un1boy - N1 issued for breach of CCA request

[dad]

Which CPR part is this from, dad?

 

Practice Direction 52, accompanying CPR 52:

 

Suitable record of the judgment

 

5.12 (3) When the appellant was unrepresented in the lower court it is the duty of any advocate for the respondent to make his/her note of judgment promptly available, free of charge to the appellant where there is no officially recorded judgment …

 

 

Some other points.

 

1. The appeal will be based on the facts before the original judge.

 

2. You will need your original trial bundle as it went before the DJ, in addition you will need to make up an appeal bundle CPR 52 tells you what has to be in it.

 

3. The appeal judge will not listen to the tape, the appeal bundle will need to include a transcript of the judgement. If your are going to challenge the error of procedure then you will need a transcript of the relevant exchanges between you and the judge. They will not let you have a copy of the tape (if it exists). If tthere is a tape then you have to get it transcribed by one of the approved transcribers which is not cheap.

 

4. There are two ground of appeal set out in CPR 52:

 

52.11 (1)Every appeal will be limited to a review of the decision of the lower court unless –

(a)a practice direction makes different provision for a particular category of appeal; or

(b)the court considers that in the circumstances of an individual appeal it would be in the interests of justice to hold a re-hearing.

(2)Unless it orders otherwise, the appeal court will not receive –

(a)oral evidence; or

(b)evidence which was not before the lower court.

(3)The appeal court will allow an appeal where the decision of the lower court was –

(a)wrong; or

(b)unjust because of a serious procedural or other irregularity in the proceedings in the lower court.

(4)The appeal court may draw any inference of fact which it considers justified on the evidence.

(5)At the hearing of the appeal a party may not rely on a matter not contained in his appeal notice unless the appeal court gives permission.

 

I recommend that you read CPR 52 and the practice direction thoroughly.

 

Dad

[un1boy]

Yes.

 

 

 

Yes, but you're less likely to be successful - you could go procedural irregularity and incorrect (not illegal) Judgment, though.

 

 

 

Cool, even better - but I don't think you'll get a copy of the recording - the Circuit Judge should have access to it on appeal, though.

 

Cheers I'll get it sorted asap

[un1boy]

Really disappointed for you, Uniboy, what an awful judgment.

 

Did the DJ award any costs against you?

 

Lots of luck with the appeal. Will be following your progres with interest and fingers crossed.

 

BAE:)

 

Thanks Blossom - no, I didn't get costs awarded agsint me - they asked for them based on the fact I had acted unreasonably, but the judge said that I hadn't acted unreasonably and in small claims, you had to do something very bad to get them awarded.

 

It's about the only thing she did actually do for me, lol.

 

When I told her I wanted to appeal - she told me to think about, saying that the bank could appeal the costs judgement too (she didn't want me to appeal!)

[un1boy]

Practice Direction 52, accompanying CPR 52:

 

 

 

 

Some other points.

 

1. The appeal will be based on the facts before the original judge.

 

2. You will need your original trial bundle as it went before the DJ, in addition you will need to make up an appeal bundle CPR 52 tells you what has to be in it.

 

3. The appeal judge will not listen to the tape, the appeal bundle will need to include a transcript of the judgement. If your are going to challenge the error of procedure then you will need a transcript of the relevant exchanges between you and the judge. They will not let you have a copy of the tape (if it exists). If tthere is a tape then you have to get it transcribed by one of the approved transcribers which is not cheap.

 

4. There are two ground of appeal set out in CPR 52:

 

 

 

I recommend that you read CPR 52 and the practice direction thoroughly.

 

Dad

 

 

Ok, I'll get reading them - so, I can't enter anything else in the bundle (like the wilson vs hurstanger case?!?)

[dad]

so, I can't enter anything else in the bundle (like the wilson vs hurstanger case?!?)

 

You cannot enter any new EVIDENCE.

 

Authorities (wilson etc) back up your skeleton argument. I quoted a further 11 authorities in my appeal.

 

I thought that it was pretty harsh not to let you quote some fairly well known authorities.

