Tactics for dealing with Next Directory/out of date in light of recent judgements

[pt2537]

Please note

 

This guidance is only really relevent to accounts opened before 6th April 2007

 

Next Retail T/A Next Directory are notorious for failing to ensure that as a matter of procedure they obtain a signed credit agreement which complies with the Consumer Credit Act 1974.

 

If you never signed an agreement with Next, then you have a complete defence to any claim they may bring against you and in some cases you could sue them for declaratory relief.

 

Interestingly, Next seem to be raising the "you dont deny having the goods" argument more and more, while on the face of it, it would seem like they are right and are entitled to recover their monies, actually it couldnt be further from the truth.

 

What they are implying is that you have been unjustly enriched by having goods that you do not have to pay for. This cannot be so, the House of Lords declared such in the leading case of Wilson and First County Trust Para 46-49 of Lord Nicholls of Birkenhead's Judgment

 

 

Restitution

 

46. Before considering whether section 127(3) is compatible with article 1 of the First Protocol I must digress to deal with two preliminary matters. The first concerns the legal consequences of section 127(3). When a regulated agreement is rendered irredeemably unenforceable by section 127(3), the lender is unable to enforce the agreement. But does he, quite apart from his (unenforceable) rights under the agreement, have a restitutionary claim against the borrower in respect of the money lent? The parties to the agreement intended the money would be repayable in accordance with the terms of the agreement. Inability to enforce the terms of the agreement does not inevitably carry with it the consequence that the borrower may simply keep the money. Retention of the money, it is said, would be unjust enrichment, for which the appropriate remedy would be an order that the borrower repay what was never intended to be other than a loan. Reliance was placed, by way of analogy, on the decision of the Court of Appeal in Westdeutsche Landesbank Girozentrale v Islington London Borough Council [1994] 1 WLR 938. There a bank paid money to a local authority under an interest rate swap agreement, which was held later to be outside the local authority's powers. The local authority had been unjustly enriched and the bank was entitled to a restitutionary remedy.

 

 

47. A secondary question also arises: if the lender does have a restitutionary claim, is that a matter to be taken into account when considering whether section 127(3) is compatible with article 1 of the First Protocol?

 

 

48. I can deal with these two questions quite shortly, starting with the latter. I am in no doubt that a lender's restitutionary remedy, if he has one, is a matter to be taken into account when considering whether section 127(3) is compatible with article 1 of the First Protocol. The adverse consequences of an alleged infringement of a Convention right cannot sensibly be assessed other than in the round. The real position of the claimant is what matters. If in practice a lender can ameliorate the immediate and directly adverse consequence of section 127(3) by resort to some other right or remedy readily available to him, that is a matter to which the court must have regard. I cannot accept the contrary arguments addressed to the House.

 

 

49. I consider, however, that there is no relevant restitutionary remedy generally available to a lender in the circumstances now under consideration. The message to be gleaned from sections 65, 106, 113 and 127 of the Consumer Credit Act is that where a court dismisses an application for an enforcement order under section 65 the lender is intended by Parliament to be left without recourse against the borrower in respect of the loan. That being the consequence intended by Parliament, the lender cannot assert at common law that the borrower has been unjustly enriched. That would be inconsistent with the parliamentary intention in rendering the entire agreement unenforceable. True, the Consumer Credit Act does not expressly negative any other remedy available to the lender, nor does it render an improperly executed agreement unlawful. But when legislation renders the entire agreement inoperative, to use a neutral word, for failure to comply with prescribed formalities the legislation itself is the primary source of guidance on what are the legal consequences. Here the intention of Parliament is clear.

 

 

 

Above is the paragraphs concerned with unjust enrichment

 

So, me o'le mates at Next dont seem to have such a strong argument when you consider the above case

 

 

Moving back to the issues of enforceability

 

 

If you never signed an agreement with Next, then section 61(1) Consumer Credit Act 1974 was never complied with, as a result the agreement (if there actually was one) is improperly executed as defined within section 65(1) Consumer Credit Act 1974

 

I always make a request for the agreement from Next, they normally write back saying "we cannot locate a copy of your agreement but heres a true copy of what you would have been sent" which in my view means we dont have one, but you will already know that anyway if you never signed one wont you.

