DN arguments are dead (not)

[diddydicky]

so, now those who would have us believe that DN arguments are dead and not worth running have two court rulings to persuade us that the matter has been done and dusted, really!

well as i recall there are two recent cases- both with a DN that did not give the required 14 days from date of service

case one- the judge rules that as the creditor did not terminate when he said he would- and actually waited 21 days to do so- the debtor had ample opportunity to remedy and so ruled the DN valid

( the judge failed to say HOW the debtor was supposed to know when the creditor would terminate-if not when he said he would)

case two- identical- the judge makes no mention or shows no concern as to when the creditor actually terminated- he ruled that the 14 days had not been allowed therefore the DN was bad (invalid) which meant the creditors termination was invalid

so, which of these cases clears up the DN defence issue? one or two?

seems to me that if i go to court armed with BOTH of these decisions the judge will be well confused= and will have one hell of a job telling me which one he intends to rely on as i believe both were appeal court decisions

perhaps it should be two- as it came later than one? if so then judge two ( harrison ) overruled judge one's decision (amex)?

[basa48]

Re: DN arguments are dead (not)

Amex v Brandon is BS. How can a judge dismiss the letter of the law. If he can arbitrarily reduce the time allow for remedy why was it ever increased from 7 to 14 days in the first place and when the next judge reduces it more we may as well go to remedy on the day of service!!!!!

Clearly defective DNs remove a creditors entitlement to terminate and demand sums not yet due or as HJ Chambers put it - enforce.

I don't think that latter description can be disputed.

Like I've said the question is what happens then if the creditor terminates and demands sums not due.

We know he can't enforce at this stage, but does that mean the agreement endures so he can try again. To me that is just nonsense. A terminated agreement that isn't terminated. I don't see that as an intended conclusion from any judgement I've seen.

[volvodriver]

Re: DN arguments are dead (not)

Clearly defective DNs remove a creditors entitlement to terminate and demand sums not yet due or as HJ Chambers put it - enforce.

I'm not sure that's quite right.

How about:

Clearly defective DNs remove a creditors entitlement (full stop)

Can some one tell me why that's not right?

[pt2537]

Re: DN arguments are dead (not)

HHJ Rutherford sitting as a judge of the High Court in the leave for appeal hearing in brandon set out the position correctly.

HHJ DEnyer QC is a Crown Judge and therefore the Mercantile judge (Rutherford) view ought to be favoured.

Also HHJ Chambers QC was not bound by Brandon either, he considered it, and favoured Rutherfords view over Denyers

So, i believe, as many others i have spoken to in the industry that HHJ Chambers is correct.

[basa48]

Re: DN arguments are dead (not)

HHJ Rutherford sitting as a judge of the High Court in the leave for appeal hearing in brandon set out the position correctly.

HHJ DEnyer QC is a Crown Judge and therefore the Mercantile judge (Rutherford) view ought to be favoured.

Also HHJ Chambers QC was not bound by Brandon either, he considered it, and favoured Rutherfords view over Denyers

So, i believe, as many others i have spoken to in the industry that HHJ Chambers is correct.

Is the HHJ Rutherford / Brandon appeal a new judgement? and has it been published?

When you speak of HHJ Chambers, I presume you refer to your Harrison case.

It is good the time element of DNs has been re-set to the statutory 14 days by this.

[AnonymousUser1978]

Re: DN arguments are dead (not)

Intersting, i'm currently at 'Fast track' stage of a CCA case, where a faulty DN has been issued (See under CCA heading in main forum listing 'Requirement to produce 'original' documents' at court). The DJ has made comment at an interim hearing that the DN can be remedied and the proceedings re-issued, which i have accepted. (Knowing full well the re-issue and subsequent re-claim would be an abuse of the court proceedures (Along with an unlawful termination argument).

The DJ in my case has also dismissed the Interpretations act and intimated that the act is superseded by the current CPR's. Which assumes all documents are sent first class (As CPR's do not make any ref to 2nd class mail).

My argument is exactly as per the Woochester lease v Swayne case, where it was argued that a DN is a 'Statutory precursor to court action', and the court only has discretion under section 127 of the act and not section 87 or 88. Therefore, if the statutory requirements of s88 have not been followed then the court is precluded from entertaining the claim. Fingers crossed the judge accepts this! :-S

In terms of regulated agreements, mine has no dates on at all. I note that the CCA does not make ref to dates in the schedule, but does this add any weight to my 'arguments'??

[pt2537]

Re: DN arguments are dead (not)

harrison vs link

[mystery1]

Re: DN arguments are dead (not)

The DJ in my case has also dismissed the Interpretations act and intimated that the act is superseded by the current CPR's. Which assumes all documents are sent first class (As CPR's do not make any ref to 2nd class mail).

