why you shouldnt use section 77/78 CCA 1974 if you want the signed agreement

[diddydicky]

well i wont be abandoning my battle- but it does seem odd that CAg should deem that two consenting adults cannot agree to help each other against a creditor,

 

however- given some of the goings on with some of the site team on this forum- your comments do not surprise me

 

they have managed to drive a valued member off the site in favour of supporting one who has openly critcised CAG on other sites including credit today and is a moderator on a rival site

 

- ther's nowt so queer as folk!!

[freethemice]

Banks become the enemy when they hike the interest rates making it much more difficult to ever clear your debts.

 

MBNA hiked mine to 34.9%, on an account that was always paid on time and been paid in full many times!

 

It's Greed on a major scale, IMHO and that is why we are fighting back.

 

It is a concern though, if reconstituted agreements are being accepted, then we are all stuffed anyway and await our turn in court!

 

In this instance an agreed set of terms and conditions would show you if you agreed to let them rise the interest in this way and what notice would be needed. It would be for you to then argue if this was an unfair term in your contract or constituted an unfair relationship.

Without some protection they can write what they want and witness you agreed to it and then the onus is on you to prove otherwise.

 

This of course is for the site team to decide upon.

[pt2537]

I hope this works

 

Please please please do not follow the advice on this thread, it is no longer relevent and is dangerous to follow on the basis of the failure of Mr Kneale v Barclays Bank plc

 

Kneale v Barclays Bank Plc (t/a Barclaycard) [2010] EWHC 1900 (Comm) (23 July 2010)

 

please take legal advice before using CPR 31.16 it is unsafe,

 

I have been trying to get this brought to users attention since i was removed from the team, so please please please DO NOT USE CPR 3116 for disclosure of the credit agreement without legal advice

[pt2537]

Paul will be writing a detailed piece giving his view on why the Kneale case failed, what has to happen next and the requirements for a 31.16 application post kneale

[basa48]

Paul will be writing a detailed piece giving his view on why the Kneale case failed, what has to happen next and the requirements for a 31.16 application post kneale

 

From what I read it is almost as if the respondent was asking the appellant to provide the evidence with which the respondent would hang the appellant.

 

Is it not a long established tenet of law that you cannot be forced to give evidence that would incriminate yourself?

[SkemDosser]

I hope this works

 

Please please please do not follow the advice on this thread, it is no longer relevent and is dangerous to follow on the basis of the failure of Mr Kneale v Barclays Bank plc

 

Kneale v Barclays Bank Plc (t/a Barclaycard) [2010] EWHC 1900 (Comm) (23 July 2010)

 

please take legal advice before using CPR 31.16 it is unsafe,

 

I have been trying to get this brought to users attention since i was removed from the team, so please please please DO NOT USE CPR 3116 for disclosure of the credit agreement without legal advice

 

This thread has over 2000 posts in it, started from the premise that CPR 31.16 should be used if you wanted to get hold of the signed agreement. I and a few others were dubious about the merits of this at the time and said so, as you are effectively putting yourself in the position of agitator/claimant, but how many CAGers followed that advice and put themselves in the poo? [there may of been some clear successes though I'm not aware of any- if there are, no doubt I will be put right ]

 

And now this. I suppose to be fair to PT he only outlined the possibilities of the technique and the bottom line is that every poster is their own agent in deciding what to do with their own circumstances, and how you use the range of advice on offer, but the fact is PT was [and still is to some of course] an authoritative voice on here and his advice was acted on accordingly by quite a few posters it seems, with at least one disasterous result.

 

To be honest I don't know what to make of it all. What appears clear though is that some reputations have taken a serious knock over this

Edited August 2, 2010 by SkemDosser
typo!!

