Barrister told porkies in court!

[Garlok]

Re: Barrister told porkies in court!

Hi Gemby,

I have heard this arrogant speech before and it certainly did not come from our side of the fence. It cost our creditor 9.5 grand in the end with the help of a really good solicitor who actually cost me nothing as they were and are working on other matters for us. Your decisions, however, must be your own.

Most people on here would like to be of genuine help and support to you, not deride your position.

I have received a private message from the perpetrator of the problems on your thread which I will not respond to at all and will be discussing the matter with the administrators of the site considering what has been posted, both remaining and removed from your thread.

There have been some good comments on your thread and clearly what has gone on has upset both you and some really good people who have been around for a much longer time than the perpetrator.

regards
Garlok.

[CleverClogs]

Re: Barrister told porkies in court!

Most people on here would like to be of genuine help and support to you, not deride your position.

My comments throughout were meant to be helpful, though I will gladly concede that the tone of my earlier comments was somewhat unfortunate.

Would you not consider it to be helpful to attempt to dissuade someone from taking a course of action in which they will probably fail and which could not possibly ameliorate their situation in the event they might succeed?

I have received a private message ... which I will not respond to at all

All I asked was who your previous posting was supposed to help.

So far from dampening down the flames in this thread, you seem intent on stoking the fires.

There have been some good comments on your thread and clearly what has gone on has upset both you and some really good people who have been around for a much longer time than the perpetrator.

I would have you know, sirrah, that I have been posting to electronic discussions for some 21 years. In that time, I have read how several litigants in person ruined themselves by fighting ill-advised actions and I sincerely hope that Gemby will not be another.

[Gemby]

Re: Barrister told porkies in court!

[quote=CleverClogs;211645]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.
Spelling mistake, my appologies.

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?
An order from a district judge read as follows: 2. Unless parties comply with paragraph 6 of the order of 20 September 2010 by 4:00pm on 9 February 2011 any party in default is debarred from relying on any such evidence.
The order dated 20 September read as follows: 6. The parties mutually disclose by 4:00pm on 29 November 2010 the signed statements of all witnesses of fact on whose evidence they intend to rely together with any hearsay evidence.
Neither party complied with the order dated 20 september...hence the second order.
The claimants witness statements didn't arrive until 10 February, ie after the deadline given in the second order.

How did you try to prove that the claimed original terms and conditions were "out of date"?
I had previously sent the OC a SAR and in response they had sent me original and current T&C's. The original T&C's were dated April 1997 however the ones sent by the claimant were dated September 1996. The account was opened in December 1997, hence the T&C's sent by claimant were out of date. The current T&C's sent also differed from those sent by OC.

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?
She did not recognise the OFT as having any legal standing

Really? That is patently absurd.
The defaul notice is dated 8 May 2009. The notice gave me until 25 May 2009 to remedy the default. The account was closed on 19 May and sold to the claimant on 21 May 2009. (This info was also gleaned from my SAR to the OC).
The judge ruled that the account was not terminated until the notice of assignment was served on 24 June 2009, thus making the assignment binding in law.


Did he say it was due to an administrative charge or that it may have been due to administrative charge?
I cannot remember his exact words but he basically mumbled his way through delivering whatever came to mind at the time

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?
My thoughts exactly


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.
[assignemt] W_F_Harrison_&_Co_Ltd_v_Burke_and_another_-_.pdf

[Angry Cat]

Re: Barrister told porkies in court!

My comments throughout were meant to be helpful, though I will gladly concede that the tone of my earlier comments was somewhat unfortunate.

Understatement!

Would you not consider it to be helpful to attempt to dissuade someone from taking a course of action in which they will probably fail and which could not possibly ameliorate their situation in the event they might succeed?

CC, you are not in possession of all the facts and;
as you clearly state within your signature:
you are not a lawyer.

Ridiculing, the OP; a vulnerable consumer, will hardly get you to the top of the popularity polls.

[WendyB]

Re: Barrister told porkies in court!

Can you all just stop it now, please. Just stick to the facts of the thread and help where possible. This petty sniping is doing no-one any favours. If you have anything to say to each other may I suggest you do it either by pm, or if you are VIP, then in Shout, whichever you like. Or even go and have a free-for-all in Chat. All of which are far less public than Gemby's thread, and all of which won't detract any further from the thread.

