Jump to content


Richard Durkin wins Supreme Court appeal – beware lenders!


style="text-align: center;">  

Thread Locked

because no one has posted on it for the last 1602 days.

If you need to add something to this thread then

 

Please click the "Report " link

 

at the bottom of one of the posts.

 

If you want to post a new story then

Please

Start your own new thread

That way you will attract more attention to your story and get more visitors and more help 

 

Thanks

Recommended Posts

  • Replies 144
  • Created
  • Last Reply

Top Posters In This Topic

Top Posters In This Topic

Posted Images

Hi Folks,

 

Here's the proposed writ again without the address.

 

Perhaps begining the claim in England (instead of Scotland) would help avoid Res Judicata issues?

 

Cheers,

 

Richard.

Link to post
Share on other sites

It is very sad that you lose, even if you win :(

Have we helped you ...?         Please Donate button to the Consumer Action Group

 

Uploading documents to CAG ** Instructions **

 

Looking for a draft letter? Use the CAG Library

Dealing with Customer Service Departments? - read the CAG Guide first

 

1: Making a PPI claim ? - Q & A's and spreadsheets for single premium policy - HERE

2: Take back control of your finances - Debt Diaries

3: Feel Bullied by Creditors or Debt Collectors? Read Here

4: Staying Calm About Debt  Read Here

5: Forum rules - These have been updated - Please Read

 

 

BCOBS

 

2: Does your Bank play fair - You can force your Bank to play Fair with you

3: Banking Conduct of Business Regulations - The Hidden Rules

4: BCOBS and Unfair Treatment - Common Examples of Banks Behaving Badly

5: Fair Treatment for Credit Card Holders and Borrowers - COBS

 

Advice & opinions given by citizenb are personal, are not endorsed by Consumer Action Group or Bank Action Group, and are offered informally, without prejudice & without liability. Your decisions and actions are your own, and should you be in any doubt, you are advised to seek the opinion of a qualified professional.

 

PLEASE DO NOT ASK ME TO GIVE ADVICE BY PM - IF YOU PROVIDE A LINK TO YOUR THREAD THEN I WILL BE HAPPY TO OFFER ADVICE THERE:D

Link to post
Share on other sites

outrageous :(

PLEASE HELP US TO KEEP THIS SITE RUNNING

EVERY POUND DONATED WILL HELP US TO KEEP HELPING OTHERS

 

 

 

 

 

The SabreSheep, All information is offered on good faith and based on mine and others experiences. I am not a qualified legal professional and you should always seek legal advice if you are unsure of your position.

Link to post
Share on other sites
It is very sad that you lose, even if you win :(

 

The courts really are for people with the money, unless you get some financial help against potential costs. The Banks will spend a fortune trying to protect their market and the courts have always had a close relationship with the Banking industry. I just don't think that the UK has a totally independent judicial system and I worry about the Tories plans to come out of the ECHR.

We could do with some help from you.

PLEASE HELP US TO KEEP THIS SITE RUNNING EVERY POUND DONATED WILL HELP US TO KEEP HELPING OTHERS

 

 Have we helped you ...?         Please Donate button to the Consumer Action Group

 

If you want advice on your thread please PM me a link to your thread

Link to post
Share on other sites
The courts really are for people with the money, unless you get some financial help against potential costs. The Banks will spend a fortune trying to protect their market and the courts have always had a close relationship with the Banking industry. I just don't think that the UK has a totally independent judicial system and I worry about the Tories plans to come out of the ECHR.

 

 

they cant, unless they leave the eu.

they might try and repeal/amend the domestic Human rights act. but membership of the eu requires a clear statement of human rights (compliant with the ECHR), hence the HRA (our common law was deemed insufficiently clear, despite it having regard to the ECHR long before the HRA)

IMO

:-):rant:

 

Link to post
Share on other sites
  • 1 month later...
Anyone else denied a mortgage because of a default?

 

Please annotate this:

 

https://www.whatdotheyknow.com/request/supreme_court_incompetence#comment-59605

 

Cheers,

 

Richard

 

What evidence did the Judges obtain to support their judgement ?

 

If the belief is that a mortgage is always available, but at a higher rate, this does beg the question as to whether someone would fail to get the mortgage based on affordability.

We could do with some help from you.

PLEASE HELP US TO KEEP THIS SITE RUNNING EVERY POUND DONATED WILL HELP US TO KEEP HELPING OTHERS

 

 Have we helped you ...?         Please Donate button to the Consumer Action Group

 

If you want advice on your thread please PM me a link to your thread

Link to post
Share on other sites
  • 2 months later...
What evidence did the Judges obtain to support their judgement ?

