Contract hire extension rental - statutory demand

[42man]

Did they at any stage attempt to come and collect the vehicle or telephone to pick up ?

 

Were they aware of any kind of dispute prior to the stat demand ? i.e anything in writing..../ not just phone calls

 

How was the statutory demand delivered to you ?

[42man]

Have you used the vehicle at all during the 12 months ?

[42man]

I would also for good measure get a SAR from the bank too.

[42man]

Was this disputed before the stat demand arrived ?

[42man]

If it were me in your shoes then I would be stating on the demand that no extension agreement had been signed or executed despite your request. I think I read somewhere above that the company do not allow extensions unless there is a signed agreement ? (am I correct).

 

If I were a judge, then I may say that you benefitted from the use of the vehicle, which in light of the fact that you have a major dispute, and they are trying to collar you for 12 months then it shouldn't make any difference.

 

However it is preferable that you had a major dispute before the demand arrived (I have to ask how was the demand served on you ?). If you had a major dispute before they sent out the demand then I have an inclination to add this is your set aside/affadavit.

 

HHJ Peter Coulson QC sets out in Jacob v Vockrodt [2007] EWHC 2403 (QB) when petitioning is an abuse of process that could involve the tort of malicious presentation of a bankruptcy petition.

 

The key parts of the judgement on abuse of process are:

 

Mr. Davies relied on the well-known passage in the judgment of Harman J in Re a Company [1983] BCLC 492 in which he said:

 

"First, it is trite law that the Companies Court is not and should not be used as (despite the methods in fact often adopted) a debt-collecting court. The proper remedy for debt collecting is an execution upon a judgment, a distress, a garnishee order or some such procedure. On a petition in the Companies Court, in contrast with an ordinary action there is not a true lis between the petitioner and the company which they can deal with as they will. The true position is that a creditor petitioning the Companies Court is invoking a class right (see Re Crigglestone v. Coal Co. [1986] 2 Ch 327) and his petition must be governed by whether he is truly invoking that right on behalf of himself and all others of his class rateably, or whether he has some private purpose in view. It has long been an order that a petition presented for the purpose of putting pressure on the company is not properly presented: see Re a Company [1894] 2 Ch. 349 and, in a slightly different context, Re Bellador Silk Ltd. [1965] 1 All ER 667."

 

It is, of course, right that a bankruptcy petition must not be utilised where the petitioner knows that the debt is the subject of a bona fide dispute, but chooses to proceed with the petition in any event, so as to put illegitimate pressure on the other party to pay the debt. But the authorities cited above cannot be taken as authority for any wider principle or proposition. In my judgment, the correct approach to the facts, in a situation where the petition has failed and it is subsequently suggested that the presentation was malicious, was that applied in Partizan Ltd v OJ Kilkenny & Co Ltd [1998] 1 BCLC 157 by Rimer J, when he concluded at page 173:

 

[42man]

I personally think you have a strong case to set aside.....

 

I like this - monies claimed pursuant to the terms of agreement (no agreement number or details) but the agreement states 1. The agreement shall subsist for the period of hire. (Which was fixed for 24 months) 2. No agent, employee etc can alter, warranty or extend the terms of the agreement in confirmed in writing and signed by an authorised signatory of the owner etc etc....

 

Can you write the full particulars of the claim on the demand down here ? but don't include names/dates or amounts....

[42man]

If you write down the particulars of the claim on the demand and tell me exactly how they served the demand too I can assist in a defence......

[42man]

Adding this to help too - Hammonds (a firm) v Pro-Fit USA Ltd [2007] EWHC 1998 (Ch)

 

So far as disputed debts are concerned, the practice of the court is not to allow the insolvency regime to be used as a method of debt collection where there is a bona fide and substantial dispute as to the debt. Save in exceptional cases, the court will dismiss a petition based on such a debt (usually with an indemnity costs order against the petitioner).

[42man]

OK...get the POC's down, that would be helpful, also list the clause where it says ..... 1. The agreement shall subsist for the period of hire. (Which was fixed for 24 months) 2. No agent, employee etc can alter, warranty or extend the terms of the agreement in confirmed in writing and signed by an authorised signatory of the owner etc etc....

 

And so far they have attempted no personal service....is the statutory demand in your wife's name ?

