Legal brains expert advice please!

Phamous

*apparently*

Gosh I'm getting so overwrought I am forgetting how to spell!

LOL

dmg24

I appreciate that you want to make the most of the opportunity that the judge has given you, and I am impressed that the judge has granted you a hearing. However, in the absence of extenuating circumstances, I can't see what argument you have.

It will be interesting to learn how you get on, and even if the stay is not lifted, to hear the comments of the judge.

Phamous

Thanks dmg - I really do want to use the opportunity - I did ask for it after all. I have found a few bits and pieces on the forums and will do my best tomorrow.

These include:
1. The Human Rights Act 1998 (Article 6)
"Everyone is entitled to a fair and public hearing within a reasonable time"

I have so far waited 13 months and the test case - with appeals - could last years. This is not a resonable time.

2. The test case is only dealing with whether the UTCCR applies to charges and NOT whether they are fair or not - so a trial is still needed to determine if they are fair or not. So the current test case will not determine any relevent outcome to my case.

3. Bank Conduct. If the conduct of banks in previous claims is taken into account - they have never defended a claim, using the court process only to delay matters, settling on the court steps. In my case, Barclays told me the WOULD settle before court. So is the application by my bank for a stay a genuine attempt to find a fair resolution or a further delaying tactic?

4. The Overriding Objective - if this is applied, and the relative resources of the parties taken into account, who would suffer the greatest loss if the case is further stayed?

What do you think? I am by no means a legal expert but I think I have learned a little on these forums over the past year and I hope my arguments hold enough water for he judge to see them as credible...

Will come back tomorrow and let you know how I got on.

Tozer

Phamous wrote: »

*apparently*

Gosh I'm getting so overwrought I am forgetting how to spell!

LOL

look - appreciate your position and the fact that you need to feel that things are still moving.

Key advice - go with the Judge. Don't argue with him and (goes without saying) be courteous and respectful. Strongly suspect it will be a 3-5 minute hearing only.

Keep your cool and expect a stay. frankly the judge hasn't really got anywhere to go unless he wants to break with protocol.

By the way the above isn't supposed to sound patronising and apologies if it does. You need to keep the judge on side!

Tozer

Phamous wrote: »

Thanks dmg - I really do want to use the opportunity - I did ask for it after all. I have found a few bits and pieces on the forums and will do my best tomorrow.

These include:
1. The Human Rights Act 1998 (Article 6)
"Everyone is entitled to a fair and public hearing within a reasonable time"

I have so far waited 13 months and the test case - with appeals - could last years. This is not a resonable time.

Don't run this one. It won't work and it WILL rile the judge. He could point out that since the Woolf Reforms, civil justice is blisteringly quick compared to what it was and other systems.

2. The test case is only dealing with whether the UTCCR applies to charges and NOT whether they are fair or not - so a trial is still needed to determine if they are fair or not. So the current test case will not determine any relevent outcome to my case.

I suspect this will be lost on him. He will be minded to award a stay anyway and so won't want the arguments to be heard.

3. Bank Conduct. If the conduct of banks in previous claims is taken into account - they have never defended a claim, using the court process only to delay matters, settling on the court steps. In my case, Barclays told me the WOULD settle before court. So is the application by my bank for a stay a genuine attempt to find a fair resolution or a further delaying tactic?

Possibly a fair point that the bank said they would settle. BUT they probably said it without prejudice (and even if they didn't negotiations can be held to be without prejudice anyway).

4. The Overriding Objective - if this is applied, and the relative resources of the parties taken into account, who would suffer the greatest loss if the case is further stayed?

Overiding Objective is about avoiding litigation. Not quite sure how it can be applied to lifting a stay (which by definition could be an opportunity to settle the case)

What do you think? I am by no means a legal expert but I think I have learned a little on these forums over the past year and I hope my arguments hold enough water for he judge to see them as credible...

Will come back tomorrow and let you know how I got on.

PLEASE DON'T USE HUMAN RIGHTS ACT!! Sorry to shout but it gets judges backs up when it is used for things which is not intended to.

Comments embedded....

Phamous

Hey Tozer,

Well thank God you said that as it would have been my opening! LOL. Really I know very little about the legal system and am learning as fast as I can. OK won't mention the Human Rights Act!

And yes, I will of course be humble, respectful and courteous.

Are there really NO other cases being heard?

dmg24

Playing devils advocate ...

Phamous wrote: »

Thanks dmg - I really do want to use the opportunity - I did ask for it after all. I have found a few bits and pieces on the forums and will do my best tomorrow.

These include:
1. The Human Rights Act 1998 (Article 6)
"Everyone is entitled to a fair and public hearing within a reasonable time"

I have so far waited 13 months and the test case - with appeals - could last years. This is not a resonable time.

What is a reasonable time is subjective. Considering that some civil cases take years to come to a conclusion, thirteen months is not long.

TBH I wouldn't bring the HRA into it. If this argument was going to work, some big legal type would have picked up on it by now.

2. The test case is only dealing with whether the UTCCR applies to charges and NOT whether they are fair or not - so a trial is still needed to determine if they are fair or not. So the current test case will not determine any relevent outcome to my case.

The two are directly related. If the UTCCR does apply, then the question of fairness can be applied. Hence the need for this to be determined before claims can be heard.

3. Bank Conduct. If the conduct of banks in previous claims is taken into account - they have never defended a claim, using the court process only to delay matters, settling on the court steps. In my case, Barclays told me the WOULD settle before court. So is the application by my bank for a stay a genuine attempt to find a fair resolution or a further delaying tactic?

What has happened in previous cases is largely irrelevant. They are complying with the current investigation, and therefore it could be argued that they have now decided to actively defend or attempt to resolve the claims against them.

4. The Overriding Objective - if this is applied, and the relative resources of the parties taken into account, who would suffer the greatest loss if the case is further stayed?

As noted before, unless this is causing you particular hardship (you would need to prove this), the delay is doing neither of you any harm.

What do you think? I am by no means a legal expert but I think I have learned a little on these forums over the past year and I hope my arguments hold enough water for he judge to see them as credible...

Will come back tomorrow and let you know how I got on.

Honestly, I don't think your arguments hold any weight. On the assumption that this judge has granted hearings for all those who have requested the stay to be lifted, he will have heard these arguments before.

Again, I would be interested to hear feedback from the judge. Some are more sympathetic than others.

Edit: Cross posted with Tozer, but we do agree!

Phamous

Thanks for going through all that - much appreciated. (I did tell you I had no legal leanings! lol) Sounds like I will only make myself look silly if I go in with these arguments tomorrow.

maybe I should just say I accept that the stay will not be lifted..?!

I really am at a loss as to what I can say at all tomorrow!

Tozer

dmg24 wrote: »

Playing devils advocate ...



Honestly, I don't think your arguments hold any weight. On the assumption that this judge has granted hearings for all those who have requested the stay to be lifted, he will have heard these arguments before.

Again, I would be interested to hear feedback from the judge. Some are more sympathetic than others.

Edit: Cross posted with Tozer, but we do agree!

DMG - seem to have identical views! Assume you are either at the bar or a solicitor?

dmg24

The fact that the judge has granted you his time is a positive, I would just go (it would be impolite to cancel now) and appeal to their better nature, with a common sense argument (i.e. you just want to get it out of the way). I don't think it will get you very far, but it will come across much better than trying to apply vague legal arguments x