Claim Stayed – Due to Unenforceable CCA Test Cases.

[andrew1]

Thanks Nick, John & SFU..the interesting thing about all of this is the devil in the detail, which is exactly the problem with interpreting the sections of the Act which make each agreement unique. There are distinctions for example, the reference made to mortgages. Mortgages and First Mortgages as referred to in Heath would be exempt under the CCA as they are for the purchase of Land (s.16 CCA).

 

On a different case I am pursuing, a 1st mortgage taken in 1989 for £180k had on the same day another further advance of £10k for home improvements just as you describe Nick which had a separate account number and loan detail applied. Now that was just dumped into the main mortgage, but should have been a CCA regulated loan in truth as it ran side by side with the main mortgage payments although documented separately. I've asked why it wasn't CCA regulated and been met with a wall of silence other than to tell me it was Statute barred ( wasn't as I only just found out about the regulated bit recently).

 

My loan with similarities to Heath is one which is a 2nd Charge loan and the Circuit Judge/Recorder (having been referred from the County court) found my agreement to be a 3 part multiple agreement and in his eyes completely unenforceable but for the Heath ruling. Why? Well, we had 3 items which were all under 25k, arrears to 1st Mtg, a second charge GE loan which the new finance company insisted we paid off before a new loan was given as they wanted the 2nd charge, not a third charge (Which is where John Story's issue over s.82/s.8 and s.11 comes in - once regulated always regulated as the GE loan was regulated) and finally the cash balance, again under 25k which came to us. There was also broker fees, Title Insurance Fee and admin fees. Combined the restricted Use amounts would exceed the 25k and potentially could be asked for by the finance company, but if what JS says about s.82 applied to the regulated element of refinancing then that would be another spanner in the works. I didn't know about that at the time of the hearing though.

 

Mrs Heath also had her monies distributed via her solicitor and Southern Pacific paid her solicitor one sum. Therefore I believe it was deemed her solicitors acted as her agents whereas mine was paid directly by the finance company to the various parties, I only received the residue once all the deductions and payments had been made. My claim was very much like this post by Elizabeth1 on the multiple agreement thread http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/171037-multiple-agreements-falling-within-4.html#post1853799

 

The thing about these so called test cases is very much a fact of fitting each case to your own. My appeal is all about finding the distinct differences between mine and Heaths...and hoping I get a Judge who can be convinced of those differences. I'm still liaising with my barrister on the best way to tackle this, we know we are right, but Heath has been to appeal twice and lost. That's where the gamble comes in.

[angry cat]

Hi AC hope you enjoyed break . 3 days off from dca's at least . Did we make the numbers on the CRA petition as i was only in the 350's when i signed a few days beforer the deadline ?

 

Sadly not ES!

The final tally was 468;

pity, because all that was needed was another 32 signatures and the petition couldn have been taken to Downing Street.

 

Even though I did not personally create the petition, I was surpised about the lack of people signing it.

 

The inaccuracy of the data processed by the credit reference agencies, is constantly a cause of concern not just on here but also in the press.

I guess, some people are just apathetic re: this issue!?

 

Please see the following:

News

MPs call for probe into credit searches - 22/12/2009

 

 

The Treasury Committee has called on the Office of Fair Trading and Information Commissioner to assess whether credit application searches by consumers should appear on credit files.

 

The cross-party committee has called on both regulators to launch assessments amid fears that when shopping around for personal loans and credit cards, consumers build up application searches on their credit reference files and in turn, make it harder for themselves to obtain credit.

 

In a report published today, entitled Credit Searches, the committee calls on the OFT to investigate the complex trade offs between the need to prevent irresponsible lending and the need to ensure consumers can search freely for unsecured credit without being penalised.

 

John McFall, chairman of the committee, said: "While it is right to protect consumers from potentially reckless lending; equally, they shouldn’t be penalised for shopping around for loans."

 

The report has been made as part of an inquiry into the impact of credit searches on credit files and unleashes several obligations on the OFT and Information Commissioner’s Office (ICO).

 

The inquiry will also be looking at the quality and accuracy of data held by credit reference agencies (CRAs). The committee has recommended that the Information Commissioner consider seeking assurances that data quality at the CRAs conforms with the Data Protection Act. The MPs raised concerns that credit applications, which are rejected because of incorrect data, may remain on file and affect future credit scoring.

 

The Information Commissioner has also been asked to consider whether it is fair for credit reference files to contain details of application searches made while credit reference files were "demonstrably incorrect."

 

McFall added that people should be able to afford to access their credit files and that correcting inaccurate data should be simple and easy.

 

He said: "There may be a case for free access, and we have asked the ICO and OFT to look at this."

 

The OFT has also been told to look at the information presented in credit files, and ensure that consumers can understand the data included in them. The regulator has also been asked to investigate the impact of multiple applications on the availability and price of credit to customers, as many do not end up with the interest rate that was originally advertised.

 

The committee said it has not received unequivocal evidence that application search data is "critical" for lenders, who can assess more than 400 indicators of a consumer’s credit worthiness. But neither did the committee receive "overwhelming" evidence that it is a major source of direct consumer detriment."

 

AC

[nick20045]

Thanks Nick, John & SFU..the interesting thing about all of this is the devil in the detail, which is exactly the problem with interpreting the sections of the Act which make each agreement unique. There are distinctions for example, the reference made to mortgages. Mortgages and First Mortgages as referred to in Heath would be exempt under the CCA as they are for the purchase of Land (s.16 CCA).

 

First of all no problem. But you have to remember that I am not a solicitor and neither do I claim to know information like a solicitor. BUT most things in life are based on logic so maybe something might come out that may help.

 

Now in respect of the above, I would kind of disagree with whether Mortgages are for the purchase of land. Many a mortgage has been remortaged to a higher value and the money used to go on....... say a cruise. BUT the MAIN thing is that you are securing that loan on land/property. So let us look at Heaths case......... (the way I would interpret it logically....... might be wrong but if I am then let me know how there is a disagreement)

 

Right, you put in for a mortgage (1st one) to buy a property for Mr/s X. Let us say that the mortgage is say £100,000. You get the mortgage. Effectively, you do not own the property and although your name will be on the title of deeds, so will the banks title be registered "as having first shot at the cake should the property have to be sold (for whatever reason).

 

Hence you are effectively residing in the property rent free (or is it considering the amount of interest you are paying!!!!!) but the bank owns the first rights to the property. In time, your share of the equity will increase and the banks share will decrease.

 

So you go to remortage (as Heath did) whereby she had to redeem the first mortage to get the second mortgage. Basically as if "the fixed term had expired and have now found a better lender". (Let us forget for the time the redemption fees she would have had to pay).

