Shakespeare62 - v - a NastyBank

[diddydicky]

I was agreeing with dp77's post.

 

Other DD, that would be a good idea (unless of course they offer Shakey a six figure sum in which case he should go for it!)

 

Daniella xx

 

well within the bounds of possibilities that they will offer a settlement together with a gagging order

[diddydicky]

I have amended DADs post as follows

 

As we know some firms have been arguing that by LiP’s discussing their claims on the internet they have prejudiced their case.

 

However as we know as the costs of litigation are beyond most consumers means they simply have no alternative but to seek advice in this way. Therefore it may be that this advice, though in the public domain, may still be privileged & firms should not seek to ID such litigants

 

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.

 

Therefore it is possible that for the opposition to try & use statements from a specific thread to advance their arguments at trial might amount to not only a breach of the DPA but also a breach of the professional codes of conduct.

 

whereas of course restons letters published on the internet- admitting the defective nature of DN's prevented enforcement i presume are not priveleged information and MAY be shown to another court in which they disingenuously attempt to argue the opposite case!!

[diddydicky]

the barrister is legally obliged to put the clients case and if the client tells the barrister that their case is true the barrister is protected.

 

it's a bit like the old tale where howard hughes was asked his definition of a good accountant

 

after some thought he replied

 

a good accountant is a guy who, when asked what 2+2 equals?

 

should reply...

 

what figure do you have in mind!

[diddydicky]

A barrister attending court, and charging in excess of £225 per hour, for a hearing to rule on an authenticity test surely has a clear duty to be sure the document in question is authentic.

 

"But he said it was!!!" is hardly a credible argument in this instance, should the document prove to be less than kosher. You would hope that any Barrister would have to provide a very, very good reason for lying to a Judge in court.

 

the barrister does not have to prove every statement her client makes- the only way in which she would be implicit is if she coached or encouraged her client to make a false statement

 

what you are suggesting is that a barrister must conduct a trial before a trial to ensure that the evidence she is being given by her client is true-

 

what of a barrister defending in a murder trial- must she ensure her client's innocence herself before she can represent her client?

[diddydicky]

if the client was paying me 225 per hour i'd tell the court the moon was made of green cheese if thats what the creditor told me to say!!

[diddydicky]

The present situation is that the court has agreed to have the document forensically examined as to it's authenticity therefore there are now three possible next steps-

 

1/ the agreement is not a forgery and the trial will proceed- both sides being confident in their respective positions

 

2/ the creditor initially believed, but is now not certain (for whatever reason) if the agreement is bona fide- given that the defendant has gone to the lengths of instructing the expert witness

 

3/ the creditor knows full well that the agreement is not bona fide

 

the consequence of 1/- will be that the judge will find one way or the other according to the expert witness and will hold that both sides acted in the honest beleif that they were right

 

in the case of 2/ and 3/ the creditor will use one of various get out of jail cards and ensure that the matter is never ruled upon

 

in either event, the question of someone getting their knuckles rapped be it barrister or claimant will not arise - if it does i will show my proverbial *** in burtons window

Edited March 10, 2010 by diddydicky

[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!!

[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.

[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.

[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"

[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

[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

[diddydicky]

Exactly what has happened here. The OP got royally shafted in the original hearing, I think the DJ even asked the claimant's solicitor for his business card!

 

However the Judge hearing the appeal appears a little more learned.

 

yes i followed that case- absolutely attrocious behavior

[diddydicky]

peeps are getting too bogged down in trying to re write not the cca but the entire legal system .

 

get over it- the same counsel that put their clients cases forward with such veracity then do exactly the same for some defendants

 

get off your moral high horses and have a walk around in the real world

[diddydicky]

Wise words again DD - are you studying philosophy?

 

can't even spell it- let alone do it:D

 

why the hell is dislexic such a hard word to spell- whose idea was that!!

 

and another thing...

 

why is there only ONE monopolies commission?

[diddydicky]

I'm going to ask for a record request for them on the radio , any suggestions?

 

how about "Band (of rogues) on the Run"- wings

[diddydicky]

it is a testament indeed that a fully fledged barrister is so unsure of his own client's case that he/she has to resort to scouring internet forums to be able to deal with your defence

[diddydicky]

shaky, the ONLY way you can lose this is if the expert does not find what he is looking for!! and i some how doubt that you would have gone this far if you were not on solid ground

[diddydicky]

here we go , here we go, here we go,

 

just when you thought it was safe.............................

 

here comes shaky 62 - the sequel...................

[diddydicky]

maybe so because of late timing even if it is a concocted if it looks anything different from the copy shake has,i think shake should post his copy to the EX witness and see if they have changed the format...this will show that their is more to this than meets the eye,then they can be called for malicious time wasting etc

 

if they concocted a new document the evidence of the print being only recent will stand out like a sore thumb

 

as they say ooo north

 

i think they have had it any road up chuck

[diddydicky]

teh consequences of not handing it over- the judge having ordered it would be just as dire....... they were boxed into a corner

 

they will be busy right now concocting and polishing up their "we didn't know it was a reconstruction guv- honest " arguments

[diddydicky]

The other point this discussion begs is how original does an original have to be?

 

We're interpreting it as physically the same piece of paper that was signed when the credit was granted. We also know that it's very rare for banks to keep these documents, instead they scan them and archive them digitally (or at least, they did!). The Student Loans Company is the one organisation I've come across who can reliably track down and produce a physical original if they have to.

 

Assuming the bank haven't had a stroke of incredible luck and actually been able to find the original piece of paper, the best they are likely to have is a print-out of a scan. Is it possible that could be accepted as "original" by a court if it's accompanied by, say, a sworn statement from the company records manager?

 

i think you are missing the point ( its a long thread and you need to read well back)

 

the claimant made a statement to the court that after undertaking exhaustive searches of their off site storage facilities , and that at the eleventh hour they found the ORIGINAL SIGNED AGREEMENT and made declarations to the court to this end.

 

they therefore cannot now claim that this is a reconstruction since they have committed themselves

[diddydicky]

ahhhhhhhhhh- the $64,000 dollar question?

 

 

 

if only i knew!!

 

the "original" agreement "should" be produced to the court- and thereby lies the tale

 

if only it had said "must"

 

getting the judge to issue directions that the original agreement must be brought to the court is a good idea- then the creditor HAS to do what the directions say and not what they think

[diddydicky]

accepted - but in the case of production of the agreement in support of a claim in court the word "should" is used (which is very different from "shall" or "must")

 

thus , if a DN contained the phrase "should contain" i suspect he could not have made the same observation as the two words although similar have very different meanings

[diddydicky]

I am let down by not having any english qualifications but the use of the word is in a different context

 

for example

 

you should wear a raincoat is an advisory statement

 

you shall wear a raincoat is a mandatory statement

 

 

You should produce the agreement to the court implies a request- a desirable situation

 

 

you shall produce the agreement to the court is an order

 

since shall can easily be identified with must- since both are commands it is easy to see why a judge would rule them the same

 

he could not make the same case for the similarity of the words should and must in this situation (IMO)

 

 

despite my lack of qualifications- i know the difference:)