Agree, did the latest order provide you with any clear guidance as to your entitlement should AG fail to respond? If not would def make application for SJ in your favour stating the failure of the claimant to provide you with documentation and failure to respond to court directions.

Send the 31.15 but be prepared to back it up with an application to the court if they fail to provide. Presumably their POC was clear about the documents they rely on enabling you to specifically state what you wish to examine/gain copies of? As long as you have acknowledged and then submitted some form of response if the court sees you are clearly being frustrated by the claimant you're fine. They may even stay the claim but hopefully your request will be answered and you'll get what you need. Make sure its sent recorded and you keep proof of delivery etc.

If you search oogle and put the words 'trust me Im a banker' in there you'll see a BBC Scotland news article with a video link to the bankers square mile ball. One banker admits 'he's only had 1 Maserati bonus this year, 6 figures and hopes for an 8 figure bonus next year'. He'll get it too, Osbourne and Cameron are raiding the public purse as we speak and we can do nothing about it. Vasoline anyone? Might make it a touch less painful.

Is there any more info on this and is that definite?

I'd be pretty furious with a court that just ignored statute, let's face it if we can't rely upon the written word of the law with the reasonable expectation to 'take it as it is' then we are prejudiced from the outset. I fail to understand why the CCA, and the clear guidelines within, appears to be so open to poor interpretation and dismissal when the same approach applied to other statute would quickly result in all manner of difficulty for the judge involved. If there was ever any reason for suspician as to the collusion from the very top to the everyday workings we face this would surely be it? We know the bankers grease the palms of the politicians who protect the interests of the bankers, hence the absurd hand out of taxpayer cash a while back. Were we ever asked if we wished to have our money 'invested' in preference to keeping the services we all need in society? It gets worse, it appears the banks will need a whole lot more money in the early part of next year and guess what. You're paying for it.

Your mail box needs clearing, have response for you

Quick recap on the defence - what did you send, was it based on not being able to submit fully due to no documents?

If the DN issues are essentially unimportant what other areas of the CCA can we expect the creditor to ignore with the approval of the court? It's just that if I refer to the law I expect to be able to stand by it, and it by me. I would never expect it to stab me in the back with the consent of the authority supposedly applying it in the interests of fairness and clarity. We don't drive along at 27mph in a 30mph zone only to be photographed and fined and then told when we protest that actually 'we can do what we want so deal with it'. Yet, this is what happens with the CCA. Shouldn't the judiciary be pushing for serious amendment of the CCA if they are aware that people are wasting their time with defences based on sections of the CCA that actually the courts are happy to ignore? The revised CCA 2010 could be a pamphlet, just think of the environmental benefit of having just 5 pages of regulation instead of 100+

Pm sent Chipmeister.

Possibly one of the clearest examples of the creditor denying the rights of the borrower we have and leaving the borrower in an impossible (unless you have the full sum demanded and have no other need for it) situation. Complete bypass of the CCA protection.

Awesome

Morning all, don't know about you guys but I'm looking forward to more discussion on this...feel we're getting somewhere with it and the info unveiled recently has been very interesting

Basically the creditor can do whatever they want whenever they want and no prejudice is recognised to the borrower even though the creditor may have breached the contract to its core first by doing three of the following five things, all of which the creditor is apparently not entitled to do unless a correct DN has been issued. Although as a borrower you may have temporarily breached the agreement (within the realms and provision of the CCA) you will probably find your rights will be removed (contrary to the CCA that supposedly regulates your agreement) due to the incompetence and/or lethargy of the creditor who issues a dodgy DN prejudicing your protected rights and potentially removing your chance to restore the temporary breach. They then indulge in the red sections below. They will (a) terminate the agreement (even though they are not entitled to) (b) demand earlier payment of any sum (even though they are not entitled to) © to recover possession of any goods or land, or (d) treat any right conferred on the debtor or hirer by the agreement as terminated, restricted or deferred (remove any benefit you enjoyed under the agreement even though thry are not entitled to) (e) to enforce any security. If the creditor can't be bothered to issue a valid DN the court will excuse them as long as they can ruffle something up, even though they maintain they terminated the agreement perhaps by conduct and in writing and now stand in court asking for the Consumer Credit Act to come to their rescue as a priority over you. For all intensive purpose a creditor can demand the full balanace at any time for no real reason knowing the court will come to their rescue, as it would be unfair for the bank to lose its money through stupidity but ok for you to end up with a county court judgment. In the simplest terms the CCA should actually be known as the Creditors Convenience Act 1974.

