Dissecting the Manchester Test Case....

[ieuanMr]

Thank you

[angry cat]

Solicitors Regulation Authority - For consumers

 

click on: Legal Complaints Service!

[paulwlton]

A judge today held that Carey is not applicable in enforcement cases.

[elizabeth1]

A judge today held that Carey is not applicable in enforcement cases.

????? can you say where? is this published anywhere we can link to?

[emandcole]

A judge today held that Carey is not applicable in enforcement cases.

 

Given the bizarre nature of the decisions on what constituted enforcement I'm not surprised. I never understood how a creditor could instigate litigation as that wasn't enforcement but then could not take advantage of that litigation as securing a judgement is classed as enforcement .

 

Hopefully some sense will come of this!

[diddydicky]

interesting, any link to it?

[ieuanMr]

Spot on Emandcore, how can a creditor threaten legal action without asking for enforcement? But then we are not judges.

[emandcole]

Can assure you things would be very different if I was a judge! I always liked Judge John Deed on the TV. Did what was necessary and if the establishment was wrong so be it. We need more judges like him who aren't scared of alienating their 'superiors'. No wonder the legal system, including criminal, is such an antiquated dinosaur

[haggis1984]

Can assure you things would be very different if I was a judge! I always liked Judge John Deed on the TV. Did what was necessary and if the establishment was wrong so be it. We need more judges like him who aren't scared of alienating their 'superiors'. No wonder the legal system, including criminal, is such an antiquated dinosaur

 

We need Judge Judy!

[Nagasis]

I thought it was mcguffick v rbs which was relevant to what constituted enforcement not carey v hsbc

[angry cat]

interesting, any link to it?

 

I would like that link as well!

[emandcole]

I thought it was mcguffick v rbs which was relevant to what constituted enforcement not carey v hsbc

 

Think Carey is the enforcement one but I could be corrected on that?

 

Carey covered running account credit and I believe will not be appropriate for other forms of credit...again could be wrong on this!

 

Wasn't Mcguffick a different form of credit like a personal loan?

[Nagasis]

yes mcguffick was fixed term credit (s77)

 

81.

Once it is recognised that the bringing of proceedings is not enforcement, it necessarily follows that activities (iii) to (vi) do not constitute enforcement, since they are all steps taken prior to the commencement of proceedings and therefore by definition, at most, steps taken with a view to enforcement.

 

82.

I do not consider that either reporting to the CRAs or the related activities referred to in (i) and (ii) come anywhere near amounting to enforcement if activities (iii) to (vi) are not enforcement. These activities are concerned with reporting to CRAs or other third parties and are not even steps taken prior to enforcement such as threatening proceedings would be. Even if one accepted (which for reasons given earlier in this judgment I do not) the claimant’s somewhat pejorative categorisation of reporting to CRAs as being motivated by the desire to pressurise the claimant into paying the outstanding balance, at its highest that is an attempt by indirect means to persuade the claimant to pay. If demanding payment directly or through a third party does not amount to enforcement, it is difficult to see how such indirect means could do so, even if the claimant were right as to the relevant motive of the bank.

 

mcguffick - rbs

[haggis1984]

So Mcguffick doesnt apply to credit cards?

[diddydicky]

I thought it was mcguffick v rbs which was relevant to what constituted enforcement not carey v hsbc

 

carey was about reconstituted agreements being acceptable in response to s78 requests

 

i think the poster was stating that a judge has ruled that this cannot be held to be the case where a creditor is seeking to enforce an agreement

[Nagasis]

carey was about reconstituted agreements being acceptable in response to s78 requests

 

i think the poster was stating that a judge has ruled that this cannot be held to be the case where a creditor is seeking to enforce an agreement

 

thanks for clearing it up for me. That is good news.

[diddydicky]

thanks for clearing it up for me. That is good news.

 

certainly is - cant wait to get my hands on it!!

[vint1954]

Solicitors are still trying to use carey as justification for producing a reconstruction in court:rolleyes:

[angry cat]

Solicitors are still trying to use carey as justification for producing a reconstruction in court:rolleyes:

 

and with current Terms: roll eyes...

[vint1954]

and with current Terms: roll eyes...

Spot on.

 

There should be a scale of fees for enlightening solicitors. I know the law is a huge area, but these folk specialize.

 

I have just had one solicitor, point me towards Wodchester, as proof the a DN does not have to be accurate????????

 

Oh well, back to repairing the head shaped hole in the wall.

[oilyrag]

I think we are getting into over dissection again. Carey v HSBC was in fact a series of LEAD cases not TEST cases as has been stated and verified on this thread previously. For reference check the case management conferences which took place early in October 2009 at Manchester Mercantile Court.

 

These LEAD cases were put together to be heard in order to attempt to establish some ground, procedural and "housekeeping" rules due to the overwhelming number of cases being brought before the courts by CMC's on behalf of clients claiming unenforcability of their alleged agreements under Section 78 of the CCA1974.

 

Whilst much is constantly made on here about reconn agreements etc. these according to HHJ Waksman QC may, note may be acceptable in response to a section 78 request by an alleged debtor or their representatives (note the questions in his words actually in the judgement handed down re substance) however in his OWN WORDS in his summaries particularly section 234 if memory serves correctly he stressed the word ORIGINAL and even placed further difficulites on the banks and CCs by stating they had to provide the original at every variation along with the modified T & Cs right back to date of inception.

 

Our solicitors were THERE!

