Is this a mistake or Fraud? ***WON***

[legalpickle]

Hi LP damn I forgot that important part in all the happiness. In total I was awarded 4859.97. I believe 3420.00 + 1427.00 interest. I have written down the breakdown and will get out in a bit. But the total awarded was 4859.97.

Excellent!

 

Now we wait!

 

Let us know when you get the court order, and when you either get a cheque or a Notice of Appeal (or whatever it's called) from IT.

 

If you get a cheque, photocopy it, and then deposit it into your account. Only 6 working days later (whether it clears before or not) is this finally over, as only that stage can it not be taken back out of your account.

 

An Appeal can be lodged within 28 days I believe. Maybe somebody else has time to check into the rules of Appeal from small claims decisions (part one of requesting from the presiding district judge is dispensed with) and could post it up here?

[Mr lex]

This is all I can find for the moment :-

 

Appeals

 

You may appeal against a judgment in the small claims track only if the court made a mistake in law or there was a serious irregularity in the proceedings. If you want to appeal, you must file a notice of appeal within 21 days. A fee is payable although this could be waived in cases of financial hardship.

 

From the CAB.

[frettful38]

Excellent!

 

Now we wait!

 

Let us know when you get the court order, and when you either get a cheque or a Notice of Appeal (or whatever it's called) from IT.

 

If you get a cheque, photocopy it, and then deposit it into your account. Only 6 working days later (whether it clears before or not) is this finally over, as only that stage can it not be taken back out of your account.

 

An Appeal can be lodged within 28 days I believe. Maybe somebody else has time to check into the rules of Appeal from small claims decisions (part one of requesting from the presiding district judge is dispensed with) and could post it up here?

 

 

Thanks LP I will post up the court order soon as it arrives, and as you know very well by now I will be lucky if I receive a cheque so will not open the bubbly just yet. You know how stubborn IT can be and I am preparing myself for an appeal but will keep an open mind.

 

Thank you very very much for all your help and all you have done. When I get time tomorrow I will post up the rest of the story but now I am really tired.

[DonkeyB]

"Wheeeeeeeeeee!" is a technical term that means well done frettful and great work LP - it also just means 'wheeeeeeee!"

[frettful38]

This is all I can find for the moment :-

 

Appeals

 

You may appeal against a judgment in the small claims track only if the court made a mistake in law or there was a serious irregularity in the proceedings. If you want to appeal, you must file a notice of appeal within 21 days. A fee is payable although this could be waived in cases of financial hardship.

 

 

Thanks Mr lex, that was very helpful. Only time will tell what will happen next. Thank you for changing the title it looks great.

[Mr lex]

Then there's this, which says the same thing really, apart from 14 days instead of 21 ?? :-

 

Appealing a Small Claims Judgment

 

 

If a party objects to a judgment made at a hearing which they attended they will almost certainly have to appeal the decision. Appeals in the small claims court are now treated, broadly, in the same way as appeals in any other type of claim. If a party wishes to appeal the judge’s decision they will have to ask for permission to appeal. To grant permission the court will have to be satisfied either that:

• The appeal has a real prospect of success; or,
  
• There is some other good reason why the party should be permitted to appeal.
  

Permission may be obtained from the judge who made the decision or from the appeal court. If a party asks the judge at the small claims hearing for permission to appeal and he refuses to grant it, the party may still ask the appeal court for permission. If the party did not attend the hearing, they will have to seek the permission of the appeal court in any event.

 

 

An appeal must generally be lodged within 14 days of the judgment being made. A reduced fee and simplified appeal form applies to appeals against small claims judgments.

[kurvaface]

When you're less tired, we also need to discuss the film:)

[DonkeyB]

When you're less tired, we also need to discuss the film:)

 

:D:D

 

Book first, kurva! Need a ghostwriter, frettful?

 

Now, frettful, who would play you in the film?

 

And you, LP?

 

And who would play IT Snr and IT Jnr?

[OnlineD]

I just spent nearly 2 hours reading 37 pages for the result even though I seen the **won** in the title lol. Was still interesting though and congratulations

[legalpickle]

I just spent nearly 2 hours reading 37 pages for the result even though I seen the **won** in the title lol. Was still interesting though and congratulations

You must be a real bored sod:p

[pompeyfaith]

Well Done frettful a fantastic result I have been monitoring this thread for quiet some time, but refrained from assisting as you where already getting excellent help from LP which has paid off or as LP would say nearly paid off lol

 

Anyway well done both of you.

