BB v Cabot Appeal

[Rhia]

Ah TLD...I was just popping back to say you need some directions. Get them posted on here but the main argument stems from a lack of an improperly executed CCA (in fact post 34 covers this). No proper CCA then it falls under 127(3) and cannot be enforced even by a judge.

 

It also puts paid to the arguments of default notices, assignment, processing data as the CCA is the basis of all this.

 

Yep get the directions posted on here before you send them off.

 

And when they do eventually back off, hit them for wasted costs then complain to the Law Society about the company (it is registered with the Law Society as Cabot Financial Europe Ltd NOT Morgan's) and complain about - Piers Morgan and Cabot director Glenn Crawford both of whom are solicitors and registered with the LS.

Edited August 29, 2009 by Rhia

[BeauBrummie]

Firstly a huge thank you to all who are taking an interest and giving support on this thread---it is nice to know there is back up here when I am in need.

 

Ok, I have until 11 September to file AQ

 

I have recently filed an N149 AQ for my OH who is have a fight with Howard Cohen and Next. For this I followed the excellent PT2537's Guidance on filing an AQ as this link

 

http://www.consumeractiongroup.co.uk/forum/legal-issues/131499-directions-n150-n149-allocation.html

 

I assume the draft directions will be along these lines?

 

Beau

[Rhia]

That's exactly what you need. Follow that. You can post it on here so we can all admire the way in which you will be despatching this particular Cabot case to its grave.

[BeauBrummie]

I am starting to look at the way Cabot may argue their case and believe that this sentence needs scrutiny and debate before I enter my AQ.

 

From Section 189 (4) CCA via a Cabot Letter I have

 

"A Document embodies a "provision",if the provision is set out either in the document itself or in another document referred to in it"

 

I believe what Cabot are trying to say is if within the "Application Form" (the document they wish to rely on) the terms are referred to within another document supplied at the same time or not this then renders the agreement enforceable under section 60 CCA (1) where the Secretary of State is referred to???

 

 

Legal people please have some input.

 

Beau

[vjohn82]

Here is part of a letter I sent to Cabot...

 

“A document embodies a provision if the provision is set out either in the document itself or in another document referred to in it.”

 

Aside from the fact that the document itself does not contain any wording stating that the signatory agrees to be bound by terms and conditions mentioned overleaf or to terms and conditions it is also illegible; this is an important consideration as Section 2(1) of the Consumer Credit (Cancellation notices and Copies of Documents) Regulations 1983 states quite specifically.....

 

2 “Legibility of notices and copy documents and wording of prescribed Forms

(1) The lettering in every notice in a Form prescribed by these Regulations and in every copy of an executed agreement, security instrument or other document referred to in the Act and delivered or sent to a debtor, hirer or surety under any provision of the Act shall, apart from any signature, be easily legible and of a colour which is readily distinguishable”

 

However, the above being a primary consideration of medium importance in the overall scheme of things the next is a secondary consideration which has far reaching consequences being that it dissolves the argument of section 189(4) stated to me by Lucy O’Hara; it must stated it is a misappropriation of Cabot’s legal position to use this point as Cabot must comply with legislation and case law. I will refer here to a court case which held:

 

“In the judgment of TUCKEY LJ in the case of Wilson and another v Hurstanger Ltd [2007] EWCA Civ 299 "[11] Schedule 1 to the 1983 Regulations sets out the information to be contained in documents embodying regulated consumer credit agreements. Some of this information mirrors the terms prescribed by Sch 6, but some does not. Contrasting the provisions of the two schedules the Judge said:

 

Quote:

"33 In my judgment the objective of Schedule 6 is to ensure that, as an inflexible condition of enforceability, certain basic minimum terms are included which the parties (with the benefit of legal advice if necessary) and/or the court can identify within the four corners of the agreement. Those minimum provisions combined with the requirement under s 61 that all the terms should be in a single document, and backed up by the provisions of section 127(3), ensure that these core terms are expressly set out in the agreement itself: they cannot be orally agreed; they cannot be found in another document; they cannot be implied; and above all they cannot be in the slightest mis-stated. As a matter of policy, the lender is denied any room for manoeuvre in respect of them. On the other hand, they are basic provisions, and the only question for the court is whether they are, on a true construction, included in the agreement. More detailed requirements, which are designed to ensure that the debtor is made aware, so far as possible, of specified information (including information contained in the minimum terms) are to be found in Schedule 1.”

