Cap1 & CCA return

[ian1969uk]

Is Dr Goode the writer of the CCA 1974

 

Yes

[Having_A_Knightmare]

So whos the other guy who commented that if they credtors are stupid enough to leave out the terms its basically tuff luck. Cant remeber his name

[ian1969uk]

So whos the other guy who commented that if they credtors are stupid enough to leave out the terms its basically tuff luck. Cant remeber his name

 

Hang on, I think I am wrong above

 

Francis Bennion wrote the CCA 1974, Prof goode wrote the book Peter has.

 

It was Francis Bennion that said this.

[Having_A_Knightmare]

Are you sure??? Has this guy got a website?

[ian1969uk]

See my post above, it was Francis Bennion who was the draughtsman of the CCA.

[Having_A_Knightmare]

Thats the guy Ian....

 

God it confusing all this I tell you

[foolishgirl]

Well, this is the first I have heard of this Goode fellow & jolly good he seems too! Pity his pronouncements are so expensive. Does anyone know where I could study a copy apart from law school? I can't imagine my local library will have a copy & if I request one I can see my council tax going up immediately!!

[un1boy]

Just a quck question.

 

As well as claiming costs if you win a SD set aside hearing, can you also claim for stress and suffering?

 

HAK

 

What's an SD hearing?

[un1boy]

HI Uni

 

Notice subseccrion (a) says containing this means the terms must be contained within the document the section.

(b) refers to other pieces of information. Which means other documents mentioned in the above.

 

Prof Goode makes this point in his book where he talkes about the difference between the terms contained and embodied, its on page 322. I have reproduced the bit of the act unfer here.

Unfortunately i cannot include the quote from Dr, goodes book athough i can send you a scan of the page if you email me.

 

Big difference between the words contained and embodies.

 

 

(a) a document in the prescribed form itself containing all the prescribed

terms and conforming to regulations under section 60(1) is signed in the

prescribed manner both by the debtor or hirer and by or on behalf of the

creditor or owner, and

(b) the document embodies all the terms of the agreement, other than

implied terms, and

©

the document is, when presented or sent to the debtor or hirer for

Butterworths Direct - Print Page 38 of 160

 

http://wellington.butterworths.co.uk/wbs/NETbos.dll?POView?sk=AAFIMJMA&bk=... 22/12/2001

 

If you could scan and email it, that would be great - do you want me to PM you my email, or do you still have it?

 

Peter - what's the best way for me to proceed with this, I assume this should be entered into the appeal reason - but, could they not say that this should have been mentioned in the original hearing?

 

my main issue is that I didn't get their skeleton arguments until the night before the trial (they submitted them to the court in the morning of the trial!!!) and the definitions part wasn't even mentioend in them.

[un1boy]

Correct Chris, although if deemed unreasonable you could be spanked for costs, in reality i cannot see that happening and the other sides costs would be minimal

 

Jesus - I hope I don't get costs, and can't see why I didn't.

 

they tried to get the judge to award 6k costs agsint me, saying that I'd acted unreasonable - but thankfully, she didn't agree.

[un1boy]

HI

This really dies need challengining.

 

You only need to look at the act.

Section 61a is quite clear as is SI1983/1553 that the agreement must contain the terms.

The provision mentioned in subsection(b) is to provide an overall coverage for the inclusion of other information relavant to the document not those stipulated by section 60.

 

Dr Goode even conjectures that section (b) could be interpreted to mean that all documentaion involved in the purchasing of the loan should be included, this would mean any advertising and pre contractual information even that not set in writing, for instance any verbal promises made by the creditor under section 56 (in the anticedent neotiations ) would have to be included as since they were spoken they could not be regarded as implied terms and would fall under section 61(b).

If they were not, then in theory section 65 would apply and the agreement could be made unenforceable. In practice the court would not be likely to allow this but it illustrates the funcion of section 61(b) and also the meaning of the term "embody" which is a world away from, "contained", as in 61(a) wich relates to the terms that must be within the agreement.

