This is a somewhat belated post about the exploits of those wonderful creatures MKDP LLP. They have their own legal department (sic) and they instruct agent solicitors, certainly in the cases ive dealt with, so why to they keep losing?
Well, heres a prime example of stupidity in action.
So the story goes, client contacts me about a claim he had recieved, he didnt fully understand the claim for reasons ill get to shortly, so he defended basically saying “prove it” as he had no idea what they were wafffling about.
Now the pleadings alleged that the client entered into an agreement with Barclays Bank Plc but heres the thing, not only did the pleadings fail to give the important dates such as date of agreement, date of default, date of termination, date of last payment etc, they also alleged wrongly that the client had a barclaycard, he didnt.
He did however have a Morgan Stanley Dead Witter Bank Plc card, an entirely different company to Barclays.
So, on reviewing the case we decided that this erroneous pleading needed to be met with an amended Defence. To their credit MKDP did consent to the amended Defence although they were of the view that our case was doomed to fail, well i had a different view, we will find out who was right soon.
So, i drafted the amended Defence, i pleaded everything that needed to be pleaded in a clear and concise manner. We lodged the DQs and the Claim was allocated to the Fast Track , Yippeeeeeeeeee
So we draft our list of documents, there wasnt much to speak of, apart from a grossly illegible credit agreement which MKDP had sent in reply to the clients section 78 request, it was the Claimants list of documents that was very telling. No default notice, no deed of assignment, two documents which were central to their case and which werent in the list of docs.
Oooooh deary me, so we continue, and they serve their witness statement late, ut oh, more issues.
Our docs were served on time, our statement lodged on time etc.
So we write to MKDP and point out that they are now barred from adducing their evidence as they were late, and they need to amend their list of docs otherwise their claim falls on its sword. So after a ranty telephone call, they write saying their gonna apply. Now this was Feb, the trial was about 2.5 months away so plenty of time to put right their errors or at least you would think.
However, we didnt get a trial bundle from them, despite the Courts order, luckily i preempted this and prepared my own bundle neatly with all their non compliant documents omitted. They served their application to amend on the day of the hearing if my memory serves correctly or in any event it was not timely and certainly outside the guidance of Simon Browne in Regency Rolls v Carnell, so we opposed their application on numerous grounds.
They sent a solicitor, poor bloke, i actually felt really sorry for him, he could do nothing to save this case, it was in fact already displaying signs of rigor mortis, that was how dead the case was, but thye pressed on.
So the case comes before the lovely Deputy District Judge Lobb, my client was represented by the excellent Thomas Brennan, a barrister who i work with a lot, so firstly the Judge deals with their application, it was in effect a 4 or 5 part application, firstly they sought permission to amend their pleadings (ut oh i already told them they had got it wrong, shame they didnt do like i did and amend early) Judge refused, then they wanted to amend their list of documents, Judge refused, no explanation why they took so long and no explanation why they signed a statement which was wrong!!!! check before you sign.
Next up was the witness statement, now in truth their docs were a day late, we didnt oppose their application on this point but they shot themselves by not asking us to consent although i am not sure if we would have or not 😉
The Judge allowed their statement into evidence, but wait, theres a problem, they didnt have their witness, we had our client ready to go, but they had er no witness, oh dear, time to pipe up about Civil Evidence Act notices. So they had attached to their application such a notice, sadly it wasnt properly drafted and only covered their evidence in the actual application not the statement which was late, and had other defects,. so the judge said you can have your statement but i am not allowing the civil evidence act notice at this late stage, the Defendant wanted to cross examine Mr Newton as he had made some interesting statements which we wanted to know how he could have made such comments and of course signed a statement of truth to that effect!!.
So, their poor Solicitor had no evidence, no witness, no hope in hell of doing anything here,to be fair he did have a good fight and id say against a Litigant in Person the outcome may have been different as it was the knowledge of the rules and case law that did for them really.
So the judge was about to dismiss the Claim, hold on a second we cant have that now can we, so Tom made numerous legal submissions on the credit agreement, such as it did not contain the prescribed terms and therefore was irredeemably unenforceable. The oppo valiantly tried to counter but it was truly hopeless at that point.
So, the Judge ruled in our favour, declared the agreement irredeemably unenforceable, dismissed their application soooooo what next………………………………oh yes, costs.
We had made a part 36 offer, ut oh, they didnt equal or better it, dam shame, now for submissions on Indemnity costs.
To cut a long story short, the Judge ordered the Claimant to pay Defendants costs on the indemnity basis, the client was slightly out of pocket as with all litigation there is nearly always a reduction in the bill on assessment, but the client recovered nearly all of his costs around 95% at least and he got the declaration of unenforceability.
Nooooooooooooooooow then, MKDP are still today recording a default on the clients file, silly billies, have they not read Grace v Blackhorse……………………..
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