Welcome Finance **WON**

[postggj]

my point being the default notice shows total ammount payable under the agreement is 1800,510.00

this is obviouse incorrect

comments please

[postggj]

127(3) The court shall not make an enforcement order under section 65(1) if section 61(1)(a)(signing of agreements) was not complied with unless a document (whether or not in the prescribed form and complying with regulations under section 60(1)) itself containing all the prescribed terms of the agreement was signed by the debtor or hirer (whether or not in the prescribed manner).

 

23. The courts attention is also drawn to the authority of the House of Lords in Wilson-v- FCT [2003] All ER (D) 187 (Jul) which confirms that where a document does not contain the required terms under the consumer credit act 1974 and the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) and Consumer Credit (Agreements) (Amendment) Regulations 2004 (SI2004/1482) the agreement cannot be enforced

 

24. With regards to the Authority cited in point 23, I refer to LORD NICHOLLS OF BIRKENHEAD in the House of Lords Wilson v First County Trust Ltd - [2003] All ER (D) 187 (Jul) paragraph 29

 

" The court's powers under section 127(1) are subject to significant qualification in two types of cases. The first type is where section 61(1)(a), regarding signing of agreements, is not complied with. In such cases the court 'shall not make' an enforcement order unless a document, whether or not in the prescribed form, containing all the prescribed terms, was signed by the debtor: section 127(3). Thus, signature of a document containing all the prescribed terms is an essential prerequisite to the court's power to make an enforcement order."

[postggj]

i have poached this exelent poc from pt2537

would like your ideas stephen on where to put it in my claim along side yours if needed, ref wilson case, and what to deleate from the poc i have posted

again if you please comments on the default notice

need to get this two the court this friday by 4pm

 

if pt2537 would like to comment ,the more the better

many thanks

[steven4064]

The POC should be as simple as possible and just state what you are claiming and the grounds for claiming it. Para 6 is not dubious or incorrect - it just doesn't relate to anything you are claiming

 

I don't think the other stuff is necessary but you could put it in the relevant place. It might be worth sending the court and defendant a copy of Wilson

[pt2537]

i have poached this exelent poc from pt2537

would like your ideas stephen on where to put it in my claim along side yours if needed, ref wilson case, and what to deleate from the poc i have posted

again if you please comments on the default notice

need to get this two the court this friday by 4pm

 

if pt2537 would like to comment ,the more the better

many thanks

 

Hi

 

I tend to agree with Steven,however, you need to set out what you claim why and any authority which you rely upon in brief. the more in depth stuff comes from witness statements and skeleton arguments

 

BUT, with regards to the default notice , the figure required to be paid to remedy the breach is the important one here, is that figure correct or incorrect? if its incorrect then it flaws the default notice per Woodchester and Swain

 

 

the stuff youve used was from my defenses to actions brought under flawed CCA's so it may not in its raw form be useful to your case so bear in mind

 

Regards

 

paul

[pt2537]

Hi postggj

 

Happy Chrismas

 

PoC looks OK to me (but it would, wouldn't it) PAra 5 has gone a bit strange and I still don't understand why para 6 is there.

Para 5 is clearly a cut and paste from the site,

 

para 6 is a little lost, the common law reference is wrong IMHO as it is authority from the Consumer Credit Act 1974 and confirmed by the Lords of Appeal in ordinary AKA the House of Lords in Wilson v First County Trust Ltd - [2003] All ER (D) 187 (Jul)

 

in fact the POCs really need looking at IMHO as they need to set out what your claiming and why. they need to be understandable to the judge or you run the risk of the judge striking out the claim under 3.4 of the CPR

[pt2537]

Personally i would consider asking the court to use its powers under section 142 Consumer Credit Act 1974 to declare the agreements unenforceable.

 

just a thought;)

[pt2537]

Also, iof you are looking for reference to the actual wilson ruling the Court of Appeal ruling is more informative on the issues of the actual credit agreements

 

In January 1999 the claimant, W, signed a loan agreement with the defendant pawnbroker, and pledged her car as security.

The agreement was a regulated agreement for the purposes of the Consumer Credit Act 1974. Section 61(1)a of the 1974 Act

set out three conditions which had to be satisfied if a regulated agreement was to be treated as properly executed. Condition

(a) required both the debtor and the creditor to sign, in the prescribed manner, a document in the prescribed form containing

all the prescribed terms and conforming to regulations made under s 60(1). By virtue of para 2b of Sch 6 to the Consumer

Credit (Agreements) Regulations 1983, the prescribed terms included 'a term stating the amount of the credit'. Under s 65(1)c

of the Act, an improperly-executed regulated agreement was enforceable against the creditor only on order of the court.

Section 127(3)d provided that the court could not make such an order if s 61(1)(a) had not been complied with unless a

document (whether or not in the prescribed form and complying with regulations under s 60(1)) itself containing all the

prescribed terms of the agreement was signed by the debtor or hirer (whether or not in the prescribed manner). The court thus

had no power to make a s 65(1) order in cases where the debtor had not signed a document containing all the prescribed

terms, even though the omission of a prescribed term had caused no prejudice to anyone. In such cases, security taken for the

loan would also, prima facie, be rendered unenforceable by s 113e of the Act. In W's case, her agreement with the

pawnbroker stated the amount of the loan to be £2,500. That included a sum of £250 which was stated to be a document fee.

In subsequent county court proceedings between the parties, the principal issue was whether the inclusion of that sum in the

amount stated to be the amount of the loan meant that 'the amount of the credit' had been misstated. The judge held that the

agreement conformed with the conditions. On W's appeal, the Court of Appeal reversed the judge's decision, holding that the document fee could not of itself be treated as credit, that the 'amount of the credit' was

therefore £5,000, not £5,250, and that accordingly the agreement was not a properly-executed regulated agreement. The court

further held that the case fell within s 127(3), that the agreement was therefore unenforceable against W and that, at least

prima facie, the pawnbroker could not rely on the security. In those circumstances, the court indicated that it was considering

making a declaration under s 4f of the Human Rights Act 1998 that s 127(3) was incompatible with two rights guaranteed by

the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950 (as set out in Sch 1 to the

1998 Act) (the convention), namely the right to a fair hearing under art 6(1)g and the prohibition against depriving a person of

his possessions under art 1h of the First Protocol to the convention. The appeal was therefore adjourned for further hearing

after notice had been given to the Crown. On the adjourned hearing, the court was required to determine (i) whether the

relevant provisions of the 1998 Act had any application in view of the fact that the agreement pre-dated their implementation

on 2 October 2000; if so, (ii) whether the provisions in s 127(3) of the 1974 Act, read with those in Sch 6 to the 1983

regulations, would be incompatible with a convention right guaranteed to the pawnbroker; if so, (iii) whether it was possible

(as required by s 3(1)i of the 1998 Act) for the court to read and give effect to the provisions in s 127(3) of the 1974 Act in a

way which was compatible with that convention right; and, if that were not possible, (iv) whether, as a matter of discretion, a

declaration of incompatibility should be granted. In considering those issues, the court had regard to various provisions of the

1998 Act in addition to s 3(1), namely s 6(1)j, which made it unlawful for a 'public authority' (a term which included a court)

to act in a way which was incompatible with convention rights; s 6(2)(b), which excluded the application of s 6(1) where, in

the case of one or more provisions of, or made under, primary legislation which could not be read or given effect in a way

which was compatible with convention rights, the court was acting so as to give effect to or enforce those provisions; and s

10k, which enabled the government to take remedial action in the event of a declaration of incompatibility.

