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Post by a more piratey game on Jan 27, 2016 10:03:19 GMT
"One precedent was discussed, and one of the judges suggested that the 'learned judge' in that case exhibited 'a piece of judicial exhuberance' Read more: gasheads.org/post/new/4503#ixzz3yR5y7xceThis to me is the most intriguing bit. Up til now we have had sensationalist headlines that OUR barrister has said the judge was wrong! We need these judges to believe she was wrong, doesn't matter what we think! Out of interest what is the address of the court? May pop down at some point if i get time. its on the Strand, at the Fleet St end, north side
Eppinggas is going to be there for kick-off, I think
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Post by Topper Gas on Jan 27, 2016 10:14:54 GMT
Asking to change part of the contact and breaching the contract, are two different things. There's nothing wrong with asking to change a contract, as long as you then follow it if your request is refused.
Of course contracts can be amended, but it’s the whole perception that we are whiter than white and behaved impeccably that grates. The we can do no wrong. The biggest sticking part of the case to me still remains. Sainsbury’s were contractually obliged to make one appeal, no more, no less. We had to approve said appeal. Said appeal failed, Sainsbury’s exercise right to terminate contract as per stipulation. Good faith or not, appeal good enough or not, we okayed it and to argue against that defies logic (or is that too simplistic?) After that we raced to get our own thing done and passed and missed the deadline. A deadline incidentally we agreed to move forward. To me those are two massive own goals, but it was all Sainsbury’s fault obviously Surely our defence was we assumed that Sainsbury's knew what they were doing with the original Appeal, it was only when we investigate matters after it failed that we found they'd put in a weak Appeal, also at the wrong time, which was confirmed when our Appeal succeeded. The fact there's also additional evidence that Sainsbury's wanted out adds weight to our argument Sainsbury's deliberately lost the Appeal. Whilst the contract may have lapsed if Sainsbury's had entered a decent Appeal which surely they are entitled to do with "good faith" that wouldn't have been the case?
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Peter Parker
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Post by Peter Parker on Jan 27, 2016 10:26:42 GMT
Of course contracts can be amended, but it’s the whole perception that we are whiter than white and behaved impeccably that grates. The we can do no wrong. The biggest sticking part of the case to me still remains. Sainsbury’s were contractually obliged to make one appeal, no more, no less. We had to approve said appeal. Said appeal failed, Sainsbury’s exercise right to terminate contract as per stipulation. Good faith or not, appeal good enough or not, we okayed it and to argue against that defies logic (or is that too simplistic?) After that we raced to get our own thing done and passed and missed the deadline. A deadline incidentally we agreed to move forward. To me those are two massive own goals, but it was all Sainsbury’s fault obviously Surely our defence was we assumed that Sainsbury's knew what they were doing with the original Appeal, it was only when we investigate matters after it failed that we found they'd put in a weak Appeal, also at the wrong time, which was confirmed when our Appeal succeeded. The fact there's also additional evidence that Sainsbury's wanted out adds weight to our argument Sainsbury's deliberately lost the Appeal. Whilst the contract may have lapsed if Sainsbury's had entered a decent Appeal which surely they are entitled to do with "good faith" that wouldn't have been the case? but then isn't our fault to assume Sainsbury's appeal was good enough. What are we paying thousand for experts for.A Football club should be as good as anyone about knowing and manipulating contracts for their own gain (or trying to)
I am confused/can't remember some of the accusations and/or dates regarding the original arguments in the case and they may well be the telling thing
I just hope we can argue as such and get this overturned.
Do we need consensus amongst all 3 judges? As the original judge lamented about the wording and twists etc in the contract, I imagine 3 judges could all see different things
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LPGas
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Post by LPGas on Jan 27, 2016 10:29:56 GMT
On another board, in another galaxy they seem to think that Sainsbury could have funded Trash's JR. Given that they were a limited company can we not under the Data rules apply to see where they got their funding from?
