Claim Stayed – Due to Unenforceable CCA Test Cases.

[Blondie40]

Has anyone else come across this in the last week/ten days?

 

Attended Fast Track Trial in respect of Credit Card. Defence is CCA improperly executed - therefore only enforceable on an order of the court, missing prescribed terms and defective DN.

 

DJ at trial surprised it had reached trial as quite clearly the test cases involving unenforceable CCA's has significant bearing on this case.

 

1.Claim is Stayed until further order:

2.Either party may apply to have this order set aside or varied:

3.Any application for order to be set aside or varied and claim shall be transferred to XXX County Court for consideration as test case under His Honour Judge XXXXX QC.:eek:

 

I was under the impression that the cases that had been stayed were only those which involved individuals or Claims Management Companies acting on behalf of behalf of individuals, who had requested courts to rule on whether agreements could be enforced and also in Chester CC.

 

From what DJ said he was suggesting that more (if not all) claims would be being stayed – as County Court system was clogged up with these claims – until after Test Cases heard. DJ made particular reference to one CMC who had over 400 claims currently on-going in one County Court.

Edited August 25, 2009 by Blondie40
Date removed

[uptoeyeballs]

Interesting.

 

Have you had a look over here:

http://www.consumeractiongroup.co.uk/forum/legal-issues/198059-unenforceability-cases-hold-until.html

[Blondie40]

Interesting.

 

Have you had a look over here:

http://www.consumeractiongroup.co.uk/forum/legal-issues/198059-unenforceability-cases-hold-until.html

 

Yes, followed that thread when that was on-going but hadn't seen any activity on it in last couple of months.

 

As I said was under the impression that the cases that had been stayed were only those which involved individuals or Claims Management Companies acting on behalf of behalf of individuals, who had requested courts to rule on whether agreements could be enforced.

[Blondie40]

One thing that did occur to me over the weekend was does DJ agree with me that agreement is improperly executed and only enforceable by an order of the court.

 

Claimant has insisted their agreements are properly executed and contain ALL prescribed terms and they can enforce without an order of the court.

[The GodMother]

from what i remember they had stayed the test cases as they had decided a test case was not needed as there was enough case law to establish rights etc.

[The GodMother]

has anyone brought this to the mods attention as they will know more.

[citizenB]

Will alert the site team for clarification.

 

 

As I understood it there were only a few cases the Judge had set aside and stayed.. not all of them. I am sure there is something on the forums stating this.

[citizenB]

Here you go, this press release should answer your questions..

 

Thousands of Unenforceable Credit Agreement cases can now be heard

 

 

HTH

[Blondie40]

Got the impression that this was something that had happened within the last week or so. DJ suggested to Counsel for Claimant that if their client had any other cases of this nature that this would also apply to those and he mentioned specific Courts within the County.

 

Seemed to me from what DJ said that any cases that concerned Unenforceable Agreements would now be stayed pending the outcome of the test cases.

Edited August 24, 2009 by Blondie40

[The GodMother]

but there are no test cases.

 

I would write to the Judge directly asking where that info came from and giving him a copy of the link CB posted.

[Blondie40]

Order says:

 

In the event of any application to have this order set aside or varied this claim shall be transfered to the XXXXX County Court and shall be listed for directions before His Honour Judge XXXXXXX QC on 8 Oct 2009.

 

Now I came away with the understanding that if either party wanted to apply to have Stay set aside, then the case would be put forward as one of those to be considered for the Test Cases. I assume the actual test cases have not been decided yet.

[Blondie40]

Maybe the DJ should join CAG.

[The GodMother]

Also note what the link says.

 

From paragraph 2.

 

Any cases that are within the jurisdiction will be heard, and in fact they will now be dealt with expeditiously at the Judge’s request. The Judge has heard our representations and thanked us for our co-operation. The cases that may now be heard in the Commercial Courts – potentially including some of our own cases - are not test cases and will be heard as full trials; the outcome of these cases may be legally significant, but until those cases have been fully heard, we will not know the full ramifications. In the meantime it is business as usual for customers who think they may have a claim.”

from how i read it they must meet the jurisction and must be requested by the judge NOT assigned to him.

 

ALso the case to be heard ARE NOT TEST CASES.

