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The Mould

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The Mould last won the day on September 24 2013

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  1. Hi The reality of your case is that although you returned the original vehicle promptly, the Claimant provided you with another vehicle, you used it and had the benefit of it and continued to make regular repayments, in law this means that both you and the Claimant affirmed the contract and therefore unless you can produce evidence in Court to show that last payment was 6 years before the Claimant issued proceedings, which will mean his claim is time barred, I believe that you may struggle to defeat his claim. Details under the contract such as colour of the vehicle are less than minor and so the Court will not view such argument as valid. Kind regards The Mould
  2. Hi Laura I have begun on the draft of the statement of case for your brother-in-law and upon completion of it, I will post it here for his amendments/approval. Before that time though, may I respectfully ask you a few questions that are material to this dispute, I hope you do not mind but I must make these inquiries as the Court will make the same and question your brother-in-law on the same, that is, if the matter should proceed to trial. OK, in the first instance, can you please post up (by PDF) the contract to which this dispute relates, minus all personal details, and of course if your brother-in-law has no objection to this. Secondly, you say that your brother-in-law had to purchase another vehicle (“the 3rd vehicle in this matter) as a result of the fundamental breach of contract by Derby Car Centre, in this regard, what was the purchase price of the 3rd vehicle? Thirdly, as regards the previous owner of the car purchased by your brother-in-law from Derby Car Centre, can you please request the previous owner to provide you with a witness statement to confirm the defects of the vehicle in question and that Derby Car Centre held full, intimate, knowledge of the same at the point of sale thereof to your brother-in-law. Fourthly, the Court will want an explanation as to why your brother-in-law did not instruct a Breakdown & Recovery Co to tow the purchased vehicle and return it back to Derby Car Centre, please ask your brother-in-law as to why he did not take this course as opposed to placing said vehicle in storage for 6+ months. This is not a trick question from me, as the innocent party, the Court will want to know what action your brother-in-law took in order to mitigate his losses. Fifthly, notwithstanding your brother-in-law exercising his strict legal rights under the contract, statute and common law as to his entitlement to rescind the contract on grounds of Derby Car Centre’s failure to perform its obligations thereunder, what reason(s) have been given by Derby Car Centre as to their claim that they were prevented access to the said vehicle for the purpose of taking it back to their Depot for the required repairs. In any event, the vehicle was rejected promptly and the contract thereon validly rescinded. OK Laura, come back then and please provide the answers to the above as soon as is practical for you to do so and then I will be able to finish the draft of the statement of case in full for your brother-in-law’s perusal, check, amendments (if any) and approval. Godzilla Kind regards The Mould
  3. The date the vehicle was rejected is the date the money became due and owed by the garage. Daily rate of interest to judgment is from date of your (your brother-in-law’s) claim being issued (sealed) until the date of judgment being handed down on the case. Will post again as regards helping you to set out your statement of case, this is likely to be on the morrow if that’s alright with you. Kind regards The Mould
  4. Hi Laura I am reading through your case and once I have done that, I will help you with your statement of case (particulars of claim). Kind regards The Mould
  5. The White Book Vol.1 commentary and cases on Tomlin orders. Tomlin orders 40.6.2 There are various ways in which a claim can be disposed of when terms of settlement are arrived at. One method is known as the Tomlin form of order, suggested by Tomlin J. in Practice Note [1927] W.N. 290, following the decision in Dashwood v Dashwood (1927) 71 S.J. 911. Under such an order the proceedings are stayed on agreed terms to be scheduled to the order. These orders were discussed in Horizon Technologies International v Lucky Wealth Consultants Ltd [1992] 1 W.L.R. 24, PC (see also Green v Rozen [1955] 1 W.L.R. 741). The Tomlin order has always been a useful device. Nowadays, under the case management system introduced by the CPR, more cases conclude with such an order. Where proceedings are to be disposed by an order in Tomlin form, the order should read: "The claimant and the defendant having agreed to the terms set out in the schedule hereto, IT IS ORDERED THAT all further proceedings in this claim be stayed except for the purpose of carrying such terms into effect. Liberty to apply as to carrying such terms into effect." In para.9.15 of the Chancery Guide it is explained that, if the order refers to a confidential schedule or agreement, that document must be filed with a request that it should be retained on the court file in a sealed envelop prominently marked as not open to inspection without the court's