Hi E! Good to hear from you. Had been reading your latest posts and was aware of your situation. You are getting some good advice as always from gh and so on. Unfortunately, as gh mentioned earlier on this thread, I've had to take the main discussion out circulation on CAG. However, soon as I can give more info I will. All the best, Costa

Hi All, Long time, no post. Just a quick update. Permission to Appeal Hearing has been adjourned until March. Can't go into any more detail at this time. However, certain people do know the 'ins and outs' so to say. All the best Costa

Just for information. Oral Hearing (Permission to Appeal) on 17th January 2011. Costa

Hi Robin, I've requested an oral hearing. Filed the request within the 7 days that were allowed. Just waiting for the hearing date. Will let you know of any updates. Costa

Hi All, I was under the impression that the CCA 1974 was enacted to provide protection for the consumer when they were dealing with credit companies etc. This issue of service does not afford any protection to the consumer. Or am I being too cynical! Costa

Here's another one MBNA v McCullagh: The last point on the default notice is whether it included a date not less than 14 days after date of service. It required payment by 4 September 2008. The notice is dated the 20 August 2008. By s.7 of the Interpretation Act 1978 it is provided that “where an Act authorises or requires any document to be served by post then, unless the contrary intention appears, the service is deemed to be effected by properly addressing prepaying and posting a letter containing the document and unless the contrary is proved to have been effected at the time at which the letter that would be delivered in the ordinary course of post" According to the Civil Procedural Rules 1998 the date of service is deemed to be two days after posting that is in this case the 22 August 2008. Whilst the CPR has no direct relevance here the parties have adopted that general rule for service. Therefore the deemed date of service would be the 22 August 2008. 14 days after that date takes us to the 5 September 2008. It is conceded that that would be one day too late and therefore fatal to the notice. However, I am satisfied from what the defendant wrote on the notice that he did receive the notice on 21 August 2008. Therefore the notice is just in time 14 days from 21 August being the 4 September.

Order is as follows: Ground for refusal: an appeal would not have a reasonable prospect of success and there is no other compelling reason why an appeal should be heard. Reason (s) for refusal: The issue for determination essentially rested on a legal interpretation of the effects of the Interpretation Act 1978 and whether the definition of 'service', in the context of a default notice, overrode the application of the strict provsion of section 176 and 189 of the CCA 1974 as amended. The district judge was correct not to permit the 1978 Act to override the clear statutory provision in the 1974 Act. On a review of his decision, there are no grounds to interfere. There it is one and all. So now I hope this does not allow them all to jump on the 'bandwagon'. The way I see it is if they serve you with a default notice on Christmas Eve, it does not matter how many days it takes for you to get it. If it gives you 14 days to remedy then the clock starts ticking from when they put it in the post on Christmas Eve!!!!!!! Costa

Got 7 days to ask for a hearing to put my case for permission to be granted. So that is one option. Will pm my others gh!!!!!

Hi All, Received order from Circuit Judge today - permission to appeal REFUSED. He said that the DJ was correct in his decision that s.7 Interpretation Act 1978 does not overide the combined meaning of s.176/189 of the CCA. So from this ladies and gents we can now presume that a default notice is served when it is put in the post. NOT WHEN YOU RECEIVE IT. I will post the Circuit Judge's full comments later. Just fuming at the moment ! Costa

