H.O.L Test case appeal. Judgement Declared. ***See Announcements***

[kennyh]

Although with the best of intention (I'm sure), much of this thread has now, I would suggest, moved way beyond the 'average' bod who IS prepared to stand up and be counted, in a court of law if required (court bundles -gawdelpus!).

All that we 'average' bods will need is:

i. guidance on court procedure in order to progress and, certainly in my case,

ii. an idiot's guide on amending pocs

iii. obviously the revised templates.

Luck I ain't asking for but the tools I need so, Banky et al., all the VERY best for 2010 and future years; respect and thanks for past efforts and I hope you have come through the post OFT trauma intact.

Ken

[speedtrip]

Well said m8

 

ST

 

Although with the best of intention (I'm sure), much of this thread has now, I would suggest, moved way beyond the 'average' bod who IS prepared to stand up and be counted, in a court of law if required (court bundles -gawdelpus!).

All that we 'average' bods will need is:

i. guidance on court procedure in order to progress and, certainly in my case,

ii. an idiot's guide on amending pocs

iii. obviously the revised templates.

Luck I ain't asking for but the tools I need so, Banky et al., all the VERY best for 2010 and future years; respect and thanks for past efforts and I hope you have come through the post OFT trauma intact.

Ken

[landy_alert]

Although with the best of intention (I'm sure), much of this thread has now, I would suggest, moved way beyond the 'average' bod who IS prepared to stand up and be counted, in a court of law if required (court bundles -gawdelpus!).

All that we 'average' bods will need is:

i. guidance on court procedure in order to progress and, certainly in my case,

ii. an idiot's guide on amending pocs

iii. obviously the revised templates.

Luck I ain't asking for but the tools I need so, Banky et al., all the VERY best for 2010 and future years; respect and thanks for past efforts and I hope you have come through the post OFT trauma intact.

Ken

 

Hear Hear!

 

I only have till 26/2/10 to request that my stay be lifted, so am hoping the expected advice arrives in time:confused:

 

Landy x

[car2403]

We're all in the same boat - I have until 18th January to AMEND my claim, not request the stay is lifted

[caro]

I think many people can't wait until the 3rd week in January for new POCs (assuming this new date is accurate). I'm helping people who have claims against them, and am suggesting they use the charges in their debt as PART of their defence to bring the amount into question, but more is needed.

 

I'm also painfully aware of the Leeds Mercantile Hearing in January and am very concerned that POC for these cases should be as solid as possible to avoid them being struck o ut. 3rd week in January is far too late to be amending them if they haven't referred to reg 5.

 

IMHO we can't afford to wait for the QC who is being instructed by Martin Lewis, who we know is rather more reserved about claims going to court than most caggers.

[kennyh]

Hi Caro,

and am suggesting they use the charges in their debt as PART of their defence to bring the amount into question,

Sorry to be a pain but can you elaborate on this a bit please?

[means2anend]

kennyh

 

Here is your link 'to the idiot's guide'

 

http://www.justice.gov.uk/procedure.htm

 

in the left hand pane click CIVIL PROCEDURE RULES...then RULES AND PRACTICE DIRECTIONS and ALL NEEDED COURT FORMS if you look further down

 

Scroll down to your relevant issue POC and Practice Directions it's All Here!!! in Plain English.

 

it has the whole Civil Process Procedure...Good Luck

 

means2anend

Edited December 31, 2009 by means2anend

[kennyh]

yeh

[caro]

Hi Caro,

 

Sorry to be a pain but can you elaborate on this a bit please?

 

What I mean is where someone has a claim against them, for example due to an overdraft which has charges on it, they could have several reasons to defend it, eg no default notice, not properly executed DN. Perhaps it's been passed to a DCA with no proper Notice of Assignment. Maybe PPI was missold which would also bring the amount of the claim into question.

 

All these things could be used in a defence, including that there are charges which could be deemed unfair under reg 5 of the UTCCR (using info adapted from the current CAG POC to back it up).

 

We know from the bank charges claims that if the amount of the charge was unfair, then the whole amount was unfair, hence why people still challenged £12 for credit card charges.

 

I suppose you could call it a scatter approach, where the more points you raise, if one is dismissed, another point might win the day.

 

To rely on charges as a full defence would be risky IMO, or raising a counterclaim making the charges a seperate issue.

 

If people used the approach I'm suggesting, we might get a feel for how the courts would deal with the issue without too great a risk.