[OnlineD]

You must be a real bored sod:p

 

Aye, well it was either that or spend another 2 hours working, and Reading this was slightly easier on the eyes I think the help you gave was above and beyond by the way and it's great to find a whole community of people willing to help each other without expecting something back. Restores some of my faith in humanity.

[twofoot]

Well done and interesting read. I also noticed the appeal possibility. Didn't the judge refuse permission to appeal at the last hearing.

[legalpickle]

Well done and interesting read. I also noticed the appeal possibility. Didn't the judge refuse permission to appeal at the last hearing.

twofoot, If you read the posts you will notice that even when permission to appeal is refused, a request can still be lodged with the higher court.

 

The way all permissions to appeal work is that a request is made with the judge hearing the case. That judge will only grant leave to appeal if he/she feels there are issues of public importance or it may requre a higher court to delve deeper into complex issues.

 

Even if permission to appeal is refused - detailing the grounds, the request is lodged with the higher court, and then a higher judge goes through it and either hears it & then makes a decision on if to hear an appeal or not; rejects it outright; or accepts that there may be grounds for appeal and schedules an appeal hearing.

 

The exact routes to appeal a small claims verdict I am unsure of though.

[emandcole]

Awesome, congrats to Frettful for not passing out and huge congrats to LP for having the resolve and the energy to make this a success. One of the great saga's on this forum, let's hope the cheque clears and all is settled once and for all .

[frettful38]

Thanks everyone for their support and words of congratulations. If IT does decide to appeal then we will cross that bridge when we come to it. I think that IT is contradicting himself (itself) when it stated in court that it has no files or documents in support of his IT's defence, as IT's solicitors had lost the file. The judge commented by saying that how odd it was for solicitors to have mislaid the file as it has been 6 years yet.

 

The judge also commented that I had received very bad legal advice from both my solicitor and barrister, she also went on to say that she believed that I was bullied in to making the consent order on the 3rd Feb 99. IT continuosly kept bringing the old proceedings in and said to the judge that this case was over 14 years old, but the judge said that this was a fresh claim and had nothing to do with the previous proceedings. The judge said that the case in 05 was struck out and did not even proceed to trial as it was so poorly put together and submitted. The judge also commented and said that the case did not proceed to trial and was only struck out and I thought that she was giving me a hint there, that there was a chance of re-opening the 05 case, maybe under undue influence, as I was under a lot of pressure to come up with the funds or else I would have lost my house.

 

It's not about the money its the fact that I won for now. If only I could have taken a picture of IT and IT junior in years it would be worth millions. You see IT lives in this town and has done many many people over. This is a small victory for me which I am very grateful, but a drop in the ocean for all the heartache that IT has put me and my family through.

 

If IT does decide to appeal then I know what IT's intentions will be, IT will try and bring the old proceedings and rent arrears claim forward. If IT does believe me I will have an answer for every questions that IT will raise. This is going beyond a joke, and IT does this kind of thing for a living that how IT made IT's millions. Good job I did not refer to IT when we were in court, god knows what the judge must have thought.

 

There is a very big picture behind of all of this and if anyone would like to read my story about IT and me please pm and I will be happy to send you it.

 

 

I was not in a very strong frame of mind yesterday as my mother had pulled her shoulder muscle as was in very bad agony, to be honest I was thinking about her most of the time whilst I was sitting in the courtroom, as she was crying very much before I left for court, but I managed to pull myself together.

 

IT was also referring to someting called estopel which I did not have the foggiest what IT was on about. IT was coming out with so much legal garbage that I really wanted to smack IT right across the head but know this was not allowed. When I refer to IT I mean that IT did not speak at all throughout the hearing, IT's slimey son was doing all the talking. Such a stuck up pompass nickenpoop.

[spamheed]

Very well done all concerned, I really look forward to hearing that you have cleared funds and that this is well and truly done with.

 

But somehow, I don't think it is......yet!!

[frettful38]

Very well done all concerned, I really look forward to hearing that you have cleared funds and that this is well and truly done with.

 

But somehow, I don't think it is......yet!!

 

 

Thanks for the support spamheed, only time will tell now.

[Mr lex]

The term Estoppel has reared it's head a few times lately on the forum. This is the best descriptor I can find :-

 

Estoppel is a doctrine of law to prevent or bar some assertion of fact or law by party. Estoppel applied when two statements present a contradiction with the result that the earlier is taken as the truth. An application of the doctrine prevents a defendant setting up the true set of facts (namely represented by its change of position), and force the defendant to accept the set of facts as represented by him. Therefore, estoppel precludes a person from asserting something contrary to what is implied by his or her previous action or statement or by a previous judicial determination concerning that person. Put another way, and generally speaking, when parties proceed on a common assumption of either fact or law, neither of the parties will be permitted to go back on the common assumption arising from the representation when it would be unfair or just for him to do so. Whether or not the common understanding arises from a mistake or misrepresentation is immaterial.

