Repo order help with defence needed.

[cosalt]

sorry cosalt but you may have misunderstood what I advised, which is understandable with all your going through. I said that you should pm PT your link as he does not give advice by pm. I can understand that PT must be very busy, but just trying to do anything that helps, and a few telling offs along the way is OK, I mean just look at LP and me

 

sorry if I did not make myself clearer, so lets get moving on what next to do which is more important.

 

Hi frettful,

 

its no problem, actually I did only PM him with a link asking for his input.

 

Any thoughts on my post above ?

[frettful38]

Hi cosalt in post 367 you seem to have everything you need? To be honest, I ain't got that much experience when it come to appeals as I was the claimant in my claim, however if you read the appeal form does it not give you a step by step guide on what to do.

 

Also if you submit too much it won't harm your case. If it was me then I would write on the N460 the judges reasons for not allowing the appeal, regardless of what the court says as this appeal is so important its best not to leave anything out.

 

best be safe than sorry, and your skeleton argument should be precise and to the point in chronological order.

 

Sorry I wish I could be of more help, but hang in there I am sure that I will be corrected if I am wrong.

Edited May 28, 2010 by frettful38

[frettful38]

Hope this is of some help cosalt,

 

Judicial Studies Board Website

 

5.7 Appeals

 

The procedure in relation to appeals is governed, principally, by Part 52 and its accompanying Practice Direction.

 

Paragraph 2A.1 of the Practice Direction to Part 52 provides that an appeal from a decision of a district judge in a case allocated to the small claims track is made to a circuit judge whilst that of a circuit judge is made to a High Court judge.

 

Rule 52.11 provides that an appeal may be allowed where the decision of the lower court was wrong or was unjust because of a serious procedural or other irregularity in the proceedings in the lower court.

 

An appellant or respondent requires permission to appeal and an application for such permission may be made either to the lower court at the hearing at which the decision to be appealed was made or to the appeal court in an appeal notice. You should only give permission to appeal where you consider the appeal would have a real prospect of success or where there is some other compelling reason why the appeal should be heard.

The provisions as to permission to appeal are to be found in Rule 52.3.

 

The documents to be filed with the notice of appeal, where the appeal relates to a claim allocated to the small claims track, are set out in Paragraph 5.8A of the Practice Direction to Part 52.

 

At the conclusion of a small claims hearing, you should explain to the parties, particularly if they are unrepresented, the grounds for an appeal against your decision and the requirement for permission to appeal. Should either party apply for permission to appeal, you should record your decision and the reasons for allowing or refusing permission on Form N460.

 

Note, also, that Paragraph 8 of the Practice Direction to Part 27 provides that where the court dealt with the claim, to which the appellant is a party, under Rule 27.10 without a hearing or in his absence because he gave notice under Rule 27.9 requesting the court to decide the claim in his absence, the application for permission to appeal must be made to the appeal court.

 

Paragraph 8 also provides that where an appeal is allowed, the appeal court will, if possible, dispose of the case at the same time without referring the claim to the lower court or ordering a new hearing and that it may do so without hearing further evidence.

 

PRACTICE DIRECTION 52 – APPEALS - Ministry of Justice

[cosalt]

Hi cosalt in post 367 you seem to have everything you need? To be honest, I ain't got that much experience when it come to appeals as I was the claimant in my claim, however if you read the appeal form does it not give you a step by step guide on what to do.

 

Also if you submit too much it won't harm your case. If it was me then I would write on the N460 the judges reasons for not allowing the appeal, regardless of what the court says as this appeal is so important its best not to leave anything out.

 

best be safe than sorry, and your skeleton argument should be precise and to the point in chronological order.

 

Sorry I wish I could be of more help, but hang in there I am sure that I will be corrected if I am wrong.

 

Problem is I dont know why he wont allow an appeal, there is no reason on the order and the court wont help me.

 

Presumably my skeleton argument only needs to say that he made the wrong decision because a faulty dn means and subsequent termination means they have unlawfully terminated and have no rights, then quote sections as vint has posted above as a back up.

[frettful38]

Problem is I dont know why he wont allow an appeal, there is no reason on the order and the court wont help me.

 

Presumably my skeleton argument only needs to say that he made the wrong decision because a faulty dn means and subsequent termination means they have unlawfully terminated and have no rights, then quote sections as vint has posted above as a back up.

