Shakespeare62 - v - a NastyBank

[shakespeare62]

Just been reading a post by oilyrag on this thread:

http://www.consumeractiongroup.co.uk/forum/barclaycard/195090-fingers-barclaycard-5.html#post2798970 (Post 93)

WRT the Carey v HSBC case. He brings to attention the view of HHJ Wakeman that, not only should the claimant produce an original agreement in court but also that all variations sent to you should have been accompanied by a copy of that agreement.

 

If Amex are saying that this agreement was buried deep in their archives, how are they going to demonstrate that a true copy of the agreement was sent with all the variations they have sent you over the years??

 

Interesting..

[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

[diddydicky]

Not only that - I had warning they'd be doing so at the last minute. It's a well rehearsed routine they use.

 

how about any chance of a witness statement from the person concerned in the previous modus operandi?

[banker_rhymes_with]

Hello Dad!

 

The current statement by MdR is complete pants and does not set out any detail as to how the document was handled...

 

Absolutely. The Witness Statement went out of its way to say as little as possible but in the most words.

 

Cheers,

BRW

[patrickq1]

Re your post 609, BRW:

 

I think if any one of quite a number of us are taken to court by MSDW it will be us who will be turning up with a large folder of their agreements - all differently re-created. (Sorry to digress, S62.)

 

I wonder if they actually would produce a witness saying they had grabbed it from the archives, because we don't actually believe it has ever been in the archives, do we? So for someone to come forward and say that if they hadn't actually done it would mean getting someone to lie under oath. I expect the corporate lot might lie under oath but to actually get someone from, say, the typing pool to go along and totally make something up knowing they would be cross-examined would be dangerous I think.

 

 

I had been informed in 2004 that they shredded most of the applications in 2004 from someone who worked in the glasgow office and only kept a few applications as standby ..i know they do not posses mine but still being hastled by HFO

patrickq1

[johnerog]

Could the money laundering regulations be used in this? I thought the were compelled to keep certain records, or does this not go back far enough?

 

John

[patrickq1]

the applications only had limited terms and conditions and they know this so they are quite afraid of this coming to light

[robcag]

Hi S62

 

I've just PM'd you something which might have been apparent to you when you had hands on of the alleged 'original agreement' at the court.

 

It is something which is better not revealed to certain guests, but I doubt whether they would have been silly enough to make such a glaring omission, and if they had I'm sure you would have already picked it up.

 

Cheers, and good luck with this

Rob

[patrickq1]

Legal Admissibility, Document Management, Document Imaging, Document Scanning | Archival

[middenmess]

That makes for an interesting read but is concerned only with electronically stored info and not the paper document that has been 'rediscovered'

 

But

 

IF the financial industry adhere to these legal obligations,then how do so many of us receive illegible documents when requesting copies of agreements etc?

 

~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~

 

A small section of

British Standards Institution (BSI) BIP 0008

 

The Scanning Process

The Code requires, for example, that records be kept on the system audit trail of key information concerning imported documents. This information should include as a minimum:

 

• Unique identifier for each batch of documents

• Date and time of scanning

• Identity of the person who performed the scanning

• Type of material scanned (e.g. paper document, microfilm, aperture card, etc.)

• Number of documents and number of pages in each document scanned

• Detail of post-scanning processes (de-skewing, de-speckling, etc.) performed The Code recommends that records be kept in batches so it is easier to check that:

• All required activity has been performed

• Any anomalies have been noted

• Appropriate quality procedures have been completed

• Records of any exception processing have been made

 

But all this detracts from the main issues of this thread but would make an interesting new thread.

[Series3]

do you have an expert for the documents authenticity?

[middenmess]

from post 433

 

 

BTW - The Forensic Document Examiner will be an expert of Scotland Yard Calibre.

[patrickq1]

there was a mention of an expert on the forum about 3 months ago or someone who had family who was a expert ? truthfully i cant remember who ...

some use that huh ..

[Series3]

good....brother is Chief Insp...Daughter forensic.....

it's who you know..glad your sorted.

[shakespeare62]

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

 

Sounds good dad. I'll knock up a Draft Order later today and post it up for comments. Also my expert is very experienced in both criminal and civil cases.

[shakespeare62]

do you have an expert for the documents authenticity?

 

Yes. I have experts waiting to be instructed.

[shakespeare62]

how about any chance of a witness statement from the person concerned in the previous modus operandi?

 

I'll make an enquiry..

[banker_rhymes_with]

Hello S62!

 

Before the next Hearing, I think it may be productive to consider what would make a good Document Management System for a large business, i.e. one who needs to hold key documents for legal reasons.

 

There are many highly responsible organisations out there who take this issue very seriously, and who have established robust systems invariably designed to meet, and achieve, recognised National and International Standards.

 

An obvious Certification/Quality body to investigate would be...

 

The International Organization for Standardization (ISO)

 

They even have a whole section on banking, although this may not cover paper document handling:

 

ISO - ISO Standards - ICS 01.140.30: Documents in administration, commerce and industry

 

Indeed, a very quick search reveals what appears to be ISO standards relating to general document handling:

 

ISO/TR 10013:2001 - Guidelines for quality management system documentation

 

But I'm sure there will be others. Likewise, to become Certified, usually involves a far reaching initial independent Audit, and then regular independent Audits thereafter to ensure that Quality Standards are being maintained.