permission (see Vol.2, para.1A–94). It is important to remember that the terms in the schedule are not part of the order as such. The terms in the schedule cannot be directly enforced as an order of the court. Thus there is no money judgment to be enforced and it does not carry statutory interest under Judgments Act 1838 s.17. A provision seeking detailed assessment of a party's costs must be in the body of the order, not in the schedule, otherwise the costs judge will not be able to carry out the assessment (Horizon Technologies International Ltd v Lucky Wealth Consultants Ltd, op cit.). Essentially, a Tomlin Order records terms of settlement agreed between the parties but those terms are not ordered by the court and are not enforceable as a judgment, at least not without a further order. The terms contained in the schedule are not something for approval by a judge. The judge will, however, approve the order itself. The only orders which the court usually makes are: (i) That the proceedings be stayed to enable the agreed terms to be put into effect. (ii) That, if the agreed terms require it, there be payment out of monies paid into court and provision for accrued interest thereon. (iii) For costs to be assessed, whether between the parties or out of public funds. Terms in the schedule cannot be enforced on an application to commit: an injunction or an order for specific performance must first be obtained. Hence the need for "Liberty to apply for the purpose of carrying such terms into effect". In a Tomlin order the schedule contains a binding contract between the parties compromising their proceedings. A settlement contained in a Tomlin order must be construed as a commercial instrument. The aim of the inquiry is not to probe the real intentions of the parties but to ascertain the contextual meaning of the relevant contractual language; the inquiry is objective ( Sirius International Insurance Co (Publ) v FIR General Insurance Ltd [2004] UKHL 54; [2004] 1 W.L.R. 3251, HL, at [18] per Lord Steyn). In Community Care North East v Durham County Council [2010] EWHC 959 (QB); [2012] 1 W.L.R. 338 (Ramsey J.), where the submission that the court has a general power to vary the terms of a settlement agreement incorporated in a Tomlin order was rejected (see further para.40.6.3 below), the authorities on the application of contractual remedies to agreements contained in the schedules to such orders (e.g. rectification) were explained and applied. Where a claimant in a personal injuries claim is pressing for a provisional damages award and an order permitting variation of the periodical payments, should the contingency arise, a Tomlin order may prove to be a useful device for settling quantum on a conditional basis. That is to say, in such an order the parties may stipulate that the agreed lump sum payable and periodical payments for future care and case management and for future loss of earnings set out in the order would be treated as provisional or variable or otherwise, dependent upon a ruling by the court as to whether a provisional damages claim and an application to vary the periodical payments were appropriate (see e.g. Kotula v EDF Energy Networks (EDN) Plc [2011] EWHC 1546 (QB), June 17, 2011, unrep. (Irwin J.)). The effect of the terms of compromise recorded in a Tomlin order is that the defendant has irrevocably dedicated the property, the subject matter of the agreed terms, to the purposes of the compromise. The defendant would be required, if necessary by an order, for specific performance, to realise the property as agreed with the claimant. The compromise imposes an immediate trust (Anders Utkilens Rederi A/S v O/Y Lovisa Stevedoring Co A/B [1985] 2 All E.R. 669). If the terms scheduled to a consent order are too vague the court will decline to enforce them under the "liberty to apply" provision of the order (Wilson & Whitworth Ltd v Express and Independent Newspapers Ltd [1969] 1 W.L.R. 197). Where the scheduled terms are clear an order to give effect to them can be obtained under the "liberty to apply" provision notwithstanding that they go beyond the ambit of the original dispute, could not have been obtained or enforced in the original action and that the obligation did not exist but arose for the first time under the compromise (EF Phillips & Sons v Clarke [1970] Ch. 322). Indeed one of the advantages of a Tomlin order is that the parties can include in the schedule provisions which could not have been ordered by the court and which go beyond the limitations of the dispute itself. If it is intended to embody terms of settlement which can be enforced as an order the terms need to be in the order itself (not the schedule) and set out clearly. Such an order should not include provision for a stay of the proceedings as there would be no point to such a stay. Where a settlement agreement is embodied in the form of a Tomlin order, but the schedule thereto is disclosed to the judge approving the order, the terms of the agreement will form part of the order (see, e.g. Zurich Insurance Co Plc v Hayward [2011] EWCA Civ 641, May 27, 2011, unrep., CA, (where held that, in the circumstances, a consent order concluding a personal injury claim, in which the defendant had pleaded that the claimant's injuries were exaggerated, did not operate as an estoppel, and the defendant's later claim against the claimant for fraud was not an abuse of process)). A Tomlin