UK: win or lose, Marshall wins

[Hercule Parrot]

I am very happy we have managed to have a civil discussion, I've even answered some questions for you which I didn't have to. As you have said you do not wish to PM me on GOODF, it looks like this is the end of my input towards this conversation.

Thanks for popping over, Marshall. I appreciated your courteous and considered remarks. We cannot so easily repay the visit, because people like us are abused and banned on GOODF.

[PeanutGallery]

After a long period of silence in regard to his upcoming court case Marshall has updated the good folks at GOODF with his progress. While he tries to dress it up, it's not good news, because his claim was thrown out. Marshalls thread can be viewed here.

I don't think Marshall has understood quite what has happened and I also don't think that a Judge would have told him that had he sued for harassment his case would have had merit, the Judge may have said it might have or could have merit, but should be careful not to make a determination that it did, after all the Judge isn't there to make a determination on the merits of a claim they are not hearing. However this is really small potatoes, it doesn't really matter what the Judge did or didn't say about a harassment claim - that wasn't being discussed in court. Marshall has learned, to his cost, that fee schedules do not work.

He hasn't learned that harassment claims, against DCA's where money is owed are unlikely to be looked at in a favourable light by the Judiciary, who would require the level of contact to be significantly higher than simply sending a couple of letters or making a phone call asking for the money to be repaid. I believe there is some case law relating to this, possibly ECHR but can't be bothered to go look it up (simply it establishes that contact from a DCA can be harassment if it crosses the threshold of what would be reasonable steps to recover a debt, sending a letter asking for it's repayment or making a phone call is not enough to cross that threshold, but if someone were to receive multiple phone calls outside of normal hours or constant visits from agents looking to collect it would be, it's quite a high threshold as I recall - I may be mistaken in this IANAL).

Of course over on GOODF it's being trumpeted as a victory, even though Marshall is actually going to be worse off as a result of his legal escapades. He's offered to pay his opponents costs at a rate of £1 a week, he thinks that they will have to accept this when if they wanted to be difficult they could drag him back into court to go over his precise income and precise outgoings and work out a figure he could afford.

[grixit]

Did the judge really say that he could have a case with a harassment claim? Or did the judge actually say that if Marshall keeps sending these monetary claims, that he could be the *subject* of a harassment claim?

[PeanutGallery]

Who knows. What I do think is that it is unlikely that Marshall's possible harassment claim is as strong as he thinks.

The Judge may have said that Marshall would have a claim for harassment if he establish that he didn't owe the DCA any money. Marshall, being a Sov, would consider a DCA to be a third party interloper or might advance the argument that by buying the debt from the original creditor it had been paid or that they don't have a deed of assignment or some other mumbo jumbo he's found on the internet, and would consider this argument to be defacto proof that he doesn't owe them money and therefore would conclude that they must be harassing him and that a court is bound to agree.

Unfortunately his plan will come unstuck when he tries to establish that he doesn't owe them money, they'll have accounts and agreements showing that he does owe. If he pushes they will take him to court, get a CCJ and then he'll have a really hard time claiming harassment. In fact, I would suggest that a sound response to a threat of a harassment claim, by a debtor looking to recover their losses would be to escalate to the county court level, this would sidestep any possible harassment claims, as the court would take over communication with the Sov.

[littleFred]

Marshall doesn't say what his case was. I assume it was an attempt to sue on the foisted contract, because the DCA hadn't paid Marshall's foisted fees.

The judge apparently said:

If you are pursued for money that you don't owe, you are really looking at a harassment claim.

I can believe he said that. It might be paraphrased as:

Your foisted contract was bound to fail, even if you don't owe the DCA money. For cases where you don't owe money, a more suitable claim would be for harassment.

It is (to me) a fairly obvious fact fact sueing someone for breaking a "contract" they never agreed to is bound to fail. Hence the judge's comment:

Secondly, the Judge didn't see any possible way that there could be a contract, absolutely blind to the point and even got smug and asked me if I know what a contract is.

