Under Lugano convention can I issue section 75 proceedings in Swiss Court against UK creditor?

[banjo67xxx]

Hi,

 

I took out a home improvement loan with Barclays Partner Finance for £1000 in the UK,

and the home improvement company caused £12000 of damage to my property and neighbour's properties.

 

 

I filed a section 75 claim as well as a complaint to Zenith Home Improvements.

 

 

Zenith did promise to rectify the problems, but have failed to deliver on those promises. Barclays seem to think that they are exempt from section 75, and have sent a DCA after me.

 

In the middle of the dispute I emmigrated to Switzerland. I see that the Lugano convention states that Barclays are obliged to use the Swiss courts if they wish to enforce their alleged debt. However, I would like to know if I sue them and Zenith jointly for the damages, do I have to file in a Swiss court or UK court?

 

TIA

Banjo

[unclebulgaria67]

Same rule applies I think. Court claim where the defendant is based and in this case it would be the UK.

 

You need to get proper legal advice about the best way to go about making the claims. It may just be easier ( if you have the evidence you need) to issue a court claim against Zenith and keep Barclays informed of what is happening. Barclays may only be liable up to the £1000 they lent you and I am not sure of the section 75 case they are making.

[banjo67xxx]

Thanks. I've now found a copy of the treaty

http://ec.europa.eu/world/agreements/downloadFile.do?fullText=yes&treatyTransId=13041

 

Its not clear whether or not article 16 applies "a consumer may bring proceedings ... in which that party is domiciled or where the consumer is domiciled" or article 5 "the place of performance of the obligation"

 

Article 15 makes it clear that if the contract was for provision of goods under finance, that article 16 would apply, but its not clear regarding the provisions of services under finance.

[fkofilee]

Remember the couple who paid £200 on a credit card for a £23000 product?

They got a fill Section 75 refund through their CC company. Maybe thatll help you.

[banjo67xxx]

Thanks - I'm certain that Barclays are jointly liable for all £12000.

 

The question is, do I have to fly all the way to London for a court hearing, or can issue proceedings locally here in Switzerland? The second question is, do I have to issue proceedings in German, as I live in German speaking kanton? Thirdly, as I cant speak German fluently yet, can I drive an hour down the road and issue proceedings in French in the next town?

 

Its all down to how you interpret article 15 of the Lugano Convention. The contract was for a loan repayable in installments for the sale of goods AND the contract for installation of the goods. Its the service for the installation of goods which gives rise to the breach of contract. Will it suffice for the purposes of the convention that the contract includes the sale of goods?

 

(BTW, Barclay's argument is that the loan is for the sale of the goods only, however it states very clearly in the loan agreement that it is also a contract for installation, so their attempts to evade section 75 of the CCA are futile).

[unclebulgaria67]

Thanks - I'm certain that Barclays are jointly liable for all £12000.

 

The question is, do I have to fly all the way to London for a court hearing, or can issue proceedings locally here in Switzerland? The second question is, do I have to issue proceedings in German, as I live in German speaking kanton? Thirdly, as I cant speak German fluently yet, can I drive an hour down the road and issue proceedings in French in the next town?

 

Its all down to how you interpret article 15 of the Lugano Convention. The contract was for a loan repayable in installments for the sale of goods AND the contract for installation of the goods. Its the service for the installation of goods which gives rise to the breach of contract. Will it suffice for the purposes of the convention that the contract includes the sale of goods?

 

(BTW, Barclay's argument is that the loan is for the sale of the goods only, however it states very clearly in the loan agreement that it is also a contract for installation, so their attempts to evade section 75 of the CCA are futile).

 

Before you start issuing court claims, you would have to send letters before action, giving them the opportunity to resolve. You simply state why you are seeking compensation from them and evidence the sum of money involved, giving them say 21 days to settle.

 

Before you start issuing court claims in Switzerland, you should make sure you don't have to pay their costs. I should imagine that if you had to pay the costs for the defendants legal team to travel to the court, as well as Hotels etc, it could be really expensive. You don't want to end up in a situation, where you win, but have to pay a huge amount in costs.

[banjo67xxx]

Before you start issuing court claims in Switzerland, you should make sure you don't have to pay their costs. I should imagine that if you had to pay the costs for the defendants legal team to travel to the court, as well as Hotels etc, it could be really expensive. You don't want to end up in a situation, where you win, but have to pay a huge amount in costs.

 

Good point. Thanks for the warning, I'll look that up. (BTW, I knew about the LBA)

[SeanG79]

Barclays Partner Finance - are you sure this was a Hire Purchase agreement and not a Fixed Sum Loan agreement (personal loan), if the latter, then I am not sure you can use Section 75 if you took a personal loan

[banjo67xxx]

Barclays Partner Finance - are you sure this was a Hire Purchase agreement and not a Fixed Sum Loan agreement (personal loan), if the latter, then I am not sure you can use Section 75 if you took a personal loan

 

The documentation from Barclays Partner Finance and from Zenith Home Improvements specificaly mention each other, so I would have thought that this constitutes a restricted agreement under section 11b, and thus regulated under section 12b, and thus applicable to section 75.

 

But to be certain, please can you explain how I would tell the difference between an "HP" agreement and a personal loan from Barclays Partner Finance?

 

TIA Banjo

[SeanG79]

The top of the first page of the agreement will normally state what the agreement is. A personal loan is usually referred to as a "Fixed Sum Loan" in this type of arrangement

[banjo67xxx]

I've found the agreement and its starts on page 1 talking about Zenith as a credit intermediary, then on the top of page 2 it says "fixed sum loan agreement regulated by the Consumer Credit Act 1974".

 

So, is this a personal loan because it says "fixed sum loan", or does section 75 apply because it specifically states that the loan is regulated by the CCA?

[unclebulgaria67]

Have you read this

 

http://www.financial-ombudsman.org.uk/publications/technical_notes/goods-and-services-bought-with-credit.html#1a

 

Seems to suggest that S.75 does apply, but it makes it clear that it is a complicated matter and they are not offering any legal advice.

[unclebulgaria67]

Also this

 

http://www.tradingstandards.gov.uk/cgi-bin/glos/con1item.cgi?file=*adv0011-1011.txt