Deleted
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Post by Deleted on Jul 14, 2015 23:25:46 GMT
So Nurse am I correct in your analysis that you really think the judge really thought she should find for us, but decided the other way and left a coded message in her conclusion? I don't think she has used code. The doubt is for all to see. "If this is wrong (and I do not think it is), I find that the Club succeeds."The consequences of it being wrong would be x but, and she made a point of adding this, I do not think it is.Please don't hang up on 'think' and 'know': it's legalese .
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Post by Nurse Ratched on Jul 14, 2015 23:26:51 GMT
So Nurse am I correct in your analysis that you really think the judge really thought she should find for us, but decided the other way and left a coded message in her conclusion? Geoff Dunford reportedly tweeted 'not even close'. I agree with Geoff Dunford. Nurse Ratched disagrees with him. Add that to the coded messages Mrs Justice Proudfoot sent to TwoMileHill, and I think we've entered a parallel universe. And........so..... ?
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Bridgeman
Alfie Biggs
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Post by Bridgeman on Jul 14, 2015 23:32:10 GMT
So Nurse am I correct in your analysis that you really think the judge really thought she should find for us, but decided the other way and left a coded message in her conclusion? Geoff Dunford reportedly tweeted 'not even close'. I agree with Geoff Dunford. Nurse Ratched disagrees with him. Add that to the coded messages Mrs Justice Proudfoot sent to TwoMileHill, and I think we've entered a parallel universe. I'm struggling with the term 'insuperable barrier' used by a Judge that is supposedly sending out a message that we have a 60% chance of winning an appeal ? I suppose if you're convinced, you're convinced, nothing wrong with that, I think.
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Post by Nurse Ratched on Jul 14, 2015 23:37:15 GMT
I don't think she has used code. The doubt is for all to see. "If this is wrong (and I do not think it is), I find that the Club succeeds."The consequences of it being wrong would be x but, and she made a point of adding this, I do not think it is.Please don't hang up on 'think' and 'know': it's legalese .
What I have drawn peoples attention too is perfectly reasonable. You can spin it in anyway you want, I don't care, but it is not the language of absolute. All I think is that if the legal advice given says we have a reasonable chance of winning, then the opportunity should not be spurned. If the advice says we haven't, then that concludes the chapter.
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Rex
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Post by Rex on Jul 14, 2015 23:43:56 GMT
The consequences of it being wrong would be x but, and she made a point of adding this, I do not think it is.Please don't hang up on 'think' and 'know': it's legalese .
What I have drawn peoples attention too is perfectly reasonable. You can spin it in anyway you want, I don't care, but it is not the language of absolute. All I think is that if the legal advice given says we have a reasonable chance of winning, then the opportunity should not be spurned. If the advice says we haven't, then that concludes the chapter. I'm assuming - and I'm sure someone can correct me if I'm wrong- that those advising that we have a reasonable chance of winning, would be the same people who were claiming that the original contract was 'watertight'. IF that is the case, then I really wouldn't be holding a lot of store in what they say now.
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Bridgeman
Alfie Biggs
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Post by Bridgeman on Jul 14, 2015 23:49:09 GMT
What I have drawn peoples attention too is perfectly reasonable. You can spin it in anyway you want, I don't care, but it is not the language of absolute. All I think is that if the legal advice given says we have a reasonable chance of winning, then the opportunity should not be spurned. If the advice says we haven't, then that concludes the chapter. I'm assuming - and I'm sure someone can correct me if I'm wrong- that those advising that we have a reasonable chance of winning, would be the same people who were claiming that the original contract was 'watertight'. IF that is the case, then I really wouldn't be holding a lot of store in what they say now. If the legal advisers are so sure of our chance of winning then let them put up the money to fund the appeal, that'll soon tell us how confident they are.....
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Deleted
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Post by Deleted on Jul 14, 2015 23:50:24 GMT
Wow, next you will suggest crowd funding for the 30 million, sorry it's dead. Forget wasting money and get on with telling us what plan B is, well Nick did say there was a plan B, oh hang on Plan B is to appeal! maybe plan b is carry on in the ground we already have like so very many other clubs have for years ?
