Dissecting the Manchester Test Case....

[Lord_Alcohol]

Sorry, LA - I dont see your problem. This OFT publication has as its title "Guidance on sections 77/78/79 of the Consumer Credit Act 1974 – the duty to give information to debtors and the consequences of non-compliance on the enforceability of the agreement An OFT consultation"

Just like Faux they have - by implication at least - said this is NOT about s61 etc.

To be honest I had never read McGuffick, but what it points to for me is that there is an argument which says that if the root of dispute with the OC lies in s61 then anything in McGuffick is just guff (if you know what I mean). As I tried to make clear, it COULD BE - and this is for discussion - a judicial view which says that s77/8 is relatively trivial stuff - its about providing information - sort of "what did we agree?". But this is quite different from the much more difficult and much meatier issues of proof and enforceability. For instance I might say "up is down" (original agreement). You might say "what did you say?" (can you give me a copy) and I would reply "up is down" (true copy). You might then say "prove it" and that takes us to s61.

 

SFU - you're absolutely right!

 

I guess we're now back to where we were before DD shot our arguments down in flames...

 

LA

[Undercover-Elsa]

This was received from the OFT shortly after the McGuffick case, following a personal enquiry:

Dear XXXX

We are disappointed by the recent court judgment in the McGuffick case. It does not accord with the views expressed previously by the OFT, as regards the meaning of 'enforcement' for the purposes of the Consumer Credit Act 1974 (the Act).

We are studying the judgment carefully, as some of the points do not appear to have been fully argued. We understand that the judgment will not be appealed, but also that a number of other court judgments are expected, which may touch on similar issues. We await these with interest.

We are currently putting together draft guidance on the meaning and application of sections 77-79 of the Act, and aim to consult on this shortly. We are likely in this guidance to set out our view on what creditors are permitted to do, in the light of the McGuffick judgment, and what may be expected of them when seeking to collect debts which the law provides are unenforceable. For example, we believe that where a contract is unenforceable under the Act, this should be made clear in communications with consumers. If a creditor misleads debtors, either by action or omission, as to the enforceability of the debt or the associated procedures, the OFT would be likely to view this as an unfair or oppressive business practice casting doubt on fitness to hold a consumer credit licence or giving rise to the possibility of binding requirements. It may also be an unfair commercial practice for the purpose of the Consumer Protection from Unfair Trading Regulations.

We will be happy to send you a link to the draft guidance once published.

 

Elsa x

[seriously fed up]

LA, not exactly. Too simple I think. To be perfectly honest I took the same view as DD, and I think the reason why is informative. Its because this is the view that has been put around by the lenders, and they have done this because its the view that suits their purposes. Therefore we need to be precise.

In response to a s77/78 request we know that following Waksman they can send out any old tosh and are doing so. They are then trying to make out that this puts everything right and they can collect their money. I have one lot on me just now taking exactly that view. They werent even able to come up with a non compliant photocopy, but following Waksman they send me two copies of T&Cs with my personal details at the top and conclude "we now invite your proposals for settlement of this debt". We are still playing letter ping pong, and I am trying to get them to own up to not having any original document - compliant or not - with my signature on it. Havent done it yet, and its going to be hard. The Act says in s77/78 that the copy should be of an executed agreement which means it has to be signed, but they will go on their merry way and will say that they have fulfilled s77/78 and can enforce on the basis of what they have sent.

This brings me to Elsa's quote from the OFT, where they say "where a contract is unenforceable under the Act, this should be made clear in communications with consumers. If a creditor misleads debtors, either by action or omission, as to the enforceability of the debt or the associated procedures, the OFT would be likely to view this as an unfair or oppressive business practice casting doubt on fitness to hold a consumer credit licence or giving rise to the possibility of binding requirements. It may also be an unfair commercial practice for the purpose of the Consumer Protection from Unfair Trading Regulations."

The problem is when is a contract unenforceable? Some lenders take the view that its enforceable if you have a poor copy of an application form and attach some random T&Cs on the back with a staple. They would say "I consider this enforceable" because if they are to have any hope of getting what they say is owed they have to. A court would probably laugh it out of court, but it wont get to court because the banks cant take the chance (see para 21 of McGuffick to test their enthusiasm).

