Court of Appeal Judgement HSBC v Brophy ***LOST***

[GuidoT]

http://www.bailii.org/ew/cases/EWCA/Civ/2011/67.html

 

On Appeal from a Judgement by Flaux which the three CA judges essentially concurred with.

 

Banks win again.

[diddydicky]

well they dont really- they just confirm what was already known

 

for someone to appeal on the basis that the lender did not disclose.within the agreement how it would arrive at whatever credit limit it decided is IMO ludicrous

 

in reality who gives a sh*t how the creditor arrives at the figure?

[the_shadow]

Well if anyone wanted to know what the current opinion of the judiciary is in regards CCA claims in the county courts...

 

I give you a quote from LJ Moore-Bick in that judgment.

 

It represents another attempt by the holder of a credit card to invoke the terms of the Consumer Credit Act 1974 ("the Act") in order to avoid paying debts incurred to the card issuer.

[maxedout]

Hi on the court services web site RE Brandon v Amex it says vacated what would this mean in this case thanks maxedout.

[GuidoT]

That would mean the hearing is cancelled.

 

It could have settled or adjourned to be relisted for a later hearing - who knows.

Edited February 3, 2011 by GuidoT

[dx100uk]

what a stupid idea to even to even challenge this in the first place!

 

no brainer really

 

yet another silly individual going to court that has produced a judgement that will be used against genuine people that have a genuine case.

 

dx

[ukaviator]

The result of the case was that the agreement did not contain any breaches of schedule 6 to the Consumer Credit (Agreements) Regulations 1983, so the agreement was enforceable and the court is entitled to order the enforcement. By completing the application form the debtor agreed to be bound by the terms and conditions. Not a good day for the genuine cases.

[dizzyblonde1966]

Seems like the debtor was on really thin ice and just a play on words re how the credit limit would be applied

Their only defence/appeal seems to be the credit limit,

 

And there was reference to it on his application form overleaf as follows

"3. Credit Limit,Your credit limit will be determined by us from time to time and notified to you."

 

Am i right in thinking they were just arguing no amount of credit was actually stated?

and their defence was not really relevant/strong in any event as the regs allow the wording the bank used above for allocating the credit limit

 

So im pressuming all the other prescribed terms where on the application form otherwise these would have been challenged,

Also note his application form was countersigned by the bank,

 

So just a few questions

 

It would appear he did have a countersigned application form with all the prescribed terms,

weve already seen lots of judges go with application forms if they contain the prescribed terms

 

But surely if theres no prescribed terms at all and no counter signature to boot its still the same no prescribed terms /executed defence for us,

Is this judgement really that bad, or have I missed the point ?

 

DB x

Edited February 3, 2011 by dizzyblonde1966

[diddydicky]

an application form does not need to be countersigned by the creditor- if it contains all of the prescribed terms and is signed by the consumer- then it would be valid

 

its not that bad IMO since many of use are talking about application forms that DON'T contain all (or any) of the prescribed terms

 

in the case above i think point one was that the actual credit limit was not stated (but that is nothing new) and then the main contention (which seems barmy to me) is the defendant arguing as to the fact that the method the creditor would use to calculate what it decided the credit limit would be - was of some importance to the validity of the agreement

 

so for me ......... a non event really

[Docman]

I also wonder about the wisdom of bringing this appeal on very thin grounds - and more importantly who is paying the costs. Could there be some case management company lurking in the shadows who has ended up screwing the grounds for genune individuals once again?

[caro]

It represents another attempt by the holder of a credit card to invoke the terms of the Consumer Credit Act 1974 ("the Act") in order to avoid paying debts incurred to the card issuer.

 

Says it all really.

 

It's time to look at other ways of dealing with debt.

[Gallahad]

Thats :evil:just what the establishment want

G

[caro]

Thats :evil:just what the establishment want

G

 

We have to be realistic here. Case after case is being lost, with just the occasional success due to very specific circumstances that won't apply to most people. Whether or not you agree with the judges is another matter, but given the clear views of the judiciary that people are simply trying to avoid paying debts, thanks largely to CMCs who jumped on a gravy train, it's time to look at alternatives.

