Dissecting the Manchester Test Case....

[basa48]

Hi Nick20045

 

who is durkin?

 

Rgds

 

m2ae:?

 

Durkin-v-DSG Retail (damages for default)

[means2anend]

Durkin-v-DSG Retail (damages for default)

 

 

Nice One basa48

 

I shall read this afternoon

 

rgds

 

m2ae:)

[diddydicky]

as a layman i would have thought that damages for unlawful rescission in the case of a cca would be limited to any damage caused by the information given to cra''s

 

after all- if the debtor gains a windfall (not having to pay the sums not yet due) and has to pay only the arrears due to the creditors unlawful rescission- then he will be hard put to claim financial losses

 

courts do not "automatically" award damages (i saw 1000 mentioned a while ago) for unlawful rescission the loss has to be tangible and provable

 

IMO

[davefirewalker]

According to durkin v dsg (as above) and khoprhar v somebody, loss doesnt have to be proved. the potential damage caused by misreporting can be considerable.

 

rgds

 

dave

[diddydicky]

Further still, in assessing damages the law will not even award what the parties may at formation of the agreement have agreed should be payable as liquidated damages in the event of breach. The court will not permit the recovery of liquidated damages unless the damages represent a fair pre-estimate of what loss might flow from the breach. If the liquidated damages are shown to be excessive and unrepresentative of the sactual loss suffered the law will readily declare the liquidated damages as a penalty and unenforceable.

 

In short, not only does the law tolerate contract breaking, but also, it will not tolerate the injured party taking advantage of the wrongdoer. The law does not pounce on the contract breaker to teach him a lesson. The court only awards the innocent party what damages truly flow from the breach. That admits of the possibility that a contract breaker can get away with it. If the injured party is unable to show resulting loss, the injured party may get nothing.

 

'One must look at the contract as a whole, and if it is clear that the innocent party has lost nothing, he should recover no more than nominal damages for the loss of his right to have the whole contract completed.'*[Edmund Davies LJ in*'The Mihalis Angelos'*(1971)]

[diddydicky]

as i said before loss due to adverse information could indeed be substantial however you would have to show that there was no "other" adverse, statements from potential creditors that they were not prepared to lend to you etc and ad nauseum

 

it really aint easy just to say thank you m'lud- where's me cheque!

[emandcole]

I would argue otherwise based on the following info . Have a read through this. In essence the judge points out that due to the extremely high reliance modern society has attached to a credit score the very act of an incorrectly placed marker on your file is in itself damage enough and that no actual proof of loss needs to be provided to claim damages, an amount that is not insubstantial in fact.

 

115. The case of King v British Linen & Co dealt with the situation where there had been no specific damage. The only loss which the pursuer had occurred sustained was the loss to his credit standing. That was valued by the sheriff at £100 in 1897, a figure which was not interfered with in the Inner House. It is clear that the reason that the Inner House did not consider it appropriate to interfere with it was because they were dealing with a case where, in the words of Lord Kinnear, "No exact measure" of damages could be fixed. The case is clear authority to the effect that award of damages can be made for simple injury to credit although no actual loss is sustained. It is not, in my opinion, authority for the proposition where injury to credit causes actual loss or damage the fact of the injury itself warrants an award over and above the actual losses.

 

116. Wilson v United Counties Bank Limited was a case brought by an individual (Wilson) and his trustee in bankruptcy against Wilson's bank. The defenders' negligent handling of the plaintiff's estate whilst he was away on military service caused an actual loss to the estate, and also resulted in the pursuer, Wilson being made bankrupt. The trustee in bankruptcy was held entitled to recover actual losses caused by the negligent management. There was only one claim in respect of damage to credit, namely the fact that Wilson was made bankrupt when, had the defenders managed his affairs prudently, he would not have been. There was no claim that Wilson had suffered any specific loss to his credit by virtue of the bankruptcy, but the fact of bankruptcy was recognised as a serious injury to his general credit standing. This resulted in an award in 1919 of £7,500. The case, as was also the case with King v British Linen, was based on breach of contract and not negligence. The Lord Chancellor, Lord Birkenhead, said of the type of case where a banker, though his customer's account is in funds, nevertheless dishonours the customer's cheque, that the refusal to meet the cheque is so obviously injurious to the credit of a trader that the latter can recover without allegation of special damage reasonable compensation for the injury done to his credit.

