OH v BLS/LTSB

[diddydicky]

i think that if they are not in their possession that have to state why and what has happened to them (under your 31.14 request if you made one) so if they failed to answer you could ask for an order for them to supply this information

 

as far as the court order is concerned, clearly they cannot supply what the don't have

[foolishgirl]

i think that if they are not in their possession that have to state why and what has happened to them (under your 31.14 request if you made one) so if they failed to answer you could ask for an order for them to supply this information

 

 

And also you want proof that proper document management procedures had been employed in the production of any copies & that any statement made by an employee complied with the rules of hearsay evidence (Civil Evidence Act).

 

Useful links: Legal Admissibility, Document Management, Document Imaging, Document Scanning | Archival

 

Civil Evidence Act 1995 (c. 38)

[cymruambyth]

i think that if they are not in their possession that have to state why and what has happened to them (under your 31.14 request if you made one) so if they failed to answer you could ask for an order for them to supply this information

 

as far as the court order is concerned, clearly they cannot supply what the don't have

 

The trouble is that the court removed the requirement for the production of the original documents. The Manchester case was after this court order and using the DJ's logic, if it happened after the order date, then it will have no bearing.

[cymruambyth]

And also you want proof that proper document management procedures had been employed in the production of any copies & that any statement made by an employee complied with the rules of hearsay evidence (Civil Evidence Act).

 

Useful links: Legal Admissibility, Document Management, Document Imaging, Document Scanning | Archival

 

Civil Evidence Act 1995 (c. 38)

 

OH has seen hearsay accepted in civil court and following argument that POC can be amended on the day:eek: due to CPR, didn't think it was worth following this argument, even though it was in WS.

[foolishgirl]

The trouble is that the court removed the requirement for the production of the original documents. The Manchester case was after this court order and using the DJ's logic, if it happened after the order date, then it will have no bearing.

 

Read the Manchester case again Cy - not only was it a debtor (i.e. not a creditor) taking the action to see if an agreement was enforceable in law, I think you will find it only removes the need to supply an original under an S77/78 request or a CPR31.16. It alters nothing re. producing an original in court as part of a action instigated by a claimant. CPR 16 (7.3) states that an original of a written agreement should (not must!)be available at the hearing. A DJ has therefore always been at liberty to accept a copy but it is up to you to ensure that unless it can be proved how that copy was made (eg. by verifying hearsay evidence), doubt is thrown on the authenticity of it being a 'true' copy as defined by the CCA1974 & not acceptable.

OH has seen hearsay accepted in civil court and following argument that POC can be amended on the day:eek: due to CPR, didn't think it was worth following this argument, even though it was in WS.

 

I beg to differ with your OH - it most definitely is worth pursuing! Hearsay evidence is permissible in court but it must be verifiable (see above) i.e. they cannot just produce a statement from a current employee who didn't actually do the copying. So if you get a hearsay evidence from the other side you need to make them produce proof that the person making the statement was employed by the company at the time, the position they held at that time & their responsibility for the actual process. If they can't do that, how can they claim the authenticity of hearsay evidence. It's no better than saying 'ah well, I know it's true 'cos a friend of a friend told me'!!

 

As I've said before, I'm not sure the POC amendments should have been accepted but I don't know all the details of that.

 

Hope that's clearer...

[cymruambyth]

Think the mud is starting to clear!

Re Manchester, I was applying the logic that the DJ used re DNs, OFT ruling aftre DN issued, so didn't count.

It's the should v must argument that concerns me most.

[foolishgirl]

Think the mud is starting to clear!

Re Manchester, I was applying the logic that the DJ used re DNs, OFT ruling aftre DN issued, so didn't count.

 

He was wrong - that's why you're appealing!

It's the should v must argument that concerns me most.

 

And that's where the Civil Evid. Act & the Doc. Management come into play. Also don't forget that all docments pertaining to a business are supposed to be kept for 6 years following the closing of the account.

 

It doesn't say much for the standards of accounting of the claimant or for the importance they should have attached to the agreement if they couldn't be bothered to keep it, does it? If the claimants didn't have the documentary evidence to prove their case, they shouldn't have commenced the action. The burden of proof is on them to sustain their argument, not you to disprove it - although in practice, it doesn't always seem like that.