And these are the problems - the law is not a matter of black and white and clear determination. There are lots of shades of grey, added to which the lenders will place the interpretation that is in their interests and act on it. Should they? No, but how long does it take to get the OFT on the case (something which could get even worse with the present government).

So, I would suggest that we thank DD for the persistence they have shown in this debate. But we need to be very clear in the advice that we give people. Where its a s77/78 request that they havent complied with the lenders are acting with the force of opinion of the legal system, and it looks like OFT, in what they do. If on the other hand, the agreement is non-compliant - most often that the prescribed terms just arent there - then its a different game - "dear lender, I have to point out to you that the McGuff case you have quoted in your last letter does not have relevance to our dispute. LJ Flaux made clear this judgement concerned only s77/78, while our dispute concerns s61. Please go away". This takes us back to Elsa's quote and when is there an unenforceable agreement. I have never known a lender own up to this. Its not in their interests to own up. The only road out is for one side or other to take legal action. If they wont (and often they wont) is it a good idea for you to seek an order that you have an unenforceable agreement? Well for one thing it puts the onus of proof on to you. Its not as bad as in the Manchester (Waksman) case, as besides the fact that I suspect there is a judicial view that s77/78 is relatively unimportant, being about information, its hard to prove a negative (ie that there was never an agreement). But as Waksman makes clear in his judgement (somewhere) determining this is a matter of form (ie every case is different). So if you dont fancy taking them to court and they dont fancy taking you to court, its back to the land of the living dead with you saying "oh no it isnt" and them saying "oh yes it is" (if this sounds like a pantomime its purely intentional). They will insist its enforceable, you that its not. You will insist they are in breach of s61, they will say they are not. Clearly if they send out any old nonsense they fulfil s77/78 and can carry on as before. But if they dont recognise the existence of a dispute over s61 - or that their agreement is defective - they will carry on as before, registering DNs. In that sense DD was and is right.

[Lord_Alcohol]

Excellent SFU - very nicely put.

 

However, DD was (I think) stating that the debt remained where an agreement was unenforceable, and also that other rights remained to the creditor (such as recording adverse data).

 

It seems that this only applies under s77/78/79, which is the focus of McGuffick and the OFT consultation.

 

Presumably then it requires a court to declare the agreement unenforceable under s61 before the rights of the creditor are completely removed? And at that point the debt really will not exist?

 

Is that your understanding? I think it's mine (at the moment!).

 

LA

[means2anend]

We need to use the explicit words...Irredeemably unenforcable has the ultimate objective...redeemably unenforcable is the issue we have with the CRA's and Lenders.

 

Iredeemably = no consumer credit Agreement AND no contract at common law

 

m2ae

[gh2008]

LA & m2ae, yes, I agree, this is the point i have also been trying to make.

 

IMHO non-compliance with an S.78 request will *never* make an agreement IU both because of the 'if any' part and that any failure can, in theory, be corrected 'at any time in the future'

[Dotty50]

Hi,

 

As this is such a busy thread and their are lots of experienced posters here, I thought you may be interested in a recent reply my OH had from Cap1.

 

http://www.consumeractiongroup.co.uk/forum/capital-one/257521-capital-1-short-application.html#post2993999

 

As I have stated in the post NO threat of legal action was made and NO CMC is involved.

[Lord_Alcohol]

LA & m2ae, yes, I agree, this is the point i have also been trying to make.

 

IMHO non-compliance with an S.78 request will *never* make an agreement IU both because of the 'if any' part and that any failure can, in theory, be corrected 'at any time in the future'

 

Yes, I agree.

 

So to achieve IU, do we need to rely on s61 (and s127) and get a court to declare the agreement IU?

 

LA

;-)

[bustthematrix]

Iredeemably = no consumer credit Agreement AND no contract at common law

 

m2ae

To be clear, Iredeemably Unenforceable (IU) does not necessarily mean it's lost because 'lost' may one day change to 'found' somewhere down the line.

 

Can we collectively therefore outline here what would be classed as Iredeemable vs Redeemable, for the benefit of all Caggers?

