Court claim from Lloyds TSB - Advice needed please.

[joan_of_arc]

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

Thanks for this citizenB. Mr Joan is very interested in getting right to the bottom of the situation for future reference and I'm sure will be back on here later to respond. For the time being, if you'll forgive me, I'm still a bit shell-shocked and fragile...

[citizenB]

{{{}}}, I imagine you are well and truly shellshocked. Lets hope between us we can sort something out for you.

[Number6]

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

 

But isn't this exactly what Joan of Arc tried to say to the judge? And it was ignored?

 

Pete

[joan_of_arc]

Correct. Joan did point out that they did not announce their intention to adduce hearsay evidence, as per s2 of the Civil Evidence Act. However, the Judge allowed the evidence, on the basis that the production of copies, and their declaration that the original no longer existed, met this requirement.

 

As for s8 and the authenticity of copy documents, well again, the CEA is very non-specific in this. All it says is that copies (or indeed, copies of copies) are admissible so long as the court is satisfied as to their authenticity. It says nothing about what might constitute proof of authenticity. In fact, i still don't know where the suggested list of proofs, eg.

 

(i) a copy of the procedure(s) used for copying, storing and retrieving documents

(ii) a copy of the relevant log entry showing the time and date of the scan or copy, the name of the member of staff making the copy, the method used for copying, storage and retrieval and time and date of destruction of the original document(s)

(iii) copies of internal and external audit reports covering the entire period from the date of the copy to the present to demonstrate that the procedures have been complied with

(iv) copies of Quality Assurance accreditation certificates covering the entire period from the date of the copy to the present to demonstrate that the procedure(s) and audit process(es) comply with the appropriate quality standards ...

 

which is often quoted, actually comes from. It certainly ain't in the CEA, so I guess it comes from a BS (?).

 

Whatever its origins, the Judge regarded the testimony of the bank's officer, under oath, as sufficient verification, particularly as Joan had already been painted into a corner in terms of pretty much admitting the copy was of her agreement (she couldn't have denied it without lying).

[car2403]

For me at least, the CEA is merely guidance on how the Court should conduct itself with regards evidence produced.

 

Now, should a Defendant throw doubt on the accuracy of the evidence produced, (copies not being true copies, agreements not being as originally agreed to, etc) the Court would be on dodgy ground finding for a Claimant without at least justifying the reason the accuracy queried has been discounted in it's Judgment.

 

This, ultimately, could only mean an Appeal, at additional cost should you get more than one numpty Judge (other Judge's are available!) hearing your case.

[banker_rhymes_with]

Hello Folks!

 

Sadly, the Judiciary and the Court system favours the banks.

 

However, it is important that people do not give in just because the above is true.

 

There is no doubt in my mind that the banks are exploiting the way the system favour them, and are more than happy to rely on copy documents to cover up their many failings.

 

A copy is a copy, so it will always be near impossible to prove conclusively what was, or what was not, present.

 

The banks should have a problem with this. Unfortunately, the Courts can and do let them off the hook on a very regular basis.

 

Every time the banks get away with bringing in a copy, the harder it gets to break this stranglehold that is gradually starting to tighten.

 

Let's go back a few steps...

 

The Consumer Credit Act 1974 made it clear what lenders had to do, and made it clear that the Prescribed Terms were very important. That was because they represent the core cost of the proposed Debt.

 

An Agreement (pre-CCA 2006) just needed to be a piece of paper with the key details, the prescribed terms and a signature box or two. What could be hard about that?

 

Well, the lenders hated this, because they knew the Prescribed Terms were something they would rather people didn't see.

 

So, over the years, they have done their utmost to hide them from sight.

 

You name it, they've done it:

 

(1) They've left them off.

 

(2) They've made them small.

 

(3) They've pushed them to another Document.

 

(4) They've pushed them to the rear of Application Forms.

 

(5) They've buried them in amongst lots of insignificant Terms just to hide them.

 

Likewise, over the years, they have made almost constant changes to both the way Prescribed Terms have been stated, and to the myriad of insignificant other Terms that they have loaded to cover their backsides on almost any issue you can imagine.