 

There are a number of types of estoppel in English law.

1. Estoppel in pais, which is subdivided into estoppel by representation and estoppel by representation. Estoppel in pais is generally considered to comprise equitable forbearance and proprietary estoppel.
   
2. Promissory estoppel.
   
3. Estoppel by convention.
   
4. Estoppel per rem judicatam has two forms: cause of action estoppel and issue estoppel; the doctrine of merger applies to English judgments but not foreign judgments.
   

This broad genus of estoppels operate to set up a state of facts that play a crucial role in altering what would otherwise be the legal rights of the parties, as the rights of the parties are judged by a different set of facts. The relevant estoppel may be used to set up a cause of action, provide a defense to a cause of action or have some other decisive effect on evidence causing a claim to succeed or fail.

In England, most forms of estoppel may only be used as a shield to a claim rather than as a sword. This is a reference to nature of the most forms of estoppel, namely that estoppel is a rule of evidence that prevents a party asserting facts that either give rise to a claim or allow a party to defend a claim. This is not to say that estoppel cannot be used either offensively or defensively, that is by either a defendant or a claimant.

Once the estoppel has been made out, a court will prevent the estopped party adducing or relying on evidence which contradicts the truth of the representation. In this way, the legal rights of the parties and consequences thereof are judged by the facts represented, and not in accordance with the true state of affairs.

The exceptions to the general rule are proprietary estoppel and equitable forbearance, which grant substantive rights and may be used as a sword. Moreover, some commentators suggest that the two forms of estoppel per judicatam are not estoppels at all. Whether or not they are is a moot point, as the affect of these types of estoppel are well understood under the principles of res judicata.

 

The common factors to the different forms of estoppel are:

1. A representation. The requisite form of representation varies from estoppel to estoppel. Sometimes a statement of fact or required sometimes mere belief or promise and in fewer instances, silence or other passive conduct.
    
   In some instances a clear and unequivocal representation is required, in the sense that it is reasonably understood in by the person to whom it is addressed, so that the addressee was not left in any doubt as to the meaning. Thus the representation may be required to be unqualified, precise and unambiguous, in circumstances where it is unlikely that addressee would have interpreted them differently. There is authority to say that the representation does not have to have only one interpretation, provided that the meanings other than that relied upon by the claimant is far-fetched and strained.
    
   Identifying or ascertaining a representation discharging the requirements of the form of estoppel relied usually presents the most difficulty in establishing a cause of action.
   
2. Reliance upon the representation.
   
3. A causative link between the representation and the person asserting that an estoppel ought to apply in the circumstances: the innocent party must have acted differently as a result of the representation.
   
4. That reliance caused material detriment, if the correctness of the representation is denied.
   

Usage: The claim by the defendant that the claimant would not enforce the contract amounted to an estoppel upon the claimant, as the defendant had relied on the statement by the claimant and changed his position to his detriment.

Edited March 19, 2010 by Mr lex

[Mr lex]

In practical terms I have heard of user's thinking of using an estoppel to prevent a Credit Card Issuer who has lost a CCA case from coming back with another form of attack.

 

Complicated isn't !

 

Lex

[regan11]

What a saga. Hope the cash arrives soon and you can sit back and enjoy it. Young it and old it sound like a couple of real charmers lets hope they get what they deserve.

[the_shadow]

In practical terms I have heard of user's thinking of using an estoppel to prevent a Credit Card Issuer who has lost a CCA case from coming back with another form of attack.

 

Complicated isn't it?!

 

Lex

 

Hmm thanks I'll squirrel that one away after a CC firm told me they werent seeking to enforce the agreement.

 

S.

[legalpickle]

Thanks everyone for their support and words of congratulations. If IT does decide to appeal then we will cross that bridge when we come to it. I think that IT is contradicting himself (itself) when it stated in court that it has no files or documents in support of his IT's defence, as IT's solicitors had lost the file. The judge commented by saying that how odd it was for solicitors to have mislaid the file as it has been 6 years yet.

I think you mean "as it has NOT been 6 years yet".

 

Solicitors are bound by law to keep files for NINE years, as that's the statute of limitations on professional negligence.

