OH v BLS/LTSB

[banker_rhymes_with]

Hello C!

 

Good Post by DD, covers a lot of the ground that you need to get your own head around.

 

CB asked me to drop in WRT The Civil Evidence Act 1995 etc.

 

This link is worth reading, because it covers the steps that any diligent group would need to consider if wishing to store documents electronically that they may later need to use as evidence in Court:

 

Legal Admissibility, Document Management, Document Imaging, Document Scanning | Archival

 

I must stress that the above is geared to plain old documents, memos, letters, things like that.

 

I maintain that original copies of more important documents should always be retained, such as Written Contracts and/or signed/written Regulated Credit Agreements.

 

Anything less is Hearsay Evidence, and must inevitably be accorded a lower weight in terms of it being used in Court by comparison to presenting the real thing. The real original Agreement is hard Evidence, it cannot be regarded as Hearsay Evidence and it needs no Witness Statements or Witnesses to back it up. It can stand on its own two feet and win the day for the bank if it has your Signature and the Prescribed Terms contained within the four corners of it.

 

Thus, I'm sure we'd all agree that if they pitched up with the original, signed in ink by you, that contained the Prescribed Terms, then you would have to accept that as positive Evidence that they have always had a binding and enforceable Agreement (the Default Notice could rain on that parade however!).

 

Thus, if it's not the original Agreement, then it can only be Hearsay Evidence, because a copy is wholly incapable of standing on its own two feet and winning the day for them (unless the Judge had big pockets on the Golf Course for a big fat brown stuffed envelope)!

 

OK, if it is Hearsay Evidence, then you must make it quite clear to the Court that it is nothing better than second rate evidence.

 

Once you get that point across, then no matter how many Witnesses or Witness Statements they conjure up, these can only ever elevate Hearsay Evidence into slightly better Hearsay Evidence.

 

Your job then is to go on the offensive, and rip their Witness Statements and Witnesses to shreds, based on the Document Management issues, as outlined by X20 and the above link I have provided. Think dates, think procedures, think signatures, think authorisations...pretty soon you will spot where they are trying to baffle you with bank poop, in order to hide the fact that they don't have the Agreement (that's if one ever existed that was properly executed), and they don't have anyone who can actually say what happened to it and when without swearing blind for the bank.

 

I hope this helps.

 

Cheers,

BRW

Edited December 4, 2009 by banker_rhymes_with
Foooood for thought!

[banker_rhymes_with]

Hello CB!

 

Dropping in, as requested!

 

I do so hope you have that in writing...

 

to me its basically saying... he brings no proof or testimony to this hearing of the validity of this document save it was extracted out of computer records on xx date, as to the creation/validating of the original document his input is worthless and as such it calls into serious question whether this copy is a valid copy of the original unaltered prior to scanning/copying.

 

I think that says it all! I agree 100%.

 

The Witness just made it clear he/she/it is no Witness.

 

Witless, certainly, but not a Witness!

 

Cheers,

BRW

[banker_rhymes_with]

Hello C!

 

Sounds like you have been stitched up.

 

The Manchester Test case has been used incorrectly against you. In this case the bank is the Claimant, and to enforce they need to prove their case and show they have an Agreement, signed by you, that was compliant with s61(1)(a).

 

Plus, they needed an effective s87(1) Default Notice.

 

The DJ may have been nice as pie, but he/she has misdirected him/her self.

 

I would seriously consider an Appeal. The DJ can refuse an Appeal, but has to complete Form N460 stating their reasons. Ask for that ASAP, because you will need that if you are to Appeal. The DJ refusing it means not a lot, particularly if they were wrong, and especially if **** ambushed you in any way.

 

I think we need to hear all, and then we can see if you have reasonable grounds for an Appeal.

 

The lower Court Judges are a nightmare, but Appealing is one way to put right the wrong.

 

Must dash for food, but sorry to hear you have been shafted by the old Judge Lottery.

 

Cheers,

BRW

Edited January 4, 2010 by banker_rhymes_with
Stray word deletion! N460 Typo

[banker_rhymes_with]

Sounds like the Judge didn't need the Claimant, he/she was happy doing their job for them.

 

Cheers,

BRW

[banker_rhymes_with]

Hello C!

 

hi everyone thanks for the support and advice. I have sent for the N460 and will post for advice when I receive it.

 

Should I enquire about the transcript now or can I wait until the form arrives and I have some idea about what I am going to do? Don't want to pay out money I haven't got !

Sadly, the Transcript will be needed ASAP, so it is something that you need to crack on with ASAP.

 

The way it works is you can only use an Authorised Transcriber, but there are many on the Court lists, and their prices do not seem to vary a great deal. There is one I can recommend, only because they have been helpful to several Caggers. I have no link to them other than this. I will PM the details.

 

The Transcript itself is effectively divided into two sections:

 

(1.) The Hearing (without the Judgment).

 

(2.) The Judgment (without the Hearing).

 

The minimum you will need for an Appeal is (2.) The Judgment, although I would advise getting (1.) The Hearing as well, because that is where a lot of the chit chat went on, where you can point to, and quote, specific areas where the Judge misdirected him/her self.

