Dissecting the Manchester Test Case....

[Basil Fawlty]

Thanks for that Mystery1

 

BF

[oilyrag]

Hi guys,

I found Teasdale under:-

 

www.bailii.org/ew/cases/EWHC/QB/2010/612.html

 

Also please note that it is rumoured that one of the solicitors' practices has been given permission by the Court of Appeal to appeal two of this mis mash of cases.

 

As regards Carey BF, I have no case law reference for any use of the para 234 summaries of HHJ Waksman's judgement but I know that the banks are fighting a little shy of trying this one on at the moment. We have just been told sit tight all is not as good as it appears for the lenders in this respect but remember that the abiding principle behind Carey and other cases is for the debtor not to go on the attack, but wait patiently and defend.

 

regards

oilyrag

[Hadituptohere]

Thankyou Oilyrag much appreciated

 

Hadituptohere

[Basil Fawlty]

Thanks oilyrag...I have no plans on going on the attack, I'm happy to wait and defend.

 

BF

[unredacted]

Look at (4) below people

234. The following is a brief summary of the principal findings and conclusions set out above:
      
     
     (1) 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;
     (2) The s78 copy must contain the name and address of the debtor as it was at the time of the execution of the agreement. But the creditor can provide the name and address from whatever source it has of those details. It does not have to take them from the executed agreement itself;
     (3) The creditor need not, in complying with s78, provide a document which would comply (if signed) with the requirements of the Consumer Credit (Agreements) Regulations 1983 as to form, as at the date the agreement was made;
     (4) If an agreement has been varied by the creditor under a unilateral power of variation, the creditor must still provide a copy of the original agreement, as well as the varied terms;
     (5) If a creditor is in breach of section 78 this does not of itself give rise to an unfair relationship within the meaning of section 140A;
     (6) The Court has jurisdiction to declare whether in a particular case, there has been a breach of s78. Whether it will be appropriate to grant such a declaration depends on the circumstances of that case;
     (7) In assessing whether Prescribed Terms are "contained" in an executed agreement the principles set out at paragraph 173 above are relevant. On the assumed facts set out at paragraph 177 the Prescribed Terms were so contained;
     (8) The claims that there was an unfair relationship and an IEA in
     Adris
     should be struck out or dismissed. The claim that there was an IEA in
     Yunis
     should be struck out or dismissed. The absence of any positive pleaded case or evidence as to the circumstances of the making of the agreement by the debtor concerned was fatal to the IEA claims. The absence of any positive plea or evidence as to particular facts relied upon in support of the unfair relationship claim other than failure to provide a s78 copy, was fatal to that claim.

     
     

235. Following the handing down of this judgment, I will hear Counsel on the form of the various orders that will need to be made, any further directions in relation to the cases with which I have dealt and all ts of confusion here people I have pasted the the judges sumation
     

[Josie8]

The two appeals are listed for hearing at the Court of Appeal on 23rd/ 24th February 2011

[unredacted]

Lets hope (The Pleaders) get it right this time. there has been a concerted effort on the part of the judiciary to run a coach and horses through the 1974 CCA under the notion that it is immoral for the comsumer to wiegh their options but OK for banks and insurance companies to wriggle out of paying up whenever they can( seepast judgements handed down by these same people

[bradfordlad]

Hi everyone,

 

hope you don't mind me "butting in" on the Manchester thread, but I think my latest update relates to it in some small way...

 

Anyone care to have a look & offer thoughts please? http://www.consumeractiongroup.co.uk/forum/showthread.php?244511-Bradfordlad-Vs-MBNA&p=3178233&viewfull=1#post3178233

 

Cheers in advance

 

BL

[basa48]

Look at (4) below people. The following is a brief summary of the principal findings and conclusions set out above:

 

The absence of any positive pleaded case or evidence as to the circumstances of the making of the agreement by the debtor concerned was fatal to the IEA claims. The absence of any positive plea or evidence as to particular facts relied upon in support of the unfair relationship claim other than failure to provide a s78 copy, was fatal to that claim.

 

all ts of confusion here people I have pasted the the judges summation

 

I think most here are aware of (4) and its implications. However the section I have extracted is the REAL crux. Don't forget it was the debtors who were the claimants. They had to prove there was no compliant agreement but as the judge points out, they didn't even plead that !!!

 

IMO this whole affair smacks of a set-up. All the familiar players were present and the CMCs involved were bankrupt by all accounts.