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Post by a more piratey game on Jan 27, 2016 10:34:18 GMT
I imagine 3 judges could all see different things
I'm guessing that appeals are complicated things, and having 3 gives a 'balanced and more experienced view'. A bit like 'sending it upstairs' in rugby - you get replays from various angles
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Post by matealotblue on Jan 27, 2016 10:36:01 GMT
Just noticed on the subject of Appealing the Appeal, so to speak, that the Government had just lost a ruling in the Court of Appeal (nothing to do with stadiums though!) and have said they will appeal against the decision. If this is due process then do we assume that no matter the result of this matter one party could take this further on again? (assume the Supreme Court?). If so where/when will it all end??
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faggotygas
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Post by faggotygas on Jan 27, 2016 10:36:21 GMT
Asking to change part of the contact and breaching the contract, are two different things. There's nothing wrong with asking to change a contract, as long as you then follow it if your request is refused.
Of course contracts can be amended, but it’s the whole perception that we are whiter than white and behaved impeccably that grates. The we can do no wrong. The biggest sticking part of the case to me still remains. Sainsbury’s were contractually obliged to make one appeal, no more, no less. We had to approve said appeal. Said appeal failed, Sainsbury’s exercise right to terminate contract as per stipulation. Good faith or not, appeal good enough or not, we okayed it and to argue against that defies logic (or is that too simplistic?) After that we raced to get our own thing done and passed and missed the deadline. A deadline incidentally we agreed to move forward. To me those are two massive own goals, but it was all Sainsbury’s fault obviously On the point I made, we were whiter than white. There's nothing wrong, underhand or whatever in asking to vary a contract as long as you act in good faith if refused, happens all the time. Saying that you ARE varying or cancelling a contract, without the agreement of the other party, is a different matter.
But anyway, agree with the rest. Clearly our lawyers think they have an argument against this point, but I have as little idea of what that argument is as anyone else.
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faggotygas
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Post by faggotygas on Jan 27, 2016 10:43:27 GMT
On another board, in another galaxy they seem to think that Sainsbury could have funded Trash's JR. Given that they were a limited company can we not under the Data rules apply to see where they got their funding from? Which rules? Data protection only applies to personal information. Or do you mean a freedom of information request? That only applies to the public sector, not limited companies.
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faggotygas
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Post by faggotygas on Jan 27, 2016 10:44:43 GMT
Just noticed on the subject of Appealing the Appeal, so to speak, that the Government had just lost a ruling in the Court of Appeal (nothing to do with stadiums though!) and have said they will appeal against the decision. If this is due process then do we assume that no matter the result of this matter one party could take this further on again? (assume the Supreme Court?). If so where/when will it all end?? Only on points of law, not on interpretation of contracts, so very unlikely
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Post by droitwichgas on Jan 27, 2016 11:24:33 GMT
I fear if it's a close call ie 2-1 in our favour leave to Appeal could be sort, then it's heard by 5 Judges if leave is given.Aas far as where does it end then that's the European Courts of Justice but I doubt a squabble over a supermarket/staduim contract would get that far!
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Post by manchestergas on Jan 27, 2016 11:31:41 GMT
I doubt it would go to the CJEU now.
The CJEU does not decide facts, it answers questions referred to it from national courts on the applicability of EU law to the case at hand (the UK court would always make the final decision applying answers from the CJEU referred to it and they intrepret the facts of the case, the later is solely the responsibility of the national court and they are very very protective of that right). I would have thought if the High Court and Court of Appeal thought there were questions of EU law they would have referred those questions to the CJEU by now. Ultimately the end is the Supreme Court, but I really doubt it will get there. Leave to appeal to the Supreme Court is rarely given beyond points of law of national significance.
To paraphrase the Doors, I suspect the Court of Appeal is the end.
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Deleted
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Post by Deleted on Jan 27, 2016 12:38:24 GMT
I broadly agree with what PP is saying, albeit it's probably largely irrelevant: whether we're playing dog in the manger and indignant disappointment doesn't really address the contractual point, but doesn't hugely impress me or indicate that we have a significant argument to pursue. I haven't picked up what the argument is. Mrs Proudman was (obviously) wrong, apparently: why? They just seem to be bleating on about it all being sooooo unfair. Hopefully we'll hear what this killer new evidence is and why Mrs Proudman was so obviously wrong. Then I might have a clue what the real issue is, what we've bet the club on, and whether this is likely to get us any nearer to funding UWE.
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Post by nerdgas on Jan 27, 2016 13:00:09 GMT
Asking to change part of the contact and breaching the contract, are two different things. There's nothing wrong with asking to change a contract, as long as you then follow it if your request is refused.
