Arrow Global vs Frost 2013

[Never-In-Doubt]

Re: Arrow Global vs Frost 2013

So commit contempt of court by making a false declaration

[SXGuy]

Re: Arrow Global vs Frost 2013

Basically, in my opinion, and I could of course be wrong.

Frost would have had better luck saying, I remember signing an application but I don't recall there ever being any prescribed terms.

That would have put the burden of proof to the claimant to show there was, since neither of them could because neither no longer had a copy of the signed application carrying the prescribed terms.

There would have to be on balance proof that section 60,61 was aheard to.

The date of application would still be neither here nor there since it was discovered pretty clearly Frost was wrong.

But MBNA's system of record keeping, wouldn't have put a stop to not complying with all of the act.

EDIT: Also if I recall this was an agreement from 1998, I do believe there are a few applications from that time which made reference to sections that did not appear in any terms and conditions. My mother has one in fact from 97.

[mystery1]

Re: Arrow Global vs Frost 2013

I am satisfied on the balance of probabilities that the requisite prescribed terms and conditions were not contained in, on or together with the document that was signed by the defendant, and therefore I conclude that this is a credit agreement that cannot be enforced.

Seems to me that Wilson and BOP need to work together.

M1

[gravytrain]

Re: Arrow Global vs Frost 2013

Why ? It's balance of probability not absolute certainty.

There is an appeal court for mistakes although the poor find that route hard to access.

It should also be remembered Wilson, Dimond etc etc have not been overturned and are still binding.

M1

Wilson was a prescribed term violation which was a simple calculation, not really subject to balance of probability arguments.

The act itself leaves tiself open to BOP argument in section 127(3) this was discussed in beyons blog after the house of lords ruling on Wilson.

He could have put that the agreement can only enforced on production of a signed agreement, this was a conscious decision, if he had, there would be no argument, none production none enforcement.
However the wording was deliberate, although the relevance of prejudice falls mainly under section 127(1) it still leaves a degree of leeway for the court to decide if an agreement was signed, in the event of a fire at the creditors premises(for instance) and the unavoidable inability to produce.

[The Tech Clerk]

Re: Arrow Global vs Frost 2013

As a High Court Judge (stated to the jury) in a case I was hearing albeit a retrial which we were unaware of but had wondered at the time, the balance of probabilities I up to the members of the jury to decide an not my direction

[mystery1]

Re: Arrow Global vs Frost 2013

Trouble with an " I think" Judge- to say the least! = " I May Be Wrong" = brings judgement into disrepute?

Why ? It's balance of probability not absolute certainty.

There is an appeal court for mistakes although the poor find that route hard to access.

It should also be remembered Wilson, Dimond etc etc have not been overturned and are still binding.

M1

[gravytrain]

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.

[The Tech Clerk]

Re: Arrow Global vs Frost 2013

Trouble with an " I think" Judge- to say the least! = " I May Be Wrong" = brings judgement into disrepute?

[Never-In-Doubt]

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

[gravytrain]

Re: Arrow Global vs Frost 2013

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.

[Never-In-Doubt]

Re: Arrow Global vs Frost 2013

......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.

[Never-In-Doubt]

Re: Arrow Global vs Frost 2013

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.

[gravytrain]

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.

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)

[gravytrain]

Re: Arrow Global vs Frost 2013

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.

[Never-In-Doubt]

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.