Hi gh,

I made some notes as the DJ read out his judgment. I'll get them typed up and post up tomorrow.

cheers

Costa

Good Morning All,

Here are the notes from the hearing. I've deciphered them the best I can. Hopefully they explain why the DJ came to his judgment.

The main argument is the validity of the Default Notice.

The DN was clearly produced on 25-09-09

The DN was received on or about 01-10-09

Date for compliance was 12-10-09

If the date of service was on or about 01-10-09 then there were insufficient days to remedy.

If the date of service was on 25-09-09 then there were sufficient days to remedy.

Defendant’s position was that the Interpretation Act (s7) applies to the service of a DN.

The issue in question is whether s7 applies to the CCA 1974 or whether a contrary intention appears in the CCA 1974.

s88(1)b of CCA 1974 gives that the DN must contain the remedy and a date, s88(2) says that there is a requirement for 14 days.

s176 CCA 1974 (Service of Documents) gives (1) and (2) that DN sent/delivered and (3) sent by post.

s189 CCA 1974 (Definitions) gives that ‘serve on’ means to deliver or send.

Claimant argues that these provisions make it clear that there is a contrary indication.

Claimant quotes Goode (Consumer Credit) – s76 Notice – refers to s176 of CCA 1974 and gives a meaning of ‘mode of service’.

DJ was surprised that there are no references to DN in Goode after the CCA 1974 is 36 years old.

The accumulative definition of ‘properly served’ from s176/189 gives a contrary term.

However, this is awkward due to s88(2) gives that there must be 14 clear days.

What is the date of service? s176/189 gives a contrary meaning and therefore Interpretation Act s7 does not apply and therefore DN is valid due to service is deemed to have occurred when the DN is put in the post.

If any elaboration is needed I'll try and provide it.

Cheers

Costa

Hello well the 2006 amendments clearly state 14 days to remedy the default.

and THERE IS mention of service of a DN in Goode - it was quoted a page ago in the posting originally by PT. very naught of the other side to say that ....

IMHO you have *very* good grounds for an appeal

were there *any* other points in your defence - this is important as your defence was struck out as having no prospect of success - this didn't even go to trial which means that there was not a single valid point!!! Were there any problems with the original agreement - I can't believe it was perfect ...

I have also asked the Site Team to have a look again and comment now the notes are up

Hello well the 2006 amendments clearly state 14 days to remedy the default.

Yes, that isn't in dispute.

The dispute is when that 14 days starts

The DJ has just ruled that the 14 days starts when the CLAIMANTS PRODUCES THE DN *NOT* when the debtor receives it!!!

That's the crux of the matter gh. The DJ never questioned the 14 days. It was down to when the 14 days commenced. So in this case the DJ said that the 'clock starts ticking' from when the DN was put in the post, not when the DN was received. There were no other arguments as the argument for Unfair Relationship stemmed from the invalid DN. DJ also commented that if the DN was faulty then the Unfair Relationship did not exist due to the fact that there was no relationship between the Claimant and Defendant because they had terminated the agreement on the back of a faulty DN (makes sense I hope)!

Costa

Under the Interpretation Act 1978 Section 7, it states:

Where an Act authorises or requires any document to be served by post (whether the expression "serve" or the expressions "give" or "send" or any other expression is used) then, unless the contrary intention appears, the service is deemed to be effected by properly addressing, pre-paying and posting a letter containing the document and, unless the contrary is proved, to have effected at the time at which the letter would be delivered in the ordinary course of post."

Practice Direction

Service of Documents - First and Second Class Mail.

With effect from 16 April 1985 the Practice Direction issued on 30 July 1968 is hereby revoked and the following is substituted therefore.

1). Under S7 of the Interpretation Act 1978 service by post is deemed to have been effected, unless the contrary has been proved, at the time when the letter would be delivered in the ordinary course of post.

