CCA's and Dave against the world !!!

[macie]

Hi Dave,

 

I think there may be some purposeful misinterpretation of the Rankine judgment. ( text version here - News and Events : Articles : Judgment: Basil Rankine vs American Express Services Europe Limited ).

 

At para 28 it states in relation to "Issue 5 True Copies

 

A credit card issuer is required to provide three copies of agreement to a borrower. The first copy (which is set out as an application form) is signed by the borrower and sent to the lender. The borrower is given, with this application copy, a copy to keep (in accordance with the requirements of section 62 of the Act. This is the requirement to provide a copy of the unexecuted agreement (unexecuted because at that stage it has not been accepted or signed by the lender). When the agreement is executed a credit card is sent out, and usually this is attached to the “card carrier” copy of the agreement. This copy has to be sent to the borrower by virtue of section 63(4) of the Act and this is the executed copy. The requirement for such documents to be “true copies” is set out in regulation 3(1) of the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983. Regulation 3(2) provides that the lender can omit from this document any signature and/or signature box, so although the card carrier is the executed copy, it does not have to (and invariably will not) bear the parties signatures."

 

 

I think the application copy, the unexecuted copy and the executed copy must all contain the "prescribed terms" and the same text, but, that the layout of the three types of copy can be different

 

Nothing in the Rankine judgment says that the text can be substantially different between the three types of copies. This is the only way that Judge Brown's judgment can be reconciled with Wilson and another v Hurstanger Ltd [2007] EWCA Civ 299.

 

The word "copies" suggests that the three copy documents have to be, at least textually, the same.

 

So if the prescribed terms are not in the "application copy" they cannot be, by definition, be in the subsequent "unexecuted copy" or "executed copy" if the three are indeed to be considered "copies".

 

If the text contained in the "executed", "card carrier", which is unsigned, doesn't textually match the "application copy" then the one is not a copy of the other.

 

This is not the way the banks have interpreted these paragraphs and I think the banks are purposefully misleading their opponents in this regard.

 

What do you think?

[tinkerbell20]

surely a creditor doesn't have to produce a "true copy " to the court for the agreement to be enforced. According to what I've read of Wilson etc they have to produced a signed copy of an agreement including the prescribed terms. Something still has to be produyced that has prescribed terms in it and borrowers signature attached at time of signing I would think but maybe someone more knowledgable will correctg me/ clarify the point:confused:

[foolishgirl]

That's one of the best, most concise explanations of copies & their relation to 'executed' & 'true' that I've seen on this forum macie.

It is a confusing concept to grasp particularly when you are new to contract & consumer law issues & should prove useful to many CAG members.

Thank you.

[citizenB]

 

 

 

I am now getting weary of these word games and am anxious to get into court ( or to get a settlement )

 

Ill keep you updated

 

Dave

 

Brilliant letter as always Dave. For one moment I though you had included the sentence left above in your letter.

[tinkerbell20]

I did too - but I know what he means and thats what they gamble on - their juggernaut of a machine wearing people down......................

[Guest malissa7999]

Hi Dave,

 

i have been reading your thread and i too have sent a cca to my credit card hsbc,.. Dave you sound very knowledgable in this subject and was wondering if you could offer me some advice..this is a link to my thread http://www.consumeractiongroup.co.uk/forum/hsbc-bank/153426-hsbc-have-cancelled-my.html

 

I know that you are snowed under with your own battles with the banks, but i would really appreciate any peice of advice you can offer.

 

thanks

malissa

[macie]

At para 28 of the Rankine judgment the judge states "When the agreement is executed a credit card is sent out, and usually this is attached to the “card carrier” copy of the agreement. This copy has to be sent to the borrower by virtue of section 63(4) of the Act and this is the executed copy. The requirement for such documents to be “true copies” is set out in regulation 3(1) of the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983. Regulation 3(2) provides that the lender can omit from this document any signature and/or signature box, so although the card carrier is the executed copy, it does not have to (and invariably will not) bear the parties signatures."

