Shakespeare62 - v - a NastyBank

[shakespeare62]

Brief Update : Appeal is to be heard on 9th Feb 2010 at 10:30hrs. Here's a copy of the Notice which recently arrived.

[RobinWayRobinme]

Brief Update : Appeal is to be heard on 9th Feb 2010 at 10:30hrs. Here's a copy of the Notice which recently arrived.

 

Good news shakes, all moving forward.

R

[humbleman]

Shakespeare

 

I have just read the transcript, a good % is along the lines of mine.

 

http://www.consumeractiongroup.co.uk/forum/legal-issues/130101-humbleman-hfc-weightmans-court-21.html#post2695665

[vjohn82]

I note this statement here:

 

Practice Direction Part 16 7.3

 

Where a claim is based upon a written agreement a copy of contract or document constituting the agreement should be attached to, or served with, the particulars of claim and the original should be available at the hearing

 

should:

Use should in a Sentence

–auxiliary verb

1. pt. of shall.

 

2. (used to express condition): Were he to arrive, I should be pleased.

 

3. must; ought (used to indicate duty, propriety, or expediency): You should not do that.

 

4. would (used to make a statement less direct or blunt): I should think you would apologize.

 

In other words; should means there is a duty to supply such a document for enforcement proceedings and to meet the requirements of the CPR

[foolishgirl]

In other words; should means there is a duty to supply such a document for enforcement proceedings and to meet the requirements of the CPR

 

Unfortunately vjohn, IMO the words 'shall' & 'must' are not necessarily interchangeable & depends on what the original author intended.

 

Note the Plain English guide to their use (albeit 'derived English & not true UK)

How To/Tools: Word suggestions

 

& in particular the advice as to their use in legislation:

 

'Drafters should not use "must" and "shall" together in the same Act or regulation. It could raise questions about whether different meanings are intended.'

 

Furthermore the word 'duty' (according to the source you use above for 'shall' ) is defined as:

1. something that one is expected or required to do by moral or legal obligation. 2. the binding or obligatory force of something that is morally or legally right; moral or legal obligation. 3. an action or task required by a person's position or occupation; function: the duties of a clergyman. 4. the respectful and obedient conduct due a parent, superior, elder, etc. 5. an act or expression of respect. 6. a task or chore that a person is expected to perform: It's your duty to do the dishes.

Presumably any of the above could be applied as a definition i.e. 'expectation' or 'binding or legal force'

 

Now as the CCA uses both 'must' & 'shall' splattered liberally throughout the text, one could argue that 'must' implies a command whereas 'shall' has a lesser imperiousness & can therefore be regarded, where appropriate, as a matter of expectation rather than mandatory obligation.

 

So, looks as though we're down to DJ lottery again & his/her own interpretation of this clause. :-|

[vjohn82]

Semantics... that's all. Depends whether you can influence a Judge of your argument.

 

The sanction for not complying with disclosure under 16.7 (3) is that the party cannot rely upon the document.

 

That said CPR 31.21 gives the court the ability to grant permission to overturn this rule.

 

How do you convince the Judge not to use this CPR?

 

Depends how good your skills are in the court room I guess.

[shakespeare62]

Thanks for your comments and support folks.

 

All relevant CPR's should in my view apply, will be argued and backed up by case law. Let's not forget the Court is under a duty here to treat both parties on an equal footing. This will be against a background of a breach of Human Rights allegations. There are weighty matters which have been put forward as the Circuit Judge himself stated in December.

 

Looking at their skeleton, 'Pishcon are apparently working on the principle of BBB - Bull[edited] Baffles Brains.

Edited January 16, 2010 by shakespeare62

[GuidoT]

I wish you well and never under estimate you opponent.

[shakespeare62]

I wish you well and never under estimate you opponent.

 

What is interesting is that the barrister who turned up on 21st December is from the same chambers as Bradley Say - Gough Square Chambers. See middle column 5th row down initials K. U.

 

Bradley Say is the Barrister who won Wilson v Hurstanger. Hmmm ....wonder if they swap notes.

Edited January 17, 2010 by shakespeare62

[shakespeare62]

Looks like no expense is being spared for this showdown.

[humbleman]

Looks like no expense is being spared for this showdown.

 

Is anyone representing you

Edited January 16, 2010 by humbleman

[shakespeare62]

Is anyone representing you

 

Not at the moment...

Edited January 17, 2010 by shakespeare62

[humbleman]

Not at the moment...

 

is there any plans to instruct one?,

 

IMO I think you should consider looking into the possibility.

[shakespeare62]

is there any plans to instruct one?,

 

IMO I think you should consider looking into the possibility.

