walton v rbos

[davefirewalker]

I think they have been following the OFT advice......

 

obviously wrong

 

btw I expect to have a do with RBS shortly...they have just defaulted my loan.... BUT it was in dispute anyway as the ppi was wrongly advised.

 

Dave

[paulwlton]

I will submit my costs before the hearing.

 

 

 

 

 

IN THE ROTHERHAM COUNTY COURT CLAIM No MA828118

 

BETWEEN:

 

THE ROYAL BANK OF DSCOTLAND PLC CLAIMANT

 

-and-

 

PAUL WALTON DEFENDANT

 

 

SCHEDULE OF COSTS FOR DEFENDANT

 

 

PREPERATION FOR BOTH HEARINGS - 40 HOURS @ £10.00 - £400.00

 

LOSS OF EARNINGS - 28 DAYS @ £84.00 - £2,352

 

TRAVEL EXPENSES - £50.00

 

PHOTOCOPYING - £10.00

 

POSTAGE - £10.00

 

SUB-TOTAL - £2,822

 

 

 

 

FURTHER COSTS

 

 

DAMAGES (CREDIT FILE) - £1000

 

EXEMPLARY/ PUNITIVE DAMAGES - TBC

 

TOTAL COSTS CLAIMED - TBC

[caro]

Not sure if you can claim £10.00 an hour Paul, unless it's increased. It's about £9.50 I think. Also, regarding loss of earnings, my understanding is that you can only claim for the time in court, so depending on the length of the hearing, it's usually half a day or a day.

[paulwlton]

Not sure if you can claim £10.00 an hour Paul, unless it's increased. It's about £9.50 I think. Also, regarding loss of earnings, my understanding is that you can only claim for the time in court, so depending on the length of the hearing, it's usually half a day or a day.

 

The loss of earnings were a direct result of the claimant's unconscionable behavior(loss of earnings:mental sickness). I don't think personal injury will cut the mustard so i have amended and have included punitive damages.

 

Punitive damages (non-compensatory)

 

Main article: Punitive damages

Generally, punitive damages, which are also termed exemplary damages in the United Kingdom, are not awarded in order to compensate the plaintiff, but in order to reform or deter the defendant and similar persons from pursuing a course of action such as that which damaged the plaintiff. Punitive damages are awarded only in special cases where conduct was egregiously invidious, and are over and above the amount of compensatory damages. Great judicial restraint is expected to be exercised in their application. In the United States punitive damages awards are subject to the limitations imposed by the due process of law clauses of the Fifth and Fourteenth Amendments to the United States Constitution.

In England and Wales, exemplary damages are limited to the circumstances set out by Lord Patrick Devlin in the leading case of Rookes v. Barnard. They are:

1. Oppressive, arbitrary or unconstitutional actions by the servants of government.
   
2. Where the defendant's conduct was 'calculated' to make a profit for himself.
   
3. Where a statute expressly authorises the same.

Paul

[caro]

Go for it then, but clearly itemise it. You don't ask you don't get.

[paulwlton]

Go for it then, but clearly itemise it. You don't ask you don't get.

 

Will do.

[photoman]

Paul

Just wanted to say that I'm still popping in regularly to catch up on your thread, and watching with interest as I plan to tackle some similar issues myself soon.

Everything crossed for you (although your determination and methodology should negate any need for luck).

Can you please just quickly post a reminder for all of when your next court appearance is scheduled?

 

PM

[car2403]

Not sure if you can claim £10.00 an hour Paul, unless it's increased. It's about £9.50 I think. Also, regarding loss of earnings, my understanding is that you can only claim for the time in court, so depending on the length of the hearing, it's usually half a day or a day.

 

It is not for the court to set a rate for the time spent by a litigant in person. A statutory rate has been fixed at £9.25 pence per hour

 

I'm not sure which Statute it is, but I took this from here;

 

High Court Judgment Template

[alanfromderby]

CPR 48.6 - Practice Direction 52.4

 

However, where you can prove loss of income then that rate would apply - this would usually need to be backed up with evidence from an employer.