CPR are for court action so quite why the judge believes they apply to postage of a default notice which CPR has nothing to do with is beyond me. You should be strong on this point. The Judge is wrong and you have to make him understand he is wrong.

M1

[pt2537]

Re: DN arguments are dead (not)

Harrison vs Link

The judge of the High Court goes into when service occurs etc, very very clearly in my view,

[AnonymousUser1978]

Re: DN arguments are dead (not)

Harrison vs Link

The judge of the High Court goes into when service occurs etc, very very clearly in my view,

Im not sure i agree here.. I would suggest the Judge in Harrison v Link deals with the Business class service being utilised and not the normal 'deemed service' as detailed in the interpretations act. He goes on to dismiss the claim that it was MBNA's 'standard proceedure' to issue documentation via UK Mail Business class post.

[pt2537]

Re: DN arguments are dead (not)

Im not sure i agree here.. I would suggest the Judge in Harrison v Link deals with the Business class service being utilised and not the normal 'deemed service' as detailed in the interpretations act. He goes on to dismiss the claim that it was MBNA's 'standard proceedure' to issue documentation via UK Mail Business class post.

I was the fee earner on that case. So i speak from direct knowledge of the matter.

Our case was that the notice was served via second class post. His Honour clealry accepts this and details when service would occur.

so if that is what you are looking for, ie when service occurs using second class mail then this case confirms it

and you are quite wrong about business mail point

[AnonymousUser1978]

Re: DN arguments are dead (not)

CPR are for court action so quite why the judge believes they apply to postage of a default notice which CPR has nothing to do with is beyond me. You should be strong on this point. The Judge is wrong and you have to make him understand he is wrong.

M1

This is an intersting point. However the CPR Part 6 Rule 6.26 does give examples and details for the courts guidance which actually coincide with the interpretation acts 2 'business days' for 1st class post. 6A 10.1 even gives a nice example to show the judge :tinysmile_grin_t:

Its neither here nor there in my case, as whether 1st or 2nd class post was utilised, the DN only gives 12 or 10 days respectivley (Not 14 as required). As the document was posted on a Thursday, therefore deemed service is a Monday or Wednesday.

[pt2537]

Re: DN arguments are dead (not)

Thus subsequent investigation contradicted a hitherto firmly held position of the Defendant that the notice had gone by a suitable post and was served in time. It was not. It was issued and sent by second class post on 3 October 2008 arriving (as was to be expected) on 9 October 2008 and was stated to expire on 21 October 2008. Given the date of delivery, the expiry date should have been 23 October 2008. The notice was bad

from the judgment

[AnonymousUser1978]

Re: DN arguments are dead (not)

I was the fee earner on that case. So i speak from direct knowledge of the matter.

Our case was that the notice was served via second class post. His Honour clealry accepts this and details when service would occur.

so if that is what you are looking for, ie when service occurs using second class mail then this case confirms it

and you are quite wrong about business mail point

I agree that the judge accepted the 2nd class post. Maybe you misunderstood my post. The judge does not deal with 'deemed service' or when a document has been delivered in the normal course of post. Which is what my case and post relates to. The judge here deals with MBNA suggesting they utilised business class, which is different to 1st / 2nd class post regardless of the outcome. This is my point. And yes i agree the judge agreed the document was posted 2nd class.

This is what i've read which was rejected by the judge.

1. On 3 October 2008 MBNA sent a default notice (TB4/1502). Paragraph 12 of Mrs Worden's statement dated 26 July 2010 reads as follows:

Exhibited to this Witness Statement at "NW3" is a copy of the default notice which was served by MBNA on the Claimant ("the Default Notice"). The Default Notice was dated 3 October 2008 and, in accordance with MBNA's standard procedure was despatched to the Claimant on 3 October 2008 by way of UK Mail's Business Class service which guarantees delivery within two days of despatch, including Saturdays. It is not, and was not in October 2008, the standard practice of MBNA to send default notices to customers by second class post. There is no reason why the Default Notice sent to the Claimant in this case would have been sent by second class post contrary to MBNA's standard procedures.

[AnonymousUser1978]

Re: DN arguments are dead (not)

Gents,

To clarify; i'm referring directly to the Interpretations act and the CPR Part 6 6.26. The judge here does give dates, but does not make reference to his source of where his date calculations have come from. Hence my post and it not being 'very very clear'.

Had the judge referenced the interpretations act or given some support to his calculated delivery date, then this would have been 'very very clear'.