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elcome for illegal repo in contravention of section 92 and unfair relationship ** WON **

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Does anybody know if the increase in LiP costs that came into force on 1st October 2011 are retrospective???


“First they ignore you, then they laugh at you, then they fight you, then you win.” - Ghandi

"You must have the resources to deal with the judicial intervention - the confidence not to be overawed, the resilience to respond, the tenacity to challenge, the tact to mollify, the authority to inform and persuade."

 

Strength does not come from winning. Your struggles develop your strengths. When you go through hardships and decide not to surrender, that is strength.

 

<-- If I have helped in any way please click my star!! ;)

Oh and I am a lady!! :)

 

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Hmmm, can you provide a summary of what it means?

 

I thought when you go to appeal they sort it out there and then and don't just tell you to go back to the county court? If that is the case, when are you going abck to the countycourt and will it be wit the original judge?

 

Basically, in a nutshell, the Lord Justice said the original judgment was wrong and it should be sent back to County Court for them to 'think again'.

 

Actually, I believe he took that course of action to allow for an out of court settlement to see an end to the matter. Unfortunately, such an agreement was not forthcoming so we will be going back to court in January for a District Judge to make the final decision.


“First they ignore you, then they laugh at you, then they fight you, then you win.” - Ghandi

"You must have the resources to deal with the judicial intervention - the confidence not to be overawed, the resilience to respond, the tenacity to challenge, the tact to mollify, the authority to inform and persuade."

 

Strength does not come from winning. Your struggles develop your strengths. When you go through hardships and decide not to surrender, that is strength.

 

<-- If I have helped in any way please click my star!! ;)

Oh and I am a lady!! :)

 

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In a nutshell IMHO, it will serve as a lesson to all would be alleged corrupt companies and the alleged unscrupulous cronies they employ to allegedly manipulate the law to serve them selves.

 

COSTS-COSTS-COSTS

 

The biggest lessons these particular special category of alleged professionals should have learned is:

 

1. Never take on people who have nothing to lose.

2. Never judge a book by its cover

3. Never underestimate. Hell have no fury

4. What goes around comes around

 

COSTS-COSTS-COSTS

 

Can you Imagine how embarrassing it must be for these alleged so called professionals, to LOSE in the HIGH COURT of JUSTICE to a lowly LIP and not just that but a council estate dwelling girl with no formal training.

 

OMG How Embarrassing....:whip: I bet that will be at the top of their CV

 

COSTS-COSTS-COSTS

 

I'm off to bake some bread for my bacon sandwich.

 

Did I mention COSTS...........................................................


Motor bikes are very dangerous... :bump2:

 

Think once, Think twice, Think Bike :welcome:

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Having taken on a police force, aided by a Local Authority Legal department, who have a combined annual turn over in excess of £600m; along with 2 advocates and won I know exactly how good it feels for the village idiot to beat them. It isn't about how much they cost or how good they think they are, it is about the muppets instructing them.Congratulations, to you and also your family and friends, who helped and supported. You could always work out how much they have spent in round figures to defend this and ask their MD if this was the best way of spending his share holders money? I'm bitter and twisted an excellent combination !I look forward to the final chapter in January, enjoy the bread

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Well done for getting this far, and "going public". Do I have this correct? Originally you were ordered to pay them nearly £12,000 for their counterclaim and costs? Strewth, no wonder you appealed.

Going forward the only ground to be reconsidered by the County Court is the commission point? I am not clear why the other points aren't referred back. Also what part of this is now precedent, again I am not clear on this.

 

Is the fact the commission point is referred back to the County Court an indication to the County Court that they should find in your favour, i.e. is it a large hint to them?

 

When will this be finished? Feels like it didn't take Michaelangelo this long to paint the ceiling.

 

Ok, I know it looks very complicated-and it is!

