Defence for those having their action stayed

Stokey125

Deary your argument that the imposition of a stay contravenes the European Convention of Human Rights is one which I must say I find has some merit in it. The relevant provision Art.6 does require a speedy determination. The question is whether to delay matters until February next year at the earliest would as of itself amount to a breach of the convention. On this point I am not absoluteley sure I tend to think that it owuld depend on how long it will take to come to trial after the test case is concluded including any appeals. It is possible to craft an argument around a breach of article 6 I will give it some thought and post them here once I have worked out an argument.

deary65

My contention is as follows: can a decision made on a mere statutory instrument having the force of law only( not vested ie witnessed, and therefore cannot “bind”), overrule an act of parliament( which is vested “binding”). Remember, it is a defense to the stay that we are looking for and not what will be heard in court. In other words a statutory instrument dwells out side the body.

Stokey125

deary65 wrote: »

My contention is as follows: can a decision made on a mere statutory instrument having the force of law only( not vested ie witnessed, and therefore cannot “bind”), overrule an act of parliament( which is vested “binding”). Remember, it is a defense to the stay that we are looking for and not what will be heard in court. In other words a statutory instrument dwells out side the body.

I would be forced by legal principle to answer your question in the negative as an Act of Parliament is supreme and save in one clearly defined circumstance cannot be overruled. However in any event my argument on Article 6 does go only to the question of a stay as the provision has no application to the substantive matter and is procedural only.


While it is quite correct to argue that a stay is in breach of my human right to a speedy determination this will only promplt the question why. Therefore if you are going to argue that thje imposition of a stay is in breach of your right to a speedy determination you need to be able to explain why in a way that the judge will understand and listen to. I should have constructed such an argument in about two hours.

Stokey125

If in response to a stay being applied for or in the event of one being granted you are applying for it to be set aside and want to rely on the ECHR. A possible argument is as follows.


As the court is a public authority for the purposes of s.6 of the Human Rights Act 1998 in granting a stay of these proceedings it has to be asked whether in granting a stay a breach of Article 6 of and Schedule 1 of the Human Rights Act will occur. If the answer is yes then as under s.6 of the Human Rights Act 1998 the court cannot act in a way incompatible with any of the rights in Schedule 1 a stay cannot be imposed. In answering the question of whether the grant of a stay will breach Article 6 then the total length of the proceedings including any possible appeal will have to be considered to see if there has been a speedy determination for the purposes of Article 6. In this regard the stage that the proceedings have reached prior to the imposition of the stay would have to be considered. Also the likely length of the stay. As the test case will not be heard until Hilary term and assuming that there is a reserved judgment a final decision at first instance may not be available until Easter Term. If there is an appeal unless it is expedited no appeal will be heard until possibly Michaelmas giving a delay of 12 months. In addition further directions for the disposla of these matters will have to be given. It is submitted that taking all these factors into account to impose a stay inthese circumstances would amount to a breach of Article 6 and a stay should not be imposed for this and the other reasons given.

deary65

Good post, i do not have time to reply on its merits just now as it's tea time and drinky time. However I'm still of the opinion that a statutory instrument has not the authority to disturb the sanctity of a valid contract. The case seems to be more about setting a fair consideration for banking services, about which i shall post latter.



P.S people seem to have stopped posting i hope we are not going over their heads.

bigbadbri

I've recently sent a letter requesting my stay be set aside (to blackpool court) on the grounds of hardship, here's the response i got;

"I refer to your letter of 15 August 2007, requesting that the stay in the above case be lifted. I would advise that this request must be made by way of a formal application on notice (i.e. the other side must be notified and the matter listed for a hearing)"

"I enclose the relevant form to enable you to make such application, and would advise that the fee for this application is £65.00."

To me that is the stumbling block, i'm claiming for hardship and now the court wants to take money from me I cannot see how I can continue. If i believed there was a good chance the stay would be lifted I would beg steal and borrow to pay this. But having not yet seen anyone else have their stay lifted and i don't feel encouraged by the courts response i just don't know what to do, plus i've passed my seven days since the stay was granted.

I'd really appreciate some advice on this or i'd love to hear from someone in a similar position and what they've decided?

Thanks

Stokey125

bigbadbri wrote: »

I've recently sent a letter requesting my stay be set aside (to blackpool court) on the grounds of hardship, here's the response i got;

"I refer to your letter of 15 August 2007, requesting that the stay in the above case be lifted. I would advise that this request must be made by way of a formal application on notice (i.e. the other side must be notified and the matter listed for a hearing)"

"I enclose the relevant form to enable you to make such application, and would advise that the fee for this application is £65.00."

To me that is the stumbling block, i'm claiming for hardship and now the court wants to take money from me I cannot see how I can continue. If i believed there was a good chance the stay would be lifted I would beg steal and borrow to pay this. But having not yet seen anyone else have their stay lifted and i don't feel encouraged by the courts response i just don't know what to do, plus i've passed my seven days since the stay was granted.

I'd really appreciate some advice on this or i'd love to hear from someone in a similar position and what they've decided?

Thanks

Have you checked if you are eligible for fee remission or exemption. Anyone on benefits is entitled to fee exemption. I cannot recall what the rules for fee remission are.

bigbadbri

I don't think i'll come under that, i'm not on benefits and in full time employment.

Balletshoes1

bigbadbri wrote: »

I've recently sent a letter requesting my stay be set aside (to blackpool court) on the grounds of hardship, here's the response i got;

"I refer to your letter of 15 August 2007, requesting that the stay in the above case be lifted. I would advise that this request must be made by way of a formal application on notice (i.e. the other side must be notified and the matter listed for a hearing)"

"I enclose the relevant form to enable you to make such application, and would advise that the fee for this application is £65.00."

To me that is the stumbling block, i'm claiming for hardship and now the court wants to take money from me I cannot see how I can continue. If i believed there was a good chance the stay would be lifted I would beg steal and borrow to pay this. But having not yet seen anyone else have their stay lifted and i don't feel encouraged by the courts response i just don't know what to do, plus i've passed my seven days since the stay was granted.

I'd really appreciate some advice on this or i'd love to hear from someone in a similar position and what they've decided?

Thanks

I made an application to have the stay set aside at Harlow County Court, I enquired whether there was a fee and they advised there was no fee, I completed the form with my objections attached, I'm waiting to hear the outcome, I will keep you informed.

Balletshoes1

suelongman wrote: »

my case was with portsmouth combined court today and it was stayed

The following court has said ALL cases will be stayed whilst the outcome of the test case is decided:
Harlow County Court