Judgment & Beyond ~ Budgie Vs Capital One

[Budgie]

Re: Budgie Vs Capital One

OK I asked Voyager for some more info :-

Hiya Voyager,

Sorry to hear it didnt go totally your way today.

Can you let me have a few more details.

Did you get the opportunity to argue both the penalty aspects under common law and the UTCCR 1999 aspects.

It looks as though Cap One concentrated more on the restituion side of things and used this the fact that they were prepared to refund the charges on a goodwill basis to befuddle the Judge. As much detail as you can provide would be useful.

You say that your claim was dismissed. I presume that your claim for compound interest was dismissed. How did it come about that Cap One would be paying you what you have stated. Did they make this offer to you in front of the Judge or before you went in?

Regards Budgie

hi budgie , they had already paid this back in june last year before it was stayed.
i couldnt argue the penalty and uttcr 1999 as the charges were no longer in dispute therefore it wasnt before the judge.

it was just 3 issues.

was it a restitution claim?

if so what rate of interest or should the court automatically award it?

and i have forgotten the third because it didnt come up due to the fact the judge found it wasnt a restitution claim.

my advice to anyone is to keep the claim intact and refuse all offers of settlement if it doesnt include contractual interest. that way you can argue the penalty aspects etc.
yes your right the remainder of the claim was dissmissed ie contractual interest.

[EXC]

Re: Budgie Vs Capital One

All the very best for today Bud. I'd love to be a fly on the wall and see you in action!

[enaid]

Re: Budgie Vs Capital One

Good Luck today Budgie, bye the way yellow is certainly not your true colour Enaid x

[TANZARELLI]

Re: Budgie Vs Capital One

Thanks Budgie, thats as I thought, he'd gone in on a sperated charges issue purely for CI and therefore had no penalty arguements to get a ruling on therefore pretty much lost it before he went in regarding CI.

All the best again for today, what time are you in?

[Budgie]

Re: Budgie Vs Capital One

Very interesting Court hearing today.

Met up with Hallimac who came along as a Mckenzie friend, many thanks for your support today mate !!

Went for coffee and arrived at the Court with twenty minutes to go.

Interesting thing is that we were at Court for Application hearings yet listing was shown on Court notice boards as a CMC. In hindsight this should have actually given a clue as to what was to follow.

Cap One Barrister, A Miss Sethi, arrived late, just as Usher was calling us in to Judges lair. She asked for copy of my latest Witness statement, which she claimed not to have received from Cap One, I of course obliged. LOL

Judge got straight of the mark and asked what the differences were between our respective postions. He did not want to discuss the applications he purely wanted to know what the differences were.

Cap One Barrister stated, although totally unconvincingly, that it was her Client's postion that they had settled the claim and that money had been paid to me. She said that they had settled my claim on a stat interest basis as they didnt believe I was entitled to compound interest. Lots of discussion followed regarding the supposed payments made to me. The Barrister was totally useless and didnt know what had happened and why and how.
I, of course knew all the answers but the Judge wouldn't really let me get a word in as he was intent on trying to get answers from the Barrister. Which proved to be very difficult as she just didn't have a clue

Judge said that he was minded to make a consent judgment saying that part of the claim had been settled, worded in such a way so as not to prejudice my claim and therefore allowing the claim to proceed to a final hearing on just the outstanding issue of the additional interest. Barrister said that she was agreeable to this on the basis that the payment had been made on a without liability basis. I of course said that I wasn't happy for this to happen as I felt it would be detrimental to my overall claim. I also said that I would not be happy for the portion of the proposed settlement relating to stat interest to be paid as I hadnt claimed statutory interest.
Judge tried to get Barrister to admit that they were returning the charges because they did not dispute that part of my claim. Barrister said NO. Further discussion followed regarding what payments had supposedly been made and when and how and where those payments were now. Barrister just couldn't answer the Judge and permission was given to withdraw whilst she checked the situation with her office.

