Lost To Marlin Due To Rankin Case !!!!!!

[Wazza1970]

Ok so........My husband represented me in court (he has won 3 cases recently) and LOST due to the Rankin case :confused:

 

But we have MANY problems with the case and want to appeal it but need some help first before we take it to the court of appeal.

 

The first instance is that when the judge opened she read the witness statement of Marlin and said "but this says the debt has been paid off" WE NEVER RECEIEVED a copy of the witness statement prior to the hearing. I questioned it and the solicitor for marlin said "no it hasnt that must be an error" and the judge agreed and said she would put it down to an admin error. My husband questioned that but she simply continued. SURELY if the witness statement says that the debt has been paid off or words enough that the judge interpreted it as such then it should stand up in a court and be taken as the judgement surely !!!!

 

So we need to know how to obtain a copy of the witness statement as used in court !!!!

 

Next my husband stated that Marlin had admitted in their letter that they did not hold and could not get a copy of the CCA and therefore it was unenforceable in a court of law.

 

The solicitor then stated the Rankin case to which my husband returned saying that the rankin case was not a precedent case and was told by the judge that it was from the Court of Appeal which does set a precedent.

 

My husband argued this as best he could and returned with the Wilson case as suggested on this site.

 

The judge then entered into saying that as i had already made payments i had acknowledged the debt to which my husband argued that was irrelevant now that further information had come to light that they were not holders of a copy of the CCA which the judge felt was not a satifactry arguement in relevance to the Rankin Case.

 

My husband argued that the Wilson case superceded the Rankin Case and the judge asked when was the wilson case and my husband stated it was 2001 and the judge said well the Rankin case was only 12 months ago therefore that was impossible and awarded Marlin the £7000 on the basis that the rankin case was only 12 months ago.......I AM SURE THIS IS TOTALLY INCORRECT AS I THOUGHT THE RANKIN CASE WAS ALSO 2001 !!!!

 

so if that is the case then surely we have great grounds to appeal

 

Also my husband won a case in the SAME court a few weeks before with a different judge agains another DCA and it went to court 4 times and everytime my husband simply argued that they were not in possession of a CCA adn the judge kept giving the DCA another chance to obtain the information and eventually they dropped the proceedings as they were unable to obtain the required information.

 

So how can that be that the law works in one court room and not in another........surely the law is the law ?????????????????????????

 

All help greatly appreciated................

[Wazza1970]

Sorry that was typed by my wife on money savers so i am the husband

[I've got no money]

As a starting point can you put up, suitably redacted, the claim form and also your final defence so we can look at the claim. Can you also put up a copy of the directions.

 

You should have been served with the witness statements before the hearing. In any event if you contact to the court office they should provide you with a copy. How many witness statements were there?

 

As I understand it there are several Rankine cases - there is a Rankine CA case but it's only on permission to appeal and is not THE Rankine case which I thought was a High Court Appeal dealt with by a deputy High Court Judge. If I am wrong I'm sure someone else will clarify the position.

 

It sounds like you have grounds for appeal but we need more information.

[I've got no money]

Just checked Rankine is May 2008

 

Mishcon de Reya, Solicitors, London : News and Events : Articles : Judgment: Basil Rankine vs American Express Services Europe Limited

 

BUT is only High Court not Court of Appeal

[nicklea]

The big difference is that the Rankines were not denying that there was a signed agreement - whereas you are.

 

That is where the cases can be distinguished. But, as you found out, it does depend very much on what you say on the day. So if you don't put your case over so well then it may well go against you.

[I've got no money]

Rankine was also really poorly argued - it sounds as if your Judge got confused with the correct precedent but we do need some more info before we can help you draft your applellants notice.

[abbacus]

You should remember that most bright lawyers don't apply to be Judges as they can make more money in private practice. A large number of County Court Judges are second-rate lawyers, unfortunately.

[shakespeare62]

The solicitor then stated the Rankin case to which my husband returned saying that the rankin case was not a precedent case and was told by the judge that it was from the Court of Appeal which does set a precedent.

 

Sounds like Game Set & Match to you, for appeal purposes - if the judge is dropping such "ball hooks" regarding misquoting case law and precedents. :grin:

 

I got no Money is right - you have 21 days to lodge an appeal. There are pro bono services avaliable - which you may be eligible to apply for, but you will also need to request a copy of the judgment and reasons given, for appeal purposes.

 

By the way. It's obvious to me - the judge doesn't expect you would appeal her decision. I believe you appeal directly to her first, if she denies it (proably likely in her case) then you can appeal to a circuit judge for review.

[shakespeare62]

Some more "ammo" regarding the reliance on Rankines anyway (you can use it cast doubt on the value of the DCA using it) . I wouldn't miss the opportunity to refer to ithe flaws in it as part of your appeal. Don't forget tho' emphasis is on it not being a precedent - and your judge compounded the mistakes by not knowing her case law.

 

With thanks to DaveFirewalker who's post I've quoted at :-

http://www.consumeractiongroup.co.uk/forum/legal-issues/147432-high-court-judgement-rankines-4.html#post1648272

 

At para 28 of the Rankine judgment the judge states "When the agreement is executed a credit card is sent out, and usually this is attached to the “card carrier” copy of the agreement. This copy has to be sent to the borrower by virtue of section 63(4) of the Act and this is the executed copy. The requirement for such documents to be “true copies” is set out in regulation 3(1) of the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983. Regulation 3(2) provides that the lender can omit from this document any signature and/or signature box, so although the card carrier is the executed copy, it does not have to (and invariably will not) bear the parties signatures."