One word - Yep! Always good to be able to point the finger definitively and back it all up with a ream of paperwork, perhaps even hit them round the back of the head with it to wake them up a bit The more you can demonstrate how you've been prejudiced (seems to be the word of the month after the Brandon case) the easier it is for the judge to attach weight to your side of the argument.

Just to recap for us - did the court send any order out to you both yet? If not I believe you were trying to get basic documentation from HSBC in order to submit a full defence...is that right? Did you submit anything yet after acknowledging the initial claim?

Sink provided a defence the day after it was expected so I didn't bother applying for SJ in line with the directions order as they would have just had it set aside anyway...so we're off to court this week. Their defence is the usual mix of 'No we didn't', 'Yes we did but we can', and the favourite 'The claim is vexatious' whilst providing no opinion on why that should be other than the fact that they don't like being taken to court and exposed for the cheating parasitic wastes of space they are...that's a very fair conclusion given the immense hassle and waste of time they've stolen from me for many many months. One particularly intelligent argument their manager Mr. Thomas presents is that they are not liable for the action of the original creditor (contrary to OFT guidance provided to the court) however despite this claim of being whiter than white with no connection to the claim I've made there is nothing wrong with them interfering with my credit file and sticking a dirty great invalid DN on it. It's entirely contradictory and frankly pathetic. One thing they did alert me to though...thank you Stink...is the CPR rule on costs as they are not payable even though Stink discontinued. I beleive in this scenario I am entitled to recover the basic costs of defending their abandoned claim as that's only fair, you can't have a system that allows the random filing of claims against people with no recourse for the party instigating action. So, a dig through the CPR found that costs are indeed allowed under small claims if the other party has been unreasonable prior to, during or after any action. I've added the section below I've used as they'll have a copy soon enough anyway and it makes no difference at this stage of play. Looking forward to watching the poor sap they instruct to defend get round all of this, I'm hoping their efforts to perverse the course of justice will go down like a lead balloon and that the judge won't be impressed with them from the off. Final note is that as all of their paperowrk was of course useless they haven't a leg to stand on when it comes to arguing about the data they added to the CRA's. They had no more right to interfere with my personal data than the man in the street so any defence they offer is useless. I guess the next time I post on here the case will be over with so I'm hoping I get a decent judge (have to say so far they've been quite switched on) and that Links reputation will precede them having no friends in the court as I know that certain judges are sick to the back teeth of them and how they operate. Excerpt from my argument for costs below: The claimant relies upon CPR 27.14 (2)(g) Costs On The Small Claims Track that states: ‘The court may not order a party to pay a sum to another party in respect of that other party’s costs, fees and expenses, including those relating to an appeal, except – (g) such costs as the court may assess by the summary procedure and order to be paid by a party who has behaved unreasonably’. 20(a) The claimant respectfully submits that any of the following facts amount to unreasonable acts: The defendant has demonstrated no lawful right to have commenced litigation producing no deed of assignment. The defendant was forced to provide documentation at additional cost to the claimant before Judge McHale after failing to voluntarily produce paperwork such as a default notice despite requests made under the CPR. The notice of assignment handed to Judge McHale was examined, declared as invalid and rejected. The default notice handed to Judge McHale was examined, declared as invalid and rejected. The defendant also failed to supply full or even partially full statement histories preventing the claimant from being able to assess the merits of the original claim. Such failure to maintain accurate statement history also meant the defendant was entirely incapable of evidencing the amount claimed in the court, they proceeded anyway. The defendant chose to discontinue after being put to strict proof of their documentation and associated right to commence litigation. The defendant was reported to Trading Standards and independent review of the complaint was upheld about an attempt to misdirect court paperwork and perverse the course of justice. These details and findings were forwarded to the Licensing Section of the Office of Fair Trading by Northampton Trading Standards officers. 