Claim Stayed – Due to Unenforceable CCA Test Cases.

[saddler68]

Dont know if this link has been posted. apologies if it has.

 

PR Fire | Financial >> Landmark Consumer Victory in High Court Test Cases

Good stuff there from Cartel. Even though Cartel got ripped to bits in Manchester it seems like they are getting some really good publicity. I was gutted with the Waksman ruling initially but Im now most positive about it. I dont see a way out of this one for the banks.

[Baggio]

Good stuff there from Cartel. Even though Cartel got ripped to bits in Manchester it seems like they are getting some really good publicity. I was gutted with the Waksman ruling initially but Im now most positive about it. I dont see a way out of this one for the banks.

 

this ruling totally epitomises the whole industry... especially the intial negativity from some, followed by eternal jubilation.

 

bottom line, unless they repeal the act.. there will never be a way out for them.... granted there will be a level of mitigation for them, but on a very small scale.

 

the grand scale victories for them come from conning joe public with spin.

[nick20045]

 

 

 

Are there any honest professional people left in the Western Democracies?

 

oilyrag.

Well I am professional being a qualified electrican by trade but nope cannot say 100% honest. IF I can make an easy few quid do you think I am going not to? :D:D

[paulwlton]

Has anyone got a link to the case law (referred to in Waxmans judgment) that the bank's seem to be relying on in relation to the "true copy" argument?

 

PW

[Baggio]

Has anyone got a link to the case law (referred to in Waxmans judgment) that the bank's seem to be relying on in relation to the "true copy" argument?

 

PW

 

can you cite the case?

[paulwlton]

can you cite the case?

 

Burchell v Thompson

[Josie8]

Burchell v Thompson

 

 

Its not online as its an old case.

[pedross]

The manchester cases only concerned responses to s77-79 requests and have no impact whatsoever on the requirement to produce original agreements in court. A copy, i.e. photocopy or microfiche, might be acceptable in court if the original has been lost, but a reconstituted one will never be acceptable if the consumer knows enough to challenge it - or even ask that the agreement be produced in the first place.

 

Thanks RMW

 

I realise that and thanks for pointing it out. I meant to type 'copy documents' so is a copy acceptable in court if the original has been deliberately destroyed?

 

For example: there are many instances on threads where only the front of the agreement has been provided and the lender is relying on standard T & C. which would have been overleaf or attached, as the original has been destroyed.

 

I realise that a S77/78 request can still be satisfied but I cannot find any cases that have been won or lost in court on this argument. Is it a fact that not a single one has been tested in court.

[Baggio]

Burchell v Thompson

 

i have emailed a friend who may be able to help.

 

will keep you posted by PM

[Josie8]

i have emailed a friend who may be able to help.

 

will keep you posted by PM

 

 

The banks had to provide a copy of the case for the trial to all parties so I'm sure that Baggio with his legal connections will be aqble to provide it.

[paulwlton]

i have emailed a friend who may be able to help.

 

will keep you posted by PM

 

Appreciated.

[angry cat]

Consumer Credit Act Guidance

Law News

Written by David Swarbrick

Much has been made by claims companies of the ability to avoid liability under loans where for example a bank has been unable to locate and supply a copy of the agreement. This apparent breach of the Consumer Credit Act has received much judicial consideration, and as a threat to lenders, its teeth have been drawn. A new and significant decision is Carey v HSBC Bank plc, Yunis v Barclays Bank plc and similar - QBD - 23-Dec-09 - Wakeman J - Banking - Consumer

The court considered the effects in detail where a bank was unable to comply with a request under section 78 of the 1974 Act to provide a copy of the agreement signed by the client. Held: The court set out to give guidance on these issues. A photocopy of the signed document was not required, and a reconstruction would do, though as matter of good practice and so as not to mislead the debtor it is clearly desirable that the creditor should explain that it is providing a reconstituted as opposed to a physical copy of the executed agreement. The document produced need not be in a condition such that if it were signed it would be satisfy the requirements for regulation. What mattered was that it provided what was needed clearly and without misleading the debtor. Also, regulation 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.