[paulwlton]

CPR 48.6 - Practice Direction 52.4

 

However, where you can prove loss of income then that rate would apply - this would usually need to be backed up with evidence from an employer.

 

A have submitted a medical note from my GP and a schedule for loss of earnings from my employer.

 

 

Paul

[paulwlton]

Paul

Just wanted to say that I'm still popping in regularly to catch up on your thread, and watching with interest as I plan to tackle some similar issues myself soon.

Everything crossed for you (although your determination and methodology should negate any need for luck).

Can you please just quickly post a reminder for all of when your next court appearance is scheduled?

 

PM

 

The two hour hearing is this Friday.

[paulwlton]

This will be my response in court to the bank's witness statement. I have responded to every paragraph.

 

 

Any help or input would be appreciated.

 

 

Para 4. – Evidence has been submitted which clearly shows two capital and interest variable rate loans numbered -------- ------- taken out in the defendant’s name on 20th August 1998 two months prior to the claimant obtaining judgment on the said accounts.

 

Para 5. The account numbers subsumed in the judgment relate to capital and interest variable rate loans not an overdraft or personal loan as the bank claim. The operation of the accounts post judgment is conclusive prove.

 

Para 6. The loan agreements the bank conjectured and forwarded was a failed attempt to justify their legal right to apply all and further interest on fictitious accounts set up in my name.

 

Para 7. The defendant has previously contested the claimants default charges by way of sec 32 (1) (b) © Limitation Act 1980 in the small claims court. However, this is an application to set aside judgment and has no bearing on any previous hearing. It is respectfully submitted that no other court has the jurisdiction to interfere with the judgment, whether directly or indirectly, this is also the view of the claimant.

 

Para 8. I believe it is trite law that once a judgment is obtained under a contract then the contract is merged in the judgment therefore it does not supersede the contract as the claimant contends and rights of the debtor remain until the debt is discharged. This is also the view of the OFT.

 

Para. 9 The claimant states that I have persisted in asserting that a “true copy” of my agreement MUST contain my signature. I believe this is a further attempt to mislead the court and as the allegation is made under a signed statement of truth I ask the claimant to provide the court with evidence to substantiate this claim.

 

Para 10 the claimant believes it’s an abuse of process to assert my rights under the CCA Act 1974 post judgment. The only section which would apply is sec 77 (3) (1) (a):

If there is an amount payable under the agreement; then it cannot be classed as “an agreement under which no sum is, or will or may become, payable by the debtor”

 

Para11 The defendant acknowledges no interest has been applied directly to the judgment account. The interest has been applied to the accounts that are merged in the judgment, as per First National Bank v Director General OFT.

 

Para 12 Here the bank admit that the fictitious accounts set up in my name without my knowledge or consent are my actual accounts and therefore have been operated independent of the judgment account.

 

Para 13- Para 27 and 28 of my draft defence refers to case law which suggests that a judgment doesn’t supersede a regulated contract as the bank claim in their witness statement.

 

 

Para 14 I doe not accept the banks argument, on one hand they imply the judgment supersedes the contract, then on the other it is claimed; the defendant still has a liability under the contract in respect of payment protection insurance, for which judgment has been obtained - the FSA have deemed no cancellation rights in insurance contracts are contrary to the UTCCR 1999.

 

• Unfair Contract Terms:

 

Unfair Terms in Consumer Contracts Regulations 1999 (the Regulations).

Financial Services Authority 17

We also had concerns with:

• policy terms that provide no refund of the single insurance premium

where the consumer wishes to cancel the PPI policy without early

repayment of the loan;

.

 

Para 15 the bank admit the default notice is invalid therefore the bank was precluded from obtaining judgment at the time it did so, and it also submitted that the court had no power to grant judgment at the time it did so. On this basis alone it is requested the court set aside judgment.

