Dissecting the Manchester Test Case....

[vint1954]

Part I

Preliminary

1. Basic interpretative provisions.

— (1) In this Act, unless the context otherwise requires— “data” means information which—

(a) is being processed by means of equipment operating automatically in response to instructions given for that purpose,

(b) is recorded with the intention that it should be processed by means of such equipment,

(c) is recorded as part of a relevant filing system or with the intention that it should form part of a relevant filing system, F1 . . .

(d) does not fall within paragraph (a), (b) or © but forms part of an accessible record as defined by section 68; [F2 or

(e) is recorded information held by a public authority and does not fall within any of paragraphs (a) to (d);]

 

 

“data controller” means, subject to subsection (4), a person who (either alone or jointly or in common with other persons) determines the purposes for which and the manner in which any personal data are, or are to be, processed;

 

“data processor”, in relation to personal data, means any person (other than an employee of the data controller) who processes the data on behalf of the data controller;

 

“data subject” means an individual who is the subject of personal data;

 

“personal data” means data which relate to a living individual who can be identified—

[shakespeare62]

Yep. Seems to be that way.

To me, this judgement is saying, dont bother with s78, you wont get anywhere with it, so the only way is to stop paying (in the meantime ruining any credit rating you had, not that I care personally), and either let them take you to court, where they have to provide the agreement, or let it run the 6 years if they dont have anything.

 

Keeps a lot of cases out of court I suppose.

 

BF

 

Well ...if the DCA starts playing "Tricky Dickie" with your s78 request - the attached template can be useful (adapt as appropriate)

Template_CPR_Pre_Action_request.doc

[vint1954]

Well ...if the DCA starts playing "Tricky Dickie" with your s78 request - the attached template can be useful (adapt as appropriate)

They tend to ignore these until court stage. You obviously need to be prepared to take this all the way to court.

[shakespeare62]

They tend to ignore these until court stage. You obviously need to be prepared to take this all the way to court.

 

That may be so, but it has cost implications at the AQ stage - if they haven't co-operated with CPR Pre-Action Behaviour requirements.

 

DCA's & solicitors live for their costs.

Edited January 4, 2010 by shakespeare62
edited typo

[Basil Fawlty]

They tend to ignore these until court stage. You obviously need to be prepared to take this all the way to court.

 

 

Thats right, and you have the choice of taking them to court as a claimant, and this judgement is saying thats a waste of time, or waiting for them to take you to court whereby they have to provide the enforceable agreement.

Of course, if they dont have the enforceable agreement, they probably wont take you to court, whereby they will be allowed to still chase you with all the phone calls, threats and letters and being reported to the CRAs.

Simply, dont waste your time being the claimant, be the defendant.

 

BF

[shakespeare62]

Simply, dont waste your time being the claimant, be the defendant.

 

Agreed, but the CPR Pre-Action stuff is a tactic than can be deployed following a "failed" s77 - 79 request. "Costs" are a deterrent on a low life bottom feeder DCA. The template is quite clear that it is the DCA threatening court action.

 

At the end of the day - you are showing that you have attempted to resolve this matter outside of Court. There is no gain for them to be "coy" about whether they have an enforceable agreement or not. If they refuse to co-operate then arguably they have generated unnecessary Court Costs in bringing any claim.

Edited January 4, 2010 by shakespeare62

[Basil Fawlty]

Agreed, but the CPR Pre-Action stuff is a tactic than can be deployed following a "failed" s77 - 79 request. "Costs" are a deterrent on a low life bottom feeder DCA. The template is quite clear that it is the DCA threatening court action.

 

Thanks for that.... I'll be sending that template off as I havent received anything yet from the requests.

 

BF

[tamarindo]

This is very very worrying and I see where they are coming, basically

 

"if the signature page said had that the debtor agreed to be bound by the terms “overleaf” and the relevant terms were set out on the reverse." well dammmmmmmmmmmm

 

and even if the terms and conditions for the purpose of compliance are set out physically in other pages , and even if there is not reference, all consumer will lose their case or will they???

 

reading from

 

 

181. I should add that I was referred by Mrs Thompson to s189 (4) which defines the term “embody” and is set out in paragraph 7 above. I did not think that this assisted the analysis. “Embody” means contain or incorporate by reference. Terms other than Prescribed Terms may be (merely) incorporated by reference as opposed to contained in the executed agreement. In the assumed facts the relevant provisions were referred to on the signature page. But this did not prevent them from being “contained” within the document signed by the debtor. That is because they were not set out in “another document” referred to in the signed document. On the analysis above, the terms were not in “another document” at all but in the same document as the signature page. On the assumed facts they were as much contained in the signed document as if the signature page said had that the debtor agreed to be bound by the terms “overleaf” and the relevant terms were set out on the reverse.

 

 

so what Mr Goodie or PT threads said is irrelevant any comment please, very worried !!!!!!!

Edited January 4, 2010 by tamarindo

[the_shadow]

"You Spin me right round baby right round... like a record"

 

 

Crudit today's latest offering mentions the Manchester case....

Credit Today online

 

 

S.

[Docman]

"You Spin me right round baby right round... like a record"

 

 

Crudit today's latest offering mentions the Manchester case....

Credit Today online

 

 

S.

 

 

Crudit IMPLIES banks can ENFORCE debts without the executed agreement but it doesn't actually say so. I suggest that Crudits own lawyers have been through the original copy from the PR department.

 

The worry is that the 'runners' who appear for the banks and credit card companies in the county courts will do more than imply this when they are before a District Judge, especially one who isn't familiar with the Consumer Credit Act 1974.

[tamarindo]

So my following my post #158, are we fighting a losing battle!!!

 

so what Mr Goodie or PT threads said is irrelevant any comment please,

 

very worried !!!!!!!

 

Note: I thought terms and conditions can not be interspersed !!!

[Docman]

This is very very worrying and I see where they are coming, basically

 

"if the signature page said had that the debtor agreed to be bound by the terms “overleaf” and the relevant terms were set out on the reverse." well dammmmmmmmmmmm

 

and even if the terms and conditions for the purpose of compliance are set out physically in other pages , and even if there is not reference, all consumer will lose their case or will they???

 

reading from

 

 

181. I should add that I was referred by Mrs Thompson to s189 (4) which defines the term “embody” and is set out in paragraph 7 above. I did not think that this assisted the analysis. “Embody” means contain or incorporate by reference. Terms other than Prescribed Terms may be (merely) incorporated by reference as opposed to contained in the executed agreement. In the assumed facts the relevant provisions were referred to on the signature page. But this did not prevent them from being “contained” within the document signed by the debtor. That is because they were not set out in “another document” referred to in the signed document. On the analysis above, the terms were not in “another document” at all but in the same document as the signature page. On the assumed facts they were as much contained in the signed document as if the signature page said had that the debtor agreed to be bound by the terms “overleaf” and the relevant terms were set out on the reverse.

 

 

so what Mr Goodie or PT threads said is irrelevant any comment please, very worried !!!!!!!

 

 

I am also very concerned about this section of the judgment (paragraphs 171 to 181) that deals with 'Issue 5'. As far as I can see, this is the only issue of those before Waksman J that makes specific application to S61 of the Act and not just to Ss 77-78.

 

HSBC are rumoured to have 'lost' or 'destroyed' many CCA agreements, especially where the credit card is for a long standing customer (eg from the old Midland Bank). Instead, HSBC have produced copies of template agreements and blank signature pages in court, claiming these templates are ones that a debtor WOULD HAVE SIGNED and therefore MUST have signed.

 

Does this judgment give HSBC the green light to win such cases where they cannot produce the executed copy of the CCA?

[tamarindo]

I am also very concerned about this section of the judgment (paragraphs 171 to 181) that deals with 'Issue 5'. As far as I can see, this is the only issue of those before Waksman J that makes specific application to S61 of the Act and not just to Ss 77-78.

 

HSBC are rumoured to have 'lost' or 'destroyed' many CCA agreements, especially where the credit card is for a long standing customer (eg from the old Midland Bank). Instead, HSBC have produced copies of template agreements and blank signature pages in court, claiming these templates are ones that a debtor WOULD HAVE SIGNED and therefore MUST have signed.

 

Does this judgment give HSBC the green light to win such cases where they cannot produce the executed copy of the CCA?

 

could PT2537 be so kind to give us an opinion... mostly appreciated

[the_shadow]

I am also very concerned about this section of the judgment (paragraphs 171 to 181) that deals with 'Issue 5'. As far as I can see, this is the only issue of those before Waksman J that makes specific application to S61 of the Act and not just to Ss 77-78.

 

I would hope that this point is appealed tbh as most agreements say "See Terms and conditions" even if its just in the data protection area.

 

S.

[theshuffler]

Sorry to bounce in here , i am contesting an agreement where the box where the signee is supposed to agree to the terms and conditions has been left blank , this is not a cca request document but a copy of the original , anyone know if this will stand up?

[spartathisis]

slight aside, also interesting Credit Today online

[PriorityOne]

Just to remind everyone once again....

 

The creditor's were DEFENDANTS in this action and the consumer's were CLAIMANTS. Please remember this before panic starts to overtake this thread once again.

 

[stripper]

P1 I understand this very crucial point .Thanks for your patience here.

However where is PT2537?

It would be helpful if an opinion from PT were to be made.

What do you say PT?

Stripper

[PriorityOne]

P1 I understand this very crucial point .Thanks for your patience here.

However where is PT2537?

It would be helpful if an opinion from PT were to be made.

What do you say PT?

Stripper

 

Paul hasn't been aroud since the beginning of December..... so I'm not sure when he'll be able to join this thread and give his views. I do know that he picked loads of holes in the Rankine judgement at the time though.... and this one is similar in some respects.

[tamarindo]

Just to remind everyone once again....

 

The creditor's were DEFENDANTS in this action and the consumer's were CLAIMANTS. Please remember this before panic starts to overtake this thread once again.

 

 

 

Thanks for your reply BUT according to this judgement it does not matter who is the claimant or defendant, basically it has precedence over any future county court case or does it???

 

 

I really can not believe that every judge has got the opinion that if a reconstituted copy of agreement is

present that will do, surely the original agreement is still required in a hearing at court !!!!

[PriorityOne]

Thanks for your reply BUT according to this judgement it does not matter who is the claimant or defendant, basically it has precedence over any future county court case or does it???

 

 

I really can not believe that every judge has got the opinion that if a reconstituted copy of agreement is

present that will do, surely the original agreement is still required in a hearing at court !!!!

 

Where do you come to that conclusion? The difference between being a Claimant or a Defendant is a shift in the burden of proof.... so yes, it does matter.

 

A re-constituted Agreement is not acceptable under CCA 1974.... but the creditor does have more leeway under CCA 2006, if thay can be prove (as a Claimant taking a consumer to court) that a payment history existed.

[tamarindo]

Where do you come to that conclusion? The difference between being a Claimant or a Defendant is a shift in the burden of proof.... so yes, it does matter.

 

A re-constituted Agreement is not acceptable under CCA 1974.... but the creditor does have more leeway under CCA 2006, if thay can be prove (as a Claimant taking a consumer to court) that a payment history existed.

 

 

Thanks for reply

 

BUT under the judgement of test cases, I thought the original agreement

is still required to be shown in a hearing at court or have they changed the law??

[lickthewallfatboy]

I really don't see what all the panic is about.....what business did these claim companies have trying to get agreements declared unenforceable in the first place?

 

why don't these ambulance chasers mind their own greedy business and keep their noses out by jumping off the bandwagon they jumped on

[slick132]

I'm not speaking for PT2537 but I doubt he'll see any reason to join this debate, even if he does happen to see it. He is v busy and has less spare time now than previously.

 

Priority1 is doing a fine job here trying to make it clear that there's a big difference between:-

 

1. An individual Claimant seeking a ruling against the lender Defendant that an agreement is unenforceable and the debt should be wiped.

 

2. An individual defending a case brought by the Claimant bank, where the bank does not have a properly executed credit agreement.

 

Without a signed credit agreement, an individual still has every chance of successfully defending a Claim started by a bank.

[angry cat]

I'm not speaking for PT2537 but I doubt he'll see any reason to join this debate, even if he does happen to see it. He is v busy and has less spare time now than previously.

 

Priority1 is doing a fine job here trying to make it clear that there's a big difference between:-

 

1. An individual Claimant seeking a ruling against the lender Defendant that an agreement is unenforceable and the debt should be wiped.

 

2. An individual defending a case brought by the Claimant bank, where the bank does not have a properly executed credit agreement.

 

Without a signed credit agreement, an individual still has every chance of successfully defending a Claim started by a bank.

 

Exactly!

 

AC