Court Hearing Lost - appeal options and costs?

[warwick65]

Re: Court Hearing Lost - appeal options and costs?

I appreciate how having 40K of debt is a strain, I'll raise you 5 so I do know how you feel.

It is not the end of life though , of course my situation is a tad different in that by the time I start earning again all my debts will be SB (hopefully) as I am a student. Quite frankly I think I would put off work just to thwart them - maybe it will be Warwick 65 MA or even Warwick 65 PhD. Almost take me to retirement

[Debt Camel]

Re: Court Hearing Lost - appeal options and costs?

At present, repaying thus ccj is my first priority, or reaching an agreement to repay by instalments, without AOE or bailiff enforcement. I understand that Restons are unlikely to lie down and accept so I need to inform myself of the most appropriate course of action, taking into account other circumstances such as my job

OK my last post on this thread...

You have a large debt problem, to put it mildly. You can't fight each debt individually. If you manage to reach some just about affordable settlement of this CCJ, what will you do when the next one pops up? You need to step back and see the wood for the trees.

Best of luck.

[warwick65]

Re: Court Hearing Lost - appeal options and costs?

Hi again Bigmac

Once you have decided how to deal with this debt and want to turn your attention to the others you may want to think about when these agreements were started, if they are still owned by the original creditor etc. There are many ways to defeat a debt but it is often easier before it gets to court.

If you want to look at them why not start a new thread , by all means tag me , pit an '@' before my name ( or anyone elses) [MENTION=98117]warwick65[/MENTION] and I should get an alert

You may know what route I am thinking of, but its about options
6 years ago I was on the verge of declaring myself BR but decided not to and can almost now see light at the end of the tunnel.

[Diana M]

Re: Court Hearing Lost - appeal options and costs?

would lose my job if I became bankrupt

. . . . this is also the reason for thinking about the BR option (although I am certainly not taking that option lightly).

BR is not a quick fix especially when in your case it means you will lose your job and presumably damage your future career prospects in your field of work (from what you say).

No one can advise you to go BR without considering your whole situation and/or at least having some understanding of the 'origin' of the debts you're dealing with and whether they are enforceable in court.

You have £40k debt. So what?

When the Credit Crunch came out of nowhere I had £143k debt to deal with. I survived mostly because I used the law (Consumer Credit Act) to do what Parliament intended it to do when they approved the statutory instrument.

So before you throw in the towel can you give a brief breakdown of the £40k debt and/or in the very least when the accounts were opened.

Going back to the thread title when (what date) was the Judgment which you would like to Appeal if you have a chance?

Di

[Diana M]

Re: Court Hearing Lost - appeal options and costs?

OK my last post on this thread...

You have a large debt problem, to put it mildly. You can't fight each debt individually. If you manage to reach some just about affordable settlement of this CCJ, what will you do when the next one pops up? You need to step back and see the wood for the trees..

I note that my response to this post was deleted late last night.

I was advising the OP that if they had an issue with another debt after they had settled their CCJ problem then they could post on this forum for guidance.

There was nothing contentious in what I said.

Di

[andrew1]

Re: Court Hearing Lost - appeal options and costs?

Just a bit of support here. Have you considered going to someone like Payplan or any other Debt Management organisation to set up an arrangement with your creditors spreading payments on a pro rata basis over a number of years?

Just helping a pal of mine who went through a real bad time, I set him up in a Debt Management Plan (DMP) to clear some 90k worth of debt. He's been paying around £100 per month for over 7 years and recently I managed, due to specific illness and age related issues, to get most of the balance written off. The creditors, all household names on forums like this, have been extremely understanding.

I also did this for another old friend who had loans and cards coming out of her ears but couldn't handle the fall-out when the muck hit the fan, I set her up a DMP with Payplan, she made the monthly payments, there were no repercussions work wise, and eventually, the creditors, based upon her income levels and status, took no legal action and came one by one to full and final settlements so she became debt free.

It's just taking a step back - talking to the DMP people who are extremely helpful, non judgemental and good at administering the pro-rata payments according to your income and available excess cash to make the payments and your £40k will vanish in no time.

You can then challenge any issues you have with individual creditors if you have issues whilst not affecting the others who are all sitting in the background receiving tiny relative amounts to their balance each month and giving you no hassle whatsoever.

Don't drown yourself in debt problems, consolidate them into one place in a DMP, one monthly payment that the DMco will pay out for you to the creditors and go live your life.

Forget bankruptcy unless there's something too big, most importantly pick your fights carefully and one's you can win to avoid legal costs, the only people who make any money from that are the lawyers.