I'll do my bestest to summarise :-)

 

Firstly, it was absolutely nothing to do with the money. I appealed because the trial judgment was blatantly wrong. When my appeal was heard an incredibly, incredibly senior High Court Judge agreed with me that the first judgment was very wrong and so he set aside the whole thing.

 

When a case goes before a Judge in High Court or higher the judgment becomes precedent and binding on all similar cases. So now every word that Lord Justice Beatson said can be relied on in any future case in which any of the issues dealt with in my case arise again.

 

For example: Say for instance somebody were to make a claim that a company had paid a secret commission to a broker at the inception of a regulated agreement and had the underwriting sheet to corroborate their claim. That person would now have the option to make a claim for Unfair Relationship according to S.140 of the CCA.

 

Say for instance that the company defended the claim using the argument of causation and attempting to use the Harrison case as relevant case law to defend their actions, the claimant would now be able use my case to substantiate their claim and discredit the defendant's defence.

 

In any case, the Harrison judgment is entirely non-applicable as that case involves the RECEIPT of secret commission by the lender whereas my case involves the PAYMENT of secret commission by the lender, it was for that reason that Hurstanger is applicable as opposed to Harrison.

Lord Justice Beatson has also made reference to the statutory, regulatory regime and the Unfair Relationship provisions stating that the trial judgment did not take these factors into account when it should have!

 

In a rather large nutshell, if a lender has paid a secret commission to a broker in exchange for the sale of their finance and PPI etc to a borrower, this is still considered a special category of fraud according to Hurstanger PLUS now it would also fall under the provisions of Unfair Relationship and Statutory Regime too :-D

 

Not to mention the bit about S.92 of the CCA!

There is now English case law that corroborates that a lender is not permitted to enter ANY premises to repossess goods WITHOUT A COURT ORDER, damages for which are akin to damages for trespass and loss. It also states that the consumer is entitled to injunctive relief, i.e. within their rights to obtain an injunction against a lender that may be threatening to trespass.

 

Just out of curiosity..I wonder how fair it would be to a debtor for an agent to refuse to allow the debtor the option to exercise their right to injunctive relief?? Hmmm.....

 

The other points aren't referred back because the outcome wouldn't have been significantly different. That doesn't mean to say that the mistakes made by the first judge weren't rectified! It is perfectly clear from this transcript that the trial judge made a grave error when giving his judgment. Lord Justice Beatson has effectively stated that a court order is needed for the repossession of goods on any premises irrespective of the amount paid on the agreement.

 

Personally, I believe that if a High Court Judge sets aside an entire judgment because it was wrong and refers it back to the County Court for them to 'think again' and do it properly this time based on his findings, I find it somewhat unlikely that a district judge will be inclined to disagree... but that's just my humble opinion as usual ;-)

 

We will be going back to County Court in January...good things come to those who wait :oops:


“First they ignore you, then they laugh at you, then they fight you, then you win.” - Ghandi

"You must have the resources to deal with the judicial intervention - the confidence not to be overawed, the resilience to respond, the tenacity to challenge, the tact to mollify, the authority to inform and persuade."

 

Strength does not come from winning. Your struggles develop your strengths. When you go through hardships and decide not to surrender, that is strength.

 

<-- If I have helped in any way please click my star!! ;)

Oh and I am a lady!! :)

 

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Awesome stuff!

 

By the way, Did the case of Spring House (Freehold) Ltd v Mount Cook Land Ltd get raised in the proceedings at all?

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Awesome stuff!

 

By the way, Did the case of Spring House (Freehold) Ltd v Mount Cook Land Ltd get raised in the proceedings at all?

Hello! No it didn't, there was never any question raised over the definition of premises at any stage. Their defence was always that they didn't step on to the premises, they just reached over from the pavement. However when we got to trial the judge took one look at the photos of the agent standing on my premises and disregarded that part of their defence anyway :-)

 

While you're here Seq, do you think I may have earned the right to have my thread title changed? :razz:


“First they ignore you, then they laugh at you, then they fight you, then you win.” - Ghandi

"You must have the resources to deal with the judicial intervention - the confidence not to be overawed, the resilience to respond, the tenacity to challenge, the tact to mollify, the authority to inform and persuade."

