Unenforceability Cases on hold until further notice

[Docman]

Well, maybe old news is good news.

Anyway, my take on this whole story is that I think the judiciary are trying to deal with the issue proactively and not get caught out as with bank charges cases. With that issue, thousands of cases have created a backlog due to the actions of the banks involved until they were dragged kicking and screaming to the Commercial Court.

The Commercial Court cannot overrule the House of Lords rulings nor ignore the statute. However, could the Commercial Court issue Directions that declarations of enforceability should not be issued to the borrower/debtor?

The purpose of the Act was to prevent a finance company from having a greater say in the agreement. The legislation was and still is a consumer PROTECTION statute and not a consumer WEAPON. Therefore I pose the question, could the court decide that where a lender and a borrower have operated a non-compliant credit agreement, the borrower is prevented from later obtaining a declaration from the court that the agreement is unenforceable. The lender would still NOT be able to enforce the agreement if the borrower defaulted, in line with the statute and case law.

It seems to me that the credit claims firms would quickly go out of business and there could be another side effect. Banks and credit card companies would have to treat the customers fairly at last possibly by charging more realistic interest rates.

[Docman]

Oh, and I forgot to add that sides of bacon have been seen on the outside of the top of the HSBC and Barclays towers in Canary Wharf!

[Docman]

well i have read all these threads with interest, here is my (non legal ) take on all of this

 

There is too much negativity and hysteria being created when it is clear to anyone looking dispassionately at the facts that the omens are clearly good for the debtor not the creditor

 

 

why would the judge in question rule an appeal in favour of the debtor and then immediately seek to get in cahoots with mbna or anyone else with the intent to side with them - it doesn't make any sense!

 

I am convinced that this is part of a strategy to pull the plug on these claim companies and make the creditors aware that no prescribed terms means exactly that and that all courts will take the same line

 

 

ie NO prescribed terms on same document= no enforceable agreement= don't waste the courts time

 

As has been said there is too much case law up to the HOL to suggest that the whole thing will be turned back on its head

 

this will immediately kill off the claims industry which has sprung up (ripping clients off in the process) as the creditors will have no defence to these claims anymore and so prevent the vast majority of these claims ever coming to court. The debtor will be able to represent themselves as LIP with more confidence that the rules are being applied uniformly

 

That is my opinion

 

 

A beacon of commonsense. I couldn't agree more.

[Docman]

Are the cases due to be heard in Manchester in October the same as the cases referred by Chester County Court to the Commercial Court in London on 30 September?

I find it strange that two courts in the same circuit have apparently put together different sample numbers of test cases on broadly the same topic.

[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.

[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?

[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?

[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.

[Docman]

Thanks for the explanation TD although I have my doubts about creditors being unwilling to take court action. There have been many cases where creditors have 'bullied' DJs into giving summary judgment when they know they do not have nay agreement, enforceable or not.

 

In my case, a certain bank took me to court, waited for 10 months adter the case had been stayed by Northampton and then went for a SJ even though they had admitted in writing that they did not have a copy of the CCA. The SJ application got thrown out and despite the DJ telling their solicitor they needed to produce docs, they have gone ahead and we are now into the disclosure stage. What fun!

[Docman]

I think he did but dismissed Wilson on the basis that it was about the effect of the Human Rights legilsation and that therefore the remaining parts of Wilson were merely 'obiter dicta' and therefore not binding on him.

 

In my view, the judge took a very narrow interpretatation on a very weak case. I can't help wondering if RBS did a deal to put forward such a weak case brought by a QC who was NOT a specialist in the area.

[Docman]

Caggers may not be too worried becasue they can appreciate that the judgement oy applies to S78. But the problem is the mis information and propaganda now being published, for example in Times Online - High Court decision on debt loophole dashes write-off hopes for thousands - Times Online

[Docman]

humbleman,

 

It's possible hat MBNA are hoping they get a judge like the old duffer you had. I hope you are going to appeal.

[Docman]

Who dropped a clanger? Well, IMO, the claimants solicitor. They should never have agreed to this case being a test case. I can understand RBS asking for it in desperation for something they thought they could win and must have thought it was Xmas or something.

 

I have commented before as to whether there was some side deal. You only have to look at the parties and who they instructed as their respective barristers. Both were good QCs but in different areas of the law. Taking the Bar's 'taxi rank' approach to instruction, it's like the claimant hired a gondola to get to court whilst RBS turned up at the Royal Courts of Justice in the Strand in a chauffeur driven Daimler limo. The nearest the gondola would have got you is the Embankment, so you would have had a walk up the hill to court. On the other hand, a limo wouldn't be much good in Venice...

[Docman]

apparently they have now got together and are deciding on using a witness to state they did have a proper signed agreement but has been misplaced.

 

just as they got together a year ago and decided on non-disclosure as a route to stick 2 fingers up at the public.

 

they won't get away with it, all this will do is bring more publicty to the whole unenforceable arena and get more cliams against them

 

thick feckers.

 

 

No surprise there then!

 

What really got me on this test case was that both sides apparently agreed beforehand that issuing a default notice was not an enforcement action. Hence the judge agreeing that issuing a DN did not amount to enforcement.

 

Now since the staute requires that a DN be served before certain specified actions can be taken and that the wording in the Default Notice stipulated in the Regulations refers to 'No Further Enforcement Action', I cannot see how a DN can be anything other than part of the enforcement process.

[Docman]

we got the halbert (walker) decision in our favour... surprise surprise it was never documented in the press

 

the conpsiracy against UCA's by the press, who coincidentally are being propped up with business loans/overdrafts, is so bloody transparent its unreal.

 

they fool nobody, the truth is always always outed.

 

in the end, they know the majority of the public will get wind of this and put in millions of claims.

 

baggio

 

do you have a reference for the case?

[Docman]

just an observation it states on DN " FURTHER ENFORCMENT ACTION WILL BE TAKEN" is this not implying that the DN notice in itself is a form of enforcment and thus rubbish the judges ruling ?

 

I agree entirely. S88 of the CCA 1974 requires that a notice be sent BEFORE certain actions stated in the Act may happen. That includes termination or demanding repayment. Since the wording in the Notice is mandatory and stated in the Regulations, the reference to 'FURTHER Enforcement' must mean that Parliament intended that issuing a Notice itself WOULD be enforcment action. The judge never gave any reasons for his opinion. He just accepted that BOTH sides in the case accepted that the step of issuing a DN was NOT enforcment action. What I cannot understand is why the claimant's QC accepted it, which is why I question whether there was some side deal with the bank going on?

[Docman]

Problem is EiE that the thread has taken on a life of its own. It is almost like the Bear Garden. It could be a good idea if the mods could start a new thread specifically dealing with the Manchester cases.