 

Redeemable:

 

1. Loss of agreement

2. Agreement signed by debtor but not by lender and still in Lender's possession

 

Iredeemable:

 

1. No Agreement ever signed

2. Unsigned agreement

3. Agreement not correctly formatted i.e. missing either or all of

- prescribed terms

- signature boxes

- T&Cs

- incorrect figures

4. Lost agreement (accepted by lender as such)

5. Improperly Terminated Agreement (documented in writing)

 

 

Please feedback

[bustthematrix]

Yes, I agree.

 

So to achieve IU, do we need to rely on s61 (and s127) and get a court to declare the agreement IU?

 

LA

;-)

LA

I am aware of cases where lenders have admitted Iredeemable Unenforceability, in writing, prior to legal action. All of these were argued by a firm of solicitors for their clients and were all for pre-2007 debt accounts. It appears that at least in some of those cases, the OC willingly cleared the debt, confirmed they would close the account and never pursue AND removed the CRA records.

 

Unfortunately, I never got to see details of the arguments used but I believe we are on the right track.

Edited June 25, 2010 by bustthematrix

[gh2008]

Can we collectively therefore outline here what would be classed as Iredeemable vs Redeemable, for the benefit of all Caggers?

 

This is where we, IMHO, need to be careful.

This is just a discussion and our interpretation - it is *not* proven in any way.

 

Many people were led by the 'if they don't reply to an s.78 request you are entitled to stop payments' theory. No-one really questioned it and many were surprised that there is in fact nothing to substantiate this in Law, along with the 'in dispute' letters again many sent when there is no real dispute other than the creditor failing to respond in time.

 

To answer your question -

IMHO an agreement is only rendered IU when it goes to Court and the DJ says it is.

 

Even with a complete lack of prescribed terms it is not IMHO IU until a Court says it is.

[bustthematrix]

I hear you gh

 

In this excercise, I'm not trying to write law. Just trying to highlight what may or may not pass for IU and vice-versa. I think it's a helpful excercise, in the same way that itemising a list of possible flaws to a credit document can be used to determine whether it complied with the CCA or not.

 

However IU is not just based on a judge's say so. It is based on fact. It depends on what the OC and debtor executed or did not execute.

 

Many have said they've never seen letters from lenders admitting IU but I have (though not personal).

 

* * * This is for educational purposes only * * *

[bustthematrix]

To answer your question -

IMHO an agreement is only rendered IU when it goes to Court and the DJ says it is.

 

Even with a complete lack of prescribed terms it is not IMHO IU until a Court says it is.

Under what situation do you see this as being achievable? With you as Claimant, Defendant or Counterclaiming?

[Lord_Alcohol]

The outcome of pt2537's case against Egg may help;

 

http://www.consumeractiongroup.co.uk/forum/legal-issues/188093-egg-credit-agreements-what.html

 

The judge is still deliberating apparently but I think an outcome is due soon.

 

However, thinking about the above posts, I would have thought that if s127(3) applies (the court is not able to make an order for enforcement) then that's it for the OC. The agreement is irredeemably unenforceable.

 

This is from Carey;

 

21. Then, s127(3) provides, in relation to agreements made before 6 April 2007, as follows:

“The Court shall not make an enforcement order under s 65(1) if section 61(1) (a) (signing of agreements) was not complied with unless a document (whether or not in the prescribed form and complying with regulations under s60(1)) itself containing all the prescribed terms of the agreement was signed by the debtor ..(whether or not in the prescribed manner).”

 

22. Accordingly, non-compliance with the relevant regulations is capable of being cured upon application by the court unless the document signed by the debtor did not contain the Prescribed Terms. In such a case the non-compliance cannot be cured and, in the words of Lord Hoffman in Dimond v Lovell [2002] 1 AC 384 at p397F, the agreement is “irredeemably unenforceable"

 

That, presumably, would remove all rights for the OC, not just enforcement of the debt.

 

LA

[bustthematrix]

22. Accordingly, non-compliance with the relevant regulations is capable of being cured upon application by the court unless the document signed by the debtor did not contain the Prescribed Terms. In such a case the non-compliance cannot be cured and, in the words of Lord Hoffman in Dimond v Lovell [2002] 1 AC 384 at p397F, the agreement is “irredeemably unenforceable"

 

That, presumably, would remove all rights for the OC, not just enforcement of the debt.

