Dissecting the Manchester Test Case....

[means2anend]

Hello Docman!

 

Oppose their application in the strongest terms, pointing out that the Carey Judgment was relating to s78 issues, and went OTT when it started to undermine Wilson and comment on enforcement. Plus stress they are stuffed in any event, without a s87(1) Default Notice.

 

They should be halted in their tracks, but you know I am sure this will be stacked in their favour, as it always is.

 

I have heard mention that at least one Judge so far has rejected Carey v HSBC as not being applicable in enforcement cases.

 

In your friend's case, HSBC are the Claimant, not the Defendant, so the onus is on them to prove their case. They have failed once, and are now trying to have another go on the same issues, using what ought to be regarded as an inapplicable case to support their attempt at trying for Round Two.

 

Cheers,

BRW

 

What about post 1782 BRW??? courtesy of PaulWlton

[means2anend]

The CLAIMANTS were NOT the banks in Carey case...

 

There was NO positive pleading by some of the CLAIMANTS and this was FATAL to their cases.

 

All they said was ''we rely on banks not producing CCa's for there to be no enforcement'..without putting FORWARD a POSITIVE PLEADING...

 

In Docman's friends case..THEY are NOW the CLAIMANTS...BUT they CANNOT put forward a plea because THEY HAVE NO CCA.

 

I think they are going for a strike out precisely 'cos Docman's friend was in the original position of not putting forward a positive plea...SAME POSITION as some of those claimants were in Carey.

 

However para 206(POST 1782) in Carey is interesting 'cos WAKSMAN suggests they CAN commence an ACTION without there being a CCA ... it's all getting murky and confusing.

 

GO FOR s82 and s85 issues....'A copy of THE ORIGINAL' and NOT RECONSTITUTED versions..in addition to s87

 

Hello guest!!!

Edited March 12, 2010 by means2anend
insert ''in addition to s87''

[banker_rhymes_with]

Hello M!

 

What about post 1782 BRW??? courtesy of PaulWlton

What about it?

 

All Paul was doing was quoting Waksman, here's the Post:

 

Post #1782

 

Wacksman said at para 206:

 

 

It is open to a credit card provider to commence enforcement action without a copy of the signed executed agreement. All it needs to do is persuade the Court that this the agreement would have been signed for example by reference to its records of this particular customer and his credit card and its standard procedures and terms at the time. In the absence of some positive evidence from the customer to challenge the execution of the agreement, such evidence is likely to be sufficient.

As I say above, I feel that Waksman was straying past his pay grade to start best guessing enforcement issues in other cases, i.e. whilst he was busy dealing with Consumers taking lenders to Court over s78 issues.

 

It was a step too far.

 

I think they are going for a strike out precisely 'cos Docman's friend was in the original position of not putting forward a positive plea...SAME POSITION as some of those claimants were in Carey.

 

Well, they would be wrong, for the same reasons above.

 

Docman's friend was the Defendant, not the Claimant so this is all back-asswards trying to reverse engineer an old Claim on the basis of a reverse-role s78 Test case (i.e. banks were Defendants, Consumers were Claimants).

 

Cheers,

BRW

[means2anend]

Hello M!

 

What about it?

 

All Paul was doing was quoting Waksman, here's the Post:

 

As I say above, I feel that Waksman was straying past his pay grade to start best guessing enforcement issues in other cases, i.e. whilst he was busy dealing with Consumers taking lenders to Court over s78 issues.

 

It was a step too far.

 

 

 

Well, they would be wrong, for the same reasons above.

 

Docman's friend was the Defendant, not the Claimant so this is all back-asswards trying to reverse engineer an old Claim on the basis of a reverse-role s78 Test case (i.e. banks were Defendants, Consumers were Claimants).

 

Cheers,

BRW

 

I have read the post again and yes my mistake she WAS the defendant it does put a different gloss on it

 

m2ae

[means2anend]

But if they are commencing this then according to para 206 all they need to do is to show that an agreement 'would have been signed' that is still the words of Waksman and you are right Paul was 'only quoting it'

 

Incidentally was not her situation decided before the Carey case???