 

And just to clarify at the appeal you will have TWO bundles:

 

1. The original trial bundle as before the DJ; and

2. The appeal bundle as per CPR 52.

 

As it happens we had a third file with all the authorites which were agreed in advance of the appeal hearing, but they can be incorporated into the appeal bundle.

Edited August 26, 2008 by dad

[un1boy]

You cannot enter any new EVIDENCE.

 

Authorities (wilson etc) back up your skeleton argument. I quoted a further 11 authorities in my appeal.

 

I thought that it was pretty harsh not to let you quote some fairly well known authorities.

 

And just to clarify at the appeal you will have TWO bundles:

 

1. The original trial bundle as before the DJ; and

2. The appeal bundle as per CPR 52.

 

As it happens we had a third file with all the authorites which were agreed in advance of the appeal hearing, but they can be incorporated into the appeal bundle.

 

Ok, thanks.

 

I'll have to get my bundle re-binded to be honest.

[un1boy]

Dad - do I have to re-submit the bundle to the court, or will the CJ use the one I have already submitted ?

 

I'd rather do it to behinest (I need to re-index it)

[dad]

Dad - do I have to re-submit the bundle to the court, or will the CJ use the one I have already submitted ?

 

This is where my experience is slightly different. My original hearing was before a CJ so my appeal ended up in the High Court. About a month after the original hearing the county court wrote to me asking if I wanted to collect my bundle, otherwise they would dispose of it. So I collected it from the court and resubmitted it to the High Court.

 

If you want it back to re-index it. I would ask the court office if you can have it back. My experience is that the court staff have always been really helpful.

 

Dad

[dad]

Uni,

 

To help you on your way I though I would offer my thoughts on your ground for appeal. Once you have these sorted this will drive the layout of your skeleton argument.

 

My non exhaustive list for comment is:

 

1. The Appellant was served with the Respondent's skeleton argument only 12 hours before the Hearing. This was unreasonable [and a breach of the trial directions]. The Judge refused to allow the Appellant to cite authorities to rebut the Respndent's arguments as the authorities had not been served in advance of the trial. This meant that the parties were on an unequal footing in breach of CPR 1.1(2) (a). This is an appeal under CPR 52.11(3)(b).

 

2. The hearing related to a written agreement regulated by the Consumer Credit Act 1974. Practice Direction 16, 7.3(1) requires that a complete copy of the agreement should be attached to the claim form and produced at the hearing. Neither of these mandatory requirements was complied with and fatally undermines the claim form. This is an appeal under CPR 52.11(3)(b).

 

3. The Judge ordered the enforcement of a regulated consumer credit agreement, subject to the transitional provisions of the Consumer Credit Act 2006 so still subject to section 127(3) of the Consumer Credit Act 1974, which did not contain the the terms prescribed under Section 61(1) of the 1974 Act. In these circumstances the Judge was barred from ordering the enforcement of the agreement. This is an appeal under CPR 52.11(3)(a).

 

4. The Judge ordered the enforcement of a regulated consumer credit agreement where the Respondent had not complied with a request for information under section 78 of the Consumer Credit Act in that the Respondent did not produce the terms and conditions of the agreement or a statement in the format prescribed by section 78 of the Consumer Credit Act 1974. This is a breach of section 78(6) of the Consumer Credit Act 1974. This is an appeal under CPR 52.11(3)(a).

 

As I said - just my thoughts based on a superficial reading of the thread. I am sure they can be improved.

 

hth

 

Dad

[banker_rhymes_with]

Hello Dad!

 

Just a minor nit pick, not a criticism. Have added the part in Blue Bold just to make sure it's made clear that the Original Agreement should've been brought to the original hearing:

 

2. The hearing related to a written agreement regulated by the Consumer Credit Act 1974. Practice Direction 16, 7.3(1) requires that a complete copy of the agreement should be attached to the claim form and the original(s) should produced at the hearing. Neither of these mandatory requirements was complied with and fatally undermines the claim form. This is an appeal under CPR 52.11(3)(b).