 

So considering that you do NOT actually own the property (due to the interest in the property from the bank) then you are "effectively" buying the property (equity) share that the bank holds (kind of look at it like the bank is Mr/s Y).

 

So the second mortage sends in the surveyor. Values the place. Now let us say that from the original £100,000 mortage you still owe say £70,000 to the bank. The surveyor values the property at say £140,000 (trying to work in round figures here). Hence, as you owe £70,000 to the bank then it means you have 50% equity and the bank holds 50% equity.

 

The new mortgage company will deem it that there are two parties who have interest in the property. Irrespective of whether you borrow simply £70,000 (say at a better rate) or whether you borrow £120,000 the mortgage company is interested THAT (considering their surveyors valuation) there is sufficient equity in the property then you can borrow whatever you want. This being that there are two parties who have equity at the moment (before the second mortgage bank makes the money transfer) on the property. Technically speaking, the bank is not bothered as to whether you pay off only the £70,000 (they WOULD insist that the first to make a claim to the money lent is the first mortgagee so that their title is removed and they can enter their new title) or whether you pay off the first mortgagee and you go on a cruise or spend the money wining dining and entertaining women (just to put some humour). You BORROWED on the value of the property as IF it was your first mortgage.

 

Hence why I would deem that in the Heath case it was bound to fail. The condition that you have is "to remove the title of the previous owner OR who had an interest in the property AND that they can have title on the property as guarantee".

On a different case I am pursuing, a 1st mortgage taken in 1989 for £180k had on the same day another further advance of £10k for home improvements just as you describe Nick which had a separate account number and loan detail applied.

 

That I would take as two agreements. IF the 10k had been applied for in the mortgage application then YES one agreement (as in Heath) but as there were two different account numbers then it is two agreements.

 

Now that was just dumped into the main mortgage

Was it dumped into the main mortgage after a remortgage? If it was then see above. IF NOT then you should ask for evidence to show you agree to this. A bank cannot just take two accounts and merge them into one. YES if for example you have a savings account and a current account, you have money in the savings but overdrawn in the current they can transfer money from one to the other (but UNLESS the account is in dispute they will most probably prefer to send you default letters for each day you stay in default (snowball effect). BUT to merge two different accounts I do not think they can do it without your authority.

, but should have been a CCA regulated loan in truth as it ran side by side with the main mortgage payments although documented separately. I've asked why it wasn't CCA regulated and been met with a wall of silence other than to tell me it was Statute barred ( wasn't as I only just found out about the regulated bit recently).

 

My loan with similarities to Heath is one which is a 2nd Charge loan and the Circuit Judge/Recorder (having been referred from the County court) found my agreement to be a 3 part multiple agreement and in his eyes completely unenforceable but for the Heath ruling. I would argue that the Heath hearing has nothing to do compared to your case. Heath remortaged, borrowed money to pay off her first mortgage and also the penalties and had money left to do as she deems fit with it. BUT the mortgage (with the second mortgagee) was based on the value of her property and NOT what she does with the money.

 

Why? Well, we had 3 items which were all under 25k, (splitting them to make it easier to understand)

 

a: arrears to 1st Mtg,

b: a second charge GE loan which the new finance company insisted we paid off before a new loan was given as they wanted the 2nd charge, not a third charge

c: and finally the cash balance, again under 25k which came to us.

Bit confusing in how you say it. Would I be right in understanding that you this is what happened?

a: arrears to 1st mortgagee (let us say £10,000 as an example)

b: a second charge GE loan

c: the new loan which the finance company wanted you to "remove" (b) out of the equation first after which and HAVING paid off (b) you would finish with under 25K cash in hand?

 

How can it be like Heaths? Well you say in (a) arrears to 1st mortgage. BUT (being the devils advocate) when you count the arrears to what is also owed in the 1st mortgage does it come to over £25,000? My interpretation is that if you have arrears they do not become a seperate account from the original mortgage. i.e. IF you have say still £40,000 to pay on the 1st mortgage and you have say £5,000 arrears it is still a £40,000 that you owe the 1st mortgagee. The ONLY difference is that instead of having to pay say £300 a month you should be paying say £400 a month to bring the arrears down.

 

Then we take (b) and ©. IF I understand it correctly the "new loan" from © would have removed the debt owed to (b) plus left you with some cash in your hands. IF debt owed to (b) was not removed then © would not make the loan available. That becomes also like the Heath case. (See interpretation above). Simply because (b) is now "out of the equation". Loan from © has now "tied" the loan that was owed to (b) plus gave you cash left over. Effectively, IF you had not borrowed from © the amount owed to (b) but only borrowed the money that you have in your hand then they would have been seperate agreements.

 

I will give you an example. This was on the telly not so long ago.

 

A [EDIT] goes into a hotel and takes up board. He pays by cheque say a total of £100. [EDIT] leaves and cheque bounces. It is not a criminal offence but a civil offence.

 

[EDIT] does this to say 200 different business, be it hire a car, buy clothes, hotels etc........ it is still a civil offence and not a criminal offence even though 200 cheques x £100 = £20,000.

 

IF on the other hand he hands over a cheque for £20,000 then it becomes fraud and a criminal offence. OR IF all the 200 (or even part of them) go to the police then jointly together it becomes a criminal offence.

 

So we compare a civil offence to a regulated agreement and a criminal offence to an unregulated agreement.

 

Once you keep them all small then you stay within a regulated agreement. ONCE you join them together then it becomes an unregulated agreement. And that is why Heaths case falls. Because she joined everything together and doing so, it has now become an unregulated agreement.

 

There was also broker fees, Title Insurance Fee and admin fees. Combined the restricted Use amounts would exceed the 25k and potentially could be asked for by the finance company, but if what JS says about s.82 applied to the regulated element of refinancing then that would be another spanner in the works. I didn't know about that at the time of the hearing though.

 

Mrs Heath also had her monies distributed via her solicitor and Southern Pacific paid her solicitor one sum. Therefore I believe it was deemed her solicitors acted as her agents whereas mine was paid directly by the finance company to the various parties, I only received the residue once all the deductions and payments had been made.

Irrespective of who does the disbursements. It is simply a formality to make sure (a) the solicitors make more money due to "work done" and (b) make sure you do not get the cheque, cash it, shoot off to the bahamas leaving the second mortgagee fighting with the first mortgagee because you never paid anybody. :D

 

My claim was very much like this post by Elizabeth1 on the multiple agreement thread http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/171037-multiple-agreements-falling-within-4.html#post1853799

 

The thing about these so called test cases is very much a fact of fitting each case to your own. My appeal is all about finding the distinct differences between mine and Heaths...

