S40 Administration of Justice Act 1970 - irrelevant to this forum in almost all circumstances - use CPUTR's instead!!

[UnitedFront]

Good afternoon fellow caggers....

 

some months ago, it was brought to my attention through a debate with another member (can't remember which one, but I should like to say thank you to that member and acknowledge their input) that S40 Administration of Justice Act 1970 NO LONGER APPLIES to activity taken by a company and is a commercial practice as defined by the Consumer Protection from Unfair Trading Regulations 2008. See below:

 

S40.— Punishment for unlawful harassment of debtors.

(1) A person commits an offence if, with the object of coercing another person to pay money claimed from the other as a debt due under a contract, he—

(a) harasses the other with demands for payment which, in respect of their frequency or the manner or occasion of making any such demand, or of any threat or publicity by which any demand is accompanied, are calculated to subject him or members of his family or household to alarm, distress or humiliation;

(b) falsely represents, in relation to the money claimed, that criminal proceedings lie for failure to pay it;

© falsely represents himself to be authorised in some official capacity to claim or enforce payment; or

(d) utters a document falsely represented by him to have some official character or purporting to have some official character which he knows it has not.

(2) A person may be guilty of an offence by virtue of subsection (1)(a) above if he concerts with others in the taking of such action as is described in that paragraph, notwithstanding that his own course of conduct does not by itself amount to harassment.

(3) Subsection (1)(a) above does not apply to anything done by a person which is reasonable (and otherwise permissible in law) for the purpose—

(a) of securing the discharge of an obligation due, or believed by him to be due, to himself or to persons for whom he acts, or protecting himself or them from future loss; or

(b) of the enforcement of any liability by legal process.

 

(3A) Subsection (1) above does not apply to anything done by a person to another in circumstances where what is done is a commercial practice within the meaning of the Consumer Protection from Unfair Trading Regulations 2008 and the other is a consumer in relation to that practice.

 

I am aware that, worryingly, the above amendment is still not showing on the statutelaw.gov.uk database or opsi.gov.uk / legislation.gov.uk however S40(3A) was added by Consumer Protection from Unfair Trading Regulations 2008/1277 Sch.2(1) para.13.

 

On this basis, caggers really should stop using this now outdated approach and instead include the correct and relevant law - namely the CPUTR:

Consumer Protection from Unfair Trading Regulations 2008/1277

Schedule 1 Commercial practices which are in all circumstances considered unfair

 

26.

Making persistent and unwanted solicitations by telephone, fax, e-mail or other remote media except in circumstances and to the extent justified to enforce a contractual obligation.

 

I thought, given that we're still seeing S40 AJA 1970 quoted in a number of letters being sent out by caggers, that this thread may highlight the error and allow members to use the correct legislation in future.

 

Cheers

UF

[harrassed senior]

Thank you for putting us straight, only problem is that many who 'cruise' this site but never join use outdated templates all the time, for instance the CCA Request, not including sentence about reconstituted agreements not being good enough, and also some still include the 'its an offence if you do not respond after 30 days. Would there be a way to correct this too?

[UnitedFront]

Exactly, HS. That's my concern really.... I have to say I was caught out earlier in the year during the debate mentioned in the first post in this thread. I hadn't read the AJA '70 for some time, except a quick peek on statutelaw.gov.uk and that site (worryingly, given it's a .gov.uk) didn't make any mention of S40 not applying. It was only when I looked on Westlaw that I saw the amendment.

 

Cheers

UF

[nicklea]

UF,

 

What you have to be aware of with statutelaw is the warnings they put at the top of the page, for example, this at the top of the AJA:-

 

Update Status Warning: There are effects on this legislation that have not yet been applied to the Statute Law Database for the following year(s): 2003, 2004, 2005, 2006, 2007, 2008, 2009. Please see the Tables of legislative effects for details. See also important information in Update status of legislation.

[UnitedFront]

Hi nicklea, thanks for the response. Yeah I'm aware of the warnings there.... but you know how it is when you're just looking at something in a particular hurry.... So easy to miss things etc But yes, you're quite right definitely.