[Gemby]

Re: Barrister told porkies in court!

And yet you have not responded to this post.
I have now
Never mind. It will be all the more pleasant if/when you do.


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.
Wrong again, the last thing i want is pity, ive got myself into this mess so i will take it on the chin, however what i did want is help and advice on my best way FORWARD.

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
• I have not got the transcript (i couldnt afford it)
• You do not presently seem able to prove your allegation
• I cannot prove it at the moment. I have written to the claimants solicitors requesting proof of their "admin charge" but they have declined to comment.
• The alleged lie concerned a trifling discrepancy
• The trifling discrepancy would have no significance in terms of enforcement action that could be taken
• The Notice of Assignment was incorrect, therefore it could be deemed not to have been served under the Law of Property Act 1925. This would then mean that the assignment had not taken place. The claimant would therefore have no right of claim.
• Another part of your problem seems to be that you annoyed the judge
• This is certainly not the case. The judge commended the effort i had put into the case and thanked me for my manner in court.

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.
As previously mentioned, i do not expect to get the judgment overturned, if i had a cast iron case i still dont have the finances neccessary, but as a matter of principle i believe that the barrister sent should in some way be responsible for his actions.

Were costs awarded against you?

Yes, to the tune of £4.5k

Gemby

[Gemby]

Re: Barrister told porkies in court!

Sorry im causing all of these arguments!!!

[Garlok]

Re: Barrister told porkies in court!

Don't worry gemby, you are not the cause at all.

I have heard it all before almost word for word and mostly from the side of the DCA/creditor rarely from people who really know their stuff.

I am having a look around at the moment to see if there is anything else you might successfully do. There are solicitors out there who will help, not so easy now but who will work in a "CFA" basis plus there is the "pro bono" unit of the Bar Council and the direct access unit for you to speak to a barrister direct although in this case if they take it you will have to do all the legwork a solicitor would have done. I need to get off here and look at our own sols website as they have a sort of "press release area of successes and will see if there is anything relevant.

regards
Garlok

[Gemby]

Re: Barrister told porkies in court!

Hi Garlok, Angry Cat and WendyB

Thanks for your support.

I have now responded to CleverClogs questions in the hope that he may offer some sensible advice. Im always prepared to offer someone a second chance in the hope that they will shine through.

Gemby

[Gemby]

Re: Barrister told porkies in court!

Thanks Garlok

I did approach a solicitor with regards to this. Before he would commit to the case he required a copy of the transcript, and then he would prepare the case and approach council for their opinion. All of this was going to cost me £2.5k before I even knew if i had a case.

On that basis i resigned myself to biting the bullet and soldiering on!

Gemby

[Angry Cat]

Re: Barrister told porkies in court!

The only way that you may be able to proceed is in obtaining a copy of the transcript. After, receipt of same, counsels opinion may provide the guidance that you clearly need.

It is possible for you to take the Public Access route and cut out solicitors costs.
http://www.barcouncil.org.uk/about/f...ess-directory/

However, you must be able to present/prepare your case correctly, in order that a Barrister will be able determine your best way forward or, defence.

ii) Public Access

Members of the Public, and commercial and non-commercial organisations are now able to instruct barristers directly on most civil matters. The Public Access page provides information on instructing members of the Bar directly.

At the end of the day, no one knows your case better than you do.

p.s. a few well planned hours with the correct Barrister can cost less than months of correspondence through a firm of solicitors

[CleverClogs]

Re: Barrister told porkies in court!

I did approach a solicitor with regards to this. Before he would commit to the case he required a copy of the transcript, and then he would prepare the case and approach council for their opinion. All of this was going to cost me £2.5k before I even knew if i had a case.

I believe that may be his way of telling you that you do not stand much chance; he'd be reasonably content to act as your Sancho Panza if you want to fight giants, but he'll need payment up front so you could waste your money (rather than his) on what may be an unprofitable venture.

[Garlok]

Re: Barrister told porkies in court!

Absolutely AC! This is the direction I was pointing ( I thought) gemby towards in my post 38 above along with some alternatives.

I have taken the time out to look at several law firms' sites including the ones acting for us and there are a number (legion in fact) of cases whereby judgements in similar circumstances to those described in credit card issues have been overturned or set aside.
Including bankruptcy orders, Stat Demands, charging orders, orders for sale and each case rests from the precis commentaries on technicality some of which would certainly have been dismissed here as de minimus issues!!