 

The judge also commented that I had received very bad legal advice from both my solicitor and barrister, she also went on to say that she believed that I was bullied in to making the consent order on the 3rd Feb 99. IT continuosly kept bringing the old proceedings in and said to the judge that this case was over 14 years old, but the judge said that this was a fresh claim and had nothing to do with the previous proceedings. The judge said that the case in 05 was struck out and did not even proceed to trial as it was so poorly put together and submitted. The judge also commented and said that the case did not proceed to trial and was only struck out and I thought that she was giving me a hint there, that there was a chance of re-opening the 05 case, maybe under undue influence, as I was under a lot of pressure to come up with the funds or else I would have lost my house.

Possibly but such a case would be VERY expensive to run and would require a Solicitor to lodge an appeal. Personally I wouldn't bother (unless you win the lottery and have unlimited funds to run such a case).

 

It's not about the money its the fact that I won for now. If only I could have taken a picture of IT and IT junior in years it would be worth millions. You see IT lives in this town and has done many many people over. This is a small victory for me which I am very grateful, but a drop in the ocean for all the heartache that IT has put me and my family through.

It starts with such small victories. Let's hope IT & IT's son are on a losing streak now!

 

If IT does decide to appeal then I know what IT's intentions will be, IT will try and bring the old proceedings and rent arrears claim forward. If IT does believe me I will have an answer for every questions that IT will raise. This is going beyond a joke, and IT does this kind of thing for a living that how IT made IT's millions. Good job I did not refer to IT when we were in court, god knows what the judge must have thought.

And IT will have no chance, because that was settled. Whilst you may have a claim that you were under undue influence, IT would not have such a claim.

 

Also had you referred to IT's behaviour in other matters in the court, the District Judge would have been obligated to strike those statements out and it would have guaranteed IT the right to appeal solely on that basis.

 

There is a very big picture behind of all of this and if anyone would like to read my story about IT and me please pm and I will be happy to send you it.

I would recommend against this till this is all over.

 

I was not in a very strong frame of mind yesterday as my mother had pulled her shoulder muscle as was in very bad agony, to be honest I was thinking about her most of the time whilst I was sitting in the courtroom, as she was crying very much before I left for court, but I managed to pull myself together.

Sorry to hear. Hope she gets better soon.

 

IT was also referring to someting called estopel which I did not have the foggiest what IT was on about. IT was coming out with so much legal garbage that I really wanted to smack IT right across the head but know this was not allowed. When I refer to IT I mean that IT did not speak at all throughout the hearing, IT's slimey son was doing all the talking. Such a stuck up pompass nickenpoop.

See Estoppel - Wikipedia, the free encyclopedia

 

Basically IT's son was trying to state that your payment prevented you from claiming it back. The reasons that was struck out were twofold:

 

1) It was never raised in a defence in this claim. A defence cannot be raised for the first time in the hearing.

 

2) It was clear that you were intimidated into paying it in the first place.

 

In my opinion the claim of estoppel might have been the only defence that would mean anything in this claim. Whilst I believe you would have still succeeded in your claim, the defence of estoppel would have been the only possibly remotely valid part of a defence in this claim; and if an appeal is lodged is likely to be the basis of it.

 

Very well done all concerned, I really look forward to hearing that you have cleared funds and that this is well and truly done with.

Me too.

 

But somehow, I don't think it is......yet!!

Unfortunately I have to agree here.

 

Thanks for the support spamheed, only time will tell now.

As usual it's the waiting game!

 

The term Estoppel has reared it's head a few times lately on the forum. This is the best descriptor I can find :-

 

Estoppel is a doctrine of law to prevent or bar some assertion of fact or law by party. Estoppel applied when two statements present a contradiction with the result that the earlier is taken as the truth. An application of the doctrine prevents a defendant setting up the true set of facts (namely represented by its change of position), and force the defendant to accept the set of facts as represented by him. Therefore, estoppel precludes a person from asserting something contrary to what is implied by his or her previous action or statement or by a previous judicial determination concerning that person. Put another way, and generally speaking, when parties proceed on a common assumption of either fact or law, neither of the parties will be permitted to go back on the common assumption arising from the representation when it would be unfair or just for him to do so. Whether or not the common understanding arises from a mistake or misrepresentation is immaterial.

 

There are a number of types of estoppel in English law.

1. Estoppel in pais, which is subdivided into estoppel by representation and estoppel by representation. Estoppel in pais is generally considered to comprise equitable forbearance and proprietary estoppel.
   
2. Promissory estoppel.
   
3. Estoppel by convention.
   
4. Estoppel per rem judicatam has two forms: cause of action estoppel and issue estoppel; the doctrine of merger applies to English judgments but not foreign judgments.
   

