D/judge Made Wrong Decison What Now??

[humbleman]

M

 

In may case I was almost about to tell the Judge that she was a******* because her judgment was flawed in every respect. I don't know what the consequences would be.

[seriously fed up]

Well you would still need a brief Humbleman, but you would need to see him at visiting time in whichever of HM Hotels you were put away to. He could possibly deal with both your "interactions" with the legal system at the same time?

Westie, I would take Humbleman's advice and stop fretting for the next few days. That judgement is going to come down. What you need to get right is

 

1. what is the process you need to follow to put in an appeal. I would have thought even your local CAB could point you in the right direction (sorry I cant help here as English law just isnt my jurisdiction)
   
2. what an appeal might cost and how (whether?) it can be financed - Humbleman has a good deal of current experience of this and I very much hope he would share it. Indeed, it seems to me that while, as with most, "every case is different" there are a good many overlaps in your situations, and it might be worth thinking about employing the same barrister if that were possible? And then splitting the costs on an agreed basis.
   
3. the beginnings of a skeleton argument for the appeal, focusing on
   

 

• how your judge misinterpreted the law - for instance s60 and 61
  
• how he misinterpreted (or ignored?) evidence that was presented
  

It would seem to me though that in the immediate future, the more important of these is the first, and I would be inclined to focus on that.

[Mydogsawestie]

Thanks Seriouslyfed up.

 

Re 1. I will ring the court tomorrow (getting to see CAB these days I would imagine will need an appt & time is not on my side. Perhaps court can also advise me why the judgement is dated Sept but I have not had it till now & if this affects an appeal being over 3mths old?

How & what the process will be & if I have to go about it on the day of my hearing.

(If that is the case will my reasons for it have to come up in court that day then in case I need to get a transcript???)

 

I may even call the courts of appeal in London aswell Info about - Court of Appeal Civil division - civil appeals office as it states a tel number for issues on new cases.

 

In the meantime any more advice anybody feel free to comment.

Thanks again.

[Docman]

Hi MDAW

 

I've had a quick look at the last few posts and I think any appeal is going to need a long look at your previous posts. I'm travelling on business for most of today and won't be able to look at everything until late this evening. IF anyone wants to comment earlier, please do so.

 

That said, you have got a hard job on appeal. Humbleman's case is a clear miscarriage of justice. IMO yours is not. The judge has allowed your late amended defence which he could have thrown out. He has also set out his reasons for allowing the SJ application when he could have made his decision and pronounced verbally at the hearing. That's not to say he isn't wrong. IMO I think he is but it does mean any appeal will have to be carefully worded.

 

I'll post again later tonight.

[Mydogsawestie]

Thanks docman thats brilliant you giving me your time & v much look forward to your comments & scutiny later.

 

Having rang the court this afternoon, (who were not aware I had rec'd any DJ copy summary enclosed inside the hearing notification letter (was I meant to have this??) I should still have 21 days afterwards to appeal.

 

As Cymruambyth quite rightly posted above I will have to ask his permission on Thursday and then be given a form he completes afterwards as to whether he will allow it or not.

 

I therefore (in order to be prepared) will have to address the judge with my reasons, this will be a tricky one for me to point out to him how he has misinterpreted the law and the evidence (as Seriouslyfedup said) that was presented in front of him.

 

Docman when you have managed to look at everything & summise if I have a strong enough case (eg judgment points 20/21) re the DN for example not giving me 2 business days plus other discrepancies, if I do go into my hearing that day with this in mind should I be preparing something now in writing & should he have a copy ahead of Thurs? (I say this just incase I dont pick my words carefully on the day ).

[mandyjayne]

Hi westie...

 

Looks like things are picking up for you now:D

 

all the best, will check back later

[Mydogsawestie]

Hi westie...

 

Looks like things are picking up for you now:D

 

all the best, will check back later

thanks for your support Mandy

[Docman]

Hi MDAW

Well I've had a re-read of all the posts on the thread and IMO what comes over is something like the old saying of 'too many cooks spoiling the broth'. Everyone has contributed in good faith but whereas the old saying is about various cooks adding salt to the broth, I think here is a case of one cook thinking you were preparing a vegetable broth, another thought you were making soup, a third a stew and possibly someone thought it should be a fruit compote! Add all the 'visitors' (other Caggers) walking through the kitchen with their own problems and then everyone thinking you had won and going on about costs, the end result was confusing. We should have spotted when you reported the result in July that the judge “ dismissed the Summary Judgement to adjourn until another hearing”.

IMO what you will need to do is to attend the hearing on Thursday and ask the judge for permission to appeal on grounds that the court has mis-directed itself as to the law. (In plain English, you are telling the judge that he got it wrong). If he denies permission (likely) then you will have to make a written application to the circuit judge.