 

Para 16 I believe the court has the power to award exemplary damages if it is found that the bank’s behaviour was intended to mislead and deceive as well has to make a monetary gain.

 

Para 17 the defendant has only recently found out discrepancies in relation to the judgment and I respectfully ask the court to take this into consideration. Therefore, I have not delayed in making the application as the bank claims, and it is also my belief that the bank has suffered no prejudice, and that there would be no limitation problems if the court did allow the bank to forward a further default notice as proceedings would be retrogressed

 

Para 18 . In addition to the foregoing, I now wish to have the opportunity to defend the claim and I believe that I have a very good chance of success.

[paulwlton]

If the bank have lost or destroyed my original agreement would it be worth mentioning the DPA to the DJ.

 

 

Losing or destroying personal data i believe is in itself a breach of the Seventh Principle of the Data Protection Act 1998.

Which states ;

Appropriate technical and organisation measures shall be taken against the unauthorised or unlawful processing of personal data and against accidental loss or destruction of, or damage to, personal data.

 

Paul

[paulwlton]

I will fax the bank and submit my schedule for costs today.

 

 

 

IN THE ROTHERHAM COUNTY COURT CLAIM No MA828118

 

BETWEEN:

 

THE ROYAL BANK OF DSCOTLAND PLC CLAIMANT

 

-and-

 

PAUL WALTON DEFENDANT

 

 

SCHEDULE OF COSTS FOR DEFENDANT

 

 

PREPERATION FOR BOTH HEARINGS - 40 HOURS @ £9.25 - £370.00

 

LOSS OF EARNINGS - 28 DAYS @ £84.00 - £2,352

 

DAYS ATTENDING HEARINGS - 2 DAYS @ £84.00 - £168.00

 

 

SUB-TOTAL - £2,890

 

 

 

 

FURTHER COSTS

 

 

DAMAGES (CREDIT FILE) - £1000

 

EXEMPLARY DAMAGES - DISCRETION OF THE COURT -

 

TOTAL COSTS CLAIMED - TBC

 

 

 

DATED 01/01/2008

[car2403]

If the bank have lost or destroyed my original agreement would it be worth mentioning the Data Protection Act to the DJ.

 

 

Losing or destroying personal data i believe is in itself a breach of the Seventh Principle of the Data Protection Act 1998.

Which states ;

Appropriate technical and organisation measures shall be taken against the unauthorised or unlawful processing of personal data and against accidental loss or destruction of, or damage to, personal data.

 

Paul

 

Absolutely, IMHO.

 

Sharing data with a third party without express written consent is also a criminal offence under s.35 DPA 1998 - how can they show they have or had your consent if they've destroyed the documentated agreement? Shocking...

[alanfromderby]

Had a look though and you seem to have covered everything that I can see. As far as your last question is concerned, this seems to hinge on the confusion the bank have created in their own argument over whether the original contract is superseded, or whether it is merged.

 

If the judgement supersedes, then it would be reasonable that they could destroy documents, if it is merged (which the law suggests is the case) then they are duty bound under numerous statutes to retain such key documents until six years after the contract is fully repaid - or terminated.

[paulwlton]

Just slight adjustments.

 

Para 6. The loan agreements the bank conjectured and forwarded was a failed deliberate and calculated attempt to mislead and deceive me into believing they had justification and legal right to apply all and further interest on fictitious accounts set up in my name, which I submit was an abuse of position

 

Para15 the bank admit the default notice is invalid therefore the bank was precluded from obtaining judgment at the time it did so, and it also submitted that the court had no power to grant judgment at the time it did so. The judgment was therefore granted in error as the court was not aware of the full facts. On this basis alone it is requested the court set aside judgment.

[paulwlton]

Had a look though and you seem to have covered everything that I can see. As far as your last question is concerned, this seems to hinge on the confusion the bank have created in their own argument over whether the original contract is superseded, or whether it is merged.

