Unenforceability Cases on hold until further notice

[Docman]

No they are different

tikerbell

 

What the basis for your information? The Mancheser judges named are the senior ones for the North West circuit. I still find it strange that the same circuit has two sets of test cases, especially as the ones from Chester having been referrred to the Commercial court in London have parties largely represented by Manchester counsel.

[letitbeme]

Docman, will call Manchester on Tuesday and try and get a clearer explanation on what is being assessed in the batched cases.

Edited August 30, 2009 by letitbeme

[angry cat]

These are separate test cases;

different matters involved.

[Docman]

Hi Ac,

 

OK if these are separate cases, what's going on? Chester have referred around 50 cases to the Commercial Court in London where they will be heard by Andrew Smith J, who was the judge who dealt with the first hearing of the bank charges case (OFT v the Banks).

 

The Manchester cases have been assigned to the Designated Civil Judge and/or the head of the Admiistrative Court in Manchester. Unlike the bank charges cases, the issues here are settled with House of Lords decisions and the CCA, ie if there isn't a signed agreement containing the prescribed terms, then the court cannot enforce the deal. Game over.

 

So just what is going on? Is this a situation where the judiciary are taking control to deal with these cases before they clog up the sysem totally? Or is it that the banks are hoping for another 2 or 3 year legal process delaying them having to pay up, deal with complaints but allowing them to continue with their threat-o-grams etc?

[Blondie40]

Hi Ac,

 

OK if these are separate cases, what's going on? Chester have referred around 50 cases to the Commercial Court in London where they will be heard by Andrew Smith J, who was the judge who dealt with the first hearing of the bank charges case (OFT v the Banks).

 

The Manchester cases have been assigned to the Designated Civil Judge and/or the head of the Admiistrative Court in Manchester. Unlike the bank charges cases, the issues here are settled with House of Lords decisions and the CCA, ie if there isn't a signed agreement containing the prescribed terms, then the court cannot enforce the deal. Game over.

 

Re: Claim Stayed – Due to Unenforceable CCA Test Cases.

 

The order I have refers to:

…Manchester County Court and shall be listed for directions before His Honour Judge Waksman QC on 8 Oct 2009.

[Blondie40]

Hi Ac,

 

So just what is going on? Is this a situation where the judiciary are taking control to deal with these cases before they clog up the sysem totally?

 

 

I got the impression from the Judge who stayed the claim against me until after the Manchester hearing that this is the reason why. But that's only my impression.

[Kraken1]

ie if there isn't a signed agreement containing the prescribed terms, then the court cannot enforce the deal. Game over.

 

...unless the agreement post-dates april 2007 and then it might get enforced.

[letitbeme]

I think that if the Civil Judiciary wanted to stop the courts from clogging up the system, all they have to do is instruct the Banking and Debt Collecting industry to tidy up there act, and If a claimant instigates a claim without the relevant documents and the claim does not meet all the relevant criteria (as outlined by The Consumer Credit Act and the relevant Acts associated with it) and is eventually struck out or withdrawn they should then face severe penalties, and I mean severe.

The Banking Industry has ran roughshod over consumers for years

 

Hi Ac,

 

So just what is going on? Is this a situation where the judiciary are taking control to deal with these cases before they clog up the sysem totally? Or is it that the banks are hoping for another 2 or 3 year legal process delaying them having to pay up, deal with complaints but allowing them to continue with their threat-o-grams etc?

[car2403]

...unless the agreement post-dates april 2007 and then it might get enforced.

 

Should that be pre-dates, K?

[Kraken1]

nope. agreements before april 07 should* be completely unenforceable if all the ducks are not in a row. Agreements after this date can be enforced if a court deems it reasonable to do so.

 

It is due to s137(3) being repealed.

 

*although this is not always what happens in practice.

[car2403]

nope. agreements before april 07 should* be completely unenforceable if all the ducks are not in a row. Agreements after this date can be enforced if a court deems it reasonable to do so.

 

It is due to s137(3) being repealed.

 

*although this is not always what happens in practice.

 

By "all the ducks" you mean the prescribed terms and debtors signature, though, right? For example, if the terms about use of personal data under the DPA aren't "in a row", that wouldn't result in unenforceability. (Although an argument would ensue that they can't process your data, hopefully)

 

Also, s.127(1) still endues, so any agreement that was unenforceable pre-April 2007 would still be unenforceable post-April 2007 if that was the case. s.127(3) only relating to irredeemable unenforceability, is my point.

 

[Ruprecht]

By "all the ducks" you mean the prescribed terms and debtors signature, though, right? For example, if the terms about use of personal data under the DPA aren't "in a row", that wouldn't result in unenforceability. (Although an argument would ensue that they can't process your data, hopefully)

 

Also, s.127(1) still endues, so any agreement that was unenforceable pre-April 2007 would still be unenforceable post-April 2007 if that was the case. s.127(3) only relating to irredeemable unenforceability, is my point.

 

 

Sections 127(3)-(5) are still fully in force for agreements made before April 2007, here is the bit in the Consumer Credit Act 2006, Schedule 3, Section 11:

 

"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."

 

Section 127(1) is still there now for all agreements but that doesn't offer much protection really. Judge will just say "so you had the card and spent the money?" and you say "yes" then he makes the order to enforce it.

[car2403]

Sections 127(3)-(5) are still fully in force for agreements made before April 2007, here is the bit in the Consumer Credit Act 2006, Schedule 3, Section 11:

 

"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."

 

Section 127(1) is still there now for all agreements but that doesn't offer much protection really. Judge will just say "so you had the card and spent the money?" and you say "yes" then he makes the order to enforce it.

 

Thanks, Ruprecht, but that isn't clear in the posts above, so I was just clarifying for those that may have been confused by this.

