Harrison vs Link Financial Limited- High Court judgment

[DonkeyB]

The argument confirmed in this case was that the a bad notice can be rectified, and that therefore another can be issued. The practicalities are more difficult though. The argument follows on that technically an account cannot be terminated on the back of a bad notice, so there is no termination.

 

This is the theoretical situation where, also technically, they may be able to withdraw the proceedings, issue a compliant notice, and start again. However, the defendant should then have the protection of the DN and be able to comply with it or raise other issues as necessary, thus avoiding legal action. They can’t simply come up with a new document in court and continue to prosecute – I doubt they would get away with it.

 

If they tried to retreat then come back, I think you would have to start looking at the other elements of this case, such as the unreasonable behaviour, and go down the CPUTR and unfair relationships route.

 

I also think judges would look down on a claimant who withdrew simply to create a ‘good’ document. I think it may be viewed as abuse of process, but these are other issues that have not yet been tested as far as I know.

 

It’s case law, so it’s fluid.

[dadofholly]

Surely by the time the matter reaches court the agreement must have been terminated and therefore it would not be possible to issue a second default notice.

 

It appears that the issue is, if the default notice is not compliant in the first place, then the agreement can not be or have been terminated.

 

That bloomin Donkey beat me to it. am going to have to moderate his carrots.

[The Mould]

Good, very good result for the consumer.

 

Para 75, the Judge seems to have glossed over the 'bad' notice made 'good' area of the case, he seems to have made the comment in passing (I did post a thread on this issue).

 

By the way, my privilages have been reinstated in full, thank you very much to the Site Team.

 

Kind Regards

 

The Mould

[pt2537]

oh lordy, he did not just gloss over the issue, there was a large section of the judgment that deals with the default with his conclusion in para 75

[Happyhippy1959]

just made me laugh Judge said being phoned 18 times in 12 months was torture - bloody heck they were nice DCA's I had Mercers ring me 23 time's in two day's haaaaaaa

 

If I was not going BR I would have hit back with that one, though I just changed me number and threaten them with court action if they kept ringing work.... The whole industry is Rotten to the core and as for our nice clean cut high street banks keeping a distance from these cockroaches, its pathetic

[pt2537]

no no no no no it wasnt the 18 calls, that gave rise to torture

 

it was the other calls not alluded to, that were the real problem

[rebel11]

http://www.walesonline.co.uk/news/wales-news/2011/03/04/debt-collectors-calls-were-a-form-of-torture-says-judge-91466-28276979/

[im-mad]

Ref rebel11's post. I'm not allowed to put links in yet but it's the post above

 

MBNA yesterday defended its actions and said it had been unable to enter “meaningful dialogue” with Mr Harrison. meaningful dialogue? more like this is how much you will pay or we go to court.

The judge said: “In my view, the claimant rightly complains that, mainly by MBNA but also by the defendant [debt collectors Link Financial], he was hounded by telephone calls seeking payment of what was said to be due.

“The calls were a form of torture oppressively frequent in amount and often without attribution to an identifiable number. I am unimpressed by suggestions that all that the claimant had to do was to seek a meeting when the position was that those who called him would not listen to what he had to say of his difficulties.” How many of us have asked for an amount we can afford only to be told that is not enough?

An MBNA spokesperson said: “It is important to make clear that this case was not brought against MBNA and it relates to a matter from 2007. However, we are, of course, reviewing the judge’s comments. An MBNA spokesperson said: You cant blame us we did not do it. No but Link were acting on your instructions so in my humble option you are still responsible, if I asked someone to break the law I would be breaking the law by association

[ScarletPimpernel]

What has not been mentioned, but I suspect the Judge was aware of, was that a 'meaningful dialogue' was entered into by Mr Harrison - in writing, as it should be. MBNA and Link are whining because their collections staff rely on the telephone. I could not, of course, comment upon whether this is because they can lie and/or intimidate on the phone, but readers (and learned Judges) can draw their own conclusions.

 

I have dealt with MBNA as an authorised representative for someone, and I was shocked at how downright unpleasant they were, let alone non-compliant - and this wasn't 2007. I suspect it's what you get with unintelligent, commission-incentivised drones in call centres.

 

Still, whilst the OFT continues to sit on its hands as far as bad debt collection practices are concerned, I doubt they'll change.

