D/judge Made Wrong Decison What Now??

[humbleman]

MDAW

 

Had a quick read through the judgment and clearly ph. 23 is wrong wrong wrong where the judge said that the claimant have satisfied your s78 request by supplying you with the application form and the current t&c's. It should be the t&c's at the time of the application together with the current t&c's if they have changed. I think that alone should be sufficient.

[the_shadow]

MDAW

 

Had a quick read through the judgment and clearly ph. 23 is wrong wrong wrong where the judge said that the claimant have satisfied your s78 request by supplying you with the application form and the current t&c's. It should be the t&c's at the time of the application together with the current t&c's if they have changed. I think that alone should be sufficient.

 

Backed up by the recent test case rulings in Manchester too.

 

S.

[Mydogsawestie]

MDAW

 

Had a quick read through the judgment and clearly ph. 23 is wrong wrong wrong where the judge said that the claimant have satisfied your s78 request by supplying you with the application form and the current t&c's. It should be the t&c's at the time of the application together with the current t&c's if they have changed. I think that alone should be sufficient.

 

Backed up by the recent test case rulings in Manchester too.

S.

 

If you check back on my posting #294 I posted up the priority request form and allegedly back copy T & C's?? I also had sent 2008 T & C's... ...(so in your opinions have they sufficed the s78 request?) as without the orig document in court how will we know that these orig T & Cs were on the back.:idea: http://i612.photobucket.com/albums/t...g?t=1242733254

http://i612.photobucket.com/albums/t...g?t=1242750486

 

 

Re point 17 of the judgement - why does the judge LIE here by saying the creditors signature is on it too. (on the day Restons tried to make out that the sticker (barcode) over the COPY priority request form is where the signature of MBNA would be. Without the orig how will we know that though? I also said it contained no prescribed terms either. The judge clearly aware of too!)

My other points raised re 15,16,& 20 of this judgement you will find on that link page here as with the defence he took no notice in examining properly.

http://www.consumeractiongroup.co.uk/forum/legal-issues/185814-d-judge-made-wrong-15.html#post2714887

[Mydogsawestie]

I'd throw in the Francovich Principle as well.... just to keep them on their toes.

 

It was mentioned by JonCris in Shakespeare's thead - http://www.consumeractiongroup.co.uk/forum/legal-issues/191784-shakespeare62-nastybank-12.html#post2588754

Thanks, that was in Shakespeares appellant, I wasn't sure tho what was relevant to be added into mine and so will add it in...still wondering about the other legislations on it (esp the ones I highlighted in red) any further thoughts?

MDAW,

Unfortunately, you have been talking at cross purposes. A 'note of a judgment' is prepared by a solicitor or barrister at a hearing for his client. What you have is an approved judgment.

HTH

Dad

Lovely jubilee....thanks Dad, phew......!!

 

Have you any thoughts on the N161 I posted up especially section 7where its mentioned what I am asking the court to do...had looked through that uni1boys "stay" bits you mentioned but see that was an N164 document....if you do have any pointers what to put down here to ask the court to do (if I have done it what I need to do right here aswell) it would be appreciated..... thanks

[pedross]

I don't think it will matter if MBNA have signed or not because the court can ignore that issue if they are satisfied that what you signed contained the prescribed terms so do not get distracted by the MBNA signature.

 

Pedross

[Mydogsawestie]

Have uploaded my grounds for appeal now and kept it with the other attachments on #398 hope to welcome advice in these being addressed carefully for me soon :idea:......thanks in advance....

[Mydogsawestie]

Bump anybody - my docs have been posted up & need to be finalised for appeal by mid week.....whats relevant, whats not? please see #398... in what I have had a stab at so far.......I hope help has arrived by Monday or I might be having kittens with this next hurdle everyone......

[shakespeare62]

Hi MDAW !

 

From a quick look at your docs I would offer a few suggestions. Some are only minor points.

Form N161

 

Section 3. "Are you legally represented ?" Tick "No"

"Are you the Appellant in receipt of a Legal Aid Certificate" Tick "NO" (I assume this is your position)

 

Section 4. Under your signature, cross out the word solicitor to it reads I the Appellant seek permission to appeal

 

Section 8. Other Applications : In the "because" text box at the bottom of section 8, sixth line down, I would ideally add the words "as amended" to the Default Notice Regulations 1983. This is because amendments changed the 7 day period to 14 days.

 

Section 9. Statement of Truth: below the signature box, cross out the words for solicitor. (Remember to do this for each copy you file in Court).

