Shakespeare62 - v - a NastyBank

[gezwee]

Just remembered......... copy directions were posted originally as a .doc attachment so our guests couldnt read it, I'm sure they have their own copy by now but have edited above post just in case it shouldnt be in the open.

 

Gez

[Desperate Daniella]

You are absolutely right, Patrick.

 

The guests have gone.

[shakespeare62]

It's good to see a Judge on the ball....well done s62

 

Could you post up the documents they were relying up on.

 

Hi Paul, I could try - not sure if I've got enough uploadable diskspace left for my CAG username. I'll need to scan everything into a pdf first, so give me a couple of days..

[JonCris]

Joncris, I do see your point, but clearly they told her at the first hearing it was an original and she presumably represented them on that basis, and had to do so.

 

Now they are saying it "might be a reconstruction" she has brought that to the attention of the judge at the hearing, who stopped her at that point and refused to allow her to backtrack. But - she has covered her own back by doing that.

 

As much as we tend to loathe the other side's representatives (and I absolutely hate with a vengeance the solicitor acting against me in another case) she has firstly been told it's an original and secondly admitted that it "might be a reconstruction", so at the moment she just has not committed perjury, so I think it's highly unlikely she's going to get hauled over the coals for anything.

 

I tend to agree with BRW - they'll try the "Oh, we have made a dreadful mistake, and we are so very sorry" tactic next, and I truly hope the judge doesn't let them get away with it and insists on the Officer of the company ultimately responsible, be it the Company Secretary or Chief Exec of Amex, being hauled before him to explain themselves. That really would be justice. All that has happened wasn't done by some little clerk in a back office. They have a legal department who instructed Brachers and then MdR. That legal department has in-house solicitors who will be reporting and told what to do by the directors/execs of Amex.

 

Please, please, please let this judge take this to the right, just, conclusion.

 

DD

 

I wasn't arguing you were wrong but that your friendly barrister was. If an officer of the court thinks a document might not be what is claimed then they should state otherwise

[diddydicky]

I wasn't arguing you were wrong but that your friendly barrister was. If an officer of the court thinks a document might not be what is claimed then they should state otherwise

 

being able to prove what the officer of the court was "thinking" being a not inconsiderable obstacle to surmount!!

[ODC]

Remember folks that when a barrister gets up in court they say '' I AM INSTRUCTED ''

 

So if she gets up and says ''I am instructed that this form is the original'' then she is not telling any lies. Of course whether or not she beieves what she is instructed is another matter.

 

I have been involved in a lot of criminal cases where the defendant was as guilty as hell but all the barrister has to say to cover their ass is ''I am instructed etc etc etc

[JonCris]

Remember folks that when a barrister gets up in court they say '' I AM INSTRUCTED ''

 

So if she gets up and says ''I am instructed that this form is the original'' then she is not telling any lies. Of course whether or not she beieves what she is instructed is another matter.

 

I have been involved in a lot of criminal cases where the defendant was as guilty as hell but all the barrister has to say to cover their ass is ''I am instructed etc etc etc

 

No matter what your told by your client if you KNOWINGLY deceive the court you are guilty of misconduct.

 

We aren't talking about what you might suspect but about what you actually believe to be true

[JonCris]

PS in fact a firm known to many on here may be about to find themselves the subject of just such an enquiry, an enquiry instigated by a circuit judge no less

 

You cannot hide your culpability behind a form of words

[oilyrag]

Hi JonCris,

 

I am in agreement with you on this matter of barrister ethics. I have spoken with an elderly aquaintance now retired from being active at the Bar. There is some real concern in some senior circles about the public's perception of the integrity and ethics of some of these money grubbing people representing banks and the like.

 

I mentioned this case in conversation and it is known and concern is being expressed behind closed doors. Barristers cannot under their code of conduct hide behind client instructions as many have claimed on here. Yes it is done but if they believe that the client is lying or that they have evidence of such or that the balance of probablility suggests that then they DO have an obligation to inform the court of such knowledge.

 

A few years ago this would not even be up for discussion would it? Barristers could be trusted to have some integrity and withdraw if such was the conflict. Now like ministers they hang on for grim death and to hell with truth and integrity.

 

regards

oilyrag.

[Desperate Daniella]

But unfortunately if they said it is an original and she, not being a forensic expert, actually believed that it is the original, then she can't knowingly be deceiving the court. As we know, many caggers have been presented with an "original" in court and the judge sides with the bank and accepts it as such, so if judges look at reconstructed "originals" and believe that they are genuine, this barrister can have the same argument - she believed when she first went to court it was genuine. If she had doubts and raised them with Amex who insisted the document was the genuine original document she has "been instructed" as ODC says, and that is any barrister's "Get Out of Jail Free" card, for want of a better expression.