 

Strength does not come from winning. Your struggles develop your strengths. When you go through hardships and decide not to surrender, that is strength.

 

<-- If I have helped in any way please click my star!! ;)

Oh and I am a lady!! :)

 

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Is that OK?

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Is that OK?

That's beautiful, thank you x

I've waited so long to see that :whoo:


“First they ignore you, then they laugh at you, then they fight you, then you win.” - Ghandi

"You must have the resources to deal with the judicial intervention - the confidence not to be overawed, the resilience to respond, the tenacity to challenge, the tact to mollify, the authority to inform and persuade."

 

Strength does not come from winning. Your struggles develop your strengths. When you go through hardships and decide not to surrender, that is strength.

 

<-- If I have helped in any way please click my star!! ;)

Oh and I am a lady!! :)

 

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OH YEAH!!! I am in awe. Well done Wanna!!! You, are an Inspiration and I love you. LOL

 

MARK

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OH YEAH!!! I am in awe. Well done Wanna!!! You, are an Inspiration and I love you. LOL

 

MARK

 

Mark!! So glad to see you back! Thank you my friend, we've come a long way eh?!! x

 

And for anybody that wants it or can use it in any way, here is the proper copy of the transcript :oops:

 

Surita x

Whittington_v_Welcome_Financial_Services_Ltd_Approved_Judgment__OTM00272-1.pdf


“First they ignore you, then they laugh at you, then they fight you, then you win.” - Ghandi

"You must have the resources to deal with the judicial intervention - the confidence not to be overawed, the resilience to respond, the tenacity to challenge, the tact to mollify, the authority to inform and persuade."

 

Strength does not come from winning. Your struggles develop your strengths. When you go through hardships and decide not to surrender, that is strength.

 

<-- If I have helped in any way please click my star!! ;)

Oh and I am a lady!! :)

 

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That will come in very handy - thank you very much.

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Was this the ACTUAL appeal hearing, or the PERMISSION TO APPEAL hearing?

 

It was both. The court decided to hear my permission first and then, if it was granted, hear the appeal straight after.

 

When I got to court the Lord Justice said to provide submissions as if it were one hearing. After hearing the submissions and looking at the evidence he gave permission and then took a rise to consider his judgment on the appeal. When he came back he allowed the appeal too and gave the judgment as you see it here :oops:


“First they ignore you, then they laugh at you, then they fight you, then you win.” - Ghandi

"You must have the resources to deal with the judicial intervention - the confidence not to be overawed, the resilience to respond, the tenacity to challenge, the tact to mollify, the authority to inform and persuade."

 

Strength does not come from winning. Your struggles develop your strengths. When you go through hardships and decide not to surrender, that is strength.

 

<-- If I have helped in any way please click my star!! ;)

Oh and I am a lady!! :)

 

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FAO Napoleon, permission to appeal, or the actual appeal, you have to admire this lady. She was awarded only £10 for the breach of Section 92 CCA, and got stuck with the counterclaim and costs for nealry £12,000 (whose counting).

 

On the other hand, what is actually being sent back to the County Court is only the commission point, nothing else. I am surprised the appeal judge did not deal with this there and then, he certainly could have done but chose not to, which is odd. I am not sure how this will play out given that the Harrison decision sets the precedent from the Court of Appeal.

 

As for changing the title WON (perhaps) Resolved - not quite.

 

Sorry, perhaps I didn't make myself clear! I am not stuck with any costs, the entire judgment and all associated costs were set aside because the whole trial judgment was fundamentally flawed.

