www.ruinedbynatwest.com
Senior UK Judges suspend the Rule of Law in leading Consumer Credit test case, suppressing material evidence to favour credit industry in everyday refinancing transactions where regulated agreements are "replaced" (Auld LJ) by unwritten agreement.
At least £300 Billions' (2004 CAB figure) across the UK are affected by a contraversial and shocking legal precedent that focuses attention on the attitude of senior Judges toward a major bank's policy of relying on unwritten moneylending agreements, and the role played by the Rule of Law in determining appropriate consumer protection policy where nothing is written by the bank in the situation where 3 regulated agreements (ie- statute protected) are "replaced" by verbal agreement in unprecedented legal proceedings that cost the Legal Aid Board around £1.5 millions' of Pounds.
Regretably, where the Courts are legally bound to uphold regulated agreements, Senior UK Judges, first at The High Court, and then on Appeal at the Royal Court of Appeal, Ruling that a "replacement" agreement is unprotected at law, have Refused to Disclose that 3 regulated agreements were "replaced" by the unwritten agreement in question, posing very serious questions indeed as to why Judges are permitted to Refuse to Disclose material evidence in the unprecedented legal situation where the bank's Consumer Credit Licence and Banking Licence require the bank to write any agreement that varies the terms of the regulated agreements their Lordships' Refuse to Disclose.
We are indebted to our colonial cousins at Yahoo! for upholding the right to free speech in the bloody aftermath of a hotly contraversial and topical consumer credit test case from 1999 that affects consumer credit refinancing transactions of an everyday nature across the UK to the tune of at least £300 Billions' GBP (2004 CAB figure).
"....to the individual consumer faced with problems of the kind envisaged by protection legislation, it is little solace to know that the other party is a bank".
Lord Crowther, (writing in 1971; "The Crowther Report on Consumer Credit" [Command 4596]), from which Report an enlightened Parliament enacted, without dissent,
The CONSUMER CREDIT ACT (1974)["The CCA"]
-
National Westminster Bank PLC- V- Story & Pallister
(Court of Appeal May 7 1999) [referred to as"Story" by the Courts]
The Replacement agreement is Unregulated
(NOTE: The above "existing credit agreements totalling £12000" are Regulated Agreements as defined by Section 8 CCA. That they are Regulated [protected by Primary Legislation] Agreements is not disclosed by the Court).
No Court has legal Jurisdiction to remove the regulation -
it is to remain to protect the Consumer from the mischief of unwritten consumer credit agreements
(click here to see the Judgment of Lord Justice Sir Robin Auld)
This Judgment has been cited by the Courts as Authoritative, many times in following disputes, most dramatically in
Southern Pacific Mortgage Limited -v- Jayne Elizabeth Heath (Court of Appeal, 5 November 2009) ["Google" it]
a case with which the Courts closed the door on ALL future challenges that similarly feature improperly executed "Multiple Agreements", as here.The Courts do not mention our continuing challenge where we apply to reopen the 3 existing regulated agreements that remain undisclosed in Story on the grounds that the Court does not have Jurisdiction to suppress the CCA in this way.
-
Section(s) 8 (Regulated Agreements) and 18 (Multiple Agreements)
CONSUMER CREDIT ACT (1974) ("The CCA")
-
Mr Francis Bennion,
the Parliamentary Draftsman of the Consumer Credit Act (1974), expresses concern that the ruling of Auld LJ on Section 18 here, an anti-avoidance provision, is "wholly mistaken" and "incorrect"(click here) and he explains why the decision "reveals an uncertain judicial grasp of the intended working of [Section 18]", [here].)
He is refused an audience at the Court by the same Auld LJ (here)
-
Senior UK Judges have consciously suppressed the legal effect of Section 8 of the CCA 1974 when setting binding legal precedent in 300 Billions' (2004 CAB figure) Consumer Credit Test Case. Overstepping its Jurisdiction, which forbids the Court to defeat such provisions of primary legislation, the Court refuses to disclose that, here, a series of 3 Regulated Agreements (aka Consumer Credit Agreements) totalling £12000 in November 1986 were refinanced by verbal (unwritten) agreement by a bank which operated policy to NOT document Refinancing Agreements. Undocumented regulated agreements of the type undisclosed by the Court here, are irrecoverable under Section 127(3) of the 1974 CCA, placing the bank's shareholders and depositors at serious risk of a substantial loss hitherto unseen in the UK, should the Court disclose that regulated agreements are refinanced by further (unwritten) agreement in this immediate case,
(because the regulation is to remain, however a trader "tinkers" with the terms of existing regulated agreements, he CCA intending to protect the Consumer from unwritten terms that vary/modify or supplement existing regulated agreements. Here, the verbal refinancing agreement, with varied terms, inc an "excessive" (OFT) early settlement fee, is unwritten by the bank - where the bank destroyed many of its important investigative files, compiled at and later destroyed at, the bank's Head Office in Lothbury, London, when requested by the Court within the Discovery process, prior to the hearing of the case).
