PLEASE NOTE THAT THIS GUIDANCE IS RELEVANT FOR AGREEMENTS ENTERED INTO BEFORE 6TH APRIL 2007

Next Retail T/A Next Directory are notorious for failing to ensure that as a matter of procedure they obtain a signed credit agreement which complies with the Consumer Credit Act 1974.

If you never signed an agreement with Next, then you have a complete defence to any claim they may bring against you and in some cases you could sue them for declaratory relief.

Interestingly, Next seem to be raising the "you dont deny having the goods" argument more and more, while on the face of it, it would seem like they are right and are entitled to recover their monies, actually it couldnt be further from the truth.

What they are implying is that you have been unjustly enriched by having goods that you do not have to pay for. This cannot be so, the House of Lords declared such in the leading case of Wilson and First County Trust Para 46-49 of Lord Nicholls of Birkenhead's Judgment

Restitution

 

46. Before considering whether section 127(3) is compatible with article 1 of the First Protocol I must digress to deal with two preliminary matters. The first concerns the legal consequences of section 127(3). When a regulated agreement is rendered irredeemably unenforceable by section 127(3), the lender is unable to enforce the agreement. But does he, quite apart from his (unenforceable) rights under the agreement, have a restitutionary claim against the borrower in respect of the money lent? The parties to the agreement intended the money would be repayable in accordance with the terms of the agreement. Inability to enforce the terms of the agreement does not inevitably carry with it the consequence that the borrower may simply keep the money. Retention of the money, it is said, would be unjust enrichment, for which the appropriate remedy would be an order that the borrower repay what was never intended to be other than a loan. Reliance was placed, by way of analogy, on the decision of the Court of Appeal in Westdeutsche Landesbank Girozentrale v Islington London Borough Council [1994] 1 WLR 938. There a bank paid money to a local authority under an interest rate swap agreement, which was held later to be outside the local authority's powers. The local authority had been unjustly enriched and the bank was entitled to a restitutionary remedy.

 

 

47. A secondary question also arises: if the lender does have a restitutionary claim, is that a matter to be taken into account when considering whether section 127(3) is compatible with article 1 of the First Protocol?

 

 

48. I can deal with these two questions quite shortly, starting with the latter. I am in no doubt that a lender's restitutionary remedy, if he has one, is a matter to be taken into account when considering whether section 127(3) is compatible with article 1 of the First Protocol. The adverse consequences of an alleged infringement of a Convention right cannot sensibly be assessed other than in the round. The real position of the claimant is what matters. If in practice a lender can ameliorate the immediate and directly adverse consequence of section 127(3) by resort to some other right or remedy readily available to him, that is a matter to which the court must have regard. I cannot accept the contrary arguments addressed to the House.

 

 

49. I consider, however, that there is no relevant restitutionary remedy generally available to a lender in the circumstances now under consideration. The message to be gleaned from sections 65, 106, 113 and 127 of the Consumer Credit Act is that where a court dismisses an application for an enforcement order under section 65 the lender is intended by Parliament to be left without recourse against the borrower in respect of the loan. That being the consequence intended by Parliament, the lender cannot assert at common law that the borrower has been unjustly enriched. That would be inconsistent with the parliamentary intention in rendering the entire agreement unenforceable. True, the Consumer Credit Act does not expressly negative any other remedy available to the lender, nor does it render an improperly executed agreement unlawful. But when legislation renders the entire agreement inoperative, to use a neutral word, for failure to comply with prescribed formalities the legislation itself is the primary source of guidance on what are the legal consequences. Here the intention of Parliament is clear.

 

 

 

So, me o'le mates at Next dont seem to have such a strong argument when you consider the above case

Moving back to the issues of enforceability

If you never signed an agreement with Next, then section 61(1) Consumer Credit Act 1974 was never complied with, as a result the agreement (if there actually was one) is improperly executed as defined within section 65(1) Consumer Credit Act 1974

I always make a request for the agreement from Next, they normally write back saying "we cannot locate a copy of your agreement but heres a true copy of what you would have been sent" which in my view means we dont have one, but you will already know that anyway if you never signed one wont you.

