Judgment & Beyond ~ Budgie Vs Capital One

[TANZARELLI]

Re: Judgment Handed Down ~ Budgie Vs Capital One

Hi All,

Nothing much to add to what Ame has already posted up earlier.

Hope you all enjoy reading the judgment.

I have already submitted a witness statement in respect of the next hearing, which I will post up in a few days, so the only orders issued today were in respect of information that Capital One should submit to the Court and myself by 10th December 2008. The assessment of damages hearing will then be scheduled for the first available date after 2nd January 2009 with the same Judge presiding.

Hearing only lasted five minutes.

However Judge did say that there is nothing to stop parties discussing the possibility of settlement prior to the next hearing !!!

Certain remarks made to me by the Capital One Barrister, after we had left the Courtroom lead me to believe that Capital One will not wish this case to proceed to the next stage.

The Barrister, not the same one who attended the last hearing, said that she thought that "a Judgment issued by a County Court Judge agreeing with a House of Lords appeal decision was a bit of a no brainer". When I said that it's a shame that her sentiments had not been reflected in Capital One's defences, witness statements and skeletal arguments to date she responded that "yes, well that wasn't down to me was it".

She asked me if I was more interested in the publicity or in settlement of the claim. I replied that this claim was my own claim for recovery of what I considered to be unlawfully applied charges to my account with an associated interest award. However, I also remarked that the claim was attracting a lot of interest from fellow Claimers.

She asked if I would consider agreeing a settlelment if one were offered. I said that it would depend on the offer. She asked if I would be willing to sign a non disclosure / confidentiality agreement. I of course replied that it would depend on the overall offer and the conditions attached.

Watch this space !!!

Looks like they might want to try and put a cover over Budgie's cage !!!!!***???

Too right they would want to do this. I would understand that if you were made a very attractive offer that it may well be in your own interests to accept certain conditions mate and that decision would be one that only you could make.

Its not for me or anyone else to say anything to try and get you to do something other than whats best for you financially mate.

However I can offer my own opinion which is that this is a massive turning point for Compound Interest claims and you have worked very hard to get to this point. I would think that if they were to require you to accept any form of confidentiality agreement this is got to be something they would need to pay for and pay some serious money for, by this I mean much more than your original claim amount would cost them.

JMHO mate, but if your considering this make them work very very hard for it.

[Amethyst]

Re: Judgment Handed Down ~ Budgie Vs Capital One

Bud, what can we put in public about the judgment ?

[StoneLaughter]

Re: Judgment Handed Down ~ Budgie Vs Capital One

The last bit worries me; he says that yes, you can claim compounded interest. However he says that it's for you to prove that you have lost the same or more than you can recover in court; and that if you can't prove this, that you may still be limited to 8% Simple (County Courts Act).

You should continue to be careful and thorough in constructing your arguments for the next stage and don't count any small flightless birds until the ovoids have broken.

If you are made an offer, you should IMO challenge their right to any confidentiality; I see nothing in this case which would affect their commercial position and I also think that your silence is a commodity which can be bought. If you don't agree to confidentiality I think their desire to avoid the next stage will outweigh their desire to apply for an Injunction or Order silencing you.

:beagle:

[Budgie]

Re: Judgment Handed Down ~ Budgie Vs Capital One

There is a bit more to the judgment than meets the eye on a first read through.

For obvious reasons I would rather not go into too many details at present.

Rest assured that I am treading very very carefully and certainly not counting any chickens.

I have already prepared and submitted my arguments ( in the form of a witness statement ) for the next stage, which includes my interpretation of the judgment.

The new witness statement has been read by both the Judge and Capital One, neither of whom have disagreed with my interpretation ( so far ) and the Judge did not correct it today and did not issue any orders for me to submit additional evidence or arguments ( Capital One didn't request that the Judge do so either ).

The Capital One Barrister also decided to adopt a conciliatory approach after today's hearing rather than a "we'll see you in court' type attitude.

Also, please bear in mind that Capital One could yet appeal the judgment although no mention has been made of this so far, wonder why !!!

I will post up my new witness statement in a few days and hopefully this may make things a bit clearer.

Budgie

The last bit worries me; he says that yes, you can claim compounded interest. However he says that it's for you to prove that you have lost the same or more than you can recover in court; and that if you can't prove this, that you may still be limited to 8% Simple (County Courts Act).

You should continue to be careful and thorough in constructing your arguments for the next stage and don't count any small flightless birds until the ovoids have broken.

If you are made an offer, you should IMO challenge their right to any confidentiality; I see nothing in this case which would affect their commercial position and I also think that your silence is a commodity which can be bought. If you don't agree to confidentiality I think their desire to avoid the next stage will outweigh their desire to apply for an Injunction or Order silencing you.

:beagle:

[Ladidi]

Re: Judgment Handed Down ~ Budgie Vs Capital One

Hiya Budgie hun,

Many many congratulations on your sucessful outcome You have done yourself proud with all your hard work and determination.

Now go get your rewards hehe

[scoobydoo]

Re: Judgment Handed Down ~ Budgie Vs Capital One

Yes you must be really proud to have such praise in the judgement. Well Done.