I speak from experience.

Good luck.

[Diana M]

Re: Court Hearing Lost - appeal options and costs?

The initial court claim related to an Egg Loan agreement signed in 2003.
Getting the paperwork out of Arrow/Restons proved very difficult.
Eventually they did provide a signed copy of the Credit Agreement - but there was no sign of the associated T&C - some of which had been referred to in the credit agreement - so I chased these as well.
In March of this year, they tried to get a Summary Judgment against me claiming my defence had no chance of being successful. This was dismissed by the Judge and the hearing was adjourned to July to allow both parties to negotiate and for them to provide the T&C connected with the agreement.
4 days before the hearing in July, I received a letter from them which contained a "reconstituted terms & conditions" - this was the main point I argued on - because I had a pre-2007 agreement, I argued at the case (I didn't really have time to argue in advance!)

. . . . . the Judge stated in the hearing that this was not applicable as the Claimant was not seeking to enforce the agreement - only applying for Judgment against me.

Whether you decide to appeal or not (and your decision may be based on pragmatism rather than justice) you may feel the need to understand why things went against you even if you can't put the clock back and do it all over again.

Can you clarify if the Summary Judgment application was dismissed and so the case proceeded to Trial (a final hearing), or whether the SJ application hearing was adjourned (with Directions) and it was successful at the next hearing?

The general idea of a Summary Judgment application is for the applicant (either the Claimant or Defendant depending who makes the application) to convince the court that the other party's case is hopeless so it would be a waste of costs and court time to keep going.

The person contesting the Application has to demonstrate to the court that there is something worth arguing in depth (at Trial) not necessarily prove they have a 100% chance of winning but reasonable prospects.

Knowing law is one thing, knowing how to practice it is another.

You were faced with late disclosure (4 days before the hearing according to you). I don't know exactly what was disclosed but from what you describe it may have been material to your Defence (recon Ts&Cs for an Egg loan). A solicitor might have sought an adjournment of the imminent hearing if it would have helped your case. A LIP could have sought an adjournment to seek legal advice 'in the interests of justice'.

I also don't know whether the Order following the SJ application hearing (March?) gave the Claimant a deadline for producing those documents and/or any sanction for failing to comply with any deadline. If it did then it may have been arguable that the late disclosure could not be admitted.

We won a SJ application yesterday where we (for the Defendant) argued that a late WS should not be admitted and we won (with costs too ). The case goes to Trial this week without their WS as evidence. The associated Exhibits will be removed from the Trial Bundle too.

A successful appeal relies on the judge making an error of fact or law. Can you explain a bit more about what the judge said in relation to enforcement (the last bit which I've highlighted in blue in your quote at the top of this post).

Di

[Joanna C]

Re: Court Hearing Lost - appeal options and costs?

Whether you decide to appeal or not (and your decision may be based on pragmatism rather than justice) you may feel the need to understand why things went against you even if you can't put the clock back and do it all over again.

Can you clarify if the Summary Judgment application was dismissed and so the case proceeded to Trial (a final hearing), or whether the SJ application hearing was adjourned (with Directions) and it was successful at the next hearing?

The general idea of a Summary Judgment application is for the applicant (either the Claimant or Defendant depending who makes the application) to convince the court that the other party's case is hopeless so it would be a waste of costs and court time to keep going.

The person contesting the Application has to demonstrate to the court that there is something worth arguing in depth (at Trial) not necessarily prove they have a 100% chance of winning but reasonable prospects.

Knowing law is one thing, knowing how to practice it is another.

You were faced with late disclosure (4 days before the hearing according to you). I don't know exactly what was disclosed but from what you describe it may have been material to your Defence (recon Ts&Cs for an Egg loan). A solicitor might have sought an adjournment of the imminent hearing if it would have helped your case. A LIP could have sought an adjournment to seek legal advice 'in the interests of justice'.

I also don't know whether the Order following the SJ application hearing (March?) gave the Claimant a deadline for producing those documents and/or any sanction for failing to comply with any deadline. If it did then it may have been arguable that the late disclosure could not be admitted.

We won a SJ application yesterday where we (for the Defendant) argued that a late WS should not be admitted and we won (with costs too ). The case goes to Trial this week without their WS as evidence. The associated Exhibits will be removed from the Trial Bundle too.

A successful appeal relies on the judge making an error of fact or law. Can you explain a bit more about what the judge said in relation to enforcement (the last bit which I've highlighted in blue in your quote at the top of this post).

