Arrow Global vs Frost 2013

[gravytrain]

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

[PlanB]

Re: 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

Discuss

Dare I say you're good at that

I'm afraid I have a lot to say on the subject.

[SXGuy]

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.

[SXGuy]

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.

[gravytrain]

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.

[mystery1]

Re: Arrow Global vs Frost 2013

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

[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.

[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.

[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)

[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.

[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.

[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

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

[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?

[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.