20(b) It is respectfully submitted therefore that the claimant should be entitled to costs. It was unreasonable of the defendant to have attempted to mislead the claimant into directing the court paperwork not to the court, but to the address of the defendant. 20© This would have resulted in the defendant securing Summary Judgment by default, an undeserved reward that cannot be considered to be ‘reasonable’ at all. 20(d) It is submitted that a court can never condone the sort of practice identified by Trading Standards officers as ‘an attempt to perverse the course of justice’ and can come to no other conclusion that this particular act was indeed ‘unreasonable’. 20(e) If the court accepts this argument the claimant would rely on the following in support of the costs application. CPR 44.3 details discretion as to the award of costs. (1) The court has discretion as to- (b) The amount of those costs (2) If the court decides to make an order about costs – (a) the general rule is that the unsuccessful party will be ordered to pay the costs of the successful party (4) In deciding what order (if any) to make about costs, the court must have regard to all the circumstances, including – (a) the conduct of all the parties; (b) whether a party has succeeded on part of his case, even if he has not been wholly successful; and © any payment into court or admissible offer to settle made by a party which is drawn to the court’s attention, and which is not an offer to which costs consequences under Part 36 apply. 20(d) With reference to point (a) it is clear the conduct of the defendant has been far from reasonable or acceptable. 20(e) With reference to (b) the defendant was wholly unsuccessful in their claim, not even getting to a hearing due to invalid documentation. 20(f) With reference to © the defendant has made no effort to settle the dispute out of court, merely issuing statements denying liability. The court has already established they are the liable party after the request made by Judge Watson dated 21st May 2010 that ultimately allowed the counterclaim to continue. CPR44.3 continues… (5) The conduct of the parties includes – (a) conduct before, as well as during, the proceedings and in particular the extent to which the parties followed the Practice Direction (Pre-Action Conduct) or any relevant pre-action protocol; (b) whether it was reasonable for a party to raise, pursue or contest a particular allegation or issue; © the manner in which a party has pursued or defended his case or a particular allegation or issue; and (d) whether a claimant who has succeeded in his claim, in whole or in part, exaggerated his claim. (6) The orders which the court may make under this rule include an order that a party must pay – (a) a proportion of another party’s costs; (b) a stated amount in respect of another party’s costs; © costs from or until a certain date only; (d) costs incurred before proceedings have begun; (e) costs relating to particular steps taken in the proceedings; (f) costs relating only to a distinct part of the proceedings; and (g) interest on costs from or until a certain date, including a date before judgment. 20(g) With reference to point (5a) above the conduct of the defendant has already been detailed in the full counterclaim and partially detailed earlier. There can be no doubt that their conduct was wholly unreasonable, the aim being to deprive the claimant of the right to offer a defence. 20(h) With reference to point (5c) above the defendant pursued the original claim having established no lawful right to do so and having failed to ensure the documentation they would ultimately need to make available for the court was valid. Such action could be considered as an abuse of the court process. 20(i) Finally, with reference to section 6 detailed above it is clear the court is able to order the payment of another party’s costs, or any part thereof as decided. 20(j) The conduct of the defendant cannot ever be considered as reasonable and in the humble opinion of the claimant the intention of the defendant to deny the claimant the right to submit a defence to the appropriate recipient (that being the court and not the defendant) along with the failure to ensure all documentation was legally complicit is inexcusable. 