Claim Stayed – Due to Unenforceable CCA Test Cases.

[JonCris]

As this judgment is sooooooooooo wrong for so many reasons I doubt the matter will rest there;)

[gyos]

I'm informed that lawyers are reasonably happy with the judgment.

 

Baggio seems to be spot on.

 

The more I read it, the less problematic it looks.

 

Not fantastic, but not the 'victory' for creditors that certain ill informed and badly researched media reports might suggest.

.

[Baggio]

it's going to be just fine for us folks

 

granted the judgement is not perfect, but nonetheless the opportunity is there to grab the banks by the testicles

[ian1969uk]

Just a note to cheer and encourage in light of all this. Just had a letter from the latest DCA goons acting for the Cooperative Bank, stating that their client is willing to waive the full amounts (allegedly) owed on my Northern Rock and Smile Credit Cards.

 

This has been going on for over two and a half years, both agreements they sent me were copies of the signed agreement but both lacked prescribed terms. They have tried every trick in the book and used 6 DCAs, but I stuck to my guns and challenged them to take me to Court.

 

They never did and now I have had this letter.

 

The amount they have waived (their word), apparently due to my 'financial hardship' (although this has never been part of our discussions) was just over £24,000 !!

 

I am keeping that letter like gold dust in case they try it on in the future, as it would be an instant defence. Debt..what debt...you waived it!!

[caro]

Well done Ian. Keep an eye on your credit file though.

[ian1969uk]

The letter confirms that the accounts will be marked as satisfied with the CRAs. That's about the best I can hope for I think.

[gill5blue]

Brilliant news Ian

well done

I bet your wearing a big smile-- I did on my first write off

[Baggio]

Just a note to cheer and encourage in light of all this. Just had a letter from the latest DCA goons acting for the Cooperative Bank, stating that their client is willing to waive the full amounts (allegedly) owed on my Northern Rock and Smile Credit Cards.

 

This has been going on for over two and a half years, both agreements they sent me were copies of the signed agreement but both lacked prescribed terms. They have tried every trick in the book and used 6 DCAs, but I stuck to my guns and challenged them to take me to Court.

 

They never did and now I have had this letter.

 

The amount they have waived (their word), apparently due to my 'financial hardship' (although this has never been part of our discussions) was just over £24,000 !!

 

I am keeping that letter like gold dust in case they try it on in the future, as it would be an instant defence. Debt..what debt...you waived it!!

 

they won't take it off the credit file unless you press them on this issue.

 

get on the case.

[gyos]

Very good news.

 

Was that dated before this ruling? (not that a date on a letter from a DCA means much :rolleyes:)

[ian1969uk]

Dated mid December.

[andrew1]

Just a note to cheer and encourage in light of all this. Just had a letter from the latest DCA goons acting for the Cooperative Bank, stating that their client is willing to waive the full amounts (allegedly) owed on my Northern Rock and Smile Credit Cards.

 

This has been going on for over two and a half years, both agreements they sent me were copies of the signed agreement but both lacked prescribed terms. They have tried every trick in the book and used 6 DCAs, but I stuck to my guns and challenged them to take me to Court.

 

They never did and now I have had this letter.

 

The amount they have waived (their word), apparently due to my 'financial hardship' (although this has never been part of our discussions) was just over £24,000 !!

 

I am keeping that letter like gold dust in case they try it on in the future, as it would be an instant defence. Debt..what debt...you waived it!!

 

 

Very satisfying...well done for holding your ground.

[gyos]

I was wondering what impact there might be on this case.

 

http://www.consumeractiongroup.co.uk/forum/legal-issues/239383-hsbc-cca-going-court.html

 

HSBC have allegedly admitted to CL finance that they don't have a CCA, but they have still issued a claim via Cohens.

 

If the reading of this judgement is correct, then should be game over onece they fail to provide under CPR. But I do wonder whether they will try it on with ref to this judgement.