 

Hope that makes sense as I'm not the greatest legal mind.

[Bookworm]

Hi Caro,

 

Sorry to be a pain but can you elaborate on this a bit please?

If a creditor has brought a claim against you for say £1000 and you reckon part of it is made of their own charges, then you could at the vary least use that as a stalling method to dispute the amount if nothing else. ;-)

 

Caro, your PM box is full. Again.

[the_shadow]

What I mean is where someone has a claim against them, for example due to an overdraft which has charges on it, they could have several reasons to defend it, eg no default notice, not properly executed DN. Perhaps it's been passed to a DCA with no proper Notice of Assignment. Maybe PPI was missold which would also bring the amount of the claim into question.

 

All these things could be used in a defence, including that there are charges which could be deemed unfair under reg 5 of the UTCCR (using info adapted from the current CAG POC to back it up).

 

We know from the bank charges claims that if the amount of the charge was unfair, then the whole amount was unfair, hence why people still challenged £12 for credit card charges.

 

I suppose you could call it a scatter approach, where the more points you raise, if one is dismissed, another point might win the day.

 

To rely on charges as a full defence would be risky IMO, or raising a counterclaim making the charges a seperate issue.

 

If people used the approach I'm suggesting, we might get a feel for how the courts would deal with the issue without too great a risk.

 

Hope that makes sense as I'm not the greatest legal mind.

 

Agree 100%, my charges actually are more than the overdraft that they are starting to chase but as soon as/if it gets to court stage I will be using reg 5 in my defence.

 

S.

[emandcole]

I've been digging about for the oh so precious bank terms and conditions that seem to be the basis of the recent bank 'victory'. Mine are from a Halifax account and are dated 2006. It's a booklet with about 18 pages of waffle in it but interestingly although they mention times when they can raid my account no-where does it list the actual amount they will take in the event of me triggering a charge, sorry, a service.

 

Has everyone been checking their T&C's because if they have the originals it may be that the banks didn't correctly, or clearly, set out the actual cost of using their 'special services'. Surely this is of significance? After all, with fairness being irrelevent could a bank have charged me five million pounds for going over by a few pence and then argued I'd agreed to it?

[landy_alert]

My account dates from the mid 1990s and I have no recollection of ever receiving any t&cs - there were certainly none included in the SAR info received early in 2009:confused:

 

I do know that any increases to the authorised o/d facility were done verbally, either over the phone or in person and again as far as I'm aware nothing was ever signed or any t&cs provided.

[kennyh]

Caro & Booky - VERY many thanks for your patience; fortunately (at least at this point in time) the shoe's on the other foot and I'm after them.

At an earlier time I seem to recall we were inputting (horrible term) any t&cs we could lay our hands on. I expect someone on the forum compiled a list of sorts (although - yes, I do realise you admin folk have lives also).

[landy_alert]

At an earlier time I seem to recall we were inputting (horrible term) any t&cs we could lay our hands on. I expect someone on the forum compiled a list of sorts (although - yes, I do realise you admin folk have lives also).

 

If there is some kind of list or library of historic T&Cs this would be most useful/interesting to see.

 

If a customer of a bank has no recollection of receiving any T&Cs at the time of opening their account/receiving their o/d facilty, is the onus on the bank to prove that the T&Cs were ever issued or is it sufficient for them to maintain they would have been given to the customer?

 

Landy x

[speedtrip]

From memory they normally the current T&Cs as opposed to the ones that would been relevant or sent out at the time.

 

ST

 

If there is some kind of list or library of historic T&Cs this would be most useful/interesting to see.

 

If a customer of a bank has no recollection of receiving any T&Cs at the time of opening their account/receiving their o/d facilty, is the onus on the bank to prove that the T&Cs were ever issued or is it sufficient for them to maintain they would have been given to the customer?

 

Landy x

[srfrench]

ST

 

Yes they have to provide the T&C's in fact and honesty of the periods requested.

 

Failure to do so would see their defence fall apart as concealment!!!!

[caro]

Caro, your PM box is full. Again.

 

Oops. I'll clear a bit of space but you could always email.

 

Caro & Booky - VERY many thanks for your patience; fortunately (at least at this point in time) the shoe's on the other foot and I'm after them.

At an earlier time I seem to recall we were inputting (horrible term) any t&cs we could lay our hands on. I expect someone on the forum compiled a list of sorts (although - yes, I do realise you admin folk have lives also).

