Barrister told porkies in court!

[Angry Cat]

Re: Barrister told porkies in court!

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

:smash:

http://www.bailii.org/cgi-bin/markup...method=boolean

[leclerc]

Re: Barrister told porkies in court!

The link is from another website which you need to be registered on to view. Can someone with access to the site, save the PDF and then repost it up here? I don't have access so cannot do so myself.
Options on here is "Go Advanced" then you should be able to attach PDF to the post.


EIDT: "It is further averred that to be valid the the alleged notice of assignment must accurately describe the
assignment including the date (W F Harrison & Co Ltd v Burke & another [1956] 2 ALL ER 169)."

Source: http://www.x-centric.net/capquest.pdf

[Garlok]

Re: Barrister told porkies in court!

Hi gemby,

Hope that you are not getting snowed with it all. I have just re read your whole thread and I need to clarify some issues which you will need to clarify to yourself should you proceed in any way to get this thing sorted.

May I just make some observations?

1. At no stage does there appear to have been any production of an agreement properly signed or properly compliant with CCA1974 or as amended 2006. I can't remember the exact date of implementation of the 2006 amendments but the usual cut off date quoted is April 2007. Pre that date you have the protection of section 127 in full not quite post 2006 amendment.
2. In any event this brings into play s61 and the failure to provide the documents as stated precludes completely the enforcement even by the court of your debt.
3. It is conditional by Statute that a debt sold on by the OC such as credit card debt carries with it the FULL liabilities and obligations of the original agreement (if it ever existed) hence any statement to the contrary is an untruth. No longer a running credit agreement is smoke and mirrors.
4. The comments about Carey on here are spurious. HHJ Waksman made it absolutely clear in his judgement that he was NOT ruling on anything other than the provision of information for compliance with the section 78 request CCA1974/2006. I won't go further than this but anyone who knows anything remotely about this case already knows that this was for the information purpose only not the proof purpose. Plus in s108 and s234 of the judgement he made it even clearer that the ORIGINAL document is required at each and every unilateral variation right back to the date of inception.

What has happened is that because Carey provides very dangerous ground for a creditor, the banks/creditors had to build quickly build a case law history against weak and inadequate LIP defences which often were nothing more than templates from internet forums or just bad advice from the same places, (not meant to be derogatory to you at all just a fact). Creditors are less than happy go to court as the claimant when an alleged debtor has proper legal representation.

It is a fact if you look at various cases involving MBNA that they are less than likely to have proper compliant documentation in place. In fact in Carey they lost one case outright and withdrew from a further two of the original 13 that made up this hearing. Far from having no legal standing in these matters the OFT were represented at these hearings as they had briefed a very competent barrister who HHJ Waksman heard and took note of in his judgement. It is a sad fact that the MBNA cases were represented by Cartel Client Review CMC now defunct and underwritten by solicitors now struck off. The scandal of which undermined much of the good stuff in Carey. Our solicitors were also at this case by the way if there is any argument.

So to move forward with your debt issue not solely on the barrister lying issue I believe you will have to go right back to basics. They have complied with s78 that is clear other than the date issues. No mention of an agreement with which to enforce, still required by the claimants in your case, hence all the fumbling and mutterings at your own hearing where the judge lottery played against you and they were hoodwinked.

Hope that is a start for you to think about.

regards
Garlok

[leclerc]

Re: Barrister told porkies in court!

http://www.bailii.org/cgi-bin/markup...method=boolean

wrong Harrison, AC. This one is WF Harrison and Co Ltd

[Angry Cat]

Re: Barrister told porkies in court!

wrong Harrison, AC. This one is WF Harrison and Co Ltd

Okay leclerc, am on it now and have printed the judgement off. But, unfortunately do not know how to post up the pdf file?

[leclerc]

Re: Barrister told porkies in court!

Okay leclerc, am on it now and have printed the judgement off. But, unfortunately do not know how to post up the pdf file?