FG

[diddydicky]

Read the Manchester case again Cy - not only was it a debtor (i.e. not a creditor) taking the action to see if an agreement was enforceable in law, I think you will find it only removes the need to supply an original under an S77/78 request or a CPR31.16. It alters nothing re. producing an original in court as part of a action instigated by a claimant. CPR 16 (7.3) states that an original of a written agreement should (not must!)be available at the hearing. A DJ has therefore always been at liberty to accept a copy but it is up to you to ensure that unless it can be proved how that copy was made (eg. by verifying hearsay evidence), doubt is thrown on the authenticity of it being a 'true' copy as defined by the CCA1974 & not acceptable.

 

 

Hope that's clearer...

 

not only that- but the other side has to inform you and the court in advance if is seeks to introduce a heresay witness statement

[summerbreeze]

not only that- but the other side has to inform you and the court in advance if is seeks to introduce a heresay witness statement

 

Hi DD

 

Please would you tell me where to find that statement in the CPR

 

Thanks

SB

[the_shadow]

Hi DD

 

Please would you tell me where to find that statement in the CPR

 

Thanks

SB

 

 

Hope this helps.

 

Civil Evidence Act 1995 (c. 38)

 

S.

[summerbreeze]

Thanks Shadow

 

But what about this part of the CEA

 

Proof of records of business or public authority

(1) A document which is shown to form part of the records of a business or public authority may be received in evidence in civil proceedings without further proof.

(2) A document shall be taken to form part of the records of a business or public authority if there is produced to the court a certificate to that effect signed by an officer of the business or authority to which the records belong.

 

Would they be able to rely on that part ?

 

Thanks

SB

[the_shadow]

Thanks Shadow

 

But what about this part of the CEA

 

Proof of records of business or public authority

(1) A document which is shown to form part of the records of a business or public authority may be received in evidence in civil proceedings without further proof.

(2) A document shall be taken to form part of the records of a business or public authority if there is produced to the court a certificate to that effect signed by an officer of the business or authority to which the records belong.

 

Would they be able to rely on that part ?

 

Thanks

SB

 

Possibly they'll try but then you'd argue

 

PRACTICE DIRECTION – STATEMENTS OF CASE - Ministry of Justice

 

7.3

 

Where a claim is based upon a written agreement:

 

 

(1) a copy of the contract or documents constituting the agreement should be attached to or served with the particulars of claim and the original(s) should be available at the hearing,

 

 

 

 

and back this up with this from BRW

 

Hearsay Evidence backed up with hard Document Management System evidence is likely to be taken seriously...but not as seriously as the original. The fact remains that Hearsay Evidence is not the original, so can never match that in terms of its weight as hard evidence.

 

The task is to present the above to a Judge in such as way that the Judge does not simply accept a dubious copy of an alleged Agreement, just because it has been stamped by a banker saying it is a Certified Copy. Likewise, a Judge should also be aware that a Witness Statement by a banker claiming the copy is a copy of the original should not be taken seriously simply because a banker claims to know about the alleged Agreement without elaborating on why they feel they are in a position to say this. Just being employed by the bank in question is not good enough.

 

Many Witness Statements by bankers claiming to know about an alleged Agreement would not stand up to close cross-examination if the banker is asked probing questions about their time at the bank, which departments did they work within and when, and where are the logs bearing their signature to confirm they were involved with the alleged Agreement all the way from draft, legal consultation, artwork brief, artwork checking, artwork signing off, authorisation to Print on Press, cross-checking original brief with the Printed material coming back from the Press (to make sure there were no Printing Errors such as forgetting to print the Terms on the rear page for example), receipt of Stocks of the blank Agreement at the bank, stocking/security of the blank Agreement, collation of the blank Agreement for despatch to the Consumer (cross-checking that the correct Agreement was sent), Despatch/Posting of the alleged Agreement to the Consumer, booking in/receipt of the completed alleged Agreement from the Consumer, inspection of the alleged Agreement from the Consumer, credit checking of the Consumer before Authorising the Agreement, Execution of the alleged Agreement by the bank, storage/security of the executed alleged Agreement by the bank, authorisation to Copy the executed alleged Agreement by the bank, method of Copy by date/employee/equipment, archiving of Copy or Copies of the alleged Agreement (copies will be plural if it is a two-sided Agreement), authorisation to shred/destroy the original alleged Agreement...then a complete history of the copy/copies from Scanning/Copying until the present day.

 

Now, you have to ask, would it not have been simpler to retain the original?