 

Was her case based on a judgement or just a strike out?..from reading it it appears there was no judgement for her

 

m2ae

Edited March 12, 2010 by means2anend

[stripper]

What the hell's happening here.One minute we can do something ,then on a re-read it appears not to be so.What bloody chance have we got when the 'so called' Judges can't agree on what it all really means.How the blazes can a case such as this be won and then suddenly teetering on being re-opened and possibly lost.What a total crap legal system we have,surely there must be a clear answer to this problem.

Please ,someone out there give us a clue,I bet even Waksman would put a new twist on it.

Stripper

[vint1954]

I would have thought that they have limited time to appeal the strike out.

 

Carey is very clear if you read it. Trying to walk an s78 default past a Judge as an enforcement situation was never going to succeed. You can only guess that the CMC lawyers were not what they appeared to be.

 

It changes nothing regarding documents required in court, when you are the defendant. No point raking it all up again.

 

If a Judge makes a mistake or misdirects himself, then there is appeal. If he was wrong then the appeal succeeds.

[stripper]

Got it

Thanks Vint1954

[seriously fed up]

To address first of all the original question by Docman - yes - Carey has been quoted in this one http://www.consumeractiongroup.co.uk/forum/dealing-debt-scotland/176298-need-help-court-defence-7.html @ post 134 (its actually image 5 when you get there) - but in this case the sols for the other side (in this case RBS) are only asserting (probably correctly in the context of Waksman's judgement - though this case is Scottish and thus Waksman is influential but certainly not authoritative) that they discharge their s78 obligations by producing a reconstruction. The case is - as you will see if you read the thread - ongoing and isnt due for full hearing till early May (8th?). However, the interesting thing here is that this case is about a loan - Waksman was dealing with credit cards (ie this case is covered not by 78 but by 77), so another example of misuse.

 

And while on this case, does anyone know the consequences of proceeding to court without any default notice (ie not a dodgy one - NO notice of default or indeed of termination). There is a good deal that's available on the consequences of dodgy notices, but little on the consequences of no notice at all prior to court action

I would agree with what has been said by Vint and the Banker about a creditor trying to enforce on the back of a reconstruction, but that is not the same thing as saying that the banks wont "try it on".

[means2anend]

Got it

Thanks Vint1954

 

I am confident in my own reading of the Carey judgement and that it does not give the creditors a favourable stance this i truly believe...but then sometimes we ALL need reassuring..

 

Thanks Vint1954!

Edited March 12, 2010 by means2anend
spelling i b4 e in believe

[Docman]

Thanks for all the comments guys. I've calmed down a bit since I heard about this last night and tried to think about what to advise. I can only think the bank are hoping for a DJ who doesn't know anything about the Consumer Credit Act. I had two duffers in my own cases but if we get the same judge who heard my friends application last December, we might be OK. He did know the Act. Snag was the 'runner' representing the bank. He was so rude to us and the judge he couldn't have been a qualified solicitor. Quite old too (50+). He left saying he would be back with a team of barristers from London. I don't mind going into court with my friend again to help her but I don't know what tricks the bank could come up with.

 

For the record, it was a strike out was on a poor POC, so the court didn't actually issue a judgement. Looks like I'll be re-reading Wakesman in detail over the weekend.

[Dotty50]

Looks like I am quite old then!

[means2anend]

Thanks for all the comments guys. I've calmed down a bit since I heard about this last night and tried to think about what to advise. I can only think the bank are hoping for a DJ who doesn't know anything about the Consumer Credit Act. I had two duffers in my own cases but if we get the same judge who heard my friends application last December, we might be OK. He did know the Act. Snag was the 'runner' representing the bank. He was so rude to us and the judge he couldn't have been a qualified solicitor. Quite old too (50+). He left saying he would be back with a team of barristers from London. I don't mind going into court with my friend again to help her but I don't know what tricks the bank could come up with.

 

For the record, it was a strike out was on a poor POC, so the court didn't actually issue a judgement. Looks like I'll be re-reading Wakesman in detail over the weekend.