 

The very fact that she has gone back saying that she has now been instructed that "it might be a reconstruction" again lets her off the hook.

 

We might not like it but she is protected.

 

DD

[patrickq1]

It would nt bother her one way or another she is employed to do their bidding,her instructions are probably not to dwell too much on the document but on the Fact that they want to find a way in which to extract monies from the other side her proposal that she beleives it may not be an origional has now been entered and whatever happens unless she can ask them direct ARE THESE THE ORIGIONAL DOCUMENTS regardless of the answer coming back her fight is now to concentrate on BUT THE RECONSTRUCTION IS AS CLOSE TO THE OLD DOCUMENT AS SHE HAS BEEN INFORMED the only way forward under this is to withdraw herself because if an old agreement canot be shown then she may or will advise them that this is going to be a terrible loss to the company so WITHDRAW NOW and creep under the rock were you all belong ...THE EXPERT WITNESS i think we all know by now this is a reconstruction and the judge has probably already noticed it as such i think he will tho want to make an example of her if she dares try and continue with this,it is impossible to add terms and condition that interpret different meanings and contradictions within the same document this agreement would never have left the building had it been the true copy as it is already wrong in substance ,so she wont suffer and they will then continue to try and find someone with possibly less good standing so to speak my opinion only...

[diddydicky]

Hi JonCris,

 

I am in agreement with you on this matter of barrister ethics. I have spoken with an elderly aquaintance now retired from being active at the Bar. There is some real concern in some senior circles about the public's perception of the integrity and ethics of some of these money grubbing people representing banks and the like.

 

I mentioned this case in conversation and it is known and concern is being expressed behind closed doors. Barristers cannot under their code of conduct hide behind client instructions as many have claimed on here. Yes it is done but if they believe that the client is lying or that they have evidence of such or that the balance of probablility suggests that then they DO have an obligation to inform the court of such knowledge.

 

A few years ago this would not even be up for discussion would it? Barristers could be trusted to have some integrity and withdraw if such was the conflict. Now like ministers they hang on for grim death and to hell with truth and integrity.

 

regards

oilyrag.

 

with the greatest of respect to your elderly retired barrister- i do not agree

 

it has always been thus- indeed i would say it is harder now, with more freedom of information and knowldge on the part of the man in the street, for lawyers to get away with their cosy little cartels than it has ever been

 

many a case i suspect has been "done and dusted" between opposing counsel in the smoke filled gentlemens clubs around the inns of justice of an evening and out of sight of prying eyes.

[shakespeare62]

I thought CCA 74 was covered by the interpretation Act 1978 and the subsequent Queens Bench Practice Direction 1985.

 

The judge was dealing with the Respondent's proposition that service occurs immediately. For tactical considerations I don't want to comment further, except to say that the fact the judge supports the principle that service by post takes time - is an important one. Don't worry the other considerations will follow.

Edited March 11, 2010 by shakespeare62
edited typo

[dp77]

The issue of what happens to the barrister is perhaps not the main agenda here, though it is clearly of interest.

 

A bigger issue, should the document be found not to be "the original", is that the claimant knowingly sent a reconstruction to court, stating it to be the original.

 

I've seen a document comparable to the one in question here, and I have no doubt in my mind what the forensic expert will determine - if he receives the document. There is no way this document, if proven to be a reconstruction, would have been accidentally sent to court in some administrative error. If proven to be fake this document would have been consciously fabricated for the sole purpose of deceiving both the debtor and the court.

 

I know the consensus among experienced posters is that the claimant will not be held accountable, and they will find some way to wriggle out of it.

 

At the very least I hope this case might open the door for other defendants to question the authenticity of "original" documents they have been shown. Whether this case gets ruled on or not, it will hopefully be known about in court circles, once one Judge allows an examination I can only hope that other Judges will follow suit.

[diddydicky]

But unfortunately if they said it is an original and she, not being a forensic expert, actually believed that it is the original, then she can't knowingly be deceiving the court. As we know, many caggers have been presented with an "original" in court and the judge sides with the bank and accepts it as such, so if judges look at reconstructed "originals" and believe that they are genuine, this barrister can have the same argument - she believed when she first went to court it was genuine. If she had doubts and raised them with Amex who insisted the document was the genuine original document she has "been instructed" as ODC says, and that is any barrister's "Get Out of Jail Free" card, for want of a better expression.

 

The very fact that she has gone back saying that she has now been instructed that "it might be a reconstruction" again lets her off the hook.

 

We might not like it but she is protected.

