Claim Stayed – Due to Unenforceable CCA Test Cases.

[Baggio]

I agree completely with you shadow the politicians, judiciary and banking industry are all part of the establishment and as such protect each other to sustain the status quo.

g

 

where was the protection with bank charges?

 

the law for unenforabilty is more cast iron.

[saddler68]

If the decisions all go against the Financial Industry,as they should do,then it is entirely conceivable that the number of claims thus generated and the billions of pounds claimed could bring down the whole industry.

 

This will never be allowed to happen.

Thats the point, the law is secondary here. Im not sure though that CC claims could bring the banking industry down. 21 Billion is it? Its a hit for sure but not a terminal one.

[middenmess]

Not an over reaction but something that would happen if they didn't have as you say

 

' plenty of printing machines and tax payers money to bail them out at every juncture.'

[Baggio]

Not an over reaction but something that would happen if they didn't have as you say

 

' plenty of printing machines and tax payers money to bail them out at every juncture.'

 

do you know how much the banking industry took as a hit due to the credit crunch?

 

about 50 times as much a hit as these claims

 

Barclays are still on my high street

[pedross]

I agree with Baggio

 

The law is the law and a clear understanding of the facts will always result in the correct decision.

 

In the Walker case it appears that 3 judges were confused about the legal arguments and the fact it happened will obviously result in a clearer or different version of the argument on appeal.

[Baggio]

I agree with Baggio

 

The law is the law and a clear understanding of the facts will always result in the correct decision.

 

In the Walker case it appears that 3 judges were confused about the legal arguments and the fact it happened will obviously result in a clearer or different version of the argument on appeal.

 

Exactly my point.

[letitbeme]

I also agree with you Baggio.

The problem with this case is that the Judiciary are being persuaded by cloudy and misleading arguments, this decision will eventually be reversed, you can’t disregard the fundamental principles of law pertaining to this case. A stronger argument supporting a reversal will arise and put this pathetic decision where it belongs.

[angry cat]

Take a look at this:

 

http://www.consumeractiongroup.co.uk/forum/show-post/post-2575846.html

 

God they make my blood boil!!!

[Baggio]

Take a look at this:

 

http://www.consumeractiongroup.co.uk/forum/show-post/post-2575846.html

 

God they make my blood boil!!!

 

I think most people just think right, 6 years of no credit, then start again.

 

They may have won a minor battle, but they certainly will not win the war.

 

Fact.

[ncf355]

Whilst I'm not 100% behind the claim industry that has recently sprung up, I am getting to the point I am very glad that they exist.

 

After having a few successes right back at the start via the help on CAG and my own determination, I have also been on the receiving end of some quite ludicrous decisions from the judiciary, who in many cases utterly failed in their duty to create balance between the parties and in fact assisted the other sides highly qualified legal team in eating me alive

 

Justice being served should not depend on the mood of the judge on the day

 

It is quite clear that all the way along we have needed somebody with money and clout and top legal advice to get something set in stone (despite the fact it would have appeared to lamans eyes Wilson v FCT would be quite enough!)

 

Even right back at the start of the charges actions, one judge told me I was talking rubbish, and that if that was the case people would be claiming £M's up and down the country

 

Mr Judge, who's looking stupid now?

 

[angry cat]

by Mrs J Pearcey; Link Financial:

 

"...we draw your attention to the RBS Consumer Credit Act test case Mc Guffick V RBS, which was recently referred to the high court. The findings of the case were that enforceability does not mean that the rights of the partiesnunder a credit agreement were never acquired or extinguished. Rights under the agreement continue. It also decided that reporting to the credit reference agencies or passing information about credit agreements or the conduct of the account does not 'come anywhere near amounting to enforcement'. Therefore the court held that there was no basis to prevent referral of information under the Data Protection Act 1998. It also held that passing on persoanl data in respect of a credit agreement, demanding payment, issuing a default notice, threatening legal action and bringing legal proceedings does not contsitute enforcement."

 

The point is, Link are distorting the McGuffick judgment which was in relation to an enforceable credit agreement and NOT an irredeemabely unenforceable credit agreement.

Furthermore, if there was/is an unresolved dispute about the account, the processing of data would be inaccurate and meaningless in relation to the individuals creditworthiness;

the first principle of the DPA, is that information must be accurate.

 

"Personal data shall be accurate and, where necessary, kept up to date."

[Redfish]

Though I am equally horrified at the McGuffick and Walker judgements, I do think we need to be level headed in considering what this means to all of us.