 

what's snag?

 

Docman...even to the most confident of legal jurists a shock to the system can cloud one's thinking but then daylight sets in again

[lilly white]

FROM THE JUDGE CAREY AND OTHERS.

 

 

1. The basic rule is stated by s65:
   
   "s65
   (1) An improperly-executed regulated agreement is enforceable against the debtor or hirer on an order of the court only.
   (2) A retaking of goods or land to which a regulated agreement relates is an enforcement of the agreement."

   
   

2. Then sl27(l) provides as follows where an application to enforce is made by the creditor:
   
   "..the court shall dismiss the application if, but only if, it considers it just to do so having regard to:
   (i) prejudice caused to any person by the contravention in question, and the degree of culpability for it; and
   (ii) the powers conferred upon it by sub-section 2 and sections 135 and 136 [power to reduce or discharge the sums owed to compensate for prejudice caused, to suspend or place conditions on enforcement or amend an agreement or security].."

   
   

3. Then, sl27(3) provides, in relation to agreements made before 6 April 2007, as follows:
   
   "The Court shall not make an enforcement order under s 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 s60(l)) itself containing all the prescribed terms of the agreement was signed by the debtor ..(whether or not in the prescribed manner)."

   
   

4. Accordingly, non-compliance with the relevant regulations is capable of being cured upon application by the court unless the document signed by the debtor did not contain the Prescribed Terms. In such a case the non-compliance cannot be cured and, in the words of Lord Hoffman in Dimond v Lovell [2002] 1 AC 384 at p397F, the agreement is "irredeemably unenforceable".
   

So they have to produce the document full stop ,

 

Have a good weekend docman

 

kind regards to you all

[means2anend]

it is quite clear from above that s127(3) is saying that A document ITSELF MUST contain the ALL the prescribed terms of the agreement..

 

Waksman has stretched the language ''a document itself'' beyond that which the statute meant.

 

At the end of his judgement in Carey he has said that A DOCUMENT can comprise of many document not necessarily attached to each other provided that ALL the prescribed terms can be found amongst them.

 

How can he in the High Court dilute what The House of Lords meant when THEY said ALL the prescribed terms must be in A DOCUMENT ITSELF.

 

Carey cannot be authoritive on s127(3)..

 

The Agreements regulations 1983 and 2004 amended stresses the importance that this information must not be INTERSPERSED with other information.

 

On that analysis alone it strengthens the case against WAKSMAN's interpretation that Prescribed terms can be found on a number of unattached documents.

 

What do you think???

Edited March 12, 2010 by means2anend

[means2anend]

but what does ''whether or not in the prescribed form and complying with regulations under s60(1 )''mean

 

and also ''whether or not in the prescribed manner'' mean in the same section

 

m2ae

Edited March 13, 2010 by means2anend
substitute 'section' for statute

[basa48]

it is quite clear from above that s127(3) is saying that A document ITSELF MUST contain the ALL the prescribed terms of the agreement..

 

Waksman has stretched the language ''a document itself'' beyond that which the statute meant.

 

At the end of his judgement in Carey he has said that A DOCUMENT can comprise of many document not necessarily attached to each other provided that ALL the prescribed terms can be found amongst them.

 

How can he in the High Court dilute what The House of Lords meant when THEY said ALL the prescribed terms must be in A DOCUMENT ITSELF.

 

Carey cannot be authoritive on s127(3)..

 

The Agreements regulations 1983 and 2004 amended stresses the importance that this information must not be INTERSPERSED with other information.

 

On that analysis alone it strengthens the case against WAKSMAN's interpretation that Prescribed terms can be found on a number of unattached documents.

 

What do you think???

 

Waksman actually said:

 

173. (1) It is not sufficient for the piece of paper signed by the debtor merely to cross-refer to the Prescribed Terms without a copy of those terms being supplied to the debtor at the point of signature;

 

It is this 'supplied at the point of signature' that is critical. Unless an agreement says T&Cs attached or overleaf or some other phrase that suggests they were present when the debtor signed, the creditor is going to find it hard to prove they were.