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Peter Parker
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Post by Peter Parker on Jul 15, 2015 5:33:30 GMT
This is only one judges opinion who in her conclusion almost invites an appeal in her wording, because she seems not sure of her own judgement. Conclusion 156. Accordingly I find that Sainsbury’s must succeed because of the construction of Schedule 1 to the Agreement [2.11] which seems to me to be an insuperable barrier to the Club. If this is wrong (and I do not think it is), I find that the Club succeeds.Read it in context of the rest of the judgement, it seems even more woolly. 2.11 The Buyer may in its absolute discretion pursue an Appeal against a Planning Refusal but shall be obliged to do so if: (a) Planning Counsel confirms that such an Appeal has a 60% chance or greater of
achieving an Acceptable Store Planning Permission on or before the Long Stop
Date; and
(b) an Acceptable Stadium Planning Permission has been granted; in which case the Buyer will give notice of Appeal within the time limits imposed or specified in the Planning Act and in such case: (c) the Buyer will prosecute the Appeal with due diligence and will conduct its part in
the Appeal proceedings in a good and efficient manner (d) in prosecuting any Appeal the Buyer will keep the Seller fully informed of all
relevant information in respect of the Appeal
(e) if the Buyer considers it appropriate the Buyer will submit a duplicate or alternative Store Planning Application not the subject of Appeal proceedings and the provisions of the schedule should apply to that duplicate or alternate Store Planning Application. linkI don't believe for one minute that the club would chase this thing through unless it was not worth the money being spent. They will no doubt take legal advice on their chances of success before taking it further. If this decision was given to us yesterday using the same words in bold in the judges conclusion, then we would fully expect Sainsbury's to appeal. They would be fools not too. So why do you want us to roll over and die? Appeal courts overturn decisions and this judgement is far from being clear. Can we afford it? On the judgement given, which seems to have a good chance of being overturned, can we afford not too? If as complicated and badly drafted as this Judge.saya,.do we really beleive we will convince another judge, his one was fundamentally wrong
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Peter Parker
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Richard Walker
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Post by Peter Parker on Jul 15, 2015 5:48:19 GMT
The consequences of it being wrong would be x but, and she made a point of adding this, I do not think it is.Please don't hang up on 'think' and 'know': it's legalese .
What I have drawn peoples attention too is perfectly reasonable. You can spin it in anyway you want, I don't care, but it is not the language of absolute. All I think is that if the legal advice given says we have a reasonable chance of winning, then the opportunity should not be spurned. If the advice says we haven't, then that concludes the chapter. If.you say there is no one riding over the hill to save us if we give up now, then it wont be any different if we lose an appeal. What do you consider a reasonable chance of success to risk money we dont have chasing an appeal that could take 12 months or more? How are we paying back Wonga back 2m quid in 6 months time? We still owe Geoff a good chunk of change as well All i forsee is Mr Higgs making himself poorer Can we convince another judge that one of their own has fundamentally got it wrong
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Post by lostinspace on Jul 15, 2015 6:33:35 GMT
All i forsee is Mr Higgs making himself poorer Can we convince another judge that one of their own has fundamentally got it wrong Read more: gasheads.org/thread/3623/throw-good-money-bad?page=2#ixzz3fwJVtTxs as mentioned by the nurse,,, if the decision had gone against JS then 100% assured that they would already have lodged an appeal, the difference being, its not them paying but its customers...... as they walk through the store doors
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Post by alasitsgas on Jul 15, 2015 6:53:52 GMT
Even if an appeal against this verdict was a success Sainsbury's with all their money would go back and appeal against the reversed decision.(hope you see what i mean)
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Post by manchestergas on Jul 15, 2015 7:05:28 GMT
alasit,
The next appeal after the Court of Appeal would have to be the Supreme Court. You rarely get leave to appeal there, so I think if we won an appeal that would the end of this case. Whether there would be complications enforcing the judgement not sure.
However there are different risk profiles in any appeal. Assuming Nick Higgs is not prepared to fund this personally, then if we appeal and lose potentially could destroy the club. To get this far we mortgaged the ground. If Sainsbury had lost I am sure they would have apoealed, but remember their opponent was a party which has no money and if they lost the payout would not have put the companies future at risk, it's a relatively small part of their annual profits.
Also costs. If we appeal and lose we will be forced to pay Sainsburys costs in my opinion rightly soon.
I would only appeal if one (Nick) or some or all the directors are willing to fund the appeal themselves and we are advised we have very good chances of success from two different law firms.
also I would not appeal based on Nurses hidden message ground!
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Peter Parker
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Post by Peter Parker on Jul 15, 2015 7:06:44 GMT
All i forsee is Mr Higgs making himself poorer Can we convince another judge that one of their own has fundamentally got it wrong Read more: gasheads.org/thread/3623/throw-good-money-bad?page=2#ixzz3fwJVtTxs as mentioned by the nurse,,, if the decision had gone against JS then 100% assured that they would already have lodged an appeal, the difference being, its not them paying but its customers...... as they walk through the store doors well what has it cost Sainsbury's? Sainsbury's could afford an appeal, to save themselves potentially forking out another £30m.
A reasonable chance of a successful appeal for Sainsbury's would probably be a lower % than to Bristol Rovers. Ultimately if Sainsbury's lost after an appeal, they still get something out of it. We don't
We already have a £2m external loan to be repaid by the end of the year. How are we funding that? Right now that seems a more important question than chasing an appeal which could well take 12/18 months to be heard, when the NH said they would have to find away to fund an appeal as it is
What does everybody consider a reasonable chance of success for us to pursue it and convince a different judge, that Justice Proudman fundamentally got it wrong?