-
The decision here has far reaching and very grave implications in the General Law, not least because Judges must not implement their own social policy. They are sworn to act impartially toward tangible evidence and no Judge is permitted to strike down Primary Legislation, by any means within his discretion. Whether Judges are allowed to suppress/conceal compelling evidence of regulated agreements in this manner is quite another matter, where it remains that Parliament has properly enacted social policy in such cases where unwritten regulated agreements feature; the protection afforded to the existing regulated agreements here is to remain, however they are replaced or varied in any way by clever traders who attempt to avoid the regulation. It may give the reader some insight to understand why the authorities do not intervene to correct the situation - to realise that at least 300 Billions' (2004 CAB figure) of regulated agreements across the UK are affectedby this single unprecedented ruling, should they too, be lumped together and then "replaced" by a single agreement which is technically known as a "Multiple Agreement"[S 18 CCA], ironically, an anti-avoidance provision which is intended to address the banking practice which arose here,
-
If you are wondering what all the fuss is about,
(Section 127(3) 1974 CCA prohibits any Court from issuing an enforcement order where essential terms of regulated agreements are unwritten) a provision that addresses the tendency for banks to not document terms - think about it - the costs here exceeded 1 Million pounds GB.
How many consumers can now find such sums to challenge a bank after the ruling here ?
300 Billions' [2004 CAB figure]
ABUSE OF DISCRETION(1)
AT THE COURT OF APPEAL
(1) Abuse of discretion
The exercise of discretion by judges is an inherent aspect of judicial independence under the doctrine of the separation of powers. The standard of review applied to appeals from decisions involving the exercise of judicial discretion is "abuse of discretion."
An abuse of discretion is a failure to take into proper consideration the facts and law relating to a particular matter; an arbitrary or unreasonable departure from precedent and settled judicial custom.
-
JUDGEMENT by Lord Justice Robin Auld, Lord Woolf [MR], Lord Justice Robert Walker:-
- A further credit agreement by which 35000 is provided to the defendants over 3 new facilities which both replaces 3 existing facilities, collectively termed an "undoubted existing debt of about 12000" (Auld LJ) and which replacement agreement also provides additional credit of about 23000, is unregulated for the CCA purposes stated as the Issue on the Appeal. Auld LJ holds the contractual purpose of the "part written, part verbal" replacement agreement as being "partly to replace existing borrowings and partly to provide new monies". He finds no evidence of a strict refinancing term, necessary, he says, to uphold the defendants' claim that the CCA applies to the replacement agreement. Being unregulated, he concludes, the absence of documented terms to the replacement agreement "provides no bar" to the bank's rights to recover the sums loaned on the (unwritten) agreement(s) in question, and thereafter, where the loans were substantially increased by verbal agreement.
HOWEVER, (Protest the defendants as grounds to reopen)
The Court of Appeal was formed in the 19th century as a court of equity, a Court of conscience. Against this backdrop of its inherent Jurisdiction, the Judgement of that Court conceals the significant and determinative point that Section 8 of the 1974 CCA applies to the 3 existing agreements by which the above "undoubted existing borrowings" of about 12000 were provided by the bank to the defendants between 1983 -1986 and which outstanding sums were carried forward into their replacement agreement(s) of November 1986. Lord Justice Robin Auld refers, en passant, to the existing debt of about 12000 as being a constituent and formative 'part' to the replacement agreement of November 1986, but he fails to reveal that the 3 agreements by which that existing 12000 was provided are regulated (protected) agreements as defined by Section 8 of the 1974 CCA. The burden of proof that applies here is irrefutable, but it is 'blanked' by the Court which is plainly embarrassed by its own transgression from the rules of evidence which forbid it to conceal definitive evidence. By concealing the existing regulation, Auld LJ fails to conclude that, as regulated agreements, the existing regulation serves to satisfy the Issue on the Appeal; it is to be carried forward into the new agreement as a matter of social policy, with the outcome that the replacement agreement(s) here are to remain regulated, in order to protect the Consumer from the bank's (ultimately successful) reliance on unwritten agreements in these legal proceedings. This outcome, where it favours the tortfeasor's opacity, ( and its wholesale destruction of evidence before trial) is in direct conflict with the Stated Issue on the Appeal which promises to uphold regulated agreements - ie, to protect the Consumer from the mischief of the bank's policy to not document potentially troublesome terms, where eg, we were promised 500,000 of bank funding if we followed the bank's forthright and unambiguous verbal business advice - which we did, to our detriment: Here, nothing was written.
