zhanzhibar vs Amex/AIC/Newman/ Brachers Solicitors

[zhanzhibar]

Here are extracts from American Express v Brandon in The Bristol County Court 25 May 2010. Judge Robert Denyer QC sitting as a Judge of the High Court:

 

"JUDGEMENT (as approved)..........

 

27. In some ways and at first sight the most compelling argument advanced by the appellant, and indeed argued by him in front of the Deputy District Judge, relates to the default notice and to section 87, 88 and 176 of the Act. This was a point raised by him in the court below and specifically adverted to by the Deputy District Judge in his brief encapsulation of the defendant's case at paragraph 5 because in paragraph 5(7) he says one of the points was that the default notice is invalid, and that it is a point,

obviously, which he pursues in front of me today.

 

28. Section 87 of the Consumer Credit Act 1974:

 

"Service of a notice on the debtor in accordance with section 88 (a

‘Default Notice') is necessary before the creditor…can become entitled, by reason of any breach by the debtor....

 

(a) to terminate the agreement; or

 

(b) to demand earlier payment of any sum… "

 

29. By section 88:

 

"The default notice must be in the prescribed form and specify –

 

(a) the nature of the alleged breach;

 

(b) if the breach is capable of remedy, what action is required to

remedy it and the date before which that action is to be taken."

 

Then by subsection 2:

 

"A date specified under subsection (1) must not be less than 14 days after the date of service of the default notice, and the creditor or owner shall not take action such as is mentioned in section 87(1) before the date so specified or… before those 14 days have elapsed."

 

30. I have already indicated the dates of the default notice but in deference to the argument advanced by Mr Rankin the section 87 default notice is dated 19 June 2007.

It says this:

 

"You have failed to make the minimum payments due to your account as required by clause 3 of the terms and conditions. To remedy this breach the payment due on your account of £275.80 must be received within 14 calendar days from the date of this default notice."

 

31. Now the date of the default notice is clearly 19 June 2007. By section 176 of the Act:

 

"A document to be served under this Act by one person on another person is to be treated as properly served on the subject if dealt with as mentioned in the following subsections. The document may be delivered or sent by an appropriate method to the subject or addressed to him by name and left at his proper address."

 

32. So section 176 clearly contemplates service by post. The document may be sent by an appropriate method or addressed to him by name, but "sent" is the appropriate word and it seems to me the post is an appropriate method.

 

33. Mr Brandon makes the point that it is dated 19 June. The demand is that within 14 days of that date he was to pay £275, He makes the point this probably contravenes section 88(2) because the date would then have been less than 14 days after the date

of service of the default notice and he points me to authority, and I think he is right, if I send a letter by first class post the assumption made by the civil courts is that it will be delivered within two days of sending. So technically there is something in what he says in that by the time the letter was received on the face of things he would no longer have 14 days within which to remedy the breach. I take the point made by counsel on behalf of American Express that as a matter of fact there is no evidence from him as to when in fact he received the notice but simply working on standard assumptions it does seem to me that if posted on the 19th I would be entitled to assume it would arrive on the 21st.

 

34. Now, somewhat theoretical though it is, had American Express taken enforcement action within 14 days of 19 June, it may well be that the validity of that enforcement action would have been open to challenge. I express no final view on the matter but I do understand the argument because, to go back to section 87, it must specify the nature of the breach and if the breach is capable of remedy what action is required to remedy it. The whole idea is that a debtor should have 14 days within which to redeem the position, in this case pay £275.80. So I understand the argument.

 

As I say, I do not dismiss it as being unreal. But, the fact of the matter is no enforcement action was taken within 14 days of 19 June. So we have the service of the enforcement notice but nothing immediately happens. In those circumstances, even if

Mr Brandon's point is a good one, it seems to me to be not relevant in that he has not suffered any prejudice at all by virtue of that technical breach because, never mind within 14 days he did not, for example, within 21 days, which on my finding would clearly have been an appropriate period of time properly to comply with section 87. He did not send American Express the cheque for £275. Nothing happened. So he remained in breach of his obligation to pay a monthly instalment.

 

...............49. For all those reasons, with apologies for a somewhat lengthy judgment, this appeal is dismissed."

 

So having found the case, in the light of this, what does this mean? on one hand we have the woodchester case from the court of appeal that seem to contradict the verdict above. so which one is binding?

[the_shadow]

Unfortunately I believe its Brandon because a) Its court of appeal and more recent than Woodchester and b) Its more directly relevant to the key issue you are arguing... that being the 14 days service no allowed.

 

Unfortunately it now seems judges are taking statutes and applying common law to them... i.e. technical breaches are no longer sufficient as a defence... in the brandon case it would seem the defendant would have had to make an attempt to pay on say day 15 and amex to have declined the payment and proceeded to court for it to be deemed sufficient.

