Non-compliance with CCA - Advice now please

[Aspirante]

This is directed to all you site helpers & the like. I have sent SAR's & CCA's to several DCA's. Some have sent SAR back to me but only for the time they have held the account & none have yet sent back CCA's (except EGG) with whom I had already negociated a Full & final (now paid.) so that was irrelevent anyway.

The DCA's in question are Allied International, Moorcroft, Cap Quest, Link Financial & Blair Ollie & Scott.

I have threatened to instigate County Court Proceedings if they do not comply within the proper timeframe, which they haven't (some have, with partial SAR's) Does anyone have a template letter to use for county court ?

Any help greatfully received

ASP.

[Edz11]

Strangely enough I don't think they'll bother much. There are no Civil sanctions for not supplying a copy of the executed agreement. All it does is stop them from taking you to court until they ind the agreement.

 

On the other hand there are criminal sanctions. You toddle along to the Magistrates Court and say "I want to lay information to obtain a summons". When you tell them what it is about they'll say it is a County Court matter - you are in the wrong Court. You'll explain it isn't. Having sorted theselves out (very rare that they get this type of case) they will get you a Clerk. You will say to the Clerk that "Moorcroft (plc/ltd - whatever of whatever address) - has committed an offence by failing to provide me with a copy of the excuted agreement as required by Section 77/78 of the CCA 1974 (must specify which one).

 

The Clerk will go away and check the rule books. They will then issue the summons. It doesn't cost you a penny. Moorcroft are then in court. There's a fine against them if found guilty. Need the facts to get the right offence (section 77/78).

[Edz11]

can't edit that sunglassed smilely...

[Having_A_Knightmare]

Edz

 

i though only Trading Standards can take them to Court.

 

HAK

[rory32]

I have threatened to instigate County Court Proceedings if they do not comply within the proper timeframe

You can only do this for the S.A.R - (Subject Access Request). Templates for non compliance are in the Bank Templates Library here http://www.consumeractiongroup.co.uk/forum/bank-templates-library/

[rory32]

Regarding CCA non compliance you would need to report this to Trading Standards who would then decide if there is a case to answer or not. If there was they would instigate the prosecution.

[Edz11]

No - Trading Standards and the OFT have a duty to enforce the legislation. There is nothing stopping any indivdual from doing so - and that includes proceedings for non compliance with CCA requests.

 

Certain things can only be done by the Director - where it refers to the Director of the OFT. But otherwise - but if it isn't listed as a task of the Director and if it's an offence then anyone can...

[shane5408]

Hi Edz,

 

Could you elaborate more on what you mentioned above, I'm no legal bod but I too thought individuals had no authority to prosecute creditors/dca's for criminal default under the Act

 

kind regards,

shane

 

 

_______________________________________________

All advice is offered freely & without prejudice

 

 

If my post has been useful to you please click the scales

[Edz11]

Well someone did do it on another site. Pannone and Co were the defendants Solicitors. (They are a very astute firm). But that case was quite embarrassing. He was saying that they had refused to forward a CCA but a CCA was not appropriate. Pannone could not raise any objection to the private prosecution per se. but they kindly (under the circumstances) beat him round the head for getting muddled up.

 

And there's a review of enforcement of European Credit Law here; FIS Money Advice - All Archives

Individuals can enforce. You can lay information to get a summons in respect of any law in this country - unless you are restricted from doing so by the legislation. The CCA says some of the enforcement functions are the prerogative of the Director, but most are not.

[shane5408]

Well someone did do it on another site. Pannone and Co were the defendants Solicitors. (They are a very astute firm). But that case was quite embarrassing. He was saying that they had refused to forward a CCA but a CCA was not appropriate. Pannone could not raise any objection to the private prosecution per se. but they kindly (under the circumstances) beat him round the head for getting muddled up.

 

And there's a review of enforcement of European Credit Law here; FIS Money Advice - All Archives

Individuals can enforce. You can lay information to get a summons in respect of any law in this country - unless you are restricted from doing so by the legislation. The CCA says some of the enforcement functions are the prerogative of the Director, but most are not.

very interesting, to say the least:D

 

Will definitely be looking into this further

 

kind regards,

shane

[Curlyben]

Strangely enough I don't think they'll bother much. There are no Civil sanctions for not supplying a copy of the executed agreement. All it does is stop them from taking you to court until they ind the agreement.

 

On the other hand there are criminal sanctions. You toddle along to the Magistrates Court and say "I want to lay information to obtain a summons". When you tell them what it is about they'll say it is a County Court matter - you are in the wrong Court. You'll explain it isn't. Having sorted theselves out (very rare that they get this type of case) they will get you a Clerk. You will say to the Clerk that "Moorcroft (plc/ltd - whatever of whatever address) - has committed an offence by failing to provide me with a copy of the excuted agreement as required by Section 77/78 of the CCA 1974 (must specify which one).

 

The Clerk will go away and check the rule books. They will then issue the summons. It doesn't cost you a penny. Moorcroft are then in court. There's a fine against them if found guilty. Need the facts to get the right offence (section 77/78).

 

While non-compliance of CCA is a summary criminal offence as laid down by CCA 74, it is NOT the general public that can bring this action.

This is for Trading Standards and the like to pursue.

[Edz11]

The defence to non providing an agreement would get quite interesting. They could say to the Magistrates "we aren't the creditor as defined by the Act". Well, that buggers up any subsequent action in the County Court they try to take as they can't say they aren't in the Magistrates Court and shortly after say "we are the creditor as defined by the Act" in the County Court. Mmmm. The Justices will take a very dim view of that. You get a finger wagging in the County Court for confusing the issue (well, it's part of the game for them). Do that in the Magistrates and if you get a bunch of bad tempered Justices you'll be asking your relatives to bring you soap on a rope as soon as possible...

[Edz11]

Curly ben - you're wrong! Your's crossed with mine curly - read the post above...

[Belaflat]

I am no expert on legal matters although I was a plod many moons ago but as far as I am aware, a private prosecution for any offence can be brought. Many have been pursued by private individuals when the Police or other authorities have failed them.

 

As an example, a former Solicitor is bringing about a private prosecution against the McCanns accusing them of neglect.

[shane5408]

Edz I do believe you are right, a summons can indeed be issued. incidentally the case you are referring to was against moorcroft right?

 

regards,

shane

[Edz11]

I don't think it was. I'm very much in favour of using private prosecution against the DCA's but it should be done very carefully. It must be right, no guesswork or similar.

[shane5408]

The problem, or better worded the risks are of substantial costs that can be awarded against you should you loose and you can be sure due to the severity of the Magistrates court the DCA won't take the matter lightly.

 

The DCA could file and abuse of process application on the basis that this action is wholly unwarranted and should be referred to Trading standards.

 

If the court finds you a vexatious litigant the case would be struck out and costs awarded against you. you could also be placed on the vexatious litigant register as well.

 

Conclusion, be very wary about taking these steps

 

regards,

shane

 

 

_______________________________________________

All advice is offered freely & without prejudice

 

 

If my post has been useful to you please click the scales

[Edz11]

No - it is more straightforward (and in some ways more complicated) than that.

 

The information has been laid before Magistrate/Clerk. They then decide if a summons is appropriate. The defendant then has to appear in Court and answer the charge.

 

Abuse of process is a complicated principle - but basically that the case should not be brought to Court as the defendant won't get a fair hearing. The argument that only Trading Standards can enforce the legislation is wrong so could not be considered an abuse.

 

When saying that people should be careful, I mean that they should be absolutely precise aboout the section of the act (ss 77, 78 etc) and the total absence of the agreement. "we haven't got any to give you ". That's not to say that some of the others I've seen which are semi executed wouldn't be excluded.