 

Held--(1) In order to comply with s 6(1) of the 1998 Act, the court had to ask itself, in any case which came before it after 2

October 2000, whether the order which it was about to make was or was not compatible with convention rights. Accordingly,

the relevant event, in the instant case, was not the making of the agreement, but rather the making of an order on the appeal

from the judge. The relevant question was not whether some convention right of the pawnbroker was infringed when it made

a loan to W upon the terms of the agreement. Rather, it was whether in allowing an appeal from the order made by the judge-

-or, more precisely, in making an order after 2 October 2000 which gave effect to a decision to allow the appeal--the court would be acting in a way which was incompatible with an existing convention right. That question had to be answered in the

basis of facts as they were at the time when the order was made in the Court of Appeal. It followed that ss 3, 4 and 6 of the

1998 Act applied (see [16]-[18], below).

(2) Section 127(3) of the 1974 Act was incompatible with the rights guaranteed under art 6(1) of the convention and art 1 of

the First Protocol. Those provisions of the convention were engaged by the restriction on the enforcement of the creditor's

contractual rights. The critical question, therefore, was whether the exclusion of any judicial remedy in a case such as the

instant case was legitimate, having regard to the nature of the rights engaged by that exclusion. The policy aim of s 127(3)

was to ensure that particular attention was paid to the inclusion in the document to be signed by the debtor of certain terms

which would, or might, be prescribed by the Secretary of State in the future. Although it was impossible to suggest that that

was not a legitimate aim, it did not follow that the means by which it was to be achieved were also legitimate. The means

would not be legitimate if guaranteed convention rights were infringed to an extent which was disproportionate to the policy

aim. That, however, was the effect of the inflexible prohibition, imposed by s 127(3), against the making of an enforcement

order in cases where the document signed by the debtor failed to include the prescribed terms. No reason had been identified

as to why such a prohibition was necessary in order to achieve the legitimate policy aim. There was no reason why it should

not be achieved through judicial control, by empowering the court to do what was just in the circumstances of the particular

case. Moreover, it was not possible to read and give effect to the relevant provisions of the 1974 Act in a way which was

compatible with the pawnbroker's human rights. It was therefore necessary to consider whether the court should, as a matter

of discretion, grant a declaration of incompatibility. It was right to do so for three reasons. First, the point had been fully

identified and argued at a further hearing appointed for that purpose. Second, since the court had held that the order which it

was required to make on the appeal by a non-convention interpretation of s 127(3) would be incompatible with convention

rights, it could not lawfully make that order unless satisfied that the section could not be read or given effect in a way which

was compatible with convention rights. It was appropriate that the court's conclusion to that effect should be formally

recorded by a declaration which gave legitimacy to the order. Third, a declaration served a legislative purpose under the 1998

Act in that it provided a basis, under s 10(1)(a), for a minister of the Crown to consider whether there were compelling

reasons to make amendments to the legislation by remedial order (under Sch 2 to the Act) for the purpose of removing the

incompatibility which the court had identified. Accordingly, a declaration of incompatibility would be granted (see [28], [31],

[32], [39], [40], [45], [47], [50], [51], below).

 

 

 

2 May 2001. The following judgment was delivered.

 

SIR ANDREW MORRITT V-C

 

(giving the judgment of the court).

 

[1]

We handed down interim judgments in this appeal on 23 November 2000. We indicated, in those judgments ([2001] QB 407,

[2001] 2 WLR 302), that we were considering whether to make a declaration, under s 4(2) of the Human Rights Act 1998,

that a provision of primary legislation--s 127(3) of the Consumer Credit Act 1974--was incompatible with a convention right.

In those circumstances we directed that notice should be given to the Crown under s 5 ofthe 1998 Act and we adjourned the appeal for further hearing. This is the judgment of the court following the further hearing

of the appeal.

The application of the 1974 Act to the facts in this case

[2]

The appeal is from an order made on 24 September 1999 by Judge Hull QC, sitting in the Kingston upon Thames County

Court at Epsom, in proceedings brought by Mrs Penelope Wilson against the First County Trust Ltd, a pawnbroker. The

underlying facts are set out in the earlier judgment of the Vice-Chancellor. It is unnecessary to rehearse them at any length. It

is sufficient to recall that the principal issue was whether the inclusion of an amount (£250), described as a document fee, in

the amount (£5,250) stated on the face of a loan agreement signed by Mrs Wilson on 22 January 1999 to be the amount of the

loan had the effect that 'the amount of the credit' was misstated. We held, reversing the judge, that the document fee--being

an item which entered into the total charge for credit--could not, itself, be treated as credit. Accordingly, on a true analysis of

the position, 'the amount of credit' was £5,000, not £5,250.

 

[3]

It was common ground that the agreement of 22 January 1999 was a regulated agreement for the purposes of the 1974 Act.

Section 61(1) of the 1974 Act sets out three conditions which must be satisfied if a regulated agreement is to be treated as

properly executed. Condition (a) requires that a document in the prescribed form containing all the prescribed terms and

conforming to regulations under s 60(1) is signed in the prescribed manner both by the debtor and by or on behalf of the

creditor. In the present context 'the prescribed terms' for the purposes of s 61(1)(a) of the 1974 Act include 'a term stating the

amount of the credit'--see para 2 in Sch 6 to the Consumer Credit (Agreement) Regulations 1983, SI 1983/1553. It followed

from the fact that the amount of the credit was misstated that the agreement of 22 January 1999 was not a properly executed

regulated agreement.

[4]

Section 65(1) of the 1974 Act provides that an improperly executed regulated agreement is enforceable against the debtor on

an order of the court only. Section 127 of the 1974 Act sets out the powers of the court upon an application for an

enforcement order under (inter alia) s 65(1). Section 127(1) provides that the court shall dismiss the application if, but only if,

it considers it just to do so having regard to (i) prejudice caused to any person by the contravention in question and the degree

of culpability for it, and (ii) the powers conferred on the court by s 127(2) and ss 135 and 136 of the 1974 Act. Section 127(2)

empowers the court (if it appears just to do so) to reduce or discharge any sum payable by the debtor, so as to compensate

him for prejudice suffered as a result of the contravention in question. Sections 135 and 136 confer further powers on the

court in relation to the terms upon which enforcement orders may be made.

[5]

Section 127(1) of the 1974 Act is subject to the restrictions imposed by ss 127(3) and (4). Those subsections set out

circumstances in which the court shall not make an enforcement order under s 65(1) of the 1974 Act. In particular, s 127(3) is

in these terms:

'The court shall not make an enforcement order under section 65(1) if section 61(1)(a) (signing of agreements) was not complied with

unless a document (whether or not in the prescribed form and complying with regulations under section 60(1)) itself containing all the

prescribed terms of the agreement was signed by the debtor or hirer (whether or not in the prescribed manner).'

[2001] 3 All ER 229 at 234

It follows that in a case where there is no document signed by the debtor--or no document signed by the debtor which

contains all the prescribed terms of the agreement--the court has no power to make an enforcement order. In such a case, the

effect of ss 65(1) and 127(3) of the 1974 Act is that the agreement is not enforceable against the debtor.

[6]

Further, at least prima facie, security taken for the loan will also be unenforceable in such a case. Section 113(1) of the 1974

Act provides (so far as material) that--

'Where a security is provided in relation to an actual or prospective regulated agreement, the security shall not be enforced so as to benefit

the creditor ... directly or indirectly, to an extent greater (whether as respects the amount of any payment or the time or manner of its

being made) than would be the case if the security were not provided and any obligations of the debtor ... under ... the agreement were

carried out to the extent (if any) to which they would be enforced under this Act.'