order is not necessary where all that is required is an order that one party shall pay money to the other. The order should say "The defendant will pay to the claimant £x in full and final settlement of his claim by [date]." (Add an order for assessment of costs, if required.) The court cannot order a party to accept so the order should not say, for example, "The claimant will accept £x in full and final settlement of the claim." Similarly, the court cannot order a party to discontinue a claim: the order should say, for example "Upon the claimant discontinuing the claim and the defendant discontinuing the counterclaim, it is ordered that there be no order for costs." An order to this effect is not a Tomlin order, but a Tomlin order would not be appropriate in such a case. Practitioners need to decide whether the case requires an order of the court or a Tomlin order with the compromised terms set out in a schedule and take care to draft the order appropriately. The current experience of the courts is that too many proposed orders are having to be returned as being neither enforceable orders nor properly drafted Tomlin orders. A properly drafted Tomlin order is very short and simple (see above). A judge is not concerned with the terms in the schedule; still less is there power to make an order in different terms (Noel v Becker [1971] 1 W.L.R. 355, CA) but, of course, practitioners should ensure that the terms are clear and should consider how the proposed terms would be enforced in the event of default. In Wallace v Brian Gale & Associates [1998] 1 F.L.R. 1091, CA, P's action for damages for negligent survey of house was compromised under a Tomlin order by which D agreed to carry out remedial work and to pay P's "costs of this action". It was held that D's liability for costs included any subsequent costs (excluding disbursements) incurred by P for carrying the terms of the order into effect. In Islam v Askar, The Times, October 20, 1994, CA, following agreement between P and D, county court proceedings for winding-up of their partnership were stayed by consent. P subsequently discovered that the terms of the schedule to the Tomlin order differed from the terms of agreement. It was held that the court had an inherent jurisdiction to rectify the order. In Allied Irish Bank Plc v Hughes, The Times, November 4, 1994, a Tomlin order was approved by the judge, with alterations made by him for purpose of greater clarity, and entered in court records. On application by P to enforce the order it was held that the order was not a nullity as, in the circumstances, D's consent to it in its altered form could be implied. Kind regards The Mould
  6. Hello James If your WS and any supporting evidence is 20 pages or less, then email it to the Court and request an acknowledgement therefrom to confirm you have filed the same. If more than 20 pages, simply split into 2 (or more, if required) PDFs and email it to the Court that way and, again, request as above. How far away are you from your local County Courthouse? Maybe you can take it there in person and ask the Court staff for a receipt to prove you filed your WS. Have the solicitors replied to your request as to service of your WS by email? If not, send your request to them again and mark your request as – Importance: High Priority. If the solicitors do not respond by 4:30 pm today, then post a copy of your WS (and any evidence) by Royal Mail Special Delivery 1:00 pm and they will have it on the morrow. Have you managed to calculate all the charges and interest added? If so, what is the figure? As regards the default notice, the sum amount stated as arrears which require to be paid in order to remedy the breach, is the arrears figure correct? Further, I will shortly post some information for you as regards Tomlin Order. Kind regards The Mould
  7. Based upon the above figures, 1,804.58 is owing. The 300 in charges + the interest and any statutory interest added thereon should be subtracted from the 1,804.58 and this will provide you with the factual sum amount due and owed to the Claimant (creditor). As regards the 12 pound charges, how did the Claimant (creditor) inform you of the same? i.e. did he send a specific letter to inform of these charges each time they were added to the account because of his breach complained of or did he inform of the same by way of his normal monthly statements? (the facts of this issue/element are important to your case against these charges) Further, as regards your late service of your witness statement (“WS”), this is not a disaster. You should send a brief email to the Claimant (his instructed solicitors) and request if they are willing to accept service of your WS by way of email as you have unfortunately mis-calculated the time-scale for service of the same. You should also send an email to the Court dealing with this claim and request if you can send your WS by way of email (for the same reason as above) and further state that filing and service of the same will not affect the trial window/hearing date and no prejudice has or will be caused to the Claimant in respect of the same. You need to do this on the morrow (5 October) first thing in the morning, i.e. at 9:00 am. Kind regards The Mould