 

If there never was a signed agreement it is clear that s127(3) prevents enforcement and will provide a complete defence to any such claim that Next would seek to bring against you

Edited May 20, 2009 by pt2537

[pt2537]

so, if Next sue you, what options do you have,

 

Well, personally, if you know you never signed an agreement, then it is not something that i would allow to go to trial as it is merely a waste of the courts time.

 

I would strike them out and seek summary judgment on the claim, but that is just my personal view and should not be taken as authoritive or legal advice

 

Grab a N244 application notice

 

in box 3

 

An order (a draft of which is attached) that Summary Judgment be granted in favour of the Defendant pursuant to Part 24 CPR and/or the claimant's claim be struck out because the claimant has no real prospect of succeeding on the claim and there is no other compelling reason why there should be a trial.

 

If the claimant wishes to rely on written evidence, he must file and serve copies on each party at least 7 days before any hearing date set by the court.

4. tick yes,

 

5. at hearing

 

6. 1 hour

 

7 self explanatory

 

8.District

 

9. Claimant

 

Ok Draft order

 

 

IN THE XXXXX COUNTY COURT Claim No:

 

 

 

 

BETWEEN:

 

 

[ ]

 

Claimant

and

 

 

[ ]

 

Defendant

 

 

 

draft/ORDER

 

 

Before District Judge sitting in the............. County Court on the ..... day of .....................2009

 

 

UPON reading the Defendant’s Application Notice dated [ ] and the witness statements filed by the parties

 

AND UPON hearing the Claimant and Defendant

 

IT IS ORDERED THAT:

 

1.The Defendant be granted summary judgment and the claim is struck out.

2.The Claimant do pay the Defendant’s costs of the claim, summarily assessed in the sum of £[ ] within 14 days of the date of this order.

 

 

 

dated 2009

 

Edited May 20, 2009 by pt2537

[pt2537]

ok now for the witness statement in support of the application for SJ

 

 

On behalf of: Defendant

Witness: [Initials and surname]

Number: [1st] [2nd]

Exhibits: [“ABC1”]

Date:

IN THE XXXXX COUNTY COURT Claim No:

 

 

 

BETWEEN

 

[________]

Claimant

and

 

[________]

 

Defendant

 

 

WITNESS STATEMENT OF [NAME]

 

I, [NAME] of XXXXXXXXXXXXXXXXXXX will state as follows:

 

1.[i am a [state occupation or, if none, description, e.g. housewife, retired …] [and the defendant in these proceedings][i am a director of the defendant company and am authorised to make this statement on its behalf]. I make this witness statement in support of the defendant’s application for summary judgment.

 

2. The matters referred to in this witness statement are within my own knowledge, except where I have indicated otherwise. Where any matters contained in this witness statement are not within my own knowledge, I have stated the source of my information.

 

3. There is now produced and shown to me a bundle of documents marked “XXXXX 1”. The exhibit XXXXX1 contains copies of the documents to which I refer in this witness statement

 

4. The Defendant did hold a Next Directory account with the Claimant , the account was a regulated account which was regulated by the Consumer Credit Act 1974. The Claimant failed to ensure that the Defendant signed an agreement before credit was granted to the Defendant or at all.

 

 

5.on or around the XXXXX the Defendant wrote to the Claimant requesting that the Claimant supply a copy of the credit agreement. the Claimant confirmed that there was no signed agreement, a copy of the letter is attached exhibit XXX 1

 

 

6. It is common ground between the parties that there never was a signed agreement and therefore it is clear that section 61(1) Consumer Credit Act 1974 was not complied with. The sanction for non compliance with s61(1) CCA 1974 is that the agreement cannot be enforced without an order of the court.