 

As for Link - perhaps MBNA should be more careful about who they flog their dud accounts to.

[Cadbury1879]

In the Press today,Daily Mail.

What a great result.

[Guest]

dc a's on the back foot again! . well done PT etc.

Edited March 4, 2011 by Ford

[pt2537]

I just hope people start raising the unfair conduct of these DCAs in their defences

 

The Harrison judgment binds the lower courts, so ought to be given respect by the District Judges

[gh2008]

I am interested in that fact that in Harrison an order was sought that he was "not liable for any sum standing to his debit under the agreement" The Judgment implies that the Claimant also sought relief under S140(b)

 

The DJ does not seem to explicitly rule on either of those matters.

 

He does deny the counterclaim for the balance but does not say that following service, even now, of a compliant DN a further claim would not be entertained.

 

Just interested as to whether this agreement is now deemed terminated and if so then when and by whom was it terminated?

Was the agreement declared as being irredeemably unenforceable?

 

I did notice that the DN 'issue' was not given "great weight"

 

82. Another factor in the opposite direction is the apparently cavalier manner of the sending both of the enforcement notice and the failure to include the requisite document. But that is not something to which I attribute great weight.

 

In fact more weight was given to the fact that the debtor just stopped payments

 

81. That said, if a debtor gets into difficulties, I cannot see why that is a good reason to make no payment at all to a creditor. I have heard no good reason why the Claimant simply stopped paying MBNA.

However, I am implementing a statutory regime and that is only one factor, albeit an important one, in

my considerations.

[pt2537]

I am interested in that fact that in Harrison an order was sought that he was "not liable for any sum standing to his debit under the agreement" The Judgment implies that the Claimant also sought relief under S140(b)

 

The DJ does not seem to explicitly rule on either of those matters.

 

He does deny the counterclaim for the balance but does not say that following service, even now, of a compliant DN a further claim would not be entertained.

 

Just interested as to whether this agreement is now deemed terminated and if so then when and by whom was it terminated?

Was the agreement declared as being irredeemably unenforceable?

 

I did notice that the DN 'issue' was not given "great weight"

 

 

 

In fact more weight was given to the fact that the debtor just stopped payments

The judges conclusions drew likenesses between the powers under 127(1)&(2) and section 140.

 

Therefore he used his powers to refuse the application for an enforcement order ( made in written closing submissions) he dismissed the Counterclaim, and he made an order pursuant to s142 which now declares no further enforcement can occur.

 

HTH

[gh2008]

The judges conclusions drew likenesses between the powers under 127(1)&(2) and section 140.

 

Therefore he used his powers to refuse the application for an enforcement order ( made in written closing submissions) he dismissed the Counterclaim, and he made an order pursuant to s142 which now declares no further enforcement can occur.

 

HTH

 

Yes, thank you - it was the Order bit I was missing

 

.... bearing in mind what has and what hasn't been ruled as enforcement, even a case such as this from the High Court still seems to leave the account (and the debt) in a state of unenforceable but reportable limbo

[Peterbard]

The judges conclusions drew likenesses between the powers under 127(1)&(2) and section 140.

 

Therefore he used his powers to refuse the application for an enforcement order ( made in written closing submissions) he dismissed the Counterclaim, and he made an order pursuant to s142 which now declares no further enforcement can occur.

 

HTH

HI

 

So it is the case that the creditor cannot again apply or an enforcement order.

I wonder , was enything more mentioned about the provision under secction 140 B that enable the judge to discharge the liability under the agreement.

It would seem that much of the judgement was based around the unfairness aspect of the case, it would be a shame if this particular section was not emphasised as it would i think open up a whole new area of consumer protection.

Peter

[Guest]

I just hope people start raising the unfair conduct of these DCAs in their defences

 

..................................

 

agree. as posted before, a claimant creditor seeks 'performance' which is an equitable remedy. depending on the circumstances, this could be defeated where the claimant is in breach themselves eg of a 'vital obligation(s)'. s140 reflects this, and goes further.

imo.

Edited March 13, 2011 by Ford
typ

[frettful38]

I just hope people start raising the unfair conduct of these DCAs in their defences

 

The Harrison judgment binds the lower courts, so ought to be given respect by the District Judges

 

 

I think you hit the nail on the head there PT, when you say about the unfair conduct of the DCA's and not to mention the creditors/lenders. In fact my defence is mostly detailed about the unfairness against me.