 

If there is any wording such as 'I have received' or 'supplied separately' this suggests there were NOT present at signature.

[lilly white]

this is the reason why they cant be in any other doc

 

Page 1

UK Parliament SIs 1980-1989/1983/1551-1600/Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553)

1983 No 1553

Consumer Credit (Agreements) Regulations 1983

Made - - - 24th October 1983

Authority: Consumer Credit Act 1974, ss 60, 61(1)(a), 105(9), 114(1), 127(3), 182(2), 189(1)

UK Parliament SIs 1980-1989/1983/1551-1600/Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553)/1 Citation,

commencement and interpretation

1 Citation, commencement and interpretation

(1) These Regulations may be cited as the Consumer Credit (Agreements) Regulations 1983 and shall come into

operation on 19th May 1985.

(2) In these Regulations, unless the context otherwise requires--

"the Act" means the Consumer Credit Act 1974;

"advance payment" includes any deposit and in relation to a regulated consumer credit agreement includes also any

part-exchange allowance in respect of any goods agreed in antecedent negotiations to be taken by the creditor in part-

exchange but does not include a repayment of credit or any insurance premium or any amount entering into the total

charge for credit;

"the APR" means the annual percentage rate of charge for credit determined in accordance with the Total Charge for

Credit Regulations and Schedule 7 to, these Regulations and, in the case of modifying agreements, Regulation 7 of, and

Part I of Schedule 8 to, these Regulations;

"cancellable agreement" includes an agreement which is a modifying agreement treated under section 82(5) of the Act

as a cancellable agreement;

"cash price" in relation to any goods, services, land or other things means the price or charge at which the goods,

services, land or other things may be purchased by, or supplied to, the debtor for cash;

[. . .]

["contract of shortfall insurance" means anything in writing which contains or purports to contain some promise or

assurance (however worded or presented) that if a sum payable under a contract of insurance against loss of or damage

to goods is less than the amount necessary to defray--

(a) any amount of credit provided to finance the purchase of those goods; and

(b) any other amount included in the total charge for that credit,

to the extent that these remain unpaid at the date of the loss or damage, a sum up to but not exceeding that shortfall will

be paid;]

"earlier credit agreement" means an earlier agreement for the provision of credit;

"earlier hire agreement" means an earlier agreement for the bailment or the hiring of goods;

["guarantee of goods" means anything in writing which contains or purports to contain some promise or assurance

(however worded or presented) that defects in goods will be made good by complete or partial replacement, or by

Page 1 of 50

Page 2

repair, monetary compensation or otherwise;]

"hire payment" means any payment to be made by the hirer in relation to any period in consideration of the bailment or

hiring to him of goods under a regulated consumer hire agreement;

"lettering" includes figures and symbols;

"modified agreement" means an earlier agreement as varied or supplemented by a modifying agreement, which is

treated as--

(a) revoking the earlier agreement, and

(b) containing provisions reproducing the combined effect of the two agreements;

"the relevant date" shall be determined in accordance with the Total Charge for Credit Regulations and, in the case of

modifying agreements, Regulation 7(7) below;

"total charge for credit" shall be determined in accordance with the Total Charge for Credit Regulations [and Schedule

7 to these Regulations] and, in the case of modifying agreements, Regulation 7 of, and Part I of Schedule 8 to, these

Regulations; and

"the Total Charge for Credit Regulations" means the Consumer Credit (Total Charge for Credit) Regulations 1980.

[(2A) References in these Regulations to contracts of insurance must be read with--

(a) section 22 of the Financial Services and Markets Act 2000;

(b) any relevant order under that section; and

© Schedule 2 to that Act.]

(3) In these Regulations, any reference to a repayment is a reference to--

(a) a repayment of the whole or any part of the credit;

(b) a payment of the whole or any part of the total charge for credit; or

© a combination of such repayments and payments.

NOTES

Amendment

Para (2): definition "contract of insurance" (omitted) inserted by SI 1984/1600, reg 2(a).

Para (2): definition "contract of insurance" (omitted) revoked by SI 2001/3649, art 375(1).

