Shakespeare62 - v - a NastyBank

[shakespeare62]

One thing I'm not sure about, the Court Order of 11 Feb, mentions at section 4 that the Judge will hear the matter for Directions on 8 March 2010.

 

Does that mean I can propose Directions for the Courts consideration ? I assume from dads post the answer is yes...

[foolishgirl]

Did you not also want proof of their adherence to ISOs for document management Shakespeare?

 

BTW, sorry, being picky, Para 1(iii) should be its not it's.

[shakespeare62]

Did you not also want proof of their adherence to ISOs for document management Shakespeare?

 

BTW, sorry, being picky, Para 1(iii) should be its not it's.

 

Ok thanks foolishgirl - I've amended para 1 (iii) to correct the punctuation.

 

Also I've changed para 1 (iii) to refer to ISO's. This will leave the way open to cross examination on the specific storage method Dad mentioned, should the opportunity arise (at trial).

 

That still leaves the 64 thousand dollar question ... can I file this draft order in Court for the Judge's consideration, or would this be bad form ? Thoughts anyone ?

Edited March 2, 2010 by shakespeare62

[shakespeare62]

Hello S62!

 

Before the next Hearing, I think it may be productive to consider what would make a good Document Management System for a large business, i.e. one who needs to hold key documents for legal reasons.

 

Hello BRW ! - thanks for your comments. I've included a reference to the ISO in my proposed draft order at post#649 above, following your and foolish girls comments.

Edited March 2, 2010 by shakespeare62

[middenmess]

in iv] why not include...'sets or fingerprints and DNA..' just to keep them on their toes.

 

in v] ask for the proof of posting and the address of the Post Office from where it was sent.

 

I'm a little surprised that as this document is of such vital importance to their case [and of possible future value to them if accepted in court as genuine;)] that they would entrust it to the care of the Royal Mail as if mislaid or lost they would be totally rogered.

 

I'd have expected that they would have sent it by a dedicated courier service--why didn't they?

[RobinWayRobinme]

Ok thanks foolishgirl - I've amended para 1 (iii) to correct the punctuation.

 

Also I've changed para 1 (iii) to refer to ISO's. This will leave the way open to cross examination on the specific storage method Dad mentioned, should the opportunity arise (at trial).

 

That still leaves the 64 thousand dollar question ... can I file this draft order in Court for the Judge's consideration, or would this be bad form ? Thoughts anyone ?

I recently had a directions hearing for my appeal and, like you, I prepared draft directions beforehand. I didn't send copy to the court beforehand, instead I grabbed the other side before we went in and gave them a copy there and then. It resulted in a mini panic from them and a comment that "need to make a phone call to take instructions". He wasn't able to talk to anyone and we were called in before he could take instructions. I was able to give a copy to circuit judge which was accepted without too many comments as I stated that I had given a copy to other side before we came in. Other side just said they didn't have transcript of whole hearing, I said there wasn't one and I didn't need one but Trial Bundle had transcript of Judgment. Judge said to opposition "if you want transcript of hearing, you can get it then" (another cost for them) and included that in the directions. Moral of story from my experience is, give other side a copy, but not too early (worked for me springing it on them 10mins before directions hearing).

[banker_rhymes_with]

I'd have expected that they would have sent it by a dedicated courier service--why didn't they?

 

They probably had their fingers crossed that Royal Mail would lose it for them!

 

Cheers,

BRW

[banker_rhymes_with]

Hello S62!

 

2. Within twenty one days of the date of this order, the Respondent shall make available the exact same purported original agreement that was presented at the last Hearing, for examination by an Expert Witness nominated by the Appellant and approved by the Court.

 

Just in case they have any plans to do a shuffle of documents before your Expert Witness gets his/her rubber gloved hands on it!

 

Cheers,

BRW

[middenmess]

Addition to Post by BRW

 

2. Within twenty one days of the date of this order, the Respondent shall make available the exact same purported original agreement that was presented at the last Hearing,and held securely without addition or alteration during the interim by Ms.QC as per order of the court, for examination by an Expert Witness nominated by the Appellant and approved by the Court.