2). To avoid uncertainty as to the date of service it will be taken (subject to proof to the contrary) that delivery in the ordinary course of post was effected:-

(a) in the case of first class mail, on the second working day after posting;

(b) in the case of second class mail, on the fourth working day after posting.

"Working days" are Monday to Friday, excluding any bank holiday.

3). Affidavits of service shall state whether the document was dispatched by first or second class mail. If this information is omitted it will be assumed that second class mail was used.

4). This direction is subject to the special provisions of RSC Order 10, rule 1(3) relating to the service of originating process.

8th March 1985

J R BICKFORD SMITH Senior Master

Queen's Bench Division3.

http://www.opsi.gov.uk/revisedstatutes/acts/ukpga/1978/cukpga_19780030_en_1

Service of documents;

http://www.justice.gov.uk/civil/procrules_fin/contents/parts/part06.htm

http://www.kingstreetchambers.com/pdf/articles/civil/part6_102008.pdf

Hi Cerberusalert

Yes, that was *exactly* what Costa argued - the DJ said that the Interpretation Act did NOT apply to the service of DN and so threw out the defence.

WAS THE DJ WRONG IN THAT DECISION?????

that ...... is the question we all want answers to

He's gone against the Practice Directions as made by J R BICKFORD SMITH Senior Master Queen's Bench Division3 which applies to all legal documents served under any Act. As a DN is a legal document it should be included.

From s7 of the Interpretation Act 'unless the contrary intention appears'. This is what they argued, and that is what the DJ agreed with. That the CCA 1974 s176/189 gives a contrary intention and that s7 therefore does not apply! I believe this to be the heart of their argument. Or am I incorrect?

Costa

From s7 of the Interpretation Act 'unless the contrary intention appears'. This is what they argued, and that is what the DJ agreed with.

Yes, the Practice Direction would only seem to apply if the Interpretation Act applies.

If the DJ has ruled that the Interpretation Act does not apply then neither does the PD

What you need is whether the Interpretation Act DOES apply or NOT

IIRC there was a quote from a post by PT a page or so back that included a quote from what looked like Goode that answered this exact question.

Without Goode it is difficult - if Goode says the IA does apply (as it would seem to from the quote) then I would say an appeal is on

Costa did have the PD in his defence

I believe gh is referring to post #613 which contains PT's quotes.

But the Interpretation Act does apply;

Where an Act authorises or requires any document to be served by post (whether the expression "serve" or the expressions "give" or "send" or any other expression is used)

This becomes more and more difficult with some sections of the judiciary setting out what can only be regarded as perverse judgements. Any right minded Judge would know the Interpretation Act applies. I am beginning to wonder just what the CCA is there for as the Judges are making up their own laws as they go.

But the Interpretation Act does apply;

What the DJ was persuaded to rule on was that provision within the CCA namely S176 & S189 as they were specific to the CCA then they 'overrode teh more general Interpretation Act.

I'm not arguing with you - far from it - it was partly my advice (quoting the exact same text as you) that got Costa in this mess .......

Before this, I had never heard of this argument - and IMHO it is vitally important, not only for Costa, but CAG in general that this is sorted as once this ruling becomes well know, although it is not precedent it would be a very easy argument for lots of creditors to use.

Here are Costa's notes again

• Defendant’s position was that the Interpretation Act (s7) applies to the service of a DN.
  
• The issue in question is whether s7 applies to the CCA 1974 or whether a contrary intention appears in the CCA 1974.
  
• s88(1)b of CCA 1974 gives that the DN must contain the remedy and a date, s88(2) says that there is a requirement for 14 days.
  
• s176 CCA 1974 (Service of Documents) gives (1) and (2) that DN sent/delivered and (3) sent by post.
  
• s189 CCA 1974 (Definitions) gives that ‘serve on’ means to deliver or send.
  
• Claimant argues that these provisions make it clear that there is a contrary indication.
  
• Claimant quotes Goode (Consumer Credit) – s76 Notice – refers to s176 of CCA 1974 and gives a meaning of ‘mode of service’.
  
