Claim Stayed – Due to Unenforceable CCA Test Cases.

[nick20045]

 

John Story

 

www.ruinedbynatwest.com

Let us take a different "angle" to your "Story" (no pun intended).

 

Bank

John Story and Partner

 

One of the "angles" I have just pointed you at:

 

Caparo Industries plc v Dickman [1990] 2 AC 605 is currently one of the leading cases on the test for a duty of care in English tort law. The most recent detailed House of Lords consideration of this vexed question was in Customs and Excise Commissioners v Barclays Bank plc [2007] 1 AC 171, in light of which judgment Caparo must now be viewed. The House of Lords established what is known as the "three-fold test" (a series of three factors), which is that for one party to owe a duty of care to another, the following must be established:

 

• Harm must be a "reasonably foreseeable" result of the defendant's conduct;
  
• A relationship of "proximity" between the defendant and the claimant;
  
• It must be "fair, just and reasonable" to impose liability.
  

So let us look at these three:

 

Harm: Did the bank for example, notify you, draw to your attention as to what the pitfalls will be IF you keep the accounts as you were, did the bank notify you, for example, about joining accounts/refinancing what pitfalls there may be and EVEN hidden pitfalls? (Just let your imagination run loose of what you believe the bank should have done. The bank HAD a DUTY OF CARE).

 

Relationship: There was a relationship between you and the bank as client of said bank. (So that one is definetely proven).

 

Fair just and reasonable to impose liability: You know the anwer to that one.

 

So basically, while you are looking at the CCA and Francis Bennion I am also looking at Tort and Negligence.

 

Do you see now why............ I told you to open your horizons?

[angry cat]

Negligence in contract; now your talking!

[ruinedbynatwest]

Thank you very much for all that, Nick !

I don't for one minute consider that the legal system is per se "corrupt" - that all barristers, judges etc are in any way ganging up to conspire against the consumer - here me ! Paranoia and any other irrational fear does not feature here - what does, is the hard-nosed reality of the threats unpleasantness general delay and empty promises from Natwest, where my "anger" at the r ecollection of Mr Jackson in the witness box serves a purpose as the driving force that has enabled me to specialise in yep, you goddit, the CCA - but not in the minutiae of the subordinate legislation - because MR Bennion states clearly that eg the drafter of the 1983 (agreements) regs disn't understand the primary legislation !!

 

And I say this because S 8 as primary legislation catches the banks' untruths because regulated agreements show that the torts you refer to (and much more) is addressed by the CCA when it is properly applied to my case - if one has read up on both the scope and the extent of the protection - it's pretty mind blowing.

 

I continually recommend (to all those who are interested in the CCA ) that you read Lord Crowther's 1971 report "Consumer Credit - Report of the Committee" [Command 4596]. It'll explain to you exactly where I'm coming from and why I'm sticking to the pertinent facts.

 

As a former lecturer, both technical and managerial at ICL, I was taught to work "from the general to the specific" - and to always "State the obvious" when doing so - and I thank you for the great assistance you render with regard to relevant case law because it is not necessarily obvious why the CCA was put together how it was, without referring to the ground breaking cases that were considered worthy of inclusion in eg the Act's protective measures.

 

WE actually compiled (and I've copies all over the place) 17 lever arch files of evidence for the High Court trial (funny when Natwest wrote hardly anything contemporaneously) and yes, we explored many cases (that ran to 2 full lever arch files), and I shall continue to do so where they are relevant to the CCA point I raise and the evidence. You see, I have learned that the sharper the arrow point the more it is effective. That is why Section 8 is my sole witness to the appalling negligence (putting it mildly) we were subjected to by an arrogant high street bank.

 

What I am saying is that relevence plays a big part here, on a thread that is labelled "CCA" and I promise that that is the only reason, together with the unprecedented nature of Story in many areas of law, that I am minded of the second rule in lecturing; qualification - I am not a qualified lawyer but I AM a qualified party to a test litigation based upon the CCA and hence, I shall confine my submissions on these threads to the reality of my first hand experience as a former computer logician turned geometric carpenter; and I am therefore qualified to promote the evidence which shows to the criminal burden that the ruling in Story simply does not square with the facts. This is an objective process I'm engaged in here - it's not a rant - although I am human enough to be angry, yes, very angry at the ruthless and arrogant disregard of those entrusted and sworn to uphold the rule of law.

