Judgment & Beyond ~ Budgie Vs Capital One

[HaliMac]

Re: Budgie Vs Capital One

Budgie

Interesting point you make on wishing to go into the case with total charges and interest outstanding. As you know, my lot have effectively 'force-settled' by putting money into my credit card account. Despite asking twice for them to remove it, they haven't (i have returned their cheque for court fees on both occasions however).

In what way do you think this affects a case?

Cheers and the very best of luck with this.

[TANZARELLI]

Re: Budgie Vs Capital One

HaliMac

They will make every attempt to pay charges element and its always harder if the account is still active as they will do what you say and pay it onto credit card account. Its better to try and keep the whole claim intact as if not they will simply point out to the judge that the charges have been refunded and therefore this does not need to be discussed. That will leave purely the CI which can be a skakey thing to argue in any case.
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Budgie I have pm'd you some stuff which might help with your case. It has similarities with regards to defense and revised defense etc. Could help with the flow if your having writers block mate.

[Curlyben]

Re: Budgie Vs Capital One

If Curley Ben is reading this I would appreciate any input you can provide on the effect on Capital One of them having sold the account debt to the Lowell Group in Dec 2006.

Psssst it's Curlyben no extra e

What did you have in mind, as they did the exact same thing with me.
Now admittedly I settled for charges, all purchase interest and costs, also technically most of the charges were statute barred.

[Budgie]

Re: Budgie Vs Capital One

Budgie I have pm'd you some stuff which might help with your case. It has similarities with regards to defense and revised defense etc. Could help with the flow if your having writers block mate.

Thanks Tanz.

I have seen that before in various shapes and forms and have even used some of it in my POC LOL

I did loads of notes over the weekend and am drafting into a letter that I will pop into court and fax to Cap One tomorrow. There are some relevant bits I can crib from the stuff you PM'd me so thanks very much

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HaliMac

They will make every attempt to pay charges element and its always harder if the account is still active as they will do what you say and pay it onto credit card account. Its better to try and keep the whole claim intact as if not they will simply point out to the judge that the charges have been refunded and therefore this does not need to be discussed. That will leave purely the CI which can be a skakey thing to argue in any case.

Couldn't have put it better !

One only has to look at the revised defence that Cap One have applied for permission to submit in my case to see the importance that Cap One attach to making gesture of goodwill payments and reducing claims to just the Compound interest portion.

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Psssst it's Curlyben no extra e

What did you have in mind, as they did the exact same thing with me.
Now admittedly I settled for charges, all purchase interest and costs, also technically most of the charges were statute barred.

OK, I have early and more recent letters from Cap One confirming account / debt sold to Lowell and that I need to make arrangements with Lowell to clear the balance of the account. I now also have "suppressed" statements from Cap One ( just supplied to me ) which appear to show that account is still in hands of Cap One. I have asked for complete information regarding the sale of the account but don't expect to receive it for a while.

I probably don't need to do anything about this at the hearing on Wednesday but it might just be useful to know if and how I could somehow use this against them at some point.

PS Sorry about the extra "e"

[EXC]

Re: Budgie Vs Capital One

I really admire your determination Budgie.

[Budgie]

Re: Budgie Vs Capital One

Morning All,

Here's a draft of the letter I intend to pop into Court later today.

I could probably add loads more but wanted to try and keep it short and sweet.

I can expand and add further points from my notes at the actual hearing.

Would appreciate any comments on the following :-

I refer to the above matter and should be grateful if you would bring this letter to the attention of the District Judge in readiness for my application hearing this coming Wednesday (18th June 2008 ) at 12.00.

I am in receipt of notice of the Defendant’s application seeking leave to amend its defence, and witness statement in support, which I am given to understand will be listed at the hearing of my application to strike out the defence.

My comments in relation to the Amended Defence and Witness Statement are below. For the avoidance of any doubt, this is not to be taken as a reply to the defence; my comments are pertinent only to the Defendant’s request for leave to serve the Amended Defence.