Of course contracts can be amended, but it’s the whole perception that we are whiter than white and behaved impeccably that grates. The we can do no wrong. The biggest sticking part of the case to me still remains. Sainsbury’s were contractually obliged to make one appeal, no more, no less. We had to approve said appeal. Said appeal failed, Sainsbury’s exercise right to terminate contract as per stipulation. Good faith or not, appeal good enough or not, we okayed it and to argue against that defies logic (or is that too simplistic?) After that we raced to get our own thing done and passed and missed the deadline. A deadline incidentally we agreed to move forward. To me those are two massive own goals, but it was all Sainsbury’s fault obviously How else should we present it in court? Not going to get much headway saying 'sorry m'lud we fooked up as well but we think they fooked up more....'
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Post by Peter Parker on Jan 27, 2016 13:28:29 GMT
Of course contracts can be amended, but it’s the whole perception that we are whiter than white and behaved impeccably that grates. The we can do no wrong. The biggest sticking part of the case to me still remains. Sainsbury’s were contractually obliged to make one appeal, no more, no less. We had to approve said appeal. Said appeal failed, Sainsbury’s exercise right to terminate contract as per stipulation. Good faith or not, appeal good enough or not, we okayed it and to argue against that defies logic (or is that too simplistic?) After that we raced to get our own thing done and passed and missed the deadline. A deadline incidentally we agreed to move forward. To me those are two massive own goals, but it was all Sainsbury’s fault obviously How else should we present it in court? Not going to get much headway saying 'sorry m'lud we fooked up as well but we think they fooked up more....' True, but I am just annoyed/wound up by the attitude the club have displayed about the project for so long.
I want us to win this case, but history leaves me anything but confident and of course we have the ultimate scapegoats should we lose for the club to blame
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nerdgas
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Post by nerdgas on Jan 27, 2016 13:47:58 GMT
How else should we present it in court? Not going to get much headway saying 'sorry m'lud we fooked up as well but we think they fooked up more....' True, but I am just annoyed/wound up by the attitude the club have displayed about the project for so long.
I want us to win this case, but history leaves me anything but confident and of course we have the ultimate scapegoats should we lose for the club to blame
I think they are two different things though. The misleading of fans is not acceptable. Dressing up things in court to favour our case is....
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Post by DudeLebowski on Jan 27, 2016 13:58:53 GMT
At the end of the day it'll come down to one for, one against & then all hang on the decision of Chuck Norris.
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Post by Peter Parker on Jan 27, 2016 14:27:58 GMT
Sainsbury's 'cynically' pulled out of the £30 million Memorial Stadium deal because its heart wasn't in it and it didn't do enough to win an acceptable planning permission.
So claimed Bristol Rovers' legal team in a furious attack on the supermarket chain's behaviour before the deal collapsed in acrimony two years ago.
The club had thought its future was secure when Sainsbury's agreed to buy its aging stadium as a site for a new superstore.
The plan was that the club would use the cash generated to relocate to a state-of-the-art new stadium on West of England University's Frenchay campus.
But the entire project went up in smoke in February 2014 when Sainsbury's investment board decided to terminate the agreement.
Rovers are now battling to convince Appeal Court judges that the contract is still 'on foot' and that Sainsbury's is legally obliged to go through with the purchase.
The case hinges on whether Sainsbury's was entitled to pull out after local councillors refused to allow deliveries to the proposed store before 6am on weekdays.
The supermarket giant says that restriction made the store's planning permission "unacceptable" and meant the whole project was a dead letter.
But Rovers insist that Sainsbury's had by then gone luke warm on the deal and was casting around for an excuse to withdraw.
David Mathias QC, for the club, claimed Sainsbury's had violated 'the spirit' of the deal by taking 'cynical resort to the black letter' of the contract.
Sainsbury's says it made reasonable efforts to persuade councillors to lift the delivery hours restriction, but the QC said it could and should have done more.
Rovers had "consistently pressed" the supermarket chain to try again and had even offered to take up cudgels with the council on its behalf, the court heard.
Sainsbury's had tried to convince councillors at a "politically inexpedient" moment and its bid to lift the restrictions was "foredoomed to failure", the court heard.
