Shakespeare62 - v - a NastyBank

[dad]

S62,

 

just a quick point, if you are going down the HR Act route you need to properly set out the details.

 

See Practice Direction 52 which comes with CPR52 and CPR 16

 

Human Rights

 

5.1A

 

(1) This paragraph applies where the appellant seeks –

(a) to rely on any issue under the Human Rights Act 1998; or

 

(b) a remedy available under that Act,

for the first time in an appeal.

 

 

(2) The appellant must include in his appeal notice the information required by paragraph 15.1 of the practice direction supplementing Part 16.

 

(3) Paragraph 15.2 of the practice

 

PRACTICE DIRECTION 52 – APPEALS - Ministry of Justice

Edited November 16, 2009 by dad

[dad]

“Please find attached the transcript of the above matter. We have typed what we have been able to do so from the tapes we have been sent by the court. We were sent 4 tapes by the court. Your case is on one of those tapes. Your case continues beyond the end of that tape. I have just rang the court and they are of the impression that they have sent us all the tapes for that day and that no further recordings are available. I have asked them to double check with the person who sent the tapes out who will be able to do so on Monday morning.”

 

If there is no 'official' record of the hearing then the opposition's barrister is obliged by Practice Direction 52.12 to provide you with a copy of his note of the judgment free of charge:

 

Advocates’ notes of judgments where the appellant is unrepresented

(3) When the appellant was unrepresented in the lower court it is the duty of any advocate for the respondent to make his/her note of judgment promptly available, free of charge to the appellant where there is no officially recorded judgment or if the court so directs. Where the appellant was represented in the lower court it is the duty of his/her own former advocate to make his/her note available in these circumstances. The appellant should submit the note of judgment to the appeal court.

 

The practice direction is mandatory by CPR 52.2:

Parties to comply with the practice direction

52.2 All parties to an appeal must comply with the relevant practice direction

[dad]

Shakespear,

 

I like your style!

 

How are they going to get over the lower court's judgment unless they admt that their whole case was based on deception?

This is not an insurmountable problem. Providng both parties agree and they can convince the appeal judge the lower courts judgment can be set aside as part of a consent order. But it needs to appear in the main order and not in the schedule.

 

HTH

 

Dad

[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

[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..

 

S62

 

The priority for Monday is to get permission for the expert witness. As an aside, if your expert is a Peeler used to giving evidence in criminal trials he needs to be aware of the different requirements under the CPR for civil trials.

 

Once permission is given the Court will make further directions, what you want included in those directions is sufficient information to allow your expert to report properly. The current statement by MdR is complete pants and does not set out any detail as to how the document was handled, specifically your expert needs to know:

 

MdR Para 8. Who was the request made to - What steps did this person take to locate the document.

 

MdR Para 11. Why was your agreement selected for 'exceptional' treatment. What is the procedure in exceptional circumstances. How are documents physically stored in the deep storage facility (eg: are they punched, stapled or loose; how is the box marked). How are documents catalogued, where and in what form is the catalogue held.

 

MdR Para 12: aside from the time line raised by others - who had posession of the document from its discovery to its production at Court, ie how many sets of finger prints should be on the document.

 

I am sure that your expert can add to the list but this gives you the flavour.

 

Be prepared with some draft directions. I believe that you should give MdR notice (I think 3 days is required, but check the CPR). That way they cannot complain at the hearing.

 

HTH

 

Dad

Edited March 1, 2010 by dad

[dad]

Hi S62,

 

That still leaves the 64 thousand dollar question ... can I file this draft order in Court for the Judge's consideration, or would this be bad form ? Thoughts anyone ?

 

My view is that you should submit this for the judge to consider on notice to MdR. I would not play games by bouncing the other side at the door. They would be perfectly entitled to ask for an adjournment with costs.

 

To others contributing to the thread I would remind them that the strategy that S62 has adopted is high risk / high reward litigation. In effect he has made an accusation of serious dishonesty against Amex. The consequences for whichever side loses will be dramatic. It is likely that the side that loses is going to be faced with an indemnity costs order at the least.

 

Case law shows that the court will start with the view that the more serious the allegation the more unlikely it is. The onus is firmly on S62 to make good his allegation. So this is the time to play with a straight bat so that there is no question of MdR wriggling out on a procedural technicality.

 

Health warning over, let me turn to the draft directions. First of all I believe this is fast track, so costs are payable as the litigation proceeds. Amex may be entitled to the costs of producing any information, so I think that potentially really expensive things like asking for finger prints and DNA are out.

 

I strongly agree with post 646. This is about raising the stakes to the point where Amex fold. In that respect you have missed out the most obvious direction, that permission be given to adduce expert evidence.

 

The format of directions for an expert is set out in CPR 28 Practice Direction 28 Annex, see:

 

http://www.justice.gov.uk/civil/procrules_fin/contents/practice_directions/pd_part28.htm

 

Take advice from your expert on what he needs to do his job and ensure that is included in the order. For instance does he need to visit the storage facility?

 

HTH

 

Dad

Edited March 3, 2010 by dad

[dad]

S62,

 

Dad do you think I should remove the sentence on fingerprints in part 1(iv) of my draft ? (It doesn't actually state it will require fingerprints ..it leaves the possibility open.)

 

I do not see any harm. What you want is the chain of evidence handling of the document, the more detail, then the more chances to expose any inconsistencies. Liars are always tripped up by inconsistent details.

 

A tour of the alleged "Off Site" Deep Storage location at the moment would seem as potentially 'involved' as doing DNA tests - I've left that out for now, unless you really think it should go in...

 

The answer is ask your expert. It is the detail that matters. In one archive I know a document is stamped with a reference number, then punched to take a treasury tag. The documents are then put in a card folder connected by the tag. The reference number and the title of the document is entered on to the folder's contents sheet. The folder is titled with a summary of the contents and placed in a cardboard box. The folder titles are marked on the outside of the box. the box is given a reference number and placed on a particular shelf in the archive. Then all the above information is entered into a catalogue.

 

If the 'agreement' has been stored is a storage facility run as a business you would expect something similar to that to be present. Suppose your expert goes to the archive and finds all the documents have a bar code and there isn't one on yours or that all the files in the archive are in 4-ring folders and your agreement does not have 4-ring holes then it is game over. At the very least, I would have thought, he will want to see the container the document was stored in.

 

Have a look at this link into the report of the document examination of George Galloway's Iraqi documents:

 

House of Commons - Standards and Privileges - Written Evidence

 

HTH

 

Dad

Edited March 3, 2010 by dad

[dad]

To Mischon de Reya and Mr X of Counsel:

 

This thread exists exclusively to assist Shakespear62 in preparing his litigation against American Express. As such it is almost certainly protected by litigation privilege.

 

The legal requirements for claiming litigation privilege are well established and are not in dispute. Communications between a solicitor or the client and a third party will be protected by litigation privilege where the communications are for the dominant purpose of obtaining legal advice in connection with, or conducting, litigation reasonably in prospect: Re Highgate Traders Limited [1984] BCLC 151.

 

It is possible that for you even to read this thread might to amount to a breach of your professional codes of conduct and be impermissible for Mr x to advance at trial.

Edited March 9, 2010 by dad
clarify 'this'

[dad]

'Which reminds me, I'd better take a copy of it with me on the day for reference - in case these muppets try and pull a similar stunt.

 

This CoA judgment on LiP costs is also useful to bring along. In short judge at trial awarded £120 LiP costs, the CoA raised this to just over £10,000.

 

Wulfsohn, R (on the application of) v Legal Service Commission [2002] EWCA Civ 250 (8 February 2002)

 

HTH

 

Dad