Me v Tesco/Incasso - Appeal in process

[Rhia]

Good effort Costa. I once appealled and GH is correct you only need the judgement and not the full transcript which should cut the cost. Ask the court for their list of transcribers and call one or two as they may vary a little - not much but as dear Tesco says every little helps (irony fully intended).

 

You can only appeal on the points in the judgement you can't introduce anything new. Further get in touch with the appeals office in London as they make a pro bono barrister available for you I believe. Also contact the Bar Council for list of pro bono barristers. If you have any cash to spare - yes I know - but if you have direct access barristers work on a fixed fee.

 

I am so pleased you are appealling this. It takes guts and courage but this judgement is just wrong and Judges shouldn't make it up as they please.

[gh2008]

Long shot, but if there is anyone with access to LexisLibrary, either directly or through Athens could they have a look for Costa?

[costa12]

Hi All,

 

To make things easy I have started this thread purely for the Appeal. Where it all began can be seen at:

 

http://www.consumeractiongroup.co.uk/forum/showthread.php?238913-Me-v-Tesco-Incasso

 

Costa

[costa12]

Hi All,

 

I've now started the following thread to deal purely with my Appeal:

 

http://www.consumeractiongroup.co.uk/forum/showthread.php?279423-Costa-v-Tesco-Incasso-APPEAL&p=3152321

 

All help and advice with regards to the Appeal should now be posted there.

 

Cheers

 

Costa

[brooooooooooce]

subbing

[Rhia]

Jumping on the bus.

[cymruambyth]

Good luck, it's a battle that when won should help quite a few Caggers.

[car2403]

I haven't read the thread completely, but got a cry for help and a short version from gh.

 

TBH, I've always wondered about the service of documents - there isn't anything declared as being the standard required, and you've applied what should have been considered as a 'cross-read' from another area of law, which seems reasonable to me, I have to say. I guess it's all down to the Judge having to decide if the interpretation of the Interpration Act (emphasis added so it doesn't look like gobbly-de-gook) is an accurate one, on the balance of probabilities. I don't think he's saying the IA doesn't apply, (although it looks like that is what was ACTUALLY stated) but I do think he doesn't accept the arguments put forward about how it does apply. (If that makes sense)

 

I'm not sure if these are specific grounds to appeal on, alone, as it's a Judicial decision about an argument put forward. If it's wrong in law, there's clear grounds. I guess if he said that the IA doesn't apply, that is clearly wrong, and is grounds for appeal, then.

 

Oh, there's no use in starting another thread, really, as everyone (who has the time to contribute, clearly I had something to say but didn't really read it myself!) really needs to see all the history. So, I'll merge the threads and move you to the Legal Issues forum as requested.

[costa12]

I don't think he's saying the IA doesn't apply, (although it looks like that is what was ACTUALLY stated) but I do think he doesn't accept the arguments put forward about how it does apply. (If that makes sense)

 

I'm not sure if these are specific grounds to appeal on, alone, as it's a Judicial decision about an argument put forward. If it's wrong in law, there's clear grounds. I guess if he said that the IA doesn't apply, that is clearly wrong, and is grounds for appeal, then.

 

So does this mean that I have been inadequate in getting my argument across?

[costa12]

Apparently this is another little snippet from Goode:

 

Service of Default Notice This may be done by post or personal delivery: CCA 1974, s 189(1). As to what constitutes an effective posting or delivery, see CCA 1974, s 176(2)-(5). If there is more than one debtor, a default notice must be delivered to each: see CCa 1974, s 185(1)(a).

 

A notice served by post is deemed to have been served at the time when it would be delivered in the ordinary course of post: Interpretation Act 1978, s 7, (41 Halsbury's statutes (4th edn) (Reissue) 989). If more than one debtor must be served (above) it appears the 14-day period specified in sub-s (2) would run only from the latest service; the creditor would, therefore be wise to ensure (a) that all such notices as served so far as possible simultaneously and (b) that if a date is specified in the notices it is more than the statutory minimum of 14 days after the date on which he hopes that all the services will be effected.