  8. Oliver Foster-Burnell v Lloyds TSB, heard at Taunton County Court. The above case confirms that any charges added to the account (overdraft) must reflect the actual damage caused to the bank in relation to the breach complained of. Therefore, you (your daughter) must challenge the charges added to the overdraft facility provided by the bank in question and plead (in your skeleton argument) that such charges are excessive and disproportionate and therefore not recoverable at law and cite the above case which holds in your favour. The above case is a County Court judgment and therefore does not set a precedent, however, your case is being heard in a County Court and therefore one County Court cannot contradict the judgment of another County Court judgment on the same issue and this is because both Courts are exercising parallel jurisdiction (the same principle applies to the High Court and all Divisions thereof). Use the above case to your advantage in these proceedings as the same will significantly reduce your liability for the sum amount claimed. Kind regards The Mould
  9. Hi ads Further to my recent post on your case. In the first instance you should write a letter to the Home Secretary Rt Hon Theresa May MP and send it to the Home Office (address and email details below), your letter ought to be sent by Royal Mail Special Delivery (email a PDF copy to the email address below). Once this action is underway, I will then help you with the next action, which is to serve a Letter Before Claim on the solicitors on grounds as to professional negligence. In your letter to the Home Office you should state that the publication of your personal information on the Sex Offenders Register is unlawful and you require the same to be removed therefrom with immediate effect. The reasons as to why said publication is unlawful is because the Court of Appeal have quashed the conviction for the alleged sexual offence against you in its entirety and therefore pursuant to our laws the Appeal Court has found, on the evidence, that you are not a sex offender. Include a copy of the transcript of the Handed Down Judgment by the Appeal Court and a copy of the Sealed Order unequivocally confirming your innocence. Therefore, said personal information published constitutes a contravention of all 8 of the data protection Principles as the same has been processed and disclosed unlawfully and the same is wholly factually false, untrue, and is therefore neither accurate nor up to date. The law to which you are subject to has declared that you are not guilty of any sexual offence or sexual assault, and therefore said publication and processing of your personal information contrary to that by the public servants responsible for such action, which they know, intimately, to be completely false, constitutes a contravention of art.7 ECHR as you are being punished thereby without law. Further, the act of processing and publishing information relating exclusively to my private self and which is known by the public servants to be wholly untrue constitutes an act of discrimination against me, which is prohibited and therefore is a contravention thereby of Protocol No. 12 to the Convention for the Protection of Human Rights and Fundamental Freedoms Rome, 4.XI.2000 art.1 General prohibition of discrimination. At common law, the said unlawful actions carried out and persisted in by the public servants constitutes fraudulent misrepresentation and the wrongdoing of causing ruinous injury to my economic expectations under the tort causing loss by unlawful means. Protocol No. 7 to the Convention for the Protection of Human Rights and Fundamental Freedoms Strasbourg, 22.XI.1984 art. 3 provides that you are entitled to compensation for the wrongful conviction (now quashed) and you are presently in the process of preparing your case against the public servants on grounds of their said offences committed against you whereby you will be seeking substantial compensation from the Court for the loss caused to you by those public servants to which the Crown is liable in tort. In respect of the foregoing incontrovertible facts and the documentary evidence served herewith irrefutably proving that I am not a convicted sex offender and that I am not, in fact, a sex offender at all, no public servants, including your Office, holds any right under any law, enactment of Parliament, Common law or Public Policy of the United Kingdom to either publish or process personal information relating to my private person on the Sex Offenders Register and further the aforesaid hold no lawful right to subject me to any Notification Requirements under Part 2 of the Sexual Offenders Act 2003. Therefore, I respectfully request that you delete any and all of my personal information from the Sex Offenders Register and Discharge any and all Notification Requirements to which I am subject under the 2003 Act with immediate effect. In the event of any public servant, including your Office, continuing to act against me outside of the laws we are all subject to, I confirm that I will commence with legal action against the same in order to protect my rights without any further reference to any public servant. Therefore, I hereby put you on notice as to potential litigation on the facts and matters set out herein. I sincerely hope that such action will not become necessary. Please acknowledge receipt hereof by return and confirm, unequivocally, that the required action will be undertaken by your Office so as to end and prevent any further violations of law by any public servant in respect of the foregoing and my fundamental rights thereunder. I look forward to hearing from you shortly. All rights as to disclosure hereof are reserved. Yours sincerely MR ADS OK ads, draft your letter and post it back here for perusal and amendments (if any) BEFORE you post it. Home Office enquiries If your enquiry is regarding the Home Office then please write to: Rt Hon Theresa May MP Home Secretary 2 Marsham Street London SW1P 4DF public.enquiries@homeoffice.gsi.gov.uk Kind regards The Mould