Consumer Credit Act 1974 s. 61 s. 78 s. 189

The Consumer Credit (Agreements) Regulations 1983

The Consumer Credit (Cancellation Notices and Copies of Documents) Regulations 1983

Cases Cited: In re Hewer 01-Jan-82; Wilson and others -v- Secretary of State for Trade and Industry; Wilson -v- First County Trust Ltd (No 2) HL 10-Jul-03; Dimond -v- Lovell HL 12-May-00; Burchell v Thompson CA 01-Jan-20; Barras -v- Aberdeen Steam Trawling & Fishing Co HL 17-Mar-33; Lloyds Bank v Mitchell CC 13-Sep-09; Huntpast v Leadbetter 01-Jan-93; McGinn -v- Grangewood Securities Ltd CA 23-Apr-02; Al Tamimi v Khodari CA 08-Oct-09; McGuffick v The Royal Bank of Scotland Plc ComC 06-Oct-09; Khodari -v- Al Tamimi QBD 18-Dec-08; [2009] EWHC 3417 (QB)

23-Dec-09 Judiciary http://www.judiciary.gov.uk/docs/judgments_guidance/judgment-carey-v-hsbc.pdf

[angry cat]

Aplogies for the above; posted the wrong link!

 

PW, maybe, this link will assist you?

UK and European law reports - lawindexpro

[angry cat]

Its not online as its an old case.

 

Burchell v Thompson [1920]

 

As Josie stated; not on-line.

[nick20045]

Has anyone got a link to the case law (referred to in Waxmans judgment) that the bank's seem to be relying on in relation to the "true copy" argument?

 

PW

Think you can get the general idea from this thread. Mainly post 7 is of interest. Also post 17 and post 20. (In respect of post 17 may I add a ":D")

http://www.consumeractiongroup.co.uk/forum/general/227605-guidance-cca-templates-esp.html

[ruinedbynatwest]

Brilliant stuff, Mystery1 !

This is what we need - properly and objectively researched material that goes to the root of the policies behind the CCA. I have to restrict my input (to comply with the overriding requirement for objectivity) to that of which I have first hand knowledge or that which I may repeat on oath as 'kosher'. I'm still outraged that the Court entertains these discussions about recreating CCA Agreements where the CCA is itself clear - the problem is that the secondary legislation has really complicated the issue, as Mr Bennion opines because the drafter did not understand the CCA itself.

Clear records have to be kept for a multitude of reasons including the moneylaundering concerns you illustrate here.How can the Courts overlook "best possible practice" and the tort issues that eg Nick20054 raises ? How many other businesses may recreate records to suit their own purposes - as we saw with PaulW's case - well done, Paul!

 

Why on Earth do the courts not refer back to Lord Crowther when determining all of these CCA issues ? Why does the Common Law still presume a position of authoritative dominance in determining the CCA when Lord Crowther (and Bennion) make plain that the common law into consumer credit was repealed by the CCA - meaning that once we see terms that are caught by Section 8 (Regulated Agreements) - and we have a regulated agreement on our hands - thereinafter only statutory tests (those found in the CCA) are to be applied by the Courts - including the transfer of the case to the County Court under S 141 (Jurisdiction) - cases commenced and heard and determined in the High Court are 'improperly brought' as defined by Section 141(2) and therefore unlawful - why does nobody challenge the Common Law Courts under Jurisdiction (S 141) ?

John Story

www.ruinedbynatwest.com

Edited January 11, 2010 by ruinedbynatwest
typos

[reallymadwoman]

Thanks RMW

 

I realise that and thanks for pointing it out. I meant to type 'copy documents' so is a copy acceptable in court if the original has been deliberately destroyed?

 

For example: there are many instances on threads where only the front of the agreement has been provided and the lender is relying on standard T & C. which would have been overleaf or attached, as the original has been destroyed.

 

I realise that a S77/78 request can still be satisfied but I cannot find any cases that have been won or lost in court on this argument. Is it a fact that not a single one has been tested in court.

 

Technically in court the creditor would have to produce the original agreement. I say technically because, for various reasons, the judge might allow a copy. One such reason might be that it's on the small claims track and the strict rules of evidence don't apply, another reason might be that the creditor's legal team persuade the judge that it's reasonable for them only to provide a copy.