 

Representing a client who insisted on proceeding as a claimant and not waiting to defend. Hence the confusion that seems to be spreading about this case and which has just been ruled by another judge as irrelevant in enforcement via the courts. Exactly as HHJ Waksman stated it to be so.

 

Hope that this provides a little clarification for those a little concerned by this case. It may well be that the actual Carey v HSBC case itself may well be taken to full trial, in which case only evidential facts will be acceptable to the court, not the assumed facts that HHJW ruled upon.

 

Regards

oilyrag.

[angry cat]

Spot on.

 

There should be a scale of fees for enlightening solicitors. I know the law is a huge area, but these folk specialize.

 

I have just had one solicitor, point me towards Wodchester, as proof the a DN does not have to be accurate????????

 

Oh well, back to repairing the head shaped hole in the wall.

 

Tripe; utter Tripe!

[Redfish]

I think we are getting into over dissection again. Carey v HSBC was in fact a series of LEAD cases not TEST cases as has been stated and verified on this thread previously. For reference check the case management conferences which took place early in October 2009 at Manchester Mercantile Court.

 

These LEAD cases were put together to be heard in order to attempt to establish some ground, procedural and "housekeeping" rules due to the overwhelming number of cases being brought before the courts by CMC's on behalf of clients claiming unenforcability of their alleged agreements under Section 78 of the CCA1974.

 

Whilst much is constantly made on here about reconn agreements etc. these according to HHJ Waksman QC may, note may be acceptable in response to a section 78 request by an alleged debtor or their representatives (note the questions in his words actually in the judgement handed down re substance) however in his OWN WORDS in his summaries particularly section 234 if memory serves correctly he stressed the word ORIGINAL and even placed further difficulites on the banks and CCs by stating they had to provide the original at every variation along with the modified T & Cs right back to date of inception.

 

Our solicitors were THERE!

 

Representing a client who insisted on proceeding as a claimant and not waiting to defend. Hence the confusion that seems to be spreading about this case and which has just been ruled by another judge as irrelevant in enforcement via the courts. Exactly as HHJ Waksman stated it to be so.

 

Hope that this provides a little clarification for those a little concerned by this case. It may well be that the actual Carey v HSBC case itself may well be taken to full trial, in which case only evidential facts will be acceptable to the court, not the assumed facts that HHJW ruled upon.

 

Regards

oilyrag.

 

Thanks Oilyrag, this is very useful insight. It confirms what I've been saying all along, which is that in s.78 requests we can demand a copy of the original because all our agreements have been varied if we're looking at those made before April 2007.

 

I would be very interested to learn all the differences between LEAD cases and TEST cases...can you provide more info on that? Thanks!

[angry cat]

I think we are getting into over dissection again. Carey v HSBC was in fact a series of LEAD cases not TEST cases as has been stated and verified on this thread previously. For reference check the case management conferences which took place early in October 2009 at Manchester Mercantile Court.

 

These LEAD cases were put together to be heard in order to attempt to establish some ground, procedural and "housekeeping" rules due to the overwhelming number of cases being brought before the courts by CMC's on behalf of clients claiming unenforcability of their alleged agreements under Section 78 of the CCA1974.

 

Whilst much is constantly made on here about reconn agreements etc. these according to HHJ Waksman QC may, note may be acceptable in response to a section 78 request by an alleged debtor or their representatives (note the questions in his words actually in the judgement handed down re substance) however in his OWN WORDS in his summaries particularly section 234 if memory serves correctly he stressed the word ORIGINAL and even placed further difficulites on the banks and CCs by stating they had to provide the original at every variation along with the modified T & Cs right back to date of inception.

 

Our solicitors were THERE!

 

Representing a client who insisted on proceeding as a claimant and not waiting to defend. Hence the confusion that seems to be spreading about this case and which has just been ruled by another judge as irrelevant in enforcement via the courts. Exactly as HHJ Waksman stated it to be so.

 

Hope that this provides a little clarification for those a little concerned by this case. It may well be that the actual Carey v HSBC case itself may well be taken to full trial, in which case only evidential facts will be acceptable to the court, not the assumed facts that HHJW ruled upon.

 

Regards

oilyrag.

 

Agree.

 

Furthermore, that has been the view of many, including mine, for some years now!

[seriously fed up]

Solicitors are still trying to use carey as justification for producing a reconstruction in court:rolleyes:

 

 

Spot on Vint. There are two cases in Scotland just now

http://www.consumeractiongroup.co.uk/forum/scotland/212092-bombshell-dropped-today-advice.html

and

http://www.consumeractiongroup.co.uk/forum/dealing-debt-scotland/176298-need-help-court-defence-8.html#post2774061

 

where RBS (your "national" bank) is trying to enforce Two agreements for which inter alia they dont seem to have the originals. Basically their argument seems to be "lending took place; here's a reconstruction of the "original agreement", and the statements as proof; can we have an order to make them pay up?"

Neither of them has been at full hearing yet, but these will take place in March - think the first of them (the second thread above) is 5th March. Interestingly - again in the second thread case - Carey has been mentioned positively by OS.

I know these are Scottish cases, and the procedure and jargon will be different but it is always the Consumer Credit Act, so if anyone on this thread thinks they MIGHT have something to offer, please drop by, have a look and leave a view. I think they are important cases - very important for the people involved - but important for us all as cases heard early after Manchester where the banks are trying to fundamentally misuse Carey, which I see as a s78 case, with little to do with s61 and enforcement. I think its important that this is stood on firmly at an early stage. I think these two guys have cases which, properly presented, could do this.

Thanks

SFU

Edited February 26, 2010 by seriously fed up