I have come across several firms who will run a CCA claim on a CFA and have Chambers behind them to work on that basis as well - can provide details if interested?

Yes please NWJ. Could you PM me?

Pete

Bad luck and bad news all round.

This bit strikes me as being of interest:

The gist of what the judge said was that, although the original CA had been destroyed, this was standard industry practice and was accepted as such. The copies which LTSB provided were admissible as evidence despite being illegible in a large degree, and despite there not being a verifiable or auditable link to the original.

Should this be acceptable? Any 'normal' business has to keep important documentation for, what is it, six years? So surely for any account less than six years old the creditor must be able to produce the original application / agreement? IMHO it beggars belief that such an important document can be destroyed on a whim and for the courts to uphold the right to do this?

always going to be a problem if youre a litigant in person, thats the trouble, having counsel makes a huge difference

OK, so:

1) How does one go about instructing counsel?

2) What's the likely cost for a case of this nature?

3) How does one judge whether one has a fighting chance of winning before deciding to instruct. For example, in Joan of Arc's case referred to - would it have been worth instructing? On the balance of probabilities?

Pete

Question, Thank you for your help, I am in the process of writing a letter. Should I write "with no prejudice" or similar at the top of the letter.

 

Cheers

Hi Pank

The correct phrase is 'WITHOUT PREJUDICE'.

IMHO, if you are simply writing a reply as per my post I wouldn't bother with 'WITHOUT PREJUDICE'. It's really only of use if what you are writing is not something you would want brought up in court, say you are negotiating a potential settlement figure even though you are denying the debt then that would not look so good if the creditor included a copy of the negotiation in the court bundle; in that case all your negotiating letters would be headed 'WITHOUT PREJUDICE'

In your case you are simply challenging the admissibility of documentation that the creditor supplied and you wouldn't have any objection to the judge seeing that.

Hello Again all you good people.

 

I have received a response to my defence from Thurnbull. I enclose it here. Should I respond or just leave it. They have yet again enclosed a copy of the application form. A sheet of Terms and conditions that are not dated signed and illegible. All the documents are illegible.

 

Any views on this letter, I have not heard anyone else getting these?

 

Cheers

If it were me I would simply write stating two things:

1) Nothing will be discussed by phone, only in writing.

2) The documents purporting to be the agreement and T&Cs are illegible and fail to meet the requirements of the copies of docs regs. You can't read them therefore you can obviously not comment further in any way until legible documents are received.

Pete

I am sure that your creditors will be pleased that you are not living it up - even if they might end up wishing you had spent your time differently.

Hopefully so!

Original Regs 1983 sent to Pete

Reading them as we speak.

Thanks basa.

Exciting thing to be doing on a Saturday night eh? Sad or what!

I read the unamended 1983 regulations and it does reference the default charges.

 

Milly X

Milly (or basa.....), could you possibly email me a copy of these unamended regs? I'll PM you my email if you OK it.

Pete

Milly's point concerning the points raised by Pr Mcleod are certainly interesting.

Section 2(4) of the agreements regulations reads thus:

(4) Subject to paragraphs (5) and (9) below, the information, statements of the protection and remedies, signature and

separate boxes which this regulation requires documents embodying regulated consumer credit agreements to contain,

shall be set out in the order given by paragraphs (a) to (f) below under, where applicable, the headings specified below--

(a) the nature of the agreement as set out in paragraph 1 of Schedule 1 to these Regulations;

(b) the parties to the agreement as set out in paragraph 2 of Schedule 1 to these Regulations;

[© under the heading "Key Financial Information", the financial and related particulars set out in paragraphs 6 to

8B, 11 to 14 and 15 to 17 of Schedule 1 to these Regulations;]

(d) under the heading "Other Financial Information", the financial and related particulars set out in paragraphs 3 to 5,

9, 10, 14A and 18 to 19A of Schedule 1 to these regulations;

(e) under the heading "Key Information"--

(i) the information set out in paragraphs 20 to 24 of Schedule 1 to these Regulations; and

(ii) the statements of protection and remedies set out in Schedule 2 to these Regulations; and

 

(f) the signature box and, where applicable, the separate box required by paragraph (7)(b) below;

 

and such information, statements of protection and remedies, signature and separate boxes shall be shown together as a

whole and shall not be preceded by any information apart from trade names, logos or the reference number of the

agreement or interspersed with any other information or wording apart from subtotals of total amounts and cross

references to the terms of the agreement.

I read that as meaning that the prescribed terms cannot come after the signature or be on the reverse of the agreement?

Pete

Hi Peter,

 

I am deleting all my reference as the professor has obviously made a mistake.

 

 

 

I think its probably best not to confuse peeps on here. I will let you know his explanation of that when the letter arrives. Until then I will delete the info.