[diddydicky]

Sections 127(3)-(5) are still fully in force for agreements made before April 2007, here is the bit in the Consumer Credit Act 2006, Schedule 3, Section 11:

 

"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."

 

Section 127(1) is still there now for all agreements but that doesn't offer much protection really. Judge will just say "so you had the card and spent the money?" and you say "yes" then he makes the order to enforce it.

 

cant agree with your final statement however - as frank carson would say

 

Its the way you tell em!

[letitbeme]

OK, This is third hand information. I have spoken with a Legal Clerk who works at Liverpool CC, she has told me that “all the Civil Judges in the Liverpool CC have been instructed to stay all claims involving disputes in relation to the enforceability of cca’s issued before 6 April 2007.”

Enforcing Credit Agreements (Implementation date: 6 April 2007)

Section 127 of the 1974 Act restricts the court's discretion to enforce an agreement that does not contain all the prescribed terms or has not been signed by the borrower or where the appropriate cancellation statements and notices have not been given. As a result relatively minor technical breaches of the rules can result in unenforceability. However, by virtue of the Act, the court will have the power to determine in its discretion whether agreements are enforceable regardless of the

breach.

 

http://www.mcgrigors.com/pdfdocs/Consumer%20Credit%20Act%202006.pdf

[diddydicky]

i prefer the cca act version myself- which does not state that the court can overrule 127(3)

 

(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).

[Docman]

letitbe

 

There must be more to it than this. As peeps have posted above S127(3) of the 1974 Act was NOT repealed in respect of pre April 2007 agreements.

 

I smell an oily DCA trying to get a High Court decison by rushing a quickie through the Administrative court, rather than the Commercial court. Any views from anyone else?

[Ruprecht]

OK, This is third hand information. I have spoken with a Legal Clerk who works at Liverpool CC, she has told me that “all the Civil Judges in the Liverpool CC have been instructed to stay all claims involving disputes in relation to the enforceability of cca’s issued before 6 April 2007.”

 

 

Enforcing Credit Agreements (Implementation date: 6 April 2007)

Section 127 of the 1974 Act restricts the court's discretion to enforce an agreement that does not contain all the prescribed terms or has not been signed by the borrower or where the appropriate cancellation statements and notices have not been given. As a result relatively minor technical breaches of the rules can result in unenforceability. However, by virtue of the Act, the court will have the power to determine in its discretion whether agreements are enforceable regardless of the

breach.

 

http://www.mcgrigors.com/pdfdocs/Consumer%20Credit%20Act%202006.pdf

 

Sections 127(3)-(5) are still fully in force for agreements made before April 2007, as per the Consumer Credit Act 2006, Schedule 3, Section 11.

 

If the agreement doesn't have borrower's signature on a document containing the prescribed terms etc. then the court has no discretion in pre April 2007 agreements, it cannot enforce it by law.

 

I don't see why they need anything clarifying.

[car2403]

I believe, from what I have read, that this action is being taken to prevent the high number of appeals being made on judgments made by lower level Judges - presumably those that are consider "moral" argument of having borrowed, therefore having a need to repay via enforcement.

 

If that is the case, these "Test cases" are a welcome distraction, but I can't for the life of me see why some guidance couldn't have been issued by the Master of the Rolls, et al, as to how these claims should be heard. As already stated, the law is very clear.

[simac1973]

Hi, Bobby where is the actual Judgment you refer to?

Thanks

Simon

[diddydicky]

I believe, from what I have read, that this action is being taken to prevent the high number of appeals being made on judgments made by lower level Judges - presumably those that are consider "moral" argument of having borrowed, therefore having a need to repay via enforcement.

 

If that is the case, these "Test cases" are a welcome distraction, but I can't for the life of me see why some guidance couldn't have been issued by the Master of the Rolls, et al, as to how these claims should be heard. As already stated, the law is very clear.

 

I tend to the opinion that this could be VERY good news for us.

 

I believe the courts are trying to stem the flow of these pre 2007 claims by the creditors and the subsequent appeals from blocking up the system

 

it is my belief that the ensuing ruling will be along the lines that the creditors may NOT bring these cases UNLESS they have the original properly executed agreements.

 

i think that they will use costs or payments into court of a substantial nature to deter those creditors who are seeking the abuse the system

[Desperate Daniella]

I soooo hope you are right here.

[Guest Larry1234]

The test case that this blog refers to has been and gone, there is no stay on this there are actually cases gone through the courts after this date

[Docman]

Larry

 

What are you referring to?

 

As far as we know, the Chester test cases are due to be heard in the Commercial Court in London w/c 30 September and the Manchester test cases (which apparently affects some cases from Liverpool County Court) are due to be heard in the Adminstrative Court sitting in Manchester w/c 8 October.

[Tricky Dickie]

Larry

 

What are you referring to?

 

As far as we know, the Chester test cases are due to be heard in the Commercial Court in London w/c 30 September and the Manchester test cases (which apparently affects some cases from Liverpool County Court) are due to be heard in the Adminstrative Court sitting in Manchester w/c 8 October.

 

Docman you are correct about the test cases but the point is that all the other cases in the Chester Court at least dealing with unenforceablility are proceeding normally in the Chester Court albeit slowly due to the volume of cases.

The problem for the courts of increasing volumes of cases will be brought about due to appeals by debtors or by CMC claims by debtors.

Its my guess that many creditors will now be unwilling to take court action due to the unenforceability issue even when the debtor is in default especially if they are aware they do not have an enforceable agreement.

CMC s are lining up tens of thousands of cases and the courts must be aware of this.

Any measures taken to try and discourage the creditors from fighting these cases will inevitably fail as their very existance depends upon their continued stance that their agreements are enforceable.