 

 

 

They failed to mention this at the hearing and the DJ was uder the belief that there was no such reference to s88 in Goode.

 

Nice when you have got a £1000 manual to quote from!

Edited October 5, 2010 by costa12
Text added

[DonkeyB]

So does this mean that I have been inadequate in getting my argument across?

 

No – I think it’s judge lottery. The real question is whether another judge would overturn the strange logic applied. Like the others, I believe delivery, not despatch, is the key – it’s a question of gathering case law.

 

However... I’m a little persuaded that the judge’s decision was possibly based on his opinion that it’s a de minimis issue, rather than a strict point of law. That said, it seems odd that their brief gave so much time to the issue. A classic case of the judge deferring to a lawyer at the expense of an LiP.

[gh2008]

That said, it seems odd that their brief gave so much time to the issue. A classic case of the judge deferring to a lawyer at the expense of an LiP.

 

I think you've hit the nail on the head ......

 

When you look back over the thread and see that at one point Costa had applied for SJ against the claimant and teh claimant was running - then they suddenly brought this argument 'out of the hat'

 

I haven't seen it before or TBH anywhere else - and it would also kill dead most, if not all, 'not enough time for 14 days' defences (and the Site Team's advice)

 

I do think the DJ was somewhat mis directed by the claimant in that Goode has quite a lot to say about DNs and their service, yet in Court apparently denied there was any mention and that the only mention of service of documents was re S76. Which is how their argument began.

IMHO their argument is flawed - but, on the day, it was accepted.

 

This is a classic point where a LiP cannot argue against statements like 'Service of DNs are not mentioned in Goode' if a LiP could afford £1000 for a book then I am sure he wouldn't be a LiP in teh first place....

[summerbreeze]

Dont know if it helps but I have this rather longer snippet from Goode stored on my PC. I had it in my bundle when I defended on a dodgy DN

 

Service of a default notice* This may be done by post or by personal delivery: s189(1).

s88

 

Service of a default notice

 

This may be done by post or by personal delivery: s189(1). As to what constitutes an effective posting or delivery, see s176(2)-(5). If there is more than one debtor, a default notice must be delivered to each: see s185(1)(a).

 

A notice served by post is deemed to have been served at the time when it would be delivered in the ordinary course of post: Interpretation Act 1978, s7, (41 Halisbury's Statutes (4th Edn)(Reissue) 989). If more than one debtor must be served (above) it appears that the seven day period* specified in sub-s (2) would run only from the latest service; the creditor would, therefore, be wise to ensure (a) that all such notices are served so far as possible simultaneously and (b) that if a date is specified in the notices it is more than the statutory minimum of seven* days after the date on which he hopes that all services will be effected.

 

Sir Roy Goode, s88 comments in Consumer Credit Legislation.

 

* * Seven days extended to fourteen days from 19/12/2006.

 

s87

 

General effect

 

...

 

The section applies only where the creditor seeks to exercise such a remedy by reason of the debtor's breach of contract: for the statutory requirements when the debtor is not in breach, see ss 76 and 98. Further, s87 does not entitle a creditor to take any of the listed steps merely by issuing a default notice; on the contrary, it controls his actions on the assumption that, either by the terms of the agreement, or by reason of the gravity of the debtor's breach, such a remedy is in law available to him (eg because the debtor's defaults in payment constitute a repudiation: see, for example, Yeoman Credit Ltd v Waragowski [1961] 3 All ER 145, [1961] 1 WLR 1124 (hire-purchase agreement): Moschi v Lep Air Services Ltd [1973] AC 331 (loan)). Indeed an attempt to invoke such a remedy as termination would often constitute a breach of contract by the creditor himself if it were not justified in law; in some but by no means all circumstances the creditor's breach would itself be repudiatory: (cf Federal Commerce and Navigation Co Ltd v Molena Alpha Inc [1979] AC 757, [1979] 1 All ER 307; Woodar Investment Development Ltd v Wimpey Construction UK Ltd [1980] 1 WLR 277). It is of course possible, if not probable, that the agreement will make time of payment of the essence and/or provide that default in making prompt and full payment is deemed to be a repudiation so as to trigger a power of termination and a minimum payment clause. Such provisions (apart from the last mentioned) are not penalty clauses (Lombard North Central plc v Butterworth [1987] QB 527, [1987] 1 All ER 267, CA) and would entitle the creditor or owner to invoke a power to terminate or recover possession, subject to service of notice under this section.