 

 

 

He applied that principle to the circumstances of Wilson's case where a defendant had expressly contracted to sustain the financial credit of a trading customer and breached that obligation. At page 120, Viscount Findlay said that the fact of bankruptcy must injure the credit of the person made bankrupt, apart from damage to the estate. He continued "In an action for negligence against a solicitor leading to the bankruptcy of his client even if due to fortuitous circumstances the estate had not been damaged, it seems on principle that the jury might give substantial damages for injury to the credit of the person made bankrupt." Later on he said "It was urged that proof must be given of special damage in order to sustain the verdict on this head for more than nominal damages. I cannot see on what principal this contention rests. The mere fact of bankruptcy imports damage to the credit of the bankrupt. It is a natural consequence, and it is for the jury to assess the damages for such a slur."

 

 

117. Had there been no finding of specific loss in this case, I would have had no hesitation in finding that an award of damages for the mere injury to credit was appropriate. In modern society credit plays a very big part in the conduct of the daily lives of a significant portion of the population. The financial services industry is constantly advertising loans, credit cards, store cards, mortgages, consolidation accounts etc. To have one's credit worthiness impugned so that one is at risk of being unable to obtain credit on the grounds that he is not credit worthy is, if anything, a more significant matter for the individual than it would have been at the time of King, over a hundred years ago. Mr Beynon has submitted that a figure of £10,000 would be appropriate. The figure of £100 awarded by the sheriff and left standing by the Inner House in King v British Linen translates, according to the Office of National Statistics Publication "Focus on consumer price indices" 2008, table 5/3, to £9,975 in the year 2008. The figure of £5,500 awarded to an individual in Kpohraror v Woolwich Building Society 1996 4All ER 119 was not interfered with by the Court of Appeal in 1996 and, in today's figures, would be worth £8,215.

 

117. Kpohraror confirmed that such damages were available to individuals who were not traders. In that case a cheque was dishonoured and then the matter put right within 24 hours.

 

118. Also in that case the plaintiff claimed both special damages and the general damages of £5,500. Lord Justice Evans said at page 124 "The credit rating of individuals is as important for their personal transactions, including mortgages and hire purchase as well as banking facilities, as it is for those who are engaged in trade, and it is notorious that central registers are now kept. I would have no hesitation in holding that what is in effect a presumption of some damage arises in every case in so far as this is a presumption of fact."

119. Evans LJ went on to consider the issue of special damages separately. There is, however, nothing in the judgment of Evans LJ to indicate that had the special damages claim been made out he would not have made an award in terms of the general damage claim. Lord Justice Waite and Sir John May each agreed in all respects with the judgment of Lord Justice Evans

120. The cases of Kpohraror, King and Wilson were all based on contract but it does not seem to me that there is any difference in principle between the nature of damages to be awarded in respect of a loss of credit brought about by a breach of contract, and one brought about by negligent misrepresentation.

121. In these circumstances and standing such a recent decision where the claims appear to have been treated as being capable of existing together, I find that the pursuer is entitled to an award for the general damage to his credit in addition to an award in respect of the actual loss flowed sustained. Having regard to all the circumstances I consider that an appropriate award would be £8,000.

 

Your credit worthiness is therefore highly valued and clearly the law recognises that, a useful argument as a defendant if an incorrectly placed marker has been added perhaps due to incorrect default and termination for example and the creditor has commenced litigation.

 

Given the above values which have not been considered excessive by the judiciary et al, I suspect many cases could effectively be stopped in their tracks as the claimant realises there is possibility of the defendant counter claiming a greater value back than their claim is worth. Handy for pre trial negotiation then .

[diddydicky]

i think that is what i said in my first post!!

 

however, the point i was making is that if the person concerned had already been defaulted on other agreements or the adverse information on his credit file BEFORE the case in question was such that his creditworthlness and reputation were ALREADY impuned- then he would have no realistic prospect of alleging that this latest adverse information damaged his reputation any more than it had already been damaged

 

 

I also think that sometimes caggers can get "carreid away" with their success in court

 

these are highly specialised areas of law and i would suggest that 99% of caggers would do well to "stop whilst they are ahead"!!

[haggis1984]

i think that is what i said in my first post!!

