Court claim from Lloyds TSB - Advice needed please.

[supasnooper]

Sorry to have read this after the efforts you have put in.

 

As Andy has advised, get a redetermination order letter to the Courts.

 

And good luck for the future with the best seller.

[banker_rhymes_with]

Hello Joan!

 

If it were me, I'd Appeal.

 

This is yet another example of the Litigant in Person being at a severe disadvantage compared to a bank who can afford to instruct Counsel.

 

You did well, but the institutional odds were heavily stacked against you simply because you were not represented by a professional Barrister.

 

All of your points about the crabby copy agreement were, and remain, valid.

 

The cr*p about: this was standard industry practice and was accepted as such was just offensive.

 

This was just another example of how the banks can force the Court to accept 3rd rate evidence just because they have paid for a Barrister to make this rubbish sound 1st rate (backed up by a tame banker willing to swear himself senseless to convince the Judge that their evidence would've been perfect had they had the original copies of it).

 

This is a complete disgrace.

 

I would Appeal, but an Appeal would mean going through this all again. However, until more people challenge such Judgments, the situation will get worse and worse each time the banks get away with this.

 

However, one strong Appeal could turn the tables on them, as it could potentially set a precedent that will stop such nonsense. For such an Appeal to stand any chance, the Appellant must secure the services of a highly competent Barrister to handle it, as I think you will all now agree.

 

The Appellant must also be one mad, bad and determined b*gger not in the slightest bit phased about taking these bankers on.

 

 

Cheers,

BRW

[fedupwithdebt2009]

Hi just been reading through this and am really sorry that you lost. I feel impending doom for my own fight but I must be strong no matter what. I hope your both ok, you should be proud of standing up to these "people", going to court is no easy thing, and think of all those who dont stand up to them!!

 

Take care

 

fedup

[shakespeare62]

I agree with BRW.. Joan is obviously out of funds. Is there any chance of a Pro Bono Appeal here for Joan ? In view of the 'travesty of justice' that has apparently taken place ....?

 

Remember Penelope Wilson won on appeal.

 

The only sanction against such judgements - is to Appeal.

 

• there was no audit trail regarding document authenticity,
  

 

• there was no forewarning of the intention to introduce Heresay Evidence,
  

 

• There was a breach of Civil Procedure Rules which require the original document to be produced in Court.
  

Edited April 15, 2009 by shakespeare62

[underdog13]

I agree with BRW.. Joan is obviously out of funds. Is there any chance of a Pro Bono Appeal here for Joan ? In view of the 'travesty of justice' that has apparently taken place ....?

 

Remember Wilson won on appeal.

 

Good point!

[underdog13]

With regards to the terms that banks swear were on the original agreement (and we are certain they weren't), couldn't the print company be called as a witness?

 

The banks don't print these applications up themselves, they would use a professional print company - whose files would show conclusively and incontravertabley what exactly was on the original?!

[underdog13]

Of course if the print company could prove that the terms were not on the original document, and the bank had sworn they were - wouldn't that make them guilty of fraud?

 

Now that would be an appeal case I'd pay money to watch;)

[millymollymoo]

Hiya both

 

i do hope that book is a best seller for you that would be good

 

a learning curve for all of us and im so sorry this was the final outcome

 

best to have fought and lost then never to have fought at all, i like that,,,,and above all your own integrity and belief was never sold that truely is inspiring

 

good luck and above all remain positive in your lives

 

laters angel x

 

 

 

I just have to reply to this. Angel you are such a sweetie, wherever you go on anyones thread despite your owm problem you lift everyone up. You are a lil treasure XXXX

 

Milly XX

[shakespeare62]

There is a link below to the Bar PRO BONO unit - Joan might want to contact them / investigate ASAP :-

 

Criteria

 

If not there may be others. I imagine supplying them with a link to this thread, would help, as well as the key points regarding the Claimants failure to provide audit trails on document authenticity etc. / Notice of Assignment .....

 

I believe you have 21 days to Appeal

 

Here's another link (for more try a google search on 'pro bono' - UK results only)

 

http://www.simmons-simmons.com/index.cfm?fuseaction=about_us.select_left&page=647

[citizenB]

Joan, I am so sorry to hear this. {{}}

[joan_of_arc]

Bad luck and bad news all round.

 

This bit strikes me as being of interest:

 

Should this be acceptable? Any 'normal' business has to keep important documentation for, what is it, six years? So surely for any account less than six years old the creditor must be able to produce the original application / agreement? IMHO it beggars belief that such an important document can be destroyed on a whim and for the courts to uphold the right to do this?

 

Unfortunately, Joan's account was from 1998.

[r&b]

sorry for the outcome..i think the 6 years is from cessation of contract if my memory isnt playing games.

