Brilliant. Thanks for everything Andy. Will update tomorrow

Back from Court. Did not go quite how I thought it would:

Judge breezed past the point on why the stay should be lifted and said she could see no reason why it shouldn't be, despite the previous judge's statements. She then jumped straight into the main reasons of my defence, namely the unsigned agreement and the lack of a default notice.

The 'tickbox' agreement - the claimant brought up Bassano vs Toft 2014 EWHC327 which found that an electronic signature was sufficient proof of the agreement by the signee. The judge agreed with him that this was sufficient despite the points I reiterated.

The default notice: The claimant maintained that as the original agreement ran it's course, a default notice was not required. At first it seemed as if the judge was going to agree, but I cited section 87 of the CCA and she sat reading for quite a while. She said as the last £1 payment was made in 2009, clearly there had to be a breach of the agreement, which then falls under sec 87, but also under sec 86 the debtor was obligated to issue the defendant with a notice of arrears and the sums involved. Neither were provided by Egg to the claimant which means that 86d could be in affect.

So I have just over 2 weeks to pull together a particularised defence on this basis and why the loan is unenforceable and said it had to be quite detailed. She requested that if either of us could find any other case authorities that would be helpful as she noted that it does appear that there are noticeable gaps in the claimant's paperwork and would like to see if this has been raised previously. Once submitted, the claimant would have the chance to respond before it being fast tracked to trial, with costs reserved. The last thing the judge said was that given the costs, she strongly advised me to get legal advice on this matter.

So it was a bit of a rollercoaster hour in which at times I felt slightly out of my depth. But interested in any thoughts on where this currently is and if there are indeed any other case authorities specifically on the sec 86/87. Thanks

You should have breezed back at her and stated forget lifting the stay...this application is also requesting Summary Judgment which the claimant has failed to state on what basis this application relies on.....as picked up by the previous District Judge xxxxxxx ?

Anyhow I suppose we can only assume their application is denied as the claim is progressing now.

" She said as the last £1 payment was made in 2009, clearly there had to be a breach of the agreement, which then falls under sec 87, but also under sec 86 the debtor ...the creditor....was obligated to issue the defendant with a notice of arrears and the sums involved. Neither were provided by Egg to the claimant which means that 86d could be in affect."

" So I have just over 2 weeks to pull together a particularised defence on this basis and why the loan is unenforceable and said it had to be quite detailed."

So the onus is on you with a detailed defence and not the claimant to detail why their claim is enforceable ?

Section 86b CCA1974 is quite clear not sure why she requires case authorities which are irrelevant at County Court level ?

Well done on holding your corner though.

Andy

Also Section 86b applies to this claimant not just Egg...

(2)The creditor or owner—

(a)shall, within the period of 14 days beginning with the day on which the conditions mentioned in subsection (1) are satisfied, give the debtor or hirer a notice under this section; and

(b)after the giving of that notice, shall give him further notices under this section at intervals of not more than six months.

I did attempt that point about the previous District Judge but I fumbled it a bit.

Yes, the onus is on me to provide a detailed defence of why I feel the claim is unenforceable by 4th Feb, then the claimant can respond to it. Interesting on the irrelevancy of case authorities - not sure why - she asked for that when the claimant seemed a bit stumped on how to reply to the arrears point, saying she was concerned at the gaps in the paperwork. Wow that's pretty clear on 86b.

Do you think there's anything further worth adding about enforceability of the tickbox agreement, or is that now moot and just fully focus it on default notice/lack of arrears notification?

is it also worthy to point out that had it not been for all the wrangling and funny business by the claimant, Claim Issued 23rd April 2014, which halted the SB clock , that this debt would now be well statute barred?

I did attempt that point about the previous District Judge but I fumbled it a bit.

 

Yes, the onus is on me to provide a detailed defence of why I feel the claim is unenforceable by 4th Feb, then the claimant can respond to it. Interesting on the irrelevancy of case authorities - not sure why - she asked for that when the claimant seemed a bit stumped on how to reply to the arrears point, saying she was concerned at the gaps in the paperwork. Wow that's pretty clear on 86b.

 

Do you think there's anything further worth adding about enforceability of the tickbox agreement, or is that now moot and just fully focus it on default notice/lack of arrears notification?

Well she stated a defence particulrasied as to why the agreement is unenforceable...so you will have to cover that again and also bring the points she raised.

OK thanks for the pointers guys. Will work on that this week and post up when done. Much appreciated.

Hi - I'm working to finish my first draft of my defence today. Trying to get my head around 86/87 so apologies if I've missed something obvious here. The claimant made the point in their WS and in Court that a default notice is not applicable:

"The duration of the loan was a maximum of 84 months from 6 December 2006. This would have meant that the agreement was due to end on or around 6 December 2013. Therefore, there was no actual requirement to terminate the agreement or to demand earlier payment of any sum. If the notice is not valid the limit of the claimant's claim can only be the value of the loan payments and interest due up to the date of the court hearing - Woodchester v Swain 1999 which in this case is the full sum due"

I'm trying to tally that with Sec87 -

Service of a notice on the debtor or hirer in accordance with section 88 (a “default notice ”) is necessary before the creditor or owner can become entitled, by reason of any breach by the debtor or hirer of a regulated agreement

(a)to terminate the agreement, or

(b)to demand earlier payment of any sum, or

©to recover possession of any goods or land, or

(d)to treat any right conferred on the debtor or hirer by the agreement as terminated, restricted or deferred, or

(e)to enforce any security.

So they're saying there's no breach as this situation isn't covered in a) or b). Is non payment of debt/instalments covered in any of the other 3 categories?

Could you point me to the post which contains their first statement?