[angry cat]

The following provides confirmation of an opinion that I was provided with Re: conjectured reconstruction/reconstituted credit agreements:

The consumer credit cancellation notices & copies of documents regulations 1983;

In respect of regulation 7 which states;

 

7(1) Where an agreement has been varied in accordance with section 82(1) of the Act, every copy of the executed agreement given to a debtor, hirer or surety under any provision of the Act other than section 85(1) shall include either -

 

a) an easily legible copy of the latest notice of variation given in accordance with section 82(1) of the Act relating to each discrete term of the agreement which has been varied;

 

or

 

b) an easily legible statement of the terms of the agreement as varied in accordance with section 82(1) of the Act.

 

We are of the opinion that reg 7 refers to a copy of the executed agreement and that sub sections a) or b) are in addition to this and not any alternative to sending the "actual executed agreement".

 

from Carey V HSBC Bank plc [2009] EWHC 3417 (QB) (23 December 2009):

 

"108. Accordingly, I conclude that Reg. 7 requires a copy of the executed agreement in its original form as well as a statement of the terms as they are at the time of the request."

 

"SUMMARY OF FINDINGS:

 

234.

 

(4). If an agreement has been varied by the creditor under a unilateral power of variation, the creditor must still provide a copy of the original agreement, as well as the varied terms."

 

AC

[nmp]

Dear all....I came across this in the BBC website today.... I am currently contacting my creditors asking them to provide me with a copy of the CCA - it seems that this will no longer work??? Any help / advise would be good...

 

 

Banks have won a partial victory against some credit card customers who have been trying to avoid their debts. A judge at the High Court in Manchester has upheld that card companies need only provide a "reconstituted" copy of the original loan agreement.

It confirms that banks can still enforce debts even if the original agreement has been lost or destroyed.

The ruling may affect thousands of potential cases gathered by claims management companies.

"It seems to me to be likely that the number of challenges... will diminish significantly hereafter," said Judge David Waksman.

Banks sometimes have great difficulty in providing an exact copy of an original credit card agreement, such as a photocopied or scanned version, and at least one major bank is thought to have destroyed all its old credit card agreements.

Reconstitution

Under the Consumer Credit Act (CCA), lenders are obliged to supply a copy of their credit card or loan agreement to a borrower, if asked to do so, within 12 days.

 

The absence of a copy of a signed executed agreement is no evidence that such an agreement was not made

 

 

Judge Waksman

 

 

Some claims management companies and their solicitors have been trying to use the law to stop debts being enforced, possibly permanently, if the copy cannot be produced satisfactorily.

This has led to disputes between lenders and customers about what sort of copy is acceptable under the law.

Judge Waksman examined six test cases to decide this.

He said that the purpose of obliging lenders to provide a copy of the loan agreement, when asked, was not to prove that the agreement had been properly struck in the first place, but to provide the borrowers with information about the state of their account.

"The debtor has a legitimate interest in seeing a copy of the agreement he signed, not in the sense of proof of execution but as information," he said.

As such, he ruled that a reconstituted version of the agreement was perfectly acceptable.

The information in it could be drawn from other data held by the bank about their customers, and it could be recreated by drawing on the standard terms and conditions that the bank applied at the time.

Also, it was not necessary for the bank to examine the original signed agreement to do this, or even still to have it.

"A creditor can satisfy its duty... by providing a reconstituted version of the executed agreement which may be from sources other than the actual signed agreement itself," he said.

"The fact that the creditor no longer has the original executed agreement is not therefore, itself a bar to compliance [with the Act]," he added.

'Honest and accurate'

Judge Waksman did point out that the banks could not simply invent the loan agreement retrospectively to comply with the law.

"It must - of necessity - be based upon records held as to the debtor and the agreement he made," the judge said.

"That a creditor needs to take care when providing the copy is highlighted by the fact that it is implicit in its duty that it is an 'honest and accurate' copy," he added.

Judge Waksman rejected some arguments put forward by the banks, and supported some of those put forward of the claims management firms and their clients.

He ruled that:

• a copy of the loan agreement must contain the name and address of the borrower as it was at the time it was signed

• if an agreement has been subsequently varied by the lender, then the lender is obliged to supply a copy of both the original agreement as well as the current one.

Judge Waksman's rulings were welcomed by one of the biggest claims management companies, Cartel Client Review, which was involved in the Manchester hearings.