I have no objection to the Defendant being granted leave to amend its defence, however, I respectfully submit that the Court should not grant leave to the Defendant to amend its defence in the terms proposed, on the following grounds:

• The Amended Defence does not meet the requirements of the CPR. Other than simply re-stating or admitting the basic parameters of the Claimant’s case the revised defence consists, almost totally, of bare denials of the Claimants Particulars of Claim. Additionally the Defendant makes numerous references, see Paragraphs 3, 4, 5, 7, 8, 9, 10, 15, to a gesture of goodwill payment which the Defendant asserts has been made in full settlement of the claim. The Claimant wishes to re confirm to the Court that the referenced gesture of goodwill settlement was refused by the Claimant and that any payments made were returned to and have been received by the Defendant. The Defendant was fully aware of the Claimant’s refusal of this “goodwill settlement” at the time of submitting the application covering the amended defence yet continues to refer to the goodwill settlement. Indeed the Defendant was fully aware of the Claimant’s refusal of this goodwill settlement at the time it submitted it’s AQ, which also makes reference to this goodwill settlement. It is the opinion of the Claimant that by continuing to maintain this approach the Defendant is attempting to mislead the Court into believing that the claim has been settled, the Claimant contends that this is an abuse of process.
• The revised defence, proposed by the Defendant does not specifically state reasons for denying the Claimant’s allegations or the Defendant’s own version of events as required by CPR 16.5 (2) (a) and (b) and CPR 16.5 (6) (a) and (b). Consequently if the Amended Defence is permitted to stand, the Claimant will be unable to plead a response to the Defendant’s denials.

• It is therefore the Claimant’s opinion that the Amended Defence does not meet the requirements of the CPR, is an abuse of process and is likely to obstruct the just disposal of the proceedings:

The Claimant is claiming charges applied to the account by the Defendant between July 2000 and February 2003 on the grounds that they are deemed to amount to unenforceable penalties. Since issuing the claim, additional charges have come to light. Details of these charges should have been provided in response to the Claimant’s properly submitted original SAR in July 2007. However, the relevant statements were not supplied by the Defendant until June 2008. The Defendant makes numerous references relating to the goodwill settlement and claims that all default charges ever levied to the account have been refunded. This is clearly not the case as these additional charges, which the Defendant was clearly aware of, were not included as part of the goodwill settlement, which the Claimant has nevertheless refused. The Claimant will respectfully seek the Court’s permission to include these additional default charges ( totaling £120 ) within the existing claim and additionally request that the Court considers the Claimant’s request for compound interest on these additional default charges.



The Claimant acknowledges that there has been no judicial ruling on whether or not the Defendant’s charges constitute an unenforceable penalty, however that in itself does not mean that the charges are not a penalty – otherwise there would never be cause to bring a case to Court. The Claimant is satisfied that the Defendant’s charges meet the current legal definition of a penalty under the common law, and believes that his case has more than a reasonable prospect of succeeding. The Claimant would also ask the Court to consider in relation to this, the fact that the Defendant has failed to defend any claim in respect of it’s default charges at a hearing. A list of cases settled out of Court and a list of cases defended at a hearing will satisfy the Court that this is the case.

At Para 16 of the witness statement, the Defendant contends that it has a strong and compelling defence to the claim. The Defendant has not given any explanation for not having submitted an adequate defence to the claim. The Claimant has already commented above as to the Amended Defence not meeting the requirements of the CPR, but notwithstanding this, the Claimant does not believe that the Defendant will proceed to trial on the strength of its Amended Defence in any event, given its history of settling claims out of Court. The Claimant contends that the amended defence is an attempt to obstruct the just disposal of the proceedings as already outlined. The Claimant will defer to the judgment of the Court as to whether there are grounds for striking out the defence.

The Claimant does not agree that the Court should grant permission to the Defendant to amend its defence in the terms of the proposed draft.

The Claimant’s application should not be dismissed and the Claimant invites the Court to award summary judgment on the claim in favour of the Claimant.

Alternatively, if the Court believes that the Defendant has a reasonable prospect of defending the claim and that the Defendant will proceed to a trial the Claimant concurs that the Defendant be given leave to submit an adequate defence. In that instance, the Claimant respectfully requests that the Court, notwithstanding allocation to the small claims track, orders standard disclosure to assist in the just disposal of the claim. The Claimant understands that it is within the Court’s discretion to do so and believes that this would bring a rapid conclusion to this litigation.

