Dissecting the Manchester Test Case....

[Basil Fawlty]

First of all thankyou very much PriorityOne for your work on this.

 

I think overall this judgment just show us its a waste of time being a claimant on the back of a s78 request, but I think its still game on doing it the sensible way, as a defendant. They still have to have a link to the original agreement to enforce, and we know it will be difficult for them.

 

I like the idea of re-wording the s78 so that they have to state if what they are sending out to us is a recontruction and whether or not they hold the original..... that should put the cat among the pigeons

 

What happens now with the CMC's? Surely they'll give up on their idea of being a claimant on the back of a s78 request? Will they turn to defend us?

 

BF

[Basil Fawlty]

What is very worrying is that the judge did say quote

 

"The fact that the creditor no longer has the original executed agreement is not therefore, itself a bar to compliance [with the Act],"

 

So the original agreement is NOT LONGER required in a court case???

 

any comments please

 

He is referring to being compliant with a s78 request. He is NOT referring to being enforceable in court.

 

BF

[Basil Fawlty]

Dont forget, that they need to supply an actual copy of the document under Subject Access Request.

Is that absolutely 100% vint? I'm sure I've read many times on here that they dont send an actual copy via a SAR.

 

BF

[Basil Fawlty]

I was fairly sure of my facts there, but stand to be corrected obviously.

 

If that is the case, then the only time that we can reasonably expect to see an agreement is at court stage, as they all ignore CPR 31.16.

 

 

Yep. Seems to be that way.

To me, this judgement is saying, dont bother with s78, you wont get anywhere with it, so the only way is to stop paying (in the meantime ruining any credit rating you had, not that I care personally), and either let them take you to court, where they have to provide the agreement, or let it run the 6 years if they dont have anything.

 

Keeps a lot of cases out of court I suppose.

 

BF

[Basil Fawlty]

They tend to ignore these until court stage. You obviously need to be prepared to take this all the way to court.

 

 

Thats right, and you have the choice of taking them to court as a claimant, and this judgement is saying thats a waste of time, or waiting for them to take you to court whereby they have to provide the enforceable agreement.

Of course, if they dont have the enforceable agreement, they probably wont take you to court, whereby they will be allowed to still chase you with all the phone calls, threats and letters and being reported to the CRAs.

Simply, dont waste your time being the claimant, be the defendant.

 

BF

[Basil Fawlty]

Agreed, but the CPR Pre-Action stuff is a tactic than can be deployed following a "failed" s77 - 79 request. "Costs" are a deterrent on a low life bottom feeder DCA. The template is quite clear that it is the DCA threatening court action.

 

Thanks for that.... I'll be sending that template off as I havent received anything yet from the requests.

 

BF

[Basil Fawlty]

How much are ATE premiums (a rough idea), and if you win the case, are the premiums paid by the losing side?

 

BF

[Basil Fawlty]

Cheers nick

 

BF

[Basil Fawlty]

Ah right diddydicky, I didnt realise this. Then again, as someone who has never seen the inside of a court room, I think it would be in my best interests to use a lawyer if and when I'm taken to court (hasnt got that far.....yet!).

 

If it can be covered by insurance, its surely in our best interests to use the best lawyers/barristers we can find, rather than go as a LIP?

 

BF

[Basil Fawlty]

After reading the fantastic advice and knowledge on here, I would say

you're definitely right. Thanks dd

 

BF

[Basil Fawlty]

Fully 100% agree.

Remember, a solicitor is primarily an Officer of the Court and his main obligation is towards the Court not the client. (Well supposed to be cos I have seen one stand up, look the Judge straight in the eye and lie bluntly). And when it comes to Duty of Care by a solicitor believe me........... their duty of care is primarily how much money they are going to get as a fee. Anything happens and expect the words "Well we gave it our best shot".

 

Also, you should never look at it as "If we win". You should look at it as "I will win". Never go into a fight (literally speaking) with doubts in your head. Do the research, do the homework, ask, query, take notes and be ready. Think of what they might try to say/do and have the necessary reply ready. Read a few threads on here and see what people experiences were and what they did.

 

 

Excellent advice..... but still bloody scary if you have never even been in a court room before.

 

BF

[Basil Fawlty]

First of all no problem. I understand that there are people who walking into a court room is like going to the pub for them and there are others where it is like going to meet the inlaws of their girlfriend for the first time. (Just to put some humour into it )

 

Seems for you it is the latter. BUT remember, once you have been to the inlaws a few times it becomes like second nature (unless they bloody hate you like my first ex wifes parents did )

 

IF you have never been in a Court room why not go round to your local country court? Ask the usher if it is ok to go in a Court room as spectator. You can actually have some fun listening to the prosecutor and the defense AND even possibly trying to find where, for example, the defendant has made mistakes or witnesses have made mistakes (obviously you keep your mouth shut lol).

 

Alternatively look at it like you have never dated for ages and is now going on a first date. You are nervous, you do not know what to do, you hope you do everything right BUT take it easy, plan things in advance and hopefully it will all fall in place.

 

 

LOL.... well put...and thats a great idea about going to court as a spectator, I didnt even know you could do that!

 

cheers

BF

[Basil Fawlty]

If you decide to appeal and eventually win, can you claim the costs of both the appeal case, and the original case?

