Grace & anr -v- Black Horse ltd - major headache for CRAs???????

[paulwlton]

The Court of Appeal to hand down judgment this morning.

Could give the CRAs and creditors major problems if successful.

[citizenB]

When will it be available, Paul ?

[CatchtheMonkey]

GRACE v BLACK HORSE LIMITED [2014] EWCA Civ 1413 30/10/2014

 

Sort of upsets McGuffick a lot

[citizenB]

http://www.bailii.org/ew/cases/EWCA/Civ/2014/1413.html

[citizenB]

Can we see the industry changing its registration systems !

 

38.As for the second submission, I have not been persuaded that the shortcomings in the CRAs' registration systems can excuse a registration which is in substance inaccurate because of an omission (namely that the 'default' related to an unenforceable agreement). If an accurate registration cannot be accommodated, then the answer is for the industry to change its registration systems, and in the meantime for inaccurate registrations not to be made.

 

 

[citizenB]

This could be a major problem for Halifax who have openly admitted in letters to customers that "whilst the debt might be unenforceable" they will continue to pursue by foul means or fair.. short of issuing a claim.

[paulwlton]

This could be a major problem for Halifax who have openly admitted in letters to customers that "whilst the debt might be unenforceable" they will continue to pursue by foul means or fair.. short of issuing a claim.

 

Sure could.

 

Me thinks a claim for breach of the fourth principle could be pursued and compensation in line with Durkin may be awarded if loss is proved.

[Peterbard]

It is an interesting judgment.

 

In itself it does not challenge McGuffic, as the case is about irredeemably enforceable agreements(127) as opposed to section 78 etc.

 

The judge decided that a default should not be recorded on an irredeemably unenforceable agreement unless there was some notice along side the default which indicated the status.

 

He did however hint that the same logic may be applicable to the temporary unenforceability applied to copy requirement breaches(section 77 etc.) But left that decision to "another day"

 

A couple of other helpful tit-bits contained, one of which was the judges comment that unenforceability should not be regarded as a technical breach.

 

There will I suppose be a spate of claims for damages, personally I cannot see them being effective.

 

The cause would be that the CRA should have placed a marker on the default stating that the defaulted account was unenforceable, if this is the case then the losses suffered by the debtor would be slight as most potential creditors would regard the D with the notice in the same light as one without, this is only my opinion of course.

 

It may be that the court would decide that there should have been any record at all(if inaccurate) if the agreement was unenforcdable in which a claim may be viable.

 

A note of caution however in that the judge did say that a reason for the decision was that Mr grace's default was not registered until after the agreement was found to be unenforceable, I am not sure if the same logic would apply if someone stopped paying and then after the event the agreement was proven to be so.

[CatchtheMonkey]

Dodgeball,

I must disagree with your interpretation that the Judges found "Mr Grace didnot default before the agrement was declared unenforceable"

The default occurred some 12 months before the agreement was deemed ......"iredeemably unenforceable" and I am sorry it nullifies McGuffick......its in the bin............

[BRIGADIER2JCS]

Dodgeball,

I must disagree with your interpretation that the Judges found "Mr Grace didnot default before the agrement was declared unenforceable"

The default occurred some 12 months before the agreement was deemed ......"iredeemably unenforceable" and I am sorry it nullifies McGuffick......its in the bin............

 

 

I most certainly agree with catchthemonkey this judgement changes much.

 

 

No doubt we will see a raft of pointless discussion on this now!

[Peterbard]

32. In one sense Mr Brennan is clearly right. Flaux J was clearly not laying down a single

rule for all cases of unenforceability, and he clearly did not regard his decision as

applicable to irremediable unenforceability, at least without further analysis, which

Judge Halbert did not provide. But I consider that his assumption to that effect was

nonetheless correct. My reasons follow.

 

I would re- read the jusgement

 

 

33. The conclusion that even irremediable unenforceability leaves the underlying

agreement, and its rights and obligations, in place seems to me to flow inexorably

from the authorities about other forms of statutory unenforceability and, in particular,

from the Orakpo case which, as I have noted, was about irremediable

unenforceability. I agree with Flaux J that this conclusion is not displaced by the

obiter dicta in the Wilson case. Further, the CCA makes an apparently careful

distinction between unenforceability and voidness as the sanction for different kinds

of non- compliance by creditors: see ss. 59(1) and 173(1) which provide for voidness,

and ss. 65(1), 77(4)(a) and 90(1) which provide for various forms of unenforceability.

S.91(b) provides in terms for a release of the debtor from liability under the

agreement in the stated circumstances.

[Peterbard]

Dodgeball,

I must disagree with your interpretation that the Judges found "Mr Grace didnot default before the agrement was declared unenforceable"

The default occurred some 12 months before the agreement was deemed ......"iredeemably unenforceable" and I am sorry it nullifies McGuffick......its in the bin............

 

39. Thirdly, there is nothing in Miss Urell’s point that Mr Grace defaulted before his

agreement had been declared unenforceable (and that on the court’s own motion).

The default registration was not made until after the judgment declaring

unenforceability,

 

As said it would be helpful if the judgement was read before comment are made.

[Peterbard]

I most certainly agree with catchthemonkey this judgement changes much.

 

 

No doubt we will see a raft of pointless discussion on this now!

 

Discussion is never pointless Brigadier, it is how we learn.