Di

The Denton principles were applicable for relief from sanction

[Joanna C]

Re: Court Hearing Lost - appeal options and costs?

Carey v HSBC 2009 ?

In my very simplistic understanding that basically says a recon is okay unless the debtor argues they werent given the terms at the time of signing the agreement ( so lack of prescribed terms) - then they'd have to evidence that they were present at the time of signing, or the agreement could be ruled iredeemably enforceable pursuant to 127(3) ( which is where pre 2007 comes in as 127 was revoked in 2007 ). @Joanna C; was one of the solicitors involved in that case so she'll be able to give a much better breakdown of what it actually means


was your argument that you had repaid in full ?

They use this tactic of misrepresenting the Carey v HSBC judgment all the time (including against me - though not successfully).

The judgment in Carey v HSBC related to the "information purpose" of s.78 CCA1974 ( s.78 is a request for information) not the "proof purpose" of a trial. It's only relevant in a trial where it has been pleaded that the claimant is in breach of a s.78 request.

Having said that a claimant can reconstitute the terms & conditions for evidential purposes (secondary evidence) but it should have to prove how they are the correct ones.

The solicitor you have seen should be able to advise you from the paperwork you have shown him whether your case is appealable as a matter of law - i.e. Agreement was irredeemably unenforceable or not.

[Bigmac799]

Re: Court Hearing Lost - appeal options and costs?

Many thanks for all the recent replies - which I have only picked up today (last notification of a reply I got was to Warwick's post (#16).

Trying to answer everything within a post on here would be overwhelming.

Let's try to take one point at a time (not necessarily in order):

Going back to the thread title when (what date) was the Judgment which you would like to Appeal if you have a chance?

26th July - so I know my 21 days is already up. As I said in an earlier post, given the costs involved in even thinking about an appeal I've probably reluctantly decided against it. In hindsight, I probably followed ill-advised advice (from another internet forum) - when in hindsight, I probably should have sought out legal advice - or tried to settle out of court.
As stated, I have since spoken to a solicitor about the case and possible appeal - effectively I received a phone call from the solicitor who listened to an outline of my case - I didn't go into too much detail - and he quite rightly pointed out that in order to give my case full care and attention would require a lot more time (and chargeable). I am not completely au fait with all the legalities - so forgive me if I am unsure as to the difference between a SJ and a full hearing - I will try to summarise the timeline as best I can:

Dec 2015 - original court claim issued. At the time, I did all the usual stuff, I did AOS, I sent off CCA and CPR requests, and I entered a defence.
Then the case was stayed whilst (presumably) Restons/Arrow sought out answering my requests. Over the next year or so, I got some response to my requests - a copy of the signed credit agreement and some "paperwork/screenshots" showing last payment made and balance outstanding. They also sent some letters (two or more?) suggesting I should withdraw my defence and pay up.
Then in Jan 2017, they sent me a letter with a copy of an N244 form they had sent to the court - the letter suggested there was no need for a hearing ("We have asked the court to deal with the application without a hearing") - and details on the N244 form :

An ex-parte order to:
1. Lift the stay on proceedings.
2. Strike out defence pursuant to CPR 3.4 (2) in that it discloses no reasonable grounds for defending the claim and/or is an abuse of the court process.
3. Enter judgment for the sum of £12......k

I then received a couple of letters stating that this request for "no hearing" was denied and there would be a hearing for SJ at my local court in March 2017.

(Is it me, or do these DCAs seem to issue court claims and other letters of importance at or around Christmas time.....I seem to have a record number of court claims issued in December!)

I was unable to attend the SJ hearing in March - I had pre-booked plans that I was unable to alter. I had not been asked for availability by the court etc.
In my absence I completed a WS.

This is the "gist" of my WS.