Just in case they have any plans to do a shuffle of documents before your Expert Witness gets his/her rubber gloved hands on it!

 

Wouldn't hurt to remind them of their responsibilities!

[patrickq1]

Hello S62!

 

 

 

Just in case they have any plans to do a shuffle of documents before your Expert Witness gets his/her rubber gloved hands on it!

 

Cheers,

BRW

surely you are not purpoting that the rubber gloves may accidently erase some of the print especially the important document that will get them in so much trouble for making a document in reconstructed format that is so far from the true copy

[dad]

Hi S62,

 

That still leaves the 64 thousand dollar question ... can I file this draft order in Court for the Judge's consideration, or would this be bad form ? Thoughts anyone ?

 

My view is that you should submit this for the judge to consider on notice to MdR. I would not play games by bouncing the other side at the door. They would be perfectly entitled to ask for an adjournment with costs.

 

To others contributing to the thread I would remind them that the strategy that S62 has adopted is high risk / high reward litigation. In effect he has made an accusation of serious dishonesty against Amex. The consequences for whichever side loses will be dramatic. It is likely that the side that loses is going to be faced with an indemnity costs order at the least.

 

Case law shows that the court will start with the view that the more serious the allegation the more unlikely it is. The onus is firmly on S62 to make good his allegation. So this is the time to play with a straight bat so that there is no question of MdR wriggling out on a procedural technicality.

 

Health warning over, let me turn to the draft directions. First of all I believe this is fast track, so costs are payable as the litigation proceeds. Amex may be entitled to the costs of producing any information, so I think that potentially really expensive things like asking for finger prints and DNA are out.

 

I strongly agree with post 646. This is about raising the stakes to the point where Amex fold. In that respect you have missed out the most obvious direction, that permission be given to adduce expert evidence.

 

The format of directions for an expert is set out in CPR 28 Practice Direction 28 Annex, see:

 

http://www.justice.gov.uk/civil/procrules_fin/contents/practice_directions/pd_part28.htm

 

Take advice from your expert on what he needs to do his job and ensure that is included in the order. For instance does he need to visit the storage facility?

 

HTH

 

Dad

Edited March 3, 2010 by dad

[shakespeare62]

Thanks for all your suggestions and comments.

 

I'm anxious not to present the Judge with too large a 'shopping list' of requests for a Draft Order.

 

As dad has stated the stakes are high. If it's original - I lose this Appeal Point, with cost penalties. 'Pishcon will attempt to bury the case at this point with costs etc. The case will move on to the other Appeal Points including the Defective Default notice and ECHR issues.

 

If the agreement is not original, then the case stops here.

Edited March 3, 2010 by shakespeare62

[shakespeare62]

I've amended and attach the proposed Draft Order for Directions. The draft is not perfect. I don't expect the Court to adopt it word for word - but it might consider including part of it or rephrase it.

 

Comments please.

Draft order for Directions v3 - ID REMOVED.doc

[shakespeare62]

I think that potentially really expensive things like asking for finger prints and DNA are out.

 

I strongly agree with post 646. This is about raising the stakes to the point where Amex fold. In that respect you have missed out the most obvious direction, that permission be given to adduce expert evidence.

 

Dad do you think I should remove the sentence on fingerprints in part 1(iv) of my draft ? (It doesn't actually state it will require fingerprints ..it leaves the possibility open.)

 

A tour of the alleged "Off Site" Deep Storage location at the moment would seem as potentially 'involved' as doing DNA tests - I've left that out for now, unless you really think it should go in...

Edited March 3, 2010 by shakespeare62

[dad]

S62,

 

Dad do you think I should remove the sentence on fingerprints in part 1(iv) of my draft ? (It doesn't actually state it will require fingerprints ..it leaves the possibility open.)

 

I do not see any harm. What you want is the chain of evidence handling of the document, the more detail, then the more chances to expose any inconsistencies. Liars are always tripped up by inconsistent details.

