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SADIE DE RUE

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About SADIE DE RUE

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  1. I posted a link to those two authorities because the judgments contain an abundance of information on the rule of law as to infringement of copyright and monopolization. There was no intention on my part to be unhelpful or to cause any confusion to anyone. As to any time limit set by the solicitors for you to respond by, you are of course, as you say, under no obligation to meet this. If the other side does commence with proceedings then you must comply with any time limits set by the court. Unfortunately, I have not been able to read the attachments as they are not PDF. Is it proper and equitable for a person or an entity to monopolize his name or its business name to such extent so as to place restraint upon the liberty of others to use the letters of the alphabet as they chose to create a name that is similar to that person or that entity, whether intentional or not? In my opinion, it is not. Why? Because the alphabet is not exclusive property created and belonging to anyone or any business. The alphabet is not intellectual property. Similar – Shimilar – no contest. It also appears that the services offered by both businesses are similar but not the same and that the other side has suffered no loss to its economic expectations and so if any award is given it is likely to be minimal. On the question of costs, given your reasonable conduct in trying to resolve this dispute, it is unlikely that the court will award any costs to the other side as their conduct is improper and unreasonable and the matter certainly does not require ‘big-gun’ solicitors to represent them. Sadie
  2. http://www.bailii.org/uk/cases/UKPC/1997/19.html Kaisha v. Green Cartridge Company (Hong Kong) Limited (Hong Kong) [1997] UKPC 19 This is another key authority that you might like to read as it may help you with this case. Sadie
  3. http://www.bailii.org/uk/cases/UKHL/1986/7.html British Leyland Motor Corp & Ors v Armstrong Patents Company Ltd & Ors [1986] UKHL 7 Click on the above link and have a read of this case because it is relevant to any claim against you alleging infringement of copyright, and based on the matters you have posted here about the claim you are being threatened with, it may be the case that you have grounds to raise a Defence against the copyright infringement allegation which is referred to in the legal profession as a “British Leyland Defence”. If the other side do issue proceedings against you in the High Court, then Defending the claim will not cost you in court fees, because as the Claimant, the other side will be responsible for payment of all the applicable court fees. Any award given in costs at the conclusion of the case are at the discretion of the court and there are many factors to be taken into account on the question of what costs, if any, the court decides to award. Sadie
  4. Well I cannot predict what the judge will decide, but what I can say is that the Claimant’s non-compliance with the order is sufficient grounds to justify strike out of his claim and the Court of Appeal in Mitchell MP affirms this. In the event of the claim being struck out on these grounds it will not mean that the matter is over forever, however, if the Claimant issues another claim on precisely the same issues, he may need permission of the court to do so. Sadie
  5. Rule 6.21 Form 6.19 Notice by Debtor of Intention to Oppose Bankruptcy Petition (TITLE) (a) Insert name Take note that I (a) intend to oppose the application to make a bankruptcy order on the following grounds:– 1. The sum stated in the Petition is wholly factually incorrect. The Debtor is not liable for the same. 2. The statutory Demand relied on by the Petitioner in these proceedings does not contain factual information as to any sum that may be owed to him be the Debtor. 3. The Petitioner is aware that the Debtor contested the sum demanded before service of the Statutory Demand and refused to engage in discussion with the Debtor to try and resolve the dispute. 4. These proceedings commenced by the Petitioner are an abuse of process because the Debtor has made offers to settle a debt owed to him in full satisfaction of the demand for payment, although the Debtor has not and does not admit liability for the same. However, the Petitioner has unreasonably and without good reason flatly refused the Debtor’s offer to pay the sum demanded in full and instead commenced with these proceedings. 5. These proceedings are manifestly unjustified because the Debtor has offered to pay the Petitioner the full amount of the sum demanded by him. 6. It would be plainly wrong in law to allow the Petitioner to succeed in these proceedings because he has refused to accept payment in full of the demand made by him. 7. The debt claimed is genuinely disputed by the Debtor and the Petitioner has not substantiated his claim made against the Debtor. The Debtor has requested disclosure of receipts/invoices in respect of the training provided under contract with the Petitioner so as to establish the factual amount that the Debtor is liable for; however, the Petitioner has refused, without good reason, to disclose the same. 8. In the absence of tangible evidence to prove the validity of the Petitioner’s claim to the sum he demands, it would be inequitable and not in the interests of justice to allow him to succeed in these proceedings. 