Richard Durkin wins Supreme Court appeal – beware lenders!

[Surfer01]

I had a default issued against me in 2010 as I had been made redundant and was unable to make full payment on a loan. I did not default on payments just the amount. However the loan was then paid off 2 years early a few months later. I am guessing that this victory for the consumer will not impact on this sort of default or would it? Obviously this has impacted my credit file and prevented me from getting favourable rates for a CC or a loan.

[Laird_Scooby]

I've just "skim read" most of this thread so apologies if i repeat something already said.

 

Firstly, the finance on the latop was a tri-partite agreement and DSG (Currys, Dixons, PC World) should have simply cancelled the agreement then and there instead of telling the victim it was a separate issue. Secondly, what happened to the "14 Day Cooling-Off" Period??? He is within his rights to cancel without prejudice the finance agreement. As the laptop had been returned the xxxxxxxxxxxxxxxxxxxxx should have sought restitution from DSG, not the victim.

Thirdly, it seems this has been blown completely out of proportion - would it not have made good business sense to offer a Modem either FOC or for a heavily discounted price to keep the victim (and HFC) happy?

 

Lastly, £8k is laughable as far as compensation goes. Because of the reduced credit score that he would have, he probably forked this out in extra interest on "sub-prime credit" loans he may have used in the intervening period. Never mind the fact he had to go bankrupt as a result - that's condemned him to paying sub-prime credit fees for the rest of his life!

[Peterbard]

I've just "skim read" most of this thread so apologies if i repeat something already said.

 

Firstly, the finance on the latop was a tri-partite agreement and DSG (Currys, Dixons, PC World) should have simply cancelled the agreement then and there instead of telling the victim it was a separate issue. Secondly, what happened to the "14 Day Cooling-Off" Period??? He is within his rights to cancel without prejudice the finance agreement. As the laptop had been returned the xxxxxxxxxxxxxxxxxxxxx should have sought restitution from DSG, not the victim.

Thirdly, it seems this has been blown completely out of proportion - would it not have made good business sense to offer a Modem either FOC or for a heavily discounted price to keep the victim (and HFC) happy?

 

Lastly, £8k is laughable as far as compensation goes. Because of the reduced credit score that he would have, he probably forked this out in extra interest on "sub-prime credit" loans he may have used in the intervening period. Never mind the fact he had to go bankrupt as a result - that's condemned him to paying sub-prime credit fees for the rest of his life!

 

The agreement was a debtor creditor supplier(D-C-S) restricted use agreement under section 11b of the Consumer credit act, although "tripartite", i suppose laterally correct, the term is generally used to describe covenants between governments rather than parties to a credit agreement.

 

The 14 day " cooling off period"( i presume you mean right to withdrawal under section 66a of EU amendments to the consumer credit act) did not come into operation until 2011 so would not have been available to Mr Durkin.

 

The 8K was an award for General damages, and there was unfortunately no award allowed for the damages which MR Durkiin says he incurred as a direct consequence of the banks action.

 

It remains to be seen of the general damage award will be of any use to us and would form any kind of precedent regarding general damages claims this side of the border.

[Laird_Scooby]

When i said tripartite it was to illustrate that DSG/PC World could in the circumstances have cancelled the agreement on the victims behalf - no more, no less and certainly nothing at government level.

The 14 day cooling off period relates to the Direct Selling Regulations so retail credit may be different. However, about 25 years ago for a short time i worked on a commission only basis selling a well-known American vacuum cleaner/home-cleaning system. Because these weren't exactly cheap (but worth every penny and yes, i still have a 25 year machine that still out-performs anything else i've ever tried) they were offered on finance. As they were sold in customers homes the Direct Selling Regulations were in force and as such, there was a mandatory 14 day cooling off period. This had to be pointed out to the customer. I was always under the impression this was the same for retail credit, however if you say not then i'll bow to your greater knowledge. That said, i have paid my car insurance by monthly payments for decades and each year i get a letter advising me of my rights to cancel, what i can and can't do etc and in every one of them there is a 14 day cooling off period. All this has led me to believe that there is/was a mandatory cooling off period on all finance agreements.

 

As for the £8k, i didn't realise this was only for "general damages" - like i said i only skim read the thread. I also thought the courts and/or the guys solicitor would have applied for compensation as well as general damages during the same court hearing. Perhaps this isn't how it works then?

[Peterbard]

Yes direct selling regulations do not apply to creidit agreements. credit agreements rely on the cancellation and withdrawal section of the consumer credit act.

 

The 14 day facility to withdraw on an agreement signed on the suppliers premises only came into force in fe 2011 so as said MR Durkin woul not have been able to use them, I suspect that even though the "implied term " point has been raised in the supreme court, the problem would not arise now in any case, due to this.

 

The consequential losses issue was raised in previous cases in Scottish courts and in the first hearing a substantial sum was awarded, however Mr Durkind did not consider that this was enough so he appealed it, unfortunately the award was overturned on appeal as was the right to rescind the contrast.