 

To be honest I've all but stopped using the Government statute websites because of the massive delays in updating them. I find that the commercial sites are updated more often and are generally more reliable and easier to get around so I'm sticking to them, really.

 

Cheers.

UF

[kerravon]

The average DCA bod who gets your letter won't be up to date either. Not to detract from the OP.

[UnitedFront]

Hi Kerravon, I think you're quite right that most DCA's won't be up to date BUT we should be!!!

 

Only by being up to date and getting the law right can we maintain stature and actually make a difference. In my opinion, if we continue using outdated legislation / case law etc etc then we simply make ourselves look bad and people/businesses and even the courts won't take us as seriously as they should.

 

Cheers.

UF

[jimbarino]

It's a shame as most DCA's breach at least S40.1(a),(b) and © in their everyday practices. I shall obtain a full copy of CPUTR2008 and devour it on the train tomorrow.

[UnitedFront]

I know, S40 was so precise in the way it applied to DCAs in their every day practices!!

 

The new rules don't seem quite so crisp and there is the whole question of what constitutes "justified" etc.... In some cases this will obviously be very clear, but in others I fear it will not...

 

Do stop by when you've read them and let us know what your thoughts are on them...

 

Cheers

UF

[teaboy2]

Below is my own admendment of the telephone harressment letter.

 

I am writing in relation to the quantity and frequency of telephone calls that I have received from your company, which I deem to be personally harassing.

 

I have verbally requested that these stop, but I am still receiving calls.

 

I now require all further correspondence from your company to be made in writing only.

 

I am of the view that your continued harassment of me by telephone puts you in breach of the Protection from Harassment Act 1997.

 

If you continue to harass me by telephone, you will also be in breach of the Communications Act (2003) s.127 and I will report you to OFCOM, Trading Standards and The Office of Fair Trading, meaning that you will be liable to a substantial fine.

 

Please treat this also as a formal complaint, and send me a copy of your company complaints procedure.

 

Using the CPUTR version does nothing but inform them as a commercial entity calling a consumer they are to the extent justfied in doing so to enforce a contract/agreement. Which is like giveing them an key to unlock your door and leave you wide open to such calls.

[nicklea]

teaboy,

 

This letter would really only be appropriate if there really was a major dispute over the debt. eg they were chasing the wrong person or it was statute barred.

 

The mere fact of them calling you is not enough for you to be able to claim that they are harrassing you. It all depends on the circumstances - template letters really are not very useful, you should send a letter that is appropriate to a person's circumstances.

 

To be honest, if they are chasing a debt that isn't the subject of a reasonable dispute then a reasonable person in possession of the same information as the DCA would not think that telephoning you amounted to harassment and so they have not contravened the Protection from Harassment Act.

 

With regards to s127, Section 127(1)(a) relates to a message etc that is grossly offensive or of an indecent, obscene or menacing character and should be used for indecent phone calls and emails. Has this happened to you?

 

Section 127(2) targets false messages and persistent misuse but only where the purpose is to cause annoyance, inconvenience or needless anxiety.

 

I would suggest that the primary purpose of all the phone calls is to get you to pay the debt. The anxiety that they casue to people - and I know as I've been on the receiving end of these - is merely a consequence of the primary purpose.

 

To be honest with you, by all means send this letter as it will help you to vent some of your anger against them but don't expect it to make ny difference

[teaboy2]

Nicklea

 

Thats true, but it all boils down to whether you dispute the debt and reason for disputing it, plus once you have informed them to correspond in writing only instead of constantly calling you, and they continue to constantly call you. Then yes you would have grounds for an harrassment claim, because of the following points:

 

After making you position clear on the matter (disputing debt or explained you can not afford what they are asking for etc);

 

1: Is it reasonable for a reasonable person to call you demanding payment in full or more than what you have already said you can afford to pay 2-3 times or more a day/week? No it is not.

A); Is it reasonable for them to be making the same calls to you at your work places or any call for that matter to your workplace? No It is not.

2. Is it reasonable for them to have their Automated calling system (majority of which are silent calls) call you numerous times a day/week? No it is not.