Date in force: 1 December 2001: see SI 2001/3649, art 1.

Para (2): definition "contract of shortfall insurance" inserted by SI 2004/1482, regs 2, 3(1), (2).

Date in force: 31 May 2005: see SI 2004/1482, reg 1; for transitional provisions see reg 18 thereof.

Para (2): definition "guarantee of goods" inserted by SI 1984/1600, reg 2(a).

Para (2): in definition "total charge for credit" words "and Schedule 7 to these Regulations" in square brackets inserted by

SI 2004/1482, regs 2, 3(1), (3).

Page 2 of 50

Page 3

Date in force: 31 May 2005: see SI 2004/1482, reg 1; for transitional provisions see reg 18 thereof.

Para (2A): inserted by SI 2001/3649, art 375(2).

Date in force: 1 December 2001: see SI 2001/3649, art 1.

Regulations 1983 (SI 1983/1553)/[2 Form

UK Parliament SIs 1980-1989/1983/1551-1600/Consumer Credit (Agreements) and content of regulated consumer credit agreements]

[2 Form and content of regulated consumer credit agreements]

[(1) Subject to paragraphs (2) and (9) below, documents embodying regulated consumer credit agreements (other than

modifying agreements) shall contain the information set out in Column 2 of Schedule 1 to these Regulations in so far as it

relates to the type of agreement referred to in Column 1.

(2) Where any information about financial and related particulars set out in paragraphs 9 to 11 of Schedule 1 to these

Regulations cannot be exactly ascertained by the creditor, estimated information based on the assumptions referred to in

paragraph 10 of that Schedule, where applicable, and otherwise such assumptions as the creditor may reasonably make in

all the circumstances of the case and a statement of the assumptions made shall be included in documents embodying

regulated consumer credit agreements.

(3) Subject to paragraph (9) below, documents embodying regulated consumer credit agreements, other than

agreements of the description specified in the Schedule to the Consumer Credit (Notices of Cancellation Rights)

(Exemptions) Regulations 1983 in relation to which there are no charges forming part of the total charge for credit (in this

regulation referred to as "exempted agreements"), shall contain statements of the protection and remedies available to

debtors under the Act, in the Form numbered in Column 1 of Part 1 of Schedule 2 to these Regulations and set out in

Column 3, in so far as they relate to the type of agreement referred to in Column 2.

(4) Subject to paragraphs (5) and (9) below, the information, statements of the protection and remedies, signature and

separate boxes which this regulation requires documents embodying regulated consumer credit agreements to contain,

shall be set out in the order given by paragraphs (a) to (f) below under, where applicable, the headings specified below--

(a) the nature of the agreement as set out in paragraph 1 of Schedule 1 to these Regulations;

(b) the parties to the agreement as set out in paragraph 2 of Schedule 1 to these Regulations;

[© under the heading "Key Financial Information", the financial and related particulars set out in paragraphs 6 to

8B, 11 to 14 and 15 to 17 of Schedule 1 to these Regulations;]

(d) under the heading "Other Financial Information", the financial and related particulars set out in paragraphs 3 to 5,

9, 10, 14A and 18 to 19A of Schedule 1 to these regulations;

(e) under the heading "Key Information"--

(i) the information set out in paragraphs 20 to 24 of Schedule 1 to these Regulations; and

(ii) the statements of protection and remedies set out in Schedule 2 to these Regulations; and

(f) the signature box and, where applicable, the separate box required by paragraph (7)(b) below;

and such information, statements of protection and remedies, signature and separate boxes shall be shown together as a

whole and shall not be preceded by any information apart from trade names, logos or the reference number of the

agreement or interspersed with any other information or wording apart from subtotals of total amounts and cross

references to the terms of the agreement

[diddydicky]

Thanks for all the comments guys. I've calmed down a bit since I heard about this last night and tried to think about what to advise. I can only think the bank are hoping for a DJ who doesn't know anything about the Consumer Credit Act. I had two duffers in my own cases but if we get the same judge who heard my friends application last December, we might be OK. He did know the Act. Snag was the 'runner' representing the bank. He was so rude to us and the judge he couldn't have been a qualified solicitor. Quite old too (50+). He left saying he would be back with a team of barristers from London. I don't mind going into court with my friend again to help her but I don't know what tricks the bank could come up with.

