Amendments to the 1974 CCA - URGENT

[Monty2007]

I am just completing a defence in Scottish jurisdiction (Ordinary Cause action), the Pursuers state:

“The agreement between the parties is regulated by the Consumer Credit Act 1974 as amended”.

 

I have three options; admit, deny or state "not known and not admitted" - failure to respond means that you admit it.

 

Does anyone know if there were amendments to the 1974 CCA prior to 2006

 

It may well be worth stating the third option available to me in Scotland, i.e. that "it is not know and not admitted that the agreement between the parties is regulated by the Consumer Credit Act 1974". This can then be followed by an adjustment such that I can admit is it regulated by the 1974 Act (i.e. not amended) but is unenforceable under S127(3) of the Act and crave that the Court declares the agreement unenforceable under S142.

 

Any comments would be appreciated.

Edited January 10, 2009 by Monty2007

[hillards]

Obviously you're aware of the 2006 act and I can't say I know of any major inbetween changes.

 

There are some notes at the site I use for reference - Consumer Credit Act 1974 - BERR

which highlight some changes in 2004:

Review of Consumer Credit Act - BERR

 

Don't know if any of that helps?

[Monty2007]

Obviously you're aware of the 2006 act and I can't say I know of any major inbetween changes.

 

There are some notes at the site I use for reference - Consumer Credit Act 1974 - BERR

which highlight some changes in 2004:

Review of Consumer Credit Act - BERR

 

Don't know if any of that helps?

 

Thanks hillards, I am just being ultra cautious for obvious reasons. They have used different claim terms here than Amex other (English) sols have used in their claim. Given I think they may be trying to capture the 2006 amendments for an earlier agreement, I will use the "not known and not admitted" defence and try to get modification during the adjustments. Hopefully they will see sense that they have no enforceable docs.

 

I have spend the last week reading Scottish procedure and civil action and speaking to a few sols, the Scottish process (ordinary cause - i.e. >£5 K) is not as well structured as England, especially for a non-lawyer. However the Acts and legislation, as are the arguments, the same so hopefully using them in accordance with Scottish process will achieve the same

I will post up all I know on Ordinary Cause litigation when I am through.

Edited January 10, 2009 by Monty2007
formatting

[Desperate Daniella]

In 2004 there was a new si about electronic communication - I assume this applies to regs about applying for things online (electronic ticks to agreements, etc.), but as you are well before this I can't think this applies here.

 

I think the "1974 (as amended)" must refer to 2006.

 

Maybe someone else on here has a thread showing their Court papers and you can see if their's has the same wording.

 

Good luck.

 

DD

 

Good luck.

]

DD

[Monty2007]

In 2004 there was a new si about electronic communication - I assume this applies to regs about applying for things online (electronic ticks to agreements, etc.), but as you are well before this I can't think this applies here.

 

I think the "1974 (as amended)" must refer to 2006.

 

Maybe someone else on here has a thread showing their Court papers and you can see if their's has the same wording.

 

Good luck.

 

DD

 

Good luck.

]

DD

 

Thanks DD, I think that they are trying to get the 2006 amendments into their claim so I have rumbled them.

[Monty2007]

Is there any significant relevance to not having a termination notice following a default notice on a credit card?

 

Could someone let me know what the requirements are for a TN and any timeframes or relevant pointers?

 

Many thanks.

[Kraken1]

standard and correct legal drafting to refer to an act that has been altered as thingamy act 2006 (as amended), for eg Sale of Goods Act 1979 (as amended).

 

there is also perhaps the option that they are trying to draw the courts attention to the fact that ss127 (3-5) were removed by the 2006 amendment for agreements after 2007.

[Monty2007]

standard and correct legal drafting to refer to an act that has been altered as thingamy act 2006 (as amended), for eg Sale of Goods Act 1979 (as amended).

 

there is also perhaps the option that they are trying to draw the courts attention to the fact that ss127 (3-5) were removed by the 2006 amendment for agreements after 2007.

 

 

Thanks

 

As I thought........................that's a deny then.

[Kraken1]

http://www.fisa.co.uk/downloads/CCA%201974.pdf

 

Probably not.... I would not be that pedantic about a description of an act, expecially when it fairly standard to use such a description.

[Monty2007]

http://www.fisa.co.uk/downloads/CCA%201974.pdf

 

Probably not.... I would not be that pedantic about a description of an act, expecially when it fairly standard to use such a description.