[Blondie40]

So the DJ who ordered the stay on the basis of these "test cases" is out of touch.

[citizenB]

So the DJ who ordered the stay on the basis of these "test cases" is out of touch.

 

Certainly sounds like it.

[Blondie40]

Ok, these are the notes I made at the trial of DJ's comments:

 

 

This case raises a number of issue common to huge number of cases doing the rounds.

 

One CMC with over 400 claims ongoing in one court - Not a sensible use of court's time.

 

Surprised cases got as far as being listed far trial, as staying claims such as this - more practical.

 

Test cases on unenforceable agreements needed to resolve issues.

 

Civil Judges suggest stay pending test cases.

 

Rankine v Various Banks

 

Case to be heard late September which may resolve some issues.

 

Stay case until issues sorted.

 

Counsel – advise client if any more cases similar in this Court they contact Court Manager as this will affect those (also mentioned other courts in the County).

 

So, either something new is going on or he's not up to date.

 

Take it I'll get a better idea when claimant objects to stay.

[Blondie40]

DJ finished by handing Trial Bundle back to Counsel as "court has no room to store all this paperwork".

 

Maybe DJ did not want to rule on this particular case and is hoping to pass onto another court.

[Docman]

Blondie

 

I thought the cases that were being transferred to the Commercial Court were ones which all parties (CMCs & credit copmanies) had agreed could be used to set some ground rules for dealing with the large volume of cases brought by CMCs. The case law and staute law are both settled, so there is no need for a 'test case' to determine points of law, as others have said.

 

Could I suggest you phone the court manager and ask him what the judge is on about? I suspect that the DJ is out of touch by about three months or that he wanted an excuse to dump the case (and others) into some other court.

[Stubie]

As I understand it, the only cases referred to the commercial court related to removal of adverse credit references where an agreement was ruled unenforcible.

 

The arguement centres on whether applying defaults where the agreement is unenforcible constitutes enforcement.

 

There are no other cases that I know of. HHJ Halbart stated that relevant case law existed for the majority of unenforcibility cases to proceed.

 

The commercial court cases are due to be heard in October, as far as I recollect.

 

A cagger was there at the Chester court hearing and posted a detailed summary of proceedings, I will try to locate it.

[Stubie]

http://www.consumeractiongroup.co.uk/forum/legal-issues/200110-case-management-conference-mbna.html#post2179083

 

Here, post 6

[Tricky Dickie]

Blondie

 

I thought the cases that were being transferred to the Commercial Court were ones which all parties (CMCs & credit copmanies) had agreed could be used to set some ground rules for dealing with the large volume of cases brought by CMCs. The case law and staute law are both settled, so there is no need for a 'test case' to determine points of law, as others have said.

 

Could I suggest you phone the court manager and ask him what the judge is on about? I suspect that the DJ is out of touch by about three months or that he wanted an excuse to dump the case (and others) into some other court.

 

 

I'm with you Docman,

There seems to be a lot of confusion about the 'test case' scenario in the judiciary as well as elsewhere.

I was at the case conference called by HH Halbert in the Chester County court on 19th May 2009 and the barristers representing a number of lenders agreed with the judge and the barristers for the CMC,s that the basic principles of unenforceability of agreements was not in dispute.

HH Halbert stated that these cases which were the great majority would therefore be dealt with in the normal way and scheduled for trial in Chester however he did state that increasing volumes of these type of cases would inevitably cause a delay not by any deliberate policy but merely because of the capacity of the court to deal with increasing numbers.

The cases which were selected to be heard in the commercial court were ones where for whatever reason the barristers representing the opposing sides had a disagreement over a particular point of law and it was threrefore agreed that trials would take place to settle these disagreements.

These disagreements were not about the basic principles of unenforceability but about details and special cases.

One interesting case was one brought by the Bank of Scotland and their argument was that should an agreement be ruled to be unenforceable they still should have the facility to maintain a default on the borrowers credit file.

The CMC's solictors argued if the agreement was found to be unenforceable then how could it have been defaulted on and that the proposed actions of the lender would amount to enforcement by another name on an agreement already ruled to be unenforceable.

I will try to find out whats happening with these cases however the straight forward cases were listed for trial as normal.

