Ive been fighting Cabot in their various guises for a number of years, right back when they were represented by Hodsons, Morgan Solicitors etc. I note they are now farming out their work to more mainstream firms such as Mortimer Clarke, Shoosmiths, Restons etc, who all face the same problem.
Now its worth pointing out, that Cabot have not as yet succeeded in a litigation that i have been the fee earner on, not one case.
The reasons they lose isnt because of their great lawyers, it isnt because the banks sold them duff accounts, well not always, the reason they lose is because they fail to do their due diligence, they fail to review their case before litigation, they fail to get their house in order.
As a consequence, they snatch defeat from the jaws of victory on many occasions.
The good thing for consumers it seems is that this pattern hasnt changed. In a recent case Cabot instructed Restons, they issued proceedings on a credit agreement which was alleged to be from Opus, only one problem, Opus didnt exist back in 1990s so the client couldnt have entered into such an agreement.
Now its important to remember its for the Claimant to prove his case, it is not the Defendants job to put right the Claimants weaknesses and failings in their Defence, the saying goes you cant polish a turd, plain and simple. Far to often people try to cover up Claimants errors by pleading long defences to answer points which the Claimants never made. In my view that is a bad idea. Please do not take these comments as legal advice, they are not intended to be such, rather just my observations from my experience. If you need legal advice consult a lawyer with the appropriate insurance etc. Anyway, moving on……….
As a result the pleadings were simply incapable of being proven, ever, without amendment they were as dead as a dead bloke from deadsville. So, a request was made to inspect a copy of the alleged credit agreement, if Cabot were so sure it existed they must surely have a copy, after all only a fool would sign their name to a statement of truth if they hadnt seen all the core documents.
Restons refused to provide the agreement, instead making thinly veiled attempts to deflect attention back at the client with comments like “your client would have had a copy of the agreement when he opened the account so he should check his records” . Sadly for them though, CPR 31.14 does not say, the Claimant does not have to allow inspection if the document was sent to the Defendant about 20 years ago, nice try Restons.
So, considering the very helpful ruling of Rix LJ in Expandable v Rubin, a firm reply was sent reasserting our clients right to inspect this document. If they refused then an application to strike out would follow, firstly on the grounds the pleadings were so sparse they didnt comply with CPR 16, secondly the pleadings were an abuse of process and did not have a real prospect of success because they were incapable of proof and lastly because the breach of CPR 31.14 fell within CPR 3.4(2)(c) and therefore was a breach of a rule!!
An application was made to the Court, but before it could be heard Cabot appeared to run out of imodium and therefore had to discontinue. They will say it was a commercial decision im sure, but lets look at this shall we, you buy a debt for around 2-5%, in this case the debt was over £20,000 plus interest and costs if they won at trial, so instead of fighting this case they run away and pay all legal fees???? is that the actions of someone so sure of winning? is that really a commercial decision? cant see a business lasting that long on such commercial principals.
Perhaps, in another universe, there is an alternate reason why they abandoned a good claim?? that may be because the credit agreement wasnt with Opus? it wasnt signed by the Debtor? it wasnt enforceable? it was a citi agreement which citi failed to ensure contained all of the prescribed terms? now theres a thought for another day, however on this occasion we will just have to believe the reason why they threw £20k in the bin and paid ALL legal costs was simply because of a commercial decision huh