walton v rbos

[paulwlton]

Off to work now, if anyone has anything constructive to add then please post.

 

Regards Paul.

[elsinore]

PM sent

 

Els

[itsamomentintime]

re para 6 - i am sure the statute of limitations act allows for actions to be brought if you can prove that you have been misled/decieved in the first place, no matter how 'late' the action is.

 

the fact that deception has taken place takes precedent over any time-barred/'too late' accusation.

 

i think.

[paulwlton]

Any suggestions before i fax this to cobbetts and into court for this afternoons hearing.

 

 

 

 

 

[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.

 

This is not disputed and I have made reference to this in my draft defence

 

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 installments [Hoppett, page 45].

 

The bank’s admittance that the default notice was invalid precludes the bank from obtaining judgment (Woodchester v Swaine) furthermore, the bank has never shown a legal entitlement to charge interest to the accounts set up in my name that are merged in the judgment..

 

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

 

The defendant is respectfully seeking the courts permission to set aside judgment not the Claimants permission.

 

 

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.

 

As my original loan and overdraft were converted into capital and interest variable rate loan accounts two months prior to the bank obtaining judgment I can confirm I have never entered into such agreements that allow the bank to charge interest post judgment..

 

 

 

 

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.

 

It is submitted no other court has the jurisdiction whether directly or indirectly to interfere with the judgment other than this court. It is also submitted that if I was given the opportunity to enter a defence I would have a very good chance of success furthermore. I would like the court to consider my following arguments in respect of

Section 32 Limitations Act 1980 subsec 1 and 2 which I believe is relevant.

 

Fraud, concealment and mistake

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

mistake

(1) Subject to 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.

 

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

 

 

See response to para 5 .

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.

 

It is submitted that s32 (2) and s32 (1) (a),(b) and © Limitation Act 1980 applies - and through the court CAN be re-examined.

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.'

 

The bank’s position remains that no capital and interest repayment loan accounts were set up in my name to accrue contractual interest. This is a deliberate attempt to conceal the full facts from the court not only does it negate the bank’s finality argument I believe it invokes s32 (1) (a) Limitation Act 1980.

• 32. -- (1).... 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

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.

 

The bank’s claim that a judgment cannot be challenged is incorrect otherwise s32 Limitation Act 1980 would not allow time barred action to proceed in the event of fraud, concealment or admission and under mistaken belief that the information pertaining to the original case was in fact correct and wholly legal. The allegation or to invoke any subsection of the Limitation Act 1980 (1) (a), (b) or © - and then by subsection 2 - wholly undermines this argument. It is further submitted that the defendant may rely on sec 32(1) © Limitation Act 1980 for the court to reopen proceedings for the reason set out above.

 

 

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.

 

Section 32 Limitation Act 1980 - sub section 2-

(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.

I contend the breach of duty was a failure to advise the defendant that additional accounts taken out in my name without my knowledge or consent, were being operated - accruing interest value as well has being monitored for arrears whilst running concurrently alongside the court judgment.

 

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.

 

The evidence recently acquired - obtained importantly from the claimant, would also negate this argument, thereby allowing no prejudice as all information relevant in this action was in the custody of the claimant at all times! Furthermore, as the contract is merged in the judgment then the claimant is duty bound under numerous statutes (noted below) to retain such key documents until six years after the contract is fully repaid - or terminated.

 

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.

 

 

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.

 

The claimant, and persons in executive status at the bank, have claimed on numerous occasions, that the account accruing interest is my actual loan account. Which is another misrepresentation? It is noted that not one credit agreement the claimant is in possession of is legally binding.

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 apologized to Mr Walton (by letters of 1 June, 22 June and 24 July)

 

.The bank transferred the outstanding balances to new account numbers and converted the balances into two capital and interest variable rate loans, the evidence I have submitted proves my claim.

 

 

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.

 

My draft defence suggests the judgment relates to two incorrect loans not just one loan,

 

In addition to my response i believe it is an abuse of process to serve a skeleton argument on a Litigant in person that includes facts to be relied on the day before an hearing. If the court does view this behavior has a tactic to intimidate then i ask the court to set aside judgment and award costs.

 

 

I believe the facts in my response to the bank's skeleton argument are true.

[andrew1]

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.

 

The bank’s claim that a judgment cannot be challenged is incorrect otherwise s32 Limitation Act 1980. Would not allow time barred action to proceed in the event of fraud, concealment or admission and under mistaken belief that the information ......

 

 

Paul, I don't think this should have the full stop... Good Luck...

[car2403]

I don't think the Judge will have this fax by this afternoon - most Courts have a 5 day turnaround on paperwork, so it will be worth printing a copy off and taking it to hand to the Court Usher to make sure the Judge has seen it before you go in, IMHO.

 

I also don't think Cobbetts will turn it around that quickly, so might be worth having some spare copies for the solicitor that turns up anyway.

[paulwlton]

I don't think the Judge will have this fax by this afternoon - most Courts have a 5 day turnaround on paperwork, so it will be worth printing a copy off and taking it to hand to the Court Usher to make sure the Judge has seen it before you go in, IMHO.

 

I also don't think Cobbetts will turn it around that quickly, so might be worth having some spare copies for the solicitor that turns up anyway.

 

Will do, although i have made the court and cobbetts aware that a fax has been sent.

 

Paul

[elsinore]

Good luck, Paul.

