I havent blogged much recently, to tell the truth i havent had much time to do so, with work and family life it has proven difficult to find time to sit down and write up some of the cases that have come through.
However, ive managed to find some free time.
So where to start. Lowells, they seem to be issuing claims with allegations of breach of contract but no mention of a Default notice. Ive had one such case recently, and have a few more in the pipeline too. The case which has been resolved however i can talk about, so here goes.
The case of Doyle v PRA group confirmed that a default notice was not some mere technicality, it was necessary and if not served by the creditor then there would be no right to call in the debt. The Default notice was considered part of the cause of action by the Court of Appeal. Goode also makes it clear that the creditor must plead his claim correctly, he must plead the facts which give rise to the cause of action per CPR 16.
The Creditor in this case made no mention of the Default notice, this means the debtor cannot ask for a copy under 31.14. It also in my view means the pleadings are defective. They do not plead the facts that give rise to the cause of action. The Claim would fail therefore if the facts pleaded were correct ie no default notice issued when the Claim was for breach of contract.
Rather than defend such a hopeless claim, i took the view that a strike out / summary judgment application would be the right approach, im pleased to say that my approach was vindicated. The Claim came to an abrupt end, and the debt is no longer being pursued.
Any way. Thats the first one.
The other case i wanted to talk about is more a lesson to creditors not to try and infringe consumers rights.
I took on the case in quesiton on a no win no fee basis, i was satisfied the case had sufficient merit for such a funding option. The issues were to put them simply
- The creditor had received a request to VT a HP agreement.
- The debtor had paid more than the statutory requirement under the agreement
- The VT was lawful. The creditor refused to accept the VT unless the debtor signed papers accepting liability for more than what they were legally obliged to pay.
- The debtor refused
- The creditor refused to accept the return of the goods (very very foolish)
- The creditor stupidly slapped a default on the credit file of the debtor
- The creditor then sued for delivery up of goods
We defended, and counterclaimed for damages too.
While all this was ongoing the debtor had complained to the FOS, we were unaware of this, and we had no idea the FOS were involved. However, helpfully the FOS ruled on every point in our Defence and Counterclaim in our clients favour.
The bank also has to pay all of the costs on the indemnity basis too.