We all withdrew and 10 mins later went back in. Barrister said that she hadn't been able to get clarification but kept on restating that she was sure that the proposed payment had been made and accepted by me. I of course contested this with the Judge and stated my position on this. I cheekily said that I would be quite happy if the Judge would like to order an adjourment to enable the Barrister to get a better brief. Judge said that wouldn't be necessary and that he wished to press on.

Judge said that he had decided what he was going to do and approx five minutes of silence followed whilst he scribbled down some notes for his orders.

Hallimac and I were whispering to each other and Barrister was paper shuffling.

Judge said that he would be issuing the following orders.

1) That he felt that both parties had a reasonable prospect of success.

2) That my application to strike the original defence was dismissed and that Cap One's application to submit a revised defence was granted. This was on the basis that the amended defence does better states the Defendant's case and in the Judges opnion does not prejudice my overall claim

3) He ordered that both parties submit detailed witness statements and skeletal arguments before 4PM on 16th July ( later changed to 30th July )
those witness statements and skeletal arguments to be limited to the following two issues. He did apologise that he was asking a Litigant in person to prepare skeletal arguments but felt sure that it was possible for me to do this and that I would be inclined to do so.

a) What goodwill payments have or have not been made by the Defendant in respect of the subject matter of the claim. When were these payments made, either before or after the commencement of proceedings. When and how were the payments made and whether they may be credited against the overall claim.

b) Whether the Claimant is entitled to simple or compound interest as claimed.

4) Costs reserved ( the cheeky cow Barrister suggested that Cap One should be able to claim costs owing to the fact that my application had been dismissed. I of course stated that I felt it totally unfair if I was to be subjected to costs when we hadn't even discussed my Application - LOL ) Judge said that he didn't want to get into that and would reserve costs and we could sort it all out at the final hearing.

5) That the final hearing date presently be left as listed for 10th September 2008. The Cap One Barrister requested that hearing be schedule for 4 hours rather than 2 hours. Judge said that he would have to check if that was possible and that he may consider chaging date of hearing if 4 hours could not be allocated. Both parties advise any dodgy dates by 20th June ( I suppose this means holidays etc etc ).

6) That the previous order regarding submission of statements of evidence be considered as consequently varied ( that was the original order that requested both parties file statements of evidence no later than 14 days before final hearing ).

I will leave this as a seperate post and follow up later with a summary of what I believe this all means. Hallimac and I have discussed it already and believe it to be very exciting. We feel the Judge knows exactly what he was doing !!!!!!!
Would be interested to feel what others feel without being influenced by the conclusions that Hallimac and I have drawn.

[stevokenevo]

Re: Budgie Vs Capital One

Superb!

Whilst reading through i started to feel anxious at this point

Judge said that he was minded to make a consent judgment saying that part of the claim had been settled, worded in such a way so as not to prejudice my claim and therefore allowing the claim to proceed to a final hearing on just the outstanding issue of the additional interest. Barrister said that she was agreeable to this on the basis that the payment had been made on a without liability basis. I of course said that I wasn't happy for this to happen as I felt it would be detrimental to my overall claim.

Especially in light of recent events.

All in all it sounds like you represented yourself grandly.

Its one small step, that might turn into one giant leap lol

Well done mate!

[Amethyst]

Re: Budgie Vs Capital One

Good work Bud, and Hallimac for going with him. ummm I can't really say what I think seeing as we've already spoken about it.

Interesting it was the barrister asked for the four hours. previously this time scale has been asked for by the defendants in these type of claims purely as a intimidation tactic and to worry the claimant for costs when they come to negotiate to pull out later. I think the judge is pretty sound and knows this full well and looking at the order he has made regarding the payments made to you that seems to back that up.

You didnt mention the Halliday bit.

Good about the skeletal arguments to, and that he was pushing the barrister to admit they didnt contest the charges element of the claim. Think the next stage after submission of the WS and skeletal arguments and the wee fibs about the goodwill payments come out will be very interesting.

Well done xxx

[Budgie]

Re: Budgie Vs Capital One

You didnt mention the Halliday bit.

