Richard Durkin wins Supreme Court appeal – beware lenders!

[Durkin]

 

When you applied for a mortgage, did the lender(s) state the reason as to why your application was not successful at that time and also, how many different lenders did you make mortgage applications to and did they all state the same reason for declining to provide a mortgage to you?

 

 

Sorry, I am not prying here, just that if you made more than one application and all the lenders said ‘no’ and gave the same or similar reasons (if they gave any reason(s) at all), such evidence would be material to your case to put before the Sheriff.

 

 

 

All that evidence was lodged during a two week trial back in 2007 with expert witnesses to back it up. Appeal judges then promptly ignored it, preferring the bank's advocates unproven hogwash theories!

 

 

(That I was unable to borrow money because I had been on too many holidays and refused to switch to a punishing Spanish tax regime. Nothing at all to do with the default!)

 

 

It's impossible to get a mortgage in the UK with a default. I had an expert witness to confirm that. What I was trying to do was borrow enough money for a deposit on a house in Spain where I would have been able to get a mortgage (and where we'd like to live) had the bank simply removed the default when I pleaded with it to do so (even offering them the money I didn't owe!).

 

 

Cheers,

 

 

Richard.

[Durkin]

Hi Folks,

 

 

Looking at the Provisional Record in post 86, can anyone explain how my first plea could be considered incompetent and how I might improve it's standing?

 

 

The plea currently reads: " To reaffirm that the Pursuer, having suffered loss and damage as a result of the fault and breach of duty of the Defender, is entitled to reparation."

 

 

Perhaps it would be better to tweak it like this:

 

 

" To reaffirm that the Pursuer, having suffered loss and damage as a result of the fault and breach of duty of the Defender and ratified by the UK Supreme Court, is entitled to reparation, as previously determined by this court."

 

 

Of course the bank knows what I'm trying to say but see how they are playing with lives as if it were just a game. They think they are God!

 

Cheers,

 

 

Richard.

[Durkin]

Or perhaps this improves it?

 

 

"Having suffered loss and damage as a result of the fault and breach of duty of the Defender,

(ratified by the UK Supreme Court), the Pursuer is entitled to reparation, as previously determined by this court"

[caro]

Forgive me for not recalling all the details of your struggle Richard, and playing devil's advocate, but couldn't it be argued that the Supreme Court, which is obviously the highest in the land, has already given you what (little) they felt you were due.

[Durkin]

couldn't it be argued that the Supreme Court, which is obviously the highest in the land, has already given you what (little) they felt you were due.

 

 

Of course it could be argued. It would be only wasting time and life though.

 

 

It must be obvious to the reasonable person reading the facts from the Sheriff court or indeed from experience that a default will prevent a mortgage.

 

 

It should actually be judicial knowledge as it is certainly known by the banks themselves.

 

 

The Supreme Court, by ignoring facts and submissions, found a quirk in the law that "prevented" them awarding proper redress.

 

 

I've seen so much wrong with our judiciary and to find the UK Supreme Court demonstrating a lack of integrity with sheer incompetence was truly shocking.

[Durkin]

the Supreme Court, which is obviously the highest in the land, has already given you what (little) they felt you were due.

 

Remember too that they gave me nothing. The legal bill they have ordered me to pay is £80K.

 

 

I owe them for annihilating my creditworthiness and refusing proper reparation? Justice?

 

 

They are in cahoots with the bank and I hope that the lower court can clearly see that and act more professionally.

[steampowered]

Is this the same claim (or very similar) to the claim you brought last time?

 

If a claim has already been decided, you cannot bring the same claim again.

[Durkin]

Is this the same claim (or very similar) to the claim you brought last time?

 

If a claim has already been decided, you cannot bring the same claim again.

 

 

The legal fraternity call that Res Judicata I believe. A quirk that could put the last nail in my coffin.

 

Hopefully I'll manage to convince a sheriff willing to prioritise justice ahead of quirks (common sense), that I'm not the bad guy!

 

I'm trying to make the claim as different as possible and emphasise the criminal element of the bank's actions.

 

Malicious falsehood was not raised before, nor the fraudulent misrepresentation, causing loss by unlawful means or the conspiracy to defraud.

 

 

Cheers,

 

 

Richard

[DonkeyB]

Richard, in any part of your case, was is established that the agreement was technically unenforceable in any way, due to the conduct of the seller or finance company? Apologies, I can’t remember the detail.

 

If you, you should search out the Grace v Black Horse judgment.

[Champollion]

The credit agreement in Richard’s case was indeed irredeemably unenforceable because Richard was entitled to rescind the agreement and he rightly and correctly did so, therefore, when the bank reported the unlawful and false default to the credit reference agencies the agreement was not extant.

