Me v Tesco/Incasso - Appeal in process

[gh2008]

Right, might be getting somewhere now

http://www.courtsni.gov.uk/NR/rdonlyres/EA6AF260-0C66-443D-A92F-C5096088F10C/0/j_j_weaf4023.htm

 

and

http://www.berr.gov.uk/files/file42400.pdf

[citizenB]

IMHO, the Judge is wrong.. For instance.. what if a company issues a DN on a Saturday or Sunday.. and they do.. cos the dates bear this out on occasion.. the debtor automatically loses 24 / 48 hours because it cannot go into the post until the Monday.

 

gh, in the first link they are allowing only one day for 1st class post ?

[gh2008]

by first class post on 9 March 2001 might have been delivered in the ordinary course of post on 10 March 2001,

 

but they are saying S7 of the Interpretation Act applies

 

However the Interpretation Act 1978 extends to Northern Ireland and section 7 applies to the Consumer Credit Act 1974

 

problem in that case was they were trying to argue 6 days for posting!! I think that is a little OTT lol

 

It is the PD rather than teh Interpretation Act itself which clarifies the timescales

Edited October 4, 2010 by gh2008

[citizenB]

Sorry, gh.. speed reading.. not a good thing when you are tired:!:

[gh2008]

Sorry, gh.. speed reading.. not a good thing when you are tired:!:

 

Tell me about it but I always much rather people question advice/info than blindly follow it.

[middenmess]

So in this case the DJ said that the 'clock starts ticking' from when the DN was put in the post, not when the DN was received.

 

What did the Judge mean by 'put in post'

 

Did the clock start ticking....

 

When it was printed off and placed in an envelope ready for collection by UK Mail?

 

When it was collected by UK Mail?

 

When UK Mail delivered it to Royal Mail?

 

Unless a receipt for 'Proof Of Posting' was obtained then what proof has the creditor that the D/N ever actually entered the postal system at all?

 

If this ruling is even considered then all those being pursued for debt could just as well argue that they sent cash in the post and that the creditor must have received it as it was definitely posted to them!

[manchestman]

This just seems total madness and is completely contrary to the ideals and construction of the CCA.

 

... So, a few years ago you borrowed £5,000 from a financial institution who told you the APR is only 4%. Suddenly they start charging 27% APR and you complain. They don't answer your letters, so the only option appears to be to withhold your payments till it's sorted.

You request a copy of the agreement to check out what it said, only they send a reconstituted one which is useless to you, but yet they have legally complied. Now they default you, mark your credit file for you as a bad debtor. They harass and threaten you. They set DCA on to you and still ignore your letters. They eventually send you a Default Notice that when you receive it is dated 12 days previously. You complain. They take you to court. Someone swears blind it was posted 12 days previous to you receiving it (even though you know it's an impossibility) and the judge says "Well that's ok, then, case to the claimant".

 

What protection do we actually have?

 

I have a genuinely invalid default notice (IMHO) issued by Sainsburys and dated 3rd April, 2010. I kept it in the safe and I regarded it as pure gold. For anyone interested, the 3rd April was a Saturday! Not only was it a Saturday (and I don't for one minute believe they post out on Saturdays) but it was flamin' Easter Saturday too! I don't believe it even entered the Royalmail chain until at least Tuesday, 6th April.

However, if it ever gets to court and a Sainsburys stalwart swears "Sir, I know it was dated Easter Saturday, but I did pop it into the post box all the same, so the defendant can't really complain about it not arriving till Saturday 10th April - after all, it's not my fault it all happened slap bang in the middle of the longest bank holiday weekend of the year, so Sir, I put it to you that Easter Saturday is when the defendant's 14 clear days should be calculated from ...!"

[costa12]

I agree with all your arguments. All I want to know is.......how can I Appeal? What is the procedure? And, here's the $64,000 question, what evidence can I base my Appeal on?

 

Costa

[brooooooooooce]

Subbing. If an allowance for service isn't required why does virtually every DN (apart from mine and a lot of others with HSBC) include one? O the 6 DN's I've had to date all bar HSBC have included several days on top of the required 14, presumably to allow for service. They clearly believe it is required, otherwise why not just make it 14 days from the date of the letter.

