Barrister told porkies in court!

[WendyB]

Re: Barrister told porkies in court!

VIP members who post up on LB, should consider the wordings within their posts before hitting the: submit reply button.

Leagle Beagle, members post on the forum in order to obtain sensible advice, not sarcasm and rudeness.

CleverClogs, your considered response will be welcomed.:beagle:

Actually, that applies to all members, not just VIPs. VIP members aren't any more important, or valued than non-VIPs. We aren't necessarily more knowledgeable, either. We're just a different colour, orange as opposed to blue.

[CleverClogs]

Re: Barrister told porkies in court!

my defense

That might be the result of a badly configured spell checker, but do you speak as well as spell with an American accent? This might seem a silly question, but it might explain any misunderstandings that could have arisen.

1. The claimant had failed to comply with a court order to disclose witness statements on time. The order stated that failure to do this would result in the party being "debarred from relying on any such evidence".
The judge just over ruled that order.

Without seeing the terms of the order or knowing to which witness statements it referred, it is difficult to understand why you should believe this restriction on the claimant should continue indefinitely.

If you needed more time to study the witness statements, you should have asked for that. How long before the court date were the statements produced? Did you ask for more time and, if you did, what was the result?

2. The claimant had failed to comply with a section 78 request and was therefore not entitled to enforce the agreement.
In response to my request the claimant had sent terms and conditions which were out of date at the time of the agreement. They also sent incorrect current T&C's. I provided the court with evidence that this was the case.

How did you try to prove that the claimed original terms and conditions were "out of date"?

I quoted Judge Waksman in Carey para 119, suggesting that the T&C's ought to be correct.
The Claimant had suggested that as the account was no longer a running account, there was no need for them to comply with my s.78 request. They used Rankine -v- American Express to back this up.

As a matter of personal opinion, I am less than entirely comfortable with either precedent. Given the various ways in which the image on a piece of paper may be preserved - microfilm, microfiche, electronic storage - is it really so unreasonable to expect a lender to produce an exact facsimile of the agreement as the borrower signed it, complete with the borrower's signature?

I pointed the Court to the OFT Guidance on s.78 requests. The OFT considers that Rankine does not apply as the ruling was obiter. I also pointed out that in the deed of assignment between the OC and the Claimant, they had both agreed to be bound by OFT guidance.

The Judge stuck with Rankine and stated that as the agreement had come to an end there was no duty for the claimant to reply to my s.78 request and so it didnt matter that they had sent incorrect T&C's. She ruled that the OFT had no bearing on the case.

There is an old adage that states "hard cases make bad law", but I'd extend that by averring that nutty cases make even worse law and Rankine (if not Carey too) was such a case.

I can easily understand her apparent disregard for the opinions of the Office of Faffing and Twaddling, which quango has lately become less useful than a chocolate tea pot but, if the claimant had agreed to be estopped by the OFT Guidelines, why did she disregard that estoppel?

3. The OC had issued a Default Notice in accordance with s.87(1) CCA 1974. However the OC then sold the account before the 14 day period given to remedy the default. Under s.88(2) they were not entitled to do this. I backed this up with American Express -v- Ian Karl Robert Brandon para 34.
The judge ruled that just because the OC had sold the agreement it didnt mean that the agreement had been terminated.

Really? That is patently absurd.

I then posed the question, what if i had remedied the default once the account had been sold, still within the 14 day period, would the claimant whose business is debt collection, have honoured my credit card account? In her judgment the judge stated that that question would have posed an interesting situation. However i hadnt remedied the default so it was irellevant.

Nor, I suspect, would you have been able to remedy the default - so it is rather a moot point

4. The Notice of Assignment was incorrect. As previously mentioned the amount on the NoA differed from the amount actually owed. All be it by only £5.
In the case of W F Harrison -v- Burke heard in the court of appeal the appeal judges stated that they thought "the amount ought to be correct " and "the notice must be strictly accurate"
I stated that if the NoA was not accurate then the assignment was not valid under the law of property act 1925 and therefore the claimant had no right of claim.
The barrister for the claimant then suggested that the difference in amounts was due to an admin charge. This was totally untrue and made up on the spot. The barrister had no idea why the amounts differed.