Besty regards

Peter

 

I agree it needs challenging - I need to get clued up on the whole appeal process to be honest.

 

The main thing Peter is that they didn't give me their arguments until the night before. also, the fact they were going to mention the definitions weren't in them - he brought them up seperately so there was no way for me to prepare. The judge was aware of all of this too.

[un1boy]

& if I request one I can see my council tax going up immediately!!

 

LMAO

[un1boy]

My library has it - but for reference only!

Edited August 24, 2008 by un1boy

[foolishgirl]

Thanks un1 - will try the library..

[Jeff2000]

What's an SD hearing?

 

 

 

 

I could be wrong, but I think it refers to a statutory demand set aside hearing!

 

 

Jeff.

[Having_A_Knightmare]

What's an SD hearing?

 

StatDemand

[Having_A_Knightmare]

My library has it - but for reference only!

 

I will try and nip to the Library this week and also see if they have a copy.

 

If so I will photocopy the info and post

[foolishgirl]

If so I will photocopy the info and post

 

Sounds a good idea but do you know how BIG this volume is? And are you sure that there wouldn't be copyright issues on that knightmare?

[Having_A_Knightmare]

:DI was just going to copy the relivant page

[foolishgirl]

:DI was just going to copy the relivant page

 

Cop out knightmare!!

 

(Do check the copyright though)

[paulwlton]

Jesus - I hope I don't get costs, and can't see why I didn't.

 

they tried to get the judge to award 6k costs agsint me, saying that I'd acted unreasonable - but thankfully, she didn't agree.

 

There are no costs awarded in the small claims court, (unless the behaviour is unreasonable) however a schedule of costs will be prepared by the opposition just in case it goes to appeal. If you take the case to appeal and lose you will be liable for the other sides costs.

 

 

 

Paul

Edited August 25, 2008 by paulwlton

[Peterbard]

Hi

I am sorry I can’t get my scanner to work.

The section is on page 322 under the heading signature of documents.

The relevant quote from Goode is.

“By Para(b) the document must embody all express terms of the agreement word "embody”(in contrast to “Contain” in Para (a) )means that a document need not set out all the terms in itself but may refer to another document, however that document must be expressly referred to; an implication however clear, would not suffice.”

The point is.

Section 61a contains the instructions to the creditor that all the “prescribed terms” must be “contained” within the agreement.

Whereas the section used as the defence in Uniboys case refers to section 61(b) which refers to the “terms” “embodying” the agreement which refer to all other information not contained in the regulations (default procedure, contact information, matters relating to company policy, etc. These can be located in another document as long as it is expressly referred to in the text of the agreement.

The judge appears to have been misled in this.

 

 

Regards

Peter

[tinkerbell20]

Hi

I am sorry I can’t get my scanner to work.

 

The section is on page 322 under the heading signature of documents.

The relevant quote from Goode is.

 

“By Para(b) the document must embody all express terms of the agreement word "embody”(in contrast to “Contain” in Para (a) )means that a document need not set out all the terms in itself but may refer to another document, however that document must be expressly referred to; an implication however clear, would not suffice.”

 

 

The point is.

 

Section 61a contains the instructions to the creditor that all the “prescribed terms” must be “contained” within the agreement.

 

Whereas the section used as the defence in Uniboys case refers to section 61(b) which refers to the “terms” “embodying” the agreement which refer to all other information not contained in the regulations (default procedure, contact information, matters relating to company policy, etc. These can be located in another document as long as it is expressly referred to in the text of the agreement.

 

 

The judge appears to have been misled in this.

 

 

Regards

Peter

 

 

This is grounds for appeal on a mistake in law

[Peterbard]

This is grounds for appeal on a mistake in law

 

HI

 

Sorry yes i believe that this is the only acceptable cause for appeal in these cases.

 

Peter

[un1boy]

I could be wrong, but I think it refers to a statutory demand set aside hearing!

 

 

Jeff.

 

Sorry if I'm being thick - but what is a statutory demand hearing for?