20(k) Consulting the Pre-Action Conduct section of the Practice Directions further guidance is offered as to issues of compliance. In Section 2 entitled ‘The Approach Of The Courts’ the nature of compliance is addressed. It states: 4. Compliance 4.1 The CPR enable the court to take into account the extent of the parties’ compliance with this Practice Direction or a relevant pre-action protocol (see paragraph 5.2) when giving directions for the management of claims (see CPR rules 3.1(4) and (5) and 3.9(1)(e)) and when making orders about who should pay costs (see CPR rule 44.3(5)(a)). 44.3(5) The conduct of the parties includes – (a) conduct before, as well as during, the proceedings and in particular the extent to which the parties followed the Practice Direction (Pre-Action Conduct) or any relevant pre-action protocol; Examples of Non-Compliance 4.4 The court may decide that there has been a failure of compliance by a party because, for example, that party has – (1) not provided sufficient information to enable the other party to understand the issues; (2) not acted within a time limit set out in a relevant pre-action protocol, or, where no specific time limit applies, within a reasonable period; (3) unreasonably refused to consider ADR (paragraph 8 in Part III of this Practice Direction and the pre-action protocols all contain similar provisions about ADR); or (4) without good reason, not disclosed documents requested to be disclosed. 20(l) With reference to point 1 above the defendant failed to provide sufficient statement information in order that the claimant could fully audit the sum claimed. This lack of essential information made it impossible for the claimant to assess the true position of the original claim. The defendant also failed to provide valid notices of assignment, valid default notices and any deed of assignment. 20(m) With reference to point 4 above the defendant has still failed to provide any reasons, good or otherwise, for the lack of statement history. The claimant is entitled to this history, especially where it is subject to litigation. 20(n) This statement history was requested by the claimant in the first Subject Access Request acknowledged and partially fulfilled by the defendant. 20(o) There is also no reason given for the lack of other valid documentation, some of which was used to terminate the agreement unlawfully. Sanctions for Non-Compliance 4.5 The court will look at the overall effect of non-compliance on the other party when deciding whether to impose sanctions. 4.6 If, in the opinion of the court, there has been non-compliance, the sanctions which the court may impose include – (1) staying (that is suspending) the proceedings until steps which ought to have been taken have been taken; (2) an order that the party at fault pays the costs, or part of the costs, of the other party or parties (this may include an order under rule 27.14(2)(g) in cases allocated to the small claims track); (3) an order that the party at fault pays those costs on an indemnity basis (rule 44.4(3) sets out the definition of the assessment of costs on an indemnity basis); (4) if the party at fault is the claimant in whose favour an order for the payment of a sum of money is subsequently made, an order that the claimant is deprived of interest on all or part of that sum, and/or that interest is awarded at a lower rate than would otherwise have been awarded; (5) if the party at fault is a defendant, and an order for the payment of a sum of money is subsequently made in favour of the claimant, an order that the defendant pay interest on all or part of that sum at a higher rate, not exceeding 10% above base rate, than would otherwise have been awarded. 20(p) The claimant also submits that there is evidence of non-compliance contrary to the above practice direction enabling the court to award costs at its own discretion. 20(q) Point (2) detailed above confirms such orders can be made to order the party at fault to pay the full costs of the other side for claims allocated to the small claims track. 20® Point (5) detailed above provides details as to sanctions available to the court for the addition of a higher rate of interest that shall not exceed a rate 10% above the base rate. 20(s) The claimant respectfully requests the discretion of the court in this matter and submits that given the history of this particular claim and the conduct of the defendant that costs are awarded in full as detailed in the Bill of Costs submitted to the defendant in September 2010 and to the court by hand on the 13th October 2010.