 

If the judgement supersedes, then it would be reasonable that they could destroy documents, if it is merged (which the law suggests is the case) then they are duty bound under numerous statutes to retain such key documents until six years after the contract is fully repaid - or terminated.

 

Alan, what are the relevant statutes to support the retaining of documents for six years after the contract has ended. Forgive me if you've already posted them.

 

Paul

[alanfromderby]

a) The Money Laundering Regulations 1993, 2003 and 2007 which state that key documents (such as agreements) must be kept until 5 years "after the business relationship" ends.

 

b) Schedule 18 of the Finance Act 1998 (paragraph 21), which states that "all supporting documents" must be kept for six years after the end of the tax year - I would interpret that to mean that on the case of a loan, the whole file would need to be kept for six years after it is repaid.

 

c) Sections 221 and 222 of the Companies Act 1985, say that a public company is required to maintain records for a period of six years (section 222(5)(b). As a loan agreement is active until the agreement is terminated, I would suggest that all the payment records (and other documents making up the file - including the agreement/application etc) would be "live" until the account is paid, or terminated - thus, the full file should be retained for at least six years after that.

 

 

NB: The 2007 money laundering regs now state that transactional information can be destroyed five years after the individual transaction - but that key documents (such as agreements) must still be retained until five years after the business relationship ends.

[Edz11]

Contract and merger of judgment is covered in this case;

House of Lords - Director General of Fair Trading V First National Bank

 

and there is a specific para which seems to cover it;

"At any rate since In re Sneyd; Ex p Fewings (1883) 25 Ch D 338, not challenged but accepted without demur by the House of Lords in Economic Life Assurance Society v Usborne [1902] AC 147, the understanding of lawyers in England has been as accurately summarised by the Court of Appeal at p 682 of the judgment under appeal:

• "It is trite law in England that once a judgment is obtained under a loan agreement for a principal sum and judgment is entered, the contract merges in the judgment and the principal becomes owed under the judgment and not under the contract. If under the contract interest on any principal sum is due, absent special provisions the contract is considered ancillary to the covenant to pay the principal, with the result that if judgment is obtained for the principal, the covenant to pay interest merges in the judgment. Parties to a contract may agree that a covenant to pay interest will not merge in any judgment for the principal sum due, and in that event interest may be charged under the contract on the principal sum due even after judgment for that sum."

[volvodriver]

Paul

 

Para 9 has should be as

[volvodriver]

Paul

 

Para 13 has should be as

 

Para 17 the bank as suffered should be has

[paulwlton]

I've just contacted Cobbetts to make sure there will be no surprises tomorrow as they have a tendency to ambush the LIP.

 

I've been informed they have put together a further skeleton argument, however, i have requested that this is emailed to me today and they've agreed, i will post in due course.

 

Paul

[paulwlton]

Hello guest. Quick off the mark today.

[paulwlton]

Any thoughts.

 

 

[References to Hoppett, page x are to page numbers of the exhibit to Rachel Hoppett's witness statement.]

 

Introduction

 

1. In around 1998, the Defendant ('the Bank') provided Mr Walton with 2 credit facilities: (i) an overdraft on his Royalties current account (account number 10017026) and (ii) a personal loan (account number 03805926). These accounts ('the Accounts') were regulated by the terms of the Consumer Credit Act 1974.

 

2. Following a default on the part of Mr Walton, the Bank obtained judgment against Mr Walton on 5 November 1998 for the sum of 13,057.06 ('the Judgment'), part of which has since been satisfied by way of monthly instalments [Hoppett, page 45].

 

3. By this application, Mr Walton now seeks to set aside the judgment obtained in 1998. The Bank resists the application.

 

Mr Walton's application

 

4. The basis for the present application is difficult to fathom. The main allegation seems to be that the credit agreements to which the Judgment related were not entered into by him. There are collateral allegations including the position as to whether interest accrues on the judgment sum, the Bank's provision of copies of relevant agreements, mis-sold insurance and the validity of the default notices.