 

On one side yes, it would be good to have these turned over on appeal. But on the other side, we have to be realistic in the meantime, these judgements have now set precedents that affect us now, and we need to be clear about them, not just rubbish them or deny their force - we need to consider our own actions in the light of these judgements existing and then play to our strengths.

 

I hope on CAG we might get more clarity about what this means to us as consumers, so we are clear what we can now argue and what we would find hard to argue. This is the discussion I want to have on these threads, so we get down to the fine detail, and see things for what they are, with all the pros and cons.

 

For me, though the McGuffick case was an awful test case (the solicitor who decided to take such a weak case to a higher court should be shot), we have to acknowledge the damage the judgement has done to cases that don't contain the same weaknesses as the McGuffick case.

 

The judgement has given the banks confidence (with a precedent argument) that they can continue to chase debts from both enforceable and unenforceable agreements - though the case concerned was based on an enforceable agreement which was only temporarily unenforceable, not irredeemably unenforceable. Even though the judge said he was not making decisions for wider circumstances, the manner of his arguments on decision showed he had in fact made decisions that would effect wider circumstances (i.e. for circumstances where an agreement could have been irredeemably unenforceable). This is my understanding on reading through the judgement - though I would dearly like it to be otherwise.

 

The judge in the McGuffick case decided that a debt still exists even if the agreement was unenforceable. Meaning that the consumer could decide to repay the debt, but the banks could not unilaterally enforce that repayment.

 

The judge made the decision that there is a difference between 'enforcement' and requesting payment - he decided that banks could continue to request payment, through demands, threats of legal action, and legal proceedings. They can do everything but enforce (which I presume means they cannot simply take your property off you or take the money out of your bank account).

 

This specific aspect of his decision clearly does not distinguish the case of a debt relating to an enforceable agreement from a debt relating to an unenforceable agreement. It only defines what he believes amounts to 'enforcement'. He did not qualify at the time of his interpretation that his particular interpretation of 'enforcement' related purely to temporarily unenforceable agreements. He made the argument that taking a case to court could not be described as enforcement, it was simply taking action 'with a view to enforcement', and therefore all other actions leading up to taking a case to court, such as reminder letters or letters giving notice of legal action, could also not be considered as 'enforcement'. For me, this decision was stated in a way that showed it was a distinction that could equally be applied to unenforceable as well as enforceable agreements.

 

We have to be clear what that decision means and what it does not. My understanding is that it means the banks are entitled to inundate us with letters and phone calls demanding payment, and we can't do anything about it because it is not considered 'enforcement'. But on the other hand we can also happily choose to ignore them, because these letters and phone calls are just hot air, the banks cannot 'enforce' anything. The decision did not undermine the unenforceability of an unenforceable agreement - it just gave the banks the free hand to send pointless letters and make pointless phone calls.

 

The judge in the McGuffick case also fell for the argument that a bank could and should notify a credit reference agency about the non payment of the debt (whether it relates to an enforceable or unenforceable agreement). His decision centred on a very powerful topical argument that has no relation to the nature of enforceable or unenforceable agreements. The issue was that the banks have been accused of being irresponsible lenders by lending to people unable to pay, so the banks lawyers cleverly turned that argument to their favour by claiming the CRAs act as a means for responsible lending - i.e. all banks should have access to information to determine whether people are able to pay, so all banks should be reporting non paid debts to the CRAs so that other banks can use that information to lend responsibly. We have to acknowledge that his decision shows how the CRAs have now been conceptually 'rebranded' as a force for good in the economic world. Yes, it is because the banks are powerful, they have all the PR agencies, the rebranding media agencies, etc on their side. What do we have on our side? We have the knowledge that the CRAs are in practice used as a threat to blackmail people into payment. In the McGuffick case very little evidence, if any, was brought to show the blackmailing aspect of the CRAs to counter the concept of responsible lending.

 

This is where we should be playing to our strengths. The banks may be clever now and try and word their letters to hide the blackmailing intention of reporting to the CRAs. But some of them will inevitably slip when they get too cocky, because their real intention actually is to blackmail a consumer in this way. A good barrister, with the right evidence, should be able to argue blackmail, even with the existence of this precedent case, and especially because a case could be made the judge did not have the full evidence and arguments in front of him to make an enduring decision.

 

In any case the consumer should also be making the CRAs record the consumer's response next to any entry, to show the bank's practices to be unlawful, by highlighting the bank's breach of CCA legislation. For collective consumer revenge we should try to turn this in our favour somehow - maybe by seeing if we can get statistics on the banks who have these adverse entries against their names.