[Peterbard]

This was a helpful cmment

 

Nor is there merit in the submission that Mr Grace had escaped enforcement on

technical grounds. The requirements of the CCA for which unenforceability is the

sanction are part of a structure laid down by Parliament for the protection of

consumers and the regulation of the consumer credit market. Although they may be

technical in their application, and the consequences for non-compliance sometimes

draconian, they are not mere technicalities

[CatchtheMonkey]

Just to put matters absolutely in perspective Dodgeball.........I know much more about this case than ANYone................I know exactly when the arrears occurred, how they occurred and the default made........... .consider why I have said that..........what is stated in the judgement as alleged facts........ does not mean they are correct.......Sorry to say

[citizenB]

This was a helpful cmment

 

Nor is there merit in the submission that Mr Grace had escaped enforcement on

technical grounds. The requirements of the CCA for which unenforceability is the

sanction are part of a structure laid down by Parliament for the protection of

consumers and the regulation of the consumer credit market. Although they may be

technical in their application, and the consequences for non-compliance sometimes

draconian, they are not mere technicalities

 

This is very important and I am pleased the Judge emphasised this.

[Peterbard]

Just to put matters absolutely in perspective Dodgeball.........I know much more about this case than ANYone................I know exactly when the arrears occurred, how they occurred and the default made........... .consider why I have said that..........what is stated in the judgement as alleged facts........ does not mean they are correct.......Sorry to say

 

I am sure you do. However unless the judgement is challenged the facts stated within it will stand, and it is this that will be used to provide authority on future cases, NOT YOUR KNOWLEDGE SADLY.

[Peterbard]

This is very important and I am pleased the Judge emphasised this.

Indeed, lost count of how many times I ahve heard creditors council sneer at theses defenses with the remark that it is just a technical def fence, it is good to hear the judge echo the view which mny of us have had for some years.

 

I am not saying that this is not a useful judgement, it is, however sometimes the importance of these cases are exaggerated for various reasons, and it helps to keep things in perspective.

[CatchtheMonkey]

This makes the Fourth Principle real powerful now IMO.

[caro]

Discussion is never pointless Brigadier, it is how we learn.

 

Agreed. I for one will be very interested to understand the ramifications of this case. I'm sure many others will too. All too often we see cases being hailed as likely to make hugely significant, when in reality there have been issues specific to the case which render it of little use to others. I hope that this isn't one. Bring on the (polite) discussion.

[Peterbard]

Agreed. I for one will be very interested to understand the ramifications of this case. I'm sure many others will too. All too often we see cases being hailed as likely to make hugely significant, when in reality there have been issues specific to the case which render it of little use to others. I hope that this isn't one. Bring on the (polite) discussion.

 

Indeed sadly it seems that the main thrust of this case was lost, it was a section 90 issue (unlawful repossession of protected goods).

The firm of solicitors seem to be quite happy with the result nevertheless, as the associated issue has brought possible claims for default damages into the arena, in the form af a precedent setting authority.

[Peterbard]

Basically the judge sid that if the status of the defaulted account cannot be recorded correctly then it should not be recorded at all, so in the cse of an agreement which has been proven to be irredeemably unenforceable there should be some mechanism for indicating the fact that whilst the account is in default the debtor has no obligation to pay in law.

 

The reason that this does not interfere with Mcguffic is because in that case the issue was not regarding irredeemable unenforceablity it was in respect of the temporary unenforceability sanction imposed by the copy regulations.

He does however speculate that the same principle may be applied, but that would be for another court to decide.

[CatchtheMonkey]

Basically the judge sid that if the status of the defaulted account cannot be recorded correctly then it should not be recorded at all, so in the cse of an agreement which has been proven to be irredeemably unenforceable there should be some mechanism for indicating the fact that whilst the account is in default the debtor has no obligation to pay in law.

 

The reason that this does not interfere with Mcguffic is because in that case the issue was not regarding irredeemable unenforceablity it was in respect of the temporary unenforceability sanction imposed by the copy regulations.

He does however speculate that the same principle may be applied, but that would be for another court to decide.

 

It appears that you are much more knowledgeable than the solicitors ...and Barrister the appellants legal team plus a very eminent QC who has taken extreme interest in the case who all agree that McGuffick is no longer worth much........ as that was a High Court ruling this is case law ......... McGuffick isn't/wasn't.

 

The saga of this case has not ended yet...this is just the beginning.

I will take their view over yours every time

[citizenB]

Can we please stick to discussing the judgment and cut out the sarcasm, mud slinging and worse.

 

I imagine there will be differences of opinion even within the legal industry and I am pretty certain they aren't being so unpleasant.

 

If you are unable to have a sensible and civil discussion - then please stay away. I am truly tired of the juvenile mutterings that deter others from getting involved in what could be a very important judgment.

[CatchtheMonkey]

Can we please stick to discussing the judgment and cut out the sarcasm, mud slinging and worse.

 

I imagine there will be differences of opinion even within the legal industry and I am pretty certain they aren't being so unpleasant.

 

If you are unable to have a sensible and civil discussion - then please stay away. I am truly tired of the juvenile mutterings that deter others from getting involved in what could be a very important judgment.

 

I see you are having another good go at me "OLD SPARKIE" so I will stay away as I did when I was attacking SwiftAdvances plc.

 

I leave you with is link.

http://consumercreditlitigationandde...-for-the-case/

CatchTheMonkey........ aka Sparkie