Shakespeare62 - v - a NastyBank

[dp77]

not sure if there is anything other than this mention in a CPR Practice Direction

 

 

Thank you. I must admit, given the furore about original agreements I was expecting there to be more than this.

 

So essentially then it's up to the Judge to decide if a reconstituted copy is good enough? Is there a test case coming up for this?

[banker_rhymes_with]

Hello dp77!

 

Thank you. I must admit, given the furore about original agreements I was expecting there to be more than this.

Well, there is...

 

The Civil Evidence Act 1995

 

The point being, an Original Agreement is Evidence.

 

A copy Agreement is not Evidence, it is Hearsay Evidence. It should carry a considerably lower weight as evidence in Court, and should only gain ground from being regarded as toilet paper if the group producing the copy can also produce other supporting Evidence to bolster it up, i.e. to show the copy is genuine. Suitable Evidence being audited Document Management Records that track the document from day one, to copy, to archive, to destruction and every step thereafter when a copy was made from the archive copy and by whom.

 

The banks all too often throw a vague Witness Statement at the problem, often drafted by someone who was wearing nappies at the time the original Agreement was made, i.e. who would not be able to say what the original looked like even if their lives depended on it.

 

Unfortunately, the Judge Lottery kicks in all too soon, so it's VIP to try and nail this issue via CPR 31.16 before Court proceedings have started, or via CPR 31.14 if proceedings have already started...and demand to see the original in the flesh. If they refuse, then use an N244 Application to ram home the point before the issue gets as far as Court.

 

Had Arsemex responded appropriately to Shakespear62's original request, he would not now have to go through all the nonsense he is going through just to try and establish what they do have...because they clearly can't be trusted to give a straight answer, even in Court. Last time out they were claiming it was Original, and yet also saying it could be a reconstruction.

 

Arsemex have messed him around from start to finish, and have only come up with what they claimed is the original Agreement almost as he walked into Court last time out when already in mid-Appeal. Even then, their Barrister was not sure if it was original or a re-creation, so what else could Shakespeare62 do but pay damned good money to get someone to take an Expert look. The issue will be in doubt until the document is properly inspected, and Arsemex are the ones to blame for this.

 

What ever the outcome of the Expert Witness examination, none of this shows Arsemex up in a very good light. They have beggared about from day one, and deserve monster costs against them as a reward for being coy.

 

Either way, this is bad news for Arsemex:

 

• If it is the Original, then they have to explain why they have messed Shakespeare62 and the Court around by failing to respond to the original CPR request. Once the dust settles on this, everyone thereafter will be entitled to demand a physical inspection, because if they can find one from that far back, then they must have them all...or not as the case may be! People can now demand that Arsemex owns up at a much earlier stage about what they do have.
  

 

• If it is not the Original, then they are in even deeper poop, and deserve everything heading their way as a result. Once the dust settles, nobody thereafter will believe they do have any Original Agreements unless they produce the Original at an early stage.
  

They should pay Shakespeare62's Expert Witness costs no matter how this works out.

 

Cheers,

BRW

[Desperate Daniella]

Very well explained as always, BRW.

 

Hi Guest.

 

DD

[patrickq1]

there is also the bankers act that is worth some research concerning evidential contracts...Bankers’ Books Evidence Act 1879 (c.11

[means2anend]

Hello dp77!

 

Well, there is...

 

The Civil Evidence Act 1995

 

The point being, an Original Agreement is Evidence.

 

A copy Agreement is not Evidence, it is Hearsay Evidence. It should carry a considerably lower weight as evidence in Court, and should only gain ground from being regarded as toilet paper if the group producing the copy can also produce other supporting Evidence to bolster it up, i.e. to show the copy is genuine. Suitable Evidence being audited Document Management Records that track the document from day one, to copy, to archive, to destruction and every step thereafter when a copy was made from the archive copy and by whom.

 

The banks all too often throw a vague Witness Statement at the problem, often drafted by someone who was wearing nappies at the time the original Agreement was made, i.e. who would not be able to say what the original looked like even if their lives depended on it.

 

Unfortunately, the Judge Lottery kicks in all too soon, so it's VIP to try and nail this issue via CPR 31.16 before Court proceedings have started, or via CPR 31.14 if proceedings have already started...and demand to see the original in the flesh. If they refuse, then use an N244 Application to ram home the point before the issue gets as far as Court.

 

Had Arsemex responded appropriately to Shakespear62's original request, he would not now have to go through all the nonsense he is going through just to try and establish what they do have...because they clearly can't be trusted to give a straight answer, even in Court. Last time out they were claiming it was Original, and yet also saying it could be a reconstruction.