Here is the basis of my skeleton argument which has to be filed next Monday (25th) at the latest. I will amend accordingly when the judgment transcript arrives. APPLICATION FOR DEFENCE TO BE STRUCK OUT AND SUMMARY JUDGMENT ENTERED 1. Notwithstanding that this matter was in respect of an application for the Defence to be struck out and summary judgment entered, the Judge fell into the error of regarding himself as being under a duty and upon the evidence before him, to resolve the issue as to whether the default notice contained the terms prescribed by statute - as opposed to examining the evidence for the more limited purpose as to whether the prospects of a successful Defence were realistic rather than fanciful. 2. The test under CPR 24.2 is whether the prospects of success is realistic rather than fanciful; the court should consider the evidence which can reasonably be expected to be available at trial - or the lack of it: Royal Brompton Hospital NHS Trust v Hammond [2001] EWCA Civ 550; 3. The duty of a judge hearing such an application is to assess the prospects of success of the relevant party, the criterion being not one of probability but the absence of reality: Three Rivers District Council v Bank of England (No.3) [2001] UKHL 16 per Lord Hope. BACKGROUND 4. At a hearing, on XX XXXXXXX 2010, District Judge XXXXXX, on hearing the Claimant’s argument, decided that the combined meaning of CCA 1974 s176/189 gave a contrary meaning to the words ‘properly served’ and therefore s.7 of the Interpretation Act 1978 did not apply in this case. District Judge XXXXXX concluded that the effective ‘date of service’ was when the Default Notice was put into the post. Therefore the Default Notice, issued by the Claimant, gave sufficient time for the breach to be remedied and therefore the Default Notice was valid. The Appellant believes this to be a wrong decision and that the defence should not of been struck out and summary judgment entered for the Claimant. 5. Under CPR 3.4(2)(a) the court may on application strike out a defence if it discloses no reasonable grounds for defending the claim and enter judgment. 6. An effective Default Notice is required by s 87(1) of the Consumer Credit Act 1974 (the Act) before the credit agreement can be terminated or enforced. By s.88(1) of the Act the Default Notice must give the date by which the default can be remedied. And, by s.88(2) of the Act [as amended by s14(1) of the Consumer Credit Act 2006 as from 1 October 2006] that date must not be less than 14 days after the date of service of the Default Notice. The 14 day period was also required by paragraph 3© of Schedule 2 of the Enforcement Regulations (as amended). 7. A document dated XX XXXXXXX 2009 which purported to be a Default Notice under s.87(1) of the Act was posted to the Appellant by the Respondent. It is inferred that it was posted on XX XXXXXXXX 2009. 8. By s.7 of the Interpretation Act 1978, unless the contrary is proved, a posted document is deemed to have been served at the time when it would be delivered in the ordinary course of post. The provision of sub-s (2) governs the efficacy of posted notices served under this Act except where it is excluded as in CCA 1974, s 69(7). 9. Where the CCA 1974 intends service to occur at the point of sending it explicitly says so, which it does not in the case of s.87 Default Notices. If the combined definition of 'properly served' from s.176/189 of the Act gave a contrary term which meant that service by post occurred on posting there would be no need for this specific exception. Parliament is presumed not to include unnecessary words in statutes, therefore the conclusion must be that these words are included in this section because the normal deeming of service must be something else i.e. the Interpretation Act s7. 10. In calculating the minimum period specified by section 88 sub-s(2) of the Act, '14 days' means 14 clear days, excluding the day on which the notice was served and the day on which the creditor proposes to take the steps specified in the notice. The date given in the default notice by which the default could be remedied was ‘before XXth XXXXXXX 2009’, which was less than the 14 days required. CONCLUSION 11. Accordingly the decision made by District Judge XXXXXX is wrong, in that the combined meaning of CCA 1974 s.176/189 does not give a contrary intention with regard to the meaning of ‘properly served’. By s.7 of the Interpretation Act 1978, unless the contrary is proved, a posted document is deemed to have been served at the time when it would be delivered in the ordinary course of post. The Default Notice, issued on XX XXXXXXXX 2009, was defective, in that it did not allow the prescribed 14 clear days required to remedy the breach, and therefore the Claimant is unable to enforce or terminate the credit agreement. All input/feedback much appreciated. Costa

Hi All, I've, today, received the main text of the transcript and the judgment will follow once it has been authorised by the DJ. Will start to sift through it all. Still comes down to me arguing that s7 of the Interpretation Act applies and them arguing that it doesn't and that the combined effect of s176/189 of the CCA gives a contrary meaning of date of service! And the DJ saying that the whole argument hinges on when 'the date of service' is deemed to have been affected, on receipt of the DN or when it's actually put in the post. And we know which argument he took and hence we are now going down the appeal route! Costa

Hi DB, Just phoned the court and they confirmed that I had filed in time. Just a clerical error on the letter!! Costa

Hi Robin, I did file in time (1 day to spare!). So I don't know why they put that statement on the letter. Anyway it's winging it's way to the circuit judge. Costa

Received the sealed appeal notice from the court yesterday accompanied by a letter that the application for appeal out of time has gone to the circuit judge. Letter concluded that the court will contact me in the near future and the notice had been served on the claimant. Time to sit back and wait I suppose. Costa

Appeal notice and supporting bundle filed at the loacl CC. Transcript should be here next week so I can make a start on the skeleton argument. That will have to be filed and served by 26th October. So plenty of time to get sorted. Costa