Claim Stayed – Due to Unenforceable CCA Test Cases.

[reallymadwoman]

hi can anybody recomend a good cmc

 

It depends what you want them to do. If it's sort out your finances and come up with a sensible payment plan, then CCCS or Payplan, being free, are your best bet.

 

If you want them to challenge debts etc, then I can't comment since I've never used one. Is it not worth at least a try at doing it yourself, with help from the forum?

[Sentinal3721]

Probably because he has no insurance...and was banking on Waksman QC on making sure lenders had the original agreements, and would not them get away with a Bull printing set copy!

[reallymadwoman]

4 c cards been with a solicitor for 10 months now he says not willing to go on since the test case of 23rd december

 

My suggestion is that you start a thread of your own, possibly one for each card, in the appropriate forum, then do a 'story' of what's happened so far and get some advice from the people on here.

[angry cat]

John Bull printing set?

 

Fun and games...!

[jonoh1]

This is the quote from the Fountain Court legal website QC .........

 

Bankim Thanki QC and Andrew Mitchell act in credit card test case

 

On 23 December 2009 the Mercantile Court in Manchester handed down judgment in a test case arising out of the numerous requests for information under the Consumer Credit Act made by claims management companies seeking to avoid liabilities incurred by their clients under credit card agreements. The Court held that agreements could be enforced in circumstances where a copy of the original agreement signed by the customer could not be produced by the bank. The Court also struck out claims against RBS and Barclays Bank. Bankim Thanki QC represented RBS and Andrew Mitchell represented Barclays.

 

The judgment of HHJ Waksman QC is cited as Carey v HSBC [2009] EWHC 3417 (QB).

 

This is not how I understand Wakesman`s judgement. This seems to indicate a much broader judgement than 77/78.

 

I thought that the original was required both for CPR and enforcement by a DJ. This statement above is like saying that the Consumer Credit Act is not worth the paper it is written on.

 

If these are the QC`s version of Wakeman then what chance have we.

 

It seems the cost situation is to put people off fighting. Poor judgements, appeals all add up to a great lunch ticket for the legal bods.

 

Looking at the Humbleman case If everything was so good for the consumer I would have thought that some CMC would have taken this on for free and fight the appeal.

 

I am finding all this to be some kind of stitch up. How can they quote this version it is like saying the consumer credit act is now rewritten by Waksman

[saddler68]

some cmc s say you still need the original to enforce and some say not that a copy will do who do you believe

 

 

There is more to it than that though according to my CMC. They issue based on prescribed-term breaches and/or unfairness regardless of the signature. They say it is folly to issue based on the lack of a sig doc and to be fair have said this since day 1.....rocky I have pmd u.

[reallymadwoman]

In my opinion (and that is all it is) a judge might allow a copy in the following circumstances

 

1. It's a small claim where strict rules of evidence do not apply.

 

2. The creditor has some persuasive argument as to why they cannot produce the original, but can produce a photo- or microfiche copy, e.g. fire damage. A good barrister might even succeed in persuading the judge if it has just been lost.

 

3. The judge hates debtors and would send them to prison if he could.

 

4. **** happens.

 

I do not believe any judge should ever accept a reconstructed agreement in place of the original, but that doesn't mean that one won't at some point.

[jonoh1]

I am now lost just thought the above was an interesting version on the Fountain Court chamber website.

 

Former member of the Fountain Court chamber in the Temple was Waksman.

[reallymadwoman]

I am now lost just thought the above was an interesting version on the Fountain Court chamber website.

 

Former member of the Fountain Court chamber in the Temple was Waksman.

 

I suggest you read the judgement yourself. It may take some time and effort, but judgements are nearly always logically presented and can be followed by someone without any legal knowledge. There is a link somewhere on this thread but I don't have time to look for it just now.

 

For the record, my reading of the judgement is that a reconstructed agreement is fine to comply with a request under s77-79 of the CCA, and failure to provide/have a copy of the original does not prevent enforcement up to the issue of proceedings. This has no effect whatsoever on what is needed to enforce an agreement in court which remains the original agreement.