 

We know the banks are afraid of taking cases to court in case they lose and that will set a precedent for more cases being brought against them. Then we should make banks also become afraid of reporting to CRAs, for example, if MBNA rises higher in the statistics of banks who write unlawful agreements then that could also attract more consumers with MBNA agreements challenging them. So far the CRAs have been acting like some secret society and only the Data Protection Act has made it possible to open up some of its secrecy to scrutiny. We should use collective power to make data on the irresponsibility of banks publicly available.

 

Now off my soapbox...let's talk about the Walker case.

 

What was the actual concrete argument here? We had a very strong barrister for the consumer on this case, and it's not that the judges were 'cloudy' or confused by CCA legislation - they were very precise and they were given the best arguments to consider in support of the consumer.

 

The essence of their argument was on the meaning of 'credit'. And the crowning argument, in my view, was that if you could have such a thing as 'interest-free credit', then credit doesn't necessarily mean an amount which attracts interest - credit simply means an amount that can be repaid at a later date. I'm afraid I can't argue with that and I can see why even with the best barrister in the world it would be hard to argue with that. As a nation, we all have accepted the notion of 'interest-free credit', we all understand what it means. So the argument is pretty strong. And because the banks saw how they could use that argument, they could demolish the case which focused on whether one could add interest to a charge for the credit without that charge then being transformed into another role as 'credit'.

 

But how much damage has that case done? Well it may have affected a few cases, I'm not sure, but judging from postings in CAG I don't think there are thousands of cases where the charge for credit attracts interest and is lumped together in the total.

 

The judgement has not damaged the overarching argument that an agreement will be unenforceable if it does not contain all the prescribed terms, or if the prescribed terms are mis-stated. It only limits the way one of the prescribed terms can be considered mis-stated. But similarly it may open the way to more ways the prescribed terms could be considered missing or mis-stated.

 

For one possibility, the judgement contributes to the growing body of opinion that the word 'credit' is becoming more and more essential as a label for the prescribed term of 'amount of credit'. Without the word 'credit' used to identify that term, the term itself could be considered missing.

 

Anyway, I'm really hoping we can have an in depth discussion on what these test cases mean, and how we can steer ourselves in relation to them. I would be really happy for anyone to contradict me on anything I have said if they can argue with the substance of it, because we'll only get more clarity if we do argue this out.

Edited November 15, 2009 by Redfish

[Baggio]

Though I am equally horrified at the McGuffick and Walker judgements, I do think we need to be level headed in considering what this means to all of us.

 

On one side yes, it would be good to have these turned over on appeal. But on the other side, we have to be realistic in the meantime, these judgements have now set precedents that affect us now, and we need to be clear about them, not just rubbish them or deny their force - we need to consider our own actions in the light of these judgements existing and then play to our strengths.

 

I hope on CAG we might get more clarity about what this means to us as consumers, so we are clear what we can now argue and what we would find hard to argue. This is the discussion I want to have on these threads, so we get down to the fine detail, and see things for what they are, with all the pros and cons.

 

For me, though the McGuffick case was an awful test case (the solicitor who decided to take such a weak case to a higher court should be shot), we have to acknowledge the damage the judgement has done to cases that don't contain the same weaknesses as the McGuffick case.

 

The judgement has given the banks confidence (with a precedent argument) that they can continue to chase debts from both enforceable and unenforceable agreements - though the case concerned was based on an enforceable agreement which was only temporarily unenforceable, not irredeemably unenforceable. Even though the judge said he was not making decisions for wider circumstances, the manner of his arguments on decision showed he had in fact made decisions that would effect wider circumstances (i.e. for circumstances where an agreement could have been irredeemably unenforceable). This is my understanding on reading through the judgement - though I would dearly like it to be otherwise.

 

The judge in the McGuffick case decided that a debt still exists even if the agreement was unenforceable. Meaning that the consumer could decide to repay the debt, but the banks could not unilaterally enforce that repayment.

 

The judge made the decision that there is a difference between 'enforcement' and requesting payment - he decided that banks could continue to request payment, through demands, threats of legal action, and legal proceedings. They can do everything but enforce (which I presume means they cannot simply take your property off you or take the money out of your bank account).

 

This specific aspect of his decision clearly does not distinguish the case of a debt relating to an enforceable agreement from a debt relating to an unenforceable agreement. It only defines what he believes amounts to 'enforcement'. He did not qualify at the time of his interpretation that his particular interpretation of 'enforcement' related purely to temporarily unenforceable agreements. He made the argument that taking a case to court could not be described as enforcement, it was simply taking action 'with a view to enforcement', and therefore all other actions leading up to taking a case to court, such as reminder letters or letters giving notice of legal action, could also not be considered as 'enforcement'. For me, this decision was stated in a way that showed it was a distinction that could equally be applied to unenforceable as well as enforceable agreements.