 

A tour of the alleged "Off Site" Deep Storage location at the moment would seem as potentially 'involved' as doing DNA tests - I've left that out for now, unless you really think it should go in...

 

The answer is ask your expert. It is the detail that matters. In one archive I know a document is stamped with a reference number, then punched to take a treasury tag. The documents are then put in a card folder connected by the tag. The reference number and the title of the document is entered on to the folder's contents sheet. The folder is titled with a summary of the contents and placed in a cardboard box. The folder titles are marked on the outside of the box. the box is given a reference number and placed on a particular shelf in the archive. Then all the above information is entered into a catalogue.

 

If the 'agreement' has been stored is a storage facility run as a business you would expect something similar to that to be present. Suppose your expert goes to the archive and finds all the documents have a bar code and there isn't one on yours or that all the files in the archive are in 4-ring folders and your agreement does not have 4-ring holes then it is game over. At the very least, I would have thought, he will want to see the container the document was stored in.

 

Have a look at this link into the report of the document examination of George Galloway's Iraqi documents:

 

House of Commons - Standards and Privileges - Written Evidence

 

HTH

 

Dad

Edited March 3, 2010 by dad

[shakespeare62]

S62,

 

 

 

I do not see any harm. What you want is the chain of evidence handling of the document, the more detail, then the more chances to expose any inconsistencies. Liars are always tripped up by inconsistent details.

 

 

 

The answer is ask your expert. It is the detail that matters. In one archive I know a document is stamped with a reference number, then punched to take a treasury tag. The documents are then put in a card folder connected by the tag. The reference number and the title of the document is entered on to the folders contents sheet. The folder is titled with a summary of the contents and placed in a cardboard box. The folder titles are marked on the outside of the box. the box is given a reference number and placed on a particular shelf in the archive. Then all the above information is entered into a catalogue.

 

If the 'agreement' has been stored is a storage facility run as a business you would expect something similar to that to be present. Suppose your expert goes to the archive and finds all the documents have a bar code and there isn't one on yours or that all the files in the archive are in 4-ring folders and your agreement does not have 4-ring holes then it is game over. At the very least, I would have thought, he will want to see the container the document was stored in.

 

Have a look at this link into the report of the document examination of George Galloway's iraqi documents:

 

House of Commons - Standards and Privileges - Written Evidence

 

HTH

 

Dad

 

Ok thanks dad - I'll contact my expert. The drawback is that it may be 24 hours before I get a reply. This would obviously impose a delay on my filing the Draft Directions.

[Desperate Daniella]

I do think you need to get his requirements before you do the Draft Directions though. Better a day later than he tells you you need something you haven't asked for (but that's just my opinion).

[shakespeare62]

I do think you need to get his requirements before you do the Draft Directions though. Better a day later than he tells you you need something you haven't asked for (but that's just my opinion).

 

Hi DD. Understood. I think we all 'smell a rat' over this so called off site deep storage area. Dad's right about people giving stories with inconsistencies.

 

I just need to do a brief, factual, consise update for the Expert - so I can get a considered reply. A day's delay may be well worth considering the matters at stake.

 

I'll post up as soon as I hear back.

[banker_rhymes_with]

Hello S62!

 

This is going back to basics, and I am sure you have considered this, but we now have two people on CAG who have recently held these Amex creations, and both were immediately struck by the impression there was something not right about them. They did not look or feel right.

 

But so long as the other person is genuine (dp77 I think it was), and they would be willing to perhaps provide a Witness Statement to help you, then Amex must have made two recent requests to their Deep (Throat) Storage Location.

 

Yours cannot therefore be the only one they have had to make in the last few weeks, which does tend to shoot more holes in their story that this is very isolated and out of character from their normal way of doing things.

 

So, we seem to have two requests, which potentially doubles the problems for Amex, because if this is used against them, then they have to produce two sets of audit trails for the two requests. If this is all a big story, then they have to magic up two stories, not one, two sets of Witnesses unless they wish to claim that the same people handled the issues on two different days.