But Mr Mathias said there was nothing to stop the supermarket chain from withdrawing its application and trying again later in a rosier political climate.
That would have been "a prudent and obvious thing to do" and was the course advised by Sainsbury's own experts, added the barrister.
Sainsbury's was obliged by the contract to use "all reasonable endeavours" to win an acceptable planning consent and that meant "doing all that it reasonably could".
Rovers had repeatedly offered to step into Sainsbury's shoes and take over attempts to convince councillors, said Mr Mathias.
The club, he added, was "uniquely well-placed to lobby elected members with a view to bringing some political capital to bear on the matter".
But Sainsbury's had refused to "lend its name" to any bid by the club to make the planning permission acceptable, the court heard.
That, claimed Mr Mathias, was a "flagrant breach" of Sainsbury's obligation to do all it could to bring the project to a successful outcome.
The club narrowly lost the argument at the High Court last year, but is now asking the Appeal Court to reverse that decision.
Rovers say Sainsbury's had no right to pull out of the 2011 contract and remains "obliged to complete the purchase of the Memorial Stadium".
The hearing before Lords Justice Laws, McCombe and Floyd continues and is expected to last three days.
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Post by c4h10 on Jan 27, 2016 14:58:24 GMT
True, but I am just annoyed/wound up by the attitude the club have displayed about the project for so long.
I want us to win this case, but history leaves me anything but confident and of course we have the ultimate scapegoats should we lose for the club to blame
I think they are two different things though. The misleading of fans is not acceptable. Dressing up things in court to favour our case is not.... Sorry, clicked on the wrong post! But, PP, why are you so annoyed/wound up at this moment? I can understand you being annoyed/wound up long term, and being so if the appeal is lost, but why so many repetitively negative posts whilst the court case is proceeding? Personally, I am hopeful (but not very!) of a favourable outcome, and interested in following what is happening. Of course, if we lose I shall be annoyed/wound up with the best of 'em.
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Post by Peter Parker on Jan 27, 2016 16:00:54 GMT
I think they are two different things though. The misleading of fans is not acceptable. Dressing up things in court to favour our case is not.... Sorry, clicked on the wrong post! But, PP, why are you so annoyed/wound up at this moment? I can understand you being annoyed/wound up long term, and being so if the appeal is lost, but why so many repetitively negative posts whilst the court case is proceeding? Personally, I am hopeful (but not very!) of a favourable outcome, and interested in following what is happening. Of course, if we lose I shall be annoyed/wound up with the best of 'em. sorry to add to it again only so many negatives as just responding to the responses to me.
The whole episode has wound me up to be honest and anything I see seems to set me off. Overall I just dread losing this. Not only for what the future would hold, but no doubt it will just continue the blame cultural that has existed for so long
I very much hope we win and I can't reiterate that enough.
I shall calm down now and chill
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Post by kingswood Polak on Jan 27, 2016 16:03:27 GMT
I was there for about 40 minutes this morning. Here's my take on it while I was there, plus below already C&Pd by PP on another thread
It was, this time, in a proper court building. Old and with lots of shields and statues and vaulted ceilings. The courtroom itself is more prosaic though, and a little bit smaller than the one we had last time. We were in number 75, so there are plenty of them
I nodded at Nick and Toni when I went in (them probably thinking 'who's that bloke?'), and I saw one other Gashead there - a trainee barrister in his 60's who was there for parts of the original case
There were 23 people in the room, including 3 judges and 4 barristers in their matchday kit. There were also lots of people scribbling notes fairly actively - maybe ten of them. Ali Durden was also there. There are microphones all over the room, so best not eat crisps or pass wind or anything as it'll be picked up
Nick looked a bit stressed to me - like I might if I had tens of millions of quid riding on the case. Or he might have stayed overnight and gone for a few scoops with Toni last night
The legalese was unsurprisingly arcane. I think the judges found it pretty nuanced - they looked pretty puzzled some of the time. Our brief, Mr Matthias, was up and taking them through it. At one point one of the judges raised his eyebrows at Mr David Matthias as if to say 'that's a pretty clever point you just made', although maybe also 'that's pretty smarty-pants'
I don't know if Rovers won their application to submit new evidence, but I guess they did as there was talk about 'we knew x but couldn't discuss it as it wasn't part of our case or the other party's'
Our brief said that it was 'an extraordinary case' and that the original judge had cocked it up, though in the nicest possible way. 'In our respectful submission the learned judge was on a frolic of her own.....' 'erred in concluding....', sort of stuff. One precedent was discussed, and one of the judges suggested that the 'learned judge' in that case exhibited 'a piece of judicial exhuberance'
There was a very technical discussion of estoppel and the Section 73 application. The estoppel arguments are apparently all new, or something - they weren't brought in last time
Our briefs said they saw the draft judgement and saw the error immediately. Our position is summarised in some 'post-judgement submissions'
I considered giving them a verse of Irene, which would at least have livened it up a bit, but thought it might not help so I left quietly
Good luck Dave, Nick and Toni
made a "fundamental error" when she refused to hold supermarket giants, Sainsbury's, to the £30 million purchase of Bristol Rovers' Memorial Stadium.
