lowell joined 3 debts [2 mobile, 1 credit card]made me BK, now want my house!!

[wendyboats]

Morning every.....I wonder what this day will bring ?

 

Still waiting for update from investigations ongoing RE; S Services, i will of course post results when i know.

 

I need to go over what i need to do as i am fearful i have not completed all thats been asked of me to do !

 

I have got my one year old Granddaughter here with me so if i'm slow to respond it will be a nappy change, or play time x

 

*** Are all my threads on here from friends of CAG as some appear to contradict as to costs and outcomes ? (see Gandymere comment from thread on bottom of 15) Talk of money i need to..

???????

Edited September 12, 2013 by wendyboats

[unclebulgaria67]

Wendy

 

There is a lady at Southamton Citizens Advice who may be able to help. This is taken from the Southampton CAB site. I think you should see what local help you can obtain. Forums such as this are very good and Mould has offered some great help so far. But if you can also get help locally, I think it would be a good idea. You never know, this CAB office might have some good contacts for people who might get you out of this mess.

 

Christine Wall has been representing clients at the county court for some years now. She can offer advice on repossession/eviction issues. If you have been, or are about to be issued with one of the above, please phone 023 8022 3659 and Christine will be able to advise you of your options.

 

 

[AndyOrch]

Wendy it is important to consider other posters input to your thread.That is the ethos of the CAG

 

Post unapproved.

 

Regards

 

Andy

[citizenB]

Wendyboats, whilst I understand you are under a great deal of stress and pressure. Your comments in response to Uncle B's post were unwarranted and unacceptable. Needless to say, they have been unapproved.

 

Uncle B is a well respected member of the CAG community and only had your best interests at heart when posting the information he has.

 

I absolutely agree with him - if you can obtain local assistance from a recognised agency then that would be far better for you as you can talk face to face.

[wendyboats]

Wendy it is important to consider other posters input to your thread.That is the ethos of the CAG

 

Post unapproved.

 

Regards

 

Andy

 

Ok thanks i think i will come off forum and make some inquiries as advised and come back to this later as i am really really confused now thank you Andy as always

[AndyOrch]

Ok thanks i think i will come off forum and make some inquiries as advised and come back to this later as i am really really confused now thank you Andy as always

 

Always better to consider many options and others advice.

[unclebulgaria67]

My speciality is giving advice that people do not want to hear

 

Always a good idea to obtain a range of options when you have problems to solve . You just never know, the local CAB or your local MP may have Solicitors or Barristers in their contact books, who might be willing to assist you on a pro bono basis.

[wendyboats]

My speciality is giving advice that people do not want to hear

 

Always a good idea to obtain a range of options when you have problems to solve . You just never know, the local CAB or your local MP may have Solicitors or Barristers in their contact books, who might be willing to assist you on a pro bono basis.

 

Apologies to you sir,

 

I am open to all criticism of a constructive manner, and sometimes as a lay person, in this world of Forums, and a mere baby on protocol and alike, I guess i just want a knight in shinning Armour to come and save me!

 

And make the wicked witch of the north Disappear I will be more careful with my opinions in future and take on board the advice i don't want to hear as well as the advice i do ! wendyboats stands corrected

[The Mould]

Wow! Something has happened since my last post here.

 

Watson, take on board all and any advice being posted here. Many, many people are trying to help you with this matter, so, keep calm, be patient and please do not worry about the negative replies that you have received from the trustee, she and her legal reps are, in my opinion absolutely wrong in law, which is why you are facing the interference from S services regarding your grandson.

 

Get a proper independent professional on board with your case who has the necessary experience in these matters, I know this means more outlay on your part, but you really do need a buffer zone.

 

I , and I am certain that others here will help you all we can, as and when we can.

 

Prepare yourself for an almighty legal battle, because all innocent people are always faced with such a battle in the pursuit of justice!

 

Kind regards

 

The Mould

[wendyboats]

Finally managed to get computer safe ( i hope) and found out company who put in on here was a debt collecting agency who used the phone call to send multiple viruses to computer..Make of that what you will !

 

I phoned CAB and spoke with lady as advised....it turned out she was who i had appointment with befor i came on here and she has been as much help today as she was then.( but gave website re;( pro bono)

 

I have looked up all PRO BONO in area and its going to be a long process sending all paper work first and then wait as to deciding if they will take my case, but it has to have come via a solicitor, CAB, or my MP.

 

I can not afford to pay for one as i am of no income due to appeal of my benefits being stopped by DHSS in April as they wrongly assumed foster care allowance of £150.00 is a source of income.

 

The allowance is all i have to live on with my Grandson at moment and i am in hardship so to pay for barrister is out of question, as i already owe family member£2,000 for the bodged up appeal!

 

I am going to keep looking at PRO-BONO as advised but the ink its going to cost is money i need for us to live, so with that said as it stands the Trustee is going to get what she set out to get !

 

Regards to you all wendyboats

[wendyboats]

Wow! Something has happened since my last post here.

 

Watson, take on board all and any advice being posted here. Many, many people are trying to help you with this matter, so, keep calm, be patient and please do not worry about the negative replies that you have received from the trustee, she and her legal reps are, in my opinion absolutely wrong in law, which is why you are facing the interference from S services regarding your grandson.

 

Get a proper independent professional on board with your case who has the necessary experience in these matters, I know this means more outlay on your part, but you really do need a buffer zone.

 

I , and I am certain that others here will help you all we can, as and when we can.

 

Prepare yourself for an almighty legal battle, because all innocent people are always faced with such a battle in the pursuit of justice!

 

Kind regards

 

The Mould

 

Hope you're well,

 

Update, With the help of family and friends,We have done all that i have been advised, and spent the last few hours sending messages to law firms,Barristers, and my MP, i will wait to see if anyone of the 32 emailed in a ratio use of 60 miles of my town reply over the next few days.

 

The investigation on the other matter is still ongoing......

 

All i can do i have done, and all points of law you have kindly given.............All we can do now is. wendyboats forever grateful xx

[Ganymede]

Hi,

 

How did you decide which law firms and barristers chambers to e-mail?

 

Thanks

[The Mould]

Finally managed to get computer safe ( i hope) and found out company who put in on here was a debt collecting agency who used the phone call to send multiple viruses to computer..Make of that what you will !

 

I phoned CAB and spoke with lady as advised....it turned out she was who i had appointment with befor i came on here and she has been as much help today as she was then.( but gave website re;( pro bono)

 

I have looked up all PRO BONO in area and its going to be a long process sending all paper work first and then wait as to deciding if they will take my case, but it has to have come via a solicitor, CAB, or my MP.

 

I can not afford to pay for one as i am of no income due to appeal of my benefits being stopped by DHSS in April as they wrongly assumed foster care allowance of £150.00 is a source of income.

 

The allowance is all i have to live on with my Grandson at moment and i am in hardship so to pay for barrister is out of question, as i already owe family member£2,000 for the bodged up appeal!

 

I am going to keep looking at PRO-BONO as advised but the ink its going to cost is money i need for us to live, so with that said as it stands the Trustee is going to get what she set out to get !

 

Regards to you all wendyboats

 

No Watson, the trustee is not going to get what she is setting out to get from you!

 

Right, your were made bankrupt against a claimed debt of £1,600+. The claim made by the original creditor was never served on you, notwithstanding that original creditor knew where you were residing, which was not your usual address.

 

No valid or otherwise statutory default notice was served on you by original creditor pursuant to s.87(1) of the CCA 1974 (as amended) prior to his obtaining judgment in default against you as regards his non-served claim.

 

Further to the above, the original agreement has mis-sold ppi thereon, this means that amount claimed by Claimant is not only incorrect, but also, because he failed to serve a valid DN on you, he was not entitled to enforce the agreement for the amount claimed, this is in addition to the fact that service of such claim was never served on you.

 

The above are your grounds to appeal and seek annulment of the bankruptcy Order under s.282(1)(a) of the Insolvency Act 1986. You need to lodge your appeal with the Court of Appeal ASAP on the above grounds.

 

Further, put the trustee on notice of your appeal intentions by way of letter/fax or email to her sols and request that they advise their client to refrain from taking any action in this matter until the Court of Appeal has heard your appeal.

 

DO NOT provide the sols or the trustee with the grounds/reasons as to why you are appealing against this bankruptcy Order, save to say that their client will have an opportunity as the Respondent to such to make any representations against the same in due course pursuant to the appeal process.

 

 

More to follow Watson.

 

Kind regards

 

The Mould

[The Mould]

Watson, peruse that matters below, where an authority iscited, read and print off the full transcript of the case.

You must make an application (N244 Form) to the CourtOf Appeal for Variation of time to appeal under CPR Pt 52 r.52.6 (seebelow). You would be asking theAppeal Court to Allow you to make a late appeal under the said CPR against the Bankruptcy Order made by (stateJudge) on the (state date); This appeal is made late due to my disabilities andI respectfully ask this Court of Appeal to take into consideration that Isuffer from Multiple Sclerosis Secondary Progressive and server anxietydisorder.

Paragraph 3 of Form N244 – What Order are you asking theCourt to make and Why;

1. The Bankruptcy Order made by (state Judge) onthe (state date) to be annulled under s.282(1)(a) of the Insolvency Act 1986.

Because:

2. The claim made by the original creditor (statecreditor’s name – Capone) was never served upon the applicant (you are theapplicant/appellant);

3. The original creditor failed to serve a validstatutory default notice pursuant to s.87(1) of the Consumer Credit Act 1974(as amended), and in fact no such statutory notice was served, therefore, originalcreditor was not entitled to enforcementproceedings taken, which led the lower County Court to grant judgment indefault for the original creditor in contravention of his obligations under thesaid statute and in contravention of Art.6(1) of the European Court of HumanRights, where I was deprived of my right, as a Defendant in this matter, to afair trial and file and serve my Defence and make representations at trial tothe original creditors’ pleadings.

4. There is mis-sold ppi on the credit agreement inquestion in this matter, the same has not been taken into consideration by thelower County Court, this means that the amount claimed by the original creditoris wholly factually incorrect and I believe that the deduction of the mis-soldppi, which original creditor does not deny, means that his original claim fallsbelow £750.00, which is below the bankruptcy threshold and therefore means thatin the light of the foregoin, the bankruptcy Order made by (state judge) on the(state date) ought to be annulled under s.282(1)(a) of the Insolvency Act 1986.

Rule 52.6 Variationof time

52.6

(1) An application to vary the time limit for filing anappeal notice must be made to the appeal court.

(2) The parties may not agree to extend any date or timelimit set by—

(a) these Rules;

(b) Practice Direction 52; or

© an order of the appeal court or the lower court.

(Rule 3.1(2)(a) provides that the court may extend orshorten the time for compliance with any rule, practice direction or courtorder (even if an application for extension is made after the time forcompliance has expired).)

(Rule 3.1(2)(b) provides that the court may adjourn or bringforward a hearing.)

Consequences ofrefusal to extend time

52.6.1 If a circuit judge or a High Court judge declines toextend time for appealing against the decision of a lower court, that decisiondoes not have the same finality as a refusal of permission to appeal. Thedisappointed party may (if they obtain permission) appeal against the decisionthat time should not be extended. See Foenander v Bond Lewis & Co [2001]EWCA Civ 759; [2002] 1 W.L.R. 525.

The practical consequences of this decision need to be bornein mind by judges dealing with applications under r.52.6(1). These consequenceswere spelt out by Brooke L.J. in Foenander at para.19:

"The logic of this decision is that if a circuit judgeor a High Court judge sitting in an appeal court has the choice of disposing ofa belated and unmeritorious appeal either by refusing to extend time forappealing or by refusing permission to appeal, he/she should bear in mind thattaking the latter course will bring the appellate proceedings to an end. Theadoption of the former course, on the other hand, may entail further expenseand delay while a challenge is launched at a higher appeal court against thedecision not to extend time for appealing."

Criteria to beapplied on applications to extend time

52.6.2 On applications under r.52.6 to extend time forappealing after expiry of the time limit, it is necessary to have regard to thechecklist in r.3.9. This is because the applicant has not complied withr.52.4(2) and, in the absence of relief, the applicant will be unable toappeal: see Sayers v Clarke Walker [2002] EWCA Civ 645 at [21]; [2002] 1 W.L.R.3095. In cases where the arguments for granting or refusing an extension oftime are otherwise evenly balanced, the court should evaluate the merits of theproposed appeal in order to form a judgment on what the applicants will belosing if time is not extended: see Sayers v Clarke Walker at [34]. In Smith vBrough [2005] EWCA Civ 261 the Court of Appeal, in the course ofrefusing to extend time by 39 months, stressed the importance of finality inlitigation.

In Smith v Kvaerner Cementation Foundations Ltd [2006] EWCA Civ 242;[2007] 1 W.L.R. 370 the claimant was granted permission to appeal, despite hisdelay of four years in applying to the Court of Appeal. The paramountconsideration in that case was that the claimant at trial had been denied hisright under ECHR art.6 to a fair hearing before an independent and impartialtribunal. There was also a good explanation for his failure to pursue an appealearlier. ( my empathiseadded in both instances)

If an application to extend time for appealing is made intime (i.e. it is made prospectively), then r.3.9 does not apply: see thereasoning of the Court of Appeal in Robert v Momentum Services Ltd [2003] EWCACiv 299; [2003] 2 All E.R. 74.

Where, in an appeal brought under a statute, the time limitfor filing the notice of appeal is fixed, not by r.52.4, but by the statuteitself, the court may lack power to extend that limit under r.3.1(2)(a); seepara. 52.4.1.1 above.

Kind regards

The Mould

[Ganymede]

What about relief from sanctions under CPR 3.9?

 

Also shouldn't the appeal application be on form N161?

[The Mould]

What about relief from sanctions under CPR 3.9?

 

Also shouldn't the appeal application be on form N161?

 

 

Yes,

Appellants notice is on Form N161. Apologies for anyconfusion caused by me on this appeal matter.

Kind regards

The Mould

[Ganymede]

I still think CPR 3.9 needs addressing in more depth.

 

The Defendant is both out of time and had permission to appeal refused (I think).

 

Wendy, please can you tell us EXACTLY what the Court Order from your previous appeal/application to annul states. This is very, very important.

[Ganymede]

Also the fee to file an N161 is £135.00.

 

Wendy will also needs to file a Skeleton Argument and Grounds for Appeal along with the above.

[The Mould]

Also the fee to file an N161 is £135.00.

 

Wendy will also needs to file a Skeleton Argument and Grounds for Appeal along with the above.

 

 

Yes.

But the decision made by the lower court to refuse theaction to annul the bankruptcy order, was made on different grounds and not thegrounds I have posted here which are based upon all material posted here byWendy/Watson. I believe the sols she hadinstructed did not look into this matter properly and presented weak argumentsto annul the bankruptcy order, which they were unable to substantiate.

I have posted grounds for appeal based upon info posted here by Wendy.

Kind regards

The Mould

[Ganymede]

I know but we need to see a copy of the Order first.

 

I think we need to worry about being out of time and having permission to appeal refused otherwise your other arguments are moot.

[The Mould]

I know but we need to see a copy of the Order first.

 

I think we need to worry about being out of time and having permission to appeal refused otherwise your other arguments are moot.

 

With respect Gany, my arguments are not moot, the lower court did not accept the submissions presented by Wendy's reps, Therefore, I believe that Wendy has a good and positive opportunity to appeal the bankruptcy Order made against her.

 

The Mould

[citizenB]

Wendy, in respect of your email problems.. have you spoken to your internet provider ?

 

I have recently had issues with the Post office broadband. I could receive emails but not respond to them If your provider has been tinkering with their systems it might have affected your email. So telephone them and ask.

[Ganymede]

They will be moot if Wendy can't overcome CPR 3.9...

[The Mould]

Rule 3.9 Relief fromsanctions

3.9 †

(1) On an application for relief from any sanction imposedfor a failure to comply with any rule, practice direction or court order, thecourt will consider all the circumstances of the case, so as to enable it todeal justly with the application, including the need—

(a) for litigation to be conducted efficiently and atproportionate cost; and

(b) to enforce compliance with rules, practice directionsand orders.

(2) An application for relief must be supported by evidence.

Effect of rule

3.9.1 Shortly after the CPR came into effect, in Bansal vCheema , March 2, 2000, CA, unrep., the Court of Appeal stated that r.3.9(1)set out in clear form the matters that a court should consider when exercisingits power to grant relief from a procedural sanction and explained that, as thenine particular circumstances then listed in that provision were derived frompre-CPR authorities, thereafter there was no need for a court "to go backto the substantial authorities decided under the old rules". The objectiveof reducing to rule form the essence of a mass of case law was perhaps alaudable one. However, it did lead to a tendency amongst lawyers to treat thenine criteria as constituting a statutory code, complete with its own body ofinterpretative case law. In modern times, there has been increasing concernabout the incidence of parties ignoring rules, practice directions and courtorders and it has been argued that the relief from sanctions provisions are toogenerous. By the Civil Procedure (Amendment) Rules 2013, r.3.9(1) wassubstantially re-cast. The nine criteria are removed and the rule simply statesthat the court will consider all the circumstances of the case, so as to enableit to deal justly with the application, including the need (a) for litigationto be conducted efficiently and at proportionate cost, and (b) to enforcecompliance with rules, practice directions and orders. This amendment followsrecommendations made in Review of Civil Litigation Costs: Final Report(December 2009) Ch.39 para.6.7 (p.397) and is made for the reasons given there.As amended, r.3.9(1) applies to applications for relief from sanctions made onor after April 1, 2013, but not before. When the amended r.3.9(1) is read inconjunction with the contemporaneous amendments made to r.1.1 (overridingobjective), it is clear that the intention is to encourage the courts to beless ready than previously to grant relief against sanctions for proceduraldefaults (see dictum of Jackson L.J. in Fred Perry (Holdings) Ltd v BrandsTrading Plaza Ltd [2012] EWCA Civ 224; [2012] F.S.R. 807, CA, at paras 48 and49).

This rule sets out the court's general discretion to giverelief against any sanction imposed for failure to comply with any rule,practice direction or court order. The circumstances listed in r.3.9(1) areroutinely referred to in cases where a party applies for an extension of time,having suffered a procedural sanction for their failure to comply with a timelimit set by rule, practice direction or order (see para.3.1.2 above). The automaticstay imposed on claims under the transitional arrangements in the CPR (seepara.51PD.19 below) is a sanction for the purpose of this rule (Woodhouse vConsignia Plc [2002] EWCA Civ 275; [2002] 1 W.L.R. 2558; [2002] 2 All E.R. 737,CA). The words "the witness may not be called to give oral evidence unlessthe court gives permission" in r.32.10 (Consequence of failure to servewitness statement) impose a sanction so that r.3.9(1) fall to be systematicallyconsidered (Priumus Telecommunications Netherlands BV v Pan European Ltd [2005]EWCA Civ 273).

Rule 3.9(1) lists various circumstances the court mustconsider. When considering an application for relief it is essential for courtsto consider each matter listed in r.3.9(1) systematically in the same way thatcourts go systematically through the matters listed in s.33 of the LimitationAct 1980 [>>Text] when an application is made under that section (Bansalv Cheema [2001] C.P. Rep. 6; Woodhouse v Consignia Plc [2002] EWCA Civ 275;[2002] 1 W.L.R. 2558; [2002] 2 All E.R. 737, CA; R.C. Residuals Ltd v LintonFuel Oils Ltd [2002] EWCA Civ 911; [2002] 1 W.L.R. 2782). The list is notexhaustive; the court must consider "all the circumstances". Thus,when considering whether to grant relief to a defendant, the court is entitledto consider the merits of the defence (Chapple v Williams [1999] C.P.L.R. 731.

In Khatib v Ramco International [2011] EWCA Civ 605; [2011]C.P. Rep. 35 the Court of Appeal moderated the guidance previously givenconcerning use of the checklist by the court; the court must conduct anappropriate review and balancing exercise but need not mention expressly all ofthe circumstances in the list, assigning them to one side of the balance or theother.

In Kinsley v Commissioner of Police of the Metropolis [2010]EWCA Civ 953, the Claimant failed to serve copy documents under an order whichprovided that unless he did so by a specific date the claim would be struckout. Citing the Marcan Shipping case (see 3.4.4.1 above), the Court of Appealproceeded on the basis that the claim had been automatically struck out andthat the Claimant's subsequent application to adjourn proceedings did not stoptime running under the unless order. However, by a majority, the Court ofAppeal, held that it was appropriate to grant the Claimant relief fromsanctions under r.3.9 given that it was possible that the Claimant believedthat time under the order had been stayed pending the resolution of hisapplication for adjournment of the claim. The Court of Appeal took into accountthe fact that the Claimant was a litigant in person in a claim which raisedserious issues to be tried and the unless order was the first time that he hadbeen directed to give disclosure of the documents in question. In consideringwhether or not to grant relief under r.3.9, Pitchford L.J. considered thatthere were three matters to be determined: [1] could there have been anylegitimate doubt in the Claimant's mind what it was that he was expected to dounder the unless order and the sanction which would follow if he failed tocomply; [2] whether and for what reason he failed to comply; and [3] whether hehad any reasonable excuse for not complying. The judgment of Ward L.J., whichconsidered each paragraph of r.3.9 in turn, provides a useful illustration ofhow r.3.9(1) and its paragraphs may be considered without undue length.

