Dissecting the Manchester Test Case....

[bustthematrix]

Hi Kaz

As I've suggested on your thread, this sounds like a hasty judge so it's worth appealing. You know, the "I've all it with all these Lips trying to avoid paying, they owe the money, they should just pay! Couldn't really care what the law says" type of judge. They are human too, often allow prejudice to influence them and sometimes just having a bad day.

 

As long as your defence was robust and you challenged the reconstructions and Witness Statements (I'm assuming they had these), the law is clearly on your side on this one.

 

If you lose on appeal, your costs will go up somewhat but if I were in your shoes, I know what I'd do. I'm assuming you can't afford to pay anyway and will look to offer a token sum every month for as long as?

[stripper]

We appear to be crapped on at a great hight by the twisted and curved 'dual' legal system.Surely to god this bo**ox is wrong ,how are we going to fight this kind of blatant mis-interpretation of the statutes.Who pulling the strings??

Stripper

[Duffers Mum]

hi

please see my thread here

http://www.consumeractiongroup.co.uk...-V-Cabot/page3

 

i have lost this case today cabot admitted the original was destroyed all they had was an mosly unreadable copy the jadge said due to wakesmans ruling it was all they needed. i argued that wakesman only dealt with a sec 78 req for copy of agreement but he was having none of it. he said if wakesman ruled that a copy was all that was needed for sec 78 req thren that was all that was needed in court. Good luck to all the people on here that are pinning their hopes on the original agreement not being held as i believe many of them will now lose.

kaz

 

Kaz

 

I'm sorry to hear this and it doesn't bode well for the rest of us in a similar position. Crapot have provided me with a reconstructed agreement too and I fear they will take it to court, i do have a couple of things up my sleeve which I don't want to divulge on here for obvious reasons, but am now wondering whether it would be better to make them a F&F "without prejudice" offer.

[Dotty50]

Kaz

 

I'm sorry to hear this and it doesn't bode well for the rest of us in a similar position. Crapot have provided me with a reconstructed agreement too and I fear they will take it to court, i do have a couple of things up my sleeve which I don't want to divulge on here for obvious reasons, but am now wondering whether it would be better to make them a F&F "without prejudice" offer.

 

I think a lot on here will be thinking along the same lines DuffersMum, if they have any way of doing it.

 

It's trying to establish how to go about it that is the problem IMO.

 

If you make a F & F offer 'without prejudice' and it still ends up in court, you can't easily produce this evidence to say you have tried to settle.

 

If you make an offer any other way, aren't you just admitting liability?

[Basil Fawlty]

Ive just seen this post on another thread:

 

(quote)Carey vs HSBC [2009] EWHC 3417, Judge Waksman also stated that if the agreement has been varied, e.g. the

interest

rate has increased since the account was

opened then the creditor has to provide a copy of the original agreement as well as the varied terms.

 

http://www.bailii.org/cgi-bin/markup...2009/3417.html

 

Summary of findings at the bottom point (4)(unquote)

 

 

So, if the judge in kaz's case is so keen to follow Judge Waksman, would it have made a difference to mention the above? Judge Waksman states that the original must be produced in this case.

 

 

 

[paulwlton]

Ive just seen this post on another thread:

 

(quote)Carey vs HSBC [2009] EWHC 3417, Judge Waksman also stated that if the agreement has been varied, e.g. the

interest

rate has increased since the account was

opened then the creditor has to provide a copy of the original agreement as well as the varied terms.

 

http://www.bailii.org/cgi-bin/markup...2009/3417.html

 

Summary of findings at the bottom point (4)(unquote)

 

 

So, if the judge in kaz's case is so keen to follow Judge Waksman, would it have made a difference to mention the above? Judge Waksman states that the original must be produced in this case.

 

 

 

 

A true copy of the original which as we know may be reconstituted.

 

Secondary evidence as always been permissible in proving a case on the balance of probabilities.

 

There's no authority which states a signed original CCA agreement MUST be produced for enforcement, until one is achieved it's judge lottery i'm afraid.