I did try to explain this in post 1732

 

As far as Harrison goes, yes it is precedent for what it is but it's not applicable to my case. The precedent in my case still remains as Hurstanger, in the Harrison case the lender RECEIVED a commission which is no way what I alleged welcome did and not remotely what they admitted at trial and appeal. Welcome, just like Hurstanger, PAID a commission which is still categorised as a special type of fraud according to the relevant case law.

 

If it were the case that Harrison and Hurstanger were comparable then surely Hurstanger would have been argued by the Harrisons??

 

I would never even begin to question the decisions made by the UK's best academic lawyer! If you Google 'Lord Justice Jack Beatson' you will soon realise that we all pale into insignificance when compared to the accolade of this highly educated and greatly admired appeal Judge. If Sir Jack Beatson says it is so then it is so!!

I do believe, but cannot state as fact, that it may have been Sir Beatson's intention that the other side make an offer to settle having lost the appeal and it centred around a relatively small amount of money. Even afterwards I gave them the opportunity to call it quits and walk away, all I ever wanted was justice - and I got it, but unfortunately the decision was made on behalf welcome, (who incidentally weren't present at the hearing), to decline my offer!

 

The damage is done; the case law is approved and can now be used by anyone. Personally I am extremely happy with the way this has turned out! There are a lot of people out there with commission sheets from welcome...

 

I'm not going to repeat myself, the issues surrounding Section 92 are dealt with in the judgment and they include trespass and injunctive relief, this can now be applied to any other case of breach of S.92

Not to forget the Unfair Relationships provisions....

The judgment makes it clear that the case is remitted in order for a district judge to make a ruling on UR based on the findings of the High Court, I have no doubt that the DJ will read the entire transcript and decide what is classed as fair and what is not.

 

I honestly and truly do not give a monkeys about the money, if I have to pay I will pay, if they have to pay I will make a donation to CAG and invest in my children's future, simples.


“First they ignore you, then they laugh at you, then they fight you, then you win.” - Ghandi

"You must have the resources to deal with the judicial intervention - the confidence not to be overawed, the resilience to respond, the tenacity to challenge, the tact to mollify, the authority to inform and persuade."

 

Strength does not come from winning. Your struggles develop your strengths. When you go through hardships and decide not to surrender, that is strength.

 

<-- If I have helped in any way please click my star!! ;)

Oh and I am a lady!! :)

 

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An interesting topic of discussion would be whether or not Hurstanger is still good law... I have found two recent examples (Sealey & Winfield v loans.co.uk, and Flanagan v Nemo) which were both cases where the lender paid an undisclosed commission to the broker, but where the judge DIDN'T follow Hurstanger even though the facts were essentially the same, and even though Hurstanger was a High Court judgment - and should have been binding - in both cases the County Court Judge found reasons not to follow Hurstanger.Be interesting to get PT's take on this... is he still around?

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An interesting topic of discussion would be whether or not Hurstanger is still good law... I have found two recent examples (Sealey & Winfield v loans.co.uk, and Flanagan v Nemo) which were both cases where the lender paid an undisclosed commission to the broker, but where the judge DIDN'T follow Hurstanger even though the facts were essentially the same, and even though Hurstanger was a High Court judgment - and should have been binding - in both cases the County Court Judge found reasons not to follow Hurstanger.Be interesting to get PT's take on this... is he still around?

I've had a very quick look at the cases you've mentioned and I believe they are very different to ours; in both of those cases the borrowers were informed that a commission would be paid, it was just the amount that was undisclosed. I'm not really sure what you mean by 'good law'? My case was on 11th July 2011 and it was still relevant then.

 

It is such a complicated issue it's almost impossible to explain! Summarily, I never claimed there was any sort of fiduciary relationship between anybody and if you don't claim something then it follows that there needn't be a defence to it. My claim was simply for Unfair Relationship on this issue, was the relationship unfair to the debtor based on the fact that the lender paid a secret commission, considering that Hurstanger states that if it is a secret then it is classed as fraud & bribery??