 

Just my opinion tho.

 

S.

[zhanzhibar]

Thanks Shadow. My understanding is that the case is a high court case and at the moment the case is at the moment awaiting leave to appeal?

 

The other thing I noticed is that the case was held in court in Bristol, the home of Amex right..hmmm one wonders how & why the judge go for them?

Edited August 25, 2010 by zhanzhibar

[Martel]

I think Amex is based in Brighton.

 

Not that it really matters....

[zhanzhibar]

Thanks Martel..I got all mixed up..stress level at the mo is quite high as a lot is at stake here. Perhaps I should ask for a stay and ask to wait till the brandon case is disposed off. Does anybody know how I should ask for a stay?

[GeoffreyAlby]

As mentioned by emmandcole in another thread, if your DN was issued prior to the Amex V Brandon case , can the judgement be retrospetively applied to your case?

[zhanzhibar]

As mentioned by emmandcole in another thread, if your DN was issued prior to the Amex V Brandon case , can the judgement be retrospetively applied to your case?

 

Good question.. I am not sure the answer to that but I think the case is still binding for all cases IMHO. What do you all think?

[Martel]

Well, when there was a change of solicitors for my Amex case, from Brachers to Mishcon, Mishcon asked me to agree to a Consent Order to a delay - but I think that's different than asking for a stay.

 

Last year, the Court issued a stay on my Amex hearing, pending the outcome of the Manchester Test case.

 

I guess you could apply to the court yourself and request a stay? I'm sure some legal heavy weights will be along soon to advise.

 

Whatever you do, do it before Amex's barrister is given the brief (like 48 hours before the hearing). Otherwise, you'll get stung for their fees (as was the case with me and Cabot). OUCH!

 

Chronologically, my case is slightly behind yours.....wishing you the best of luck. It has to be a good omen that the DJ dismissed the SJ and thought you had a good enough Defence to go to trial.

 

Hang tough.

[the_shadow]

Yes I beleive its the case... as its such an integral part of the defence I think you could argue for a stay. If memory serves me correct you need to ask for the agreement of the claimant to a stay until the appeal is heard but as permission has not been given for the appeal I'm not sure they'll agree at present?

 

As to the other SJ defence point about the online application, I think we all pulled apart the info they had sent you as their "evidence" didnt we? i.e. ©2008 on terms and conditions and being recent terms rather than the historic ones that WOULD if the claimant is to be believed be shown on application.

 

S.

[zhanzhibar]

Thanks Martel. Me think I need all the luck I can get. I think unlike the Brandon case, the DDJ i got for my SJ hearing applied the statute law rather than common law which I think is what it should be. Other wise what is the point of having statute law at all?

[foolishgirl]

Thanks for posting the judgment & docs zhan - makes it all so much clearer.

 

I find it very telling that Judge Brown seems to be of the opinion that the agreement may well be found not to comply with S61 & also casts doubt on the validity of the DN & then along comes a 'without prejudice' letter from Brachers. Hmm... methinks they are not so sure of winning this case no matter their protestations about appeal cases & service of DN.

 

I agree with Shadow that if they are going to refer to cases that may be appealed you have a good case for a stay. However based on the comments in the SJ judgment, you may feel it would be more beneficial to your case to carry on regardless. You need to read the Brandon case very carefully, you may be able to persuade a DJ that there is no direct comparison with your own.

 

IMO they are completely wrong on the service of docs issue. How can a document be served before it's even delivered to the intended recipient?? I've not re-read your thread but I'm sure you have all the statute info. in regard to this.

 

BTW, you cannot mention the content of the WP Bracher's letter in any new WS or at court until after the hearing.

[bazaar]

They obviously are squealing here, 'without prejudice' Of course, they wouldnt want the judge to know they are accusing him of being wrong.

 

A fine tooth comb over the points raised by the judge will goive you some more ammo, regardless of what they think they can say at court.

Obviously and quite telling is the fact that they admit they cannot bring any further arguments, SOOOOOO, IMHO, I wouldnt allow them to try it on.

Theyu will fail at court because of this and they know it.

This leaves the very real prospect of them discontinuing at the very last moment, ( Costs methinks). But thats going to be your call on making them proceed to trial.

 

They can bleat on that they tried to settle ( albeit by WP) but you could argue that their 'offer' was no where near reasonable

[bazaar]

OK, Ive been through all of this, heres some points , maybe I'm wrong, hopefully others can add some meat to this.

Going through the letters youve posted in order.

Your defence. :- Point 1. although you clicked on the application, it is clearly an application . NOT AN Agreement, so it is not yet executed. It even states application on the powerpoint stuff they sent.

So an executed agreement should be sent IF approved.

 

Claimants response .

Point 1. Clearly states Application ( Not yet appoved??)