 

7. However, the fact that the Defendant did not sign an agreement in accordance with s61(1) CCA 1974 means that section 127(3) CCA 1974 would operate. The account was opened before 6th April 2007 and therefore even though section 127(3-5) has been repealed by the Consumer Credit Act 2006, the repeal is not effective for agreements entered into before 6th April 2007 as set out within schedule 3 section 11 Consumer Credit Act 2006

 

8. Accordingly the provisions of s127(3) confirm that no order for enforcement can be made and therefore the agreement is rendered unenforceable, confirmed by Wilson v First County Trust [2003] UKHL 40 and the Claimants claim must fail.

 

 

9. i believe that the claimant has no real prospect of successfully bringing the claim and there is no other compelling reason for a trial and therefore i ask the court to grant the relief sought.

 

10. as a residual issue, it seems that the Claimant is avering that the Defendant has been unjustly enriched by recieving goods or money on the back of an unenforceable credit agreement. this matter is swiftly dealt with by reference to Lord Nichols of Birkenheads Judgment in Wilson and FCT as refered to above. Para 46-50 of the judgment confirms that where the court finds that an agreement is unenforceable, it is not unjustly enriching the debtor , the consequence was clearly the intention of Parliament and therefore it is clear that the argument put forward by the Claimant that the Defendant has had the goods and should pay lacks any real merit and is not able to succeed

 

11. I therefore request that the court grants the defendant summary judgment in the terms of the draft order attached to the application notice dated [ ].

 

 

 

I believe that the facts stated in this witness statement are true.

Signed ________________________

Dated ________________________

[pt2537]

Right, the above witness statement is ONLY A SUGGESTION!!!!!!

 

you would need to ensure that it is correct as you will be signing a statement of truth and if you knowingly sign this knowing that the contents are not correct you are in a world of trouble with the court!!!!! so read, check, understand what it says and if you are not sure, ASK!!!!!!! Do not fudge it up for the sake of seeking CLARITY

[pt2537]

if you decide that the SJ application is not the way to go,

 

then

 

you can obviously defend the action.

 

the actual defence is something that really cannot be templated in my view as each claim is different, but a basic defence that i would use if i were being sued is something along the lines of

 

 

1. it is admitted that the Defendant held an account with the Claimant

 

2. the account was a consumer credit account and was running account credit as defined within s10 Consumer Credit Act 1974.

 

3.It is denied that the agreement under which the account operated is enforceable against the Defendant for the reasons set out herein

 

4. the Claimant failed to provide the Defendant with a credit agreement before credit was extended and todate the Defendant has not signed a credit agreement with the Claimant therefore section 61(1) Consumer Credit Act 1974 was never complied with and any agreement is improperly executed as defined by s65(1) CCA 1974 , if the Claimant rejects this contention then the Claimant is put to strict proof of the signed credit agreement which complies with the Consumer Credit Act 1974

 

5. according to section 127 (3) Consumer Credit Act 1974 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).

 

6. therefore, as defined within s127, the agreement is unenforceable and the Claimants claim should fail accordingly

 

7. the Claimant appears to contend that the Defendant has been unjustly enriched. the Defendant denies this is the case and recites paragraph 5 above. in addition the Defendant refers to Para 46-50 of Lord Nichols of Birkenheads Judgment in Wilson and First County Trust [2003]UKHL 40

 

 

8 . The Defendant asks that the court exercise its powers under CPR 3.4(2) and strike out the Claimants claim as it discloses no reasonable grounds for bringing the claim and has no prospect of success at trial

[pt2537]

Okay then

 

Discuss:)

[pt2537]

Thanks guys,

 

I think that from my point of view, the quicker you dispose of a claim with no merit the better.

 

Also if you kill it quick, you wont be allocated to any track so they can be screwed for costs too as even if the debt is small claims material, until its allocated its open to costs

[pt2537]

right then stickies made in this forum and the Retail mail order forum:)

[pt2537]

yep it has for agreements post 6th April 2007 but not for those entered into before 6th April 07

[pt2537]

looks VERY helpfull PT, and i think it will help me in my battle against Choice for my OH who have just responded that they don't have an agreement

 

+rep!

 

Thanks,

H

Thanks, the key is that YOU didnt sign an agreement and that THEY cannot prove to the contrary. as long as you can show that, youve got em by the B@lls

[pt2537]

yup, infact, my OH still has all of the forms that she was sent to sign, which she never returned

 

So we have them there!

