Me v Tesco/Incasso - Appeal in process

[costa12]

Here is the basis of my skeleton argument which has to be filed next Monday (25th) at the latest. I will amend accordingly when the judgment transcript arrives.

 

APPLICATION FOR DEFENCE TO BE STRUCK OUT AND SUMMARY JUDGMENT ENTERED

1. Notwithstanding that this matter was in respect of an application for the Defence to be struck out and summary judgment entered, the Judge fell into the error of regarding himself as being under a duty and upon the evidence before him, to resolve the issue as to whether the default notice contained the terms prescribed by statute - as opposed to examining the evidence for the more limited purpose as to whether the prospects of a successful Defence were realistic rather than fanciful.

 

2. The test under CPR 24.2 is whether the prospects of success is realistic rather than fanciful; the court should consider the evidence which can reasonably be expected to be available at trial - or the lack of it: Royal Brompton Hospital NHS Trust v Hammond [2001] EWCA Civ 550;

 

3. The duty of a judge hearing such an application is to assess the prospects of success of the relevant party, the criterion being not one of probability but the absence of reality: Three Rivers District Council v Bank of England (No.3) [2001] UKHL 16 per Lord Hope.

BACKGROUND

4. At a hearing, on XX XXXXXXX 2010, District Judge XXXXXX, on hearing the Claimant’s argument, decided that the combined meaning of CCA 1974 s176/189 gave a contrary meaning to the words ‘properly served’ and therefore s.7 of the Interpretation Act 1978 did not apply in this case. District Judge XXXXXX concluded that the effective ‘date of service’ was when the Default Notice was put into the post. Therefore the Default Notice, issued by the Claimant, gave sufficient time for the breach to be remedied and therefore the Default Notice was valid. The Appellant believes this to be a wrong decision and that the defence should not of been struck out and summary judgment entered for the Claimant.

5. Under CPR 3.4(2)(a) the court may on application strike out a defence if it discloses no reasonable grounds for defending the claim and enter judgment.

6. An effective Default Notice is required by s 87(1) of the Consumer Credit Act 1974 (the Act) before the credit agreement can be terminated or enforced. By s.88(1) of the Act the Default Notice must give the date by which the default can be remedied. And, by s.88(2) of the Act [as amended by s14(1) of the Consumer Credit Act 2006 as from 1 October 2006] that date must not be less than 14 days after the date of service of the Default Notice. The 14 day period was also required by paragraph 3© of Schedule 2 of the Enforcement Regulations (as amended).

7. A document dated XX XXXXXXX 2009 which purported to be a Default Notice under s.87(1) of the Act was posted to the Appellant by the Respondent. It is inferred that it was posted on XX XXXXXXXX 2009.

8. By s.7 of the Interpretation Act 1978, unless the contrary is proved, a posted document is deemed to have been served at the time when it would be delivered in the ordinary course of post. The provision of sub-s (2) governs the efficacy of posted notices served under this Act except where it is excluded as in CCA 1974, s 69(7).

9. Where the CCA 1974 intends service to occur at the point of sending it explicitly says so, which it does not in the case of s.87 Default Notices. If the combined definition of 'properly served' from s.176/189 of the Act gave a contrary term which meant that service by post occurred on posting there would be no need for this specific exception. Parliament is presumed not to include unnecessary words in statutes, therefore the conclusion must be that these words are included in this section because the normal deeming of service must be something else i.e. the Interpretation Act s7.

10. In calculating the minimum period specified by section 88 sub-s(2) of the Act, '14 days' means 14 clear days, excluding the day on which the notice was served and the day on which the creditor proposes to take the steps specified in the notice.

The date given in the default notice by which the default could be remedied was ‘before XXth XXXXXXX 2009’, which was less than the 14 days required.

CONCLUSION

11. Accordingly the decision made by District Judge XXXXXX is wrong, in that the combined meaning of CCA 1974 s.176/189 does not give a contrary intention with regard to the meaning of ‘properly served’. By s.7 of the Interpretation Act 1978, unless the contrary is proved, a posted document is deemed to have been served at the time when it would be delivered in the ordinary course of post. The Default Notice, issued on XX XXXXXXXX 2009, was defective, in that it did not allow the prescribed 14 clear days required to remedy the breach, and therefore the Claimant is unable to enforce or terminate the credit agreement.

 

All input/feedback much appreciated.

 

Costa

[costa12]

Hi All,

 

Received order from Circuit Judge today - permission to appeal REFUSED. He said that the DJ was correct in his decision that s.7 Interpretation Act 1978 does not overide the combined meaning of s.176/189 of the CCA.

 

So from this ladies and gents we can now presume that a default notice is served when it is put in the post. NOT WHEN YOU RECEIVE IT.

