Amex/Mischcon V Me

[nodefaults2010]

well Mrs Hobbit, if you get a judge with that sort of attitude then you have no chance until you take it to appeal anyway, not really sure what a solicitor will add if the judge is against you to that extent.

 

Yes they may feel that they can argue slightly less with a trained solicitor but if a judge is vehemently opposed to the LIP's case in the first instance then having a solicitor will not necessarily add much to the case.

 

You seem to state categorically that "using the card and making payments on the same, makes it enforceable" - if this was the case, then surely there would have been no court cases in which an agreement was ruled unenforceable by virtue of the OC not being able to show a true copy of a correctly executed agreement - this is not the case however though, is it?

[patrickq1]

As I understand it the argument with the card carrier is you execute the agreement at this point by your signature on the card. This is why you should destroy your card rather than post it back to the debtor on request.

With online transactions it is possible that you can validly claim you never signed the card and hence make this argument harder for the claimant to prove.

I would tend to disaggree with this for the simple fact is if they have not as yet produced the aggreement then keep the thing until the court gives directions to disclose then check the validity like for like..pointless destroying something until such time as it may be needed and it would not help by asking someone to destroy something on the threads imo

[patrickq1]

if as stated the card carrier was far too youg to be able to authenticate the document and you are to discredit him then this is fair game,but have they produced a srceen print out of the oerder for the card carrier to make the delivery ? on such and such a date as this would help if they do not have even that would it not ?

[Guest Mrs Hobbit]

if as stated the card carrier was far too youg to be able to authenticate the document and you are to discredit him then this is fair game,but have they produced a srceen print out of the oerder for the card carrier to make the delivery ? on such and such a date as this would help if they do not have even that would it not ?

 

Your question is logical, but in practice all they have to do is state they don't have it or some such thing, the Judge accepts this and again it is a hiding to nothing. You would have to ask for this to be produced if they say there is such a record. We have seen the witness sweating giving testimony and by clever question of their barrister, they run circles around the judge.

 

on the matter of appeal, the hanging Judge refused leave to appeal, good thing it was another matter relating to the case, the hearing was adjourned for the day and that a barrister was engaged by the LiP and the court given notice in time this was happening. the rest of the case was settled outside the court room and the other side caved in, as they didn't want a precedent set.

[nodefaults2010]

Mrs Hobbit - you do not seem to have answered my second point, which I was also adressing to you:

 

"You seem to state categorically that "using the card and making payments on the same, makes it enforceable" - if this was the case, then surely there would have been no court cases in which an agreement was ruled unenforceable by virtue of the OC not being able to show a true copy of a correctly executed agreement - this is not the case however though, is it?"

 

What are your thoughts on this?

[Guest Mrs Hobbit]

Sorry nodefaults2010

 

It is my personal experience in the court room, the Judges seem to adopt the opinion, you used the card, you made payments, therefore you have entered an agreement with the card supplier, they produce a reconstruction which was allowed. The word 'true' is not viewed as the true meaning of the word, reproductions and facsimilies are allowed.

Problem being LiP's take the literal interpretation of the word and this is not the case.

[nodefaults2010]

no worries Mrs Hobbit, just wanted to clarify your view on that point.

 

Now I don't doubt at all your personal experience as being valid and I think any of us would be keen to avoid the judge lottery where possible but my understanding from the many cases I have seen is that it is a lottery, not in the sense that you have a 1 in a billion chance of winning but in the sense that your judge could be for or against the LIP's argument for a true copy being required.

 

There are many documented cases of the definition of 'true copy' being seen as requiring a verifiable copy. Despite all the tricks and smokescreens plied by the lawyers, I think it would be misrepresentative to present it as a foregone conclusion that all or almost all judges will not accept this and prevent it going to appeal.

 

do you agree with this or do you feel strongly that no judges or almost no judges will accept the need for a genuine true copy (i.e. verifiable beyond doubt)? also, do you disagree that there are numerous cases where this has been upheld by judges and/or been allowed to go to appeal?

