Shakespeare62 - v - a NastyBank

[dp77]

Something like this was always going to happen - there was that infamous bank memo that was posted online, congratulating an employee for reconstituting documents, an action which led to hundreds of thousands of pounds being handed over by debtors - who believed they were faced with enforceable agreements.

 

I believe I have myself been shown a reconstituted agreement, which was claimed to be the original, and indeed sworn to as such in writing. It happens a lot I'm sure, but not usually in front of a Judge who is open minded enough to allow forensic examination of the document in question.

 

This will be interesting if it plays out.

[humbleman]

Quote from one of the top barristers."barristers don't lie, it's the witnesses and/or the client's that do"

[middenmess]

BTW their barrister did seem to backtrack when it was clear permission was going to be given for me to instruct an expert - she started saying it may have been a reconstruction. I said she had stated at the previous hearing that it was the original and the judge agreed. no back tracking from here on. So we'll wait and see.

 

 

We all agree that Barrister's have to believe in what their client's tell them but in this instance the lady in question admitted in Court as per S62's post above, that it ''might be a reconstruction'' so where does that leave her--complicit in this possible deceit or ending her association with this case?

[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!!

[Desperate Daniella]

Well, if I were her I wouldn't want to work for them any more, but she's now been given instructions by them to say it "might be a reconstruction", so they are not as yet admitting that it actually is. Thank God the judge wouldn't let her backtrack.

[banker_rhymes_with]

Quote from one of the top barristers."barristers don't lie, it's the witnesses and/or the client's that do"

This is why the banks issue Witness Statements based on what other intentionally nameless employees have told them, then they add another layer to the obfuscation of responsibility by using Solicitors, and then ensure the Solicitors use Barristers to further distance the dirty deed from the reality of the Courtroom.

 

Then, if their ruse is rumbled in Court, they will engage in a swift damage limitation exercise by passing the buck backwards until it gets lost along the way. They have ensured that the real culprit has been very carefully distanced from the sharp end. It's also sobering to note that their name has almost certainly not been mentioned at any stage. The bank will no doubt apologise profusely, then they will claim that whoever did this cannot now be found, there has been an unfortunate misunderstanding, and/or it would take a disproportionate amount of work to prize the lying bastud out of the bowels of the bank's highly sophisticated blame dissipation system.

 

Cheers,

BRW

Edited March 10, 2010 by banker_rhymes_with
Typo

[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!

[dp77]

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.

[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?

[Desperate Daniella]

It's very, very irritating, but it's true. If the client says something is true the barrister must represent him in putting that forward in court.

 

With murder cases if the alleged murderer says he or she is innocent again the barrister has to accept that. Obviously if the a.m. admits they are actually guilty the barrister cannot proceed with a plea of innocence.

[dp77]

What I'm saying is that given the circumstances of the hearing you would expect the Barrister to have double and even triple checked with the client that the document is authentic.

 

If the client assured her it is and then it proves not to be authentic, I imagine that person had very little regard for the barrister and may well have committed an offence. On the other hand if the person the barrister checked with said "it may be a reconstruction" why did the barrister not make that absolutely clear to the Judge? That IS her responsibility.

 

Someone, somewhere is responsible for deception, if this document is not kosher. I don't really care about the fate of the barrister, but I don't think some sort of legal privilege should enable the culprit to hide, if deception is proven.

[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!!

[RobinWayRobinme]

Just been catching up shakey. Rare to hear stories of a judge understanding the issues, but it seems when you go above a district judge in an appeal, the experience of the judge benefits us LiP's. Must admit, I was very apprehensive at my permission to appeal hearing, but found it to be less of an ordeal in front of a judge who listened and appeared to have actually read the file and understand the law than when I was in front of the DJ. The sad thing is, for me and it seems many other caggers, its not the counsel you are up against, its the DJ that doesn't have an open mind and just wants to dispose of the case as quick as they can.

 

Interesting reading comments of Dad and others re client privelage. In recognising that certain guests can be a problem at times, is there anything that the site team can do to get all users of the forum (guests included) to enter into an agreement that users can only use information and advice for the sole purpose of the individual user (not corporates) own dispute. Any thoughts? I'm sure any genuine user will not have any probs with this.

