Claim Stayed – Due to Unenforceable CCA Test Cases.

[Blondie40]

Have just returned home after my court apearence for my N244 ordering Link to supply the outstanding documents.

What a waist of time, the Judge informed me and the claimant that due to the current court case being heard in Manchester by District Judge Blacksmith on the 8th Oct relating to this type of claim ( I think he was referring to the members of this Forum) and apparently his ruling is going to affect the majority of the cases on this forum . He has stayed the case and my N244 to 21 days after the court case on the 8th oct 09. Are you aware of this case.

 

The order I have refers to:

…Manchester County Court and shall be listed for directions before His Honour Judge Waksman QC on 8 Oct 2009.

[Blondie40]

Have also heard about two more being stayed for same reason, one same court and same Judge as mine, earlier this week.

 

At my trial judge did mention Chester County Court but I got the impression that the case to be heard at Manchester had far more relevance. However this is only my impression.

[Blondie40]

Have just spoken to the case manager at Manchester High Court. He informed me that the case has been passed to a Judge Holman. He is dealing with a Batch of cases dealing with the subject matter “unenforceability of credit card agreements with no documentary evidence supporting the claim”

Any thoughts?

 

Is that not a different matter to those raised originally at Chester in which the agreements aren't enforceable as they don't contain the required prescribed terms?

Edited August 28, 2009 by Blondie40

[Blondie40]

Have also heard about two more being stayed for same reason, one same court and same Judge as mine, earlier this week.

 

Just in case anyone asks got that info from CAB this morning, they advised me not to do anything further until after the hearing in Manchester. Don't object to the stay, don't write asking for clarification.

[WelshMam2009]

Just in case anyone asks got that info from CAB this morning, they advised me not to do anything further until after the hearing in Manchester. Don't object to the stay, don't write asking for clarification.

 

That seems sensible advice Blondie...let sleeping dogs lie as they say!!

[citizenB]

Hi docman and letitbe,

 

The thread can and will be merged now letitbe has confirmed.

Edited August 29, 2009 by citizenB
3 posts have been unapproved/ duplicated through merging

[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.

[letitbeme]

Hi citizenB, Have just signed the following petition:

 

Petition to: reduce the time Credit reference agencies hold data for to 3 years. | Number10.gov.uk

 

Has there been a thread started in relation to this.

[Reader]

Subbing with interest

[Blondie40]

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.

 

 

Have just spoken to the case manager at Manchester High Court. He informed me that the case has been passed to a Judge Holman. He is dealing with a Batch of cases dealing with the subject matter “unenforceability of credit card agreements with no documentary evidence supporting the claim”

Any thoughts?

 

 

Going by these two posts looks like different matters.

[Blondie40]

From Re: Unenforceability Cases on hold until further notice

 

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.

 

 

 

No they are different

[Blondie40]

Get's more interesting every day

 

From: Unenforceability Cases on hold until further notice

 

OK, This is third hand information. I have spoken with a Legal Clerk who works at Liverpool CC, she has told me that “all the Civil Judges in the Liverpool CC have been instructed to stay all claims involving disputes in relation to the enforceability of cca’s issued before 6 April 2007.”

Enforcing Credit Agreements (Implementation date: 6 April 2007)

Section 127 of the 1974 Act restricts the court's discretion to enforce an agreement that does not contain all the prescribed terms or has not been signed by the borrower or where the appropriate cancellation statements and notices have not been given. As a result relatively minor technical breaches of the rules can result in unenforceability. However, by virtue of the Act, the court will have the power to determine in its discretion whether agreements are enforceable regardless of the

breach.

 

http://www.mcgrigors.com/pdfdocs/Consumer%20Credit%20Act%202006.pdf

[Ruprecht]

Sections 127(3)-(5) are still fully in force for agreements made before April 2007, as per the Consumer Credit Act 2006, Schedule 3, Section 11.

 

If the agreement doesn't have borrower's signature on a document containing the prescribed terms etc. then the court has no discretion in pre April 2007 agreements, it cannot enforce it by law.