[42man]

It is also worth checking that the court mentioned on the stat demand is YOUR local court. And even if it is you must check that the court mentioned do handle bankruptcies/insolvencies if not then this could be an abuse of the process. You can check here -

http://www.hmcourts-service.gov.uk/HMCSCourtFinder/

(for example although Epsom has a County Court, it does not handle bankruptcies/insolvencies) It should also have the name of a person you can ring to state that you will be applying to set aside the demand along with a telephone number to contact that person. Indeed it might be worth a phone call to state that you will be applying to set aside the demand.

[42man]

I'm not sure that I like this part 8....it seems to be able to cover their backsides in the event of what happened in your case.....if you only wanted the vehicle for 6 months then they can still make you BR for the 6 months you had the car. However the interesting aspect is the lack of any new agreement, and whether or not they would be required to carry on any obligations under the Consumer Credit Act. This would be a completely new scenario for me. There is still a major dispute obviously as you only wanted it for 6 months and they are trying to invoice you for 12 months (and they failed to supply any tax for the vehicle)

 

8. Delivery-up of the vehicle.

Upon the termination of this agreement however so arising the hirer shall cease to be in possession of the vehicle with the owners consent and shall return the vehicle in good condition( wear & tear etc etc) If the hirer retains possession or use of the vehicle (with or without the consent of the owner) after the termination of this agreement the obligations of the hirer under this agreement shall continue as if this agreement had not so terminated and such use or possession of the vehicle shall not be construed as a renewal of this agreement, the hire being obliged to deliver up the vehicle following a request to do so by the owner.

[42man]

It could be BB, but i'm really not knowledgable on UTCCR to be confident of including it (hopefully somebody else might contribute towards this)....It would also be good to see if there is any high court case history to use in your favour for this.

[42man]

You can find the forms 6.4 and 6.5 here - http://www.consumeractiongroup.co.uk/forum/showthread.php?86067

 

A guide here for filling out - http://www.consumeractiongroup.co.uk/forum/showthread.php?162489

 

Once you have filled out these then you need to get them sworn in either at the local county court (named on the demand (and your nearest that handle BR's)) This is usually free at a local county court, or a local solicitor will do it for usually £5 or central london courts charge £12 to do this. make sure you keep at least 3 copies of everything.

[42man]

Yes....excellent BB, exactly my train of thought, i'm still working on your defence too. Just one question had you disputed this at all previously ?

[42man]

OK made a start...you'll need to read this carefully and delete and add as required, it will need numbering properly.......hopefully others will contribute to this too...i'm not up on commercial agreements, but bereft of any other info, then hopefully this will be enough. Give me a shout if there is anything else and I will try my best...

 

The claimant alleges that (name of company/person) am/is indebted to it in the sum of £xxxx, being the amount outstanding under an agreement regulated by the Consumer Credit Act 1974 ("the 1974 Act)

I submit that the statutory demand should be set-aside upon the following grounds:-

The defendant wholly disputes the amounts claimed.

The claimant claims that:

“The claim is respect of a regulated agreement in writing dated 29/08/2006 wherein the creditor agreed to hire to the debtor a……(etc etc)”

The defendant avers that the agreement in writing dated 29/08/2006 has been terminated due to the satisfaction of the terms of this particular agreement.

On or around (date) the defendant requested a new agreement by way of telephone/letter to continue the hiring of the vehicle for no longer than 6 months and would require an agreement for the duration of this term. The defendant was told that a new agreement would duly be sent.

Under the claimants terms and conditions it clearly states that –

2. “No agent, employee etc can alter, warranty or extend the terms of the agreement in confirmed in writing and signed by an authorised signatory of the owner”

The claimants agreement also states in direct contravention to point 2 (above) –

8. Delivery-up of the vehicle.

“Upon the termination of this agreement however so arising the hirer shall cease to be in possession of the vehicle with the owners consent and shall return the vehicle in good condition( wear & tear etc etc) If the hirer retains possession or use of the vehicle (with or without the consent of the owner) after the termination of this agreement the obligations of the hirer under this agreement shall continue as if this agreement had not so terminated and such use or possession of the vehicle shall not be construed as a renewal of this agreement, the hire being obliged to deliver up the vehicle following a request to do so by the owner.”

 

The defendant avers that the agreement is unfair in this respect under (delete below as appropriate) UTCCR etc etc

7.—(1) A seller or supplier shall ensure that any written term of a contract is expressed in plain, intelligible language.