If there never was a signed agreement it is clear that s127(3) prevents enforcement and will provide a complete defence to any such claim that Next would seek to bring against you

so, if Next sue you, what options do you have,

Well, personally, if you know you never signed an agreement, then it is not something that i would allow to go to trial as it is merely a waste of the courts time.

I would strike them out and seek summary judgment on the claim, but that is just my personal view and should not be taken as authoritive or legal advice

Grab a N244 application notice

in box 3

An order (a draft of which is attached) that Summary Judgment be granted in favour of the Defendant pursuant to Part 24 CPR and/or the claimant's claim be struck out because the claimant has no real prospect of succeeding on the claim and there is no other compelling reason why there should be a trial.

 

If the claimant wishes to rely on written evidence, he must file and serve copies on each party at least 7 days before any hearing date set by the court.

5. at hearing

6. 1 hour

7 self explanatory

8.District

9. Claimant

Ok Draft order

IN THE XXXXX COUNTY COURT Claim No:

 

 

 

 

BETWEEN:

 

 

[ ]

 

Claimant

and

 

 

[ ]

 

Defendant

 

 

 

draft/ORDER

 

 

Before District Judge sitting in the............. County Court on the ..... day of .....................2009

 

 

UPON reading the Defendant’s Application Notice dated [ ] and the witness statements filed by the parties

 

AND UPON hearing the Claimant and Defendant

 

IT IS ORDERED THAT:

 

1.The Defendant be granted summary judgment and the claim is struck out.

2.The Claimant do pay the Defendant’s costs of the claim, summarily assessed in the sum of £[ ] within 14 days of the date of this order.

 

 

 

dated 2009

 

ok now for the witness statement in support of the application for SJ

IN THE XXXXX COUNTY COURT Claim No:

BETWEEN

I, [NAME] of XXXXXXXXXXXXXXXXXXX will state as follows:

1.[i am a [state occupation or, if none, description, e.g. housewife, retired …] [and the defendant in these proceedings][i am a director of the defendant company and am authorised to make this statement on its behalf]. I make this witness statement in support of the defendant’s application for summary judgment.

2. The matters referred to in this witness statement are within my own knowledge, except where I have indicated otherwise. Where any matters contained in this witness statement are not within my own knowledge, I have stated the source of my information.

3. There is now produced and shown to me a bundle of documents marked “XXXXX 1”. The exhibit XXXXX1 contains copies of the documents to which I refer in this witness statement

4. The Defendant did hold a Next Directory account with the Claimant , the account was a regulated account which was regulated by the Consumer Credit Act 1974. The Claimant failed to ensure that the Defendant signed an agreement before credit was granted to the Defendant or at all.

5.on or around the XXXXX the Defendant wrote to the Claimant requesting that the Claimant supply a copy of the credit agreement. the Claimant confirmed that there was no signed agreement, a copy of the letter is attached exhibit XXX 1

6. It is common ground between the parties that there never was a signed agreement and therefore it is clear that section 61(1) Consumer Credit Act 1974 was not complied with. The sanction for non compliance with s61(1) CCA 1974 is that the agreement cannot be enforced without an order of the court.

7. However, the fact that the Defendant did not sign an agreement in accordance with s61(1) CCA 1974 means that section 127(3) CCA 1974 would operate. The account was opened before 6th April 2007 and therefore even though section 127(3-5) has been repealed by the Consumer Credit Act 2006, the repeal is not effective for agreements entered into before 6th April 2007 as set out within schedule 3 section 11 Consumer Credit Act 2006

8. Accordingly the provisions of s127(3) confirm that no order for enforcement can be made and therefore the agreement is rendered unenforceable, confirmed by Wilson v First County Trust [2003] UKHL 40 and the Claimants claim must fail.

9. i believe that the claimant has no real prospect of successfully bringing the claim and there is no other compelling reason for a trial and therefore i ask the court to grant the relief sought.

10. as a residual issue, it seems that the Claimant is avering that the Defendant has been unjustly enriched by recieving goods or money on the back of an unenforceable credit agreement. this matter is swiftly dealt with by reference to Lord Nichols of Birkenheads Judgment in Wilson and FCT as refered to above. Para 46-50 of the judgment confirms that where the court finds that an agreement is unenforceable, it is not unjustly enriching the debtor , the consequence was clearly the intention of Parliament and therefore it is clear that the argument put forward by the Claimant that the Defendant has had the goods and should pay lacks any real merit and is not able to succeed

11. I therefore request that the court grants the defendant summary judgment in the terms of the draft order attached to the application notice dated [ ].