9. For all the facts set out above, the Petition should be refused. The Debtor has offered to pay the demand in full, notwithstanding his contesting the same, the Petitioner has refused to accept full payment on his demand therefrom and in commencing with these proceedings, the Petitioner is fraudulently misrepresenting his case to this court by falsely claiming that the Debtor will not pay the demand for payment. In Derry v Peek UKHL [1889] 1, Lord Herschell defined fraudulent misrepresentation as a statement which is made either: i) knowing it to be false, ii) without belief in its truth, or iii) recklessly, careless as to whether it be true or false 10. The Debtor relies upon the incontrovertible facts set out herein in opposition to the Bankruptcy Petition. Dated This 2nd day of December 2014 To the court and to the [solicitors for] the petitioner. That should get you started, file it to court tomorrow and serve a copy on the Petitioner tomorrow also. SADIE
  6. The Court of Appeal Handed Down Judgment in Mitchell MP v News Group Newspapers Ltd [2013] EWCA Civ 1537 (27 November 2013) has affirmed that a party’s failure to comply with a rule, practice direction or order will no longer be tolerated, therefore, you should request strike out of claim for non-compliance with court order and refer the lower court judge to this authority which all lower courts are bound by. In the Mitchell MP case, Mitchell’s representatives failed to comply with a CPR rule on the filing of costs budgets, the Appeal court said this failure meant Mitchell was not entitled to any of his £500k incurred in legal costs. The case sends out a clear message to all litigants, represented or not, in the light of Lord Jackson’s reforms of civil justice, parties who fail to comply with a rule, practice direction or order will face severe sanctions. http://www.bailii.org/ew/cases/EWCA/Civ/2013/1537.html Click on link and print off copy for the court. Send the court a letter stating the Claimant’s failure to comply with the order, refer to the Mitchell MP case (include a transcript of the judgement) and ask the court to strike out the claim on that authority under CPR r.3.4(2)© (below) and CPR r.1.1(2)(f) (below) Rule 3.4 Power to strike out a statement of case 3.4 (1) In this rule and rule 3.5, reference to a statement of case includes reference to part of a statement of case. (2) The court may strike out a statement of case if it appears to the court— (a) that the statement of case discloses no reasonable grounds for bringing or defending the claim; (b) that the statement of case is an abuse of the court's process or is otherwise likely to obstruct the just disposal of the proceedings; or © that there has been a failure to comply with a rule, practice direction or court order. Rule 1.1 The overriding objective 1.1 (1) These Rules are a new procedural code with the overriding objective of enabling the court to deal with cases justly and at proportionate cost. (2) Dealing with a case justly and at proportionate cost includes, so far as is practicable— (a) ensuring that the parties are on an equal footing; (b) saving expense; © dealing with the case in ways which are proportionate— (i) to the amount of money involved; (ii) to the importance of the case; (iii) to the complexity of the issues; and (iv) to the financial position of each party; (d) ensuring that it is dealt with expeditiously and fairly; (e) allotting to it an appropriate share of the court's resources, while taking into account the need to allot resources to other cases. (f) enforcing compliance with rules, practice directions and orders. Sadie
  7. http://www.bailii.org/ew/cases/EWCA/Civ/2014/504.html This recent Court of Appeal authority - Figurasin & Anor v Central Capital Ltd [2014] EWCA Civ 504, offers very good news for consumers and can be relied on as regards mis-selling of ppi by the creditors. Although consumers need to be aware that each case turns on its merits You will need to review your own paperwork in respect of the finance advanced by the creditor in order to determine if the illustration for the loan makes any reference to ppi on it and whether the ppi is stated as optional. It is now common knowledge that all consumers were mis-sold ppi on their loans, mortgages etc. etc. and that at the time of taking out the finance, consumers were not made aware that the ppi was optional and it was not made clear to the consumer that the premium paid for the policy, the ppi, was in fact being purchased by them under the Mortgage or Loan being advanced as further non-optional borrowing thereunder to realise and advance the payment thereof to the insurance company. Consumers were not aware that the policy generated the burden of additional borrowing upon them, as often the