(2) If there is doubt about the meaning of a written term, the interpretation which is most favourable to the consumer shall prevail but this rule shall not apply in proceedings brought under regulation 12.

Effect of unfair term

8.—(1) An unfair term in a contract concluded with a consumer by a seller or supplier shall not be binding on the consumer.(2) The contract shall continue to bind the parties if it is capable of continuing in existence without the unfair term.

Unfair Terms

5.—(1) A contractual term which has not been individually negotiated shall be regarded as unfair if, contrary to the requirement of good faith, it causes a significant imbalance in the parties' rights and obligations arising under the contract, to the detriment of the consumer.

(2) A term shall always be regarded as not having been individually negotiated where it has been drafted in advance and the consumer has therefore not been able to influence the substance of the term.

(3) Notwithstanding that a specific term or certain aspects of it in a contract has been individually negotiated, these Regulations shall apply to the rest of a contract if an overall assessment of it indicates that it is a pre-formulated standard contract.

(4) It shall be for any seller or supplier who claims that a term was individually negotiated to show that it was.

(5) Schedule 2 to these Regulations contains an indicative and non-exhaustive list of the terms which may be regarded as unfair.

©making an agreement binding on the consumer whereas provision of services by the seller or supplier is subject to a condition whose realisation depends on his own will alone;

(f)authorising the seller or supplier to dissolve the contract on a discretionary basis where the same facility is not granted to the consumer, or permitting the seller or supplier to retain the sums paid for services not yet supplied by him where it is the seller or supplier himself who dissolves the contract;

(h)automatically extending a contract of fixed duration where the consumer does not indicate otherwise, when the deadline fixed for the consumer to express his desire not to extend the contract is unreasonably early;

(i)irrevocably binding the consumer to terms with which he had no real opportunity of becoming acquainted before the conclusion of the contract;

(j)enabling the seller or supplier to alter the terms of the contract unilaterally without a valid reason which is specified in the contract;

(k)enabling the seller or supplier to alter unilaterally without a valid reason any characteristics of the product or service to be provided;

(m)giving the seller or supplier the right to determine whether the goods or services supplied are in conformity with the contract, or giving him the exclusive right to interpret any term of the contract;

(n)limiting the seller’s or supplier’s obligation to respect commitments undertaken by his agents or making his commitments subject to compliance with a particular formality;

(o)obliging the consumer to fulfil all his obligations where the seller or supplier does not perform his;

Section 140A of the 1974 Act (as amended) provides that a court may determine that the relationship between a lender and a borrower arising out of a credit agreement (or the agreement taken with any related agreement) is unfair to the borrower because of:

any of the terms of the credit agreement or a related agreement

the way in which the lender has exercised or enforced its rights under the credit agreement or a related agreement, or

any other thing done (or not done) by or on behalf of the lender either before or after the making of the credit agreement or a related agreement.

20Powers of court in relation to unfair relationships E+W+S+N.I.

After section 140A of the 1974 Act (inserted by section 19 of this Act) insert—

“140BPowers of court in relation to unfair relationships

(1)An order under this section in connection with a credit agreement may do one or more of the following—

(a)require the creditor, or any associate or former associate of his, to repay (in whole or in part) any sum paid by the debtor or by a surety by virtue of the agreement or any related agreement (whether paid to the creditor, the associate or the former associate or to any other person);

(b)require the creditor, or any associate or former associate of his, to do or not to do (or to cease doing) anything specified in the order in connection with the agreement or any related agreement;

©reduce or discharge any sum payable by the debtor or by a surety by virtue of the agreement or any related agreement;

(d)direct the return to a surety of any property provided by him for the purposes of a security;

(e)otherwise set aside (in whole or in part) any duty imposed on the debtor or on a surety by virtue of the agreement or any related agreement;

(f)alter the terms of the agreement or of any related agreement;

(g)direct accounts to be taken, or (in Scotland) an accounting to be made, between any persons.

THE IMPORTANCE OF THE DEFAULT NOTICE

The claimants claim is made upon a regulated agreement under the CCA1974.

The claimant has not issued any default notice.