[Basil Fawlty]

So, Paul, where has the belief that a s78 request can be a reconstituted copy, but to be enforceable in court, the original must be produced, come from? I've certainly believed this for the last 18 months, obviously wrongly.

 

cheers

 

BF

[basa48]

If this is the way for the future, it is certain the CCA is now totally worthless. Now all a creditor needs to do is walk into the court, say to the judge "Yes he did sign a fully compliant agreement your honour - do you want me to go and knock one up while you have a cuppa?"

 

Let's face it, we can now all knock up a credit agreement and say "Wayne Rooney signed this, he owes me £1,000,000 - sorry the original got lost".

[kaz3571]

This was for a loan account not a credit card so terms wernt varied at any point. Also i argued practice direction 16 that where based on written agreement the original must be produced. the judge dismissed this from his stupid law book saying another statuate surpassed this and if theyd made a mistake it didnt matter. please dont ask exactly what he quoted because to be honest i was out of my depth by that point.

[basa48]

A true copy of the original which as we know may be reconstituted.

 

Secondary evidence as always been permissible in proving a case on the balance of probabilities.

 

There's no authority which states a signed original CCA agreement MUST be produced for enforcement, until one is achieved it's judge lottery i'm afraid.

 

Paul

 

I can't agree. Waksman clearly indicates a recon is OK for information purposes it is NOT proof of an executed agreement. No one is expecting the actual original but a copy of the original i.e. a photocopy, not someones idea of what should have been the agreement.

 

(3) Once it is accepted that provision of a photocopy to the debtor is not required and that the signature may be omitted, it is not clear why the purpose is not simply information as to what the agreement contained as opposed to proof of its making;

 

(11). Second, it assumes that there is no obligation on the debtor to make out at least some sort of positive case as to improper (or non-) execution of the original agreement. If he does and for example asserts positively that although he has been using a credit card agreement for years he never actually signed an agreement, or one that complied with s61, the creditor may well have to try and find the original in order to deal with that allegation. (I deal further with the absence of such positive allegations in relation to s61 when I consider below the Applications.) But that tells one nothing about the scope of s78;

 

(13) I have already adverted to the overarching purpose of the Act being consumer protection within the ambit of a new and consistent framework which has benefits for lenders, too. But that does not impel a conclusion that the purpose of s78 must be the Proof Purpose.

 

(14) Mrs Thompson submitted that the approach she advocated with Mr Uff was not merely dependent on the Proof Purpose but also followed from the language of s78. But I do not accept that the language here impels that result and all the factors already mentioned point away from it.

 

54. Accordingly, the copy need not be as contended for by Mr Uff and Mrs Thompson and instead, a creditor can satisfy its duty under s78 by providing a reconstituted version of the executed agreement which may be from sources other than the actual signed agreement itself.

 

62. But this argument depends on the correctness of the Proof Purpose being the driver behind s78 and the Copies Regulations, which I have rejected.

 

105. The fact that the purpose of s78 falls short of the supply of proof or the best evidence possible of the executed agreement does not undermine this.

 

199. I have already held that the purpose of the s78 copy is not to provide proof.

[PriorityOne]

There seems to be some confusin over CCA 1974 and CCA 2006 here. CCA 1974 has the benefit of sec 127(3).... CCA 2006 does not.

[middenmess]

hi

please see my thread here

http://www.consumeractiongroup.co.uk...-V-Cabot/page3

 

i have lost this case today cabot admitted the original was destroyed all they had was an mosly unreadable copy the jadge said due to wakesmans ruling it was all they needed. i argued that wakesman only dealt with a sec 78 req for copy of agreement but he was having none of it. he said if wakesman ruled that a copy was all that was needed for sec 78 req thren that was all that was needed in court. Good luck to all the people on here that are pinning their hopes on the original agreement not being held as i believe many of them will now lose.

kaz

 

Taken from

Judgement:Rankine v Amex

 

Mr and Mrs Rankine have represented themselves throughout all these claims and have been granted the usual indulgences to litigants in person by the court and the advocates appearing for the financial institutions.

 

Seems that those 'indulgences' were lacking for you unfortunately.

