Phoenix Recoveries vs D Kotecha - Court of Appeal

[diddydicky]

you need to start a new thread to get maximum advice on this

 

any assets that were not disposed of at the time of dissolution would become the property of the crown

 

however it is likely that they transferred these to one of their own companies

 

enquiries at the land registry should come up with a name and address i would have thought- if the company did not notify LR of the transfer then you may have got a windfall there as it would be too late now for the original company (which no longer exists) to transfer the asset to anyone else

[DonkeyB]

That’s a different Phoenix. Possibly and probably unrelated.

 

At the time we suspected this was to be a UK-based front for the Luxembourg-based Phoenix Recoveries UK Ltd SARL (the ‘UK Ltd’ is surely designed to deceive), as we made some links between the people who had formed the UK company and the debt collection/investment industry.

 

Looks like it just remained a paper-only enterprise.

[oilyrag]

Before we go any further on this, I have just taken my Oxford English Dictionary down from the shelf. Is ther any disagreement that this is the ultimate authority on the english language and definition of terms and words? I thought not.

 

I have looked up the word "should" The OED definition of this word should is just two words i.e see SHALL!!!

 

I have then looked up the word "shall" The OED definition of this word is as a verb and proceeds to conjugate same but is OBLIGATION, intent and in some certain persons usage WILL.

 

I have then expanded my searches further in to other dictionaries, including one which also contains reference sections on legal terms in plain English and Latin

 

"shall" to express a command, a conditional statement, intention, promise, permisssion, to express future or conditional obligation, duty etc. or to form a conditional protasis ( in any person ( of the conjugated verb))

For those not familiar protasis is the clause in a condional sentence that contains the condition.

 

Even in this latter search both the LATIN AND THE ENGLISH SHOW THAT the words "shall" and "should" are DIRECTLY INTERCHANGEABLE.

 

I would that this quite proper research now puts to bed this completely falwed debate about semantics of the words should and shall. It means YOU WILL do this or YOU WILL do that.

 

regards

oilyrag.

Edited February 1, 2011 by oilyrag

[hutson]

Coledog thanks for that - sorry to be such a dunce but when I go to the Main Forum, I can't see 'Start Thread'. Please could you let me know how to do this - many thanks.

[diddydicky]

Alternatives to shall

 

16 Must is the obvious alternative to shall when imposing obligations

 

 

 

 

"should have gone to specsavers" - in everyday useage denotes an action that the person ought to have taken (on hindsight) but was not obliged to do at the outset.

 

"you should always brush your teeth after a meal" - again is an advisory use of the word in everyday use- not a command

 

i take your point but judges WILL show their human and common sense side in their judgements sometimes

 

when it is in our favour we applaud their common sense attitude and when they go against us- we want to bring out the textbooks and insist that they apply every nuance in language.

 

not siding with them- just being realistic as to what happens in reality

 

the authors of the CCA also used the word MUST when they felt it appropriate- our opponents (quite rightly) would therefore argue that if the authors intended that the agreement MUST be be produced in court - rather than "should" - then they would have said so and used the word MUST

 

I am on the same side as you in terms of what the overall effect of the act should be- but feel that you do not make allowance for what happens in reality - thus one has to accept the situation as it is on the ground- not what we would like it to be

 

there are many many instances in courts up and down the land where LIP's will state the particular case vehememlty as you have done- but still be brushed aside

 

thus we need to learn to deal with what happens in reality- and how we can overcome it- and not just blinker our eyes- and "quote the script" in the expectation that this is all that is required

 

the world of civil litigation is NOT simply black and white- much as we would like it to be

Edited February 1, 2011 by diddydicky

[mystery1]

Before we go any further on this, I have just taken my Oxford English Dictionary down from the shelf. Is ther any disagreement that this is the ultimate authority on the english language and definition of terms and words? I thought not.

 

I have looked up the word "should" The OED definition of this word should is just two words i.e see SHALL!!!

 

I have then looked up the word "shall" The OED definition of this word is as a verb and proceeds to conjugate same but is OBLIGATION, intent and in some certain persons usage WILL.