In a case where the agreement itself is not enforceable against the debtor--by reason of the provisions in ss 65(1) and 127(3)--

the creditor could obtain no benefit if 'the security were not provided'. So, in such a case, notwithstanding that 'security is

provided', the security cannot be enforced so as to benefit the creditor. The point is reinforced by s 113(2):

'In accordance with subsection (1), where a regulated agreement is enforceable on an order of the court º only, any security provided in

relation to the agreement is enforceable (so far as provided in relation to the agreement) where such an order has been made in relation to

the agreement, but not otherwise.'

 

In a case where no enforcement order can be made in relation to the regulated agreement, it must follow that security

provided in relation to the agreement is not enforceable either.

[7]

We held that the present case fell within s 127(3) of the 1974 Act--because (in the absence of a term correctly stating the

amount of the credit) the document signed by the debtor on 22 January 1999 did not include all the prescribed terms of the

agreement. It followed (i) that the agreement was not enforceable against Mrs Wilson and (ii) at least prima facie, that First

County Trust could not rely on the security which she had provided by way of pledge over her BMW car.

The convention rights

[8]

Article 6(1) of the European Convention for the Protection of Human Rights and Fundamental Freedoms (Rome, 4

November 1950; TS 71 (1953); Cmd 8969) (the convention) as it has effect for the time being in relation to the United

Kingdom provides, so far as material, that:

'In the determination of his civil rights and obligations ... everyone is entitled to a fair and public hearing within a reasonable time by an

independent and impartial tribunal established by law ...'

Article 1 of the First Protocol to the convention, agreed at Paris on 20 March 1952, provides that:

'Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except

in the public

interest and subject to the conditions provided for by law ... The preceding provisions shall not, however, in any way impair the right of a

State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest ...'

[9]

We pointed out, in the judgments which we handed down on 23 November 2000, that the effect of ss 65(1) and 127(3) of the

1974 Act--in a case to which the latter section applies--is to deprive the court of any power to enforce a regulated agreement

from which a prescribed term has been omitted; notwithstanding that no prejudice has been caused to anyone by that

omission. We queried whether that was a proportionate response, having regard to the creditor's convention rights. The point

was identified by the Vice-Chancellor ([2001] QB 407 at 418, [2001] 2 WLR 302 at 313 (para 27)):

'It appears to me that it may be arguable that section 127(3) infringes article 6(1) of, and/or article 1 of the First Protocol to, the

Convention for the Protection of Human Rights and Fundamental Freedoms set out in Schedule 1 to the Human Rights Act 1998. In the

case of article 6(1) it is arguable that the absolute bar to enforcement in the case of an agreement which does not contain the prescribed

terms is a disproportionate restriction on the right of the lender, which exists in all other cases, to have the enforceability of his loan

determined by the court: Osman v United Kingdom ((1998) 5 BHRC 293). The position is similar in the case of article 1 of the First

Protocol. The money advanced by FCT to Mrs Wilson was its possession. It lent that money to Mrs Wilson on terms, as it thought, that it

should be repaid in six months time. It has been deprived of that possession as provided for by law in the form of section 127(3). But does

that law strike a fair balance between the demands of the general community and the fundamental right of the individual? See Stran Greek

Refineries v Greece ((1994) 19 EHRR 293 at 328 (para 69)).'

 

The Human Rights Act 1998

[10]

Section 6(1) of the 1998 Act makes it unlawful for a public authority to act in a way which is incompatible with a convention

right. In that context 'public authority' includes a court or tribunal--see s 6(3)(a) of the 1998 Act. But s 6(2)(b) excludes the

application of s 6(1) where, in the case of one or more provisions of, or made under, primary legislation which cannot be read

or given effect in a way which is compatible with the convention rights, the court is acting so as to give effect to or enforce

those provisions. That provision must be read in conjunction with s 3(1) of the 1998 Act, which requires that, so far as it is

possible to do so, primary legislation must be read and given effect in a way which is compatible with the convention rights.

The position, therefore, is that, where a court is faced with a provision in primary legislation which appears to require it to

make an order which would be incompatible with a convention right, the court must consider whether it is possible to read

and give effect to that provision in a way which does not lead to that result. If it is possible to do so, then the court must take

that course. The court will make an order which is not incompatible with the convention right. But if it is not possible to read

and give effect to the primary legislation in a way which is compatible with the convention right, then the court must make

the order which the primary legislation requires. It will not, then, be acting unlawfully--see s 6(2)(b) of the 1998 Act.

[11]

It follows that, in any case where the court makes an order which is incompatible with a convention right, it must,

necessarily, first address the question whether it is required to do so by some provision in primary legislation. If satisfied that

it is required to do so--that is to say, if satisfied that (notwithstanding the obligation imposed on the court by s 3(1) of the

1998 Act) the provision in primary legislation cannot be read and given effect in a way which is compatible with the

convention right--the court (if a court within s 4(5) of the 1998 Act) may make a declaration of that incompatibility--see s 4

(2) of the 1998 Act. It does so, in part at least, in order to explain why it is not, itself, acting unlawfully--see ss 6(1) and 6(2)

(b) of the 1998 Act. But, in so doing, it also enables remedial action to be taken by government, under s 10 of the 1998 Act.

A declaration of incompatibility does not affect the validity, continuing operation or enforcement of the provision in respect

of which it is given, nor is it binding on the parties to the proceedings in which it is made--see s 4(6) of the 1998 Act.

[12]

Section 5(1) of the 1998 Act requires that where a court is considering whether to make a declaration of incompatibility, the

Crown is entitled to be given notice; and, in such a case, a Minister of the Crown (or a person nominated by him) is entitled

to be joined as a party to the proceedings. In the present case, in response to the notice which we directed to be given under s

5 of the 1998 Act, the Secretary of State for Trade and Industry has been joined as a party to the appeal. Counsel instructed

on his behalf has appeared at the further hearing to resist the making of a declaration of incompatibility.

The issues for decision on the further hearing of the appeal

[13]

The original respondent to the appeal, First County Trust, had not been represented by solicitors or counsel at the earlier

hearing of the appeal and (in any event) would seem to have no interest in the question whether or not a declaration of

incompatibility should be made. In those circumstances we thought it appropriate to invite the Attorney General to appoint an

amicus curiae to assist the court. We have had that assistance, for which we are grateful. We have been assisted, also, by

counsel now instructed on behalf of First County Trust and by counsel who have accepted instructions pro bono publico on

behalf of the appellant, Mrs Wilson.

[14]

In the light of the submissions which have been made to us, we identified the following issues for decision: (i) whether the

relevant provisions of the 1998 Act have any application in circumstances where the agreement of 22 January 1999 pre-dated

2 October 2000, the date upon which those provisions came into force; if so, (ii) whether the provisions in s 127(3) of the

1974 Act--read with those in Sch 6 to the 1983 regulations--would (but for the application of s 3(1) of the 1998 Act) be

incompatible with a convention right guaranteed to First County Trust; if so, (iii) whether it is possible (as required by s 3(1)

of the 1998 Act) to read and give effect to the provisions in s 127(3) of the 1974 Act in a way which is compatible with that

convention right; and, if that is not possible, (iv) whether, as a matter of discretion, a declaration of incompatibility should be

made. We address those issues in the following paragraphs of this judgment.

 

Whether the relevant provisions of the 1998 Act have any application in this case

[15]

It was submitted on behalf of the Secretary of State that the court has no power, under s 4(2) of the 1998 Act, to make a

declaration of incompatibility in a case, such as the present, where what is said to be the relevant event--the making of the

regulated agreement on 22 January 1999--took place before that section

was brought into force (on 2 October 2000) by an order made under s 22(3) of that 1998 Act. The Secretary of State does not

shrink from the necessary conclusion that, if that submission were well founded, it would follow that, in a case where the

relevant event took place before 2 October 2000, a court is not required by s 3(1) of the 1998 Act to read and give effect to

legislation (so far as it is possible to do so) in a way which is compatible with convention rights; nor would a court be acting

unlawfully under s 6(1) of the 1998 Act if (having failed to give effect to s 3(1) of the 1998 Act) it were to make an order

which is incompatible with a convention right. We have explained, already, that ss 3, 4 and 6 of the 1998 Act must be read

together.