 

I don't see why they need anything clarifying.

[Josie8]

The Manchester cases relate mainly to s.77 & 78 True Copy issues and are to determine what documentation the creditor needs to produce to satisfy the statutory requirements. They are not Test Cases - they are "Lead Cases" . They are unconnected to the Chester cases.

[Ruprecht]

The Manchester cases relate mainly to s.77 & 78 True Copy issues and are to determine what documentation the creditor needs to produce to satisfy the statutory requirements. They are not Test Cases - they are "Lead Cases" . They are unconnected to the Chester cases.

 

Are they also dealing with cases in which there is no agreement too? I can see the banks deciding they don't have it in a lot of cases now...

 

I think people only do the s77/s78 request to find if there is an original agreement still in existance with the signature on. It's all very well getting just a photocopy of what the terms etc. would have been.

 

You need to get something with the signature on and the dodgy terms. But then the banks are going to pretend they don't have that if they see it is unenforceable aren't they?

 

I noticed someone say it was a "Directions Hearing" in October so I am guessing nothing is likely to be decided for a while yet, maybe next year.... The old drag it out forever method the banks so enjoy using.

 

I have had a company who have had 100 days to find it saying they are still looking for it, bare with us... I bet they have it and are waiting for the legal dept to decide if they should shred it or not.

 

Does anyone know if they would have to supply a copy of an agreement under a Data Protection Act request if it was on microfiche or paper? Then force them to say if they have it or not as per the subject access request?

 

I spent all day reading stuff on the Information Commissioners website about manual filing etc. didn't make much sense.

 

Might be a cheaper way to get them to admit if they have it than CPR 31.16 route.

[Stubie]

I have had a company who have had 100 days to find it saying they are still looking for it, bare with us... I bet they have it and are waiting for the legal dept to decide if they should shred it or not.

 

Or they are "looking" for so many that they haven't got round to your's yet

 

Does anyone know if they would have to supply a copy of an agreement under a Data Protection Act request if it was on microfiche or paper? Then force them to say if they have it or not as per the subject access request?

 

Not necessarily, there is a get out by way of the "Relevant Filing System" limitation within the act. They can send you what they think is "suitable" and hide behind this restriction. In the past Caggers and ICO have challenged this but they still do it.

 

I spent all day reading stuff on the Information Commissioners website about manual filing etc. didn't make much sense.

 

Join the club, persevere and you will get it but the Act does not seem well written in this respect so there is a fair amount of interpretation space so the clarity of advice is poor, as a result.

 

Might be a cheaper way to get them to admit if they have it than CPR 31.16 route.

 

Occasionally they will slip up and admit they don't have it or can't find it. Such admissions, if made in writing, are pure gold but they are rare. To keep you guessing is to keep you in a state of confusion as to whether it exists. If you are not sure then you may be retiscent about litigating in case they do produce it and collect the court costs.

 

Its a game of chess but with fewer rules and you can't see all the pieces - perhaps more like battleships.

[Ruprecht]

 

Join the club, persevere and you will get it but the Act does not seem well written in this respect so there is a fair amount of interpretation space so the clarity of advice is poor, as a result.

.

 

This is what I read incase anyone out there dares to read it

 

http://www.ico.gov.uk/upload/documents/library/data_protection/detailed_specialist_guides/what_is_data_for_the_purposes_of_the_dpa.pdf

 

It seems to come down to if they have filed it in a "structured filing system".

 

If they have filed it in name or account number order you are definately entitled to it.

 

"Is the information in the files indexed or subdivided to allow ready access to specific information about a particular individual?

YES - This is likely to be a ‘relevant filing system’ and the information is ‘data’ for the purposes of the DPA."

 

If they have filed all the agreements together by date you should be entitled to it.