[joan_of_arc]

I'll come back later but, just before I go off on my bike:

 

CPR PD 16 states that the original "should" be produced in court, not that it 'must' or 'shall'; crucial difference.

 

If it stated 'must', then it would contradict the Civil Evidence Act which allows for the submission of a copy of a document as evidence, where the original cannot be produced, provided the court is satisfied as to its authenticity. This applies no matter how many remove copies are made. In this case, the bank's officer swearing under oath to this end was enough for the judge.

 

As for disputing the agreement itself, the judge himself, in the trial, directed Joan's attention to the name, address and other details, including the signature, and at each, asked her "is that your name..." etc. Because cilvil trials allow for judges to make 'balance of probability' decisions, rather than 'beyond reasonable doubt', as in criminal trials, he then declared that 'on balance of probability', the copy was of the front of Joan's agreement. That merely left the copy of the 'rear' containing the T&C, to be determined, as to whether it was the actual rear and whether it contained all that it should.

 

Because the bank could show that all their credit card applications have the same back page, and that this standard document does in fact meet requirements, he deemed it irrelevant that the actual copy submitted was illegible. If the front had been illegible too, particularly the handwritten parts, he did point out that the case may well have been different.

 

To be fair to the judge, he did state that, if they had not been able to produce the original or a copy of it, then we would have won. Similarly, if the documents produced could be demonstrably shown NOT to contain the prescribed terms, we would have won as well. In this context, the illegibility of the back page worked against us as well as them.

 

The issue of verifiable parentage for the copies seemed not to matter, provided the bank's officer was prepared to swear that the copies were true, and that the procedure for copying, destruction and retrieval were industry standard.

 

We can't afford an appeal. Full stop. And to be honest, brave though Joan was and no matter how hard she fought, I doubt she'd be prepared to go through it again unless a barrister were doing the talking. A L.I.P. has to have a better case than ours, I think, to meet a barrister head on in an open-court trial. Small Claims may be different however, I'm not sure.

 

We're both still grateful for all the help we've had off the CAG members, and we both have other battles to fight too, so the lessons learned here are valuable ones for us both. Fortunately, I hope, most if not all of those are with DCAs, who are less determined, less rich and less wel armoured than Big Banks.

Edited April 16, 2009 by joan_of_arc

[atwozee]

Sorry to hear the judgement went against you.

Wasn’t there an issue with the default notice also?

[joan_of_arc]

Hi, 'Mr Joan' here again. Well, we tried to argue that, as the T&C were illegible, the part of them that the DN referred to was not identifiable, rendering the DN void. The judge was having none of it and in his judgement, didn't even refer to it.

[atwozee]

Just a small point for you to check regarding charging orders – on the current t&c’s for my LTSB card there is a term that states:

This agreement is unsecured regardless of the terms of any security charge you may have given, or may in the future give, to us in relation to other borrowings.

If you have a similar term written into your t&c’s then perhaps you could argue that a charging order (if they applied for one) would be a breach of those terms – just a thought.

[citizenB]

sorry for the outcome..i think the 6 years is from cessation of contract if my memory isnt playing games.

 

Your memory isnt playing games. Statutory documents, which an agreement is .. should be retained for 6 years AFTER the agreement ends.

[citizenB]

Just a small point for you to check regarding charging orders – on the current t&c’s for my LTSB card there is a term that states:

 

This agreement is unsecured regardless of the terms of any security charge you may have given, or may in the future give, to us in relation to other borrowings.

 

If you have a similar term written into your t&c’s then perhaps you could argue that a charging order (if they applied for one) would be a breach of those terms – just a thought.

 

 

Very interesting, I will have a look to see if that appears on mine as well, thanks atwozee:)

[Number6]

Your memory isnt playing games. Statutory documents, which an agreement is .. should be retained for 6 years AFTER the agreement ends.

 

What does this mean in practice? Say a lender is suing for a sub-6 year old debt and they claim they cannot produce the original agreement?

 

Pete

[citizenB]

What does this mean in practice? Say a lender is suing for a sub-6 year old debt and they claim they cannot produce the original agreement?

 

Pete

 

Pete, have a read of this thread and you will see what it means

 

http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/93884-wescot-rbofs-oh-dear.html

 

HTH

[joan_of_arc]

Your memory isnt playing games. Statutory documents, which an agreement is .. should be retained for 6 years AFTER the agreement ends.

 

Interesting. Where is that stipulated?

[citizenB]

Here you go Joan... I lifted this information from one of pt2537's defences.

 

Interesting. Where is that stipulated?

 

 

“Document Retention

 

According to sections 221 and 222 of the Companies Act 1985, a public company is required to maintain records for a period of six years (section 222(5)(b).

 

As a loan agreement is active until the agreement is terminated, I would suggest that all the payment records (and other documents making up the file - including the agreement/application etc) would be "live" until the account is paid, or terminated - thus, the full file should be retained for at least six years after that.

