Importance of CPR in Appeals

[Yeats]

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

[patrickq1]

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...

[CBR600F]

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

[Yeats]

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

[Yeats]

Bumping!

 

posted @ 17.24 - 15.4.2010

Anyone?

 

posted @ 22.16 - 15.4.2010

 

Heeeeeeeeeeeeellllllppppppppp please!

Edited April 21, 2010 by citizenB
merged bumped threads from same day

[patrickq1]

ive asked on another thread for some help

[Yeats]

Thanks Pat.

[Desperate Daniella]

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

[diddydicky]

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 April 16, 2010 by diddydicky

[DonkeyB]

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.

[Yeats]

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

[Yeats]

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

[DonkeyB]

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.

[diddydicky]

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

[Yeats]

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?

[diddydicky]

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

[Desperate Daniella]

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.

[Desperate Daniella]

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.

[diddydicky]

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 April 17, 2010 by diddydicky

[Yeats]

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.

[RobinWayRobinme]

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.

[Desperate Daniella]

Well done, other DD!!

[Desperate Daniella]

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.

[Desperate Daniella]

Good luck for tomorrow, Yeats.

 

Go get 'em.

 

DD

[shakespeare62]

Good luck tomorrow ;-)