I believe that the facts stated in this witness statement are true.

Signed ________________________

Dated ________________________

Right, the above witness statement is ONLY A SUGGESTION!!!!!!

you would need to ensure that it is correct as you will be signing a statement of truth and if you knowingly sign this knowing that the contents are not correct you are in a world of trouble with the court!!!!! so read, check, understand what it says and if you are not sure, ASK!!!!!!! Do not fudge it up for the sake of seeking CLARITY

if you decide that the SJ application is not the way to go,

then

you can obviously defend the action.

the actual defence is something that really cannot be templated in my view as each claim is different, but a basic defence that i would use if i were being sued is something along the lines of

1. it is admitted that the Defendant held an account with the Claimant

2. the account was a consumer credit account and was running account credit as defined within s10 Consumer Credit Act 1974.

3.It is denied that the agreement under which the account operated is enforceable against the Defendant for the reasons set out herein

4. the Claimant failed to provide the Defendant with a credit agreement before credit was extended and todate the Defendant has not signed a credit agreement with the Claimant therefore section 61(1) Consumer Credit Act 1974 was never complied with and any agreement is improperly executed as defined by s65(1) CCA 1974 , if the Claimant rejects this contention then the Claimant is put to strict proof of the signed credit agreement which complies with the Consumer Credit Act 1974

5. according to section 127 (3) Consumer Credit Act 1974 The court shall not make an enforcement order under section 65(1) if section 61(1)(a)(signing of agreements) was not complied with unless a document (whether or not in the prescribed form and complying with regulations under section 60(1)) itself containing all the prescribed terms of the agreement was signed by the debtor or hirer (whether or not in the prescribed manner).

6. therefore, as defined within s127, the agreement is unenforceable and the Claimants claim should fail accordingly

7. the Claimant appears to contend that the Defendant has been unjustly enriched. the Defendant denies this is the case and recites paragraph 5 above. in addition the Defendant refers to Para 46-50 of Lord Nichols of Birkenheads Judgment in Wilson and First County Trust [2003]UKHL 40

8 . The Defendant asks that the court exercise its powers under CPR 3.4(2) and strike out the Claimants claim as it discloses no reasonable grounds for bringing the claim and has no prospect of success at trial

Very helpful, thanks PT... Next are giving me grief at the moment so this will come in very handy!!!

SUPERB Thread...!!

Thanks guys,

I think that from my point of view, the quicker you dispose of a claim with no merit the better.

Also if you kill it quick, you wont be allocated to any track so they can be screwed for costs too as even if the debt is small claims material, until its allocated its open to costs

Excellent post PT, this will also be useful for other catalogue companies like littlewoods and JD williams.

Maybe you could sticky a copy of it in the mail order forum?

Would be very good as a sticky in this section..... if possible!!! please

Great thread!

What about accounts opened after the 6th April 2007? Mine was opened in November 2007. They have admitted that they cannot locate a signed agreement (and they never will because I never signed it), but they have said:

"Turning now to your comment that in the absence of a signed credit agreement, a debt cannot be legally enforced. We maintain that we are entitled to ask a court to consider the evidence in any case, and make a judgement accordingly. We fully reserve our right to do this. The debt remainsenforecable with consent and we are not in a position to write this off.

In conclusion I must inform you that we do not agree that you have grounds to dispute the account.

This letter acts as our final response and I have enclose a copy of the Financial Ombudsman Service letter, which details how to contact them should you remain dissatisfied."

If they don't have a signed agreement, then surely they cannot take me to court?

Any advice welcome, as I'm not sure what to do next.

Hi PT 2573

Excellent thread/sticky, subbing for use.

Cheers

AFW

Hi

I was taken to court a few years ago by Next and currently pay £10 a month off the debt, i'm pretty sure I never signed a cca, is there anything I can do about this now? I have a ccj from Next.

thanks

Lisa x