 

We spent a long time getting T&C's together at one stage but I'm not sure what happened to them. I'll ask admin, although given the test case I'm less sure how helpful they are, unless the specific ones that were deemed not in plain English.

 

ST

 

Yes they have to provide the T&C's in fact and honesty of the periods requested.

 

Failure to do so would see their defence fall apart as concealment!!!!

 

Can you elaborate? I know someone who is fighting long and hard to get the right T&Cs so this could be useful.

[kennyh]

So it looks as though we'll have to 'dust off' some past SARs where costs etc were (often eventually) provided but t&cs weren't!

Thanks CARO - the Natwest ones for the contentious period should be worth locating and, presumeably, once those t&cs were superceded the penalty aspect dies with it? But at least, for some, there appears to be a window for relatively uncontested claims.

Edited December 31, 2009 by kennyh
late entry from CARO

[srfrench]

Hi CARO....to elaborate then...

 

Taken from the BBC website today. Relevant section in RED bud....

 

 

Banks have won a partial victory against some credit card customers who have been trying to avoid their debts.

A judge at the High Court in Manchester has upheld that card companies need only provide a "reconstituted" copy of the original loan agreement.

It confirms that banks can still enforce debts even if the original agreement has been lost or destroyed.

 

The ruling may affect thousands of potential cases gathered by claims management companies.

"It seems to me to be likely that the number of challenges... will diminish significantly hereafter," said Judge David Waksman.

 

Banks sometimes have great difficulty in providing an exact copy of an original credit card agreement, such as a photocopied or scanned version, and at least one major bank is thought to have destroyed all its old credit card agreements.

 

Reconstitution

Under the Consumer Credit Act (CCA), lenders are obliged to supply a copy of their credit card or loan agreement to a borrower, if asked to do so, within 12 days.

 

The absence of a copy of a signed executed agreement is no evidence that such an agreement was not made

 

 

Judge Waksman

 

 

 

Some claims management companies and their solicitors have been trying to use the law to stop debts being enforced, possibly permanently, if the copy cannot be produced satisfactorily.

 

This has led to disputes between lenders and customers about what sort of copy is acceptable under the law.

 

Judge Waksman examined six test cases to decide this.

He said that the purpose of obliging lenders to provide a copy of the loan agreement, when asked, was not to prove that the agreement had been properly struck in the first place, but to provide the borrowers with information about the state of their account.

"The debtor has a legitimate interest in seeing a copy of the agreement he signed, not in the sense of proof of execution but as information," he said.

 

As such, he ruled that a reconstituted version of the agreement was perfectly acceptable.

 

The information in it could be drawn from other data held by the bank about their customers, and it could be recreated by drawing on the standard terms and conditions that the bank applied at the time.

 

Also, it was not necessary for the bank to examine the original signed agreement to do this, or even still to have it.

"A creditor can satisfy its duty... by providing a reconstituted version of the executed agreement which may be from sources other than the actual signed agreement itself," he said.

 

"The fact that the creditor no longer has the original executed agreement is not therefore, itself a bar to compliance [with the Act]," he added.

 

'Honest and accurate'

Judge Waksman did point out that the banks could not simply invent the loan agreement retrospectively to comply with the law.

"It must - of necessity - be based upon records held as to the debtor and the agreement he made," the judge said.

"That a creditor needs to take care when providing the copy is highlighted by the fact that it is implicit in its duty that it is an 'honest and accurate' copy," he added.

 

Judge Waksman rejected some arguments put forward by the banks, and supported some of those put forward of the claims management firms and their clients.

He ruled that:

• a copy of the loan agreement must contain the name and address of the borrower as it was at the time it was signed

• if an agreement has been subsequently varied by the lender, then the lender is obliged to supply a copy of both the original agreement as well as the current one.

 

Judge Waksman's rulings were welcomed by one of the biggest claims management companies, Cartel Client Review, which was involved in the Manchester hearings.

 

It said that the clarification of the law would "open the floodgates" to many more cases being put forward in 2010.

 

"Our experience shows that many banks and credit card companies have failed to instigate systems and procedures that allow them to comply with the requirements of the CCA and it is also clear that many agreements did not comply with the prescribed terms of the CCA, when the agreements were originally drafted," said Andrew Settle of Cartel's solicitors CCLS.

 

Fishing expeditions

Judge Waksman also ruled that failure to supply a copy did not, of itself, mean there was an unfair relationship between the lender and borrower under the CCA.