[jonoh1]

reallymadwoman. I have read the judgement till I am blue in the face.

 

The interpretation you state is also my own interpretation.

 

I was just very surprised to read this version on a Chambers website especially Fountain Court chambers . Because of it`s connection with the case.

 

If this is the hymn sheet they all sing from then we shall have problems. I just do not understand their interpretation.

Edited January 13, 2010 by jonoh1
typo

[seriously fed up]

This is the quote from the Fountain Court legal website QC .........

 

Bankim Thanki QC and Andrew Mitchell act in credit card test case

 

On 23 December 2009 the Mercantile Court in Manchester handed down judgment in a test case arising out of the numerous requests for information under the Consumer Credit Act made by claims management companies seeking to avoid liabilities incurred by their clients under credit card agreements. The Court held that agreements could be enforced in circumstances where a copy of the original agreement signed by the customer could not be produced by the bank. The Court also struck out claims against RBS and Barclays Bank. Bankim Thanki QC represented RBS and Andrew Mitchell represented Barclays.

 

The judgment of HHJ Waksman QC is cited as Carey v HSBC [2009] EWHC 3417 (QB).

 

This is not how I understand Wakesman`s judgement. This seems to indicate a much broader judgement than 77/78.

 

I thought that the original was required both for CPR and enforcement by a DJ. This statement above is like saying that the Consumer Credit Act is not worth the paper it is written on.

 

If these are the QC`s version of Wakeman then what chance have we.

 

It seems the cost situation is to put people off fighting. Poor judgements, appeals all add up to a great lunch ticket for the legal bods.

 

Looking at the Humbleman case If everything was so good for the consumer I would have thought that some CMC would have taken this on for free and fight the appeal.

 

I am finding all this to be some kind of stitch up. How can they quote this version it is like saying the consumer credit act is now rewritten by Waksman

 

Re the quote concerning the QCs, as this has been put out by their Chambers, its not really all that surprising that its spun out as far as is possible. In fact the way they use the word"enforceable" is very misleading. What s78(6) actually says is this - "If the creditor under an agreement fails to comply with subsection (1)—(a) he is not entitled, while the default continues, to enforce the agreement;"

Thus what Waksman's judgement allows is for lenders to continue to enforce even when, faced with a s78 request, they send no more than a reconstituted agreement. Now lets reflect on what that means. It means - if we put it into 78(6) above - that with a reconstituted agreement a lender will be entitled to continue to enforce the agreement. They will be able, for instance, to phone you up at all hours, to send you threatograms - the whole arsenal (sorry gooners! ) of attack that they have. But none of this is to say that it WILL be enforced in court.

Waksman is consistently clear that he is working from the Copies Regulations. He says at para 64 "It is accepted that the Agreements Regulations govern the form and content of the executed agreement signed by the debtor made pursuant to s60, and that the Copies Regulations, made pursuant to si80, govern the form and content of copies to be provided under the Act. For the avoidance of doubt I consider that the reference in si80 (2) (a) to the "prescribed form" and "prescribed requirements" is a reference to the requirements imposed by the Copies Regulations, not the Agreements Regulations. The only prescription as to form made in connection with s78 is the general requirement in Reg. 2 that the copy should be "easily legible"."

THIS IS ABOUT S78, though I am sure the banks et al would like it considered to be more widely applicable and to use the possibility of sending out blue peter jobs to allow enforcement in its widest sense, whereas it does no more than to allow them to continue their enforcement practices even if they cant come up with an original agreement.

A whole lot depends here on what you mean by enforce - calls, letters yes almost certainly. At court, while I see RMW's point, it shouldnt

[seriously fed up]

I am now lost just thought the above was an interesting version on the Fountain Court chamber website.

 

Former member of the Fountain Court chamber in the Temple was Waksman.

 

Can I get away here with a quick and heart felt FFS! :-x:-x:-x:-x:-x:-x bearing in mind - for the benefit of those who havent looked at the case - that the two being lionised on the Fountain Court website appeared for RBS at Manchester.