 

I have folders full of letters from banks telling me about changes to Card/Loan Terms, confirming the Terms have been constantly and relentlessly changing over the years.

 

It is quite clear the banks did not come up with a single set of Terms in 1974, and then simply copied them again and again to the back of Application Forms.

 

Remember, the banks have also been keen to find ever more clever and productive ways to tout their nasty Cards and Loans, so have produced a myriad of cheap Application Forms and Flyers, many of which looked more like Adverts than Legal Documents.

 

How were these produced?

 

Well, they were all Printed on Commercial Printing Presses...millions and millions of them, in millions of different shapes, colours and styles.

 

Add the banker's desire to hide the Prescribed Terms to the enormous task of producing so many copies in so many styles, and it is inevitable that a significant percentage will be suspect.

 

Just to get an idea from someone's head onto paper can produce mistakes.

 

But once you follow the workflow from an idea to a Commercial Printing Run, and you will find there are dozens of opportunities for errors and omissions to appear. Getting the idea from head to Press is not automatic, and it is not problem free, quite the reverse. This is why Design Firms with a keen attention to detail are highly sought after...not to mention Printing Presses who maintain high standards.

 

When it comes to Design and Printing, the following applies:

 

Your can have any of the following...

 

(A) Fast.

 

(B) Good.

 

(C) Cheap.

 

...but you can only pick two!

 

Straight away, you can see a problem, because banks would always want bulk items at a low cost. Something has to give.

 

On CAG, we have seen Agreements with the Prescribed Terms missing, mistated or added later to make a copy look compliant.

 

In reality, I know of at least one case where the bankers have stated the Prescribed Terms were on the rear of an Application Form, and yet when the Original was finally produced in Court, they were not on the rear as the bank had been claiming.

 

If one such Agreement exists, there will be others. Many others.

 

From my own files, I have at least one Original Credit Card Carrier that has no Terms on it...which blows the Rankine Judgment straight out of the water that the Card Carrier is an Executed Copy of an Agreement.

 

If one such Card Carrier exists, there will be others. Many others. Thousands in fact, as it was Printed on a Press and in bulk.

 

The problem with copy documents is you can't inspect the original. The person presenting the copy should therefore be at a disadvantage.

 

Instead, we have a growing situation where the Courts' are actually putting banks into an advantageous situation because they have a copy and not the real thing.

 

A copy can be whatever a banker wants it to be.

 

Banks know and love this aspect, and are taking advantage of the Courts' absurd flexibility over what should be a very clear issue and weakness.

 

The opportunities for errors when printing documents are legion. The bank can make mistakes, accidental or intentional, the Design Firm can make mistakes, the Printing Press can make mistakes, the bank staff inspecting the completed Press Run can make mistakes. One Press Run can differ to the next if, say, the Press neglected to print anything on the reverse (or were told by the bank not to print something on the reverse for 80% of the Job...so long as they keep a copy of one with the Terms, who will be any the wiser?).

 

In my view, it is therefore wholly unacceptable for the Courts to accept the word of a banker without any supporting evidence to lend weight that what they say was the case, actually was the case.

 

The Litigant in Person (LiP) is at a severe disadvantage, as the Original Agreement would've been returned to the bank, so almost no LiPs will have an Original document.

 

The banks have them all...or should have them all.

 

The only thing a LiP may have is a copy of the Agreement that they made at the time (as I did). But how many people would copy the rear of a document if it was blank? Few would even copy the rear of it even when it did have a sea of tiny terms.

 

It's therefore hard to stand up as a LiP to swear that there was nothing on the back, as almost all of us just do not know.

 

Likewise, it should be hard for a banker to stand up and swear what was on the back, unless they can provide evidence that they kept a complete Audit Log to track the Document all the way from Production, to despatch, to return, to scanning, to destruction and to track the Archive.

 

Given that it is easier to keep the real thing than to destroy it and replace it with a Document Management System, it seems clear enough to me that no banker should be allowed to present a copy unless they can demonstrate that they took care of the copy and can show where it came from. Even then, it is not the original, so should not be given 100% weight as evidence.