In Ryder Plc v Beever [2012] EWCA Civ 1737, the Court ofAppeal stated that a judge determining an application for relief from sanctionsshould consider each of the factors listed in r.3.9 and make any necessaryfindings of fact. He should then stand back, consider all the relevantcircumstances of the case (which obviously include but are not necessarilylimited to the r.3.9 factors) and should exercise his discretion, bearing inmind the overriding objective to deal with the case justly (as to which, seer.1.1). His task is to decide whether it is proportionate to grant or refuserelief. Although the Court of Appeal stated that each of the factors listed inr.3.9 was to be considered, in dealing with the exercise of discretion, it wenton to cite, with apparent approval, Mance L.J. (as he then was) who said inHansom v Makin and Wright [2003] EWCA Civ 1981: "Indeed, at the end of theday, the right approach is to stand back and assess the significance and weightof all relevant circumstances overall, rather than to engage in some form of'head counting' of circumstances".

It should be noted that r.3.9 comes into play, not merelywhere a party has failed to comply with any rule etc., but where a sanction isimposed as a result of that failure. No sanction is imposed, for example, wherea party fails to comply with r.33.2(4)(a), a provision imposing a time limitfor service of notice of intention to rely on hearsay evidence. Consequently,on an application to extend time in this context, neither r.3.8 nor r.3.9applies (Cottrell v General Cologne Re UK Ltd [2004] EWHC 2402 (Comm); October20, 2004, unrep. (Morison J.)).

The court has power under r.3.1(2)(a) to extend time for compliancewith a court order, and the power under r.3.9 to grant relief from sanctions,even where the order had been made by consent; Pannone LLP v Aardvark DigitalLtd [2011] EWCA Civ 803; [2011] 1 W.L.R. 2275. It was held that the fact thatthe order is made by agreement is one of the circumstances of the case to whichthe court is to have regard under r.3.9, and it may be an important factor, butit is not inherently decisive, so as to render it unnecessary and irrelevant toexamine the other relevant circumstances. The weight to be given to the factthat the order was by consent would vary according to the nature of the order;for example, if it related to case management or to the disposal of the claim.

In CIBC Mellon Trust Company v Stolzenberg [2004] EWCA Civ827 June 30, 2004, unrep., CA, Arden L.J. analysed carefully the variouscircumstances listed in r.3.9(1) and reviewed the authorities, particularlythose dealing with non-compliance with "unless" orders. A significantfeature of the case is that it involved an application under r.3.9 to set asidea judgment (not merely a procedural order) entered in default of compliancewith an order of the court. In the context of r.3.9, a finding of intentionalfailure to comply with a rule is a highly significant and may or may not bedecisive, depending on the circumstances of the case (Bournemouth &Boscombe Athletic Football Club Ltd v Lloyds TSB Bank Plc [2003] EWCA Civ 1755;December 10, 2003, CA).

When exercising the power under CPR r.3.9 to grant relief fromsanctions for failure to comply with an unless order, the court should considerwhether, at the time of the application for relief is heard, the unless orderremains a proper order in the circumstances (Tarn Insurance Services Ltd vKirby [2009] EWCA Civ 19, which also held that, in a case of deliberate andpersistent non-compliance with orders to provide information and deliverdocuments made in order to safeguard proprietary claims, a properadministration of justice requires that, save in very exceptionalcircumstances, sanctions imposed should take effect).

In Momson v Azeez [2009] EWCA Civ 202, it was held(following CIBC Mellon, above) that the refusal to grant relief against adebarring sanction would not contravene art.6 of the European Convention onHuman Rights provided that such refusal was proportionate and was for alegitimate purpose. The sanction which the court had imposed had the legitimatepurpose of requiring the party to comply with an order of the court that hadbeen made with a view to achieving a fair trial. Having decided that theparty's non-compliance with the order (a disclosure order) meant that a fairtrial was not possible, the judge (on the first appeal) concluded that abalancing of all the Pt 3.9 factors and a consideration also of the overridingobjective required a decision that the defaulting party should not have beengranted any relief against the sanction. The Court of Appeal held that thatconclusion was Convention compliant and that any other conclusion would mean thatlitigants could with impunity avoid compliance with court orders made for thepurpose of the holding of a fair trial.