Lord Justice Auld and the wider Court, when now repeatedly asked within formal applications to reopen the existing regulated agreements, in the situation where they are omitted from the Court's Judgement, flatly refuse to address the existing regulation. The existing regulation is determinative of the Issue to the legal standard of "beyond reasonable doubt".
It is submitted that where the Judgment in a leading legal test (that affects countless thousands of Consumers) relies on concealment of defining evidence the Judgement simply cannot stand under our Constitutional provisions
"The Common Law must not defeat the Statute"
"Only Parliament may take away that which Parliament has given".
-
Mr Francis Bennion,
-
Mr Bennion speaks out against the Judgment, referring to the "significance" of the existing regulated agreements by which the 'undoubted' existing debt was provided - because Parliament enacted that the protection which applies to those existing Consumer Credit Agreements is to remain to protect the Consumer from, here, the bank's policy to not document lending terms (follow link below) and we add that the bank also failed to document the associated agreements where Mr Jackson promised us 500,000 of bank funding if we followed his business advice. N.B. This case is significant insofaras it sets legal precedent that is binding on the lower courts, including the County Court which has sole jurisdiction for all CCA matters (Section 141 CCA [Jurisdiction]). Auld LJ commented on its being the first case in the twenty five years' life of the CCA to reach the Court of Appeal on Section 18 (Multiple Agreements) of the 1974 CCA - an anti-avoidance provision which ironically directly addresses both the bank's, and the Court's attitude toward the evidence. It must be recognised that the Judges act in a highly dangerous, possibly criminal, manner where they conceal evidence to protect a bank from the regulatory consequences of its evasionary practices. The revelation of the regulation here proves fatal to the Court's Judgement. The CCA added consumer credit contracts to the short list of legal contracts that must be evidenced in writing to be legally enforceable - here, against the debtor; ie the CCA recognises that a powerful creditor might choose to disadvantage the debtor by his practice to not document potentially troublesome terms and Parliament, recognising the imbalance between the contracting parties, directed the Courts to the appropriate social policy to be adopted where a bank went as fas as to attempt to rely on the absence of documentation; the weaker party is to be protected from both the practice of not documenting terms and also from the appalling intimidation that a powerful credit trader may choose to bring to bear on an individual family over many years.....especially where the evidence (here the regulation) reveals the bank's abuse.......................
-
Click the roadside sign we erectedoutfront ofour house for larger image
-www.ruinedbynatwest.comis inspired by one Natwest promise that waskept,
"Carry on with this, Story, and the bank will see to it that you're f...ing ruined"
(Harry Jackson, Senior Manager, Natwest, Street, Somerset -March 17 1989)-
DESTRUCTION OF EVIDENCE
The Court knew that an investigative file compiled by the bank's Customer Services Unit on the matters that ended up before the Court was "destroyed, due to constraints of space" when its production was sought by the High Court in 1995. The Bank of England communicated with Natwest and the OFT over this case for a number of years from 1990, as both the Bank of England and the OFT had concerns as to the wider implications of the issues before the Court. The OFT, before the Court's ruling had opined informally that the CCA applied to the facts of this case. The Bank of England file, now in the hands of the FSA, is unavailable for release to us under the Freedom of Information Act, as it is deemed by the FSA as being "in the national interest" to not release it.-
ADMISSION BY SENIOR COUNSEL FOR THE BANK
Counsel for the bank, Andrew Smith QC (now a High Court judge - His Honour Sir Andrew Smith) admitted before the High Court that one of the 3 existing agreements wasregulated (a joint Home Improvement Loan); however,his admission issuppressed by the Court, and he is so far reluctant to confirm hisadmission. -
RESULT PROPHESISED BY COUNSEL FOR THE DEFENCE
The first defendant (Story) was warned, forthrightlyand unambiguously, by his own leading counsel, Mr Peter Smith QC, on 1st May 1997, a week before trial at first instance, (Bristol High Court) on 1 May 1997, that "the Judge willFudge" and that "Truth and Justice will be early casualties in this case", because the outcome would otherwise be "potentially disastrous for Natwest".
He prodded Story in the chest as he made his points, adding, "No Judge in this country will allow you to avoid your obligations using a technical defence". He then took steps to see that Story's Legal Aid Certificate was discontinued, refusing to run the CCA defence. The certificate was reinstated, but for junior counsel only, just before the trial started; the eventual costs far exceeded 1 million pounds. The Court refuses to confirm the actual figures which we believe to be nearer 1.5 millions.
-
The appalling costs figure here is important, because, if the existing regulation here was upheld by the Courts,
this case would pass similar matters, rightly, we say,
to Local Weights and Measures (Trading Standards) departments at first instance, on the paperwork (or the lack of it).
How many downtrodden, demoralised, consumers finding themselves in similar facts situations, are able to find such sums to bring an action,
where the ruling here makes their prospects of success as '0', where this ruling is binding upon the lower Courts under the (common law)
rule of precedent ?