Point 2. That only satifies S78, ITS not an executed agreement and should be produced at Court for enforcement.

Point 3. IP IS relevant, as it would be extremely unwise to use a different computer given the amount of data fraud that goes on, maybe put them to strict proof thereof.

Point 4 Strict proof of 'automagically' updating the date. It DOES NOT 'Clearly" comply because the dates are wrong as highlighted by the honourable Judge.

Point 5. Refute this one, Loopholes or not - the law states what should be on the documents, as pointed out yet again by Judge.

The law MUST prevail, they are a large enough organisation to get this correct, the fact is, they failed to do so,

 

For the Powerpoint presentation they gave you, when was this procedure brought into existance??? If its after your application date, then it would appear they are trying to confuse you and the court as to its validity in your case. Most likely, this procedure has changed since you applied, therefore, strict proof again is needed.

 

Onto Michcon, I like the 'even if valid' bit rofl.

[citizenB]

I think you had a strong case originally, the DJ obviously believed this to be so as well. I see nothing new in their arguments. They have been trying desperately to get this issue with the DN's decided as deminimus issues and they arent. Parliament laid down what is required.

 

It is telling that nearly all these Amex cases are being appealed an reappealed dont you think.

 

Was there anything off their list that you wanted ?

[bazaar]

Also, on power point at section 6, it clearly states 'before we approve your application', so where is the approval note or letter giving you the executed agreement?

[Undercover-Elsa]

Do you need the full Brandon transcript Zhan?

[zhanzhibar]

Yes please. i have been looking for it everywhere. I have even e-mail mishcon & asked but they didn't reply to my e-mail so yes I do need the full Brandon transcript. Can you help elsa?

[zhanzhibar]

I think you had a strong case originally, the DJ obviously believed this to be so as well. I see nothing new in their arguments. They have been trying desperately to get this issue with the DN's decided as deminimus issues and they arent. Parliament laid down what is required.

 

It is telling that nearly all these Amex cases are being appealed an reappealed dont you think.

 

Was there anything off their list that you wanted ?

 

 

 

 

 

I am actually a bit worried about disclosue list number 2 & 3,

 

a) not sure why its dated July 2006 unless they managed to conjure up sthg that look like agreement with my name etc,etc..which they didn'thave before... I believe they can recon credit agreement these days.

 

b) what does abridged mean?

[summerbreeze]

Amex V Brandon

 

Do you need the full Brandon transcript Zhan?

SCAN FORUM AMEX V BRANDON CASE[1].pdf

[zhanzhibar]

thank you, SB.

[GeoffreyAlby]

Amex V Brandon

 

Its interesting that the transcript of Amex V Brandon is always coming from the same source, the 23rd June 2010 16:02 fax.....

 

 

So far, it would appear that Optima have failed in every case that they have gone for SJ using the Amex v Brandon case...

[Undercover-Elsa]

Yeah interesting point Geoffrey..

 

I was going to PM it to you Zhan as I wasn't sure if there were privacy issues, but since it's up now, you may find this version, which I transcribed, to be easier to read/quote/follow:

 

Elsa x

Brandontranscript-U-E.pdf

[Rhia]

This is a very interesting development and it does seem they are engaging in brinkmanship with you. Of course it's your shout entirely as to which way you jump but the Judge would never have allowed this to proceed in this way if he did not think you had a case. His summing up is quite considered and he looks at the likelihood of success not just a fantasy of possibility. AMEX are fighting a number of these cases now and fighting them hard.

 

I see Martel is subscribed to this thread and she is in the same or similar boat with AMEX. MIschon will cost them a pretty penny but they will be ready to throw money at this as they can't let it fail. There is a section in the Scrivener Opinion commissioned by Martin Lewis at Money Saving Expert on the current account bank charges which refers to the way Judges are ignoring consumer laws and also the EU directives which states clearly that the laws exist not to give banks and consumers a level playing field but to protect the consumer and the interpretation most favourable to the consumer should prevail.

 

I haven't attached it as don't want to confuse you and you have a decision to make but I can do so as it is worthwhile reading as Anthony Scrivener brings in the European Directive aspect of consumer legislation which is being totally ignored even by the Supreme Court.

 

I would hold steady here Zhanzibar. It's easy to lose your nerve in the face of such heavy duty opposition but something is amiss with their case or they would not have sent such a detailed and forceful Without Prejudice letter to you.

[zhanzhibar]

Delete posting

Edited August 28, 2010 by zhanzhibar

[GeoffreyAlby]

Hi everybody,

 

Received a letter today from Mishcon informing me that Court of Appeal has recently refused Mr Brandon application for permission to appeal. DOes anybody know whether this is true or are they just trying to scare me?

 

 

 

I cant find this case on http://www.bailii.org/databases.html

 

I thought it would detail every case.....