case is that the ppi has been concealed by being added onto the finance advanced and not set out in any illustration provided showing details of the advance. Consumers were told that the ppi would provide protection and cover repayment of the loan in the event of ill-health etc., however, such statements made by the creditor or his representative were so made by them in the knowledge that they were not true, such act constitutes fraudulent misrepresentation. In Derry v Peek UKHL [1889] 1, Lord Herschell defined fraudulent misrepresentation as a statement which is made either: i) knowing it to be false, ii) without belief in its truth, or iii) recklessly, careless as to whether it be true or false Nearly all creditors pass the ppi claim onto their ‘in-house’ legal department and they respond by stating that the ppi is time barred under the Limitations Act and that this provides them with a complete Defence against the ppi claim and that they consider the matter closed, however, this is simply not true as mis-selling ppi does in fact constitute a fraud on the consumer In nearly all ppi mis-selling cases, the creditor or his representatives’ business conduct constitutes a contravention of the Insurance Conduct of Business Rules (“ICOB”) in particular r.2.2.3(1) in relation to the mis-selling of the policy and as a consequence also gives rise to a cause of action by operation of s.150 (1) of the Financial Services and Markets Act 2000. Further, the relevant part of s.32 of the Limitation Act 1980 provides:- Limitation Act 1980 1980 c. 58 Part II Fraud, concealment and mistake Section 32 “32 Postponement of limitation period in case of fraud, concealment or mistake. (1) Subject to subsections (3) and (4A) below, where in the case of any action for which a period of limitation is prescribed by this Act, either— (a)the action is based upon the fraud of the defendant; or (b)any fact relevant to the plaintiff’s right of action has been deliberately concealed from him by the defendant; or ©the action is for relief from the consequences of a mistake; the period of limitation shall not begin to run until the plaintiff has discovered the fraud, concealment or mistake (as the case may be) or could with reasonable diligence have discovered it. References in this subsection to the defendant include references to the defendant’s agent and to any person through whom the defendant claims and his agent”. Sadie
  8. Hello again Toots You do not need to name your creditor(s) as excluded persons under the trust, because the trust falls outside of your Estate and the legal rights of the beneficiaries thereunder cannot be infringed by any means. In my opinion, there is no requirement for you to make any changes to the trust. Sadie
  9. Creditor cannot force your hand to amend the trust, firstly because the trust falls outside of your Estate and secondly the powers confered under the trust to make any amendments are confered on trustees, thirdly the irreducible core concept of the trust cannot be interfered with/violated by your creditor. Sadie
  10. Hello Toots According to Hayton & Mitchell: Commentary and Cases on the Law of Trusts and Equitable Remedies Thirteenth Edition, the interests of the beneficiaries are paramount and the irreducible core content of the trust concept consists of a duty of the trustee to act for the beneficiaries’ interest, without this, a trust would not exist at all. Ownership of trust property is vested in the trustees (or their nominees, although the trustees technically then own an interest in the property owned by the nominees), to be managed and dealt with wholly for the benefit of the beneficiaries – Smith v Anderson (1880) 15 Ch.D. 247 Therefore, under the trust instrument, you are holding funds/assets in trust for the beneficiaries only and the trust falls outside of your Estate for IHT/Probate purposes and as such, no creditor can make any claim against the trust property. You can relax on this issue now with peace of mind in the knowledge that your children will receive the whole benefit of the funds/assets due and owed to them in law under the trust created by you. The above matters together with Steampower’s posts here should enable you to concentrate on the other “yukky” matters. I wish you a Merry Christmas & a Happy New Year. Sadie
  11. A bare trust is one where the person who benefits from it (referred to as the beneficiary) has an immediate and absolute right to the assets that are transferred to the trust and any income generated by them. The assets transferred into a bare trust are known as “trust property” or the “trust fund”. The trust fund is held in the name of the trustee, who may (but doesn’t have to) be the person who sets the bare trust up. Usually, there are two trustees involved; often the person setting up the trust and one other. A person setting up a bare trust can be certain that the assets they set aside for the beneficiary will go to that person because once the trust has been created, the beneficiary cannot be changed. As the beneficiary has an immediate and absolute right to the trust fund, the trustees have no discretion over the trust