The ‘mis-direction’ appears to have occurred on two issues

(1) your introduction of S78 which allowed MBNA to bring in all the guff about the Regs 3 &7 of the Copy Document Regulations that was the subject in the recent cases in Manchester under HHJ Wakesman. IMO, S78 has no business in a case where a creditor has brought a claim. The CPR require a creditor to produce a copy of the original agreement (confirmed by Wakesman) and that copy agreement MUST have the prescribed terms (S61 of the Act and the Wilson cases). The document produced is your original application form and unless the document you signed contained those terms, its game over for the creditor. What MBNA have done is to suggest that as you signed the application form, the earlier version of the June 2008 of the terms must also have been there. The judge has fallen for MBNA’s argument and wrongly assumed that would have been the case.

(2) the effective date of the DN. MBNA have brought in the amendments in the CPR (6.26) which I believe would have made the Monday the effective date for service and therefore the effective date of the DN would be 27 January 2009. BUT as you correctly pointed out, the CPR 6.1 does allow the Rule to be overridden by other laws. The context of CPR 6 is in relation to the service of documents in the legal process i.e. once a claim has been issued. The service of a DN is required by statute (S88 CCA etc) and the Interpretation Act must therefore apply, not CPR 6. If the judge does not accept, then there is another ground for appeal.

What you need to do now is to draft out in your own words, what you would say to the court on Thursday. It doesn’t have to be in a legal format as you will be saying the words, which can even be in bullet format. Do you want to put your own thoughts down in writing so that you could use them as notes for Thursday’s hearing?

[Mydogsawestie]

Thank you docman your an absolute star, and I am ever so grateful for the way you have presented this to me in a format I understand. I will work on this this afternoon & post up something this evening. Your input has been a saviour. Thank you thank you thank you....... (1st smiley in days!!!)

[frettful38]

Very good work docman, and I am sure that mygogsawestie is very much grateful for the help and advice you have given. I know what they must be going through, as in my hour of need legalpickle was there to help me tremendously, and its people like you docman and legalpickle that make CAG priceless. I am sure mydogsawestie will agree with me there:D

[humbleman]

. The CPR require a creditor to produce a copy of the original agreement (confirmed by Wakesman) and that copy agreement MUST have the prescribed terms (S61 of the Act and the Wilson cases). The document produced is your original application form and unless the document you signed contained those terms, its game over for the creditor.

 

can you please point me in this direction, as you know I am looking at appealing

[summerbreeze]

(2) the effective date of the DN. MBNA have brought in the amendments in the CPR (6.26) which I believe would have made the Monday the effective date for service and therefore the effective date of the DN would be 27 January 2009. BUT as you correctly pointed out, the CPR 6.1 does allow the Rule to be overridden by other laws. The context of CPR 6 is in relation to the service of documents in the legal process i.e. once a claim has been issued. The service of a DN is required by statute (S88 CCA etc) and the Interpretation Act must therefore apply, not CPR 6. If the judge does not accept, then there is another ground for appeal.

 

 

A great snippet of info ...very helpful Docman

[pedross]

Well done Docman, a good summary of the situation and I think this is the way to go.

[sunflower99]

Hi dogasweetie

I am so pleased and relieved you got the help you needed! I agree Docman is an absolute star!

[mandyjayne]

Yay westie..the cavalry have arrived;)

 

Thats stirred um all up! Excellent post as always Doc and thanks for coming to the rescue!

 

Just for the record miss westie nothing arrived in MY post box this morning;), we fight on!

 

MJ:)

[sunflower99]

Very good work docman, and I am sure that mygogsawestie is very much grateful for the help and advice you have given. I know what they must be going through, as in my hour of need legalpickle was there to help me tremendously, and its people like you docman and legalpickle that make CAG priceless. I am sure mydogsawestie will agree with me there:D

I second that! Thanks again for being a star Docman!

[Docman]

Hi MDAW,

The two main points to bring out are the lack of an agreement that complies with S61 of the Act. In normal law of contract, the agreement does not have to be in writing. If you apply the law of contract to a credit card situation, the credit company produces the signed application form as evidence that you went into some form of written agreement. The judge then has to decide what are the terms & conditions that are in the agreement. The creditor can't produce the signed agreement (because there is only the application form) but instead produces the current terms. In the absence of anything else, applying the law of contract, the judge decides that these current ones must be the same or similar to the terms when the 'agreement' was signed and so finds for the claimant.