“First they ignore you, then they laugh at you, then they fight you, then you win.” - Ghandi

"You must have the resources to deal with the judicial intervention - the confidence not to be overawed, the resilience to respond, the tenacity to challenge, the tact to mollify, the authority to inform and persuade."

 

Strength does not come from winning. Your struggles develop your strengths. When you go through hardships and decide not to surrender, that is strength.

 

<-- If I have helped in any way please click my star!! ;)

Oh and I am a lady!! :)

 

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I didn't say it had been repealed - I just wondered why it wasn't being followed, and why judges were making efforts to distinguish it rather than follow it.

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Can we start a thread where we can just discuss case law? It is a fascinating topic, especially for a law student like me.

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Best place to start a topic on ths subject would be the legal forums.

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you are correct - but it has never been overturned - and the other cases you have quoted are different to Hurstanger. Hurstanger is about secret, undeclared, commissions paid to brokers.

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I didn't say it had been repealed - I just wondered why it wasn't being followed, and why judges were making efforts to distinguish it rather than follow it.

Unfortunately it is incredibly difficult to get a judgment in the debtor's favour these days, even when the facts are the facts and the law is the law there still appears to always be some reason to find in favour of the creditor. Sadly, I believe that there have been too many cases of people trying to exploit alleged 'loopholes' in the law to suit themselves as opposed to it being about fighting for our consumer rights. Then we all get tarred with same brush... :|

 

In my case the trial judge allowed the creditor to rely on a defence completely opposite to the one they had pleaded and submitted and spring it on me with no prior warning on the day of the trial! Shockingly, it took a trip to High Court to sit in front of a Lord Justice before it was put right. I know a lot of people wouldn't have gone that far but I felt I had no choice, I couldn't sit back and accept injustice twice!!

 

The same tactic was attempted at appeal but this time the Judge took issue with the fact that they had only submitted their case law to him just before the hearing even though they had sent their skeleton argument hours before; when he realised that they had only given me their skeleton in the waiting room outside court- well...... :-x !!!!!

 

It's like a completely different set of rules for us mere mortals :-(


“First they ignore you, then they laugh at you, then they fight you, then you win.” - Ghandi

"You must have the resources to deal with the judicial intervention - the confidence not to be overawed, the resilience to respond, the tenacity to challenge, the tact to mollify, the authority to inform and persuade."

 

Strength does not come from winning. Your struggles develop your strengths. When you go through hardships and decide not to surrender, that is strength.

 

<-- If I have helped in any way please click my star!! ;)

Oh and I am a lady!! :)

 

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Small point, but you cannot repeal case law. You repeal legislation.

 

Case law gets overruled, or distinguished, as in the case of Hurstanger apparently into oblivion. Presumably the courts don't like it.

 

Still its only terminology.

 

Perhaps you'd like to let us all know how you, presumably as an average consumer, come across all this information?

 

I get the feeling I'm talking to myself here, (hmmm....that feels dangerously familiar!), paragraph 34 of the HIGH COURT JUDGMENT of 11th July 2011 posted above very clearly mentions Hurstanger and relies on it as relevant. I can't see how it can possibly be construed as overruled or distinguished or in oblivion??

 

Please feel free to ignore anything I say or at least the bits you don't like, it's barely distinguishable from what I've been dealing with for the past 2 years in any case :welcome:


“First they ignore you, then they laugh at you, then they fight you, then you win.” - Ghandi

"You must have the resources to deal with the judicial intervention - the confidence not to be overawed, the resilience to respond, the tenacity to challenge, the tact to mollify, the authority to inform and persuade."

 

Strength does not come from winning. Your struggles develop your strengths. When you go through hardships and decide not to surrender, that is strength.

 

<-- If I have helped in any way please click my star!! ;)

Oh and I am a lady!! :)

 

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I'll say this though, I have to admire your tenacity. This has been going on for... How long? And the twists and turns in the thread are like a John Grisham novel LOL! Looking forward th the ending!

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