Help!! - lowells instructing bw legal on lloyds current account

[Pinkcat]

Re: Help!! - lowells instructing bw legal on lloyds current account

Many thanks for this M1 - will let you know how I get on xx

[mystery1]

Re: Help!! - lowells instructing bw legal on lloyds current account

Feel free to ask questions

M1

[Pinkcat]

Re: Help!! - lowells instructing bw legal on lloyds current account

Hi M1
I have read through the Expandable v Rubin and Mitchell papers - for ease of reference which paras should I specifically refer to and highlight? (I don't think the DJ would like me to read the whole case) and I am not sure. Any help GREATLY appreciated xx

[Pinkcat]

Re: Help!! - lowells instructing bw legal on lloyds current account

I now prepared my pack of papers to take with me. Just to re-cap -
I am presuming I will have to speak first and justify why I am bringing this to court (ie applying for an unless order based on non disclosure of documents referred to in the POC). I will say that under cpr 31.14 I have right to inspect said documents in order that I may make a defence. I will highlight the fact that they should have had sight of these docs to bring the matter about in the first place (preaction protocols). When can I mention the Mitchell case and what is the crux of this in relation to my case. Any other tips I should mention?

[mystery1]

Re: Help!! - lowells instructing bw legal on lloyds current account

I'll get on this later but for now para 24 expandable v Rubin Mitchell about 38-42 or so.

You may need to explain that your claim is not currently a small claim cpr 27.1. You may also have to explain to a judge that the cprs give the right to inspect before a defence is due.

M1

[ncf355]

Re: Help!! - lowells instructing bw legal on lloyds current account

Mystery,

can you clarify what part of CPR give a right to inspect BEFORE the Defence is due?

Had problems with this myself

Cheers!

[mystery1]

Re: Help!! - lowells instructing bw legal on lloyds current account

To defend you get 5 days service 14 days more and a further 14 if you file acknowledgement of service. You can also agree an extension of a further 28 days.

Inspection of documents is 7 days and 7 days only.

Clearly the people who composed the rules did so so that a defence due date was after an inspection due date. This sits nicely with the over riding objective and the principle of natural justice (Al Rawi, supreme court).

In your case, and others, it appears the judge wants to push small claims thinking in to a claim that is not small claims track. CPR 27.1 (a)

A good argument needs to be presented to some of the more "unconvinced" judges and if done correctly will sway all but the judges will millions of shares in banking.

M1

[ncf355]

Re: Help!! - lowells instructing bw legal on lloyds current account



Thanks M1

[Pinkcat]

Re: Help!! - lowells instructing bw legal on lloyds current account

In your case, and others, it appears the judge wants to push small claims thinking in to a claim that is not small claims track. CPR 27.1 (a)

A good argument needs to be presented to some of the more "unconvinced" judges and if done correctly will sway all but the judges will millions of shares in banking.


And a good argument against M1 is............................................. xxx (I have to ask because I know that what you would say is going to be 10000% better than what I would say!!!

Will update you tomorrow xx Fingers crossed

[mystery1]

Re: Help!! - lowells instructing bw legal on lloyds current account

Didn't know you were in court tomorrow.

Firstly we need to look at what gives you the right to ask.

To do so we look to the rules.

http://www.justice.gov.uk/courts/pro...s/part31#31.14

31.14
(1) A party may inspect a document mentioned in –
(a) a statement of case


Inspection and copying of documents

31.15 Where a party has a right to inspect a document–
(a) that party must give the party who disclosed the document written notice of his wish to inspect it;
(b) the party who disclosed the document must permit inspection not more than 7 days after the date on which he received the notice; and
(c) that party may request a copy of the document and, if he also undertakes to pay reasonable copying costs, the party who disclosed the document must supply him with a copy not more than 7 days after the date on which he received the request.
(Rule 31.3 and 31.14 deal with the right of a party to inspect a document)