However, the Consumer Credit Act lays down certain requirements. In the absence of a signed, legible agreement containing the appropriate terms and conditions within the document, the court (i.e. this judge), does not have the power to enforce the claim. This judge has not applied this even though it is covered in you statements. But you need to make it crystal clear to the judge that without a signed agreement, Parliament has said the judge cannot act and the House of Lords have confirmed that as the legal position.

The second area is the time for service of the DN. As you have mentioned, CPR6 can overrule if there is another statute and so CPR6.26 does not apply. The Interpretation Act applies and so tough on the creditor.

[summerbreeze]

MDAW

So glad you are getting such great help and advice and Docman your input is so informative and will help a lot of other caggers ... me included

Thank you [ and rep ]

[Mydogsawestie]

Here goes, took me a fair amount of time digesting & collating this together but hope what I have here can assist others too (esp with the help of Docmans input). I am mainly using it as a prompt in order (should I get the chance) to have it all said out loud (should I ever need the transcript). I dont think I should mention as Seriouslyfed up said the word Maladministration to the DJ tho although it raised a good point on him keeping me waiting 6mths to hand this judgment down.

 

The attachment is below & hope to have your feedback comments soon Docman. Thanks again for your contribution, dont know where I'd have been now without it.....

MDAW GROUNDS FOR AN APPEAL.doc

[dad]

MDAW,

 

The attachment is below & hope to have your feedback

 

Your document mixes together your grounds of appeal and your skeleton argument.

 

Your grounds of appeal are simply a statement of the basis on which the judgment was wrong NOT an explanation of that basis. The grounds of appeal must also refer to which of the CPR 52.11 reasons for allowing an appeal you are asking the court to choose. Having read your document I believe that your grounds of appeal are:

 

1. The Judge misdirected himself and made an error if law in interpreting the Consumer Credit Acts and associated regulations. This was an error of law and is an appeal under CPR 52.11(3)(a) because the decision was wrong.

 

2. The Respondent was allowed to obtain judgment on a claim for sums due under an agreement regulated by the Consumer Credit Act 1974 that included a claim for statutory interest which is barred by Regulations in the County Courts (Interest on Judgment Debts) Order 1991 (SI 1991/1184). This was an error of procedure and is an appeal under CPR 52.11(3)(b) because there was a serious error of procedure.

 

In your skeleton argument you can then go on to explain how and why the judge was wrong.

 

HTH

 

Dad

Edited January 27, 2010 by dad
correct spelling

[sunflower99]

Hi Mydogasweetie

I am so glad you still getting lots of help and advice now and today i can see another nice post from Dad,You can feel very proud of yourself as in spite of that judge you still did very very well as a LIP who has had no legal training and i think i can say that we are all impressed with what you acieved so far and i think you have faced eveything including the setbacks with great courage! :)x

[seriously fed up]

Hi MDAW,

 

The two main points to bring out are the lack of an agreement that complies with S61 of the Act. In normal law of contract, the agreement does not have to be in writing. If you apply the law of contract to a credit card situation, the credit company produces the signed application form as evidence that you went into some form of written agreement. The judge then has to decide what are the terms & conditions that are in the agreement. The creditor can't produce the signed agreement (because there is only the application form) but instead produces the current terms. In the absence of anything else, applying the law of contract, the judge decides that these current ones must be the same or similar to the terms when the 'agreement' was signed and so finds for the claimant.

 

However, the Consumer Credit Act lays down certain requirements. In the absence of a signed, legible agreement containing the appropriate terms and conditions within the document, the court (i.e. this judge), does not have the power to enforce the claim. This judge has not applied this even though it is covered in you statements. But you need to make it crystal clear to the judge that without a signed agreement, Parliament has said the judge cannot act and the House of Lords have confirmed that as the legal position.

 

The second area is the time for service of the DN. As you have mentioned, CPR6 can overrule if there is another statute and so CPR6.26 does not apply. The Interpretation Act applies and so tough on the creditor.

 

Docaman, I agree with the first point of the appeal absolutely as it would be the view that I would hold myself |(though, I thought very clearly set out ). What I was wondering was how you would view this in the light of part of Waksman's judgement - thinking here of Issue 5 paras 171-174, which is have copied below

 

1. This arises solely in connection with s61(l)(a) and the requirement thereunder that the document signed by the debtor "contains" all the Prescribed Terms . The question is as follows:
   "Does the document signed by the debtor contain the Prescribed Terms for the purposes of section 61 and/or section 127(3) if:
   (a) they are on a sheet which is referred to on the piece of paper that was signed by the debtor; or
   (b) where that sheet is attached to the piece of paper signed by the debtor; or
   © where that sheet is separate from but was supplied with the piece of paper signed by the debtor?"

