Made on behalf of the Defendant
Witness: Wendy StarrShip Enterprise
1st Statement of Witness
Exhibits: 3
Dated: 27 November 2008
IN THE TORQUAY AND NEWTON ABBOT
county court
CLAIM NO:
BETWEEN:
Davey77
Claimant
-and-
CAPITAL ONE BANK (EUROPE) PLC
Defendant
WITNESS STATEMENT OF WENDY STARRSHIP ENTERPRISE
I, Wendy StarrShip Enterprise of Capital One Bank (Europe) plc. Trent House, Station Street, Nottingham, NG2 3HX, will say as follows:
1. The facts and matters referred to in this statement are, unless otherwise indicated, of my own knowledge
based on information supplied to me or
based on enquiries I have made. The same is true to the best of my information, knowledge and
belief. Where the facts or the matters referred to in this statement are not within my own knowledge, the source of the information is stated.
[BRW Translation: I'm making this up as I go along, and have a deep faith that you won't notice my lack of a Paddle as I head up this creek]
2. I make this statement in support of Capital One Bank (Europe) plc’s (“the Defendant”) defence of Mr (“the Claimant”) claim. [
because they pay me to write this guff, and I don't want to be made redundant]
3. I work as a Legal Specialist in the Consumer Lending team within the Defendant’s Legal Department [
my specialist subject is fiction]. The team comprises 6 lawyers and 5 legal specialists [
and a right slippery bunch we are too].
4. The Claimant entered into his credit agreement for a running-account credit facility with the Defendant when he signed his credit agreement on 2 September 2003 [
I mean Application Form, but if I keep saying Agreement enough times, I may get away with this]. The account was subsequently opened on 18 September 2003.
5. The Claimant applied for his credit card by responding to a
direct mailing application pack which had been sent to him by the Defendant. The application pack
would have contained the credit agreement in the format attached at Exhibit “WS1” and
would have consisted of:
I. The
signature page of the credit agreement to be signed and returned, and which in turn included:
i. a section headed ‘Ultra Short Application’ for the Claimant to complete his personal details:
ii. a separate declaration under the heading “Credit Agreement Regulated by the Consumer Credit Act 1974” [
incorrect Heading] and stating that the applicant (the Claimant) had read and agreed to be bound by the full
terms and conditions of the credit card agreement with Capital One. On the reverse of this document underneath the heading “Consumer Credit Agreement regulated by the Consumer Credit Act 7974 [
incorrect Heading, again, and how does Mistress StarrShip know what was on the reverse?]. These terms are taken from Clauses 8, 10 and 23 of the
terms and conditions that you sign with us”, there
would also have been an extract of the key terms of the credit agreement including the prescribed terms for the purposes of Consumer Credit (Agreements) Regulations 1983; and
iii. a place for both the Claimant and the Defendant to sign the credit agreement on the front.
II. A further document headed “Credit Agreement Regulated by the Consumer Credit Act 1974 -
terms and conditions” containing the full terms and conditions of the credit agreement. This document was referred to in the declaration on the signature page of the credit agreement (referred to at section I.ii above) which the Claimant signed. This document also formed the copy agreement for the Claimant to keep.
Together, the documents referred to at section I and II above and being Exhibit WS1, formed the original credit agreement [
do they really, prove it].
6. In addition, when the Claimant received his credit token (credit card) he
would also have received a further copy of the credit agreement. This copy comprised the document to which the credit card was attached and which
would have contained the financial particulars relating to the credit agreement and a leaflet containing the rest of the terms of the credit agreement.
7. It is acknowledged that the Defendant’s Defence dated 28 May 2008 did not clearly set out that it is in fact the documents referred to at both sections I and II above (Exhibit WS1 to this Witness Statement) that together formed the Claimant’s original credit agreement (although all these documents were exhibited to the Defence). I believe that this is the reason why the Claimant has alleged that the Defendant has not provided him with a copy of his original credit agreement. However, Exhibit A of the Defence clearly states that the terms enclosed on the reverse of the signature page of the credit agreement are ‘taken from Clauses 8, 10 and 23 of the Terms and Conditions that you sign with us….‘ For further clarity I will state that it is in fact both Exhibits A and B of the Defence that form the Claimant’s original credit agreement.
8. It is the Defendant’s belief that the documents at Exhibit WS1 together
embody [
the CCA says nothing about embody] the terms of the credit agreement and
contain [
prove it] all the prescribed terms in accordance with the Consumer Credit (Agreements) Regulations 1983. namely: details of the credit limit (by including a statement that the creditor will set and notify the debtor of the credit limit as permitted by the regulations), rate of
interest and payment terms.
9. The Claimant contends that the credit agreement does not contain any of the prescribed terms [
no, the Application Form doesn't, there's a big difference between the two]. The Prescribed Terms for the purposes of section 61(1) (a) and 127(3) of the Consumer Credit Act 1974 (“the CCA”) are set out in Schedule 6 of the 1983 Regulations. The relevant terms for a credit card (running-account credit facility) are:
a. a term stating the credit limit or the manner in which it will be determined or that there is no credit limit (which can be expressed as a statement that the credit limit will be determined by the creditor from time to time under the agreement and that notice of it will be given by him to the debtor pursuant to Schedule 1 of the 1983 Regulations);
b. a term stating the rate of any interest on the credit to be provided under the agreement; and
c. a term stating how the debtor is to discharge his obligations under the agreement to make the repayments, which may be expressed by reference to a combination of the number of repayments, the amount of the repayments, the frequency and timing of them, the dates of them, and the manner in which any of the above may be determined, or in any other way, and any power of the creditor to vary what is payable.
10. The Prescribed Terms are set out in the Claimant’s credit agreement as follows:
a. The required statement relating to the Claimant’s credit limit is stated in Section 10 of the credit agreement (section 2 of the extract of terms on the reverse of the signature page of the credit agreement) headed “Financial and Related Particulars” as “We will set and notify you of the credit limit(s) for your account. We may change your credit limit (s) from time to time and notify you of any change”. [
she's on a roll now, as she is assuming everyone has glossed over the lack of the Original alleged Agreement]
b. The term relating to the rate of interest is also included at Section 10 “Financial and Related Particulars” as follows “Interest will be charged monthly for each statement period (being the period between monthly statement dates) on the average daily outstanding balance including all transactions an other charges debited to the account The current interest rates are shown below. The monthly interest rates are equal to one twelfth of the sum of the Base Rate as at the seventh day prior to the beginning of the statement period, plus for purchases and balance transfers a margin of 22.98%, The margin is 22.98% for cash withdrawals. There is also a handling fee of 1.5% on cash withdrawals (minimum £2). The Base Rate may change from time to time. At the time this agreement was prepared this formula gave interest rates shown below. For those charges in section 11 that are applied to your account, interest will be charged as if they were purchases.
c. The term stating how the debtor is to discharge his obligations under the agreement to make repayments is included at Section 10 as “You must make the minimum payment by the due date shown on your monthly statement. The amount of the minimum payment will be shown on your Monthly Statement and will be an amount equal to 5% of the new balance or £5.00, whichever is greater. In addition, you must immediately pay any amounts in excess of your credit limit or which are overdue and the amount of any transaction made in breach of this agreement”.
The applicable interest rates at the time the credit agreement was prepared are contained in the table at section 10 of the terms and conditions of the credit agreement (section 2 of the extract of terms on the reverse of the signature page of the credit agreement). The APR is also detailed within this section.
11. The Claimant states that the Defendant has failed to comply with the provision of Section 64 (1) of the CCA 1974 by failing to provide him with notice of his cancellation rights. The terms relating to cancellation are set out in the credit agreement as follows:
a. The signature page of the credit agreement (contained within Exhibit ‘WS1’) includes the statement “Your Right to Cancel” “Once you have signed this agreement you will have for a short time a right to cancel. Exact details of how and when you can do this will be sent to you by post by Capita! One.” as required by Regulation 2 (7) of the 1983 Regulations and set out in Schedule 2 Part I.