 

 

None. HSBC themselves know that it's impossible for ordinary folk to get a mortgage with a default on their file. Only the well connected have a chance to get around this.

 

 

I've prepared a provisional record (attached) for a hearing on 5th November. I have basically said that due to the incompetence of the Supreme Justices and the Inner House (Scottish Appeal Court) together with the continued malice of HSBC, my family continues to be denied the reparation that is due.

 

 

I also mentioned the inept governments over the past few decades.

 

 

First I need to dodge a motion to dismiss the action on the grounds that there is "no prospect of success".

 

 

As I mentioned in the condescendence, HSBC's only hope is a quirk in procedure or law that'll continue to thwart justice or just good old-fashioned influence on the judiciary.

 

 

Cheers,

 

 

Richard.

Link to post
Share on other sites

Wow, that is pretty powerful Richard. I wish you the very best of luck :)

Have we helped you ...?         Please Donate button to the Consumer Action Group

 

Uploading documents to CAG ** Instructions **

 

Looking for a draft letter? Use the CAG Library

Dealing with Customer Service Departments? - read the CAG Guide first

 

1: Making a PPI claim ? - Q & A's and spreadsheets for single premium policy - HERE

2: Take back control of your finances - Debt Diaries

3: Feel Bullied by Creditors or Debt Collectors? Read Here

4: Staying Calm About Debt  Read Here

5: Forum rules - These have been updated - Please Read

 

 

BCOBS

 

2: Does your Bank play fair - You can force your Bank to play Fair with you

3: Banking Conduct of Business Regulations - The Hidden Rules

4: BCOBS and Unfair Treatment - Common Examples of Banks Behaving Badly

5: Fair Treatment for Credit Card Holders and Borrowers - COBS

 

Advice & opinions given by citizenb are personal, are not endorsed by Consumer Action Group or Bank Action Group, and are offered informally, without prejudice & without liability. Your decisions and actions are your own, and should you be in any doubt, you are advised to seek the opinion of a qualified professional.

 

PLEASE DO NOT ASK ME TO GIVE ADVICE BY PM - IF YOU PROVIDE A LINK TO YOUR THREAD THEN I WILL BE HAPPY TO OFFER ADVICE THERE:D

Link to post
Share on other sites

Hi Richard

 

The problem with pleading defamation is that the limitation period in defamation claims is only one year and defamation claims fall under CPR Part 53 and Practice Direction 53 and the Pre-Action Protocol for defamation must be complied with before any proceedings are issued.

 

 

In order to avoid res judicata, there must be no congruency between the first claim and the new claim.

 

I think you should base your (new) claim on common law tort and in a short while I will post an authority for you on the principle which I believe apply to the circumstances of your case and this may be of use for you and may help you to succeed. See what you think when I post back again here for you shortly.

 

OK then, are you going to be around all night?

 

Regards

 

Champollion

Link to post
Share on other sites

Under section 32 of the Act, the strict limitation period can be disapplied.You can apply to extend the limitation period in order to bring a libel claim against the respondents....not that it is required in this particular case.

Have we helped you ...?         Please Donate button to the Consumer Action Group

 

Uploading documents to CAG ** Instructions **

 

Looking for a draft letter? Use the CAG Library

Dealing with Customer Service Departments? - read the CAG Guide first

 

1: Making a PPI claim ? - Q & A's and spreadsheets for single premium policy - HERE

2: Take back control of your finances - Debt Diaries

3: Feel Bullied by Creditors or Debt Collectors? Read Here

4: Staying Calm About Debt  Read Here

5: Forum rules - These have been updated - Please Read

 

 

BCOBS

 

2: Does your Bank play fair - You can force your Bank to play Fair with you

3: Banking Conduct of Business Regulations - The Hidden Rules

4: BCOBS and Unfair Treatment - Common Examples of Banks Behaving Badly

5: Fair Treatment for Credit Card Holders and Borrowers - COBS

 

Advice & opinions given by citizenb are personal, are not endorsed by Consumer Action Group or Bank Action Group, and are offered informally, without prejudice & without liability. Your decisions and actions are your own, and should you be in any doubt, you are advised to seek the opinion of a qualified professional.

 

PLEASE DO NOT ASK ME TO GIVE ADVICE BY PM - IF YOU PROVIDE A LINK TO YOUR THREAD THEN I WILL BE HAPPY TO OFFER ADVICE THERE:D

Link to post
Share on other sites

Torts conspiracy to defraud, causing loss by unlawful means, tort of deceit and fraudulent misrepresentation are the torts which I believe apply to the circumstances of your case.