 

If you try to walk through a wall but end up just keep banging your head against it, then eventually you're going to realise that what you really need is a door to get through to the other side.

 

So what I'm saying is, ok this isn't working, so let's work together and find something that does.

 

That's not selling out.

[Gallahad]

Thats not selling out but to give up on trying to ensure that the statutes made by parliament are adhered to is.

G

[liquidauctions]

Well if anyone wanted to know what the current opinion of the judiciary is in regards CCA claims in the county courts...

 

I give you a quote from LJ Moore-Bick in that judgment.

It represents another attempt by the holder of a credit card to invoke the terms of the Consumer Credit Act 1974 ("the Act") in order to avoid paying debts incurred to the card issuer.

 

Thats the same point I was trying to make the other day. The judges arent daft, If it says in your defence you didnt spend the money then maybe you have a case but spending the money then trying to say the CCA wasnt valid? the defendant could have also not spent the money because of an invalid CCA. The unenforceable CCA only works with the creditor and must be a genuine case. I feel sorry for the poor people who will be quoted HSBC vs BROPHY when making an argument. If you try invald CCA in court you will loose

[liquidauctions]

7

By sending him a credit card the Bank made him an offer of credit which he accepted by making use of the card.

 

Extracted from par 7 just adds weight to my argument

[diddydicky]

i am sorry but that observation is too simplistic

 

it is perfectly acceptable to admit to having had use of the funds WITHOUT losing the argument as to whether repayment can be legally enforced by the creditor

 

as caro has said each individual case turns on its own merits and the abilities of the person defending the claim.................

 

but clearly defendants simply "quoting legistlation" without any active engagement with the issues they are arguing- are going to come a cropper

 

brophy is a very limited argument in that the defendant was trying to argue that he was entitled to know (and include as a prescribed term) the mechanism by how the creditor arrived at the credit limit he would set

 

 

the case still remains valid for pre 2007 agreements that if the application form does not contain all of the PT's then the claimants claim (properly defended) will fail

[diddydicky]

7

By sending him a credit card the Bank made him an offer of credit which he accepted by making use of the card.

 

Extracted from par 7 just adds weight to my argument

 

this is nothing new

 

the act clearly states that in the absence of a properly executed agreement- if the debtor has signed an application form- whether or not in the prescribed form- and which contains the prescribed terms of the agreement - then this amounts to an executed agreement

 

in the brophy case the defendant had not signed an application form that did not contain the prescribed terms- he was arguing that the term " will notify you of the credit limit from time to time" was not a "credit limit" and then tried to argue that he was entitled to be told within the PT's the method by which the creditor would calculate the credit limit

 

he was clearly in my opinion being a chancer and what is more worrying - is that his barrister "egged him on" (sorry about the pun - egg customers) in an argument that i suggest even a first year law student could have predicted the outcome of

[caro]

Thats not selling out but to give up on trying to ensure that the statutes made by parliament are adhered to is.

G

 

I don't recall saying that statutes should not be adhered to.

 

Of course they should, and if people enter into contracts, whoever they are, then they should read what they are signing and stick by it, no matter who they are. If creditors consistently fail to meet their obligations then they need to be brought to task for not doing so. They also have a duty to lend responsibly and deal fairly with people, especially those who find, through no fault of their own, that they cannot pay back the money they borrowed, especially when ludicrous charges, interest rates and anything else that the financial institutions and creditors come up with. With this Government and the spending cuts this is going to become more and more of an issue.

 

If creditors fail in their obligations, then they need to be brought to task. Unfortunately at the moment the regulatory authorities are as much use as a chocolate teapot, largely comprising former bankers who are from the same mould. Regulation, and in particular self-regulation, need addressing and there needs to be a massive shift in this to make sure that customers are dealt with fairly, and if the banks etc fail to meet their obligations or to stick to the law, then they should be held accountable.