So far as I know, this has yet to be actually tested in court but there are a couple of threads on this forum where creditors have been ordered to produce the original. I don't think any of them have got to the final hearing yet though.

[ruinedbynatwest]

Thanks Angrycat (Top Cat !)

I have now read the full (!!!) Judgment from HHJ Waksman QC. It's quite clear that he addresses the S 78 position only within that Judgment. He talks of ancilliary claims as to unenforceability as "speculative" and possible "abuses of process" only because the creditor has not sought to enforce a regulated agreement - he makes it plain that the duty to provide a properly excuted agreement to enable enforcement remains. Well, that's how I read him !!

 

You see, we had no written agreements at all in Story that contained the terms of the regulated agreements that feature (£12k),yet the bank effectively sought and was granted enforcement of an IEA in relation to (at least) the 3 regulated agreements that were refinanced verbally in Story many, many times over before Mr Jackson was moved from the branch and his policies (to not document regulated agreements) emerged (and the bank started threatening all his clients).

 

Thanks again for the material ! It was very helpful indeed !

 

I am to take it up with the Court of Appeal (again)

John Story

www.ruinedbynatwest.com

Edited January 11, 2010 by ruinedbynatwest
typos

[pedross]

Thanks again RMW

 

It would appear that I am correct in thinking that it has never been tested. I have been following several threads, one is by Humbleman vs HFC and the case is in court tomorrow. I think it is fast track and they do not have an original or an exact copy of the full agreement.

[Baggio]

Thanks again RMW

 

It would appear that I am correct in thinking that it has never been tested. I have been following several threads, one is by Humbleman vs HFC and the case is in court tomorrow. I think it is fast track and they do not have an original or an exact copy of the full agreement.

 

interesting, do we think they turn up and settle before the hearing?

 

keep us posted, pedross

[egg-sterminator]

Has anyone got a link to the case law (referred to in Waxmans judgment) that the bank's seem to be relying on in relation to the "true copy" argument?

 

PW

Well done and some PW, this thread may interest you "mbna application form " professorgbr they sent him a mock up . This was in a pre action request a cpr31.16 or something similar from his solicitors who dropped the case on the basis of an affidafit claiming what they supplied was as the original they had also raised rates by a factor of 4 . Like you John he had the original we were waiting on advice from his solicitor who does not seem keen to pursue ? We were intending to complain to OFT, SRA and maybe others .

[Baggio]

Well done and some PW, this thread may interest you "mbna application form " professorgbr they sent him a mock up . This was in a pre action request a cpr31.16 or something similar from his solicitors who dropped the case on the basis of an affidafit claiming what they supplied was as the original they had also raised rates by a factor of 4 . Like you John he had the original we were waiting on advice from his solicitor who does not seem keen to pursue ? We were intending to complain to OFT, SRA and maybe others .

 

can you name and shame the solictiors involved?

[pedross]

interesting, do we think they turn up and settle before the hearing?

 

keep us posted, pedross

 

I thought so but I was wrong - the claimant turned up with the wrong T & C and won, its unbelievable. You will find the thread in new posts.

 

humbleman needs help Baggio if you have any ideas.

[seriously fed up]

I thought so but I was wrong - the claimant turned up with the wrong T & C and won, its unbelievable. You will find the thread in new posts.

 

humbleman needs help Baggio if you have any ideas.

 

Quite Pedross. Some have been arguing that OCs can turn up with any old nonsense and the courts will enforce it. We have been saying "of course not - rules of evidence apply". Not in this case :-x:mad:

[RoadToRecovery]

Quite Pedross. Some have been arguing that OCs can turn up with any old nonsense and the courts will enforce it. We have been saying "of course not - rules of evidence apply". Not in this case :-x:mad:

 

The humbleman case makes the whole of this and every other thread on the site meaningless.

 

If a judge can pass judgement on the 'balance of probabilities' what hope is there for any of us?

 

I am shocked and appalled that we live in a supposed democracy and this type of activity goes on inside a court room.

 

I find it hard to believe this can happen, it beggars belief.