 

 

The authorities on these torts

 

Scott v Commissioner of Police of the Metropolis [1974] UKHL 4, Lumley v Gye [1853] QB J73, Quinn v Leathem [1901] UKHL 2 and Derry v Peek UKHL [1889] 1

 

 

Conspiracy to defraud

 

In Scott, Viscount Dilhorne said in his closing paragraph of his leading judgment that the standard definition of conspiracy to defraud is thus:-

 

“it is clearly the law that an agreement by two or more by dishonesty to deprive a person of something which is his or to which he is or would be entitled and an agreement by two or more by dishonesty to injure some proprietary right of his, suffices to constitute the offence of conspiracy to defraud”.

 

-and Lord Diplock, in agreement with Lord Reid, Lord Simon and Lord Kilbrandon on Viscount Dilhorne’s’ leading judgment in Scott, said:-

 

“Where the intended victim of a “conspiracy to defraud” is a private individual the purpose of the conspirators must be to cause the victim economic loss by depriving him of some property or right, corporeal or incorporeal, to which he is or would or might become entitled. The intended means by which the purpose is to be achieved must be dishonest. They need not involve fraudulent misrepresentation such as is needed to constitute the civil tort of deceit. Dishonesty of any kind is enough”.

 

-and in Quinn v Leathem [1901] UKHL 2 Lord Lindley said:

 

1. As to the plaintiff's rights. He had the ordinary rights of a British subject. He was at liberty to earn his own living in his own way, provided he did not violate some special law prohibiting him from so doing, and provided he did not infringe the rights of other people. This liberty involved liberty to deal with other persons who were willing to deal with him. This liberty is a right recognised by law; its correlative is the general duty of every one not to prevent the free exercise of this liberty, except so far as his own liberty of action may justify him in so doing. But a person's liberty or right to deal with others is nugatory, unless they are at liberty to deal with him if they choose to do so. Any interference with their liberty to deal with him affects him. If such interference is justifiable in point of law, he has no redress. Again, if such interference is wrongful, the only person who can sue in respect of it is, as a rule, the person immediately affected by it; another who suffers by it has usually no redress; the damage to him is too remote, and it would be obviously practically impossible and highly inconvenient to give legal redress to all who suffered from such wrongs. But if the interference is wrongful and is intended to damage a third person, and he is damaged in fact - in other words, if he is wrongfully and intentionally struck at through others, and is thereby damnified - the whole aspect of the case is changed: the wrong done to others reaches him, his rights are infringed although indirectly, and damage to him is not remote or unforeseen, but is the direct consequence of what has been done. Our law, as I understand it, is not so defective as to refuse him a remedy by an action under such circumstances. The cases collected in the old books on actions on the case, and the illustrations given by the late Bowen L.J. in his admirable judgment in the Mogul Steamship Company's Case(1), may be referred to in support of the foregoing conclusion, and I do not understand the decision in Allen v. Flood(2) to be opposed to it.

 

If the above reasoning is correct, Lumley v. Gye(3) was rightly decided, as I am of opinion it clearly was. Further, the principle involved in it cannot be confined to inducements to break contracts of service, nor indeed to inducements to break any contracts. The principle which underlies the decision reaches all wrongful acts done intentionally to damage a particular individual and actually damaging him. Temperton v. Russell(4) ought to have been decided and may be upheld on this principle. That case was much criticised in Allen v. Flood(2), and not without reason; for, according to the judgment of Lord Esher, the defendants' liability depended on motive or intention alone, whether anything wrong was done or not. This went too far, as was pointed out in Allen v. Flood.(2) But in Temperton v. Russell(4) there was a wrongful act, namely, conspiracy and unjustifiable interference with Brentano, who dealt with the plaintiff. This wrongful act warranted the decision, which I think was right.

 

In Lumley v Gye, Erle J said:-

 

“It is clear that the procurement of the violation of a right is a cause of action in all instances where the violation is an actionable wrong, as in violations of a right to property, whether real or personal, or to personal security: he who procures the wrong is a joint wrong-doer, and may be sued, either alone or jointly with the agent, in the appropriate action for the wrong complained of.”

 

 

Causing loss by unlawful means

 

Causing loss by unlawful means is a tort which differs from the principle in Lumley v Gye in that it is a tort of primary liability which does not require a wrongful act by another. Liability for unlawful means does not require contractual relations to be extant, damage in any form as a consequence of the intended wrongful act is sufficient, although proof that the wrongful act was intentional so as to cause breach of contract or interfere with contractual rights is not required because damage by the wrongful act to economic expectations is sufficient to found a claim.

