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

[The Mould]

Thank you kind Sir.............I have sent email to above Barristers with all areas of law and brief outline of case, hope i don't scare them off!

 

Update re; Social Worker.....OFFICIAL INQUIRY by Social Service Dept,re; Her actions today and what motivation she had, under Social worker/child protection to initiate her attempts to remove GS this morning!

 

Keep you posted..........Wendyboats x

 

Official Inquiry based upon unfounded accusations by a person (obviously the trustee or one of her associates - on the balance of probabilities) against you and your ability to provide care for your grandson, the local authority has acted against logic, acted without any reasonable cause, acted without any plausible evidence and acted in violation of your Art.8 Human Rights Act as regards the malicious falsehoods received by them (which you say originated from a Leeds address). Get an independent professional solicitor/direct access barrister on board immediately Watson!

 

Motivation to remove a child from your custody is not recognised in law as legal grounds, in the circumstances, the social services are acting upon information provided to them by unknown entity and without any documentary or otherwise evidence (the Leeds connection who provided this malicious falsehood must provide valid grounds and evidence of such) state to local authority that you are taking civil action against this Leeds entity which shall be subject to Court of Appeal decision, this is the reason why they have received said unfounded and malicious complaint. You will not accept any further unsubstantiated interference from them, and any further such action will be met with legal action commenced by you to obtain an injunction against them pursuant to s.1 of the Harassment Act 1997 and Art.8 of the Human Rights Act. No further notice will be served on them in this respect, you reserve your right to seek your costs of such action becoming necessary and you also reserve your right to disclose the contents herein and any correspondence relating to the same to the Court.

 

Yours faithfully

 

Mrs This is Wrong and Illegal

 

Kind regards

 

The Mould

 

Keep calm and drink tea, I know you have MS Multiple Sclerosis, drink sum rum, a small shot anyway, failing that, take some extra steroids to help you through this most testing time (no offence intended as to your progressive and debilitating condition),

[The Mould]

The trustee must then obviously know (her sols have clearly informed her) that as your are disabled and provide care for your grandson who lives with you, that should she commence proceedings under CPR Pt 73 for forced Order to sale of your property, that she would fail with such action, hence, she is trying, through malicious falsehoods to local authority to have your grandson removed.

 

Malicious falsehoods means = "that the maker of the statement either knew that the statement was not true or could not care as to its truth".

 

Kind regards

 

Holmes, The Mould.

 

PS. Lot of work (legal admin) involved in your case Watson, I am certain that you can undertake and complete the same. As said earlier, I am certain that all CAG is behind you, sooooooooooooooooooooo! any questions? Ask away. If I do not respond on same day, please bear with me Watson, my wife also suffers from MS Secondary Progressive, I have two young superdudes to tend to and I have become unwell myself, therefore, be patient Watson and look at your case/thread because many others are trying their best to help you as and when they can..........you will not be abandoned Watson, we are all here to help you as and when we can and please remember that we all have different experience and knowledge as regards the law applicable to your particular case.

 

Can you relax tonight Watson? Are you able to sit or lay in comfort and watch TV or your favourite movie? Are you able to down a couple of shots of rum or brandy (given the meds you take for MS Secondary Progressive?) What about being able to take a couple of extra steroids to help you through this almighty test?

 

You are not alone Warson, I am here with you, though we are far apart, you will always be in my heart - the late Mr Michael Jackson.

[The Mould]

The Mold, hasn't Wendy failed once in Court with an application to annul the bankruptcy with permission to appeal that decision refused?

 

Hopefully Wendy can clear this up for us.

 

 

I believe you may be correct Ganymede regarding this,however, I believe that Wendy’s sols at the time did not understand this case and that they were not experienced inconsumer law.

If one should look back over this thread/case, it ought tobecome clear that lower Court was wrong in its ruling and that Wendy’s sols didnot understand the case let alone consumer law.

Non-service ofclaim;

No valid orotherwise default notice served; and

Mis-sold ppi onthe agreement.

All of the aboveare sufficient grounds for annulment under s.282(1)(a) of the Insolvency Act1986.

That is why I have advised an appeal to COA.

Kind regards

The Mould

[The Mould]

Trusty Watson does not understand what you mean r; COA stands for? But it sounds hopeful all of above and i think till its end none of us can settle in our chairs and toast with our small shot of Rum including it seems you The mould and for this i bless you all xx

 

COA = Court of Appeal Watson.

 

Kind regards

 

The Mould

[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

[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

[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

[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

[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

[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

[The Mould]

Ganny, as regards the cases cited here by you to a link froman ‘article’ produced througha Google search in respect of CPR Pt 3 r3.9, notwithstanding that such articlerefers to recent cases concerning relief from sanctions under the new CPR Pt 3 r3.9provisions as handed down by the Courts that heard the submissions thereon;none of the same are comparable to the circumstances of Wendy’s case as postedhere by her.

In Wendy’s case, the material posted here by her clearlystates that their was no service of the claim by the creditor; Wendy was notresiding at her normal place of residence and that she had informed hercreditor(s) of this; notwithstanding that, the creditor issued his claim andincorrectly (and in my opinion, deliberately) disregarded Wendy’s informationas to her temporary place of residence for the purposes ofcommunication/correspondence with the creditor and the creditor placed Wendy’s address for service on theclaim form (N1) as her said normal place of residence.

Wendy was not served the claim, the creditor obtainedjudgment in default and sought to enforce the same against her by way ofstatutory demand, which must obviously have been served at Wendy’s said normalplace of residence and of course which the creditor knew she was not residingat that time.

Bankruptcy petition followed and the creditor, (through hisdownright underhand and dishonest conduct) succeeded.

The issues in this case, to my mind are:

1. Non-service of claim, therefore, contraventionof art.6 of ECHR;

2. No valid or otherwise service of statutorydefault notice, therefore, contravention of s87(1) of CCA 1974 (as amended); noevidence of creditor’s entitlement to proceeding to enforce the regulatedagreement;

3. Mis-sold ppi on the credit agreement, therefore,amount claimed as due and owing on the non-served claim is wholly factuallyincorrect; and

4. The amount stated on the statutory demand, whichagain, was not served, is wholly factually incorrect and absent of any evidenceas to the creditor’s entitlement to such.

Given the above facts and the period of time that haselapsed, we are beyond relief from sanctions under the CPR Pt 3 r3.9. Wendy sought annulment of bankruptcy Order,she was represented by professional trained litigators, but they failed her,the first hearing at that point should have been seeking relief under CPR Pt 3r3.9, the sanction being judgment in default upon which the relief was sought.

The judge who sat that hearing refused to accept thearguments presented by Wendy’s instructed sols and her counsel, however, thesubmissions made by her reps were based on non-proof of debt claimed, thesesubmissions were clearly wrong and the judge based his/her decision on the sameand also did not accept that Wendy was not served with claim.

Wendy, can you please provide us with the judge’s reason(s)as to why he did not accept that the claim was not served on you?

I understand that you wish to refrain from posting too muchinfo, for the reasons which you have given, which I and I am sure othersunderstand.

I am very pleased to hear that you have a properprofessional advisor/rep on board and I sincerely wish you the very best ofgood fortune with your case. Please postback here, when you can, and update us on this matter.

Kind regards

The Mould

[The Mould]

Wendy - Watson

 

Do you have any evidence to show that you informed the creditor that you were not residing at your normal address and that you did in fact provide a different to him if he should wish to contact you regarding your account with him? This could provide you with sufficient evidence as regards non-service of claim.

 

Your subject access requests ("SAR") may turn up some further positive evidence for you.

 

Kind regards

 

The Mould

[The Mould]

You are right; the Courtsare applying CPR Pt 3 r.3.9 strictlyand harshly, however, postJackson reforms, the Courts are still, howver, required to consider: Rule3.9 Relief from sanctions

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 enableit to deal justly with the application, including the need—(myempathise added)

(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.(Bear in mind that Wendy is an untrainedlitigant who acts in person and her instructed sols at the time (the so-calledappeal) may well have failed her, again, my emphasis added).

All of the grounds that I have posted above now need to beput to the Court of Appeal requesting permission to appeal original judgmentout of time, because non-service of the claim on its own provides Wendy withsufficient grounds to seek a set aside. Not only is this a procedural error under the CPR but it is also acontravention of art.6 of ECHR.

Kind regards

The Mould

[The Mould]

Under the CPR Pt 3 r3.9 provisions, how can, in your opinionGanny, the Court hold Wendy to be held in failure of a rule, practice directionor Court Order, namely CPR Pt 12, when the claim was never served on her in thefirst instance?

It appears to my mind anyway, that the lower Court judge hasdismissed this case without providing a proper and fair reason(s) forsuch. That is the fundamental problemfaced by all untrained litigants who act in person – it’s a bloody judgelottery and I do not agree with reforms that are harsh and unjust which onlyensure that the commoner is denied his right to access to a Court and his rightto present his case in order that the proper Administration of Justice isserved to all and seen as being served to all.

As I said earlier, based upon the matters posted here byWendy, which I believe, because I can sense that she speaks with conviction –meaning that it is clear to me that Wendy is speaking the truth,notwithstanding her “cog fog” that her neurologists refers to.

It is clear to me that the creditor has taken unfairadvantage of the consumer (what another bloody surprise). The one thing that I am uncertain of is howWendy fell into arrears with this account, because Wendy has clearly statedthat all payments to the creditor were made and being made by Direct Debit andthat Wendy received no notice either from her Bank or the creditor as to anyproblems regarding such monthly payments to this particular account.

Wendy, Watson as I say, are you able and indeed willing toshed any light on the above or on any of the recent posts here so that we allknow and are furnished with a better understanding of your case?

If you cannot post on the grounds stated here in earlierposts by you, then I understand Watson.

Kind regards

The Mould

At 221b

[The Mould]

I have had a brilliant day, all PAPERWORK has gone in a " BIG" parcel too ?????? recorded delivery,

 

and the Legals dealing with this, have given me......... PRO-BONO!! .....The relief is

 

overwhelming, but in a gooooooooooood way

 

Whatever the outcome, i know it will be better than my defence gave previously, Knowledge is a wonderful gift, but using it correctly is Masterful.........

 

Wendyboats........ Has a lot to be grateful for, forums like these are a lifeline,.... Lucky for me, and for many others, past and us present, its allowed us a voice, to open up the once closed doors, back into court, with the proper representation.......... we all deserve!

 

Truly, they have been too me!! :thumb:They all know who they are, and i

 

Thankyou all so much xxx Watch this space !!

 

....xxxxxxx

 

I sincerely wish you the best in life Watson and I hope that the injustice inflicted against you swifter than a bolt of lightening, will be undone faster than the speed of light.

 

Kind regards

 

The Mould

[The Mould]

I look forward to hearing some good news from you Watson on this matter.

 

To remove a pebble in one's shoe, all that is required is to remove the shoe and turn upside down, the pebble will then fall out and you may place the shoe comfortably back on your foot, walk onwards free from pain from that point.

 

You will Watson.

 

Kind regards

 

The Mould

[The Mould]

Evening all, wendyboats with an update ..............all is good, and the truth will out, everything comes to an end, such is the circle of life

 

watch this space xx wendyboats will not disappoint, with

 

Crikey Watson, I do wish that you would be so kind as to furnish us all with just a little more information as to what's happening out there on these moors. However, based upon the science if inductive reasoning, I sense that your above post is probably the most positive and satisfactory posting for you and your family.

 

I (and I am certain that all your fellow CAG members) look forward to hearing from you on this matter as and when you are able to post on the same.

 

In the meantime Watson, stay on the road, keep off the moors and beware the full moon!

 

Kind regards

 

The Mould

[The Mould]

Hi wendyboats,

 

I've been following the thread all the way through, but wasn't commenting because you were in The Mould's very capable hands.

 

DDx

 

Thank you very much indeed DD for your most profound kind words spoken about me. I am eternally grateful for your kindness.

 

Let us all hope that justice will prevail for Wendy, or Watson as I prefer to call her. Not so dark and cold out here on these moors after all, is it Watson?

 

221b

 

Kind regards

 

The Mould

[The Mould]

Just read this thread from the beginning,

 

can't believe it!

 

Keep up your fighting spirits Wendy, you've done well to get this far.

 

Your strength has increased day by day from this forum especially with all the help posted here.

 

I am so pleased you have the support of a local solicitor.

 

 

Stay positive, those nasty trustees/lowells know you have a case that will go against them,

but at least you are not on your own now.

 

My thoughts are with you.

 

Nice to hear from the Mould, hope you are feeling better.

 

Thank you Kayyak, unfortunately, I am still quite unwell, diagnosis still not established as of date hereof, this limits my ability to post, which causes me the most amount of frustration as I would like to help as many people as possible with the problems they face.

 

At least with CAG, there are hundreds of good people around to offer superb help, advice and support to the thousands that are calling out for help.

 

Watson, sorry for the minor hijack on your case. How are you old boy (I know you are a woman)? Are you in a position to deliver some good news for all of us who are waiting in anticipation for such, I can wait Watson, because based upon the science of inductive reasoning, the decisions that have been made against you thus far are illogical, when one takes into account the facts of this case that is.

 

Kind regards

 

The Mould

[The Mould]

Sorry to jump in but would The Mould mind revisiting my old Halix thread

 

http://www.consumeractiongroup.co.uk/forum/showthread.php?405122-Halifax-sold-account-whilst-in-agreed-payment-plan-now-with-Lowell/page2

 

Will do, as soon as I can dear friend.

 

Kind regards

 

The Mould

[The Mould]

Hi The Mould,

 

I am so sorry you are still unwell. We know you always do as much as you can to help on CAG, and you have been absolutely wonderful to wendyboats.

 

I hope you get a diagnosis and feel better soon, and I hope we hear something positive from wendyboats too.

 

Hugs to you both.

 

DD

 

Thank you very much indeed my dear fellow. I am really fighting against an illness that I do not understand. I have some medication to help me through each day, but the meds do not even take the edge of this thing. I have been really frightened sometimes and each day I face fear that I am unable to defeat. I am really having the most, the fight of my life.

 

Sorry Watson for the above, don't lose your faith in me, because I never leave any fellow CAG's members side until their matter is resolved.

 

Is it just me, or do we all wish that there was a superman on this earth who would do everything right and free us all from the chains that have us enslaved?

 

Hang on in their Watson, I shall not fail you, it will be a case of death to me first before your enemy ever succeeds against you, I am in front of you, by your side, behind you and all around you.

 

Kind regards

 

The Mould

[The Mould]

That's Mould for you!!!

 

Kayyak, make a post on your case and all recent developments thereon in order to bring your case to the front of this forum.

 

Kind regards

 

The Mould

[The Mould]

Evening The Mould

Thank you for your message above, its just what i needed right now, Watson is always amazed at how you know when i need you by my side:hug:

 

Watson is very low this night as so hoped i would have heard news from my legal team......

 

I came home this evening and my neighbour informed me a man was sat in a car opposite my house taking photos, i think maybe this would be for the impending sale wanted by trustee?

 

Watson hopes and prays to hear soon as still so worried, and is so comforted by The Mould and all the caggers kind messages, but at the moment i shall just have to hang tight! xxxxxxxxx

 

Watson, what are your solicitors doing for you on this matter? Have they sent trustee's sols of your intention to appeal?

 

What about a stay of execution in this matter, until the Court of Appeal have considered all evidence in support of the same?

 

Hold on dear Watson,, climb on board the carriage, even though you suffer from MS secondary progressive, you will find comfort in that carriage, the horses will not be spurred and you will arrive at a place that you have only been able to dream of - justice.

 

Kind regards

 

The Mould

[The Mould]

Bad news........................Yesterday after waiting all week a letter arrived from legal team informing me due to trustee giving me only 14 days before applying to sell has left them no time to appeal..........I AM LEFT NOW WITH NO WHERE TO TURN AND HAVE WASTED A MONTH!

 

Also my computer cashed and irreparably so had to borrow money to get new one, that's why i have only just been able to update.

 

Any ideas greatly received :shock:wendyboats

 

Ask you sols to make an application to Court of Appeal for extension of time for appealing the bankruptcy Order. First thing on Monday morning Watson.

 

Kind regards

 

The Mould