Discussion threaad on Question regarding statute barred debt & EU/other 'laws' that come into play

[dx100uk]

i'll move them hang on.

 

dx

[Newborn]

Thanks dx. I just think this subject should be looked at in more detail because at some stage someone my think a debt is statute barred when it is not.

[dx100uk]

well list the sites you have this info from

 

and rather than arguing 'their' points

 

then people can read it fo rrhem slves

 

the last sites you posted were all mason/FOTL sites

which are not applicable

 

dx

[Newborn]

These took me a long time to dig out and I was not aware that any of the following sites that I posted were mason/FOTL sites:

 

Cripps Harries Hall: http://crippslink.com/index.php?option=com_cont ent&view=article&catid=26 %3Acdr-publications&id=805%3Arom e-1-the-law-applicable-to-contracts&Itemid=537

 

Europoean Commission: http://ec.europa.eu/civiljustice/applicable_law/applicable_law_sco_en.htm

 

European Commission: http://ec.europa.eu/civiljustice/app...law_eng_en.htm

 

Pinsent Masons: http://www.out-law.com/page-479

 

HM Revenue and Customs: http://www.hmrc.gov.uk/manuals/ihtmanual/ihtm28384.htm

[rameses_qc]

These took me a long time to dig out and I was not aware that any of the following sites that I posted were mason/FOTL sites:

 

Cripps Harries Hall: crippslink.com/index.php?option=com_cont ent&view=article&catid=26 %3Acdr-publications&id=805%3Arom e-1-the-law-applicable-to-contracts&Itemid=537

 

Europoean Commission: http://ec.europa.eu/civiljustice/applicable_law/applicable_law_sco_en.htm

 

European Commission: http://ec.europa.eu/civiljustice/app...law_eng_en.htm

 

Pinsent Masons: www.out-law.com/page-479

 

HM Revenue and Customs: www.hmrc.gov.uk/manuals/ihtmanual/ihtm28384.htm

 

I would, if I were you, study the European Law as a whole, in particular horizontal and vertical direct effect, and the jurisdiction of the ECJ in general.

The fact remains that for contracts in England the Limitation Act 1980 S5 states that enforcement action cannot be taken after 6 years from the point that the default is made. If the Contract is entered into in England, it CAN be enforced under English Law in Scotland (I'll leave it to your research to find the applicable law (common or statute) )

 

And...I don't see what non contractual tort has to do with it. Generally, this is only applicable to things that happen which are not covered by the contract

Has Rome II Regulation come into effect in England? Has the UK accepted this? European law is VERY complex

Edited June 23, 2013 by rameses_qc

[Peterbard]

I thin k there may be an argument if the cause for action occurred in the original country, however I suppose it would be for the court to decide, the English act does not apply in the OPs case in any event.

 

Cause of action of course occurs when the demand for payment is made, this would be after termination of the contract.

[Newborn]

Hi rameses, that was sort of what I was trying to do. But what concerned me was that it seems that business to business debt is treated differently to business to consumer debt where jurisdiction and applicable law are concerned. Also there are differing laws depending on the date of the contract as well as what was actually written on the contract agreement as well as where each party was domiciled when the contract was formed. This would mean that the debtor would have to be extremely careful when just saying this is statute barred.

As to my reference to 'non contractual tort', all I was pointing out was that when looking at breach of contract what is important is what took place when the contract was formed. Where the cause of action took place seems to have no bearing on jurisdiction or applicable law for a contract only for a wrong such as injury.

[Newborn]

Hi Dodgeball, I do agree that as long as the Op in the original thread was a 'consumer' as opposed to a business customer they would probably be covered by the 1973 Scottish Act. But with the complexities as pointed out by rameses we need to be a little careful.

 

For my part I lived in Scotland then moved to England where I defaulted on a couple of consumer credit cards. I have not paid/acknowledged for 5 and a half years. But just looking for a simple answer to 'am I covered by Scots or English law' threw up more questions than answers - especially as the laughable T&Cs that the DCA and OC sent to me said that the alleged and unreadable agreement I signed when domiciled in Scotland was governed by 'English law'.

 

As a law graduate I found it hard to wade through and understand all the conflicting laws, so i was worried that others might end up being shafted because they put the wrong argument forward.

[Peterbard]

The OP I believe moved from norther Ireland, so the English SOL would not apply, have a look at the Limitation northern Ireland 1989 order it is more explicit in the cause of action requirement sections 4 and 5.

 

(3) Where a demand in writing for repayment of the debt under a contract of loan to which this Article applies is made by or on behalf of the creditor (or, where there are joint creditors, by or on behalf of any one of them) Article 4(a) thereupon applies as if the cause of action to recover the debt had accrued on the date on which the demand was made

[Peterbard]

Or how about this, in these days of e-commerce and distance marketing. A customer in Glasgow rings a credit company in London and gets a loan, five years or six applies to that contract for SOL?

 

Edited June 23, 2013 by Dodgeball

[Newborn]

It seems to me that there are several factors in the example you put:

 

Where is the loan taker domiciled?

Where is the lender domiciled?

What applicable law is stated on the contract?

Is the loan taker a consumer or a business borrower?

 

I may be wrong but as I see it a consumer would probably be protected by the Scots 1973 Act, but a business borrower could legitimately be taken to court in England (no consumer protection) and the English SOL would apply.