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Peter Parker
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Post by Peter Parker on Jul 15, 2015 7:45:02 GMT
Here you go, A clear concise summary (thanks to Supergas and Thatchamgas on Gaschat)
Although BCC granted planning permission (by resolution on 16 January 2013 and formally on 14 June 2013), Condition 11 of the permission limited deliveries to the store to a period between the hours of 6 am and 11 pm on weekdays and 9 am to 8 pm on Sundays and Bank Holidays, reflecting what Mr Hutton had earlier reported as being the likely outcome. After some argument, the Club agreed on 26 September 2013 that this was a Store Onerous Condition so that there was a deemed Planning Refusal for the purposes of the Agreement
Supergas says
I'm surprised Sainsbury's didn't pull the plug 20 working days after that, because they knew by that point they didn't want the site and didn't want to build the store. It seems like we then spent 6-9 months trying desperately to keep them onside (even though we knew they didn't really want it any more either) and the next next 9 months building up to the inevitable lawsuit.
Thatchamgas says
And this is where the issue lies. Under [2.11] Sainsbury’s were obliged to submit an Appeal if Planning Counsel (instructed by Sainsbury’s) gave an opinion that there was a 60% chance of success. This obligation was traded away by us agreeing that the granted permission was a deemed Planning Refusal. Sainsbury’s did submit an appeal, but it was at a politically difficult time (JR + Local elections) and they knew the likelihood of success was low. We also signed off on the appeal content which subsequently blew out of the water any complaint we had over its quality. By submitting the appeal Sainsbury’s argued that they had completed their contractual obligations. When we forced them to revisit the situation by the injunction earlier this year, they then obtained Planning Counsel opinion that the revised submission had only a 55% chance of success, meaning under the letter of the contract[2.11] they were not required to submit a further Appeal. The fact that our Counsel considered we had a better than 60% chance, which was later proven, was irrelevant. The whole subject is also complicated by the definition of Appeal. I really believe Sainsbury’s got lucky in exiting the contract. Given the quality of drafting (of which the judge was critical) I do not believe this was a work of genius on Sainsbury’s part
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mjhgas
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Post by mjhgas on Jul 15, 2015 7:50:34 GMT
Have I missed the announcement of Plan B? I was hoping for an update based on a plan of action should the judge find in favour of Sainsburys! There were two outcomes (a bit like relegation or staying up) and it appears that we haven't got a plan for the worst case scenario (again)!!! #Sacktheboard
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Post by billyocean on Jul 15, 2015 7:53:58 GMT
I am re-reading the whole thing again and currently up to paragraph 146. My opinion hasn't changed sadly. Not worth appealing because technically Sainsbury's did nothing wrong. The "invitation" by the judge to appeal as stated above is predicated on Schedule 1 2.11 being wrong which is this (I think!)
Sainsbury's fulfilled this obligation so I'm not sure how you'll win an argument saying that they didn't
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LPGas
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Post by LPGas on Jul 15, 2015 8:24:08 GMT
Well at the moment it looks like Mr Higgs and yourself still think this can succeed.....errrr and no-one else. Get the picture now? No-one else? Are you sure? If the legal advice strongly advises you to go for an appeal because it has a good chance of success - what would you do? I too think it would succeed. Good job we didn't give up when Grimsby scored first in the playoff!!
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LPGas
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Post by LPGas on Jul 15, 2015 8:27:12 GMT
So Nurse am I correct in your analysis that you really think the judge really thought she should find for us, but decided the other way and left a coded message in her conclusion? Geoff Dunford reportedly tweeted 'not even close'. I agree with Geoff Dunford. Nurse Ratched disagrees with him. Add that to the coded messages Mrs Justice Proudfoot sent to TwoMileHill, and I think we've entered a parallel universe. Geoff is not a lawyer, he thinks he is but he is not
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eppinggas
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Post by eppinggas on Jul 15, 2015 8:31:55 GMT
So Nurse am I correct in your analysis that you really think the judge really thought she should find for us, but decided the other way and left a coded message in her conclusion? Can those Gashead's in court on the day say if they noticed her wink at them when she delivered her judgement Nope. She looked bored. In Court no more than 60 seconds and left us to read the Judgement. An Appeal? What a load of b*ll*cks. Let's not spend a minute longer or a penny more pursuing shamesbury's through the Courts. Higgs - just for once - stand up - say you (and your legal team ) got it wrong - and that we are moving on. Give us the mythical Plan B - Maybe we can have the root and branch review at the same time. You might just get some credibility back. I was talking to one of the two senior lawyers (who directly assisted our QC) on Day 3 of the case and they openly admitted we had little chance of winning. (I was advised not to report this at the time). He said the only chance we had was that the Judge 'might' find enough 'bad faith' to let that over-rule the letter of the law. Also that this Judge was actually more likely to find for Rovers in this circumstance than most Judges on the circuit. WE LOST. WE WILL NOT WIN AN APPEAL.
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Angas
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Post by Angas on Jul 15, 2015 8:32:00 GMT
I am re-reading the whole thing again and currently up to paragraph 146. My opinion hasn't changed sadly. Not worth appealing because technically Sainsbury's did nothing wrong. The "invitation" by the judge to appeal as stated above is predicated on Schedule 1 2.11 being wrong which is this (I think!) Sainsbury's fulfilled this obligation so I'm not sure how you'll win an argument saying that they didn't That's 2.1 2.11 is on page 35
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