 

Agree with DD's post re barrister not at risk with agreement, it is the claimant that is arrogantly tryingb to mislead. However, is there not something in sols code conduct and bar councils rules concerning continuing to act if they believe that the Claimant may be deceiving the court?

R

[dp77]

Well let's see how this all plays out. I am not convinced that document will ever find its way into the hands of the forensic expert, but as I have no experience of a situation like this I could easily be wrong.

 

Let's not lose sight of how well the OP has done here, you look at the shafting he got in the original case and you have to say a lot of people would have crumbled at that point.

[JonCris]

Correct Desperate which is why I asked on what basis the barrisiter might make such an statement. However your barrister is wrong when he states they have to believe their client. An officer of the court, which is their 1st duty, cannot be seen to be suborning perjury & if the evidence is clearly not what it's claimed to be then the lawyer should withdraw as to proceed might find them guilty of contempt

[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

[middenmess]

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

 

We always wanted to see S62 get the justice that he deserves but after your promise above we now all want it twice as much:D

[patrickq1]

YES TO SEE JUSTICE DONE...I WOULD ENTER A 4/ SITUATION.. if the creditor knows and decides to withdraw there action then s62 can oppose this and go for damages...that said whichever way it goes looking at that contract it is in no way like the origional application that they should have ,the small print on the application was that small it was practicly unreadable from what i can remember of the origional aplications ..had they said it was a reconstruction i think they would have had problems bringing the case forward, but since they have gone this far i think they know that TROUBLE LIES AHEAD and they will have to find a way out of jail as you say DD ...but well done s62 for showing some courage this is no easy case for anyone....

patrickq1

[Desperate Daniella]

Joncris, I do see your point, but clearly they told her at the first hearing it was an original and she presumably represented them on that basis, and had to do so.

 

Now they are saying it "might be a reconstruction" she has brought that to the attention of the judge at the hearing, who stopped her at that point and refused to allow her to backtrack. But - she has covered her own back by doing that.

 

As much as we tend to loathe the other side's representatives (and I absolutely hate with a vengeance the solicitor acting against me in another case) she has firstly been told it's an original and secondly admitted that it "might be a reconstruction", so at the moment she just has not committed perjury, so I think it's highly unlikely she's going to get hauled over the coals for anything.

 

I tend to agree with BRW - they'll try the "Oh, we have made a dreadful mistake, and we are so very sorry" tactic next, and I truly hope the judge doesn't let them get away with it and insists on the Officer of the company ultimately responsible, be it the Company Secretary or Chief Exec of Amex, being hauled before him to explain themselves. That really would be justice. All that has happened wasn't done by some little clerk in a back office. They have a legal department who instructed Brachers and then MdR. That legal department has in-house solicitors who will be reporting and told what to do by the directors/execs of Amex.

 

Please, please, please let this judge take this to the right, just, conclusion.

 

DD

[shakespeare62]

I tend to agree with BRW - they'll try the "Oh, we have made a dreadful mistake, and we are so very sorry" tactic next

DD

 

The judge has closed the door on that - no going back now that the purported original has been produced.

 

More on his instructions to the Barrister in Court in my write up. I am in the middle of doing it. Should be up sometime tomorrow hopefully.

[gezwee]

I'm still biased toward the disappearing agreement trick tbh. They'll be slapped down and beaten up with costs but avoid an open court admission.

[Desperate Daniella]

Hi S62,

 

I've been meaning to ask - when does your expert actually get it? Did the barrister bring this "original" back to court. If so, it should have been handed over there and then (but I doubt if it was ).

 

And when is this due back in Court?

 

Hello Guests!!

 

xx

[gezwee]

Hi S62,

 

I've been meaning to ask - when does your expert actually get it? Did the barrister bring this "original" back to court. If so, it should have been handed over there and then (but I doubt if it was ).

 

And when is this due back in Court?

 

Hello Guests!!

 

xx

 

Hi DD

 

Copied from directions in earlier post......

 

 

.................................

Edited March 10, 2010 by gezwee

[Desperate Daniella]

Thank you, gezwee. Don't know how I missed that.

 

DD

[patrickq1]

because you were desperate lol