 

The Poopcon Witness Statement is a bit of a mess, but if you read it carefully, it might be suggesting that they have been making more than one request:

 

8. As part of the preparation for the adjourned hearing, I contacted a member of the Claimant's Executive Office Team on 29 January 2010 to ask whether there was any chance that the Original was still in existence. I was told it was highly unlikely that the Original could be found, but that a request would nonetheless be made in this instance as a further copy of the agreement had been requested for use by Counsel in an appeal case, in which one of the issues was legibility.

What on earth do they mean by the above? i.e. was Counsel asking for a copy in relation to your case, and the Mishcon Lawyer was unaware of this, or is this saying another Agreement had been requested by another Counsel in relation to another case?

 

It's a jumble so not very clear.

 

Also, again, this I suspect you have considered too, but the usual way to return these lightweight Application Forms was within a DL sized envelope, because that's what people like Amex tended to send out with the Application Forms.

 

Your Agreement would almost certainly have been folded and, if you are anything like me, the fold would be very crisp and made with the edge of your finger nail to make it nice and flat. The edge would be sharp.

 

The Agreement, therefore, should have had at least a couple of crisp fold lines. I suspect they were not present either, in line with the vanishing pen indentations that were missing from dp77's copy.

 

Cheers,

BRW

Edited March 3, 2010 by banker_rhymes_with
Typo. Clarity.

[Yeats]

I questioned the originality of the document they presented to me at my hearing, but backed off due to costs.

I also have the transcript.

So, it's happened to me too, but I am 100% sure that was not the original.

I shall not go into how I know, but even without seeing it I would question why would they send me two different sets of T&C when they were on the back?

 

yeats

[banker_rhymes_with]

Hello Yeats!

 

I questioned the originality of the document they presented to me at my hearing, but backed off due to costs.

That potentially makes three people, that we know of on CAG, who have had to face what is increasingly sounding like dubious original Amex Agreements.

 

The stakes for them are getting higher and higher, they really won't want to be pinned down on this issue. Indeed, none of their other banking mates will want to see them pinned down either, because the repercussions will be far reaching if just one of them gets nailed for deliberately misleading the Court with recent Photoshop work claiming them to be old original Agreements.

 

Cheers,

BRW

[means2anend]

Just been reading a post by oilyrag on this thread:

http://www.consumeractiongroup.co.uk/forum/barclaycard/195090-fingers-barclaycard-5.html#post2798970 (Post 93)

WRT the Carey v HSBC case. He brings to attention the view of HHJ Wakeman that, not only should the claimant produce an original agreement in court but also that all variations sent to you should have been accompanied by a copy of that agreement.

 

If Amex are saying that this agreement was buried deep in their archives, how are they going to demonstrate that a true copy of the agreement was sent with all the variations they have sent you over the years??

 

 

Not wishing to b pettyminded...but where you state the word claimant ...i believe you meant to state defendant...it's only a little thing but puts a different gloss on things.

 

Desperate Daniella...I just got back from a busy schedule... I shall b in touch!!!

 

 

Rgds S62

 

 

M2ae;)

[foolishgirl]

Not wishing to b pettyminded...but where you state the word claimant ...i believe you meant to state defendant...it's only a little thing but puts a different gloss on things.

 

No, I didn't mean defendant, m2, I meant claimant.

 

The Carey judgment in this respect states 'creditor' which in the context of this thread translates as claimant:

 

Para 234 (4) If an agreement has been varied by the creditor under a unilateral power of variation, the creditor must still provide a copy of the original agreement, as well as the varied terms;

[means2anend]

Yes...

 

In isolation the claimant was Carey and others ...but when read in context within this read it would be claimant..

 

 

m2ae

[foolishgirl]

Yes...

 

In isolation the claimant was Carey and others ...but when read in context within this read it would be claimant..

 

m2ae

 

Correct - we're on the same wavelength