OH v BLS/LTSB

[cymruambyth]

So it appears that **** don't negotiate, but would prefer to go straight for charging orders:mad:

[foolishgirl]

So it appears that **** don't negotiate, but would prefer to go straight for charging orders:mad:

 

Don't worry, they should only be able to obtain a CO if you don't make the payments scheduled by the court (or agreed by ****). If **** won't play ball with agreeing a payment plan, you can apply to the court at any time for an order for payments but you would have to show that you haven't got the cash & can only afford the monthly amount you are prepared to offer. You would prob. have to fight a CO application too.

[cymruambyth]

Thanks, I think:(

[cymruambyth]

Can you appeal if y ou haven't got the transcript yet?

[the_shadow]

Can you appeal if y ou haven't got the transcript yet?

 

I think you have to provide the judgment transcript as part of the appeal bundle.

 

S.

[cymruambyth]

Section 10 of N161 states 'reasons why you have not supplied a document and a date when you expect it to be available'

[cymruambyth]

Assuming the transcript can arrive late (snow, no post, no electricity), does anyone have case law for POC being amended (just clause numbers) at the hearing?

[foolishgirl]

Assuming the transcript can arrive late (snow, no post, no electricity), does anyone have case law for POC being amended (just clause numbers) at the hearing?

 

Do you mean 'grounds for appeal' rather than POC?

 

Almost sure you won't be permitted to amend at the hearing but will check if you can make application to amend before that.

 

Who is holding it up - the court or the transciber? If the court, give them a call & a push & ask what the position is on the deadline.

Suggest you then confirm thier comments in writing, stating that you wish to appeal but that the transcipt has been delayed, give the reasons & crave their indulgence on the deadline.

Edited January 21, 2010 by foolishgirl
addition

[cymruambyth]

Thanks FG.

Sorry I wasn't clear, I meant case law for POC being amended on day of trial that can be used in an appeal.

[foolishgirl]

My fault cy - you wer very clear, I misinterpreted your intentions.

 

The rules relating to amendments to POCs (statements of case) come under CPR17. Don't think there is any law as such (DJs seemingly being a law unto themselves at the moment ) that forbids amendment at the hearing but in the interests of fairness & justice, it would have to be a 'de minimis' issue eg. spelling, otherwise you have been denied the opportunity to consider the amendment & make an informed defence to it.

[cymruambyth]

Thank you. I hadn't progressed beyond 16!

[cymruambyth]

Sorry if this is a stupid question..... My interpretation of this rule is that POC can be changed with the permission of the court, it has to be before court, there should be a statement of case. And

17.4 states (2) The court may allow an amendment whose effect will be to add or substitute a new claim, but only if the new claim arises out of the same facts or substantially the same facts as a claim in respect of which the party applying for permission has already claimed a remedy in the proceedings.

Then surely, permission should not have been granted as regards the defendant, the substitution of clauses will have altered the case and the grounds for defence.

[cymruambyth]

Gosh it must be going home time for the guests:D

[foolishgirl]

but in the interests of fairness & justice, it would have to be a 'de minimis' issue eg. spelling, otherwise you have been denied the opportunity to consider the amendment & make an informed defence to it.

 

T

Then surely, permission should not have been granted as regards the defendant, the substitution of clauses will have altered the case and the grounds for defence.

 

Exactly the point I was trying to make above.

[cymruambyth]

Sorry, if I was being a bit thick, just trying to sort out the legalities for the different grounds! There doesn't seem to be much on this one.

[foolishgirl]

Course you won't really know until you have the transcript but have you looked into this possibility?

 

Rights to a fair trial as laid out under Article 6 of the Convention rights contained within the Human Rights Act 1998.

Edited January 21, 2010 by foolishgirl
afterthought

[Nagasis]

Hi cy, i spent this afternoon reading your whole thread. I was very dissapointed to see you were unlucky in the judge lottery. You with the help of others made a very impressive case.

