Question, regarding cause of action on a statute bar!

[EssCee]

There was previously two schools of thought on when the initial cause of action arose in respect of a Consumer Credit Agreement where service of a Default Notice was required (there are occasions where no default notice is required).

 

I have always been of the school of thought that it was the date of expiry of the time for compliance with the Default Notice (though there were substantial arguments for the alternative view).

 

It has now been confimred by the Courts that the creditor's initial cause of action starts to run from the date of expiry of the time for compliance with the [valid] Default Notice (see PRA V Doyle).

 

As such the initial cause of action in the above scenario will commence 20/10/2011 and, per S29 - 31 Limitation Act 1980, will be refreshed on the event of each subsequent payment or written acknowledgment of the debt.

 

In other words, if you made payment up to 20/11/2012, cause of action is treated as accruing on that date and it would appear that the debt is not estopped by statutory limitation.

 

I know that is probably not what you wanted to hear

 

[EssCee]

Depends entirely on the nature of the contract, the nature of the breach and of the claim. A contract may require Notice of Breach, or a Demand in order to bring terms in to effect and missing a payment may not be a sufficient breach (not of the essence) as to give rise to a claim for termination/repudiation or indeed anything other than payment of the missing instalment and nominal damages.

 

In terms of Consumer Credit debt, Doyle binds the Court in all matters, otherwise than where a debt is payable on demand. We must be talking about debt other than payable on demand here, given the OP's reference to a Default Notice, in which event S87 acts as a statutory bar to cause of action arising for anything other than arrears.

 

Cause of Action in a claim for accelerated recovery of the balance of the debt owed can only arise upon expiry of the Default Notice (S89 providing that if the Notice is complied with it is treated as though default never occurred).

 

Being a Court of Appeal decision, its binding on both the County and the High Court. It was not the decision of "one Judge" it was the decision of the Master of the Rolls and two Lord Justices, Flaux and Jackson. The OP asked which scenario would win in Court, if we are talking consumer credit, unless he fancies taking it to the Supreme Court, challenging the decision of very eminent Judges in the Court of Appeal the finding Doyle will be the precedent followed.

 

 

[EssCee]

Its a determined point of law. Of someone argues purely limitation on facts where the default notice expired within 6 years of the claim being issued they will lose it's that simple. 

 

If they take other points (for example the agreement is unenforceable for want of a prescribed term) and win on that it doesn't detract from the limitation argument being wrong in law.

[EssCee]

https://www.bailii.org/ew/cases/EWCA/Civ/2019/12.html

 

Here you go fodder.

[EssCee]

That's what forums are for, learning and sharing knowledge

[EssCee]

It has determined the date from Which cause of action arises for the purpose of the limitation act. In that respect it is cast in stone barring an appeal to the supreme court

 

Arguments can be made where there is some egregious delay in issuing a default notice that it gives rise to an unfair relationship under s140 cca but that's a different argument, though one touched on in Doyle and which a district judge would likely find persuasive when considering any prejudice asserted.

 

As an aside registering a default with a CRA is an entirely different matter to a creditor issuing a s87 default notice.

[EssCee]

Bmw v Hart re unregulated hp has little application in the Times. We cha agree to disagree.