 

Skeleton Argument

 

Section 4. c (ii) remove 'pour encourager les autres'. It is French for "to encourage others". It is quoted out of context here. The phrase is taken from para 73 of the Wilson HoL judgment [2003] UKHL 40 where the context actually reads in relation to the severity of s127(3) on the lender:-

 

"73. The unattractive feature of this approach is that it will sometimes involve punishing the blameless pour encourager les autres"

 

section 74 in 'Wilson' goes on to say that despite the above risk, "This course is open to Parliament even though this will sometimes yield a seemingly unreasonable result in a particular case"

 

Section 4. e (ii) On line 1, the name should be Udele Edirin Kpohrahor.

 

Section K. Legislation. I propose you can remove the Bankers Books Evidence Act 1879 as you are don't need it.

 

'Shakey.

Edited February 15, 2010 by shakespeare62

[shakespeare62]

Regarding CPR 31.15 and Human Rights issues, Did you request inspection under CPR 31.15 ? Also did the Judge fail to properly consider all the evidence before him ? (I don't mean whether he erred in law or misinterpreted the law).

It's important to get this right or there could be cost issues for appealing something irrelevant.

 

If there are no CPR 31.15 or Human Rights issues, you will need to amend Form N161, GoA, and Skeleton. You would still have good appeal material.

 

(Apologies if I'm not up to speed on the rest of your thread. I'll try and catch up shortly)

Edited February 15, 2010 by shakespeare62

[sunflower99]

HI MDAW

Glad you getting lots of help !

[Mydogsawestie]

Thanks Shakey for staying up so late looking at this for me, that was v kind of you. I have till Thurs 4pm to get this in & he said the skeleton at the same time is advisable in support of this too.

 

I also was concerned what bundles I had to get together for this application & the clerk said I only had to concern myself in section 10 with the top 8 boxes for now...once appeal is granted then my bundle stages will need to be done (although personally if I've got some of these docs to hand already wonder if I should tick the other boxes in section 10 there aswell?) What do you think??

 

Clerk told me when running down N161 section 5 with me re Human rights box this would not be applicable as isnt in alot of cases? I had requested CPR 31.14 which was not adhered to though so wouldnt Human Rights issues apply? What do you think (also snoops mentioned throwing in that Francovich principle, do you agree too.....(will take out the Bankers Book Evidence one)

 

Clerk also said re Stay question under section 5, he found my order unusual, not a great service was how he worded it as it did not have any time to pay it by/ forthwith within 14days etc so ticking the box to ask for Stay here would be a "NO" too......???

(IMO its only a matter of time this will come from Claimants tho??) What are your thoughts here on the yes no scenario......

 

Also the clerk said what was strange was that it had never been officially allocated to track, didnt know how its jumped the normal course of action (something I wasnt aware of & had assumed fast because it was 11k+, but then again I am a LIP what do I know )

 

In these very valuable days left to address this paperwork lets hope all my prayers/answers will be sorted soon (heres desperately hoping) thank you.

[Mydogsawestie]

Sorry to keep impacting on your time Shakey as I know you have a lot on your plate already.....along with what I posted before (ref your input) I have updated my skeleton now attached, section 4 i (I have left in red) as wondering if these are relevant....and francovich is in there awaiting clarification/thoughts on too thank you.

 

With regards to my appellants grounds for appeal could you just run over this for me...I am concerned re para 7 if this is relevant to me as my judgment notes by the DJ does not mention rankine but I do remember my court hearing on the day Restons bringing up something to do with Rankine?

 

para 11 also the last bit of this para which says... that said 6.7 in force at the time of the default notice being issued, I take it that refers to the consignia v sealy case above as mine was the Interpretation Act 1978, sect 7. (just checking me being a LIP)

 

para 13 would this then apply if para 7 taken out. para 21 has a mention of Rankine again aswell????

 

I also could do with some wording in here of the fact that they were in breach of 78 which the judgment notes referred to at 23 "Having considered the correspondence in question I am satisfied that by supplying D with a copy of the signed Priority Request Form together with the current T & C, C complied with the requirements of S.78."

 

BEAR IN MIND THIS WAS NOT A TRUE COPY, I HAD NOTHING PROVIDED IN COURT ON THE DAY.

 

Also the claim for statutory interest under s69 was in the POC too...

 

Nearly there now....ALL THOUGHTS/ADDITIONS/SUGGESTIONS WELCOME please......Thank you.......

