Shakespeare62 - v - a NastyBank

[shakespeare62]

Good point. I'm thinking of inserting it after the current para 13 of my Witness Statement.

[shakespeare62]

Ok folks, the document at post #597 has been updated (to save disk space). Para 14 has been amended slightly.

 

I think it's good enough. I'll keep you posted.

[dad]

S62,

 

Another line of attack is to ask MdR for the name of the person who actually located the document, so that you can seek permission from the court to summons them to be cross examined on the detail of how the document was stored and located.

 

At present this is completely absent and you could invite the Court to draw adverse inferences from MdR's failure to call any witness with first hand knowledge of the storage and retrieval of the document.

 

Dad

[the_shadow]

S62,

 

Another line of attack is to ask MdR for the name of the person who actually located the document, so that you can seek permission from the court to summons them to be cross examined on the detail of how the document was stored and located.

 

At present this is completely absent and you could invite the Court to draw adverse inferences from MdR's failure to call any witness with first hand knowledge of the storage and retrieval of the document.

 

Dad

 

I concur... if they are seeking to claim this is the "original" and you dispute this fact a complete audit trail should exist for said document, any major filing system will have an in/out logging record whether manual or digital and this MUST be backed up with a proper witness.

 

After all, aren't you dealing with a sophisticated financial institution here...

 

S.

[citizenB]

You need to know if it was Special Delivery or Recorded Delivery.

They say it was found 'on or around 3rd Feb'

 

Saying 'on or about' with such a crucial time scale is not really acceptable.

 

If found on 3rd Feb it would have had to be posted that day by Special Delivery to definitely arrive on the 4th as SD is a guaranteed next day service.

 

Recorded would only be an option for an idiot to use in these circumstances!

 

You could also ask for the paper trail which must have been created to locate the document as well as the location of the 'off site facility' to see if that location tallys with the location of the post office where they went to post it from.

A register is kept of the times that people enter and leave storage facilities normally.[fire regs?]

I'd want a witness statement from the minion that found the agreement.

 

[A forensic exam might find his prints on the document --if you believe CSI on Five USA on Freeview that is-LOL]

 

They claim it was sent via Registered post (for that read Recorded Delivery)

 

Recorded Delivery is NOT a guaranteed "Next Day" service. The only guarantee is the signature (and that is not always available).

 

The receipt of posting, which one assumes the sender would keep for proof and also to check receipt, shows the Location sent from and the time and date. It also has a section which asks if it was posted after last collection.

[citizenB]

S62, have you read the following ?

 

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

 

HTH

[gh2008]

Only some little typos to polish off & me being pedantic

 

Closing " at the end of para 2.

 

comma after which were that para 3.

 

para 6. "It is with respect the Appellant's position" doesn't make sense does it?? Or is that me

 

Para 7. Witness Statement not capitalised like in the rest of the doc

 

para 9 & 10(x2) & 13(x2) & 15. Respondent not capitalised as above

 

p.12 Witness Statement not capitalised

 

p. 14 possession apostrophe needed for Respondent's

 

Brilliant Shaky & best of luck - can't wait to see the outcome .....

[tedney]

A very minor point, which may not be relevant (?) is that the "sender" of the registered/recorded/SD document would need to retain receipt of posting (in addition to the proof of posting) for accountancy purposes, unless the finder of the document subsidises their employer! FWIT.

T

[banker_rhymes_with]

Hello Folks!

 

I trust banks about as far as I could throw a Canary Wharf full of them, so I just cannot imagine that some will not be tempted to simply re-create the records they need, including signatures and names. The harder they work churning out re-created originals , the more convincing it will seem to pliable Judges who simply won't believe it was all dated from 2010 onwards, let alone 1970 onwards.

 

Given some of the recent Court cases, I suspect many are busy creating records to try and show how jolly clever they have been in the past. IOW, if a Witness does appear in Court, armed with a great big folder of copies of other Agreements similar to the one being contested in Court, saying they took these copies from their extensive records, what is a blinkered Judge going to think?

 

If a Consumer stands up and says they are all recent recreations, how can they prove that, when the banks won't be willing to prove otherwise, but will rely instead upon sheer weight of (new) material. Indeed, I can imagine the banks sending an innocent Witness, who did honestly grab the material from their Archives, not knowing it had all popped into existence only a few Months beforehand.

 

Any attempt to pin them down, and they will drip and moan about the disproportionate cost and effort required to tease out the actual employees with true first-hand knowledge for proper cross-examination.

 

Given how useless so many of them have been to actually come up with any proof of their record keeping, I just do not believe they had armies of real people being so amazingly diligent doing all their filing for them in the 1970s, 1980s, 1990s and 2000s!

 

The Witless Statement by Poopcon de Rancid is ample evidence of how they will slither, twist and turn to avoid saying or doing anything when someone gets close to the truth. They will do what ever it takes to avoid the issue and, in turn, present themselves as a very hard target to hit between the eyes.

 

The thing I would really like to see, is all the behind the scenes correspondence that goes on between the banks and the Courts. Is there any way we can demand full access to such material? I somehow doubt it, but no harm asking.

 

Cheers,

BRW

[diddydicky]

i take your points brw, however is suspect that the people who have to do the legwork (in retreiving the actual files) are lowly clerks and i doubt very much that their loyalty to the company stretches to perjuring themselves

[banker_rhymes_with]

Hello DD!

 

I think you've missed my point.