 

just a shame some of the others aren't as simple

 

Thanks,

H

quite,

 

Still you have the grounds now for an action against them for a declaration under s142 and to be honest, they wouldnt stand much of a chance as you have all the proof you need

[pt2537]

Has anyone got some tactics to deal with a post April 2007 agreement? Next/Graham White are telling me they don't need an agreement due to repeal of s127(3). They have defaulted me and are claiming balance - their argument seems to be: 'of course it was a credit agreement - you took delivery of the goods, and didn't pay at the time so now pay up!'

 

Has anyone ever had to sign a credit agreement with Next? When they sent me the precedent agreement with a comp slip, it was a document I had never ever seen before.

 

ok, did you order the goods? if they were unsolicited then they are a gift.

 

also dont forget that s127(1)&(2) still apply and the fact that they have ignored the requirements of the 1974 Act means you have been caused prejudice so you still have grounds to defend

[pt2537]

the problem with Next is, they are clueless when it comes to court, they will tell you to sue them even though they do not have a credit agreement and on the same point they will sue you , they are totally clueless when it comes to it

 

so the ony way in my view, you will kill them off, is in court

[pt2537]

which CPR part are you referring to? ive looked at the draft defence and there is no mention of the CPR save for the request that the court exercise its powers under CPR 3.4(2)(a)

 

so im a little confused by your post

[pt2537]

Apologies pt/everyone,

got confused myself with all the threads I read today .

(Also sorry for the initial panic posting, I should have posted sooner.)

 

 

 

the thread I mentioned in my post#36 above should have been:

http://www.consumeractiongroup.co.uk/forum/dca-legal-successes/125434-lewis-debt-recovery-next-2.html

CPR letter Anthuk was advised to send to Next was in post#3.

PT you referred to it in your defence in post#28 section titled:

The Request for Disclosure under the CPR

 

Hope my original post make sense now.

 

Is a CPR letter still worth sending? If so would the one in Anthuk's thread be ok or the CPR16 or 18 letters I've seen elsewhere?

 

If it's a stupid question please forgive my ineptitude.

cheers,

gf2k

GF2K

 

the defence that Anthuk used was a rather old one , if you have read this thread, in the first five or six posts you will see the best route in my opinion for dealing with Next.

 

you do not need anything verbose in these cases as the Claimant is simply trying to circumvent the CCA 1974 by claiming for goods.

 

I deal with Next Directory a lot at work and while i am not giving legal advice here nor should my advice be seen as such, if it were my claim, this thread is exactly how i would handle it

[pt2537]

Hi,

 

My brother has been hit by this

 

Littlewoods Account (Online)

 

Applied for the account, received credit agreement to be signed and returned, however he never did sign or return it to littwoods.

 

he now owes them £350 and they are adding charges to the account, they have given him a default notice and put the account out to a DCA

 

NATIONWIDE DEBT RECOVERY LIMITED

 

He lost is job a few months ago and is unable to pay at the moment.

 

I know the account is not enforceable due to no credit agreement

 

Account was opened in 2008 Then it is enforceable by order of the court

Questions

1. when there is no credit agreement

can they pass his details to a DCA, CRA ?? i think NOT as concent was not given?

 

is there a breach of the DPA by littlewoods?

i think that would be difficult to overcome

[pt2537]

yes they can, well with an order of the court

 

the agreement, if improperly executed is unenforceable until the court orders it to be enforceable and the court would most likely in my experience make such an order

[pt2537]

 

the agreement, if improperly executed is unenforceable until the court orders it to be enforceable and the court would most likely in my experience make such an order

 

 

that is what happens, they apply to the court for an order, they will get it as long as there is no prejudice to your brother which i cant see there is, he merely didnt sign it, there is nowt to say he didnt recieve it

 

 

so the court could and would enforce the agreement

[pt2537]

Hi , i have just looked at my credit file Next Directory hace entered a default against me i have copy of the letter they sent saying they cannot find a copy of an agreement but are they still allowed to enter this with CRA ? if not please tell me what i need to do to get it taken off my file .

sadly, they are not allowed to do this but it is not straight forward to get it removed

 

most likely you will need to sue, firstly to have the agreement declared unenforceable and secondly to have the data removed.