 

But for your interest we pleaded at length the duty of care issue (Hedley Byrne, etc), because Mr Jackson developed a business plan

upon which the CCA regulated loans depended - the loans were conditional upon us actioning his advice, eg.

 

I hereby state that nothing I say about my experiences in Story is untrue. And I say that if only because I remember the truth better !!!

I am to write a book to share the experiences with others who are interested in the way the joy-ride works for the weaker party to a test case scenario where a bank's licences are on the line. BUT, it has to reveal the humour (mostly black unfortunately) to make it a worthwhile read - and for me, a worthwhile write....

 

In the meantime, I have just today received evidence from my doctors in the regard of the effects of prolonged stress on my health that is destined for the Court of Appeal.

 

Thanks Again for your time and support, Nick.

 

John Story

 

www.ruinedbynatwest.com

Edited January 5, 2010 by ruinedbynatwest
typos

[nick20045]

 

Thanks Again for your time and support, Nick.

 

John Story

 

www.ruinedbynatwest.com

No problem. I hope you now understand why I told you to "open your horizons".

 

In the meantime, just in case it may help you (remember: Nobody knows your financial state and your privacy is respected), you do know that IF you have to go to say the High Court of Appeal or anything like that, should your finances be "stretched" OR should you worry about the other sides costs, you can apply for what is called "A Paupers Oath" to the Court.

 

A "Paupers Oath" basically, if accepted by the Hight Court of Appeal will wave your costs and the other sides costs (should you lose). Check about it. ;)

[ruinedbynatwest]

No problem. I hope you now understand why I told you to "open your horizons".

 

In the meantime, just in case it may help you (remember: Nobody knows your financial state and your privacy is respected), you do know that IF you have to go to say the High Court of Appeal or anything like that, should your finances be "stretched" OR should you worry about the other sides costs, you can apply for what is called "A Paupers Oath" to the Court.

 

A "Paupers Oath" basically, if accepted by the Hight Court of Appeal will wave your costs and the other sides costs (should you lose). Check about it. ;)

 

Highly relevant ! Thanks !!

 

Story

www.ruinedbynatwest.com

[nick20045]

Might be of interest to you: CA = Court of Appeal and HL = House of Lords

 

Barclays Bank Plc -v- O'Brien and Another [1992] 4 All ER 983; [1993] QB 109 22 May 1992

CA

Banking, Undue Influence Casemap

1 Citers

A bank leaving a husband to explain a proposed charge over the matrimonial home to his wife to secure his business debts, could not enforce that charge against her. There was a presumption of undue influence in the husband which made the charge defective.

 

Kings North Trust Ltd -v- Bell [1986] 1 All ER 423, CA; [1986] 1 WLR 119 1986

CA

Banking, Torts - Other Casemap

1 Cites

1 Citers

The wife claimed to have signed a legal charge in favour of the plaintiffs by virtue of her husband's fraudulent misrepresentation. The charge secured the business borrowings of the husband. She did not get independent advice. Held: The bank had entrusted the charge to the husband to have it signed by her. He was therefore acting as the bank's agent, and it was bound by his misrepresentations, and could not enforce the charge. Dillon LJ made it a necessary condition of such a finding that the creditor had entrusted to the husband the task of obtaining his wife's signature.

 

IF the bank advised you on how to consolidate loans and to secure on property etc etc this may help:

 

Bank of Credit and Commerce International S A -v- Aboody [1992] 4 All ER 955; [1989] 2 WLR 759; [1990] 1 QB 923 1989

CA

Slade LJ Banking, Undue Influence Casemap

1 Cites

1 Citers

In a case where the defendant said that a mortgage had been signed from undue pressure the court may find actual undue influence as opposed to presumed undue influence. Slade LJ said: "Ever since the judgments of this court in Allcard v Skinner a clear distinction has been drawn between (1) those cases in which the court will uphold a plea of undue influence only if it is satisfied that such influence has been affirmatively proved on the evidence (commonly referred to as cases of 'actual undue influence'); (2) those cases (commonly referred to as cases of 'presumed undue influence) in which the relationship between the parties will lead the court to presume that undue influence has been exerted unless evidence is adduced proving the contrary, eg by showing that the complaining party has had independent advice."

