ABUSE OF LEGAL PROCESS, JUDICIAL FAILURE - UK IS A DANGEROUS PLACE
Constitutional change and the Civil Procedure Rules - ABUSE OF LEGAL PROCESS, JUDICIAL FAILURE - UK IS A DANGEROUS PLACE
FOREIGN INVESTORS: CAVEAT EMPTOR
FRAUDULENT INSOLVENCY MANUFACTURING GROUP UK
https://www.youtube.com/watch?v=xKWhEAKuIiQ
David Fabb, successful businessman defrauded of his group of companies by stealth, irregular process and documentation, negligent judges, organised crime. Barclays, Deloitte, Lawrence Tomlinson report. Fraud on the court, by the court, and through the court. ALSO SEE OTHER PRESENTATIONS ON YOUTUBE BY SAME GROUP.
Call for investigation into abuse of loans to small firms as SFO considers criminal probe
Read more: https://www.thisismoney.co.uk/money/news/article-2732758/Call-probe-abuse-loans-firms.html#ixzz3Bo7SryRK
RBS May Have Saved Rogue Bankers From Jail With 'Whitewash' Report
https://www.huffingtonpost.co.uk/2014/08/27/rbs-whitewash-grg-unit-report_n_5721398.html
Papering over the cracks
The decision by RBS to dissolve its Global Restructuring Group, an arm of the bank that stands accused of destroying viable UK businesses for profit, will do little to repair the damage caused to the bank's beleaguered reputation. By Ian Fraser
Sunday 17 August 2014
https://www.heraldscotland.com/business/company-news/papering-over-the-cracks.25046875
GLOBAL LAW SUMMIT 2015: CAVEAT EMPTOR
LONDON: Britain's leading Indian-origin Law Minister, Shailesh Vara, will embark on a three-day visit to India next week to build on the "solid" bilateral ties.
He will also promote the Global Law Summit, to be held in London in February 2015.
Read more at:
https://economictimes.indiatimes.com/articleshow/41190820.cms?utm_source=contentofinterest&utm_medium=text&utm_campaign=cppst
https://www.lawgazette.co.uk/5042659.article?utm_source=dispatch&utm_medium=email&utm_campaign=GAZ290814
Constitutional change and the Civil Procedure Rules
26 August 2014By Roger Sceats
Related Articles
- · UK constitution conundrum
21 July 2014
The lack of a codified British constitution means that substantial constitutional changes can occur without anyone noticing at the time.
One consequence of the lack of a codified British constitution is that substantial constitutional changes can occur without anyone noticing at the time. The Civil Procedure Rules in 1998 abolished the ancient rule that proper service of proceedings meant what it said, that a defendant should actually receive a claim form, but the dramatic change was not quickly apparent.
Good service subsequently could (and can) be effected on a defendant's last known residence [CPR 6.9], even though the claimant knows he has moved and will not receive the claim form. But the White Book in 2002 noted that the question as to whether service on a defendant who had not received it was good service had yet to be tested, and a cavalcade of cases in the Court of Appeal on service followed before the point was clear. By the time of Akram v Adam [2004] EWCA Civ 1601, the new procedure was approved, and indeed found compliant with article 6 of the European Convention on Human Rights, provided there was an opportunity for the defendant to come to the court subsequently.
So a judgment may be entered in the entire ignorance of a defendant, whose only recourse at a later date is to be found in CPR 13.3 where a court 'may [emphasis added] set aside' if the defendant has a real prospect of successfully defending, or it appears to the court that there is some other good reason why the judgment should be set aside.
What Lord Denning had called a 'fundamental principle of our law', that 'no one is to be found guilty or made liable by an order of any tribunal unless he has been given fair notice of the proceedings so as to enable him to appear and defend them' (R v London County Quarter Sessions Appeals Committee Ex p. Rossi, [1956] 1 Q.B. 682) disappeared as a result of the statutory instrument implementing the CPR, and subsequent judicial interpretation. Thus the burden of resisting a claim of which originally he may know nothing was shifted firmly on to the defendant.
In a regime of easy credit and evasive debtors, this was arguably a valid policy decision but it is curious to say the least that so dramatic change occurred with almost no public political input. It must seem more than casual to continental or North American lawyers where process serving is generally mandatory and undertaken only by professionals or at the least evidenced by receipted post.
For the legal system of England and Wales, one consequence has been a great deal of wasteful satellite litigation to establish the current law. But another may be to have caused substantial unfairness in view of the burden put onto a defendant in a CPR 13.3 application.
I recently observed such unfairness myself, in a case in which my client, then a litigant in person, learning more than a year later of a judgment entered against her, unsuccessfully appeared before a district judge without even a sight of the claim form or other documents of the claimant - none having then reached her. The court found, despite her denials, that she had probably been served through a postal redirection service and in any event had come to the court too late. She fared no better before the circuit judge, the sole appeal possible in a county court matter (administration of Justice Act 1999, section 54(4).