 

Sadly, the Courts are all too quick to hear a banker wanting to swear something, and they accept it...without anything of merit to support that oath.

 

This is absurd when you pause to reflect on the catastrophic mess the banks have left this Country in, and the numerous reports of banking errors, lies and downright dishonesty that contributed towards the mess.

 

The point of writing this is to urge people not to give in, keep fighting back, and keep questioning the validity of copy documents presented by banks.

 

Cheers,

BRW

Edited April 16, 2009 by banker_rhymes_with
Can't Spell or Type

[Number6]

Hello Folks!

 

Sadly, the Judiciary and the Court system favours the banks.

 

However, it is important that people do not give in just because the above is true.

 

.........

 

 

BRW

 

I fully agree with you and will not be giving in easily.

 

The question to be asked is how do we, as LiPs go about loosening this strangehold? It's becoming a self fulfilling prophecy - the more times the courts allow lenders to get away with this the stronger the lenders hand collectively becomes until eventually every judge in the land will have allowed this to happen and we'll never, ever get it changed. It will become accepted practice.

 

So, seriously, what do we do?

 

Pete

[banker_rhymes_with]

Hello Pete!

 

So, seriously, what do we do?

 

Firstly, sorry Joan if this is cluttering up your Thread, my Post was to try and help others to see that they must still fight on regardless.

 

What to do is an issue.

 

I think it needs a CAG Thread to discuss it, with the aim to create a short section that can be added to a Defence when faced with a copy Agreement that looks suspect.

 

Obviously the usual CPR PD 16 7.3 and The Civil Evidence Act 1995, but something that goes beyond that to explain why banks cannot simply be allowed to swear something was so, without backing that oath up.

 

I'll give that some thought, and may start a Thread.

 

Cheers,

BRW

[underdog13]

Hello Pete!

 

 

 

Firstly, sorry Joan if this is cluttering up your Thread, my Post was to try and help others to see that they must still fight on regardless.

 

What to do is an issue.

 

I think it needs a CAG Thread to discuss it, with the aim to create a short section that can be added to a Defence when faced with a copy Agreement that looks suspect.

 

Obviously the usual CPR PD 16 7.3 and The Civil Evidence Act 1995, but something that goes beyond that to explain why banks cannot simply be allowed to swear something was so, without backing that oath up.

 

I'll give that some thought, and may start a Thread.

 

Cheers,

BRW

 

I'd be very interested to see your thread BRW, so please post a link on here when it's set up.

 

Could the original print company be called as a witness in cases such as these? If they have records from the time, that would prove what exactly was on the rear of the original application.

 

Sorry for the hi-jack Joan - wishing you all the best for the future; keep us posted about that book, please!

[banker_rhymes_with]

Hello Underdog13!

 

Could the original print company be called as a witness in cases such as these? If they have records from the time, that would prove what exactly was on the rear of the original application.

To be honest, it would not prove anything, and the banks won't ever produce this evidence unless it was in their own favour.

 

I suspect they do have some originals, but prefer to rely on copies otherwise if they produced some originals, Judges might get used to that and ask for them every time!

 

But a Printing Press can only show the Physical Evidence of the Job, such as the Artwork Brief, any Artwork Hard Copies, the Films and the Metal Printing Plates used to do the Press Run. Many Presses are not that organised and tend to concentrate on keeping the Presses rolling, not worrying about Jobs they did in 1998. Chances are they binned anything after a few years to make space, and any Accounting Records after 6 Years.

 

In any event, that won't say for sure if they actually printed both sides! Only what rolled off the Press will confirm that and, even then, it would have to be the very bit that they sent you, not an example from, say, Printing Batch 87 from a run of 1,000 batches when yours was, say, Batch 847.

 

Who knows if Batch 847 had both sides Printed, who knows if the Bank told the Press to print 10 sheets with Terms on the back, and the rest with no Terms.