 

 

The forth principle of the Data Protection Act would apply to Richard’s case as regards the bank’s action of reporting said default which the bank knew was wholly factually incorrect.

 

 

Regards

 

 

Champollion

[DonkeyB]

If that is so, then according to the Black Horse ruling, a default cannot be legally recorded, and damages would be due for recording such a default. I think Richard’s costs might identify the level of damages expected.

[steampowered]

I think it is a real shame that you have been stuck with this bill for legal costs. I just want to add my 2 cents given that you are risking another enormous legal costs bill here.

 

The courts are very clear that you are not allowed to bring the same claim twice. Otherwise you would get the same case being re-litigated over and over again.

 

One very famous case on this, Henderson v Henderson, stated as follows: " the Court requires the parties to that litigation to bring forward their whole case, and will not (except under special circumstances) permit the same parties to open the same subject of litigation in respect of a matter which might have been brought forward as part of the subject in contest, but which was not brought forward, only because they have, from negligence, inadvertence, or even accident, omitted part of their case."

 

As you can see from the above, it is not sufficient just to change your claim. For example, if you have a claim for breach of contract and another claim for misrepresentation, in relation to the same set of circumstances, you must bring forward both claims in the same case. If you make only a breach of contract claim and you lose; you are not allowed to open a new case for the misrepresentation claim. Otherwise the defendant would end up defending many different claims about the same set of circumstances.

 

I read the judgment of the Supreme Court and your draft 'provisional record', and unless I have missed something, it sounds like your new claim is about exactly the same thing as your old claim - you are claiming damages for the wrongful credit report. You have already litigated this. If you wanted to make a claim for conspiracy to defraud or fraudulent misrepresentation or whatever, you were required to bring that forward during the original claim. I honestly cannot see how your new claim could be allowed to proceed.

 

It seems to me that you have already appealed your claim as far as it would go, and while you did not get the result you wanted, I think you are now at the end of the road. Although I guess the threat of another epic claim could be used to convince the bank to compromise on their legal costs.

[steampowered]

A few thoughts below on the legal claims you are considering. As per the above, I think this discussion is academic because this case has already been litigated.

 

I would also point out that the First Division held that, in its view, there was no evidence to support the claims made in relation to your inability to use 0% cards or that inability to borrow on credit cards led to a loss of capital gain on Spanish property or caused you to borrow more from Northern Rock. The Supreme Court felt it had no jurisdiction to go behind that. I am just reading from the Supreme Court judgment here. If the same conclusions were reached in any new case, you would only be entitled to the c. 8k for damage to your credit rating rather than the £600,000 you are claiming.

 

Malicious falsehood was not raised before

Malicious falsehood is a sub-species of defamation. It requires a lie to be uttered knowing that it was false and would cause damage or harm. There might have been mileage in this sort of claim (or a general defamation claim), but I think it would ultimately have led to the same award of damages as per the claim which was actually used in your case, i.e. the claim you made around the finance company breaching its duty of care.

 

nor the fraudulent misrepresentation

Fraudulent misrepresentation (also known as the tort of deceit) requires the defendant to make a factual misrepresentation, knowing that it is false (or having no belief in its truth and being reckless as to whether it is true) and intending it to be relied on by the recipient, and the recipient acts to his or her detriment in reliance on it.

 

In this case you did not 'rely' on the statement made concerning your credit rating. Other people relied on it. Therefore I don't think this cause of action applies.

 

causing loss by unlawful means

This is really a sub-species of the tort of procuring a breach of contract. This tort applies where A does something legally actionable against B with the intention of damaging C. A claim for 'causing loss by unlawful means' would need to be brought by C, and it would rely on the claim B has against A. I don't think that sort of thing is applicable here.

 

conspiracy to defraud

A conspiracy to defraud requires an agreement between two or more persons to dishonestly deprive someone of something to which they are entitled. In this case I don't think there could be said to have been an 'agreement' to defraud you.

[Durkin]

except under special circumstances

 

Thanks for that. That's the bit I'm relying on.

 

We cannot have incompetent justices acting with a lack of integrity to deny justice.

 

Changing facts without good reason is unlawful in itself.

 

We are living in a society where appeal judges themselves are acting unlawfully! This will not do.

 

As I've mentioned in this second adjustment attached (thanks to Champ) the bankers are creating a society of ruinous oppression regardless of the law.

 

They must be stopped.

 

Cheers,

 

Richard

[unclebulgaria67]

Thanks for that. That's the bit I'm relying on.

 

We cannot have incompetent justices acting with a lack of integrity to deny justice.

 

Changing facts without good reason is unlawful in itself.