Yes you are correct on that one which is why I told John to have a look on swarb to see if he finds any case laws that are similar in his case that he can use. Just because people keep on referring to for example Wilson v First Country Trust it does not mean there may be something better to use.

 

and hoping I get a Judge who can be convinced of those differences. I'm still liaising with my barrister on the best way to tackle this Remember his costs are tremendous , we know we are right, but Heath has been to appeal twice and lost. That's where the gamble comes in.

Hope the above helps you understand. If I have maybe misunderstood anything that you have said then please tell me. Also please remember, as already said I am not a solicitor and neither do I pose as one. I have just tried to look at your case in a logical sense and tried to explain it in that way.

[Bigdebtor]

Sadly not ES!

The final tally was 468;

pity, because all that was needed was another 32 signatures and the petition couldn have been taken to Downing Street.

 

Even though I did not personally create the petition, I was surpised about the lack of people signing it.

 

 

AC

 

AC

 

I think the timing of this petition - over Christmas and New Year break - was CRAZY - as was the ridulously short time given in whoich to sign.

 

I would ask - TRY AGAIN - with more publicity and a sensible period of time given this time.

 

BD

[andrew1]

Hope the above helps you understand. If I have maybe misunderstood anything that you have said then please tell me. Also please remember, as already said I am not a solicitor and neither do I pose as one. I have just tried to look at your case in a logical sense and tried to explain it in that way.

 

Your're not far off Nick, but I'll have to come back to this as I have a mountain on my desk... also it may be better to divert this particular issue over to that Multiple Agreement thread I linked up above as I feel I am taking this a bit off topic and AC seems to want to air other things too. If you subscribe to that thread I'll post up and perhaps we can go into this a bit deeper with John on board too....I'll try and get a hold of exactly what Heath did in the initial case she brought where it outlines the actual debt position...I'm not so sure this was a first mtg although can't be sure...best we get it right...catch up later.. thanks.

 

Sorry AC - all yours..

[angry cat]

AC

 

I think the timing of this petition - over Christmas and New Year break - was CRAZY - as was the ridulously short time given in whoich to sign.

 

I would ask - TRY AGAIN - with more publicity and a sensible period of time given this time.

 

BD

 

Agree!

 

As stated prior, I was not the petition Creator.

However, I did recognise the importance of the petition, that Is why I and others (including some of the site team) attempted to obtain more signatures.

 

Bearing in mind the short time that the petition was running; 468 signatures was not a bad result at all....

 

If once you don't succeed, try, try again;

Another petition will be created re: regulating the CRA's.

 

AC

[Bigdebtor]

OK - hopefully this one will be better publicised with a longer time allowed for signatures.

 

BD

[angry cat]

Hopefully!

 

Back to the main topic Guys:)

[ruinedbynatwest]

Hi Nick ! I follow you with one exception ! Where you say

 

"Once you keep them all small then you stay within a regulated agreement. ONCE you join them together then it becomes an unregulated agreement. And that is why Heaths case falls. Because she joined everything together and doing so, it has now become an unregulated agreement"

 

is, in layman's terms, the ratio of the ruling in Story that was referred to in Heath (without too much being said ) on the presumption that the binding precedent in Story is representative of the true CCA position - but it is a farcical ruling because Section 8 CCA (regulated agreements) shows the ruling in Story is fatally flawed - and please remember here, that the Section 8 case is fully supported, indeed it is advanced, by Mr Bennion, the CCA's drafter and he should know a thing or two. As Mr Bennion indicates, the CCA was intended to protect the consumer against burdensome, unsustainable debt by maintaining the protection - Not by removing it - and hence we see why we have the very existence of Section 18 as an anti avoidance measure in the first place -

 

With the thread of Section 18 test cases starting with the precedent set in Story, the Courts have created an abusor's charter by removing the protection from existing regulated agreements that are lumped together into a new arrangement. But they remove the regulation unlawfully because the 1689 Bill of Rights Act forbids the Common Law to defeat the Statute and from the Bill of Rights Act we get the maxim "Only Parliament may take away that which parliament has given" - in other words, the regulation may only be removed by Parliament - the Judges do not have the authority to do what you suggest above.

 

To take the matter further, the rulings in both Story and Heath, where they are to be considered eg as possibly determinative of Andrew's case, are also seen as farcical because they overturn the CCA's primary objective to maintain the regulation to enable a Court to distinguish from the paperwork exactly how a debtor got into an unsustainable position where problems arose in the lifetime of the statutory relationship (where a duty is imposed by the CCA on the creditor to document eg modifying varying or supplementary terms (S 82(3)) - the paper trail that is to preceed (or certainly to accompany) the advancement or the modification ("tinkering") of the credit as the credit is created and properly recorded, is intended to show a Court how the regulated indebtedness grew into an unsustainable position - and importantly, the paperwork (or the lack of it) is intended to show the Court whether there was any mischief on the part of the creditor that should be apportioned by the Court rather than for eg the state to rehouse dispossessed families where the creditor pulls the rug to suit his own needs rather than face the reality that he helped to create the problem.

 

The state of play at present is that the Courts are re-enabling the creditor to enforce where he has failed to demonstrate compliance with the CCA's requirements. But the Courts do so unlawfully where they override Parliament, particularly where they offend Section 8 CCA in Story by refusing to apply the Section to the 3 existing agreements that are plainly determinative.

 

As Mr Bennion points out, the regulation is to remain in Story (and all the cases £300 Billions' plus that follow) because the CCA is "An enactment for the protection of Debtors" - Interestingly it is also "an enactment for the protection of the creditor" if it is properly followed by the creditor - because compliance will be readily demonstrated from the paperwork and the Court will then be able to justifiably enforce the agreement.

 

Section 173 removes all doubt from these cases - where it forbids the Court as well as the contracting parties to "Contract-Out" of the Act's formalities.

 

We must not forget that the overriding objective of the CCA was simply to demand that creditors document terms. What is so very wrong with that ?

 

John Story

 

www.ruinedbynatwest.com

Edited January 4, 2010 by ruinedbynatwest
typos

[nick20045]

Playing the "devils advocate" here:

 

You keep talking about Mr Bennion. He drafted a legislation. Is he an MP? A Lord? In the House of Lords? A judge? At least a QC?

 

IF not then with all due respect, YES he drafted a nice piece of law but so does a plumber do a nice piece of work if I ask him to do me a nicely done toilet. Then again....... how I use that toilet is my perogative. Hence, he drafted the CCA. His comments on how it is interpreted by judges and the House of Lords is the equivalent of "I gave birth to you and I deem it fit to tell you how to live your life".

 

Sorry. You "gave birth to a life". Now let it run free and go through its perils. You CAN advise BUT it DOES NOT mean that, that advise is sacro sant.