[16]

In our view the submission that ss 3, 4 and 6 have no application in the present case is misconceived.

[17]

The 1998 Act was enacted, as appears from its long title, 'to give further effect to rights and freedoms guaranteed under the

European Convention on Human Rights'. The convention rights to which the 1998 Act gives 'further effect' are not,

themselves, new rights introduced by the 1998 Act; they are existing rights set out in the convention and its Protocols, to

which the United Kingdom is party--see s 1(1) of the 1998 Act. The object of the 1998 Act is to incorporate those rights into

domestic law and to give an effective domestic remedy. Section 6 must be read with that object in mind. Section 6(1)--in

conjunction with s 6(3)(a)--requires a court to refrain from acting in a way which is incompatible with a convention right. If

the court is to comply with that requirement it must ask itself--in any case which comes before it after 2 October 2000--

whether the order which it is about to make is or is not compatible with convention rights. The relevant event, in the present

case, is not the making of the agreement on 22 January 1999; the relevant event is the making of an order on this appeal.

[18]

To put the point in another way, the relevant question, in the present case, is not whether some convention right of First

County Trust was infringed when it made a loan to Mrs Wilson upon the terms of the agreement dated 22 January 1999; nor

whether, before 2 October 2000, there was any domestic remedy in respect of any such infringement. The relevant question is

whether in allowing an appeal from the order made by Judge Hull QC--or, more precisely, in making an order after 2 October

2000 which gives effect to a decision to allow the appeal--this court would be acting in a way which is incompatible with an

existing convention right. That is a question which has to be answered on the basis of the facts as they are at the time when

the order is made in this court.

[19]

The contrary argument is founded on the provisions of s 22(4) of the 1998 Act, which both extends and limits the

retrospective effect of s 7(1). Section 7(1) of the 1998 Act is in these terms:

'A person who claims that a public authority has acted (or proposes to act) in a way which is made unlawful by section 6(1) may--(a)

bring proceedings against the authority under this Act in the appropriate court or tribunal, or (b) rely on the Convention right or rights

concerned in any legal proceedings, but only if he is (or would be) a victim of the unlawful act.'

For the purposes of s 7(1)(b) 'legal proceedings' includes (a) proceedings brought by or at the instigation of a public authority,

and (b) an appeal against the decision of a court or tribunal--see s 7(6) of the 1998 Act. That is the context in which s 22(4) of

the 1998 Act must be read. The section is in these terms:

 

'Paragraph (b) of subsection (1) of section 7 applies to proceedings brought by or at the instigation of a public authority whenever the act

in question took place; but otherwise that subsection does not apply to an act taking place before the coming into force of that section.'

It is said that the first limb of that section--which identifies limited circumstances in which s 7(1)(b) applies to an act (alleged

to be unlawful under s 6(1)) which has taken place before 2 October 2000 (when s 7, also, came into force pursuant to s 22(3)

of the 1998 Act)--is the exception which proves the general rule. The general rule, it is said, is that a court is not concerned

with alleged infringing acts which took place before 2 October 2000.

[20]

We are satisfied that that argument is based on a misunderstanding of the purpose and effect of s 22(4) of the 1998 Act. The

effect of s 22(4) is not in doubt. It provides (by the second limb of the section) that, in general, s 7(1) does not apply to an act

taking place before 2 October 2000. So, for example, a person who claims that a public authority has acted in a way which is

incompatible with a convention right (contrary to s 6(1) of the 1998 Act) cannot bring proceedings against the authority

under the 1998 Act (pursuant to s 7(1)(a)) if the unlawful act took place before 2 October 2000. Nor, it seems, can a person

who claims that a court or tribunal has acted in a way which is incompatible with a convention right (contrary to s 6(1) of the

1998 Act) rely on that as a ground of appeal against the decision of that court or tribunal in a case where the decision

complained of was made before 2 October 2000--see s 7(1)(b) and s 7(6)(b) of the 1998 Act. If the act which is said to be

unlawful under s 6(1) has taken place before 2 October 2000, it is only where the person who claims to be the victim of that

act is party to proceedings brought by or at the instigation of a public authority that he can rely on that section.

[21]

Once the effect of s 22(4) of the 1998 Act is analysed, it is not difficult to see the purpose for which that section was enacted.

Parliament took the view--no doubt as a matter of policy--that public authorities should not be exposed to proceedings in

respect of acts (alleged to be incompatible with convention rights) which had taken place before ss 6 and 7 had come into

force. Nor should the decisions of courts and tribunals made before those sections had come into force be impugned on the

ground that the court or tribunal was said to have acted in a way which was incompatible with convention rights. But, where

the public authority was itself the claimant in, or the instigator of, proceedings, there was no policy reason why another party

to those proceedings should not rely on an allegation that the authority had acted in a way which s 6 made unlawful,

whenever the alleged unlawful act had taken place. The first limb of s 22(4) is required because, without it, an act of a public

authority which was incompatible with a convention right but which had taken place before s 6 had come into force would

not be unlawful; with the consequence that the unlawfulness of the act could not be relied upon as an answer to proceedings

brought by the public authority. The second limb of s 22(4) is required because, without it, public authorities would be

exposed to claims in respect of acts (said to be unlawful under s 6(1)) which had taken place before s 7 had come into force.

[22]

So understood, s 22(4) of the 1998 Act provides no support for the submission that s 6(1)--or ss 3 and 4--of the 1998 Act

have no application in the present case. Section 22(4) is directed to the particular problems raised by the decision to give a

domestic remedy, under s 7(1) of the 1998 Act, against public authorities who act, or have acted, in a way made unlawful by

s 6(1). It has no relevance to thequite separate question whether a court, which is now required by s 6(1) to act in a way which is compatible with conventionrights, must have regard to the facts as they are at the time when it makes its order. As we have said, that question requires an

affirmative answer.

Whether the provisions in s 127(3) of the 1974 Act would (but for the application of s 3(1) of the 1998 Act) be

incompatible with a convention right

[23]

We turn, therefore, to consider the second issue for decision on this further hearing: whether the provisions in s 127(3) of the

1974 Act--read with those in Sch 6 to the 1983 regulations--would (but for the application of s 3(1) of the 1998 Act) be

incompatible with the rights guaranteed to the pawnbroker by art 6(1) of the convention and art 1 of the First Protocol.

 

[24]

It is essential to a proper consideration of this issue to appreciate that there is nothing in the 1974 Act which prevents an

improperly executed regulated agreement from giving rise to contractual rights. Nor is there anything in the 1974 Act which

prevents the right to possess goods pledged as security for the borrower's contractual obligations under such a contract

passing on delivery of the goods by the pawnor to the pawnee. The effect of the 1974 Act, in the present context, is limited to

restricting the ability of the pawnbroker to enforce its contractual rights, or to enforce its security as the person in possession

of the goods pledged.

[25]

The point is made by ss 65(1) and 113(2) of the 1974 Act. Section 65(1) provides for an improperly executed agreement to be

enforced on an order of the court. Where the court makes an enforcement order, it enforces the contractual rights under the

agreement; subject to the reduction or discharge of any sum payable thereunder (see s 127(2)), the omission of any term

omitted in the document signed by the debtor (see s 127(5)), or such variation or modification as it may make under s 136 in

consequence of a term imposed under s 135 of the 1974 Act. Where, following an enforcement order, security is enforceable

under s 113(2) of the 1974 Act, it is the security that has been provided in relation to the agreement that is enforced. Sections

65(1) and 113(2) of the 1974 Act do not make the rights conferred on the creditor by the agreement or by the delivery of the

pawn unenforceable. Rather, those sections recognise that those rights exist and are enforceable; but enforcement against the

debtor or pawnor is made subject to judicial control.