 

I will post the Circuit Judge's full comments later. Just fuming at the moment !

 

Costa

[cymruambyth]

Costa, sorry to hear that. It does seem that 'guidance' is being given on how consumer credit cases shoud be viewed.

 

Bet there are going to be some very busy ocs and dcas.

[gh2008]

this is just soooo wrong.

 

Someone better tell Professor Goode that his authoritative work is wrong as well ......

 

What's the score now then? have you had time to ask what to do?

[costa12]

Got 7 days to ask for a hearing to put my case for permission to be granted. So that is one option. Will pm my others gh!!!!!

[costa12]

Order is as follows:

 

Ground for refusal: an appeal would not have a reasonable prospect of success and there is no other compelling reason why an appeal should be heard.

 

Reason (s) for refusal: The issue for determination essentially rested on a legal interpretation of the effects of the Interpretation Act 1978 and whether the definition of 'service', in the context of a default notice, overrode the application of the strict provsion of section 176 and 189 of the CCA 1974 as amended. The district judge was correct not to permit the 1978 Act to override the clear statutory provision in the 1974 Act. On a review of his decision, there are no grounds to interfere.

 

 

There it is one and all. So now I hope this does not allow them all to jump on the 'bandwagon'. The way I see it is if they serve you with a default notice on Christmas Eve, it does not matter how many days it takes for you to get it. If it gives you 14 days to remedy then the clock starts ticking from when they put it in the post on Christmas Eve!!!!!!!

 

Costa

Edited October 21, 2010 by costa12

[gh2008]

I will stick my neck out and say that I think there is a confusion between being properly served and the date of service.

 

S176 http://www.statutelaw.gov.uk/content.aspx?LegType=All+Primary&Year=1974&searchEnacted=0&extentMatchOnly=0&confersPower=0&blanketAmendment=0&sortAlpha=0&TYPE=QS&PageNumber=1&NavFrom=0&parentActiveTextDocId=436428&ActiveTextDocId=436651&filesize=7023

S189 http://www.statutelaw.gov.uk/content.aspx?LegType=All+Primary&Year=1974&searchEnacted=0&extentMatchOnly=0&confersPower=0&blanketAmendment=0&sortAlpha=0&TYPE=QS&PageNumber=1&NavFrom=0&parentActiveTextDocId=436428&ActiveTextDocId=436666&filesize=98746

[gh2008]

and I still say that the only mention of time in those sections is S176(5) which deals with the situation where the document is served on a person other than the debtor

[middenmess]

I will stick my neck out and say that I think there is a confusion between being properly served and the date of service.

 

S176 http://www.statutelaw.gov.uk/content.aspx?LegType=All+Primary&Year=1974&searchEnacted=0&extentMatchOnly=0&confersPower=0&blanketAmendment=0&sortAlpha=0&TYPE=QS&PageNumber=1&NavFrom=0&parentActiveTextDocId=436428&ActiveTextDocId=436651&filesize=7023

S189 http://www.statutelaw.gov.uk/content.aspx?LegType=All+Primary&Year=1974&searchEnacted=0&extentMatchOnly=0&confersPower=0&blanketAmendment=0&sortAlpha=0&TYPE=QS&PageNumber=1&NavFrom=0&parentActiveTextDocId=436428&ActiveTextDocId=436666&filesize=98746

 

So from the first link....

 

(3) For the purposes of this Act, a document sent by post to, or left at, the address last known to the server as the address of a person shall be treated as sent by post to, or left at, his proper address.

 

The time scale for such is then contained in...

 

With effect from 16 April 1985 the Practice Direction issued on 30 July 1968 is hereby revoked and the following is substituted therefore.

1). Under S7 of the Interpretation Act 1978 service by post is deemed to have been effected, unless the contrary has been proved, at the time when the letter would be delivered in the ordinary course of post.

2). To avoid uncertainty as to the date of service it will be taken (subject to proof to the contrary) that delivery in the ordinary course of post was effected:-

(a) in the case of first class mail, on the second working day after posting;

(b) in the case of second class mail, on the fourth working day after posting.

"Working days" are Monday to Friday, excluding any bank holiday.

3). Affidavits of service shall state whether the document was dispatched by first or second class mail. If this information is omitted it will be assumed that second class mail was used.

4). This direction is subject to the special provisions of RSC Order 10, rule 1(3) relating to the service of originating process.

 

8th March 1985

J R BICKFORD SMITH Senior Master

Queen's Bench Division

 

3. Further to point 2 above, CPR rules on service also state the required timescales to be given for serving of documents :-

 

Under CPR 6.26 First class post (or other service which provides for delivery on the next business day) is deemed to be "served" The second day after it was posted, left with, delivered to or collected by the relevant service provider provided that day is a business day.

