Dissecting the Manchester Test Case....

[diddydicky]

i think you have missed the point

 

we all agree what waksman said and he made it clear that he was ruling only on s78 applications

 

however

 

he also made it clear that he was NOT ruling on s61 and so his comments are at best orbiter dicter and cannot be used to argue to a court that the original agreement must be produced in court

 

the CCA says that in respect of enforcement and bringing legal proceedings the original agreement SHOULD be produced- and it is this one single solitarty word that puts a spoke in what would otherwise be an open and shut case IF ONLY the act has said "Must" or "Shall"

 

thus the only use in court (IMO) to the waksman ruling is to show the court that the creditor mis uses it- not that it sets any precedent in the proceedings

[bustthematrix]

Gosh DD...you were a brainbox back in school days weren't you? Come on, admit it...we don't mind!

[middenmess]

the CCA says that in respect of enforcement and bringing legal proceedings the original agreement SHOULD be produced- and it is this one single solitarty word that puts a spoke in what would otherwise be an open and shut case IF ONLY the act has said "Must" or "Shall"

 

How many of us over the years have been stopped by the Police whilst driving for whatever reason and as we didn't have the requested documents with us we were issued with a HO/RT/1 --a 'producer'-- an example of what is required can be seen on the Hampshire Police page at

 

http://www.hampshire.police.uk/Internet/faq/drivingdocuments.htm

 

 

This form is a legal document but repeatedly the word 'Should' is used on this page.

 

We all know that producing the documents within the given 7 day time frame is not an option and that 'should' means 'must' or 'have to' unless we want to be fined so why is the word 'should' able to be interpreted differently when it appears in the CCA 1974?

[PriorityOne]

 

the CCA says that in respect of enforcement and bringing legal proceedings the original agreement SHOULD be produced- and it is this one single solitarty word that puts a spoke in what would otherwise be an open and shut case IF ONLY the act has said "Must" or "Shall"

 

thus the only use in court (IMO) to the waksman ruling is to show the court that the creditor mis uses it- not that it sets any precedent in the proceedings

 

That really is splitting hairs DD.... what the heck is the big difference between SHOULD and SHALL that makes the former less specific than the latter?

 

I agree that MUST is a stronger word but IMO, SHOULD is enough of a positive instruction for the original Agreement to be produced in court in support of a case. If I'm meant to have (allegedly) signed something (for example), then as a Defendant.... the Claimant is gonna need to prove their case against me.... no woulda, shoulda, coulda about it....

 

Edited November 11, 2010 by PriorityOne
typo

[basa48]

i think you have missed the point

 

we all agree what waksman said and he made it clear that he was ruling only on s78 applications

 

however

 

he also made it clear that he was NOT ruling on s61 and so his comments are at best orbiter dicter and cannot be used to argue to a court that the original agreement must be produced in court

 

the CCA says that in respect of enforcement and bringing legal proceedings the original agreement SHOULD be produced- and it is this one single solitarty word that puts a spoke in what would otherwise be an open and shut case IF ONLY the act has said "Must" or "Shall"

 

thus the only use in court (IMO) to the waksman ruling is to show the court that the creditor mis uses it- not that it sets any precedent in the proceedings

 

Not sure I agree DD, HHJ Waksman actually said:

 

I would not be making a final ruling at this stage on whether the documents as supplied in Carey conformed to s61(1)(a). Moreover, although care needs to be taken with assumed facts it seems to me that a determination on the assumed facts here will be helpful and should provide some general guidance

 

Seems to me a 'determination' is synonymous with 'judgment'.

 

PS: 'should' is the simple past of 'shall'

Edited November 11, 2010 by basa48

[diddydicky]

well dont shoot the messenger.however the difference between the two words in this context is E N O R M O U S

 

just ask any of the caggers (there was one only yesterday) where the court has decided that although the original was not produced-" in all probability one did exist" what the difference is

 

(around £5-£7000 in costs on a fast track lost trial!!)

 

i am ALL FOR taking a stand- but you must not mislead people into thinking that there are not serious consequences in believing that "should" and "must" or not worlds apart

[diddydicky]

How many of us over the years have been stopped by the Police whilst driving for whatever reason and as we didn't have the requested documents with us we were issued with a HO/RT/1 --a 'producer'-- an example of what is required can be seen on the Hampshire Police page at

 

http://www.hampshire.police.uk/Internet/faq/drivingdocuments.htm

 

 

This form is a legal document but repeatedly the word 'Should' is used on this page.

 

We all know that producing the documents within the given 7 day time frame is not an option and that 'should' means 'must' or 'have to' unless we want to be fined so why is the word 'should' able to be interpreted differently when it appears in the CCA 1974?

 

the word "should" in the form refers to the fact that the Hort/1 SHOULD be produced with the documents- not that the doucments requested "should" rather than "must" be produced........ for the simple reason that it is not a legal requirement for the recipient of the HORT/1 to do so-(produce his copy of the HORT/1 with the documents) it just makes marrying up the documents with the officer/station/constabulary that issued it much easier

 

The documents should be produced with this form at the police station nominated by the driver.

the requirement to produce the documents within 7 days (and certain of them IN PERSON) IS a MUST (a legal requirement) the failure to do so resulting in the commiting of an offence- no "should" about it

[middenmess]

So in a nutshell...

 

"Should" = opinion and choice

 

"Must" = rule and no choice

[Basil Fawlty]

well dont shoot the messenger.however the difference between the two words in this context is E N O R M O U S

 

just ask any of the caggers (there was one only yesterday) where the court has decided that although the original was not produced-" in all probability one did exist" what the difference is

 

(around £5-£7000 in costs on a fast track lost trial!!)

 

i am ALL FOR taking a stand- but you must not mislead people into thinking that there are not serious consequences in believing that "should" and "must" or not worlds apart

 

DD are you saying that the fact that a ccc cant produce an original agreement doesnt matter now? Is this avenue now closed for claiming unenforceabiltiy?

I've been reading on another thread that invalid default notices are being ''ok'd'' through the courts now too, so in your opinion, is there anything left now to claim unenforceability?

 

Thanks

BF

[bazaar]

Just me two pennuth on the 'Should' argument.

Maybe we should ( Sorry ) be looking at the consequences of NOT producing the original and what limits the court has in enforcing something that cannot be proven to exist.

IE

Or , The original should be produced at court, the failure of which will result in striking out of the claim.

[means2anend]

DD look up the word 'should' is it descriptive,prescriptive or NORMATIVE?

 

Secondly if should does not amount to must...then forget CCA 1974...use Kneale and CPR or get them to confirm or deny under CPUTR 2008 USE the results from that to then use as positve evidence to satisfy Kneale and CPR 16 OR even to satisy Carey when defeating the absence of putting forward any positive evidence as stated by Waksman

 

m2ae

[diddydicky]

DD are you saying that the fact that a ccc cant produce an original agreement doesnt matter now? Is this avenue now closed for claiming unenforceabiltiy?

I've been reading on another thread that invalid default notices are being ''ok'd'' through the courts now too, so in your opinion, is there anything left now to claim unenforceability?

 

Thanks

BF

 

i,m saying that i just read on another thread that the court ruled- in the absence of an original agreement- the reason for which was that the account was so old the judge had accepted it had probably been lost- that on the balance of probabilities an executed agreement probably had existed and found for the claimant(creditor)

 

thus the wording of the act that the original SHOULD rather than MUST- leaves an open door for the creditor.......................

 

 

there is also reference in the CCA to the debtor "having signed" (past tense) and agreement- rather than stating that there "must still be in existence " an executed agreement

 

 

my point was not to deter anyone from arguing their case but to alert them to the fact that the non existence of an original signed agreement is no guarantee of success

 

 

it is my own personal beleif- the more so in small claims courts- that the judges seem to be taking the line that they will find in favour of the claimant (creditor) in the knowledge that although they may be wrong- it is unlikely that the defendant will have the will or the resources to appeal

[manchestman]

my point was not to deter anyone from arguing their case but to alert them to the fact that the non existence of an original signed agreement is no guarantee of success

 

it is my own personal beleif- the more so in small claims courts- that the judges seem to be taking the line that they will find in favour of the claimant (creditor) in the knowledge that although they may be wrong- it is unlikely that the defendant will have the will or the resources to appeal

 

And that is the important crux of the matter. We all want help with understaning our interpretation of laws and past cases such as Carey, Kneale, but we also want it tempered with a reality check. We definately do need to be forewarned of what is actually happening in the lower courts and not just what we think should (that damn word again!) be happening or just what we want to hear.

 

I have enormous respect for a lot of posters on this site, being relatively inexperienced, and I have especially paid attention to DD, M2M, Andy & PT. But I still like to read PeterBard's (?) posts, however pessimistic or unlikely, but jsut so I can also try to assimilate the 'other' view.

[PriorityOne]

well dont shoot the messenger.however the difference between the two words in this context is E N O R M O U S

 

just ask any of the caggers (there was one only yesterday) where the court has decided that although the original was not produced-" in all probability one did exist"

 

i,m saying that i just read on another thread that the court ruled- in the absence of an original agreement- the reason for which was that the account was so old the judge had accepted it had probably been lost-

 

 

There are cack judges out there DD... and going to court is a lottery. It shouldn't be, but it is. CCA 1974 is quite clear and so is sec 127(3) and on that basis, I don't intend to stress about it.

 

[Gismocat]

has anyone any comments on the Kneale vs Barclaycard case as I see this hasnt been brought up?

[satnewbie]

http://www.bailii.org/ew/cases/EWHC/Comm/2010/1900.html

 

https://www.eversheds.com/uk/home/articles/index1.page?ArticleID=templatedata\Eversheds\articles\data\en\Financial_institutions\Alan_Kneale_v_Barclays_Bank_plc

[basa48]

has anyone any comments on the Kneale vs Barclaycard case as I see this hasnt been brought up?