  10. Hi ads I have set out below the relevant legislation and common law that are applicable to the issues in your case based upon the details of it that you have set out here. There is a legal way to put things right for you and to obtain compensation as to the wrongful and manifestly unjust treatment of your private self that the public servants subjected you to and continue to subject you to. This is going to be a very long journey and you will need to be committed to the process involved. I believe I can help you through this and help you to build your case against the public servants and the solicitors who acted for you. In the first instance, I would like to propose that you serve a Letter Before Claim on the solicitors on grounds of their clear professional negligence. In order to do this you must comply with Civil Procedure Rules (“CPR”) Professional Negligence Pre-Action Protocol (“The Protocol”). The statutory requirements that you must satisfy under the Protocol can be found on Ministry of Justice website, you should print off a copy of the same. When you have read the provisions of the Protocol, draft your Letter Before Claim and post it up here (minus all personal details) and I (and I am certain others too) will peruse the same and give you guidance thereon as to amendments (if any) required etc.etc. before you serve it on the solicitors by Special Delivery. Secondly, peruse the legislation and the common law torts below in order to acquaint yourself with the same and over a period of time I will post material on each piece of legislation and the torts setting out the reason as to why they apply to the issues of the case and the grounds of your pleadings (statement of case) against the public servants and why their acts against you are a contravention of the relevant sections of the relevant statute. There is a great deal of work to do and therefore hopefully other Cag members will pitch in and together we can pool our resources to help and support ads in succeeding to undo the ocean of injustice he has been made to drown in by the wrongful actions of the public servants. Serious Organised Crime and Police Act 2005 110 Powers of arrest (1)For section 24 of *PACE (arrest without warrant for arrestable offences) substitute— “24 Arrest without warrant: constables (1)A constable may arrest without a warrant— (a)anyone who is about to commit an offence; (b)anyone who is in the act of committing an offence; ©anyone whom he has reasonable grounds for suspecting to be about to commit an offence; (d)anyone whom he has reasonable grounds for suspecting to be committing an offence. (2)If a constable has reasonable grounds for suspecting that an offence has been committed, he may arrest without a warrant anyone whom he has reasonable grounds to suspect of being guilty of it. (3)If an offence has been committed, a constable may arrest without a warrant— (a)anyone who is guilty of the offence; (b)anyone whom he has reasonable grounds for suspecting to be guilty of it. (4)But the power of summary arrest conferred by subsection (1), (2) or (3) is exercisable only if the constable has reasonable grounds for believing that for any of the reasons mentioned in subsection (5) it is necessary to arrest the person in question. (5)The reasons are— (a)to enable the name of the person in question to be ascertained (in the case where the constable does not know, and cannot readily ascertain, the person's name, or has reasonable grounds for doubting whether a name given by the person as his name is his real name); (b)correspondingly as regards the person's address; ©to prevent the person in question— (i)causing physical injury to himself or any other person; (ii)suffering physical injury; (iii)causing loss of or damage to property; (iv)committing an offence against public decency (subject to subsection (6)); or (v)causing an unlawful obstruction of the highway; (d)to protect a child or other vulnerable person from the person in question; (e)to allow the prompt and effective investigation of the offence or of the conduct of the person in question; (f)to prevent any prosecution for the offence from being hindered by the disappearance of the person in question. (6)Subsection (5)©(iv) applies only where members of the public going about their normal business cannot reasonably be expected to avoid the person in question. *PACE means The Police and Criminal Evidence Act 1984 Data Protection Act 1998 SCHEDULE 1 THE DATA PROTECTION PRINCIPLES PART I THE PRINCIPLES 1 Personal data shall be processed fairly and lawfully and, in particular, shall not be processed unless— (a)at least one of the conditions in Schedule 2 is met, and (b)in the case of sensitive personal data, at least one of the conditions in Schedule 3 is also met. 2 Personal data shall be obtained only for one or more specified and lawful purposes, and shall not be further processed in any manner incompatible with that purpose or those purposes. 