 

Never, ever, trust a bank that cannot produce the original alleged Agreement. Force them to validate the Hearsay Evidence copy, and do not let them get away with wishy washy Certification Signatures or dubious Witness Statements made by people who were not actually a Witness to the complete history of the copy document(s) in question.

[cymruambyth]

Still in a post free zone. Nothing from court or LTSB:(

[cymruambyth]

Great British legal system:mad:

Due to the weather ....... causing staff shortages ...... neither the order nor the N460 has been posted yet! Judgements are still being written up from November.

'DJ will say if you were there then you should know what was said'

I was very polite in my reply and reason for wanting paperwork:)

[foolishgirl]

Due to the weather ....... causing staff shortages ...... neither the order nor the N460 has been posted yet! Judgements are still being written up from November.

'DJ will say if you were there then you should know what was said'

 

Did you say these people worked in the court??!!

 

I was very polite in my reply and reason for wanting paperwork

 

Well done you, I couldn't have kept my mouth shut.

 

 

There's not much you can do then right now, is there?

Perhaps you could start drafting your appeal grounds & then amend as necessary when you get info. You only have 21 days so you will need to get it in with all speed when you do have everything.

I suggest dropping a note to the court confirming what you were told (above) & informing them that as a result, although you will try & get the appeal lodged within the time limits, your WS may be delayed due to events (or non-events!!) beyond your control.

Edited January 13, 2010 by foolishgirl
addition

[diddydicky]

if they are delaying you for the appeal i would write and fax a letter to the court pointing out that the information is for an appeal and that in view of the delay being caused by the court itself you would expect an extention to the deadline

[citizenB]

Sheesh.. I wouldnt have been able to restrain myself either FG.

[johnerog]

Just subbing and supporting.

[cymruambyth]

'An appeal would not stand a good prospect of success. The judgement involved findings of fact which were properly made. the Defendant applied for an adjounrment to consider the case of Carey v HSBC which was handed down on 23 December 2010, but I considerd that an adjounrment was not proportianate in view of the poor prospects of success and considered that an adjournment was not proportinate.'

[foolishgirl]

I assume this is the judgment Cy?

 

'An appeal would not stand a good prospect of success. The judgement involved findings of fact which were properly made.

 

My rs! But he would say that wouldn't he?

the Defendant applied for an adjounrment to consider the case of Carey v HSBC which was handed down on 23 December 2010, but I considerd that an adjounrment was not proportianate in view of the poor prospects of success and considered that an adjournment was not proportinate.'

 

He doesn't know the difference between proportionate & appropriate (which I think he meant) No wonder he didn't want to consider Carey, maybe beyond his comprehension. But that doesn't give him the excuse not to permit you to consider it.

 

I assume no news on the transcript Cy.

[cymruambyth]

Yes, it was the judgement. Al spellings and grammar were copied!

I agree his use of proportionate seemed unusual!

[foolishgirl]

Yes, it was the judgement. Al spellings and grammar were copied!

I agree his use of proportionate seemed unusual!

 

Unusual? Hmm...or downright Mr. Malaprop.

 

OED definition: proportional - 1. corresponding in size or amount to something else 2. Mathematics (of a variable quantity) having a constant ratio to another quantity.

 

Not sure how this would relate to the circumstances of his refusal to adjourn but another little treasure to tuck away for your appeal maybe? :grin:

[citizenB]

'An appeal would not stand a good prospect of success. The judgement involved findings of fact which were properly made. the Defendant applied for an adjounrment to consider the case of Carey v HSBC which was handed down on 23 December 2010, but I considerd that an adjounrment was not proportianate in view of the poor prospects of success and considered that an adjournment was not proportinate.'

 

Yes, it was the judgement. Al spellings and grammar were copied!

I agree his use of proportionate seemed unusual!

 

[freethemice]

Subbing with interest. I was subject to a simular assult at hearing but managed to survive it because the evidence had not been produced 14 days before the hearing as directed and Nationwide had not asked the courts permission to use a barrister from Eversheds to present their case.

The answer here may lie in your files.

n my case I have questioned several times why the prescribed terms were not in the one page document were not included to be told clearly this was a true copy and was enforceable.

To show a diferent document in court and assert it is what your credit agreement would have looked like is to my mind purgery.

You should have accepted the adjournment to consider the evidence though.

Best of luck.

[cymruambyth]

.

You should have accepted the adjournment to consider the evidence though.

Best of luck.

 

my request for an adjournment was rejected:evil: