Ccbc aktiv kapital/judge & priestly

[AndyOrch]

" The judge said that the original agreement must have been readable and only through the degradation of copying did the copy now appear illigible."

 

[shamrocker]

" The judge said that the original agreement must have been readable and only through the degradation of copying did the copy now appear illigible."

 

 

Andy, what would be your reply to the above statement?

[shamrocker]

well the main argument was that due the illegible copy of the agreement made the agreement unenforceable.

 

The judge said that the original agreement must have been readable and only through the degradation of copying did the copy now appear illigible.

 

The claimant produced a generic list of terms and conditions that they claimed i would have received separately. I said i never did, the judge agreed with the claimant.

 

The claimant said that he could show that the illigible agreement was the same as the t&cs and so even if illigible the contents was identical to the t&cs.

 

The judge agreed and thus said that the agreement was enforceable.

 

Thanks for that account of things. I don't suppose there's any need to keep legally binding agreements in true form when you have DJs at your back.

[The Mould]

well the main argument was that due the illegible copy of the agreement made the agreement unenforceable.

 

The judge said that the original agreement must have been readable and only through the degradation of copying did the copy now appear illigible.

 

The claimant produced a generic list of terms and conditions that they claimed i would have received separately. I said i never did, the judge agreed with the claimant.

 

The claimant said that he could show that the illigible agreement was the same as the t&cs and so even if illigible the contents was identical to the t&cs.

 

The judge agreed and thus said that the agreement was enforceable.

See CPR Pt 52 Appeals r.52.3 (3) below as regards permission to appeal to the appeal court after the lower court has refused permission to appeal.

If the District Judge’s decision is wrong in law, then an appeal should be made, however, the process of appeal is long and involves substantive legal admin. It’s not an easy task, because subjects seeking to use the law they are subject to, to have a wrong put right always have to fight to the bitter end for it!

The fact that there is an Appeal Court and a Supreme Court clearly shows that Judges below the Supreme Court make errors of law.

See –

http://www.bailii.org/ew/cases/EWHC/Mercantile/2011/B3.html

The above Harrison v Link Financial Ltd judgment is a key authority which deals with a creditor’s numerous breaches, including irredeemable breaches of the CCA 1974 (as amended), have a read of this case to establish if there is anything therein that you can rely upon for your own potential appeal against this County Court Judgment.

&

http://www.bailii.org/uk/cases/UKHL/2000/27.html

Click the above link and peruse this House of Lords decision where Lord Hoffman, giving the leading judgement made this qualified statement as regards irredeemable breach of s.61 (1)(a) of CCA 1974 which rendered the agreement in this case unenforceable by virtue of s.127(3) of the 1974 Act:

Lord Hoffman

“Section 65(1) provides that an improperly executed agreement shall be enforceable only "on an order of the court." Section 127 gives the court power to make orders for the enforcement of agreements that are, for various reasons, improperly executed. But subsection (3) provides that a court shall not make an enforcement order for an agreement that does not comply with section 61(1)(a) unless the debtor signed a document containing "all the prescribed terms." The hiring agreement in this case did not and is therefore irredeemably unenforceable”.

The above only applies to regulated agreements that do not comply with s.61(1)(a) before the CCA 1974 was amended and is the highest authority in England and Wales, now replaced by the Supreme Court. The amendments repealed s.127(3) amongst other things.

Rule 52.3 Permission

52.3

(1) An appellant or respondent requires permission to appeal—

(a) where the appeal is from a decision of a judge in a county court or the High Court, except where the appeal is against—

(i) a committal order;

(ii) a refusal to grant habeas corpus; or

(iii) a secure accommodation order made under section 25 of the Children Act 1989; or

(b) as provided by Practice Direction 52.

(Other enactments may provide that permission is required for particular appeals.)

(2) An application for permission to appeal may be made—

(a) to the lower court at the hearing at which the decision to be appealed was made; or

(b) to the appeal court in an appeal notice.

(Rule 52.4 sets out the time limits for filing an appellant's notice at the appeal court. Rule 52.5 sets out the time limits for filing a respondent's notice at the appeal court. Any application for permission to appeal to the appeal court must be made in the appeal notice (see rules 52.4(1) and 52.5(3).)

(Rule 52.13(1) provides that permission is required from the Court of Appeal for all appeals to that court from a decision of a county court or the High Court which was itself made on appeal.)

(3) Where the lower court refuses an application for permission to appeal, a further application for permission to appeal may be made to the appeal court.

(4) Subject to paragraph (4A), where the appeal court, without a hearing, refuses permission to appeal, the person seeking permission may request the decision to be reconsidered at a hearing.

(4A)

(a) Where a judge of the Court of Appeal or of the High Court, a Designated Civil Judge or a Specialist Circuit Judge refuses permission to appeal without a hearing and considers that the application is totally without merit, the judge may make an order that the person seeking permission may not request the decision to be reconsidered at a hearing.

(b) For the purposes of subparagraph (a) "Specialist Circuit Judge" means a patents county court judge and any circuit judge in any county court nominated to hear cases in the Mercantile, Chancery or Technology and Construction Court lists.

(4B) Rule 3.3(5) will not apply to an order that the person seeking permission may not request the decision to be reconsidered at a hearing made under paragraph (4A).

(5) A request under paragraph (4) must be filed within 7 days after service of the notice that permission has been refused.

(6) Permission to appeal may be given only where—

(a) the court considers that the appeal would have a real prospect of success; or

(b) there is some other compelling reason why the appeal should be heard.

(7) An order giving permission may—

(a) limit the issues to be heard; and

(b) be made subject to conditions.

(Rule 3.1(3) also provides that the court may make an order subject to conditions.)

(Rule 25.15 provides for the court to order security for costs of an appeal.)

Kind regards

The Mould