One case of mine was listed for trial on the 10th August however on the 7th Aug MBNA lawyers asked for an adjournment on the grounds that they had insufficent time to prepare witness statements and unfortunately the adjournment was granted and I am now awaiting a new trial date.

I had stopped paying MBNA as I was convinced that the agreement was unenforceable and they took action against me starting in February so how come they had not had time to prepare witness statements and in any case what difference would witness statements make in such a case?

I think they are just playing for time now and it is very likely that they will concede anyway as thats what is happening now with many of these cases.

I was told by someone who works for a major bank that they are well aware that the majority of agreements are unenforceable but they simply can not afford to acknowledge or concede this fact.

If they do they will immediately have to write down future losses of many billions, the share prices will collapse and so will the economy probably.

So they will contest every case and rely upon the inability of the court system to process the cases and as far as the banks are concerned the longer everything takes the better.

It will cost them billions in defaults and legal fees but its still preferable to holding their hands up and whilst things drag on they can continue to rip everyone off with ridiculous interest rates and charges and the fat cats will continue to collect their obscene bonuses.

I was told by someone who worked for MBNA that they had copied virtually all their credit agreements electronically and then destroyed the original paper copies.Ironically they seem to be one of the most aggressive lenders when it comes to taking people to court and I was very disappointed that the trial did not go ahead on the 10th.

[citizenB]

Thanks for clearing that up Docman, Stubie and TD:)

 

Sorry to hear your case has been delayed, TD.. how can they not be ready in time for goodness sakes. I hope you are not going to have to wait too long for them to get their finger out.

[Docman]

Thanks for the update TD.

I think the banks and credit companies know they have a BIG issue here and I suspect the amounts involved will have more impact than the bank charges fiasco.

With bank charges, the amounts involved arose just from the charges levied on overdrawn accounts. The banks only agreed to the test case the day before they started to announce their financial results. Collectively, the accounts showed that the banks had paid back or provided for over a billion pounds and thus their argument that it was not worth defending an individual claim on commercial grounds would have been shot to pieces. The FSA would have been the only organisation with prior knowledge of the accounts of ALL the banks and I suspect that when someone did the sums, the truth dawned on the FSA and the government, hence the test case. At the time, many thought the delay caused by the test case (2 to 3 years) would provide enough time for the banks to recover the billion or so.

Well, it has taken over two years to date for the test case but, as we all know, the world has changed (although with the bonus levels clearly bankers haven't). The billion or so set aside to cover bank charges two years ago seems small beer now.

Unenforceable credit agreements are more of a problem though. First, it means the banks cash flow will be affected. They may not have to fund repayments of credit accounts as with bank charges but they will no longer have an income stream from people repaying the credit card accounts and the extortionate interest. Second, I doubt they will be able to count the balances under the agreements as assets in their balance sheets, thus requiring a further injection of capital.

As for the immediate future, I think it’s almost anyone’s guess. The government have removed the cause of the problem for the banks (by which I mean S 127(3) of the CCA) for post Oct 2007 agreements but that is rather like shutting the stable door after the horse has bolted. But that still leaves many pre Oct 2007 agreements unenforceable and remember these agreements were made during the explosion of credit facilities offered from 1997 onwards.

[Docman]

As I understand it, the only cases referred to the commercial court related to removal of adverse credit references where an agreement was ruled unenforcible.

 

The arguement centres on whether applying defaults where the agreement is unenforcible constitutes enforcement.

 

There are no other cases that I know of. HHJ Halbart stated that relevant case law existed for the majority of unenforcibility cases to proceed.

 

The commercial court cases are due to be heard in October, as far as I recollect.

 

A cagger was there at the Chester court hearing and posted a detailed summary of proceedings, I will try to locate it.

 

Stubie

 

If the cases are going to determine whether defaults registered with CRAs are allowed, surely that is a Data Protection issue. Is the Information Commissioner being called or taking part?

[Blondie40]

Blondie

 

 

 

Could I suggest you phone the court manager and ask him what the judge is on about? I suspect that the DJ is out of touch by about three months or that he wanted an excuse to dump the case (and others) into some other court.

 

Will give Court a ring in the morning (being to think the excuse to dump into some other court maybe correct).

B40