 

We are living in a society where appeal judges themselves are acting unlawfully! This will not do.

 

As I've mentioned in this second adjustment attached (thanks to Champ) the bankers are creating a society of ruinous oppression regardless of the law.

 

They must be stopped.

 

Cheers,

 

Richard

 

Might be a daft question, but if a loss occured in Spain, can you make a court claim in Spain ? Or would it be statute barred ?

[Durkin]

Might be a daft question, but if a loss occured in Spain, can you make a court claim in Spain ? Or would it be statute barred ?

 

I imagine one could claim in Spain under Spanish law.

 

My creditworthiness was maliciously annihilated only in the UK.

 

Cheers,

 

Rico

[unclebulgaria67]

I imagine one could claim in Spain under Spanish law.

 

My creditworthiness was maliciously annihilated only in the UK.

 

Cheers,

 

Rico

 

Any European personal finance law that might assist. Would have thought that because you can get UK loans for Spannish property, that the UK credit record issue leading to a loss in Spain, could be made into an argument of some kind.

 

Thought only came into mind because someone raised jurisdiction issue, which i took as meaning they could not consider loss in Spain.

[Durkin]

UK credit record issue leading to a loss in Spain, could be made into an argument of some kind.

 

Thought only came into mind because someone raised jurisdiction issue, which i took as meaning they could not consider loss in Spain.

 

That's what caused the damage and that's what was successfully (barring the maths) argued in Aberdeen.

 

Jurisdiction issues were that the UK Supreme Court cannot reinstate facts found in Scotland. Turns out that's complete tosh as they did exactly that in an earlier case that was "conveniently" ignored from our submissions!

 

Rico

[Durkin]

The credit agreement in Richard’s case was indeed irredeemably unenforceable because Richard was entitled to rescind the agreement

 

The agreement itself was processed fraudulently. A false account was created in my name by an agent for the bank (Andrew Taylor at PC World)

 

Richard.

Edited September 29, 2015 by Durkin
Add the evidence.

[Durkin]

 

Malicious falsehood .. would ultimately have led to the same award of damages as per the claim which was actually used in your case.

 

Original claim was negligent misrepresentation. Damages based on a guy screwed for a day as opposed to 6000 days. The longer it drags on the more damage is done. I should be suing for millions but I'm trying to be reasonable. All I wanted was not to be fraudulently blacklisted in the first place.

 

 

Fraudulent misrepresentation

In this case you did not 'rely' on the statement made concerning your credit rating.

 

I relied on the statement not existing. The fact that it did destroyed our lives forever.

 

 

A conspiracy to defraud requires an agreement between two or more persons to dishonestly deprive someone of something to which they are entitled. In this case I don't think there could be said to have been an 'agreement' to defraud you.

 

CRAs have agreed with the bank to fraudulently and maliciously report a falsehood, depriving me of the credit needed to set up a family home.

Edited September 29, 2015 by Durkin
Spelling & grammar

[steampowered]

I relied on the statement not existing. The fact that it did destroyed our lives forever.

A statement which does not exist is not a 'representation'. In order to make a claim for fraudulent misrepresentation you need to identify a specific statement which you relied on to your detriment.

 

CRA's have agreed with the bank to fraudulently and maliciously report a falsehood, depriving me of the credit needed to set up a family home.

I don't think you could prove that the CRAs agreed with the bank to defraud you as part of a conspiracy to defraud. This is because specific intention is required for fraud claims. I don't think you could prove that the CRAs knew they were reporting a falsehood, the CRAs report what they are told by the bank.

[Durkin]

the CRAs report what they are told by the bank.

Including malicious falsehoods.

[steampowered]

Including malicious falsehoods.

Indeed. But that would be the CRA negligently reporting a malicious falsehood rather than intentionally doing it, so would not be a conspiracy to defraud. There is an argument to be made that the CRAs should do more to investigate the validity of the reports they receive. That is another can of worms!

[Durkin]

that would be the CRA negligently reporting a malicious falsehood rather than intentionally doing it, so would not be a conspiracy to defraud.

 

The evidence from the prior litigation shows that it was intentional.

 

It's time to put an end to this ruinous oppression being bestowed upon us by criminal bankers.

 

Lets hope Scottish Law won't alllow res judicata and time restraints to block justice in favour of these criminals and absurd rulings.

 

Richard.

[Durkin]

Hi Folks,

 

I've edited (in red) my pleadings attached here.

 

11 Human Rights issues included should they become necessary.

 

First to dodge res judicata and prescription. Neither should be used to defeat justice and defend incorrect decisions but lets see what the sheriff says on Thursday.

 

Cheers,

 

Richard.

 

How do I get this post linked to a tweet (as opposed to the whole thread)?