[bazaar]

Just to add me two bobs worth, and no offence to you MrsHobbit

A judge may well say "obviously, you are just trying to get out of paying the debt."

But you are entitled to add to that "Obviously the claimant is trying to claim money they are not legally allowed to do"

 

Judge lottery or not, they cant just say they "dont have it" when required to produce documents.

 

The trick is to use the correct wording of the laws and statutes against the claimant, NOT to allow them to use what suits them

[Guest Mrs Hobbit]

Oh biy,m this seems like the debates we have within the CFC.

 

If they say the don't have the document and cannot reproduce one, this is another ball game.

 

In the early days we were the claimants, now we recommend let them take you to court because it is easier to be the defendant. We went in like zealots and took the lieral interpretation of the Act. Emails went back and forth between the writers of the CCA and us.

 

Now to address nodefaults question, I feel strongly that the Judges will accept that there is no need to produce the genuine copy, a reconstruction sans signatures is acceptable. the down fall is the wrong T & C's which were in place at the time. they even allow that the T & C's can be on a seperate document,. not contained with the four corners.

 

An LiP is at a distinct disadvantage, it is an adversarial atmosphere once the other side walks in with barristers and instructing solicitors..the LiP just has himself/herself, not matter how well prepared you are prepared, to a novice this is intimidation and most Judges will not help an LiP.

 

You do stand a chance if it is a local solicitor representing the other side, instructed the day before, because they do not have the full details

 

These days I would advocate mediation if offered by the Courts without a leagle beagle beside you.

[Docman]

Mrs H, can I ask what is the CTC?

[banker_rhymes_with]

Mrs H, can I ask what is the CTC?

 

CFC = Cabot Fan Club (to clarify, Mrs Hobbit said CFC not CTC).

 

Cheers,

BRW

[Docman]

many thanks BRW, I'm on my way to Specsavers as well!

[Guest Mrs Hobbit]

Thanks BRW..just back checking the mail...

[freethemice]

So we get down to justice been on the side of those that can afford to pay for it with the rest of us told our right to a fair trial is nul and void.

 

Legal aid is routinely turned down "not in the intrest of the public purse."

 

Cab are only interested in debt councelling and if you can get an appointment can offer little else.

 

Add to that when I did enquire about employing the services of a barrister for a day the only one specialist in such matters was unavailable "as he normaly works for the banks and wouldn't want a conflict of interest."

 

So we are left with caggers, google and a judge lottery system.

 

I personally would like to see caggers join forces in reginal groups (like weightwitchers but your allowed the cakes) If we could all afford an hour of a solicitors time we could get alot of these legal points ironed out and maybe we could even attract a barristed to represent us on that special day!

 

Would the judge be inclined to look at the reconstruction diferently if you had sent a CPR 32.19 Notice challenge the authenticity of the documents relied on. As I understand it without doing this you are accepting that the documents provided are genuine.

Edited July 7, 2010 by freethemice

[nodefaults2010]

I agree but how can we get such an initiative going? I have seen a number of threads and posts on here suggesting various things like this but they inevitably come to nothing.

 

Issues would be getting enough people to contribute enough cash (especially as many caggers are in financial hardship), running and administering such an initiative and also ensuring that there were procedures in place to prevent espionage from 'the other side'.

 

Any thoughts on how to actually get such an initiative going in a constructive and systematic way?

[Monty2007]

So we get down to justice been on the side of those that can afford to pay for it with the rest of us told our right to a fair trial is nul and void.

 

That's about right, unfortunately.....

So we are left with caggers, google and a judge lottery system.

 

It's better than nothing and does actually get results:D

I personally would like to see caggers join forces in reginal groups (like weightwitchers but your allowed the cakes) If we could all afford an hour of a solicitors time we could get alot of these legal points ironed out and maybe we could even attract a barrister to represent us on that special day!

 

Great idea, but as I found in Scotland, there is not that much legal expertise in consumer credit, and as you mention the good ones are already represeting the banks and/or do not wish to compromise their "position".

Edited July 7, 2010 by Monty2007
Terrible Spelling.......