 

In Mogul Steamship Co Ltd v McGregor, Grow & Co [1889] 23 QBD 598, 614 Bowen LJ said:-

 

"No man, whether trader or not, can, however, justify damaging another in his commercial business by fraud or misrepresentation. Intimidation, obstruction, and molestation are forbidden; so is the intentional procurement of a violation of individual rights, contractual or other, assuming always that there is no just cause for it. The intentional driving away of customers by shew of violence: Tarleton v. M'Gawley 1 Peake NPC 270; the obstruction of actors on the stage by preconcerted hissing: Clifford v. Brandon 2 Camp 358; Gregory v. Brunswick 6 Man & G 205; the disturbance of wild fowl in decoys by the firing of guns: Carrington v. Taylor 1 East 571, and Keeble v. Hickeringill 11 East 574n; the impeding or threatening servants or workmen: Garret v. Taylor Cro Jac 567; the inducing persons under personal contracts to break their contracts: Bowen v. Hall 6 QBD 333; Lumley v. Gye 2 E & B 216; all are instances of such forbidden acts."

 

 

 

-and in Quinn v Leathem, Lord Brampton said:-

 

 

“The remedy for the invasion of a legal right is thus stated by Lord Watson in his judgment in Allen v. Flood): "Any invasion of the civil rights of another person is in itself a legal wrong, carrying with it liability to repair its necessary or natural consequences in so far as these are injurious to the person whose right is infringed."

 

 

A conspiracy consists of an unlawful combination of two or more persons to do that which is contrary to law, or to do that which is wrongful and harmful towards another person. It may be punished criminally by indictment, or civilly by an action on the case in the nature of conspiracy if damage has been occasioned to the person against whom it is directed. It may also consist of an unlawful combination to carry out an object not in itself unlawful by unlawful means. The essential elements, whether of a criminal or of an actionable conspiracy, are, in my opinion, the same, though to sustain an action special damage must be proved. This is the substance of the decision in Barber v. Lesiter) I quote as a very instructive definition of a conspiracy the words of a great lawyer, Willes J., in Mulcahy v. Reg), in delivering the unanimous opinion of himself, Blackburn J., Bramwell B., Keating J., and Pigott B., which was adopted by this House: "A conspiracy consists not merely in the intention of two or more, but in the agreement of two or more to do an unlawful act, or to do a lawful act by unlawful means. So long as such a design rests in intention only it is not indictable. When two agree to carry it into effect, the very plot is an act in itself, and the act of each of the parties, promise against promise, actus contra actum, capable of being enforced, if lawful, punishable if for a criminal object or for the use of criminal means .... The number and the compact give weight and cause danger."

 

 

I am conscious that I have occupied more of your Lordships' time than I had intended, but the case is of real importance, and I feel that such unlawful conduct as has been pursued towards Mr. Leathem demanded serious attention. I think the law is with him, and that the damages awarded by the jury are under the circumstances very moderate. It is at all times a painful thing for any individual to be the object of the hatred, spite, and ill-will of any one who seeks to do him harm. But that is as nothing compared to the danger and alarm created by a conspiracy formed by a number of unscrupulous enemies acting under an illegal compact, together and separately, as often as opportunity occurs regardless of law, and actuated by malevolence, to injure him and all who stand by him. Such a conspiracy is a powerful and dangerous engine, which in this case has, I think, been employed by the defendants for the perpetration of organized and ruinous oppression.”

 

 

 

Fraudulent misreprentation

 

 

In Derry v Peek UKHL [1889] 1, Lord Herschell defined fraudulent misrepresentation as a statement which is made either:

 

 

i) knowing it to be false,

ii) without belief in its truth, or

iii) recklessly, careless as to whether it be true or false

 

 

 

In your case Richard, the creditor reported a default to the credit reference agencies and they published that default.

 

 

The creditor knew that the default was untrue and the credit reference agencies did not care as to whether it was true or not.

 

 

Therefore, the creditor’s act of reporting a default, which he knew was not true, represents the ‘firing’ of his ‘cannonball’ towards lenders to ward them off from contracting/doing any business with you and by doing so, the creditor has unlawfully interfered with and violated your fundamental right of liberty to contract with another (or others) and also unlawfully interfered with and violated another (or others) fundamental right of liberty to contract with you, in your case this is the mortgage lender. These facts fall within the principle of causing loss by unlawful means and the damage caused to your economic expectations by the creditor’s unlawful act is sufficient to found your claim. See the authorities above and the one immediately below on this point.