[Amethyst]

Re: Budgie Vs Capital One

Why don't you do it as a witness statement rather than a letter. Make sure the judge reads it.
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The only bit I have trouble with is the duty to mitigate your losses part. So you have to be strong on the reasons for returning the ''refunds''.
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Additionally the Defendant makes numerous references, see Paragraphs 3, 4, 5, 7, 8, 9, 10, 15, to a gesture of goodwill payment which the Defendant asserts has been made in full settlement of the claim. The Claimant wishes to re confirm to the Court that the referenced gesture of goodwill settlement was refused by the Claimant and that any payments made were returned to and have been received by the Defendant. The Defendant was fully aware of the Claimant’s refusal of this “goodwill settlement” at the time of submitting the application covering the amended defence yet continues to refer to the goodwill settlement. Indeed the Defendant was fully aware of the Claimant’s refusal of this goodwill settlement at the time it submitted it’s AQ, which also makes reference to this goodwill settlement. It is the opinion of the Claimant that by continuing to maintain this approach the Defendant is attempting to mislead the Court into believing that the claim has been settled, the Claimant contends that this is an abuse of process.

You havent given any reason for the refusal - in your original POC you did say the claim was a whole and parts would not be accepted didn't you - maybe you should quote yourself ?? As it stands it could appear unreasonable. JMO.

[Budgie]

Re: Budgie Vs Capital One

Why don't you do it as a witness statement rather than a letter. Make sure the judge reads it.
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The only bit I have trouble with is the duty to mitigate your losses part. So you have to be strong on the reasons for returning the ''refunds''.
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You havent given any reason for the refusal - in your original POC you did say the claim was a whole and parts would not be accepted didn't you - maybe you should quote yourself ?? As it stands it could appear unreasonable. JMO.

Thanks Ame XX, that just confirmed my thoughts. I was thinking WS rather than letter. Was also thinking about including and expanding on the reason for rejecting the goodwill settlement and the reason you have suggested is the one I was going to use. I was a bit uncertain about putting too much information in the letter / witness statement though.

Have to go out now but will check back later to see if anyone else has similar thoughts.

[Amethyst]

Re: Budgie Vs Capital One

http://www.consumeractiongroup.co.uk...tal-one-4.html

Just for ref. In court tomorrow 17th. Same issues.

[EXC]

Re: Budgie Vs Capital One

That's a stonking letter.

The only thing I'd say is that this bit seems to me a little contradictory I have no objection to the Defendant being granted leave to amend its defence, however, I respectfully submit that the Court should not grant leave to the Defendant to amend its defence in the terms proposed, on the following grounds

[TANZARELLI]

Re: Budgie Vs Capital One

A good letter Budgie, I agree with Ame's point about including a reason for refusal of offer.

Was the offer made under seperate cover than the cheque being sent?

What I mean is did they write to you and make an offer, which you obviously refused in writing, but they then sent the cheque anyway at a later date?

Or was it all in one letter?

If you can show the fact they have attempted to force payment it might add more clout.

[ed.]

Re: Budgie Vs Capital One

Most has been covered and you've referenced 16.5 as it is, but unless I've missed it you haven't specifically stated that the defence as supplied, and even amended, fails to show any reasonable suggestion, or alternative (cost proof) for their assertion they are charges for liquidated damages. I think it might be 16.5 (2 or b).

Simply saying they are LD but we won't prove they tally is a further failing, and backs up your comments about settling pre trial.

Basically you can say it costs you a quid, and provide a breakdown. If they don't say then it costs £25 and provide a breakdown, they haven't defended against the nature of your allegation and shown a reasonable, or alternative suggestion that disproves your allegation.

Other than that, the only other offering I have is - if they believe the defence doesn't fall foul of 16.5 WHY do they want to submit an updated defence, especially when the charges etc HAVE NOT been paid as you returned the partial refund.

Remember Statement of Truth - in saying the charges have been refunded when they know they haven't is a perjury. Just as equally saying there is no difference from Halliday BoS (M&R when you are Sempra and time value) is.

CPR False Statement of Truth
Part 32 PENALTY
28.1 (1) Where a party alleges that a statement of truth or a disclosure statement is false the party shall refer that allegation to the court dealing with the claim in which the statement of truth or disclosure statement has been made.
(2) the court may –
(a) excercise any of its powers under the rules;
(b) initiate steps to consider if there is a contempt of court and, where there is, to punish it;
(The practice direction to RSC Order 52 (Schedule 1) and CCR Order 29 (Schedule 2) makes provision where committal to prison is a possibility if contempt is proved)
(c) direct the party making the allegation to refer the matter to the Attorney General with a request to him to consider whether he wishes to bring proceedings for contempt of court.