 

So let us take the argument and I am going to be the Devils Advocate again.

 

You have debts. You ask me to help you out. This is my money. I make the conditions namely:

 

1: You must first and foremost pay off the debt that you owe.

2: I do not want to be the second charge as I want to be able to enforce if you do not keep to the agreement.

3: You guarantee to pay me £x amount of money a month.

4: In order that you do not enter into any further debt, from what I am lending you you must also pay the fees/charges etc that you will incur with taking this loan out. This is to make sure that you can then maintain to pay the monthly premium you have promised to pay.

5: I am not interested in what you do with what is left over after you have disbursed 4 above. For all I care, the surveyor deemed your property to be worth £XXXXXXXXXX. You have only £xxxxxxx as debt. The rest is available to do as you wish. ALL I SEEK is that there is no other debt WHICH WILL NOT ALLOW ME TO COLLECT ON YOUR GUARANTEE (in this case the property) should you fail to keep to the agreed amount to be monthly paid as I am helping you in securing your debts and consolidating your debts and I just wish to protect my interests.

 

IF you do not like my conditions go and seek a loan elsewhere.

 

You accepted those conditions. You have the freedom of movement to go and seek an alternative loan elsewhere. I DID NOT "trick you" into taking this loan and you are over 18 and you did this volunarily. Neither did I give you any false promises.

 

Now...... answer me on the above.

 

p.s. The above is based on my being the Devils Advocate. Want to see what your reply is.

[ruinedbynatwest]

Nick !

There appears to be a suggestion that we all wish to evade our obligations via technical defences; that we somehow seek "Unjust Enrichment" - ie that we may become enriched at the expense of the poor downtrodden banker who eg, in Story issued a forged cheque to redeem an existing Yorkshire building society mortgage of £24k in order to obtain the title deeds to our home without our knowledge. Interesting ? We had absolutely no idea. The CCA requires that that "agreement" be documented if the bank wants to enforce it - there was no agreement. What is supposed to happen then ?

 

The above presumption that we all seek undue enrichment stands or falls on the objective determination of the facts - that is all we seek - and to enforce the law as it was enunciated by Parliament working within its legislative role as the supreme law giver - ie somehow the CCA was democratically produced after informed debate by elected representatives of the populus who were concerned eg at the incidence of suicides that were traced back to situations where creditors denied verbally agreed terms with the family home ruthlessly repossessed and the family out on the street with the Courts' blessing.

 

Therein lies the answer to your question. The law requires (for a multitide of reasons) that in a civilised society, the Court will respect that Consumer Credit Agreements of the type entered into in Story be written if they are to be enforceable at law. It really is as simple as that. It is a matter of law and in Story the Judges have refused Parliament. We ask - What is so wrong with requiring a professional to properly record his agreements ? Why are so many professional moneylenders reluctant to properly document consumer credit agreements ? Why did Natwest admit to the High Court that the CCA applied in Story ? And Why did that admission never see the light of day ?

 

It is submitted that the answer lies in the area of "Inequality of Bargaining power". Creditors like keeping the whipping hand. It also lies, here, with Natwest's denial of the many handshakes we used to concrete our agreements. My handshake means something to me.

 

It really is as simple as that - in Story, Section 8 (regulated agreements) shows the "fair minded and informed person" what went on in the relationship - it was a protected, statutory relationship that the bank abused when it decided to deny verbally agreed terms that were actually caught by the determining gaze of Section 8 CCA (regulated agreements).

 

Imagine if a chemist could supply unregulated drugs without properly documented controls/prescriptions, etc. I just don't believe that that is where your arguments are intended to lead us ?

 

John Story

 

www.ruinedbynatwest.com

Edited January 4, 2010 by ruinedbynatwest
typos

[andrew1]

Nick, I like playing Devils advocate myself and it's healthy to do so to wean out the detail.

 

Mr Bennion, Professor Bennion, is more likely to put legislation together to reflect the wishes and intentions of Parliament than I would like to think any of the others you mention would or could. I happen to know the MP who had to push this through Mr Callaghans Government and a jolly decent fellow he is too (who didn't fiddle his expenses either!) but drafting a complete Act is no boys game so I believe it was in the right hands.

 

The wisdom and foresight to find all the twists and turns capable of abuse is masterful in itself I should imagine, given it has had many a court tongue tied over some of the sections (s.18 for one) then I don't think he did a bad job really.

 

Your points are well made, but what John is saying demonstrates how the lack of knowledge by those on the outside so to speak administering these agreements to we commoners has actually caused much of this.

 

Like you, I am no lawyer. These companies and banks, institutions and the likes have teams of legal people and advice at their beck and call to put these agreements together without error and as John says, if they got it right it would work for the creditors too. So why is it that when we dumb consumers get an agreement placed on the table in front of us, we feel that it is anything but a truly legally watertight document capable of being enforced should we default? - The assumption is heavy on the side of the creditor - I remember signing an agreement in the offices of Lloyds Bank for my business loan and the manager making me take PPI on it saying that without it I couldn't have the loan - I Assumed he had the legal moral high-ground and that the statement he made was of the highest integrity, so I believed him and forked out another 5k on PPI - and there lies the problem, we trusted these people, we trusted these agreements.

 

On my loan I am challenging I only did it because I was unpaid for over 6 months work I did and fell into arrears of some £3400. Possession proceedings were issued and I cleared the whole of those arrears immediately on 22nd Oct. Next payment was due 1st Nov - they refused to remove the possession claim when I told them the arrears were cleared. 9th Nov I issued a counter-claim and said answer that and I'll start paying again. They refused. In 7 months 11 letters were all ignored. I issued a strike out application to get their butts moving and they produced a document in court which I believe to be a false instrument submitted as a witness exhibit to get them off the hook. Trust at that point died.

 

These companies like this go into test cases and courts with lies. The finance company witness in my case I believe lied in court, the Judge saw his way past some of it, but not all of it, but I have had the Recorder state my agreement to be unenforceable in the eyes of the CCA so after all this, my conscience totally of one who believes paying ones debt is the honourable way through life, I now feel these people are not honourable, they lie, they cheat, they use false documents (allegedly) and they wanted me out in the street and would have done so without a thought for what that caused my family had I not put up and fought. Tens of thousands don't and if my case goes through this appeal and wins it will help thousands, John too and will stand as the case law people refer to (not that I want the publicity:D). Sadly, going back to you earlier point, there is little or no s.18 multiple agreement case law to revert to or rely on, that's what makes the Heath case such a bad one to have been used by Bradley Say to set a precedent.