• I, xxx of “xxx road, xxx town, AB1 2CD” would say (if I were able to attend) as follows:-
  1. I am the DEFENDANT in this case.
  2. I make this Witness Statement in defence of the claimant’s application for “Lifting the stay,
  strike out the defence and enter judgment”.
  3. Following the receipt of a court claim on Dec 2015, I wrote to the claimant requesting a
  true copy of the credit agreement, together with other documents required to be provided
  pursuant to section 77 of the consumer credit Act 1974.
  4. This information did not arrive before the deadline for me to file a defence to the claim.
  5. Subsequently, documents have been sent (as described in the evidence provided by the
  claimant for this hearing).
  6. However, one of the documents on which this claimant relies, a true copy of the original
  credit agreement, is lacking vital information on which it relies, namely the Personal Loan
  Agreement Terms and Conditions; the document provided by the claimant makes reference
  to several clauses of the Terms and Conditions (namely 6,7,8,9,10,21 and 22).
  7. I do not believe that the documentation provided by the claimant shows that the debt still
  exists (original loan agreement dated 2003); Within my original defence, I admitted to
  having had financial dealings with Egg Banking in the past, however, this does not purport to
  an admission of signing the Credit Agreement (Claimant’s exhibit xx), being provided with a
  loan or the fact that the loan has not been repaid. I believe it is the claimant’s responsibility
  to prove these allegations to be true, rather than me to dispute them.
  8. In the circumstances, the court is invited to conclude that there are reasonable grounds for me to defend the claim at trial
  and the claimant's request for SJ should be dismissed.
  Statement of Truth: I believe the facts stated within this Witness Statement to be true.

After I returned - I received a letter from Restons stating (amongst other things):

Please note that at the hearing last week the claimant's application to strike out your Defence and to enter judgment against you was adjourned for a period of 3 months. We are currently awaiting a further hearing date

This might suggest that the eventual hearing on 26 July was indeed a SJ hearing and not a "full hearing"

Restons then sent a final letter (this was the one that arrived 4 days before the court case in July - this contained a new updated additional WS from them - within that was a "clue" as to the "full reasons" for the adjournment:

"At the hearing of the Claimant's application in March, the application was adjourned so as to allow the parties to enter settlement negotiations and to allow the Claimant to obtain the relevant T&Cs from the original Creditor"

And then the next part of the WS stated that the reconstituted T&Cs are an exhibit of this WS and can confirm they have been served upon the defendant so complying with the s77 request I made. (albeit 18 months after I made it!)

I do not have a transcript of the trial but my main "defence" was that I believed that as my agreement was pre-2007 that reconstituted T&Cs were not acceptable - and referred the judge to s127 paras 3 & 4. Fortunately I did have a copy of said document - and showed it to the judge who read it quickly and basically threw it back in my face and said it didn't apply as the claimant was not trying to "enforce the agreement, simply seeking judgment against me".

At a later stage of the "trial" he did ask me for the copy of the document to re-read but stuck to his guns.

The other solicitor referred the judge to the Carey case - and I stated that it was not applicable to my case as I had a pre-2007 agreement - the judge asked me to state how that was the case - I was unable to - as I didn't know the full details of the Carey case.

The solicitor I spoke to did express some surprise (shock) as to how they managed to obtain a copy of the T&C from Egg (Canada Square) as he believed that any requests to them generally fell on deaf ears - so it does beg the question how/where Restons produced them.

[warwick65]

Re: Court Hearing Lost - appeal options and costs?

I am no expert but I think that courts do give a little more leeway to LiPs

Was the solicitor you spoke to one who was an expert in consumer credit law, there are two lawyers on this site who deal with this.

As suggested before I do think £600 to assess the case is a bit steep, that is I suppose 3 hours of a solicitors time but maybe more of an litigation executives time

Something that struck me, and maybe Jo picked up on it. Did the judge say that enforcement was not granting a ccj- I believe that is an error in law, issuing a claim is not enforcement but getting a judgement is ( or that is how it was always explained to me) I think the case was McGuffick v Royal Bank of Scotland

[Bigmac799]

Re: Court Hearing Lost - appeal options and costs?

Onto the questions about my debts:

I will hold up my hands and admit I have been a bit of an ostrich when it comes to this - head in sand and hope they go away.
Now they are coming to bite me.

Are they enforceable or not?

I don't know for sure - I am being chased for debts from around the same time as the Egg loan in the case above - however, it may be that I have made payments within the last six years.

Several of these debts (in fact probably all of them) are now in the hands of various DCAs - in fact some seem to have more than one "account" for me.
I received a phone call the other day from Cabot asking about an old Northern Rock loan - I tried to answer as best I could (I asked verbally for "proof" - i.e. s77/78 compliance) - and just when I thought that was done, the lady (who seemed too nice to be a debt collector!) then said "oh we've got another account for you" -

In addition to that, I have or have had several payday loans - interestingly (but not happily!) I have just received a court claim for one of those - this upset me intensely - and is the subject of a separate piece of advice - here's a short summary seeking advice on this point:

An old loan to payday uk.
I missed a payment - they defaulted me - this happened about a year ago.
I have a record of an email I sent to them stating I would be happy to repay but I needed time and instalments.
I don't have any record of a response - but they may have written to me by post - so I cannot say for sure they ignored me.