[diddydicky]

proving the original when the terms have been varied- is not a panacea- the creditor can still provide a re construction of THAT document too

[basa48]

proving the original when the terms have been varied- is not a panacea- the creditor can still provide a re construction of THAT document too

 

Perhaps a tad more difficult since it would have to be in the same form as the original and be complete with signature. Don't forget Waksman said I conclude that Reg. 7 requires a copy of the executed agreement in its original form.

 

Not sure exactly what that requires? Will a 'recon' suffice?

[middenmess]

Perhaps a tad more difficult since it would have to be in the same form as the original and be complete with signature. Don't forget Waksman said I conclude that Reg. 7 requires a copy of the executed agreement in its original form.

 

Not sure exactly what that requires? Will a 'recon' suffice?

 

IMO that's open to 'abuse' by the creditor, as who knows what the original executed agreement looks like [assuming of course that one was ever executed by the Bank] --most of us have only ever seen a [poor] microfiche copy of one side of an application form

[oilyrag]

Hi Guys,

 

Certainly CCR (Cartel Client and associated solicitors practice Manchester based if memory serves correctly) have now gone and the associated solicitors as I uinderstand it have effectively been prevented from practising any further by the SRA. This left many clients high and dry with no representation and some seriously out of pocket. However there were other solicitors and barristers involved who are still practising and some of those remain actively trying to clarify what rights we ( and they with regard to costs) actually have.

 

Some of these are actually at odds with what you are saying DD in that whilst s234 of the judgement is not a panacea ( what in civil law ever is?), it certainly is an avenue which can be used. The whole judgement is complex and interwoven, yes, but on this point HHJ Waksman actually gave little if any room for manoeuvre. His words were and I quote "copy of the original". Elsewhere in the judgement he makes a lot about reconstituted documents etc. BUT and it is a big BUT, as I have said (and others) on several occasions the origins of this need to be examined by going back to the case conferences held early in October of last year which set up these 13 cases. Remember there were 13 (MBNA lost one and withdrew from two others writing off all alleged debt, all Cartel's clients please note). The abiding principle that HHj Waksman was actually asked to rule on as LEAD cases not TEST cases was what was acceptable practice for provision of information purposes under section 78 of the CCA 1974. Again some of this was rooted in the decisions made in a lower court by another DJ in Chester who actually refused to rule on certain aspects and asked the High Court to intervene, again not based on total unenforceability but upon section 78 requests for "true copies" by alleged debtors.

 

Another side issue which has subsequently crept out is the issue of very old agreements which pre date 1983 but postdate CCA 1974. The waters in these areas seem to have become increasingly muddied and until a solid defence is built, of course the banks and associated rovers are going to try and have a field day.

 

regards

oilyrag

[Basil Fawlty]

In my case MBNA have recently sent me and others a letter stating they dont have the original agreement in their possession, and while this is so they will not take any court action, but because of McGuffick, etc, they can still chase, etc. etc. The thing is though, they had already sold this account to Varde/EC last year. If EC decide to go to court with this on the back of one of their reconstructions, how is it likely the judge would look at it?

If the OC cant provide an agreement, what exactly is a DCA ''reconstructing'' it from?

 

BF

[basa48]

If the OC cant provide an agreement, what exactly is a DCA ''reconstructing'' it from?

 

BF

 

the same thing the OC would have used;

 

the details of the debtor, the type of card and the date when made. If it has such details, it appears that there is no real difficulty in ascertaining the applicable terms including the relevant Prescribed Terms. And if so, there is unlikely to be a real risk of inaccuracy; I do not accept that a reconstituted copy is simply based on “mere assertion” by the creditor. It must – of necessity – be based upon records held as to the debtor and the agreement he made.

 

Assuming the OC can and will provide such info. to the DCA.

 

Don't lose sight of the fact that all this reconstructing is only good for s78 compliance - what HHJ refers to as the the "Current Information Purpose" - not executory compliance i.e. the "Proof Purpose".

[oilyrag]

Exactly basa,

 

HHJ Waksman actually refused to deal with s61 et al and made it absolutely clear he was ruling on s78 information requests only. Initial reaction to this judgement was that "reconstruct" as much as you like for s78 information to the debtor but "should you bring a case before me in my court against an alleged debtor, you had better have all your paperwork in order which includes the original documentation".