 

 

Lord Hoffmann in Douglas & Ors v. Hello! Ltd & Ors [2007] UKHL 21:-

 

“The tort of causing loss by unlawful means has a different history. It starts with cases like Garret v Taylor (1620) Cro Jac 567, in which the defendant was held liable because he drove away customers of Headington Quarry by threatening them with mayhem and vexatious suits. Likewise, in Tarleton v M'Gawley (1790) 1 Peake NPC 270 Lord Kenyon held the master of the Othello, anchored off the coast of West Africa, liable in tort for depriving a rival British ship of trade by the expedient of using his cannon to drive away a canoe which was approaching from the shore. In such cases, there is no other wrong for which the defendant is liable as accessory. Although the immediate cause of the loss is the decision of the potential customer or trader to submit to the threat and not buy stones or sell palm oil, he thereby commits no wrong. The defendant's liability is primary, for intentionally causing the plaintiff loss by unlawfully interfering with the liberty of others”.

 

 

Further, the act by the credit reference agency of publishing said default on its register constitutes a fraudulent misrepresentation within the meaning of the principle established in Derry v Peek (above). The credit reference agency published said default recklessly and was careless as to whether it were true or false. In this regard, the credit reference agency conduct amounts to ‘blind-eye knowledge’ and he has acted as agent for the creditor in publishing said default. (See Manifest Shipping Company Limited v Uni-Polaris Shipping Company Limited and Others [2001] UKHL 1 on the principle ‘blind-eye knowledge’).

 

 

The acts carried out by the creditor and the credit reference agency constitutes a conspiracy to defraud, to cause loss by unlawful means, tort of deceit and to make fraudulent representations on your character as to your status regarding your credit worthiness all of which deprived you of your fundamental right of liberty to contract with the mortgage lender and vice-versa.

 

 

The above principles are settled law and I believe they apply to the circumstances of your case and found your cause of action.

 

However, a problem that may arise with this is that actions found on tort are subject to the limitation period set out in s.2 of the Limitation Act 1980 which provides:-

 

2 Time limit for actions founded on tort.

“An action founded on tort shall not be brought after the expiration of six years from the date on which the cause of action accrued.”

 

Saving grace on the point might just be s.32 of the 1980 Act which provides:-

 

Fraud, concealment and mistake

32 Postponement of limitation period in case of fraud, concealment or mistake.

(1)Subject to subsection (3) subsections (3) and (4A) below, where in the case of any action for which a period of limitation is prescribed by this Act, either—

(a)the action is based upon the fraud of the defendant; or

(b)any fact relevant to the plaintiff’s right of action has been deliberately concealed from him by the defendant; or

©the action is for relief from the consequences of a mistake;

the period of limitation shall not begin to run until the plaintiff has discovered the fraud, concealment or mistake (as the case may be) or could with reasonable diligence have discovered it.

References in this subsection to the defendant include references to the defendant’s agent and to any person through whom the defendant claims and his agent.

(2)For the purposes of subsection (1) above, deliberate commission of a breach of duty in circumstances in which it is unlikely to be discovered for some time amounts to deliberate concealment of the facts involved in that breach of duty.

(3)Nothing in this section shall enable any action—

(a)to recover, or recover the value of, any property; or

(b)to enforce any charge against, or set aside any transaction affecting, any property;

to be brought against the purchaser of the property or any person claiming through him in any case where the property has been purchased for valuable consideration by an innocent third party since the fraud or concealment or (as the case may be) the transaction in which the mistake was made took place.

(4)A purchaser is an innocent third party for the purposes of this section—

(a)in the case of fraud or concealment of any fact relevant to the plaintiff’s right of action, if he was not a party to the fraud or (as the case may be) to the concealment of that fact and did not at the time of the purchase know or have reason to believe that the fraud or concealment had taken place; and

(b)in the case of mistake, if he did not at the time of the purchase know or have reason to believe that the mistake had been made.

(4A)Subsection (1) above shall not apply in relation to the time limit prescribed by section 11A(3) of this Act or in relation to that time limit as applied by virtue of section 12(1) of this Act.]

(5)Sections 14A and 14B of this Act shall not apply to any action to which subsection (1)(b) above applies (and accordingly the period of limitation referred to in that subsection, in any case to which either of those sections would otherwise apply, is the period applicable under section 2 of this Act).]”

 

Regards

 

Champollion

Link to post
Share on other sites

Thanks Champ,

 

 

Can this be applied in civil courts? I had understood fraud was for the criminal courts. (I'm held up by the Police on that and extortion). It certainly fits into my case but would I need to add in the CRAs as a Defender?

 

 

It's quite a lot to take in. I had been hoping to keep things as simple as possible so that others can get themselves off the hook too. Folk with defaults can't afford lawyers so things need to be expressed in layman's terms. For example, I'd expected that:

 

 

"The pursuer's earlier attempt at reparation should interrupt any period of limitation"

 

 

For sure that's one of the quirks that HSBC are trying to rely on.

 

 

Cheers,

 

 

Richard.

Link to post
Share on other sites

Hi Richard

 

 

In law, ordinary folk, such as ourselves, have no standing to bring a criminal prosecution against another (whether against an individual personal entity or body corporate entity) on grounds of fraud, however, under common law, such as the above torts, the position for ordinary folk to bring a civil fraud action against another is entirely different and we have a fundamental right to sue that other entity on grounds of his fraud against us, such right is entrenched in our law and is a fundamental public policy of not just our state but also of member states.

 

 

All of the torts referred are applicable to your case and the circumstances of it.

 

 

The credit reference agencies ought to be made defendant party to the action, because they have acted with the creditor in publishing false information relating to you which has ‘scared off’ the mortgage lender(s) from contracting with you and thereby unlawfully interfered with your right and their right of liberty to contract with each other.

 

 

The fact that you issued a claim does indeed bring the limitation clock to a standstill.

 

 

I posted some info on English statute because you enquired as to whether you ought to bring the claim in England and Wales (within the jurisdiction) in order to avoid any defence or finding by the Court of res judicata.

 

 

I think you should attack the bank and the credit reference agencies on grounds of their unlawful act of publishing a default against you which they both knew was false and unlawful interference with yours and the mortgage lender(s) right of liberty to contract with each other, which the unlawful and false default caused to drive the mortgage lender(s) away from forming contractual relations with you as they were made to believe that you are not worthy for such credit facility and thereby rendered it impossible for you to obtain a mortgage to purchase a home for you and your family.

 

 

As you aware, the bank has admitted in writing that a default against you will cause serious financial problems for you as regards being eligible for a mortgage, therefore, the bank knew, intimately, that reporting said default would place you in the disadvantageous position of obtaining credit and in particular of being entitled to apply for and obtain a mortgage.

 

 

The credit reference agencies are jointly liable for your claim. They may claim they have a duty to provide accurate information on their files relating to your personal information for the purposes of your credit worthiness, however, they did not care whether the information received from the creditor relating to said default was accurate and true or not. Therefore, they must be held to account for their actions in this matter.

 

 

There is no and there can be no duty of a credit reference agency to report accurate information on an individual’s financial status when the credit reference agencies do not know and could not care as to whether the information provided by the creditor is true or accurate.

 

 

Further, your case involves a creditor-debtor-supplier relationship and therefore PC World is responsible for their actions in this matter also. They should have contacted the creditor to confirm that you had returned the lap-top and cancelled the agreement. As their customer, they should have assisted you in this matter.

 

 

The bank does not, in my considered opinion, have any grounds to refute your claim. The bank chose to disregard your correspondence relating to the agreement on the lap-top and the fact that you had returned it to the supplier. There is no maladministration of the account here by the bank, there is no error at all, what was done by the bank, was deliberately done, and you are absolutely right to plead malice by the bank.

 

 

The bank breeched the fiduciary duty they owed to you, this is the highest standing of care owed and they deliberately acted against your financial interests by reporting a default which they knew was false and misleading as to your character and standing.

 

 

The Supreme Court has erred in law regarding your case. The whole point of your case was that said default unlawfully deprived you of obtaining a mortgage for a family home. Said default is damage in its self and was sufficient to drive mortgage lenders away from contracting with you because as far as they were concerned said default told them you are a bad debtor and not worthy of a mortgage contract.

 

 

Does any of my posting help you at all with this matter?

 

 

Regards

 

 

Champollion

Link to post
Share on other sites

Hi Champ,

 

 

On further examination of the detailed post, I see that a civil action is fine and I can sue HSBC on their own (or with the CRAs).

 

 

There's some excellent phrases that I'll shove into the next adjustment too. I may as well keep the defamation part as malice is the key theme.

 

 

I realise you've spent an age posting all that info. Thanks for that.

 

 

Do you think

 

 

"The pursuer's earlier attempt at reparation should interrupt any period of limitation" could be enough?