 

Well it appears that this paragraph of the judgment is just plain wrong!

 

It seems that Judge Brown may have been a bit confused. "The Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983" doesn't have a section 3(1) or 3(2). The judge may have meant "the Consumer Credit (Cancellation Notices and Copies of Documents) Regulations 1983" which does have a regulation 3(1) and 3(2).

 

I would guess, precision is everything if para 28 is to be used as any kind of precedent in other cases.

 

This also goes to show how complex the legislation is, even for a professional.

 

If your lender sites the Rankine judgment in relation to "true copies" I am fairly sure that it is easy to show the judgment is wrong simply based upon the legislation.

[macie]

Moving on in the Rankine judgment

 

Issue 9 Declaration of Un enforceability.......In the Tesco case, the Court has the residual discretionary power under Section 127 of the CCA to order enforcement notwithstanding any technical breaches of the Act or Regulations. For the reasons above, the Court does not consider it necessary to invoke these powers but for the avoidance of any doubt it would have no hesitation in doing so if required in this case. The benefits have all been to the advantage of the Rankines, their personal lives and even their business interests and there is no prejudice to them apart from those entirely brought upon themselves by their deliberate actions.

 

This may not mean what some people think it means. A "technical breach" is a minor breach on a technicality not a fundamental breach like missing prescribed terms.

 

TECHNICAL BREACH = An immaterial breach of contract is a trivial breach of contract and does not invalidate the contract. For example, assume a service contract for pest control provides that the service is to be performed on the first Thursday of each month. Contrary to the contract, the service person arrives on a Wednesday. This act is a technical breach of the contract but it is immaterial, unless for some reason the service needed to be done on Thursday as opposed to any other day.

 

The use of "technical breach" is used in this House of Lords judgment

Alfred McAlpine Construction Limited v. Panatown Limited [2000] UKHL 43; [2000] 4 All ER 97; [2000] 3 WLR 946 (27th July, 2000)

[zara35]

hi dave.....just read through your thread and it makes interesting reading...i was wondering if you could offer me some advice. I am thinking of requesting a copy of my agreement on an unsecured loan which i have with Northern Rock taken out Oct 05 . However i also have a mortgage and an unsecured loan with them and wondered what the consequences might be on those if i challenged the loan, assuming that the agreement does not comply.

 

any help appreciated

zara

[davefirewalker]

Hi macie....What you have posted re the Rankine judgement is really interesting and helpfull and has opened another avenue of thought for me. It would reach a wider audience here...> http://www.consumeractiongroup.co.uk/forum/legal-issues/147432-high-court-judgement-rankines.html

 

and if you dont mind I may cut and paste and move some bits over (with credit to you of course)

 

Dave

[Hopeful1]

Hi macie....What you have posted re the Rankine judgement is really interesting and helpfull and has opened another avenue of thought for me. It would reach a wider audience here...> http://www.consumeractiongroup.co.uk/forum/legal-issues/147432-high-court-judgement-rankines.html

 

I'm impressed too, that's a good bit of info Macie

[macie]

Dave,

 

Help yourself, cut and paste away. Macie

[macie]

Dave,

 

It seems that my interpretation is consistent with the Rankine judgment and the Wilson cases. It is also consistent with the OFT view. OFT publication 786a on the OFT website says in relation to 'true copies';

 

"1.24 Does the copy have to be identical?

 

Reg 3(1) of the Consumer Credit (Cancellation Notices and Copies of

Documents) Regulations requires that, subject to certain limited

exceptions, any copy of an unexecuted agreement must be a ‘true copy’.

This means that it must be identical to the agreement as presented or

sent to the debtor for signature.

 

Reg 3(2) permits the exclusion from the copy agreement of:

• any information relating to the debtor, or included for the creditor’s

use, which is not required by the Agreements Regulations;

• the name and address of the debtor; and

• any signature box.

 

Reg 4 makes special provision in relation to headings and statements of

protection and remedies in cases to which s58(1) applies. "

 

So it has to be identical other than on immaterial points.

