OH v BLS/LTSB

[foolishgirl]

As you don't yet have the judgment or transcript, this has to be work in progress so initial comments below FWIW:

 

1. This is an appeal under CPR 52.11(3)(a) against an order by District Judge xxx dated xxxxx [Appeal Bundle ]. The Appellant claims that the District Judge misdirected himself as to the law and was wrong. The Appellant further claims that as a result of an irregularity in the proceedings, the appellant was denied the opportunity of a fair trial.

 

As a result the order was made ultra vires.

Not sure this is the correct terminology - the court did have the power, the DJ just made wrong decisions relating to the applicable legislation.

 

In addition there were failures to comply with the Civil Procedure Rules and the Civil Bench Book which (i) substantially undermined the Defendant's case and (ii) resulted in the parties being on an unequal footing. Further there was a failure to comply with the provisions and case law of the European Convention on Human Rights and Fundamental Freedoms which resulted in the Appellant being denied a full and fair hearing.

 

MISDIRECTION - BREACH OF CPR 17

2. I submit that by permitting the Claimant to amend the clauses listed in the Particulars of Claim, District Judge [X] has failed to comply with CPR 17 paragraph 4.

 

IRREGULARITY IN PROCEEDINGS

3. The DJ permitted substantial new evidence to be submitted by the claimant at the hearing in the form of a lengthy judgment that had taken place in the Manchester Mercantile Court on xxxx referred to as Carey v HSBC Bank Plc [2009] EWHC 3417 (QB) (23 December 2009)

I had no prior knowledge or notification of this document & my request for an adjournment to assess the impact that this new case law may have had on my defence was refused.

BREACH OF ARTICLE 6 - EUROPEAN CONVENTION OF HUMAN RIGHTS

4. I submit that by allowing the Claimant to amend the clauses listed in the Particulars of Claim & by his refusal to adjourn to enable new case law to be properly assessed by both himself & both parties, District Judge [X] has failed to meet the overriding objective in CPR 1.1(2)(a) "ensuring the parties are on an equal footing", or to deal with the case justly. This has also contravened the Defendant's rights under Article 6 ECHR and associated guidance from section 8.2 Civil Bench Book quote "Article 6 gives a party to a hearing the right to put his case forward under conditions that do not put him at a disadvantage in relation to his opponent"

 

MISDIRECTION - DOCUMENT LEGIBILITY

5. District Judge [X] misdirected himself by stating that, in his judgment, the front page of the agreement was not easy to read, but still permitted its use as evidence. The copy of the alleged agreement (entitled Application Form) that was presented by the Claimant was illegible and as such, fails to comply with the statutory requirements of the Consumer Credit (Agreements) Regulations 1983.

 

MISDIRECTION – NO ORIGINAL AGREEMENT IN COURT

6. The District Judge misdirected himself by allowing the use of a copy of an application form to be taken as the substantive document. The Claimant did not have the original credit agreement referred to in the particulars of claim at the hearing on xxxxx for the court to examine. Furthermore, important issues regarding the original document were pleaded in the present case, namely the right to inspect the original document under CPR 31.15, the consequences of failing to allow inspection - CPR 31.21, and the duty of the creditor to produce the original in Court - CPR 16 Practice Direction 7.3

 

7. The Defendant had evidence that the Claimant did not have this document and no attempt was made to adduce hearsay evidence in accordance with the correct procedures, as stated in The Legal Admissibility of information stored on Electronic Document Management Systems and the Civil Evidence Act 1995.

 

MISDIRECTION - FORM & CONTENT OF THE AGREEMENT

8. The CCA1974 S60 & S61 are quite specific that in order to be enforceable in law, a credit agreement must contain certain prescribed terms & must be signed by both the debtor & the creditor. The above document produced by the claimant did not fulfil this statutory requirement & the DJ failed to observe the provisions of S127(3) that stipulates that a court may not enforce an agreement that does not comply with the clauses stated above. His decision was therefore wrong

MISDIRECTION – DISMISSAL OF OFT RULING ON CHARGES

9. District Judge xxxx misdirected himself by dismissing the Office of Fair Trading guidance issued in April 2006 regarding unlawful credit card charges as not being applicable in this case.

The OFT ruling is applicable to all unfair & unreasonable charges whenever they were incurred, either before or after this ruling & the DJ's decision to dismiss this point was wrong.

 

MISDIRECTION – WOODCHESTER V SWAYNE & CO [1998] EWCA CIV 1209

10. District Judge xxx misdirected himself regarding the relevance of Woochester v Swayne & Co [1998] EWCA Civ 1209, in that it is not about the actual error of the Default Notice but the need for accuracy of the Default Notice in order for it to comply with the Act. Lord Justice Kennedy stated in the conclusion of that case “The lender has the ability and the resources to give that information with precision. If he does not do so accurately then he cannot take what Mr Gruffyd conveniently referred to as "the next step".

 

MISDIRECTION – USE OF DOCUMENT NOT INCLUDED IN TRIAL BUNDLE

10. The District Judge misdirected himself by allowing the Claimant to read from a document which was not listed in the trial bundle and which could have been deemed prejudicial to the Defendant

Which one was that - the Manchester case?

[cymruambyth]

Thank you for your time and effort thus far. Atleast there is still some black ink left this time:D

The last point was for a letter from the SRA in response to our complaint that [problem] had told us that they had a SJ and sent a paying in book. Barrister (after explaining what the SRA was) read out part of the letter basically saying that they had complied with CPR 31.14 by supplying an application form with copy typed t&cs, which was an agreement.

[humbleman]

C

 

When does your appeal need to be in by.

[cymruambyth]

Hi next couple of days.

I've prepared everything, but OH still isn't sure he wants to take the risk!!!!!

[Mydogsawestie]

hi cymruambyth...hows things?

 

I haven't had my court order yet for my judgement at my hearing last Thurs 28th Jan. I waited around for my N460 that day tho having learnt from the delay both you & Humbleman posted on my thread, and had the copy judgment in writing but I was just wondering when my 21 days to appeal begins as I dont want to be missing any deadlines. Without having anything in the post yet from the court or Restons (in my case) I was just wondering if you knew?

 

In the meantime well done in your stance so far...I have been gaining lots of information & advice from you & other threads so far in my determination of appealing too.

[foolishgirl]

The 21 days start 'after the date of decision of the lower court that the appellant wishes to appeal' (CPR52) - even if you have not received the judgment in writing although you will need that judgment to accompany your appeal application so pester the court for it.

[Mydogsawestie]

Thanks for the advice foolishgirl...I had my judgement papers attached to the Notice of Hearing from the court which I posted up on my thread (permalink http://www.consumeractiongroup.co.uk/forum/legal-issues/185814-d-judge-made-wrong-15.html#post2714887)

 

So if the 21 days to appeal start after the date of the decision....I will take it day 1 began on the 29th Jan then......cheers for that...MDAW