Cap1 & CCA return

[Peterbard]

If you are not feeling brave, then stick to "turns on its own facts", which is a useful let out for everyone because even if the learned judge was correct what he said does not bind a DJ in a different case.

 

Except in relation to the s142 and post termination points, there is Court of Appeal or House of Lords precedent you can rely on instead.

 

Hi

Yes i am really intersted and appretiate the imput "turns on its own facts" i will remember that thank you.

I understand there are rules of and order of precedent,thes are contained in a volume i think of the same name used by the legal proffession, which lists the status of judjements of a higher courts and how thy apply to judgements in courts further down the food chain Does this statement curcumvent this then?

 

I would also be intersted in more information on the post termination points you mention would it be possible to tell me where i can read up

 

Just a minute

It must be getting late

If this phrae turns on its own facts was used it would have to be shown

that the case, being represented as a precident was not a valid comparison with the one being tried, and that would not be the same thing as questioning the judgement of an earlier case.

 

Regards

Peter

Edited April 1, 2009 by Dodgeball

[Viscount Stair]

Happy to elaborate on the doctrine of precedent but that's a big subject, so it'll have to wait until tomorrow - it's late.

 

However Peter, you've already got the gist of "turns on its own facts".

 

Also happy to elaborate on the post-termination point but, again, that'll have to wait until tomorrow.

 

Time for bed, said Zebedee.

[Peterbard]

I really must be getting too old for this as I'm not clear about what's being implied.

 

Are you stating that, as a result of the Rankine case(s) a precedent has been set whereby, post-termination of an agreement, it's not possible to issue a section 77/78 demand to the original creditor?

 

The argument regarding section 142 I understand but if section 77/78 no longer applies then there is no protection for the debtor against enforcement measures being taken? In which case a lender can terminate the agreement and then take the debtor straight to court, ignoring section 78(6)?

HI

Pete

It never has been possible to issue a 77etc request on an agrement which has no monies outstanding on it.

 

What the judgement makes clear is that it is not possibole to rubber stamp the unenforceabilty of an agreement when itis defaulted by the debitor through the courts, by section 142, because uit is already unenforceable the same IMO goes for section 127.

[Peterbard]

Happy to elaborate on the doctrine of precedent but that's a big subject, so it'll have to wait until tomorrow - it's late.

 

However Peter, you've already got the gist of "turns on its own facts".

 

Also happy to elaborate on the post-termination point but, again, that'll have to wait until tomorrow.

 

Time for bed, said Zebedee.

 

boingggggg

[Peterbard]

I really must be getting too old for this as I'm not clear about what's being implied.

 

Are you stating that, as a result of the Rankine case(s) a precedent has been set whereby, post-termination of an agreement, it's not possible to issue a section 77/78 demand to the original creditor?

 

The argument regarding section 142 I understand but if section 77/78 no longer applies then there is no protection for the debtor against enforcement measures being taken? In which case a lender can terminate the agreement and then take the debtor straight to court, ignoring section 78(6)?

 

SOrry itis getting late you were reffering to the rest of the rankin case.

I was aware of this hwever i wuld be interssted in the appeal.

 

Petr

[paulwlton]

Deleted

Edited April 4, 2009 by paulwlton
Copyright

[B3rty]

Paul

 

Saw the post before edit thanks that was very useful..

 

Could we not say...

 

s 189 (4) Consumer Credit Act 1974 provides that: A document embodies a provision if the provision is set out either in the document itself or in a document referred to in it.

 

It may be a good idea to note Goode's take on s 189 (4) just in case a creditor brings the matter up in court and catches one off guard.

 

 

GOODE CONSUMER CREDIT LAW AND PRACTICE issue 18

 

Sir Roy Goode explains below why the creditor’s argument in relation to s 189 (4) has no merit.

 

However this is copyright so can't be posted up but worth researching in case you need to use it..

Edited April 4, 2009 by B3rty

[paulwlton]

Paul

 

Saw the post before edit thanks that was very useful..

 

Could we not say...