 

Sir Roy Goode, s87 comments in Consumer Credit Legislation.

 

 

[car2403]

So does this mean that I have been inadequate in getting my argument across?

 

I can't really say, as I wasn't there, but I'd prefer to say that the Judge took your argument and applied some individual prejudice which will be difficult to prove, hence the comments about appeal success.

 

They failed to mention this at the hearing and the DJ was uder the belief that there was no such reference to s88 in Goode.

 

Nice when you have got a £1000 manual to quote from!

 

Indeed, but remember this could be grounds for appeal, and no matter how fancy-pancy a Lawyer they send, a decent Judge would be hard pushed to ignore it. I did say 'decent', though...

[costa12]

This is an interesting read aswell. Para 6 onwards. I know it is the criminal justice system, however, the question of 'service' has arisen and the Interpretation Act s7 swings into action. Also a mention of a PRACTICE DIRECTION, wonder what that could be !

 

http://www.bailii.org/ew/cases/EWHC/Admin/2009/2924.html

 

Costa

Edited October 5, 2010 by costa12

[The Mould]

Hello costa

 

Earlier today I read your post to page 17 (I think).

 

Your application for Summary Judgement (strike out), should have succeeded, it was the action of the claimant that was premature, as he was in default of your CCA request he had no right to enforce, you already know this, I know, also, the claimant's unreasonable conduct in these proceedings, both of those arguments were absolutely strong enough to support your said application.

 

This Default Notice issue (forgive me please, because I do still need to read the rest of your incredible case/story/journey), well, a DN [is] a legal document (Statutory Instrument) and service thereof can only be made on a 'clear day', the 14 clear days that apply to such legal notices are any day except Saturday, Sunday, a Bank Holiday, Good Friday or Christmas Day, (you have probably already viewed CPR PART 6 - Service of Documents), although the said CPR refers to documents (service) in proceedings, it is my contention that the 14 clear days after service of a DN, can and must be construed in conjunction with the said CPR.

 

I am not quite sure if this is making any sense just yet, what is needed here is, well of course some case law would be extremely helpful, but failing that, you need a powerful legal argument against the decision in order to show that Judge's decision [is] an error of law. (Again, you already know this too)

 

So costa, can you think of a legal argument that will supplement the arguments (great advice given to you so far from superb caggers) that the Judge has ignored?

 

I will try and read the rest of your case from pg17 onwards later on and see if I can add anything in that will be positive and useable in legal terms and in your favour, it does seem to me that this decision is unjust.

 

Kind Regards

 

The Mould

[costa12]

Good Morning All,

 

So begins another day in paradise.

 

Basically what it comes down to now is that I need to formulate my argument, for the N161, as to why I am appealing. I am bringing together everyones arguments and it is quite clear that the Iinterpretation Act does apply and that is now backed up by Professor Goode's comments on DN's and service. I now need to get that into my argument. The N161 must in by 13 October at the latest.

 

All help much appreciated.

 

Costa

[egg-sterminator]

Good Morning All,

 

So begins another day in paradise.

 

Basically what it comes down to now is that I need to formulate my argument, for the N161, as to why I am appealing. I am bringing together everyones arguments and it is quite clear that the Iinterpretation Act does apply and that is now backed up by Professor Goode's comments on DN's and service. I now need to get that into my argument. The N161 must in by 13 October at the latest.

