Phoenix Recoveries vs D Kotecha - Court of Appeal

[Drowning but not sunk...]

Should this be a "sticky" to help others? Or reference to full case?

[coledog]

It is going into Elsa's planned blog

 

http://www.consumeractiongroup.co.uk/forum/showthread.php?288755-New-Legal-Action-Blog-suggestions-for-posts-for-inclusion

 

I am not getting involved in the Sticky argument again!

[Undercover-Elsa]

Yep, it's as sticky as Sticky the stick insect on an extremely sticky stick...

[nometer]

Subbing

[Sand-Dancer0191]

pt2357 re:- post 3 what are we looking for here

[pt2537]

i am bound by confidentiality, as the judgment is draft, and therefore cannot be divulged.

 

it should not be long til the judgment is with us

 

but sadly, im not risking contempt of court for no one

[Sand-Dancer0191]

"im not risking contempt of court for no one"

Sorry I didn't mean it that way....more of a pointer when its avail.

poss even a sticky

[pt2537]

sorry, it came out slightly different than it was intended.

 

The judgment should be available soon, i know the outcome as i have it here, but i cant produce it as its not formally handed down.

 

When it is, i will post it here

[DemandFairness]

sorry, it came out slightly different than it was intended.

 

The judgment should be available soon, i know the outcome as i have it here, but i cant produce it as its not formally handed down.

 

When it is, i will post it here

 

Thanks PT

 

Are we talking days or month before it is formally handed down?

 

DemandFairness

[Peterbard]

Hi

 

Excellent

 

This really is a confirmation of Carey though isn't it, in that the content of the request must be accurate,even if the form is not, this has been shown in previous cases i think.

 

What would happen if the creditor re filed after correcting the request with the corrected info?

 

Crey was clear that the unenforceablity would only last as long as the request was in error.

 

Peter

[pt2537]

Hello Peter

 

Well, this is an interesting point and one which the Lords discussed.

 

There is Johnson vs Gorewood to consider on the issue estoppal point first, and then, given this matter had been to trial, how many bites of the cherry can be taken.

 

In addition, LJ Ward did raise the point that if they cant even recon an accurate copy, then how can the court be satisfied that the agreement itself was ever compliant. An interesting point that too.

[Sand-Dancer0191]

Magic...this is getting better. Can't wait for the post

[Undercover-Elsa]

Very interesting point! For instance I was sent a recon which mentioned Acts which hadn't come into force when the card was taken out.

Should it ever go to court, it struck me that the minute they realised this they could theoretically just supply another with that sentence missing.

However, if one was to...

a) ask for confirmation under CPUTR 2008 that their response to the CCA request was an exact recon of the agreement and

b) ask the same question under CPR 31.18 once procedings commenced

 

.....then wouldn't this pre-empt any last minute creativity?

 

Elsa x

Edited January 29, 2011 by Undercover-Elsa

[Bazooka Boo]

I'm missing out on all the good stuff....AGAIN!!!! This is good news..

[PriorityOne]

Very interesting point! For instance I was sent a recon which mentioned Acts which hadn't come into force when the card was taken out.

Should it ever go to court, it struck me that the minute they realised this they could theoretically just supply another with that sentence missing.

However, if one was to...

a) ask for confirmation under CPUTR 2008 that their response to the CCA request was an exact recon of the agreement and

b) ask the same question under CPR 31.18 once procedings commenced

 

.....then wouldn't this pre-empt any last minute creativity?

 

Elsa x

 

Better still.... ask under CPUTR wether they have a properly executed, original Agreement at all.

[oilyrag]

I am a little surprised at the direction this thread is taking. NONE of us actually know what is in the judgement at this moment in time, even those in court at the hearing, so all of this over-dissection is totally irrelevant until such times as the full judgement is available.

 

At this rate the "experts" who have suddenly appeared again will have talked out any benefits that it may hold for the consumer befrore we even know what is in it, exactly like Carey and the banks have been bashing us with the cudgeles handed out on here ever since. get a grip please people!