 

This one might be what you and Andrew are looking for:

 

British Motor Trust Co Ltd -v- Hyams (1934) 50 TLR 230 1934

 

Branson J Contract, Banking Casemap

1 Citers

Mr Lord acquired two motor coaches under two hire-purchase agreements from the claimants and persuaded his mother-in-law to guarantee his obligations by a contract indorsed on the agreements in the following terms:- "We . . . guarantee the due and punctual payment by the . . . hirer of all . . . moneys payable by him under the within written agreement . . . and we further agree that this guarantee shall not be avoided . . . by the owners and the hirer making any variation in the terms of the said agreement . . . provided that no variation shall make us liable for a greater maximum sum under this guarantee than that for which we are at present or may become liable under the present terms of the said agreement." Mr Lord fell into arrears and the claimant, instead of resuming possession, made a new single agreement with him by which the two earlier agreements were consolidated and the vehicles were regarded as being hired together so that Mr Lord could not acquire property in any one vehicle unless he paid all instalments due on both vehicles. Held: The Court described the clause permitting variation to be:- "so wide that it was almost impossible to put any limit to the power to vary." and added:- "It might be that the position of the debtor was so altered that he would be less able to repay the guarantor, but even such a change was not beyond the very wide power of variation contained in the guarantee."

 

Duty of care by a bank:

 

Woods v Martins Bank Ltd [1958] 3 All ER 166; [1958] 1 WLR 1018; [1959] 1 QB 55 1958

 

Salmon J Banking, Negligence Casemap

1 Citers

If a bank chooses to give advice to a customer, then the Bank’s obligation is to advise with ordinary skill and care. The liability is primarily on contract: “In my judgment, the limits of a banker’s business cannot be laid down as a matter of law. The nature of such a business must in each case be a matter of fact...” and “I find that it was and is within the scope of the Defendant Bank’s business to advise on all financial matters and that as they did advise him they owed a duty to the Plaintiff to advise him with reasonable care and skill.”

Salmon J discussed the duties of legal advisers: "it cannot be too clearly understood that solicitors owe a duty to the court, as officers of the court, to go through the documents disclosed by their client to make sure, as far as possible, that no relevant documents have been omitted from their client's

."

Edited January 5, 2010 by nick20045

[nick20045]

Highly relevant ! Thanks !!

 

Story

www.ruinedbynatwest.com

Now, IF I had not been going through case laws looking for information, I would not have found that information. ;) Doubt your solicitor or your barrister will tell you about it. :D That is why I advise you once again..... have a good search. Loads of info out there.

 

Paupers Oath, you can just google it to find out more information.

[nick20045]

And to show you that I am really a nice person (well....... not really....... but I love to tell the odd "white lie" once in a while :D)

 

Here is another one that most probably you do not know.

 

Once you get a bill from a solicitor and it is paid (irrespective of how it is paid whether in cash or legal aid) you have the right to apply to the court for what is called "Taxation".

 

Taxation means, "the Court has to decide if the bill was fair". In short is there is any overcharging? Due to what was needed was there extra work done and it could have been less or certain work was not needed?

 

And another one............... Yeah I know I am in a good mood today........

 

You should receive a statement from your solicitor for work done (even if on Legal aid) every month. Otherwise they are in breach of Rule 15 of the SRA rules.

 

Ohh we go one more. Irrespective of whether you are on Legal Aid or not, did you ever get a Rule 15 Customer care letter from your solicitor advising you things like: Charge per hours. Charge for reading a letter. Charge for writing a letter etc etc???

 

News for you. That solicitor, if he/she did not send such a letter by LAW is NOT entitled to claim any of his/her charges/costs (except for costs for things like Barristers or like making applications to Courts). And here is the beauty about it......... IF that solicitor failed repeatedly to advise you of the costs/charges you may actually be entitled to compensation.

[andrew1]

My god, don't you just love lateral thinking - where you bin all my life Nick?

 

 

Sorry, that's not a pass Nick I'm a red blooded fella! - I'm just in awe of people who think outside the box like that...thank you...very refreshing.