 

All help much appreciated.

 

Costa

A sorry judgement "the default and termination regulations 1983 " clearly state 14 days from date of service how on earth could a DJ ignore that peice of statute law ?

[gh2008]

Costa, I think today, you need to take stock, seek advice in the places recommended to you (& any others you can find) and investigate getting the transcript.

 

With the latter your argument can be far more accurately formulated - it will also confirm as to whether the DJ was wrong and and what grounds that may be.

 

I think it will depend heavily on how the DJ concluded the case.

 

As to whether you will get the transcript in time ....... see if you can get the judgement ASAP.

 

As many of you reading this will know - this could be a ground breaking appeal for *many* Caggers - it could also be another nail in the coffin for those seeking to defend on the 'not having 14 days to rectify' issue. This is one of Coata's motivating factors and we all need to be careful.

 

There does not seem to be any precedent for this, the only real mention of it on the whole of the Internet is on here and on other similar sites.

 

I am now aware that this issue *has* come up before although the thread is not available any more - I *have* to say that I am disappointed that when this issue (service when posted and S176/S189) was flagged up when Costa received the WS from the other side that no mention was made of this .......

 

jmho

[gh2008]

Your application for Summary Judgement (strike out), should have succeeded, it was the action of the claimant that was premature, as he was in default of your CCA request he had no right to enforce, you already know this, I know, also, the claimant's unreasonable conduct in these proceedings, both of those arguments were absolutely strong enough to support your said application.

 

Yes, it is easy to forget that only a few months ago Costa was a couple of days away of a Strike Out application of his own. The other side complied with the Court Order just days before the hearing. As that severely weakened the SO app it was decided that it was best to vacate that hearing.

 

Costa did try to strike first and was days away from succeeding .......

 

The question is now, did the DJ misdirect himself or make an error in Law???

 

Costa cannot bring forward new evidence BUT IMHO if the DJ (as Costa remembers) asked the Claimants rep whether Goode commented on S87,S88 and service of DN and the other side replied that he didn't when quite obviously he has done and the DJ based his decision upon that then ........

 

We have to remember how powerful Goode/Halsbury's are, where there is no case law those are used as 'authoritative' guidance, which, it would seem, has not been followed in this case.

 

jmho & rambling thoughts

[Rhia]

No not rambling gh good advice. Getting the Judgement is the priority as the appeal has to address the judge's points. I too was aware this had happened to other CAGers but read so many threads just couldn't remember where.

[costa12]

I have requested the appropriate forms from the local CC to get the transcript of the hearing. How long this will take I do not know! Just read up on the Appeal procedure and at present when I submit my N161 I will also be asking for 'permission to appeal'. At this present time a transcript is not generally needed on applications for permission to appeal, but may become necessary if permission is granted.

 

The judgment I received from the CC was just that defence was struck out, summary judgment entered and you are to pay £XXXXX + costs! So no great detail there.

 

I will try and contact certain people today (if time at work allows).

 

Costa

[costa12]

From my scibbled notes (because the DJ was reading out his summing up/judgment at a fair lick) he mentioned 'their' reference to a s76 Notice from Goode and when that notice is served (in Goode it mentions s176 because I have a copy of the reference which they were kind enough to give me before the hearing). The DJ then went on to say (from my notes) that he was surprised that there were no references to Default Notices in Goode, especially as the CCA 1974 is 36 years old.

 

I wouldn't know if there was a reference or not because I am not fortunate enough to own a copy of Goode. The 'otherside' obviously had a copy but they 'kept schtum' about any references. Well he's not going to shoot himself in the foot.

[Rhia]

Have you tried your local library? I know they can order books from other libraries for you. Or if you know anyone who is a university student they may be able to access their libraries. Bit of a long shot.

[manchestman]

Hi Costa

Sorry to sound absolutely dumb, but are we after a book called 'Commercial law' by RM Goode?