It said that the clarification of the law would "open the floodgates" to many more cases being put forward in 2010.

"Our experience shows that many banks and credit card companies have failed to instigate systems and procedures that allow them to comply with the requirements of the CCA and it is also clear that many agreements did not comply with the prescribed terms of the CCA, when the agreements were originally drafted," said Andrew Settle of Cartel's solicitors CCLS.

Fishing expeditions

Judge Waksman also ruled that failure to supply a copy did not, of itself, mean there was an unfair relationship between the lender and borrower under the CCA.

But he confirmed that if a lender could not supply a copy of the loan agreement, then this automatically prevented them from using the courts to chase a debt until such time as they could come up with a copy.

The judge went on to criticise some attempts by credit card customers to avoid repaying their debts by challenging their lender to produce a valid copy of their original loan agreement.

"Many claims now made under [the Act] may properly be regarded as unattractive and merely fishing for a case of unenforceability," he warned.

He went on to strike out claims from two individuals, pointing out that they had failed to supply any evidence at all that they had never signed their loan agreements in the first place.

"The absence of a copy of a signed executed agreement is no evidence that such an agreement was not made," ruled Judge Waksman.All

[nick20045]

The following provides confirmation of an opinion that I was provided with Re: conjectured reconstruction/reconstituted credit agreements:

The consumer credit cancellation notices & copies of documents regulations 1983;

In respect of regulation 7 which states;

 

7(1) Where an agreement has been varied in accordance with section 82(1) of the Act, every copy of the executed agreement given to a debtor, hirer or surety under any provision of the Act other than section 85(1) shall include either -

 

a) an easily legible copy of the latest notice of variation given in accordance with section 82(1) of the Act relating to each discrete term of the agreement which has been varied;

 

or

 

b) an easily legible statement of the terms of the agreement as varied in accordance with section 82(1) of the Act.

 

We are of the opinion that reg 7 refers to a copy of the executed agreement and that sub sections a) or b) are in addition to this and not any alternative to sending the "actual executed agreement".

 

from Carey V HSBC Bank plc [2009] EWHC 3417 (QB) (23 December 2009):

 

"108. Accordingly, I conclude that Reg. 7 requires a copy of the executed agreement in its original form as well as a statement of the terms as they are at the time of the request."

 

"SUMMARY OF FINDINGS:

 

234.

 

(4). If an agreement has been varied by the creditor under a unilateral power of variation, the creditor must still provide a copy of the original agreement, as well as the varied terms."

 

AC

Should also read 96 especially the highlighted part:

 

Reliance is placed on paragraph 1.6 of the OFT draft guidance. That says that the purpose of the sections is to give the debtor relevant information about her contract and the current state of the account. Parliament has recognised that documents may be lost and debtors may be unable to ascertain what their rights are. If there is a dispute over what is owed, preventing enforcement (ie because of s78 (6) presumably) until clarification is provided is important protection for the customer. I see that, but this part of the guidance was not looking specifically at the case where the agreement has been varied and in that context, paragraph 2.11 suggests that Reg. 7 requires the original terms as well. Just as importantly, the written submissions of the OFT support more broadly the notion that a copy of the executed agreement in its original form must also be provided.

[the_shadow]

Dear all....I came across this in the BBC website today.... I am currently contacting my creditors asking them to provide me with a copy of the CCA - it seems that this will no longer work??? Any help / advise would be good...

 

BBC spiel, I should read the previous 50 odd comments all discussing it tbh.

 

S.

[ruinedbynatwest]

Re HHJ Waksman,

Yet again we see the High Court hearing and deciding "improperly brought" actions - relying , erroneously on its Common Law Jurisdiction as being superior to the Statute (CCA), Judge Waksman (er, unlawfully) overrules Section 141 CCA (Jurisdiction) - where we see Parliament going out of its way to expressly grant SOLE Jurisdiction to the County Court for ALL Consumer Credit Act matters - the reason for this particular departure from normal process (re Jurisdiction) was that parliament was especially motivated to provide that the County Court was the designated "Court of Competence" - because of the mischief that emanated from within the Common Law Courts and which mischief is still very much alive and kicking in decisions such as this which plainly favours and condones non-CCA-compliant standards of basic record keeping !!! How ridiculous to rule (as Auld LJ did in eg Story) that a bank may not keep proper records that are demanded by Statute IF it wants to get its money back !!! (The CCA simply requires that true copies of "properly executed" agreements be kept - as a term of its licence - and that a licencee will be unable to enforce without it - what the hell is the problem with that?)