[ruinedbynatwest]

hi

please see my thread here

http://www.consumeractiongroup.co.uk...-V-Cabot/page3

 

i have lost this case today cabot admitted the original was destroyed all they had was an mosly unreadable copy the jadge said due to wakesmans ruling it was all they needed. i argued that wakesman only dealt with a sec 78 req for copy of agreement but he was having none of it. he said if wakesman ruled that a copy was all that was needed for sec 78 req thren that was all that was needed in court. Good luck to all the people on here that are pinning their hopes on the original agreement not being held as i believe many of them will now lose.

kaz

 

Chin Up Kaz,

 

I am continuing in genuine dismay where the common law (Judge's rule of precedent) decisions

in these cases grow further and further away from the provisions clearly expressed within the Statute. These days I take a wider view of things insofaras my own challenges to the Court, that in my case, Story (a leading case on Section 18 CCA 1974), the Judges concealed evidence to reach a decision favourable to the bank (Natwest) knowing that the precedent set would be binding upon the lower courts. That the decision in Story was binding is evidenced by the string of cases that followed - where there is no analysis of the true CCA position in that a regulated debt is refinanced. But, never mind the intricacies that feature in Story - the principle remains the same, in that Parliament intervened to repel the Common Law as it applied to consumer credit on the principle that the Common Law 'buried' the true ratio of individual cases under the mass of case law that develops over the years - as Lord Crowther held as the main reason for recommending that a new legal framework should replace this thicket of conflicting case law.

 

Sadly, the Common Law has successfully defeated Mr Bennion's drafting, and he himself states that a reason for this is that the drafter of eg the 1983 agreements regulations, drafted some 9 years after the passing of the original 1974 CCA, did not himself understand Mr Bennion's drafting, clear as it was.

 

So, where does this leave us ?

 

Evidently we need another Royal Commission that is prepared, as Crowther was, to criticize the common law, but, let's face it, noone is prepared in today's economic climate to upset the applecart, which would be the inevitable conclusion of such an objective tribunal.

 

I am maintaining my approaches to the Court of Appeal to reopen Story on the grounds that the Court deliberately concealed evidence of an existing regulation to favour the bank. Naive ? Whether naive of me or not, the facts speak for themselves - the Judges took a political decision to hide evidence knowing that at least £300 Billions' depended on their decision - a sum now vastly increased which the country just cannot afford to address. A very sad state of affairs.

John Story

www.ruinedbynatwest.com

[seriously fed up]

i have already posted on this in Kaz's own thread, but even at the danger of repeating myself, I have to say that I agree with Basa on this one and for two reasons. First of all, because it does seem to me that Waksman took the view that s78 was about information, it wasnt about proof. One can see this in the early stages of the judgement, because he at this stage he was laying the groundwork to refuse the application which was on the basis that s78 was about proof and he must have realised he couldnt have it both ways - Carey et al were arguing essentially that if a lender couldnt come up with a copy of the agreement then the agreement was void - Waksman did them on the basis that it was only about information, allied to allowing a reconstruction (though why when there are photocopiers?). They cannot have it both ways - its either about proof (and if it was Carey arguably should have won - and I think this point is emphasised by s105 reproduced by Basa above) or about information.

Secondly because the CCA is quite clear - to be enforceable an agreement has to be signed and to contain the three prescribed terms - otherwise we end up at s127 (3). I am mindful of Paul's point on the balance of probabilities, but even on that (pretty much lowest of the low) standard of evidence there has to be some sort of corroboration that would confirm these were the terms and in the form actually signed (what I mean here is that were the prescribed terms in the sig document that you signed - this could easily be manipulated in a reconstruction). In any event, I would go back to the CCA which couldnt be clearer - signed document with the prescribed terms contained.

Lastly, if they dont have the original, how can what they present be a copy? Of what? Of what suits them? Takes me back to my point about manipulation.