 

The document you have provided does not even meet the basic requirement of meeting one prescribed term. I suggest this is taken into account. Please note should you provide an unsatisfactory response I will use this legislation and case law (precedent) to defend any court action. Please note section 2.6 of the OFT Debt Collection Guidance mentioned above; a lack of an enforceable credit agreement is classed as a dispute and you should seek to end collection activity on the account once a dispute has been lodged - this includes removing data being recorded with third parties (inc. Credit Reference Agencies) and seeking clarification from the original creditor on the appropriate action to take. If you are now the account owner then the course of action to take is clear; either seek a court order to sustain your position or remove the records from your databases.

[Rhia]

VJOhn's letter is very good and gets to the heart of the argument.

 

I have seen many Cabot letters where they try to argue semantics with the word "embodies" the Wilson-v-Hurstanger case states very clearly what should be there and is precedent. That's it.

 

If they continue to wish to argue this in front of a court then let them. If they continue to argue this in the full and certain knowledge that they are trying to bamboozle you they are being vexatious and malicious.

 

There is also strong case law (not precedent but useful none the les and not to be ignored) from Leeds County Court in June where HH Judge Langan QC ruled in the case of Bank of Scotland-v-Robert Mitchell.

 

RBS discontinued their action against the Defendant on the morning of the hearing

In his judgement he said:

 

"3. What has been listed for trial today is, "The determination of issue", referred to in the order which I have just recited.

 

4. The agreement made in relation to the defendant's credit card was a regulated agreement within the Consumer Credit Act 1974. Section 61(1)(a) of that Act provides:

 

"A regulated agreement is not properly executed unless a document in

the prescribed form, itself containing all the prescribed terms and

conforming to regulations under Section 60(1), is signed in the

prescribed manner, both by the debtor or hirer, and by or on behalf of

the creditor or owner".

 

Having regard to the date of the agreement made in this case, which was prior to amendments made to the Act which took effect from 5th April 2007, the result of non compliance with Section 61(1)(a) would be that the credit card agreement would be unenforceable against the defendant, see Consumer Credit Act 1974 Section 127(3)."

And he said in regard to the withdrawal by BoS

 

 

6. The thrust of Miss Gardner's submission is that the issue directed by the District Judge, and on which the evidence has been focussed, is whether the bank supplied the defendant at the time of signing the application form for credit with documents which contained all the terms of the agreement between them. I shall elaborate a little further on this. It has been the defendant's case that he was supplied with nothing more than the application form which he signed. It has been the bank's case that in accordance with the usual practice of the bank the defendant would have been, and must have been, supplied with other documents, including a pack which will have contained all the terms and conditions of the agreement made between the parties. Miss Gardner goes on to say that the defendant has at the last moment taken a new and radically different point, namely that the document signed by the defendant did not contain all the prescribed terms of the agreement. I must again elaborate on this. It is common ground that the only document signed by the defendant was the application form. It is also common ground that the application form did not, on its face, set out the prescribed terms of the agreement between the parties. The point which is treated by Miss Gardner as a

new point is dealt with in paragraphs 22 and 23 of Mr Berkley's written argument, and it will, I think, be more economical if I simply quote those two paragraphs in full rather than attempt,in my own words, to expand on them:

 

"The key words in Section 61(1)(a) are the reference to a document

itself containing all the prescribed terms, and conforming to the

regulations under Section 61. This language is clear and specific, and

ensures that mere reference to terms contained in another document

will not suffice. The document must contain the prescribed terms, just

as the signed document referred to in Section 127(3), which might save

the day, must however contain the prescribed terms. The construction

contended for by the defendant is entirely consistent with the language

of Section 61(1), and is also supported by Professor Good in his

encyclopaedic work - see Good & Consumer Credit Law and Practice

volume 2, 2B 5.121, and see also the comments at 2B 5.247. There the

learned author draws a distinction between the language of paragraph

(a) contain and paragraph (b) embody. It is respectfully submitted that

the court should adopt the same reasoning in determining this issue in

favour of the defendant, irrespective of whether or not it finds that the

defendant was supplied with documents other than the credit

agreement itself".