[nick20045]

Staying on the Devil Advocates side again, I never mentioned anything about "Unjust enrichment". IF something is wrong then let the creditor or the debtor take the consequences as deemed fit.

 

What I asked you was: IF a creditor is approached by a debtor to borrow money based on the common facts of "lending" and the law relating to lending whereby:

 

A contract must fill four requirements for it to be a valid contract.

A lawfully binding contract that contains the following 4 mandatory elements for it be deemed a lawfully binding, bilateral contract:

 

1, Full Disclosure.

 

2, Equal Consideration. ("Consideration" means: something REAL, TANGIBLE and OF VALUE, e.g. money, or an item of value - something you "insert credit company" are trading for my signature / promise).

 

3, Lawful Terms and Conditions.

 

4' 'Wet' (hand signed, in proper ink) signatures of BOTH Parties/Meeting of the Minds.

 

if however they have a single signed agreement and they gain your consent to action(either with or without knowlage..tactic consent or aquisition by silence(ie you failed to contact them with your counter claim within the period stipulated)...then you will be found as the debtor by ajudication in a county court.

 

 

Now let us analyise them:

 

 

Full disclosure: I am telling you what I want you to do so I will agree to lend you this money. My conditions are XYZ. IF you do not like them go elsewhere. IF you stay then you accept them.

 

 

 

Equal consideration: I am giving you money, you are putting your property as colateral. Remember the full disclosure above and have a nice time.

 

 

Lawful terms and conditions: Well......... you cannot offer me your wife as a temporary deposit for late payments. Neither can you offer me a tip on the next the stock exchange from insider information. Neither will I allow you to use the account for money laundering...... In short........ nothing unlawful when it comes to the terms and conditions

 

A wet signature: You have to sign and I have to sign the agreement with the proviso THAT........ if however I have a single signed agreement and I gain your consent to action (either with or without knowlage..tactic consent or aquisition by silence (ie you failed to contact me with your counter claim within the period stipulated)...then you will be found as the debtor by ajudication in a county court.

 

Now let us forget Story (which you keep bringing up in every post you make). Let us forget what you say about "in Story issued a forged cheque to redeem an existing Yorkshire building society mortgage of £24k in order to obtain the title deeds to our home without our knowledge." which can be challenged as "you gave your consent to action (as in the paragraph above)". That part you can challenge by making a SAR request and see what was said, promised etc in respect of that matter......

 

So being the devils advocate, you needed help financially. You asked me to help you. I gave you my terms and conditions. You had the right to go elsewhere (heck use Comparethemeerkat.com if you want to). BUT you accepted my conditions. You took my money.

 

So once again, being the devils advocat (and IMPORTANT I am doing this so that you will NOT just accept what others say but you will take my challenge AND find out how to argue it) IF (remember I am using the word IF) I kept to the conditions, I honoured everything, I have been above board then irrespective of whatever why should you not honour your commitments?

 

IF I have done anything wrong then YES please sue me. But you talk about a "handshake being a gentlemans agreement" well......... IF I have been a gentleman with you then should you not be a gentleman back?

 

Ball is in your court.

 

p.s. Forget Story. You seem to just want to argue Story. Answer the above in a fair and open minded reply. THEN you can start learning how to argue Story for when your mind is so embossed in one matter it may be hard to focus on other fact WHICH may then help Story. e.g. I have see a lot of threads saying "Ohhhhhh you went through all of this and etc etc" Yet my mind was not focused on Story OR Hating the banks or Hating the Courts. My mind was open and as I said, when I first read (and I have to be honest I only gave it a brief reading) the first thing I noticed was how much "low relevance your partner had in the hearing" and....... that is what I pointed out to you.

 

And that is what you need to do to be able to learn and find out information.

[nick20045]

Nick, I like playing Devils advocate myself and it's healthy to do so to wean out the detail. Dont you dare take the Devils advocate side as well!!!!!!!! :D You ARE FORBIDDEN. :D

 

Mr Bennion, Professor Bennion, is more likely to put legislation together to reflect the wishes and intentions of Parliament than I would like to think any of the others you mention would or could. I happen to know the MP who had to push this through Mr Callaghans Government and a jolly decent fellow he is too (who didn't fiddle his expenses either!) but drafting a complete Act is no boys game so I believe it was in the right hands. I am not saying he did NOT do a good job but he did his job. Now it is up to the Courts to argue the matters, the Courts of Appeal to take over and the House of Lords to smoke cigars, get fat pay cheques, drink champagne and write 60 pages of what they think and how clever they are. Remember Maggie Thatcher is a Lord in the House of Lords. Do I need to say more!!!!!. :eek:

 

 

Your points are well made, but what John is saying demonstrates how the lack of knowledge by those on the outside so to speak administering these agreements to we commoners has actually caused much of this. I suggest you read the 1689 Bill of Rights and you will get some more insight. Mainly article 10 and article 12.

 

Like you, I am no lawyer. These companies and banks, institutions and the likes have teams of legal people and advice at their beck and call to put these agreements together without error and as John says, if they got it right it would work for the creditors too. So why is it that when we dumb consumers get an agreement placed on the table in front of us, we feel that it is anything but a truly legally watertight document capable of being enforced should we default? That last word answers your question. You gave an undertaking. You gave as John says "a gentlemans agreement" you should NOT default. And if you default due to unforseen circumstances you can ask for redress. So let us take another simple agreement/contract. Marraige. If you default on that what are the consequences? Do not just look at bank agreements/contracts. Look at general agreements. As I once said to John (when I pointed him to swarb) look at Bank, Tort, Negligence, Professional Negligence case law........ FOR IF it concerns one of the main things in your life (such as a roof over your head) then you should NOT do a half bothered job but lift every stone and walk every beach to find that item you so much need to protect your interest. And IF you cannot be bothered doing a decent job then do not bother at all.

 

 

- The assumption is heavy on the side of the creditor - I remember signing an agreement in the offices of Lloyds Bank for my business loan and the manager making me take PPI on it saying that without it I couldn't have the loan - I Assumed he had the legal moral high-ground and that the statement he made was of the highest integrity, so I believed him and forked out another 5k on PPI - and there lies the problem, we trusted these people, we trusted these agreements. Join the club. I took out an insurance when I was also self employed. Funny enough when I went to claim the bank told me "Oops sorry mistake. Here are your premiums refunded". And NO I am NOT saying the banks are angels and they do everything by the book. But do NOT let hatred of the establishment cloud your eyes either. (Note: And Yes....... I have one ongoing with a bank and if all goes ok I will bitchslap them but...... does not mean I hate or mistrust every bank!!!!!)