 

goodluck with your appeal

[cymruambyth]

Thanks for your support Nagasis, if nothing else I hope this warns people of the dangers of [problem] and how things can go wrong!

FG that's an interesting angle that I will look into!

RE transcript, didn't send request RD and court have a mail backlog. They have made an entry against case file of my comments/request.

[cymruambyth]

Just to clarify, in your appeal bundle (if it does go ahead), you have to include all the statements and documents etc, but not at this stage copies of case law and acts etc.

Thanks

C

[foolishgirl]

RE transcript, didn't send request RD and court have a mail backlog. They have made an entry against case file of my comments/request.

 

Not sure where you are up to now Cy.

Did you send the N460 & do you know what stage it's at?

Have you contacted a transcriber & do you know how long that will take?

 

Just to clarify, in your appeal bundle (if it does go ahead), you have to include all the statements and documents etc, but not at this stage copies of case law and acts etc.

Thanks

C

 

You have to include EVERYTHING you want to refer to so this would include all case law (in full, not just relevant clauses) but you should have most of it from copies from your hearing. (To save on printing, you can set up your print to 2 sheets to a page). It will be a big bundle!

 

Use BRW's post 360? - he has laid it all out so clearly there.

Edited January 22, 2010 by foolishgirl
addition

[cymruambyth]

I've been following BRW's guidance. When I looked at Shakespeare62's bundle

http://www.consumeractiongroup.co.uk/forum/legal-issues/191784-shakespeare62-nastybank-10.html post 197 he referred to case law but I can't see that he has included the whole cases

Edited January 22, 2010 by cymruambyth
Fonts..........again!!

[foolishgirl]

I think Shakespeare sent in his skelly 14 days after the appeal bundle & the authorites (case law etc) were included with that. (Think of a skelly like a WS in a CC hearing where you submit your exhibits with the WS)

 

If you are intending sending the whole lot together (& sometimes it's advisable as the bits then shouldn't get seperated or mislaid by the courts) you need to send the bundle complete with case laws. But if you think you need the extra time to prepare the skeleton, you can just send in the basics.

[cymruambyth]

Thank you

[diddydicky]

and the creditor said

 

alas poor yorath- i knew him well!!

[cymruambyth]

Any comments gratefully received:)

 

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. As a result the order was made ultra vires. 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 allowing the Claimant to amend the clauses listed in the Particulars of Claim, District Judge [X] has failed to comply with CPR 17 paragraph 4.

 

BREACH OF ARTICLE 6 - EUROPEAN CONVENTION OF HUMAN RIGHTS

 

3. I further submit that by allowing the Claimant to amend the clauses listed in the Particulars of Claim, 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 - MANCHESTER MERCANTILE COURT RULING

 

4. The District Judge misdirected himself by referring to an email that he had received that morning concerning a case that had taken place in the Manchester Mercantile Court regarding the xxxx .He would not have had sufficient time to fully research this ruling with a full docket of hearings. The District Judge and barrister for the Respondent discussed which parts of the judgement were applicable to this case and refused permission for an adjournment to consider the introduction of new case law.

 

 

MISDIRECTION - DOCUMENT LEGIBILITY

 

5. District Judge [X] misdirected himself by stating that in his judgment that the front page of the agreement was not easy to read, but still permitted its use as evidence. The copy of the agreement is illegible and is called an Application Form, and in doing so, fails to comply with the mandatory 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 which are 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 – DISMISSAL OF OFT RULING ON CHARGES

 

8. District Judge xxxx misdirected himself by dismissing the Office of Fair Trading guidance issued in April 2006 regards unlawful credit card charges. Following an OFT investigation into credit card default charges that the OFT concluded that many credit card charges were unreasonable.

The Defendant avers that the District Judge misdirected himself by dismissing this ruling as it had occurred after the issue of the Default Notice.

 

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

 

9. 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 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