6. The failure of a Default Notice to be accurate let alone served not only invalidates the Default Notice (Woodchester Lease Management Services Ltd v Swain and Co - [2001] GCCR 2255) but is an unlawful rescission of contract which would not only prevent the Court enforcing any alleged debt, but give me a counter claim for damages Kpohraror v Woolwich Building Society [1996] 4 All ER 119.

7. It is submitted that the above Default Notice served s87(1) Consumer Credit Act 1974 failed to comply with the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561).

 

8. For a Creditor to be entitled to terminate a regulated Credit Agreement where there is a breach, demand repayment in full or take any legal action to recover any monies due under the Agreement, a creditor must serve a Default Notice under section 87(1) of the Consumer Credit Act 1974 which states:

 

Section 87. Need for Default Notice

 

(1) Service of a notice on the Debtor or hirer in accordance with section 88 (a "Default Notice ") is necessary before the creditor or owner can become entitled, by reason of any breach by the Debtor or hirer of a regulated Agreement -

 

(a) to terminate the Agreement, or

 

(b) to demand earlier payment of any sum, or

 

© to recover possession of any goods or land, or

 

(d) to treat any right conferred on the Debtor or hirer by the Agreement as terminated, restricted or deferred, or

 

(e) to enforce any security.

 

9. The Act also sets out via Section 88(1), that the Default Notice must be in the prescribed form, as below:

 

Section 88. Contents and effect of Default Notice

 

(1) The Default Notice must be in the prescribed form…

 

10. The wording must make it clear that no variation is acceptable. Therefore it cannot be dispensed with as a De Minimus issue.

 

11. I note that the regulations do not allow any variation in the form of these statements and therefore it is suggested that where the statements are not as laid down in the regulations the Default Notice is rendered invalid as a consequence.

 

12. In the case of Woodchester Lease Management Services Ltd v Swain & Co - [1998] All ER (D) 339 in the Court of Appeal, the Court addressed in some detail the issue of the contents of a Default Notice and should the notice fail to comply with the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) it would render any Default Notice invalid I quote the comment of KENNEDY LJ: "This statute was plainly enacted to protect consumers, most of whom are likely to be individuals" the judgment appears to confirm the consumer credit legislation made under the Consumer Credit Act 1974 as plainly enacted and set out to offer protection to the consumer. Therefore it is suggested that the failure of the Claimant to set out the Default Notice in accordance with the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) could unduly prejudice me as it failed to allow the required time to remedy the alleged default.

 

13. The Claimant’s failure to issue a valid Default Notice must surely prevent a right of action and would make any termination of the Agreement unlawful, as statute provides the procedure that must be followed. Since the Claimant has failed to adhere to statutory procedure it is averred that the Claimant does not have a right of action, and can never now have a right of action having terminated the Agreement unlawfully

 

14. Furthermore, the total outlined cannot be accurate, as the Balance on the Account was at least partly comprised of Unlawful Charges plus additional Charges and interest added unlawfully whilst the Account was in dispute. Therefore, the sum claimed cannot be accurate, as they are themselves calculated using a total that was itself inaccurate.

 

15. If as the claimant claims that this is under an Agreement Regulated by the Consumer Credit Act 1974. There is no provision in the Act that allows a large financial institution to terminate an Agreement by starting bankruptcy proceedings, that is in alleged default or breach simply by giving notice to the Consumer. Section 98(6) makes that quite clear. The Creditor must follow the steps outlined in Section 87 and Section 88 if they are to lawfully Default and Terminate, and enjoy the benefits of Section 87.

 

The defendant is not insolvent and avers that the demand is an abuse of process

HHJ Peter Coulson QC sets out in Jacob v Vockrodt [2007] EWHC 2403 (QB) when petitioning is an abuse of process that could involve the tort of malicious presentation of a bankruptcy petition.

 

The key parts of the judgement on abuse of process are:

 

Mr. Davies relied on the well-known passage in the judgment of Harman J in Re a Company [1983] BCLC 492 in which he said:

 

"First, it is trite law that the Companies Court is not and should not be used as (despite the methods in fact often adopted) a debt-collecting court. The proper remedy for debt collecting is an execution upon a judgment, a distress , a garnishee order or some such procedure. On a petition in the Companies Court, in contrast with an ordinary action there is not a true lis between the petitioner and the company which they can deal with as they will. The true position is that a creditor petitioning the Companies Court is invoking a class right (see Re Crigglestone v. Coal Co. [1986] 2 Ch 327) and his petition must be governed by whether he is truly invoking that right on behalf of himself and all others of his class rateably, or whether he has some private purpose in view. It has long been an order that a petition presented for the purpose of putting pressure on the company is not properly presented: see Re a Company [1894] 2 Ch. 349 and, in a slightly different context, Re Bellador Silk Ltd. [1965] 1 All ER 667."