[diddydicky]

i think you will find that at no time did PT ever suggest that the 31.16 was used as a "fishing excercise"

 

i doubt that ANYONE on the forum has come a cropper by following his advise on this subject

 

those that might have run into difficulties- i expect- were those who only half understood the legal mechanics behind the legistlation

 

there are, to my mind two types of cagger

 

those who try to learn as much as they can about what they are being told- and this involves MANY hours of research

 

and those who just want sometime to give them "soundbites" that they can quote to the creditor or court- without much of an idea of what it actually means

 

it is the second type of cagger - i suspect- that would come a cropper by not fully understanding CPR31.16

[pt2537]

i will answer this as it is clearly questioning me

 

So,

 

Pre action discovery has always been an option for seeking documents you need to bring a claim, thats why its there of course.

 

The judge of the first instance agreed and allowed Mr Kneale disclosure and awarded costs against Barclays who appealled and won

 

Now then

 

What about business bank charges claims? are all the sites wrong because they advocated claiming back bank charges on business accounts and then the court goes and declares charges arent penalties?

 

No, i do not accept that this criticisim would be fair or warranted in those circumstances.

 

Nor do i think it is fair that i am labled as being in the wrong for promoting a way forward,

 

The problem is that Kneale confirmed the approach of Waksman QC as being correct, in that there needs to be more than just a fishing trip, i did make that clear in the first posts , that you need to have grounds more than just saying that you want to see the agreement. That is important and has been confirmed by the Kneale judgment.

 

Pre action disclosure is still available, but people will need something more concrete than just wanting the agreement, they will need to give a positive assertion as to what they thought was wrong with the agreement and why they need the original to succeed and also there is a clear costs implication too.

 

PT signing off

[diddydicky]

regretabbly the site team/owners don't feel the same way!!

 

well if they do- they have a funny way of showing it!!

[B3rty]

Its just shows they are human and subject to the same pressures we all are...best not to take sides other then the side of reason as this is what the DCAs want..

 

Site team could start by not screening out the other sites name

[bustthematrix]

....his advice was acted on accordingly by quite a few posters it seems, with at least one disasterous result.

Who is the one 'disastrous result' that acted on PT's advice? To my knowledge, Kneale went via a CMC and was probably not a CAGGER, so what disaster are you reffering to?

 

You will note, as has already been commented on here previously, that the Kneale case was VERY poorly particularised and was heard by a judge that in my view is something of a pro-creditor activist judge.

 

I still wonder why a County Court case from Chester was appealed to a High Court in London (where Flaux sits) as opposed to the Manchester High Court where Waksman is based. May not be as trivial or innocent as it appears.

Edited August 2, 2010 by bustthematrix

[bustthematrix]

Until the higher courts rule on these documents it is in our interest to gather as many agreements as we can and make them available to compare against what the bank states.

They have. Recons are clearly no more than hearsay evidence. People just need to be really sharp on exactly how to defend against testimony/evidence based on recons. Also, think how wide the door for abuse is with recons? It's huge. As I've already said, it's not so much that people disgaree with lenders on the specific details of T&C's, it's that debtors are sure that 99% of pre- April 2007 consumer credit in issuance are based on duff non-compliant agreements which should really, under the CCA be treated as gifts and written off.

 

I do not see why the banks should be treated as the enemy

That's because they are. They lie through their teeth - all the time. They do it so well and have been doing it so long they even forget that they are lying!!! They actually believe their own lies and expect everyone else to.

There was supposed to be a 'credit crunch' on yet...

The UK's biggest bank HSBC has reported pre-tax profits of $11.1bn (£7bn) for the first six months of 2010 - more than double its profits for the same time last year.

 

Don't mean to offend if anyone here works for HSBC or any of it's subs (or maybe you just own shares or whatever) but let's not kid ourselves as to who's playing who...