 

Actually Nick, on that Taxation issue, can that be applied to the costs added to a loan for legal costs applied by the Claimants solicitor? I have an actuarial Summary provided by my lender on this s.18 multiple agreement issue I had for the 2 day hearing and they have recorded over £12,000 for their costs onto my loan. Now that seems totally absurd. Can I apply this Taxation test on those too?

Edited January 5, 2010 by andrew1

[nick20045]

My god, don't you just love lateral thinking - where you bin all my life Nick? IF that is what you think of me (the bold marked word) then......... :D And YES........ like I said to "Story" DO NOT just look at one aspect of the matter. Analyse it, disect it, look at different aspects and explore all avenues. This is not 1960 where the internet was not known. Today you can spend a few hours a day and find out all sorts.

 

 

Sorry, that's not a pass Nick I'm a red blooded fella! - I'm just in awe of people who think outside the box like that...thank you...very refreshing. No problem. Here is another one: Read the 1689 Bill of Rights especially article 10 and article 12. http://www.constitution.org/eng/eng_bor.htm FOR THEY SAY:

10: That excessive bail ought not to be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted;

12: That all grants and promises of fines and forfeitures of particular persons before conviction are illegal and void;

 

For, as in the example in Richard Durkin v DGS Retail Limited and HFC Bank Plc a persons credit rating was effected AND is it NOT a persons right to have a good credit rating IF one has not done anything wrong? Hence to "forfeit" (for example) a persons right to credit by causing a wrongful declaration with the CRA's then is it not a breach of ONE's basic rights under Statute law in this country? For it says in section 12: That all grants and promises of (forgetting fines) forfeiturs of particular persons before conviction are illegal and void:

 

So let us look at McGuffick. So was that judgement correct about the CRA's?? Heck NO! For YES IF a debt is declared unenforceable THEN it is basically a "Status Quo". In short, you cannot prove I owe you so two fingers up to you BUT if you can prove I owe you then two fingers up to me.

 

Therefore in my opinion (tell me otherwise if you wish to and YES I know there is other case law BUT they DO confirm that the person is "not out of the debt as NOT PROVEN" AND that it is unenforceable) as you have NOT PROVED I OWE YOU can you "forfeit" my credit rating? BUT THEN let us take it one step further...... for section 10 says: Cruel punishment and in the McGuffick case was it not "cruel punishment" to authorise that ones credit rating (see Durkin again) is effected for what a bank cannot enforce? So is the McGuffick ruling actually contrary to the Bill of Rights?

Actually Nick, on that Taxation issue, can that be applied to the costs added to a loan for legal costs applied by the Claimants solicitor? I have an actuarial Summary provided by my lender on this s.18 multiple agreement issue I had for the 2 day hearing and they have recorded over £12,000 for their costs onto my loan. Now that seems totally absurd. Can I apply this Taxation test on those too?

In your answer to your ultimate paragraph once again I am NOT a solicitor and neither do I pose as one. I can ONLY state what I have read and what I have understood and what I have learnt from research.

 

HENCE in answer to your question: The main priorty you have to check is DID YOU GET A RULE 15 Customer care letter????

 

For the Rule 15 letter says:

Rule 15 (Costs information and client care)

 

Solicitors shall:

 

(a) give information about costs and other matters, and

(b) operate a complaints handling procedure,

 

in accordance with a Solicitors' Costs Information and Client Care Code made from time to time by the Council of the Law Society with the concurrence of the Master of the Rolls, but subject to the notes.

 

Notes

 

(i)A serious breach of the code, or persistent breaches of a material nature, will be a breach of the rule, and may also be evidence of inadequate professional services under section 37A of the Solicitors Act 1974.

(ii) Material breaches of the code which are not serious or persistent will not be a breach of the rule, but may be evidence of inadequate professional services under section 37A.

(iii)The powers of the Law Society on a finding of inadequate professional services include:

(iv)(a) disallowing all or part of the solicitor's costs; and

(v)(b) directing the solicitor to pay compensation to the client up to a limit of £15,000.

(vi)Non-material breaches of the code will not be a breach of the rule, and will not be evidence of inadequate professional services under section 37A.

