Can anyone tell me where I can find Judge Waksmans ruling on secret commission being a form of bribe

 

Thank you

I think you may be referring to Justice Tuckey's judgment in Wilson v Hurstanger you can find that HERE although I would add that things are a helluva lot more complicated than that these days. There is a conflicting judgment which is often relied upon by creditors in the case of Harrison v Black Horse although this has now been granted permission to appeal in the Supreme Court.

It appears there are many cases based on secret commission, PPI and other similar issues where there have been applications made for a stay of proceedings pending the decision of the Supreme Court in this case. There is a very recent High Court judgment by Waksman which allows such stays and is binding on the lower courts, HERE

In my personal opinion I believe that any cases which encompass any of the issues similar to Harrison and the Unfair Relationship provisions would be better off stayed until the Supreme Court hands down its judgment early next year. But that is solely my opinion!

Thank you for your patience, I appreciate your understanding that there have been certain things I am unable to speak about publicly.

As it goes, there are still things I am unable to say but I will do what I can to try to explain what has happened.

There was a draft judgment but I am entirely unable to say anything about that at all, those there them are the rules I'm afraid

Judgment was due to be formally handed down today but it hasn't been. Instead I made an application for a stay of proceedings pending the decision of the Supreme Court in the Harrison case. My application was granted this morning and proceedings are now held until next year when the Supreme Court makes its findings on the Unfair Relationships provisions.

I know this is not what you all may have been expecting or hoping but please trust me on this one, it was the right thing to do.

Yes it would have been great to have seen an end to this drama but, in reality it was just not prudent to continue when the rules on Unfair Relationships are all up in the air with no real authority to bind them. There is a very recent Waksman judgment which explains it all very clearly, here's a LINK to it.

If I may be so bold to offer the benefit of my experience, I would recommend everybody to take the same action if they already have an ongoing case or are faced with one.

In my case the current situation is that there will be further directions given following the Supreme Court decision expected next year. As it stands we are in no different a position than we were before this remit, the original judgment is still set aside and there is no judgment yet on the remit. It all hinges now on what the Supreme Court decides amounts to an Unfair Relationship and whether the facts of my case fall within that ambit.

Sorry I can't give you all an ending to this yet....

Wannabe,

 

Did you accept the apology from the Police in the end or are you going to follow up with a case for them assisting a Bailiff?

Now there's a question!

I accepted the complaint be dealt with via local resolution but I always made it clear that once the court proceedings were over I'd be back to make a claim against the police too for their part in it.

I've often thought during my darkest hours that I wanted nothing more than to see the back of all this, but I woke up this morning and realised that this has actually only just begun...

There's much that remains unfinished and unsaid.

Every day something else winds me up even more about the whole thing

I forgot to mention what welcome's closing arguments entailed;

After they spent what felt like an eternity arguing the Harrison case and the ICOB rules, they finished up with how the secret commission they paid on the finance wasn't covered under ICOB anyway and so the Judge may be entitled to employ the remedy as found in Hurstanger for that bit

Incidentally I'll give them that one, they had cleverly worked out what my argument was going to be on that point and obviously thought it would sound better coming from them than me. It's a shame they didn't extend me the same courtesy, but then why would they?? I'm just a nobody little girl, there'd be no way I would've worked out what their tactic was going to be and countered it before they tried it would there?!

It's worth bearing in mind that I didn't claim any such breach of ICOB in the first place and even if I had I believe it applies to lenders that sell insurance policies. Unless I'm grossly mistaken, welcome have made the most amazing fuss about how it wasn't even them that sold the PPI policy, so work that one out!

Thank you G! You really know how to make a girl feel special

It's not over yet but at least I can hold my head up eh? x

Sorry I haven't had time to read your thread properly yet but I just really needed to make that point as a matter of urgency!

Do not agree to Multi-track!!! There are serious costs implications involved in this, proceed with extreme caution!!

Has the claim already been allocated?? Have there been any other applications to have the track changed if so??

Nailed it right there

You'd have been so proud, even the clerk approached me after the hearing and commended me on the fluency of my arguments

She tried to convince me to take up law but I told her that I was not into playing dirty tricks so I wouldn't be joining up! She was really lovely and said she thought I was fantastic and had acted as good as any barrister she had ever seen. It really made my day, it was so kind of her to take the time to say those things and it just goes to show that we can achieve anything we set our minds and hearts to.

