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Defence for those having their action stayed
deary65
Posts: 818 Forumite
Our common law is a creature of creation, in other words it accepts the law exists, it is therefore a matter for the courts to find and express what that law is, which in itself, is continuously evolving.
In other words there is no such thing as a hypothetical case in English common law, for the law is vested in us all. Which is what a test case would be.
To assist those who are having their actions stayed, on the bases that there is a test case, there is no such thing in English law. If you are in court and the defendant asks for proceedings to be stayed and the judge agrees make your point, that you have no intension of forgoing your right to wager your law and that you will not have your law subjected to the will of another ( the so called test case), which is what the judge would be ordering and it is also the reason in common law, why there is no such thing as a test case. Your contract is between you and the bank and only you or the bank can lawfully sue upon.
I posted on an other board on rent restrictions by a rent officer explaining the unlawfulness of these decisions, in short, it is the law of market forces which sets the rent and not an officer of the state. In other words your contract cannot be subjected to the will of an other not a party to that agreement.
This can only be done by way of a statutory act of parliament for that specific purpose just as parliament would have to pass a class action law in order to effectuate a so called test case.
P.S It would be interesting to read the letter from the banks quoting this test case as a reason for not dealing with your complaint.
Definition of a contract:
A contract has no life of it's own, it is born of agreement between the parties thereto, given vitality by their desires to strict a bargain, fertilized by way of negotiation. Once the bargain is struck a contract is born imbued with all the promises of the parties thereto and cloaked with the sanctity of the law.
You and the bank have brought to life a creature with a personality and characteristics all of it's own, the parenting of which, is your sole responsibility. If the banks have chosen to waiver, relinquish their legal rights, thats is a matter for them, you are not a party to such an agreement.
In other words there is no such thing as a hypothetical case in English common law, for the law is vested in us all. Which is what a test case would be.
To assist those who are having their actions stayed, on the bases that there is a test case, there is no such thing in English law. If you are in court and the defendant asks for proceedings to be stayed and the judge agrees make your point, that you have no intension of forgoing your right to wager your law and that you will not have your law subjected to the will of another ( the so called test case), which is what the judge would be ordering and it is also the reason in common law, why there is no such thing as a test case. Your contract is between you and the bank and only you or the bank can lawfully sue upon.
I posted on an other board on rent restrictions by a rent officer explaining the unlawfulness of these decisions, in short, it is the law of market forces which sets the rent and not an officer of the state. In other words your contract cannot be subjected to the will of an other not a party to that agreement.
This can only be done by way of a statutory act of parliament for that specific purpose just as parliament would have to pass a class action law in order to effectuate a so called test case.
P.S It would be interesting to read the letter from the banks quoting this test case as a reason for not dealing with your complaint.
Definition of a contract:
A contract has no life of it's own, it is born of agreement between the parties thereto, given vitality by their desires to strict a bargain, fertilized by way of negotiation. Once the bargain is struck a contract is born imbued with all the promises of the parties thereto and cloaked with the sanctity of the law.
You and the bank have brought to life a creature with a personality and characteristics all of it's own, the parenting of which, is your sole responsibility. If the banks have chosen to waiver, relinquish their legal rights, thats is a matter for them, you are not a party to such an agreement.
Any posts by myself are my opinion ONLY. They should never be taken as correct or factual without confirmation from a legal professional. All information is given without prejudice or liability.
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Comments
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very good post might I add, but is your spelling entirely correct?Our common law is a creature of creation, in other words it accepts the law exists, it is therefore a matter for the courts to find and express what that law is, which in itself, is continuously evolving.
In other words there is no such thing as a hypothetical case in England common law, for the law is vested in us all. Which is what a test case would be.
To assist those who are having their actions stayed, on the bases that there is a test case, there is no such thing in English law. If you are in court and the defendant asks for proceedings to be stayed and the judge agrees make your point, that you have no intension of forgoing your right to wager your law and that you will not have your law subjected to the will of another ( the so called test case), which is what the judge would be ordering and it is also the reason in common law, why there is no such thing as a test case. Your contract is between you and the bank and only you or the bank can lawfully sue upon.
I posted on an other board on rent restrictions by a rent officer explaining the unlawfulness of these decisions, in short, it is the law of market forces which sets the rent and not an officer of the state. In other words your contract cannot be subjected to the will of an other not a party to that contract.