28.2 (1) An application to the Attorney General should be made to his chambers at 9 Buckingham Gate London SW1E 6JP in writing. The Attorney General will initially require a copy of the order recording the direction of the judge referring the matter to him and information which –
(a) identifies the statement said to be false; and
(b) explains –
(i) why it is false, and
(ii) why the maker knew it to be false at the time he made it;
(c) explains why contempt proceedings would be appropriate in the light of the overriding objective in Part 1 of the Civil Procedure Rules.
(2) The practice of the Attorney General is to prefer an application that comes from the court, and so has received preliminary consideration by a judge, to one made direct to him by a party to the claim in which the alleged contempt occurred without prior consideration by the court.

An application to the Attorney General is not a way of appealing against, or reviewing, the decision of the judge.

28.3 Where a party makes an application to the court for permission for that party to commence proceedings for contempt of court, it must be supported by written evidence containing the information specified in paragraph 28.2(1) and the result of the application to the Attorney General made by the applicant.

28.4 The rules do not change the law of contempt or introduce new categories of contempt. A person applying to commence such proceedings should consider whether the incident complained of does amount to contempt of court and whether such proceedings would further the overriding objective in Part 1 of the Civil Procedure Rules.

32.14 (1) Proceedings for contempt of court may be brought against a person if he makes, or causes to be made, a false statement in a document verified by a statement of truth without an honest belief in its truth.

[Budgie]

Re: Budgie Vs Capital One

OK amended version in the form of a witness statement with reason for refusing their goodwill settlelemnt included. Also made quite a few other tweaks.

Need to fax this tonight so would appreciate any comments asap.

Tanz, the goodwill offer was never made to me. It was included and executed as part of their defence. I have additional notes to refer to during the hearing about this if the Judge asks for more information. Basically they have attempted to force payment and mislead the Court as to the nature of the payment !!!

SUMMARY WITNESS STATEMENT OF CLAIMANT REGARDING DEFENDANT’S APPLICATION TO SUBMIT AN AMENDED DEFENCE

_________________________ ______________________________

I am the Claimant in this case and in receipt of the Defendant’s application dated 5th June 2008 seeking leave to amend its defence and witness statement in support, which I am given to understand will be listed at the hearing of my application to strike out the defence on 18th June 2008 at 12.00 Noon.

My comments in relation to the Amended Defence and Witness Statement are below. For the avoidance of any doubt, this should not be taken as a reply to the amended defence, my comments are pertinent only to the Defendant’s request for leave to serve the Amended Defence.






I respectfully submit that the Court should not grant leave to the Defendant to amend its defence in the terms proposed, on the following grounds:

• The Amended Defence does not meet the requirements of the CPR. Other than simply re-stating or admitting the basic parameters of the Claimant’s case the revised defence consists, almost totally, of bare denials of the Claimants Particulars of Claim.
• The Defendant makes numerous references, see Paragraphs 3, 4, 5, 7, 8, 9, 10, 15, to a gesture of goodwill payment which the Defendant asserts has been made in full settlement of the claim. The Claimant wishes to re confirm to the Court that the referenced gesture of goodwill settlement was refused by the Claimant and that any payments so made were returned to and have been confirmed as received by the Defendant.
• For avoidance of any doubt the Claimant refused the Defendant’s Goodwill settlement offer on the basis that it did not take into account the Claimant’s request for compound interest. The Claimant’s particulars of claim quite clearly state that his claim for compound interest be viewed in the context of the instant claim rather than in isolation and with full regard for the seriousness of the Defendant’s misdemeanors which led to the Defendant profiting unlawfully from the Claimant’s account defaults.
• The Claimant asserts that the Defendant was fully aware of the Claimant’s refusal of this “goodwill settlement” at the time of submitting the application covering the amended defence yet continues to refer to the goodwill settlement offer in documents or letters that it produces for the Court or for the Claimant. Indeed the Defendant was fully aware of the Claimant’s refusal of this goodwill settlement offer at the time it submitted its AQ, which also makes reference to this offer.
• It is the contention of the Claimant that by continuing to maintain this approach the Defendant is attempting to mislead the Court into believing that the claim has been settled. Indeed the Claimant could possibly contend that this is a false statement of truth and as detailed under the CPR part 32 - "Penalty" para 28.1 could exercise his right under CPR and refer that allegation to the Court to consider if this is a contempt of Court and whether to punish it accordingly.
• The revised defence, proposed by the Defendant does not specifically state reasons for denying the Claimant’s allegations or state the Defendant’s own version of events as required by CPR 16.5 (2) (a) and (b) and CPR 16.5 (6) (a) and (b). Consequently if the Court were to permit leave for the Defendant to serve the amended Defence the Claimant would be unable to plead a response to the Defendant’s denials.
• It is therefore the Claimant’s opinion that the Amended Defence does not meet the requirements of the CPR, is an abuse of process and is likely to obstruct the just disposal of the proceedings:

The Claimant is claiming repayment of the default charges applied to the account by the Defendant between July 2000 and February 2003 on the grounds that they are deemed to amount to unenforceable penalties. Since issuing the claim, additional default charges have come to light. Details of these default charges should have actually been provided in response to the Claimant’s properly submitted original SAR in July 2007. However, the relevant statements were not supplied by the Defendant until June 2008 ( some 11 months later ). The Defendant in its numerous references to the goodwill settlement offer claims that all default charges ever levied to the account have been refunded. This is clearly not the case as these additional charges, of which the Defendant was clearly aware, were not included as part of the goodwill settlement, which the Claimant has nevertheless refused. The Claimant will respectfully seek the Court’s permission to include these additional default charges ( totaling £120 ) within the instant claim and additionally request that the Court considers the Claimant’s request for compound interest on these additional default charges.


The Claimant acknowledges that there has been no judicial ruling on whether or not the Defendant’s charges constitute an unenforceable penalty, however that in itself does not mean that the charges are not a penalty – otherwise there would never be cause to bring a case to Court. The Claimant is satisfied that the Defendant’s charges meet the current legal definition of a penalty under the common law, and believes that his case has more than a reasonable prospect of succeeding. The Claimant would also ask the Court to consider in relation to this, the fact that the Defendant has failed to defend any claim in respect of its default charges at a hearing. A list of cases settled out of Court and a list of cases defended at a hearing will satisfy the Court that this is the case.

At Para 16 of the witness statement, the Defendant contends that it has a strong and compelling defence to the claim. However, it is the Claimant’s contention that the Defendant has not provided any explanation for not having put in an adequate defence to date. The Claimant has already commented above as to failure of the amended defence to meet the requirements of the CPR, notwithstanding this, the Claimant does not believe that the Defendant would proceed to trial on the strength of its amended defence in any event, given its history of settling claims out of Court. The Claimant contends that the amended defence is an attempt to obstruct the just disposal of the proceedings as already outlined.

The Claimant’s original application should not be dismissed.
The Claimant will defer to the judgment of the Court as to whether there are grounds for striking out the original defence.
The Claimant does not agree that the Court should grant permission to the Defendant to amend its defence in the terms of the proposed draft and the Claimant invites the Court to award summary judgment on the claim in favour of the Claimant.

Alternatively, if the Court believes that the Defendant has a reasonable prospect of defending the claim and that the Defendant will proceed to a trial the Claimant concurs that the Defendant be given leave to submit an adequate defence. In that instance, the Claimant respectfully requests that the Court, notwithstanding allocation to the small claims track, orders standard disclosure, as originally requested in the Claimant’s draft order for directions to assist in the just disposal of the claim. The Claimant understands that it is within the Court’s discretion to do so and believes that this would bring a rapid conclusion to this litigation.

Statement of truth - I, the Claimant and applicant, believe all facts stated in this Witness Statement to be true.
Signed: Dated:

[HaliMac]

Re: Budgie Vs Capital One

Great WS Budgie

It seems that whilst falling over themselves to get to Court excitedly waving Halliday, they're making some fairly fundamental mistakes. Good

[Budgie]

Re: Budgie Vs Capital One

Ed, I edited my WS to include reference to Part 32 Penalty 28.1 etc

Have marked it up in red on the WS.

Let me know if you think it's OK.

Have tried to word it on the basis that I could do it ( if I am forced to ) LOL

Looks to be a very powerful argument LOL

Budgie


I haven't done anything on Halliday or Sempra bull**** that they have included in their amneded defence and WS as I don't believe it is necessary at this stage although I have some notes to refer to if it comes up in hearing.