 

The banks are holding all the Aces, as they will usually end up with any Original Agreements that went ahead, so can destroy the Originals that don't happen to be compliant...and pluck a copy for the Court and say: "Oh yes, of course this is what would've been on the back, we're a bank and can do no wrong."

 

The fact that one bank at the very least has been caught out telling fibs, and we have seen Agreements with useless Prescribed Terms and/or no Prescribed Terms confirms the banks cannot say this never happens.

 

Even if someone finds a blank Agreement with no Terms on the bank, the bankers will just say that must be a mistake, we'd never send them out like that. They win every time. Only the Original would show what was really there, but the banks seem amazingly reluctant to produce them in Court.

 

Fair enough, if they want to produce copies, then at the very least, they should support them with independently audited Document Management Systems, with lots of Signatures tracking the whole process from from to back, something like this:

 

Document Management, Document Imaging, Document Scanning | Archival

 

The easy solution is to say they have destroyed the lot, as that's what banks do. Much better for them to say that, than to start pulling out the real things only for everyone to see that many are not quite what they claim.

 

Cheers,

BRW

[millymollymoo]

Hi Banker so basically umless we have the original we are stuffed as it seems or a confession from someone in the bank that nowt is on the reverse.

 

Milly X

[underdog13]

Hi BRW,

 

thanks for your reply.

 

I was hoping that in this digitalised age files might have been on the print/design company's computers and that said company could be called as a witness in the case without the bank being able to nobble them.

 

I guess our only hope (and it's a slim one) is to undermine the bank employee in cross questioning; how can they swear what was on the back - did they witness the agreement being stored to microfiche personally? How many copies do they make a day 50, 60 ,70? What was so special about my agreement that it stuck in your memory for 10 years, etc, etc.

[Mightyacorn]

Joan asked if I could speak on her behalf (I'm far more used to speaking on matters of law in formal circumstances) and the opposition had no objection, but the Judge said he'd prefer it if she'd conduct her own defence, and I could interject where appropriate.

 

 

I don't follow this bit, is there any reason why Joan's OH couldn't represent her? What is the Procedure regarding this? The reason I ask is that my OH half has couple of hearings coming up with our old friends CL Finance and Howard Cohen, and there is no way she can represent herself, and no way we can afford a legal representative. So it was my intention to speak for her, is this allowed?

[Number6]

I don't follow this bit, is there any reason why Joan's OH couldn't represent her? What is the Procedure regarding this? The reason I ask is that my OH half has couple of hearings coming up with our old friends CL Finance and Howard Cohen, and there is no way she can represent herself, and no way we can afford a legal representative. So it was my intention to speak for her, is this allowed?

 

This is covered in CPR 27 para 3:

 

Representation at a Hearing

 

3.1

 

In this paragraph:

(1) a lawyer means a barrister, a solicitor or a legal executive employed by a solicitor, and

 

(2) a lay representative means any other person.

 

 

3.2

 

(1) A party may present his own case at a hearing or a lawyer or lay representative may present it for him.

 

(2) The Lay Representatives (Right of Audience) Order 1999 provides that a lay representative may not exercise any right of audience:–

(a) where his client does not attend the hearing;

 

(b) at any stage after judgment; or

 

© on any appeal brought against any decision made by the district judge in the proceedings.

 

 

(3) However the court, exercising its general discretion to hear anybody, may hear a lay representative even in circumstances excluded by the Order.

 

(4) Any of its officers or employees may represent a corporate party.

 

 

 

 

Perhaps one has to notify the court in advance of your intention to use a lay representative?

 

Pete

[joan_of_arc]

Hi. Joan's OH here. We did press the point about the word of the bank employee being in a position to verify the authenticity of the document. We asked if he was present when the original was copied (NO); if he saw the original at any time (NO). But the judge said that it was enough that a trusted senior officer of the bank was prepared to swear under oath that the copy was of the original, and that the terms and conditions they produced (from that period) were identical to what would have been on the back of her form.

 

This was despite our showing that the copy of the rear of the form was in fact the rear of someone else's form, not of Joan's form (based on dimensions and edge details, tears etc)! The judge and Claimant seemed to accept that this didn't matter, because the two would have been the same anyway.

