WON !! Richard Durkin v HFC / PC World supreme court judgment 26/03/14

[Guest]

Re: Richard Durkin supreme court help needed

Davyb, that was very helpful.

Is there not two courses that could be followed here.

1. Appeal the decision that has already gone, but to do so you need to prove an error in law in the earlier decision. That is fine if everyone is comfortable that there are solid Grounds of Appeal.
2. Open a new complaint to cover the pleadings that were not made if that is what the weakness in the first case was. There is a rule that you cannot keep going back to look for a different decision under the same circumstances (I think it is called "res judicata"). In this case though, if there is an evident failure under a seperate section of the act that is more relevant is it not possible, and more appropriate, to bring that issue under scrutiny. Or does the "law" prevent that possibility?

This frustrates me about the courts, it is not unusual for something that is outside the pleadings becoming evident in a hearing but if it doesn't form part of the case then it gets set to the side. It is not absorbed into the case. That is more often than not why "the law is an ass".

To be hones M, I don't know, this is what i have been asking.
My problem is that i cannot see a flaw in the appeal courts analyses of the sections mentioned, I cant believe that our judicial system would let such an injustice stand, but perhaps I am being naive(wouldn't be the first time).

D

[Magrew]

Re: Richard Durkin supreme court help needed

Davyb,

Yes, I read it as well tonight. I am no legal expert but I have read through quite a lot of decisions in my time. There is a flow of logic through this one that I could follow that seemed reasonable. The problem is that to win at appeal it has to be proven to be unreasonable.


What I haven't seen, and what we have limited knowledge of is the documents/evidence that were presented on the day. I have seen decisions that were skewed against the weight of the evidence. This can happen through weaknesses in the argument presented on the day, or strength in the defence on the day. What you get after all is an "opinion", the clue is in the name.

In this one the second respondent's senior counsel appears to have been particularly skilled in the presentation of his case. This may be because his case was strong but it may also be because something occurred that discredited the appellant's case. Or the appellant's argument was not so well prepared and therefore less persuasive though it may still be correct.

This case appears to be a challenge at the next level. Are the same legal team bringing it forward? I would hope by now that the issues are very well understood. I am unfamiliar with the Supreme Court, does this require a barrister to bring it forward or can the solicitor advocate who presented the case in the Court of Session present it again?

That is another observation I have of the case in the court. It was a QC that presented the second respondent's case (the cream of the crop in Scottish Legal representation) and it was a solicitor advocate for the appellant (the most junior level allowed a right of audience to CoS). If it was football this is like Spain v Scotland. I presume that this happened because the appellant progressed the case under legal aid, therefore the budget wasn't available for topflight representation.

My heart tells me that there is a case to be answered here and that in a fair fight justice will come to the fore. My head tells me that it is going to be a struggle with such rational decision sitting at this level.

I am not trying to burst any bubbles here, but at this level it is best that it is not on legal aid and that representation is sought on the basis of their success in this area of law at this senior level. Has representation been identified?

[Magrew]

Re: Richard Durkin supreme court help needed

I have read the appeal again, I still see the logic of the considerations but there is one question that I cannot find an answer to. Did the document that was the agreement require signing at one section or two. If it was signed once then I cannot see how it could be argued that they are not linked agreements. If that is the case I would have thought the appropriate conclusions match that of the earlier hearing and the authority referenced.
If it required signing at two sections with defined conditions relating to each signature then I can see how it would be reasonable to treat that as two contracts. What surprises me though is how this is not recorded in the opinion of the court. (unless I missed it)
The next question that I am struggling to reconcile is that if the item was returned in "as new condition", and the customer had no benefit from it, what was to be funded by the credit. The customer hadn't purchased anything so where were the funds? If he didn't have the product or the money what was he expected to pay back, all I can see is the interest on the virtual purchase.
I think what I am asking is "has the court considered the right questions?"
I can see the logic in their discussion but is it the right discussion?
I am sure that Rico's and his legal team have pondered matters very carefully on this and Rico's statement "something fishy went on in Edinburgh" rings loud in my ears from a recent experience I had.
The more I ponder this the more I want to see it at the next level. I am worried that this is potentially damaging for future actions as well as Rico's sanity.
Has a way to fund this been established yet? As I have said I cannot offer much but I am happy to chip in.