 

however, the point i was making is that if the person concerned had already been defaulted on other agreements or the adverse information on his credit file BEFORE the case in question was such that his creditworthlness and reputation were ALREADY impuned- then he would have no realistic prospect of alleging that this latest adverse information damaged his reputation any more than it had already been damaged

 

This was my thinking too DD tbh. Does any of the case law above address this issue?

 

 

I also think that sometimes caggers can get "carreid away" with their success in court

 

these are highly specialised areas of law and i would suggest that 99% of caggers would do well to "stop whilst they are ahead"!!

 

 

IMO having an agreement decalred unenforceable in court is already a win - I don't think the majority of caggers would push through a claim for damages to credit rating.

[emandcole]

i think that is what i said in my first post!!

 

however, the point i was making is that if the person concerned had already been defaulted on other agreements or the adverse information on his credit file BEFORE the case in question was such that his creditworthlness and reputation were ALREADY impuned- then he would have no realistic prospect of alleging that this latest adverse information damaged his reputation any more than it had already been damaged

 

 

I also think that sometimes caggers can get "carreid away" with their success in court

 

these are highly specialised areas of law and i would suggest that 99% of caggers would do well to "stop whilst they are ahead"!!

 

 

Ah, that makes a lot of sense and changes a lot

[247orbital]

I doubt it would make any difference if you had other defaults on your credit file. It would be a case by case situation.

[stalin's dead]

my case is a classic example of why it is so important to see A COPY OF THE ACTUAL SIGNED AGREEMENT. In my case when i rec'd the orginal agreement to sign in 2005 i refused to sign it (because the bank had included PPI against my wishes) and sent it back with a covering letter. 2 days later they paid the money into my bank. I needed the money and the bank knew this. When i defaulted on my debt in 2009 i requested a CCA and they sent me a copy of the actual agreement only for me to discover 2 alien signatures on the CCA. someone at the bank had signed the PPI to trigger a commission payment and the loan signature to confirm a technical requirement of the loan ie any signature rather than no signature. even the two signatures on the agreement are totally different when you would expect them to be exactly the same ie written by the debtor (me or whoever)

 

with the passage of time your memory fades and what you believe to be true sometimes turns out to be completely false. that is why seeing a copy of the original or indeed the original itself is absolutely vital

 

in my case the A & L offered a full repayment of PPI last week but ive told them to stick it cos i know and they know that someone in their offices way back in 2005 was being fruadulent and dishonest

 

ask for a copy of the original because these banks especially back in 2004-2008 were abusing their duty to their customers in many ways

[InformedSearcher]

my case is a classic example of why it is so important to see A COPY OF THE ACTUAL SIGNED AGREEMENT. In my case when i rec'd the orginal agreement to sign in 2005 i refused to sign it (because the bank had included PPI against my wishes) and sent it back with a covering letter. 2 days later they paid the money into my bank. I needed the money and the bank knew this. When i defaulted on my debt in 2009 i requested a CCA and they sent me a copy of the actual agreement only for me to discover 2 alien signatures on the CCA. someone at the bank had signed the PPI to trigger a commission payment and the loan signature to confirm a technical requirement of the loan ie any signature rather than no signature. even the two signatures on the agreement are totally different when you would expect them to be exactly the same ie written by the debtor (me or whoever)

 

with the passage of time your memory fades and what you believe to be true sometimes turns out to be completely false. that is why seeing a copy of the original or indeed the original itself is absolutely vital

 

in my case the A & L offered a full repayment of PPI last week but ive told them to stick it cos i know and they know that someone in their offices way back in 2005 was being fruadulent and dishonest

 

ask for a copy of the original because these banks especially back in 2004-2008 were abusing their duty to their customers in many ways

 

 

You know in the back of my mind I always wonder when we do CCA's and SAR's that it's always 100% honest. It's that kind of niggling thought that maybe something as above can and I'm sure happens. The fact that A&L were fined over PPI does not make you competant of the integrity of what should be perfect and honest companies.

 

When I read the above I was quite shocked that someone in an office decided to 'change' what was agreed. The fact that years clock on and then you are surprised to what you see, makes the alarm bells ring. I guess this happens in all levels of the financial industry. The thoughts of 'only human' come to mind.

 

Michael

[means2anend]

my case is a classic example of why it is so important to see A COPY OF THE ACTUAL SIGNED AGREEMENT. In my case when i rec'd the orginal agreement to sign in 2005 i refused to sign it (because the bank had included PPI against my wishes) and sent it back with a covering letter. 2 days later they paid the money into my bank. I needed the money and the bank knew this. When i defaulted on my debt in 2009 i requested a CCA and they sent me a copy of the actual agreement only for me to discover 2 alien signatures on the CCA. someone at the bank had signed the PPI to trigger a commission payment and the loan signature to confirm a technical requirement of the loan ie any signature rather than no signature. even the two signatures on the agreement are totally different when you would expect them to be exactly the same ie written by the debtor (me or whoever)

 

with the passage of time your memory fades and what you believe to be true sometimes turns out to be completely false. that is why seeing a copy of the original or indeed the original itself is absolutely vital

 

in my case the A & L offered a full repayment of PPI last week but ive told them to stick it cos i know and they know that someone in their offices way back in 2005 was being fruadulent and dishonest

 

ask for a copy of the original because these banks especially back in 2004-2008 were abusing their duty to their customers in many ways

 

 

 

 

You are ABSOLUTELY RIGHT

 

AND I HAVE THE EVIDENCE...I requested a cca to MARLINS..HSBC being the Original lender.I requested it sometime early last year.I received 'a' true copy' from MARLINs.

 

In the meantime I actually found NOT only the copy of the agreement BUT ALSO the UNSIGNED part that was forgotten to be sent back and should have been signed my me .In other words I had both my copy AND what ought to have been signed and returned to them BEFORE they loaned me any monies.

 

I therefore am in the unique position of being able to compare the actual ORIGINALS and their reconstituted 'honest and accurate' true copy.

 

My agreement is obviously IRREDEEMABLY UNENFORCEABLE under s127(3) as this is still a live agreement and was made before the repeal of section127(3)

 

In the 'honest and 'accurate copy' which Marlins sent me ...the date of the agreement is out by 13 months, the apr has increased by almost 2 whole per cent..the first date for repayment is to be made a year earlier than it should be and the the monthly instalments have increased by an extra 11 months.

 

These ARE ALL PRESCRIBED TERMS IN ADDITION to it being a 'DIShonest and INaccurate copy'

The manager who actually signed on my UNEXECUTED copy is different from the one that has been signed in MARLINS reconstitution..NO doubt I shall be writing off almost £7000 on this one but I WILL also being going to the press on this and the OFT to show the MASSIVE MISTAKE that LEARNED JUDGE made in making it virtually impossible for us to prove that this malpractice is going on daily in the thousands.

 

As I said I am fortunate in that I CAN PROVE THIS FRAUDULENT ACTIVITY... and am not going to let this opportunity go by.Just waiting for the right timing..I have already written a warning letter to Marlins BEFORE I FOUND my agreements and now their LICENCE WILL BE IN JEOPARDY for malpractice .

 

Although Judge did put limitations on them by saying it must be ''an honest and accurate copy'' he also implied that they can be fraudulent in cases where they have done this in 'good faith'.... WHAT, WHY, AND HOW DO THESE IDIOTS GET THESE TOP JOBS..I will show WHAT A MISTAKE HE MADE WHEN THE PRESS GET HOLD OF IT.

 

THE VERY FEARS WE HAD THAT THESE BANKS WOULD EXPLOIT THIS WEAKNESS IN THE CASE AT MANCHESTER HAS COME TRUE.THERE IS ALSO A GREAT TEMPTATION FOR THEM TO COMMIT FRAUD>

 

....WAKSMAN WAS ABSOLUTELY WRONG TO COME TO THIS CONCLUSION AND THE OFT SHOULD APPEAL TO THE COA...so as to at the least reverse the burden on showing that it is in fact an 'honest and accurate copy' and that the liability on this is STRICT and not just reconstituted in good faitrh.

 

I goona PLAY with MARLIN's BEFORE I NAIL THEM AND HSBC depending on nature of relationship and the knowledge they had...CONSPIRACY comes to my mind...SHALL KEEP YOU UPDATED ON THIS ONE

 

 

 

 

m2ae:D:-x

Edited February 6, 2010 by means2anend

[Gallahad]

Great stuf m2ae sock it to em:D

G

[charley2212]

Both Barrels And Compo Etc

[Laura Cooke]

I mentioned a while ago that "Fraud" is actually taking place (desperation to claw bank money back) yes I know it was a strong word to use but a true word to use in some cases it is actually happening here is clear proof. But these type of people don`t do this!!! they are mistakes!! just like the MP`s they are mistakes someone hurled in to a benefits agency for a few pounds it would be FRAUD & THEFT and MISTAKE wouldnt be a word familiar to the fraud squad for normal people

[Enron]

I know that the 3 MPs and 1 Lord that looked to be charged by the CPP are arguing that they are above the law by claiming Parliamentary privilege.