[pt2537]

hi everyone im new to this thread can any one tell me the state of play regarding no signed cca with next my account was opened over the internet last year but i did not sign and they av admitted they don,t hold an agreement for me is this account unenforcable same goes for j.d williams no cca,s but opened over internet ta anyone:grin:

the simple answer is no

 

if the accounts were opened last year then they would not fall within the irredeemably unenforceable provisions of the old 1974 act

 

sorry but it is unlikely that they will be unenforceable

 

you should start your own thread on these cases and im sure people will assist where they can

[pt2537]

My partner had a next account before April 2007, and totally maxed it and was left paying £900, she had to get a bank loan out to clear the debt, she settled with £650. They also defaulted her and will not take it off her credit file, is there a claim to get all monies paid back if they do not have the correct paperwork to hand, also there is another company done the same called ACE?

The simple answer is no there is no restitutionary remedy available in those circumstances, as for the default, things will become clearer in September when the test case is due to be heard in the High court on exactly this point

[pt2537]

Sounds interesting PT, is there any further info on this anywhere on CAG?

not that im aware of

 

IT came out of the Walker vs SPPL case over in Chester where HHJ Halbert confered with Lord Justice Moore-Bick and it was agreed that a test case should be heard by the High Court (commercial Court) before Mr Justice Smith

 

the case starts some time in September and i am keeping professional tabs on it:wink:

[pt2537]

Im still here

 

been away since 30th Nov though on Vacation, got back on friday and am catching up

[pt2537]

sorry, i disagree, these catalogues are covered by the Act, they extend credit and therefore are not exempt from the provisions of the Act

 

I have recently secured numerous judgments against Next for declaratory relief where there never was a signed agreement and credit had been advanced

[pt2537]

a quick search of the OFT Consumer Credit Licence register shows that Next are licenced to provide consumer credit

 

Application / Licence Details

 

 

 

Licence Number:0534644

Licence Status:Current

 

Current Applicant / Licensee:

 

Business NameCompany Registration Number Next Retail Limited4521150

 

Categories:

 

Consumer credit Credit brokerage Debt collecting

 

Right To Canvass Off Trade Premises:No

 

 

Trading Name(s) (Current):

 

Brand Directory Department X Lipsy Next Next Childrenswear Next Clearance Next Directory Next Financial Services Next Flowers Next Gifts Next Home Next Interiors Next Man Next Menswear Next Origionals Next Retail Next To Nothing Next Womenswear

 

Issued Date: 19-Apr-2003

Date Maintenance Payment Due: 18-Apr-2013

 

 

Legal Formation:

 

Body Corporate (incorporated inside UK)

 

Current Individuals that run the organisation:

 

NamePosition Andrew John Robert McKinlay Andrew John Varley David Wilson Keens Simon Adam Wolfson

 

Historic Individuals that run the organisation:

 

NamePosition Alistar Campbell Mitchell-InnesOFFICER Andrew John Robert McKinlayOFFICER David Charles JonesOFFICER David Wilson KeensOFFICER Julia Ann BurdusOFFICER Mr Derek Nigel Donald NethertonOFFICER Mr John BartonOFFICER Simon Adam WolfsonOFFICER William Robert BarnesOFFICER

 

Nature of Business:

 

Other

 

Current Address(es):

 

Address TypeAddress CorrespondenceDesford Road, Enderby, Leicester, Leicestershire, LE19 4AT Principal Place Of BusinessDesford Road, Enderby, Leicester, Leicestershire, LE19 4AT Registered OfficeDesford Road, Enderby, Leicester, Leicestershire, LE19 4AT

 

Historic Address(es):

 

Address TypeAddress Correspondence., Desford Road, Enderby, Leicester, Leicestershire, LE19 4AT Principal Place Of Business., Desford Road, Enderby, Leicester, Leicestershire, LE19 4AT Registered Office., Desford Road, Enderby, Leicester, Leicestershire, LE19 4AT