 

s 189 (4) Consumer Credit Act 1974 provides that: A document embodies a provision if the provision is set out either in the document itself or in a document referred to in it.

 

It may be a good idea to note Goode's take on s 189 (4) just in case a creditor brings the matter up in court and catches one off guard.

 

 

GOODE CONSUMER CREDIT LAW AND PRACTICE issue 18

 

Sir Roy Goode explains below why the creditor’s argument in relation to s 189 (4) has no merit.

 

However this is copyright so can't be posted up but worth researching in case you need to use it..

 

If s189 (4) is brought to the DJs attention at an hearing it could do some damage if one hasn't a case to argue the contrary especialy if the DJ isn't clued up on consumer law. I have an hearing Wednesday so have covered all basis.

 

Paul

[summerbreeze]

Hi All

 

I would be much obliged I could get some more advice on my thread.

 

I am being taken to court for the first time in my [ not short ] life and am feeling very worried

 

thanks in advance

 

http://www.consumeractiongroup.co.uk/forum/legal-issues/192837-help-please-court-papers.html

 

Meant to say sorry if this not the appropriate place and Mods please move if theres a better place to ask

Thanks

[millymollymoo]

Regarding section 189(4) would this apply to Bank of Scotland Credit Card taken out in 2002 as a little confused???? does it mean living in scotland or agreemnts regulated in scotland????

 

From the CCact 1974:

 

This subsection does not apply to Scotland.

(4) A document embodies a provision if the provision is set out either in the

document itself or in another document referred to in it.

 

 

This is from there website:

 

Credit card T &c's:

17.6 This agreement is governed by Scottish law.

 

and from their site legal notice:

 

General

While Bank of Scotland has taken all reasonable care to ensure that the information contained within the pages of this site is accurate, current, and complies with relevant UK legislation and regulations as at the date of issue, errors or omissions may occur due to circumstances outside our control. We reserve the right to change the content, presentation, performance, facilities and availability of all or part of the pages of this site at our sole discretion and without prior notice. We make no warranty or representation that the pages of this site can be accessed at all times during the UK hours of business stated on this site. This site may be temporarily unavailable or restricted for administrative or other reasons. We will not be liable for any loss or damage arising out of or in connection with the loss of the use of this site.

We accept no responsibility for information contained in any other sites which can be accessed by hypertext link from these pages or for these other sites not being available at all times. The links to any other sites are provided for general information purposes only and the sites concerned and their contents are not endorsed or promoted by us in any way, unless otherwise stated. Please note that when you click on any external site hypertext link, you will leave our site and access the external site at your own risk.

The Bank of Scotland will not be responsible for any loss or damage (including consequential or indirect loss) that you have incurred as a result of your use of or reliance on any information displayed on this site.

Finance is provided for business only and subject to satisfactory credit assessment by Bank of Scotland or a company within the same group as Bank of Scotland.

By accessing these pages, you shall be deemed to have accepted, and agreed to be bound by, the terms of these terms and conditions, which will be governed by and construed in accordance with the law of Scotland, unless otherwise stated

 

 

Milly XX

Edited April 4, 2009 by millymollymoo
added text

[Peterbard]

If s189 (4) is brought to the DJs attention at an hearing it could do some damage if one hasn't a case to argue the contrary especialy if the DJ isn't clued up on consumer law. I have an hearing Wednesday so have covered all basis.

 

Paul

 

The definition of embodies as it is used in section 61(b) refers to terms and conditions that are external to the agreement.

 

They should be reduced to writing and brought to the attention of the creditor in addition to the prescribed terms which are conained within the agreement as per secton 61(a)

The two terms have very differnt meanings within the act but the term, contained is the one that matters. The other is just to make sure that precontractral promises that were made in anticedant negotioations are noted at the time of execution.

That is why there is two subsections

 

Peter

Edited April 5, 2009 by Dodgeball

[InGodITrust]

Hi every one. I would like some help on a court claim issue. Could someone advise me on whether or not my agreement is enforcable?

 

Thank you in advance

 

Here's the agreement (3 pages)

 

http://img19.imageshack.us/img19/7063/xagreementpg1.jpg

 

http://img6.imageshack.us/img6/6095/dagreementpg2.jpg

 

http://img5.imageshack.us/img5/2573/dagreementpg3.jpg

 

 

Here's the link to my thread

 

http://www.consumeractiongroup.co.uk/forum/legal-issues/189249-notice-return-goods-court.html

Edited April 5, 2009 by InGodITrust

[ncf355]

Folks,

 

I have a case for harassment gainst a creditor in court this week, I know I've seen a case on here before know where the judge stated the amount awarded must not be so minimal as to detract from the seriousness of harassment as an offence - anyone remember the name of this case?

 

Cheers

[Viscount Stair]

Don't know that one but, if you're not already, you might want to be aware of Ferguson v British Gas, the very helpful recent Court of Appeal case.

[patrickq1]

Ferguson v British Gas Trading Ltd [2009] EWCA Civ 46 (10 February 2009)

[ncf355]

Thanks VS

 

 

Have also been told by a deputy district judge that I cannot sue for damages to credit reputation in the county court (only high court) as it amounts to defamation

 

Anyone got counter arguments to this, case law examples per chance?

[Viscount Stair]

Kpohraror v Woolwich Building Society [1996] 4 All ER 119, 127J-128A (Court of Appeal judgment but doesn't seem to be on Bailii)

 

There is a more recent case Durkin v DSG. It is a Sheriff Court decison from Scotland (so it is only persuasive and not binding) but it does review the case law (which includes English authorities) and the level of damages.

 

The full judgment can be found here: RICHARD DURKIN v. DGS RETAIL LIMITED+HFC BANK PLC, 26 March 2008, Sheriff J K Tierney

 

Paragraphs 114-122 are most relevant to the claim for a general loss of credit in the absence of actual loss.

[ncf355]

My thanks again!

[pt2537]

watch out for Conn vs Sunderland City Council

 

that case was used recently against a PFA Injunction and the judge followed that case over Ferguson

[Viscount Stair]

That's useful to know. I wasn't aware of Conn, so thanks.

 

Conn doesn't seem to contradict the corporate liability point, so Ferguson is still very useful in that respect alone.

 

As for the test to be applied, I suppose that the prudent course is to aim to show both gravity and criminality (a pattern of breaches of the Debt Collection Guidelines, CPUTR and the Communications Act must be useful in that regard) while arguing that it is not necessary to show criminality and that the civil standard continues to apply.

[pt2537]

Conn v City of Sunderland [2007] EWCA Civ 1492 (07 November 2007)

 

theres the judgment for Conn if anyone wants to see it

[Alphageek]

Conn v City of Sunderland [2007] EWCA Civ 1492 (07 November 2007)

 

theres the judgment for Conn if anyone wants to see it

 

An interesting read, thanks PT.

[pinny24x7]

Hi is there is a thread to show Unenforceable agreement successes and or a thread to show example agreements which are unenforceable. I think such threads would help others to decide to a certain extent if their agreement was enforceable or not.

 

Maybe a thread for example entitled

 

'Example Cap1 unenforceable agreements' , 'Example Egg unenforceable agreements' etc etc.

 

What do you reckon peeps/mods?

[Viscount Stair]

Not directly on thread but a useful place to alert people to the latest set of changes (the 49th in the 10 years since they were introduced) to the CPRs.

 

Highlights include the lifting of the boundary between fast track and multi track to £25,000 and the introduction of a new Practice Direction on Pre-Action Conduct.

[car2403]

Hi is there is a thread to show Unenforceable agreement successes and or a thread to show example agreements which are unenforceable. I think such threads would help others to decide to a certain extent if their agreement was enforceable or not.

 

Maybe a thread for example entitled

 

'Example Cap1 unenforceable agreements' , 'Example Egg unenforceable agreements' etc etc.

 

What do you reckon peeps/mods?

 

There are plenty of these threads in the success forums, pinny24x7