[26]

The recognition that there is nothing in the 1974 Act which prevents an improperly executed regulated agreement from

giving rise to contractual rights, nor which prevents the right to possess goods pawned as security passing on delivery of the

goods, provides the answer, as it seems to us, to the principal argument advanced on behalf of the Secretary of State in

support of his submission that there is nothing in s 127(3) of the 1974 Act which is incompatible with convention rights. It

was said, in effect, in relation to art 1 of the First Protocol, that, where there was no document signed by the debtor--or where

the document signed by the debtor did not contain all the prescribed terms of the agreement--neither the agreement, nor the

delivery of the pawn, conferred any enforceable rights on the creditor. So, in the present case, the creditor had no relevant

'possessions' to the peaceful enjoyment of which it was entitled, or of which it was deprived by s 127(3) of the 1974 Act. In

effect, the creditor--by failing to ensure that he obtained a document signed by the debtor which contained all the prescribed

terms--must (in the light of the provisions in ss 65(1) and 127(3) of the 1974 Act) be taken to have made a voluntary

disposition, or gift,

 

of the loan moneys to the debtor. The creditor had chosen to part with the moneys in circumstances in which it was never

entitled to have them repaid; so there is nothing to engage the rights guaranteed by art 1 of the First Protocol. Nor, on that

analysis, does the creditor have any civil rights in respect of which it is entitled to a fair and public hearing by an independent

and impartial tribunal. Article 6 of the convention is not in point.

[27]

There is, if we may say so, such an obvious unreality in treating the pawnbroker as if it were a voluntary disponor that we do

not find it a matter of any surprise that the argument advanced on behalf of the Secretary of State cannot be supported. It

cannot be supported because, as we have said, a proper analysis of the 1974 Act does not lead to the conclusion that a

creditor under a regulated agreement who fails to obtain a document signed by the debtor which contains all the prescribed

terms is without rights. The true analysis is that the agreement, and the delivery of the pawn, do confer rights on the creditor;

but those rights are subject to restrictions on enforcement.

[28]

It is the restrictions on enforcement which engage art 6(1) of the convention. The guarantee, in relation to the determination

of a party's civil rights, of a fair and public hearing by an independent and impartial tribunal is of no substance if the outcome

is determined by a statutory inhibition which not only prevents the court from doing what is just in the circumstances, but

does so (a) in the context of a legislative scheme which gives the court a discretion to do what is just in other, very similar,

circumstances and (b) for reasons which (if they exist at all) are wholly opaque. If there is some legitimate aim in pursuit of

which the guarantee enshrined in art 6(1) needs to be wholly or partially curtailed, then it is necessary to ask whether the

statutory inhibition is proportionate to that aim. Is there a proper balance between ends and means?

 

[29]

The contrast between ss 127(1) and 127(3) of the 1974 Act is striking. Section 127(1) provides that, on an application under s

65(1) of the 1974 Act for an enforcement order in relation to an improperly executed agreement, the court shall dismiss the

application if, but only if, it considers it just to do so. In considering whether it is just to refuse an enforcement order, the

court must have regard to questions of prejudice and culpability; and to its own powers to reduce or discharge any sum

payable by the debtor or to impose terms and conditions in the order. Section 127(3) provides that the court shall not make an

enforcement order on an application under s 65(1) of the 1974 Act where the reason why the agreement is not properly

executed (for the purposes of s 61(1)) is that there is no document signed by the debtor which contains all the prescribed

terms. In such a case the court can have no regard to prejudice or culpability. It is immaterial that the creditor was in no way

to blame for the omission; it is immaterial that the omission has caused no prejudice to the debtor; it is immaterial that any

prejudice which the omission has caused to the debtor could be the subject of some compensating provision in an

enforcement order.

[30]

Further, it is not the omission of every term of the agreement which leads to the consequence that the court cannot make an

enforcement order. There will be a failure to comply with s 61(1)(a) of the 1974 Act if the document which is signed is not in

the prescribed form or does not conform to regulations made under s 60(1) of the 1974 Act. Regulations made under s 60(1)

may--and, in the case of the 1983 regulations, do--require a great deal of information (in addition to terms prescribed for the

purposes of s 61(1)(a)) to be included. For example, the annual percentage rate of charge for credit (APR) must be included

in a regulated consumer credit agreement--see reg 2(1) of, and Sch 1 to, the 1983 regulations--but

a statement of the APR is not one of the prescribed terms set out in Sch 6 to those regulations. A court is not prevented from

making an enforcement order if the failure to comply with s 61(1)(a) of the 1974 Act is the omission of a term which is not a

prescribed term--see s 127(3). In such a case the court may, if it thinks fit, make an enforcement order which directs that the

agreement is to have effect as if it did not include the term which has been omitted from the document signed by the debtor--

see s 127(5) of the 1974 Act.

[31]

The question, therefore, is whether the exclusion of any judicial remedy--indeed, the exclusion of any meaningful

consideration by the court of the creditor's rights under the agreement--in a case where the document signed by the debtor

does not include all the prescribed terms of the agreement is legitimate, having regard to the fundamental nature of the right

guaranteed by art 6(1) of the convention. The principle was expressed in the majority judgment in the European Court of

Human Rights in Osman v UK (1998) 5 BHRC 293 at 329 (para 147):

'However, this right [the right of access to a court under article 6(1) of the convention] is not absolute, but may be subject to limitations;

these are permitted by implication since the right of access by its very nature calls for regulation by the state. In this respect, the

contracting states enjoy a certain margin of appreciation, although the final decision as to the observance of the convention's requirements

rests with the court. It must be satisfied that the limitations applied do not restrict or reduce the access left to the individual in such a way

or to such an extent that the very essence of the right is impaired. Furthermore, a limitation will not be compatible with art 6(1) if it does

not pursue a legitimate aim and if there is not a reasonable relationship of proportionality between the means employed and the aim

sought to be achieved º' (My emphasis.)

As Lord Steyn pointed out in R v DPP, ex p Kebeline [1999] 4 All ER 801 at 843, [2000] 2 AC 326 at 380, the doctrine of

'the margin of appreciation', while a familiar part of the jurisprudence of the Strasbourg Court, has no place, as such, in a

consideration by a national court of a convention issue arising within its own domestic jurisdiction. But he went on to say:

'... in the hands of the national courts also the convention should be seen as an expression of fundamental principles rather than as a set of

mere rules. The questions which the courts will have to decide in the application of these principles will involve questions of balance

between competing interests and issues of proportionality. In this area difficult choices may have to be made by the executive or the

legislature between the rights of the individual and the needs of society. In some circumstances it will be appropriate for the courts to

recognise that there is an area of judgment within which the judiciary will defer, on democratic grounds, to the considered opinion of the

elected body or person whose act or decision is said to be incompatible with the convention. This point is well made in Human Rights

Law and Practice (1999) p 74, para 3.21, of which Lord Lester of Herne Hill QC and Mr David Pannick QC are the general editors,

where the area in which these choices may arise is conveniently and appropriately described as the "discretionary area of judgment". It

will be easier for such an area of judgment to be recognised where the convention itself requires a balance to be struck, much less so

where the right is stated in terms which are unqualified. It will beeasier for it to be recognised where the issues involve questions of social or economic policy, much less so where the rights are of high

constitutional importance or are of a kind where the courts are especially well placed to assess the need for protection.' (See [1999] 4 All

ER 801 at 844, [2000] 2 AC 326 at 380-381.)