 

DD

 

quite right namesake- if a barrister could not represent a client because they thought that a" trial within a trial" might take place as to what the barristers thought processes are- then the law would get nowhere. the barrister would put forward no arguments of contention whatsoever

 

and as you rightly say- why would they need a forensic expert- surely the person who is so skilled as to be able to pronounce what the defendants barrister is thinking- ought to be able also to determine what the claimant is thinking and if the document is a fake!!-

 

 

i think you will find that 99% of the time 99% of lawyers stay just inside that fine white line, and occasionally tread on it- without serious consequences,

 

Unlike yesteryear when court proceedings where recorded by hand - and in the process quite often well abbreviated and parts missed (stenographers)

 

in the modern day those concerned are clearly aware that every word and every nuance can be caught on tape and know exactly where that fine white line is.

[humbleman]

many a case i suspect has been "done and dusted" between opposing counsel in the smoke filled gentlemens clubs around the inns of justice of an evening and out of sight of prying eyes.

 

yep......

[alangee]

shaky

 

Reference your post #838. You do know that Amex have now changed their wording on their DN's slightly dont you? They now say something like 14 days from receipt of the DN, rather than 14 days from the date of the DN. Presumably their argument will then be that they do not terminate for several weeks, so the debtor must have had plenty of time to rectify the breach.

 

Why would they do that if their original ones were kosher?

 

Alan

[ODC]

No matter what your told by your client if you KNOWINGLY deceive the court you are guilty of misconduct.

 

We aren't talking about what you might suspect but about what you actually believe to be true

 

PS in fact a firm known to many on here may be about to find themselves the subject of just such an enquiry, an enquiry instigated by a circuit judge no less

 

You cannot hide your culpability behind a form of words

As far as I am aware that so long as the client does not actually admit his or her guilt to the barrister then the barrister treats them as not guilty and defends them. However once the barrister discovers that his client is guilty he then tries to use technical issues and points of law to prevent his client being convicted.

 

I once asked a barrister how on earth could he defend a person who was obviously guilty and he told me its not up to him to prove innocence but the prosecution to prove guilt. How some of these guys sleep in their beds at night is beyond me

[alangee]

Surely having the authenticity of the Agreement challenged, the barrister would have asked her client if it was in fact the original? Maybe this is why she tried to backtrack.

 

Alan

[diddydicky]

shaky

 

Reference your post #838. You do know that Amex have now changed their wording on their DN's slightly dont you? They now say something like 14 days from receipt of the DN, rather than 14 days from the date of the DN. Presumably their argument will then be that they do not terminate for several weeks, so the debtor must have had plenty of time to rectify the breach.

 

Why would they do that if their original ones were kosher?

 

Alan

 

 

 

but since the act states that they MUST specify A DATE i think that they would get short shrift on that score

 

the effect of "letting that go" would be to reduce the Dn to no more than a "circular"

[alangee]

I agree diddyd, but if that is the only problem with the DN, I can imagine that the invalid argument would be rejected by many DJ's.

 

Alan

[diddydicky]

I agree diddyd, but if that is the only problem with the DN, I can imagine that the invalid argument would be rejected by many DJ's.

 

Alan

 

i disaagree

 

the act states that a creditor MUST specify a date

 

the court has no power to re write the legislation or to regard it as de minimus

 

in fact i believe that soon a judge at appeal may well clarify this situation

 

if the creditor wishes to change the terminology to "within XX days " of receipt of the DN- what does he mean by "receipt"- receipt at the address where the debtor lives?, (and from which he may be away on business or on holiday) receipt by someone else signing for the letter from the postman but not giving it to the debtor?

 

the prescribed terminology and the manner in which the DN is set out has ALREADY taken care of all these variables- the creditor is obliged to use the prescribed terminology- not make up his own otherwise the DN is fault as it is not as prescribed

[alangee]

As I said diddyd, I agree with you, and I know what the act states. I hope your right, and that we do get clarification on this.

 

Alan

[diddydicky]

well the nice thing is that if local district judges make the mistake - it allows more caggers to take it to appeal and that is REALLY where we want it to be decided.

 

some of these judges rely on debtors not taking it any further but more and more are now emboldened to do just that

[vjohn82]

well the nice thing is that if local district judges make the mistake - it allows more caggers to take it to appeal and that is REALLY where we want it to be decided.

 

some of these judges rely on debtors not taking it any further but more and more are now emboldened to do just that

 

This is the thing diddy... too many people are downhearted by a DJ decision. At the end of the day if the law/precedent deems a situation to be ruled in favour of the debtor then the appeal stage is where that "magic" happens.

 

I've been dying for the DJ in my case to misdirect himself!