 

Arsemex have messed him around from start to finish, and have only come up with what they claimed is the original Agreement almost as he walked into Court last time out when already in mid-Appeal. Even then, their Barrister was not sure if it was original or a re-creation, so what else could Shakespeare62 do but pay damned good money to get someone to take an Expert look. The issue will be in doubt until the document is properly inspected, and Arsemex are the ones to blame for this.

 

What ever the outcome of the Expert Witness examination, none of this shows Arsemex up in a very good light. They have beggared about from day one, and deserve monster costs against them as a reward for being coy.

 

Either way, this is bad news for Arsemex:

 

• If it is the Original, then they have to explain why they have messed Shakespeare62 and the Court around by failing to respond to the original CPR request. Once the dust settles on this, everyone thereafter will be entitled to demand a physical inspection, because if they can find one from that far back, then they must have them all...or not as the case may be! People can now demand that Arsemex owns up at a much earlier stage about what they do have.
  

 

• If it is not the Original, then they are in even deeper poop, and deserve everything heading their way as a result. Once the dust settles, nobody thereafter will believe they do have any Original Agreements unless they produce the Original at an early stage.
  

They should pay Shakespeare62's Expert Witness costs no matter how this works out.

 

Cheers,

BRW

 

 

Precisely the point I was making earlier this morning on the Manchester Dissection Cases thread as contained in your first 3 paragraphs.

 

Get an early answer as to whether there exists the original by asking the right questions early.

 

Otherwise reconstituted copies of agreements need to be corroborated in order to gain any weight/credibility by procedures or other evidence that existed at the time of the original agreements.

 

Effectively what they are doing is 'manufacturing the evidence to fit the crime'

[shakespeare62]

Basically the Expert's opinion is that the handwriting on the Agreement is original. There were some discrepancies as he also stated that there were hidden impressions - caused by someone writing on a piece of paper which overlaid the agreement - and that these impressions were in the same hand as the applicant - basically implying me. I pointed out to him that the information in the impressions could not have been by my hand and gave him reasons and evidence why - and that therefore if the impressions were by the same hand which completed the agreement - the agreement he was examining was unlikely to have been made by me. I effectively placed the hidden impressions as being made 10 years later in 2008 and I had documentary evidence to support it.

 

The Expert then back tracked and amended his report to state he could not be sure who had made the impressions (he claimed he had re-examined the docs following my observations) . I was disappointed that he should do this - especially as had already completed one examination and produced a report. However, hidden impressions alone and an opinion about them, were unlikely carry enough weight on their own to win the point. It might have been useful, if he had stated in the report that the handwritten document could have been recreated post 1998. He did state in a letter to me, afterwards though, that it was not possible to forensically date the report or the handwriting.

 

There was also some doubt cast on the back page - to the extent that there was a code there which may indicate a print run occurred on a different date or different year to the front page e.g. 2009, but that the back page code may not be related to print runs at all. After making some discreet enquiries I decided not to pursue this point - an important consideration being I have no funds left to pay for further forensic testing by the expert.

 

 

To win on this particular issue I felt I would have needed a pretty strong finding in my favour, backed with conviction which would stand up under cross-examination in Court.

[shakespeare62]

The agreement is only one issue in the Appeal.

 

I served the following Witness Statement on Pishcon yesterday along with the Expert Report. See Attachment.

Witness Statement Apr 14 2010 v2.doc

Edited April 17, 2010 by shakespeare62

[shakespeare62]

Here are the statements and DN referred to in the Witness Statement.

 

Statement 5 May 07

 

Statement 4 Jun 07

 

Statement 4 Jul 07

 

Default Notice 19 Jun 07

[cab1ne]

1 - 2 days for first class post, and 3 days plus for 2nd class letters.

 

just nit picking "could sell yourself a wee short"

 

(a) in the case of first class mail, on the second working day after posting;

(b) in the case of second class mail, on the fourth working day after posting.

 

just a small note, i would stick to 2 and 4 day's.

 

cab

[middenmess]

OK--I need to know---WTF is a ''Hidden impression?''

[summerbreeze]

1 - 2 days for first class post, and 3 days plus for 2nd class letters.

cab

 

If you do use the details from Royal Mails website it could be useful to mention that these services are described as ' not guaranteed '

 

This was commented on by the Judge in my case .

 

The only Guaranteed service is Special Delivery next day service which requires an additional payment if a Guaranteed Saturday delivery is required

[shakespeare62]

1 - 2 days for first class post, and 3 days plus for 2nd class letters.

