Dissecting the Manchester Test Case....

[seriously fed up]

Ah but Waksman has said a page doesn't have to be physically attached to the signature page to be contained in the documemnt.

 

The scanned document clearly states "the conditions attached" which would probably be the prescribed terms.

 

This comment is ref: the Halifax agreement/application.

 

yes you are right, but lets start from the question that Waksman addressed himself to. We can find this at paragraph (5), which reads

"(5) Does the document signed by the debtor contain the prescribed terms for the purposes of section 61 and/or section 127(3) if:

(a) they are on a sheet which is referred to on the piece of paper that was signed by the debtor; or

(b) where that sheet is attached to the piece of paper signed by the debtor; or

© where that sheet is separate from but was supplied with the piece of paper signed by the debtor?

Ok, so three possibilities - they are on the sheet with the debtor's sig; they are attached to the page with the debtor's sig; they can be separate but supplied at the same time as the piece of paper with the sig. First of all I would say that this could be appealed by reference to the 1983 regs, which is actually very clear about the formatting of these agreements (this is perhaps a nice illustratiion of the common law messing with statutory law as ruinedbynatwest has suggested) and dont give the creditor anything like this leeway. But lets allow that to pass, at least for just now. It seems to me that there are a number of other "facts" that we need to maintain contact with

 

1. Paragraph 177 Waksman says "Mr Uff said that I should not deal with Issue 5 at all because it was too fact-sensitive and there were questions about the nature of the documents supplied in Carey anyway. But Ms Tolaney suggested that I would have to proceed on the basis of assumed facts and so I would not be making a final ruling at this stage on whether the documents as supplied in Carey conformed to s61(l)(a)." So once evidence is led, the view might be different - he seems to have worked mainly from evidence provided by the bank. That, I think we would agree here, is not always a wise assumption.
   
2. This part of Waksman's judgement is on the basis of "assumed facts" and on a reconstituted "agreement", which he suggests is adequate in relation to s78, but would be of much less use in seeking enforcement. In other words this part of the judgement is based on what the bank said they would supply as a made up version of the agreement. For instance in para 234 (3) he says, "(3) The creditor need not, in complying with s78, provide a document which would comply (if signed) with the requirements of the Consumer Credit (Agreements) Regulations 1983 as to form, as at the date the agreement was made;" Now that is worrying in relation to the guff they will send in reply to a s78 application. But in a case of enforcement by the OC they would have to SHOW that the T&Cs were attached or were supplied. I would also venture to suggest that the bank should be made to show why the agreement they are defending is not compliant with the 1983 regs. Otherwise, what is the purpose of the 1983 regs? Or can they just be set aside by some judicial whim? And before someone piles in to say "yes they can", my reply is in my posting at 16.23 today (#544)
   
3. I have already suggested that paragraph 177 and its first three paragraphs is suggestive of a three stage process - application form completed by prospective debtor: if application approved issues of agreement to be signed, including all the terms including the prescribed terms; once agreement received, card issued. I think its fair to say that this process hardly ever happens. So if not, what would (should) the legal consequences be? On this see Nick20045's post #522
   
4. at paragraph 177 again, he says (sub para 5) that "Accordingly, where the debtor's signature and the Prescribed Terms appear on separate pieces of paper, the questions of whether those pieces of paper together constitute one document is a question of substance and not form." So not quite as simple as saying "here are the terms" - and in any case, this applies to satisfying a s78 request. This is made easier for the bank by the case being brought by the debtor, so the burden of proof was on the debtor. In the Mitchell case, where the burden of proof to demonstrate pretty much precisely this point was on the bank, it seems quite clear that they werent confident of being able to do this, or not confident enough to allow the issue to go to a full hearing.
   

Basa you are right that this interpretation can be put on Waksman's judgement, and we all know that this is how the banks would want to see it interpreted. But I think we need to remember these two things in addition to the fact that the judgement was on the basis of assumed evidence - the primary interpretation is for s78 (read his conclusions at para 234 - I think that is quite clear) and that in this case the burden of proof was on us, whereas Mitchell demonstrates the difficulties for creditors seeking enforcement when the burden of proof is on them.

Edited January 11, 2010 by seriously fed up

[charlie*]

It is a fact that the bank does not lend money....

 

The 'asset' they agree to loan you upon your application being signed and approved does NOT exist in this universe or any other BEFORE you sign that paper.

It is the signature you give them that authorises them to make an entry in a ledger.... hey presto, the money appear as if by magic.

 

The 'asset' (money/credit) they loan you is in fact YOURS.... it is YOUR

asset because it could not have been created without your signature .

 

Is there no way that this simple fact could be slipped in somewhere and manipulated in by some kind of entrapment.... even of the judge her/himself.

 

These people are leaning on statutes, the law of the UK is superior and it is Commercial Law... contract law. However, extreme caution should be used here for the lawyers call such a defense as frivolous and often get a dismisal... BUT, I suggest thinking about the use of only a tiny part of the whole defense using contract law.... whose asset produces the loan???

Should not he, whose asset creates the loan not be the one to be repaid????

 

Is it worth a thought or ten?

 

BANKS DO NOT LEND MONEY.... IT'S ALL edited LIES.

Edited January 11, 2010 by slick132
swearing, even with *'s !

[diddydicky]

i put before you a new type of credit agreement

 

here it is

 

this agreement is regulated by the consumer credit act 2006

 

any term or condition in this agreement may override the consumer credit act 2006

 

we have not bothered to detail the terms and conditions, including prescribed terms as if this is later challenged we need simply tell the court what was in the agreement and we will be beleived because we couldnt possibly get it wrong/tell and untruth

 

sign here................................................

 

 

yeah right!!

[diddydicky]

It is a fact that the bank does not lend money....

 

The 'asset' they agree to loan you upon your application being signed and approved does NOT exist in this universe or any other BEFORE you sign that paper.

It is the signature you give them that authorises them to make an entry in a ledger.... hey presto, the money appear as if by magic.

 

The 'asset' (money/credit) they loan you is in fact YOURS.... it is YOUR

asset created by YOUR signature.

 

Is there no way that this could be manipulated in by some kind of entrapment.... even of the judge her/himself.

 

These people are leaning on statutes, the law of the UK is superior and in this case it's contract law. However, extreme caution should be used here for the lawyers call such a defense as frivolous and often get a dismisal... BUT, I suggest thinking about the use of only a tiny fact of the whole.... whose asset produces the loan???

 

Is it worth a thought or ten?

 

BANKS DO NOT LEND MONEY.... IT'S ALL edited LIES.

 

don't live up to you name- are you a Nuke em disciple?

Edited January 12, 2010 by slick132
swearing removed from quote

[antigone1974]

I can't help but think that people are missing the point here, by quite a long way.

 

What does a bank need to prove to be successful with a claim? I would suggest:

 

1) That there was a contractually binding agreement, under which money is properly owed - most people have taken out a credit card and borrowed money against it to buy things. This part is rarely contraversial.

 

2) That the contract is enforceable under the CCA. So need to prove compliance with s.65. If there is breach then the court can still enforce the agreement (at its discretion) unless the document executed by the debtor does not contain the prescribed terms (and is pre April 2007) as per s.127.

 

So, the critical thing for the bank to prove is that the signed document contained the prescribed terms at the time it was signed. It is for the bank to prove this 'on the balance of probabilities'.

 

Obviously, the easiest way to prove this is to produce the document itself. However, there are other ways. The Bank can produce witness statements from staff, show the systems and procedures it had in place and can produce ancillary/related documents. There is no absolute obligation for the bank to produce the actual credit agreement (s.78, as we all now know, only requires a reconstruction).

 

So on one side you have a bank with whatever evidence it has been able to provide, most likely from hard documents. On the other side, it seems that most usually people will not have a copy of the credit agreement, and will not be able to really remember what it looked like. Their position is, essentially, I don't know.

 

So, on the balance of probabilities, what is the judge most likely to decide?

 

I would guess that the vast majority of credit agreements did comply with the CCA and contained the prescribed terms in any event. Is anyone able to produce a COMPLETE credit agreement that does not contain the prescribed terms (in the signed document within the definition set out by Waksman, i.e. looking at the substance over form). If so lets see it.

 

(btw, the Yorkshire Bank one posted above clearly refers to terms 'overleaf' that have not been posted).

 

I hope people find this constructive. It is simply my point of view and i'm happy to debate it (people should not rely on it and I would suggest taking proper legal advice). I know some people wont like it, but I think its realistic.

 

A

[diddydicky]

I can't help but think that people are missing the point here, by quite a long way.

 

What does a bank need to prove to be successful with a claim? I would suggest:

 

1) That there was a contractually binding agreement, under which money is properly owed - most people have taken out a credit card and borrowed money against it to buy things. This part is rarely contraversial.

 

2) That the contract is enforceable under the CCA. So need to prove compliance with s.65. If there is breach then the court can still enforce the agreement (at its discretion) unless the document executed by the debtor does not contain the prescribed terms (and is pre April 2007) as per s.127.

 

So, the critical thing for the bank to prove is that the signed document contained the prescribed terms at the time it was signed. It is for the bank to prove this 'on the balance of probabilities'.

 

Obviously, the easiest way to prove this is to produce the document itself. However, there are other ways. The Bank can produce witness statements from staff, show the systems and procedures it had in place and can produce ancillary/related documents. There is no absolute obligation for the bank to produce the actual credit agreement (s.78, as we all now know, only requires a reconstruction).

 

So on one side you have a bank with whatever evidence it has been able to provide, most likely from hard documents. On the other side, it seems that most usually people will not have a copy of the credit agreement, and will not be able to really remember what it looked like. Their position is, essentially, I don't know.

 

So, on the balance of probabilities, what is the judge most likely to decide?

 

I would guess that the vast majority of credit agreements did comply with the CCA and contained the prescribed terms in any event. Is anyone able to produce a COMPLETE credit agreement that does not contain the prescribed terms (in the signed document within the definition set out by Waksman, i.e. looking at the substance over form). If so lets see it.

 

(btw, the Yorkshire Bank one posted above clearly refers to terms 'overleaf' that have not been posted).

 

I hope people find this constructive. It is simply my point of view and i'm happy to debate it (people should not rely on it and I would suggest taking proper legal advice). I know some people wont like it, but I think its realistic.

 

A

 

with respect i think you have a lot to learn

 

i suggest you get searching through the threads and do a lot of reading!!

[antigone1974]

with respect i think you have a lot to learn

 

i suggest you get searching through the threads and do a lot of reading!!

 

What part of what I said do you think is wrong?

 

Charlie: I cant help but think your argument is fundamentally flawed. Whether an asset exists is irrelevant, it is an agreement for running account credit, not an asset (this is of course different to fixed sum credit).

 

It would be like trying to set aside your contract for a newspaper subscription on the basis that next weeks paper doesn't exist yet.

[antigone1974]

Actually Charlie, I think I misunderstood your post. I'm not sure exactly what argument you are setting out.

Edited January 12, 2010 by antigone1974

[seriously fed up]

This bit antigone

"So, the critical thing for the bank to prove is that the signed document contained the prescribed terms at the time it was signed. It is for the bank to prove this 'on the balance of probabilities'.

 

Obviously, the easiest way to prove this is to produce the document itself. However, there are other ways. The Bank can produce witness statements from staff, show the systems and procedures it had in place and can produce ancillary/related documents. There is no absolute obligation for the bank to produce the actual credit agreement (s.78, as we all now know, only requires a reconstruction).

 

So on one side you have a bank with whatever evidence it has been able to provide, most likely from hard documents. On the other side, it seems that most usually people will not have a copy of the credit agreement, and will not be able to really remember what it looked like. Their position is, essentially, I don't know.

 

So, on the balance of probabilities, what is the judge most likely to decide?"

 

Yes the easiest way for them to show this is by producing the original. While there can be problems when they do come up with the document, other problems arise when they cant (or wont). You say they can produce recon jobs and WS - for a s78 yes they can. But even if you look at the Manchester case (and see para 234 here for a nice summary by Waksman himself Carey v HSBC Bank Plc [2009] EWHC 3417 (QB) (23 December 2009)) it was about what is requried for s78.So unless we are to put aside all the rules of evidence then they have to produce the original in order to enforce at court. Otherwise it would be like getting tried for murder and the prosecution saying "well we dont actually have the victim, but we know they must have looked something like this", OR "we dont actually have the gun but it would look like this, even if they were stabbed to death". In other words, what I think is wrong with your post is that you dont understand the difference between what a lender must produce in response to a s78 request and the evidence needed for enforcement.

One of the conclusions that I have come to as a result of Manchester is that debtors have to chose their ground very carefully when they take on creditors, and I dont think they did in this case. Essentially they were trying to prove not just that the agreement didnt exist today (which could be proven at least in so far as the lender cant produce it) but that the lender wont be able to produce it in the future (which is going to be practically impossible). On the other hand, its quite a different game when creditors are "on the offensive" - then its them who have to prove documents exist, that they are genuine and not "blue peter jobs" or "porky pies".

Lastly you suggest that most creditors dont keep copies of their documents. You are probably right in this. But one reason for this is that we send them off to the lender (eg the application form). Perhaps we should keep copies, but how many are resourced to do this? OK maybe not an excuse that will wash in court, but what I think you do forget is for most documents there will be some "out there". I had to see a lender off last year and I hadnt kept a copy of the original application. But with some research, and advice from two people who had (one who had kept it themselves and another who had had a copy from the lender) I was able to work out what I was up against.

Re "I would guess that the vast majority of credit agreements did comply with the CCA and contained the prescribed terms in any event. Is anyone able to produce a COMPLETE credit agreement that does not contain the prescribed terms (in the signed document within the definition set out by Waksman, i.e. looking at the substance over form). If so lets see it." - see Mitchell (http://www.consumeractiongroup.co.uk/forum/show-post/post-2264418.html) and ask yourself why the BoS withdrew at the last minute. Also you might care to reflect on the judge's pronouncement in para 9.

As diddydicky suggests, I think you need to do a bit of reading - quite a bit. But a bit of thinking wouldnt go wrong either.

Edited January 12, 2010 by seriously fed up
to include mitchell ref

[antigone1974]

I think you misunderstand the rules of evidence Seriously.

 

The banks are not required to produce the contract They just have to prove, on the balance of probabilities, that it did exist.

 

s.78 put a positive obligation on the Banks, but the CPR does not.

 

Your analogy to murder is telling. The criminal burden of proof is 'beyond reasonable doubt'. The civil burden is the lesser - "balance of probabilities".

 

There is no rule saying you have to produce a copy of a contract to enforce. Oral contracts are enforceable. Lost contracts are enforceable. If only a single copy of a contract exists and is lost, the contract still exists.

 

The CCA put positive burdens on the banks beyond the standard rules of evidence. But as you quite rightly say, what they have to provide under s.78 has now been clarified.

 

If you disagree, show me the rule saying that you have to produce a copy of a contract to enforce it!

[antigone1974]

And just read the link. There is no copy of a credit agreement and no ruling that a credit agreement was unenforceable.

 

I would suggest that the bank couldn't find the credit agreement and weren't organised enough to get their case in order. Also being pre Carey, I suspect they didn't want to take the risk of an adverse ruling.

[antigone1974]

You are right that it will be more difficult for banks when they are the Claimant's as the burden of proof will be on them. But I think you take it too far.

 

On the balance of probabilities isn't that big a hurdle when there is no argument coming from the other side.

 

In the absence of being able to put forward a positive case as to why the agreement was improperly executed, I think people will struggle to defend claims now.

[diddydicky]

The banks are not required to produce the contract They just have to prove, on the balance of probabilities, that it did exist.

 

 

really?

 

as i said i think you have a lot to learn

 

and IMO this thread is a few steps up the ladder from discussing the basics of the consumer credit act itself.

 

with respect i dont want to get drawn into your argument as it will bog this thread down

 

i also have an uneasy feeling as to your motives!

[diddydicky]

You are right that it will be more difficult for banks when they are the Claimant's as the burden of proof will be on them. But I think you take it too far.

 

On the balance of probabilities isn't that big a hurdle when there is no argument coming from the other side.

 

In the absence of being able to put forward a positive case as to why the agreement was improperly executed, I think people will struggle to defend claims now.

 

it is not for the defendant to put forward a positive case as to why the agreement was improperly executed- it is for the claimant to put forward a case that it was properly executed!!

 

that all the creditor has to do is show on the balance of probabilities that there was an agreement and that production of the executed agreement is not necessary to prove his claim is IMO a DCA's argument- i am suspicious

[make them aktiv runners]

PriorityOne summed up the Manchester case in an excellent manner earlier.

 

There is a huge difference between a debtor being claimant or defendent.

 

Debtor as defendent means the bank must prove their claim.

 

Debtor as claimant must prove their claim. It is impossible to prove unenforceability via S127 as claimant because the creditor is not trying to enforce through the courts. All the claimant can prove is the creditor is in default of supplying a valid agreement under S76-78 and cannot add interest until they do comply.

[antigone1974]

it is not for the defendant to put forward a positive case as to why the agreement was improperly executed- it is for the claimant to put forward a case that it was properly executed!!

 

that all the creditor has to do is show on the balance of probabilities that there was an agreement and that production of the executed agreement is not necessary to prove his claim is IMO a DCA's argument- i am suspicious

 

I agree they have to put forward a positive case, of course they do. I just disagree with the argument that it has to include a copy of the credit agreement.

 

This is not basics of CCA, this is basics of litigation. Either of you found a rule yet?

 

I am simply trying to be constructive - apologies if this is causing you difficulties.

[antigone1974]

Burden Of Proof And Standard Of Proof | Law Essays UK

[oilyrag]

removed

Edited January 27, 2010 by oilyrag
professional advice to do so

[oilyrag]

removed

Edited January 27, 2010 by oilyrag
professional advice to do so

[seriously fed up]

Quote section 61 of 74 ACt

"61.—(1) A regulated agreement is not properly executed unless

(a) a document in the prescribed form itself containing all the prescribed terms and conforming to regulations under section 60(1) is signed in the prescribed manner both by the debtor or hirer and by or on behalf of the creditor or owner,

and

(b) the document embodies all the terms of the agreement, other than implied terms, and © the document is, when presented or sent to the debtor or hirer for signature, in such a state that all its terms are readily legible."