 

The supreme court found a way to re instate the right to rescind the finance arrangement however was unable to interfere with the findings of the Scots court regarding damages.

[BRIGADIER2JCS]

It is not a case of " getting a name removed" from credit files he judgement is in regard to a non-existent debt,and means that creditors will have to be absolutely sure of the status of any account/debt before placing a default on CRA files.

 

 

There is discussion on the application of the judgement retrospectively.

[Laird_Scooby]

I expect the court thought he was being greedy, not needy when he appealed the amount of compensation for consequential losses. Sometimes it's better to take what's on offer - half a loaf being better than no bread as it were.

 

Things have obviously changed since i knew anything about the Consumer Credit Act 1974 and the Direct Selling Regs - not for the better it would seem though!

[Peterbard]

I expect the court thought he was being greedy, not needy when he appealed the amount of compensation for consequential losses. Sometimes it's better to take what's on offer - half a loaf being better than no bread as it were.

 

Things have obviously changed since i knew anything about the Consumer Credit Act 1974 and the Direct Selling Regs - not for the better it would seem though!

 

As said the EU amendments to the 1974 act plugged this particular loophole so the issue should not arise now anyway.

 

The SC should be applauded in my view, in that they found a way to reach the common sense result regarding the rescission of the credit agreement in this instance, as in all fairness the arguments that they were presented with by Mr D sols were flawed, and if not for the SC looking into other measures available within the act would most definitely have failed.

[Durkin]

Hi Folks,

 

What do y'all think about the fact that the Supreme Court bottled out from reporting and commenting on our submissions that the Edinburgh judges acted unlawfully when deleting and editing facts in favour of the perpetrator?

 

Can you smell anything fishy?

 

House prices are going up again. There are plenty of folk with wrongful defaults and I imagine the justices have friends in the banking industry..

 

For those of you new to the case, I DIDN'T even buy the laptop! It was a fraudulently processed account that has been allowed to persist even at the Supreme Court level. The Crown Office will soon be approached on that matter and that of extortion. (Possibly perverting the course of justice too)

 

It's pretty frustrating to find that after all my efforts ( I've done nothing wrong seemingly). the main point has been completely missed and justice has failed.

 

Thanks for the support.

 

Cheers,

 

Richard.

[unclebulgaria67]

Yes I have always thought that the courts were not really that independent of the powerful. You have a few Judges that are more helpful to ordinary members of the public, but they are a minority. I have had a few members of the family in the freemasons and they have hinted very strongly that senior people holding powerful positions do tend to help each other out. Some people think that stories of secret societies running the UK are conspiracy theories, but this is what they want people to believe. I believe there is some truth in the powerful looking after each others interests, which is not helped by some far fetched stories that are designed to distract peoples attention from the discreet way that power is exercised.

 

I do hope that the truth of your case is reported and you do eventually receive justice. It is just really silly that the sale (or not) of a Laptop has ended up in this situation.

[Laird_Scooby]

There is a school of thought that suggests the legal system is run as a business (UK Justice PLC for example), in which case the rich and powerful will always prevail, except on the odd occasion they let "the little guy" win just to prove it's "real".

[Old Cogger]

google ministry of justice yearly accounts says it all.

[picton]

Hey all, I've been following your case (Richard's) for a while, first of all, thank you so much for persisting and not giving up, I take my hat off to you and I hope you are able to finally get on with your life and put it all behind you knowing you are a champion!

 

I've just started a thread and I'm wondering how Richard's case may affect my own, I'd really appreciate it if you, anyone, someone could have a look at my post and let me know what you think. I could really do with some advice.

 

All the best,

 

My thread :-

 

http://www.consumeractiongroup.co.uk/forum/showthread.php?422120-Me-vs-HSBC-(Outrageous-bank-error-destroyed-my-credit-rating-for-7-years-in-error-offered-%A3100-then-a-%A31000)

Edited April 9, 2014 by Andyorch
Link added for poster

[AndyOrch]

I have added a link to your thread picton.

 

Regards

 

Andy

[picton]

Thanks Andy!

[the worm that turned]

...

 

 

There is discussion on the application of the judgement retrospectively.

 

Who is having this discussion and where can I find it please? Very interested in this aspect too.

 

Thanks - wormy

[the worm that turned]

Hi Folks,

 

What do y'all think about the fact that the Supreme Court bottled out from reporting and commenting on our submissions that the Edinburgh judges acted unlawfully when deleting and editing facts in favour of the perpetrator?

 

Can you smell anything fishy?

 

House prices are going up again. There are plenty of folk with wrongful defaults and I imagine the justices have friends in the banking industry..

