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dad last won the day on March 9 2010

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  1. Noddy, Your case was Small claims Track? If so I would just like to point out CPR 27: So if you appeal you will not have costs awarded against you, unless you behave unreasonably. Separately, You posted a case report of a permission hearing for the Court of Appeal. If there is to be a new Court of Appeal decision wouldn't it be worth applying for permission to appeal and ask for a stay until the CoA gives its decision. If you qualify for a fee exemption that choice wouldn't cost you anything and you can always reconsider when the law is clearer. Even if you went on and lost the appeal you are protected by CPR 27.14 above. HTH Dad
  2. Costa, It is quite common to be refused permission to appeal on paper and then be granted permission at the oral hearing (and even then succeed on appeal). At the oral hearing you need to contrast the difference between sections 176 and 176a. Under the judges version of the act you now have the absurd situation that if the default notice is served by email it is actually received almost instantaneously, but is expressly deemed by section 176a to be delivered the next day. However if the default notice is send by second class post it will not actually be received for up to four days but is deemed to be served when it is posted. Also contrast with the words of section 69(7) where it explicitly says that service occurs on posting. If general service occurred on posting this exception would be unnecessary. HTH Dad
  3. Daniel182, You need to find the credit agreement. The old Open+Direct (Which is the previous name for creation) only allowed the company to charge 'the reasonable cost' of letters. So your steps are to find a copy of the agreement. Check what the terms allow If it is 'reasonable cost' then write to Creation asking them to breakdown the cost in light of the OFT's report that any charge over £12 is unreasonable. HTH Dad
  4. Richard, I am sure you are in good hands, but can I draw your attention to CCA74 section 57 which seems to cover your situation and was not mentioned in the latest judgment. By my reading when you went back to the store the agreement had not been executed by the creditor and still at that time remained a prospective agreement. HTH Dad
  5. Hi Wycombe, As far as I am aware there is not a non copyright version of the judgment available on the internet. However the full title is: Orakpo (Respondent) v Manson Investments Ltd. [1978] A.C. 95
  6. UKSI 1983-1561 Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 Regulation 2(9): HTH Dad
  7. @PT2537: Paul, Isn't there a difference between 'accepting the credit token' and 'executing the agreement'? It seems to me that credit tokens require a two stage process (1) execution of a credit agreement; after which (2) acceptance of the credit token as per s66, only then is the debtor bound. Dad
  8. I thought that Rhodium's answer is very helpful and comprehensive and I only wish to add that it would be clearer if the extract included section numbers and or page numbers (for the dictionary). Dad
  9. PT, In this case I think it is important that you do not look at each account in isolation. You need to look at all the accounts the customer holds with a lender. Most lenders operate systems similar to TRIAD (google fair isaacs triad for more information), which some UK banks use, part of the purpose of these systems is to maximise the profits from each customer. Consider this scenario. Customer has an account with a £1000 overdraft charging 5% interest and presents a cheque for £100 which takes him £30 over his limit and is bounced. These systems can be programmmed to offer credit limit increase on his credit card, say £300,(20% interest) or a sub prime loan, say £5000, (15% interest). As Mr Justice Smith said in para 79 of the April judgment: Where a bank has bounced a cheque, but shortly thereafter granted a substantially larger credit limit increase or made a loan then there are grounds for claiming that they acted irresponsibly as well as arbitrarily or capriciously or in bad faith in rejecting the cheque.
  10. VJ, Aside from any Companies Act issues, the documents you have shown do not form a complete transaction. CP2 is the earlier document dated 2 January 2006. It assigns all existing debts from HFO Capital to HFO Services. HFO Capital then in paragraph 1.2 undertake to make further assignments of future debt purchases. CP1 made on 20th January 2006 records a future purchase of debts from Barclaycard by HFO Capital. To complete the transaction there needs to be a further assignment after 20th January 2006 from HFO Capital to HFO Services. Now I would not say that they have deliberately numbered the documents CP1 and CP2 in the wrong date order to conceal this error, but others might. It appears to me, as a non lawyer, that HFO Services have issued proceedings where they are not the owner of the debt. HTH Dad
  11. Although not a binding judgment, it can be used as persuasive argument - remember how the banks used the berwick v lloyds judgment. You would need to know the details of the case ie names of parties and case number and have an approved copy of the judgment. Dad
  12. Hello Rhodium, I suspect that your question is posed in response to a post I made on Shakespeare62's thread. You should be aware that there are two types of privilege: 1. Legal Advice Privilege; and 2. Litigation Privilege. The difference between them is: Legal advice privilege covers communication between lawyers and their clients whereby legal advice is sought or given. As this site's rules make clear nobody on this site is giving anything other than general comment and sharing experiences. Therefore legal advice privilege could never apply. On the other hand Litigation Privilege covers ALL DOCUMENTS brought into being for the purposes of litigation. It arises when 'litigation is reasonably in propect'. It covers communication between the client and a third party where the communications are for the dominant purpose of obtaining legal advice in connection with, or conducting, litigation reasonably in prospect. In the changed social circumstances, where indivduals have no other option than participating in a site such as this to get help with the conduct of their litigation then it is no different from seeking the assistance of a 'McKenzie friend'. The crucial point is that litigants in person are entitled to have assistance, lay or professional, unless there are exceptional circumstances. In deciding whether a communication is subject to litigation privilege, the court has to consider objectively the purpose of the person or authority that directed the creation of the communication. As litigation privilege only applies to litigation reasonaby in prospect it would not apply to the site generally, but in my opinion would apply to discrete threads where individuals are seeking help in active cases. The next question is whether by using a 'public' site the cagger has waived litigation privilege. My view is that they have not. All members post anonymously. They take active steps to conceal their true identity, only disclosing the minimum of information for assistance to be given. A person who has the right to exercise privilege is entitled to agree with a third party to give that person access to privileged communications. The agreement might be general or for specified purposes. I doubt that any court could or would hold that anonymous postings amount to a general waiver required for a counter party to be able to claim waiver of litigation privilege. For a counter party to find the postings: THEY must actively seek out the site. THEY must actively seek to penetrate the veil of anonymity. Finally all the case law where privilege has been waived concerns sitiuations where the counter party was already in possesion of the privileged material. HTH Dad
  13. I have been looking at this for a while for BRW, however the problem is that there are not 44 bars, but 64 bars - so I fear that Royal Mail were being less than candid in this response. Dad
  14. This CoA judgment on LiP costs is also useful to bring along. In short judge at trial awarded £120 LiP costs, the CoA raised this to just over £10,000. Wulfsohn, R (on the application of) v Legal Service Commission [2002] EWCA Civ 250 (8 February 2002) HTH Dad
  15. To Mischon de Reya and Mr X of Counsel: This thread exists exclusively to assist Shakespear62 in preparing his litigation against American Express. As such it is almost certainly protected by litigation privilege. The legal requirements for claiming litigation privilege are well established and are not in dispute. Communications between a solicitor or the client and a third party will be protected by litigation privilege where the communications are for the dominant purpose of obtaining legal advice in connection with, or conducting, litigation reasonably in prospect: Re Highgate Traders Limited [1984] BCLC 151. It is possible that for you even to read this thread might to amount to a breach of your professional codes of conduct and be impermissible for Mr x to advance at trial.
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