 

3 Is it reasonable for them to send you text message or voice message to you land/mobile phone on numerous occasions asking you to call them back on a premium number? No it is not, (most debtors can not afford to anyway, or may have incoming calls only).

 

4 Is it reasonable to make threats to you down the phone and be abusive towards you? No it is not.

 

5 Is it reasonable for them to mislead you on the phone in regards to threating legal actions (false threats when unenforecable debt) when you know they can not do so? No it is not.

 

6 Is it reasonable for them to mislead you in terms of legal leglisation, i.e giving you unqualified legal advice that is wrong and misleading purposefully in order to obtain payment? No it is not

 

So where they give you knowingly false information they are in breach of the malicious communications act 1988 which is an offence (should also note the same applies for written and electronic communications i.e email, txt's etc as well as telecommunication). And as this is the field they commercially operate in, then it is reasonable to assume they know and have been trained in regards to what the actual legalisation is and therefore will struggle to argue that they had not knowingly given you false information, especially when you have notes or a recording of the phone conversation.

 

If they are doing the above or any of the above, when you have made your position clear to them (prefereably in writing) then they are acting unreasonably and therefore their actions constitute harassment. As am sure any reasonable person making those calls and who has access to the notes on the Database (that contains you account), the person calling will be more than aware of your position and the amount of previous attempts/calls they have made to you and would have a brief discription of what had been said in those calls. In fact i know this to be the case in regards to knowing how many calls have been made and notes of previous calls being placed on your accounts in the database, as i myself own a company that that operates from the use of sales calls, and use such Contact Managment Software (Database).

 

So the letter above should be used inside of letters people write that detail why the account is in dispute and/or their situation. Not sent as is, on it own.

 

P.s. Inregards to what you said about causing needless anxiety - And that it is just a consquence of their attempts to collect the debt. Well the question there would be, is it right for them to cause you illness in their attempts, by use of constant phone calls. I do not think it is, as it's simply a cause of anxiety and stress that can be avoided, hence therefore - Needless Anxiety.

Edited January 15, 2011 by teaboy2
Added 1 A) and corrected the odd spelling added P.s.

[Bazooka Boo]

IMO, this is somewhat an irrelavent topic, harassment of any kind, IS a criminal offence, be it an alleged debtor an ex lover or some other entity, S1 of the Protection from Harassment act 1997 STILL exists and STILL MUST be used by those being harassed by DCA's/Creditors for payment, this new CPUTR only bolsters CAGgers defence, in that it can now be narrowed right down to harassing alleged debtors. So DCA's/creditors are, if they pursue harassment for payment, now in breach of two laws of statute.

 

To say that one has overruled the other is not, IMO, correct, they should be given both barrels.

 

If you have informed a company/DCA/OC your preferred method of contact, 'in writing' and they insist on ignoring it, then yes, IMO that is harassment, it is an individual person who can deem what they are experiencing to be harassment, one persons interpretation of harassment is completely different to that of an others.

[teaboy2]

Bazooka Boo your right there about the new CPUTR admendment. When i first read it, i must admit, i did interpret it as being that if the DCA is acting to to the extent to enforce a contract, then they would be entitled to do so, in a non harassing form, of course. But now that you mentioned it, if you do not acknowledge the debt then you are infact simply an alledged debtor and they are not acting to the extent to enforce a contract but acting to the extent to enforce an alledged contract. As such they would indeed be in breach of the new CPUTR admendment.

[Bazooka Boo]

I just believe that one does not replace the other, harassment is harassment, regardless of whether you are an alleged debtor or the average joe, it is unlawful and a criminal offence, just because you owe money does not make it reasonable to harass someone?

If you have made it perfectly clear as to your intended method of communication and the ignore that, then IMO that is harassment, well it would be in my case!

 

As I do not/can not talk on the phone, then my preferred method of contact is email or letter, to ring me is futile, unless you know me and can understand me, and of which Truecall, I am truly grateful!!

 

I just do not see why alleged debtors should not be covered by the exact same laws as others, if nothing else the CPUTR regs make it even more difficult for DCA's/OC's to harass alleged debtors, this should be welcomed, and they should be hit with BOTH of the legislation acts.