 

We have to be clear what that decision means and what it does not. My understanding is that it means the banks are entitled to inundate us with letters and phone calls demanding payment, and we can't do anything about it because it is not considered 'enforcement'. But on the other hand we can also happily choose to ignore them, because these letters and phone calls are just hot air, the banks cannot 'enforce' anything. The decision did not undermine the unenforceability of an unenforceable agreement - it just gave the banks the free hand to send pointless letters and make pointless phone calls.

 

The judge in the McGuffick case also fell for the argument that a bank could and should notify a credit reference agency about the non payment of the debt (whether it relates to an enforceable or unenforceable agreement). His decision centred on a very powerful topical argument that has no relation to the nature of enforceable or unenforceable agreements. The issue was that the banks have been accused of being irresponsible lenders by lending to people unable to pay, so the banks lawyers cleverly turned that argument to their favour by claiming the CRAs act as a means for responsible lending - i.e. all banks should have access to information to determine whether people are able to pay, so all banks should be reporting non paid debts to the CRAs so that other banks can use that information to lend responsibly. We have to acknowledge that his decision shows how the CRAs have now been conceptually 'rebranded' as a force for good in the economic world. Yes, it is because the banks are powerful, they have all the PR agencies, the rebranding media agencies, etc on their side. What do we have on our side? We have the knowledge that the CRAs are in practice used as a threat to blackmail people into payment. In the McGuffick case very little evidence, if any, was brought to show the blackmailing aspect of the CRAs to counter the concept of responsible lending.

 

This is where we should be playing to our strengths. The banks may be clever now and try and word their letters to hide the blackmailing intention of reporting to the CRAs. But some of them will inevitably slip when they get too cocky, because their real intention actually is to blackmail a consumer in this way. A good barrister, with the right evidence, should be able to argue blackmail, even with the existence of this precedent case, and especially because a case could be made the judge did not have the full evidence and arguments in front of him to make an enduring decision.

 

In any case the consumer should also be making the CRAs record the consumer's response next to any entry, to show the bank's practices to be unlawful, by highlighting the bank's breach of CCA legislation. For collective consumer revenge we should try to turn this in our favour somehow - maybe by seeing if we can get statistics on the banks who have these adverse entries against their names.

 

We know the banks are afraid of taking cases to court in case they lose and that will set a precedent for more cases being brought against them. Then we should make banks also become afraid of reporting to CRAs, for example, if MBNA rises higher in the statistics of banks who write unlawful agreements then that could also attract more consumers with MBNA agreements challenging them. So far the CRAs have been acting like some secret society and only the Data Protection Act has made it possible to open up some of its secrecy to scrutiny. We should use collective power to make data on the irresponsibility of banks publicly available.

 

Now off my soapbox...let's talk about the Walker case.

 

What was the actual concrete argument here? We had a very strong barrister for the consumer on this case, and it's not that the judges were 'cloudy' or confused by CCA legislation - they were very precise and they were given the best arguments to consider in support of the consumer.

 

The essence of their argument was on the meaning of 'credit'. And the crowning argument, in my view, was that if you could have such a thing as 'interest-free credit', then credit doesn't necessarily mean an amount which attracts interest - credit simply means an amount that can be repaid at a later date. I'm afraid I can't argue with that and I can see why even with the best barrister in the world it would be hard to argue with that. As a nation, we all have accepted the notion of 'interest-free credit', we all understand what it means. So the argument is pretty strong. And because the banks saw how they could use that argument, they could demolish the case which focused on whether one could add interest to a charge for the credit without that charge then being transformed into another role as 'credit'.

 

But how much damage has that case done? Well it may have affected a few cases, I'm not sure, but judging from postings in CAG I don't think there are thousands of cases where the charge for credit attracts interest and is lumped together in the total.

 

The judgement has not damaged the overarching argument that an agreement will be unenforceable if it does not contain all the prescribed terms, or if the prescribed terms are mis-stated. It only limits the way one of the prescribed terms can be considered mis-stated. But similarly it may open the way to more ways the prescribed terms could be considered missing or mis-stated.

 

For one possibility, the judgement contributes to the growing body of opinion that the word 'credit' is becoming more and more essential as a label for the prescribed term of 'amount of credit'. Without the word 'credit' used to identify that term, the term itself could be considered missing.

 

Anyway, I'm really hoping we can have an in depth discussion on what these test cases mean, and how we can steer ourselves in relation to them. I would be really happy for anyone to contradict me on anything I have said if they can argue with the substance of it, because we'll only get more clarity if we do argue this out.