[ruinedbynatwest]

Serioulsyfedup,

I couldn't agree more. The problem is that the judges are keen to uphold the common law in preference (prejudice) to the Statute, and here, as you suggest they have supported the creditor by utilising the "balance of probabilities" common law test, (which requires 51%), as opposed to the Statute's "though shalt keep x,y,z" (ie 100%) to 'presume' that the creditor, as a responsible lender would 'in all probability' have supplied the proper documents, but, again, in all probability, these records were 'probably' lost !! What an absolute nonsense this is, where the CCA actually says "Lenders don't like documenting because it places the debtor at a disadvantage should problems arise (cos most can't afford the costs of litigation), so we'll make it clear DOCUMENT and KEEP the documents". As you say, and as Mr Bennion said, this then makes things very simple for all concerned. Odd, innit, how suddenly, all these lenders are "mislaying" documents they swear they produced ?

It's nothing other than Daylight robbery, perpetrated by Common Law advocates.

 

John Story

 

www.ruinedbynatwest.com

 

John Story

Edited October 16, 2010 by ruinedbynatwest
typos

[seriously fed up]

Thanks for your reply and I substantially agree with you about the substitution of common law for statutory law. However, i have one caveat which comes from a comparison of the current matter in hand, to practice on Industrial Relations. In Industrial Relations law, there was never (however contrary it ran to common sense) a right to strike in the UK. There were only certain statutory immunities from being sued in common law (eg for inducing the strikers to breach their contracts of employment). Take the situation the led to the Trade Disputes Act of 1965. This concerned a dispute at what was then British Overseas Airlines Corp (BOAC - now part of British Airways for the youngsters on here). This was in the days of the closed shop and the airline were THREATENED (this is crucial) with a strike if they didnt dismiss an employee who had resigned his union membership. The said employee succceeded in an action against the union officials because while taking strike action attracted a statutory immunity, the union had only THREATENED action and the THREAT of action was not protected by statute (tell the judge that one the next time you are accused of splitting hairs!). So Parliament legislated to offer protection to the threat of industrial action and closed the loophole.

What's my point? Well in that case, the judge (as they often did) found a way of subverting the protection that Parliament had given the unions - in this case while industrial action was protected, threatening it was not. However one might feel about this, the fact is that there was a loophole which the judge if he was minded to do this could use. In the circumstances that we are concerned with here, it doesnt seem to me that this applies. Its not as if there is uncertainty. It seems to me quite clear from s61 that there must be a signed document with the prescribed terms contained. If this cannot be proven then we end up at s127 (3) through the route we are all familiar with. There is no loophole for the judge to exploit. He can of course decide for himself that he can substitute his view for statutory law, but if he does he is wrong. He is wrong both in terms of the Consumer Credit Act 1974, but he is also wrong in terms of Waksman's judgement, which makes clear that a recon is only acceptable for the purposes of information and not for the purposes of proof. And in this respect, if the lender presents a reconstruction the question always has to be that if they dont have the original, a reconstruction of what exactly? What did they copy from? If there is no signature, what did you sign?

I have one account where I am being chased by a DCA on the back of a reconstruction which only relates to me in that my name and address have been typed on the top. I am certain that this account actually began life as a "loyalty" card and one day they sent me a credit card for which I never signed any agreement.

However, in essence my point is that common law can be employed where there is a gap in statutory law - my example of the Trade Disputes Act being an example. But it doesnt seem to me that there is a gap in the CCA which is quite clear there has to be a signed agreement in order to have an account enforced. If the lender has decided to get rid of them (as a cost saving measure) or cannot produce a legible copy, then the consequences are for them to bear. Much of the laxity with documents was, I understand, provoked by the rush to earn maximum bonus - well the chickens have just come back.

[seriously fed up]

One other thing - I had an account with a bank which included PPI, but i have lost the paperwork. Can I still bring a case? My mate was on a similar account and he still has his. Could I put that to the court?

Silly example, but its what they are saying.

[Basil Fawlty]

Thanks for your reply and I substantially agree with you about the substitution of common law for statutory law. However, i have one caveat which comes from a comparison of the current matter in hand, to practice on Industrial Relations. In Industrial Relations law, there was never (however contrary it ran to common sense) a right to strike in the UK. There were only certain statutory immunities from being sued in common law (eg for inducing the strikers to breach their contracts of employment). Take the situation the led to the Trade Disputes Act of 1965. This concerned a dispute at what was then British Overseas Airlines Corp (BOAC - now part of British Airways for the youngsters on here). This was in the days of the closed shop and the airline were THREATENED (this is crucial) with a strike if they didnt dismiss an employee who had resigned his union membership. The said employee succceeded in an action against the union officials because while taking strike action attracted a statutory immunity, the union had only THREATENED action and the THREAT of action was not protected by statute (tell the judge that one the next time you are accused of splitting hairs!). So Parliament legislated to offer protection to the threat of industrial action and closed the loophole.