 

BF

[Basil Fawlty]

B3rty

 

Have I not been saying to focus on the positives in the Waksman Judgement since the early days of the this thread. Used properly and rationally HHJW has cleverly or unwittingly rolled very nasty bombs under the banks. I fully appreciate it is not perfect, show me a civil judgement that is.

 

Banks will make use of what is good for them and try to baffle you about the bad bits for them. Should we not be adopting a similar approach to demolish their arguments. All of the claptrap that has gone on about s78 has become irrelevant. It has always in reality been the case that toilet paper will do to comply. It is a very different matter in a court when put to strict proof and even more so with HHJW's stress on the words original in his summaries of the case.

 

He has actually served notice on the banks and dcas that they had better have their house in order right back to the date of inception of the alleged agreement if they bring an alleged debtor before him in his court. Its all there in the judgement. Lets get the experts working on this defence or something similar that is watertight. This thread now runs to 51 pages.

 

regards

oilyrag.

 

The thing is, I'm reading round the forum and reading about judgements that have gone in favour of the cc companies, when they shouldnt have done so.. for example Humbleman and mydogsascottie. Both of these are since the Manchester case, so what is actually better for us now?

[Basil Fawlty]

A cack Judge is a cack Judge. No-one can really foresee what will happen inside a courtroom until the day, which means that you take your chances and if it doesn't go the way it should (according to the law)... you have the option to Appeal that decision.

 

 

As I'm not used to courtrooms (yet!), can I ask, are you always entitled to an appeal or can they turn it down?

 

BF

[Basil Fawlty]

Hi PriorityOne and BF,

 

Agreed it is always a lottery before a judge. It is only my opinion but I do feel that it is now infinitely more difficult for a Litigant in Person. That is not necessarily due to McGuffick, Manchester et al. It is more likely to be due to the financial institutions getting more wised up to the fact that we are not all complete bozos. That is the way they see us all, unworthy proles. We must get wised up. In a casino it is a mathematical fact that you only have to move the odds a very small fraction of one percent in your favour to clean up, hence the disquiet about gamblers who can card count in their heads, (not me I'm sorry to say). Therefore does it not follow that we should look at the maths, defend the cases they actually dare to bring, put them to strict proof on every point. After all you do not have to prove anything as a defendent, the onus shifts to the lender to rpove his case. Probability may come into it and outside the judge lottery which none of us can predict, your preparation is the key. My favoured option in the final analysis NOW would be to seek professional help even if the legwork was done as a DIY exercise.

 

Sorry to have gone on

regards

oilyrag.

 

 

Good advice, and something I will take on board when my day in court comes.

Thanks

 

BF

[Basil Fawlty]

I don't think this is necessary at all. Also, solicitors are not always competent just because they're called solicitors.... I have my own experiences of that one

 

My personal view is that you have absolutely nothing to lose by defending. If you don't defend, then it leads to a CCJ by default... but if you do defend, then you have a good chance of walking away as the winner.

 

Let none of us forget that owing money is not a crime...

 

No its not a crime, but its not the CCJ that so much worries me. I'd be happy to pay back at a rate I could afford if it went against me, but what keeps me awake at night are the charging orders and the chance that I could put my wife and I out on the street.

 

BF

[Basil Fawlty]

A CCA is a legal request for a copy of your alleged Agreement and places the account "in dispute". A SAR does not place the account "in dispute" as such although you can dispute unlawful charges on an account with this info. This means that creditors are not prevented from taking legal action against you if all you've sent is a SAR.

 

Having said that, creditors/DCAs can still take you to court after receiving a CCA. They're not supposed to but in reality, nothing happens to them if they do. Creditors/DCAs are very familiar with the template letters on here (written by Caggers) and know that they're copied, pasted and sent by people who are beginners in the game of learning about consumer rights. I've seen many cases of court papers being issued on these fourms in the absence of enforceable docs.... leading to the stress of putting together a defence, going through the court system and possibly getting a cack Judge.

 

If this doesn't worry you in the slightest, then there's no issue with ignoring what pops through your letter box. However, if you don't particularly relish the thought of court proceedings and you have assets to protect, you need to respond to it.... If it's a new DCA, all you have to state is that the account remains in dispute through a CCA request to ??? on xx/xx/xx sent by rec. delivery and they normally go away. If they don't go away, you can normally file their replies away once they know the score....

 

There seems to a mixed response on here about what to do, but the template "bemused" letter has been seen countless times by creditors/DCAs.... and offers no protection to you. This means that if you become over-confident too early, you may end up in court.

 

I've been dealing with debt problems for most of my life; long before I found CAG and the CCA request. The biggest one was £52K (not covered by CCA law) which was eventually written off for peanuts on the basis of the paper trail I kept and nothing else... It never went to court.

 

 

PriorityOne, you say that the ''bemused letter'' offers no protection..... now you have me worried as I've sent a few. What would you suggest would be better to send?

 

BF

[Basil Fawlty]

Ah right, I understand now..... thanks!

 

BF

[Basil Fawlty]

If you lose a judgement where you believe the DJ has either got it wrong or is biased against you, are you always entitled to an appeal? And would that appeal always be in a more senior court in front of a more senior judge?

 

BF

[Basil Fawlty]

yes and yes. BUT it add to the stress and also the expense

 

Thanks, but would it be fair to say that if the original judgement was obviously wrong or biased, you would have a very good chance of winning? And if you won, the expenses would be paid by the other side?

 

BF

[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.

 

 

 

[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

[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

[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