Optima do like the SJ application as it helps them to avoid some difficult and more in depth questionning. I believe even if they tried to have it moved near them the court would make sure it stayed near you, however if that wasn't the case I think you could request it to be closer to you anyway. If in doubt give the court a ring.

87 Need for default notice (1) Service of a notice on the debtor or hirer in accordance with section 88 (a “default notice”) is necessary before the creditor or owner can become entitled, by reason of any breach by the debtor or hirer of a regulated agreement,— (a) to terminate the agreement, or (b) to demand earlier payment of any sum, or © to recover possession of any goods or land, or (d) to treat any right conferred on the debtor or hirer by the agreement as terminated, restricted or deferred, or (e) to enforce any security. Just thinking out loud I guess but this thread has concentrated very heavily on the supposed fact that if a creditor hasn't issued a valid DN they are not entitled (and therefore effectively prevented) from issuing a termination, even though we all know they do it anyway. It is clear that although they are technically not entitled to do this, rendering any termination as a supposedly ineffective event that is not recognised by the law, they are also not actually 'entitled' to demand the full sum either as detailed above right under the other item they are supposedly not entitled to do - terminate. They also are not entitled to do any part of point D either, to prevent or remove any right bestowed on the debtor under that agreement. With a credit card for example this would mean removing the access to credit previously conferred under the live agreement...but they do that as well. So, using a credit card as a typical example although a creditor is not entitled to do it once they have issued a termination notice after the dodgy DN the creditor is likely to breach 3 of the 5 things they are expressly forbidden to do if the DN they issue is invalid. To my mind regardless of entitlement that constitutes 3 seperate breaches of statute and is surely sufficient ammo in any resultant defence offered under section 140 or argument forwarded about the creditor actually being the first party to breach the contract 'to its core' with the removal of the major benefit to the debtor, in clear breach of statutory intent.

Section 98 of the CCA 1974 98 Duty to give notice of termination (non -default cases) (1) The creditor or owner is not entitled to terminate a regulated agreement except by or after giving the debtor or hirer not less than seven days’ notice of the termination. (2) Subsection (1) applies only where— (a) a period for the duration of the agreement is specified in the agreement, and (b) that period has not ended when the creditor or owner does an act mentioned in subsection (1), but so applies notwithstanding that, under the agreement, any party is entitled to terminate it before the end of the period so specified. (3) A notice under subsection (1) is ineffective if not in the prescribed form. (4) Subsection (1) does not prevent a creditor from treating the right to draw on any credit as restricted or deferred and taking such steps as may be necessary to make the restriction or deferment effective. (5) Regulations may provide that subsection (1) is not to apply to agreements described by the regulations. (6) Subsection (1) does not apply to the termination of a regulated agreement by reason of any breach by the debtor or hirer of the agreement. If I've interpreted this correctly isn't this stating that in cases relating to a regulated agreement, if the debtor has not acted in a manner that warrants a default notice being served the creditor is not entitled to terminate irrespective of giving 7 days notice of intent? Can't quite get my head round it as I've read it too many times now!

If only we could systematically pick a bank, boycott it in every way and then move on to the next when it's on its knees. Will never happen - we'll all moan whilst paying money into it and as such we'll always allow them to retain the upper hand. I trained in architecture and my industry is dead in the water - had I been a banker I would be loaded by now, safe in the knowledge that I can't put a foot wrong and that the tax payer will be forced to bale me out should I get myself into trouble. If this was Korea we'd all assert our rights and go on a riot whilst attempting a coup to overthrow the tainted government. I guess now that tory boy Cameron is in power the bankers really will be having a fantastic Christmas ad infinitum. Let's just queue up for our personal bar code tattoos and instruction leaflet on servitude now and have it done with

Given the fact that a default notice is now effectively redundant a creditor can essentially send you a letter before action whenever they feel like it and if you don't comply with their demand instigate litigation. Come the day in court the creditor concedes they didn't issue a default notice 'as there's no real point in wasting the paper' but offers, if it pleases the court, to have the boys back at the office knock one up and fax it over. Judge happy, judgment granted, creditor happy, debtor screwed royally and CCA no longer fit for purpose. Am I wrong?

Would have been helpful to have known they'd sent that. Have they forwarded another termination letter as before? Would you scan the latest DN so we can check it? Would you also add the particulars of claim as detailed on their court form?

Still don't understand how statute technically preventing a creditor 'in a perfect world' from doing something is irrevelevant when the creditor has defaulted incorrectly and gone to the effort of terminating the contract. Ok, termination isn't available and I get that, but how do we get round the fact that although this isn't available the creditor has demanded sums not yet due (as the agreement is live), in addition to depriving the major benefit of the contract to the debtor (bearing in mind the agreement is still live) and now has the poor sod in court who is likely confused by the cock up that is supposedly the creditor exercising their rights? All of this and the creditor is allowed to do as they see fit under statute enacted to supposedly 'protect' the consumer from such cock ups? Completely unfair with the creditor then addressing their initial mess with the issue of a correct DN, seemingly whenever it suits, and suddenly everything is peachy? No options for the debtor at all who is dragged through court wrongly as the creditor failed to default and terminate correctly in the order that then actually gives them the right to litigate?