 

7. In my judgment, the point with which I have just been dealing is not properly to be characterised as a new point on which the bank can present itself as being taken by surprise. I refer to four documents. First, on 3rd November 2008, when the defendant was acting as a litigant in person, in the request to have the default judgment set aside he said this:

 

"As the court is aware, in the absence of all the prescribed terms being

embodied, it will render a document unenforceable in court. These

terms must be contained within the agreement, and not in a separate

document headed 'Terms and Conditions', or words to that effect".

Secondly, on 18th February 2009, solicitors, who were by then acting for the defendant, sent to the solicitors acting for the bank a copy of what they called an expert report setting out the reasons why the agreement was in breach of Section 61(1)(a), and they went on:

 

"As you are aware it is our client's position that at the time he entered

into the agreement he was not provided with a copy of the terms and

conditions governing the agreement".

 

If one goes to the so called expert's report, one finds that it is in effect an opinion prepared by another firm of solicitors, and the opinion contains the following:

 

"Based on the information provided, it appears that the prescribed

terms and conditions were not included in the document signed by the

borrower. The agreement would appear to be in breach of the

regulations in that it does not contain within the signed agreement itself

all of the prescribed terms".

 

Thirdly, that point having been taken on behalf of the defendant, it was robustly rejected by the solicitors acting for the bank in their reply of 19th March 2009:

 

"Our client has sought counsel's opinion on this matter and her view is

that the agreement is compliant. We note that your client is arguing

that at the time of signing the agreement, the application for a credit

card, he was not provided with the actual terms and conditions which

were contained in a separate document to the application. Whilst our

client accepts that the application itself does not comply with the

requirements of the Consumer Credit Act 1974, and only becomes

compliant by reference to terms and conditions, there are references in

the agreement to the conditions in which it states that they are provided

in the Halifax credit card application pack".

 

Fourthly, going back in time a little, on 4th March 2009, in the defendant's witness statement made for the purpose of the trial of the issue, at the very beginning of the statement, in paragraph 3, he said this:

 

"It is my position that the agreement is not enforceable by the claimant

as it has failed to comply with its obligations under Section 61 of the

Consumer Credit Act 1974 by failing to include within the document

that I signed all the prescribed terms".

 

8. The absence of further reference to the point in the evidence is hardly surprising, since the point is one of law, on which there was no controversy as to the facts.

 

9. Miss Gardner has given no reason for the withdrawal of the action. She is in no way to be criticised for the omission. She is bound to act in accordance with her instructions, and those instructions were presumably to say no more than she has in fact said. But this does not prevent me from drawing what is in my judgment the only inference which can possibly be drawn from what has happened, which is that the bank realises that if the issue were to be

contested it would either lose on the issue or be at serious risk of losing. There may be hundreds of similar cases and the bank would plainly not wish other defaulting customers to get wind of an adverse decision on the fundamental point which is embodied in the quotation from Mr Berkley's written argument, which I have already set out.

 

10. Accordingly, I conclude, without hesitation, that there is no reason for displacing the presumption as to incidence of costs which is ordinarily applicable in a case of discontinuance. The bank will pay the defendant's costs of the claim, subject only to any existing order for costs in favour of the bank not being disturbed.

 

11. Finally, I have to consider whether the costs of the defendant should be assessed on the standard or on the indemnity basis. In my judgment the assessment should be on the indemnity basis. The only realistic view of what has happened is that the bank has surrendered on a straightforward point of law, to which it has on several occasions been alerted by the defendant or his solicitors. A large commercial enterprise which proceeds with litigation in the face of warning signs of the kind which were erected here, adopts a high risk strategy. The point in question was a simple one. There was no relevant controversy as to the evidence. To choose to abandon the claim on the very day of the hearing is doing a serious disservice to the efficient administration of justice, and comes very close to constituting an abuse of process. At the very least, the bank's conduct of the litigation falls comfortably within the range of cases in which, on the modern authorities, an assessment of costs on the indemnity basis is appropriate."

__________

[BeauBrummie]

Ok my N150 goes like this,

 

A) Settlement

1) No

2) N/A

3) No

4) At this stage the defendant pleads to be disadvantaged in this case, for reasons as shown in the Section I Witness Statement, and respectfully asks the court to grant the draft directions annexed to section F.