I hadn't planned on acting like a barrister, I just wanted to be given a fair trial and not discriminated against because I was an LiP.

hi - thanks for the sound advice and I wholeheartedly agree.

I have been bullied already by the other side, in my own opinion, and I await the hearing date at the moment. Their solicitor has written to say that I am likely to incur £20k in legal costs etc etc and some other stuff separately under 'without prejudice' cover. I have to bring my thread up to date but not sure about how much to put online whilst they are probably 'guests'.... and, I don't want to hijack your thread on this. would you mind if add a pointer to my thread soon?

Good morning

NU stands for Norwich Union, this is who welcome allege underwrote all the policies.

Yes the costs issue is something they will always try to use as a frightener. Although it still is something you need to be aware of, if it goes against you will be responsible for their costs. It's worth bearing in mind though that there is a cap on costs for fast track trials too depending on the value of your claim, you do need to familiarise yourself with this. From what I remember it is contained within Part 46 of the CPR. There's always a get out clause with any of it that the judge can still order any amount of costs at their discretion based on the conduct, (or misconduct!), of any party throughout the proceedings. Just get up to speed with that argument.

For the record and for the benefit of prying eyes, I am up to speed with Part 46 and all encompassing arguments

I would advise you not to give too much away on open forum, they are watching and will have no shame in raising it at court. I have kept many things to myself and I was very satisfied with how I was able to utilise them at trial. It was clear that they were relying on me saying exactly what I had written on my thread and grossly underestimated my ability to raise anything other than that.

The bottom line is that, whatever help and support you may receive here, it is your case and it will be you and only you that has to stand up in court on that day and explain it. You need to ensure that you are fully confident in anything you are relying on because, and only because, you have spent what might feel like a lifetime researching it and learning it inside out and back to front!

I really should try to get my life back now but I will always be happy to offer anything that that may be of assistance to anyone that is going through what I have been through

Wow that post turned out to be considerably longer than I expected!

Forgive me, I slept soundly for the first time in 3 weeks

REF: Hurstanger v Wilson - you are correct that the commission was not secret - but from my recollection i think the issue was that the amount the broker received was not disclosed and therefore a secret profit. (will print myslef a copy and have a good look at the other paragraphs you mention).

 

Agree with your argument on fairness - but i do believe that their was also a breach of fiducary duty - if i am correct in thinking that you arranged your finance with welcome via a broker.

 

Am also confused about your mention of NU - did you also argue the case that welcome had received a commission? I think that is similar to the harrison case.

Yes the Hurstanger case was ruled on the fact that they didn't disclose the amount. The same can be said for Yates and Harrison, in those cases the borrower was made aware via various documents and booklets. Hurstanger was ruled on the fact that it was not a TRUE secret commission case. My case with welcome was so much of secret commission case that it was even a bloody secret from welcome! This is what distinguishes from all the other cases, as much as the other side refused to accept that. The judge even specifically asked me when I found about it, and I can categorically state that it was not when I took out the agreement.

The problem I had with the fiduciary relationship argument was that I never claimed that the lender had procured a breach of the broker's fiduciary duty or that the broker even owed me one, so how can they be defending an allegation that I didn't make?

As it turned out, I had already prepared for arguing that point any way, if it was allowed

I held them to their defence which clearly stated: "At all material times the broker was the agent of the claimant, not the defendant"

Hurstanger states that if a person makes a secret payment to the agent of another knowing of that agency.....

It was shown that they did make a secret payment and, according to their own defence, they were aware of the agency.

I understand their reasoning; it was always necessary for them to prove that the broker was my agent and not theirs because then they could continue with the argument that they had put forward since March 2009. "It wasn't us that sold the PPI it was the claimant's broker so we can't be held responsible for any mis-selling"

That 'may' wash for the PPI issue but it drops them in it with the secret commission issue, they can't have it both ways. The broker was my agent when he mis-sold PPI but not my agent when he accepted a bribe??!!!