 

Again back to the principle of NOT bringing an action against an alleged creditor but awaiting to defend their actions against you, the alleged debtor. All onus of proof lies then with them. It is just my own personal view that things are becoming more difficult because of poorly executed defences by LIPs and some professionals, plus HHJ Waksman in my view alludes all of the time that each case should stand or fall on its own merits when brought before a court.

 

Just a few of my own thoughts.

regards

oilyrag

[unredacted]

Basa48 is correct, reconstruction is for compliance. these constructs can be drawn from a number of sources rather than just one, and no restriction as to what these other sources might be save that the construct may or is likely to have looked like the original in a form extant at the time. Clearly this is just a device to maintain the status quo as no judgement could be made as to the liabilities of a party under any agreement that is not available.

[Basil Fawlty]

Basa48 is correct, reconstruction is for compliance. these constructs can be drawn from a number of sources rather than just one, and no restriction as to what these other sources might be save that the construct may or is likely to have looked like the original in a form extant at the time. Clearly this is just a device to maintain the status quo as no judgement could be made as to the liabilities of a party under any agreement that is not available.

 

Thanks very much guys....... I understand this, the hard part is getting the judges to understand it!

 

BF

[unredacted]

Dirty Harry comes to mind, I had a letter from mbna the other day quoting Mcguffick and Carey declaring my obligation to keep paying even though mbna admitted they have only one side of an application form and that they will not respond further in the matter.

[means2anend]

proving the original when the terms have been varied- is not a panacea- the creditor can still provide a re construction of THAT document too

 

There is no authority in the Carey Judgement that when terms are varied a copy of the ORIGINAL can be constructed from 'other sources' that existed at the time of the agreement...this only applied to s78 reconstituted agreements.( INFORMATIONAL PURPOSES)..so YES basa48.... a tad more difficult

 

m2ae

[means2anend]

This carries weight as in as much Waksman had positively expressly asserted that a s78 could be reconstituted 'from other sources that existed at the time' so NOT a copy directly from an executed agreement....by the same token he maintained his silence in para 108 that when terms are varied THAT a copy of the orignally executed agreement could ALSO be reconstituted 'from sources other than directly form the original executed agreement'...but concluded simplky for a copy of the original ..nothing more nothing less.

 

m2ae

 

m2ae

[means2anend]

Now also bear in mind that when s78 reconstructions are to take place...they must be in DONE IN 'good faith' and must be an accurate and true copy of the original WHEN taken from 'THESE OTHER SOURCES'.....

 

....now imagine bearing in mind the above limitations on a creditor in providing s78 requests..BUT ESPECIALLY when a copy taken directly from an original executed copy.

 

Most of their small victories in the lower courts tend to be when THEY are bringing the case knowing full well of the existence of the Judge Lottery.

 

If they tried the same thing in the Higher Courts in BRINGING the claim all sotrsw of different circumstances,thresholds,requirements now apply...and they do not want a precedent set

 

m2ae

[unredacted]

There is such flawed logic behind the contruction principle it beggars belief, evidently there could a number of agreement formats being used by The Creditor at the time of the signing of the original agreement, if the original is not to hand then a construction from a number of other agreements as to form and content should rule out the use of construction since the original document would presumably be one of those used in the construction, this being the case, the construction could not possibly be like the original since the original could only be part of the reconstruction therefore the document constructed is flawed.

[PriorityOne]

There is such flawed logic behind the contruction principle it beggars belief, evidently there could a number of agreement formats being used by The Creditor at the time of the signing of the original agreement, if the original is not to hand then a construction from a number of other agreements as to form and content should rule out the use of construction since the original document would presumably be one of those used in the construction, this being the case, the construction could not possibly be like the original since the original could only be part of the reconstruction therefore the document constructed is flawed.

 

... and if you defended any court action on that basis, they could get their knickers in a twist very quickly.

[unredacted]

Hi Priorityone

It could be further argued that the orginal was not part of the reconstruction which is the reason for the need to reconstruct in the first place.

In this case since the reconstruction did not contain part of the original agreement then the original agreement did not exist at the time because it was not considered for use as a whole at that time as the true copy or in part because it formed the agreement in question. If the original did exist at that time it can't be identified as such or it wouild have been so identified as a copy of the agreement in question without the need for construction If an agreement in existance cannot be identified as a copy of the agreement in question, then any construct would be a construct of an agreement that could not be identified as a copy of the agreement