 

just nit picking "could sell yourself a wee short"

 

(a) in the case of first class mail, on the second working day after posting;

(b) in the case of second class mail, on the fourth working day after posting.

 

just a small note, i would stick to 2 and 4 day's.

 

cab

 

Thanks Cab. You are right of course. I'll need to scan their skeleton argument at some point. They were trying to suggest the Practice Direction was outdated and no longer in use.

[shakespeare62]

OK--I need to know---WTF is a ''Hidden impression?''

 

HI Middenmess !

 

A hidden impression will be obtained from using ESDA (electro static detection analysis), basically a technique to detect any tiny impressions made on a document from say a pen, but which do not have ink on them, and which may not be visible to the naked eye. I think the technique uses tiny iron filings. It's often used to detect forgeries.

[shakespeare62]

If you do use the details from Royal Mails website it could be useful to mention that these services are described as ' not guaranteed '

 

This was commented on by the Judge in my case .

 

The only Guaranteed service is Special Delivery next day service which requires an additional payment if a Guaranteed Saturday delivery is required

[/color]

 

HI SB !

 

Good comments - I've made a note of them. Thanks.

[humbleman]

Basically the Expert's opinion is that the handwriting on the Agreement is original. .

 

it's original and yours.

[foolishgirl]

If the handwriting looks like yours, shakespeare, could it have been done by a forger? Did your expert offer any opinion or would you need a handwriting expert to comment on that possibility?

[means2anend]

If the handwriting looks like yours, shakespeare, could it have been done by a forger? Did your expert offer any opinion or would you need a handwriting expert to comment on that possibility?

 

 

Good Point...

 

A document and handwriting expert are 2 distinct disciplines aren't they!!

[gezwee]

Oh bugger, talk about non committal......... me thinks it would be libellous to state the obvious with regard to hidden impressions. Trust they were not 'practise' signatures!

 

I can only assume the expert would have been more than aware of the implications of citing the probable application of same.

 

As for the DN issue, Arsemex sent mine in 2009 franked 1st class RM......... 9 days after it was printed. Whilst I cannot assume the same for yours during 2007 I am sure there would be 1 or 2 regulars on here who would assist with an affi asserting same if it would add weight to your WS.

 

Gez

[shakespeare62]

If the handwriting looks like yours, shakespeare, could it have been done by a forger? Did your expert offer any opinion or would you need a handwriting expert to comment on that possibility?

 

This was my concern over the various anomalies including the hidden impressions mentioned earlier. Nothing has been straightforward over this matter. The chain of events offered in various Witness Statements has also been inconsistent. Nevertheless I have to accept the experts findings and move on.

 

I need to focus on the Default Notice, which if not as sensational, is potentially fatal to their claim.

[shakespeare62]

As for the DN issue, Arsemex sent mine in 2009 franked 1st class RM......... 9 days after it was printed. Whilst I cannot assume the same for yours during 2007 I am sure there would be 1 or 2 regulars on here who would assist with an affi asserting same if it would add weight to your WS.

 

Gez

 

Thanks for the offer gez. I suspect if they were reading this the first thing they'd do is squeal that I'd put you up to it ! lol. joking apart did you keep the envelope ?

[gezwee]

Thanks for the offer gez. I suspect if they were reading this the first thing they'd do is squeal that I'd put you up to it ! lol. joking apart did you keep the envelope ?

 

Oh yeah ...... hence the request for comms log 1 day after receipt to ensure they didnt slip any additional correspondence in that was suppressed (trust me they all do it) but posted on date of franked envelope.

 

Oh and WS looks good to me barring the service times already noted.

 

I'm sure you have everything in hand but BRW's concise posting of SI's may also be useful to you for quick reference - post #15 of this one

 

http://www.consumeractiongroup.co.uk/forum/amex/193018-cupcake68-amex.html

 

Worth printing off for your bundle

 

Gez

[citizenB]

Here are the statements and DN referred to in the Witness Statement.

 

Statement 5 May 07

 

Statement 4 Jun 07

 

Statement 4 Jul 07

 

Default Notice 19 Jun 07

 

 

Well the Default is almost certainly wrong with respect to the "14 days"

 

Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561)

 

firstly,

Quote:

Parties to agreement

 

2

 

(1) The name and a postal address of the creditor or owner.

(2) The name and postal address of the debtor or hirer.

