walton v rbos

[alanfromderby]

Clearly you know what you are doing, and from what you say you have them on the back foot. It is certainly going to be interesting to see their Defence to the Limitation issues.

 

On the CPR issue, it is always worth talking to the court on the phone. If it is a complex issue ask to speak to the Court Manager. They are dealing with these things every day, and the county court is geared to helping individuals successfully navigate the complexities of the CPR.

[alanfromderby]

http://www.consumeractiongroup.co.uk/forum/mercantile-court-cases-stays/announcement-center-important-document-all.html

[alanfromderby]

Just googled this:

 

LACHES, DOCTRINE OF - Based on the maxim that equity aids the vigilant and not those who procrastinate regarding their rights; Neglect to assert a right or claim that, together with lapse of time and other circumstances, prejudices an adverse party. Neglecting to do what should or could, have been done to assert a claim or right for an unreasonable and unjustified time causing disadvantage to another.

 

Laches is similar to 'statute of limitations' except is equitable rather than statutory and is a common affirmative defense raised in civil actions.

 

Laches is derived from the French 'lecher' and is nearly synonymous with negligence.

 

In general, when a party has been guilty of laches in enforcing his right by great delay and lapse of time, this circumstance will at common law prejudice and sometimes operate in bar of a remedy which is discretionary for the court to afford. In courts of equity delay will also generally be prejudicial.

 

But laches may be excused from ignorance of the party's rights; from the obscurity of the transaction; by the pendency of a suit, and; where the party labors under a legal disability, as insanity, infancy and the like.

[alanfromderby]

It is a smokescreen. The key phrase for me is that it is something that may apply where the court has discretionary powers. In the case of section 32 of the LA, the court has to decide whether the limitation stands or falls depending on the evidence in front of them. I don't see any discretionary leeway.

[alanfromderby]

I have not been on this thread for some considerable time, and have just spent some time going through the events. Whilst I appreciate that it is late in the day, I would make the following observations that I think may be helpful:

 

1) I am concerned that the concealment argument you used in relation to the charges may have been ambiguous. It is essential that the argument concentrates strongly that the bank concealed the true nature of the charges, in that they did not reveal that the charges exceeded the costs.

 

2) You said that you questioned the charges in 2002 - what was their reply. If they gave an indication that the charges were lawful and that they related to their costs then that is a fraudulent misrepresentation.

 

3) I am still not convinced that section 77/78 apply where CCJ is in place. My understanding is that the enforcement of a judgement debt, is not reliant on the CCA.

 

4) Your claim is based in civil law, because of this I would say that the fictitious agreement arguments need to be under common law fraud and the Misrepresentation Act, not the Fraud Act. Without being able to establish fraud I would agree with the judge's view that revisiting the original paperwork would be statute barred.

 

5) I am concerned with the argument they have used about the destruction of documents - especially as you raised the issue about charges in 2002. To destroy documents relating to an account in dispute would breach the FSA Principles. I would also suggest that they have breached:

 

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.

 

6) The banks admission of a mistake on the default notice should be clear evidence supporting your contention that you have a defence that has a good prospect of success.

 

7) The PPI misselling will also be based on misrepresentations during the selling process. Have a read through the stickies in the PPI Forum - this might also help you show that fraudulent misrepresentation occurred.

 

8) The question about the consolidation and changes to the structure of the accounts and loans may also be worth looking at - was this in your interest or theirs?

 

 

Hope all that helps.

[alanfromderby]

Paragraph 7 - the Misrepresentation Act switches the burden of proof onto the seller. There is a lot of new stuff in the Library on misrep caselaw.

 

Paragraph 4 - certainly the judge can report it to the CPS, but really that does not help your case.

 

Paragraph 3 - I had an application to overturn a charging order turned down in court. One of my arguments was that they were in breach of a CCA at the time, but the judge was not interested as he considered that the matter had been judged upon, and the action was to enforce the judgement debt.

[alanfromderby]

I too think you have a strong case - but I always prefer to have more ammunition than I may necessarily need.

[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.

[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.

[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.

[alanfromderby]

All the best Paul.

[alanfromderby]

Hard luck Paul - you gave it your best shot.

 

Unfortunately this highlights the big flaw in the County Court system, in that it was designed for expediency, rather than a forensic examination of the legal arguments. Presumably that is why precedents cannot be set at that level.

[alanfromderby]

Will be looking out for it - glad to see you are not letting them beat you.