Wonder what the judge would think if he felt they were trying to keep you quiet about his decision?

I thought the judgement was very well written in understandable language.

A long battle and I hope you get over the final hurdle.

JAn

[Guest]

Re: Judgment Handed Down ~ Budgie Vs Capital One

I think people need to read the judgment again before they are so swift to congratulate because it is far from over.

The issue is with the right to claim interest which is not the same as actually getting paid it. This, I believe, is going to be the biggest problem. Claimant's have a duty to mitigate loss and there is no evidence of any mitigation. Furthermore, in order to plead these sums, one must be able to show that one was able to obtain that return elsewhere, ergo, it was actually lost.

Budgie will be put to strict proof by Capital One of his actual interest losses. There is a reason that paragraph 17 from Sempra appears in that judgment.

Budgie has the right now (pending appeal) to claim compound interest, but whether or not he can prove he is entitled to it, is another matter. I do not believe that Capital One will appeal, as I do not believe they will need to. They will simply insist on strict proof of loss and that is their prerogative as he who asserts must prove.

In addition, we must consider Boardman v Phipps [1967], even in the event of a win, Claimant's are not necessarily entitled to recover all the gains of the Defendant.

I think Budgie has done a marvellous job and the judge congratulated him - that a District Judge believes his "...preparation would put many lawyers to shame" is an achievement in itself and I never thought it would get this far. It has and that is because he did not give up. However I would urge caution now, because a premature congratulation causes nothing but embarrassment.

[WendyB]

Re: Judgment Handed Down ~ Budgie Vs Capital One

Well done Budgie, your hard work and attention to detail have paid off. You certainly deserve an extra large cuttlefish!

I have read the judgement, and understood most of it, I think. The bit that worried me was the part about it being your duty to mitigate your losses, with Cap One saying you hadn't done so because of refusing cheques etc. Can the they or the DJ use this to cut the value of any award offered?

[Budgie]

Re: Judgment Handed Down ~ Budgie Vs Capital One

I think people need to read the judgment again before they are so swift to congratulate because it is far from over.

The issue is with the right to claim interest which is not the same as actually getting paid it. This, I believe, is going to be the biggest problem. Claimant's have a duty to mitigate loss and there is no evidence of any mitigation. Furthermore, in order to plead these sums, one must be able to show that one was able to obtain that return elsewhere, ergo, it was actually lost.

Budgie will be put to strict proof by Capital One of his actual interest losses. There is a reason that paragraph 17 from Sempra appears in that judgment.

Budgie has the right now (pending appeal) to claim compound interest, but whether or not he can prove he is entitled to it, is another matter. I do not believe that Capital One will appeal, as I do not believe they will need to. They will simply insist on strict proof of loss and that is their prerogative as he who asserts must prove.

In addition, we must consider Boardman v Phipps [1967], even in the event of a win, Claimant's are not necessarily entitled to recover all the gains of the Defendant.

I think Budgie has done a marvellous job and the judge congratulated him - that a District Judge believes his "...preparation would put many lawyers to shame" is an achievement in itself and I never thought it would get this far. It has and that is because he did not give up. However I would urge caution now, because a premature congratulation causes nothing but embarrassment.

Thanks Cetelco, your advice as always is much appreciated.

I agree, the judgement needs to be read a few times and it's not over until it's over and things could all change around again.

However, I believe I have answered the "Claimant's duty to mitigate loss" concerns expressed in the judgment. All will become clear when I post up the witness statement referred to in my last post.

There is also no problem in demonstrating my losses again all will become clear when you see the witness statement. Please also bear in mind that my preferred cause of action is a claim in restitution.Para 16 of the judgment outlines a claim for damages. However I have covered both angles in my witness statement.

The Judge has shown a little chink of light to Capital One with Paragraph 16 of the judgment but I am pretty sure of the reasons why it was written this way. For obvious reasons I dont want to go into detail at this stage on open forum.

I am pretty confident of being able to argue against the authority of Boardman V Phipps, if it comes up. But it hasn't so far and should it rear it's head in forthcoming Capital One witness statements I guess I can now blame Ceteleco, for mentioning it on this thread. LOL

Budgie

[TANZARELLI]

Re: Judgment Handed Down ~ Budgie Vs Capital One

I agree folks and have had a little discussion with Budgie in email about it not being as cut and dry as it might seem. The fact that Budgie has prepared his WS and submitted it also shows that he is aware and has fully digested the content of the judgment before doing this.

However congratulations are on his efforts to get to this stage where others have fallen before now and others may fall in the future deserves praise whatever anyone says.

:-)

[Budgie]

Re: Judgment Handed Down ~ Budgie Vs Capital One

Just to be complete

Here's yesterday's Barrister

Gough Square Chambers

There's also a nice little article about liquidated damages on their website with some background info on the test case

http://www.goughsq.co.uk/liquidated_...es_lecture.pdf

[scoobydoo]

Re: Judgment Handed Down ~ Budgie Vs Capital One

Cetelco

A laymans question - if the proof is that say hypertheticaly he had the monies in his hands he had invested in a particular investment that over that period of time would have had large returns - for example buying gold - would that prove he could have made that return?