 

For the record, it was a strike out was on a poor POC, so the court didn't actually issue a judgement. Looks like I'll be re-reading Wakesman in detail over the weekend.

 

that makes me ancient!!

[Docman]

Actually it was my friend who thought he was old, which made me smile as I'm looking forward to my pension shortly.

[seriously fed up]

this is the reason why they cant be in any other doc

 

Page 1

UK Parliament SIs 1980-1989/1983/1551-1600/Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553)

1983 No 1553

Consumer Credit (Agreements) Regulations 1983

Made - - - 24th October 1983

Authority: Consumer Credit Act 1974, ss 60, 61(1)(a), 105(9), 114(1), 127(3), 182(2), 189(1)

UK Parliament SIs 1980-1989/1983/1551-1600/Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553)/1 Citation,

commencement and interpretation

1 Citation, commencement and interpretation

(1) These Regulations may be cited as the Consumer Credit (Agreements) Regulations 1983 and shall come into

operation on 19th May 1985.

(2) In these Regulations, unless the context otherwise requires--

"the Act" means the Consumer Credit Act 1974;

"advance payment" includes any deposit and in relation to a regulated consumer credit agreement includes also any

part-exchange allowance in respect of any goods agreed in antecedent negotiations to be taken by the creditor in part-

exchange but does not include a repayment of credit or any insurance premium or any amount entering into the total

charge for credit;

"the APR" means the annual percentage rate of charge for credit determined in accordance with the Total Charge for

Credit Regulations and Schedule 7 to, these Regulations and, in the case of modifying agreements, Regulation 7 of, and

Part I of Schedule 8 to, these Regulations;

"cancellable agreement" includes an agreement which is a modifying agreement treated under section 82(5) of the Act

as a cancellable agreement;

"cash price" in relation to any goods, services, land or other things means the price or charge at which the goods,

services, land or other things may be purchased by, or supplied to, the debtor for cash;

[. . .]

["contract of shortfall insurance" means anything in writing which contains or purports to contain some promise or

assurance (however worded or presented) that if a sum payable under a contract of insurance against loss of or damage

to goods is less than the amount necessary to defray--

(a) any amount of credit provided to finance the purchase of those goods; and

(b) any other amount included in the total charge for that credit,

to the extent that these remain unpaid at the date of the loss or damage, a sum up to but not exceeding that shortfall will

be paid;]

"earlier credit agreement" means an earlier agreement for the provision of credit;

"earlier hire agreement" means an earlier agreement for the bailment or the hiring of goods;

["guarantee of goods" means anything in writing which contains or purports to contain some promise or assurance

(however worded or presented) that defects in goods will be made good by complete or partial replacement, or by

Page 1 of 50

Page 2

repair, monetary compensation or otherwise;]

"hire payment" means any payment to be made by the hirer in relation to any period in consideration of the bailment or

hiring to him of goods under a regulated consumer hire agreement;

"lettering" includes figures and symbols;

"modified agreement" means an earlier agreement as varied or supplemented by a modifying agreement, which is

treated as--

(a) revoking the earlier agreement, and

(b) containing provisions reproducing the combined effect of the two agreements;

"the relevant date" shall be determined in accordance with the Total Charge for Credit Regulations and, in the case of

modifying agreements, Regulation 7(7) below;

"total charge for credit" shall be determined in accordance with the Total Charge for Credit Regulations [and Schedule

7 to these Regulations] and, in the case of modifying agreements, Regulation 7 of, and Part I of Schedule 8 to, these

Regulations; and

"the Total Charge for Credit Regulations" means the Consumer Credit (Total Charge for Credit) Regulations 1980.

[(2A) References in these Regulations to contracts of insurance must be read with--

(a) section 22 of the Financial Services and Markets Act 2000;

(b) any relevant order under that section; and

© Schedule 2 to that Act.]

(3) In these Regulations, any reference to a repayment is a reference to--

(a) a repayment of the whole or any part of the credit;

(b) a payment of the whole or any part of the total charge for credit; or

© a combination of such repayments and payments.

NOTES

Amendment

Para (2): definition "contract of insurance" (omitted) inserted by SI 1984/1600, reg 2(a).

Para (2): definition "contract of insurance" (omitted) revoked by SI 2001/3649, art 375(1).

Date in force: 1 December 2001: see SI 2001/3649, art 1.

Para (2): definition "contract of shortfall insurance" inserted by SI 2004/1482, regs 2, 3(1), (2).

Date in force: 31 May 2005: see SI 2004/1482, reg 1; for transitional provisions see reg 18 thereof.

Para (2): definition "guarantee of goods" inserted by SI 1984/1600, reg 2(a).

Para (2): in definition "total charge for credit" words "and Schedule 7 to these Regulations" in square brackets inserted by

SI 2004/1482, regs 2, 3(1), (3).

Page 2 of 50

Page 3

Date in force: 31 May 2005: see SI 2004/1482, reg 1; for transitional provisions see reg 18 thereof.

Para (2A): inserted by SI 2001/3649, art 375(2).

Date in force: 1 December 2001: see SI 2001/3649, art 1.

Regulations 1983 (SI 1983/1553)/[2 Form

UK Parliament SIs 1980-1989/1983/1551-1600/Consumer Credit (Agreements) and content of regulated consumer credit agreements]

[2 Form and content of regulated consumer credit agreements]

[(1) Subject to paragraphs (2) and (9) below, documents embodying regulated consumer credit agreements (other than

modifying agreements) shall contain the information set out in Column 2 of Schedule 1 to these Regulations in so far as it

relates to the type of agreement referred to in Column 1.

(2) Where any information about financial and related particulars set out in paragraphs 9 to 11 of Schedule 1 to these

Regulations cannot be exactly ascertained by the creditor, estimated information based on the assumptions referred to in

paragraph 10 of that Schedule, where applicable, and otherwise such assumptions as the creditor may reasonably make in

all the circumstances of the case and a statement of the assumptions made shall be included in documents embodying

regulated consumer credit agreements.

(3) Subject to paragraph (9) below, documents embodying regulated consumer credit agreements, other than

agreements of the description specified in the Schedule to the Consumer Credit (Notices of Cancellation Rights)

(Exemptions) Regulations 1983 in relation to which there are no charges forming part of the total charge for credit (in this

regulation referred to as "exempted agreements"), shall contain statements of the protection and remedies available to

debtors under the Act, in the Form numbered in Column 1 of Part 1 of Schedule 2 to these Regulations and set out in

Column 3, in so far as they relate to the type of agreement referred to in Column 2.

(4) Subject to paragraphs (5) and (9) below, the information, statements of the protection and remedies, signature and

separate boxes which this regulation requires documents embodying regulated consumer credit agreements to contain,

shall be set out in the order given by paragraphs (a) to (f) below under, where applicable, the headings specified below--

(a) the nature of the agreement as set out in paragraph 1 of Schedule 1 to these Regulations;

(b) the parties to the agreement as set out in paragraph 2 of Schedule 1 to these Regulations;

[© under the heading "Key Financial Information", the financial and related particulars set out in paragraphs 6 to

8B, 11 to 14 and 15 to 17 of Schedule 1 to these Regulations;]

(d) under the heading "Other Financial Information", the financial and related particulars set out in paragraphs 3 to 5,

9, 10, 14A and 18 to 19A of Schedule 1 to these regulations;

(e) under the heading "Key Information"--

(i) the information set out in paragraphs 20 to 24 of Schedule 1 to these Regulations; and

(ii) the statements of protection and remedies set out in Schedule 2 to these Regulations; and

(f) the signature box and, where applicable, the separate box required by paragraph (7)(b) below;

and such information, statements of protection and remedies, signature and separate boxes shall be shown together as a

whole and shall not be preceded by any information apart from trade names, logos or the reference number of the

agreement or interspersed with any other information or wording apart from subtotals of total amounts and cross

references to the terms of the agreement

 

 

Sorry Lilly, but this isnt the case - or not for anything signed before 31st May 05. God knows I wish you were right. I used to think this as well, before someone drew my attention to the fact that at the end of that section it says that reg 2 has been introduced as an ammendment.