Ah OK, sorry.

The Halliday case was mentioned by the Barrister as the main argument they will be using against the compound interest aspect of my claim.
Apparantly they will also be using SEMPRA to argue against compound interest. LOL
It was quite interesting that the Barrister couldn't initially remember the name "Halliday", the Judge was prompting her and in hindsight I am sure he was toying with her.
The Barrister at one point even said was it "Jack Brennan" ( maybe she watches a bit too much Eastenders and was confusing herself ) I piped up that the name she might be thinking of was Tom Brennan and the Judge chipped in with the answer that the case he thought the Barrister was referring to was "Halliday". LOL He even asked her is she had a copy with her LMAO !!

Quite an amusing exchange and again demonstrating the total incompetance of the Cap One Barrister. Who obvioulsy hadn't read my POC and my comments regarding the fact that my claim wasn't based on any implied term so "Halliday" is totally irrelevant.

Budgie

[HaliMac]

Re: Budgie Vs Capital One

This is indeed exciting - and is arguably the best result you could have got in my view, after turning the Judge around from his original 'mind-made-up, lets knock this on the head' position.

What changed his mind? Deciding factors:

• First has to be the hapless, poorly briefed Counsel - unprepared, very nervous, full of bluster and excuses, and constantly waving her mobile and asking to go outside to consult with her briefing solicitors, she soon began to grate on him.

• You got your argument in - just!. Despite his slightly dismissive air, not wanting to listen to details - Gold was sharp as a razor and could see straight through the Defendant's bluster to the heart of the matter. He seemed to have a gleam in his eye to me as he decided he wanted to see the argument tested.

• Notwithstanding my point above, I think he also realised that commercial considerations are at play here too. Cost of sending (briefed) Counsel plus team to Kingston for a half-day jolly, plus all the interim correspondence? Probably a lot less than settling.

As I said earlier - great if you do get the opportunity to argue the case in court (it will be like a mini- test case IMO). But I doubt it will happen. Cap One are more likely to settle because at the end of the day, they're scared of a real test; and they're all about the $$$s.

Budgie - thanks once again for a great and uplifting day and look forward to seeing you @ Lambeth soon

Mac

PS Can't wait to see the great arguments from Sempra that they're threatening to bring to bear on us - bring it on!

[TANZARELLI]

Re: Budgie Vs Capital One

Hi Budgie thats an interestingaccount of todays hearing.

Initial thoughts from me is that he knows about the CI being claimable and by hinting he "was minded to make a consent judgment saying that part of the claim had been settled, worded in such a way so as not to prejudice my claim and therefore allowing the claim to proceed to a final hearing on just the outstanding issue of the additional interest"

I believe clearly shows he was aware that if the charges issue was settled this issue could not be heard at the full hearing so by carefully wording the order he would allow this to happen therefore not being detrimental to the total claim (ie CI issue) and an ability for the charges to get a ruling on them. This is a good hint that he is willing to accept a claim for CI IMO even though it was not ordered lol.

Judge tried to get Barrister to admit that they were returning the charges because they did not dispute that part of my claim.

Thats also a nice little line of questioning as if they'd have admitted they didn't dispute the charges were penalties they wouldn't have been able to back track later. Or am I reading htat wrong?

Thoughts are that he's willing to hear this one out mate in regards to the CI issue if he has the ability to do this ie if charges are to be still part of the claim at the full hearing so if you successfully argued this point and he then ruled them to be penalties etc.

[Budgie]

Re: Budgie Vs Capital One

Thanks Hallimac, As you know already I totally agree with your views !!!

I also think the Judge has probably done me a huge favour. If I had been succesfull with my application to dismiss the original defence and also won the amended defence argument and got permission to apply for summary judgment I would have faced an inevitable appeal and set aside argument from Cap One.

The Judge has effectively short circuited the whole process for me.


