Internet forums provide a wealth of advice and assistance to people who are often faced with a need for legal advice but limited as to their funds. Solicitors often have a stigma attached to them that means unless you have £100s in your back pocket then they wont talk to you , im trying to dispel that myth at least with the work i do at Howlett Clarke solicitors in Brighton but there is a long way to go. I also spend a little of my limited spare time helping out on LegalBeagles which i would recommend as a forum where many others have shared their views and experiences with litigation
Anyway, back to the topic in hand. A barrister friend of mine drew my attention to a series of posts on a forum called Consumer Action Group, these posts contained arguably the most reckless and misinformed advice i have ever seen.
The poster in question was dealing with a case involving Cabot Financial UK limited, they had made a request under s78(1) Consumer Credit Act for a copy of their credit agreement and they were looking for help in how to defend the case. The advice given was that they should file an “Holding defence” and make another s78 request.
Another poster whom i understand is a legal practitioner pointed out that the White Book makes it clear that you should not file a defence which is nothing more than a Holding defence as it would be open to a strike out or summary judgment application. The paragraph from the White book was also quoted, however the response was breathtakingly stupid, instead of accepting what the white book said and addressing it, they (some user called DX100UK) simply dismissed it as being “silly” and suggested that the advice was not followed.
Now the Whitebook is written by some of the leading legal minds, including Lord Justice Jackson, it is not a two bit publication that doesn’t carry any authority, and if the Whitebook states you shouldn’t do something then you would be wise at least to ponder that point before throwing it away with the garbage.
Another point was raised in the post exchange, that was the defence of Ex Turpi causa non oritur actio which basically means a claim based upon illegal acts cannot succeed, this too was dismissed with the most breathtaking stupidity. The illegal point concerned the lack of Consumer Credit Authorisation, basically s21 CCA 1974 makes it clear that business undertaking regulated activities must be licensed. There is case law also that supports the arguments put forward, yet this DX character again dismissed the case as being of no use to the user!! what utter nonsense.
when i carried on reading, i noted that this DX chappie sought to rely upon the numerous cases they had “won” by filing these so called holding defences. Perhaps its worth this guy actually working in the legal world, at which point it may become clear that people dont win as a result of a holding defence, generally speaking it is the opponent who takes a commercial view on a case and decides that its not commercially viable to proceed. Now that may be a win but it is not a win on the merits of the case thats for sure. I am fortunate to be able to quote from the many cases that i have succeeded with at trial, i also have a case going to appeal on these points, so hopefully will be able to provide a clear authority on that point, but in the mean time, all id say to people is to be careful what you follow as there is a fine line between winning and losing.