 

There can only ever be one Judgment Transcription, because that is only ever done once, because that has to be approved by the Judge before it is released. In effect, the Judge can and will tweak that and I'm sure it can and will deviate from the actual words spoken and initially transcribed.

 

Anyway, once the Judgment has been done, a 2nd version is not allowed mainly because the Judge won't authorise a 2nd one.

 

The Hearing Transcription can be done more than once, i.e. by two different transcribers, but given the cost are likely to be similar, it is usually cheaper to simply buy a copy from the Transcriber who has already done it. Main problem is knowing if it has been done already!

 

In your case, it's probably unlikely that the opposition will bother with a Transcription, but they will almost certainly want a copy of the Judgment if you Appeal. They will have to buy that from your Transcriber, if so, but that is another matter, and nothing worth getting excited about. In effect, it's a little extra money for that Transcriber. Indeed, they may not bother, because they will get a copy of the Judgment in your Appeal papers anyway. It really depends on how keen they are to see you off at the Appeal, i.e. if they want a copy sooner rather than later.

 

The cost depends on the length of the whole Hearing (i.e. Hearing plus Judgment), and the number of spoken words. The quality of the Tape Recording is also an issue, but you won't know that until the Transcriber moans about it!

 

I can't say a cost, but if the Hearing was, say, 3 hours, then the approximate costs would be £400 for the Hearing and maybe £120 for the Judgment. I could be miles out, but it's in that sort of ball park. If your Hearing was only an hour or two, adjust down, and you won't be far out.

 

To organise the Transcript, you need to firstly select a Transcriber, then download and complete Form EX107:

 

Her Majesty's Courts Service -Forms and Guidance

 

Complete that, and submit to the Court, and they should then release the Tapes directly to your Transcriber.

 

Then the key issues you need to get your head around are:

 

(A.) The Appellant's Notice.

 

Her Majesty's Courts Service -Forms and Guidance

 

(B.) The Grounds for Appeal.

 

This is key, and will be the key legal points to support your Appeal. Start working on this straight away, and people here will, I am sure, give you all the help you need. Read more about Appeals here:

 

PART 52 - APPEALS - Ministry of Justice

 

And the related Practice Directions here...

 

PRACTICE DIRECTION 52 – APPEALS - Ministry of Justice

 

(C.) The Route for Appeal.

 

This is just the technical route, and will depend on various factors, seniority of Judge, type of Judgment etc. Read all about that here:

 

Her Majesty's Courts Service -Forms and Guidance

 

The following link may also help if you need any CPR Forms:

 

CPR Forms:

 

CPR - Forms - Ministry of Justice

 

OK, now the serious bit, you have just 21 days to submit your Appeal, otherwise you will be out of time, and then into the more hostile zone of making an Appeal Out of Time. You need to avoid that!

 

The main things you will need to collect and collate within the 21 days and include in your Appeal Bundle are the following:

 

The Appeal Bundle

 

(i.) Appellant's Notice.

 

(ii.) Grounds for Appeal, usually included at the end of the above.

 

(iii.) Skeleton Argument (but this can follow +14 days afterwards, so long as you get the main Bundle in within the 21 days).

 

(iv.) The N24 Order of the Judgment (which you should be getting soon anyway).

 

(v.) A completed/sealed/signed copy of Form N460 by the Judge, i.e. where the Judge has stated their reasons for refusing the Appeal.

 

(vi.) The Transcript (preferably Judgment and Hearing).

 

(vii.) Appeal Supporting Documents. That would be everything in effect, bound into chronological order, and page numbered into a 2nd section where anything key can be referenced by your Appellant's Notice or your Grounds for Appeal.

 

The above is not as bad as it looks. The task is mainly a case of getting it all done and collated within the 21 day time frame. The actual doing is not that bad...the N161 is just a Form, and the Grounds for Appeal is just a one or two page document, similar to a Defence, but setting out the key legal points. The rest is mainly bumf, most of which you already have from the Hearing.

 

I hope this helps.

 

Cheers,

BRW

Edited January 6, 2010 by banker_rhymes_with
Typo

[banker_rhymes_with]

Hello C!

 

It would be wise I think to tell the Court that you are going to Appeal, and add that due to the weather and now a lack of electricity, you will have trouble getting everything ready within the 21 day deadline...although you will submit the Appeal on time, but it may not be complete!

 

That then sets the stage, and nobody can accuse you of making anything up as the deadline looms. It will be on record, and you can show that you advised them well ahead of the deadline...rather than leaving it until the last minute to tell them, which won't look so convincing when the sun is shining and we have nice weather (some hope!).

 

Cheers,

BRW

[banker_rhymes_with]

Hello CB!

 

Most Courts would be willing to fax a copy of, say, Form N460, because it's usually just a single page.

 

But the rest is all down to cymruambyth to organise, I regret. The Transcript(s), for example, do not exist until the tapes are sent to the transcriber to create...and the Judgment copy has to go back to the Court for the Judge to read, and then fiddle with until it sounds more flattering for them before their superiors read it! That can take time, particularly if the Judge is tardy in dealing with it.

 

Keep it all in writing, and make a note of all dates so that any blocking tactics by the Judge (to delay things and put pressure on the 21 day timescale) can be shown by the paperwork.

 

Cheers,

BRW