Claim Stayed – Due to Unenforceable CCA Test Cases.

[haggis1984]

Carey v HSBC Bank Plc [2009] EWHC 3417 (QB) (23 December 2009)

[Baggio]

In what way?

 

Although not overly damaging to the consumer this judgement does seem to favour the banks.

 

in a legal way they best see fit

 

i am not in the legal profession personally.

 

they had this judgement on monday and found their angles to issue proceedings very quickly.

 

you see... once you can issue thousands of cases, the lender have to start thinking very carefully about damage limitation and out of court settlements.

[saddler68]

So Prescribed Terms DO NOT have to appear on sig doc? Have I read that correctly?

[postggj]

Ill Have To Read Through It But What Stands Out Is

 

Credit Card Agreements

 

How Does This Judgement Stand Ref

 

Hp Agreements

Secured And Personal Loans

 

Well Everything But Credit Cards

[haggis1984]

in a legal way they best see fit

 

i am not in the legal profession personally.

 

they had this judgement on monday and found their angles to issue proceedings very quickly.

 

you see... once you can issue thousands of cases, the lender have to start thinking very carefully about damage limitation and out of court settlements.

 

Im slightly confused Baggio.

 

Your comments over the last few days have suggested a massive victory for the consumer was forthcoming. Can you highlight anything in today's judgement to support this? Im not really seeing much positive in it.

[gyos]

So Prescribed Terms DO NOT have to appear on sig doc? Have I read that correctly?

 

For what is supplied under a s78 request, yes.

 

Which is obviously frequently the case, as what the creditor considers to be an 'agreement' quite often doesn't.

 

But said agreement would still not be enforceable under s127(3).

[Baggio]

Im slightly confused Baggio.

 

Your comments over the last few days have suggested a massive victory for the consumer was forthcoming. Can you highlight anything in today's judgement to support this? Im not really seeing much positive in it.

 

you will have to be patient on this one, i will state again... i am not the QC here, i am following their lead... i cannot make this any more clearer!!

 

i have breifly spokent to them in the last couple of hours and they remain confident.

[MandM]

Just doing a bit of sneaky advertising whilst we have such a full lobby. Hope you don't mind. It's for a good cause.

 

http://www.consumeractiongroup.co.uk/forum/show-post/post-2627143.html

 

M

 

Merry christmas to all

[postggj]

Ill Have To Read Through It But What Stands Out Is

 

Credit Card Agreements

 

How Does This Judgement Stand Ref

 

Hp Agreements

Secured And Personal Loans

 

Well Everything But Credit Cards

 

 

ANY COMMENTS

[haggis1984]

you will have to be patient on this one, i will state again... i am not the QC here, i am following their lead... i cannot make this any more clearer!!

 

i have breifly spokent to them in the last couple of hours and they remain confident.

 

 

From reading the judgement its very hard to take this at face value. It doesnt seem like anyone here has managed to pull anything positive from it.

 

I hope to be pleasantly surprised

 

As laymen we can all make interpretations of the judgement. It would make it much easier to take what you're saying at face value if you could do the same and pick out some positives.

[michellej]

well 5 new pages since my last post ,... well feel a little better now , AS ITS BACK ON , was never off but a little disappointed and shocked at first , thought they had won a good angle to be obstructive in our journeys for fairness ,.. Merry Xmas All ,.. seems like Santa came early for me ,.. like its been pointed out , the judgement only says their can reconstruct an agreement , but it will not enforce it , as that signature on original agreement enforces the agreement ,.. no signature no debt ,.. and that should be as black & white as it comes ,..

[postggj]

Message For Site Team

 

Any Chance Of Getting Pt To Pick The Bones Out Of This One

[saddler68]

For what is supplied under a s78 request, yes.

 

Which is obviously frequently the case, as what the creditor considers to be an 'agreement' quite often doesn't.

 

But said agreement would still not be enforceable under s127(3).

 

Thx Gyos. Are you saying that its OK under a s77/78 but that a lender couldn't get away with it in Court?

[stapeley]

Carey v HSBC Bank Plc [2009] EWHC 3417 (QB) (23 December 2009)

 

Well I must say that is as clear as mud !

 

Is it true that a copy of the original signed agreement has to be shown to the court ?

Is a copy of a signed application form acceptable ?

 

These are my main concerns.

 

I have so far only been provided with one copy of a signed application form .

One poor quality and unreadable copy of an application form .

 

Where do I stand now ?

[johnerog]

Hello all; love to santa.

 

As far as I can see the judgement handed down yesterday makes absolutely no difference in a court of law. It refers only to S77/79 and what they can send out as a 'copy' of the agreement. If there is court action they will have to produce the original signed agreement in court and we still have 31.16 or 31.14 to make them.

 

Calm down everybody we are winding up our selves and doing the DCA's job for them. They do not need any help. United we stand-divided we fall, this is no time for the dreaded ego..

 

Rudolph;

[supasnooper]

For what is supplied under a s78 request, yes.

 

Which is obviously frequently the case, as what the creditor considers to be an 'agreement' quite often doesn't.

 

But said agreement would still not be enforceable under s127(3).

 

Thx Gyos. Are you saying that its OK under a s77/78 but that a lender couldn't get away with it in Court?

 

 

Gyos is correct. s127(3) states -

 

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).

