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  • Arrow Global vs Frost 2013

    Arrow Global vs Frost 2013

    Apologies if this is already on here, I couldn't see it.

    Sadly a loss, but some important points raised
    Attached Files

  • #2
    Re: Arrow Global vs Frost 2013

    Originally posted by gravytrain View Post
    Arrow Global vs Frost 2013

    Apologies if this is already on here, I couldn't see it.

    Sadly a loss, but some important points raised

    Discuss

    Dare I say you're good at that

    I'm afraid I have a lot to say on the subject.
    I don't give advice, I share wisdom. Whenever the chips are down there's always a Plan B

    I'm a fully qualified mother which is the hardest exam I've ever sat. I have other more formal qualifications which are less important

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    • #3
      Re: Arrow Global vs Frost 2013

      Up to now, ive only just read up to point 9. and I must say, both Frosts, did not help themselves. The judge had already formed an opinion of them, which was negative, I wonder if that would also effect the final decision.
      I'm an official AAD Moderator and also a volunteer, here to help make the forum run smoothly. Any views or opinions are mine and not the official line of AAD. Similarly, any advice I have offered you is done so on an informal basis, without prejudice or liability. If in doubt seek advice from a qualified insured professional - Find a Solicitor or go to the National Probono Centre.

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      • #4
        Re: Arrow Global vs Frost 2013

        after further reading, it seems to me they tried to rely heavily on not signing an agreement, which failed as MBNA managed to prove it must have been.

        The judge had already made up his mind about them not being credible witnesses, so it stands to reason that, on balance, he was not going to side with them.

        They were their own downfall in my opinion.
        I'm an official AAD Moderator and also a volunteer, here to help make the forum run smoothly. Any views or opinions are mine and not the official line of AAD. Similarly, any advice I have offered you is done so on an informal basis, without prejudice or liability. If in doubt seek advice from a qualified insured professional - Find a Solicitor or go to the National Probono Centre.

        If you spot an abusive or libellous post then please report it by Clicking Here. If you need to contact me, for instance if I've issued you a warning, moved, edited or deleted your post, please send me a message by clicking my username.

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        • #5
          Re: Arrow Global vs Frost 2013

          Agreed that the defendants did not help themselves , but the points the court made were all supported by cases and authority. firstly the one which we have all been waiting to come up .
          That the agreement can be enforced without actually being present. This was mentioned in Carey and I think I pointed it out at the time, the judge mentioned the excerpt in the judgement, in that the act only says "was signed", if the court decides this would have happened on the balance of probability then an enforcement order can be issued and section 127(3) has no effect to barr it.
          Secondly another point which i made over on the Brandon thread here at the time, which was that the appeal did not say that a DN which was not compliant could not be be considered as de minimiss by a court, the Brandon appeal only said that it had to be considered , as it was here, then it was judged to be of no importance..

          As I think is the main thrust on here, best keeping out of court all together in my opinion. If you do have to, then I think that a lesson must be learned form this, technical defenses are always going to be problematic, If you are going to base a defense soley on the act then you have to have belt and braces, success stories always have a large element of prejudice attached to them, lender not shown an interest rate or not given other required information to the customer detriment. or being harassed by creditors, These are the ones that seem to be successful, especially in running credit accounts.accounts. Different to a degree on fixed sum agreements, there is room for technical defenses because most of the errors can shown with a calculator and the PTs have to be stated as a figure which can be verified with a knowledge of the TCC regulations.
          Last edited by gravytrain; 6th May 2014, 23:51.

          Comment


          • #6
            Re: Arrow Global vs Frost 2013

            Originally posted by gravytrain View Post
            firstly the one which we have all been waiting to come up .
            That the agreement can be enforced without actually being present. This was mentioned in Carey and I think I pointed it out at the time, the judge mentioned the excerpt in the judgement, in that the act only says "was signed", if the court decides this would have happened on the balance of probability then an enforcement order can be issued and section 127(3) has no effect to barr it.
            Maybe you have but some of us haven't http://www.bailii.org/ew/cases/Misc/2012/19.html

            Secondly another point which i made over on the Brandon thread here at the time, which was that the appeal did not say that a DN which was not compliant could not be be considered as de minimiss by a court, the Brandon appeal only said that it had to be considered , as it was here, then it was judged to be of no importance..
            Not all judges reach the same conclusion.

            http://www.bailii.org/ew/cases/Misc/2011/23.html

            M1

            Comment


            • #7
              Re: Arrow Global vs Frost 2013

              Remember Wegmuller is an AAD success story

              However that said, I'm not overly impressed at Recorder Monty at all - to be frank he's went through the judgment pretty much dismissing Goode, DDJ Bradley, the CoA (Brandon) and others. Who the bloody hell does he think he is.....!!