 

It all comes down to this 'balance of probability' thing. In civil cases, the judge can base his decision on what he thinks was 'probably' the case, ie. the Claimant does not have to conclusively prove their case, as would a prosecutor in a criminal trial.

 

As for my representing Joan, this seemed to be up to the judge. We were told if he agreed then I could do the talking. As it was, he said he 'preferred it' if Joan spoke on her own behalf, as this was the normal way of things, but that I could speak as and when, which I did. The only part I couldn't contribute to was the cross-examination, which was a shame.

[Mightyacorn]

This is covered in CPR 27 para 3:

 

 

 

Perhaps one has to notify the court in advance of your intention to use a lay representative?

 

Pete

 

Thanks No6, But there is nowhere it says "At the discretion of the Judge" or "with prior notice" it would appear to me that Joan of Arc and her other half were well and truly shafted before they went in. It is a complete traversty of Justice if, because you're a big company with lots of money, and can afford to pay loads of money out for barristers and the like, you can take on a complete and utter novice, who can't even get another novice to speak for them. The scales of justice are well and truly tilted.

 

I notice that the defendant is not allowed to have a lay person represent them after Judgment or at any appeal, in other words, you can't afford a Barrister so hard luck mate.

[banker_rhymes_with]

Hello Mr-JOA!

 

It all comes down to this 'balance of probability' thing. In civil cases, the judge can base his decision on what he thinks was 'probably' the case, ie. the Claimant does not have to conclusively prove their case, as would a prosecutor in a criminal trial.

That is the problem, but therein may lie the solution if we can craft a strategy to counter that. The key is to throw in doubt to upset the balance of probabilities.

 

I regret I don't have that solution yet, but that doesn't mean one cannot be found.

 

I think the key will be to find examples where banks have claimed something that was later found to be something else.

 

Mention the work that has gone into modern ISO rated Document Management Systems that have been set-up with the specific intention of allowing Electronic Copies to be legally admissible in Court. Why do responsible business go to all of this trouble? Because they know how vital it is to be able to prove a copy...unlike banks!

 

IOW, show what a modern system now has to achieve, and show what responsible groups are doing to ensure their Electronic Archives are admissible as valid Hearsay Evidence and fully compliant with The Civil Evidence Act 1995.

 

The overall aim being to show a Judge what others are doing to ensure their Hearsay Evidence is backed up by detailed and fully audited logs.

 

Then show the Judge how bankers can and do get it wrong, despite claiming something was watertight until the real evidence emerged.

 

Then compare all of that with a bankers sworn statement that a crabby copy of a set of terms copied god knows when, by god knows who, from god knows which original document is what would've been on the back of the crabby copy of an Application Form (copied god knows when, by god knows who!).

 

To ram the point home, a quick summary of the printing process would be useful, to show that it is not accurate and relies heavily on proof-reading and audit logs if a Print is to come out as required. Just because one example with Terms on the back exists, does not mean they were all like that. It is highly unlikely they were all printed at once, because the numbers they printed are so large.

 

For example, I have detailed experience of a design workflow that is fully audited. Any work that has been produced going back 15+ years is fully logged, and every step has been signed-off. Every brief, every amendment, every transmission via ISDN, FTP or email, everything, has been carefully logged and everything is backed up by signatures linked to Job Numbers and Revision Numbers.

 

This protects the business from any later accusation that an error that made it to Press was their fault. Clients and Printing Presses can and do make huge mistakes, and they will soon point fingers back if they can escape a wasted printing cost that could easily run into hundreds of thousands of pounds. For example, if a Press ran a job based on an earlier design by accident, or one of their staff made an unauthorised amendment without telling anyone, or their Print Production Staff only printed one side by accident etc.

 

By comparison, what have the banks got?

 

A crabby copy and a tame banker who is happy to stand up and say, under oath: "yep, that's what would've been there, I swear it."

 

Judges will accept that unless doubt can be thrown in. The key is to show that major doubts can be thrown into the mix.