 

I do not want to start world war 3:)

 

milly X

Milly

You're not starting any wars, you are doing good service. It's only by people like you digging out and publicising these nuggets of information that we are able to debate the issues. Debate, even 'robust' debate is not arguing, it's debate which is healthy, it's how we establish the truth of these matters.

The more opinions the better IMHO.

I would leave the information on here Milly, I really would.

Hi Peter, No it was in a 2002 edition of Consumer Sales Law by Professor Jonn Keith Macleod, therefore it must of been pre 2005.

 

I have emailed the man himself of which he very kindly said he will send me am explanation by letter as to why he says the prescribed terms MUST be in the signature document on the same page as quoted from his book. {couldn't beleived I would get a reply!]

 

That is brilliant Milly! Well done to you.

I will be VERY interested to read the reply.

So Professor Goode is saying the judge was mistaken?

 

Milly X

This was the crux of my reasons for disputing the judgement:

'In the Tesco case, where they are seeking enforcement, section 78(6) of the Act does not have the effect contended for by the Rankines. First, the prohibition is against a creditor 'under an agreement'. The agreement was at an end. Therefore there is no reason why there cannot be enforcement. Secondly, the

If this were true then there would be nothing to stop a creditor circumventing the provisions of the act by terminating the agreement, as once terminated they could litigate to their heart's content. This wouldn't make logical sense.

Every case brought by a DCA (or nearly every case) concerns a terminated agreement and 78(6) would be ineffectual if Brown was correct. Surely that cannot be the effect willed by Parliament when they passed the act?

 

 

The law changed in April 2007, meaning agreements can be enforced by the Court without complying with the strict requirements of the 1974 Act, as they had to before that date.

Just to clarify, this does not apply to pre-2006 agreements? The requirements of the C CA 1974 still apply pre-2006?

Maybe my comment was cast wider than the point you were making but the Rankine judgment is much misused.

 

There are two (and only two) points on which, right or wrong, I would concede that it might still be the ruling precedent:

 

(1) The limitations of section 142 (ie it does not apply to cases where there has simply been non-compliance with section 77/8/9) - however, the indication that an injunction might be available instead is an aspect of the judgment less often mentioned when it is cited.

 

(2) The non-availablity of sections 77-79 after termination.

 

However, I also still think that there is mileage in criticising it as a case that turns on its own facts and that the judgment contains basic errors in relation to the legislation that applies.

I really must be getting too old for this as I'm not clear about what's being implied.

Are you stating that, as a result of the Rankine case(s) a precedent has been set whereby, post-termination of an agreement, it's not possible to issue a section 77/78 demand to the original creditor?

The argument regarding section 142 I understand but if section 77/78 no longer applies then there is no protection for the debtor against enforcement measures being taken? In which case a lender can terminate the agreement and then take the debtor straight to court, ignoring section 78(6)?

Just a general point of order.

Instead of simply posting the word "subbing" or similar and hence potentially cluttering up a thread with non-relevant posts if you look at the top of each page of any thread there is a button labled 'Thread Tools'. If you click on this there's an entry labled 'Subscribe to this Thread' (assuming you haven't already subscribed), if you click that and then confirm it you will subscribe to the thread without cluttering it up.

Thanks.

Blimey, i didn't know they could make a sworn statement? Surely then, they will just do that?! Nobody could disprove them, and after all, its not like these are honest people we are talking about. They do WHATEVER it takes to get their muddy paws on hard cash. That deflates me a bit, i thought it was NO CCA NO CASE. Ho hum

Don't get worried by all this A+.

In general terms if the case were to proceed to court then the parties would be ordered to produce original documents to the court under the Standard Directions section of CPR Part 27. If the lender were then to start saying that the original document cannot be found then all sorts of other rules come into play under the auspices of the Civil Evidence Act 1995. At this point things would become very messy indeed for the lender and it's unlikely they would go to these lengths.

It's a high probability that if they cannot produce the original document, especially where it could be reasonably deduced that the copy (as in your case) is not strictly kosher that the lender would run a mile.

Pank, I think a Lay Representative is what you are seeking. This is covered by the Practice Direction Supplements to CPR Part 27 as follows:

Representation at a Hearing

 

3.1

 

In this paragraph:

(1) a lawyer means a barrister, a solicitor or a legal executive employed by a solicitor, and

 

(2) a lay representative means any other person.

 

 

3.2

 

(1) A party may present his own case at a hearing or a lawyer or lay representative may present it for him.

 

(2) The Lay Representatives (Right of Audience) Order 1999 provides that a lay representative may not exercise any right of audience:–

(a) where his client does not attend the hearing;

 

(b) at any stage after judgment; or

 

© on any appeal brought against any decision made by the district judge in the proceedings.

 

 

(3) However the court, exercising its general discretion to hear anybody, may hear a lay representative even in circumstances excluded by the Order.