 

I have then expanded my searches further in to other dictionaries, including one which also contains reference sections on legal terms in plain English and Latin

 

"shall" to express a command, a conditional statement, intention, promise, permisssion, to express future or conditional obligation, duty etc. or to form a conditional protasis ( in any person ( of the conjugated verb))

For those not familiar protasis is the clause in a condional sentence that contains the condition.

 

Even in this latter search both the LATIN AND THE ENGLISH SHOW THAT the words "shall" and "should" are DIRECTLY INTERCHANGEABLE.

 

I would that this quite proper research now puts to bed this completely falwed debate about semantics of the words should and shall. It means YOU WILL do this or YOU WILL do that.

 

regards

oilyrag.

 

http://www.davidmarq.com/bama/shall.pdf

 

http://www.courtsni.gov.uk/NR/rdonlyres/84198150-240D-40CE-99CB-852BEC27CB9E/0/j_j_KERF3933.htm

 

http://www.wikicrimeline.co.uk/index.php?title=Mandatory_or_Directory

 

http://www.mondaq.com/canada/article.asp?articleid=119090

 

http://www.mentalhealthlaw.co.uk/Seal_v_Chief_Constable_of_South_Wales_Police_(2005)_EWCA_Civ_586

 

http://www.scotcourts.gov.uk/opinions/2011HCJAC6.html

 

M1

Edited February 1, 2011 by mystery1
extra case

[oilyrag]

I had a quick look M1, but don't shoot the messenger as DD said. I did not make the language rules I just quoted directly from the recognised authorities on the subject. There can be as much legalese and manipulation as you like but until someone actually changes those authorities and its a bit difficult at the current state of technology to alter the Latin and it remains that SHALL EQUALS SHOULD and SHOULD EQUALS SHALL.

 

Just re-write Carey interposing the words under the grammatical rules that apply, considering just how pedantic the legal trades would have us believe they are. I believe Waksman knew exactly what he was doing as did Francis Bennion. It si just us that have missed the real points. Cases in CCA have hung on far less. Perverse I know but you can put up as much argument as you like, I did not make the grammatical rules of this language but am expected to abide by them.

 

regards

oilyrag.

[mystery1]

I had a quick look M1, but don't shoot the messenger as DD said. I did not make the language rules I just quoted directly from the recognised authorities on the subject. There can be as much legalese and manipulation as you like but until someone actually changes those authorities and its a bit difficult at the current state of technology to alter the Latin and it remains that SHALL EQUALS SHOULD and SHOULD EQUALS SHALL.

 

Just re-write Carey interposing the words under the grammatical rules that apply, considering just how pedantic the legal trades would have us believe they are. I believe Waksman knew exactly what he was doing as did Francis Bennion. It si just us that have missed the real points. Cases in CCA have hung on far less. Perverse I know but you can put up as much argument as you like, I did not make the grammatical rules of this language but am expected to abide by them.

 

regards

oilyrag.

 

 

My point is that shall doesn't always equal shall in the sense the that you, i and the OED would think. The last case i posted is a prime example. The authority admitted it had not complied but the appeal court said shall was not mandatory so it wasn't relevant and hence they overturned the lower court who said shall is shall and you didn't case dismissed.

 

M1

[diddydicky]

I had a quick look M1, but don't shoot the messenger as DD said. I did not make the language rules I just quoted directly from the recognised authorities on the subject. There can be as much legalese and manipulation as you like but until someone actually changes those authorities and its a bit difficult at the current state of technology to alter the Latin and it remains that SHALL EQUALS SHOULD and SHOULD EQUALS SHALL.

 

Just re-write Carey interposing the words under the grammatical rules that apply, considering just how pedantic the legal trades would have us believe they are. I believe Waksman knew exactly what he was doing as did Francis Bennion. It si just us that have missed the real points. Cases in CCA have hung on far less. Perverse I know but you can put up as much argument as you like, I did not make the grammatical rules of this language but am expected to abide by them.

 

regards

oilyrag.

 

bennion has recently confirmed that his intention was not to assist debtors in avoiding their debts- which somewhat waters down his oft quoted explanation of his actions- to the extent that he is not really worth quoting

[oilyrag]

Sorry I missed your post DD, looking at M1s cases sidetracked me. I was just pointing out that fundamnetal rules of the english language show that Shall equals Should etc. there is NO mention in my references to the word MUST even in the Latin. The deviant is WILL as I said.