[paulwlton]

Dave,

 

It seems that my interpretation is consistent with the Rankine judgment and the Wilson cases. It is also consistent with the OFT view. OFT publication 786a on the OFT website says in relation to 'true copies';

 

"1.24 Does the copy have to be identical?

 

Reg 3(1) of the Consumer Credit (Cancellation Notices and Copies of

Documents) Regulations requires that, subject to certain limited

exceptions, any copy of an unexecuted agreement must be a ‘true copy’.

This means that it must be identical to the agreement as presented or

sent to the debtor for signature.

 

Reg 3(2) permits the exclusion from the copy agreement of:

• any information relating to the debtor, or included for the creditor’s

use, which is not required by the Agreements Regulations;

• the name and address of the debtor; and

• any signature box.

 

Reg 4 makes special provision in relation to headings and statements of

protection and remedies in cases to which s58(1) applies. "

 

So it has to be identical other than on immaterial points.

 

The debtor's name and address must be included in a "true copy" if requested pursuant to sec 77-79.

[davefirewalker]

Dave,

 

It seems that my interpretation is consistent with the Rankine judgment and the Wilson cases. It is also consistent with the OFT view. OFT publication 786a on the OFT website says in relation to 'true copies';

 

"1.24 Does the copy have to be identical?

 

Reg 3(1) of the Consumer Credit (Cancellation Notices and Copies of

Documents) Regulations requires that, subject to certain limited

exceptions, any copy of an unexecuted agreement must be a ‘true copy’.

This means that it must be identical to the agreement as presented or

sent to the debtor for signature.

 

Reg 3(2) permits the exclusion from the copy agreement of:

• any information relating to the debtor, or included for the creditor’s

use, which is not required by the Agreements Regulations;

• the name and address of the debtor; and

• any signature box.

 

Reg 4 makes special provision in relation to headings and statements of

protection and remedies in cases to which s58(1) applies. "

 

So it has to be identical other than on immaterial points.

 

 

Yes..........weve had this particular discussion before, the important bit is halfway through line 3 of reg 3(2) "which is not required by the Agreements Regulations"

 

ie they may leave out anything not required by the 1983 agreements regs...which leaves them little room to manoeuvre as the 1983 regs require a LOT of stuff to be included.

 

Dave

[JonCris]

None of this applies to enforcement by either party when litigating. It's only a requirement for complying with the regs. When litigating a SIGNED true copy SHOULD be required by the court

[davefirewalker]

None of this applies to enforcement by either party when litigating. It's only a requirement for complying with the regs. When litigating a SIGNED true copy SHOULD be required by the court

 

as per cpr 16(7.3).........if only that was true. it may be legally correct to assume this but there have been MANY cases where it doesnt seem to matter if they have a "true" copy or not

 

Dave

[mcuth]

as per cpr 16(7.3).........if only that was true. it may be legally correct to assume this but there have been MANY cases where it doesnt seem to matter if they have a "true" copy or not

 

Not to split hairs Dave, but I think you missed out the PD from "cpr 16(7.3)" as it's actually in the practice direction - just so folks don't go looking for the non-existent 7.3 in CPR 16

 

In my LTSB case, I quoted the wrong PD at them in my Defence (quoted CPR PD 32 13.1 which actually only deals with affidavits - d'oh!), and they replied that their evidence will be copy docments and admissable as per s8(1) and 9(1) of the Civil Evidence Act 1995..... Now after they've said that, I know that they don't have the original agreement but can only supply copies.

 

This would be of benefit as they've previously supplied incorrect Ts&Cs (albeit correcting that later) and without the original there's no way of knowing whether the Ts&Cs they rely on are the proper ones - however, the Civil Evidence Act seems to do that one over

 

Cheers

Michael

[tifo]

Not to split hairs Dave, but I think you missed out the PD from "cpr 16(7.3)" as it's actually in the practice direction - just so folks don't go looking for the non-existent 7.3 in CPR 16

 

CPR 16 7.3

 

7.3 Where a claim is based upon a written agreement:

(1) a copy of the contract or documents constituting the agreement should be attached to or served with the particulars of claim and the original(s) should be available at the hearing, and

(2) any general conditions of sale incorporated in the contract should also be attached (but where the contract is or the documents constituting the agreement are bulky this practice direction is complied with by attaching or serving only the relevant parts of the contract or documents).