 

MORE IMPORTANTLY, why is the Common Law openly defying Parliament ?

AND, WHY does Parliament stand idly by ??

 

Mr Bennion, drafter of the 1974 Consumer Credit Act draws attention to the point in a customarily objective article which he posted on December 16 :-

http://www.francisbennion.com/pdfs/fb/2009/2009-043-cca-aborted-foreword.pdf

 

The Common Law is caught within a "cultural trance" (as eg the flat earth society) where it defies Parliamentary authority to favour the credit industry at its peril. As Mr Bennion points out in his article,

 

‗"In England and Wales the county court shall have jurisdiction to hear and determine any action by the creditor or owner to enforce a regulated agreement or any security relating to it [and] any action to enforce any linked transaction against the debtor or hirer or his relative, and such an action shall not be brought in any other court.‘ "

 

Section 141(2) clearly states that HHJ Waksman had no jurisdiction to override the CCA - 141(2) deems this particular action (and many others including Story) as "improperly brought" where, recognising the presence of S 8 (Regulated agreements) within these claims, he did not then transfer the matter to the County Court.

 

The County Court would be bound to uphold the Statute, you see - which would require production of a copy of the original properly executed agreement that is to be signed before the credit token (here credit card) is issued. Read Mr Bennion's article - it rerers to the onus of proof in such cases.

 

Where is Parliament ?? It must address this nonsense.

 

John Story

 

www.ruinedbynatwest.com

Edited January 3, 2010 by ruinedbynatwest
typos

[nick20045]

 

Where is Parliament ?? It must address this nonsense.

 

John Story

 

www.ruinedbynatwest.com

Most probably on holiday same as if you had gone into your local County Court last week and put in an N244 you would have been told that the first Judge available will be tomorrow the 4th Jan.

 

Do not forget the Judgement only came out on the 23rd.

 

And, most probably, IF Parlament (I take it you mean the House of Lords) was to interviene would it not have to first go to the Court of Appeal?

 

Somebody correct me if I am wrong.

[ruinedbynatwest]

IF Parlament (I take it you mean the House of Lords) was to interviene would it not have to first go to the Court of Appeal?[/i]

Somebody correct me if I am wrong.

-------------------

Hi Nick !

Sorry If I bang on here - I'm not a sore loser (re Story) - I'm the determined consumer that Lord Crowther described in his 1971 report. Unbeknown to us, our friendly and informal Natwest manager issued a cheque to redeem our joint £24k mortgage to the Yorkshire B.S. without our knowledge in order to sucessfully obtain the deeds to our home whilst we slept soundly dreaming of the promises he had made that were to underpin our son's future !!! AND, the Court suppressed my submissions on the point. The cheque was not to be found when the Somerset and Avon Fraud Squad asked to see it ! Those are the sort of behavious that we're up against here where (the undoubted but very real minority of) unscrupulous creditors may er "RECREATE" documents to, er, assist the Courts.

 

Come off it ! Parliament saw straight through that one and it was very clear in its instructions to Mr Bennion to address the issue !

 

 

I have studied (and been guided) as to exactly what is going on here and it amounts to a national scandal of unprecedented proportions and severity - the banks are being protected by the common law courts which are taking political decisions that are banned under our constitution - whereas the county court, bound to properly apply the letter of the CCA as instructed by a Parliament that was driven to legislate against a widescale abuse, would have to rule against the creditor in these production cases (and many others besides) - to hopefully, er REGULATE the behaviours of an industry not noted for its tenderness !