 

Stating "as amended" may be interpreted as including the 2006 revisions (repelaling S128 (3) of the 1974 Act) which would be incorrect given my agreement was 2003, some OC/DCA's have tried to convince a court that Sch 3, S11 of the 2006 Act is relevant:

 

Schedule 3, Section 11 of the Consumer Credit Act 2006 prevents Section 15 repealing Section 127 (3) of the 1974 Act for agreements made before Section 15 came into effect. Since any agreement would have commenced prior to the inception of the Consumer Credit Act 2006, Section 15 of the 2006 Act has no effect and hence the Consumer Credit Act 1974 is the relevant act in this case.

 

The Consumer Credit Act 2006, Schedule 3, Transitional Provision and Savings:

 

11 The repeal by this Act of-

 

(a) The words”(subject to subsections (3) and (4))” in subsection (1) of Section 127 of the 1974 Act,

(b) Subsections (3) to (5) of that section, and

© the words “or 127(3)” in subsection (3) of Section 185 of that act, has no effect in relation to improperly-executed Agreements made before the commencement of Section 15 of this Act.

 

I was just not sure if there were any amendments to the 1974 Act PRIOR to 2006 that I should be aware of, give there was only one in relation to electronic agreements then I intend to deny the that the statment is correct.

Edited January 10, 2009 by Monty2007

[Kraken1]

errr... no. That is why I posted the link. You have:

 

1977/126 of 31st January 1977

1977/325 (C. 11) of 28th February 1977

1977/326 of 28th February 1977

1977/327 of 28th February 1977

1977/328 of 28th February 1977

1977/329 of 28th February 1977

1977/330 of 28th February 1977

1977/331 of 28th February 1977

1979/667 of 15th June 1979

1979/1099 of 30th August 1979

1980/50 (C. 3) of 17th January 1980

1980/51 of 17th January 1980

1980/52 of 17th January 1980

1980/53 of 17th January 1980

1980/54 of 17th January 1980

1980/55 of 17th January 1980

1983/1551 of 24th October 1983

1983/1552 of 24th October 1983

1983/1553 of 24th October 1983

1983/1554 of 24th October 1983

1983/1555 of 24th October 1983

1983/1556 of 24th October 1983

1983/1557 of 24th October 1983

1983/1559 of 24th October 1983

1983/1560 of 24th October 1983

1983/1561 of 24th October 1983

1983/1562 of 24th October 1983

1983/1569 of 24th October 1983

1983/1570 of 24th October 1983

1983/1571 of 24th October 1983

1984/1055 of 23rd July 1984

1984/1107 of 25th July 1984

1984/1108 of 25th July 1984

1984/1109 of 25th July 1984

1985/1192 of 30th July 1985

1985/1736 of 13th November 1985

1988/2047 of 18th November 1987

1989/596 of 3rd April 1989

1989/1125 of 5th July 1989

1989/1126 of 5th July 1989

1997/211 of 4th February 1997...

 

And I don't doubt there are more since. The copy of the act on that link is way out of date. I don;t have westlaw at home to get a full list. I have no idea what any of those SIs did, though.

 

Therefore since 1977 the act has been correctly titled CCA 1874 (as amended).

 

I think if you argue on the name of the act you may irritate the judge/sherrif/whoever it is in scotland and it might colour his opinion of the rest of your case. He may see you as only relying on technicalities that he doesn't understand or care about. You might get rankined.

 

The 127 point is good, just make it in response to a specific claim made by the opposition and after they have sought to rely on it. This way they are either incompetent or were deliberately seeking to mislead the court... this could colour the judge against them...

[Monty2007]

errr... no. That is why I posted the link. You have:

 

1977/126 of 31st January 1977

1977/325 (C. 11) of 28th February 1977

1977/326 of 28th February 1977

1977/327 of 28th February 1977

1977/328 of 28th February 1977

1977/329 of 28th February 1977

1977/330 of 28th February 1977

1977/331 of 28th February 1977

1979/667 of 15th June 1979

1979/1099 of 30th August 1979

1980/50 (C. 3) of 17th January 1980

1980/51 of 17th January 1980

1980/52 of 17th January 1980

1980/53 of 17th January 1980

1980/54 of 17th January 1980

1980/55 of 17th January 1980

1983/1551 of 24th October 1983

1983/1552 of 24th October 1983

1983/1553 of 24th October 1983

1983/1554 of 24th October 1983

1983/1555 of 24th October 1983

1983/1556 of 24th October 1983

1983/1557 of 24th October 1983

1983/1559 of 24th October 1983

1983/1560 of 24th October 1983

1983/1561 of 24th October 1983

1983/1562 of 24th October 1983

1983/1569 of 24th October 1983

1983/1570 of 24th October 1983

1983/1571 of 24th October 1983

1984/1055 of 23rd July 1984

1984/1107 of 25th July 1984

1984/1108 of 25th July 1984

1984/1109 of 25th July 1984

1985/1192 of 30th July 1985

1985/1736 of 13th November 1985

1988/2047 of 18th November 1987

1989/596 of 3rd April 1989

1989/1125 of 5th July 1989

1989/1126 of 5th July 1989

1997/211 of 4th February 1997...