[Basil Fawlty]

I'm reading through the Judgement now, and I dont mind admitting its bloody hard reading for me! Does the following paragraphs (104 to 108 sum it up as regards to them having to provide a copy of the executed agreement in its original form, irrespective of earlier paragraphs stating that reconstituted copies will do? I'm confused.

 

Quote

 

 

1. In my judgment, the debtor has a legitimate interest in seeing a copy of the agreement he signed, not in the sense of proof of execution but as information. He has that right irrespective of whether it was later varied. He may wish to review it and see what he agreed, or he may have a concern as to enforceability and he can at least see what terms were there. But in fact it is not necessary in my view to spell out every conceivable interest he may have. It is enough to say he has an interest in seeing what he signed up to and to have a record of it (Guest at p3200 states the purpose as being the provision of a record). That he should be entitled to a copy (with the limitations I have already described) in return for payment of a modest fee does not seem to me to be absurd, impossible or futile. The notion that a person can obtain a copy of an agreement from another party by paying a fee is hardly novel.
   
2. I see no difficulty in saying that the framers of the Act saw it as important in the interests of debtors that they should able to obtain as copy of the agreement they made for whatever purpose they want, it being assumed that they ask for a copy because they have mislaid their own, and then, if in fact the agreement has been varied, they are given the up to date terms as well. This is what Options A and B are designed to do, more or less elegantly. The fact that the purpose of s78 falls short of the supply of proof or the best evidence possible of the executed agreement does not undermine this.
   
3. What has happened in this case is that each side has taken a somewhat polarised position which assumes no possible middle ground between the purpose it contends for and that contended for by the other side. I regard that as setting the bar too high in terms of construing s78 and the Copies Regulations. The fact that many claims now made under s78 may properly be regarded as unattractive and merely fishing for a case of unenforceability (as to which see below) must not obscure a proper analysis of the provisions.
   
4. Mr Mitchell urged me not to look at Issues 1 and 2 through the wrong end of the telescope ie starting with the "primary" duty to provide a copy of the executed agreement and then adding to it where it has been varied. Rather, he said, I should look at all these questions through the purposive prism of the supply only of current information. I could see the force of that if he were right about the exclusive purpose of s78. But I do not think he is. The result of the Defendants' analysis is, in truth, an attempt to force the language of Reg. 7 far beyond that which it can reasonably or sensibly go.
   
5. Accordingly, I conclude that Reg. 7 requires a copy of the executed agreement in its original form as well as a statement of the terms as they are at the time of the request.
   

 

Quote

 

 

BF

[B3rty]

IMHO the s.78 request is not as important as enforcement and this is quite revealing

 

 

Agreed Principles

The parties in Carey have helpfully agreed the following principles. The fourth one was added by Mr Uff, with their agreement. No other party takes issue with them. The OFT has formulated the matter in a slightly different way but accepts these principles are close to its position.

(1) It is not sufficient for the piece of paper signed by the debtor merely to cross-refer to the Prescribed Terms without a copy of those terms being supplied to the debtor at the point of signature;

(2) A document need not be a single piece of paper;

(3) Whether several pieces of paper constitute one document is a question of substance not form. In particular a physical connection between several pieces of paper is not necessary in order for them to constitute one document;

(4) Additionally, a physical connection (or one or more physical connections) between several pieces of paper does not necessarily constitute them as one document;

(5) Accordingly, where the debtor's signature and the Prescribed Terms appear on separate pieces of paper, the questions of whether those pieces of paper together constitute one document is a question of substance and not form.

[saddler68]

IMHO the s.78 request is not as important as enforcement and this is quite revealing

That partucular section section is most worrying IMO. Both parties agreed...... I just dont get it. PTs should be in the sig doc? No? Is there a diff here between s78 and Court procedure. The Mancs prelim' list ( No 5) clearly refers to s61 and 127(3).

[lilly white]

ok lets have a look

 

Does a creditor's breach of s78(l) of itself give rise to an unfair relationship within the meaning of section 140 A?

 

no

[lilly white]

Does the document signed by the debtor contain the prescribed terms for the purposes of section 61 and/or section 127(3) if

 

) Does the document signed by the debtor contain the prescribed terms for the purposes of section 61 and/or section 127(3) if:

(a) they are on a sheet which is referred to on the piece of paper that was signed by the debtor; or

(b) where that sheet is attached to the piece of paper signed by the debtor; or

©

where that sheet is separate from but was supplied with the piece of paper signed by the debtor?

 

thats clear needs to be answer

 

 

[lilly white]

If it were not established, at trial, that there was a document signed by the debtor containing the Prescribed Terms, would that of itself entail an unfair relationship?

 

imho yes

[lilly white]

ok imho

 

there is nothing in this case that we caggers do not know or have debated

 

why the claims where made i do wonder

[lilly white]

the answer

 

The absence of any positive plea or evidence as to particular facts relied upon in support of the unfair relationship claim other than failure to provide a s78 copy, was fatal to that claim.

 

why you shouldnt use section 77/78 CCA 1974 if you want the signed agreement

 

regards

 

a happy xmas to you all

Edited December 24, 2009 by lilly white

[kel123]

Well Kel123 is a confussed 50 plus'er. Old Hector has read and re-read and as yet cannot find a reason to crack open a bottle of water let alone champus!

 

Can someone point out were the/me the consumer has won anything here

 

All I seem to have read is that they can lagitamately commit fraud by just typing anything and call it related (one document) with no visable link

 

Before I call it big brother tell me why I should not?

 

Kel