 

We're all rooting for you!

 

Els

[GuidoT]

We are indeed.

[alanfromderby]

All the best Paul.

[itsamomentintime]

fingers crossed fella

[Edz11]

There are a couple of cases which would support Wlton’s case, this one is relevant in that it strengthens the argument that the absence of a valid default notice (prescibed terms etc) would nullify the original proceedings…

 

http://www.pinsentmasons.com/media/2036007463.pdf

 

And on the general principles, Scott Baker LJ said that:

'Each time the court is called upon to consider the effect of failure to comply with a provision such

as that in s.139(2) of the 1983 Act the all important consideration is the particular provision under

consideration. In my judgment failure to obtain the necessary consent before the proceedings are

begun renders the proceedings a nullity. I have been driven to this conclusion primarily by the

structure of the section and the fact that it applies to both civil and criminal proceedings

[The GodMother]

There are a couple of cases which would support Wlton’s case, this one is relevant in that it strengthens the argument that the absence of a valid default notice (prescibed terms etc) would nullify the original proceedings…

 

http://www.pinsentmasons.com/media/2036007463.pdf

 

And on the general principles, Scott Baker LJ said that:

'Each time the court is called upon to consider the effect of failure to comply with a provision such

as that in s.139(2) of the 1983 Act the all important consideration is the particular provision under

consideration. In my judgment failure to obtain the necessary consent before the proceedings are

begun renders the proceedings a nullity. I have been driven to this conclusion primarily by the

structure of the section and the fact that it applies to both civil and criminal proceedings

 

This may sound blond of me but does this mean they are ment to get permission from you before they take you to court?

[Edz11]

The article is about steps that must be taken or may be taken in certain proceedings. That one is about mental health. The issue is "failure to comply". You have to read the full article.

[Edz11]

http://www.hmcourts-service.gov.uk/judgmentsfiles/j2130/tudor.htm

another indication

[paulwlton]

I'll just start by saying the judge did not have a clue. I had to correct him on many occasions but it went over his head or he chose to let it go over his head. He wouldn't look at any of my evidence that i offered to show him to back up my claim. He made out that if he were to set aside judgment i would be liable for the last 9 years interest. What!. He claimed that the bank would have been in their right to claim post judgment interest if they had chosen. I made him aware that the court had no authority or power to award interest on a regulated agreement post judgment. The judge was of the view that i'd admitted the judgment so accept it. When i made reference to the conjectured agreements his response was flippant in saying " i think they sent you something they should not have sent" The DJ also believes a creditor cannot sue again for post judgment interest, i had to put him right on that one too.

 

So basically he would not set aside judgment and would not comment on any of my allegations regarding the CCA 1974. On the plus side he has made an order out that the bank are to stop applying interest to the accounts.

 

At first the DJ made no order to costs, at this point the bank's counsel woke up and complained. Being fair to the DJ he wasn't impressed by the bank's behavior in instructing lawyers from London to attend both hearings. So the figure he decided to apply to the judgment was £1200 a decrease of £2500 from the bank's final costs schedule.

 

Well i'm off for a beer now.

 

Paul

[andrew1]

This is somewhat worrying as I too have a case, albeit a mtg account but I am citing the CCA and the DJ said at the first hearing that the CCA was not his favourite legislation. Seems to me that if they don't understand it we get a raw deal - mmm!

[elsinore]

Bad luck, Paul.

 

I'm sure you put up the best of fights, but it sounds like you had the judge from H3ll.

 

Els

[Having_A_Knightmare]

Im getting fed up with all these DJ who think you are guilty the minute you walk into the Court. If they have a Consumer Case on the cards they should do some reading up on the relievent laws. It gets me so mad:mad:

 

Is there anything else you can do.

[davefirewalker]

So Sorry to hear about what happened.....

 

makes me so maaaaaaad, that the judges dont understand what they are judging on

 

rgds

 

Dave

[sequenci]

 

Is there anything else you can do.

 

If you feel the judge gas got the law wrong you can appeal, it could get expensive, however.

[paulwlton]

If you feel the judge gas got the law wrong you can appeal, it could get expensive, however.

 

My Mrs would not be happy lol.

[paulwlton]

This is somewhat worrying as I too have a case, albeit a mtg account but I am citing the CCA and the DJ said at the first hearing that the CCA was not his favourite legislation. Seems to me that if they don't understand it we get a raw deal - mmm!

 

It's just pot luck i'm afraid. The last judge i had was well up on the CCA and checked through default notices, charges, statements etc.

 

What was worrying today is that the judge said "the banks are a target at the moment"

[car2403]

It's just pot luck i'm afraid. The last judge i had was well up on the CCA and checked through default notices, charges, statements etc.

 

What was worrying today is that the judge said "the banks are a target at the moment"

 

They are making themselves a target he means! This is outrageous, IMHO as you've spent so long justifying your case with little in return against your arguments from them that you should have been given a shot at a fuller hearing at least.

 

As you say though, this is pot luck and just makes a lottery out of the whole system. No matter how prepared your case is, or how much you/others think you are going to win, there is always a slim chance you'll get a Judge like this and will get nowhere with it. I know it's no consolation right now, but I think this thread should be used as a warning to others of the pitfalls of litigation.

 

Good on you for trying though, Paul - I'm sure we'll be seeing more from you in the future once you've got over this disappointment.

[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.