Phoenix Recoveries v Kotecha Jan 2011

[pt2537]

Re: Phoenix Recoveries v Kotecha Jan 2011

So keep it vague right up to skeleton argument, right??

BTW does a skeleton argument have to be submitted to the opposition, if so how long before the hearing.

I have a hearing date and date for WS / exchange docs.

skeletons normally 2-3 days before trial.

unless the Court directs otherwise

[pt2537]

Re: Phoenix Recoveries v Kotecha Jan 2011

Seems the Lord Justices have moved fast on this one

Judgment was returned to me this AM

So here it is

[Shepherdess]

Re: Phoenix Recoveries v Kotecha Jan 2011

What a sane and well reasoned case and judgement. Thanks Pt.

[pt2537]

Re: Phoenix Recoveries v Kotecha Jan 2011

you are very welcome

[Ihaterbs]

Re: Phoenix Recoveries v Kotecha Jan 2011

you are very welcome

Para seven is sweet.

[pt2537]

Re: Phoenix Recoveries v Kotecha Jan 2011

Para seven is sweet.

very sweet

[basa48]

Re: Phoenix Recoveries v Kotecha Jan 2011

Para seven is sweet.

Maybe, but 24 / 25 not so much:

24. On the one hand it is for the claimant to prove its case, and it has not done so on its own documents. On the other hand, first the point was not taken below; and secondly the effect of Section 78 is only suspensory so that if the claimant can give further evidence, either by finding the correct version of the terms and conditions in HFC’s archives inherited from Beneficial Bank or by putting in evidence as to the interest rates prevailing in the summer of 1998 or in some other manner, the claimant may yet be able to prove its case and to comply with the obligation under Section 78, in which case it may be that it will become entitled to judgment. It is accepted, and there are first instance authorities for this, that failure to comply with Section 78 does not prevent a creditor from starting proceedings, but it does prevent a creditor from obtaining judgment.

25. Accordingly, there may be a case for this Court on allowing the appeal to remit the case to the county court so as to give the claimant an opportunity to put in further evidence and to try again to comply at last with the request made under Section 78 in February 2007 rather than to dismiss the claim entirely. Whatever order should be made in consequence, however, I would allow the appeal and set aside the judge’s order on the basis that the claimant has not shown that the documents in evidence are a true copy of the agreement between the defendant and Beneficial Bank in July 1998 and therefore has not shown that the obligation under Section 78, which arose on the request made in February 2007, has been complied with.

[Ihaterbs]

Re: Phoenix Recoveries v Kotecha Jan 2011

Maybe, but 24 / 25 not so much:

I think this applies for this judgment only and wouldn't be allowed if the claimant failed to rectify a sec 78 breach before trial at county court level.

[pt2537]

Re: Phoenix Recoveries v Kotecha Jan 2011

I think this applies for this judgment only and wouldn't be allowed if the claimant failed to rectify a sec 78 breach before trial at county court level.

yes, the fact was that the defendant hadnt taken the point with the lower court judge,

Had it been tried then the appeal judges were clear on the johnson v gorewood point from their discussions with both counsel

[Ihaterbs]

Re: Phoenix Recoveries v Kotecha Jan 2011

yes, the fact was that the defendant hadnt taken the point with the lower court judge,

Had it been tried then the appeal judges were clear on the johnson v gorewood point from their discussions with both counsel

Which was?.... excuse my ignorance.

[pt2537]

Re: Phoenix Recoveries v Kotecha Jan 2011

Which was?.... excuse my ignorance.

Well, the interest rate point hadnt been raised until the appeal court,

So , the judges took the view that issue estoppel didnt arise as there had been no actual adjudication on that point,

however if it had been tried and the judge still found that it was enforceable then they have had their bite of the cherry

[Ihaterbs]

Re: Phoenix Recoveries v Kotecha Jan 2011

Well, the interest rate point hadnt been raised until the appeal court,

So , the judges took the view that issue estoppel didnt arise as there had been no actual adjudication on that point,

however if it had been tried and the judge still found that it was enforceable then they have had their bite of the cherry

Thanks. Link below explains.


Res Judicata

[dad]

Re: Phoenix Recoveries v Kotecha Jan 2011

Pt,

I note the judgmnent calls for counsel's submissions on the consequences. Has your counsel made their submissions?

If not I have some pointers for them if I could send them to you by PM.

Dad

[pt2537]

Re: Phoenix Recoveries v Kotecha Jan 2011

Pt,

I note the judgmnent calls for counsel's submissions on the consequences. Has your counsel made their submissions?

If not I have some pointers for them if I could send them to you by PM.

Dad

yes they did and the order has been made,

[Nibbler]

Re: Phoenix Recoveries v Kotecha Jan 2011

Now up there on Bailii

http://www.bailii.org/ew/cases/EWCA/Civ/2011/105.html