If you look at the attachment to this - the original regs - you will see the changes and what they had to work to before May 05. The best source, I think, is schedule 1.

Consumer Credit (Agreements) Regulations 1983 version.pdf

[means2anend]

Sorry Lilly, but this isnt the case - or not for anything signed before 31st May 05. God knows I wish you were right. I used to think this as well, before someone drew my attention to the fact that at the end of that section it says that reg 2 has been introduced as an ammendment.

If you look at the attachment to this - the original regs - you will see the changes and what they had to work to before May 05. The best source, I think, is schedule 1.

 

 

Well...according to the above

 

If copies of reconstituted agreements show up where those agreements were made before 31/05/05 and they tend to be constructed in harmony post facto 31/05/05 this would suggest that there has been dodgy goings on.... because again it would suggest they have been retrospectively restructuring documents.

 

All I am saying is that if original agreements prior to requirements of structure and prescribed content were made BEFORE those requirements...either they are Massively co-incidental or there is time travelling involved OR indicates a tendency to 'doctor' copies of the original agreements...

 

I am only speaking of agreements made before and still live at 31/05/05.

 

m2ae

Edited March 13, 2010 by means2anend
insert 'before' and 'at'

[means2anend]

Waksman actually said:

 

 

 

It is this 'supplied at the point of signature' that is critical. Unless an agreement says T&Cs attached or overleaf or some other phrase that suggests they were present when the debtor signed, the creditor is going to find it hard to prove they were.

 

If there is any wording such as 'I have received' or 'supplied separately' this suggests there were NOT present at signature.

 

''A document itself'' must contain all the prescribed terms supplied at the point of signature

 

well whats wrong with that...it makes sense

[seriously fed up]

Absolutely m2ae. My point - and my reason for making the post - was that if you work from the ammended (ie post May 05) regs on an agreement that preceded that and does not reflect its changed requirements, they (I mean the banks) will take great pleasure in telling you this if you challenge them on some point in the agreement (eg re headings/ sig box/ order of terms etc). Best avoided. I have had it from Egg - not on a crucial point, but it does give them the opportunity to talk down to you.

Completely agree re Waksman - though I suspect that the banks may not.

[means2anend]

Absolutely m2ae. My point - and my reason for making the post - was that if you work from the ammended (ie post May 05) regs on an agreement that preceded that and does not reflect its changed requirements, they (I mean the banks) will take great pleasure in telling you this if you challenge them on some point in the agreement (eg re headings/ sig box/ order of terms etc). Best avoided. I have had it from Egg - not on a crucial point, but it does give them the opportunity to talk down to you.

Completely agree re Waksman - though I suspect that the banks may not.

 

Yes

An ACT of Parliament is SUPREME...so many occasions have judges said that it

is their job to interpret and give effect to Parliament's will.

 

Their are 3 types of statutory interpretation;

 

1-The Literal Rule

2-The Golden Rule ( or Purposive Rule)

3-The Mischief Rule

 

Applying any one of those rules still leaves the reader in no apprehension that s127(3) is still referring to a ''document itself must contain all the prescribed terms.''

..And has been given that Judicial backing in HOL

 

The Literal Rule is self explanatory on a reading applying that rule should take the section on its face value.

 

BOTH the Golden and Mischief Rules can be given force by the intentions and objectives behind the Legislation itself..i.e..The discussions that ensued in Crowther and Hansard

 

It appears that Judges ONLY want to interpret and give effect to legislation in such a way when it suits them.

 

I thought that one of the purposes of Charles II being deposed was that there was no True Independance of The Judicary and the resulting Glorious Revolution of 1688

 

So come on Judges either brush up on your LAW or truly incorporate the spirit

of your independance...