 

(4) Any of its officers or employees may represent a corporate party.

No worries A+

Don't forget that if they do take you to court then you will be able to force them to either a) produce the original agreement, not a copy, the original signed bit of paper or b) produce a sworn witness, who you are entitled to cross-examine, who will state on oath that they know for a fact that the copy is an accurate and true copy of the original document.

They might wave a doctored bit of paper at you now in the hope that you'll capitulate but if it goes to court it's a whole different game!

Please don't think I'm trying to be officious, and I'm certainly not a member of the site team but can we try and keep this thread clear of 'clutter' and off-topic posts? It's a very important thread and difficult enough to navigate as it is and I'd hate to see people put off by having to wade through OT posts as well.

Thanks everyone.

Regarding the Litigation Friend issue there are procedures to be followed. CPR 21 states:

See also Part 21

PRACTICE DIRECTION – CHILDREN AND PROTECTED PARTIES This Practice Direction supplements CPR Part 21

 

General

 

1.1

 

In proceedings where one of the parties is a protected party, the protected party should be referred to in the title to the proceedings as ‘A.B. (a protected party by C.D. his litigation friend)’.

 

1.2

 

In proceedings where one of the parties is a child, where –

(1) the child has a litigation friend, the child should be referred to in the title to the proceedings as ‘A.B. (a child by C.D. his litigation friend)’; or

 

(2) the child is conducting the proceedings on his own behalf, the child should be referred to in the title as ‘A.B. (a child)’.

 

 

1.3

 

A settlement of a claim by a child includes an agreement on a sum to be apportioned to a dependent child under the Fatal Accidents Act 19761.

 

 

 

The litigation friend

 

2.1

 

A person may become a litigation friend –

(a) without a court order under rule 21.5, or

 

(b) by a court order under rule 21.6.

 

 

 

2.2

 

A person who wishes to become a litigation friend without a court order pursuant to rule 21.5(3) must file a certificate of suitability in Practice Form N235 –

(a) stating that he consents to act,

 

(b) stating that he knows or believes that the [claimant] [defendant] [is a child][lacks capacity to conduct the proceedings],

 

© in the case of a protected party, stating the grounds of his belief and, if his belief is based upon medical opinion or the opinion of another suitably qualified expert, attaching any relevant document to the certificate,

 

(d) stating that he can fairly and competently conduct proceedings on behalf of the child or protected party and has no interest adverse to that of the child or protected party, and

 

(e) where the child or protected party is a claimant, undertaking to pay any costs which the child or protected party may be ordered to pay in relation to the proceedings, subject to any right he may have to be repaid from the assets of the child or protected party.

 

 

 

2.3

 

The certificate of suitability must be verified by a statement of truth.

(Part 22 contains provisions about statements of truth.)

 

2.4

 

The litigation friend is not required to serve the document referred to in paragraph 2.2© when he serves a certificate of suitability on the person to be served under rule 21.5(4)(a).

 

 

The full CPR can be seen here:

PRACTICE DIRECTION – CHILDREN AND PROTECTED PARTIES

Your 'friend' needs to complete and file forn N235 which can be found here:

The requested resource (/HMCSCourtFinder/tiles/Her Majesty's Courts Service -Forms and Guidance) is not available

Right, I have now received a reply to the faxed letter requesting a clearer copy. All they have sent me is the same again but bigger. It is not clearer.

 

I also asked them to address all the further correspondence to my Litigation Friend, to their office as they have access to better equipment and it makes things easier.

 

This has abviously caused some sort of reaction. I have enclosed the letter. Should I repond or just leave it?

 

I now need help with my deffence. Can someone please help?

If it's no clearer than the original then it doesn't comply with section 2(1) of the copies of documents regulations and should be ruled as such in court. IMHO there's no way that they can get judgement based on that document as the document is central to the entire case.

What do others think?

When did you complete this application ?

 

This is nothing like the Platinum application form supplied to me following my CCA request

 

Looks like a typical paste up job to me ...font size ..lining up etc

What does it say at the bottom left of the terms column?

Plus two headings quoting CCA 1974 ???

 

V dodgy

Well spotted you two!!

What a team we all make together!

/\/\/\

See what I mean? A four line post takes up a whole firefox screen on my iMac!

Do we really have to have all of these links and warnings in the user info sidebar?

They make the threads look really cluttered and nasty apart from making it very time consuming to scroll through threads - even a one line post takes up half a screen because of all this clutter! It's really annoying.

Hoping this is easier to read, if not i can go bigger.

It looks to me as though all the prescribed terms are there and so the agreement is more than likely to be valid and enforceable.

Sorry if that's not what you wanted to hear.

Mind you, if it really is that hard to read you might have a case under the 'copies of documents' regulations, section 2(1) - legibility? A long shot but you might consider it.