So there is the right to inspect. This is backed up in Expandable v Rubin

http://www.bailii.org/ew/cases/EWCA/Civ/2008/59.html

1. The second matter is that, subject to my first comment, the expression "mentioned" is as general as could be. This is not to my mind intended to be a difficult test. The document in question does not have to be relied on, or referred to in any particular way or for any particular purpose, in order to be mentioned. Subject to Mr Lightman's second point, that the mention of a document within CPR 31.14 amounts to automatic and absolute waiver of privilege in it, which if correct would give to that rule a most important effect, I do not see why there should be need for a strict approach to a request for inspection of a specific document mentioned in one of the qualifying documents. The general ethos of the CPR is for a more cards on the table approach to litigation. If a party thinks it worthwhile to mention a document in his pleadings, witness statements or affidavits, I do not see why, subject as I say to the question of privilege, the court should put difficulties in the way of inspection. I look upon the mention of a document in pleadings etc as a form of disclosure. The document in question has not been disclosed by list, or at any rate not yet, but it has been disclosed by mention in what, for the purposes of litigation, is another important and formal category of documents. If so, then the party deploying that document by its mention should in principle be prepared to be required to permit its inspection, and the other party should be entitled to its inspection. What in such circumstances is the virtue of coyness?

So the rules say you're entitled to inspection and LJ Rix in the court or appeal says as much too.

This would be backed up indirectly by the judgement in Al Rawi in the Supreme Court.

http://www.bailii.org/uk/cases/UKSC/2011/34.html

1. Secondly, trials are conducted on the basis of the principle of natural justice. There are a number of strands to this. A party has a right to know the case against him and the evidence on which it is based. He is entitled to have the opportunity to respond to any such evidence and to any submissions made by the other side. The other side may not advance contentions or adduce evidence of which he is kept in ignorance. The Privy Council said in the civil case of Kanda v Government of Malaya [1962] AC 322, 337:
2. Another aspect of the principle of natural justice is that the parties should be given an opportunity to call their own witnesses and to cross-examine the opposing witnesses. As was said by the High Court of Australia in Lee v The Queen (1998) 195 CLR 594, at para 32: "Confrontation and the opportunity for cross-examination is of central significance to the common law adversarial system of trial."
3. I do not believe that any of this is controversial, but it needs to be emphasised because, unlike the law relating to PII, a closed material procedure involves a departure from both the open justice and the natural justice principles. In recent years, both the courts and Parliament have been exercised by the problem of how to balance (i) the interest that we all have in maintaining a fair system of justice which, so far as possible, respects the essential elements of these principles and (ii) the interest that we also all have in the protection of national security, the international relations of the United Kingdom and the prevention, detection and prosecution of crime. Thus, Parliament has reacted to the threat of terrorism to our national security interests by introducing a form of closed material procedure (with the use of special advocates) for use in certain categories of case, for example, by enacting the Prevention of Terrorism Act 2005 and the Counter-Terrorism Act 2008.

Easy isn't it. The rules say you can inspect documents which are disclosed and the appeal and Supreme courts say you have every right to know the case against you.



Sadly there are some spanners in the works. Your case is below £10,000 which is the upper limit for the small claims track Now the opposition and maybe the court will say as it's a small claims case then different rules apply. They will cite cpr 27.2 which states that cpr 31 does not apply.

Extent to which other Parts apply

27.2
(1) The following Parts of these Rules do not apply to small claims –
(b) Part 31 (disclosure and inspection)


So that screws up the simple and logical arguments above doesn't it ?

Well no it doesn't. What happened to cpr 27.1 ?

1 comes before 2


Scope of this Part

27.1
(1) This Part –
(a) sets out the special procedure for dealing with claims which have been allocated to the small claims track under Part 26


So to work out if cpr 31 (disclosure and inspection, remember ?) is barred we need to look at cpr 26. If allocation has happened as per 26 then the rest of cpr 27 after 27.1 applies but as cpr 27.1 (a) shows if it hasn't been allocated per cpr 26.

http://www.justice.gov.uk/courts/pro...l/rules/part26 I won't copy any of that as allocation hasn't happened but have a read and take a copy with you.