 

 

My argument against HSBC's "No prospect of success" is that it is already quite successful (and would have been entirely successful had it not been for an incompetent judiciary!) Good enough?

 

 

Feel free to chip in with this folks including tips that help to despatch much of the legal jargon.

 

 

Cheers,

 

 

Richard.

Link to post
Share on other sites

 

Does any of my posting help you at all with this matter?

 

 

 

Hell yeah!

 

 

Thanks very much for the confidence boost.

 

 

One thing that's always bothered me in this case is how folk believe that I bought the laptop. The guy at PC World (acting for HFC) processed the agreement after I had rejected the laptop that they had fobbed me off with (having agreed the previous day that he wouldn't). He created a false account in my name. Fraud.

 

 

Worse damage has been done with the default though. Damage that still persists.

 

 

I have already started the action against HSBC alone. I think it's too late to add in the CRAs now but I'd recommend to others that have the gumption for this, to do exactly that.

 

 

Cheers again,

 

 

Richard

Link to post
Share on other sites

Not too late at all Richard,

 

 

I think based upon your last post that PC World ought to be made defendant party to your claim along with the credit reference agencies.

 

 

Rule 19.4 Procedure for adding and substituting parties

19.4

(1) The court's permission is required to remove, add or substitute a party, unless the claim form has not been served.

(2) An application for permission under paragraph (1) may be made by—

(a) an existing party; or

(b) a person who wishes to become a party.

(3) An application for an order under rule 19.2(4) (substitution of a new party where existing party's interest or liability has passed)—

(a) may be made without notice; and

(b) must be supported by evidence.

(4) Nobody may be added or substituted as a claimant unless—

(a) he has given his consent in writing; and

(b) that consent has been filed with the court.

(4A) The Commissioners for HM Revenue and Customs may be added as a party to proceedings only if they consent in writing.

(5) An order for the removal, addition or substitution of a party must be served on—

(a) all parties to the proceedings; and

(b) any other person affected by the order.

(6) When the court makes an order for the removal, addition or substitution of a party, it may give consequential directions about—

(a) filing and serving the claim form on any new defendant;

(b) serving relevant documents on the new party; and

© the management of the proceedings.

 

 

 

The White Book Vol.1 commentary and cases on r.19.4

 

 

"The court's permission is required"

19.4.1 CPR r.19.4 provides that addition, substitution or removal of a party can take place without permission of the court before service of the claim form. If additions or substitutions are by agreement or are not contentious they may be made by application without a hearing—r.23.8 and Practice Direction supplementing Pt 19, para.1.2. All applications should be supported by evidence—either in the form of a completed Part C to Form N244 or in a separate witness statement (Practice Direction supplementing Pt 19, para.1.3). Where the applicant is not already a party, the application notice must include their address for service (Practice Direction supplementing Pt 23, para.2.1(4)). The court should deal with as many aspects of the case as it can on the same occasion (CPR r.1.4(i)) the court may consider giving case management directions on joining a new party. On the other hand, the interests of justice may require that the new party have the opportunity of making representations before directions are given (see generally CPR Pt 3).

 

 

"application ... by a person who wishes to become a party" (r.19.4(2)(b))

19.4.2 Any person may apply to the court for its permission to be added as a party to proceedings: such an applicant is called an "intervener". For the application to succeed the court will have to be persuaded as to either of the reasons for adding a new party which are set out in r.19.2(2) (joinder is desirable so that the court can resolve all matters in dispute in the proceedings; or joinder is desirable so that the court can resolve an issue involving the new party and an existing party which is connected to the matters in dispute in the proceedings). The reasons set out inr.19.2(2) do not appear to be wide enough to permit the joinder of a person who is merely interested in the case in so far as it determines a question of law (Spelling Goldberg Productions Inc v BPC Publishing Ltd [1981] R.P.C. 280). However appeal courts frequently allow official bodies and non-governmental organisations to make submissions (written or oral) at the hearing of an appeal if the submissions are intended to protect some public interest (in UKSC appeals see SCR 4.15 and 4.26 in Vol.2, paras 4A–15 and 4A–26, respectively).

 

 

In Nottinghamshire County Council v Bottomley [2010] EWCA Civ 756; [2010] Med L.R. 407 a local authority was added as a party to a high value personal injury claim in order to make representations as to the form of any settlement or judgment which was likely to significantly affect its financial liabilities to provide care for the claimant.

 

 

"evidence" (r.19.4.(3))

19.4.3 See Practice Direction, para.1.3 (see para.19APD.1), Pt 32 and the Practice Direction to Pt 32 (see para.32PD.1). In Allergan Inc v Sauflon Pharmaceuticals Ltd [2000] All E.R. (D.) 106, Ch D, Pumfrey J. refused an application to join a party as a second defendant where the claimant failed to plead a good arguable case.