[jonoh1]

Agree with you SFU. I think what I am trying to say is that I am surprised by the level of spin.

Also some of the very interesting connections.

 

I do not understand how the Humbleman case was enforced yesterday on our understanding of the Consumer Credit Act. Surely should be an appeal.

 

Ever case on it`s merits. Surely at some stage even the level of possibility must swing against the banks.

[Mistermind]

Re the quote concerning the QCs, as this has been put out by their Chambers, its not really all that surprising that its spun out as far as is possible. In fact the way they use the word"enforceable" is very misleading. What s78(6) actually says is this - "If the creditor under an agreement fails to comply with subsection (1)—(a) he is not entitled, while the default continues, to enforce the agreement;"

 

Thus what Waksman's judgement allows is for lenders to continue to enforce even when, faced with a s78 request, they send no more than a reconstituted agreement. Now lets reflect on what that means. It means - if we put it into 78(6) above - that with a reconstituted agreement a lender will be entitled to continue to enforce the agreement. They will be able, for instance, to phone you up at all hours, to send you threatograms - the whole arsenal (sorry gooners! ) of attack that they have. But none of this is to say that it WILL be enforced in court.

 

When a DCA makes endless phonecalls day and night, that may be harassment, and conduct answerable to their licensor the OFT. Unless the DCA arrives with the muscle boys or demand entry like bailiffs, hard to see where "force" comes in.

 

Enforcement is exclusively for the court. Only a judge can legally enforce an agreement. The only thing a plaintiff can do about enfocement is to aim for it. The rest is merely attempted collection. Right or wrong the McGuffick judge's ruling was that attempted collection need not be preceded by a court verdict confirming enforceability.

 

Indiscriminate use of the word "enforcement" by both sides is appalling.

[reallymadwoman]

And whatever either side say, the general rules of evidence still apply to documents produced in court.

[seriously fed up]

Agree with you SFU. I think what I am trying to say is that I am surprised by the level of spin.

Also some of the very interesting connections.

 

I do not understand how the Humbleman case was enforced yesterday on our understanding of the Consumer Credit Act. Surely should be an appeal.

 

Ever case on it`s merits. Surely at some stage even the level of possibility must swing against the banks.

 

Do you not understand how the case went against Humbleman - go to http://www.consumeractiongroup.co.uk/forum/legal-issues/130101-humbleman-hfc-weightmans-court-21.html and see post 413's first four or five lines - JUDICIAL PREJUDICE, judge on an ego trip. Yes he must appeal, and there is a list drawing up on that thread promising contributions to the costs. I would encourage everyone to contribute, as its only by demonstrating to the judiciary that we not only have the nerve but the wherewithall to fight back that this sort of calumny will be reduced if not ended altogether.

[jonoh1]

That I agree with reallymadwoman. Yet that did not seem the case in Humbleman yesterday

[panty54]

And whatever either side say, the general rules of evidence still apply to documents produced in court.

 

Can this statement be supported by a legitimate source - preparing for a court case next weerk and want to be able to quote general rules of evidence rather than the balance of proabilities (in the fast track). Thanks

[seriously fed up]

When a DCA makes endless phonecalls day and night, that may be harassment, and conduct answerable to their licensor the OFT. Unless the DCA arrives with the muscle boys or demand entry like bailiffs, hard to see where "force" comes in.

 

Enforcement is exclusively for the court. Only a judge can legally enforce an agreement. The only thing a plaintiff can do about enfocement is to aim for it. The rest is merely attempted collection. Right or wrong the McGuffick judge's ruling was that attempted collection need not be preceded by a court verdict confirming enforceability.

 

Indiscriminate use of the word "enforcement" by both sides is appalling.

