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    • I feel that people are focusing too much on the OPs property being a council house and putting responsibility on the council to resolve this.   imagine for a moment that the OPs house is privately owned, now what powers would they have to take action on the trees? Pretty much none without taking the tree owner to court right. Well as the trees are privately owned, that is the same power that the council have right now.   the information with the £375 will be inline with high hedges legislation as this will be the only power the council will have and it is common for there to be a charge for this.   this is not a social housing issue, but a neighbor dispute with a private homeowner.   i used to work as a tree officer for a local authority and from experience have seen that people’s idea of dangerous and what is actually dangerous are two different issues. A councils power to enforce tree works are also limited and will usually only be where a private tree poses a risk to the highway, not to another property as that is a civil matter (even where the council own the 2nd property).    With regards to risk to underground pipes, this is something you will be unlikely to successfully argue as various studies have found that unless a tree is planted on top of the pipe and crush it, the roots will not cause damage, but rather only enter through already damaged areas as they are opportunistic, any tree roots in drains are usually a secondary issue where a pipe had existing damage and to resolve it will require a permanent repair to the pipe to prevent recurrence.   the only options i see here are to calculate the height allowed under high hedges legislation (it varies depending on what direction the property faces , the location of hedges etc) and try to enforce that which will involve the fee. Otherwise there is little you can do as the private homeowner has a right to have trees in their garden although they may be liable if they were to cause damage to your property (such as a shed) or the councils property in the future.
    • Served on 16 Feb.   On reviewing the MCOL website today for an updated, I noticed that 1) Hermes has aknowledged the claim, but not yet filed a defence, and 2) that I there was a glitch / error on the form. Essentially, it looks like I had accidentally left the "I will send detailed particulars of claim" box ticke (I thought I had unticked it), with the result that the claim section has been truncated, and some extra text has automatcially been added - in red below):   "...Claimant seeks £XXX, plus I will provide the defendant with separate detailed particulars within 14 days after service of the claim form. The claimant claims interest under section 69 of the County Courts Act 1984 at the rate of..."   This is obviously not ideal. Is it better to try to amend the claim somehow, or to just submit a brief POC that a) clarifies that I am seeking £XXX plus costs (which was automatically truncated), and b) sets out my calculation of the £XXX?  
    • Hi   It amazes me how they pass the buck as they don't want to deal with a private homeowner but if the shoe was on the other foot they would be hammering down on you for breach of tenancy.   As this is council housing you need to make a Formal Complaint in writing to the Council Housing about this (as a social housing landlord they have a complaints process they have to follow). you need to exhaust their complaints process. Make sure and title your letter Formal Complaint.   From what you have posted this tree is not just a nuisance but also a Health & Safety risk:   1. The tree being overgrown is now a danger to the occupants/Guest/Visitors to your property   2. The tree has overgrown into the Council Housings Boundaries your property causing damage/endangerment to the occupants/guest/visitors.   3. As the roots of the tree are also overgrown into your property you have concerns that these may be causing/damaging to any underground pipework that may be within the boundray of the property.   4. So far the Councils actions have been to treat their Council Housing tenant as a third class citizen with a private homeowner aloud to cause endangerment/possible damage due to these overgrown trees which are encroaching on your council house property/bounderies.   You also require clarification why you were sent the Healthy Neighbourhood Information which states I have to pay £375 to make a complaint. (make sure and attach a copy of the response that states this cost)   You also require copies of the following:   1. Complaints Policy (not the leaflet) 2. Customer Service Standard (not the leaflet) 3. Health & Safety Policy (not the leaflet) 4. Public Liability Insurance Policy. (not the leaflet) 5. Clarification from you if their is any underground pipeworks running through the bounderies within the garden area (you should have full knowledge of this it being your property/plans) 6. Compensation Policy (not the leaaflet) 7. Equality & Diversity Policy (not the leaflet)   When you get the above policies sit with a pen/pencil/highlighter and take you time reading them and just think to yourself 'DID THEY DO THAT' if not mark it then leave it for a while then do the same again this way you can basically throw/write back stating the haven't followed x policy with which part of that policy and your reason. (you are building evidence to use against them using their own policies. I would also like to refer you to The Local Government (Miscellaneous Provision) Act 1976: http://www.legislation.gov.uk/ukpga/1976/57/part/I/crossheading/dangerous-trees-and-excavations     You need to remember yes it is the Council but the Council Housing is a separate entity and is a Registered Social Landlord (RSL)   Is the Council Housing classed as a registered Charity? (what is their registration number whether charity or RSL?)   Also have a wee look at this CAG link:     
    • @rocky_sharma   Fame at last!!   Dunno how much help it would be in your case, but I could try digging out the txt of my defence if you think it might be relevant to your defence. We might hafta do this via PM, then e-mail though if ya wanna go down that route.   Good luck with yours anyway mate.
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Yeats

Importance of CPR in Appeals

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Evening to you all.

 

I would like to hear your opinion of the importance/irrelevence of broken Civil Procedure Rules and their subsequent importance at a permission to appeal/appeal hearing.