 

Well it appears that this paragraph of the judgment is just plain wrong!

It seems that Judge Brown may have been a bit confused. "The Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983" doesn't have a section 3(1) or 3(2). The judge may have meant "the Consumer Credit (Cancellation Notices and Copies of Documents) Regulations 1983" which does have a regulation 3(1) and 3(2).

 

I would guess, precision is everything if para 28 is to be used as any kind of precedent in other cases.

 

This also goes to show how complex the legislation is, even for a professional.

 

If your lender sites the Rankine judgment in relation to "true copies" I am fairly sure that it is easy to show the judgment is wrong simply based upon the legislation.

Edited April 16, 2009 by shakespeare62

[shakespeare62]

A trascript of the Rankines judgement is currently available at :-

 

Mishcon de Reya, Solicitors, London : News and Events : Articles : Judgment: Basil Rankine vs American Express Services Europe Limited

 

I suggest you copy and paste it for your records. Alternatively try a Google search for :-

 

Basil Rankine vs American Express Services Europe Limited

[shakespeare62]

Electronic copies of the above Regulations can be found on the following CAG link :-

 

The Consumer Forums - Statutes

 

See page 2, click the link titled "Consumer Credit Act (1974) and Related Regulations

[shakespeare62]

Just checked Rankine is May 2008

 

Mishcon de Reya, Solicitors, London : News and Events : Articles : Judgment: Basil Rankine vs American Express Services Europe Limited

 

BUT is only High Court not Court of Appeal

 

Quite so - I believe the Rankines Court of Appeal case was on a different issue concerning cancellable agreements. It was also against MBNA NOT American Express see :-

 

Rankine

Rankine v MBNA Europe Bank Ltd

Court of Appeal 26/10/07 [2007]EWCA Civ 1273

 

A copy of the Rankins Court of Appeal refusal is also viewable in html at :-

http://www.penaltyactiongroup.co.uk/forum/viewtopic.php?f=309&t=2263#p45153

Edited April 16, 2009 by shakespeare62

[I've got no money]

OK - we're all get carried away - on the basis of what you told us in your opening post you may well have grounds for appeal.

 

We need to see the pleadings and the orders. How much was the claim worth? What level of Judge dealt with it, DJ or Recorder/Circuit

 

You are going to need to lodge an appellants notice, which includes an application for permission to appeal. You also need to contact the court now and to find who the short hand writers are and then contact them and find out what the transcript will cost.

 

The important thing to remember about an appeal is that it is a process - you do it stage by stage.

 

The Appeal procedure is covered by CPR Pt 52

 

PART 52 - APPEALS - Ministry of Justice

 

The other thing to remember is NOT to do what the Rankines did and to have long rambling pleadings - that really annoys the appellate courts - keep it simple and do NOT quote large chunks of law and regulations

Edited April 16, 2009 by I've got no money

[yourbank]

How much would it cost to Appeal?

[I've got no money]

How much would it cost to Appeal?

 

Depends - that's why we need to know what the claim is worth...

 

Don't forget that Legal Aid may be available...

 

Acting as an LIP - there is a court fee on the Permission Application - you can apply to have it remitted or reduced on an ex 160a

 

There is also the cost of obtaining the transcript

 

If Solicitors do it they're fees are probably between £5000 - £10,000 (including counsels fees).

 

So its' not cheap equally it is perfectly possible to act in person and do it for under £600. If you win you recover your costs

[underdog13]

pro bono is free, I believe

[yourbank]

The Bar Pro Bono Unit: Free Legal Advice and Representation

[I've got no money]

The Bar Pro Bono Unit: Free Legal Advice and Representation

 

True

 

However you have to persuade them to take the case on first - its' quite a while since I had anything to do with them but they used to insist on cases being referred by either an advice centre or a Solicitor

 

The Bar Pro Bono Unit: Free Legal Advice and Representation

[I've got no money]

pro bono is free, I believe

 

Only if you can persuade somebody to do it pro bono

[underdog13]

Only if you can persuade somebody to do it pro bono

 

Very true - but it may be worth a try:-)

[shakespeare62]

it is perfectly possible to act in person and do it for under £600. If you win you recover your costs

 

Can an LIP act in a High Court or Court of Appeal - or only in making an appeal to a Circuit Judge following a case in a County Court ?

[I've got no money]

Can an LIP act in a High Court or Court of Appeal - or only in making an appeal to a Circuit Judge following a case in a County Court ?

 

Yes - an LIP has a right of audience in all courts including the House of Lords and the ECHR

 

Don't forget that an appeal to a CJ in a County would only be against a decision of a DJ

[I've got no money]

I've just been re-reading Wilson in the House of Lords - Para 31 blows Rankine - the enforcement point out of the water - as the Lords state that Judgment is enforcement - Rankine is therefore per incuriam (a decision made without consideration of relevant authorities) and shouldn't be followed

 

I wish that they'd appealed...

[questioning]

I thought they were barred from appealing

[I've got no money]

I thought they were barred from appealing

 

I don't know - you can always apply for permission to appeal - here I'd say that there were points of major public importance.

 

The problem tho was that they (Rankines) messed up the case. If they applied for permission to appeal and messed the permission application up then perhaps permission was refused.