Appellant Grounds for Appeal MDAW.doc

Appellent Skeleton MDAW.doc

[dad]

Thanks Shakey for staying up so late looking at this for me, that was v kind of you. I have till Thurs 4pm to get this in & he said the skeleton at the same time is advisable in support of this too.

 

I also was concerned what bundles I had to get together for this application & the clerk said I only had to concern myself in section 10 with the top 8 boxes for now...once appeal is granted then my bundle stages will need to be done (although personally if I've got some of these docs to hand already wonder if I should tick the other boxes in section 10 there aswell?) What do you think?? Don't overcomplicate things, concentrate on the core documents to get permission. If permission is granted you will be given plenty of time to sort out the bundle.

 

Clerk told me when running down N161 section 5 with me re Human rights box this would not be applicable as isnt in alot of cases? I had requested CPR 31.14 which was not adhered to though so wouldnt Human Rights issues apply? What do you think (also snoops mentioned throwing in that Francovich principle, do you agree too.....(will take out the Bankers Book Evidence one) Running a Human Rights argument considerably complicates matters as you need to comply with CPR 16 Practice Direction 15.1 AND also serve notice on the Treasury Solicitor.

 

Clerk also said re Stay question under section 5, he found my order unusual, not a great service was how he worded it as it did not have any time to pay it by/ forthwith within 14days etc so ticking the box to ask for Stay here would be a "NO" too......???

(IMO its only a matter of time this will come from Claimants tho??) What are your thoughts here on the yes no scenario...... As it does not give time for payment the order is for immediate payment, so unless you get a stay the other side can apply for a warrant of execution/ send in bailiffs/etc regardless of the fact you have appealled. I need to go back and reread your appelant's notice, but I am a bit busy. However you appear to have made a common mistake in section 8. This is NOT for evidence in support of your appeal but evidence in support of YOUR APPLICATION FOR A STAY. As I said in Un1boys thread you need to show why it would be wrong to make you pay up now and then claim the money back later if you win on appeal. Sorry this is a bit rushed.

 

Also the clerk said what was strange was that it had never been officially allocated to track, didnt know how its jumped the normal course of action (something I wasnt aware of & had assumed fast because it was 11k+, but then again I am a LIP what do I know )

Because summary judgment was applied for before allocation, the case is effectively 'trackless'. The result is that costs are wide open.

 

In these very valuable days left to address this paperwork lets hope all my prayers/answers will be sorted soon (heres desperately hoping) thank you.

 

Dad

Edited February 16, 2010 by dad
Spelling

[Mydogsawestie]

OMG I wasn't aware of how this order has been typed up and would therefore mean immediate payment was required... I am becoming more desperate now in making sure this does have to be spot on in my form, I have seen the witness statement on uniboys thread in suppt of a stay. Can I include my I & E from my DMP (Payplan in suppt of this then) also the wording on my N161 rephrased is it in...SECTION 7 (boxes here to tick?) like this.....

 

The judgement for claimant entered against the Appellant on 28/1/10 be stayed and the claimant shall pay the Appellant costs of the application.

 

Due to the sums involved, if the respondant was able to enforce the order I would have serious financial difficulties and would have to consider selling our family home of 4 and we would be homeless, in order to pay the balance. To meet the terms of the order it would not be possible to sell it that quickly which could mean selling it below its market value. If the appeal succeeds I will be unable to then buy it back. As the Respondant is a large company, making millions of pounds per year in profits, they are in a position to hold the enforcement of the order.

 

See attached witness statement in support of this...

 

Also do I have to include MBNA profit & loss in suppt of me saying millions because when I click into this I am not sure how to locate that info

WebCHeck - Select and Access Company Information

 

PLEASE ADVISE.... thank you.....

[dad]

See below,

 

Don't Panic

 

OMG I wasn't aware of how this order has been typed up and would therefore mean immediate payment was required... I am becoming more desperate now in making sure this does have to be spot on in my form, I have seen the witness statement on uniboys thread in suppt of a stay. Can I include my I & E from my DMP (Payplan in suppt of this then) also the wording on my N161 rephrased is it in...SECTION 7 (boxes here to tick?) like this.....

 

The judgement for claimant entered against the Appellant on 28/1/10 be stayed and the claimant shall pay the Appellant costs of the application. Leave the bit in red out, it is a bit cheeky to ask them to pay the appeal fee before you have won!