As I see it, it is not for the faint hearted and I would not recommend going it alone as an LIP and those of you that know me already are aware that I am a fan of getting proper help as early as possible and there ARE law firms out there who have both the specialist knowledge and the ethics to help properly if they can. Some even say on their websites that they may be able to offer help on a no win -- no fee basis, some on CFA, some like ours will take a nominal fee and if the case is strong enough no further fees are payable. I thought our cases were a lost cause at one time but a properly trained eye in these matters can bring new light that could never have been brought by amateur experts on forums like these despite our best efforts.

regards
Garlok

[CleverClogs]

Re: Barrister told porkies in court!

Thank you for your reply.

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?

An order from a district judge read as follows: 2. Unless parties comply with paragraph 6 of the order of 20 September 2010 by 4:00pm on 9 February 2011 any party in default is debarred from relying on any such evidence.
The order dated 20 September read as follows: 6. The parties mutually disclose by 4:00pm on 29 November 2010 the signed statements of all witnesses of fact on whose evidence they intend to rely together with any hearsay evidence.
Neither party complied with the order dated 20 september...hence the second order.
The claimants witness statements didn't arrive until 10 February, ie after the deadline given in the second order.

Thank you for that explanation. As it may determine whether or not the claimant did comply with the second order, can you say when the envelope containing the witness statements was posted?

If they had allowed two days for the envelope to reach you, they may have been deemed to have complied even if the envelope was somewhat delayed in the post. Yes, I agree it is absurd, but such is the law - see posting rule.

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

I had previously sent the OC a SAR and in response they had sent me original and current T&C's. The original T&C's were dated April 1997 however the ones sent by the claimant were dated September 1996. The account was opened in December 1997, hence the T&C's sent by claimant were out of date. The current T&C's sent also differed from those sent by OC.

Here, we seem to be faced with the silliness of the Carey case, as it would seem that you had been supplied with sufficient information to make up your own "true copy" of the agreement even if that had not been supplied in the manner prescribed by the Consumer Credit Act 1974.

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?

She did not recognise the OFT as having any legal standing

That is irrelevant, as the agreement between the parties referred to a document which thus became part of the agreement between the parties; if they had agreed to be bound by the rules of the Beatrix Potter Fan Club or the rules set out in the book of Leviticus, those rules (whatever they may be) would become part of their agreement.

Really? That is patently absurd.

The default notice is dated 8 May 2009. The notice gave me until 25 May 2009 to remedy the default. The account was closed on 19 May and sold to the claimant on 21 May 2009. (This info was also gleaned from my SAR to the OC).
The judge ruled that the account was not terminated until the notice of assignment was served on 24 June 2009, thus making the assignment binding in law.

This seems the biggest problem as one might suppose that the debt could not be sold until the steps required by the default notice had not been done by 25/5/09, so what - if anything - was sold to the claimant four days previously?

As a non-lawyer, I would venture to suggest that all that could have been sold on 21/5/09 was the debt set out in the default notice, comprising such sums on money payable to restore the account into compliance with the credit agreement. The whole balance would not become payable until 25/5/09, so that debt could hardly have been sold in the assignment of 21/5/09.

As for her ruling that the account being terminated a month later, that is just silly.

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

I cannot remember his exact words but he basically mumbled his way through delivering whatever came to mind at the time

It is more likely to have been a clerical error, but it really was of little importance. If the debt owed been £747 - less than the limit for bankruptcy - an additional £5 would have nudged it over the limit and hence a minor error could have serious implications but, in this case, £5 on an alleged debt of £17K is rather trivial.

If you are to accuse that barrister of lying or seeking to deceive the court, you will need the transcript and, if he mumbled or his words were at all indistinct, the official version may differ from your recollection. This would not be the result of collusion or a cover-up (as the odious James Frederick Hulbert alleged) but the inevitable result of using 19th century technology in a 21st century court.

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?

My thoughts exactly

Did you say so at the time?

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.

[assignemt] W_F_Harrison_&_Co_Ltd_v_Burke_and_another_-_.pdf

The link won't work for me, as the site requires me to register. I'll ask one of the site admin to get it and host it here, as it may prove useful to others.

[charitynjw]

Re: Barrister told porkies in court!

The Harrison link didn't work for me, either!

:smash: