Dissecting the Manchester Test Case....

[diddydicky]

ive blanked him

[UnmoderatetheNet]

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!

 

My old dad used to say actions speak louder than words.

 

We could discuss this until DCA's become history but the proof to date is how many more cases are being won in court on that basis and so far I see little evidence that DCA's/Banks are evening showing up after defense let alone winning any cases.

 

So this action alone is telling you..... what?

[Peterbard]

HiNot sure if younhave a copy of this it was a reply from the OFT to a series of letters i sent a few years ago.

They as you ca

Dear Mr Bardsley

 

I refer to your email to Ms Edwards dated 19 September 2007 concerning requests made under Section 77 of the Act. Your email contains a letter regarding which you are seeking the Office of Fair Trading's (OFT) opinion as to the content of the letter and advice on where to direct it.

 

Unfortunately, the OFT cannot express an opinion on the matters set out in your letter since it has not had sight of the information upon which your views are based. I should add that the OFT cannot in any event express such an opinon. Equally, as it appears that you have already contacted Local Authority Trading Standard Services and the Department for Business, Enterprise and Regulatory Reform (formerly the Department of Trade and Industry) in addition to the previous correspondence with the OFT, I am unable to suggest other avenues of approach.

 

I note your comments in respect of the intention of Section 77 of the Act. Our understanding is that Parliament intended that the debtor should, on request, be able to access sufficient information in order that he might know the full extent of his financial obligations under an agreement at any time during the currency of that agreement. It was not intended primarily as a method of challenging agreements or, as appears to be occuring more frequently, as a mechanism for avoiding legitimate obligations.

 

You assert that the OFT appears to have advised businesses on this matter. The OFT does not provide advice to consumers or to businesses but rather may express a view which ultimately a court may or may not agree with since only a court can render a definitive view of the law. I am unable to comment on views expressed by Local Authority Trading Standards Services since they are separate bodies and under no obligation to agree with the OFT's view.

 

I further note that you refer to conflicting advice given by the OFT and Trading Standards Services. As already indicated the OFT does not give specific advice to consumers or businesses. As a general point the OFT does suggest to consumers that they may wish to seek professional assistance relevant to their own particular circumstances, such as that available from Citizens Advice Bureaux amongst other organisations.

 

You also refer to a particular letter from the OFT to a consumer stating that it was sufficient for the creditor to 'reconstruct' an agreement where the original was not available. The OFT's view is that rather than supplying a carbon copy of the original agreement a creditor may supply a 'reconstruction' only in the sense that it is providing exactly the same information as appeared on the original agreement. By definition this requires that the creditor has the original in order to be certain that the details are accurate. If it cannot be certain then it will have considerable difficulty in complying with a request made under Section 77. Further the creditor would still have to have the original in order to enforce the agreement. We are not aware of any letter making the assertion you suggest, however if you have details we would welcome sight of it.

 

Where it has evidence, the OFT can and does take action against businesses which act unfairly or improperly or fail to comply with the requirements of the Act. Your email indicates that you are aware of instances where, in your opinion, creditors have not complied with the Act. If you have evidence of such non-compliance we would be happy to receive it.

 

I hope the above clarifies matters.

n see where getting a bit sickof my i think but it does make some relevant points whichnei havw highlighted

 

THe bit about not having the remit to issue advice3 is ablolute bolo which i adreesed in my response to them but that is not relavant here

#Cheers

Peter

This maybe of interest it is a response i got a year or so ago from the OFT rgadin this and other issues.

[diddydicky]

i think the "judge lottery" should also be put into perspective,

 

it is true that many a case has been lost to this phenomenon (bugger i knew i should have picked another word)

 

however i suspect that a lot of judges whose personal opinions influence their decisions are not as dumb as might be thought

 

i beleive that many of these decisions are made in the full knowledge that they are technicaly wrong but the judges attitude is

 

" he should pay- he is trying to find loopholes" so let him go to appeal-

 

they do so knowing full well that many won't/cant afford to

[vint1954]

it is true that many a case has been lost to this phenomenon (bugger i knew i should have picked another word)

 

10/10. Go to the tip ov the spilling closs

[seriously fed up]

i think the "judge lottery" should also be put into perspective,

 

it is true that many a case has been lost to this phenomenon (bugger i knew i should have picked another word)

 

however i suspect that a lot of judges whose personal opinions influence their decisions are not as dumb as might be thought

 

i beleive that many of these decisions are made in the full knowledge that they are technicaly wrong but the judges attitude is

 

" he should pay- he is trying to find loopholes" so let him go to appeal-

 

they do so knowing full well that many won't/cant afford to

 

And that was the point I was trying to make with my post #546. As long as these "moralists" are allowed to indulge their morals rather than apply the law (what they are paid to do), they will continue to do so and almost certainly with impunity.

Btw, re our new friend Antigone, I was wondering about the pseudonym. Often we are trying to say something with choice of name (I know I was!), so its perhaps interesting that Antigone is a play by Sophocles which, inter alia, has as its themes state control, natural law and civil disobedience (see Antigone (Sophocles) - Wikipedia, the free encyclopedia) - just a thought!

[diddydicky]

blimey- sorry mate i'm still reading

 

"through the garden gate"!!

[Basil Fawlty]

If you decide to appeal and eventually win, can you claim the costs of both the appeal case, and the original case?

 

BF

[seriously fed up]

i think the "judge lottery" should also be put into perspective,

 

it is true that many a case has been lost to this phenomenon (bugger i knew i should have picked another word)

 

however i suspect that a lot of judges whose personal opinions influence their decisions are not as dumb as might be thought

 

i beleive that many of these decisions are made in the full knowledge that they are technicaly wrong but the judges attitude is

 

" he should pay- he is trying to find loopholes" so let him go to appeal-

 

they do so knowing full well that many won't/cant afford to

 

And for the most recent one see http://www.consumeractiongroup.co.uk/forum/legal-issues/130101-humbleman-hfc-weightmans-court-21.html

I really do think that we need a debate on finding some way of fighting back against this and if that is to create a fund and select a SMALL number of cases that create very serious issues to be fought, then I would be for that.

Edited January 12, 2010 by seriously fed up

[creditman09]

Where a body (OC) or DCA has been found to have provided reconstructed agreements that bear little relation to the original, I would suggest that they be reported to SOCA ie Serious Organised Crime Agency.

Who knows what the response will be but this is a different type of organisation to FSA and information Commission.

[GirlAloud]

subbing

[basa48]

yes you are right, but lets start from the question that Waksman addressed himself to.

 

.....................

 

 

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.

 

I am in total agreement with everything you say.

 

My concern is that apart from Goode, there is no real interpretation of what is deemed 'contained' (as in the prescribed terms 'contained' in a document) apart from this opinion by Waksman.

 

Until further considerations are made or better still a firm judgement, this will remain a very powerful argument for County Courts to follow.

[seriously fed up]

I have no doubt that the lenders just as much as the courts will seize on every bit of Waksman's judgement that suits their ends. However,lets remember that even Waksman concluded by saying (this is para 5 of para 175m going on to para 176)

 

1. (5) 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.

   
   

2. As a matter of law, those principles appear to me to be correct, in the context of s61.
   

Also that the 1983 regs still apply and they give a clear definition of what should be in an agreement - but in my experience seldom is, or not in the form required by the regs.

 

I also think its interesting that the "assumed facts" are described by Waksman at para 177 in a way that suggests a three stage card issuing process (application, approval and sign agreement, send out credit card) rather than the two stage one we are more familiar with (appication approved and issue credit card) because its what the banks did.

[basa48]

.....................

 

I also think its interesting that the "assumed facts" are described by Waksman at para 177 in a way that suggests a three stage card issuing process (application, approval and sign agreement, send out credit card) rather than the two stage one we are more familiar with (appication approved and issue credit card) because its what the banks did.

 

This interested me too. Just at the moment I can't quite turn my head to figuring out how to prove my lenders didn't use this scenario at all.

 

I think it more a case of - I fill in an application, they vet it and say OK, send me the card and I spend away!!

 

The other thing is that Waksman repeatedly uses the term 'attached' in reference to the page containing the T&Cs.

 

To me this is the crux. A signature document should state that the T&Cs are 'attached' or 'overleaf', not 'received a copy' or 'separately'.

[nick20045]

 

i beleive

I "before" e "except after "c" (only exception is the word "their"). :D

[nick20045]

Where a body (OC) or DCA has been found to have provided reconstructed agreements that bear little relation to the original, I would suggest that they be reported to SOCA ie Serious Organised Crime Agency.

Better to go for the fraud act and for the malicious communications act and the Consumer Protection from Unfair Trading Regulations Act 2008

[panty54]

I "before" e "except after "c" (only exception is the word "their"). :D

 

What about "beige, cleidoic, codeine, conscience, deify, deity, deign,

dreidel, eider, eight, either, feign, feint, feisty,

foreign, forfeit, freight, gleization, gneiss, greige,

greisen, heifer, heigh-ho, height, heinous, heir, heist,

leitmotiv, neigh, neighbor, neither, peignoir, prescient,

rein, science, seiche, seidel, seine, seismic, seize, sheik,

society, sovereign, surfeit, teiid, veil, vein, weight,

weir, weird" :-D:-D

 

Panty

[nick20045]

What about "beige, cleidoic, codeine, conscience, deify, deity, deign,

dreidel, eider, eight, either, feign, feint, feisty,

foreign, forfeit, freight, gleization, gneiss, greige,

greisen, heifer, heigh-ho, height, heinous, heir, heist,

leitmotiv, neigh, neighbor, neither, peignoir, prescient,

rein, science, seiche, seidel, seine, seismic, seize, sheik,

society, sovereign, surfeit, teiid, veil, vein, weight,

weir, weird" :-D:-D

 

Panty

Shhhhhhhhhh He thinks I am bright. :D

[Its WAR]

Still struggling with the recon agreement that I have from Halifax appearing to contain wording that was only drafted for post May 2005 amendments of the Act. But sent to me as a true copy of my 2001 agreement, which Diddy suggests would not have contained the 2005 phrase.

 

So whilst I have my application form and suspect true recon agreement, I want to prove the words would not have been on the 2001 version.

 

I am just not getting very far.

 

I am due in court in 2 weeks and have 7 days to submit a skeleton argument.

 

I want to show that Halifax have not complied with my s78 request because they have sent a fake recon agreement.

 

See my Halifax thread. CPR Court Hearing tomorrow, just had banks defence.

Edited January 12, 2010 by Its WAR

[diddydicky]

I "before" e "except after "c" (only exception is the word "their"). :D

 

oh no.not detention again, pleeeeeease sir, you hit me 25 times with that ruler last time you bent me over that desk!!

[diddydicky]

10/10. Go to the tip ov the spilling closs

 

the bummers are ****ing overed

[antigone1974]

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

 

Jasper

 

This is a practice direction to the CPR. And note the use of the word 'should' not must. Note also the lack of any sanction.

 

It is essentially best practice. Failure to comply does not mean that a claimant loses the case. In fact it is unlikely to have any consequences at all. Many many litigants in person fail to comply with practice directions. Indeed some of the precedent docs on this site fail to comply.

 

Other practice directions include, for example PD 2.2: "Every document prepared by a party for filing or use at the Court must...(4)have the pages numbered consecutively"

 

Clearly nobody would suggest that everyone Defend claims from the bank based upon failure to properly put page numbers on witness statements.

[antigone1974]

Hi All,

 

Here we go again. HHJW in Manchester was clear in his judgements. He ruled specifically on s78 and nothing more. In fact he positively refused to rule on any other portion of the statute in particular s61. What Manchester has done positively for the consumer is to ensure that original documents must be brought to court when the alleged debtor is the defendant. Plus, when challenged by any defendant in such circumastances, the creditor claimant must provide a complete paper trail of all and any variation under the unilateral powers of the alleged agreement right back to the date of inception of said alleged agreement whether it is an IEA or not. The judgment states that this must have a copy of the ORIGINAL agreement at each and every variation along with the new T & C's. Argue all you like and nit pick all you like but the statute is clear and the judgement is clear. I agree that the judge lottery is a problem but other threads show that an appeal would clear up such matters

 

Professional consumer lawyers are stating as much!

 

Sections 100 to 104 or thereabouts plus sections 234 onwards of HHJWQC

 

oilyrag.

 

 

 

Oily

 

What I am saying is not based upon Carey. It is simply the general law.

 

Yes he ruled mainly in relation to s.78. However, s.78 is the only rule in the CPR that requires creditors to produce a copy of the credit agreement (excepting s.62 and 63 which apply at the time the agreement is entered into). What it says is that they can now provide a reconstituted version.

 

When you say that "What Manchester has done positively for the consumer is to ensure that original documents must be brought to court when the alleged debtor is the defendant". IM afraid this is simply not true and if you disagree please cut and paste the quote form the judgment.

 

In relation to the latter part, yes they have to provide the current and original agreement But can reconstitute.

[seriously fed up]

This interested me too. Just at the moment I can't quite turn my head to figuring out how to prove my lenders didn't use this scenario at all.

 

I think it more a case of - I fill in an application, they vet it and say OK, send me the card and I spend away!!

 

The other thing is that Waksman repeatedly uses the term 'attached' in reference to the page containing the T&Cs.

 

To me this is the crux. A signature document should state that the T&Cs are 'attached' or 'overleaf', not 'received a copy' or 'separately'.

 

I am sure you have read the Humbleman case and what happened today. Kind of makes you worry about introducing a novel (in the sense I havent seen it before) argument. But yes that's how I see in Waksman's judgement and also in the 83 Regs. Joining in the "lets set up a fighting fund" movement, but this could another one. Isnt life exciting (he groaned! )

I wouldnt have thought there would be any problem with proving that lenders didnt do it this way - how many ever come up with anything not helpfully headed "application form" or (even better "priority application")? The issue would be how to make the case that they should have gone through three stages and developing an argument about what the consequences should be for them of not following due process. THAT needs some heavy duty legal background work. I have done some work on the 83 Regs, but there could be something in more general contract law. But then a case is needed. Not a short and easy road (another way of saying a long and hard road).

[antigone1974]

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

 

 

 

 

Seriously

 

This is really the crux of what I am saying:

 

Yes banks have to comply with s.61. Yes the agreement does have to be signed by the creditor and must contain the prescribed terms in the document. Yes the banks have to prove their case.

 

BUT

 

The banks can prove that they complied with s61 and s.65 and s.62 an s.63 WITHOUT producing an original copy of the loan agreement.

 

Yes, it is more difficult for them. But the test is the balance of probabilities, so in the absence of a Defendant being able to put forward a positive argument themselves as to why they think the bank didn't comply then it is not impossible and maybe not actually that difficult.