[BornAgainBiker]

aside from all the curent discussion, can i ask, how does the Kneale case affect a person with a card debt where there appears to be no copy of a cca agreeement available? Does it mean that the debt is now enforceable irrespective of wether or not a valid cca is provided? hope i'm not being thick as i'm afraid i'm one of the second types of 'soundbite' caggers described by diddydicky! thanks BAB

[Fingers60]

aside from all the curent discussion, can i ask, how does the Kneale case affect a person with a card debt where there appears to be no copy of a cca agreeement available? Does it mean that the debt is now enforceable irrespective of wether or not a valid cca is provided? hope i'm not being thick as i'm afraid i'm one of the second types of 'soundbite' caggers described by diddydicky! thanks BAB

 

Agreed, this has to be the focus for discussion.

[foolishgirl]

Kneale case affect a person with a card debt where there appears to be no copy of a cca agreeement available? Does it mean that the debt is now enforceable irrespective of wether or not a valid cca is provided?

 

Kneale was to do with how a request under CPR31.16 for an exact copy of an agreement & its T&Cs should be enforced, not whether an agreement could be enforced (i.e. debt enforcement) without the original being shown to the court.

[BornAgainBiker]

Kneale was to do with how a request under CPR31.16 for an exact copy of an agreement & its T&Cs should be enforced, not whether an agreement could be enforced (i.e. debt enforcement) without the original being shown to the court.

 

actually, what i meant was, where a re-constituted agreement is provided in place of an original. thanks bab

[bustthematrix]

Kneale was a more offensive approach rather than defensive and being claimant has very important implications for 'burden of proof' requirements. As you may know, it is he who alleges (the Claimant) that must bring proof of his claims.

 

In most CCA actions, especially those concerning CAGgers, creditors are the claimants and the debtors the defendants.

 

Kneale was the Claimant and was trying to get the court to order disclosure of the original executed agreement under CPR 31.16 because he 'suspected' it was IEA (Ireedemably Unenforceable Agreement). This was following repeated s78 requests for the executed agreement with of course the creditor, had failed to properly fulfill.

 

Whilst the County Court Judge had effectively accepted this logic and made the order, the High Court Judge did not agree and ruled against Kneale.

[bustthematrix]

aside from all the curent discussion, can i ask, how does the Kneale case affect a person with a card debt where there appears to be no copy of a cca agreeement available?

It doesn't really. It only becomes relevant if YOU decide you want to compel production of the original and if it can't be produced, have the agreement declared as IEA.

Does it mean that the debt is now enforceable irrespective of wether or not a valid cca is provided?

Definitely not but if a lender/DCA brings a court action on the back of a recon, the recon must be robustly refuted as hearsay evidence only because that's exactly what it is.

hope i'm not being thick as i'm afraid i'm one of the second types of 'soundbite' caggers described by diddydicky! Well, just keep reading and you may gain an appetite for some of the legal issues

thanks BAB

HTH

[Peterbard]

This thread has over 2000 posts in it, started from the premise that CPR 31.16 should be used if you wanted to get hold of the signed agreement. I and a few others were dubious about the merits of this at the time and said so, as you are effectively putting yourself in the position of agitator/claimant, but how many CAGers followed that advice and put themselves in the poo? [there may of been some clear successes though I'm not aware of any- if there are, no doubt I will be put right ]

 

And now this. I suppose to be fair to PT he only outlined the possibilities of the technique and the bottom line is that every poster is their own agent in deciding what to do with their own circumstances, and how you use the range of advice on offer, but the fact is PT was [and still is to some of course] an authoritative voice on here and his advice was acted on accordingly by quite a few posters it seems, with at least one disasterous result.

 

To be honest I don't know what to make of it all. What appears clear though is that some reputations have taken a serious knock over this

 

This has always been my problem.

 

It is no use calling yoursellf a solicitor and then putting a diisclaimer under your name people are just going to presume you know what you are talking about

 

Peter

[the_shadow]

This has always been my problem.

 

It is no use calling yoursellf a solicitor and then putting a diisclaimer under your name people are just going to presume you know what you are talking about

 

Peter

 

Hmm IMO he did know what he was talking about, as the first judge agreed with the claimant... trouble is the supporting evidence wasnt there when appealed in front of an alleged pro-creditor judge and the case was dismissed...