 

This document applies to conduct issues occurring

before 1 July 2007. For rules governing conduct after

1 July 2007, see www.rules.sra.org.uk.

 

01/03/2007 Page 31 of 42 © The Law Society 2007

 

(v) Registered foreign lawyers practising in partnership with solicitors of the Supreme Court or registered European lawyers, or as members of recognised bodies which are limited liability partnerships, or as directors of recognised bodies which are companies, although subject to Rule 15 as a matter of professional conduct, are not subject to section 37A. However, such solicitors, registered European lawyers and recognised bodies are subject to section 37A for professional services provided by the firm.

 

So...... any of the above breached????????? IF yes then you may have a nice future. :) AND NO! It is NOT the Solicitors complaints service you need. Contact the SRA first and ask for assistance. The Solicitors complaints service does not work on case law but like the OFT and the FOS works on the "law of probability".

 

As to taxation.......... the best I can tell you is that you have 1 year to apply to the court for taxation otherwise you lose the right.

 

Now the problem is you refer to "loan" and "my lender". Dont know what you are on about hence dont think I can reply BUT............. here is some case laws for you REMEMBER.......... once you "cheese off" (to be polite) that solicitor by quoting law to him and telling him/her "can go and jump for their money" then start looking for a new legal representative. :D

 

COMMON LAW DUTIES 1. Duty in contract 9.1 When a solicitor provides services to a client, he will do so pursuant to a contract. Hence the starting point for considering the scope of a solicitor’s duty must be the contractual retainer. As Oliver J observed in the case of Midland Bank Trust Co Ltd v. Hett, Stubbs & Kemp 1 : “The extent of [a solicitor’s] duties depends upon the terms and limits of that retainer and any duty of care to be implied must be related to what he is instructed to do.”

 

Reeves -v- Thrings & Long [1996] PNLR 265 ß------

1996

CA

Sir Thomas Bingham MR, Simon Brown LJ, Hobhouse LJ Legal Professions, Professional Negligence

 

Solicitors were sued for failing to advise their client fully as to the wisdom of the transaction he was entering into. The client was an experienced businessman. Held: (Hobhouse LJ) "Once Mr Reeves was told what the legal position was, he required no further advice from Mr Sheppard in order to evaluate its implications and commercial significance. Mr Reeves was an experienced businessman and under no disability." (Simon Brown LJ) "I cannot accept that Mr Sheppard was under any further duty to his client, any duty to advise him upon the commercial implications or importance of the access provision or to warn him against the risks that it might pose for the future development, operation or sale of the hotel. These matters are well within the client's competence to appreciate and evaluate for himself, business considerations rather than legal ones." (Sir Thomas Bingham MR, dissenting) "It will always be relevant to consider what the solicitor is asked to do, the nature of the transaction and the standing and experience of the client. Thus on the facts here Mr Sheppard was not retained to advise on the wisdom of offering the price Mr Reeves had informally agreed to pay … But it was in my view Mr Sheppard's duty to draw Mr Reeves' attention to any pitfall, particularly any hidden pitfall, the contract might contain."

 

Boston & Co -v- Roberts

17 Mar 1995

CA

Legal Professions Solicitors were wrong to accept a bare guarantee on costs where there was a clear doubt as to ability to pay.

 

As to other possible case laws!!!!!!! Stop watching the telly and expecting me to do the research for you. Gave you the link so start doing some work. :D:D At the end of the day......... you know what your case is and I can only "try to understand".

 

Ohhhh and "smilies" are to show you that "no hard feeling" but I do not believe people should be "parrots" and "monkeys". People should learn to research, read, analyse, if need be question and learn.

Edited January 6, 2010 by nick20045
marked some in bold

[nick20045]

Dupe post

[Sunshine54]

good morning

this is a fascinating read so thanks very much.

ps why aren't you asleep Nick?

[nick20045]

good morning And good morning to you as well.

this is a fascinating read so thanks very much.

ps why aren't you asleep Nick?

Why am I not asleep?

 

OK............ let me see........ are you a "shrink"? IF YES can I start with how I was not breast fed when I was a baby and...............

 

Oh heck! I will be honest. I am single, I did not get laid last night and....... :D:D:D

 

Sorry for "mad sense of humour". Have a nice day.