Post 94 containing their original WS from last year. Point 18. This is almost verbatim what they said in Court

Post 148 contains their latest WS (Point 3)

"This would have meant that the agreement was due to end on or around December 2013. Therefore there was no actual requirement to either a) terminate the agreement b) demand earlier payment from any sum. The money was due in any event under the agreement and there was in fact no actual requirement to serve a default notice on you. We therefore do not consider that the absence of a default notice has any impact on our client's claim"

I will run through this with you tomorrow

" The default notice: The claimant maintained that as the original agreement ran it's course, a default notice was not required. At first it seemed as if the judge was going to agree, but I cited section 87 of the CCA and she sat reading for quite a while. She said as the last £1 payment was made in 2009, clearly there had to be a breach of the agreement, which then falls under sec 87, but also under sec 86 the creditor was obligated to issue the defendant with a notice of arrears and the sums involved. Neither were provided by Egg to the claimant which means that 86d could be in affect. "

The above to focus on the Judges view.

The claimant clearly states in its statement at point 8 that a default notice was issued due to a breach of the agreement and subsequently terminated the agreement as at 18th March 2008....and furthermore you made 2 payments of £1 3rd and 8th of Nov/Dec.

At point 16/17 /18...this is were the twaddle starts.... the claimant states again that a default notice was served...the agreement commenced 6th Dec 2006 with 84 payments and that no default notice was necessary as the agreement had run full term. (last payment due 6th Dec 2013).They terminated the agreement as of March 2008 so the agreement had not run full term..... and as they concur a default notice was therefore issued....which they cant disclose...nor can they disclose Notices of Sums in Arrears sec 86d...which must be provided annually as per CCA1974.

So they contradict ...which is were the judge has picked up on.

Therefore section 87(1) sections 88 and section 86d come into play.

Andy

Ah I see now. Thanks Andy that *really* clarifies the issue and cuts through their smoke and mirror routine. I'll add this into my draft defence when I'm back home tonight and post it up.

Much obliged.

I've put together my first draft. I couldn't find much similar text from previous posts on the forum so I've winged it a bit but tried to keep a story flow to it - Background - Default Notice - Arrears - Time Period - Summary.

I also couldn't find any argument to counter the Bassano v Toft tickbox point given that the loan was signed in 2006, so I've left that off.

Thanks again for the DN clarification, Andy - it was incredibly illuminating.

WS2 Draft.pdf

Point 6 requires attention..they didn't state there wasn't a breach..in fact they stated further that payments of £1 was made on x and y.

At point 16/17 /18...this is were the twaddle starts.... the claimant states again that a default notice was served...the agreement commenced 6th Dec 2006 with 84 payments and that no default notice was necessary as the agreement had run full term. (last payment due 6th Dec 2013).They terminated the agreement as of March 2008 so the agreement had not run full term..... and as they concur a default notice was therefore issued....which they cant disclose...nor can they disclose Notices of Sums in Arrears sec 86d...which must be provided annually as per CCA1974.

I'm almost certain they were arguing in Court that there wasn't a breach, but it's not in either of their WSs.

I've merged points 6 and 7 to take account of this. I've also put the Notice of Arrears in points 7 - 9 and tried to cover all the specifics the judge raised.

WS Draft 2.pdf

Thats why its irrelevant...verbatim in court is not evidence.....only what they state and rely upon in their statements.

Your point 4.....

“If the notice is not valid, the limit of the Claimant’s claim can only be the value of the loan payments and interest

due up to the date of the Court Hearing”

Where are you getting this from ?

Understood.

That was in point 18 of their first WS - screenshot attached

Okay...well your response to that I have posted twice.....which should be inserted into your point 4.

The claimant states again that a default notice was served...the agreement commenced 6th Dec 2006 with 84 payments and that no default notice was necessary as the agreement had run full term. (last payment due 6th Dec 2013).They terminated the agreement as of March 2008 so the agreement had not run full term..... and as they concur a default notice was therefore issued....which they cant disclose...nor can they disclose Notices of Sums in Arrears sec 86d...which must be provided annually as per CCA1974.

If you refer to the T&Cs of the actual agreement and in the event of a breach...it should clarify what the creditor would do in that instance...fixed credits agreements are different to rolling credit...and default procedures can vary...in some instances the full amount becomes repayable on demand.

OK thanks - I've removed what was in 4 and 5 and inserted your paragraph.

This is a Fixed Term Credit Agreement, as stated in the WS. The only thing I can find on a breach in the T&Cs is a list of charges in the event of breaking the term of the agreement to cover costs and this:

3.1 We may refuse to make the loan available or if you have already received the loan demand repaymeny of the ful amount you owe us if *you fail to pay on its due date any amount payable to us under this agreement or *you fail to comply with any of the other terms

3.2 "Before demanding early repayment under clause 3.1 we will send you a Default Notice under the CCA"

Do I need to lay out the process of the Notice of Sums in Arrears as in Pts 7-9 or is it too much detail?

No the judge is fully aware of how a Notice of sums in arrears applies...or should be...she did raise it.

Ok I've removed those 3 paragraphs and put in one about the T&Cs. Tidied it up a bit

WS Draft 3.pdf

Just a few tweaks in red

5. The claimant states in both its statements that a default notice was served...the agreement commenced 6th Dec 2006 with 84 payments and that no default notice was necessary as the agreement had run full term. (last payment due 6th Dec 2013).They terminated the agreement as of March 2008 therefore the agreement had not run full term..... and as they concur a default notice was therefore issued....which they cant disclose...nor can they disclose Notices of Sums in Arrears sec 86d CCA1974...which must be provided annually....which they confirmed at the last hearing.