Cheshirelad]

Re: Cheshirelad v SPML

Fingers crossed I hand deliveried the letter (slighty modified to include copies of my letters as well to give the complete picture, that's my request for a refund and letter before action)

My local court hadn't had the full file from Northhampton as yet so think it will be a week or so before I know. But met the helpful person I have already been talking to regarding th SPML case. so good to know the person I can speak to regarding court process.

Will keep the thread posted

regards
Cheshirelad:tinysmile_grin_t:

Rang the court today, the Judge hasen't given me a summary judgement he is ordering they must submit a defence with in 14 days or I can enter judgement.
bit soft if you ask me.

Cheshirelad
------------------------------- merged -------------------------------

Righty....thanks for this, I amended the terms and they have agreed. The court order has been sent back to court so just waiting for confirmation the court are happy then my Cheque!:tinysmile_grin_t:

Judge would not accept the draft order in the format it was in he has said it had to be re-submited as a 'Tomlin Order' which I have agreed to. so just waiting for this to be approved probably another week or so before I get the cheque

Cheshirelad

[righty]

Re: Cheshirelad v SPML

Why if it's only the payment of monies

Courtesy of
District Judge Peter Glover

Thursday 11 May 2006

Tomlin Orders explained

Mr Justice Tomlin had been a Chancery judge for four years when he decided the case of Dashwood v Dashwood [1927] WN 276, on 1 November 1927.
Litigation concerning the dissolution of an undertaker’s business had resulted in a consent order scheduling terms of settlement, including a prohibition on local competition by the outgoing partner for a period of three years. Mr Justice Tomlin decided that the competition clause could not be enforced by committal unless and until the claimant had obtained an order for specific performance or an injunction to enforce the agreement. He concluded that, the court having stayed the action on the agreed terms, it remained alive only to the extent necessary to enable a party thereafter to enforce the terms. Those scheduled terms did not amount to an order of the court permitting direct enforcement by committal.
Although he went on to become a Lord of Appeal, Baron Tomlin remains best known for his clarification of the legal status of a form of order, already widely used in 1927, which now bears his name. On the day after the decision, he issued a practice note setting out the desired form for such an order, repeated to this day in the standard court texts (for example, at paragraph 40.6.2 of the current edition of the White Book, and procedural guide 28B at page 172 of the 2006 Brown Book).
In recent years, there has been a proliferation in the use of Tomlin orders, particularly in the settlement of personal injury litigation. It seems doubtful whether those who use them in that context really understand their purpose. For example, is it intended by claimants’ solicitors that their clients’ compensation, agreed in the schedule to such an order, should not be recoverable save by further litigation in the event that payment is not forthcoming on the agreed date or at all? Is that a sensible or proportionate way in which to compromise litigation? What is wrong with a simple judgment for a sum to be paid by a given date?
Although judgments are, strictly, registrable, unless following a contested hearing, there is an absolute entitlement, conferred by regulation 11(2) of the Register of Judgments, Orders and Fines Regulations 2005 (SI 2005/3595), to cancel the registration of any judgment paid within one month of the date of the judgment. But many such judgments are not, in fact, registered at all.
The misuse of Tomlin orders causes further problems because draftsmen have little apparent idea of what goes in the order and what goes in the schedule. By definition, any order, as opposed to an agreement, must appear in the order itself. Thus, if money is to be paid out of court or costs are to be paid by either party to the other, those matters must be dealt with in the order proper.
A salutary example of what can go wrong if an appropriate order is not made is found in the case of Green v Rozen [1955] 2 All ER 796. Counsel agreed a settlement at the court door and noted on their briefs the installment order agreed and the consequences of default, adding the wording: ‘By consent all proceedings stayed on terms indorsed on briefs. Liberty to either side to apply.’ No court order of any kind was obtained. Predictably enough, an application to enforce the agreement was unsuccessful on the ground that there was no court order to enforce.
In a true Tomlin order, it may be appropriate to conclude the schedule with a term providing that on payment of the sums agreed and costs ordered to be paid, the parties’ respective liabilities, each in respect of the other, shall be discharged. Such wording is wholly superfluous in an ordinary court order as the effect of compliance is to discharge it, and yet is commonly included in consent orders submitted for approval.
If it is accepted that the Tomlin form is the exception and not the rule, when may it properly be used? Obvious examples will include where terms are agreed without any admission of liability or where the terms agreed by the parties go beyond what the court has jurisdiction to order. Thus, if terms of settlement are to remain confidential as between the parties, such a condition may be scheduled, as may terms whereby a judgment creditor agrees to accept a lower sum in full and final settlement on conditions as to, for example, the regular payment of specified installments. In such cases, an order can be obtained to enforce those terms ‘notwithstanding that they go beyond the ambit of the original dispute, could not have been obtained or enforced in the original action and that the obligation did not exist but arose for the first time under the compromise’, said Mr Justice Goff in Phillips v Clarke [1969] 3 All ER 710 (distinguishing re Hearn [1913] WN 103).
A Tomlin order is neither necessary nor appropriate where the settlement simply involves the payment of money, whether by one party to another, or out of court, or to the Compensation Recovery Unit. There is no reason why a court order should not record a payment as being in full and final settlement of any cause of action the parties or either of them may have against one another arising from the accident which is the subject of the claim.
Remember that the court cannot order a party to accept a sum of money in settlement, but it can record the terms on which he has agreed to do so in recitals to the order. A Tomlin order should not be used simply because a recital of the parties’ understanding of the ambit of their settlement is considered necessary.
While it is not for the court to interfere with the terms on which claims are compromised – and indeed, it has no right to approve or disapprove them (see Noel v Becker [1971] 2 All ER 1186) – the form of order is a matter for the judge, and practitioners should not be surprised when incorrect or inappropriate Tomlin orders are rejected.
It may be no surprise that their misuse has increased with the emphasis on the speedy completion of work done in considerable bulk rather than attention to detail.
Training on technical aspects of the law may also, perhaps, not be given the priority it deserves. But practitioners should be on their guard against misuse of these valuable hybrids.