3 Personal data shall be adequate, relevant and not excessive in relation to the purpose or purposes for which they are processed. 4 Personal data shall be accurate and, where necessary, kept up to date. 5 Personal data processed for any purpose or purposes shall not be kept for longer than is necessary for that purpose or those purposes. 6 Personal data shall be processed in accordance with the rights of data subjects under this Act. 7 Appropriate technical and organisational measures shall be taken against unauthorised or unlawful processing of personal data and against accidental loss or destruction of, or damage to, personal data. 8 Personal data shall not be transferred to a country or territory outside the European Economic Area unless that country or territory ensures an adequate level of protection for the rights and freedoms of data subjects in relation to the processing of personal data. SCHEDULE 2 CONDITIONS RELEVANT FOR PURPOSES OF THE FIRST PRINCIPLE: PROCESSING OF ANY PERSONAL DATA 1The data subject has given his consent to the processing. 2The processing is necessary— (a)for the performance of a contract to which the data subject is a party, or (b)for the taking of steps at the request of the data subject with a view to entering into a contract. 3The processing is necessary for compliance with any legal obligation to which the data controller is subject, other than an obligation imposed by contract. 4The processing is necessary in order to protect the vital interests of the data subject. 5The processing is necessary— (a)for the administration of justice, [F1(aa)for the exercise of any functions of either House of Parliament,] (b)for the exercise of any functions conferred on any person by or under any enactment, ©for the exercise of any functions of the Crown, a Minister of the Crown or a government department, or (d)for the exercise of any other functions of a public nature exercised in the public interest by any person. European Convention on Human Rights Protocol No. 7 to the Convention for the Protection of Human Rights and Fundamental Freedoms Strasbourg, 22.XI.1984 ARTICLE 3 Compensation for wrongful conviction When a person has by a final decision been convicted of a criminal offence and when subsequently his conviction has been reversed, or he has been pardoned, on the ground that a new or newly discovered fact shows conclusively that there has been a miscarriage of justice, the person who has suffered punishment as a result of such conviction shall be compensated according to the law or the practice of the State concerned, unless it is proved that the nondisclosure of the unknown fact in time is wholly or partly attributable to him. Protocol No. 12 to the Convention for the Protection of Human Rights and Fundamental Freedoms Rome, 4.XI.2000 ARTICLE 1 General prohibition of discrimination 1. The enjoyment of any right set forth by law shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status. 2. No one shall be discriminated against by any public authority on any ground such as those mentioned in paragraph 1. ARTICLE 5 Right to liberty and security 1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law: (a) the lawful detention of a person after conviction by a competent court; (b) the lawful arrest or detention of a person for noncompliance with the lawful order of a court or in order to secure the fulfilment of any obligation prescribed by law; 8 9 © the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so; (d) the detention of a minor by lawful order for the purpose of educational supervision or his lawful detention for the purpose of bringing him before the competent legal authority; (e) the lawful detention of persons for the prevention of the spreading of infectious diseases, of persons of unsound mind, alcoholics or drug addicts or vagrants; (f) the lawful arrest or detention of a person to prevent his effecting an unauthorised entry into the country or of a person against whom action is being taken with a view to deportation or extradition. 2. Everyone who is arrested shall be informed promptly, in a language which he understands, of the reasons for his arrest and of any charge against him. 3. Everyone arrested or detained in accordance with the provisions of paragraph 1 © of this Article shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial. 4. Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful. 5. Everyone who has been the victim of arrest or detention in contravention of the provisions of this Article shall have an enforceable right to compensation. ARTICLE 6 Right to a fair trial 1. In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interests of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice. 2. Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law. 3. Everyone charged with a criminal offence has the following minimum rights: (a) to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him; (b) to have adequate time and facilities for the preparation of his defence; © to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require; (d) to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him; (e) to have the free assistance of an interpreter if he cannot understand or speak the language used in court. ARTICLE 7 No punishment without law 1No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the criminal offence was committed. 