 

Costs only arise as an issue if there is the prospect of an action for malicious prosecution. In a case where a DCA has said "we are the creditor" or "we own the debt" - there can be no maliciousness if they have been asked to provide the executed agreement and they have failed to do so. I think that a five minute chat with the Clerk before applying for a summons would be time well spent.

[Having_A_Knightmare]

Good info Edz11

 

whos got the bottle to do it though!!

 

HAK

[Curlyben]

While I can see your point Edz, I believe that you are misreading the information.

While it is indeed true that any member of the general public can bring a private prosecution on a matter of law, the duty of enforcement of CCA falls to Trading Standards and the OFT.

 

I think you might find this interesting.

 

(3) ENFORCEMENT

305. Enforcement authorities.

The duty of enforcing the Consumer Credit Act 1974 and any regulations made under it falls on the Director General of Fair

Trading1 and local weights and measures authorities which are all known as 'enforcement authorities'2. It appears that this

bipartite structure envisages the director having responsibility for overall enforcement3, while the local authorities are

concerned with the detailed enforcement of the Act in their respective areas. When proposing to institute proceedings for an

offence under the Act4 the local weights and measures authority must give the director notice5 of the intended proceedings,

together with a summary of the facts on which the charges are to be founded6. The authority must postpone the institution of

such proceedings until either 28 days have expired since such a notice was given7, or until the director has notified it of

receipt of the notice and summary8. Local weights and measures authorities must also, whenever the director requires, report

to him on the exercise of their functions under the Consumer Credit Act 1974

 

There is also a very long section concerning CCA 74 and 2006 updates that starts this information.

If you'd like a copy PM me and I'll arrange it.

[Edz11]

No - I've got it already thanks. Private prosecution applies in this law - and any other - if there is an offence and that private prosecution is not specifically prohibited by the legislation. That is distinct from "Enforcement" viz a viz the CCA.

 

The OFT and the TS Departments have duties prescribed in the Act - that does not remove the right of an individual's right to commence prosecution.

 

If it did, you can bet your bottom dollar that Pannone & Co would have said so.

[Having_A_Knightmare]

The OFT and the TS Departments have duties prescribed in the Act - that does not remove the right of an individual's right to commence prosecution.

 

i am having terrible problems with my T/S.

They will not enforce a section 78(1) breach.

Any idea Ed

 

HAK

[Edz11]

Three options.

1) Contact your local Councillor and say "there is a law that has been broken and TS are refusing to prosecute". Tell him/her that you've spoken to a former Councillor (me) and that this happens a lot as TS depts don't fully understand their role. "Could you have a look at it".

2) Tell TS that you are not happy with their decision - could they look at it again before you contact a Councillor.

3) Go to your nearest magistrates court and ask to speak to a Clerk as you wish to lay information to obtain a summons. You need to be clear as to what section of the act has been offended - s77 or 78 etc. You need to take copies of the letter you sent asking for the CCA and proof that they received it. I would also take a print out of the section of the CCA that has been contravened (they won't have one).

 

Explain that the TS has refused to prosecute and you wish to. You don't have to put it all in writing, but it helps if you do so simply. The Clerk will explain how you ask the CPS to take over the case and at what stage you should do so.

 

You'll find the staff are much more helpful than in the County Court and I've no idea why that is always the case!

[spamheed]

I had wondered, what's the point of having a law that when breached becomes a criminal matter with a recognised offence but having no real means of enforcing it.

 

Would the DCAs usual practice of holding off providing documents until the last possible minute (before court action) get them off the hook with the courtsie. "we didnt supply the CCA then, but we have now," we have "made good"

 

or would it be a case of black and white by not providing the document by [DATE] you committed an offence, whether they subsequently provided the document being irrelevant, the offence still being allowed to stand

[patrickq1]

subscibing good info well done ed

patrickq1