 

 

 

next,

Quote:

Details of breach of agreement and action required to remedy, or pay compensation for, the breach

 

3

A specification of:--

 

(a) the provision of the agreement alleged to have been breached; and

 

(b) the nature of the alleged breach of the agreement, specifying clearly the matters complained of; and either

 

© if the breach is capable of remedy, what action is required to remedy it and the date, being a date [not less than

fourteen days] after the date of service of the notice, before which that action is to be taken; or

 

(d) if the breach is not capable of remedy, the sum (if any) required to be paid as compensation for the breach and

the date, being a date [not less than fourteen days] after the date of service of the notice, before which it is to be paid.

 

 

 

next,

Quote:

4

Where any action is specified under paragraph 3© or (d) as required to be taken, a statement that the provision for the

taking of any action by the creditor or owner such as is mentioned in paragraph 6 will be ineffective if the breach is duly

remedied or the compensation is duly paid in the following form--

 

"IF THE ACTION REQUIRED BY THIS NOTICE IS TAKEN BEFORE THE DATE SHOWN NO FURTHER ENFORCEMENT ACTION WILL BE TAKEN IN RESPECT OF THE BREACH".

 

it is in lower case not upper case and the regulations do stipulate that it must be as laid out in the regs verbatim as set out in section 2 (5)

 

Where any statement is required to be in a form specified in a Schedule to these Regulations and is reproduced in the notice, then apart from any heading to the notice, trade names or names of parties to the agreement--

 

(a) the lettering in the statement shall be afforded more prominence (whether by capital letters, underlining, large or

bold print or otherwise) than any other lettering in the notice; and

(b) where words are both shown in capital letters and underlined in any statement specified in a Schedule to these

Regulations, they shall be afforded yet more prominence.

 

is that enough for you for starters

Para 123; Failure of a Default or Termination Notice to be accurate not only invalidates the Default or Termination Notice (Woodchester Lease Management Services Ltd v Swain & Co - [1998] All ER (D) 339) but is an unlawful rescission of contract which would not only prevent the Court enforcing any alleged debt, but give the Claimant a claim for damages. (Kpohraror v Woolwich Building Society [1996] 4 All ER 119)

 

following by pt2537

http://www.consumeractiongroup.co.uk/forum/show-post/post-2172221.html

Details of breach of agreement and action required to remedy, or pay compensation for, the breach

 

3

A specification of:--

 

(a) the provision of the agreement alleged to have been breached; and

 

(b) the nature of the alleged breach of the agreement, specifying clearly the matters complained of; and either

 

© if the breach is capable of remedy, what action is required to remedy it and the date, being a date [not less than fourteen days] after the date of service of the notice, before which that action is to be taken; or

 

(d) if the breach is not capable of remedy, the sum (if any) required to be paid as compensation for the breach and the date, being a date [not less than fourteen days] after the date of service of the notice, before which it is to be paid.

and from vint1954

http://www.consumeractiongroup.co.uk/forum/show-post/post-2708372.html

Posts 194 and 195 by Vint1954

“Within 14 days of the date of the default notice” as a date by which to remedy the alleged breach ” can never be compliant, even if the creditor were to serve the notice in person on the day that the notice was dated it would give the debtor only 13 clear days in which to remedy the alleged breach.

 

Thus, this particular Default Notice could never had been compliant in this respect. It was defective at the time it was produced.

The default notice gives “important details” to the debtor as to how to obtain legal advice, the clear days include weekends and bank holidays therefore the debtor is already restricted to the number of working days he has to work with/obtain legal advice, more or less depending upon which day the creditor posts the notice.

 

The regulations do not permit the creditor to reduce the amount of time given to the debtor in which to remedy and any such reduction in time, whether by accident or design cannot be considered as De Minimus

 

Parliament intended the creditor to be strictly bound to comply with the regulations in this respect.

 

It is averred that the act intended that the creditor should suffer the consequences of his failure to comply with his obligations in respect of default notices and that incompetence, laziness, or a total disregard of the regulations would offer no relief to the creditor..

The second area is the time for service of the DN. As you have mentioned, CPR6 can overrule if there is another statute and so CPR6.26 does not apply. The Interpretation Act applies and so tough on the creditor.

[DonkeyB]

... and a faulty DN is NOT a de minimis issue!

[RobinWayRobinme]

Hi Shakey,

 

Sorry to hear about the report. Think you have the best attitude in moving on and focus on the other strong issues you have. Hang in there.

 

R

[cab1ne]

If you do use the details from Royal Mails website it could be useful to mention that these services are described as ' not guaranteed '

 

This was commented on by the Judge in my case .

 

The only Guaranteed service is Special Delivery next day service which requires an additional payment if a Guaranteed Saturday delivery is required

[/color]

 

:rolleyes:

 

cab