There had arguably been a number of serious procedural defects at both levels. Although it is exceptionally difficult to obtain judicial review when no further appeal is possible, as set out in R (Sivasubramanian) v Wandsworth County Court [2002] EWCA Civ 1738], leave was given by the Administrative Court in my more recent case which was seen by it on the papers as having a "realistic prospect of success". Eventually, however, a circuit judge sitting as a deputy High Court judge, refused the application.
As Lady Hale pointed out in R (Cart) v The Upper Tribunal [2011] UKSC 28 '...a certain level of error is acceptable in a legal system which has so many demands upon its limited resources'. She noted that 'the district judge and the circuit judge may both have gone wrong in law. They may work so closely and regularly together that the latter is unlikely to detect the possibility of error in the former. But at least in the county courts such errors are in due course likely to be detected elsewhere and put right for the future'.
A future remedy is no consolation for a current litigant, however, and it seems the present indulgent law on service will continue to cause both expenditure of court time and vexation to litigants.
Judicial review is an expensive sledgehammer to crack a nut, but in face of the rigour of CPR 13(3) it may be the only recourse. It would surely be far more sensible to amend CPR 6(9) to require postal service to be proved by recorded delivery, resurrecting the principle rightly emphasised by Lord Denning and avoiding a multitude of problems, human and legal.
Roger Sceats is a solicitor
Readers' comments (5)
- Peter Ryder26 August 2014 10:33 pm
This is an appalling state of affairs. The judiciary increasingly sees administrative convenience as more important than achieving justice. They have allowed themselves to become an arm of the executive and in that regard the separation of powers has come to an end. The changes in the rules were not the invention of the executive and Parliament, they were the brain child of the judiciary with Parliament merely rubber stamping.
The reference by Lady Hale to the limited resources available are not the proper concern of a judge - justice is supposed to be blind, which should mean that outside considerations are not taken into account.
I have trouble finding how it differs from an appeal court dismissing a meritorious criminal appeal because it finds there are too many criminals at large.
- Peter Ryder26 August 2014 10:35 pm
I have been a lawyer for 47 years and I am frankly disgusted. The justice that Denning was proud of and our ancestors fought so hard to secure is being sacrificed on the alter of political expediency.
- Do you know what Nemesis means?28 August 2014 09:40 am
Lord Denning's "Spirit of the Law" outlook, although controversial at times, was yet one of the hallmarks of a legal system that prided itself on operating justly rather than expediently; an extension of the monarch's intervention on clemency grounds.
The ever encroaching civil service "Letter of the Law" approach is a creature of the republican, Napoleonic New Europe that seeks to reduce lawyers to a clerical arm of an inquisitorial court.
Perhaps we need Boris after all.
- Tim Luckhurst-Matthews28 August 2014 11:09 am
Roger
I agree with your views although have been more fortunate in a recent application in which I had to go to great, and I would suggest unnecessary, lengths to demonstrate to the Court the means by which the professionally advised Claimant, or the Claimant's solicitors themselves, could have found the Defendant's correct address had they made reasonable attempts to do so, and without going to great expense, rather than simply relying upon the last known address from their records that were probably hopelessly out of date. I suspect, as we all know to our cost, that at the end of the day the result of any such application depends upon the opinion of the District Judge before whom it is initially heard, and the interpretation of the Rules that he or she is prepared to follow.
I also agree that it's high time this was addressed to cure this anomaly once and for all. I intend to write to the Civil Procedure Role Committee, and invite all those of a like mind to do so. Details on the Civil Procedure Rules Committee website, but for quick reference the contact and address are as follows:
Jane Wright
Secretary to the Civil Procedure Rule Committee
Justice Policy Group
Ministry of Justice
Post Point 4.37
102 Petty France
London SW1H 9AJ
Tim Luckhurst-Matthews28 August 2014 01:54 pm
Roger
In my earlier post I neglected to mention that the Law Society made a submission on this point to the 2007 Consultation on Part 6. I remember it well and have a copy, but am indebted to Jane Wright of the Civil Procedure Rule Committee, who has reminded me about it today: https://webarchive.nationalarchives.gov.uk/20090904093407/https://www.justice.gov.uk/consultations/docs/cp1407-response.pdf
The responses recommending appropriate checks on the part of Claimants, and the potential for evidence to be supplied by Claimants in the circumstances of an application by a Defendant to set aside, unfortunately do not form any part of the current consideration on an application under 13.3, or where they do will seldom be accepted as the only reason justifying a set aside.
SEE ALSO https://www.gov.uk/government/organisations/civil-procedure-rules-committee/about#membership