 

Well if politicians are able to enact legislation that gives them immunity from prosecution then the very law which everyone else complies to is a joke, and maybe it's time for a fundamental rethink.

[Laura Cooke]

Yes and as a ordinary person being charged are we not finger printed, dna took, photographed and put through humiliation so why haven`t these!!!

[InformedSearcher]

I know that the 3 MPs and 1 Lord that looked to be charged by the CPP are arguing that they are above the law by claiming Parliamentary privilege.

 

Well if politicians are able to enact legislation that gives them immunity from prosecution then the very law which everyone else complies to is a joke, and maybe it's time for a fundamental rethink.

 

 

Actually it must upset these people because Parlimentary privilege does NOT include criminal action. The fact that they might in the 'house' call others and normally just apologise afterwards extends little further than that. What was much privilege years ago has nowadays all but frizzled away. It would be exceptionally amusing to see them go down this track.

 

Michael

[PriorityOne]

But these type of people don`t do this!!! they are mistakes!! just like the MP`s they are mistakes someone hurled in to a benefits agency for a few pounds it would be FRAUD & THEFT and MISTAKE wouldnt be a word familiar to the fraud squad for normal people

 

I have always said this...

 

Benefit cheats have recently been re-branded as thieves.... whereas tax evasion is often nudged and winked about.

 

Same principle..... but usually a different social class at the root of both.

[Gallahad]

We live in a society beset by double standards unfortunately

[seriously fed up]

I have always said this...

 

Benefit cheats have recently been re-branded as thieves.... whereas tax evasion is often nudged and winked about.

 

Same principle..... but usually a different social class at the root of both.

 

Harry Lauder used to talk about this - his introduction to "I belong to Glasgow" - that the rich guy when he was ****ed would get taken home in his Rolls Royce, but the working chap would get lifted for being drunk and disorderly.

Plus ca change, plus la meme chose.

[Laura Cooke]

We live in a society beset by double standards unfortunately

 

 

Yes it is unfortunate that`s why such as this site and a few others I could mention are opening peoples eyes up to the indifferences and people are starting to lean towards striking the balance, no one should be above the law and people are fighting back. MP`s are bending over backwards to fight being made to pay back the money they have scammed!!! and how much in fact have they had it only came to light by chance and would have continued to do so had they had their way!!! whereas a single Mum on benefits who as made a few quid will be treat like public enemy number one who are the real crooks here!!!

 

They want to change that advert on TV about benefit cheats and make one refering to MP`s and Bankers they are the real crooks fleecing this country and are peeved that there is now a campaign to stop them from continuing to do so. And the lottery Judges try to make us feel guilty for trying to evade our small debts it`s a drop in the ocean to what these toe rags have had, even Dick Turpin wore a mask lol I say what`s good enough for the goose is good enough for the gander so here we come!!!

[means2anend]

When I go to the Press...my aim is to make sure that the effect of it will be broad in the sense that many will be met with ''sorry we cannot re-constitute an honest and accurate copy'' on this occasion we have reduced the balance to nil and closed our files accordingly.

 

As I said I do not wish to miss this opportunity to limit the victory to just my individual situation as as mentioned above but am considering the most effective and resourceful modus operandi so the media can expand the coverage in order that it positively affects the many..(Jeremy Bentham's for greater good of the many...) that is why you have not seen me do it YET..BUT IT IS GOING TO HAPPEN...WATCH THIS SPACE.

 

What I shall do in a couple of days is show you up on post my copy and unsigned copy and... 'honest and accurate' 'true copy' sent by Marlins/HSBC

 

I do not have enough ink in printer..at moment

 

Also bear in mind what 'Waksman said in CAREY...that the 'true copy' MUST NOT be a MERE ASSERTION nor a FORMALITY but SHALL be a true copy of the ORIGINAL''

 

Rgds

 

m2ae

Edited February 7, 2010 by means2anend