 

B) No

C) Yes

D) Case Management

 

Full amount in dispute

No Applications

Myself as a Witness

No Experts

 

Track --Fast

 

E) Hearing 1hr

 

F) Directions --Yes

Not agreed with other party

 

G ) Blank

H ) N/A

I ) Documents YES

To Other Party Yes By 14 -09- 09

 

Not Intending to make any applications

 

 

Section F Draft Directions with a little addition ref Deed of Assignment

 

In the xxx County Court

 

 

Claim Number xxxxxxxx

 

 

 

Between

 

 

Cabot Financial (UK) Ltd - Claimant

 

 

 

and

 

 

 

Beaubrummie - Defendant

 

 

 

 

 

 

 

Draft Order for Directions

 

 

 

 

The Claimant shall within 14 days of service of this order file and serve the following:

• Copies of the Credit Agreement and any documents referred to within it which complies with the consumer Credit Act 1974 and all subsequent regulations, which the claimant seeks to rely upon.
  
• Default Notice compliant with s87 (1) Consumer Credit Act 1974 and Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) as amended.
  
• Document, contract or deed of assignment for the account. This to be compliant with s136 of The Law of Property Act 1925.
  
• Notice of assignment, with proof of service of the same compliant with s196 of the Law of Property Act 1925.
  
• Copies of any statement or other document relied upon
  

If the Claimant fails to comply with this order, the claim will be struck out without further order.

 

 

 

The Defendant shall within 14 days thereafter file and serve the following

• An amended defence sufficiently particularised in response to the documents supplied by the claimant
  

And then to Section I other Information

 

In xxxxxxxxCounty Court

 

 

Claim Number xxxxxx

 

 

 

Between

 

 

Cabot Financial (UK) Ltd - Claimant

 

 

 

and

 

 

 

Beaubrummie - Defendant

 

 

 

 

 

N150 Allocation Questionnaire

 

 

 

 

Section I - other information

 

If the court is in agreement, the defendant respectfully requests that special directions may be given as per the attached draft order.

 

The defendant proposes these directions in mind of the Overriding Objectives, and in particular the duty of the parties to help the court further them. The issues outlined below are the crux upon which this claim rests, and the proposed directions identify these issues and will allow them to be assessed in advance of the hearing so that this claim may proceed justly and expeditiously;

 

Without production of the requested documents, I am at a disadvantage and am unable to serve a proper defence. Failure of the claimant to supply the requested documentation will make the case much harder for the court to deal with as without production of the requested documentation will inhibit the courts ability to deal with the case

 

The House of Lords in the case of Wilson v First County Trust Ltd - [2003] All ER (D) 187 (Jul) made it clear in paragraph 29 of LORD NICHOLLS OF BIRKENHEAD judgment

 

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. The second type of case concerns failure to comply with the duty to supply a copy of an executed or unexecuted agreement pursuant to sections 62 and 63, or failure to comply with the duty to give

notice of cancellation rights in accordance with section 64(1). Here again, subject to one exception regarding sections 62 and63, section 127(4) precludes the court from making an enforcement order.

 

 

I wish to reserve the right to submit an amended defence should the documents be forthcoming from the claimant, and respectfully submit that there is no case to answer if the submissions are not forthcoming.

 

Therefore it stands to reason that these documents must be disclosed before this case can progress any further.

 

 

Comments ---adjustments additions removals?

 

Thanks

 

Beau

Edited September 22, 2009 by BeauBrummie
Correction of submittance

[BeauBrummie]

Anyone any thoughts on the above N150?

 

Thanks

 

Beau

[BeauBrummie]

Just a little bump---my AQ has to be in tomorrow

 

Thanks

 

Beau

[Rhia]

Beau I would just check the s127 parts as I thought it was s 127(3) where the court could not make an order at all and not 127 (4).

 

Apart from that it seems OK.

 

Further to my first paragraph. Just read it through again to make sure it does say what you want it to say.

This is from the Act:

127 (3) The court shall not make an enforcement order under s65(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).

 

(4) The court shall not make an enforcement order under section 65 (1) in the case of a cancellable agreement if -

(a) a provision of section 62 or 63 was not complied with, and the creditor or owner did not give a copy of the executed agreement, and of any other document referred to in it, to the debtor or hirer before the commencement of the proceedings in which the order is sought, or

(b) section 64 (1) was not complied with.