Fundamental Breach and Common Law right to claim repudiation - excerpts taken from STOCZNIA GDYNIA S.A. and GEARBULK HOLDINGS LTD. The nature of the contract The contract in the present case is one for the sale of future goods, in this case a vessel, to be constructed by the seller (the Yard) and delivered to the buyer (Gearbulk) by an agreed date. It contains many detailed provisions relating to the specification and performance of the vessel, as well as other matters. In relation to delay in delivery and deficiencies in speed, fuel consumption and deadweight capacity it provided for the payment of liquidated damages by the Yard and, if the delay or any of the deficiencies exceeded a certain level, ultimately gave Gearbulk a right to terminate the contract. The contract also gave the Yard a right to terminate it if Gearbulk failed to pay an instalment of the price when it became due. The meaning of the word "terminate" depends on the context in which it is used. It is capable of meaning what is nowadays generally called rescission, that is, the discharge of all rights and obligations under the contract ab initio without liability on either side, and is also used in the context of discharge by frustration, but it is most commonly used in commercial contracts in the context of a right given to one party to a contract to treat it as discharged by reason of a breach on the part of the other. It is inherent in the nature of a legally binding contract that each party expects to obtain the benefit of the bargain into which he has entered, or, if the contract is not performed, a right to recover compensation in the form of damages for the loss of that benefit. The debtor expects to be able to pay the sums back over time, the lender allows this to happen as they recoup interest on the sums lent. The major benefit to the debtor is the right to pay the money back slowly, the major benefit to the lender is the accumulation of a greater sum than that originally lent. Accordingly, in a case where one party's breach is such as, in the words of Diplock L.J. in Hongkong Fir Shipping Co. Ltd v Kawasaki Kisen Kaisha Ltd [1962] 2 Q.B. 26, to deprive the other of substantially the whole benefit which it was intended that he should obtain from the contract, the common law recognises the right of the injured party to treat the contract as discharged and to recover damages for the loss of the bargain. Such a breach is commonly described as "going to the root of the contract". Would we all agree that the CCA affords the protection to the debtor to breach the agreement by not making a payment, or even a few payments before a DN is served? Such a breach does not go to the heart of the contract, however the express failure to respond to the instruction and demand of the Default Notice (the last chance saloon) clearly is breaking the agreement in a major sense and certainly can be considered as ‘going to the root of the contract’. The CCA does not state how many months can be missed before a DN is issued, however it is generally accepted that the length of the loan/agreement will provide a common sense guide to duration. A DN issued after 2 missed payments on an agreement lasting only 5 months is proportionally very fair in comparison to an agreement lasting 60 months when the lender issues a default after 6 missed payments. No sensible debtor could deny that level of fairness to the creditor. That is all trite law, but it provides the underpinning, should it be required, for Mr. Boyd Q.C.'s submission that parties to a contract of this kind, or indeed to any contract, enter into negotiations in the expectation that if the one of them commits a breach which goes to the root of the contract in the sense just described, the other will be entitled to recover damages for the loss of his bargain. The parties may, of course, agree to depart from that position, but that is the point from which they start. Whether a breach is sufficiently serious to go to the root of the contract depends on the terms of the contract and the nature of the breach, but it is open to the parties to agree that the breach of a particular term, however slight, is to be treated as having that effect and shall therefore entitle the other to treat the contract as repudiated. Different words have been used to express that intention. The use of the word "condition" will usually (though not always – see Wickman Machine Tool Sales v Schuler (L.) A.G. [1974] A.C. 235) be sufficient, but many other forms of wording can be found. Sometimes the consequences of a breach are spelled out and sometimes they are not; in each case it is necessary to construe the contract as a whole to ascertain what the parties intended. As we have learned from previous discussion in this thread the CCA does not appear to offer any advice regarding the outcome of a breach, it has been suggested that although the rights of either party may have been discharged the lender is still entitled to recover his funds and the debtor still obliged to pay the debt. The above passage however appears to accept that one party is entitled to consider the agreement to be repudiated. If we look at the CCA and the arguments proposed to date it seems that the lender can, but