[Guest]

Re: Richard Durkin supreme court help needed

Hi
Regarding the linked agreement, i think the court decided that even if it was a linked agreement the sale would be the subsidiary part, in other words the sale wold be linked to the credit agreement not the other way around, so cancelling the sale would not cancel the agreement.

I know it is barmy that the credit on the agreement seems to be going to the seller without them parting with the goods, i just don't think that his team have come up with the correct legal mechanism to justify the cancellation of the credit agreement.

What the creditor is saying is that this was a fixed sum restricted use agreement under section 12a of the act.
In other words there is no link between the creditor and the seller other than that one sale.

Section 75 only operates when the creditor has previously authorized the seller, this is why they are jointly accountable.

If this had been under an existing arrangement (like a line of credit or a credit card) the agreement would have fallen under section 12b and section 75 would have been an option.

So under what legal mechanism is the credit agreement to be cancelled?

I agree totally that this is absurd, and i to will be contributing, but i do like to know what is going on.

D

[Guest]

Re: Richard Durkin supreme court help needed

Hi M

Playing devils advocate the bank are saying is that it was not up to the seller to cancel the agreement, because the agreement was between Mr D and them, the seller was just the payee.

In other words he should have contacted the bank, terminated the agreement.

By taking no action after returning the goods they were unaware of the termination of the sale and continued to demand payment on the agreement.

The issue then becomes, was the seller legally required to notify the bank of the termination?

It has to be remembered that the action is about the bank wrongful recording default markers, not releasing funds to the seller.

Can they be held liable if they were unaware of the termination of the sale.

D

[Amethyst]

Re: Richard Durkin supreme court help needed

I'm sure he tried to cancel the agreement with the finance company and wouldn't allow him to cancel it saying that it had to be done by PC World - although that may have been after they took their first payment from his bank. (ie. he had assumed returning the laptop would cancel the agreement as well and was unaware it continued until they took payment - which of course would have taken him outside his 30 days (or whatever was in the agreement) to cancel.

But as far as i recall he did make them aware within a couple of months and was told to take it up with PC World ?

[Guest]

Re: Richard Durkin supreme court help needed

I think the judge did mentioned something about him continuing to pay and then taking it up with the bank, which seems unreasonable to me.

I wonder if he received a notice from the bank before the default was registered, they should have sent one under ICO guidelines and given 28 days to remedy.

D

[Guest]

Re: Richard Durkin supreme court help needed

I'm sure he tried to cancel the agreement with the finance company and wouldn't allow him to cancel it saying that it had to be done by PC World - although that may have been after they took their first payment from his bank. (ie. he had assumed returning the laptop would cancel the agreement as well and was unaware it continued until they took payment - which of course would have taken him outside his 30 days (or whatever was in the agreement) to cancel.

But as far as i recall he did make them aware within a couple of months and was told to take it up with PC World ?

Unfortunately until feb last year there was no cancellation period on a credit agreement taken out on the premises, i am pretty sure that this would have applied to a point of sale agreement.

D

[Magrew]

Re: Richard Durkin supreme court help needed

I am sure that the appellant had explained that he had signed the docs to allow the store to let him take the machine home to check for the modem. If there was no modem then he was to return it and the sale wouldn't proceed, did he even know that this meant that the credit agreement had been signed up to and would proceed?

It looks to me like an act in good faith and then it all fell apart. It is one of those butterfly effects, something tiny becoming huge. I am wondering if there is a view of proportionality going on here.

[Guest]

Re: Richard Durkin supreme court help needed

I think like most of us he would presume that the credit agreement would not be processed till the next day, when it was certain the sale was properly made made.

