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GaryH last won the day on April 5 2007

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  1. This topic was closed on 10 March 2019. If you have a problem which is similar to the issues raised in this topic, then please start a new thread and you will get help and support there. If you would like to post up some information which is relevant to this particular topic then please flag the issue up to the site team and the thread will be reopened. - Consumer Action Group
  2. Anyone seen this? McGuffick v The Royal Bank of Scotland Plc [2009] EWHC 2386 (Comm) (06 October 2009) Although it's important to note that it deals only with an agreement which is potentially or tempararily unenforceable under s.77, and does not deal with a scenario where an agreement is irredeamably unenforceable under s.127(3) (or is otherwise improperly executed), this judgment is entirely consistant with the principles referred to above, and leads ever more strongly to the conclusion that a lender is within their rights to mark a credit file where the agreement is unenforceable. Having said that, it may well still worth trying to get a default removed initially by badgering the creditor. I definately wouldn't risk litigating on the point though, personally.
  3. Not a lot now, really. Even though Abbey state explicitly in their own terms and conditions that overdrawing beyond an agreed limit is a breach of contract, and dispite the fact they admit that the charges arise from a breach in their defence; since the High Court judgment the law is that they do not in fact arise from a breach of contract. So they could now just amend their defence. Forget penalty/breach of contract - it all comes down to the UTCCR issues now.
  4. Default now removed from all the CRA's files.
  5. Hope the hearing went well liz01. Let us know how you got on. By way of an update - 1st Credit have defaulted my credit file, so because they are unable to prove the existance of the supposed 'debt' I will shortly be filing a claim to remove the default. I'll update the thread as and when.
  6. Incidentally when you apply to lift the stay you can request that the stay on the part of the claim relating to the personal account remains in place and the business account part proceeds on its own. It doesn't have to be all or nothing.
  7. The claim in that case will be allocated to the multi-track, where there is a duty of disclosure. So yes, they will have to disclose the t&c's and the costs of the charging process at disclosure stage. However I think they'll be very reluctant to disclose the latter, so they may seek a preliminary ruling on whether the terms are capable of being penal first. If they are not, then the costs are irrelevant and your claim fails. Without seeing the t&c's its not clear what assistance the High Court judgment on penalties will be to your case, which is why its completely unreasonable of Cobbetts not to provide them asap. I assume then that you are also relying on the Limitations Act arguments in respect of the older charges? As I think I alluded to a while back, this claim is very risky given your costs exposure and you should probably give some serious thought as to whether you want to attempt to settle. If it gets to the stage of an application to lift the stay, all you need is a simple application on a form N244 form for a) to lift the stay (briefly explaining why in part C) and b) for a response to your part 18 in particular the t&c's (again, breifly explaining in part C why its so important to have sight of them asap).
  8. Yes I'm very well thanks. Still here, although unfortunately I haven't been able to commit the sort of time to CAG recently as I used to, so to be honest I'm a little bit out of the loop with it all. The letter re the part 18 can be disclosed. Am I right in thinking that the charges all relate to a business account? If so, when does the stay expire? As far as I am aware there was a ruling from the High Court that certain Natwest terms in use beteen 2001 - 2003 are capable of amounting to penalties, but no others (obviously business account terms were not considered). Are the bank appealing on this point? If not then I can't see any reason your case should remain stayed. The remainder of the test case will relate solely to the UTTCR which is irrelevant and the outcome will be of no assistance to business accounts whatsoever. The outcome of your claim all depends on the account terms. As the matter is fast track, even notwithstanding the fact that you have requested them under the p18, they have a duty of disclosure which obliges them to disclose all relevant documents anyway. I would write a strongly worded letter telling them that they have a duty to disclose the documents you have requested, and that costs are being incurred, and court time wasted, wholly unnecessarily by their unreasonable refusal to comply with the rules. Tell them that you appreciate the matter is currently stayed, but in mind of the overriding objective you expect them to be provided nonetheless. Give them 21 days to clarify their position and tell them that if you do not hear from them, given that the remainder of the test case is irrelevant to business accounts, that you'll make an application to lift the stay and for a response to your part 18 and seek your costs on the indemnity basis. You may also wish to make a part 36 offer in a seperate letter. If they don't respond, then subject to someone correcting me on my understanding of what the remainder of the test case will (and will not) determine, then you may wish to think about applying to remove the stay.