As to the relevance of this rule in the exercise of thecourt's case management powers see Sayers v Clarke [2002] 1 W.L.R. 3095; [2002]3 All E.R. 490, noted in para.3.1.2, above (Extending or shortening timelimits); and Forcelux Ltd v Binnie [2009] EWCA Civ 854, noted in para.3.1.9,above (Court's power to vary or revoke an order).

Rule 3.9(2) states that an application for relief againstsanctions must be supported by evidence. Such applications are normally madeunder Pt 23 with a witness statement in support. However, a failure to adducesupporting evidence is an irregularity only which the court has power to waive(see below, r.3.10 (General power of the court to rectify matters where therehas been an error of procedure) and the commentary thereto). In Supperstone vHurst [2008] EWHC 735 (Ch) (Floyd J.)) adetailed assessment of the respondent's bill of costs was made by a costs officer.The appellant argued that the respondent had failed to comply with arequirement to give adequate notice of funding in accordance with r.44.3B, thesanction for which is the disallowance of certain costs. The costs officer heldthat adequate notice had been given and that decision was taken on appeal to acosts judge. In his Respondent's Notice in the appeal, the respondent said thathe would apply for relief from sanction if, on the appeal, the costs judge wasagainst him on whether he had given adequate notice. A witness statement wasalso served indicating that an application for relief from sanction would bemade. The costs judge held that there had been non-compliance with r.44.3B butgranted the respondent relief against the sanction imposed by that rule. On afurther appeal to a High Court judge the grounds of appeal included a grounddirected at the fact that there had not been a separate application notice andwitness statement in support. Lewison J. refused permission to appeal on thatground. (The subsequent decision of Floyd J. in Supperstone v Hurst is noted atpara.44.3B.2, below.) For further consideration of r.3.9 in the context ofr.44.3B, see Manning v King's College Hospital NHS Trust [2011] EWHC 2954, QB ;[2012] 1 Costs L.R. 154.

In Hayden v Charlton [2011] EWCA Civ 791, the claimants suedthe defendants for libel in respect of allegations made on a website. Theclaimants failed to comply with directions or with subsequent unless orders andeventually the judge struck out the claim on the basis that the claimants hadlost interest in it and to continue it would be an abuse. On appeal, theclaimants were permitted to adduce evidence that they had not been keptinformed by their then solicitors, despite their attempts to contact them, andthey had not known the true position until after the strike out had beenordered. The Court of Appeal accepted that evidence as an important factor infavour of granting relief. However, it also took into account other factors,including the considerable burden the proceedings had placed upon thedefendants, who were litigants in person. That hardship would have no remedy ifrelief was granted whereas the claimants would have an opportunity for redressagainst their former solicitors if the appeal was refused. Overall, it was heldthat the less unfair result was for the claim to stay struck out.

In Fung v Waitrose Ltd [2011] EWHC 1356 (TCC) relief wasgranted for errors made by a solicitor even though the order which had not beencomplied with was a consent order. A defendant was late in exchanging witnessstatements and agreed to a consent order striking out its defence if it failedto serve its witness statements in 14 days. That period ended on a publicholiday when the court office was shut. The defendant's solicitor wrongly butgenuinely believed that r.2.8(5) applied (see para. 2.8.4, above) and servedthe witness statements on the next working day afterwards. Taking that andseveral other factors into account Ramsey J. held that, although the courts areusually reluctant to alter the effect of a consent order, this was one of thoserare cases when it was appropriate to do so.

In Fred Perry (Holdings) Ltd v Brands Plaza Trading Ltd[2012] EWCA Civ 224; [2012] F.S.R 28, the Court of Appeal refused to overturnthe judge's decision not to grant the defendants relief from sanctions underr.3.9, indicating that it was vital that the Court of Appeal should supportfirst instance judges who made robust but fair case management decisions. Thedefendants had failed to comply with court orders including unless orders.Whilst Woodhouse (above) was cited with approval, it was stressed that adecision whether or not to grant relief against sanctions is an exercise ofdiscretion. Jackson L.J., stated that there is a concern that relief againstsanctions is being granted too readily at the present time and that followingamendments to r.3.9 which were likely to come into force on April 1, 2013,litigants who substantially disregard court orders or the requirements of theCPR will receive significantly less indulgence than hitherto.