[banker_rhymes_with]

Hello Mcuth!

 

however, the Civil Evidence Act seems to do that one over

 

I'm not sure that it does, my understanding is the CEA-1995 is mainly concerned with the issue of Hearsay Evidence, and the methods to present that to Court in order to increase its weighting by comparison to the real thing.

 

The real thing = Evidence.

 

Copies = Hearsay evidence, with a low weight as evidence. Because copies cannot be trusted.

 

CEA-1995 Copies = Hearsay evidence but with a greater weight as evidence, but only provided the required CEA-1995 pre-Court Notifications are carried out. Even then, its weighting as evidence would depend on additional details. Thus, it would be advisable to support this with an Audited Document Management System, ideally one that is Certified in some way and one that is independently Audited. These copies can be trusted more, but still carry less weight than the real thing (Evidence).

 

I don't think this was ever intended to cover Statutory Documents such as Live Credit Agreements, which are already well covered by CPR PD 16 7.3.

 

In other words, CEA-1995 should not be used to get around CPR PD 16 7.3 when a banker has shredded an Original and still Live Statutory Document.

 

CEA-1995 is mainly geared to general Business Documentation, Correspondence and Bumf. Where only copies now exist, if these copies are not to be given a very low weighting, then CEA-1995 must be followed.

 

Indeed, if CEA-1995 isn't followed for the presentation of bumf Copies, then these Copies perhaps ought not to be allowed in Court?

 

Cheers,

BRW

Edited August 7, 2008 by banker_rhymes_with
Clarification that I meant CPR Practice Direction 16 7.3

[mcuth]

CPR 16 7.3

7.3 Where a claim is based upon a written agreement:

(1) a copy of the contract or documents constituting the agreement should be attached to or served with the particulars of claim and the original(s) should be available at the hearing, and

(2) any general conditions of sale incorporated in the contract should also be attached (but where the contract is or the documents constituting the agreement are bulky this practice direction is complied with by attaching or serving only the relevant parts of the contract or documents).

 

Indeed, that's CPR PD 16 7.3:

PRACTICE DIRECTION – STATEMENTS OF CASE - This practice direction supplements CPR Part 16

 

CPR16 is here:

PART 16 - STATEMENTS OF CASE

 

I'm not sure that it does, my understanding is the CEA-1995 is mainly concerned with the issue of Hearsay Evidence, and the methods to present that to Court in order to increase its weighting by comparison to the real thing.

 

The real thing = Evidence.

 

Copies = Hearsay evidence, with a low weight as evidence. Because copies cannot be trusted.

 

CEA-1995 Copies = Hearsay evidence but with a greater weight as evidence, but only provided the required CEA-1995 pre-Court Notifications are carried out. Even then, its weighting as evidence would depend on additional details. Thus, it would be advisable to support this with an Audited Document Management System, ideally one that is Certified in some way and one that is independently Audited. These copies can be trusted more, but still carry less weight than the real thing (Evidence).

 

I don't think this was ever intended to cover Statutory Documents such as Live Credit Agreements, which are already well covered by CPR 16 7.3.

 

In other words, CEA-1995 should not be used to get around CPR 16 7.3 when a banker has shredded an Original and still Live Statutory Document.

 

CEA-1995 is mainly geared to general Business Documentation, Correspondence and Bumf. Where only copies now exist, if these copies are not to be given a very low weighting, then CEA-1995 must be followed.

 

Indeed, if CEA-1995 isn't followed for the presentation of bumf Copies, then these Copies perhaps ought not to be allowed in Court?

 

 

Interesting, thanks for that BRW - I'll be sure to have a look further into that one

 

Cheers

Michael

[speedtrip]

this is all very interesting as i am facing these issues right now and have just become aware of hearsay, CPR 16 7.3 etc.