 

Otherwise, looks good.

 

Cheers,

BRW

[pt2537]

i would throw 127(3) into the mix considering its relating to judicial control

 

(3) The court shall not make an enforcement order under section 65(1) if section 61(1)(a)(signing of agreements) was not complied with unless a document (whether or not in the prescribed form and complying with regulations under section 60(1)) itself containing all the prescribed terms of the agreement was signed by the debtor or hirer (whether or not in the prescribed manner).

 

Highly relevent as a court cannot make an order without being satisfied that the agreement was in the prescribed form containing the prescribed terms and signed by the debtor

[un1boy]

Uni,

 

To help you on your way I though I would offer my thoughts on your ground for appeal. Once you have these sorted this will drive the layout of your skeleton argument.

 

Dadm you're an absolute star, thank you very much!

 

Uni

My non exhaustive list for comment is:

 

1. The Appellant was served with the Respondent's skeleton argument only 12 hours before the Hearing. This was unreasonable [and a breach of the trial directions]. The Judge refused to allow the Appellant to cite authorities to rebut the Respndent's arguments as the authorities had not been served in advance of the trial. This meant that the parties were on an unequal footing in breach of CPR 1.1(2) (a). This is an appeal under CPR 52.11(3)(b).

 

They actually filed it at 9am - the trial was at 10am! She had a copy of them though!

 

Can/should I mention the fact that they brought up the definitions section despite it not being in their skeleton arguments?

 

2. The hearing related to a written agreement regulated by the Consumer Credit Act 1974. Practice Direction 16, 7.3(1) requires that a complete copy of the agreement should be attached to the claim form and produced at the hearing. Neither of these mandatory requirements was complied with and fatally undermines the claim form. This is an appeal under CPR 52.11(3)(b).

 

What is a practice direction? I didn't know that it said that re the original!

 

3. The Judge ordered the enforcement of a regulated consumer credit agreement, subject to the transitional provisions of the Consumer Credit Act 2006 so still subject to section 127(3) of the Consumer Credit Act 1974, which did not contain the the terms prescribed under Section 61(1) of the 1974 Act. In these circumstances the Judge was barred from ordering the enforcement of the agreement. This is an appeal under CPR 52.11(3)(a).

 

I'm sorry, I don't understand this - I thought that she ordered it under the CCA 1974.

 

4. The Judge ordered the enforcement of a regulated consumer credit agreement where the Respondent had not complied with a request for information under section 78 of the Consumer Credit Act in that the Respondent did not produce the terms and conditions of the agreement or a statement in the format prescribed by section 78 of the Consumer Credit Act 1974. This is a breach of section 78(6) of the Consumer Credit Act 1974. This is an appeal under CPR 52.11(3)(a).

 

Tell me about it - they even admitted they didn't have the t&c's and didn't supply them, but she said that these things happen!

 

I am really scared about this - it's really knocked my confidence. I am just crapping myself over the costs aspect - do you know they only asked for costs relating to the OD agreement and not for the credit card account? Cheeky barstewards asked for interest at 8% - the judge just gave them it, I wasn't consulted or told what was going on.

 

Could I my costs back if the appeal is won?

 

After telling me she wasn't giving me leave to appeal, she told me to think very carefully because the bank could appeal her decision not to award costs. She also told me that I would receive all the forms to appeal to the CJ with the order. That's why I was surprised I could do it now.

 

Ok, so which form do I put the above on?

[un1boy]

i would throw 127(3) into the mix considering its relating to judicial control

 

 

 

Highly relevent as a court cannot make an order without being satisfied that the agreement was in the prescribed form containing the prescribed terms and signed by the debtor

 

Apparently they can mate - I showed her this. But because the bank said they were in the t&c's, despite the bank saying they could not locate the t&c's and didn't know what was in them.

 

I asked her for leave to appeal based on the fact that the t&c's weren't present and it was therefore hearsay that the prescribed terms were in them -she disagreed saying it wasn't hearsay and that she had made a judgement based on fact (god knows what fact!)