 

And I don't doubt there are more since. The copy of the act on that link is way out of date. I don;t have westlaw at home to get a full list. I have no idea what any of those SIs did, though.

 

Therefore since 1977 the act has been correctly titled CCA 1874 (as amended).

 

I think if you argue on the name of the act you may irritate the judge/sherrif/whoever it is in scotland and it might colour his opinion of the rest of your case. He may see you as only relying on technicalities that he doesn't understand or care about. You might get rankined.

 

The 127 point is good, just make it in response to a specific claim made by the opposition and after they have sought to rely on it. This way they are either incompetent or were deliberately seeking to mislead the court... this could colour the judge against them...

 

Many thanks for this Kraken1, I agree with you and will amend my defence accordingly. Very much appreciated.

[Viscount Stair]

I speak a little Scots law (as others who speak Scots law will have worked out from my id) but I must confess that I am quite rusty.

 

The ordinary cause is very non-lawyer unfriendly and the summary cause is not much better. In defence of the Scottish legal system, the Open Record adjustment process is much more flexible than the Claim, Defence, Reply structure and - done properly - it allows the key issues to be identified very clearly indeed.

 

As for what you say, I would suggest:

 

Admitted that the alleged agreement would be regulated by the Consumer Credit Act 1974 as amended but explained and averred that the alleged agreement would have been entered into prior to the coming into force of the Consumer Credit Act 2006 and that the transitional provisions in Schedule 3 to the 2006 Act are applicable.

Edited January 11, 2009 by Viscount Stair
Defending my native legal system!

[Monty2007]

I speak a little Scots law (as others who speak Scots law will have worked out from my id) but I must confess that I am quite rusty.

 

The ordinary cause is very non-lawyer unfriendly and the summary cause is not much better. In defence of the Scottish legal system, the Open Record adjustment process is much more flexible than the Claim, Defence, Reply structure and - done properly - it allows the key issues to be identified very clearly indeed.

 

As for what you say, I would suggest:

 

Admitted that the alleged agreement would be regulated by the Consumer Credit Act 1974 as amended but explained and averred that the alleged agreement would have been entered into prior to the coming into force of the Consumer Credit Act 2006 and that the transitional provisions in Schedule 3 to the 2006 Act are applicable.

 

Many thanks VS, I think this should do the trick:-

 

The Pursuer states that, “The agreement between the parties is regulated by the Consumer Credit Act 1974 as amended”.

It is explained that on 14/06/2007 the Defender requested that the Pursuer provide him with a true copy of the executed credit agreement, which is his statutory right, pursuant to Section 78(1) of the Consumer Credit Act 1974. The Consumer Credit (Prescribed Periods for Giving Information) Regulations 1983 (SI 1983/1569) sets out that the claimant must comply with such request in 12 working days of receipt of such request. In response, the Pursuer provided the Defender with a copy of a “Pre-Approved Application” that does not constitute a properly executed credit agreement as defined under Section 78(1) of the Consumer Credit Act 1974. Pursuant to Rule 40.7(2) this document is attached as Exhibit JC01. The Defender subsequently informed the Pursuer that the account was in dispute and has responded similarly to various companies that the Pursuer has appointed in relation to this matter.

Section 78(1) of the Consumer Credit Act 1974 states:

78. Duty to give information to debtor under running-account credit agreement.-

 

(1) The creditor under a regulated agreement for running-account credit, within the prescribed period after receiving a request in writing to that effect from the debtor and payment of a fee of [F1 £1], shall give the debtor a copy of the executed agreement (if any) and of any other document referred to in it, together with a statement signed by or on behalf of the creditor showing, according to the information to which it is practicable for him to refer,-

(a) the state of the account, and

(b) the amount, if any currently payable under the agreement by the debtor to the creditor, and

© the amounts and due dates of any payments which, if the debtor does not draw further on the account, will later become payable under the agreement by the debtor to the creditor.

In response to the purported credit agreement supplied by the Pursuer, it is denied that this is a valid executed credit agreements within the definition contained within the Consumer Credit Act 1974 and it is submitted that the document supplied to the Defender fails entirely to comply with Consumer Credit legislation as stated below.