 

How many first class post bank letters have you received the day after allegedly posting? Not many I'd bet. Mine all seem to arrive 5-7 days after the date on the letter. That would give barely a week to rectify.

[gh2008]

I agree with all your arguments. All I want to know is.......how can I Appeal? What is the procedure? And, here's the $64,000 question, what evidence can I base my Appeal on?

 

Costa

 

I did ask the Site Team to help with that EXACT question, however we still don't seem to have got any closer to answering it.

 

I'll have a dig around for you.

PMs and emails are being sent ....

[costa12]

Cheers GH. I've downloaded the N161 and EX340. So I've got the form and the leaflet on how to complete the N161. The fee is £120 and the Appeal will be to a Circuit Judge in the County Court. N161 seems pretty straight forward. Only sticking point is what to put as the evidence (which we already know:madgrin:). I must file and serve the N161 and supporting evidence by 13th October at the latest (21 days after Judgment). So we have some time to play with.

 

Costa

[gh2008]

I *think* you will need the transcript as well. You have to pay for it to be transcribed. You may just need the 'bit at the end' where the DJ sums up and gives judgment

[gh2008]

Could this thread be moved to Legal Issues and the title changed to indicate the current situation i.e. something like ' Lost .... Appeal??' added to the end

Ta

[costa12]

Just checked info on appealing. You are correct GH a copy of the transcript must be included in the supporting bundle of documents. Cheers for the 'heads up'.

[gh2008]

I *think* you will need the transcript as well. You have to pay for it to be transcribed. You may just need the 'bit at the end' where the DJ sums up and gives judgment

 

You are definitely going to need the transcript of the summing up and judgment. You need to know *exactly* the reasoning behind the decision as that is what you are appealing against.

 

You will have to show that the DJ made a mistake in Law.

The 2 documents I posted earlier both say that the Interpretation Act DOES apply to documents sent under the Consumer Credit Act, it would be useful to check out Goode to see what he has to say on the matter.

 

Can you get to the British Library? Have you got access to a friendly solicitor or barrister? might even be worth approaching them and asking how much to answer that question i.e. what has Goode got to say about teh service of DNs

 

sorry clutching at straws - you are going to be saying that the DJ made a 'mistake in Law. and as LiP that is quite difficult to prove

[DonkeyB]

Subbing

[gh2008]

Subbing

 

Thanks

amended POC http://www.consumeractiongroup.co.uk/forum/showthread.php?238913-Me-v-Tesco-Incasso&p=2842224&viewfull=1#post2842224

 

amended defence http://www.consumeractiongroup.co.uk/forum/showthread.php?238913-Me-v-Tesco-Incasso&p=2855908&viewfull=1#post2855908

 

WS for 1st SJ app by Costa hearing http://www.consumeractiongroup.co.uk/forum/showthread.php?238913-Me-v-Tesco-Incasso&p=2899854&viewfull=1#post2899854

 

didn't happen because of this http://www.consumeractiongroup.co.uk/forum/showthread.php?238913-Me-v-Tesco-Incasso&p=2907191&viewfull=1#post2907191

 

allocated to Multi-Track and then app for defence struck out http://www.consumeractiongroup.co.uk/forum/showthread.php?238913-Me-v-Tesco-Incasso&p=3000289&viewfull=1#post3000289

 

1st hearing missed teh warning signs http://www.consumeractiongroup.co.uk/forum/showthread.php?238913-Me-v-Tesco-Incasso&p=3085848&viewfull=1#post3085848

 

http://www.consumeractiongroup.co.uk/forum/showthread.php?238913-Me-v-Tesco-Incasso&p=3135125&viewfull=1#post3135125

http://www.consumeractiongroup.co.uk/forum/showthread.php?238913-Me-v-Tesco-Incasso&p=3137640&viewfull=1#post3137640

 

notes from SJ hearing http://www.consumeractiongroup.co.uk/forum/showthread.php?238913-Me-v-Tesco-Incasso&p=3150860&viewfull=1#post3150860

[Sagittarius]

s176 service of documents states service may be by "an appropriate method". s189 defines "an appropriate method" as being by post or by electonic transmission.