 

Against this backdrop of Parliament struggling to create a level playing field - the Common Law is sabotaging the issue by eg turning the burden of proof issue to the creditors' benefit under common law doctrines - especially, Caveat Emptor ("Buyer Beware") - where the CCA turned this around to "Lender Beware" - to address the very problem we see today - where the banks and the common law practitioners rely on inequality of bargaining power to maintain their own earning power within a society that feeds the common law food chain.

 

Parliament was determined to address the mischief of inequality of bargaining power - and we see the common law courts actively striving to restore the inequality in favour of the credit industry which prefers to not document (potentially troublesome [for them]) terms - where the prescribed terms that cause so much trouble today were intended as just the start of the route to transparency in consumer credit agreements - termed "truth in lending" by the OFT at the time - where the OFT was clear to me in the many discussions we held that it wanted to see ALL THE TERMS that applied to a regulated agreement documented.

 

That's what the banks and the Judges are afraid of - the banker/customer relationship becomes recognised in law as a statutory relationship if the CCA is properly applied in these cases - it is taken away from the Common Law Courts where the inequality detested by Parliament, thrives to the sole benefit of the common law practitioners for whom the costs issue is so very profitable.

 

 

With respect, you assume that the Courts are correct to apply normal procedure - where Parliament went out of its way to keep these matters away from the common law !!

 

Says a lot, really, when you think of it.

 

Problem is, the Commons doesn't have much to shout about, when it comes to the Judges' standards, now, does it ?

 

 

John Story

 

www.ruinedbynatwest.com

Edited January 3, 2010 by ruinedbynatwest
typos

[bach]

Good mornign to all,

Have been reading all your post over night as I have been stayed by the Courts for the 6th time pending the outcome of the above cases.

 

A & L have been trying since October 2006 for an unsecured loan of £15,000, on my last visit to Court in July 09 the Judge yet again asked A&L to produce the original Credit Agreement, and they have continually ignored his requests. It looks as though I will have to re consider my case in light of HHJudge Waksman ruling.

 

I have had so much support right from the beginning from CAGs Slick,Priority One, and many others, (you know who you are) so it looks like Im going to have to call on you all again for advice in the very near future.

In the mean time I will have to give my full attention to all comments on this thread, you are all so good at putting your case forward. I have come so far, and would really not want to give in now, as due to go back to Court in April 2010

 

Thanks to everyone for all their support throughout the last 3 yrs, my

life would be nothing without you guys.

 

Happy Nerw Year

 

Lynn

[gyos]

A & L have been trying since October 2006 for an unsecured loan of £15,000, on my last visit to Court in July 09 the Judge yet again asked A&L to produce the original Credit Agreement, and they have continually ignored his requests. It looks as though I will have to re consider my case in light of HHJudge Waksman ruling.

 

Why? :-?

 

This judgement does not remove any duty by a creditor to supply an original signed copy of a credit agreement to support their claim against you. Especially when it is required under CPR and directions from a judge.

 

Nor does it effect s127(3) when a claim is made against you.

 

.

.

[nick20045]

 

With respect, you assume that the Courts are correct to apply normal procedure - where Parliament went out of its way to keep these matters away from the common law !!

 

With all due respect I do not assume and really that means "do not assume about anything whatsoever". I try and look, read, learn and mostly look for logic in things. Now as to your comment regarding "the Courts are correct to apply normal procedure" once again, as far as I know (and I DID say that if I am wrong somebody to correct me), the Court made a judgement (well the Judge did). Now it has to go to the High Court of Appeal (which I read earlier on, on this same thread that it is being appealed against same as the McGuffick judgement is being appealed against). THEN pending the outcome of the appeal is when IF they decide to enter into (let us call it.........) the "affray" will the House of Lords take over. (I would expect them as well to read the Judgement, analyse it, check out relevant case laws to refer to, read what the Court of Appeal said and analyse that as well............ so I would expect it to take some time).

 

Says a lot, really, when you think of it. Sorry but not really. Personally, (my personal opinion) although I have read by some posters that "the legal people are happy with it" I am not and I await to see "what is it that the Barristers think is so brilliant". Also (and once again my opinion) having read the cases put forward by the Claimants I think they were the worst cases to use to get a test case. e.g. being Yaris............ "errm your honour, I do not remember if I signed an agreement or not". Now come on! You did spend the money and taking the "devils advocate side" the only people I know who lend you money without a contract are loan sharks.