 

On my loan I am challenging I only did it because I was unpaid for over 6 months work I did and fell into arrears of some £3400. Possession proceedings were issued and I cleared the whole of those arrears immediately on 22nd Oct. Next payment was due 1st Nov - they refused to remove the possession claim when I told them the arrears were cleared. 9th Nov I issued a counter-claim and said answer that and I'll start paying again. They refused. In 7 months 11 letters were all ignored. I issued a strike out application to get their butts moving and they produced a document in court which I believe to be a false instrument submitted as a witness exhibit to get them off the hook. Trust at that point died.

 

These companies like this go into test cases and courts with lies. Heck! You are surprised at that!!!!! I have seen a solicitor (what is also called "An officer of the Court") stand up in front of a Judge and lie. And ironically (and this is really gonna make John hit the roof :D) when I asked my solicitor why he did not challenge what had been said as he knew it was a lie the reply I got was.................... wait for it...................... "XXXXXXX (being the district of the Court) is a small place. I know he lied but these are the people I have to deal with them every day". Now work that one out!!!! (And yes, in the subsequent complaint to the Solicitors complaints service it was quoted and I got my revenge).

 

The finance company witness in my case I believe lied in court, the Judge saw his way past some of it, but not all of it, but I have had the Recorder state my agreement to be unenforceable in the eyes of the CCA so after all this, my conscience totally of one who believes paying ones debt is the honourable way through life, I now feel these people are not honourable, they lie, they cheat, they use false documents (allegedly) and they wanted me out in the street and would have done so without a thought for what that caused my family had I not put up and fought. Tens of thousands don't and if my case goes through this appeal and wins it will help thousands, John too and will stand as the case law people refer to (not that I want the publicity:D). Sadly, going back to you earlier point, there is little or no s.18 multiple agreement case law to revert to or rely on, that's what makes the Heath case such a bad one to have been used by Bradley Say to set a precedent.

You talk about the Heath case. Read the case laws (as per the link I gave http://swarb.co.uk/liscindex.php). Remember one thing. It does NOT have to be the same (and I mean exactly the same) as per your situation. You can take parts of a case law and what is called "mix and match". (e.g. Wilson v County Trust is used by a lot in relation to the enforcement of agreements BUT really it was about a loan and in relation to other matters). It can be for example about somebody who rented a copier and the agreement was based on the CCA but........... OR for example, you wish to complain about harrassment. Now if you read the rules it says that it is really a criminal offence (s.40 of the Administration of Justice Act) BUT if you then read Ferguson v British Gas (easy to even google it) you will find otherwise and how to argue the fact. Now in Ferguson it relates to a computer generated harrassment. Read the ruling. HENCE if a ruling was made like that regarding a computer what is to stop me using that case law for a human being harrassing me????????!!!!!!!!!

 

Keep an open mind is the main thing.

Edited January 5, 2010 by nick20045

[nick20045]

Incidentally...... you asked about Law. Well here is a nice link to you and then you can try and work out "Who is the boss".

 

Passage of a Bill

 

And if you want to go further then Hansard (Debate)

[andrew1]

Thanks Nick, you've stayed up far too late on my account, but thanks I appreciate the time you have taken.

 

I do try to keep an open mind, but I'm a typical bloke who can't always multi-task putting all these threads together to make one really sound case is difficult for one not trained in legalease - there's just so much of it.

 

I don't hate the banks, far from it, having been in business for 30 odd years I've come across many situations where working closely with them has kept the business thrive or fall depending on the climate at the time. It's a matter of mutual respect, but you earn respect, you can't buy it. I always acted honourably in business as best I could and I get sick to the core when I come across those who are prepared to cheat to achieve an end rather than negotiate honestly. Negotiation is business - I did it everyday of my working life, but when professionals can't do what they are paid to do professionally and have to lie to win - then it's game over for me, they've already lost as I'll use the law to remedy things. I might not win the battle, but I will win the war as we did with the DCA's when we all began back in 2006 to get them to abide by the law. Finding out that courts don't uphold the law is what cracks me up, our final resting place run by some who are ego trippers or full of self importance with little due respect for the 'rogue debtor' who is trying to avoid paying their debts.....That's how the LIP is seen in many a Judges eye no matter what their argument or how bone fide their case may be. I've been a victim of that too and I'm no rogue debtor. If they want to repossess me, then they have to prove they have the legal right and I don't just mean the agreement, I mean every squeaky word and if they haven't got it right they deserve to suffer the consequences just as I do if I don't pay.

 

IF test cases are to be set in concrete then they ought to be done properly by people who know what they are doing which doesn't appear to be the case in Manchester on either side of the legal spectrum.

[justify]

Thanks Nick, you've stayed up far too late on my account, but thanks I appreciate the time you have taken.

 

I do try to keep an open mind, but I'm a typical bloke who can't always multi-task putting all these threads together to make one really sound case is difficult for one not trained in legalease - there's just so much of it.

 

I don't hate the banks, far from it, having been in business for 30 odd years I've come across many situations where working closely with them has kept the business thrive or fall depending on the climate at the time. It's a matter of mutual respect, but you earn respect, you can't buy it. I always acted honourably in business as best I could and I get sick to the core when I come across those who are prepared to cheat to achieve an end rather than negotiate honestly. Negotiation is business - I did it everyday of my working life, but when professionals can't do what they are paid to do professionally and have to lie to win - then it's game over for me, they've already lost as I'll use the law to remedy things. I might not win the battle, but I will win the war as we did with the DCA's when we all began back in 2006 to get them to abide by the law. Finding out that courts don't uphold the law is what cracks me up, our final resting place run by some who are ego trippers or full of self importance with little due respect for the 'rogue debtor' who is trying to avoid paying their debts.....That's how the LIP is seen in many a Judges eye no matter what their argument or how bone fide their case may be. I've been a victim of that too and I'm no rogue debtor. If they want to repossess me, then they have to prove they have the legal right and I don't just mean the agreement, I mean every squeaky word and if they haven't got it right they deserve to suffer the consequences just as I do if I don't pay.

 

IF test cases are to be set in concrete then they ought to be done properly by people who know what they are doing which doesn't appear to be the case in Manchester on either side of the legal spectrum.

 

What a fantastic post Andrew: thanks. J

[B3rty]

Nick....good post and well said....open mind.....that's the key...plus looking for opportunities in case law to exploit.....and this judgement gives a few of those...however not for chicken little...lol

[kel123]

Thanks Nick, you've stayed up far too late on my account, but thanks I appreciate the time you have taken.

 

I do try to keep an open mind, but I'm a typical bloke who can't always multi-task putting all these threads together to make one really sound case is difficult for one not trained in legalease - there's just so much of it.