Footnote :


Judge Gold is possibly already known to some of you. He was the Judge at centre stage for the following summary of an entertaining day at Kingston County Court posted by Rogerebaker on Cag last year.

full report from an entertaining afternoon at Kingston County Court **MUST READ**
Along with 30-40 others I was at Kingston upon Thames County Court this afternoon for a direction hearing with Barclays bank amongst others.

I know a lot of people are nervous about the possibility of going to court so I took a few notes with a view to reporting back and I must be honest it was a couple of hours of excellent entertainment.

First of all the cast.

The judge was a very well presented and instantly likeable bloke. A bit like Ken Barlow on Coronation Street. It was clear from the start that he wasn’t going to miss the opportunity to entertain in front of what was a capacity crowd in Court Two.

On the front row representing Barclays was a youngish lady in her late twenties looking every inch the up and coming Lawyer, impeccably dressed, hair tied up, small bifocals. She had a huge file in front of her containing the details of all the dreadful people who had the nerve to challenge Barclays.

To her left was a rather distinguished duo who were representing a No win No fee company and subsequently it turned out were representing a significant number of the claimants listed for the day

Directly behind them, relegated to the 2nd row was the rather sad looking figure representing Lloyds TSB. Compared to the snappy dressers in the front row he was clearly 2nd division and if on the off chance your reading this treat yourself to a new tie. No one is going to take you seriously wearing that!!!

The rest of the court room was packed with 30-40 claimants and you could cut the atmosphere with a knife as everyone was thinking the same “ Please don’t let it be me called first”

The first business of the afternoon was to deal with some overspill from the morning involving Lloyds. 3 or 4 cases had clearly been settled as a result of some frantic phone calls during the lunch break. The case names were mentioned and the bloke from Lloyds repeated several times weve settled. There appeared to be a dispute about the account number on one of these cases as the claimant had written the wrong number on his schedule.

Sensing his opportunity the man from Lloyds jumped to his feet shouting “Move to strike out the claim” “Don’t be ridiculous” retorted the judge “just put the correct account number on the schedule” We will settle” mumbled the man from Lloyds somewhat disheartened by his failure.

I personally don’t like to kick a man when he’s down but the judge showed no such sympathy. “Are you a barrister,” he asked “ No he replied” “ A legal clerk” no” “What are you then” asked the judge “ I used to be an old managing clerk”

A slight titter could be heard from the big hitters in ringside seats as the man from Lloyds buried his face in his papers.

Then from nowhere appeared a flighty young lad, plonked himself next to the Barclays barrister and in a lawyer sort of way gained the attention of the Judge. He was representing the bank of Ireland and needed to get away quickly so could he go first.

The judge obliged and the claimant in this case stood up. The flighty man from Ireland informed the judge that everything had been sorted out (They Settled) and the claimant had consented to the case being withdrawn. The judge asked the claimant if he agreed “ absolutely” he replied “I’ve got to get back and open up my pub and by the way there’s a Gin and Tonic waiting for you on the house”

The judge smiled “I better not but I’m sure my clerk could do with one”

Things had started well for the claimants and you could feel the relief in the court.

Next up was Nat West or well they would have been had they turned up. The claimant informed the judge that they had agreed to settle but he hadn’t had the money yet. The judge agreed to an adjournment to allow time for the money to be paid.

The young claimant wasn’t finished there. “Id like to apply for costs” he demanded. The judge didn’t look at all fazed and asked what he would like. Buoyed by this the claimant produced his civil procedure book, no doubt purchased from this site, and started to quote from it.

The judge appeared caught by surprise and stopped him. “ If you are going to start quoting civil procedure rules we are going to have to put you at the end”

The claimant left a bit crest fallen but lived to fight on later in the day.

It was then time for the first of the many Barclays cases. The case was called, the pristine Lady from Barclays flicked to the correct page in her huge file with ruthless efficiency.

Distinguished gent to her left rises and states he represents the claimant.

Pristine Lady states that Barclays have not received a schedule of charges so could not deal with the claim.

Distinguished gent states “that’s a bit surprising as they are stapled to the back of the Form N1 of which you have a copy”

Judge agrees and there is an uncomfortable silence as the pristine lady ruffles thru her papers.