The club says Sainsbury's welched on the deal which was to pave the way for Rovers' move to a state-of-the-art new ground on West of England University's Frenchay campus.
Rovers narrowly lost the argument in the High Court last year, but is now battling to reverse that result at the Court of Appeal.
Opening the case, barrister, David Mathias QC, said: "Bristol Rovers continues its fight to hold Sainsbury's to the sale of the Memorial Stadium"
He insisted that the supermarket chain was "under a continuing obligation" to go through with the deal when it unlawfully pulled out.
The QC said the club had "very nearly succeeded" in winning its case before High Court judge, Mrs Justice Proudman, last year.
It only lost on a fine point of contractual interpretation and Mr Mathias said it would not take much for the club to be "home and dry".
"We say the judge's conclusion was wrong; we ask this court to reverse it and allow the appeal, obliging Sainsbury's to complete the purchase of the Memorial Stadium", he added.
The deal struck in 2011 was supposed to see Sainsbury's plough £30 million into buying the stadium, before leasing it back to the club for a peppercorn.
The plan was that the club would move to the new 21,700-seater ground when it was completed, opening the way for Sainsbury's to build a superstore on the site of the old stadium.
Planning permission was granted, but Sainsbury's pulled out when local councillors refused to allow deliveries to the store before 6am on weekdays.
Sainsbury's has always insisted that the restriction on delivery hours was unacceptable and that it was fully entitled to withdraw from the project.
But club lawyers argue that the supermarket chain got cold feet and seized upon the deliveries issue as an excuse for backing out of the deal.
They say the contract with Sainsbury's is still "on foot" and is asking the court to force the company into meeting its obligations.
In July last year, Mrs Justice Proudman said the "tortuous, laborious and in some respects bad" drafting of the contract lay at the heart of the dispute.
By the summer of 2013 "Sainsbury's desire to terminate the agreement if it lawfully could was plain", she added.
The judge accepted that the company could have done more to engage with local councillors and objectors and to keep the club informed.
But she refused to accept that Sainsbury's had failed to use "due diligence" in trying to persuade councillors to extend the delivery hours.
The attempt to convince them was made "at a politically inexpedient time" and "would have failed in any event", she ruled.
The failure to win an "acceptable" superstore planning consent meant that a "condition precedent" of the contract had not been met.
Sainsbury's, she concluded, was entitled to stand on the letter of the contract and to withdraw from the deal.
Challenging her decision today, Mr Mathias said the club's case all came down to knife-edge timing.
Sainsbury's, he said, was under an obligation to use its best endeavours to secure an acceptable planning permission.
Under the contract, that obligation had continued for 20 days after a termination notice was served.
The QC argued that Sainsbury's was never entitled to terminate the deal and gave up its attempt to "hone" the planning permission too quickly.
The hearing before Lords Justice Laws, McCombe and Floyd continues and is expected to last three days.
Read more: www.bristolpost.co.uk/Judge-fundamental-error-refused-hold-Sainsbury-s/story-28606561-detail/story.html#ixzz3yMB5rMEG Follow us: @bristolpost on Twitter | bristolpost on Facebook
Read more: gasheads.org/thread/3951/plan-appeal-case?page=48#ixzz3yNGe697e
Thank you for that and it's very much appreciated fella
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