Quote s 127 (3)

(3) The court shall not make an enforcement order under section 65(1) if section 61(1)(a) (signing of agreements) was not complied with unless a document (whether or not in the prescribed form and complying with regulations under section 60(1)) itself containing all the prescribed terms of the agreement was signed by the debtor or hirer (whether or not in the prescribed manner).

Hard to come up with the sig unless you have the original isnt it? Were it otherwise, you might waken up one day to find that you are being pursued for several thousand pounds for an agreement that you didnt sign, which is supported by a phony trail of transactions.

Also the need for a sig is illustrated by the discussions on here from time to time about whether to sign letters to DCAs and lenders. The level of trust in them has declined to such an extent that its believed to be unsafe to sign anything for them because they might copy your sig on to a blank "agreement".

Any btw, while you are right about oral contracts, for one thing - and I am speaking here in general - PROOF in these is hellish if its one person's word against another. Also the CCA is statutory law which sets up its own clear tests, as many other statutes do

[paulwlton]

Dangers of allowing financial crimi*** the legal authority to recreate documents.

 

 

BBC - Radio 4 You and Yours -Royal Bank of Scotland debt mistake

[Jasper1965]

I agree they have to put forward a positive case, of course they do. I just disagree with the argument that it has to include a copy of the credit agreement.

 

This is not basics of CCA, this is basics of litigation. Either of you found a rule yet?

 

I am simply trying to be constructive - apologies if this is causing you difficulties.

 

 

CPR Practice direction 16 para 7.3

 

7.3

 

Where a claim is based upon a written agreement:

 

(1) a copy of the contract or documents constituting the agreement should be attached to or served with the particulars of claim and the original(s) should be available at the hearing, and

[spartathisis]

Antigone seems to be doing a DCA and interpreting to suit his argument methinks. Would the same apply if I produced a reconstituted letter I sent saying I do not accept your T & C's, but if you want to send me a cc I will use it?

[davefirewalker]

I think you misunderstand the rules of evidence Seriously.

 

The banks are not required to produce the contract They just have to prove, on the balance of probabilities, that it did exist.

 

s.78 put a positive obligation on the Banks, but the CPR does not.

 

Your analogy to murder is telling. The criminal burden of proof is 'beyond reasonable doubt'. The civil burden is the lesser - "balance of probabilities".

 

There is no rule saying you have to produce a copy of a contract to enforce. Oral contracts are enforceable. Lost contracts are enforceable. If only a single copy of a contract exists and is lost, the contract still exists.

 

The CCA put positive burdens on the banks beyond the standard rules of evidence. But as you quite rightly say, what they have to provide under s.78 has now been clarified.

 

If you disagree, show me the rule saying that you have to produce a copy of a contract to enforce it!

 

What they have to provide under S78 has been fudged.....but that is not the point......what they have to provide to enforce IS governed by rules, and rightly so. to address a previous point re contracts someone once said " A verbal contract isnt worth the paper it isnt written on".

 

ANY contract would be hard to enforce if the agreement had "disapeared", it leaves the path open to argument.

 

would you say the the "agreement" below was a valid contract

 

 

because thats all I got from the creditor.......

 

Anyway you are obviously looking for fun or arguments so I wont bother replying anymore

 

Dave

[Peterbard]

Hi

Ther is a lot of talk on here about the balance of probabilities when applied to civil law.

I think the basic understanding of this technique is being slightly distorted perhaps.

This is used when the court is deciding whether it is more likely that a particular action did or did not take place.

It does not apply to a court deciding that particular document does or does not exist.

The whole purpose of an agreement is that there should be no probabilities, all aspects of a transaction are contained and recorded in the document.

The Consumer credit act says that any commercial credit agreement must be reduced to writing and signed by both parties.

It cannot be an alleged agreement it cannot be verbal in cannot exist on a plane of probability it must be material and be able to be presented if it is to be enforced.

There can be no balance of probabilities that this document exists it either does or it doesn’t otherwise what is the point of a contract.

No contract no agreement.

It is true that that section127(3) says that an agrement was signed and it may be true that the balance of probability may apply to that argument. But really that argument is irrelevant if no agreement exists.

Please quote any case where the existence of a contract was shown by just the balance of probabilities.

 

Best

Peter