“Ill have to take instructions”

“You do that” states the judge!! Adjourned for Barclays to get their Act together.

Then followed about 7 or 8 Barclays cases with the same outcome.

"No schedule of charges" she muttered.

I’ve sent them to you a hundred times shouted the claimant.

"Ill have to take instructions" ever more quietly

Then came the first mention of expenses from one of the claimants. “I’ve had to take a day of work to come here can I claim costs”.

The judge seemed receptive “What is your job” he asked

“Telephonist” she replied

How long have you been here?

“3 hours”

How much do you earn?

“£7 an hour”.

“That seems reasonable to me costs awarded £21”.

You could here the cogs werring in the brains of the claimants as they sniffed an opportunity.

Every case after that the opportunity for costs was ruthlessly exploited

“What do you do for a living sir?”

“Consultant sir” states the defendant

“How much do you earn an hour?”

“£50” stated the defendant

“How long have you been here?”

“Since this morning sir”

“£270 costs awarded”

“What about my car park bill that’s another £10”

“£280 costs awarded.”

One optimistic claimant even tried to get Barclays to pay for the possibility that she may be clamped in the local car park.

That was one step to far for the ever-generous judge who with a wry smile politely refused.

Next up Abbey National. Several defendants were awarded judgements and costs on an ever-increasing scale as Abbey couldn’t be bothered to turn up

Even the man from Lloyds was joining in the party. Realising that he was on the wrong side of a bit of a hiding he started advising one of the Abbey national claimants on how to calculate 8%.

One claimant from alliance and Leicester (Who also failed to turn up) was despatched from the court by the judge to find a calculator so he could add up the daily interest rate.

amongst the carnage There were a few successes for the banks

A couple of Barclay’s claimants failed to turn up and their claim was struck out. The not so pristine lady from Barclays asked for costs.

“How much do you earn” asked the judge.

Surly she wasn’t going to answer !! She muttered, stumbled then came out with the old favourite “ Ill have to take instructions”

The judge took sympathy on her and adjourned the hearing pending costs.

A couple of other significant things happened.

Alliance and Leicester had written to the judge stating they were going to defend one claim. The defendant was furious.

“They should have been here then” he snorted.

The judge with another crippling blow ordered full disclosure by the A & L within 14 days or their defence would be struck out

He calmed the claimant by informing him that he need do nothing and he should expect some sort of offer of settlement as soon as they receive that letter.

Several claimants asked if members of their family could speak on their behalf and this was allowed although to be honest it wasn’t necessary.

I left the court just after 3.30 having witnessed a complete route of the banks on almost all fronts.

Lessons learnt.

Don’t be afraid of the court

Do turn up

Have all your paperwork with you

Work out your costs and settlement figure before hand


I know this is only one court in one part of the country but hopefully this will encourage everyone to keep at it.

[TANZARELLI]

Re: Budgie Vs Capital One

I also think the Judge has probably done me a huge favour. If I had been succesfull with my application to dismiss the original defence and also won the amended defence argument and got permission to apply for summary judgment I would have faced an inevitable appeal and set aside argument from Cap One.

The Judge has effectively short circuited the whole process for me.

Hadn't thought of that mate.


Result then lol.

[EXC]

Re: Budgie Vs Capital One

Congrats again Bud and well done for going along Mac. I wish I had gon!

[Xena]

Re: Budgie Vs Capital One

Congrats again Bud and well done for going along Mac. I wish I had gon!

LOL EXC, the "posh totty" that you like wouldn't have been there!

Really enjoyed reading this, well done Bud Lite

[ed.]

Re: Budgie Vs Capital One

You did well Budgie, sounds like you made very good counters and the Judge obviously saw through the Barrister with your help.

I agree, he has actually made life easier for you and was doing his best to keep the claim open to test the issues of CI. Not sure how they can use Sempra to argue against it though?

That's a new one on me.

Be interesting to see what they come up with as full arguments against CI now then, if of course they are willing to take the risk.