In answer to the NU question; nope not at any time did I mention or know about the commission NU paid welcome. I only became aware of it via a witness statement provided by them in December 2011 - AFTER the trial and AFTER the appeal!

The Harrison issue turned into a bit of a sore point for them after they spent a great deal of time relying on it in their closing submission. Unfortunately the Judge was not aware that the Harrisons have been granted permission to appeal by the Supreme Court, so the validity of any reliance on that case was in doubt. Also the Judge noted that my appeal judgment was approved on 20th Oct 2011 and the Harrison appeal was handed down on 13th October 2011. Surely Lord Justice Beatson would not have approved his judgment if he thought that the Harrison appeal was relevant to this case?? I don't know, that's just my take on it.

It is my personal view that welcome have looked around for any cases that might work in their favour and then adjusted their defence to fit. It was shown at trial yesterday that they haven't got a scrap of evidence to rely on apart from the underwriting sheet that shows they paid a secret commission to a broker. All the talk about how much they received from NU was hearsay, their witness stated that she had to ask the legal dept. how much commission was received and they told her. There is no evidence to verify what they told her. Incidentally this is the same legal dept. that first said they didn't pay anything and then said they only paid 2%

I closed my argument with the questions: "When a debtor alleges a relationship is unfair the burden of proof rests with the creditor to prove no unfairness exists, has the creditor provided sufficient evidence to show fairness existed?? If trespass is fair, contravention of Section 92 is fair, breach of statutory duty is fair and fraud and bribery is fair, then what exactly would the court consider would warrant unfairness??"

The Judge was kind enough to allow me to have the last word

It's hard, really, really hard!

There's so much more to a court room than just knowing you're right.

There's a whole new language to learn and a certain way of behaving.

There's a procedure and routine which you also have to learn, so as well as knowing your case inside out and back to front you need to be able to back it up fully with the law and legal authority and learn everything else as well.

Bear in mind barristers go to school for a lot of years to learn all of this stuff!

Confidence does play a big part in it but take care, there is a very fine line between confidence and arrogance.

As far as I'm concerned we were just 2 people arguing the facts of a case, just because they went to school for longer than me doesn't mean my points are not valid. Although that's not to say I haven't suffered my fair share of court room nerves!

You just need to stand your ground, don't let yourself be bullied and the most important thing is to know your stuff!

Yes I could go another trip out someday

When all is said and done, the burden of proof rests with the creditor. When a debtor alleges unfairness in a relationship it is for the creditor to prove otherwise. Have they done enough to prove that everything was fair?? Trespass - fair? Contravention of Section 92 - fair? Breach of Statutory Duty - fair? Fraud, bribery and secret commission - fair???

The judge double checked that they accepted that the burden rested with them, just before she went off to consider her judgment

It was incredibly annoying at times, having to listen to the other side arguing against something they had previously admitted! Apparently they can get away with what they said previously if they just say; notwithstanding to what has been said before...

They spent an incredible amount of time arguing that there was no agency relationship between me and the broker and so there was no breach of fiduciary duty, if anything the agency relationship was between them and the broker. I found that to be entirely ludicrous as they stated in their defence that "at all material times the broker was the agent of the claimant and not the defendant".

After I cross examined their witness and got her to conclude that the evidence she was giving was actually hearsay and not based on any evidence at all, it was then admitted that the amount of commission received from NU was more or less anybody's guess! Even at this stage they're still trying to hide things

You'll all be interested to know that CAG even got a mention!! Apparently, according to the other side, I only visited CAG in order to try find a "loophole" to find a way out of paying. What a disgrace!

Well I argued back quite substantially on that one you'll be surprised to hear

They argued Harrison, I argued Hurstanger. They forgot to mention that the Harrison's had been granted permission to appeal at the Supreme Court, good job I was there to remind them eh??!

The thing that perhaps gets overlooked in this situation is that Hurstanger wasn't won on secret commission. In fact it was found that the commission was NOT a secret. This case however is a true case of secret commission and there was absolutely no disclosure at all.

There were always 2 separate arguments in Hurstanger, one based on fiduciary duty and one based on fairness. I argued, and always did argue, the issue of fairness. We all concentrate on paragraph 39 but there are a lot of other pearls in there too 32, 46, 47 and 48 are good too.