 

Yes, see your point. But as Waksman was dealing with the consequences of not being able to produce the original (or copy thereof) agreement, I still think we have to understand the use by Fountain Court in the context of s78. They can do a reconstruction and that removes the lender "is not entitled, while the default continues, to enforce the agreement;" In my view it goes no further than that. If the rules of evidence dont apply then the British legal system really is up the creek

[Mistermind]

 

For the record, my reading of the judgement is that a reconstructed agreement is fine to comply with a request under s77-79 of the CCA, and failure to provide/have a copy of the original does not prevent enforcement up to the issue of proceedings. This has no effect whatsoever on what is needed to enforce an agreement in court which remains the original agreement.

 

A reconstructed agreement having been ruled by the judge as sufficient compliance with CCA request, the inference from that ruling is that a reconstituted agreement need not necessarily correspond with the real agreement, if the latter is in future found and presented in court to effect legal enforcement. This drives a coach and horses through the compliance with CCA S77-S79?

 

If a debtor wishes to predict the true probability of his agreement being enforceable in a CCJ hearing, he cannot safely rely on the soundness of the reconstituted CCA. He will need to wait until the CCJ lawsuit when he can demand discovery of the evidence due to be presented against him.

 

Creditors with their barrister will surely tumble to this angle sooner or later. When they do a CCA obtained re S77-S79 would be neither here nor there. Creditors need only pretend an agreement is misfiled, to send out one deliberately so reconstituted as to look clearly unenforceable. If the debtor misled by a false sense of security goes into court he may then be faced with a very different and obviously enforceable agreement.

[seriously fed up]

But why would they do that? First of all, even Waksman talks about the need to produce a "true copy" - they cant just start sending out what they know is a tissue of lies and then present the real thing in court. That is going to stink to high heaven in due course. But - and this is the main point - why would they delay getting their money by having to go through court? Why not do a reconstruction so solid in terms of prescribed terms etc that the debtor sees no option other than to pay up? Even if they know full well that they dont have the original - or worse that they do have it and know its non-compliant.

[angry cat]

The point is though;

the creditor cannot just send out a reconstituted agreement, if he has nothing to base the agreement upon!

 

The inception T&C's form part of a credit agreement, as well as the terms as varied.

 

Anyone could make a credit agreement by using a John Bull printing set;

however, without the correct T&C's, this would be worthless.

[Mistermind]

Yes, see your point. But as Waksman was dealing with the consequences of not being able to produce the original (or copy thereof) agreement, I still think we have to understand the use by Fountain Court in the context of s78. They can do a reconstruction and that removes the lender "is not entitled, while the default continues, to enforce the agreement;" In my view it goes no further than that. If the rules of evidence dont apply then the British legal system really is up the creek

 

Again, I believe the confusion arises from loose terminology. Only a judge can use force (via the bailiff and police). The only force civilian creditors can employ is guns and knives and sticks. Turning up on the doorstep would be the most profound nuisance and possibly against OFT guidelines depending on circumstances. Any attempt to force entry into the house would be a breach of criminal law. Apart from that I cannot see how creditors can "enforce" except in court (via CCJ, Charge Order, bailiff).

 

The phrase "is not entitled, while the default continues, to enforce the agreement;" ceases to be a bone of contention if it is less ambiguously rephrased as:

 

"is not entitled, while the default continues, to enforce the agreement in court"

 

I do not see how Joe Public is being deprived of protection by the law of evidence. If any money-lender came to me demanding repayment of debt and I have never heard of him before, I will go to the police on a case of fraud and demanding money with menaces. I will certainly seek damages. All that will be based on physical evidence that I never borrowed money from him.

[angry cat]

Taking the issue further;

S78 states: ...and any other document referred to in it"

 

There is also the issue of s18; multi-part agreements!

 

In that scenario, not only would they have to provide the inception T&C's and Terms as varied, but also the PPI documents including the inception Terms of that PPI.

 

Anyhow, that is my take on the matter.

[angry cat]

Oh No, Mistermind!

 

I hope that this is not going in the direction of;

you borrowed the money, pay it back.

 

Not quite as simply as that, in many cases there are other issues such as;

negligence in contract etc...