Being properly made is a requirement of section 56 the judge said;

"By way of example such circumstances might arise when misrepresentation on the part of the supplier, during antecedent negotiations of the contract of sale, on his own behalf, and as agent for the creditor (cf section 56(1) and (2)), was held to have induced both the contract of sale and the credit agreement. However in that situation the debtor would not require to rely on the provisions of section 75(1) in seeking rescission of his credit agreement with the creditor. In the present action, the sole basis on which the appellant has sought rescission of the credit agreement involves reliance on section 75(1). No case of misrepresentation on the part of the first respondents, or by an employee of the first respondents, as agent of the second respondents was advanced at proof or before us. On our construction of section 75(1) the case advanced by the appellant was not open to him."

If this was held the agreement would be void.
Pretty heavy hint there, otherwise it must be down to the shop for completing the sale and processing the agreement prematurely in my opinion.

D

[Magrew]

Re: Richard Durkin supreme court help needed

So the court was invited to discuss the wrong matter? If the Supreme Court are then invited to discuss the correct matters will it be a competent appeal?

[Guest]

Re: Richard Durkin supreme court help needed

So the court was invited to discuss the wrong matter? If the Supreme Court are then invited to discuss the correct matters will it be a competent appeal?

This is what i was asking Rico earlier in this thread, i gather from what he said OTR that he cannot go into details but that this is the avenue they are exploring, if so I am not sure of the mechanism he would employ to introduce what would effectively be new pleadings, but i am not that hot on SC procedure to be honest.
D

[Guest]

Re: Richard Durkin supreme court help needed

Post 41 M

[Magrew]

Re: Richard Durkin supreme court help needed

I have recently had to take a similar approach but that was first tier to second tier. This as a level higher. I also had the benefit that the respondent was the one that introduced both new arguments in their defence. I have not had the result of that yet but it was held competent for submission. In my case it was party litigant against counsel so I may have been granted leeway. In this case there may be an angle because the court weren't entirely silent on the matter, indeed D you identified that they may have signposted it. This looks possible. Sorry for taking so long to catch up.

[Rico]

Re: Richard Durkin supreme court help needed

I think like most of us he would presume that the credit agreement would not be processed till the next day, when it was certain the sale was properly made made.

Being properly made is a requirement of section 56 the judge said;

"By way of example such circumstances might arise when misrepresentation on the part of the supplier, during antecedent negotiations of the contract of sale, on his own behalf, and as agent for the creditor (cf section 56(1) and (2)), was held to have induced both the contract of sale and the credit agreement. However in that situation the debtor would not require to rely on the provisions of section 75(1) in seeking rescission of his credit agreement with the creditor. In the present action, the sole basis on which the appellant has sought rescission of the credit agreement involves reliance on section 75(1). No case of misrepresentation on the part of the first respondents, or by an employee of the first respondents, as agent of the second respondents was advanced at proof or before us. On our construction of section 75(1) the case advanced by the appellant was not open to him."

If this was held the agreement would be void.
Pretty heavy hint there, otherwise it must be down to the shop for completing the sale and processing the agreement prematurely in my opinion.

D

Heavy hint indeed. Lower court interpreted Section 75 the way it's always been interpreted these past 30 years, knowing from the facts and evidence that the bank has acted in a crminal and malicious manner.

Misrepresentation wes advanced at proof in the form of the Record backed up with evidence.

I'm away visiting outlaws at the moment.

Upon my return, I'll try and post the one document headed with PC World & HFC Bank and signed with a single post-dated signature. Obvious fraud. Agreement processed without a sale. False account created.

One of the judges in Edinburgh was clearly on our side. The Lord President wasn't, despite saying that defaults are a formidable weapon. The third didn't even have a clue what the appeal was about - simple maths.

The Scottish government are trying to do away with the UK Supreme Court. They are happy with the injustices being dished out by the highest court! It stinks.

Andrew Smith QC is the man that can. He has taken the case on pro bono. He's assisted by Richard Pugh.

Frances McCartney is coordinating the appeal.

It's so frustratingly simple yet submissions and evidence have taken over 2 weeks including discussing matters in China!

The bank is throwing so much mud at this, that judges have had difficulty seeing what they're desperately trying to cover up.

I hope criminal charges will follow.

Cheers for now,

Rico.