 

 

So why do 2 judges disagree with this?

[costa12]

Here's another one MBNA v McCullagh:

 

The last point on the default notice is whether it included a date not less than 14 days after date of service. It required payment by 4 September 2008. The notice is dated the 20 August 2008. By s.7 of the Interpretation Act 1978 it is provided that “where an Act authorises or requires any document to be served by post then, unless the contrary intention appears, the service is deemed to be effected by properly addressing prepaying and posting a letter containing the document and unless the contrary is proved to have been effected at the time at which the letter that would be delivered in the ordinary course of post"

According to the Civil Procedural Rules 1998 the date of service is deemed to be two days after posting that is in this case the 22 August 2008. Whilst the CPR has no direct relevance here the parties have adopted that general rule for service. Therefore the deemed date of service would be the 22 August 2008. 14 days after that date takes us to the 5 September 2008. It is conceded that that would be one day too late and therefore fatal to the notice. However, I am satisfied from what the defendant wrote on the notice that he did receive the notice on 21 August 2008. Therefore the notice is just in time 14 days from 21 August being the 4 September.

[Rhia]

Hmm. This is clearly nuts. Isn't there some method whereby you can make an oral appeal directly to the High Court? I have heard ofg such actions but no idea how under what circumstances it can be done.

 

GH it is precisely this subtlety in the language which needs fully examining at the highest possible level.

 

Where will you go from here Costa?

[mark1arby]

Spent the evening reading all of this thread! Brilliant intervention from Caggers here! Absolutely Gobsmacked by the outcome!!! Totally Immoral!!! I hope someone eventually gets their come uppance for this tragedy!!!

 

So What Will WE DO From Here???

 

Good Luck and Best Wishes

 

MARK

[dad]

Costa,

 

It is quite common to be refused permission to appeal on paper and then be granted permission at the oral hearing (and even then succeed on appeal).

 

At the oral hearing you need to contrast the difference between sections 176 and 176a.

 

Under the judges version of the act you now have the absurd situation that if the default notice is served by email it is actually received almost instantaneously, but is expressly deemed by section 176a to be delivered the next day. However if the default notice is send by second class post it will not actually be received for up to four days but is deemed to be served when it is posted.

 

Also contrast with the words of section 69(7) where it explicitly says that service occurs on posting. If general service occurred on posting this exception would be unnecessary.

 

HTH

 

Dad

[sequenci]

Yet another lazy judge getting their facts wrong.

[Rhia]

I suspect deliberately Sequenci. I have been up against this sort of thing myself in the past. In my case the Judge actually said if I allow you this I will be inundated!

[middenmess]

Dad#813

However if the default notice is send by second class post it will not actually be received for up to four days but is deemed to be served when it is posted.

 

If posted with UKMail on a Friday it would be unlikely to be delivered until late the following week.

 

I received one from Halifax that arrived 12 days after the date on the D/N.

[DonkeyB]

Surely one issue is whether it is actually posted on the day it was printed. A company could hold on to a default notice for thirteen days then send it, so you’d be stuffed.

[costa12]

Hi All,

 

I was under the impression that the CCA 1974 was enacted to provide protection for the consumer when they were dealing with credit companies etc. This issue of service does not afford any protection to the consumer. Or am I being too cynical!

 

Costa

[car2403]

Yet another lazy judge getting their facts wrong.

 

Or had a golf appointment to run off to?

[Desperate Daniella]

subbing

[gh2008]

Hi DD

 

Costa's thread will seem very quiet I'm afraid as, for various reasons, the main discussion has had to be taken away from the glaring visibility of CAG

[Desperate Daniella]

Thank you, gh.

 

Ain' t that a shame?

 

I only heard of this thread today. Point taken.

 

I was not around too much in August when all this stuff was going on. What a pity.

 

DDxx

[RobinWayRobinme]

Hi Costa

 

Just read the posts sinc e I last contibuted (for some reason I didn't get any notifications via my email of new postings). Its correct what Dad has posted that many applications for permision are refused on paper. Mine was and I applied for a hearing. I got permission to appeal at hearing and won the appeal. Not sure of your timing to apply for an oral hearing.

R

[costa12]

Hi Robin,

 

I've requested an oral hearing. Filed the request within the 7 days that were allowed. Just waiting for the hearing date. Will let you know of any updates.

 

Costa

[gh2008]

Hi Costa

 

Just read the posts sinc e I last contibuted (for some reason I didn't get any notifications via my email of new postings). Its correct what Dad has posted that many applications for permision are refused on paper. Mine was and I applied for a hearing. I got permission to appeal at hearing and won the appeal. Not sure of your timing to apply for an oral hearing.

R

 

your pm inbox is full R