If GOOFers misinterpret the judge as saying that a harassment claim is bound to succeed (rather than merely more likely to succeed), they are mistaken.

[PeanutGallery]

I agree in regard to your point about suing under contract LittleFred that and they might also come unstuck, if suing under contract, by the simple fact that any damages claimed for in a breach of contract must be a genuine pre-estimate of loss.

I think the Judge was right to ask if Marshall knew what a contract was, because it seems that Marshalls idea of a contract is a one-sided agreement, when it isn't. A contract needs, an offer, acceptance and consideration.

Marshalls 'contract' consists of an offer only. Agreement is implied, but there is no consideration. Therefore it is not a contract under law and it would have been unlikely that a Judge would decide to rewrite ALL the contract laws, when they didn't have the judicial authority. In fact I'd say that the only reasons would be a) if the Judge decided that they didn't want to stay a Judge any more or b) Were having a stroke/brain haemorrhage when deciding on the case.

Has for the question of whether GOOFs misinterpret the Judges comments, it would hardly be the first time they've done that.

[notorial dissent]

If that is what the judge said at all, since apparently verbal comprehension isn't real high in this group.

[PeanutGallery]

If that is what the judge said at all, since apparently verbal comprehension isn't real high in this group.

Fixed that for you.

[littleFred]

Marshalls 'contract' consists of an offer only. Agreement is implied, but there is no consideration.

I agree about offer and consideration, but I'm not so sure about agreement. I suspect the DCA's lawyers would happily argue that their client never agreed to an offer. Ignoring an offer can't be seen as implied agreement.

I think "implied agreement" occurs when it wasn't explicit, but the other party starts to perform his side of the contract. But IANAL.

[PeanutGallery]

I should apologise, I worded that clumsily. I omitted that it was implied from one side only. I don't think their was an agreement between the DCA and Marshall for performance of any contract.

Marshall thought that because the DCA didn't take any action to say they did not agree to his terms that they were bound, when in truth in order to be bound the DCA would have had to take action to bind themselves.

[littleFred]

Yes, agreed.

I was thinking about all that junk mail that I put straight in the bin. Could a double-glazing firm think that because I didn't say "no" we have a contract? Nope.

[Hercule Parrot]

I believe there is some case law relating to this, possibly ECHR but can't be bothered to go look it up (simply it establishes that contact from a DCA can be harassment if it crosses the threshold of what would be reasonable steps to recover a debt, sending a letter asking for it's repayment or making a phone call is not enough to cross that threshold, but if someone were to receive multiple phone calls outside of normal hours or constant visits from agents looking to collect it would be, it's quite a high threshold as I recall - I may be mistaken in this IANAL).

Roberts v Bank of Scotland Plc (Rev 1) [2013] EWCA Civ 882
www.bailii.org/ew/cases/EWCA/Civ/2013/882.html

[tm169]

I have to say I feel a little sorry for Marshall.

His default judgment gave him false hope as he thought it had been granted on the merits of the case rather than just a literal rubber stamping excercise by court staff.

The defendants application to set aside was one of the worst bits of drafting I have ever seen too which is why once they took legal advice they opted to just pay the £500. Without being smug i did personally warn him about this outcome months ago and predicted this result correctly.

One thing I can say for Marshall is at least he had the decency to admit publicly that his claim was struck out and has openly criticised the 3 letters. He now says they should be replaced with harassment letter before claims which is what other less crazy websites have been advocating for years.

I like to know what costs he ended up with though. Marshals over optimistic application to strike out the defendants defence was met with £1000 costs in any event so he has now picked up that and adverse costs for his claim plus court fees. Could well be £5k+ although he indicated the judge was pretty lenient on costs and was also generous in not declaring him a vexatious litigant by generously finding that some parts of his claim were not vexatious (the harassment bits).