   
   

2. It arises now only in the Carey case.
   Agreed Principles

   
   

3. The parties in Carey have helpfully agreed the following principles. The fourth one was added by Mr Uff, with their agreement. No other party takes issue with them. The OFT has formulated the matter in a slightly different way but accepts these principles are close to its position.
   (1) It is not sufficient for the piece of paper signed by the debtor merely to cross-refer to the Prescribed Terms without a copy of those terms being supplied to the debtor at the point of signature;
   (2) A document need not be a single piece of paper;
   (3) Whether several pieces of paper constitute one document is a question of substance not form. In particular a physical connection between several pieces of paper is not necessary in order for them to constitute one document;
   (4) Additionally, a physical connection (or one or more physical connections) between several pieces of paper does not necessarily constitute them as one document;
   (5) Accordingly, where the debtor's signature and the Prescribed Terms appear on separate pieces of paper, the questions of whether those pieces of paper together constitute one document is a question of substance and not form
   .

   
   

4. As a matter of law, those principles appear to me to be correct, in the context of s61.
   

I understand - think it might have been Angry Cat - that that scenario of Carey (which the above concerns) is that Ms (?) Carey had "applied" in the bank manager's office and that the document she signed (allegedly) was a much more full document which the manager had printed off at the time for her (?) to sign, so it would not be the usual nonsense that fell out of a magazine/ got filled in in a shop.

However, my concern is how the banks might use the above section to justify the use of an application form. For instance by ref to 173 (5) to argue that the process can be completed in "one step" (ie fill out the application form as long as the T&Cs are there somewhere - "question of substance") rather than the "two steps" argument that you have set out - ie the lender can produce only the application and not a signed agreement so produces only a set of T&Cs with the (signed) application form and claims the kind of link that might be implied into the above (5).

Hope you see what I mean? As I say, I hold much the same view as you do about this - basically the banks tried to do the job more quickly and on the cheap - but the above does concern me. Thanks

SFU

[Mydogsawestie]

MDAW,

Your document mixes together your grounds of appeal and your skeleton argument.

 

Your grounds of appeal are simply a statement of the basis on which the judgment was wrong NOT an explanation of that basis. The grounds of appeal must also refer to which of the CPR 52.11 reasons for allowing an appeal you are asking the court to choose.

 

In your skeleton argument you can then go on to explain how and why the judge was wrong.

HTH

 

Dad

Thanks Dad for your input, it all helps. I had mixed them together as notes to myself really so if I have to add input on the day it will prompt me in relation to the acts. Guess I will get to speak and understand preparation is the key.

 

Thanks for your kind words of support Sunflower99/Summerbreeze/Mandyjane they keep me going as my knees knock....not many hours left this evening to bring it all together now.

 

Seriouslyfedup as always really glad you bring up all the angles in your discussions, we shall wait on our VIP docman now to see what he thinks.

[Docman]

Hi MDAW,

 

Well I'm not sure if I'm comfortable with the VIP status. We all try to give advice here and you have had some very good advice from the posts above.

 

I also agree and endorse what Dad has said. You must remember you are only asking for PERMISSION to appeal tomorrow.In all likelyhood the judge will say 'NO'. That's when you have set out your stall in writing.

 

I would also leave out the S78 issue. Yes, MBNA shouldn't have brought a claim but they have. Your raising it only allowed their solicitors to raise he guff hey did, which I think has completely been swallowed by the judge.

 

I suggest you start with something like

 

Sir

I wish to apply for permission to appeal against the judgment that you have handed down today on the grounds that the Court has mis-directed itself as to the law in that …

[the judge may interrupt at this point and deny you permission to appeal. If he does, do not argue. You can make a written application to the Circuit Judge for permission to appeal, so there is no point in arguing with this judge If the judge does NOT interrupt, then press on…]

…the Court has not applied the provisions of the statute nor applicable case law that is binding on the Court.

[if you are not interrupted , carry on with…]

The Consumer Credit Act 1974 requires that any agreement regulated by the Act must be signed by both parties, it must be legible and must contain within the document certain terms and conditions prescribed under S61 of the Act. The exhibit MBNA2 does not contain the terms, and as set out in my defence, the House of Lords have confirmed that the court cannot enforce the agreement.

[then go onto your second point about the date of the DN and CPR 6.1 etc. IMO you are correct on the point]

I have to go out now. I try to look in about midnight but if I don't make it, best of luck for tomorrow.

[Mydogsawestie]

Thanks Docman will re-prepare & make sure I have ALL points on board ready as with all other points that caggers have mentioned too. Its all been so very valuable these contributions as this time last week my head was beginning to get buried in the sand.

 

I was wondering if the other side turn up tomorrow or has this hearing just been set for me? I will keep my eyes peeled tonight for any last thoughts anyone....thanks again guys