b. The copy of the credit agreement sent to the Claimant for him to keep (contained within Exhibit WS1) also included a box headed “Your Right To Cancel” which set out the Claimant’s right of cancellation, how and when this may be exercised and the name and address of the person to whom notice of cancellation may be given by the statement “Once you have signed you will have for a short time a right to cancel this agreement. You can do this by sending or taking a WRITTEN notice of cancellation to Capital One Bank (Europe) Plc, PO Box 5285, Nottingham, NG2 3YN...” as required by Regulation 5 (1) of the Consumer Credit (Cancellation Notices and Copies of Documents) Regulations 1983 and Part II of the Schedule thereof,
c. In addition, the Claimant
would have been provided with a further copy of the credit agreement when he received his credit card (credit token). This further copy comprised a document to which the card was attached which
would have contained the prescribed terms relating to the credit agreement and a leaflet containing the rest of the terms of the credit agreement including the Claimant’s right to cancel and a Cancellation Form as required by Regulation 5 (2) of the Consumer Credit (Cancellation Notices and Copies of Documents) Regulations 1983 and Part Ill and Part IV of the Schedule thereof
12. The Claimant contends that the credit agreement does not contain the required reference to charges on default as required by the 1983 Regulations Schedule 1(22). Pursuant to Schedule 1(22) the credit agreement should include an indication of any charges payable to the Defendant by the Claimant if he breaches the Agreement. This is satisfied by the statements in Section 11 of the credit agreement which contains a power to enforce charges on various incidents of default. The credit agreement also sets out the level of those charges. [
she's assuming we now accept what would've been there]!
13. The Claimant states that the Defendant is in breach of Section 78 of the CCA by failing to provide him with a copy of his original terms and conditions in response to a request submitted under Section 78. The Defendant’s Executive Response Team received a request under section 78 of the CCA from the Claimant dated 11 April 2007 and the Defendant’s Executive Response Team responded on 1 May 2007. A copy of the Claimant’s request and the Defendant’s response is attached at Exhibit “WS2”.
14. The Claimant wrote to the Defendant again in a letter dated 27 April 2007 to say that he had only received a copy of his application form. On the 16 July 2007 the Defendant replied and advised that it would send the documents out again and that they would be sent separately. The correspondence is attached at Exhibit “WS3”.
15. It is the Defendant’s
belief [
you gotta have faith] that the Claimant
will have received the signature page of his credit agreement together with the current terms and conditions of his credit agreement. Indeed this has been acknowledged as having been received by the Claimant in paragraph 1 of his Reply to the Defence dated 12 June 2008.
16. The Claimant has stated that he had received a copy of what he has referred to as his application form and in addition had received separate terms and conditions, that are entirely different from the terms and conditions that the Defendant now claims are applicable. This is not the case as originally the Claimant made a request under Section 78 of the CCA and not a copy of the original terms and conditions of his credit agreement, which is the documentation attached at Exhibit “WS1”. [
eh? What does that mean?]
17. Under Section 78 of the CCA a creditor is obliged to provide the debtor with a “copy of the executed agreement (if any) and of any other document referred to in it” if the debtor requests this in writing and pays a £1 fee. Regulation 3 of the Consumer Credit (Cancellation Notices and Copies of Documents) Regulations 1983 states that “every copy of an executed agreement” shall be a “true copy”. However, there may be omitted from such certain information including the signature box, signature and dale of signature and name and address of the debtor. Pursuant to Regulation 7 of the Consumer Credit (Cancellation Notices and Copies of Documents) Regulations 1983 where an agreement may be unilaterally varied [
how do we know it can be unilaterally varied then?], every copy of the “executed agreement” given to the debtor shall include the terms of the credit agreement as varied. As a result, in providing the Claimant with a copy of the terms of his credit agreement as varied at the date of the response to the section 78 request, the Defendant has complied with the provisions of Section 78 of the CCA [
this is logic Jim, but not as we know it]
18. On the basis that the Defendant has provided the Claimant with a copy of both the original credit agreement that he signed in September 2003 and a copy of the terms and conditions of his credit agreement as varied at the time of the section 78 request, I consider that the Claimant has fulfilled its obligations to the Claimant and that the Claimant has no further claim against the Defendant. There remains in place an enforceable agreement between the parties. [
she would say that, now wouldn't she! It's her Job after all!]
Statement of Truth [
even though she probably wasn't there anyway, and would never have been involved in the issues, and has no idea who was there at the time either!]
I
believe that the facts stated in this witness statement are true. [
all start signing the Chorus Line...you gotta have faith!]
Wendy StarrShip Enterprise
Dated this 27th day of November 2008
Davey77 vs Capital One *** WON ***
-Any advise I give is based purely on my own experience. It should not be solely relied upon as I am NOT a legal expert and any major decisions you make should not be based on my opinion alone -
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