 

Well cosalt I don't know if judges do give reasons for not allowing an appeal. In my own case the defendant was not allowed to appeal, yet he still filled an appeal and it went to a circuit judge and that appeal was not allowed either.

 

The reason why both appeals were not allowed was I was right and the defendant was wrong and there was no doubt about that at all.

 

Your situation is exactly the same but vica versa, you on the other hand are right and the claimant is wrong.

 

Was it worsteve who went through an appeal, I am not sure but he won his case too, I will try and find out. Just write down the truth as to what has happened, if the judge has not given his reasons and the court are acting like numpties then just say that [leave the numpty part out of course]

 

Sound OK or not?

[Lord_Alcohol]

albiet in good grace i think you are being wrongly advised

 

a judgement made by a judge who is alleged to have misdirected himself in reaching that judgement is not a matter for a set aside application- it is a matter of an appeal to a higher court and you have/are wasting time messing about with set aside applications

 

you need to get on with the appeal process

 

Set aside is available where an error has been made in a judgement. There is only an allegation of misdirection - this is currently an interpretation of events but is being used here to rule out set aside.

 

I think that misdirection is not the right term to use - the judge didn't tell himself (as opposed to a jury) to misunderstand cosalt's qualified admission or to ignore the two DNs. I think he just misunderstood cosalt's admission and his failure to look at the documentation was a straightforward error. He was also helped in his (wrong) decision by cosalt being a LIP who partially admitted the debt.

 

We still do not know why set aside is not being allowed. The court should provide proper reasons. They have indicated that it is because the judgement was non-monetary, but this makes little sense in view of the various non-monetary set asides that can be granted. My view is that it is the odd summary order that is ruling it out, although without feedback from the court manager we do not know for sure.

 

cosalt has another potential claim to deal with - this time a money claim which the judge has allowed for. An appeal made on the repo order may not (I think) rule out issue of a separate claim for unpaid amounts. Given the time needed to arrange an appeal (obtaining a transcript, for example, can take ages) and the prospect of a new money claim, I would have thought it prudent to get a very clear view of why set aside is being refused and to discuss this with the court manager who may, in view of Vint's decisive argument, prefer to allow set aside and keep the whole affair in-house.

 

Another option for cosalt is to give up the car and allow repossession, but defend a money claim - a defence could include a counterclaim based on breach of s87(1)© (repo) that the defective DN precluded, and suing for breach of contract (UR). Of course, the risk is that you get the same judge, but with a strong defence that should be irrelevant.

 

These are just my opinions. If not very attractive, then appeal - plenty of excellent advice and support here and, for what it's worth, you've got my wholehearted support too even though I know nothing about the appeal process.

 

LA

[cosalt]

I still think the claimants persued this under the impression that the vehicle value would offset any monies owed so it was an easy way of getting the money they know I cant afford to pay.

 

To be clear the vehicle is actually a commercial vehicle that I bought to use in my business, the vehicle has not been used for nearly two years due to a change in circumstances although payments were kept up for as long as I could ( I have actually paid 29 out of 37 payments ) The vehicle is now in such a poor state it has only scrap value £100-£200 and recovery would cost probably £800-£1000.

 

The claimant is obviously now aware of this as the 'collections agents' saw it and said they would advise them it was not worth taking.

 

The claimant will now have to now go back and claim the monies owed and whilst fancying their changes due to the fact they have already technicaly won, they must also realise if I havnt got any disposable income the judge will only award a small monthly payment towards it, which is not what they want.

 

I think it is now worth offering them a settlement ( my mum has indicated she may be able to lend me some £, although nowhere near the full amount ) Under the threat that my appeal is prepared and about to be submitted.

 

What are your opinions on this as whilst I know I am right, the whole appeal process looks daunting and to avoided if possible.

[Lord_Alcohol]

I still think the claimants persued this under the impression that the vehicle value would offset any monies owed so it was an easy way of getting the money they know I cant afford to pay.

 

To be clear the vehicle is actually a commercial vehicle that I bought to use in my business, the vehicle has not been used for nearly two years due to a change in circumstances although payments were kept up for as long as I could ( I have actually paid 29 out of 37 payments ) The vehicle is now in such a poor state it has only scrap value £100-£200 and recovery would cost probably £800-£1000.