[Sunshine54]

haha don't apologise for the humour- it's a good thing

 

I'm just reading back over the thread so that I can make more sense of what's being discussed

 

btw It does seem that the excellent discussion relating to Multiple Agreements would be well placed on the Multiple Agreement thread.

regards

S

[Sunshine54]

moved to a more appropriate thread

S

Edited January 6, 2010 by Sunshine54

[Peterbard]

hi

i aws asked to draft a response to the judgemtn this is a draft of the first section i would any critique and suggextions

 

One might ask what exactly is the function of the sanctions imposed by section 78 subsection(6).

If a creditor does not comply with the request then he cannot enforce, but enforcement is defined as taking place only when the matter is taken to the court.

If a creditor chose for what ever reason not to comply the what penalty is incurred?

“Whilst in breach the creditor may not enforce the agreement”, but he does not need to enforce all the actions he wishes to take against the debtor are still permitted. The debtor can do nothing but continue comply with the agreement if he does not the creditor is quite within his rights to report any default to a DCA ,charge interest and default.

This point is referred to in section 132 of the judgement where the applicant says that this represents an unfair relationship under section 140.

The reply to this assertion is that the applicant takes a gamble on whether the creditor has the agreement and it is not the fault of the creditor that parliament decreed that the breach can be remedied by its production .

For what it is worth I disagree. In my opinion the act was drafted in a way that the creditor was sanctioned for the breach, it was the re- interpretation of the term “enforcement” in McGuffic and re iterated in this judgment that has altered the intent of the section.

To my mind “enforcement” in this context was intended to refer to the use the agreement to enforce any action taken against the debtor so the breach should forestall any such action.

In section 65 the sanction for breach of section 61 says can be enforced only by order of the court surely if this was shat was meant in 78 the wording would have been similar.

The only action open to the creditor is to stop payment and wait for the section 89 default notice in order to receive the information he requested.

This is surely not the situation that was envisaged when the act was created.

I notice it is stated that a credit card terms and conditions can be reproduced from records

I would take issue with this I have a number of credit cards myself and like to change them when one becomes available with a special transfer deal or lower APR. these deals are often short lived and may only available for a matter of weeks I do not believe that a generic agreement from the era of when a card is executed would reflect these transitory agreements. The APR and there fore the interest are of course prescribed terms and should be available on a copy of an executed agreement.

These short term introductory rates are usually on the original agreement and do not qualify for an additional copy under reg 7.This is further complicated by the seemingly contradictory statement in section 119 where the judge says that the terms do not necessarily have to come from the actual document that was executed the reason is here he is talking general terms ( I suspect he infers to default charges) not prescribed terms which must, if not copied from the original must be identical to it

It may be said and I think it is in the judgement that these considerations are taken into account by the fact that a copy was provided under section 62etc. But then what purpose section 78?

I read that it is considered unfair to expect the creditor to keep an actual copy of the agreement and what about the consequences if the copy is destroyed by fire and the creditor cannot produce and therefore cannot enforce.

To my mind the business of creditors is to lend money .Agreements are there stock in trade shouldn’t we expect that they can at least keep them safe, every other business has goods or commodities which have to be protected, why should creditors be any different.

I agree that the function of the section 78 request is not to provide proof positive of correct execution, but to say that it cannot provide proof positive . If for example you request a copy of a fixed sum agreement and on examination you find that the TCC has been miscalculated(this has happened many times) thus making the total credit incorrect and the agreement unenforceable under section 127(3) would that not be acceptable as proof positive. After all the judgement says in an earlier paragraph that the copy must be an exact copy of all terms and conditions and not just an approximation so incorrect copy incorrect agreement

I believe that the section 18 argument in regards to PPI on regulated agreements was touched on in section 59 of the judgement although it was not pursued with any vigour reading between the lines and the judge did not press for further information in my humble opinion just as well..

Red bit not to be included

Best regards

Peter

[Baggio]

Hi caggers,

 

The game is still on, had a very eventful (snow!!) meeting yesterday with our legal team and everything is still in place to challenge banks under sec 77/78/79... but slight tweaks are being made to cater for the pre xmas ruling in manchester.

 

Our barristers remain very positive, the lead chap from chambers in the City was with us yesterday and was in buyonat mood.

 

I will post what i can when i can.

 

I will 100% reiterate WE ARE VERY MUCH STILL IN THE GAME! and the lenders team were slightly annoyed with certain parts of the judgement, which as suggested before.. have left the door wide open.