              Ok so the defendant was rather dubious but he spurts some crap about "fact" but when it really comes down to reputation are we so sure MBNA is so squeaky clean? I think not and I think this Judge was wrong on so many levels that I really cannot be arsed listing them all.

              Credible or not, the solicitor (lit mgr) was NOT present at the time half of this went on so how he can be classed as credible fails to amaze me, and as for the DN being posted at 5.05pm upwards, well that's also crap as anyone who works in large organisations know, mail generally gets collected at cut off points and in all my years the last pick up is generally around 3-5pm. There is never any rush to catch the last post collection, if it misses it goes the next day - simple.

              And that's me, someone familiar with MBNA systems and processes, questioning the judgment.

              However, the defendants themselves seemed to have lost this before the argument really started. Taking out large sums prior to appointing a CMC didn't help either.

              I'm surprised that QS Howlett Clarke took this on in the first place as it was always risky, based on defendant submissions and account history.
              I'm the forum administrator and I look after the theme & features, our volunteers & users and also look after any complaints or Data Protection queries that pass through the forum or main website. I am extremely busy so if you do contact me or need a reply to a forum post then use the email or PM features offered because I do miss things and get tied up for days at a time!

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              • #8
                Re: Arrow Global vs Frost 2013

                Originally posted by mystery1 View Post
                Maybe you have but some of us haven't http://www.bailii.org/ew/cases/Misc/2012/19.html



                Not all judges reach the same conclusion.

                http://www.bailii.org/ew/cases/Misc/2011/23.html

                M1

                Not sure what you mean here. The cases you indicate reach exactly the same conclusion, the balance of probabilities must be considered and not just the absence of the agreement and that the de minimis issue does not automatically apply, It agrees completely with what I have said .

                Perhaps you should read it again.

                Comment


                • #9
                  Re: Arrow Global vs Frost 2013

                  Originally posted by Never-In-Doubt View Post
                  Remember Wegmuller is an AAD success story

                  However that said, I'm not overly impressed at Recorder Monty at all - to be frank he's went through the judgment pretty much dismissing Goode, DDJ Bradley, the CoA (Brandon) and others. Who the bloody hell does he think he is.....!!

                  Ok so the defendant was rather dubious but he spurts some crap about "fact" but when it really comes down to reputation are we so sure MBNA is so squeaky clean? I think not and I think this Judge was wrong on so many levels that I really cannot be arsed listing them all.

                  Credible or not, the solicitor (lit mgr) was NOT present at the time half of this went on so how he can be classed as credible fails to amaze me, and as for the DN being posted at 5.05pm upwards, well that's also crap as anyone who works in large organisations know, mail generally gets collected at cut off points and in all my years the last pick up is generally around 3-5pm. There is never any rush to catch the last post collection, if it misses it goes the next day - simple.

                  And that's me, someone familiar with MBNA systems and processes, questioning the judgment.

                  However, the defendants themselves seemed to have lost this before the argument really started. Taking out large sums prior to appointing a CMC didn't help either.

                  I'm surprised that QS Howlett Clarke took this on in the first place as it was always risky, based on defendant submissions and account history.

                  Yes the point I am trying to make is that , obviously the team thought that the technical issues regarding the agreement would be enough to win the day, even to the extent of taking the mick (to an extent).

                  The point is that if a defense is going to be based on a none prejudicial purely technical deference it has to be a good one, (this one was not really good enough, it was a bad call)

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                  • #10
                    Re: Arrow Global vs Frost 2013

                    Originally posted by gravytrain View Post
                    Yes the point I am trying to make is that , obviously the team thought that the technical issues regarding the agreement would be enough to win the day, even to the extent of taking the mick (to an extent).