2 This Article shall not prejudice the trial and punishment of any person for any act or omission which, at the time when it was committed, was criminal according to the general principles of law recognised by civilised nations. Crown Proceedings Act 1947 Part 1 Sections 1 and 2 1 Right to sue the Crown. Where any person has a claim against the Crown after the commencement of this Act, and, if this Act had not been passed, the claim might have been enforced, subject to the grant of His Majesty’s fiat, by petition of right, or might have been enforced by a proceeding provided by any statutory provision repealed by this Act, then, subject to the provisions of this Act, the claim may be enforced as of right, and without the fiat of His Majesty, by proceedings taken against the Crown for that purpose in accordance with the provisions of this Act. 2 Liability of the Crown in tort. (1)Subject to the provisions of this Act, the Crown shall be subject to all those liabilities in tort to which, if it were a private person of full age and capacity, it would be subject:— (a)in respect of torts committed by its servants or agents; (b)in respect of any breach of those duties which a person owes to his servants or agents at common law by reason of being their employer; and ©in respect of any breach of the duties attaching at common law to the ownership, occupation, possession or control of property: Provided that no proceedings shall lie against the Crown by virtue of paragraph (a) of this subsection in respect of any act or omission of a servant or agent of the Crown unless the act or omission would apart from the provisions of this Act have given rise to a cause of action in tort against that servant or agent or his estate. (2)Where the Crown is bound by a statutory duty which is binding also upon persons other than the Crown and its officers, then, subject to the provisions of this Act, the Crown shall, in respect of a failure to comply with that duty, be subject to all those liabilities in tort (if any) to which it would be so subject if it were a private person of full age and capacity. (3)Where any functions are conferred or imposed upon an officer of the Crown as such either by any rule of the common law or by statute, and that officer commits a tort while performing or purporting to perform those functions, the liabilities of the Crown in respect of the tort shall be such as they would have been if those functions had been conferred or imposed solely by virtue of instructions lawfully given by the Crown. (4)Any enactment which negatives or limits the amount of the liability of any Government department [F1, part of the Scottish Administration] or officer of the Crown in respect of any tort committed by that department [F1, part] or officer shall, in the case of proceedings against the Crown under this section in respect of a tort committed by that department [F1, part] or officer, apply in relation to the Crown as it would have applied in relation to that department [F1, part] or officer if the proceedings against the Crown had been proceedings against that department [F1, part] or officer. (5)No proceedings shall lie against the Crown by virtue of this section in respect of anything done or omitted to be done by any person while discharging or purporting to discharge any responsibilities of a judicial nature vested in him, or any responsibilities which he has in connection with the execution of judicial process. (6)No proceedings shall lie against the Crown by virtue of this section in respect of any act, neglect or default of any officer of the Crown, unless that officer has been directly or indirectly appointed by the Crown and was at the material time paid in respect of his duties as an officer of the Crown wholly out of the Consolidated Fund of the United Kingdom, moneys provided by Parliament [F2the Scottish Consolidated Fund],. . . F3or any other Fund certified by the Treasury for the purposes of this subsection or was at the material time holding an office in respect of which the Treasury certify that the holder thereof would normally be so paid. Common Law Torts Fraudulent misrepresentation Causing loss by unlawful means Professional negligence claim (against the solicitors) Relevant Protocol: Professional Negligence Pre-Action Protocol Before issuing any proceedings against the solicitors who acted for you, you must comply with the statutory requirements of the above Protocol. You can print off a copy of the same from the Ministry of Justice website. OK, I will post again in a series of posts in respect of the foregoing, so as to breakdown each issue applicable to your case which I believe will help you to build your case against the public servants (the constabulary which polices the district where you were arrested) and your case against the solicitors. Please bear in mind that this is going to take quite some time as there is a great deal of legal admin involved in undertaking this course to help you and I have numerous on-going commitments and responsibilities to meet. Kind regards The Mould
  11. The substituted party may well now seek to enforce the CCJ against your wife. The enforcement action could be brought by one of two ways, the Claimant may serve a statutory demand on your wife or he might seek a charging order against your property (if you are home-owners). You should check and double check all your own records of this debt in order to try and establish if there was any PPI on the agreement and if any default notice served was a valid one. Have a proper look into it and post back your findings (if any), in the meantime, if either of the above stated actions are commenced, post back here without delay for advice, guidance, help and support as regards how to deal with the same. Kind regards The Mould