Where failure tocomply was caused by the legal representative only

3.9.2 One of the circumstances the court must consider onapplications for relief from sanctions is "whether the failure to complywas caused by the party or his legal representative" (r.3.9(1)(f)).Valuable guidance on this part of the rule was given by Peter Gibson L.J. inTraining in Compliance Ltd v Dewse [2001] C.P. Rep 46 at [66], CA:

"Of course, if there is evidence put before the courtthat a party was not consulted and did not give his consent to what the legalrepresentatives had done in his name, the court may have regard to that as afact, though it does not follow that it would necessarily, or even probably, leadto a limited order against the legal representatives. It seems to me that, ingeneral, the action or inaction of a party's legal representatives must betreated under the Civil Procedure Rules as the action or inaction of the partyhimself. So far as the other party is concerned, it matters not what input theparty has made into what the legal representatives have done or have not done.The other party is affected in the same way; and dealing with a case justlyinvolves dealing with the other party justly. It would not in general bedesirable that the time of the court should be taken up in consideringseperately the conduct of the legal representatives from that which the partyhimself must be treated as knowing, or encouraging, or permitting."

However, Training in Compliance Ltd (above) did not directlyconcern r.3.9. In other cases the court has taken into account in favour of theparty seeking relief the fact that the fault was one for which their legalrepresentative only was responsible. In one case, the court took into accountthe detriment the claimant could suffer if the current proceedings were broughtto an end and he was left to sue his legal representative instead (Hansom v ERex Makin & Co [2003] EWCA Civ 1801; December 18, 2003, unrep., CA andFlaxman-Binns v Lincolnshire CC [2004] EWCA Civ 424; [2004] 1 W.L.R. 2232, CAat para.[41]). In Short v Birmingham City Council [2004] EWHC 2112, QB; [2005]H.L.R. 6 (Tugendhat J.), a claimant's application for extension of time forappealing was granted in circumstances where a significant period of the delaywas attributable to an unintentional error of law made by his legal advisers.In Confetti Records v Warner Music (UK) Ltd [2004] EWCA Civ 1748; November 26,2003, unrep., CA, a claimant was refused permission to appeal against thedismissal of his application for an extension of time for complying withconsent order where one of the relevant factors was his solicitor'smis-understanding of the effect of the interim order for costs. It seems thatthe Court of Appeal attached particular importance to the fact that it was aconsent order.

In Welsh v Parnianzadeh [2004] EWCA Civ 1832; [2004] All E.R(D) 170, the Court of Appeal indicated that "a claimant who is reduced toa claim which would perforce be on a percentage basis for loss of a chanceagainst her legal advisers is not only suffering a real loss in the sense ofbeing caused further delay and expense, but is also suffering a real reductionin the value of her claim" (per Mance L.J.) In that case the claim wasallowed to proceed and one of the features was that there was no prejudice tothe defendant.

Rule 3.10 General power of the court to rectify matterswhere there has been an error of procedure

3.10

Where there has been an error of procedure such as a failureto comply with a rule or practice direction—

(a) the error does not invalidate any step taken in theproceedings unless the court so orders; and

(b) the court may make an order to remedy the error.

The above is what Ganymede is referring to Watson.

Kind regards

The Mould

[wendyboats]

I have been unable to conect till now my server is looking into today....

 

My solicitor states he has valid arguments under section 282(1) (a) Act 1986.

Failure to disclose for a year and late sending of the evidence (2 working days before my case)

 

No phone agreements....

 

Capone card....PPI payments £107.98 by DD

" " protection insurance £20 DD

" " penalty charges (unauthorized) OFT s April 2006 £132.

All above excludes interest

 

He states in circumstances request .... for a valid argument under s.282 (1) (a) IA 1986.

 

 

But at Appeal all that was said or challenged by all 3 legals present was RE; Happy i received all necessary paperwork and notices, no other matter was discussed, As i did not know if i could raise concerns myself, i sat and tried to take in what the hell had this court case been about?

 

Hope that clears up some of above, and i will read all contents in detail now..wendyboats thanks you all for all input-positive and negative.