 

Neither were test cases, and neither have set precedent, the judge in the mcduff case clearly stated as much in the case notes.

 

You are either a devious solictor on the crooks side or a totally misinformed ingonrant person pretending to know what he is talking about.

 

Either way, please do more research before you come on here trying to fool joe public.

 

It rarely works these days, hope this helps.

[angry cat]

I must confess that I am inclined to agree with your view, Baggio.

 

In any event, they will not be able to quote McGuffick as a precedent, until after the appeal!

 

by: PT2537:

 

"...the first case is now being appealled that being McGuffick, which incidently was the most awful case for a test case

 

the second was the Heath which Bradley Say did not consider had much prospect of success, again probably not the best case

 

and thirdly the Walker case, well, hardly a huge victory for the Banks" [End Quote]

Edited November 16, 2009 by angry cat
addition

[Docman]

Baggo, AC,

 

Everyone is entitled to their own opinion, so I do not think it is correct to tarnish the poster in this way.

 

The Banks and DCAs ARE using the cases as precedents, regardless of what the judge actually said. Whilst I have to take issue with some of the comments that Redfish makes, I do agree with him that we should discuss the cases. That way we can come up with a way of countering wrong statements made in county courts by slippery lawyers who should know better.

 

Can we start by an examination of the main points of interest in McGuffick?

[kel123]

I can say for sure that Mcguffick is being used, happily my DJ (bless him) accepted that it was only about S78 but made no comment about the definition of enforcement so I took it that he accepted this!

[angry cat]

I can say for sure that Mcguffick is being used, happily my DJ (bless him) accepted that it was only about S78 but made no comment about the definition of enforcement so I took it that he accepted this!

 

Clearly, not the hanging judge then Kel!

[kel123]

All I can say is that he didn't like me (probably not) putting forward an arguement based on legislation or presedances and particularly when it contradicted anything the tother side said - young council still sh!tting yellow.

 

Actually I did look for a piece of black cloth! LOBL. But seriously what should and shouldn't be is irrelevant - it is happening and all need to be aware of how to fight it!

[Redfish]

Baggio,

 

I think your post is very personally offensive, totally uncalled for.

 

We MUST have a discussion about these cases if we are to learn how to defend ourselves against the banks, whether you think they are test cases or not, enough people do because they are posting about them on CAG as such - I only know about the cases because they are posted on CAG, so its CAGGers who are calling these test cases.

 

If you think that to ask for a proper discussion is traiterous then more fool you.

 

And just for the record I am a 'she' not a 'he'.

Edited November 16, 2009 by Redfish

[kel123]

I have read what Ms Redfish has said a few times and in general I agree with her, Ok perhaps you could argue about the general tone of acceptance but not about the majority of the content.

 

Any one of us could be a spy, all I can be sure of is; that i'm not, but most of you cannot know for sure of me! (there may be a few others that have seen my personal details, so they know i'm not)

 

So what should we do, squobble or work out straturgies to fight. Yes it's out in the open buts thats the game and we will always be one step behind the banks, lets face it they've had alot more time and practice than we have.

 

I've tried to start it with my thread about [problem]'s miss-use of S98 and the default notice so as the next LIP is aware and knows how to come back at it

[angry cat]

Some fish swim in too many tanks...

[kel123]

AC i'm usually the criptic one - please explain

[B3rty]

You are either a devious solictor on the crooks side or a totally misinformed ingonrant person pretending to know what he is talking about.

 

Either way, please do more research before you come on here trying to fool joe public.

 

Thats just plain rude...I thought it was very well written and at least she can spell...lol

[pedross]

I think the post by Redfish is worthy of consideration.

 

However, in my opinion, we should take note of any thoughts on the cases in question and be prepared to have the answers ready if we come across them in court.

 

Starting with the McGuffick case, I do not believe anything has changed. The ruthless lenders have always taken any enforcemant action they choose such as reporting to CRA's, sending dubious letters or phoning 10 times a day. They can still take court action if they choose and they will still not win the unenforceable ones.

 

With regards to Walker, I think Redfish has missed the point. The question of what is credit and what is a charge for credit is a basic question.

 

The Judges were wrong on this occassion but I do not see many people on this site who are using the argument in court.

 

So we carry on as normal but keep our wits about us. When we finally get the right decisions how much will the lenders who think they can do as they wish have to pay out in compensation.

 

All things come to he (or she) who waits - even justice.

 

Pedross

[citizenB]

People, please keep it civil. Now play nicely or I will get CAGbot out of bed.

 

And.. for the record, I do NOT want any he/she said posts popping up.

 

Just remember, most people wouldnt say in person what they write in a post. Think first, hit submit second. OK ?