 

The people they will send will honestly believe what they are required to Witness, i.e. that they were told to go and retrieve the documents, found them, and here they are in Court.

 

The people we won't see, will be the ones with first hand knowledge. They will remain nameless and wholly unaccountable, and they will use slippery Lawyers to avoid such staff being called, let alone named.

 

The banks are considerably less honest than many realise.

 

Cheers,

BRW

[diddydicky]

sorry yes i did miss the point (not used to being up this early!!)

 

no doubt it will be the solicitor who makes the statement again as to the retreival!!

[Desperate Daniella]

Re your post 609, BRW:

 

I think if any one of quite a number of us are taken to court by MSDW it will be us who will be turning up with a large folder of their agreements - all differently re-created. (Sorry to digress, S62.)

 

I wonder if they actually would produce a witness saying they had grabbed it from the archives, because we don't actually believe it has ever been in the archives, do we? So for someone to come forward and say that if they hadn't actually done it would mean getting someone to lie under oath. I expect the corporate lot might lie under oath but to actually get someone from, say, the typing pool to go along and totally make something up knowing they would be cross-examined would be dangerous I think.

 

DDx

[middenmess]

As I posted previously..

 

You could also ask for the paper trail which must have been created to locate the document as well as the location of the 'off site facility' to see if that location tallys with the location of the post office where they went to post it from.

 

A register is kept of the times that people enter and leave storage facilities normally.[fire regs?]

 

This 'register would have the names,signatures dates and times of entry and exit--and possibly the registration number of their car.

 

A senior management bod would have had to place the iffy document--if this is indeed what happened-into the appropriate file/folder in order for it to be 'found' later.

 

A senior management bod would be unlikely to visit such a facility in the normal course of their activities.

[shakespeare62]

Brief update : Witness Statement was served on Respondent's solicitors at 08:45 hrs today by fax. I also filed it personally in Court. Hard copy in post to respondent..

 

ALSO : I updated para 11 to reference Authorities Bundle File "B" before filing. I've just updated the copy WS at post #597 to reflect this.

 

Just shows it's always worth double checking your references before filing

[foolishgirl]

Just been reading a post by oilyrag on this thread:

http://www.consumeractiongroup.co.uk/forum/barclaycard/195090-fingers-barclaycard-5.html#post2798970 (Post 93)

WRT the Carey v HSBC case. He brings to attention the view of HHJ Wakeman that, not only should the claimant produce an original agreement in court but also that all variations sent to you should have been accompanied by a copy of that agreement.

 

If Amex are saying that this agreement was buried deep in their archives, how are they going to demonstrate that a true copy of the agreement was sent with all the variations they have sent you over the years??

[shakespeare62]

S62,

 

Another line of attack is to ask MdR for the name of the person who actually located the document, so that you can seek permission from the court to summons them to be cross examined on the detail of how the document was stored and located.

 

At present this is completely absent and you could invite the Court to draw adverse inferences from MdR's failure to call any witness with first hand knowledge of the storage and retrieval of the document.

 

Dad

 

Hello Dad. This could be a excellent move to deploy for trial - but what about the Permission to Appeal / Appeal hearing next Monday ? It's booked for 20 mins and is also for directions.

 

I'm thinking the first hurdle is get permission for the Expert Witness. It seems to me the Expert Witness report - will be definitive. It will be a binary 1 or 0 , True or False.

 

It seems to me (correct me if I'm wrong) who did what, when, where, is to a certain extent peripheral to this all important litmus test. Sure there is the issue of "porky pies". The mission this morning was to drop that Witness Statement on them. To challenge their story.

 

Comments appreciated..

[shakespeare62]

By the way, this agreement stuff is only one point in the appeal. So let's see if they can "pull a monkey out of a hat".

[shakespeare62]

S62, have you read the following ?

 

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

 

HTH

 

I've got that listed in the Amended Skeleton I served in November, section 4.6 Guidance...

[humbleman]

S62

 

Don't know if you have answered this before, but is the original different to the copies they have relied on for the original judgment

[Desperate Daniella]

Well, if they continue with this, as you say, the agreement is only one point in the appeal, but you are getting some other good ammunition and I particularly like the 'paper trail' idea. I'd be astonished if they did actually send someone from management to 'plant' it but if they did they'd be on the register as Middenmess says, and what a funny place for them to be going. On balance though I think it's unlikely they thought they would be challenged about all this so they probably just created it and brought it to Court.

[shakespeare62]

S62

 

Don't know if you have answered this before, but is the original different to the copies they have relied on for the original judgment

 

It is in some respects. I don't wish to comment on that further. The real issue is whether that Document is a 12 year old original or some other re-production.

 

Forensic testing will be thorough.

[humbleman]

What a coincidence, that a case goes to appeal, and eureka they just find that one in time for the hearing.

[shakespeare62]

Well, if they continue with this, as you say, the agreement is only one point in the appeal, but you are getting some other good ammunition and I particularly like the 'paper trail' idea. I'd be astonished if they did actually send someone from management to 'plant' it but if they did they'd be on the register as Middenmess says, and what a funny place for them to be going. On balance though I think it's unlikely they thought they would be challenged about all this so they probably just created it and brought it to Court.

 

I agree.

[shakespeare62]

What a coincidence, that a case goes to appeal, and eureka they just find that one in time for the hearing.

 

Not only that - I had warning they'd be doing so at the last minute. It's a well rehearsed routine they use.