1. Hammonds (a firm) v Pro-Fit USA Ltd [2007] EWHC 1998 (Ch)

 

In this case, Mr Justice Warren confirmed that it was usual for an indemnity award to be made:-

 

27 So far as disputed debts are concerned, the practice of the court is not to allow the insolvency regime to be used as a method of debt collection where there is a bona fide and substantial dispute as to the debt. Save in exceptional cases, the court will dismiss a petition based on such a debt (usually with an indemnity costs order against the petitioner).

The claimant has made no attempt whatsoever at personal service

1. Under further investigation of the Insolvency practice directions it should be noted that the service of the Statutory Demand should only be served by post if the creditor has tried to bring it to the debtor’s attention via a personal service, where possible. The process involved is set out in CPR PD INSOLV 11.4 .

 

The creditor is under obligation to take reasonable steps to bring the demand to the debtor’s attention and if, practicable, personal service should take place. Where this is not possible, the creditor is allowed to serve the demand either via post or through a letterbox, but it is expected that following steps have taken place first:

o One personal visit to each of the debtor’s known residencies and places of business

o If it is not possible to serve the Statutory Demand during the visit(s), a letter should be sent to the debtor making her/him aware of the visit(s) have taken place and purpose of the visit(s). The letter should also state that another visit will be made for the same purpose and specify the date, time and place. At least two business days’ notice must be given. The letter should also state that if the time and place are inconvenient, the debtor should name a reasonable alternative. The letter can also state that if the debtor fails to keep the appointment, the demand will be posted/inserted through a letterbox and, if a bankruptcy petition is presented, the court will be requested to accept this as a service of demand. Copies of the letter should be sent to all known addresses of the debtor.

If the creditor presents a bankruptcy petition to the court, an affidavit has to be sworn giving details of service of the Statutory Demand. If a demand was not served personally and no written acknowledgement of service has been received from the debtor, the creditor must set out the steps it has taken to ensure the demand has been served on the debtor. If the court is not satisfied that the creditor has carried out their obligations, it can refuse to issue a petition.

 

Judge Boggis QC - RE AWAN - [2000] BPIR 241

 

'In my judgment, bankruptcy is one of the most serious forms of execution that can be brought against a debtor. In any bankruptcy proceedings it is, in my view, absolutely clear that the provisions as to service must be followed exactly.

In light of the above, the defendant gracefully requests the court to dismiss the demand, and to order the claimant to pay the costs of the defendant.

[42man]

My brain hurts....lol

[42man]

Is the misspelled name completely wrong ? the judge may not worry about that and see it as a de-minimus issue...

[42man]

You might like to read through some of these too, not sure if they are relevant or not.

 

http://www.oft.gov.uk/about-the-oft/legal-powers/legal/cca/CCA2006/unfair/unfair-rel-full/

[42man]

My personal feeling is that you should get it set aside, as the dispute is substantial...basically it is a spurious agreement, in one term they say we can extend the agreement etc etc, and in another they say they can't they are trying to have their cake and eat it.....and IMO it is an unfair term as potentially you would lose the protection of the CCA1974 without an agreement (which you rightly requested). And you would not have been able to benefit from the use of the vehicle any longer than 6 months as they never senr any tax disc, and failed to pick it up after 6 months !! however, just try and learn as much as you can...it can also depend on the judge on the day too as they can vary wildly.

[42man]

I'd certainly say that you can use the same aspects of the case, and indeed a similar defence....and it is worth mentioning that the demand was set aside (I presume they have not attempted to resolve your disputes ?) What are the particulars of the claim ? (don't be specific with names/dates/numbers)

[42man]

I'd say yes....but I think you should invoke the use of CPR31.14 to aid you - have a read - http://www.consumeractiongroup.co.uk/forum/showthread.php?241827-Legal-Action-how-to-start-off.-IMPORTANT-IF-YOURE-BEING-SUED