 

I don't hate the banks, far from it, having been in business for 30 odd years I've come across many situations where working closely with them has kept the business thrive or fall depending on the climate at the time. It's a matter of mutual respect, but you earn respect, you can't buy it. I always acted honourably in business as best I could and I get sick to the core when I come across those who are prepared to cheat to achieve an end rather than negotiate honestly. Negotiation is business - I did it everyday of my working life, but when professionals can't do what they are paid to do professionally and have to lie to win - then it's game over for me, they've already lost as I'll use the law to remedy things. I might not win the battle, but I will win the war as we did with the DCA's when we all began back in 2006 to get them to abide by the law. Finding out that courts don't uphold the law is what cracks me up, our final resting place run by some who are ego trippers or full of self importance with little due respect for the 'rogue debtor' who is trying to avoid paying their debts.....That's how the LIP is seen in many a Judges eye no matter what their argument or how bone fide their case may be. I've been a victim of that too and I'm no rogue debtor. If they want to repossess me, then they have to prove they have the legal right and I don't just mean the agreement, I mean every squeaky word and if they haven't got it right they deserve to suffer the consequences just as I do if I don't pay.

 

IF test cases are to be set in concrete then they ought to be done properly by people who know what they are doing which doesn't appear to be the case in Manchester on either side of the legal spectrum.

 

Nice one!

 

You could be talking for me personally. I also do not hate the banks BUT! I hate what they have become. In the late 80's my natwest bank manager told me what was going to happen (old school, blunt but protective of the bank and the customer - he knew my business and my personal accounts and knew when to lend and when to call me a stupid ass). I would call him a proffessional in his field (time served experience) which is more than can be said of todays greedy bonus driven flybynights. My bets are that he was about 60 at the time, so a few generations earlier than the current crop

[stapeley]

I believe these claim companies did us no favours . Unlikely football, attack is not better than defence . In one case the JUDGE pointed out the failure of the claimant to prove he did not sign a compliant CCA .

So using the same point if taken to court ask the creditor to prove that a complaint CCA was signed , by producing it in court . So for a DCA to turn up with a poor copy of a application form , should never be enough to gain a Judgement .

 

This has been my view all along , am I WRONG ?

[stapeley]

Taken from OFT website "Both the borrower and the lender must sign the agreement . A copy of the agreement must be given to the borrower, either when he signs it or within seven days .

If the above requirements are not met, the lender can only enforce the agreement against the borrower by getting a court order ."

 

Are we not complicating things too much ?

 

As I see it an AGREEMENT should be easily understandable and if it is not ,this should be covered by Unfair practices and relationships.

[nick20045]

Taken from OFT website "Both the borrower and the lender must sign the agreement . A copy of the agreement must be given to the borrower, either when he signs it or within seven days .

If the above requirements are not met, the lender can only enforce the agreement against the borrower by getting a court order ."

Read the parts in bold. Now work out where the contradiction stands. In short, IF the borrower does NOT sign the agreement then in the first place there is no agreement hence what can be enforced in Court?

[ruinedbynatwest]

Read the parts in bold. Now work out where the contradiction stands. In short, IF the borrower does NOT sign the agreement then in the first place there is no agreement hence what can be enforced in Court?

 

I am at a loss - I am told to forget Story where that case sets precedent from which all these other cases emanate (the case just happens to be mine and I remember the perjurious behaviours of the Natwest team only too well). Story is also (being very near the first case Hannah in the Section 18 thread) the only one thus far based on the CCA that is supported by Francis Bennion, the drafter of the CCA, for the reason that it is readily argued and supported by an exemplart evidential burden with which the Common Law Cannot argue, and Story is the only CCA case thus far, where Section 8 applies on two counts - to the existing agreements that were refinanced and in the situation where Andrew Smith QC for Natwest admitted its application to the existing debt (but which admission never again surfaced) where as you indicate above, NOTHING WAS EVER SIGNED.

 

You forcefully say for the questionable benefit of all on these threads "forget this and forget that and forget Story " as if you suggest that it's OK for the Courts to refuse to uphold a criminal burden that underpins the Statute. Evidently you wish for me to desist in my submissions which say the opposite. I'm sorry for that.

 

I wish you every good fortune.

John Story

 

www.ruinedbynatwest.com

Edited January 5, 2010 by ruinedbynatwest
typos

[nick20045]

 

You forcefully say for the questionable benefit of all on these threads "forget this and forget that and forget Story " as if you suggest that it's OK for the Courts to refuse to uphold a criminal burden that underpins the Statute. Evidently you wish for me to desist in my submissions which say the opposite. I'm sorry for that.

 

I wish you every good fortune.

John Story

 

www.ruinedbynatwest.com

I never "forcefully" say anything but I do suggest. And the reason I suggested forgetting "what you have been through" is NOT "that it's OK for the Court to refuse to uphold a criminal burden" either.

 

The reason I suggested that, for example, in your case to "forget" what you are so angry about (that happened) is to open your mind while searching for case law that may help in your case.

 

You say "Story is the only CCA case thus far, where Section 8 applies on two count" but is it? No Judge, No barrister, and No solicitor are going to know about every case law that ever happened since ......... let us say........ 1800AD. It might be a case way before the CCA ever came out that is similar to your case. In fact in the McGuffick case the Judge goes back (and refers to) cases from Taylor v Great Eastern Railway Company 1901 and Eastern Distributors Limited v Goldring 1957 (see section 61 and section 62) also in section 94 a foreign Court judgement was referred to (In support of that proposition, Mr Moran relied upon the decision of the European Court of Justice in VTB-VAB NV v Total Belgium NV and Galatea BVBA v Sanoma Magazines Belgium NV)

 

Now once again, I refer you to the first sentence in the preceeding paragraph namely: You say "Story is the only CCA case thus far, where Section 8 applies on two count".

 

You keep referring to the CCA. McGuffick case was also regarding the CCA BUT notice it does NOT have to be a case re the CCA. It can be any case way before the CCA came out or in a country (especially if under Commonwealth rule) where there is no CCA. Perhaps you can maybe find a judgement where it happened in Jamaica (as an example) or in Austrailia or New Zealand, which is similar to yours, has the main basis as yours (or similar) and you can find a Case law judgement that can swing your argument over to you.

 

And that is why I proposed (suggested) you forget what you went through in Court, what you are so angry about. Simply to open your mind and search.

 

I cannot do the research for you. First of all I do not have the time and secondly I do not know your case. BUT, the best thing I can do is try and guide you. Personally, I hope you manage to find something that will swing the whole thing into your favour. But then again, if you just wish to keep on SOLELY about the CCA and Francis Bennion then I believe you are not opening as many "doors of research" as you should.