 

LA

Great reference LA and note the basis for that statement "the non-compliance cannot be cured". This is the premise upon which I'd like to suggest an agreement would be deemed IU as per my post #2784.

[Lord_Alcohol]

Great reference LA and note the basis for that statement "the non-compliance cannot be cured". This is the premise upon which I'd like to suggest an agreement would be deemed IU as per my post #2784.

 

Slogging through Carey, it looks like Waksman took the view of Flaux in McGuffick and has ruled that CRAs can be notified even if the agreement is IU!

 

185. In my judgment that concession is rightly made for the following reasons:

(1) On this analysis the agreement is irredeemably unenforceable under s127 (3). So, and unlike the s78 scenario, there is no uncertainty here as to whether the creditor might at some future point remedy the breach, for it cannot. And even in the s78 case, I have already determined under Issue 3 that such uncertainty as is generated by the debtor’s “dilemma” does not itself create an unfair relationship anyway;

(2) The fact that the creditor may nonetheless report the debtor to a CRA (which according to McGuffick he can) does not entail an unfair relationship. Nor does the fact that the creditor might yet write to the debtor seeking repayment of the debt; if what the creditor does amounts to harassment, the debtor will of course have remedies elsewhere, and the mere theoretical possibility of such conduct cannot without more constitute an unfair relationship;

 

LA

[diddydicky]

Based on McGuffick only...

 

 

B&&ger- i was preening myself then:D

 

no LA i havent got the hump:)- just a bit wary of threads going rapidly downhill sometimes- point taken

[antigone1974]

People seem to have come to a conclusion that McGuffick is irrelevant to irredeemably enforceable agreements because it deals with s.77/78, not s.61.

I think that this is incorrect.

The relevant part of s.77/78 is subsections (4) and (6), which say that "If the creditor under an agreement fails to comply with subsection (1) ... (a) he is not entitled, while the default continues, to enforce the agreement."

As a consequence, McGuffick deals with the question - 'what is enforcement?'. The answer is at paragraph 78 onwards, which I have copied below. In short the answer is that only obtaining a judgement is enforcement.

Failure to comply with section 61 means an agreement is improperly executed. Section 65 provides that.... "An improperly-executed regulated agreement is enforceable against the debtor or hirer on an order of the court only".

So the same question is relevant - what is enforcement? That is the only thing that Section 65 prevents creditors from doing where the agreement is not properly executed. There is no reason why the meaning of the word 'enforcement' should change depending on which section of the CCA we are talking about.

So where an agreement is irredeemably unenforceable, creditors are unable to obtain a judgment. They are not prevented from demanding money, reporting to credit reference agencies or passing the debt on to DCA's.

The question of whether 61 was complied with is an historical one that has to be decided, on the balance of probabilites, after considering all of the evidence. (some people sometimes suggest otherwise, which is a basic misunderstanding of the court procedure).

The suggestion that the contract simply ceases to exist or has no effect at all if it irredeemably enforceable is, in my view, incorrect. It has no basis in the Consumer Credit Act. It originated from a misreading of the Wilson -v- First County Trust case, which was looking at completely different issues, in a Human Rights context. This was clarified in McGuffick (and section 65 was directly referred to) at paragraph 67, which is copied below.

I hope that people find this useful and take it in the spirit it is intended - an honest opinion on situation as I see it. It is my personal opinion only. I think, and hope, that any information is helpful to people on this site, even if it is an argument which goes against your interests.

This is obviously all only my personal view, you don't have to agree with me, or even take any notice of what I am saying.

Extracts from McGuffick:....

67. Taking the authorities as a whole, I consider that (at least outside the human rights context, with which the present case is not concerned) the better view is that the effect of unenforceability under section 65 is that the rights of the creditor and corresponding liability or obligations of the debtor do exist but are unenforceable, rather than that those rights were never acquired or that the creditor was deprived of those rights whilst the agreement was unenforceable. Similarly, under section 113(2) the creditor’s security rights exist but are unenforceable. In the event that the court makes an order under section 127(1) the creditor can enforce its rights under the agreement and in relation to the security. If the court declines to make an order or section 127(3) precludes the court from making an order, then the creditor cannot enforce the agreement. Its rights continue but cannot be enforced.