 

For those of you new to the case, I DIDN'T even buy the laptop! It was a fraudulently processed account that has been allowed to persist even at the Supreme Court level. The Crown Office will soon be approached on that matter and that of extortion. (Possibly perverting the course of justice too)

 

It's pretty frustrating to find that after all my efforts ( I've done nothing wrong seemingly). the main point has been completely missed and justice has failed.

 

Thanks for the support.

 

Cheers,

 

Richard.

 

Hi Richard

 

Firstly, congratulations on sticking this out and receiving a victory, albeit more to the people than to you personally.

 

I have read a number of conflicting reports/opinions on the applicability of the decision for use as precedent in cases of default entries THAT AREN'T in a similar vein to yours i.e. credit cards, loans etc under the CCA 74. What are your thoughts and those of the law firm you worked with?

 

I feel defaults have been applied unfairly to me on both credit card and overdraft accounts both existing and retrospective.

 

Do you feel this is applicable to overdrafts, which I understand (perhaps incorrectly) are not regulated under the CCA74?

 

Anyone else of course feel free to chip in!

 

Thanks in advance

 

TWTT

[Durkin]

 

I have read a number of conflicting reports/opinions on the applicability of the decision for use as precedent in cases of default entries THAT AREN'T in a similar vein to yours i.e. credit cards, loans etc under the CCA 74. What are your thoughts and those of the law firm you worked with?

 

 

The general consensus is that ANY wrongful default can expect to be removed pronto now. If not, an easy claim for general damages can be made.

 

Good luck.

 

Richard.

[Peterbard]

The general consensus is that ANY wrongful default can expect to be removed pronto now. If not, an easy claim for general damages can be made.

 

Good luck.

 

Richard.

 

I don't think there is any such consensus with due respect. There is still a requirement to prove damages under English law. It is even arguable that no such precedent was set in the Scottish court.

 

Although there may be a case where unqualified damages may be estimated, the losses have to proven to exist, there is no award for the possible damage due to a misplaced notice.

 

It would be a costly mistake for people to think that they could take a creditor to court simply because they placed an incorrect marker, for instance if they had 9 other defaults on there file which had trashed their credit anyway.(see smeaton vs equafax)

[the worm that turned]

I don't think there is any such consensus with due respect. There is still a requirement to prove damages under English law. It is even arguable that no such precedent was set in the Scottish court.

 

Although there may be a case where unqualified damages may be estimated, the losses have to proven to exist, there is no award for the possible damage due to a misplaced notice.

 

It would be a costly mistake for people to think that they could take a creditor to court simply because they placed an incorrect marker, for instance if they had 9 other defaults on there file which had trashed their credit anyway.(see smeaton vs equafax)

 

This is interesting, because I imagine that a cumulative effect may exist for defaults, but I am not sure how banks determine the "risk" of lending i.e. whether upon a single or many defaults.

 

I have an interesting example of where a DCA may be panicking in response to a reference to Richard's case (see earlier posts on this thread from me). I will start up a separate thread so as not to derail and post link in a little while. In short though, the DCA have written off an alleged debt and agreed to remove default and account from CRAs and not to sell or transfer. Victory.

[Durkin]

I was speaking on behalf of my legal team of course.

 

Yes, frustratingly, there may be a few judges that may still try and take on the Supreme Court, particularly Scottish ones.

 

It must be becoming, rapidly, judicial knowledge, that a wrongful default will annihilate your credit rating. By havings ones credit rating annihilated, one has suffered damage, often unknowingly, until it's too late!

 

In the cases where a creditor knowingly persists with registering a wrongful default, that in itself is defamation worthy of general damages, even if there are already other defaults.

 

I look forward to an end to this malarkey. Wrongful defaults are wrongful and the perpetrators well know it. Less than £100 in small claims that will be refunded isn't costly.

 

Cheers,

 

Richard

[Durkin]

DCA have written off an alleged debt and agreed to remove default and account from CRAs and not to sell or transfer. Victory.

 

What took them so long? I'm glad they finally "found their morals"!

[Laird_Scooby]

Purely as a general observation, i think it's high time the current credit reporting system should be given a seriously big shake up.

It should only show defaults in the past 12 months and the need for a satisfaction note and charging for repairing the file once obtained should be removed and replaced by the creditor having to clear the file as "Paid".

 

These are simply basic suggestions as a starting point and people who have never had credit shouldn't be penalised for that either, as they currently are.

[Peterbard]

I was speaking on behalf of my legal team of course.

 

 

 

In the cases where a creditor knowingly persists with registering a wrongful default, that in itself is defamation worthy of general damages, even if there are already other defaults.

 

Richard

 

Sorry Richard there is no legal basis which supports this, even in your own case. It may support an action for defamation, but that is different matter.

[the worm that turned]

What took them so long? I'm glad they finally "found their morals"!

 

It goes deeper. They (the DCA) registered a default without a default notice and only 7 days after the bank marked the account as satisfied. And the bank had never registered a default and certainly hadn't provided a default notice.

 

We really have to be on our guard from these sharks.