"Purely chronological filing of information covering a variety of categories is unlikely to constitute a ‘relevant filing system’ (and the information will not be ‘data’ covered by the DPA). However, where records relate to a single category of information these may be held in a ‘relevant filing system’ even though the records are filed in purely chronological order – provided, as always, that the single category refers to individuals or criteria relating to individuals, and the system facilitates ready access to specific information about those individuals."

 

If they filed all sorts of things together in date order; agreements, applications, corresponence, toilet rolls, etc., then you are not entitled to it.

 

"Information falling into various different categories which is filed purely in chronological order is unlikely to be held in a relevant filing system. The collection of information is structured by reference to date rather than “by reference to individuals or by reference to criteria relating to individuals”.

 

 

Are these the conclusions you came to as well?

 

I suppose there is nothing to stop the banks claiming anything about how they file stuff. It is highly unlikely they just put all the agreements into boxes at random with other stuff.

 

Notice how easy and fast they come up with an agreement when it is enforceable??

[Stubie]

Are these the conclusions you came to as well?

 

Yep, pretty much.

 

I get the impression that if some kiddie can sit at a PC with a printer and churn it off then you can have it.

 

If they have to get off their butt and go look for it then you're out of luck

 

Nice work if you can get it :-|

 

I suppose there is nothing to stop the banks claiming anything about how they file stuff. It is highly unlikely they just put all the agreements into boxes at random with other stuff.

 

I think most of the agreements got filed in the recycle bin......and the people who authorised this are now part of a government statistic much in vogue at the moment.

 

Notice how easy and fast they come up with an agreement when it is enforceable??

 

Spot on. I applied for 6. I got one signed agreement by return and 5 lots of flannel, ducking and weaving - now with sundry DCAs who aren't fareing much better than the OC.

 

And guess who's getting paid!!

 

Oh, and MBNA had a microfiche tear off which might as well have gone to CCA heaven for all the use it is.

[Docman]

The Manchester cases relate mainly to s.77 & 78 True Copy issues and are to determine what documentation the creditor needs to produce to satisfy the statutory requirements. They are not Test Cases - they are "Lead Cases" . They are unconnected to the Chester cases.

 

Well if the 'Lead Case' does clear up the S77/78 excuses from the banks then fine. When faced with the usual excuse from credit companies, I have gone back with a SAR under the Data Protection Act. So far I established that when two companies sent their 'doctored' T&Cs in lieu of the CCA, the SAR revealed that they both only had unenforceable application forms.

[middenmess]

So far I established that when two companies sent their 'doctored' T&Cs in lieu of the CCA, the Subject Access Request revealed that they both only had unenforceable application forms.

 

 

But where is the guarantee that what they send you under SAR is all they have?

 

If it goes to court who's to say what they will turn up with?

[Docman]

True but so far that hasn't happened. And as far as I rememeber, the application forms (just flyers really) were the only documents I signed.

[GamekeeperToPoacher]

I am sorry to bang on but Where is the advantage to them NOT to provide the info?

 

If you have an agreement show it and we will come to an arrangement/pay up. End of story!!

 

GK

[Tricky Dickie]

So far I established that when two companies sent their 'doctored' T&Cs in lieu of the CCA, the Subject Access Request revealed that they both only had unenforceable application forms.

 

 

But where is the guarantee that what they send you under SAR is all they have?

 

If it goes to court who's to say what they will turn up with?

 

If it goes to court you can make them show you everything they intend to rely on in court by pre action disclosure so you will know well before the trial what they have.

I believe that if they have something which they have not disclosed then they can not use it in court

[Tricky Dickie]

I am sorry to bang on but Where is the advantage to them NOT to provide the info?

 

If you have an agreement show it and we will come to an arrangement/pay up. End of story!!

 

GK

 

If they have an enforceable agreement they can find they will send it straight back to you but the fact is the vast majority of CCA are not enforceable so rather than admit that they just fob you off and keep the DCA s on your back in the hope of getting something out of you

[middenmess]

But if it's the original document that they have to bring to court, and not a copy,then no matter what they supply in pre court disclosure,you will not know if they still have the original until you actually go to court-or have I got it wrong?