 

The reality of course on the ground has to be taken into account. But there are many cases on here that have been lost or won on much less than this as you well know. I did not write the damn language and it is a nuisance as it stands to all of us, esperanto would serve us better. I can give you a classic example of the nonsense that is made by our so called betters in the law and civil service. In the early nineties the EU issued a small booklet of guidelines on RFI and EMI emmissions. A4 format and about 6mm (1/4" thick), I know I was at the technical commission at the time. Within 21 days our wonderful betters in the Law and the (un)civil service had turned this guidance into three volumes of "EU Directives" on the subject, claiming the vagaries of the English language as "just cause". these have never been brought onto the Statute Book or covered by Statutory Instrument . Yet many court cases have been brought, won and lost on what is actually a work of total fiction. So semantics????? Legalese??? All needs to be challenged and again I did not make the rules.

 

regards

oilyrag

[diddydicky]

yes i agree with what you say

 

personally i think that due to the sheer volume of consumer debt and legislation- it is about time for a separate division of the court system- doing away with the nonsense of inflated barrister fees for what are after all bog standard claim preparations printed off from templates on which only the names and dates have been changed - dealing solely with claims up to £25,000 as small claims and staffed by judges who are trained solely in CCA matters

[mystery1]

It has to be said however the supreme court UK made it easier to have shall as mandatory in Royal Bank of Scotland plc v Wilson & Anor (Scotland) [2010] UKSC 50 (24 November 2010)

 

 

85. In Bank of Scotland v Millward the Inner House construed ‘shall’ as if it

said ‘may’. However, it gave no convincing reason for doing so and there is in my

opinion no warrant for construing the word ‘shall’ in that way in the context of the

Act. As I see it, the purpose of the subsection was to ensure that the proprietors of

secured property should be given proper notice of the creditor’s intention to take

possession of or to sell the property. The giving of such a notice is a simple step

and would have saved years of litigation in this case. The Bank did not give such a

notice on the facts of this case. It follows that, although this point was not taken on

behalf of the appellants until it arose in the course of the argument in this appeal,

for the reasons given by Lord Rodger, I would allow the appeal on that ground.

 

M1

[sequenci]

yes i agree with what you say

 

personally i think that due to the sheer volume of consumer debt and legislation- it is about time for a separate division of the court system- doing away with the nonsense of inflated barrister fees for what are after all bog standard claim preparations printed off from templates on which only the names and dates have been changed - dealing solely with claims up to £25,000 as small claims and staffed by judges who are trained solely in CCA matters

 

1000% agree

[diddydicky]

It follows that, although this point was not taken on

behalf of the appellants until it arose in the course of the argument in this appeal,

for the reasons given by Lord Rodger, I would allow the appeal on that ground

 

 

 

 

 

 

 

sums the matter up in its entirety mystery

 

we all know what it really means and one has to ask whether the judges who misinterpret it in everyday useage do so because they are fools- or because they know full well that the appeal process is well outside of the financial range of most defendants! and take it upon themselves to be the guardians of the financial institutions

[oilyrag]

Yes DD that would almost be Utopia woudl it not. However I don't somehow see it happening in the near future.

 

regards

oilyrag.

[oilyrag]

The other thing that is reality as well is that the judiciary in general resent the interference of Parliament with making Statute law. I have had this discussion several times in recent years with really knowledgable people. Unfortunately, the integrity of the current crop is somewhat less than those of the two previous generations who both knew the law and were prepared to make a stab at an even hand with badly written legislation. Now, unfortunately, this resentment seems to have spilled over to the extent that judges in the lower courts are prepared to make the most perverse decisions whilst rubbing their noses at Parliament on the basis you made ill thought out legislation now we will just make a bigger mess in interpreting it for you. A case in point in criminal law was that Yorkshire judge who made real clown of himself by stating that rape was not a crime. Ho Hum.

 

regards

oilyrag.