 

I never said I would not pay my debt neither did I ever deny it or ignore any correspondence. What I offered not once but many times was not enough so my claim at present is stayed.

 

I am certain that this judgment will be very helpful & useful for debtors who are in a similar situation as myself. I did not try and find loopholes to escape this debt, mind you if there was one I would have thought about using it ...........but I thought I was doing the right thing by trying to co-operate as much and fully as I could......which was never good enough. Then I get issued with a claim.

 

Well all I can say that this was a very welcomed judgment and good luck to anyone using it to their advantage.........I know IF the times comes I surely will.

 

Great work PT once again

[means2anend]

I have just forund this threaad from another

 

m2ae

[ldn_panda]

Just reading this thread with interest......got to submit defence within a few weeks

 

Please could you clarify what evidence/arguments were used to regarding the use of Uk Mail and whether it is business or second class service. My DN was delivered using UK Mail S service and I have been trying to find evidence, as opposed to a view, that this means 2nd class.

 

With regards to the issuance of an invalid DN followed by enforcement action, the current thinking on the forum appears to not to accept unlawful repudiation since acceptance of their termination (which isn't possible because the invalid DN means there was no termination) may lead to you accepting the debt. Arguments both ways it seems. But where the claimant has terminated the account before issuing a DN does this become irrelevant , as you are prejudiced?

 

Apologies if I have posted on this thread with regards to my own case, I'm not sure how to sub/get more input into my thread. Bit of a newbie .

 

Thankyou

[pt2537]

We had the envelope which the Claimant said the notice arrived in, i made enquiries using the envelope and was able to ascertain the date the notice entered the postal system, the time, the destination, the location from where it came etc and was able to show on balance that the envelope was the correct one and therefore i was able to show that the notice wasnt sent as MBNA said

[ldn_panda]

Hi PT2357. Thanks for the response. Would you be able to point me in the right direction to make the same enquiries ? I have the envelope the DN was sent in. Did you make enquiries with UK Mail or MBNA ? Do you know if UK Mail S stamp can be proven to mean 2nd class (in all cases), or do you have to have some specific information contained on the specific envelope ?!

 

many thanks

[pt2537]

The problem i have is that i am bound by a confidentiality agreement which i cannot disclose the information which came to my possession

 

However, you need the Royal Mail and there ought to be a orange bar code style item on the envelope , this is the key and all i can say on the subject

[DonkeyB]

Maybe I can help.

 

I imagine this is the scenario...

 

You have an envelope which they say was posted on Day X, and postage of Amount Y. These facts are crucial to your case. They say one thing and you think another, and only the data in that code can help your case. You need to prove when the letter was sent, from where and by what level of service (ie. first, second). This data is contained within the code on the letter, which moreover is encoded in a proprietary language owned by the Post Office, and for which you have to pay an inordinate amount to have decoded.

 

This is unfair.

 

My suggestion:

 

Get a solicitor to threaten the Post Office with an injunction or other court order if they will not translate the information on the letter for you. Tell them it is now a matter before the court, and one way or another you will foce them to reveal the meaning of their codes.

 

I imagine they may comply. But you will need a legal sledgehammer to crack this nut. Get some legal help.

 

Hope this helps.

[Basil Fawlty]

Maybe I can help.

 

I imagine this is the scenario...

 

You have an envelope which they say was posted on Day X, and postage of Amount Y. These facts are crucial to your case. They say one thing and you think another, and only the data in that code can help your case. You need to prove when the letter was sent, from where and by what level of service (ie. first, second). This data is contained within the code on the letter, which moreover is encoded in a proprietary language owned by the Post Office, and for which you have to pay an inordinate amount to have decoded.

 

This is unfair.

 

My suggestion:

 

Get a solicitor to threaten the Post Office with an injunction or other court order if they will not translate the information on the letter for you. Tell them it is now a matter before the court, and one way or another you will foce them to reveal the meaning of their codes.

 

I imagine they may comply. But you will need a legal sledgehammer to crack this nut. Get some legal help.

 

Hope this helps.

 

You say it costs an inordinate amount to get this code translated.....how much exactly? I am in the same position with the same company, regarding a DN posted 2nd class.

 

Thanks

 

BF