[teaboy2]

And i totally agree with you, Bazooka. As you can probably tell in my Post #12.

 

And as i now have a clearer understanding of the CPUTR Admendent (post #14) its clear that s40 of the administration of jusitice act is still valid and should be used with the CPUTR schedule 1 section 26, added to it.

 

So perhaps this would be a better admendment to the telephone harrassment letter:

 

I am writing in relation to the quantity and frequency of telephone calls that I have received from your company, which I deem to be personally harassing.

 

I have verbally requested that these stop, but I am still receiving calls.

 

I now require all further correspondence from your company to be made in writing only.

 

I am of the view that your continued harassment of me by telephone puts you in breach of Section 40 of the Administration of Justice Act 1970, Protection from Harassment Act 1997 and Consumer Protection Unfair Trading Regulations Act 2008 schedule 1(26).

 

If you continue to harass me by telephone, you will also be in breach of the Communications Act (2003) s.127 and I will report you to OFCOM, Trading Standards and The Office of Fair Trading, meaning that you will be liable to a substantial fine.

 

Please treat this also as a formal complaint, and send me a copy of your company complaints procedure.

 

Yours Sincerely

Edited January 16, 2011 by teaboy2

[Bazooka Boo]

6 of one half a dozen of the other I guess, once they are aware that you interpret their actions as harassment, then why point out to them the laws which they have, in your opinion , broken. The reason why they continue to harass alleged debtors is because, to date I don't know of anyone taking legal action against them for harassment.

[teaboy2]

Well, i think we both agree that the muppets don't have enough brain cells to become aware that their actions are interpreted by you as harassment without the need for you to send them the telephone harassment letter pointing it out to them. Basically informing them by the sending the letter is the same as telling them to cease and desist, as the letter basically is a cease and desist letter.

 

As for cases where a person has successfully taken a DCA to court for harassment, the only case that is of any similarity that i could find, is ferguson v british gas [2009] EWCA Civ 46 Link Here Lisa Ferguson successfully won on appeal her case of harassment for sending of threatening letters and demands for payments for a debt she did not owe, as she had already switched suppliers. So technically she was an alledged debtor. So i would assume it be fair to say if this had been a DCA (who we all know make such threatening letters) and not british gas , the outcome would have still been the same.

 

Though am sure i have read on here that others have taken similar actions, and in some cases where the DCA has taken them to court the judge has comdemnd the DCA for the conduct amounting to that of harassment.

[coledog]

Unfortunately only the 'innocent' are covered, if you are rightly or wrongly, accused of owing money you are 'fair game' - that is the way of the world until society changes

[teaboy2]

Thats not true, it all depends on circumstance. The onus of proof is on them to prove you are the debtor, and even if you are the debtor, it does not entitle them in anyway to the right to use harassing forms of conduct. I.e if you inform them that you can only pay a small token payment each month, and they still send you regurlar threatening letters, phone calls or any other form of threatening communication, then there conduct is that of harassment.

 

Likewise if you do not acknowledge the debt, then they must prove the debt is yours. I.e if they continue to send threatening letters, phone calls or other threatening communications, without providing proof that the debt is yours then, for all purposes, they are simply alledging the debt to be your's and using harassing conduct to make you pay, when they can not be certain that you are the actual debtor. And i might add, if you are not the debtor, then their conduct may also put them in breach of the Malicious Communications Act 1988, which is also an offence.

 

So regardless of whether the debt is your's or not and regardless of such a debts enforcability or unenforcability, they do not have the right to commit an offence in terms of using harassing conduct. Nor does anyone have the right to harass a person whether that person is guilty or innocent.

 

Also if you have made a reasonable request in writing, or verbally that they communicate with you in writing only, and if they reject such a reasonable request, then its fair to deem their decision as unreasonable and their continued use of other forms of regular communication, used in unreasonable quantity or in ways to threaten or be abusive, can constitue harassment.

Edited January 17, 2011 by teaboy2
added last paragraph

[coledog]

Agreed, I am just being a bit cynical at the moment - no-one should be subject to this harassment.