• DJ was surprised that there are no references to DN in Goode after the CCA 1974 is 36 years old.
  
• The accumulative definition of ‘properly served’ from s176/189 gives a contrary term.
  
• However, this is awkward due to s88(2) gives that there must be 14 clear days.
  
• What is the date of service? s176/189 gives a contrary meaning and therefore Interpretation Act s7 does not apply and therefore DN is valid due to service is deemed to have occurred when the DN is put in the post.
  

Once again that famous quote springs to mind I'm afraid...

"If the law supposes that, the law is a ass- a idiot"

14 clear days to rectify minus the time its stuck in the postal system then!

S.

I'm not arguing with you - far from it - it was partly my advice (quoting the exact same text as you) that got Costa in this mess .......

 

Your advice has been invaluable gh. I chose to accept your advice and sound advice it was and still is. I agree with the Interpretation Act argument and still agree with it today. However, it does not detract from the fact that the DJ did not agree with this argument and found in favour of the Claimant.

GH is correct in saying that this could pose a major obstacle for anyone using this argument in the future. It appears from post #613 of this thread that the contrary intention of CCA 1974 s176/189 has been used as a creditors argument before and it has now been used again. How long before all creditors and their legal representatives jump on the bandwagon and use this argument.

We can go on arguing ad infinitum and still come to the same conclusion that we on CAG prescribe to the Interpretation Act argument (which I still believe to be correct). However, the 'opposition' are now formulating a new argument. Yes, some DJ's, may feel that the Interpretation Act is relevant and therefore 'holds water' because CCA s176/189 do not give a contrary intention. But how many DJ's will say that there is a contrary intention within the CCA and therefore the Interpretation Act is not relevant.

My predicament is not a mess, it just boils down to one of two things. Firstly do I APPEAL? Or, secondly to I just accept the judgment and then submit an application for Variation of Order? I certainly cannot pay it all in one go!

Costa

Once again that famous quote springs to mind I'm afraid...

 

 

 

14 clear days to rectify minus the time its stuck in the postal system then!

 

S.

I think we are all agreed on that - we just need evidence - precedent, a quote from Goode, something other than 'my mates on CAG said this is wrong' for Costa to appeal with.

In English law, a Practice Direction is a supplemental protocol to rules of civil and criminal procedure in the Courts. The Civil Procedure Rules 1998 contains a large number of Practice Directions which give practical advice on how to interpret the rules themselves. The Practice Directions as made by J R BICKFORD SMITH Senior Master Queen's Bench Division3 indicated that service by post had to be taken into account. These directions are totally independent to CCA 1974 or the Interpretations Act.

IMHO, If you read the PD carefully it quite clearly ONLY applies to the term serve wrt the Interpretation Act.

1). Under S7 of the Interpretation Act 1978 service by post is deemed to have been effected, unless the contrary has been proved, at the time when the letter would be delivered in the ordinary course of post.

 

2). To avoid uncertainty as to the date of service it will be taken (subject to proof to the contrary) that delivery in the ordinary course of post was effected:-

yes but in the PD it states; "Where an Act authorises or requires any document to be served by post (whether the expression "serve" or the expressions "give" or "send" or any other expression is used)"

Which covers all Acts.

yes but in the PD it states; "Where an Act authorises or requires any document to be served by post (whether the expression "serve" or the expressions "give" or "send" or any other expression is used)" Covering all Acts.

Sorry, but that is wrong.

Those words appear in teh Interpretation Act and teh full wording - very important here - is this

Where an Act authorises or requires any document to be served by post (whether the expression "serve" or the expressions "give" or "send" or any other expression is used) then, unless the contrary intention appears, the service is deemed to be effected by properly addressing, pre-paying and posting a letter containing the document and, unless the contrary is proved, to have effected at the time at which the letter would be delivered in the ordinary course of post."

my highlight - but it is my highlight that teh DJ applied in this case