 

That is not something that is going to happen overnight, if ever, and while it's very noble of people to want to risk all in order to bring their creditors to task, the judiciary have made it very clear that for the vast majority this is not an option.

 

Most people who come to CAG have little or nothing, and to advise anyone to take on their creditors in court the way things stand now would, in most cases be wreckless, particularly if they weren't fully aware of the risks they were taking. If people, having made themselves aware of the options available, and understanding the risks they take, choose to fight on, then fair enough.

 

There is every possibility that caggers will not be able to afford good legal advice or representation, so will end up in court themselves. Some have won either with legal help, or as litigants in person. Most haven't, and while some enjoy the fight, for many it is a stressful ordeal which takes over their lives and the lives of their families. If they lose there is every prospect of high costs being awarded against them, and if they own their own home, potentially to lose that too. So while they may have fought the good fight in order to make a point and be able to reduce their debts, if they fail the only ones to win are the banks and DCAs and the cagger is even deeper in debt.

 

If you've got deep pockets, then by all means fight on in court, but like any army, if you're losing the battle then you have to regroup and change your strategy in order to fight on and win the war.

[oilyrag]

This is a very unfortunate situation for all of but one which some of us, much in the minority, have been warning about for some while. yet we have been been denigrated by some claiming anything that aprofessional can do , can done from here for free. I am not pushing the professional boat out at all but what I can be sure of saying is that these cases, many of which have been brought by LIPs "doing their own thing" with little understanding and greedy CMCs actions are frustrating the hell out of REAL professionals who are prepared to take up the cudgels oon our indivudual and collective behalf.

 

Yes we are with solicitors as you all know. They have seem to have strategies which are never dreamed of on here. Approached in a proper way it is not expensive at all. In fact our complete mess cost less than one months payments on the cards in question including the disbursements. We have won one thing at first bid we wanted to settle and still have much ongoing but in 18months their advice and guidance has never proved to be to our detriment.

 

It should be noted that there have been sharp exchanges and it is NOT an easy way out. They spelled out from day one the possibilities at worst case and what they could do to negoitiate and assist should the very worst happen to us and the likely settlement they might achieve. After they had conducted their investigations/evaluations it was they that told us that this worst case scenario was most unlikely to happen now. They even gave us time to get the money together to pay them the requested sums, started work straight away as an act of faith to us and now we have it in writing from the managing partner of a specialist litigation practice (note not CMC or charity) that we will be defended on a whatever it takes basis at no further cost to ourselves.

 

Finally, they did stress as DD says, Carey says and many more that each case will stand or fall on its own merits. Thats is ALL the judiciary are saying and I have no love for them.

 

regards

oilyrag.

[liquidauctions]

this is nothing new

 

the act clearly states that in the absence of a properly executed agreement- if the debtor has signed an application form- whether or not in the prescribed form- and which contains the prescribed terms of the agreement - then this amounts to an executed agreement

 

in the brophy case the defendant had not signed an application form that did not contain the prescribed terms- he was arguing that the term " will notify you of the credit limit from time to time" was not a "credit limit" and then tried to argue that he was entitled to be told within the PT's the method by which the creditor would calculate the credit limit

 

he was clearly in my opinion being a chancer and what is more worrying - is that his barrister "egged him on" (sorry about the pun - egg customers) in an argument that i suggest even a first year law student could have predicted the outcome of

 

Thats fine but my argument was that all this should have been dealt with before court or if the case was specifically about the agreement. E.g If brophy took hsbc to court specifically for the point that his CCA wasnt valid then ok but the dispute taken to court was centered on the amount owed. I dont think Brophy would have taken any action if HSBC didnt want the money back and things like that are what the judges look out for. If Brophy would have shown that well before HSBC demanded any money he was disputing his agreement then he would have had a plausible chance.