But he confirmed that if a lender could not supply a copy of the loan agreement, then this automatically prevented them from using the courts to chase a debt until such time as they could come up with a copy.

 

The judge went on to criticise some attempts by credit card customers to avoid repaying their debts by challenging their lender to produce a valid copy of their original loan agreement.

"Many claims now made under [the Act] may properly be regarded as unattractive and merely fishing for a case of unenforceability," he warned.

 

He went on to strike out claims from two individuals, pointing out that they had failed to supply any evidence at all that they had never signed their loan agreements in the first place.

 

"The absence of a copy of a signed executed agreement is no evidence that such an agreement was not made," ruled Judge Waksman.

[emandcole]

Yeah, bit concerned about this and clearly the banks are on a roll to some extent. Not sure why the claims management companies are so chuffed, if a creditor only has to provide a reconstruction of the original copy it's hardly helpful is it?

 

Having said that many older agreements have had variations applied meaning that the creditor must still produce the original so clearly this decision is a mixed bag for some.

 

Another avenue is to explore the ability of a creditor or DCA to confirm that what they have produced is a true copy of the original. There are a host of questions one could ask to verify that anyone relying on what is effectively hearsay evidence is actually credible.

 

Eg: Can the witness who introduces the extraneous documentation demonstrate capacity to give first hand evidence of the truth and relevance of the documents. Does this witness say he or she produced the database entry or whatever other document is relied upon?

 

Does the witness recall creating the database entry? He does? He remembers creating this particular entry 5 years ago, yet on average he creates 50 database entries each day? What else does he remember about the day he created the database entry? What is so distinctive about the database entry which enables him to recall its creation 5 years later?

 

Was this witness even an employee of the Claimant at the time, or if an employee, an employee working in the relevant department at the Claimant's office?

 

Doubt needs to be introduced in order to argue this one I think. Credit to Surfaceagentx20 for the questionning above, I merely have it copied as it's good stuff. Think this all needs a bit of strategic working but could be beneficial in many arguments when argued on a case by case basis.

[car2403]

Hi CARO....to elaborate then...

 

Taken from the BBC website today. Relevant section in RED bud....

 

 

Banks have won a partial victory against some credit card customers who have been trying to avoid their debts.

A judge at the High Court in Manchester has upheld that card companies need only provide a "reconstituted" copy of the original loan agreement.

It confirms that banks can still enforce debts even if the original agreement has been lost or destroyed.

 

The ruling may affect thousands of potential cases gathered by claims management companies.

"It seems to me to be likely that the number of challenges... will diminish significantly hereafter," said Judge David Waksman.

 

Banks sometimes have great difficulty in providing an exact copy of an original credit card agreement, such as a photocopied or scanned version, and at least one major bank is thought to have destroyed all its old credit card agreements.

 

Reconstitution

Under the Consumer Credit Act (CCA), lenders are obliged to supply a copy of their credit card or loan agreement to a borrower, if asked to do so, within 12 days.

 

The absence of a copy of a signed executed agreement is no evidence that such an agreement was not made

 

 

Judge Waksman

 

 

 

Some claims management companies and their solicitors have been trying to use the law to stop debts being enforced, possibly permanently, if the copy cannot be produced satisfactorily.

 

This has led to disputes between lenders and customers about what sort of copy is acceptable under the law.

 

Judge Waksman examined six test cases to decide this.

He said that the purpose of obliging lenders to provide a copy of the loan agreement, when asked, was not to prove that the agreement had been properly struck in the first place, but to provide the borrowers with information about the state of their account.

"The debtor has a legitimate interest in seeing a copy of the agreement he signed, not in the sense of proof of execution but as information," he said.

 

As such, he ruled that a reconstituted version of the agreement was perfectly acceptable.

 

The information in it could be drawn from other data held by the bank about their customers, and it could be recreated by drawing on the standard terms and conditions that the bank applied at the time.

 

Also, it was not necessary for the bank to examine the original signed agreement to do this, or even still to have it.

"A creditor can satisfy its duty... by providing a reconstituted version of the executed agreement which may be from sources other than the actual signed agreement itself," he said.

 

"The fact that the creditor no longer has the original executed agreement is not therefore, itself a bar to compliance [with the Act]," he added.

 

'Honest and accurate'

Judge Waksman did point out that the banks could not simply invent the loan agreement retrospectively to comply with the law.