So if you could prove a return of that percentage over that period of time - then that would be proof enough?
Or does it come down to more personal proof in that if you the claimant had never made that type of investment before you could not use that argument?

[TANZARELLI]

Re: Judgment Handed Down ~ Budgie Vs Capital One

Just to be complete

Here's yesterday's Barrister

Gough Square Chambers

There's also a nice little article about liquidated damages on their website with some background info on the test case

http://www.goughsq.co.uk/liquidated_...es_lecture.pdf

Tidy, a good job our EXC wasn't there lol

[Budgie]

Re: Judgment Handed Down ~ Budgie Vs Capital One

Cetelco

A laymans question - if the proof is that say hypothetically he had the monies in his hands he had invested in a particular investment that over that period of time would have had large returns - for example buying gold - would that prove he could have made that return?

So if you could prove a return of that percentage over that period of time - then that would be proof enough?
Or does it come down to more personal proof in that if you the claimant had never made that type of investment before you could not use that argument?

The proof that you are referring to is the that would be required in a claim for damages which is subject to the usual rules of remoteness, mitigation etc. It would be extremely difficult for me to try to argue that if I hadn't actually paid, what I considered to be unlawful charges, across to the Defendant then I might have been able to invest the money in an interest bearing account or in gold or whatever. Consider that the actual reason I incurred the charges at the time was basically because didn't have the money to make the payments to the account !! So I haven't argued it that way in my witness statement. One of the ways that I have argued the claim, from the damages point of view, is on the basis that the money paid across in charges would have been available for me to use to reduce debts, including reduction of the balance on my credit card account upon which I was being charged interest at 30.34%. You will see the fuller explanation and argument when I post up the witness statement.

Also please remember that my claim was not framed as a claim for damages. It was framed as a claim for restitution for the time value of money paid under a mistake and to undo the unjust enrichment which I claim Capital One had gained by being able to turn my money to account during the period of their unjust enrichment.

The Judge is perfectly clear in his judgment that I am entitled to claim compound interest on my claim either as a claim for damages ( subject to the usual rules ) or as a restitutory remedy (see paragraph 15 of the judgment ). The Judge has also confirmed that an enrichment took place ( see paragraph 13 of judgment.) In fact, virtually the whole of the judgment is in support of my claim as a restitutory claim.

15. It seems to me we are not concerned here with implied terms. Sempra is clear. The Court has a common law jurisdiction to award compound as well as simple interest as damages subject to the usual rules as to remoteness, mitigation and so forth. Similarly applying Sempra the Court has a power to award compound interest whereas here the Claimant has sought a restitutory remedy for the time value of the money paid under a mistake.

13. In my judgement, the case of Sempra went much further than West Deutsche. It is clear in my judgement that the way is open for the Claimant to obtain compound interest outside claims ordinarily framed either in fraud, breach of contract, or breach of a fiduciary relationship. What was had and received by the Defendant was an enrichment. It is the enrichment itself that has to be valued not anything more than that as Lord Hope has said. Accordingly, it seems to me that there is no impediment for this Claimant to seek compound interest.

In paragraph 16 the Judge states that he is seeking more assistance from the parties in computing the Claimant's losses. In this paragraph he is talking solely about a claim framed as a claim for damages, ( IE He doesn't need any assistance in calculating their gains under a restitution claim - he is already aware of what I considered to be their gains and that Capital One have disputed that gain etc etc).

IMO, there is a reason why this paragraph has been added to the end of the judgment and comments made by the Barrister after the hearing and by the Capital One Solicitor in a phone call I had with them today have so far confirmed that my reasoning on this is correct. ( But am gonna keep it hush hush at the moment and would prefer for there to be no speculation about it as this is a semi-public thread ).

Budgie

[Guest]

Re: Judgment Handed Down ~ Budgie Vs Capital One

Cetelco

A laymans question - if the proof is that say hypertheticaly he had the monies in his hands he had invested in a particular investment that over that period of time would have had large returns - for example buying gold - would that prove he could have made that return?

So if you could prove a return of that percentage over that period of time - then that would be proof enough?
Or does it come down to more personal proof in that if you the claimant had never made that type of investment before you could not use that argument?

Unsurprisingly, my take on this is somewhat different from Budgie's.

With just £1 and the right six numbers between 1 and 49 he could have made a spectacular return. Sadly, we are into that eternal principle of folk logic that you cannot prove a negative. For whatever reason, the investment was not made and because of that, it is impossible to say whether or not it ever would have been.

Notwithstanding this, potential gain cannot be decided by the court, only actual loss can be.

Regardless of the nature of the cause of action, a Claimant to legal proceedings is able to recover their measurable losses as a consequence of establishing that the wrong was done in the first instance by the Defendant.

The key here is measurable losses. I imagine one could claim that such investments were implied by custom and practice if you could show that you frequently made them, but I would not like to count on it.