 

The claimant is obviously now aware of this as the 'collections agents' saw it and said they would advise them it was not worth taking.

 

The claimant will now have to now go back and claim the monies owed and whilst fancying their changes due to the fact they have already technicaly won, they must also realise if I havnt got any disposable income the judge will only award a small monthly payment towards it, which is not what they want.

 

I think it is now worth offering them a settlement ( my mum has indicated she may be able to lend me some £, although nowhere near the full amount ) Under the threat that my appeal is prepared and about to be submitted.

 

What are your opinions on this as whilst I know I am right, the whole appeal process looks daunting and to avoided if possible.

 

I would certainly discuss with the claimant. You are in a good position and a settlement would avoid court.

 

However, you need to take the initiative - you and they know that the DN is faulty and that they face an appeal and/or a defence of a money claim. I would think about a low F&F and see what they say, but back your offer up by mentioning the poss appeal and the dodgy paperwork.

 

You will also need to make sure that any settlement covers the whole agreement, not just the repo. You don't want to find a claim for unpaid amounts on your doormat after you thought you'd settled.

 

Be interesting to see what they others say - Frett, DD, Colin and co will have some helpful input on this one.

 

LA

[cosalt]

One side of me wants to persue and win, not only for the benefit of caggers but to give me confidence for all the other creditors that will come to a head eventually.

 

The other side says if I am in a position to do it why not put an end to it now.

 

I need to get this sorted today so will appreciate as many opinions as possible.

[frettful38]

How much does the appeal cost?

[cosalt]

£120

[cosalt]

plus transcription costs

 

although I have read that if the circuit judge looks at the appeal, he does have the power to overturn the judgement there and then if he believes it is obviously wrong. There would then be no hearing or transcription needed

[colin21958]

One side of me wants to persue and win, not only for the benefit of caggers but to give me confidence for all the other creditors that will come to a head eventually.

 

The other side says if I am in a position to do it why not put an end to it now.

 

I need to get this sorted today so will appreciate as many opinions as possible.

 

 

Avoid court if you can, but make sure if you pay, as LA said that you get it in writing that it is F & F settlement so they can't come back at you later. Your appeal could help others, but you should only consider your own situation in this instance; it's you that is going to be affected primarily by the stress of the court case and also the possible outcomes. If it feels right for YOU, then do it, but if you can negotiate a deal and that would be better for you then do that, or at least try. But make sure you realise that "legally" you are in a strong position, so make sure you make THEM realise that to (I'm sure they are actually already aware of this!), so keep the payment you make, if any, to a minimum! Take everything into account and take the path that is least painful for you in everyway!

 

Colin

Edited May 28, 2010 by colin21958

[diddydicky]

Thanks DD, I think we have established an appeal is the way forward, especially due to the fact that rightly or wrongly the court wont accept the set aside.

 

I need someone who has gone through / is going through the appeal process to advise what to do.

 

The forms are pretty straightforward but it doesnt make it clear what information is needed at this stage. ie does my initial applicatio only need a copy of the judgement, my skeleton argument etc. Will I only need the transcript etc once the application has been accepted and is moving towards a hearing.

 

Its the same as anything really, once you have done it once its easy, but I am sat here not really having a clue. The court office whilst appearing helpful dont really help.

 

I feel my appeal could be very important to a lot of people as well as me so its important its done quickly and right.

 

I have pm'd ( wrongly I believe ) pt2537 asking for guidance but I dont think he can help anymore.

 

What now, I want to get the appeal in today.

 

My key queries are.

 

1. What bits of my defence do I need for the skeleton argument and how do I lay it out, should it be to the point or comprehensive.

 

2. The form asks for an N460 which lays out the judges reasons for not allowing appeal. The court says I dont need it, and the judge doesnt have to complete one.

 

3. Do I need the transcript now or do I just need to get the ball rolling to use at a later date

 

any guidance appreciated

 

try shakespear for some advice

 

also it might pay to start a new thread (help with X appeal) to get some more input

[banker_rhymes_with]

Hello Cosalt!

 

This may help:

 

http://www.consumeractiongroup.co.uk/forum/general-consumer-issues/167970-locked-car-park-45.html#post2927407

 

This is just some general advice on how to handle an Appeal (taken from one of my other ramblings elsewhere on CAG), which may be of interest to both you/Fred and any other genuine Caggers that may like to know.

 

Fred has 21 days to get his Appeal in, and whilst it may seem daunting, it's not as bad as it seems, provided he gets started and works through all of the steps to get everything ready in time for the 21 day Deadline.

 

This is the bit of CPR Fred needs to start reading:

 

PART 52 - APPEALS - Ministry of Justice

 

This is the CPR Supplement that goes with the above:

 

PRACTICE DIRECTION 52 – APPEALS - Ministry of Justice

 

A key admin step is to get a Transcript of the Judgement going. That should not be too expensive, maybe £100-£150 approx. You will need that for the Appeal. That needs Form EX107. Here's the link:

 

EX107

 

That is just a simple Form where you state what the Claim was, and say which Transcriber you will like to use. I can recommend a very good one, but I need to advise the name via PM not in open Forum. The person is listed in the Approved List of Court Transcribers and has been very helpful now to several Caggers.

 

If Fred can afford it, I would also recommend that he has the Full Hearing Transcribed in addition to the Judgment.

 

To clarify, the Hearing is always divided into two key areas when it comes to Transcribing the Tape(s):

 

• The Main Hearing (less the Judgment).
  

 

• The Judgment.
  

There can only ever be one Judgment Transcription, because the Judge has the right to check and adjust that, before allowing it to be released. In my experience, be prepared for some changes there to soften how things were actually said in Court! But there's nothing you can do, just get a copy of the Judgment, and allow time to organise that and be prepared that the Judge will want to see it to approve it, before Fred sees it. Best therefore to crack on with that ASAP.

 

I would advise trying to get the Main Hearing as well, although that will cost a lot more, depending on the number of spoken words and the time the Hearing took. But this can prove invaluable. Fred needs this if he can afford it.

 

Transcriptions can be paid for by the Court, if Fred is on a very low income etc, but he has to pay for them first before he can re-claim the costs. It also takes a long time to get any money back from the Courts.

 

On this subject, see CPR Part 52, 5.17 and 5.18 (that's all in the 2nd link above).

 

N460

 

This is a Form the Judge has to complete if an Appeal was requested and refused on the day. In that case, the Judge is supposed to complete an N460 straight away, rather than being asked.

 

So, if needed, get the Court to chase up the Judge to complete Form N460. That Form is very simple, and just sets out the reasons for refusing the Appeal. Those reasons may also be mentioned in the Judgment as well.

 

There will be an N24 Order that will appear soon too, that's a bit like a précis of the Judgment but should not be confused with the Judgment Transcription which will be much longer than what you see on the N24 Order. Fred will also need that N24 Order for his Appeal Application. That should arrive in the next few days anyway.

 

Fred should be able to get that lot underway in maybe a day or two at most, then you can work on getting his N161 Appellant's Notice ready.

 

The N161 Appellant's Notice is just another Form, many on CAG will help you with that, so don't worry. Here's the link:

 

N161 Appellant's Notice

 

That just leaves the key issues of:

 

(1) Grounds for Appeal:

 

This is the main bit that you need to get sorted within the 21 days, and have it ready to go along with the Appeal Bundle.

 

The main initial documents, provided you get them on time, will comprise the following bits:

 

N161 Appellant's Notice (including Grounds for Appeal)

N24 Order

N460 Reasons for Appeal Refusal (if needed)

Transcript of Judgment

 

It is VIP that you get that lot in within 21 days. Otherwise you risk having to make an Appeal Out of Time, which is a PITA. Get it in on time, and you then you have a further 14 days to follow on with the full Appeal Bundle.

 

That Bundle will include a Skeleton Argument and a routine pile of bumf that relates to the Judgment being Appealed. Most of the docs Fred will have had from the first time around, so the Appeal can be considered for permission to Appeal if that is also needed (i.e. if permission was refused at the Hearing).

 

(2) Route for Appeal:

 

This is just technical and will depend on what Judge you had, and the class of the Judgment the Judge made. It is all listed in the 2nd link above, or just click here:

 

PRACTICE DIRECTION 52 – APPEALS - Ministry of Justice

 

This is Fred's chance to put right what the buggers did wrong the first time out.

 

Get this right, and the opposition will be more worried than you are right now once they know you are Appealing.