fund and must simply follow the (lawful) instructions of the beneficiary in relation to it. The beneficiary can therefore instruct the trustees to transfer the trust fund into his name at any time. Until then however, the trust fund will remain in the name of the trustees. On the death of the beneficiary, the trust fund will form part of his estate and will be distributed according to the terms of his will, or by the laws of intestacy if there is no will. A bare trust is usually evidenced by a trust deed which will set out the parties involved (ie. the person setting the trust up, the trustees and the beneficiary) and what assets are being transferred into it. The trust deed is signed by the person setting the trust up and the trustees, but not by the beneficiary. Sadie
  12. if insurance company try to talk you out of it or mess you around by delay tactics, simply terminate revocable trust and set up new irrevocable trust for your children elsewhere. sadie
  13. Contact the insurance company and inform them of your wish to change the trust to an irrevocable trust and request they send you the necessary paperwork/forms without delay in order to make this alteration. Sadie
  14. The key difference between a revocable trust and an irrevocable trust is that an irrevocable trust cannot be modified or terminated without permission of the beneficiary, whereas, a revocable trust can be modified or terminated by the settlor. Once the grantor transfers the assets into the irrevocable trust, he or she removes all rights of ownership to the trust and assets, therefore, creditors cannot liquidate assets held in irrevocable trust as they are not legally owned by debtor. You have the power and entitlement to alter the revocable trust, so simply change it to an irrevocable trust with your children named as trustees & beneficiaries of it, this type of trust will fall outside your Estate assets for IHT/probate purposes. Sadie
  15. In relation to the Claimant filing & serving a 2nd & late WS, you are entitled to object to this type of tactic being used by him so late in the day and especially if the court order directed that WSs be exchanged simultaneously and request that this new late WS be disallowed as he must obtain permission from the court (see last para below). See commentary below on this point of law reproduced from:- The White book vol.1 (in particular to your case posted here see para.2 & last para) Amplification of evidence (r.32.5(3) and (4)) 32.5.2 Former RSC Ord.38 r.2A(7) and CCR Ord.20 r.12A(7) restricted the evidence which could be adduced from a party other than that disclosed in their witness statement. Paragraphs (3) and (4) adopt and implement generally the Chancery approach to what was called "supplementary examination in chief". For explanation, see Interim Report, pp.177–178. Obvious circumstances in which witnesses may wish to amplify their witness statement and give evidence as to new matters are where events occur, or matters are discovered, after their statements were served, or where responses to matters dealt with in witness statements of witnesses of other parties are required. If amplification of witness statements at trial is too strictly limited there is a risk that statements will become over-elaborate and that costs of the preparation will be accordingly increased. If, on the other hand, amplification is too readily allowed there is a risk that statements will fail to deal with important issues. Where a party's witness is allowed to amplify, prejudice to the opponent should not be regarded routinely as remediable simply by an order for costs. A late, unjustified change of tack may be regarded as an injustice to the opponent which, in the light of the overriding objective (r.1.1) should not be permitted (Final Report, p.129). See also Mander v Evans [2001] 1 W.L.R. 2378 (Ferris J.) (judge not willing to allow party to elaborate in evidence-in-chief on witness statement to remedy deficiencies, but agreeing to try question of law involved as a preliminary issue, thereby not putting party to trouble and expense of preparing supplemental witness statement). In the Admiralty and Commercial Courts Guide it is said that a "supplemental witness statement" should normally be served where the witness proposes materially to add to, alter, correct or retract from what is in their original witness statement (ibid. Section H, para.H1.6, see Vol.2, para.2A–103). Permission will be required for the service of a supplemental witness statement. The guidance formerly given in the Chancery Guide as to supplemental witness statements has been deleted. In some particular procedural contexts, quite prescriptive requirements concerning the filing and exchange of written evidence are to be found, together with provisions expressly permitting the filing of a further witness statement (or affidavit) supplementing previous statements; e.g. Practice Direction 52D (Statutory appeals and appeals subject to special provision) para.26.1(9) (Applications for permission to appeal under the Town and Country Planning Act 1990 s.289 etc). Sadie
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