 

PT put plenty of warnings in the first couple of posts on what kind of evidence would be needed and what you have to show. The warnings are still there for all to see.

 

S.

[Peterbard]

Hmm IMO he did know what he was talking about, as the first judge agreed with the claimant... trouble is the supporting evidence wasnt there when appealed in front of an alleged pro-creditor judge and the case was dismissed...

 

PT put plenty of warnings in the first couple of posts on what kind of evidence would be needed and what you have to show. The warnings are still there for all to see.

 

S.

 

Hi

You miss my point.

 

Everyone is entitled to an opiniion on here, but it must always be treated to adegree of scrutiny by other posters.

Because of the nature of PTs posts any dissagreement is treated with abuse.

　

I showed this thread to a friend of mine who is a solicitor when it first came out, he said a solicitor would have to be mad to risk this.

I kept my mouth shut because of the stick I got from questioning his logic on other threads.

Perhaps I should have bit the bullet.

Peter

[means2anend]

Lets distinguish the evidence required in support of CPR 31.16 from the issue of whether there is in existence an 'true copy' which is honest and accurate of the original EXECUTED agreement ......there is a distinction.

[means2anend]

Hi

You miss my point.

 

Everyone is entitled to an opiniion on here, but it must always be treated to adegree of scrutiny by other posters.

Because of the nature of PTs posts any dissagreement is treated with abuse.

　

I showed this thread to a friend of mine who is a solicitor when it first came out, he said a solicitor would have to be mad to risk this.

I kept my mouth shut because of the stick I got from questioning his logic on other threads.

Perhaps I should have bit the bullet.

Peter

 

 

Implicit in your statement is that pt2537 is a solicitor...I do not remember pt2537 ever expressly stating that on this thread nor on any other....

 

Whilst I acknowledege your point as to healthy debate ultimately it depends on preparation and understanding of the case law...lawyers have access to this we dont!

[diddydicky]

aside from all the curent discussion, can i ask, how does the Kneale case affect a person with a card debt where there appears to be no copy of a cca agreeement available? Does it mean that the debt is now enforceable irrespective of wether or not a valid cca is provided? hope i'm not being thick as i'm afraid i'm one of the second types of 'soundbite' caggers described by diddydicky! thanks BAB

 

the kneale case effects simply - applications made under CPR31.16 pre litigation

 

it has long been held that this cannot be used as a "fishing excercise" and this was pointed out at the outset by PT

 

nor is a simple "suspicion" sufficient. since clearly that would circumvent the former comment.

 

 

kneale, who as far as i am aware was not a cagger (to my knowledge) used a CMC and initially won his argument(and costs) was knocked back by an appeal court judge

 

we cannot all applaud the appeal court judges when they knock back the creditors but then accuse them of being in the creditors pockets when they knock back one of the debtors victories

 

all PT is saying now is that you must have a well constructed case when using CPR31.16 as this ruling has "tightened up" the requirement to ensure that it is not seen as a fishing excercise or "punt" as the judge described it- and that in his opinion- this might now be beyond the remit of a cagger and should be done with legal advice

[freethemice]

This is proving a nightmare for caggers.

 

Is there now in place any mechanism to find out if a Creditor has kept your original agreement when you disagree with the terms they state apply or believe what they have shown you is a forgery?

 

How do we insist on our right to see the original agreement when court proceedings have been issued against us and the county court judge seems inclined to accept a 'reconstituted' agreement will do? i.e. what legislation and case law should we be researching to avoid soundbites?

 

What I believe is neccassary here is a system like Scotland where the Claimant has to produce the agreement on issuing of proceedings where money is claimed pursuant to an agreement. I have wrote to my mp on this issue and he has submitted this to the Secretary of State for Justice for review. I would urge other caggers to do the same.