Courts can't suspend all claims - it's against human rights

[nevos]

Subscribing

[pt2537]

Thanks,

 

im not holding my breath as we all know the courts can be a law unto themselves so to speak. i suppose ive gotta hope i get a district judge whose also been charged by barclays:D

 

still we will hopefully have a verbal answer by wednesday as to what the judge said

 

i will let you all know what happens

 

paul

[Muffintop]

Great piece of news. I think the pressure put on the courts by the back-log would be something they would be keen to avoid too. I'm expecting a stay from Abbey very soon and hope the Great & The Good of this board can come up with a suitable template. Gloves off, so as to speak.

I too am just waiting for the dreaded inevitable stay from the cc, have you had a defense yet from abbey? skeggsy v abbey

[pt2537]

Well

 

just spoken to the court, the file has been returned from the DJ and i am told its been transfered to the listing section? im still not sure whats happening at this stage but i have ben told to call them back in ten mins or so. i asked if the stay had been removed or if there were any directions that had been given by the judge but they couldnt tell me and insisted that i speak to listing section and they would be able to tell me. fingers crossed

 

paul

[pt2537]

well,

 

weve just had the news from the court and its not good. the judge has vacated teh hearing which was scheduled for 12th October and has allowed the stay to remain in place. im waiting for the full copy of the order. i have been told i can apply to have the stay lifted pursuant to CPR rule 23? (funny i thought that was what i did) but however this stay has been put inplace by the judge and NOT by request of the bank

 

inm not sure what my next move will be atthis stage buit im seeking advice. to be honest as i said in previous posts i didnt hold much hope of the Human Rights arguement holding up

 

i will post here again when i know what my next move will be

 

 

paul

[un1boy]

Hi All,

 

we are expecting to find out in the next couple of days if an attempt to get a stay lifted from my case has worked. as you will be aware i have been seeking help from a barrister has a great deal of knowledge in Human Rights. i dont want to get hopes up at this stage but hopefully should our attempt prove successful i will post our arguement on here. i have been told we are looking at a 50-50 chance as the courts will look to balance the rights of both parties in this case and could consider it fair to hold on until the outcome of the test case to clarify a point of law which is relevent in all cases relating to bank charges. i have been told to ring the court in the next day or so. i will let you all know what happens then

 

 

 

regards

paul

 

cheers mate, well done and look forward to your post....

[un1boy]

suppose ive gotta hope i get a district judge whose also been charged by barclays:D

 

Hopefully, he's more likely to have shares in barclays though! :-/

[un1boy]

well,

 

weve just had the news from the court and its not good. the judge has vacated teh hearing which was scheduled for 12th October and has allowed the stay to remain in place. im waiting for the full copy of the order. i have been told i can apply to have the stay lifted pursuant to CPR rule 23? (funny i thought that was what i did) but however this stay has been put inplace by the judge and NOT by request of the bank

 

inm not sure what my next move will be atthis stage buit im seeking advice. to be honest as i said in previous posts i didnt hold much hope of the Human Rights arguement holding up

 

i will post here again when i know what my next move will be

 

 

paul

 

Good work Paul, thanks.

 

I'm sorry about the result - how can we contact the European court of human Rights?

[deadlykiss]

aww sorry to hear that Paul will keep checking thread to see how You go

[pt2537]

Hi un1boy,

 

Not even thinking about the ECHR in Strasbourg.it would probably take just as long to get the case into the ECHR as it would for the final outcome of the OFT case to be revealed. in addition, there is the issue of cost. it would be a huge financial risk thats for sure especailly if you lose

 

 

im waiting for a phone call at the mo. basically to hopefully recieve some advice and guidance as to what to do next.

 

if you really want to know about taking a case to the ECtHR then go to http://www.echr.coe.int/NR/rdonlyres/23F65B04-5BB6-48DB-AFED-C47A906F092E/0/NoticeENG.pdf this explains how to get a case into the ECtHR

 

 

 

regards

paul

[jules1973]

Sorry to hear about your result paul. Hopefully the phonecall you are waiting on will give you some better news.