What's my point? Well in that case, the judge (as they often did) found a way of subverting the protection that Parliament had given the unions - in this case while industrial action was protected, threatening it was not. However one might feel about this, the fact is that there was a loophole which the judge if he was minded to do this could use. In the circumstances that we are concerned with here, it doesnt seem to me that this applies. Its not as if there is uncertainty. It seems to me quite clear from s61 that there must be a signed document with the prescribed terms contained. If this cannot be proven then we end up at s127 (3) through the route we are all familiar with. There is no loophole for the judge to exploit. He can of course decide for himself that he can substitute his view for statutory law, but if he does he is wrong. He is wrong both in terms of the Consumer Credit Act 1974, but he is also wrong in terms of Waksman's judgement, which makes clear that a recon is only acceptable for the purposes of information and not for the purposes of proof. And in this respect, if the lender presents a reconstruction the question always has to be that if they dont have the original, a reconstruction of what exactly? What did they copy from? If there is no signature, what did you sign?

I have one account where I am being chased by a DCA on the back of a reconstruction which only relates to me in that my name and address have been typed on the top. I am certain that this account actually began life as a "loyalty" card and one day they sent me a credit card for which I never signed any agreement.

However, in essence my point is that common law can be employed where there is a gap in statutory law - my example of the Trade Disputes Act being an example. But it doesnt seem to me that there is a gap in the CCA which is quite clear there has to be a signed agreement in order to have an account enforced. If the lender has decided to get rid of them (as a cost saving measure) or cannot produce a legible copy, then the consequences are for them to bear. Much of the laxity with documents was, I understand, provoked by the rush to earn maximum bonus - well the chickens have just come back.

 

But have they? From the court results on here I've been reading lately, it seems like the judges dont give a damn about original agreements.....

 

BF

[ruinedbynatwest]

]

 

"I am certain that this account actually began life as a "loyalty" card and one day they sent me a credit card for which I never signed any agreement".

 

Hi seriouslyfedup,

 

They're not allowed to send "credit tokens" - I believe a criminal offence is committed if here, the card, was not requested by the debtor. I can't recall the exact provison of the 1974 CCA, but it is there. I'll dig out my copy of same - it's here somewhere !!

I've become occupied with the simplicity of my case - that is that regulated agreements were refinanced, but Auld LJ concealed his knowledge of the regulation, enabling him to take advantage of the "gap" you refer to, in order to employ common law tests. Truth is, once he found the regulated agreements he promised to seek on the stated Issue, he was bound (again, as you say) to follow the Statute and he knew he'd end up at S 127(3). The Court refuses to reconsider the point, so I'm now seeking to raise criminality where Auld LJ took unlawful steps to conceal the regulation in my case, and the Court refuses to even comment on the point; it can't, because Section 8 applies to the 3 existing agreements that were refinanced by the agreement he held was unregulated. It's that simple - I will not be sidelined into the Common Law thicket !

 

Warm Regards

 

John Story

 

www.ruinedbynatwest.com

Edited October 16, 2010 by ruinedbynatwest
typos

[stripper]

We are faced with grossly incompetent Judges who take it upon themselves to interpret the law according to their misunderstanding.

So apart from calling the judge imcompetent,would they really listen to our argument?

Stripper

[ruinedbynatwest]

One other thing - I had an account with a bank which included PPI, but i have lost the paperwork. Can I still bring a case? My mate was on a similar account and he still has his. Could I put that to the court?

Silly example, but its what they are saying.

