The recent county court case of Arrow Global V Frost seems quite interesting . This is a case where the absence of a signed agreement on a pre 2007 credit card has been overcome and the debt enforced.

The agreement can be found in post 4 below . Thank You Citizen B

It seems quite obvious that the Judge did not believe the defendant but another important point seems to be his view on date of service of a DN.

Thought people might like a look as it shows the importance of having a credible version of events in court .

I find it quite worrying for consumers especially as there was no leave to appeal.

Any comments?

I fail to see how a dn barely out of the printer can be deemed to be served. the judge even ruled against the "together with " argument in reply to a cca request. The problem seems to me to be the credibility of the defendant and the impression made by her and her husband on the judge

me thinks its more to do wit them trying to put a rankine act.

dx

[ATTACH=CONFIG]49453[/ATTACH]

The Frost Judgment that fletch refers to ^^^^^^^^

Although I have only skimmed this it would appear that Alison Frost did not come over as a credible witness.

IMO The judgment shows up may misconceptions that you see on here and elsewhere.

First is that an agreement cannot be enforced if there is no actual copy present, plainly it can. If you are going to use the fact that the creditor cannot produce the agreement then you must also make a statement that either there was never an agreement or that there was some defect in the execution in addition to the missing document.

Secondly that a minor defect on a default notice cannot be considered as de-minimis after the Brandon appeal. As illustrated here, all the Brandon case showed was that the minor defect should not be dismissed without consideration, it can still be considered as irrelevant by the judge dependent on the facts of the particular case.

Then there is the matter of the section 78 copy, in Roberts was held that all the documents must be sent together, where as here the judge was quite content that the copies were sent at different times.

I think that if you compare this case with say Harrison one of the main things that hits you is the attitude of the judge towards the debtor, in Harrison he was much more sympathetic, in this case he seemed(reading between the lines) almost annoyed that the debtor was using the technical points in order to avoid payment. A lesson to anyone considering challenging an agreement, try and get the judge on side, stress the prejudice incurred rather than depending on technical defenses. IMO

I fail to see how a dn barely out of the printer can be deemed to be served. the judge even ruled against the "together with " argument in reply to a cca request. The problem seems to me to be the credibility of the defendant and the impression made by her and her husband on the judge

I couldn't agree more although I can see the argument that it was served in time if the evidence about the service offered by UK Mail was true

me thinks its more to do wit them trying to put a rankine act.

 

dx

If that is the case then it is something that needs addressing as Judges should be impartial and not interpret the law on a whim. By refusing the right to appeal he is acting way beyond his authority IMHO

[ATTACH=CONFIG]49453[/ATTACH]

 

The Frost Judgment that fletch refers to ^^^^^^^^

Thank you Citizen B

Dodge

I agree with almost all of what you said, especially the part about needing to make an affirmative statement. It does concern me that the issue of the DN was treated so lightly. I think that there was evidence to show that the DN was issued in time however as said above I think the Judge was out to make a point and if you say that 2 days is de minimus where does it stop. The CCA says 14 days, if we allow 12 days , sooner or later that will be accepted and then someone will say , well 11 days is only 1 more day short , what does that matter.

Most of the DN's that I have are bad due to different reasons, in most cases it is the wording that is incorrect and not the remedy time e.g 14 days from the date of this letter does not fulfill the act.

On the subject of the S78 request I think it will be rare that the documents are sent "almost together". In my experience everything is sent at the same time or in two cases a gap of many months .

Overall though I think it will be a blow for those that think blagging is a safe idea and as time gets closer to their SB dates there will be many more claims forthcoming. I hope for the sake of some of the people I know this is not the case, however I fully expect that should I become solvent in the next 4 years it will happen to me.

I think many misunderstood the Brandon appeal regarding DNs. The appeal was against a summary judgment, it did not mean that a DN defect could not be regarded as de-minimis, it just meant that the defense could not be summarily dismissed, it had to be considered, a judge could still disallow it, as happened here.

It makes a nonsense of the regulations/law which state that there is a statutory/mandatory 14 days to be allowed from date of service. There is then information regarding mailing dates in both CPR and the Tax Manual.

So to be considered..

These DNs are automated - generated by computer - with the variables amended as required. It would appear there is no "human" input - so how can they be absolutely certain that one was generated - one was mailed. As a lot of these are printed off overnight, then they will almost certainly not go out in the post till the following day. Again, with no human input and no record of mailing, how can anyone be sure - please dont say because "this is our procedure" or " because it is recorded on our logs". Or "please believe us because we are a trusted institution". Banks have we know, been making mistakes, telling fibs, and generally making a mockery out of the system for years.

We know for sure there is NO next day delivery for UK Mail - proof of this was provided by Mr Harrison in Harrison v Link - his solicitor actually wrote to the Head of UK Mail - I believe there is some information on one of the older threads regarding this.. I will do my best to locate that.

MBNA / Link we know for sure use a 2nd mail service. As do many other banks. I wrote to my Mortgage provider and asked why it took 10 days from the date of their letter/statements to the receipt of those.

Documents printed by computer - sent to mailing house for enveloping - sent to a different section to be mailed !! UK Mail 2nd class post used. ... 10 days !!!

I know, and Harrison is mentioned a lot regarding DN issues. But in fact if you look at the judgment, the judge only made a passing remark regarding default notices, saying something like, yes well there can be no enforcement on a bad notice but a bad one can be replaced by a good one.

There are a lot of DN defenses going on on here and elsewhere, people calculating delivery times. I sometimes wonder just how effective they are in reality.

Dodge

Why do I have to agree with you, it's so annoying !

As you say all that Brandon tells us is that they can not be automatically dismissed.

Citizen B

I hope you aren't saying that we can't trust the banks. I always thought they were full of honest people

I get letters all the time with dates on that are several days prior to delivery and they are often with UK mail which is why I keep important envelopes and write dates on them.

I think that this judgement has made a mockery of the system although given the evidence I do think I would have discounted the defendants memory. That doesn't though give the Judge the right to try and rewrite the law. I suppose if this case gets used by claimants in other actions his name will become well known ..make of that what you will

Yes, my first thoughts were that there was a bit of self promotion going on here,rather too many, if I am wrong on this ,I'm still right anyway

A lesson to anyone considering challenging an agreement, try and get the judge on side, stress the prejudice incurred rather than depending on technical defenses. IMO

And ones husband if they are going to have them act as a credible witness!

Seems pretty much like the case was doomed from the start and what little there was to put advance on was lost in the unreliability of Mrs. Frost and the exaggeration of her defense.

Yes, when the only thing you can remember is that there was no signature box it is not convincing.

Speaks volumes when the husband can't be bothered to listen to the wife, no why might that be?

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