Dissecting the Manchester Test Case....

[angry cat]

DN: Default Notice;

TN: Termination.

 

These must be served correctly under sections 87/88 of the CCA!

[pookeymonkey]

Major blow for claims management companies in landmark court case - Debt Management Today

 

Although this comes from a Debt Management site, it does go some way to explain that the test cases were aimed at Claims against Creditors rather that rather than Claims by Creditors.

 

Pookey

[PriorityOne]

Major blow for claims management companies in landmark court case - Debt Management Today

 

Although this comes from a Debt Management site, it does go some way to explain that the test cases were aimed at Claims against Creditors rather that rather than Claims by Creditors.

 

Pookey

 

Much more balanced.... about blinking time...

 

[stripper]

Thanks AC

Stripper

[lilly white]

Submitted by Asha Solanki on 6th Jan 2010 10:49:28

 

the veiw from the other side it needs to be read

 

 

The long-awaited conclusion to the debate that has continued for the last two years, regarding whether or not Consumer Credit Agreements can be ruled as unenforceable, has now been decided by the High Court.

The Judgment handed down by HHJ Waksman QC on 23rd December 2009 has conclusively confirmed the basis upon which a consumer may claim that their Credit Agreement is Legally Unenforceable.

 

The Landmark Ruling, precipitated by the volume of cases issued by specialist financial claims company, Cartal Client Review, has now set a Legal Precedent to be used by all County Courts where proceedings are issued by consumers.

 

Carl Wright, Chief Executive of Cartal Client Review said,

The High Court has today ratified what Cartel has been fighting for, for over two years, that where a bank or credit card company is in breach of Section 78 of the Consumer Credit Act, that the agreement is Legally Unenforceable. This means that the intolerable delays in settling our clients claims, caused by the banks and credit card companies, have now come to an end. Our clients can now be assured, that in the face of previous delays, caused by banks, consumer confidence in our service and trust in the Judicial System was well-founded and greatly appreciated.

 

The Judgment by HHJ Waksman QC has clarified a number of points in respect of credit agreements, in making an executed agreement, if it fails to conform to requirements made by regulations as to form and content it will be an improperly executed agreement. Further, the banks will be required to provide a, True Copy, when disputing any breach of the Consumer Credit Act.

 

The Judge also confirmed what a bank is not permitted to omit from any reconstituted copy of an agreement under Regulation 3 and that any copy should be easily legible. Experts believe that many banks will have great difficulty in complying with this part of the Judgment.

 

Andrew Settle, of CCLS said, Our experience shows that many banks and credit card companies have failed to instigate systems and procedures that allow them to comply with the requirements of the Consumer Credit Act and it is also clear that many agreements did not comply with the Prescribed Terms of the Consumer Credit Act, when the agreements were originally drafted.

 

A major area of dispute between banks, and claims management companies acting on behalf of consumers, was the manner in which Credit Agreements are unilaterally amended throughout the period of the agreement, by the banks. The Office of Fair Trading submitted a witness statement and a copy of Draft Guidance to the Court, which stated clearly that, where changes and variations were implemented by the banks, not only should the terms and conditions of the variations be produced, but also a copy of the executed agreement in its original form must also be provided. The Judge stated, In my judgment, the debtor has a legitimate interest in seeing a copy of the agreement he signed. The Judge stated further, in respect of the Defence, mounted by the banks, The Result of the Defendants analysis is, in truth, an attempt to force the language of Reg.7 far beyond that which it can reasonably or sensibly go.

 

In what was seen by those acting for the Claimants as a futile and desperate attack on the jurisdiction of the Court by Professor Howells, acting for MBNA Europe Bank Ltd, the Judge said, But if Professor Howells is right, I have no jurisdiction to decide such matters at all. At one stage in argument, he said as much. However, the Judge concluded, I am quite satisfied that the County Court and the High Court have the jurisdiction

 

The Judgment means that every consumer must ensure that all of their Credit Agreements are checked and vetted by a specialist financial claims company, at no cost, to determine how this Judgment affects them financially.

 

This Ruling will clearly open the floodgates to a large volume of claims during 2010 and provide consumers in the UK with legal justification for seeking redress, where they had been disadvantaged by the terms of their Credit Agreements. It is estimated by claims management experts, that this Judgment could precipitate in excess of a million claims during 2010. This figure is expected to dramatically increase, once consumers are informed that what was previously a speculative claim, now has the full authority, not just of the Consumer Credit Act, but also of the High Court.

 

This Judgment has very different ramifications for consumers when compared to the Judgment on Bank Charges, which was handed down on 25th November, following the Appeal by the banks. On this occasion, experts have suggested that consumers have the upper hand. Kara Britton, of specialist consumer solicitors, CCLS, said, On this occasion, it is entirely possible that the banks will decide not to Appeal this Judgment and therefore the Judgment will provide consumers with all the protection therein. However, if the banks do Appeal, this will be a pyrrhic legal action, as the remedies open to consumers during the period of the Appeal could be most severe to the banks financially and cause great damage to their already tarnished reputations.

 

Carl Wright, of Cartal Client Review, said On this occasion, if the banks decide to Appeal, we would still be able to pursue our clients financial claim and seek redress during the period of an Appeal. Whilst an Appeal would probably precipitate a stay, this would not affect our clients ability to enforce alternative fiscal remedies. In total contrast to the stay on Bank Charges, consumers would be unaffected by the Appeal, as there would be no need to issue Legal Proceedings during this Appeal process and our clients would have the option to enforce their chosen remedy, pending the outcome of any possible Appeal.

 

Unlike the Supreme Court Ruling on Bank Charges, it is possible that on this occasion, the tactics alleged to be used by banks, of using the Courts to drag out proceedings, may not work as effectively in respect of the Judgement handed down by HHJ Waksman QC in relation to Unenforceable Credit Agreements. On this occasion, the banks are damned if they do and damned if they dont.

 

This Judgment makes it clear that what banks previously regarded as futile claims by consumers are now here to stay. This is clearly an area where consumers will need specialist financial claims advice from practitioners in the industry with a history and pedigree of success.

[vjohn82]

An interesting view indeed... I will digest that later with a mug of tea and a biscuit!

[Its WAR]

Back to what Banker Rhymes With says on costs being high risk, as no allocation is yet made to small claims. It just highlights the risks of going down the cpr route as a claimant. Although the arguments are good, for persuading the judge that £2000 costs are excessive and the cca should have been produced even one day earlier would have saved the costs (of the barrister), neverthless the amount is worrying and I need a resolution.....fast.

[paulwlton]

Oft guidance submitted in the test case...in particular page 12 - 14 are of interest.

 

PW

[nick20045]

Submitted by Asha Solanki on 6th Jan 2010 10:49:28

 

the veiw from the other side it needs to be read

 

 

The long-awaited conclusion to the debate that has continued for the last two years, regarding whether or not Consumer Credit Agreements can be ruled as unenforceable, has now been decided by the High Court.

The Judgment handed down by HHJ Waksman QC on 23rd December 2009 has conclusively confirmed the basis upon which a consumer may claim that their Credit Agreement is Legally Unenforceable.

 

The Landmark Ruling, precipitated by the volume of cases issued by specialist financial claims company, Cartal Client Review, has now set a Legal Precedent to be used by all County Courts where proceedings are issued by consumers.

 

Carl Wright, Chief Executive of Cartal Client Review said,

The High Court has today ratified what Cartel has been fighting for, for over two years, that where a bank or credit card company is in breach of Section 78 of the Consumer Credit Act, that the agreement is Legally Unenforceable. This means that the intolerable delays in settling our clients claims, caused by the banks and credit card companies, have now come to an end. Our clients can now be assured, that in the face of previous delays, caused by banks, consumer confidence in our service and trust in the Judicial System was well-founded and greatly appreciated.

 

The Judgment by HHJ Waksman QC has clarified a number of points in respect of credit agreements, in making an executed agreement, if it fails to conform to requirements made by regulations as to form and content it will be an improperly executed agreement. Further, the banks will be required to provide a, True Copy, when disputing any breach of the Consumer Credit Act.

 

The Judge also confirmed what a bank is not permitted to omit from any reconstituted copy of an agreement under Regulation 3 and that any copy should be easily legible. Experts believe that many banks will have great difficulty in complying with this part of the Judgment.

 

Andrew Settle, of CCLS said, Our experience shows that many banks and credit card companies have failed to instigate systems and procedures that allow them to comply with the requirements of the Consumer Credit Act and it is also clear that many agreements did not comply with the Prescribed Terms of the Consumer Credit Act, when the agreements were originally drafted.

 

A major area of dispute between banks, and claims management companies acting on behalf of consumers, was the manner in which Credit Agreements are unilaterally amended throughout the period of the agreement, by the banks. The Office of Fair Trading submitted a witness statement and a copy of Draft Guidance to the Court, which stated clearly that, where changes and variations were implemented by the banks, not only should the terms and conditions of the variations be produced, but also a copy of the executed agreement in its original form must also be provided. The Judge stated, In my judgment, the debtor has a legitimate interest in seeing a copy of the agreement he signed. The Judge stated further, in respect of the Defence, mounted by the banks, The Result of the Defendants analysis is, in truth, an attempt to force the language of Reg.7 far beyond that which it can reasonably or sensibly go.

 

In what was seen by those acting for the Claimants as a futile and desperate attack on the jurisdiction of the Court by Professor Howells, acting for MBNA Europe Bank Ltd, the Judge said, But if Professor Howells is right, I have no jurisdiction to decide such matters at all. At one stage in argument, he said as much. However, the Judge concluded, I am quite satisfied that the County Court and the High Court have the jurisdiction

 

The Judgment means that every consumer must ensure that all of their Credit Agreements are checked and vetted by a specialist financial claims company, at no cost, to determine how this Judgment affects them financially.

 

This Ruling will clearly open the floodgates to a large volume of claims during 2010 and provide consumers in the UK with legal justification for seeking redress, where they had been disadvantaged by the terms of their Credit Agreements. It is estimated by claims management experts, that this Judgment could precipitate in excess of a million claims during 2010. This figure is expected to dramatically increase, once consumers are informed that what was previously a speculative claim, now has the full authority, not just of the Consumer Credit Act, but also of the High Court.

 

This Judgment has very different ramifications for consumers when compared to the Judgment on Bank Charges, which was handed down on 25th November, following the Appeal by the banks. On this occasion, experts have suggested that consumers have the upper hand. Kara Britton, of specialist consumer solicitors, CCLS, said, On this occasion, it is entirely possible that the banks will decide not to Appeal this Judgment and therefore the Judgment will provide consumers with all the protection therein. However, if the banks do Appeal, this will be a pyrrhic legal action, as the remedies open to consumers during the period of the Appeal could be most severe to the banks financially and cause great damage to their already tarnished reputations.

 

Carl Wright, of Cartal Client Review, said On this occasion, if the banks decide to Appeal, we would still be able to pursue our clients financial claim and seek redress during the period of an Appeal. Whilst an Appeal would probably precipitate a stay, this would not affect our clients ability to enforce alternative fiscal remedies. In total contrast to the stay on Bank Charges, consumers would be unaffected by the Appeal, as there would be no need to issue Legal Proceedings during this Appeal process and our clients would have the option to enforce their chosen remedy, pending the outcome of any possible Appeal.

 

Unlike the Supreme Court Ruling on Bank Charges, it is possible that on this occasion, the tactics alleged to be used by banks, of using the Courts to drag out proceedings, may not work as effectively in respect of the Judgement handed down by HHJ Waksman QC in relation to Unenforceable Credit Agreements. On this occasion, the banks are damned if they do and damned if they dont.

 

This Judgment makes it clear that what banks previously regarded as futile claims by consumers are now here to stay. This is clearly an area where consumers will need specialist financial claims advice from practitioners in the industry with a history and pedigree of success.

Well personally I look at it as advertising for more business and basically saying "Forget doing your own. Come to us. We want your money".

 

Parts marked with bold I have already referred to them in my previous post #111 and #120 on page 6

[brooooooooooce]

"...not only should the terms and conditions of the variations be produced, but also a copy of the executed agreement in its original form must also be provided."

 

What is that saying? Original form, original content, original substance - what is it?

[Josie8]

Major blow for claims management companies in landmark court case - Debt Management Today

 

Although this comes from a Debt Management site, it does go some way to explain that the test cases were aimed at Claims against Creditors rather that rather than Claims by Creditors.

 

Pookey

 

Cartel clients actually lost the preliminary issues they were involved in. I believe that RBS is trying to get cost orders against Cartel and their solicitors personally

[lilly white]

Well personally I look at it as advertising for more business and basically saying "Forget doing your own. Come to us. We want your money".

 

Parts marked with bold I have already referred to them in my previous post #111 and #120 on page 6

 

yes of course they are looking for biz however they have tested the water

 

for us it would be to hot and but i am sure they will go again.

 

i or any cagger would not take this route but hey they did

 

lilly

[lilly white]

Oft guidance submitted in the test case...in particular page 12 - 14 are of interest.

 

PW

 

 

thanks pw excellent i am looking at this at the moment and well done for getting it posted

 

 

kinds regards lilly

[nick20045]

"...not only should the terms and conditions of the variations be produced, but also a copy of the executed agreement in its original form must also be provided."

 

What is that saying? Original form, original content, original substance - what is it?

Think you have just answered yourself. Or look at it like this:

 

A man gets married to the most beautiful woman any man can find and then after eating loads of Doritos she puts on 10 stones. He wishes she is back to her original form. What does he wish? :D:D:D

[diddydicky]

So what is the rule that says it has to be produced to be succesful with a claim?

 

see 393

[paulwlton]

thanks pw excellent i am looking at this at the moment and well done for getting it posted

 

 

kinds regards lilly

 

I can only assume that the Chief Exec of the OFT wasn't consulted prior to submitting the guidance ..... In Nov 2008 re: enforcement! he confirmed in writing to a a member of parliament that " Importantly this must be a signed agreement - in which case it is likely that a court would want to see the original document. The varesity of the agreement could then be tested before the court where the onus of proof is on the creditor"

 

Methinks the OFT have changed their tune.....why?

Edited January 7, 2010 by paulwlton

[diddydicky]

bung

[nick20045]

bung

That is what I use when I make homebrew wine. :D

 

Oops.

[paulwlton]

That is what I use when I make homebrew wine. :D

 

Oops.

 

That's what I use after a session on homebrew wine

[diddydicky]

thats what my wife uses when shes had a curry

[nick20045]

That is what I use when I make homebrew wine. :D

 

Oops.

 

That's what I use after a session on homebrew wine

thats what my wife uses when shes had a curry

LOL. What have I started!!!!!!! I claim "temporary insanity" Me Lurd.

[Docman]

I can only assume that the Chief Exec of the OFT wasn't consulted prior to submitting the guidance ..... In Nov 2008 re: enforcement! he confirmed in writing to a a member of parliament that " Importantly this must be a signed agreement - in which case it is likely that a court would want to see the original document. The varesity of the agreement could then be tested before the court where the onus of proof is on the creditor"

 

Methinks the OFT have changed their tune.....why?

 

Perhaps the MP should be asked to write to the Chief Executive of the OFT to ask for an explanation for the change of tune.

[banker_rhymes_with]

Hello Docman!

 

Perhaps the MP should be asked to write to the Chief Executive of the OFT to ask for an explanation for the change of tune.

 

Indeed.

 

Cheers,

BRW

[Josie8]

Perhaps the MP should be asked to write to the Chief Executive of the OFT to ask for an explanation for the change of tune.

 

It's still the case that it is likel. The court will want to see the signed document.

[Jasper1965]

I can only assume that the Chief Exec of the OFT wasn't consulted prior to submitting the guidance ..... In Nov 2008 re: enforcement! he confirmed in writing to a a member of parliament that " Importantly this must be a signed agreement - in which case it is likely that a court would want to see the original document. The varesity of the agreement could then be tested before the court where the onus of proof is on the creditor"

 

Methinks the OFT have changed their tune.....why?

 

How many banks with billions of £££'s toxic debt were HM Government major shareholders of back in Nov 2008 and how many banks with billions of toxic debt does HM Government hold a large financial interest in today? Coincidence that not much has gone the way of the consumer since the bank of New Labour came into being? You have to wonder.