 

For any such organisation, keeping and retaining original Documents would not present the slightest problem, and neither would any background evidence to support the fact that the Documents are indeed genuine, and have been properly and effectively managed within their Archives. They would not think twice about furnishing such evidence.

 

Likewise, in the case of Copy Documents, logging all the key stages would not present any additional problems for them.

 

In either case (Copy or Original), such an organisation would have no problem with the generation of detailed Reports to track the Archive from initial draft, to creation, to Quality Assurance Inspection, to despatch, to return, to Archive, and any other steps that may have been required. Such as, Copying and then Destruction in the case of copies where the original did not need to be held.

 

Copying and Destruction would not obviously apply to original and live Statutory Agreements, because no organisation in their right mind (who had bothered to establish such a Quality System) would entertain the Destruction of an Agreement upon which both their income and ability to enforce their Rights depended.

 

Consider also the Auditing aspects, and the type and extent of inspections that such an organisation would have to be able to handle to maintain their Certification and verify their Quality Standards.

 

Once you have a good feel for how it is done in the real world (as opposed to the arrogant cloud cuckoo land the bankers seem to inhabit), then I suspect you will be in an ideal position to spot all the flaws in the Amex cloaking and obfuscation tactics designed to hide the abysmal state of their document management systems (or lack of them).

 

Others can help S62 here by seeking out examples of Certified Companies or Certification Assessors, especially if any outline the standards they maintain, and/or list the procedures and programmes needed to attain Certification.

 

Finally, never forget the Hearsay Evidence aspects, and the need to relate all of this to The Civil Evidence Act 1995 if presented with a copy of something.

 

I hope this helps.

 

Cheers,

BRW

Edited March 2, 2010 by banker_rhymes_with
Clarity, CEA 1995 URL

[the_shadow]

Excellent post BRW,

 

Can I just add it might be worth to do some quick detective work on bulk storage facilities...

 

a quick search of the web site or phone call to someone like Iron mountain and asking about their document storage audit trails and retrieval policies might give some useful pointers to questions. In this instance imo very important to find out about old archive storage and whether indexes, search methods, retrieval processes have been updated for these old items over time.

 

Iron mountain are I believe one of the market leaders so no doubt there policies are at the forefront, banks and other bulk storage facilitators are likely to follow suit.

 

S.

[banker_rhymes_with]

Hello S!

 

One thing I should also say, is that S62 is almost certainly aware this Agreement issue is just one part of his Appeal.

 

It's important to be aware that Arsemex and Poopcon are a slippery mating of odious reptiles, and they do like to play games and think two steps ahead.

 

One danger could be that they do have the original, and that will be produced. IOW, they will swap documents, just to claim how beastly S62 has been towards them, and they were right all along, what was the fuss about.

 

Indeed, they may well have singled S62 out for special attention simply because they did happen to have his original agreement, unlike most others, so they have crafted a plan to maximise that, in an effort to lend weight to all of the other Agreements that they have destroyed, and/or that were never s61(1)(a) compliant in the past.

 

IOW, beware of tricks and false moves designed to throw you off balance later. If they play things well, their aim may well be to distract the Court from the defective Default Notice.

 

In summary, keep everything clinical and regimented, and keep your weight balanced in a fighting stance, so they can't sweep your front leg away and take you down.

 

Cheers,

BRW

Edited March 2, 2010 by banker_rhymes_with
Typo

[RobinWayRobinme]

Hello S!

 

One thing I should also say, is that S62 is almost certainly aware this Agreement issue is just one part of his Appeal.

 

It's important to be aware that Arsemex and Poopcon are a slippery mating of odious reptiles, and they do like to play games and think two steps ahead.

 

One danger could be that they do have the original, and that will be produced. IOW, they will swap documents, just to claim how beastly S62 has been towards them, and they were right all along, what was the fuss about.

 

Indeed, they may well have singled S62 out for special attention simply because they did happen to have his original agreement, unlike most others, so they have crafted a plan to maximise that, in an effort to lend weight to all of the other Agreements that they have destroyed, and/or that were never s61(1)(a) compliant in the past.

 

IOW, beware of tricks and false moves designed to throw you off balance later. If they play things well, their aim may well be to distract the Court from the defective Default Notice.

 

In summary, keep everything clinical and regimented, and keep your weight balanced in a fighting stance, so they can't sweep your front leg away and take you down.

 

Cheers,

BRW

Thing to bear in mind, a good gambler, when the next bet to stay in the game is so high compared to their available chips, will only go "all in" if they know they have the winning hand. However, they will always fold at the last minute to minimise their loss if they know they can't win and, more importantly, avoid showing their hand. shakey, IMO you should look at it that your next move is to call their bluff, from what I've read on your thread, I think they will fold before you get to the appeal proper, or indeed your directions hearing when the decision is made re the forensic examination of the agreement and they will have to hand it over to your expert. IMO, if they hand over the purported original agreement, its like them going all in.

R.

[patrickq1]

and considering above i would be going for wasted cost order.....

[RobinWayRobinme]

I would agree with that. Its just a game for them and deadly serious for us.

[shakespeare62]

Here's the proposed Draft Order for Directions.

 

All comments welcomed - (is Dad around ?)

Draft order for Directions v2 - ID REMOVED.doc

Edited March 2, 2010 by shakespeare62

[patrickq1]

very nicely put..see them sqirm at this mention of expert