However, about 6 months ago, the account was transferred to BW Legal (or PRAC) - who have sent me various letters/emails just basically telling me to pay up - or to call them.

I was determined to correspond only by letter.

I then noticed they had emailed me and it had ended up in my spam box. I emailed them back requesting that any future correspondence was by letter - they replied

"We can confirm we have updated your file accordingly.

Further correspondence on this matter will be sent to you in the post. "

This initial email (that I sent them) was because I had effectively received an LBA in the post from them. I had also tried to correspond with them in the past 4 months or so - although annoyingly I have no record of that (I vaguely remember actually taking a call from them and asking for info about my account in the post and then I would be able to discuss repayment options). Their LBA letter was actually entitled "Letter of Claim" and it's only within the body of the letter it states that it is a letter before action.

Then last week, again another email turned up in my spam folder stating that I had been issued with a court claim - which has now bumped up the costs by another £200 or so.

I just feel BW Legal have failed to follow the correct protocol for "protection of debtors" and have seemingly just jumped to the court action.

I feel it is a burden on me to jump though all the hoops of a court claim - and ultimately face the additional costs they have deemed necessary.

Anyway - sidetrack over.

I understand my debt issue needs to be dealt with and I am aware of a DMP or possibly even an IVA (not sure on the threat to my job/career of an IVA - advice on internet is mixed). I'm also aware of the various organisations that can help.

I've probably got much more to add - but it's getting dark and I need some dinner.

Thanks again for all the helpful advice and support on this forum

@warwick65
@Diana M
@Joanna C

[Diana M]

Re: Court Hearing Lost - appeal options and costs?

As stated, I have since spoken to a solicitor about the case and possible appeal - effectively I received a phone call from the solicitor who listened to an outline of my case - I didn't go into too much detail - and he quite rightly pointed out that in order to give my case full care and attention would require a lot more time (and chargeable).

. . . . The solicitor I spoke to did express some surprise (shock) as to how they managed to obtain a copy of the T&C from Egg (Canada Square) as he believed that any requests to them generally fell on deaf ears

I'll re-read your post again tomorrow to take on board the legal issues especially since 'the bar is lower' at a Summary Judgment hearing than at a full Trial.

As I posted earlier on your thread your mission was to persuade the court that you had arguable issues which deserved to be heard (at length and after disclosure) at a full Trial not that you would definitely win at Trial.

In the meantime may I ask what you mean by a solicitor called you? Do you mean you were effectively cold-called by a solicitor who approached you or this solicitor was returning a call you'd made to them based on a recommendation or something like that. Maybe an internet search?

The solicitor you spoke to appears to have been fully aware that compliant Egg Loan credit agreements and Ts & Cs are about as rare as hens' teeth so they must have had some informed knowledge of the 'unenforceability' legal arguments and practice in this specialist are of law (Consumer Credit Act)

Was your decision not to take this forward based on the cost the solicitor was seeking to review the case or because you felt it would be hopeless in legal terms? Or maybe a combination of both factors.

Di

[warwick65]

Re: Court Hearing Lost - appeal options and costs?

Hi [MENTION=91003]Bigmac799[/MENTION]
I absolutely sympathise with you. I have considerable debt including a multitude of pdls although I am hopeful they have all been dealt with.
It is really difficult to advise without knowing details.
Let's work on priorities
I will have to leave you with the above judgement, I hope you contacted more than the male lawyer you mentioned above to see if there is help.

The PDL have you started a new thread in the received a court claim
If not can you and maybe tag a few of us

As for the other debts
If I could suggest a new thread for each if you want
Who it was with
Amount outstanding
When it was opened
Who owns it now
Date ish of last payment - just year will do
Any formal letters sent and the response
Last communication you received

Sorry if it sounds prescriptive but it helps everyone

Once I started on my journey dealing with my debts I began to feel liberated. I know many haven't provided enough evidence to try a claim and I know where to turn to if I get a claim.

It's a shame the other forum was unable to help, I think I know where it was because of the way it linked words in your defence.

You would need to check an. IVA but generally I think they are not a good idea because if they fail you have effectively wasted most of the money you paid - it goes in fees.

- - - Updated - - -

Sorry didn't want to steal Di's post. Posts crossed

I would give it a good read.

[Bigmac799]

Re: Court Hearing Lost - appeal options and costs?

My phone conversation with solicitor was after I contacted him having found his blog on internet about my issues. He is a leading expert in field.