[Ganymede]

Example: You take out a loan in London, move to Glasgow and default. The Law applicable to the loan contract is English Law unless it states otherwise. If you move to Paris and default, English Law still prevails, not French Law.

 

 

 

If the contract said English law and the debtor moved to France etc you would sue in the English courts and apply to serve on the debtor out of jurisdiction.

 

 

 

Also, what is an "academic lawyer"? Do you mean law lecturer?

[Newborn]

Hi Ganymede, the only point I would make with your reply is that, an EU consumer MUST be sued in the country in which they are domiciled at the time. So in this case the consumer would have to be sued in the French courts, but using which law? And would the French or English SOL be the one to use? But the route you suggest could I think be used against a business debtor.

[Ganymede]

Why must they?

 

I don't see a problem with issuing in England and serving in France. The case would continue in England under English law unless the Defendant can successfully contest jurisdiction.

[Newborn]

I took this comment:

 

Further, in almost all business to consumer sales the consumer can choose which country to take an action against the business, but the consumer can only be sued in his own country of residence.

 

From here: http://www.out-law.com/page-479

 

And this one:

 

However, the seller can only sue the consumer in the consumer's country of domicile.

 

From here: http://www.kentlaw.edu/cyberlaw/docs/rfc/euview.html

[Ganymede]

They both deal with cross boarder contracts which isn't really relevant when the loan was taken out in England and states English law will apply.

[rameses_qc]

 

Also, what is an "academic lawyer"? Do you mean law lecturer?

 

Yes

 

Business to business and business to consumer contracts ARE different. In general terms, businesses are expected to be able to negotiate contract terms more easily than a consumer.

 

In Practice, creditors would usually try for a CCJ in the original country but not enforce it overseas because of the cost (unless it was a huge sum) This is not true for ALL circumstances, but I'm generalising....

and, if I may say, I think the hypothesis is not really relevant, as all contracts I've seen specify which law will prevail. A contract under Scottish Law will become barred in 5 years, wherever the other party moves to. Similarly, a contract under English law will become barred after 6 years, wherever the other party moves to, so it's irrelevant really

[Newborn]

But Ganymede, where the debtor who signed a contract in England but defaulted and now lives in Scotland gets taken to court after five years of no acknowledgement/payment, it is against Scottish public policy if they are a consumer to say that the debt still exists. So they are protected?

 

Rameses, as I understand it business to business contracts are viewed more strictly by the courts because the parties are 'equals' whereas the consumer is always viewed as the underdog so given more protection. In fact even where a consumer contract specifies that it is under 'English law' that may not always apply. See here: http://www.govanlc.com/jurisdiction.htm

 

This applicable law versus jurisdiction has further implications - if a contract is governed by scots law but heard in an English court does the Scots more stringent proof of the CCA docs apply?

[Peterbard]

I think all this discussion of intentional law is a giant red herring to the point in question to be honest, although interesting.

The only law that is relevant as far as the contract is concerned is the CCA and this is the same in England and Scotland.

 

As far as applicable limitation it would depend on where the person lived during the period and where the case was brought. There would be some argument which would have be settled by the court if the subject moved location, but as for the parameters of limitations, they would be form the termination of the contract up until the commencement of proceedings.

[Newborn]

I tend to disagree Dodgeball.

 

A CCA in Scotland is subject to Scottish mandatory law (those that cannot be signed away) like the prescriptions act 1973 - so it may not matter where they move afterwards. Whereas in England it would be subject to the limitations act 1980 in the same way.

 

Please do not confuse 'jurisdiction' (the right to hear a case) with applicable law (what law applies to a case). They are not the same thing.

 

And the law covering conflicts and differences in jurisdiction and applicable law between Germany and France is the same as those between England and Scotland etc.

 

As I see it there is no simple rule (something we would like to see) rather it is on a case by case basis depending on the date of the contract, the domicility of the parties as well as the question of business to business or business to consumer.

[Sassenach]

DWP overpayment with regard to jurisdiction. If a debt to the DWP was incurred when living in England and the 6 year limitation period came into effect while still living in England, what would be the effect of moving to Scotland subsequent to this? Would the debt become "un-statute-barred" due to the 20 year rule in Scotland?

[Old Cogger]

DWP did it get said the government departments debts do not get statute barred? but maybe just not pursuid after the date??

[sequenci]

Would the debt become "un-statute-barred" due to the 20 year rule in Scotland?

 

That's as I understand it, sadly.

[Sassenach]

Does that also mean, then, that an ordinary unsecured credit debt taken out in Scotland which became statute-barred after 5 years under the Prescription and Limitation Act 1973, and seemingly extinguished, would suddenly become enforceable if the "debtor" moved to England between the 5 year Scottish limit and the English 6 year limit?

[sequenci]

Does that also mean, then, that an ordinary unsecured credit debt taken out in Scotland which became statute-barred after 5 years under the Prescription and Limitation Act 1973, and seemingly extinguished, would suddenly become enforceable if the "debtor" moved to England between the 5 year Scottish limit and the English 6 year limit?

 

That's a good question. And I would imagine it would be the subject to fierce debate. My view is that if someone is living in Scotland, once 5 years is up - the debt is extinguished. This means that no action at all (legal or otherwise) could be used to recover the debt. But this would be in the eyes of Scottish law. If someone was to move after year 5 to England, the English courts would allow action to be brought. I might do some digging to see if there are other views - I'm sure there absolutely will be.