[Ruprecht]

Hi

 

I have not seen the full transcript of this case but it seems that the creditor made a major mistake in not correcting the request at the orriginal hearing, if he had there would have been an enforcement

 

Hopefully PT will confirm this but you cannot sue someone with no cause of action then just create the cause of action in the middle of the claim.

 

They would have to settle that claim and re-file if they had not complied with the S77/S78 request when they commenced their claim.

 

It would be a clear abuse of process to commence proceedings when you infact had no cause of action, they would have to discontinue and pay costs to the defendent.

 

I think this is exactly the outcome of this case in this thread.

 

Of course this doesn't stop them from complying and re-filing. Which they might even do in this case or just go away back to their kennel tail between legs rather than risk it again with someone who knows the score!

I am pretty sure they cannot just comply with it in the middle of proceedings, confirmation PT?

[Peterbard]

 

Hopefully PT will confirm this but you cannot sue someone with no cause of action then just create the cause of action in the middle of the claim.

 

They would have to settle that claim and re-file if they had not complied with the S77/S78 request when they commenced their claim.

 

It would be a clear abuse of process to commence proceedings when you infact had no cause of action, they would have to discontinue and pay costs to the defendent.

 

I think this is exactly the outcome of this case in this thread.

 

Of course this doesn't stop them from complying and re-filing. Which they might even do in this case or just go away back to their kennel tail between legs rather than risk it again with someone who knows the score!

I am pretty sure they cannot just comply with it in the middle of proceedings, confirmation PT?

 

Hi

 

Presumably the cause for action was the default of the debtor

The section 78 breach would have been the defence, the creditor would be quite within his rights to produce evidence to rebuf the defence.

 

Peter

[mystery1]

If the creditor has lost and rather than appeal tries to hear a very similar case again then the defense is surely res judicata.

 

M1

[pt2537]

 

Hopefully PT will confirm this but you cannot sue someone with no cause of action then just create the cause of action in the middle of the claim.

 

They would have to settle that claim and re-file if they had not complied with the S77/S78 request when they commenced their claim.

 

It would be a clear abuse of process to commence proceedings when you infact had no cause of action, they would have to discontinue and pay costs to the defendent.

 

I think this is exactly the outcome of this case in this thread.

 

Of course this doesn't stop them from complying and re-filing. Which they might even do in this case or just go away back to their kennel tail between legs rather than risk it again with someone who knows the score!

I am pretty sure they cannot just comply with it in the middle of proceedings, confirmation PT?

section 78 is not a utter bar on enforcement, it is temporary only, and can be remedied.

 

so they can comply at any time up to judgment,

 

however there are other problems with their evidence arising out of this that can leave the opponents with a problem.

 

Henderson and Henderson springs to mind.

[mystery1]

http://casefinder.co.uk/2010/05/abuse-of-process-henderson-v-henderson/

 

M1

[mystery1]

A Scottish perspective on res judicata including the test of.

 

http://www.scotcourts.gov.uk/opinions/CA114_99.html

 

M1

[oilyrag]

Hi pt,

 

Re your post No. 145 above. You say that they may comply with section 78 "any time up to judgement".

Looking at the resulting discussion can you clarify what that means. It seems to be being said that a creditor can keep going back to court on any premise for the same alleged debt, time after time until he gets the result he wants to hear. Surely this is nonsense and "any time up to judgement" means just that? ( I know about appeal but as was discussed elsewhere about Teasdale, the C of A will only allow appeal hearings on legal grounds).

regards

oilyrag.

[pt2537]

let me clarify

 

not me, but Ward LJ said that they can remedy the breach of sec 78 at any time up until judgment is given.

[oilyrag]

Perhaps I worded it wrongly pt, (and thanks for the reference by the way) but I was getting at:

 

What happens after the said judgement? It seems to be being suggested by eminent posters that should the creditor lose in that judgement then he can keep going back to court time after time over the same debt with amended details to suit the previous judgement UNTIL he gets what he wants from the courts.

 

That surely cannot be the case, I am fully aware of the specifics with regard to s78 but the discussion following the post I highlighted adds another dimension, like win in the Suprem court and they can still come back with another load of hogwash and the whole thing starts again. Not highly likely I know but the eminent posters are most defintiely suggesting that scenario.

 

regards

oilyrag