"It must - of necessity - be based upon records held as to the debtor and the agreement he made," the judge said.

"That a creditor needs to take care when providing the copy is highlighted by the fact that it is implicit in its duty that it is an 'honest and accurate' copy," he added.

 

Judge Waksman rejected some arguments put forward by the banks, and supported some of those put forward of the claims management firms and their clients.

He ruled that:

• a copy of the loan agreement must contain the name and address of the borrower as it was at the time it was signed

• if an agreement has been subsequently varied by the lender, then the lender is obliged to supply a copy of both the original agreement as well as the current one.

 

Judge Waksman's rulings were welcomed by one of the biggest claims management companies, Cartal Client Review, which was involved in the Manchester hearings.

 

It said that the clarification of the law would "open the floodgates" to many more cases being put forward in 2010.

 

"Our experience shows that many banks and credit card companies have failed to instigate systems and procedures that allow them to comply with the requirements of the CCA and it is also clear that many agreements did not comply with the prescribed terms of the CCA, when the agreements were originally drafted," said Andrew Settle of Cartel's solicitors CCLS.

 

Fishing expeditions

Judge Waksman also ruled that failure to supply a copy did not, of itself, mean there was an unfair relationship between the lender and borrower under the CCA.

But he confirmed that if a lender could not supply a copy of the loan agreement, then this automatically prevented them from using the courts to chase a debt until such time as they could come up with a copy.

 

The judge went on to criticise some attempts by credit card customers to avoid repaying their debts by challenging their lender to produce a valid copy of their original loan agreement.

"Many claims now made under [the Act] may properly be regarded as unattractive and merely fishing for a case of unenforceability," he warned.

 

He went on to strike out claims from two individuals, pointing out that they had failed to supply any evidence at all that they had never signed their loan agreements in the first place.

 

"The absence of a copy of a signed executed agreement is no evidence that such an agreement was not made," ruled Judge Waksman.

 

As with most of the test cases on these issues, () this decision only applies to s.78 CCA requests and DO NOT have a cross read in to situations where the creditor is seeking enforcement action against a consumer - this is no different to the other cases, so the precedent actually does little damage to the causes we see on CAG.

 

Of course, you'll need to read the actual Judgment, rather than relying on the soundbites thrown out there in the media, which seem to be relying on CMC's as their source - it's just a shame that the media is intent on reporting inaccurately and that so many of the public just believe it, rather than actually reading the case and the Judgment, then applying that to their situation. :rolleyes:

 

If you're interested, here's the full Judgment;

 

http://www.judiciary.gov.uk/docs/judgments_guidance/judgment-carey-v-hsbc.pdf

 

http://www.bailii.org/ew/cases/EWHC/QB/2009/3417.html

 

This is a bit off topic though, so maybe another thread for any further discussion is required, should you wish to start one.

Edited January 1, 2010 by car2403

[InformedSearcher]

I am one of the people who complained directly to the bank without using the court. My dearest bank HSBC sent me a letter and (of course as others) want to know what I should do in respect of replying to it as they tell me I have 8 weeks.

Okay in reality I want these stupid charges back. Their 'smoochy' letter of course indicates otherwise!

 

Michael

[battyman]

"What I mean is where someone has a claim against them, for example due to an overdraft which has charges on it, they could have several reasons to defend it, eg no default notice, not properly executed DN. Perhaps it's been passed to a DCA with no proper Notice of Assignment. Maybe PPI was missold which would also bring the amount of the claim into question."

 

If we have to use other items in the defence would we be able to use the DN not properly executed? Halifax have issued me with a DN that isnt properly executed but there was a discussion on the DN thread and I think it was Vint (sorry if thats the wrong name) who said you couldnt defend the DN on an overdraft?

 

On another note I have just received a letter from Alliance & Leicester who have quoted the SC judgement and told me to pay up. What was £200 charges is now nearly £1000 as they have been adding charges daily, even though it is with the coursts. Do we reply to these letters or just wait and see what happens next. I have three claims in the courts and dont know what to do with any of them, and I know we are all in the same boat.

[yourbank]

All of them are giving you 8 weeks before they will close the complaint re charges. I think you need to be careful with a templated response. UTCCR 1999 reg 5(1) is about an imbalance in the contract between the buyer ie you and the seller, ie the bank. No doubt there will be a template response to give but it may not be the best response to do so but to look at how the charges have caused the imbalance.