This broad genus of estoppels operate to set up a state of facts that play a crucial role in altering what would otherwise be the legal rights of the parties, as the rights of the parties are judged by a different set of facts. The relevant estoppel may be used to set up a cause of action, provide a defense to a cause of action or have some other decisive effect on evidence causing a claim to succeed or fail.

In England, most forms of estoppel may only be used as a shield to a claim rather than as a sword. This is a reference to nature of the most forms of estoppel, namely that estoppel is a rule of evidence that prevents a party asserting facts that either give rise to a claim or allow a party to defend a claim. This is not to say that estoppel cannot be used either offensively or defensively, that is by either a defendant or a claimant.

Once the estoppel has been made out, a court will prevent the estopped party adducing or relying on evidence which contradicts the truth of the representation. In this way, the legal rights of the parties and consequences thereof are judged by the facts represented, and not in accordance with the true state of affairs.

The exceptions to the general rule are proprietary estoppel and equitable forbearance, which grant substantive rights and may be used as a sword. Moreover, some commentators suggest that the two forms of estoppel per judicatam are not estoppels at all. Whether or not they are is a moot point, as the affect of these types of estoppel are well understood under the principles of res judicata.

 

The common factors to the different forms of estoppel are:

1. A representation. The requisite form of representation varies from estoppel to estoppel. Sometimes a statement of fact or required sometimes mere belief or promise and in fewer instances, silence or other passive conduct.
    
   In some instances a clear and unequivocal representation is required, in the sense that it is reasonably understood in by the person to whom it is addressed, so that the addressee was not left in any doubt as to the meaning. Thus the representation may be required to be unqualified, precise and unambiguous, in circumstances where it is unlikely that addressee would have interpreted them differently. There is authority to say that the representation does not have to have only one interpretation, provided that the meanings other than that relied upon by the claimant is far-fetched and strained.
    
   Identifying or ascertaining a representation discharging the requirements of the form of estoppel relied usually presents the most difficulty in establishing a cause of action.
   
2. Reliance upon the representation.
   
3. A causative link between the representation and the person asserting that an estoppel ought to apply in the circumstances: the innocent party must have acted differently as a result of the representation.
   
4. That reliance caused material detriment, if the correctness of the representation is denied.
   

Usage: The claim by the defendant that the claimant would not enforce the contract amounted to an estoppel upon the claimant, as the defendant had relied on the statement by the claimant and changed his position to his detriment.

Very well explained, but to clarify:

 

The Defendant would be relying on 'estoppel by convention' - see: Estoppel by Convention | London Litigation & disputes law firm describes estoppel by convention - however frettful38 would be able to argue intimidation, and lack of agreement (i.e. lack of estoppel) due to the disputes raised almost immediately after payment.

 

In practical terms I have heard of user's thinking of using an estoppel to prevent a Credit Card Issuer who has lost a CCA case from coming back with another form of attack.

 

Complicated isn't !

 

Lex

Can be very complicated, but in practical terms is simple. Estoppel in such a case can be very hard to fight though. I have used estoppel with success on a few occasions. It's a very hard to fight argument though.

 

What a saga.

So true!

 

Hope the cash arrives soon and you can sit back and enjoy it.

Amen!

 

Young it and old it sound like a couple of real charmers lets hope they get what they deserve.

Amen!

 

Hmm thanks I'll squirrel that one away after a CC firm told me they werent seeking to enforce the agreement.

 

S.

That's slightly different from what Mr. Lex was pointing to but would be an easier estoppel to claim.

Edited March 19, 2010 by legalpickle
almost simultaneous post by the shadow...

[frettful38]

Thanks LP I can see that IT will try and appeal and believe me this something else I am not looking forward to. IT junior kept asking the judge that why did I not mention anything about the overpayment back in the 05 hearing. The simple answer was that I did not about it then.

 

Then IT junior asked me and also the judge is on how I found out that I had made an overpayment and when I found out. Oh this did catch me off guard but I answered the truth. I found out early last year. How I found out was not rocket science. I know my OH had a costs judgment against him and so did I so how did I manage to end up paying more than he did. I just did a lot of adding taking away multiplying e.t.c. I then started to ask around interest being claimed on judgments under £5k and found out with a lot of help with this site that interest cannot be claimed on Final Costs Certificate and for judgments under £5k. Obviuosly I did not tell the judge that I had been getting a lot of help from CAG otherwise the judge would be logging in to.

 

I will wait and see what I get through from the court, and hopefully there will be no appeal but if there is then LP I am sorry I will have to rattle your cage once more. Look on the bright side look at all the publicity and fame you got from this thread, you deserve a gold medal:D

[The GodMother]

Only a gold. I thought more like platamium.

 

Well done for the win.