 

Sorry guys, i am prohibited from stating too much more as of yet.

[seriously fed up]

There has been a view developing on here - which I can lets say understand and have sympathy for - that challenging a lender (ie for the debtor to be the claimant and to allow the banks to defend) puts the onus of proof on the debtor. So for instance, faced with a s78 application which produces nothing at all, Waksman's logic seemed to be (and I paraphrase here), "look because they cant produce it today doesnt mean they wont be able to produce it tomorrow or next week, or some time in the future. Also, s78 isnt about proof, its about giving information, so if they provide the information - even if its "one we made up earlier" - then they have satisfied the request".

It would be quite different if it were the lender bringing the case, because then the onus of proof to prove the debt and that all the requirements of the CCA1974 were fulfilled (prescribed terms etc) were in place would fall on him.

Without giving too much away, how far are the legal team taking that burden of proof problem on board.

Also procedurally, will this be about setting up an appeal, or the appearance before Waksman that he refers to in para 235 - "Following the handing down of this judgment, I will hear Counsel on the form of the various orders that will need to be made, any further directions in relation to the cases with which I have dealt and all other consequential matters."

[Baggio]

There has been a view developing on here - which I can lets say understand and have sympathy for - that challenging a lender (ie for the debtor to be the claimant and to allow the banks to defend) puts the onus of proof on the debtor. So for instance, faced with a s78 application which produces nothing at all, Waksman's logic seemed to be (and I paraphrase here), "look because they cant produce it today doesnt mean they wont be able to produce it tomorrow or next week, or some time in the future. Also, s78 isnt about proof, its about giving information, so if they provide the information - even if its "one we made up earlier" - then they have satisfied the request".

It would be quite different if it were the lender bringing the case, because then the onus of proof to prove the debt and that all the requirements of the CCA1974 were fulfilled (prescribed terms etc) were in place would fall on him.

Without giving too much away, how far are the legal team taking that burden of proof problem on board.

Also procedurally, will this be about setting up an appeal, or the appearance before Waksman that he refers to in para 235 - "Following the handing down of this judgment, I will hear Counsel on the form of the various orders that will need to be made, any further directions in relation to the cases with which I have dealt and all other consequential matters."

 

what i can say.. we will still be issuing the proceedings, as opposed to waiting for the lenders to act.

[seriously fed up]

So will this be a new case or an appeal on Waksman's judgement?

[Baggio]

So will this be a new case or an appeal on Waksman's judgement?

 

no need to appeal it from the position of our guys... as i mentioned.. the judgement does not change a lot for us, as i say a very slight tweak in the claims at our end needs to be made.

 

you must remember this, nothing has changed in terms of the lender still having to provide the original agreement inside a court room.

 

what i am told.. with the claims we are issuing, it is highly likely the lenders will settle out of court, as there is no way they will be able to comply, as somebody mentioned earlier in this thread.. the devil really is in the detail and we are more than well aware that "they" look in regularly and read these boards... for this reason i am prevented from saying too much right now.

 

all will become very public within the next couple of weeks.

[B3rty]

Thanks Baggio....Do you agree that the Reg 7 statement is a good one for is in para 108?

[justify]

what i can say.. we will still be issuing the proceedings, as opposed to waiting for the lenders to act.

 

I am obviously not as well connected as Baggio, but Ive also heard of some bullish reactions to the judgement from the legal fraternity (on the customer side!!) Ive also carefully read it again myself and tried to put myself in the judges position. Its important to read it carefuly. Personally I would have liked him to find in favour of the claimants on all points but that wasnt realistic. I actually think hes done a very good job. (Im sure he'll be pleased!) I would say again that its important to read it carefully. To quote Baggio, there are lots of doors left open for us debtors.

 

J

[Baggio]

Thanks Baggio....Do you agree that the Reg 7 statement is a good one for is in para 108?

 

no idea, i honestly am nothing more than a bit piece in the middle... i cannot elaborate any further in terms of where i fit into the puzzle... but i can assure you of this much... i am in no way legally minded and some of the assertions and work conducted by some of you guys on here leaves me astounded and mighty impressed.

[seriously fed up]

OK Roberto, I'm content with that. I know you will tell us what you can, as and when you can.