 

YES that you want to check what you had originally entered into you should be able to see a copy of the executed agreement. YES because your attention has been brought to the fact that some agreements were illegal you want to check and hence want a copy of the executed agreement. I agree with that.

 

This (that you spent the money and hence did borrow it, as far as I know) is now covered under the 2006 act.

Problem is, the Commons doesn't have much to shout about, when it comes to the Judges' standards, now, does it ? Answered in first para above.

 

 

John Story

 

www.ruinedbynatwest.com

p.s. Do not forget, the judgement is being analysed. Leave people (especially the ones with the legal knowledge) to disect it. Then can take it from there.

Edited January 3, 2010 by nick20045

[ruinedbynatwest]

There is some very clever footwork going on within these threads.

Section 173 CCA (1974) forbids the Courts from "contracting out" of the Act.

Everything I say on these threads is the result of 20 years of consultation that started with my father who was the leading forensic detective on the Kray squad - he gave evidence in their trial and he was "approached" socially, whilst he was giving that evidence in court, by counsel who made enquiries as to the nature of that evidence without proper procedure.

 

Whilst prosecuting Natwest V Story & Pallister , I compiled a comprehensive file from my discussions with the Bank of England and the OFT - the OFT was on hand to give evidence at Bristol (High) Court - the Judge HHJ Jack also received an admission from Andrew Smith QC (for Natwest) that the CCA applied to this case - that admission never saw the light of day. I openly ask Justice Andrew Smith (as he now is) to confirm his admission. It is important - at least £300 billions hangs on it, and yet the Courts refuse to reopen Story and our applications to reopen are met with oppression from the Courts.

 

Surely, you will agree that the proper place for these matters is in open court ?

That's all we ask.

 

Where my words are twisted by parties on these threads, You must please take the objective route and ask yourselves why Parliament expressly repealed the common law into consumer credit and to reinforce the point why did it forbid the Common Law Courts from hearing these cases under S 141 ? What was behind Parliament's anti - common law provisions, if not as I relay - that the common law was very much uncovered by Lord Crowther's committee as forming a major part of the problem ?

 

It is no great point of logic to this ex computer logician as to why the barristers are not protesting these determinative cases under Sections 141 and 173. They are common law practitioners within a hierarchical pyramid of authority that exercises a top-down functionality.

 

And again, ask yourselves WHY Parliament took the step to protect debtors in the first place - by creating sanctions - some criminal - to deter creditors from policies that included not documenting terms.

 

 

Please assist me here, and explain WHY counsel does not stand up to its senior common law Judges, please ???

I suggest that it's not a good career move, is it ?

But, what other reasons may there possibly be for a general inclination among common law practitioners to stand idly by whilst their seniors suppress the Statute ??

 

John Story

 

www.ruinedbynatwest.com

Edited January 3, 2010 by ruinedbynatwest
typos - Mr Smith is a "QC" - NOT a "WC" ! Sorry !!

[seriously fed up]

John, you ask why it is that counsel dont stand up to senior judges acting in a common law capacity, and answer your own question - not a good career move. 1000000000000000% spot on.

My reaction to your own post and those that it has brought out, is one of considerable sympathy and outrage (could it be otherwise), but also a sense of "why am I not surprised?"

To those who have not read it, I would recommend JAG Griffith's excellent book "The Politics of the Judiciary". This was first published about 35 years ago, but the most recent edition is just over 10 years old now (see The Politics of the Judiciary: Amazon.co.uk: J.A.G. Griffith: Books). The publisher's blurb, on Amazon reads "This classic account of how the judiciary cannot act neutrally, but must act politically, now in its fifth edition John Griffith's controversial book has been fully revised and updated to consider the latest developments in relations between politicians and the judiciary: Michael Howard's conflict with the judges, miscarriages of justice, the Criminal Justice Act, the increased use of Judicial Review, the effects of anti-trade union legislation of the 1980s, and so on. 'An instant classic! it is the achievement of Professor Griffith's book to life the debate to an altogether better level! he has, in effect, thrown down the gauntlet to any believer in the neutrality of the judiciary, or in its independence from government.' Guardian 'Present in detail, cogently and without hysteria, a controversial view.' The Times 'A stimulating and provocative study.'