 

You need to check your agreement for improper execution. ie the loan agreement and the PPI agreement need to be separately and clearly documented in order to be enforceable. As is mentioned elsewhere here, lenders were so keen to lend the money that often, very often, the loan and PPi were simply lumped together, but are 'caught' by Section 18 [Multiple Agreements], where they are in reality separate consumer credit agreements, one providing credit for a loan, and the other, PPI (Section 19 CCA 74 (linked agreements) providing credit for an insurance policy.

 

Check out your pal's agreement to see if it complied, and then seek out yours.

 

John Story

 

www.ruinedbynatwest.com

Edited October 16, 2010 by ruinedbynatwest
typos

[seriously fed up]

But have they? From the court results on here I've been reading lately, it seems like the judges dont give a damn about original agreements.....

 

BF

First of all I think these cases have to be seen in the context of the wider picture. Yes, there is no doubt there is a Judge Lottery and if you end up with the wrong one, then at best you are up against it. But are these the exception (and I mean this in the context of the cases where a s61 defence is put in).

Secondly, as John Storey points out and his case testifies, these cases have to be fought to a higher level.

So, I would suggest many of the birds are coming home, and while some are having difficulty, with resolution they can be helped to get to where they should be.

As I said, a judge who takes the kind of view expressed in Kaz's case is just wrong and indefensibly so.

[seriously fed up]

John, you misuderstand, I was drawing an analogy with the position that the banks are adopting (for the avoidance of doubt while I did some pretty daft things, I did know to avoid ppi). Imagine you want to take a bank to court but you dont have the paperwork - you wouldnt get over the door - "where's the evidence?" - well here's the debit in my bank account and it says your insurance company. Substitute for paperwork, "executed agreement" - where is your executed agreement? Substitute "account statements" for debit in my bank account, and you can maybe see where I am going. They are trying to do exactly what I am 99.99999999999999999% certain Joe Public wouldnt even be allowed to think about doing.

The banks will split every hair, demand the very highest standard of proof if they are sued. But if they are suing us, then the standard of proof goes through the floor.

Btw, take your point about not sending out unrequested credit tokens, but the point I was really driving at is that the DCA has presented me with a set of t&cs as a reconstruction of an executed agreement which I didnt sign. So, to go back to the point I made before, if they present a reconstruction but dont have the original (and if they have the original why not just send a photocopy?) how can it be a true copy? In this particular case I couldnt deny that lending took place, but how could they prove that I did sign an agreement when the original is nowhere to be found?

[Basil Fawlty]

First of all I think these cases have to be seen in the context of the wider picture. Yes, there is no doubt there is a Judge Lottery and if you end up with the wrong one, then at best you are up against it. But are these the exception (and I mean this in the context of the cases where a s61 defence is put in).

Secondly, as John Storey points out and his case testifies, these cases have to be fought to a higher level.

So, I would suggest many of the birds are coming home, and while some are having difficulty, with resolution they can be helped to get to where they should be.

As I said, a judge who takes the kind of view expressed in Kaz's case is just wrong and indefensibly so.

 

 

In your opinion, would kaz's case have a very strong chance of winning on appeal? And do the higher court judges normally have a clue in these consumer cases, unlike the district judges?

 

BF

[paulwlton]

Taken from Carey v HSBC.

 

 

This led to a letter dated 19 June from Ascot Lawyers ("Ascots"), the solicitors for Mr Yunis saying that the agreement provided was "unexecuted" and that they were to consider legal proceedings following the failure "to provide the executed agreement nor confirming whether you compiled with your obligations under sections 61-63". It went on to acknowledge that under the Copies Regulations there was no obligation to provide a signed copy. Nonetheless what had been sought was a copy of the "properly executed document eg one signed by both parties and containing all the Prescribed Terms .." This suggested that while Barclays did not have to provide it under s78 they nonetheless wanted proof of a properly executed agreement. This was so that they could determine whether a properly executed agreement existed at all. The letter also said that the bank was obliged to keep a copy of the signed agreement not only to comply with its statutory obligations but also to ensure that it could take enforcement action in the event of default. The latter does not follow. 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. The letter from Ascots contained no allegation of any kind from their client as to what he understood he had signed or when.

A letter from the bank dated 2 July effectively stated that it had provided all that was required under s78