[mystery1]

That's about right, unfortunately.....

 

 

 

 

 

the good ones are already represeting the banks and/or do not wish to compromise their "position".

 

Not to be confused with "all the banks are represented by good ones"

 

M1

[Monty2007]

Not to be confused with "all the banks are represented by good ones"

 

M1

 

Absolutely M1

[Docman]

I have to say what complete defeatist tosh is being posted.

 

First of all, barristers work on the 'cab rank' principle, so it doesn't matter who has instructed them prevously. All you have to be able to do is pay their fee.

 

Second, the Bar Council now allow certain barristers to be instructed directly by members of the public who are in litigation. But you have to instruct the barrister properly as a solicitor would do. Unfortunately, you also have to pay the barrister on a cash up front basis.

 

I did instruct a barrister directly using the information form this site and the internet. It cost me £400 but I reckon it was well worth the money as the other side folded after receiving my defence and had to pay my costs including the barristers fee.

 

As to your 'Hanging Judge', if the judge is adamant that you have no defence (and assuming you have followed a defence using cases & statutes from this site), all I would do is to ask the judge to specify in his judgment why he is rejecting your defence. When he demands why you want that, tell him it will make it easier for the Circuit Judge to allow the appeal in your favour if the judge's misdirection as to the law is prominent in the judgment.

[Monty2007]

I have to say what complete defeatist tosh is being posted.

 

First of all, barristers work on the 'cab rank' principle, so it doesn't matter who has instructed them prevously. All you have to be able to do is pay their fee.

 

Second, the Bar Council now allow certain barristers to be instructed directly by members of the public who are in litigation. But you have to instruct the barrister properly as a solicitor would do. Unfortunately, you also have to pay the barrister on a cash up front basis.

 

I did instruct a barrister directly using the information form this site and the internet. It cost me £400 but I reckon it was well worth the money as the other side folded after receiving my defence and had to pay my costs including the barristers fee.

 

As to your 'Hanging Judge', if the judge is adamant that you have no defence (and assuming you have followed a defence using cases & statutes from this site), all I would do is to ask the judge to specify in his judgment why he is rejecting your defence. When he demands why you want that, tell him it will make it easier for the Circuit Judge to allow the appeal in your favour if the judge's misdirection as to the law is prominent in the judgment.

 

err..... I believe that the context was solicitors and I tried all the main firms in Glasgow and Edinbugh and each one declined the work. The one that I did find, from a small firm had no experience of consumer credit and knew less than me. Plus he wanted £5 K up-front . No joke....

 

I appreciate that barristers will work for anyone and are simply only interested in money...... nothing new there eh?

[MAGDA]

There's always CFA (conditional fee arrangement) to be considered. Obviously they won't just take any case on, but if they think you havea good chance of winning, then they will. The plus is that they will instruct a barrister to respresent you in court.

 

Magda

[Guest Mrs Hobbit]

The Hanging Judge sat up when a Public Access Barrister took up the cudgels and got things settled out oif Court, just used the Judge to sign off the paperwork. It ended up in favour of the LiP.

 

You do all the leg work and get everything together for the barrister and he does the work. This is why CFC say all the time, if you can afford get a public access barrister, we know a couple who are good with the CCA and end up putting across the finer points of your argument.##Our Hanging Judge stated iuf he found in favour for the LiP it would open his court to being swamped with these cases....even Trading Standards was amazed at this statement, Yes we had Trading Standards observing this case. Public Access barristers work on an hourly basis + VAT and these costs are awarded back to you when you win.

[Docman]

The point I'm making is that (in England & Wales at least - I know the position may be different in Scotland) this site can provide enough information to instruct a barrister rather than a generalist solicitor. Most high street firms of solicitors will want a large fee and are probably NOT specialists in consumer credit law.

[Docman]

Mrs H, if teh judge's comments were also heard by Trading Standards, why not report the judge to the Office of Judical Complaints?

[Guest Mrs Hobbit]

The barrister we used, said we were better at getting the information and documention than a lot of solicitors who had instructed him.