 

If you are in a DMP that is quite important. I suggest you consider

 

Due to the sums involved, if the respondant was able to enforce the order I would have serious financial difficulties as I am currently in a Debt Management Plan. This would give the Respondent an unfair advantage over my other creditors and would have to consider selling our family home of 4 and we would be homeless, in order to pay the balance. To meet the terms of the order it would not be possible to sell it that quickly which could mean selling very substantaily below its market value. If the appeal succeeds I will be unable to then buy it back. As the Respondant is a large company, making millions of pounds per year in profits, they are in a position to hold the enforcement of the order.

 

See attached witness statement in support of this...

 

Also do I have to include MBNA profit & loss in suppt of me saying millions because when I click into this I am not sure how to locate that info

WebCHeck - Select and Access Company Information

 

When you go to companies house click that link, then type in MBNA in the company name box. That will bring up a list of names. Find the name that EXACTLY matches the claimant in your case, then click on the number. That will take you to a page of outline information on the company. On the right hand side you will see a link saying order information on this company. Click that, then look for the latest AA type document. It costs about £1 to download. Then follow the guidance as per Un1boy's thread.

 

It is slightly unfortunate that MBNA is a subsidiary of Bank of America so does not have a web site with free financial data.

 

HTH

 

Dad

 

PLEASE ADVISE.... thank you.....

[Mydogsawestie]

Thanks when I finalise the N161 will include that info in section 7 - am sorting out the witness statement now & will post up for inspection shortly.

 

Hope my queries on the skeleton & grounds for appeal attached #412 can next be addressed (ANYBODY FROM SITE/shakey/docman or yourself if you have any thoughts & indeed any other caggers thoughts are welcome) I will be glad to have all this sorted TBH as I am becoming very anxious & stressed with it all now :(

[Mydogsawestie]

Dad I am posting up the Witness statement now ...will this be ok?

 

When I order information on MBNA Europe Bank Ltd I can see

GROUP OF COMPANIES' ACCOUNTS MADE UP TO 31/12/08

 

Thats the one I am paying for am I? I can then include those in the WS with the appropriate figures.

 

Just found this website with the details on for free......shall I print this off to include instead?

http://www.tuc.org.ukwww.ippr.org.ukwww.worksmart.org.uk/company/company.php?id=02783251

Annual profit: £284,000,000.00

 

Have also found the turnover stuff on here page 5

http://www.nwda.co.uk/pdf/NW%20PLC%2009.pdf

annual turnover is £671 million but also includes another pre tax profit figure?

Appellant Witness Statement MDAW.doc

Edited February 16, 2010 by Mydogsawestie

[dad]

Dad I am posting up the Witness statement now ...will this be ok?

 

Yes it looks OK - Although you will have to delete that parts in bracket that do not apply. ie if you use a web site only mention the web site and if you use the companies house accounts only mention them.

 

When I order information on MBNA Europe Bank Ltd I can see

GROUP OF COMPANIES' ACCOUNTS MADE UP TO 31/12/08

 

Thats the one I am paying for am I? I can then include those in the WS with the appropriate figures.

 

Yes that is probably the last set of submitted accounts.

 

Just found this website with the details on for free......shall I print this off to include instead?

your company: MBNA EUROPE BANK LIMITED: company details - from workSMART.org.uk

Annual profit: £284,000,000.00

 

You could use this, but run the slight risk that the judge will not accept the evidence. The advantage of the companies house information is that it has been submitted directly by the company. For the small fee it is one more risk removed. If you are going to use this then you should change your witness statement to include something like:

 

"I examined the web site of the TUC, which is a respected representative body of trades unions in England. It maintains a database of companies in England derived from official companies house data. That database held a record for the Respondent which listed its annual profits as £284 million per annum. I exhibit at MDAWxx a print out of that record which I printed on 16 February 2010."

Have also found the turnover stuff on here page 5

http://www.nwda.co.uk/pdf/NW%20PLC%2009.pdf

annual turnover is £671 million but also includes another pre tax profit figure?

 

The annual profit figure is a suitable one to use.

 

 

HTH

 

Dad

Edited February 16, 2010 by dad
Typos

[Mydogsawestie]

Thanks again Dad, the wording helps too (for the small £1 fee think I will keep to orig suggestion from you then) can I just check with you that in section 7 on the N161 when I do it again I am ticking both set aside and Order a new trial (as per Uni's thread) aswell as inputting that info posted up in #415??

 

In the meantime, as I wait for the other info on #416/#412 I will look at the EX160 form for remission fees, seems this may be applicable to me too.

Edited February 16, 2010 by Mydogsawestie

[dad]

Thanks again Dad, the wording helps too, can I just check with you that in section 7 on the N161 when I do it again I am ticking both set aside and Order a new trial (as per Uni's thread) aswell as inputting that info posted up in #415??