  9. True but Cobbetts are on record as acting for them so any p18 requests, etc need to be made through them. Although, I suppose you may be able to circumvent Cobbetts and just go in to the bank and ask for them? If they ask what its for just make something up. Worth a try (apologies if you've tried that already!)
  10. Hi Dolly. In principle, if you need a replacement vehicle while yours is of the road then the reasonable cost of an equivilent hire vehicle is always recoverable from the negligent driver and / or their insurers. However in your case I'm not entirely sure who you'd recover the costs from. Your own insurance company would not pay it; you would have to look to the party at fault. The natural defendant would be the person who actually caused the damage, but I probably wouldn't fancy your chances of recovering anything from someone who nicks lorries for a living! I'm not sure whether and to what extent the owners insurers would be liable to pay if the vehicle was stolen - I've never come accross the situation before, maybe someone else can offer some advice. If you didn't hire a replacement vehicle and made do without one then you'll be able to claim compensation for the loss of the use of your vehicle - again subject to finding someone to pay up! HTH
  11. Hey, long time no see! Hows things going? Unfortunately you cannot make any applications to the court while the claim is stayed. Keep pursuing the other side for it though, and tell them that if they don't provide it you'll make an application as soon as the stay is lifted for which you will be seeking your costs. Was the letter an offer or genuine settlement attempt? If not it carries no privilege anyway and so can be disclosed. If it was an offer, then no it can't be disclosed - you can't waive privilege unilaterally. HTH
  12. Hi Marie, If the agreement is an exempt agreement then they are not obliged to send a default notice. Why do they say that the agreement is exempt? Do you have a copy of the agreement? Also, what was the £34? If it consisted of default charges you can get it removed anyway.
  13. In a claim allocated to the fast or multi track, either party can request the other party to provide further information (see the practice direction to p18)), and if the other party does not reply then an application can be made to the court to order them to do so. Any request, however, is subject to the requirement of proportionality and the information requested must be reasonably necessary to enable the party making the request to understand the case it has to meet. The court doesn't approve of tactically onerous requests or "fishing expeditions". In a claim allocated to the small claims track, part 18 does not apply (see r27.2). So technically you do not have to respond at all and the other side could not apply for an order. Having said that, refusing to respond to a reasonable and proportionate request on this basis is risky, as the court may consider it unreasonable and penalise you in costs later on (especially if the information requested would have been likely to mean a settlement would have been acheived). Hope that helps.
  14. Docman, I'm not sure why you beg to differ. That is precisely the point I was making re Dimond: unenforceable agreement = no unjust enrichment and (implicitly at least) no debt. Having said that the point wasn't directly in issue. The point we are talking about is whether or not, just because the debter doesn't have to pay, that that means that the debt never existed in the first place or does not exist now. I think, FWIW, that enforceabilty and existance are distinct. If the debt (or liability) doesn't exist as a result of it being unenforeceable then the logical conclusion to that is that all payments made by the debtor were paid under a mistake and could be claimed back in restitution from the creditor. I'm sorry, but I find it very hard to envisage that that was Parliaments intention either. Even less so than the opposite proposition rejected in Dimond in fact. In my view, Parliament intended a debt under an improperly exicuted agreement to be precluded from enforcement by a court. No more, no less. Moreover, in the Wilson case it was held that an improperly executed regulated agreement still gives rise to contractual obligations - the effect of the Act is simply to prevent the lender enforcing his rights. And the distinction was clear again in Burdis v Livsey: "Even though the contractual obligations of the claimant to pay Helphire for hire and repairs subsist if the credit agreements are unenforceable Helphire have no enforceable right to recover these amounts" So if the contractual obligations subsist, as the authorities state they do, then I'm afraid that the creditors are not acting outside the law by recording the fact, and, in this respect at least, the ICO are correct.
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