  12. Hello there NDY In Patricia Jones v Link Financial Limited [2012] EWHC 2402, Mr Justice Hamblen (sitting in the High Court and on appeal), handed down the Court’s decision on the issue as to whether an assignee of a regulated agreement was in fact a creditor within the meaning of s.189(1) of the CCA 1974, the Court pronounced its decree declaring that such assignee was indeed a creditor under the 1974 Act. The definition of ‘creditor’, contained in Section 189(1) of the CCA 1974, is “the person providing credit under a consumer credit agreement or the person to whom his rights and duties under the agreement have passed by assignment or operation of law, and in relation to a prospective consumer credit agreement, includes the prospective creditor”. The Decision After hearing submissions, Mr Justice Hamblen decided that: Section 189(1) of the CCA 1974 “clearly contemplates that an assignee may become a creditor”; the approach set out in Encyclopaedia of Consumer Credit Law, now edited by Professor Lomnicka, was correct and that “the “duties” referred to in section 189 are…those statutory duties under the [CCA 1974] which the assignee has to perform in order to enforce his assigned rights. These duties have “passed by assignment” in the sense that it is by reason of the assignment that the assignee becomes obliged to fulfil them”; there is a distinction between a legal assignment (where, subject to notice of the assignment being given to the debtor, the assignee is the ‘creditor’) and an equitable assignment (where the original creditor remains the ‘creditor’ under the agreement); and it was not necessary to add to or change the language of Section 189(1) of the CCA 1974 to reach this conclusion. It therefore followed that a legal assignee of a debt due under a regulated consumer credit agreement was the ‘creditor’ for the purposes of the Agreement. Because Link was the creditor, it was therefore unnecessary to decide the first issue raised in the appeal. Therefore, in your case NDY, Lowell is the creditor and the statutory duties imposed upon him under the 1974 Act passed upon him by the assignment, in this respect Lowell is legally responsible for the PPI on the agreement and jointly liable with Cap1 as regards repayment of the PPI + interest thereon to you. Cap1 are recognised in law as the party with primary liability for the fraud (PPI) and Lowell are recognised in law as the party with accessory liability for the same as a consequence of the assignment of the agreement to them. Further, as regards the PPI element, the document - Certificate of the Insurance product setting out the so-called ‘benefit’ thereunder which relates exclusively to the agreement, is in fact a prohibited article within the meaning of ss.1.7(b)(i) & 1.8(d) of the Police and Criminal Evidence Act 1984 since it has been made and used in connection with fraud (the PPI added on to the loan) in contravention of s.1 of the Fraud Act 2006 and therefore seeing that the two (2) articles – the insurance and the agreement, are intimately related and inseparable in relation to the loan/credit facility provided, in almost all PPI cases the consumer was told that in the absence of the insurance there would be no loan or credit facility provided by the creditor, meaning the PPI was non-optional, therefore the agreement also constitutes the act of making and using of a prohibited article for use in connection with the fraud on you (on all consumers). What this means is that the Courts cannot pronounce a decree for the force and validity of any prohibited article, therefore, Lowell will find that they are unable to enforce the agreement against you on the grounds stated above. I hope the foregoing will be of some help for you on your case. Kind regards The Mould
  13. Hello there Wendyboats (aka Watson) It has been a long time old boy since I adventured onto these moors. I am still here Watson and looking out for you always. Kind regards Mouldy (Holmes)
  14. The Claimant has not complied with paragraph (state paragraph) of the Court order dated (state date) and has unreasonably refused my written request to inspect/disclose the documents upon which he relies. Kind regards The Mould
  15. Hi Please don’t be frightened by your opponent and mediation as regards the dispute you are involved in, and by that I mean, really don’t worry as to what your represented opponent has to say, whether he (your opponent) is represented by his ‘in-house’ legal reps or by high street practice or by corporate law firm. Anything said or done in mediation is prohibited from disclosure to the Court and therefore your opponent’s assertion that by agreeing to mediation amounts to your admittance of his claim is wholly factually incorrect. Agree to mediation, whether at a ‘round the table meeting’ or in separate rooms, because this will protect you on the question of costs and no matter what you say at mediation, this cannot be disclosed in the proceedings and therefore cannot be held against you and your opponent cannot rely on the same in the proceedings to the dispute. Kind regards The Mould
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