 

This interpretation fits in with Inland Revenue legislation that requires prime documents to be retained for a period of six years - AFTER THE END OF THE RELEVANT ACCOUNTING PERIOD. That would mean some files need to be retained for up to seven years. The relevant legislation is found in Schedule 18 of the Finance Act 1998 (paragraph 21) - of particular significance is sub-paragraph (6) which states:

 

"The duty to preserve records under this paragraph includes a duty to preserve all supporting documents relating to the items mentioned in sub-paragraph (5)(a) and (b)."

 

Finally, key documents/application forms etc must be kept until 5 years after that business relationship has ended. This is a requirement of The Money Laundering Regulations 1993, 2003 and 2007. “

[Number6]

Interesting but unclear. The relevant section of the Finance act reads thus:

 

Duty to keep and preserve records

 

 

21 (1) A company which may be required to deliver a company tax return for any period must—

(a) keep such records as may be needed to enable it to deliver a correct and complete return for the period, and

(b) preserve those records in accordance with this paragraph.

(2) The records must be preserved for six years from the end of the period for which the company may be required to deliver a company tax return.

(3) If the company is required to deliver a company tax return by notice given before the end of that six year period, the records must be preserved until any later date on which—

(a) any enquiry into the return is completed, or

(b) if there is no enquiry, the Inland Revenue no longer have power to enquire into the return.

(4) If the company is required to deliver a company tax return by notice given after the end of that six year period and has in its possession at that time any records that may be needed to enable it to deliver a correct and complete return, it is under a duty to preserve those records until the date on which—

(a) any enquiry into the return is completed, or

(b) if there is no enquiry, the Inland Revenue no longer have power to enquire into the return.

(5) The records required to be kept and preserved under this paragraph include records of—

(a) all receipts and expenses in the course of the company’s activities, and the matters in respect of which the receipts and expenses arise, and

(b) in the case of a trade involving dealing in goods, all sales and purchases made in the course of the trade.

(6) The duty to preserve records under this paragraph includes a duty to preserve all supporting documents relating to the items mentioned in sub-paragraph (5)(a) and (b).

“Supporting documents” includes accounts, books, deeds, contracts, vouchers and receipts.

However, the act goes on to say:

 

Preservation of information instead of original records

 

22 (1) The duty under paragraph 21 to preserve records may be satisfied by the preservation of the information contained in them, except in the case of records of the kinds specified in sub-paragraph (3) below.

(2) Where information is so preserved a copy of any document forming part of the records is admissible in evidence in any proceedings before the Commissioners to the same extent as the records themselves.

(3) The records excluded from sub-paragraph (1) are—

(a) any statement in writing such as is mentioned in—

(i) section 234(1) of the Taxes Act 1988 (amount of qualifying distribution and tax credit), or

(ii) section 352(1) of that Act (gross amount, tax deducted and actual amount paid, in certain cases where payments are made under deduction of tax),

provided by the company or person there mentioned whether after the making of a request or otherwise;

(b) any certificate or other record (however described) required by regulations under section 566(1) of the Taxes Act 1988 to be given to a sub-contractor (within the meaning of Chapter IV of Part XIII of that Act) on the making of a payment to which section 559 of that Act applies (deductions on account of tax);

© any record relating to an amount of tax—

(i) paid under the law of a territory outside the United Kingdom, or

(ii) which would have been so payable but for a relief to which section 788(5) of the Taxes Act 1988 applies (relief for promoting development or contemplated by double taxation arrangements).

Contracts are not stated as being excluded from 22(1) so is this a let out for lenders?

 

Pete

[joan_of_arc]

I

We can't afford an appeal. Full stop. And to be honest, brave though Joan was and no matter how hard she fought, I doubt she'd be prepared to go through it again unless a barrister were doing the talking. A L.I.P. has to have a better case than ours, I think, to meet a barrister head on in an open-court trial.

 

Hi Joan here. Thanks everyone for your encouragement and good wishes:) Thank you also for the pms which are much appreciated and which I will answer in full in my next block of social networking time.

 

Mr Joan is right, there is no way I'm going back to court. The main thing that made it all so ghastly was the knowledge that I was completely out of my depth. My job, the area in which I feel confident in my abilities, is being an author, not being a barrister.

 

I don't see it as a case of "us" being "us innocent punters" and "them" being the Scooby Doo baddies in the castle, the judge was very fair and considerate of my position as a LIP, and the barrister was lovely, actually. They were just doing their jobs and they earnt my respect by their conduct rather than their position.

 

And as Mr Joan says, no question of appeal. We lost, it's book material filed away now, nothing more, time to move on to the next challenge in my list, rueful smile.

[citizenB]

I would think then that the following would come into play

 

http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/162535-documents-court-civil-evidence.html

 

hth