[32]

For the reasons to which we have already referred, the exclusion of any judicial remedy in a case such as the present engages

not only art 6(1) of the convention but also art 1 of the First Protocol. Put shortly, the effect of ss 65(1) and 127(3) of the

1974 Act is to deprive the pawnbroker of its ability to enjoy benefit from the contractual rights arising from the agreement or

from the rights arising from the delivery of the pawn. Article 1 of the First Protocol requires, in terms, a balance to be struck

between the rights of the individual to enjoy possessions and the public or general interest. And there are a number of

decisions of the European Court of Human Rights which emphasise the need to strike that balance. It is enough, we think, to

refer to observations of the European Court in Sporrong v Sweden (1982) 5 EHRR 35 at 52 and 53 (paras 69 and 70); James v

UK (1986) 8 EHRR 123 at 144-145 (para 50); and Allgemeine Gold-und Silberscheideanstalt v UK (1986) 9 EHRR 1 at 13

and 14 (paras 52-55). The last of those references contains the following passage:

'The striking of a fair balance depends on many factors and the behaviour of the owner of the property, including the degree of fault or

care which he has displayed, is one element of the entirety of the circumstances which should be taken into account.'

As we have already observed, it is a feature of s 127(3) of the 1974 Act that, where it has the effect of excluding any judicial

consideration of the case, it does so without regard to prejudice or culpability. It excludes all consideration of the

circumstances of the particular case in favour of a mechanistic approach: does the document contain all the prescribed terms?

[33]

Counsel for the Secretary of State urged, rightly, that the 1974 Act is concerned with issues of social policy rather than

matters of high constitutional importance. The issues fall within an area in which the courts should be ready to defer, on

democratic grounds, to 'the considered opinion of the elected body or person'. We recognise the force of those arguments.

But, unless deference is to be equated with unquestioning acceptance, the argument that an issue of social policy falls within

a discretionary area of judgment which the courts must respect recognises, as it seems to us, the need for the court to identify

the particular issue of social policy which the legislature or the executive thought it necessary to address, and the thinking

which led to that issue being dealt with in the way that it was. It is one thing to accept the need to defer to an opinion which

can be seen to be the product of reasoned consideration based on policy; it is quite another thing to be required to accept,

without question, an opinion for which no reason of policy is advanced.

[34]

It was submitted on behalf of the Secretary of State that an attempt to investigate, through examination of preparatory

materials and the content of debates in Parliament, what reason of policy led enacted legislation to take the precise form that

it does is, itself, illegitimate. It is enough, he submits, that the legislation has been enacted. Because it has been enacted, it

must be taken to represent the considered opinion of the elected body. It is not for the courts to question the basis upon which

that opinion was reached; nor even, it seems,

to seek to understand the basis upon which that opinion was reached. For the reasons which we have already expressed, we

reject that submission. We note that the European Court of Human Rights has thought it helpful to look at preparatory

material in order to identify the policy aims and justification of social legislation--see James v UK (1986) 8 EHRR 123 at 143

(paras 47-48) and 146 (para 52); and Mellacher v Austria (1989) 12 EHRR 391 at 409 (para 47).

[35]

The 1974 Act had a lengthy gestation. It followed the Crowther Committee's Report on Consumer Credit (Cmnd 4596) in

March 1971. We were taken through that report in some detail. We were shown the White Paper Reform of the Law on

Consumer Credit (Cmnd 5427) presented to Parliament in September 1973. We were referred to the Parliamentary debates on

the bill. The purpose of that exercise was not to aid construction. There is no difficulty in construing s 127(3) of the 1974

Act. The question on which we sought assistance was not 'what is the meaning of the words which Parliament has enacted?';

rather, the question was 'what was the reason which led Parliament to enact a provision in those words?'. Why was it thought

necessary to deny to the courts the power to do what was just in those cases in which there was no document signed by the

debtor which contained terms which would or might, at some future date, be prescribed by the Secretary of State?

[36]

The material to which we have been taken provides no answer to that question. Indeed, such references as there are to the

point tend to confuse rather than to illuminate. In a debate on 29 January 1974, in standing committee of the House of

Commons, the Minister of State (the Rt Hon Michael Heseltine MP), when introducing, as an amendment to what was then cl

118 of the bill, the provision which was to become enacted as s 127(3) of the 1974 Act, explained its purpose in these terms:

'... the Government do not think that Clause 118 clearly sets out their policy with regard to those matters which the court may or may not

overlook. Generally speaking, the Government want the court to overlook everything except a complete omission of the signature,

absolute failure to supply a second copy of an agreement in a cancellable transaction, and the complete absence of a notice of cancellation

rights in any copy of the agreement. The redraft of sub-sections (1) and (2) makes that clear ...'

Later, following a change of government, the purpose of the clause (which had become cl 129 of the bill) was explained by

the Minister of State (Lord Shepherd) in a debate in the House of Lords on 6 May 1974:

'Clause 129 permits the court, in certain circumstances, to allow the enforcement of an agreement against a debtor or hirer, even though

the agreement was not properly executed. But the debtor or hirer may have been prejudiced in some way by reason of this fact. For

example, the agreement may not have set out the terms properly, so that a debtor may have entered into it without fully realising how

much he was going to pay. He may have thought that the total amount he was to pay would be £500, whereas in fact it would be £600. It

may be that an error in the agreement was due to some unintentional slip by a shop assistant, so that it would be unfair on the creditor to

deprive him of all his rights under the agreement. On the other hand, it might be unfair to the debtor in such a case to make him pay the

whole sum. In such a case we feel that the court should be able to act justly between the parties, and order the debtor to pay the creditor a

substantial part of the £600, but not the whole of it. If the debtor had been misled into thinking that £500 was all he would have to pay, we

think the court should be able to order him to pay £500 only.'

It is impossible to find in those passages any indication of the thinking which led the government to propose--or which led

Parliament to enact--provisions which draw such a sharp contrast between the power of the court to enforce an agreement

contained in a document which omits a term which is not a prescribed term and the position where the document omits a term

which is a prescribed term.

[37]

In the present case, therefore, we are left without the assistance which examination of reports, preparatory material and

debates in Parliament might have been expected to provide on the question 'why was it thought necessary to deny to the

courts the power to do what was just in those cases in which there was no document signed by the debtor which contained

terms which would or might, at some future date, be prescribed by the Secretary of State'? Nor has the Secretary of State been

able to explain to us, now, why it is thought necessary to deny to the courts the power to do what is just in those cases. We

have been shown no material which helps us to understand why the executive thought it necessary to propose, or why

Parliament thought it necessary to enact, s 127(3) of the 1974 Act in the form which it takes. Nor is there anything which

indicates why the Secretary of State thought it appropriate to prescribe the terms which he did in the 1983 regulations.

[38]

In the absence of extraneous assistance as to the policy aims of the legislation, or as to the justification for the exclusion of

any judicial remedy in cases where there is no signed document which contains all the prescribed terms, we must decide the

issue on the basis of the legislation as enacted. The policy aims for which ss 60, 61 and 65 of the 1974 Act were enacted are

clear enough. Regulated agreements ought to be made with an appropriate degree of formality; that requires that the terms of

the agreement should be set out in a document which is signed by the debtor; the document should contain information

relevant to the transaction; and, where those requirements are not met, the agreement is not to be enforced against the debtor

except through the court. It cannot be suggested that those are not legitimate objectives of social policy. Nor can it be

suggested that judicial control, under s 127 and the other sections in Pt IX of the 1974 Act, is not a legitimate means of

pursuing those objectives. Indeed, it might be said that judicial control--under which, in the event that the requirements

imposed by s 61 are not met, the court has power to do what is just--is an obviously legitimate and sensible way of

implementing the policy aims.