"The Recorder proceeded on the basis that it was common ground that where a person (in this case the claimant) makes a payment to the agent of another person with whom he is dealing (in this case the defendants) knowing of the agency and fails to disclose that he is making or has made that payment, the other is entitled to rescind the contract.

1. So for these reasons I do not accept either party's submissions about the disclosure. This is a half way house case. The claimant did not pay the broker a secret commission but procured the broker's breach of fiduciary duty by failing to obtain the defendants' informed consent to the broker acting in the way he did.
   
2. This conclusion means that the defendants are not entitled to deploy the full armoury of remedies which would have been available if this had been a true secret commission case."
   

So can you give us a brief run down, in particular the 'interesting' parts.

Well I suppose I can! There's nothing I need to hide away from prying eyes now, I've already said it to their faces

Hi - well that's time for a little break and a cuppa - is that two weeks time then another two waiting for the post?

I'm certainly in need of something a little stronger than a cuppa at the mo!

Luckily for us we live in modern times, the draft judgment will be sent out via email within 2 weeks and the hearing to formally hand down judgment is set for 27th July. So it's not all up in the air thankfully

It's been a long and strenuous battle that feels as if it has gone on forever already. On that basis, 2 more weeks won't make a lot of difference - the Judge has reserved her judgment and it will be handed down within 2 weeks.

Sorry folks, the end is in sight it just wasn't today!

Hmmm yes it was a very interesting day, it's over now and there's nothing else that needs to be said or argued.

There was nothing about today that I regret and I absolutely did the best I could possibly have done, I know in my heart of hearts I could not have done any more so it's all in the hands of the Judge now. Whatever the outcome it won't be through a lack of trying!

Fingers crossed this actually is the last hurdle!

Well all I can say now is, win or lose I'll always know I could never have done more.

I've laughed, I've cried, I've broken down, I've picked myself up and I've fought to the death.

Whatever will be now will just be, I'm as prepared as I'll ever be although regrettably I do seem to be having something of a bad hair day

See you all on the other side, and thank you for being with me x

Thank you

What a lovely thing to see as soon as I wake! Thanks so much for posting that

I can only do what I can do but I'll certainly give it my best go x

Hope it all goes well for you - am sure it will.

 

Maybe you should write a book on it all.

 

What date is the hearing?

Thank you, I'll certainly try my hardest

The hearing is on the 10th, this time next week it'll all be over one way or another

Hello and welcome, would you be able to tell us a bit more about the type of agreement you had with them and the details of the County Court and High Court judgments? Did you get copies of any orders made against you?

Personally I wouldn't take the car back, in my opinion I don't think that would work in your favour.

Preparations all complete, time to chill now with a few of my favourite films to get in the mood....

Think I'll start with Erin Brockovich, closely followed by the classic Secretariat and then finish up with A Few Good Men and if I haven't had enough by then I might push the boat out to Legally Blonde

It's really weird to think I'll never have to write another statement, prepare another document or serve or file anything ever again. I don't know what I'm going to do with myself when this is all over

I know I've said this before but I really have fully appreciated all the support I've had with this over the years, irrespective of the outcome of the final trial I already consider this a victory for us all

An unusual outcome relating to LiP costs, that effectively pushed the hourly rate to one side.

 

http://www.bailii.org/cgi-bin/markup.cgi?doc=/ew/cases/EWCA/Civ/2002/250.html&query=wulfsohn&method=boolean

Now that is interesting, I vaguely recall reading that some time ago. It wouldn't be outside the realms of possibility that I have spent many thousands of hours on this case from start to finish, but at £18 an hour that may well exceed the cap not to mention the cost of stationary and disbursements.

I was never really that fussed about costs, it's more about justice than anything, but I know full well the other side will crawl over hot coals to get their costs without a second thought.

Thank you. The one thing I know for certain is that no matter what I put for my costs it will never even touch the sides of what this has actually cost me, neither literally nor laterally.

Well that will explain why I have not been able to find the answer thus far Thank you very much for finding that!

If I ask myself the question - "what would the other side do?", I think I know what I will opt for...

After all, if there are no specific determinations neither option can be wrong surely??