The documentation supplied by the Pursuer is not compliant with the Consumer Credit Act 1974 and Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553). Under the Consumer Credit Act 1974 there are certain conditions laid down by parliament which must be complied with if such agreement is to be enforced by the courts:-

Firstly, the agreement must contain certain Prescribed terms under regulations made by the Secretary of State under Section 60(1) CCA 1974, the regulations referred to are the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553). The prescribed terms for a Running credit account as set out below:

The prescribed terms referred to are contained in schedule 6 column 2 of the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) and are inter alia: - A term stating the credit limit or the manner in which it will be determined or that there is no credit limit, A term stating the rate of any interest on the credit to be provided under the agreement and A term stating how the debtor is to discharge his obligations under the agreement to make the repayments, which may be expressed by reference to a combination of any of the following—

1. Number of repayments;

2. Amount of repayments;

3. Frequency and timing of repayments;

4. Dates of repayments;

5. The manner in which any of the above may be determined; or in any other way, and any power of the creditor to vary what is payable.

It is explained that the document supplied by the Pursuer does not confirm to the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) in so far that the Prescribed Terms are not contained within the agreement. These terms must be contained within the Agreement to be compliant with Section 60(1) of the Consumer Credit Act 1974. The Court of Appeal case law, Wilson and another v Hurstanger Ltd [2007] is applicable as are other case laws.

The courts powers of enforcement where agreements are improperly executed by way of Section 65 of the Consumer Credit Act 1974 are themselves subject to certain qualifying factors. Under Section 127(3) of the Consumer Credit Act 1974 the requirements are laid out clearly what is required for the court to be able to enforce the agreement where Section 65(1) has not been complied with Section 127(3) the court shall not make an enforcement order under Section 65(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).

It is also explained that Schedule 3, Section 11 of the Consumer Credit Act 2006 prevents Section 15 repealing Section 127 (3) of the 1974 Act for agreements made before Section 15 came into effect. Since any agreement would have commenced prior to the inception of the Consumer Credit Act 2006, Section 15 of the 2006 Act has no effect and hence the Consumer Credit Act 1974 is the relevant act in this case.

The Consumer Credit Act 2006, Schedule 3, Transitional Provision and Savings:

11 The repeal by this Act of-

(a) The words”(subject to subsections (3) and (4))” in subsection (1) of Section 127 of the 1974 Act,

(b) Subsections (3) to (5) of that section, and

© the words “or 127(3)” in subsection (3) of Section 185 of that act, has no effect in relation to improperly-executed Agreements made before the commencement of Section 15 of this Act.

[Monty2007]

I speak a little Scots law (as others who speak Scots law will have worked out from my id) but I must confess that I am quite rusty.

 

The ordinary cause is very non-lawyer unfriendly and the summary cause is not much better. In defence of the Scottish legal system, the Open Record adjustment process is much more flexible than the Claim, Defence, Reply structure and - done properly - it allows the key issues to be identified very clearly indeed.

 

As for what you say, I would suggest:

 

Admitted that the alleged agreement would be regulated by the Consumer Credit Act 1974 as amended but explained and averred that the alleged agreement would have been entered into prior to the coming into force of the Consumer Credit Act 2006 and that the transitional provisions in Schedule 3 to the 2006 Act are applicable.

 

I do actually agree with you VS, I have read Hennessys book on Civil Procedure and Practice and the process to options is useful providing both sides conform to the intention of the process. I see that some parties simply deny each statement which then means that an options hearing is the only way forward. I just don't fancy a legal debate but if it comes to that I will go.

 

Have you any expereince of Incidental Applications and how they are used?

[Viscount Stair]

Sadly, no practical experience.

[Monty2007]

Sadly, no practical experience.

 

I just found out that Incidental Applications do not apply to Ordinary Cause. Rather you have to file a Motion for production and list each document that you require, for a Party Litigant this has to be done through a Sheriff Officer, costs £35 and can itself precipitate a debate as to why the Pursuer should conform?

 

I think it is best to leave it to options at which you can simply state that the Pursuer has not provided, I have three letters in which I make such a request so these can be submitted as part of the process.

 

Interestingly, less than 25% of Ordinary Cause cases ever get to an options hearing and fewer still to legal debate.

 

Should be an interesting few weeks!

[Viscount Stair]

I never practised in Scotland - although I did study there and I remembered enough to offer a bit of first aid, which I do hope was helpful. Beyond that, I am not qualified to go.

 

All the very best to you.