[nick20045]

in the situation where Andrew Smith QC for Natwest admitted its application to the existing debt (but which admission never again surfaced) where as you indicate above, NOTHING WAS EVER SIGNED.

 

I wish you every good fortune.

John Story

 

www.ruinedbynatwest.com

Watch how many "avenues" I am going to open for you to learn from. Possible tactics that you can use.....Some of these are from my notes but also did a quick search on Swarb....... And these are but just a few!!!!!!

Have you really looked at Case Law? Anything like this????? Hedley Byrne & Co Ltd v Heller & Partners Ltd - Wikipedia, the free encyclopedia

 

Have you read about "Duty of Care" (which a bank and your councel have to give)? Such as House of Lords - Her Majesty's Commissioners of Customs and Excise (Respondents) v. Barclays Bank plc (Appellants)

 

Caparo Industries Plc v Dickman [1990] 2 AC 605 is a good one and may actually apply to you as it is about Duty of Care and how you cannot be told things that may manipulate you into doing something when otherwise (if you had not received the wrong information) you would not have. Caparo Industries plc v Dickman - Wikipedia, the free encyclopedia

 

Have you read anything like this (shows that solicitors and barristers have now lost their right to immunity)??????? You keep talking about corrupt barristers so have you checked?

 

Arthur J S Hall & Co (A Firm) -v- Simons; Barratt -v- Woolf Seddon (A Firm); Harris -v- Schofield Roberts & Hill (A Firm) [2000] UKHL 38; [2000] 3 All ER 673; [2000] 3 WLR 543; [2000] 2 FLR 545; [2000] Fam Law 806; [2002] 1 AC 615

21 Jul 2000

HL

Lord Browne-Wilkinson, Lord Steyn, Lord Hoffmann Lord Hope of Craighead Lord Hutton, Lord Hobhouse of Woodborough, Lord Millett

Professional Negligence, Legal Professions

 

Clients sued their solicitors for negligence. The solicitors responded by claiming that, when acting as advocates, they had the same immunities granted to barristers. Held: The immunity from suit for negligence enjoyed by advocates acting in both criminal and civil proceedings is no longer appropriate or in the public interest and is removed: "The standard of care to be applied in negligence actions against an advocate is the same as that applicable to any other skilled professional who has to work in an environment where decisions and exercises of judgment have to be made in often difficult and time constrained circumstances. It requires a plaintiff to show that the error was one which no reasonably competent member of the relevant profession would have made." Recent changes in procedure designed to reduce vexatious litigation, and the doctrine against collateral attack should be dealt with by more specific remedies. Experience in foreign common law jurisdictions did not indicate a need for the immunity. The courts can be trusted to differentiate between errors of judgment and true negligence. The section did not create a statutory bar on claims in negligence. Courts and Legal Services Act 1990 62

 

Once again, you talk about corruption in the legal system. How about this one?

 

Bolton -v- The Law Society [1994] 1 WLR 512; [1993] EWCA Civ 32; [1994] 2 All ER 486; [1994] COD 295

8 Dec 1993

CA

Sir Thomas Bingham MR Legal Professions Casemap

The solicitor who had been admitted to the Roll for two years had disbursed clients money to relatives, as part of the conveyance of property without adequate security but in the expectation that the money would be repaid. The Tribunal found that the solicitor was honest and had not stolen client money "in a premeditated fashion". The Tribunal took the view that ordinarily the conduct would merit striking off but, in light of the facts of the case, it made a more lenient order. The Divisional Court heard fresh evidence of good character and took the view that the suspension was disproportionate, imposing a fine in substitution.

 

Held: The Disciplinary Tribunal's decision was re-instated. The court had given insufficient reason for disturbing it. A solicitor who was in breach of the Law Society's rules should expect severe sanctions. The rules served not just to discipline solicitors, but also to protect the public. The reputation of a profession is more important than the fortunes of any individual mamber. Membership of a profession brings benefits, but also costs.

 

Sir Thomas Bingham MR: "It is required of lawyers practising in this country that they should discharge their professional duties with integrity, probity and complete trustworthiness." and "Because orders made by the tribunal are not primarily punitive, it follows that considerations which would ordinarily weigh in mitigation of punishment have less effect on the exercise of this jurisdiction than on the ordinary run of sentences imposed in criminal cases."

 

As a principle it requires a very strong case to justify interference by the CA in a penalty imposed by the Tribunal, since its members are best qualified to weigh the seriousness of the professional misconduct before them.

. . Any solicitor who is shown to have discharged his professional duties with anything less than complete integrity, probity and trustworthiness must expect severe sanctions to be imposed upon him by the Solicitors' Disciplinary Tribunal. Lapses from the required high standard may of course take different forms and be of varying degrees. The most serious involves proven dishonesty . . If a solicitor is not shown to have acted dishonestly, but is shown to have fallen below the required standards of integrity, probity and trustworthiness, his lapse is less serious but it remains very serious indeed in a member of a profession whose reputation depends on trust. A striking off order will not necessarily follow in such a case, but it may well. The decision whether to strike off of suspend will often involve a fine and difficult exercise of judgment . . . on all the facts of the case. Only in a very unusual and venial case of this kind will the Tribunal be likely to regard as appropriate any order less severe than one of suspension. It is important that there should be full understanding of the reasons why the Tribunal makes orders which might otherwise seem harsh. There is in some of these orders a punitive element; a penalty may be visited on a solicitor who has fallen below the standard required of his profession in order to punish him for what he has done and to deter any other solicitor tempted to behave in the same way. Those are traditional objects of punishment. But often the order is not punitive in intention "

and "In most cases the order of the Tribunal will be primarily directed to one or other or both of two purposes. One is to be sure the offender does not have the opportunity to repeat the offence. This purpose is achieved for a limited period by an order of suspension; plainly it is hoped that experience of suspension will make the offender meticulous in his future compliance with the required standard. The purpose is achieved for a longer period, and quite possibly indefinitely, by an order for striking off. The second purpose is the most fundamental of all: to maintain the reputation of the solicitor's profession as one in which every member, of whatever standard, may be trusted to the end of the earth. To maintain the reputation and sustain public confidence in the integrity of the profession it is often necessary that those guilty of serious lapses are not only expelled but denied readmission. If a member of the public sells his house, very often his largest asset, and entrusts the proceeds to his solicitor, pending reinvestment in another house, he is ordinarily entitled to expect the solicitor will be a person whose trustworthiness is not, and never has been, seriously in question. Otherwise, the whole profession and the public as a whole is injured. A profession's most valuable asset is its collective reputation and the confidence which that inspires."

 

 

p.s. That last one you can use it as an opening statement in a Court application to seek justification for what you were put through.

Edited January 5, 2010 by nick20045
added p.s.