 

I consider the judgment entirely correct and reasonable.

 

Kneale did not state if he believed he had signed an agreement or not, the exercise was purely a 'fishing trip'. Barclays had not commenced proceedings, it was Kneale who was contemplating proceedings and wished Barclays to provide the evidence to 'hang themselves'.

 

Barclays probably wouldn't ever have been able to produce an executed agreement so why pull the Tigers tail?

[Gismocat]

but then doesnt that mean for those of us who actually want to genuinely question our agreement its just no longer possible as any recon agreement will do for the courts?

[satnewbie]

but then doesnt that mean for those of us who actually want to genuinely question our agreement its just no longer possible as any recon agreement will do for the courts?

Effectively what you have to do is to start, and it means FROM THE START, query as to whether or not you DID sign any agreement or not. You CANNOT leave it till the end. You have to START querying this as soon as you even send the s.77/78 request and make it specific in your letter that this is one of the things you are quering. Read the Carey v HSBC judgement. As an answer to a s.78 request then a recon is ok. As to an IEA then Wakesman says "this is something different and if a properly made application is made then..........." (might not be exact words but basically what he said)

[basa48]

Effectively what you have to do is to start, and it means FROM THE START, query as to whether or not you DID sign any agreement or not. You CANNOT leave it till the end. You have to START querying this as soon as you even send the s.77/78 request and make it specific in your letter that this is one of the things you are quering. Read the Carey v HSBC judgement. As an answer to a s.78 request then a recon is ok. As to an IEA then Wakesman says "this is something different and if a properly made application is made then..........." (might not be exact words but basically what he said)

 

More than that 'satnewbie' I would press home in all correspondence that you dispute signing any executed agreement. Let them prove you did. Saying you don't know indicates unsureness.

[basa48]

but then doesnt that mean for those of us who actually want to genuinely question our agreement its just no longer possible as any recon agreement will do for the courts?

 

Well this now is the crux of the matter. A game of poker. Do the creditors have an enforceable agreement, or not. You can assume that if they have to reconstruct an agreement that they don't have an enforceable copy - maybe.

 

You are then faced with a choice. Stop paying and let them start action and hope there is no enforceable agreement, or agree a token payment which sorta goes to show you fully admit you owe the debt.

[vint1954]

well dont shoot the messenger.however the difference between the two words in this context is E N O R M O U S

 

just ask any of the caggers (there was one only yesterday) where the court has decided that although the original was not produced-" in all probability one did exist" what the difference is

 

(around £5-£7000 in costs on a fast track lost trial!!)

 

i am ALL FOR taking a stand- but you must not mislead people into thinking that there are not serious consequences in believing that "should" and "must" or not worlds apart

 

I think that is right DD. Whatever the law says or intimates, you have to deal with the reality of the situation in lower courts. DJ's are not in gneral experts in CCA and would in all probability take SHOULD as produce it if you have it, or convince me that it existed. "In all probability" is what they would reasonably go for. After all, if you are convinced of your case, then there is always appeal, if you have the pockets.

 

Vint

[vint1954]

Well this now is the crux of the matter. A game of poker. Do the creditors have an enforceable agreement, or not. You can assume that if they have to reconstruct an agreement that they don't have an enforceable copy - maybe.

 

You are then faced with a choice. Stop paying and let them start action and hope there is no enforceable agreement, or agree a token payment which sorta goes to show you fully admit you owe the debt.

 

 

Hi Basa,

 

I think you have to be realistic in lower courts.

 

You can always try and convince your creditor of their predicament by using s61 and Carey 103. onwards, if your agreement has been varied.

 

Vint

[PriorityOne]

I must be going insane here.

 

I've had situations where I've made token payments for YEARS and then stopped them after a CCA request produced no enforceable paperwork... and so have many other Caggers on here that I've assisted. To date, I've NEVER been taken to court but have argued my case effectively enough in writing for creditors... yes creditors ... (as well as DCAs) to get rid of the account pretty sharpish. Solicitors have even dropped action. So why, oh why are we having a shoulda, woulda, coulda argument on here in connection with CCA 1974 please? It makes no difference whether you've made token payments in the past or not.... under CCA 1974; 127(3)... an account is legally unenforceable without the proper docs.

 

I accept that there are some differences re. CCA 2006 in that sec 127(3) cannot be relied upon.... and I also accept that there are cack judges out there who's knowledge of CCA law is not good... but this conversation is becoming a bit misleading IMO and the facts really need to be straightened out from the "what if's" and the "maybe's"....

[Dotty50]

Hi P1,

 

Your letters obviously seem to have the magic touch!

 

I have used one that you posted for me on one of my threads and so far so good.

 

I still wonder at what point CCC's or DCA's decide to proceed with litigation, it seems to have happened very quickly for some on here (even whilst paying via DMC's or other ways) and then like yourself, nothing.

 

I do feel that with recent cases where the judge has not been concerned that an original cannot be produced that maybe we are just in a VERY VERY long queue!