E2SAVE blood from stone

Sid_Harper

Quentin - quick question for you on this - made a slight mistake on the MCOL claim saying my LBA was for my first cashback but actually I'd done exactly what you say above in my LBA and asked for the whole lot (I remember first writing the LBA so that it was just asking for the cash that hadn't arrived, then realised they were in breach so I could go for the lot).

Seeing as they didn't sort it either way within the time I gave them in the LBA is that MCOL mistake relevant and do I need to do anything to rectify it? My MCOL is for the lot because, as I say, they didn't do anything within the time I gave them after the original breach anyway.

Quentin

As long as you were able to correctly signed your MCOL declaration, (which states that the "facts stated in this claim form are true") then there shouldn't be a problem.

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If you want to mention a LBA in the initial "Particulars of Claim", then all that is needed is something like "I informed the defendant about the possibility of this action in a Letter Before Action dated xxxxx". No real necessity to mention it at all at this stage.

Sid_Harper

Thanks - everything I said on the MCOL is true though it could be suggested that the cashback amount expected by me within the LBA's timeframe were inconsistent with what I actually asked for, but seeing as they didn't cough up anything at all I don't think it actually matters because the basis of the claim is the fundamental breach which they committed.

Quentin

No it doesn't sound too relevant, especially as presumably both your LBAs were ignored.

Sid_Harper

there was just one LBA, but on MCOL it could be read as I was expecting one cashback only from the LBA and not the lot, whereas in fact the LBA I sent did ask for the lot (as I am in my MCOL). As you say, it was ignored anyway, so this is a bit of a moot point. Sounds like it shouldn't affect my claim.

Lynsey

Quentin wrote: »

If the contract has been fundamentally breached, (which is the grounds you have for being able to "sue for the lot"), and you decide on sending a LBA, then this should be for all cashback due as by the time you get to sending the LBA, then the breach has happened.

So the LBA should be for the "lot", not just the late payment. You get to the "nice position" at the time of sending the LBA, and not if/when the LBA is ignored.

Obviously that's an option, I prefer to give one chance to pay before suing for the lot but explain that in my LBA. Never had to sue up to date, but wish I had with CNM - a bit too soft I'm afraid.
But yes, we don't get a chance to be late!!!!!!!!!!!!!!!

Lynsey

mobilejunkie

I was about to sue Mobile Affliates when three cheques arrived - two on time - less than two weeks before they went bust. However, this is not the same. Still, a line must be drawn when a company changes the rules to suit itself as it goes along and ignores the t&c it writes at the time of the contract.