isn’t actually entitled to, issue a termination letter to a debtor if the debtor did not respond to the demands of the Default Notice. So, who breached the agreement first and who breached it in a manner that could be recognised as ‘going to the root of the contract’? Yes, the debtor first creates a problem by failing to make the agreed payment. The Consumer Credit Act (Not Creditor Credit Act) provides breathing space for the debtor in this eventuality with the appropriate sections and the default process. The lender, at a point of their reasonable choosing, is entitled to create a Default Notice compliant with the requirements of the CCA and they have had 36 years in order to understand the terms and expectations demanded by statute in order for that notice to be accepted as valid and in order for them to become entitled to issue and act upon subsequent notices of termination. The lender creates his Default Notice and duly sends it to the debtor, the ‘pay up now or lose the rights’ (major benefit) of our agreement. If this DN is not complicit with regulatory intent wouldn’t it be fair to state that actually the first party breaching the contract in a way that ‘goies to the root of the contract’ is actually the lender? Clause 5.8 in the present case gave the Yard the right to "terminate" the contract if Gearbulk committed a breach of contract by failing to pay an instalment of the price within fourteen days of the date on which it was due. If the Yard exercised that right, the terms of clause 5.9 gave it the right to recover the benefit of its bargain. Similarly, Articles 10.1-10.4 gave Gearbulk the right to "terminate" the contract if the Yard committed a breach of contract by failing to deliver the vessel within 150 days of the agreed date or by tendering it with deficiencies in capacity or performance which exceeded the limits below which the payment of liquidated damages was considered to be sufficient compensation. In addition, Article 10.6 gave it the right to terminate the contract if the Yard committed a major breach which the Classification Society agreed would prevent it from completing and delivering the vessel by a specific date (the so-called "drop dead" date), or if it failed financially. It is clear, and was not in dispute, that if either party exercised a right to terminate the contract pursuant to any of those terms, all obligations which remained for performance in the future would be discharged. The nature of the circumstances giving rise to Gearbulk's right to terminate, therefore, was in all cases a serious breach by the Yard of its obligations and that, together with the provision for payment of liquidated damages for less serious breaches, provides a strong indication that if the right were exercised the parties intended that Gearbulk should have a right to recover any losses it might have suffered as a result of the loss of its bargain. The nature and meaning of Article 10 All this may seem obvious, but it is important because it provides the background to the submissions made by Mr. Dunning Q.C. as to the meaning and effect of Article 10 as a whole and in particular its second (unnumbered) paragraph. His primary submission was that Article 10 contains a complete code which provides for the consequences of the various events with which it is concerned. As such it displaces any right to treat the contract as repudiated at common law, leaving Gearbulk to the remedies for which it provided, namely, liquidated damages for delay and deficiencies in capacity and performance and the right to recover instalments of the price, with the benefit of a bank guarantee. His alternative submission was that even if Article 10 does not exclude the right to treat the contract as repudiated at common law, it does provide an alternative means of bringing the contract to an end, but one which can be exercised only in accordance with its terms. In this case, he submitted, Gearbulk did not elect to treat any of the contracts as repudiated in accordance with the general law, but chose instead to exercise the rights of termination given by the contract itself. In those circumstances it cannot claim damages for the loss of its bargain because Article 10 does not provide for it to do so. Does Article 10 displace the right to treat the contract as repudiated? Mr. Dunning sought to derive support for the first of these submissions from the decision of this court in Lockland Builders v Rickwood [1995] 77 BLR 42. In that case clause 2 of a contract for the construction of a house gave the building owner the right to determine the contract if the rate of progress, materials or workmanship proved unsatisfactory as certified by an independent third party and the building contractor failed to rectify them within a specified period. The building owner was dissatisfied with the work, but did not seek to invoke clause 2. Instead he wrote to the building contractor purporting to treat the contract as discharged and sought to recover damages. Is this similar to the Default process in the CCA? The lender has the right to use the Default process in order to secure future right to recover sums owed but messes the Default process up and terminates anyway. The court noted that