 

Hope this helps and good luck with the AQ

Edited September 10, 2009 by Rhia

[BeauBrummie]

Beau I would just check the s127 parts as I thought it was s 127(3) where the court could not make an order at all and not 127 (4).

 

Apart from that it seems OK.

 

Further to my first paragraph. Just read it through again to make sure it does say what you want it to say.

This is from the Act:

127 (3) The court shall not make an enforcement order under s65(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).

 

(4) The court shall not make an enforcement order under section 65 (1) in the case of a cancellable agreement if -

(a) a provision of section 62 or 63 was not complied with, and the creditor or owner did not give a copy of the executed agreement, and of any other document referred to in it, to the debtor or hirer before the commencement of the proceedings in which the order is sought, or

(b) section 64 (1) was not complied with.

 

Hope this helps and good luck with the AQ

 

Thanks Rhia,

 

I have taken those words directly from the thread by PT2537 so I am quite confident that he has that section right.

 

AQ went in by hand to court this morning so I guess we now just wait?

 

But how long? and what is likely to be the next stage in this case?

 

Beau

[cymruambyth]

In theory..... you get a copy of their AQ. If you haven't heard anything after about 2 weeks it may be worth ringing the court to see what is happening. If nothing, they should put both AQs to the judge for directions. (Just wish I didn't have an answer for this )

[cymruambyth]

Hi BeauB I'm still a couple of weeks behind you and now have my N150. I hope you don't mind if I use yours as my template?

[BeauBrummie]

Hi BeauB I'm still a couple of weeks behind you and now have my N150. I hope you don't mind if I use yours as my template?

 

No objections from me. It is mostly PT2537's work anyway so thank you Paul.

 

I have not heard anything from the Court nor Morgans yet, although there are postal strikes in parts of the country so Snail Mail cannot be relied upon at the moment.

 

I sent a copy of my N150 by Special Delivery and they signed for it so I know that Morgans got it.

 

I think I may have made some small changes to what I have posted on here, so I will have a look later and let you know.

 

Good luck with yours.

 

Beau

[cymruambyth]

Thanks. I've got a couple of weeks but as you know a slight feeling of panic appears nearer the deadline!

[cymruambyth]

Hi Beau

I'm starting to get my N150 ready, can you think of anything you added that can be of use.

Thanks,C

[BeauBrummie]

Hi Beau

 

I'm starting to get my N150 ready, can you think of anything you added that can be of use.

Thanks,C

 

Hi cymruambyth,

 

I have altered some of the answers to reflect what I actually sent. Post 82 is now what I actually sent. Nothing added nothing taken away.

 

Good luck

 

Beau

[cymruambyth]

Thank you

[100mel]

Subbing

[BeauBrummie]

Update,

 

Letter from court today as follows,

 

General Form of Judgment or Order

 

"In view of reply to defence the matter be listed for consideration whether the defendant discloses a defence capable of suceeding at trial or whether claimant should have a summary judgment, this will take place on xx/xx/xx at xx.xx at my local court.

 

Questions,

 

Does anyone think Cabot have asked for an SJ ?

 

If they have, the judge has not asked for attendance by anyone but I know on that date I am free to attend if I could---so therefore should I attend?

 

Clues to procedure would be good at this point

 

Thanks

 

Beau

[BeauBrummie]

Any clues to my last post please---googling around on this subject it looks like the judge does not believe my defence!!!

 

Thanks

 

Beau

[Rhia]

No idea. I would call court and ask if no-one calls by with a better reply than mine.

[BeauBrummie]

I have phoned the court and they have said that there will be a 5 minute hearing to decide if the case can be put forward for SJ or if my defence will prevail. Although not invited I may if i wish, and I can object to anything that is being said during the hearing.

 

So I think I need to attend to ensure that firstly if Cabot turn up they do not try to pull the wool over the judiciary's eyes and secondly that my points are put across correctly ?

 

What does everyone think ?

 

Thanks

 

Beau

[Rhia]

I would, like you I wouldn't want them turning up and twisting things.

[BeauBrummie]

I have again contacted the court and enquired if Cabot have sent in an AQ----the answer was yes, so I have written to the court to request a copy as obviously Cabot have not let me see what they are saying---suprise suprise.

 

Beau