[39]

But s 127(3) of the 1974 Act goes beyond that. The policy aim, reflected in that section, is to ensure that particular attention

is paid to the inclusion in the document to be signed by the debtor of certain terms which will, or may, be prescribed by the

Secretary of State in the future. Again, it cannot be suggested that that is not a legitimate policy objective. But it does not

follow that the means by which that policy aim is to be achieved, under the provisions of s 127(3) of the 1974 Act are also

legitimate. The means will not be legitimate if guaranteed convention rights are infringed to an extent which is

disproportionate to the policy aim. That, in our view, is the effect of the inflexible prohibition--imposed by s 127(3) of the

1974 Act--against the making of an enforcement order in a case where the document signed by the debtor does not include

the prescribed terms. There is no reason that we can identify--and, as we have said, no reason has been advanced--why an

inflexible prohibition is necessary in order to achieve the

legitimate policy aim. There is no reason why that aim should not be achieved through judicial control; by empowering the

court to do what is just in the circumstances of the particular case.

[40]

For those reasons we are satisfied that (subject to the application of s 3(1) of the 1998 Act) the provisions in s 127(3) of the

1974 Act are incompatible with the rights guaranteed by art 6(1) of the convention and art 1 of the First Protocol.

Whether it is possible to read and give effect to the relevant provisions of the 1974 Act in a way which is compatible

with that convention right

[41]

We can deal with this issue shortly. Section 3(1) of the 1998 Act requires that, in 'So far as it is possible to do so', primary

legislation and subordinate legislation must be read and given effect in a way which is compatible with convention rights. It

follows, as we understand that requirement, that, where the court finds that what we may describe as a 'non-convention'

interpretation of the words used in legislation would lead to the conclusion that the legislative provision was incompatible

with a convention right, it must consider whether there is some other legitimate interpretation of those words which avoids

that conclusion. If there is, then the interpretation which avoids that conclusion must be adopted.

[42]

In that context, by 'some other legitimate interpretation' we mean some interpretation of the words used which is legally

possible. The court is required to go as far as, but not beyond, what is legally possible. The court is not required, or entitled,

to give to words a meaning which they cannot bear; although it is required to give to words a meaning which they can bear, if

that will avoid incompatibility, notwithstanding that that is not the meaning which they would be given in a 'non-convention'

interpretation.

[43]

Section 127(3) of the 1974 Act falls into three parts: (i) 'The court shall not make an enforcement order under section 65(1)';

(ii) 'if section 61(1)(a) (signing of agreements) was not complied with'; and (iii) 'unless a document ... itself containing all the

prescribed terms of the agreement was signed by the debtor'. Section 61(1)(a) requires 'a document in the prescribed form

itself containing all the prescribed terms and conforming to regulations under section 60(1) ... signed in the prescribed

manner both by the debtor ... and by or on behalf of the creditor'. It is clear that, notwithstanding what we have identified as

the second part of s 127(3), the prohibition in the first part of the section does not prevent the making of an enforcement order

in all cases where s 61(1)(a) has not been complied with. But the irreducible minimum requirement is that spelt out in the

third part of the section. No enforcement order can be made unless there is a document signed by the debtor which contains

all the prescribed terms of the agreement. We can see no way in which it is possible to read and give effect to s 127(3) of the

1974 Act which avoids that irreducible minimum requirement; and none has been suggested to us in argument. Nor can we

see any way in which it is possible to read and give effect to the 1983 regulations which avoids the conclusion that the terms

set out in Sch 6 to those regulations are 'prescribed terms' for the purposes of ss 61(1)(a) and 127(3) of the 1974 Act.

[44]

In the judgments handed down on 23 November 2000 [2001] QB 407 at 423, [2001] 2 WLR 302 at 317-318 (para 47)) there

is raised for consideration the possibility that it might be held (with the encouragement and exhortation which the opening

words of s 3(1) of the 1998 Act provide) that dismissal of an application for an enforcement order in the present case was a

dismissal 'on technical grounds only'--so that s 106 of the 1974 Act was not engaged; and, if so,

that the interaction of ss 113(1), 113(3) and 106 does enable a distinction to be drawn between 'enforcement' of the security--

which is prohibited by s 113(1), and also, in a case in which no enforcement order can be made, by s 113(2)--and the right of

the creditor to retain possession of the property 'lodged for the purposes of the security'. Upon further consideration of the

point we are satisfied that--whether or not it would be open to the court to hold (having regard to s 3(1) of the 1998 Act) that

dismissal of an application for an enforcement order under s 127(3) of the 1974 Act was a dismissal 'on technical grounds

only' (upon which we do not need to express a view)--it could not be held that a creditor had the right to retain possession of

property lodged for the purposes of the security in a case where enforcement of the security was prohibited.

[45]

We conclude that it is not possible to read and give effect to the relevant provisions of the 1974 Act in a way which is

compatible with the pawnbroker's convention rights.

Whether, as a matter of discretion, a declaration of incompatibility should be made

[46]

The court has power, if satisfied that a provision of primary legislation is incompatible with a convention right, to make a

declaration of that incompatibility--see s 4(2) of the 1998 Act. In the case of subordinate legislation--of which the 1983

regulations are an example--the power is circumscribed. The court should not make a declaration of incompatibility in respect

of a provision of subordinate legislation unless satisfied both that the provision is incompatible with a convention right and

that (disregarding any possibility of revocation) the primary legislation under which the subordinate legislation has been

made prevents the removal of the incompatibility--see s 4(4) of the 1998 Act. In the present case, the incompatibility lies in

the primary legislation. It is not the fact that there are prescribed terms which infringes convention rights. Nor is it the content

of the prescribed terms which leads to infringement. Rather, it is the fact that, where terms have been prescribed for the

purposes of s 127(3) of the 1974 Act, the provisions of s 127(3) of that Act have the effect of excluding the creditor from any

judicial remedy in aid of his rights.

[47]

The question, therefore, is whether, as a matter of discretion, a declaration of incompatibility should be made in the present

case. In our view it is right to do so for three reasons. First, the point has been identified and fully argued at a further hearing

appointed for that purpose. Second, in the circumstances that we have held that the order which a non-convention

interpretation of s 127(3) of the 1974 Act requires the court to make on this appeal would be incompatible with convention

rights, we could not lawfully make that order unless satisfied that the section cannot be read or given effect in a way which is

compatible with convention rights; and it is appropriate that that should be formally recorded by a declaration which gives

legitimacy to the order. Third, a declaration serves a legislative purpose under the 1998 Act; in that it provides a basis, under

s 10(1)(a) of that Act, for a Minister of the Crown to consider whether there are compelling reasons to make amendments to

the legislation by remedial order (under Sch 2 to the 1998 Act) for the purpose of removing the incompatibility which the

court has identified.

[48]

It was submitted on behalf of the Secretary of State that it was unnecessary and inappropriate for the court to make a formal

declaration of incompatibility in the circumstances that our conclusion, recorded in this judgment, removed the bar, identified

by Lord Hoffmann in Dimond v Lovell [2000] 2 All ER 897, [2000] 2 WLR 1121, to the pursuit of remedies based on unjust

[2001] 3 All ER 229 at 247

enrichment. Lord Hoffmann said ([2000] 2 All ER 897 at 906, [2000] 2 WLR 1121 at 1131):

'The real difficulty, as it seems to me, is that to treat Mrs Dimond as having been unjustly enriched would be inconsistent with the purpose

of s 65(1). Parliament intended that if a consumer credit agreement was improperly executed, then subject to the enforcement powers of

the court, the debtor should not have to pay. This meant that Parliament contemplated that he might be enriched and I do not see how it is

open to the court to say that this consequence is unjust and should be reversed by a remedy at common law: cf Orakpo v Manson

Investments Ltd [1977] 3 All ER 1, [1978] AC 95.'