clause 2 was designed to deal with shortcomings of the very kind alleged and held that the common law right to treat the contract as discharged by reason of repudiation could arise only in a case where the breach was of a fundamental nature. In effect clause 2 was designed to protect the builder from an unreasonable owner, allowing the builder to rectify any issues raised by the owner. The same protection is in place with the CCA, time to restore the agreement before a DN is issued, which if not met, constitutes a breach by the debtor that ‘goes to the root of the contract’. Isn’t the debtor entitled to consider the invalid default notice and subsequent invitation/intention to terminate by the creditor, thus removing the major benefit to the debtor of the contract, as an act ‘going to the root of the contract’? Does this confirm the common law right to treat the contract as discharged? The breaches alleged were not of that kind and so the building owner's only right to terminate arose under clause 2, which he had not invoked. In reaching its decision the court placed some emphasis on the fact that the clause was not expressed to be without prejudice to the building owner's rights under the general law. So, the court held that as he had not invoked clause 2 of this particular agreement that the owner had no right to have terminated the contract, even though the owner had done this and taken the builder to court for damages. This is comparable to a lender terminating an agreement (on the back of a faulty DN) when they had no right to as they did not take advantage of the CCA terms governing default and termination. Whenever one party to a contract is given the right to terminate it in the event of a breach by the other it is necessary to examine carefully what the parties were intending to achieve and in particular what importance they intended to attach to the underlying obligation and the nature of the breach. If you look at the summary for the Lockland Builders v Rickwood [1995] 77 BLR 42 case it states that: ‘A contract for the construction of a house gave the building owner the right to determine the contract if the rate of progress, materials or workmanship proved unsatisfactory as certified by an independent third party and the building contractor failed to rectify them within a specified period. The building owner was dissatisfied with the work, but did not seek to invoke clause 2, but wrote to the contractor purporting to treat the contract as discharged and sought to recover damages’. Held. ‘The clause was designed to deal with shortcomings of the very kind alleged and the common law right to treat the contract as discharged by reason of repudiation could arise only in a case where the breach was of a fundamental nature’. ‘The breaches alleged were not of that kind and so the building owner's only right to terminate arose under clause 2, which he had not invoked. The court placed some emphasis on the fact that the clause was not expressed to be without prejudice to the building owner's rights under the general law’. This case appears to accept that there is a common law right to treat a contract as having been repudiated but vitally, the breach must be a fundamental one and not something of little importance. Would it not follow that the failure of the creditor to issue a Default Notice compliant with the CCA which is then used to issue a written notice of termination removing the major benefit of the contract to the debtor (as they now want all of the money in one go) constitutes a breach that ‘goes to the root of the contract’? The invalid Default Notice prejudices the protection the consumer has to provide remedy to the lender and prevent both removal of the major benefit of the contract, as well as the burden of having to meet the full payment for the debt. Yes, the debtor missed payments but the lender has both duty and resource to issue that notice with precision and a failure to do that, that leads to the lender terminating the agreement (or acting as if the agreement has been terminated even if it is not technically available) with the removal of the major benefit must surely be assessed as being a fundamental breach. As this is a fundamental, and not inconsequential breach of the terms surely the common law repudiation can be claimed? In paragraph 88 of his judgment in Stocznia Gdanska S.A. v Latvian Shipping Co [2002] EWCA Civ 889, [2002] 2 Lloyd's Rep. 436 Rix L.J. expressed the view that where contractual and common law rights overlap it would be too harsh to regard the use of a contractual mechanism of termination as ousting the common law mechanism, at any rate against a background of an express reservation of rights. In this case I would go further. In my view it is wrong to treat the right to terminate in accordance with the terms of the contract as different in substance from the right to treat the contract as discharged by reason of repudiation at common law. In those cases where the contract gives a right of termination they are in effect one and the same.

At least you know how it works now. How long ago was the account opened again? Just wondering how many years of statements won't be available (if the account goes past 6 years).