                    The point is that if a defense is going to be based on a none prejudicial purely technical deference it has to be a good one, (this one was not really good enough, it was a bad call)
                    On this assumption & context I'm inclined to agree. It wasn't the wisest case to take to trial and as you correctly state, the balance of probability was never really going to fall in their favour.

                    Wegmuller, for instance was a credible witness who had vivid recollection of events.
                    I'm the forum administrator and I look after the theme & features, our volunteers & users and also look after any complaints or Data Protection queries that pass through the forum or main website. I am extremely busy so if you do contact me or need a reply to a forum post then use the email or PM features offered because I do miss things and get tied up for days at a time!

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                    • #11
                      Re: Arrow Global vs Frost 2013

                      Originally posted by gravytrain View Post
                      ......the balance of probabilities must be considered and not just the absence of the agreement and that the de minimis issue does not automatically apply.
                      Yes, quite right. However as we seen in Frost judges seem to dismiss other cases referred to so even though the two cases kind of reverse the Frost decision, one has to remember the cases were entirely different in both form & context so the judgments could vary from judge to judge.
                      I'm the forum administrator and I look after the theme & features, our volunteers & users and also look after any complaints or Data Protection queries that pass through the forum or main website. I am extremely busy so if you do contact me or need a reply to a forum post then use the email or PM features offered because I do miss things and get tied up for days at a time!

                      If you spot any spammers, AE's, abusive or libellous posts or anything else that just doesn't feel right then please report them to me as soon as you spot them at: webmaster@all-about-debt.co.uk

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                      • #12
                        Re: Arrow Global vs Frost 2013

                        Originally posted by Never-In-Doubt View Post
                        Yes, quite right. However as we seen in Frost judges seem to dismiss other cases referred to so even though the two cases kind of reverse the Frost decision, one has to remember the cases were entirely different in both form & context so the judgments could vary from judge to judge.
                        The ;point is that the issue has to be considered, there is no such thing (it seems) as automatic unenforceable on a defect of this kind, all the cases on this thread agree to this, and this is my point.

                        It may well be that the argument succeeds but then it has it has been supported by other issues, the good witness statements or the record keeping habits in Harrison and the harassment issue, it is the prejudicial elements that swung the decision in the end.

                        This aspect may be important to consider in Jaxx thread, although I am sure that Mr Watson will have it covered.

                        Comment


                        • #13
                          Re: Arrow Global vs Frost 2013

                          Yep agreed. That's a very valid point. Thanks mate

                          I'm not so sure that Andrew is dealing with Jaxx..... It's today/tomorrow. Sadly not leaving much time.....

                          Like I say I'm unsure. What andrew does is his call
                          I'm the forum administrator and I look after the theme & features, our volunteers & users and also look after any complaints or Data Protection queries that pass through the forum or main website. I am extremely busy so if you do contact me or need a reply to a forum post then use the email or PM features offered because I do miss things and get tied up for days at a time!

                          If you spot any spammers, AE's, abusive or libellous posts or anything else that just doesn't feel right then please report them to me as soon as you spot them at: webmaster@all-about-debt.co.uk

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                          • #14
                            Re: Arrow Global vs Frost 2013

                            Trouble with an " I think" Judge- to say the least! = " I May Be Wrong" = brings judgement into disrepute?
                            I'm an official AAD Moderator and also a volunteer, here to help make the forum run smoothly. Any views or opinions are mine and not the official line of AAD. Similarly, any advice I have offered you is done so on an informal basis, without prejudice or liability. If in doubt seek advice from a qualified insured professional - Find a Solicitor or go to the National Probono Centre.

                            If you spot an abusive or libellous post then please report it by Clicking Here. If you need to contact me, for instance if I've issued you a warning, moved, edited or deleted your post, please send me a message by clicking my username.

                            Comment


                            • #15
                              Re: Arrow Global vs Frost 2013

                              Yes there were a couple of incorrect point IMO, one was the contractual termination of the account, this should not be used to terminate an agreement once a default notice has been issued, it is for none default termination only..

                              However if he accepts that the DN and subsequent termination is only a de min problem then it is not really relevant anyway.

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