[baconbuttyman]

well,

 

weve just had the news from the court and its not good. the judge has vacated teh hearing which was scheduled for 12th October and has allowed the stay to remain in place. im waiting for the full copy of the order. i have been told i can apply to have the stay lifted pursuant to CPR rule 23? (funny i thought that was what i did) but however this stay has been put inplace by the judge and NOT by request of the bank

 

inm not sure what my next move will be atthis stage buit im seeking advice. to be honest as i said in previous posts i didnt hold much hope of the Human Rights arguement holding up

 

i will post here again when i know what my next move will be

 

 

paul

 

Hard luck Paul, its been interesting following your action, I think the only way forward is to wait. We have seen and read some very good arguments on how to overcome this situation but i sadly think nothing is going to get past the Stays, i am not an expert but i like to think i know what i am doing with these charges etc, I think we will just haver to wait and see, Has any one heard any more regarding lifting the waiver yet and if it is lifted then how will it affect the stays. good luck to us all.

[un1boy]

What is the point of case law?

 

I thought a claim that ruled on by the high court and/or the House of Lords set a precident?

 

If this is the case then why do the county courts allow CCA claims to be heard when there are cases that the lords have ruled on?

 

Am I right in thinking that the court should automatically rule in the way of the precidents set?

[tiglet]

I believe they should, but will have a duty to check the facts of the case prior to making (or not making) that judgement.

 

It is up to the defendant/plaintiff to make their case using precedents set down.

[tomterm8]

What is the point of case law?

 

Am I right in thinking that the court should automatically rule in the way of the precidents set?

 

well... no. Legal theory is much more complex than that;)

 

for example, your description is based on the declerative theory of legal precedent... however, there have been cases where courts (particularly the House of Lords) have clearly made law, not just declared it. the superior courts (i.e. house of lords, european courts) are not bound by their own precedent, and the inferior courts (i.e. county courts) are only bound by precedent where the case can not be distinguished on the basis of facts, and the precedent is the ratio of the case (i.e. the thing decided by the case) rather than orbiter (things that are touched upon, but not decided).

 

deciding what is ratio and orbiter tends to require extensive legal training.

 

And this is such a basic description... the real situation is much more complex; there are thousand page legal textbooks that descibe the legal theory behind this issue.

[un1boy]

 

OIC, so how come everyone is saying that if the OFT win a precedent will be set and the therefore the courts will rule in whatever way the high court do?

 

I'm confused by this.

[pt2537]

Hi Uni

 

heres an extract from an essay i wrote on the doctrine of precedent

 

In the English legal system there are areas of law that are made entirely from Judge-made law also referred to as case-law. Judges also make law in the process of statutory interpretation and judge made law is as important as law made by Parliament. The importance of case law is embodied in the Doctrine of Judicial Precedent or “Stare Decisis” (Latin for “to stand by things decided”). This doctrine means that a court is bound to use the same proposition from an earlier case if it is

 

Ø A proposition of law;

 

Ø A legal principle that is the reason for the decision referred to as Ratio Decidendi;

 

Ø Decided in a court whose decisions are binding on the present court, and

 

Ø There are no relevant distinctions between the cases

 

 

The component parts that make a precedent binding are as follows,

 

A Proposition of Law is distinct from a matter if fact. In practice however the distinction is not as clear-cut as many question involve mixed fact and law (Qualcast Ltd v. Haynes [1959] AC 743)

 

The most important part in the formation of a precedent is the Ratio Decidendi, which means for “reason for the decision”. This is the most important part of a judgment and is what binds the lower courts. It may also be expressed as the application of the law to the material facts. The remainder of the judgment, explanatory statements, speculation and legal principles argued but not material to the decision are obiter dicta “said by the way” and never binding although strongly persuasive. The whole of a dissenting judgment is obiter

 

It is also important that there is accurate and accessible law reporting to allow the doctrine to function as without reported cases there would be no way of telling what the rulings in older cases were unless you were actually there.

 

 

 

 

The Hierarchy of the Courts is important to the operation of the Doctrine of Precedent

 

Ø Decisions of the European Court of Justice only bind courts in the UK on matters relating to EC Law or Institutions (s.3 (1) European Communities Act 1972)

 

Ø Decisions of the House of Lords are binding on all lower courts but not itself. The House of Lords was until recently bound by its own decisions until it issued the Practice Statement (Judicial Precedent) [1966] 1 WLR 1234

 

 

Ø Decisions of the Court of Appeal are binding upon all lower courts and normally upon itself. However there are exceptions to this rule

Ø Decisions of the Divisional Courts are binding upon lower courts and normally upon themselves.

 

Ø Decisions of single judges in the High Court are binding on lower courts but not on other high court judges although they are considered highly persuasive.

 

Ø Decisions of Crown Court, County Court and Magistrates Court are not usually reported and therefore not binding

 

Ø Decisions of the European Court of Human Rights are persuasive but not binding

 

 

The exceptions on the Court of Appeal being bound by previous decisions were outlined in Young v Bristol Aeroplane Co Ltd [1944] KB 718 where;

 

1. A later decision from the House of Lords applies;

 

2. Its own previous decisions conflict;

 

3. Finally if its decisions are made per incuriam, (Latin for in error) examples are, through carelessness, in ignorance or forgetfulness of some relevant legislation or decision of the House of Lords with the result that the decision was demonstrably wrong (Morelle v Wakeling [1955] 2 QB 379)

 

Although on the face of it, it would appear that judges must follow the rulings of a higher court rigidly; there are a number of mechanisms that are available to the judiciary to help avoid being bound by a precedent

 

Judges may avoid being bound by previous decisions by overruling where higher courts overrule decisions of lower courts, by departing, where a court departs from its own previous decisions and distinguishing where the material facts of a later case differ

 

The case of R v R [1991] 4 ALL ER 481 is a perfect example of overruling, the House of Lords abolished the marital exception in rape, by overruling previous case authority

If a judge is referred to a precedent, which is considered not strictly relevant to the facts of the case concerned, often referred to as “not on all fours” with the present case then the judge may distinguish that case. This means that the precedent is not binding on the current case.

 

Courts can depart from previous decisions in a number of ways. For example, decisions of the House of Lords were binding upon itself (London Tramways Co Ltd v. London County Council [1898] AC 443) until the practice statement (Judicial Precedent) [1966] 1 WLR 1234issued by Lord Gardiner, LC. This announced that the lords were not necessarily bound by their own decisions and may “depart from a previous decision where it appears right to do so” with consideration of any retrospective effect on civil arrangements and the particular need for certainty in criminal the law

Another point to consider is that the Human Rights Act 1998 has a major effect on the Doctrine of Precedent. This is because judges are now required to interpret legislation and case law with in the remit of the Act. As a result the Human Rights Act allows overruling of any previous authority in conflict with a decision of the European Court of Human Rights

 

Although it is suggested that bad precedents must be followed the doctrine of precedent does not work as stringently as it first appears. Judges have mechanisms, which allow them to avoid being bound by a precedent so it is fair to say that should a judge be faced with a particularly bad precedent it is not automatic that he will have to follow it

The doctrine of precedent creates a foundation of consistency and certainty while allowing judges in certain circumstances flexibility to avoid being bound to follow rigid precedents in order to allow the law to develop to meet the challenges of society

 

 

 

i hope that makes things clear for you

[tomterm8]

OIC, so how come everyone is saying that if the OFT win a precedent will be set and the therefore the courts will rule in whatever way the high court do?

 

I'm confused by this.

 

Because the facts of the cases are all identical, and county courts are bound to follow the high court... however, the case is likely to go much higher than the high court, possibly to the house of lords.

[un1boy]

Because the facts of the cases are all identical, and county courts are bound to follow the high court... however, the case is likely to go much higher than the high court, possibly to the house of lords.

 

So why don't the county courts automatically rule on the CCA cases when the details are all the same?

[pt2537]

So why don't the county courts automatically rule on the CCA cases when the details are all the same?

 

simply because, the judges have a certain amount of discretion and if they feel the material facts differ and the case is not on all fours, then they can distinguish from the precedent and rule accordingly