[pt2537]

Apparently they can mate - I showed her this. But because the bank said they were in the t&c's, despite the bank saying they could not locate the t&c's and didn't know what was in them.

 

I asked her for leave to appeal based on the fact that the t&c's weren't present and it was therefore hearsay that the prescribed terms were in them -she disagreed saying it wasn't hearsay and that she had made a judgement based on fact (god knows what fact!)

Well my Friend , let me tell you something

 

SHE IS WRONG

 

Blackstones Civil Practice , Goode Consumer Credit Law and Practice (written by Professor Sir Roy Goode Qc and if you want to check his qualifications check here Law Profile: Roy Goode; ) The Inns of the Court School of Law book on Consumer Credit , and all the various Court of Appeal and House of Lords Rulings say different, and i have all of the above here in the bookshelf in my Law Library here at home

 

so she was wrong and made a clear error on a point of law

 

 

 

Give me 15 minutes in court with her and i am certain that i would make her see that

[noomill060]

I have a feeling that uniboy may like to take you up on that offer.

[sansho]

subbing..

 

An appeal will definitely be given in your case. That judge would be wondering whether is was PMT or silliness that got the better of her on the day.

 

How ridiculous Judges are becoming these days. A lot of them just believe you must be really poor and stupid to have this sort of case before the Court, whereby the chances of your summing up the costs factor to defend your right is very slim.

 

I bet if you had the weakest lawyer you could find, the Judge would not have made such a flawed judgement. partly because the lawyer will be able to afford the costs of a subsequent appeal. Court systems these days, is now all about how much money you have, that you can waste and nothing more..

 

I think another useful precedent is on its way...

Unless the bank decides to bottle it and run when your appeal gets granted.

 

Some of these legal pegs make me sick

[dad]

Hi Uni,

 

Right you have asked quite a few questions which I will attempt to answer (all the usual warnings that I am not legally qualified etc).

 

They actually filed it at 9am - the trial was at 10am

 

I just want to clear up the difference between filed and served. Filed is sending the papers to the court, served is when you received them. A small side point is that it is not when you actually received them, but dependant on the method of sending and the deemed date of service, which is set out in CPR 6. So in law you were not served with the skeleton until the day after the hearing by email. The service of the posted version depends on the date of posting.

 

What is a practice direction?

 

Each part of the Civil Procedure Rules has an accompanying Practice Direction, It amplifies the part and explains how it is to be followed. They are available on line at:

 

CPR - Parts and Practice Directions

 

 

I'm sorry, I don't understand this - I thought that she ordered it under the CCA 1974

 

The CCA2006 brought in significant changes by altering the CCA1974. But your agreement is subject to transitional provisions which means that existing agreements, like yours, still have the protection of s127(3) and the judge is barred from making the order she did. If you did not understand then we have not got this ground right - I am trying to balance between keeping them short and being clear.

 

I am really scared about this - it's really knocked my confidence. I am just crapping myself over the costs aspect

 

I can understand this and in the end it is a personal decision that you must take as you are the only one who knows your own circumstances and can balance the decision to appeal against the cost of not appealing. Whatever your decision people on the site can advise you. But CPR 27 is very clear about the costs of an appeal:

 

27.14 (2)The court may not order a party to pay a sum to another party in respect of that other party's costs, fees and expenses, including those relating to an appeal

 

Could I my costs back if the appeal is won?

 

Yes, but you will have to ask for them in court after the judgement. I think the correct term is 'costs here and below'.

 

Ok, so which form do I put the above on?

 

They go in the N164 in section 5.

 

She also told me that I would receive all the forms to appeal to the CJ with the order.

 

This should be the sealed order and the N460. (Which should be an interesting read given that she has made such a pigs ear of the law). You need both of these documents before you can submit the appeal.