 

regards

oilyrag.

[NewToTheFight]

Folowing the argument Peter presents in #35

I applied for a S77 copy

The OC presented 2 variations

Proceedings were issued & a 31.14 request made

A different copy agreement was presented & sworn to be true in court

Unfortunatley for them the interest rates shown matched but the balance transfer period did not (in fact I believe the T & C were different)

 

The balance period defect shows it cannot be the correct application form therefore the documents presented & sworn in court are in valid.

What ramifications are there for a firm of solicitors presenting evidence & swearing it to be true when it blatantly is not?

If a private individual did this would it not be perjury?

 

Any thoughts PT / others?

[dadofholly]

Folowing the argument Peter presents in #35

I applied for a S77 copy

The OC presented 2 variations

Proceedings were issued & a 31.14 request made

A different copy agreement was presented & sworn to be true in court

Unfortunatley for them the interest rates shown matched but the balance transfer period did not (in fact I believe the T & C were different)

 

The balance period defect shows it cannot be the correct application form therefore the documents presented & sworn in court are in valid.

What ramifications are there for a firm of solicitors presenting evidence & swearing it to be true when it blatantly is not?

If a private individual did this would it not be perjury?

 

Any thoughts PT / others?

 

The same rules apply. BUT you may have to need to actually make a complaint to the relevant authorities.

[pt2537]

minor errors arent relevant, this is the problem,

[NewToTheFight]

Thanks for the comments, it appears to be different rules depending on the depth of pockets.

If the rule of law says a true & accurate recon must be provided how can a recon not be true & accurate?

Once this has been pointed out the swearing in court then surely makes a difference.

Deminimus is not applicable if the law says you will do something

just my 2p worth...

[pt2537]

no

the problem is the law doesnt say it has to be an "exact" copy, it must per the act be a "true" copy

 

The issue is with the substance of the document not the form, and the Carey decision did allow for minor slips providing the statutory content was correct. It must also be remembered that the statutory breach can be remedied

[cymruambyth]

Thank you for posting this, can I clarify, if I am going to court in the next couple of weeks and have a short application form and different t&cs and no APR is listed anywhere. Can I print off a copy of this to take to court and do I need a new ws to include this.

Thank you

 

can someone please clarify if I am on the right line with? Thank you

[oilyrag]

unfortunately pt, 108 and 234 of Carey by Waksman actaully say "original" not copy, not reconstittion, not true copy or any type of forgery, only original. That is plain clear English or has the Oxford English Dictionary definition of original changed?

 

Dictionary definition is:- Existant from the first, primitive, innate, that which has served as a pattern, not derived or dependent, not imitive. No amount of legalese changes that or Wakman's determinations.

 

regards

oilyrag.

[NewToTheFight]

PT, I understand what you mean by form & substance

However to make a recon a creditor (or firm of solicitors, as in this case) could look in their bank of documents, find a set of terms they think fits.

A quick dig into archive finds the interest rates to be similar to early statements, so off they go to court.

 

Surely proof that the documents are different is enough to prevent compliance with the s77 request, therefore judgement cannot be given.

The fact they would cry mistake helps to refute the integrity of their submissions.

whilst I see that to win a balance of probabilities argument it is best to have several heads of claim which can all be refuted, each point must stand on it's own

 

An Lip is rarely allowed to make a mistake, how is it professionals of large law firms are allowed to make any, especially when they are the claimant

 

Rant over (almost )

[pt2537]

unfortunately pt, 108 and 234 of Carey by Waksman actaully say "original" not copy, not reconstittion, not true copy or any type of forgery, only original. That is plain clear English or has the Oxford English Dictionary definition of original changed?

 

Dictionary definition is:- Existant from the first, primitive, innate, that which has served as a pattern, not derived or dependent, not imitive. No amount of legalese changes that or Wakman's determinations.

 

regards

oilyrag.

 

But, the problem is,

 

The Court of Appeal, which overrides Waksman, said it doesnt need to be the original but for s78 purposes, it merely need to be a true copy as defined within the masses of case law