 

The most this will cost Fred right now is the Judgment Transcription. He can always back out before the 21 day deadline and just accept the original Judgment, so do keep going and use the time to decide before the 21 days are up.

 

However, don't waste any time getting going, as 21 days is not long and you cannot afford to waste any of it.

 

Once the Appeal has been lodged, then you have 14 days to get the Skeleton Argument done, which is also key, but 2 weeks is a long time.

 

After that, it could take weeks/months to get to Appeal, and in that time you and Fred may be able to find the money for a Barrister who will take it over and take the battle back to them. If you win, you will get the original Judgment overturned, and you should get back all of the Costs, both for the Appeal, and also for the original Hearing.

 

A Barrister can later tweak your Appellant's Notice and your Skeleton, so your main aim is to get them in and good enough to get permission to Appeal (assuming you need permission, if the Appeal was not refused at the Hearing, then you may not need to ask for permission to Appeal and can just go ahead and submit the Appeal)...the Barrister can make the paperwork better later if you end up being able to afford a Barrister down the line.

 

Usually, as far as I am aware, Form N460 is only issued when at the end of a Hearing permission to Appeal is requested, and is then refused by the Judge. The Judge must then automatically fill out an N460 there and then, but many don't.

 

Some know they should, and don't, knowing it will cause time problems getting the Appeal pulled together within the 21 day deadline from the Judgment.

 

Follow the links to CPR, and also Google Appeals, and visit any Web Sites that cover this, especially HMCS.

 

Cheers,

BRW

[banker_rhymes_with]

Hello Cosalt!

 

I forgot to say, yes, Appeal.

 

It looks to be the only way ahead.

 

It is not that daunting if you follow what I have said above, but the you have a need, and the need is for speed!

 

You've got to crack on ASAP and get the Appeal in before the 21 days are up, or else it gets a lot harder.

 

Cheers,

BRW

[cosalt]

Thanks BRW, I did ask the judge for permission to appeal and he said no. When I asked about the N460 they said although they have heard of it they have never known a judge fill one in. Is this a problem.

 

Do you know if I need the transcript at this stage because I assumed a skeleton argument and the order etc would be enough to get the appeal approved and then i would need it for the hearing. Even the court could not answer this ( although they dont seem to be able to answer anything properly ! )

 

The transcript is the only thing holding it up as I can get everything else together over the weekend. If I have to wait for that they may well cause me problems as I am also supposed to be paying the costs immediately, i need that money to launch the appeal , the court did say as soon as the appeal is received they will stop all proceedings then it will take 10 working days to get the circuit judge to grant leave to appeal ( or not )

 

cosalt

[cymruambyth]

Write a letter and send SD to the court manager requesting tyhe N460 so that you can appeall!!

[diddydicky]

or if you are close to the court- go there and get one (or from your local court)

[cosalt]

They have the N460 but they said the judge wont fill it in, can I start a claim against the Judge !

[nks22]

They have the N460 but they said the judge wont fill it in, can I start a claim against the Judge !

 

Could you get them to confirm that in writing and include it in your submission instead?

[cosalt]

I think the best thing to do is on the form where it says if you do not have the document now, when do you expect to get it, I will state that the court office have said the judge doesnt have to complete one.

 

If this annoys them it should only go in my favour.

 

I think I can manage the skeleton argument ( although I will post up for your opinion )

 

This only leaves the transcript, can anyone give a definate answer as to if I need it at this stage to put an application in ?

[vint1954]

try shakespear for some advice

 

also it might pay to start a new thread (help with X appeal) to get some more input

That was suggested some while ago.

[diddydicky]

I think the best thing to do is on the form where it says if you do not have the document now, when do you expect to get it, I will state that the court office have said the judge doesnt have to complete one.

 

If this annoys them it should only go in my favour.

 

I think I can manage the skeleton argument ( although I will post up for your opinion )

 

This only leaves the transcript, can anyone give a definate answer as to if I need it at this stage to put an application in ?

 

if a judge/court has refused to complete documents that it is obliged to complete or puts obstacles in the way- i would be inclined to write (fax and post the letter) confirming their intransigence and wilful obstruction of your legal right to appeal and keep copies for your bundle at the appeal

[cosalt]

That was suggested some while ago.

 

 

Not sure what thats supposed to mean ?