 

...

78. I have no doubt that, contrary to the claimant’s submissions, this proposition does not follow from the judgments of the House of Lords in Wilson. That case does not deal anywhere with what constitutes enforcement let alone whether reporting to CRAs amounts to such "enforcement". The question then arises whether the meaning of "enforcement" for which the claimant contends finds any support from any other authority. In his submissions, Mr Moran did not rely upon any other decision to support the meaning for which he contends. Rather he relied in somewhat general terms on the Consumer Protection from Unfair Trading Regulations 2008 in support of the proposition that the concept of "enforcement" should be given the wide meaning for which he contends. I will return in the next section of this judgment to deal with my conclusion that reliance on the Regulations by the claimant is misplaced.

79.

In contrast, the bank invited the court (as set out in the list of issues) to conclude not only that reporting to the CRAs did not amount to enforcement, but that a number of other activities did not constitute enforcement: (i) reporting to CRAs without also telling them that the agreement is currently unenforceable; (ii) disseminating or threatening to disseminate the claimant’s personal data in respect of the agreement to any third party; (iii) demanding payment from the claimant; (iv) issuing a default notice to the claimant; (v) threatening legal action and (vi) instructing a third party to demand payment or otherwise to seek to procure payment.

80.

So far as activities (iii) to (vi) are concerned, it was accepted on behalf of the claimant that these did not amount to enforcement or actions to enforce the agreement. That concession seems to me to be correct: at most these activities are steps preparatory to subsequent enforcement. Furthermore, in a recent decision, Rankine v American Express Services Europe Ltd [2009] CCLR 3, HHJ Simon Brown QC (sitting as a Deputy High Court Judge) concluded that the bringing of proceedings is only a step taken with a view to enforcement and not actually enforcement. It seems to me that that conclusion must be correct. Were it otherwise, as Mr Handyside pointed out, one would be left with the conundrum that the creditor could not apply to the court for an enforcement order under section 127(1), because to do so would amount to enforcement, not permitted by section 65(1).

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.

[means2anend]

Remember that HHJ Waksman also said that just because there is NO EXISTENCE of an agreement OR it cannot be found does not mean that s189(1) had not been complied with ...UNLESS the CLAIMANT can provide a positive case (prima facie case that s189(1) had not been complied with.

 

But this is an impossible evidential hurdle for the Claimant to overcome to shift the burden back the to Lender.

 

It follows then if it can be shown by the Claimant that s189(1) had not been complied with issues and questions as to s61(1) are irrelevant.

 

And in THIS situation there is no Consumer Credit Agreement AND no Contract at Common Law

 

...And I agree with the above post that Mguffick was PRIMARILY about the circumstances in which enforcement could or could not take place

 

m2ae

Edited June 25, 2010 by means2anend

[means2anend]

The problem is that there is no authority as far as I know under Statute to positively authorise reporting to CRA's in this situation and at the very most The DATA PROTECTION ACT says that if it is done it must be done LAWFULLY and FAIRLY

 

I agree that at its most there would have been consent in the application forms T&C's and would be the fall back position if the executed agreement was in problems...buT if on the one hand surely that is a condition subsequent for a properly executed agreement...because UNTIL the s189(1) has been fully complied with the true construction of an application form is 'subject to contract'

 

m2ae

Edited June 25, 2010 by means2anend

[bustthematrix]

Ok, lets just remember that in both Waksman and McGuffick, the debtor was Claimant and not vice versa.

 

Also in Dimond v Lovell, we find

 

"The real difficulty, as it seems to me, is that to treat Mrs. Dimond as having been unjustly enriched would be inconsistent with the purpose of section 61(1). Parliament intended that if a consumer credit agreement was improperly executed, then subject to the enforcement powers of the court, the debtor should not have to pay. This meant that Parliament contemplated that he might be enriched and I do not see how it is open to the court to say that this consequence is unjust and should be reversed by a remedy at common law: compare Orakpo v. Manson Investments Ltd. [1978] A.C. 95."