 

Problem is I can't afford a Barrister. If anyone knows of a Barrister who may consider representing me at Appeal on a no win no fee basis - please let me know. (if they prefer to contact me by personal message thats o.k)

 

I've done most of the spadework - I've submitted the Notice of Appeal, Grounds of Appeal, Skeleton Argument, Appeal Bundle, Authorities Bundle.

 

I guess it would need someone to study the docs carefully and be prepared to argue it on the day.

 

That person should also not be intimidated by 'names' or the calibre/reputation of the opposition that may be deployed.

Edited January 17, 2010 by shakespeare62

[shakespeare62]

deleted - duplicate post

[humbleman]

Problem is I can't afford a Barrister. If anyone knows of a Barrister who may consider representing me at Appeal on a no win no fee basis - please let me know.

 

As you probably might know, I am looking around too. I am pretty sure there is a few lurking around the forum.

[shakespeare62]

As you probably might know, I am looking around too. I am pretty sure there is a few lurking around the forum.

 

Could be a wild goose chase....but if you find a good one let me know.

 

I just wonder if on CAG the 'pro bono' lawyer is something of a mythical beast - bit like the Yeti - u know - much talk and reported sightings, but no specimens actually produced.

 

I suspect for Appeal docs, you may need to 'roll your own'.

Edited January 17, 2010 by shakespeare62

[humbleman]

A few caggers on my thread have mentioned, that we need to get a fighting fund. I think it's a damn good idea.

 

I think the fight needs to go to the next stage. I remember when we first started 4 years ago, if the OC didn't have an agreement they were readily prepared to write off any debts. This has now changed, we need to, too. They have managed to change the goalpost by influencing the judiciary, ICO and OFT.

[lilly white]

My apologise for hijacking,

 

However we do need to look at outside help I am aware that pt has done lot of work and does continue to do that however we can’t leave all to him and others.

 

1 we need to look at the basic defence.

 

2 we need to ensure that we are aware of the substance of the defence

 

3 also this rule on probabilities we need to attack

 

4 we need to get a way from long defences the judge will not read them

 

5 we could look at having a on line course we can all give advice run by cag

 

6 we need to join up all advice

 

please again my apologise

 

viva cag lillywhite

[shakespeare62]

PT has a recent guide here.

[diddydicky]

well, i dont know if i should send you a bill for 5 hours reading at 9.25 per hour ?

 

better not, and i must make a note never to park on your driveway when i come and watch the gills beat brizzol rovers!!

 

i admire your tenacity,

 

as you have said you are a man of straw that gives you a strength few others would posses in taking these parasites on

 

for what its worth i think you have done a great deal of damage and even though it is amex my money is on them seeking to withdraw at the last minute because they cannot afford the precedents that might be set!

 

ill be following with interest and with your permission will be using some of your arguments stated in your appeal to actually re inforce my defence in order to box the judge in a bit more on his decision making

 

dick

[shakespeare62]

well, i dont know if i should send you a bill for 5 hours reading at 9.25 per hour ?

 

lol - thanks for taking the time to read it 'thru

 

better not, and i must make a note never to park on your driveway when i come and watch the gills beat brizzol rovers!!

 

i admire your tenacity,

 

as you have said you are a man of straw that gives you a strength few others would posses in taking these parasites on

 

They have engaged one of the most expensive firms in the country to pursue a claim against the financial equivalent of a 'tramp on a park bench'. If I was a shareholder I'd want my investment spent more wisely.

 

for what its worth i think you have done a great deal of damage and even though it is amex my money is on them seeking to withdraw at the last minute because they cannot afford the precedents that might be set!

 

If they lose - they could be 'in the sherbert'.

 

ill be following with interest and with your permission will be using some of your arguments stated in your appeal to actually re inforce my defence in order to box the judge in a bit more on his decision making

 

Feel free to use anything you wish - in fact I'm glad if it's helpful. My report on the appeal hearing should be a 'riveting read' and the stuff presented should be useful to the CAG 'Amex fan club'.

 

dick

 

Let's see what happens....this is a fight to the finish. 'shakey.

Edited January 22, 2010 by shakespeare62
edited typos

[summerbreeze]

Hi Shakey ... Hows things ?

[shakespeare62]

In the District Registry of my local High Court - today 9 Feb 2010 10:30hrs - 12:15 hrs

 

In brief - case adjourned - costs reserved.

 

I'm doing a write up. It should be ready tonight or tomorrow. It's going to be a riveting read. It concerns the purported original agreement - and may be extremely significant. I also hit 'em (the Respondent) left right and centre over their breaches of the CPR.

Edited February 9, 2010 by shakespeare62

[humbleman]

In the District Registry of my local High Court - today 9 Feb 2010 10:30hrs - 12:15 hrs

 

In brief - case adjourned - costs reserved.

 

.

 

BUT this was a permission to appeal how can it be adjourned