Did he say it was due to an administrative charge or that it may have been due to administrative charge?

Either way, it seems unlikely for MBNA to charge so little for admin - were they holding a sale on pen-pushing activities during that week?

The judge ruled that Harrison -v- Burke was not relevant as the ruling was obiter and instead she chose to accept what the barrister had told her.

There may be better precedents than W F Harrison & Co Ltd v Burke and another - [1956] 2 All ER 169 which, incidentally, I have been quite unable to find at Bailii or via swarb.co.uk; if you could provide a link, I would really be most grateful.

Whilst I realise that £5 isnt a great deal of money, if the barister had told the truth and stated that the NoA was actually incorrect, then surely there may have been a different outcome?

I really would doubt that the result would be much different.

[charitynjw]

Re: Barrister told porkies in court!

http://www.legalbeagles.info/forums/...ad.php?t=23460

(some interesting stuff here)

[EXC]

Re: Barrister told porkies in court!

CleverClogs, do you really have to post in such a rude and boorish manner?

Or, is it that you think that you really are a clever dick?:
someone who is annoying because they are always right or because they think they are more intelligent than everyone else

Do you realise that the second sentence of your post completely invalidates the first?

[Gemby]

Re: Barrister told porkies in court!

CleverClogs

I did not get chance to read your posts before you erased them, but they did not sound very complimentary.
As I previously stated you are entitled to your own opinion, but please don't pre judge my situation.
I do not defend my actions, but believe me i am not in this situation by choice.

Gemby

[Garlok]

Re: Barrister told porkies in court!

Hi Gemby,

It is an unfortunate fact that you will get certain people taking rude arrogant stances on these forums.

I always assume that they are "batting for the other side" once they start to do that. Read what they say with very jaundiced eyes and treat them perhaps not quite with contempt but with pity for the very sad way they must lead their boring lives.

A little knowledge is a very dangerous thing.

Most of us here including myself are not here by choice but force of circumstance outside our control which has brought us to our knees. There are good guys here.

Another suggestion for you to obtain a form of redress, if the circumstances are as you suggest and you do have proof (documentary) of the barrister lying to the court then a formal letter of complaint to the Bar Council is in order. Keep it short, factual, to the point and no emotion backed up by copies of your documentary evidence.

Once that is in place, a further look at your exact legal position needs to be taken.

regards
Garlok

[Gemby]

Re: Barrister told porkies in court!

Could someone please explain how i multi quote CC's post so i can respond. The multi quote button does not seem to work.
Thanks

Gemby

[Garlok]

Re: Barrister told porkies in court!

Hi gemby,
I'm pretty inept at some of the mechanics as well, but usually find my answers to my wrongdoings in the "guides" section in the banner at the top of the page.

regards
Garlok

[Gemby]

Re: Barrister told porkies in court!

Hi Garlok


Most of us here including myself are not here by choice but force of circumstance outside our control which has brought us to our knees. There are good guys here.

This sums up my situation pretty well.



Thanks for your suggestion, i will look into sending a letter off.

Gemby

[CleverClogs]

Re: Barrister told porkies in court!

A little knowledge is a very dangerous thing.

If you must quote Pope, please do so accurately!

A little learning is a dang'rous thing;
Drink deep or taste not the Pieran spring!
There shallow draughts intoxicate the brain,
And drinking largely sobers us again.

Look here for the entire poem.

Most of us here including myself are not here by choice but force of circumstance outside our control which has brought us to our knees. There are good guys here.

I'm here from choice; whilst I am certainly not wealthy, I am presently coping.