 

S176A which deals with electronic transmission under the Act, states at subsection 2 that "A document transmitted in accordance with subsection (1) shall, unless the contrary is proved, be treated for the purposes of this Act, except section 69, as having been delivered on the working day immediately following the day on which it is transmitted.

 

s176A defines electronic transmission delivery timescales, Date of service for delivery by post is not defined in the Act - so s7 of the Interpretation Act 1978 applies for docs by post - as per Sir Roy Goode quoted in a previous post.

[gh2008]

s176A defines electronic transmission delivery timescales, Date of service for delivery by post is not defined in the Act - so s7 of the Interpretation Act 1978 applies for docs by post - as per Sir Roy Goode quoted in a previous post.

 

Have you got an exact reference for that quote? We cannot even be sure it is from Goode as it is a typical CAG quote - with a attribute rather than a reference.

Not knocking CAG - far from it, but just quoting a bit of text and attributing it rather than referencing it won't stand up.

 

Especially as the Counsel for the other side said that Goode DID NOT comment on service of DNs .....

[Sagittarius]

S176 defines the method for Service, it does not define Date of Service. Date of Service depends on the method used for service e.g fax, post, email as per s176A of the Act, and the Interpretation Act.

 

If a fax is transmitted to a number at a different location, clearly it will arrive quicker than a letter which has to go through delivery depots, and the postal system.

[gh2008]

@Costa - was any mention made of the PPI being *still* included in the agreement & prescribed terms when it was infact cancelled. What about the fact that the PPI repayment that was made was not refunded but credited to the account therefore changing the prescribed terms and making teh APR TCC etc all wrong

[gh2008]

S176 defines the method for Service, it does not define Date of Service. Date of Service depends on the method used for service e.g fax, post, email as per s176A of the Act, and the Interpretation Act.

 

If a fax is transmitted to a number at a different location, clearly it will arrive quicker than a letter which has to go through delivery depots, and the postal system.

 

 

Ok, let's be very clear here.

 

The DJ ruled that the Interpretation Act DOES NOT APPLY TO SERVICE OF DNs

 

That is the issue.

If it did apply then the DJ agreed that the DN was in effective and Costa would be a happy chap

The other side argued it DID NOT apply and they won

 

We need PROPER EVIDENCE that teh Interpretation Act DOES apply to service of DNs

[Sagittarius]

s176A is straight from the Consumer Credit Act. The quote from professor Goode regarding the Interpretation Act was made in a previous post - I think by Angry Cat. It is actually given in Consumer Credit Legislation, edited by Sir Roy Goode (published by Butterworths)

[Sagittarius]

The primary issue is whether s176 defines Date of Service as occuring the moment a letter is sent. It clearly doesn't. s176 states a documment may be served by an appropriate method.

 

Date of service depends therefore on the method used for service e.g. first class , second class post, fax, email etc. . Date of Service i.e. date of delivery is defined in s176A for electronic transmission as occuring on the next working day. Date of Service for post is not defined in s176 or s189 - so the Interpretation Act appliens which does defined the time at which service is effected.

[gh2008]

It is actually given in Consumer Credit Legislation, edited by Sir Roy Goode (published by Butterworths)

 

Where you say "It is actually given in Consumer Credit Legislation, edited by Sir Roy Goode" is that because you know it, or have been led to believe it.

 

I'm not having a go, but yes, we have a quote attributed to Goode which, if proven, will be *very* helpful

 

Just stating something without proof is what the last few pages are full of and is of little help to Costa.

 

Standing up in Court and saying cos Sagittarius said it was by Sir Roy Goode will not convince the Court

 

The primary issue is whether s176 defines Date of Service as occuring the moment a letter is sent. It clearly doesn't. s176 states a documment may be served by an appropriate method.

 

Date of service depends therefore on the method used for service e.g. first class , second class post, fax, email etc. . Date of Service i.e. date of delivery is defined in s176A for electronic transmission as occuring on the next working day. Date of Service for post is not defined in s176 or s189 - so the Interpretation Act appliens which does defined the time at which service is effected.

 

Yep, that was the *EXACT* argument used by Costa - it failed .....