 

And

 

The consequence of the failure to comply with the statutory requirements is clearly spelt out in the statute. The contract cannot be legally enforced by the creditor against the debtor: sections 65 and 127. It may be thought that this may sometimes produce a harsh result and an unmerited windfall for the debtor. But this is what Parliament has provided no doubt in accordance with a broader policy.

Perhaps the HoL is kinder to consumers than the High Courts!

[antigone1974]

Remember that HHJ Waksman also said that just because there is NO EXISTENCE of an agreement OR it cannot be found does not mean that s189(1) had not been complied with ...UNLESS the CLAIMANT can provide a positive case (prima facie case that s189(1) had not been complied with.

 

But this is an impossible evidential hurdle for the Claimant to overcome to shift the burden back the to Lender.

 

It follows then if it can be shown by the Claimant that s189(1) had not been complied with issues and questions as to s61(1) are irrelevant.

 

And in THIS situation there is no Consumer Credit Agreement AND no Contract at Common Law

 

..And I agree with the above post that Mguffick was PRIMARILY about the circumstances in which enforcement could or could not take place

 

m2ae

 

Section 189 is Definitions! Ignoring this, the point is that it is for the Claimant to prove his case on the balance of probabilities. A Claimant Creditor must prove that there was a contract but this is normally easy because moeny has been lent and taken and repayments made, even without any written terms this creates a contract (although not necessarily one that complies with the CCA). It is also for a Claimant Creditor to prove that they complied with s.61. This is most easily done by producing the compliant credit agreement, signature and all. However, this is not absolutely necessary, the Court just has to be satisfied that s.61 was complied with, on the balance of probabilities. For example, if a person says "I saw a compliant credit agreement being signed by the creditor and lender" and if the Court believes that person, and there is no evidence to the contrary, then the balance of probabilities test will be met.

 

Let me draw an analogy...with the crime of theft (the evidential burden is more strict in this example .."beyond reasonable doubt" but ignore that for a second). Proving theft will normally involve having something that has been stolen. However, if the stolen goods can not be found for whatever reason (perhaps they have been destroyed or lost) it is not impossible for the Court to convict someone of theft - it is just more difficult for the prosecution to prove it.

 

All just my personal opinion.

[bustthematrix]

Slogging through Carey, it looks like Waksman took the view of Flaux in McGuffick and has ruled that CRAs can be notified even if the agreement is IU!

 

The fact that the creditor may nonetheless report the debtor to a CRA (which according to McGuffick he can) does not entail an unfair relationship.

LA

It seems that way at first reading but the basis of Waksman's thoughts here is the Unfair Relationship test, which, I believe was one of the main points put forward by the Claimant's lawyers.

 

It would have been interesting to see how arguments for removal based on the DPA and S140 of CCA may have held.

[means2anend]

I think you'll find that the meaning of an 'executed agreement' is in s189(1) and that is the starting point before discussions of s61(1) should be addressed.

 

A properly executed agreement is a logical antecedent before other issues become relevant.

 

m2ae

[bustthematrix]

Section 189 is Definitions! Ignoring this, the point is that it is for the Claimant to prove his case on the balance of probabilities. A Claimant Creditor must prove that there was a contract but this is normally easy because moeny has been lent and taken and repayments made, even without any written terms this creates a contract (although not necessarily one that complies with the CCA). It is also for a Claimant Creditor to prove that they complied with s.61. This is most easily done by producing the compliant credit agreement, signature and all. However, this is not absolutely necessary, the Court just has to be satisfied that s.61 was complied with, on the balance of probabilities. For example, if a person says "I saw a compliant credit agreement being signed by the creditor and lender" and if the Court believes that person, and there is no evidence to the contrary, then the balance of probabilities test will be met.

 

Let me draw an analogy...with the crime of theft (the evidential burden is more strict in this example .."beyond reasonable doubt" but ignore that for a second). Proving theft will normally involve having something that has been stolen. However, if the stolen goods can not be found for whatever reason (perhaps they have been destroyed or lost) it is not impossible for the Court to convict someone of theft - it is just more difficult for the prosecution to prove it.

 

All just my personal opinion.

It appears you are rehashing old ground and this issue has already been ruled upon.

 

It's not clear to me what new point you are making, can you elaborate please?