Now unless Griffith has toned down his argument from the first edition (which is the one I am most familiar with), I don't think that this quite captures it. The quote seems to suggest that there is something inevitable about the prejudices of our judiciary, but he certainly does not regard it as inevitable. He, for instance rehearses arguments that the judiciary should not reflect such a a narrow sector of society - public school, then Oxbridge, then the law. He also suggests that judicial appointments might be reviewed should it appear necessary (once appointed we are stuck with them until, I think, they are 70).

But let me give you one example from Industrial Relations to illustrate what we are up against. This is the case of Rookes v Barnard - heard in 1964. The way the law on strikes works is that unions are given an immunity from a common law action alleging inducing breach of contract of employment (a strike will always induce breach of contract of employment) in furtherance or contemplation of a trade dispute. A trade dispute had a fairly wide definition including things like wages, discipline, hours, but also who an employee would have to work with. The dispute involved a BOAC (British Overseas Airways Corp - now part of BA) technician called Douglas Rookes who had an up and down relationship with his union, the AEU (engineers union as it was then). Mostly the relationship was down and Rookes would resign from the union putting his employment at risk as BOAC, as many engineering companies did at that time, operated a closed shop. During these times when he was not a union member, various strategies would be used to keep the lid on things - persuading the union to turn a blind eye for a while, putting pressure on Rookes to rejoin, at one time BOAC was even said to be paying his union sub. But in 1964 it reached a crisis and Rookes made it clear that this resignation was final and he would not rejoin. To defend the closed shop, the senior union official (Barnard) told management that if Rookes was not dismissed he and his fellow union members had gone on strike. Supported by the "Freedom Association", Rookes went to the High Court to secure an order that this would be unlawful. Now, we need to be clear here that had the engineers at BOAC come out on strike to secure Rookes' dismissal - irrespective of what one might think about it - this would have been protected by the then law on industrial disputes. It would have been a protected industrial dispute within the definition that applied at that time. But the order was made by the court. Why? Because while taking strike action was protected, THREATENING to take such action was not. In other words, the act threatened - going on strike ("we are on strike till Rookes is dismissed) would have been protected - the threat ("if you dont dismiss him we will go on strike) was not.

That is what we are up against - a judiciary that will find ways through legislation that they dont like. And if we are looking for Parliament to do anthing much about it - especially a Parliament that might well have a Conservative Party majority in the second half of this year - then history suggests that we are backing the wrong horse.

Edited January 3, 2010 by seriously fed up

[nick20045]

But, what other reasons may there possibly be for a general inclination among common law practitioners to stand idly by whilst their seniors suppress the Statute ??

 

John Story

 

www.ruinedbynatwest.com

I have had a quick read of the judgement. Just to make it clear from the outset, I am not going to enter either into litigation about it, discussion about it or any of the such.

 

One thing that caught my eye was the fact that your partner (friend/relative as the case may be) it seems the Court accepted that she did not really know anything about the borrowing. In short, you were the "main dealer" with the bank and it might even be............. she never was involved in any of the discussions or........... available at any meetings with the bank (whereby, what she learnt it is kind of "learnt from what you told her")

 

I suggest you go to http://swarb.co.uk/liscindex.php and have a good read of Banking, Tort, Negligence and Professional negligence. I am sure I read on there a few cases where............. if the wife (or be it partner) was not involved in the "information about the borrowing but she believed what she was told (kind of second hand from a third party (this can be you)" then you became "an agent of the bank" and she, personally, is not liable for the debt. (Or something similar but close to that effect).

 

You might find some information that may give you some new light.

 

Note: As I said, I found quite a few like that so dont just go for the first one. Then make a note of the case law and try and research that case.

 

p.s. By the way, you are on 1999 about half way down the page

Edited January 3, 2010 by nick20045
Added p.s.