Arrow Global vs Frost 2013

[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

[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

[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.

[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

[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.

[Never-In-Doubt]

Re: Arrow Global vs Frost 2013

So commit contempt of court by making a false declaration

[gravytrain]

Re: Arrow Global vs Frost 2013

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

M1

No not really, the balance of probability only comes into it because there is doubt that an agreement "was signed.".
If there is a prescribed term problem on the agrement, there is no probability, it is either there and correct or not, 2 an 2 equal 4 it does not probably equal 4, If the agreement says it equal 3 then section 127(3) says absolutely that the agreement cannot be enforced, there is no get out of jail card like there is with a signature. requirement.

[mystery1]

Re: Arrow Global vs Frost 2013

No not really, the balance of probability only comes into it because there is doubt that an agreement "was signed.".
If there is a prescribed term problem on the agrement, there is no probability, it is either there and correct or not, 2 an 2 equal 4 it does not probably equal 4, If the agreement says it equal 3 then section 127(3) says absolutely that the agreement cannot be enforced, there is no get out of jail card like there is with a signature. requirement.

It depends on the evidence supplied at trial.

Conclusive proof is still balance of probability just that it's nearer 100% than the 50.1% required.

M1

[gravytrain]

Re: Arrow Global vs Frost 2013

It depends on the evidence supplied at trial.

Conclusive proof is still balance of probability just that it's nearer 100% than the 50.1% required.

M1

Not sure how much clearer I can make this.
In Wilson there was an inclusion it in the total credit of part of the charge, this is not allowed under section 9 of the act.it is mathematically wrong

If it is not on the agreement it is none compliant, there is no probably about it.

[mystery1]

Re: Arrow Global vs Frost 2013

It still had to be proven, had it not been proven the court would have had no basis to accept it in to evidence.

M1

[gravytrain]

Re: Arrow Global vs Frost 2013

It still had to be proven, had it not been proven the court would have had no basis to accept it in to evidence.

M1

Well it has to be shown, the probability test is only appropriate if there is doubt. There was none in Wilson, the issue there,and the one which was appealed all the way to the lords, was one of the rights of the creditor under human rights legislation, and if the section should be there at all.

In the end it was decided that there was no violation of EHR as the assets were always the property of the creditor,(he maintained peacful posession) he just could not enforce the agreement to reclaim them

[mystery1]

Re: Arrow Global vs Frost 2013

Well it has to be shown, the probability test is only appropriate if there is doubt. There was none in Wilson, the issue there,and the one which was appealed all the way to the lords, was one of the rights of the creditor under human rights legislation, and if the section should be there at all.

In the end it was decided that there was no violation of EHR as the assets were always the property of the creditor,(he maintained peacful posession) he just could not enforce the agreement to reclaim them

The only evidence which is not subject to balance of probability is where the parties agree and hence the court doesn't need to decide. Even something which a normal person would say is fact has to be decided on the balance of probability if the parties have different views.

In Wilson, She lost at trial and won on appeal.

M1

[gravytrain]

Re: Arrow Global vs Frost 2013

The only evidence which is not subject to balance of probability is where the parties agree and hence the court doesn't need to decide. Even something which a normal person would say is fact has to be decided on the balance of probability if the parties have different views.

In Wilson, She lost at trial and won on appeal.

M1

Why would there be a probability test applied to a fact ?

You are confusing the well known axiom regarding the levels of proof in civl and criminal cases and taking it out of context, a fact will always be a fact, the proof test whatever it is need only be applied if there is doubt. In criminal law it is reasonable doubt, in civil it is the balance of probabilities.

To illustrate, . If a fixed sum misstates the credit figure, and the creditor says it does not(he disagrees).
The court will make its decision on what it says on the agreement and the regs, there will be no need for a balance of probability consideration, nor is there any agreement between the parties. |understand the difference ?

[gravytrain]

Re: Arrow Global vs Frost 2013

The only evidence which is not subject to balance of probability is where the parties agree and hence the court doesn't need to decide. Even something which a normal person would say is fact has to be decided on the balance of probability if the parties have different views.

In Wilson, She lost at trial and won on appeal.

M1

Oh and there were 4 appeals in all in Wilson vs first trust

[mystery1]

Re: Arrow Global vs Frost 2013

So the debtor must have raised the point. This means 2 sides are arguing over a "fact" ergo it is not a fact. The judge then decides who is right. The balance of probability is that the debtor is right because the evidence strongly suggests so.

M1