 

In the meantime, as I wait for the other info on #416/#412 I will look at the EX160 form for remission fees, seems this may be applicable to me too.

 

1. Yes, it was a summary judgment hearing. So the outcome you want is: the summary judgment to be set aside (the order), your costs for the summary judgment hearing and appeal and the full hearing where all the evidence is tested that you are entitled to.

 

2. Yes if you are in a DMP you might qualify for a fees remission.

[Mydogsawestie]

Only 2 ticked boxes here in Sect7 then / or all 3 since I'm inc that wording...sorry to keep harping on....my minds all over the place right now

[dad]

MDAW,

 

Section 7 tick the boxes : set aside the order which I am appealing and order a new trial.

 

Section 8

 

In Part A , which is titled: I apply for a stay of execution because

 

Due to the sums involved, if the respondant was able to enforce the order I would have serious financial difficulties as I am currently in a Debt Management Plan. This would give the Respondent an unfair advantage over my other creditors and would have to consider selling our family home of 4 and we would be homeless, in order to pay the balance. To meet the terms of the order it would not be possible to sell it that quickly which could mean selling very substantaily below its market value. If the appeal succeeds I will be unable to then buy it back. As the Respondant is a large company, making millions of pounds per year in profits, they are in a position to hold the enforcement of the order.

 

Then in section 9 put: See attached witness statement.

 

HTH

 

Dad

[Mydogsawestie]

Dad what about the rest of my part 8 where I had information in part c and the because section below it, surely this stops in & some of my evidence in support on section 9 with that attached witness statement

[dad]

MDAW,

 

Section 8

Section 8 deals with 'Other applications'. That is orders IN ADDITION to the main appeal order requested in Section 7.

 

So in your case:

 

Part A

You need to complete this as discussed above because you need a stay.

 

Part B

You are submitting you appeal within 21 days so do not need to complete this part as you do not need an extension of time.

 

Part C

This is intended to deal with any applications before the appeal is heard, eg further disclosure or a some form of temporary injuction to maintain the status quo. It is NOT for you to set out the reasons for appealing.

 

As you do not need any orders other than a stay pending the appeal you can leave Part C blank.

 

Having said the one order you might consider here is to request that the court orders the respondent to prepare the appeal bundles. The advantage of this is that there is a LOT of copying in preparing the appeal bundles. If you do not have access to a copier this can be quite resource intensive. In my case each bundle was 200 pages x 3 = 600 pages, all properly numbered and indexed. The bank will have all the resources to do this. The disadvantage is that you hand control of the bundles to the bank and if you lose it will add to the costs. If you can I would produce the bundles yourself.

 

(Just for completeness I should add that the reasons for appealing are properly set out in the grounds for appeal and skeleton argument).

 

I trust that clears thing up.

 

Dad

[Mydogsawestie]

MDAW,

 

Section 8

Section 8 deals with 'Other applications'. That is orders IN ADDITION to the main appeal order requested in Section 7.

 

So in your case:

 

Part A

You need to complete this as discussed above because you need a stay.

 

Part B

You are submitting you appeal within 21 days so do not need to complete this part as you do not need an extension of time.

 

Part C

This is intended to deal with any applications before the appeal is heard, eg further disclosure or a some form of temporary injuction to maintain the status quo. It is NOT for you to set out the reasons for appealing.

 

As you do not need any orders other than a stay pending the appeal you can leave Part C blank.

 

Having said the one order you might consider here is to request that the court orders the respondent to prepare the appeal bundles. The advantage of this is that there is a LOT of copying in preparing the appeal bundles. If you do not have access to a copier this can be quite resource intensive. In my case each bundle was 200 pages x 3 = 600 pages, all properly numbered and indexed. The bank will have all the resources to do this. The disadvantage is that you hand control of the bundles to the bank and if you lose it will add to the costs. If you can I would produce the bundles yourself.

 

(Just for completeness I should add that the reasons for appealing are properly set out in the grounds for appeal and skeleton argument).

 

I trust that clears thing up.

 

Dad

 

Cheers again Dad

 

Part 8A cannot fit all that information in online which is a shame, have printed out the doc ready part filled and will write it in small instead. Also can I just mention in section 7online it only allows one box to be ticked....shall I still go ahead & tick it by pen the other box too you mentioned.

 

I still need feedback anybody on the grounds for appeal/skeleton as per my posting #412#416 docs up......have red triangled too, hope somebody will be along soon as need it all to be printed off & finished tonight so I can go straight from work to the court with it tomorrow...