This can only be done by way of a statutory act of parliament for that specific purpose just as parliament would have to pass a class action law in order to effectuate a so called test case.
P.S It would be interesting to read the letter from the banks quoting this test case as a reason for not dealing with your complaint.
Definition of a contract:
A contract has no live of it's own, it is born of agreement between the parties thereto, given vitality by their desires to strict a bargain, fertilized by way of negotiation. Once the bargain is struck a contract is born imbued with all the promises of the parties thereto and cloaked with the sanctity of the law.0 -
Wine, woman, and spelling are my weaknesses! What are yours?Any posts by myself are my opinion ONLY. They should never be taken as correct or factual without confirmation from a legal professional. All information is given without prejudice or liability.0
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Bump, for the benefit of evening readers.Any posts by myself are my opinion ONLY. They should never be taken as correct or factual without confirmation from a legal professional. All information is given without prejudice or liability.0
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weaknesses..vodka and poor spelling men..0
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hello
I have been trying to get £1530 back from Abbey since march, they gave me £495, and I sent a second letter for the rest, Ive avoided court proceedings becasue of the decision made my the OFT, I was originally supposed to get a response to my second letter on the 30th.
Is it fine to continue with court proceedings then? from what I have read here I can begin them and continue my claim even though there is a test case in progress? I hope this is the answer as Im in extreme debt being a student and owing money and would consider myself in financial hardship because of this, if this test case hadnt happened its likely I would have recieved some if not all of my claim back by now. grrrr.
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Dreary - Your argument with respect has one flaw it is based on a misconception. As I have pointed out in a previous post there is a form of action called a Group Litigation. While this current litigation does not come under those provisions it does show that you can have a test case. Even without the Group Litigation provision the overridding objective is drawn widely enough to permit the staying of an action where another case may determine the point in issue. I am aware of a number of occassons where cases have been stayed to permit the matter to be resolved in an ongoing matter. The only difference here is that the case that is being used was commenced after the litigation it is attempting to resolve. It cannot however be said that for that reason it is unreasonable or improper. Also with respect if the Judge does stay an claim unless you successfully appeal the decision you have to abide by the order.As I am not the Pope or legally qualified I may be wrong so feel free to get a second opinion from a qualified person0
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Firstly the court already knows what the law is, therefore, what is the so called “test case” going to find other than the actual cost to the banks for the breach, which many people say amounts to pennies and not pounds.The banks have had ample opportunity to defend the action, ask yourself why they have not done so. Secondly if someone is going to wager my law then i want to see the pleadings and if they fit the facts of my action then i might agree to a stay, and i would insist on this before relinquishing my right to proceed with my action.Any posts by myself are my opinion ONLY. They should never be taken as correct or factual without confirmation from a legal professional. All information is given without prejudice or liability.0
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This is a very interesting post that you have posted.
I am in the court system and have a date set for 05/09/2007. I have received a letter from Barclays today advising me that they are going to apply for a stay.
Could you help me and many other by putting together a template letter and PM me with a copy and post it on the site.
As you are aware this would be a great help to not just me but many others.
Yours Hopefully0 -
Firstly the court already knows what the law is, therefore, what is the so called “test case” going to find other than the actual cost to the banks for the breach, which many people say amounts to pennies and not pounds.The banks have had ample opportunity to defend the action, ask yourself why they have not done so. Secondly if someone is going to wager my law then i want to see the pleadings and if they fit the facts of my action then i might agree to a stay, and i would insist on this before relinquishing my right to proceed with my action.
While both me and you may agree on what we believe the law in area is there has been two first instance decisions one went one way the other went the opposite way so the law is not clear cut. Accordingly clarity is needed. I agree that the banks motives in this matter are suspect that does not avoid the point that an attempt is being made to clarify the law in this area. If the Judge stays your case you cannot proceed any furhter until the stay is lifted. It is worth noting that the court management powers in CPR Part 3 are sufficiently wide that this method of dealing with bank charges litigation is within those powers. Personally if I was going to oppose a stay I would rely on the overriding objective and the fact that the same effect as the banks are after in the OFT case can be reached by listing matters for trial.As I am not the Pope or legally qualified I may be wrong so feel free to get a second opinion from a qualified person0
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