 

Dad

Edited August 28, 2008 by dad

[AnimalMagic]

Here is an alternative reference for CPR, YAWS

[un1boy]

Well my Friend , let me tell you something

 

SHE IS WRONG

 

Blackstones Civil Practice , Goode Consumer Credit Law and Practice (written by Professor Sir Roy Goode Qc and if you want to check his qualifications check here Law Profile: Roy Goode; ) The Inns of the Court School of Law book on Consumer Credit , and all the various Court of Appeal and House of Lords Rulings say different, and i have all of the above here in the bookshelf in my Law Library here at home

 

so she was wrong and made a clear error on a point of law

 

 

 

Give me 15 minutes in court with her and i am certain that i would make her see that

 

I know mate - I tried telling her that, but apparently she thinks that the court can rule enforcable - I'm annoyed the cheeky [edited] has made me go to a CJ to appeal!!

 

She was just bumming the bank.....it was horrible

[un1boy]

I have a feeling that uniboy may like to take you up on that offer.

 

Haha, absolutely - where abouts in the country are ya mate?!

[un1boy]

Hi Uni,

 

Right you have asked quite a few questions which I will attempt to answer (all the usual warnings that I am not legally qualified etc).

 

 

 

I just want to clear up the difference between filed and served. Filed is sending the papers to the court, served is when you received them. A small side point is that it is not when you actually received them, but dependant on the method of sending and the deemed date of service, which is set out in CPR 6. So in law you were not served with the skeleton until the day after the hearing by email. The service of the posted version depends on the date of posting.

 

 

 

Each part of the Civil Procedure Rules has an accompanying Practice Direction, It amplifies the part and explains how it is to be followed. They are available on line at:

 

CPR - Parts and Practice Directions

 

 

 

 

The CCA2006 brought in significant changes by altering the CCA1974. But your agreement is subject to transitional provisions which means that existing agreements, like yours, still have the protection of s127(3) and the judge is barred from making the order she did. If you did not understand then we have not got this ground right - I am trying to balance between keeping them short and being clear.

 

 

 

I can understand this and in the end it is a personal decision that you must take as you are the only one who knows your own circumstances and can balance the decision to appeal against the cost of not appealing. Whatever your decision people on the site can advise you. But CPR 27 is very clear about the costs of an appeal:

 

 

 

 

 

Yes, but you will have to ask for them in court after the judgement. I think the correct term is 'costs here and below'.

 

 

 

They go in the N164 in section 5.

 

 

 

This should be the sealed order and the N460. (Which should be an interesting read given that she has made such a pigs ear of the law). You need both of these documents before you can submit the appeal.

 

Dad

 

Hi Dad,

 

thanks for your time on this. I do understand the grounds mentioned with the CCA2006 and CCA1974 0 she even said herself that the agreement would be regulated under the 1974 act, not the 2006 act because the bank tried to say that it was so complicated, it was repealled. When I explinaed that it was repealled because the 2006 act has no upper limit, like the 25k in the CCA 1974, she told me it's not her job to look behind the law, but to implement it (or something like that) and therefore the terms of the CCA !974 would be relevant.

 

Her judgement was based on fact (apparently) that the prescribed terms were in the t&c's, which weren't supplied and the bank admitted they had lost.

 

That is why I am so confused by her decision.

 

To a degree, I can understand her decision re the OD, but I also can't - I'm not going to appeal that though, I'm just going to pay it. It actually works better because if they re-default it then I'd have paid it in 14 days so it would be removed!!! haha.

[un1boy]

This should be the sealed order and the N460. (Which should be an interesting read given that she has made such a pigs ear of the law). You need both of these documents before you can submit the appeal.

 

Ok, but again, I thought that I had a limited time to appeal - do I need to chase this from the court?!

[pt2537]

Haha, absolutely - where abouts in the country are ya mate?!

Southampton, although ive made appearences in Derby,Reading,Slough,Wrexham,Portsmouth and Birmingham County Courts over the past few months so i do travel around a bit;)

[foolishgirl]

My goodness PT, you sound like Father Christmas!

[pt2537]

My goodness PT, you sound like Father Christmas!

Nah i dont have the reindeer or the sleigh, just a new ford focus