 

I'm only sorry this wasn't discussed before Joan went into Court. I do appreciate it is now a fat lot of use!

 

Cheers,

BRW

[Number6]

Thanks No6, But there is nowhere it says "At the discretion of the Judge" or "with prior notice" it would appear to me that Joan of Arc and her other half were well and truly shafted before they went in. It is a complete traversty of Justice if, because you're a big company with lots of money, and can afford to pay loads of money out for barristers and the like, you can take on a complete and utter novice, who can't even get another novice to speak for them. The scales of justice are well and truly tilted.

 

I notice that the defendant is not allowed to have a lay person represent them after Judgment or at any appeal, in other words, you can't afford a Barrister so hard luck mate.

 

Agreed.

 

But the Lay Representatives (Rights of Audience) Order 1999 says:

 

3.—(1) Subject to paragraph (2), any person may exercise rights of audience in

proceedings dealt with as a small claim in accordance with rules of court.

(2) A lay representative may not exercise any right of audience:–

(a) where his client does not attend the hearing;

(b) at any stage after judgment; or

© on any appeal brought against any decision made by the district judge in the

proceedings.

 

So it only applies in a Small Claim case, Joan's was Fast Track so this order wouldn't apply. It seems all wrong doesn't it?

 

Pete

[cymruambyth]

I agree that it is a shame that this was not discussed before joan went to court. However (and I ask from a completely ignorant lay person) if joan decides o appeal, could arguments along these lines be incorporated into her defence re flawed premises in the orignal judgement? Or can other judgements where this behaviour was not allowed be brought in as precedent?

[joan_of_arc]

She won't appeal. She/we can't afford it. We are as skint as a skint thing on the planet skint.

[joan_of_arc]

What she will do is apply to the court for a Determination Order, in a sum she can afford. They will come after us for the lot, but she can only pay what she can afford and, given that she is self-employed and a struggling author (at the moment), that ain't a lot.

As far as I know, LTSB can only chase after her money, not mine, because the debt is hers alone, from way before we even met. If she makes a reasonable offer to pay, she may end up paying a tenner a month until she dies, but that would be a sort of victory, imho, and would presubably, if it was a court order, prevent them from getting a charge on our house.

[cymruambyth]

Hi I'm sorry she can't appeal because it all seems so unfair. However, with all the energy you have both put into this you must be feeling drained (both financially and emotionally). I was wishing her every success with her book, but I take that back and hope that the success doesn't come for a little while.

Good luck to you both and thank you for keeping us all informed of your battle.

[citizenB]

What she will do is apply to the court for a Determination Order, in a sum she can afford. They will come after us for the lot, but she can only pay what she can afford and, given that she is self-employed and a struggling author (at the moment), that ain't a lot.

As far as I know, LTSB can only chase after her money, not mine, because the debt is hers alone, from way before we even met. If she makes a reasonable offer to pay, she may end up paying a tenner a month until she dies, but that would be a sort of victory, imho, and would presubably, if it was a court order, prevent them from getting a charge on our house.

 

Yes, this is true, LTSB can only chase Joan for money not you and I think you can object to them attempting to put a charge on the house. One of the legal minds will know what to do there.

[Mightyacorn]

Yes, this is true, LTSB can only chase Joan for money not you and I think you can object to them attempting to put a charge on the house. One of the legal minds will know what to do there.

 

Not necessarily so, we have a legal charge on our property, I objected and the Judge said that the charge would only apply to my wife's half of the property !!! which is as good as taking my money as well as I see it.

[questioning]

Not necessarily so, we have a legal charge on our property, I objected and the Judge said that the charge would only apply to my wife's half of the property !!! which is as good as taking my money as well as I see it.

 

But there would need to be a default on the CCJ for a charging order to be granted for the house. Please someone correct me if I'm wrong.

Joan has not defaulted on the CCJ.

All she has to do is apply for redetermination to allow her to pay at a rate that she can afford, The court will only set a payment that she can afford and yes it is true, it is nothing to do with Mr joan at all, even if she had the debt last week, we are not responsible for our spouses debts.