 

The Bank's submissions in a nutshell

 

5. For the reasons set out in more detail below, the Bank resists this application on two broad grounds. First, it is not open to Mr Walton to try to re-litigate a matter on which judgment was given around 9 years ago. This is an important threshold argument which means that the Court does not need to go on to consider the substantive merits. Second, in any event, the defences put forward by Mr Walton have no realistic prospect of success.

 

The application is too late and/or is an abuse of process

 

6. Mr Walton wishes to go behind a judgment that was obtained in 1998. It is simply not open to him to reopen this judgment. It is an abuse of process to attempt to do so.

 

7. The general position relating to finality of judgments is set out in Zuckerman, Civil Procedure: Principles of Practice (2nd ed.) at 22.40 – 22.41:

 

'Once a judgment has been perfected, the court's jurisdiction is exhausted and the court no longer possesses the power to vary or set aside its judgment. Both justice and public policy demand that once a dispute has been determined by court judgment, the parties and the community should be able to proceed on the assumption that that matter has been conclusively settled once and for all. Justice requires that there should be a limit to the uncertainty created by legal disputes. … This idea finds statutory expression in CCA 1984, s.70, which provides that "[e]very judgment and order of a county court shall, except as provided by this or any other Act or as may be prescribed, be final and conclusive between the parties".

 

The principle of finality dictates that once a judgment has been given on the merits, the court has no further jurisdiction to adjudicate on the matter and cannot reopen the case.'

 

8. The author then goes on to say that this is subject to two qualifications: a non-party costs order, and where a judgment was not given on the merits. See the attached extract at pages 800-801.

 

9. It appears from the judgment [see Hoppett, page 45] that it was not a default judgment, but based on Mr Walton's admission. Mr Walton has had the opportunity to put forward any case that he wished to make. It is plainly not open to him to sit back and then attempt 9 years later to re-litigate a dispute in relation to which a conclusive judgment has not been given.

 

10. Even if one were dealing with a default judgment, or if the principles governing default judgments were thought to offer guidance, this would not help Mr Walton. A relevant factor to which the court will have regard in exercising its discretion to set aside a default judgment under CPR 13.3 is whether the application has been made promptly: see CPR 13.3(2). This is amplified by the White Book note at 13.3.3.

 

11. The delay of around 9 years falls a long way of short of a 'prompt' application. As set out in Ms Hoppett's witness statement at para 17, this will have caused obvious prejudice to the Bank if the judgment is now set aside.

 

No realistic prospect of success

 

12. The Bank and Mr Walton have exchanged correspondence since April 2007 [Hoppett, pages 1-24] regarding (inter alia) the provision of a copy of the relevant credit agreement. The position has been made plain to Mr Walton by the Bank's letter of 24 July 2007 [Hoppett, pages 17-18]. The Judgment was in respect of his two Accounts, and no further interest accrues on the judgment sum.

 

13. For internal debt recovery reasons, the outstanding balances in August 1998 were transferred to new account numbers. The Bank mistakenly sent Mr Walton details of these 'internal' accounts on 30 April 2007. The Bank has since apologised to Mr Walton (by letters of 1 June, 22 June and 24 July).

 

14. There the matter should have ended. It has been made clear to Mr Walton that his liability towards the Bank is governed by the Judgment, and the 'internal' account details are of no relevance to that. It is plain that Mr Walton's suggestion that the Judgment related to the 'wrong' loan has nothing to be said for it.

 

15. The other complaints are dealt with in detail in Ms Hoppett's witness statement, to which the Court is referred.

 

Conclusion

 

16. For the reasons set out above, the Bank invites the Court to dismiss this application.

 

 

Fred Hobson

3 January 2008

 

3 Verulam Buildings

Gray's Inn

London WC1R 5NT