The submission, as we understand it, is that, notwithstanding that Parliament may have intended that the debtor should not

have to pay in certain circumstances, a finding that that intention is incompatible with convention rights would enable the

creditor to say that that consequence is unjust.

[49]

There is no counterclaim for unjust enrichment in the present proceedings. We express no view on the question whether the

prospects of successfully pursuing such a claim--which may be taken to have been minimal in the light of Lord Hoffmann's

observations in Dimond's case--have been affected, in any way, by anything which we have decided on the present case. It is

unnecessary for us to do so. We are satisfied that, whether or not there is any substance in the submission that those prospects

have been revived by this judgment, the point is irrelevant to the question whether a declaration of incompatibility should be

made in this case.

Conclusion

[50]

We invite further submissions from the Secretary of State on the form of the declaration of incompatibility to be made. It may

be of assistance, however, if we indicate our present view. We think that it would be appropriate to declare that, having

regard to the terms prescribed by reg 6(1) of, and Sch 6 to, the 1983 regulations, the provisions of s 127(3) of the 1974 Act,

in so far as they prevent the court from making an enforcement order under s 65(1) of that Act unless a document containing

all the prescribed terms of the agreement has been signed by the debtor or hirer, are incompatible with the rights guaranteed

to the creditor or hirer by art 6(1) of the convention and art 1 of the First Protocol.

[51]

We allow the appeal against the order made on 24 September 1999 for the reasons given in our interim judgments of 23

November 2000.

 

 

this is the text from the Wilson Court of Appeal case

[postggj]

Many Thanks

Just One More Point Ref Skeleton Argument

I Have To Put Into The Court All Papers To Rely On At The Trial By Friday. Does That Include The Skeleton Argument. Welcome Have To Do The Same But Have Received Nothing From Them Yet, Or Can I Do It Say Ten Days Before The Trial Sending It To The Court And Welcome. This Is Just The Skeleton Argument

[streetgang]

Hi all, sorry to hijack your thread, but i am currently in disagreement with Welcome Finance re charges to my account. They are willing to settle on a reduced level of charges, with around 30% of the original charges removed. They are saying that the majority of the charges are to do with returned direct debit fees (£20 a go) and interest charges (compound interest charges of between £157 for arrears up to a given date, about 18 months ago) and then around £35 up to the point we got the account up to date. They are still adding interest charges on the arrears they say we owe (which is wholey made up of charges themselves).

They also say that the disbursal of fees is an acceptance fee and covers all costs associated with completing the loan with Welcome Finance. Just a point, but does that not mean that this should cover the cost incurred by them to contact me to collect money etc ?

 

My main questions are:

1. Are they correct, that if the disbursal fee relates to the administration of the loan throughout the contract they can add interest to it?

2. They claim that £20 relates to missed payments, and that this is legal.

 

Can anyone give me any advice, as I am thinking I might be better off agreeing to their offer of reduced charges.

 

Does anyone know when the high court is likely to come back on penalty charges?

 

Thanks for your time, and happy christmas.

[pt2537]

Hi Street Gang

 

you need to start your own thread as you will get advice tailored to your situation;)

 

regards

paul

[postggj]

have today sent welcome a letter about the default notice which i posted, informed them if again i received no response would be applying for a disclosure order from the court to explAIN how they got there figures

am posting default notice again and realy do need some advice on the legality of the notice

 

as well as how the notice is worded help is needed on

 

1/ the notice states total ammount payable under the agreement is £18,500.10 how on earth they got that figure

 

2/ my credit file shows default of£8905.00

 

3/ there default notice shows £7351.90

 

4/ my credit file states default date 13/01/04

 

5/ the default notice ststes 14/10/04

 

comments please

 

before any one asks the date in question is 2004

started this through hassle from dcas

[postggj]

[postggj]

[postggj]

i Need Some Urgent Advice On This Please

I Know Welcome Thanks To Cag Are Getting Worried On My Court Case

Even I Did Not Think They Would Go Lower Than The Gutter, Talk About Intimidation

To Get Me To Drop My Claim

There Allegations In There Letter Posted Above Is Pure Fiction, How Can They Be Allowed To Say This

[maybelline]

I am not legally trained in any way but I would have thought that you should not be corresponding in any way with the 'other side' now your case is being heard at court? all will be decided by the judge, all the facts are put before the judge at the hearing and what is and is not relevant will be drawn out at that time.

 

however, if you feel that seperately, this information as to where you lived at the time is important to the outcome in some way, then by all means gather all relevant information on this so that you know exactly where you stand when you come into court.

[postggj]

I Believe This Is A Red Hearing From Welcome Trying To Get Me To Drop My Claim

My Point Is Are They Allowed To Say This Which Is A Fabrication

JUST A POINT THERE WAS ONLY ONE HIRE PURCHESS AGREEMENT

[steven4064]

What I would do, postggj, is to write a simple letter to the court with the above letter attached. Tell them the facts and point out the errors. Tell them that you suspect that Welcome are trying to intimidate you into dropping the case, not least because of the timing of the letter. Copy the letter and attachment to Welcome's solicitors (if that's who you are dealing with) or Welcome themselves If not).

[postggj]

Thanks Stephen

Talk About Underhand Tactics

[steven4064]

Talk About Underhand Tactics

Yes, and by informing the court, hopefully they will backfire.

 

I should have mentioned, in your letter, make sure you include the claim number and ask for the letter to be added to the claim file.

[postggj]

i realy cant believe these people

welcome phoned me this morning

they state when in court they will be asking for full costs as they believe this is a vextrous claim and asking for my claim to be struck out

 

it appears they are getting worried resorting to variouse underhand tactics now

[steven4064]

they state when in court they will be asking for full costs as they believe this is a vextrous claim and asking for my claim to be struck out

On that note, make sure you have an estimate of your costs (I think you can calim £9.25/hour and about 30 hours is considered about right for preparingfor court) and have a draft 'wasted costs' order ready (see templates library) - you may get a chance to apply for costs for a vexatious defence (abuse of process).

[postggj]

thanks stephen, i am not going to fall for there dirty tricks

can you clarify the confusion ref the default notice posted above please

the default notice states this under the total ammount payable under the agreement is £18,510.00

this is obviouse incorrect, i have written to welcome three times over this matter, as usual no reply, can i threaten them with the following

 

§ Substantial damages from the Defendant to the value of £1,000 for the legal reasons outlined in Woodchester Lease Management Services Ltd v Swain & Co NLD 14 July 1998 and Kpohraror v Woolwich Building Society [1996] 4 All ER 119;

 

ALL I AM DOING IS TURNING THE SCREW MORE DUE TO THE TACTICS THEY ARE NOW EMPLOYING

 

stephen can you post a link to your wasted costs order draft

 

many thanks

[sillygirl1]

If they phone again before the court hearing tell them you will be recording the call and using it as evidence in court - should put paid to their tactics. It does sound as if they are now intimidating you - stand firm and use their tactics on them.

 

Good luck with this, their interest rates are abysmal and their so called customer care packages don't cover most common things so they really are on a loosing streak when people challenge them.

[postggj]

thanks silly girl

my trial date is early feb

i know a lot of people are now following my thread as the isues raised will help a lot of people

its a shame (not) that a finance company is now resorting to these tactics when they no they are on a looser,

 

what is it that they think removing defaults is a no,no the holy grail

i am sending a letter of complaint to the court and welcome