Arrow Global v Frost - Bristol County Court - October 2013

[Riz]

Judgement attached.

Arrow_Global_v_Frost.pdf

[Never-In-Doubt]

Re: Arrow Global v Frost - Bristol County Court - October 2013

Layman

The judge was drunk

[mystery1]

Re: Arrow Global v Frost - Bristol County Court - October 2013

Clearly the judge was anti debtor and the defendant was not of Wegmuller standard.

I maintain my position, even though the judgement was later than i thought, that in light of the changes to cpr and the appeal court decisions in Mitchell, Durrant etc that if the same case proceeding in the same way with the same facts was started now that it wouldn't have lost.

The position taken of default notices is rank rotten. Most of the other stuff whilst anti debtor is a decision that she could make on the face of it.

M1

[SaltnVinegar]

Re: Arrow Global v Frost - Bristol County Court - October 2013

Having a quick scan through the judgement I think its clear that the judge had taken a dislike to the defendant. Theres a couple of things that stand out to me that may have led the Judge to coming to this opinion:

1) The defendant had used a CMC and this was referred to at many times throughout the judgement.

It would appear that the Judges position was that using the services of a CMC firmly placed the defendant into 'debt dodger' territory. This is an interesting thought as it adds further weight to any argument of not using such companies if an adverse legal position could be the result.

2) The defendant loaded up the cards in the last couple of weeks before defaulting in what appeared a deliberate attempt to max them about before stopping payments as the CMC had told them the agreement was UE.

Whatever the reasons for this (legitimate or not), my personal view is that this unfortunately, just added weight to the 'debt dodger' characterization and did nothing to enhance the credibility of the defendant. (And in my own personal view only demonstrates another reason not to use CMC's). The defendant couldn't provide any reasonable explanation as to why £5750 was spent on the card in two weeks. The Judge made a point of saying that this behaviour was 'notable' and 'relevant to take into account'.

3) Mr Frost stated that he couldn't agree with his wifes evidence as he hadn't been listening to it......

Seriously?! You're in court, giving evidence, and you effectively state to a Judge that you weren't paying attention to something that is critical to the defense that you're submitting?! Ask yourself what impression that this gives about you as an individual if you cannot have the presence of mind to listen to your own defense......

In the judgement it is stated that the Judge did not find the defendants credible or consider them reliable witnesses. Obviously its difficult to assess just from reading a transcript but although the technical arguments could have gone in their favour I think what this judgement shows is the importance of your own conduct leading up to and in court.

If the transcript is a fair reflection of events and their conduct then I don't think the defendants in this case helped themselves. The defendants relied upon some key cases (e.g. Harrison v Link) in their defense but in all the cases quoted where judgement found in favour of the debtor the debtors concerned were found as being reliable and credible witnesses when compared to the creditors which I consider to be significant.

I think what this shows is you have to conduct yourself credibly and reasonably through the whole process and build up plenty of evidence to show that its the creditor that has been unreasonable (which most will if you give them enough rope!). I think what Restons have done here is successfully painted themselves as more credible than the defendant which then made it difficult for them to assert that an agreement was ever entered into.

Theres plenty to learn from this judgement if challenging enforceability as for me it shows theres more to it than just technical arguments. I don't think this judgement should hold any fear for all those diaries I have read on AAD as every single one has made efforts to make payments or be reasonable and it was the creditors own conduct that lead to fighting back and using UE to do so.

[vint1954]

Re: Arrow Global v Frost - Bristol County Court - October 2013

Just so S&V

The DN argument is always weak where it is just a dispute over the date of service. There needs to be a concrete error in the DN

[mystery1]

Re: Arrow Global v Frost - Bristol County Court - October 2013

Just so S&V

The DN argument is always weak where it is just a dispute over the date of service. There needs to be a concrete error in the DN

http://www.legislation.gov.uk/ukpga/1974/39/section/88

88 Contents and effect of default notice.


(1)The default notice must be in the prescribed form and specify—
(a)the nature of the alleged breach;
(b)if the breach is capable of remedy, what action is required to remedy it and the date before which that action is to be taken;
(c)if the breach is not capable of remedy, the sum (if any) required to be paid as compensation for the breach, and the date before which it is to be paid.
(2)A date specified under subsection (1) must not be less than [F114] days after the date of service of the default notice, and the creditor or owner shall not take action such as is mentioned in section 87(1) before the date so specified or (if no requirement is made under subsection (1)) before those [F114] days have elapsed.
(3)The default notice must not treat as a breach failure to comply with a provision of the agreement which becomes operative only on breach of some other provision, but if the breach of that other provision is not duly remedied or compensation demanded under subsection (1) is not duly paid, or (where no requirement is made under subsection (1)) if the [F114] days mentioned in subsection (2) have elapsed, the creditor or owner may treat the failure as a breach and section 87(1) shall not apply to it.
(4)The default notice must contain information in the prescribed terms about the consequences of failure to comply with it [F2and any other prescribed matters relating to the agreement].
[F3(4A)The default notice must also include a copy of the current default information sheet under section 86A.]
(5)A default notice making a requirement under subsection (1) may include a provision for the taking of action such as is mentioned in section 87(1) at any time after the restriction imposed by subsection (2) will cease, together with a statement that the provision will be ineffective if the breach is duly remedied or the compensation duly paid.




The language used by the legislators is clear. It doesn't say shall which can be treated as mandatory or permissive it says must.

The argument on dates is different if it's not royal mail that is used as it is less clear what timescale should used. Evidence from the carrier is then crucial to the case. Royal mail is clear with the Bickford-Smith practice direction.

M1