If you save a copy of the PDF from the other site, then on here go to quote post, then manage attachments(browse for document then upload) once it has uploaded then hit the submit replay and bob's your uncle

[CleverClogs]

Re: Barrister told porkies in court!

http://www.bailii.org/cgi-bin/markup...method=boolean

Whilst that - the celebrated "telephone torture" case - may be fascinating, it is not the case of W F Harrison & Co Ltd v Burke and another - [1956] 2 All ER 169 which I sought - it is the much more recent case of Harrison v Link Financial Ltd [2011] EWHC B3 (Mercantile) (28 February 2011).

[Angry Cat]

Re: Barrister told porkies in court!

http://www.legalbeagles.info/forums/...manageattach&p=

[CleverClogs]

Re: Barrister told porkies in court!

http://www.legalbeagles.info/forums/...manageattach&p=

I really am most grateful, not least of which because the judgement by Tom Denning confirms what I suggested about the purported assignment in this immediate case : that the only debt that could have been assigned on 21 May 2009 would have only comprised arrears and such other sums set out in the notice of default to restore the account to compliance with the credit card agreement.

[Gemby]

Re: Barrister told porkies in court!

Hello everyone,

Sorry, ive been out at work all day but i see you have all been busy.
I will try to digest your posts later and respond to them tommorow.

Thanks for your efforts

Gemby

[Gemby]

Re: Barrister told porkies in court!

Hi everyone, thanks for your patience.

Thank you Angry Cat for posting up the Harrison judgment.

I will try and answer your questions in the following posts

Gemby

[Gemby]

Re: Barrister told porkies in court!

Thank you for your reply.


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.
The witness statement was dated 8 Feb but the envelope (which i still have as proof) was dated 9 Feb, hence it was not delivered until 10 Feb.

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.
The judge ruled that i had not been predjudiced because i eventually had all the information to hand. Surely though the burden of proof is on the claimant to prove the agreement, it is not up to me to prove it on their behalf.

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.
So are you saying that the judge should have enforced the OFT guidelines?

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.
Is it not the case that they just sold the account as it stood?
As for her ruling that the account being terminated a month later, that is just silly.
She said that the agrrement was not terminated until the Notice of Assignment had been sent as required by LoP Act 1925. Only when this had occured was the assignment complete.

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.
I understand that £5 is a trivial amount but the point is that the NoA was incorrect thus making it invalid.
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.
I will look again at costs involved for the transcript.

Did you say so at the time?
No i didn't, but i did think that the judge may have thought it strange.

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.

I presume you now have access to the judgment.

Gemby

[Gemby]

Re: Barrister told porkies in court!

Hi gemby,

Hope that you are not getting snowed with it all. I have just re read your whole thread and I need to clarify some issues which you will need to clarify to yourself should you proceed in any way to get this thing sorted.

May I just make some observations?

1. At no stage does there appear to have been any production of an agreement properly signed or properly compliant with CCA1974 or as amended 2006. I can't remember the exact date of implementation of the 2006 amendments but the usual cut off date quoted is April 2007. Pre that date you have the protection of section 127 in full not quite post 2006 amendment.
2. In any event this brings into play s61 and the failure to provide the documents as stated precludes completely the enforcement even by the court of your debt.
3. It is conditional by Statute that a debt sold on by the OC such as credit card debt carries with it the FULL liabilities and obligations of the original agreement (if it ever existed) hence any statement to the contrary is an untruth. No longer a running credit agreement is smoke and mirrors.
4. The comments about Carey on here are spurious. HHJ Waksman made it absolutely clear in his judgement that he was NOT ruling on anything other than the provision of information for compliance with the section 78 request CCA1974/2006. I won't go further than this but anyone who knows anything remotely about this case already knows that this was for the information purpose only not the proof purpose. Plus in s108 and s234 of the judgement he made it even clearer that the ORIGINAL document is required at each and every unilateral variation right back to the date of inception.

What has happened is that because Carey provides very dangerous ground for a creditor, the banks/creditors had to build quickly build a case law history against weak and inadequate LIP defences which often were nothing more than templates from internet forums or just bad advice from the same places, (not meant to be derogatory to you at all just a fact). Creditors are less than happy go to court as the claimant when an alleged debtor has proper legal representation.

It is a fact if you look at various cases involving MBNA that they are less than likely to have proper compliant documentation in place. In fact in Carey they lost one case outright and withdrew from a further two of the original 13 that made up this hearing. Far from having no legal standing in these matters the OFT were represented at these hearings as they had briefed a very competent barrister who HHJ Waksman heard and took note of in his judgement. It is a sad fact that the MBNA cases were represented by Cartel Client Review CMC now defunct and underwritten by solicitors now struck off. The scandal of which undermined much of the good stuff in Carey. Our solicitors were also at this case by the way if there is any argument.

So to move forward with your debt issue not solely on the barrister lying issue I believe you will have to go right back to basics. They have complied with s78 that is clear other than the date issues. No mention of an agreement with which to enforce, still required by the claimants in your case, hence all the fumbling and mutterings at your own hearing where the judge lottery played against you and they were hoodwinked.

Hope that is a start for you to think about.

regards
Garlok

Hi Garlok

Thanks for the effort you are putting into this for me.

Going back to basics, in response to the CCA request the claimant sent a reconstituted copy of the original "application form" It was entitled "acceptance form" It contained my name and address, signature and date. It also contained another signature and info on data protection, my right to cancel and a statement about credit agreement regulated by CCA1974. On the reverse of this construction was a copy of "Financial and Related Conditions" which contained the prescribed terms.
To me it all seemed compliant with S.78 request following Carey.

You have mentioned several solicitors, can you let me have their details?
What options do you think i have? I originally requested the forms to appeal but i only had 21 days in which to lodge my appeal. This deadline has now passed. Can i still appeal or can i apply for a set-aside?

Gemby

[CleverClogs]

Re: Barrister told porkies in court!

I presume you now have access to the judgment.

Yes; I believe that Harrison v Burke confirms the point I made about what - if anything - could have been assigned on 21/5/09.

As you pointed out yourself, the entire account could not have been assigned as the assignee was not in the business of providing credit card accounts and, moreover, not holding an appropriate licence, would not lawfully have been able to provide that service had you met the terms of the default notice on or before 25/5/09. The assignee is in the loathsome and parasitical business of debt farming and, in my opinion, is hardly better than a usurer - a veritable boil, canker or suppurating pustule upon the buttocks of modern society.

[Garlok]

Re: Barrister told porkies in court!

Hi gemby,

I do think that an expert eye is needed. They seem to have been compliant with the s78 information request, I would not be too sure about being in all honesty enforceable in a court under the Statute. cleverclogs has some good points about the assignment etc and all these things need to be knitted together to bring the matter before a court again.

IMVHO I would have thought that a set aside would be the route not necessarily an appeal as such.

On the legal front we are with MSB Solicitors in Liverpool (MSB Law LLP) and have been for well over 18months now. Whilst they may not suit everyone, evrything we have been advised or instructed to do or not do and everything they have actioned on our behalf has never been to our detriment. They have a specialist consumer credit department headed by a solicitor advocate who is a specialist in this field.

The other good one that I know is Watsons in Llandudno and pt2537 a memeber on this forum actually works for them. They are also specialists in this field and were the driving force behind the recent Harrison v Link case in which the judge lambasted the DCA and OC around the court.

If you want to have a check around the country, I entered "consumer credit lawyers" and then "consumer credit solicitors" into my search engine and drew up a short list. I then got on the phone and spoke direct. you can get a good feeling for how they stand from a conversation like this which you will not get via e-mail.

To get the short list together I applied some very simple criteria.

1. any law firm which had advertising fora financial institution on its site was ruled out.
2. any law firm which took the approach "phone the bimbo (sorry girls!) and get an instant legal opinion in 40 seconds" was ruled out.
3. any law firm, on the basis that really good law firms are generally fairly conservative (note small c) in their manner, that had flashy marketing approaches to the law on thier sites were ruled out.
4. any law firm that had ties to claims management companies were ruled out.
5. law firms which had apparent conflicts of interest within their site structure were ruled out.
6. preferably located geographically within a 50 mile radius but not critical.

From this and gut feeling I had about 8 to 10 law firms country wide. I then got on the phone. I had good vibes from MSB straight away after some disappointments and we went with them. They don't suit everyone and it would be a strange world if they did.

regards
Garlok