So no allocation and no rules are excluded, you with me ? Phew.




Now if you have all that we still have a potential issue. It appears from others that judges are saying that you only get to inspect documents once a defence is entered. I think this is emanating from cpr 27 and the small claims track.

To defend you get 5 days service 14 days more and a further 14 if you file acknowledgement of service (cpr 15.4). You can also agree an extension of a further 28 days. (cpr 15.5)

Inspection of documents is 7 days and 7 days only. (cpr 31.15)

Clearly the people who composed the rules did so so that a defence due date was after an inspection due date. This sits nicely with the over riding objective (cpr1.1) and the principle of natural justice (Al Rawi, supreme court).

I would also point out that the early exchange of information is part of the pre action protocols and as such this information ought to have been available before the claim was lodged in any case and had that been the case you would not be in a position where you were struggling to get proper legal advice due to lack of inspection of the disclosed documents. If you haven't had a letter before action point it out.


Be polite, but firm.

With respect sir/madam i believe that is incorrect ,the rules state ... Judge blah blah said in Expandable etc


Ask for cost if you win. 10p per sheet for copies and you'll need min 2 of each or 3 is better ,1 each you them judge (not rules they should have them) £18 per hour, travel parking etc

Best of luck.

M1

[Pinkcat]

Re: Help!! - lowells instructing bw legal on lloyds current account

That's great M1 - really thorough. I will print out what you have written and take it with me. Hopefully I wont be up against it today and the DJ will have some sense. Once again so many thanks to you for what I can only describe as fantastic help and advice. xx

[Pinkcat]

Re: Help!! - lowells instructing bw legal on lloyds current account

Phew - just had the hearing. In a nutshell they didn't have any of the documents. I spoke to their solicitor before going in and she said they wanted an adjournment to get the docs and I said I didn't agree with this since they had had ample time to produce. We went before the judge. I said my piece however he said that I was to file a defence. The opposition requested an adjournment for 42 days which I thought was terrible but he agreed to them having 42 days. I pointed out that CPR 31.14 is 7 days but this was glossed over.
I was stunned when he also said that he could order that I pay THEIR costs! but he said he wouldn't make that order. I thought "hang on a minute" they were the ones that didn't comply with my CPR request so it should be my costs that are being paid.
What should I do now - I cant say I am happy - actually it was a waste of time since I still do not have sight of anything!

[Pinkcat]

Re: Help!! - lowells instructing bw legal on lloyds current account

Just as a side note - before we went in - I asked her what efforts had been made to get the docs and she rifled through her file and couldn't answer me - the file was just full of correspondence I had written so really they had no excuse and the judge should have appreciated this . She was a little nosy though - she was sat next to me as I was flicking through my file and turned a couple of my pages to see what I had in there (probably seeing where I was getting my invaluable help from!)

[Amethyst]

Re: Help!! - lowells instructing bw legal on lloyds current account

It's all just wrong

That's worrying about paying their costs.

So he's ordered you file a defence without having sight of the documents, and he knew they didn't have them?

Phew - just had the hearing. In a nutshell they didn't have any of the documents. I spoke to their solicitor before going in and she said they wanted an adjournment to get the docs and I said I didn't agree with this since they had had ample time to produce. We went before the judge. I said my piece however he said that I was to file a defence. The opposition requested an adjournment for 42 days which I thought was terrible but he agreed to them having 42 days. I pointed out that CPR 31.14 is 7 days but this was glossed over.
I was stunned when he also said that he could order that I pay THEIR costs! but he said he wouldn't make that order. I thought "hang on a minute" they were the ones that didn't comply with my CPR request so it should be my costs that are being paid.
What should I do now - I cant say I am happy - actually it was a waste of time since I still do not have sight of anything!

p.s. bumped you to VIP

[Amethyst]

Re: Help!! - lowells instructing bw legal on lloyds current account

Thread continuing in VIP ( http://www.legalbeagles.info/forums/...-on-Lloyds-Acc) whilst this is being sorted, will keep any updates on here too.