I recently had a CCJ hearing go against me and appealed the decision, culminating in a permission to appeal/appeal hearing next week. Part of my appeal is down to the fact that the other side did not follow CPR relating to costs and the trial bundle. They did not get either in to the court in time (filed on the morning of the hearing) and I subsequently lost, with the full costs awarded against me. I knew that costs must be submitted at least 24 hours before and the trial bundle at least three days, but due to the ignorance of the DJ over the DN and, well just about everything, did not challenge at the time due to shellshock.

How relevent do you think this will be at the permission to appeal hearing?

I should have thought they would be extremely important as they are Civil Procedure RULES, but thought I would post up and see if anyone has experienced different.

 

Thanks in advance,

 

yeats

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I Have Bumped Your Thread To The Mods Asking For Car Or Pt Or Foolishgirl To Help On This But Your Cpr Is Very Important And If They Are Missing Vital Information Which You Neither Received Nor Was Informed Of Then You Have The Right And Grounds For Appeal...especially If Documents Are Missing Ie Contracts Etc...


http://www.consumeractiongroup.co.uk/forum/welcome-consumer-forums/107001-how-do-i-dummies.html

 

 

 

 

Advice & opinions given by patrickq1 are personal, are not endorsed by Consumer Action Group or Bank Action Group, and are offered informally, without prejudice & without liability. Your decisions and actions are your own, and should you be in any doubt, you are advised to seek the opinion of a qualified professional

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I know it is not exactly the same thing but just imagine what would happen if mortgage companies could not find property deeds............


Hindsight is wonderful......

 

But now knowledge and advice are life savers:D

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Thanks.

 

It's not so much that anything is missing, more that the CPR have been totally ignored by firstly the other side and secondly the DJ when allowing the trial bundle and costs sheet.

I realise that I didn't object, but surely the appeal must succeed due to the ignorance/non-compliance by the other side OR the DJ? After all, I am a LIP and the CPR should protect the likes of me from this sort of hijacking.

What is the best way to argue this in court?

 

yeats

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Bumping!

 

posted @ 17.24 - 15.4.2010

Anyone?

 

posted @ 22.16 - 15.4.2010

 

Heeeeeeeeeeeeellllllppppppppp please!

Edited by citizenB
merged bumped threads from same day

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ive asked on another thread for some help

  • Haha 1

http://www.consumeractiongroup.co.uk/forum/welcome-consumer-forums/107001-how-do-i-dummies.html

 

 

 

 

Advice & opinions given by patrickq1 are personal, are not endorsed by Consumer Action Group or Bank Action Group, and are offered informally, without prejudice & without liability. Your decisions and actions are your own, and should you be in any doubt, you are advised to seek the opinion of a qualified professional

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Thanks Pat.

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OMG,

 

I thought you had said in another post that the costs estimate was late, not that the whole bundle was only provided on the day. I'm so sorry, I must have misread something.

 

You could not have been expected to defend if you only received the bundle on the day, but from what you are saying you didn't explain this to the judge?

 

I have hit the red triangle.

 

DD

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i think (IMO) that the basis of the appeal lies in the fact that, especially being a LIP you were expected to assimilate information which was only presented on the day of the hearing and to come up with counter arguments or rebuttal on the spot.

 

i dont know if you asked for an adjournement at the time but that is what i would base my appeal on- and then start work on taking their case apart

 

it sounds like its a dodgy dn situation so you need to bone up on this as much as you can

Edited by diddydicky
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Yes, you should certainly bring this up in an appeal. You were gravely prejudiced by the late delivery of their evidence, more so as you are an LiP.

 

However, this should all be taken in conjunction with arguments against what was in the evidence, ie. in the real world, you probably won't win an appeal on CPR irregularities alone. You'll also need some firm legal argument against the judgment, eg. faulty DN.

 

At an appeal hearing, the judge will look at the evidence anyway - and not just rule on CPR. If he or she thinks there is an overwhelming or unambiguous case against you, they may refuse the appeal.

 

The best bet, in my opinion, is to concentrate on the factual legal arguments, and back it up with the CPR problem which prevented you from mounting a detailed response.

 

Hopefully a proper legal bod can give us a more rounded and correct view.

  • Haha 1

“The industry is rotten to the core, whether it is in-house recovery and collection, or where agents are used, or where the debt has been sold.” Andrew Mackinley MP, House of Commons, 22 April 2009

 

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Thanks for all your input.

Sounds like it is a side issue then, more than a reason for the CCJ to be set aside.

I was hoping it would be more than that.

I can kind of see the point about the trial bundle, as I can argue against it at the appeal anyway, but thought that the costs awarded (with CPR being very clear on this) should invalidate the CCJ, as the amount on the CCJ must subsequently be wrong.

 

yeats

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I suppose the question must be what will the DJ do about it?

Can he ignore the two CPR indiscretions and back the CCJ if my other argument fails?

If so, what is the point of the CPR if they may be broken, seemingly at will?

 

yeats

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A very good question... but experience on CAG shows that the legal 'community' know just how far they can push the boundaries and usually get away with it, and sadly the judges often let them.

 

That's why, as an LiP, you've got to be really on the ball.


“The industry is rotten to the core, whether it is in-house recovery and collection, or where agents are used, or where the debt has been sold.” Andrew Mackinley MP, House of Commons, 22 April 2009

 

If a Cagger helps you, click their star. Better still, make a donation however small, so that CAG can continue to help others.

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creditors are given more slack not (as some would have you believe) because they are "in the pocket of the creditors" but more mundanely because they make allowances for the fact that creditors are dealing with thousands of cases (like the court themselves) whereas the defendant usually is only dealing with a handful at any one time and is better able to comply with deadlines etc

 

dont get too het up about it

 

if the judge can see that you have a strong defence he will allow the appeal

 

if he sees that your defence is crap and doesnt have a cat in hells chance he will, likely as not dismiss the appeal application even though they did not comply as they should

 

The judge (after the event) is more interested in not wasting any more of the court's time and will not allow the matter to go to appeal simply because the creditor was naughty - if a re run would result in the same outcome- especially (but not exclusivly) if at the time you did not make an objection/application to the judge for a postponement.

 

If as a LIp you are not happy with the way the trial is being conducted you should speak up and make your objections known Politely but firmly) - that way- if your fears/objections are unfounded the judge will correct you-and will make allowances for the fact that you are a LIP - but if not then you have it on record that you were not happy about something that the judge should have done but did not do. which in turn will make the appeal process easier

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I take your point about the re-run diddydick.

 

What would be the point ordering a re-trial when the outcome would be the same? But I think what should be done if I present a poor case is that the costs for the last hearing and the appeal should be wiped, as they should not have been allowed to be added to the CCJ total and are one of the reasons why I decided to appeal. This would constitute a part success for me, as these costs were added in the 24 hours before the hearing.

 

Do you think that could be argued if all else fails?

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if the DN was invalid (you will have to remind me of the details) then you could argue that there was no cause of action for them to claim sums that were not yet due under the agreement

 

i do not think (might need to check with someone more savvy on costs though) that the late submission of the costs will detract from their validity

 

although a court will give some leeway to a LIP during the process- the court cant put the words into your mouth so if you dont raise the objections at the time the court will take the view that you should not be in the kitchen if you cant stand the heat

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I think your strongest argument is going to be the DN.

 

Does someone here have that quote from a judge that the 14 days is non-negotiable because it is in the CCA 1974 to protect the consumer, and cannot be changed by an individual judge's discretion?

 

That would be helpful here I think.

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Also, read BRW's How to Prepare for Court single post thread. Can't remember what it's called and forgot to subscribe to it, but it's very good - all about having three copies of everything, how to keep on top of it all, and so on.

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you should base your argument around this IMO

 

 

If a default notice is prepared and delivered so as to create a situation where less than 14 days is expressed to be available for the debtor to meet the requirements of the DN, the DN is ineffective. The DN is a powerful tool in the creditor's armoury though it was created within a statutory framework designed to provide consumer protection. As such the DN must pass the requirements of section 88 Consumer Credit Act 1974.

 

The period of 14 days is an express requirement of section 88(2). Once upon a time it said not less than 7 days was required. Then in late 2006 Parliament decided 7 days was insufficient and decided that the period of time should be not less than 14 days. If in 2006 Parliament had thought that 13 days or less was required, Parliament would have said so. When Parliament fixed the period as one which 'must not be less than 14 days' that is what it meant and it is impossible to imagine in law that a DN is effective where the period is less than 14 days.

 

Wherever a DJ is leaning towards declaring a DN effective where it plainly is not, let him know (as politely and deferentially as humanly possible) that if he carries on leaning that way, you will require him to set out his reasoning as part of his judgment and that you want him to spell out his reasoning so that it forms part of the record for appeal purposes. That should sharpen him up a bit.

 

courtesy of x20

Edited by diddydicky

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Thanks Diddydick,

very useful.

The DN is invalid. It's one of those "14 days from the date of this letter" jobs. This is the permission to appeal hearing - is there another chance after this then? At the CCJ hearing, they argued (successfully to the point that the DJ told me I would be wasting the court's time if I even put forward my DN argument) that this is not a default case!

It's an Amex running credit agreement, so definitely is.

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Don't forget yeats, in an appeal its the decision of the DJ you are appealing. You need to focus on where the DJ got it wrong. Don't forget in the appeal you can only rely upon evidence the lower court had before them at the hearing of the order or judgment that is being appealed.

 

Hope this helps some

R

 

Thanks Diddydick,

very useful.

The DN is invalid. It's one of those "14 days from the date of this letter" jobs. This is the permission to appeal hearing - is there another chance after this then? At the CCJ hearing, they argued (successfully to the point that the DJ told me I would be wasting the court's time if I even put forward my DN argument) that this is not a default case!

It's an Amex running credit agreement, so definitely is.

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And as RWR explains, you'll have to appeal against his telling you that you would be wasting the Court's time if you put forward that argument which will be confirmed by the transcript.

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Good luck tomorrow ;-)


Please note that the right to reproduce any part of any post I make on this forum is restricted under copyright law and litigation privilege

 

Please see the following copyright statement

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