 

 

"Nobody may be added or substituted as a claimant unless...he has given his consent in writing" (r.19.4(4))

19.4.4 Where an application is made to add or substitute a new party as claimant, the party applying must file (see r.2.3) the application notice, the proposed amended claim form and the signed, written consent of the new claimant (see Practice Direction, para.2.1 (see para.19APD.1)).

 

 

To add a new party to the action, you must apply to the Court by way of application and provide a witness statement and any evidence you rely upon attached thereto to support the application.

 

 

It would be a good move to put PC World and the credit reference agencies on notice to this effect, if you intend to sue them jointly with the bank.

 

 

If my posts are of help to you, then I shall continue to post for you with whatever material I can that may assist you.

 

 

Regards

 

 

Champollion

Link to post
Share on other sites

Hi Champ,

 

 

I'll have to stick to the bank this time, I'm afraid. They are the most malicious. The police are going for the guy at PC World (albeit very slowly). I'm also trying to encourage government (via my MP) to allow police to prosecute bankers for extortion.

 

 

The problem with more than one Defender is that proceedings take even longer. The hearing is set for 5th November. If HSBC are finally put straight, that'll be a fairly emphatic victory in itself.

 

 

Time is of the essence. I've only 18 years left until I retire. This began in my 20s! Nothing in place while all this is going on. HSBC's tactics will be to drag it out for as long as they can (assuming they're unsuccessful in finding a legal quirk and/or applying their influence), hence the need for super simple. Not easy!

 

 

Thanks for your help. The first hurdle (feels like the thousandth!) will be to persuade the Aberdeen Sheriff that there are prospects, perhaps as early as next week.

 

 

Richard.

Link to post
Share on other sites

Hi again Richard

 

 

No problem, looks like this time around, the other blackguards have ‘got away with it’.

 

 

Attack the bank with all the incontrovertible evidence on the facts, such as your correspondence informing the bank that you had returned the lap-top before any agreement was made and which the bank wilfully disregarded and show the Sherriff that the police are investigating PC World with a view to bring charges against its employee who fabricated the agreement after you had returned the lap-top.

 

 

The irrefutable fact is that the bank knew that you did not owe it any money under any agreement and that you had returned the lap-top promptly and also promptly sent correspondence to this effect to the bank, therefore, the bank deliberately reported said default in the knowledge of the same and in the further knowledge that it would present a false picture of your character so as to drive mortgage lenders away and prevent them from exercising their right of liberty to contract with you which in turn deprived you of exercising your right of liberty to contract with them. This constitutes unlawful interference and violation of your right and liberty to contract with whomsoever wishes to contract with you.

 

 

If the bank had not unlawfully reported the false default, you would have been entitled to obtain a mortgage of £xyz pounds to purchase a property and that property would have increased in value over the last 16-17 years and after the end of the mortgage, the property would have increased in value further still and be owned absolutely by you and therefore the bank is wholly legally responsible for this substantial economic loss caused to you. This constitutes causing loss by unlawful means and the bank is liable for such act carried out and persisted in.

 

 

What is the bank’s bottom-line defence against the claim?

 

 

I sincerely hope that helps.

 

 

Will still be here looking in on your case and if you think I can be of any further help, just post here and I will see it and respond.

 

 

Regards

 

 

Champollion

Link to post
Share on other sites

Richard

 

When you applied for a mortgage, did the lender(s) state the reason as to why your application was not successful at that time and also, how many different lenders did you make mortgage applications to and did they all state the same reason for declining to provide a mortgage to you?

 

 

Sorry, I am not prying here, just that if you made more than one application and all the lenders said ‘no’ and gave the same or similar reasons (if they gave any reason(s) at all), such evidence would be material to your case to put before the Sheriff.

 

 

Again, sorry if this question has already been asked and answered.

 

 

Regards

 

Champollion

Link to post
Share on other sites

What is the bank’s bottom-line defence against the claim?

 

 

Provisional Record attached to Post 86.

 

 

No prospects, res judicata, prescribed, irrelevant averments lacking in specification and unfounded in fact, incompetent plea, excessive sum sued for and not having suffered.

 

 

Cheers,

 

 

Richard.

Edited by Durkin
Spelling
Link to post
Share on other sites
  • Recently Browsing   0 Caggers

    No registered users viewing this page.


  • Have we helped you ...?


×
×
  • Create New...