Another suggestion for you to obtain a form of redress, if the circumstances are as you suggest and you do have proof (documentary) of the barrister lying to the court then a formal letter of complaint to the Bar Council is in order. Keep it short, factual, to the point and no emotion backed up by copies of your documentary evidence.

The transcript might shew whether or not the barrister did say an untruth in court but, if it not not, will Gemby then claim that the transcript had been altered?

Once that is in place, a further look at your exact legal position needs to be taken.

Do you suppose that the judgement can be overturned?

[CleverClogs]

Re: Barrister told porkies in court!

Another suggestion for you to obtain a form of redress, if the circumstances are as you suggest and you do have proof (documentary) of the barrister lying to the court then a formal letter of complaint to the Bar Council is in order. Keep it short, factual, to the point and no emotion backed up by copies of your documentary evidence.

Thanks for your suggestion, i will look into sending a letter off.

I would still aver that you should write to the Vatican; as either approach is likely to be a waste of time and neither would be likely to reverse the judgement against you, it would surely be better to waste the Vatican's time than anyone else's.

[charitynjw]

Re: Barrister told porkies in court!

Imho, while the letter of the Law is important, from an 'holistic' pov, I seem to remember reading something about gnats & camels in a publication which some regard as an authority.

http://wiki.answers.com/Q/What_does_...the_camel_mean

[Garlok]

Re: Barrister told porkies in court!

There is an old adage CC, when in a hole stop digging and throw the shovel out!!

Maybe gemby will have a problem, maybe he won't get the judgment overturned but maybe he will get some redress from a rational formal complaint to the relevant authority and prevent this barrister from doing this and ruining someone else. maybe he should find a solicitor who is an expert and the really good ones are NOT expensive they have no need to be and just maybe he would get this judgement set aside. I note that you have not explored any of the potential legal avenues open to him yet have spouted an exhibition of just how little you actually know.

I did not "quote" anyone but made a statement of fact, I have no need to, I leave such puerile pastimes to the likes of you.

Either help properly or leave well alone.

Garlok

[Gemby]

Re: Barrister told porkies in court!

This tittle tattle is getting me nowhere.

CC you have every right to sit up in your ivory tower looking down on the down trodden, or you could get off your high horse and offer some help.

I am grateful of any advice given to me and would gladly respond to your questions on my defence. However i did not post this thread to become the centre of playground ridicule.

During my troubles i have found consumer forums to be of great help. Not all the advice given is what i have wanted to hear, but never the less it is always gratefully received.

I would also be grateful of your advice, but if you cannot offer it in the spirit of these forums, i would respectfully request you unsubscribe from my thread.

Gemby

[CleverClogs]

Re: Barrister told porkies in court!

CC you have every right to sit up in your ivory tower looking down on the down trodden, or you could get off your high horse and offer some help.

I am grateful of any advice given to me and would gladly respond to your questions on my defence.

And yet you have not responded to this post.

Never mind. It will be all the more pleasant if/when you do.

However i did not post this thread to become the centre of playground ridicule.

At a guess - and I can only guess at your motives - I'd say that you might have sought pity, or hoped that everyone would exclaim that it was terrible and that Something Must Be Done. Some might even have suggested a possible course of action.

If the alleged lie could be proved from the case transcript and if the alleged lie was so grievous as to make the judgement unsafe, then I would certainly suggest making a complaint to the Bar Council. However:

• You do not seem to have obtained the transcript
• You do not presently seem able to prove your allegation
• The alleged lie concerned a trifling discrepancy
• The trifling discrepancy would have no significance in terms of enforcement action that could be taken
• Another part of your problem seems to be that you annoyed the judge

Because of all the above, I really do believe that any complaint made at the moment would just be dismissed and would thus waste their time and your time.

Even if you were to obtain the transcript and it did contain exactly the speech or verbal comments you remember, I still doubt that the Bar Council would do much - if anything - about it. Nor would proving your allegation make one iota of difference to the judgement.

Were costs awarded against you?