 

My creditor admitted they did not have the agreement as they do not hold documents that old due to DPA.

 

They turned up with an alleged copy agreement about a year later and the court have allocated to Fastrack, currently without a pre trial hearing.

 

We are about to go to lists but i think there may be something I can use about the "original" being available at the hearing/trial.

 

I think I am entitled to see the original or they should as least tell be that their defence relys on hearsay so i can prepare my defence adequately.

 

I really dont want to turn up for the trial and find they do have a fully compliant agreement when it is fastrack.

 

whats your advice as lot at stake here

 

Thanks.

[pt2537]

this is all very interesting as i am facing these issues right now and have just become aware of hearsay, CPR 16 7.3 etc.

 

My creditor admitted they did not have the agreement as they do not hold documents that old due to Data Protection Act.

 

They turned up with an alleged copy agreement about a year later and the court have allocated to Fastrack, currently without a pre trial hearing.

 

We are about to go to lists but i think there may be something I can use about the "original" being available at the hearing/trial.

 

I think I am entitled to see the original or they should as least tell be that their defence relys on hearsay so i can prepare my defence adequately.

 

I really dont want to turn up for the trial and find they do have a fully compliant agreement when it is fastrack.

 

whats your advice as lot at stake here

 

Thanks.

 

have they supplied you a disclosure by list ?

 

have they disclosed in that list a signed credit agreement?

 

it would be helpful to know whats happened as it sounds that they have pee'd in the wind and got rather wet trousers

[speedtrip]

Basically, I have been requesting copy of credit card agreement for approx 12 months. They admitted a few months ago they did not have this although they did refer to it as "application form". They said due to Data Protection Act they do not have copies of these due to age of account, rubbish of course.

 

They then threatened court and raised MCOL so i submitted CAG normal defence based on no CCA, not enforceable, and as they were not complying with court directions to supply with CCA etc I moved to strike out but court let them back in and allocated to fastrack with no hearing.

 

Following this I recd a snotty letter from SC&M and a poor copy of the alleged agreement and I am trying to decide if it is valid or not.

 

We have to list evidence next week but now i seen a few threads about an original has to be produced as evidence or is the copy i have been sent good enough to satisfy a judge.

 

I would like a hearing where I should be able to see the original CCA as only then can i adequately prepare my defence, otherwise they have an unfair advantage

 

The agreement/application form did not turn up in my S.A.R - (Subject Access Request) although this does reveal notes on the file stating they do NOT hold the CCA.

 

You see my dilemma

 

Please read my thread below

http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/112285-allied-international-credit-12.html#post1651005

 

 

Would welcome your views

Edited August 7, 2008 by speedtrip

[macie]

Basically, I have been requesting copy of credit card agreement for approx 12 months. They admitted a few months ago they did not have this although they did refer to it as "application form". They said due to Data Protection Act they do not have copies of these due to age of account, rubbish of course.

 

They then threatened court and raised MCOL so i submitted CAG normal defence based on no CCA, not enforceable, and as they were not complying with court directions to supply with CCA etc I moved to strike out but court let them back in and allocated to fastrack with no hearing.

 

Following this I recd a snotty letter from SC&M and a poor copy of the alleged agreement and I am trying to decide if it is valid or not.

 

We have to list evidence next week but now i seen a few threads about an original has to be produced as evidence or is the copy i have been sent good enough to satisfy a judge.

 

I would like a hearing where I should be able to see the original CCA as only then can i adequately prepare my defence, otherwise they have an unfair advantage

 

The agreement/application form did not turn up in my S.A.R - (Subject Access Request) although this does reveal notes on the file stating they do NOT hold the CCA.

 

You see my dilemma

 

Please read my thread below

http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/112285-allied-international-credit-12.html#post1651005

 

 

Would welcome your views

Hi Speedtrip,

 

I maybe in a similar situation. In my the judge has ordered Standard Disclosure followed by inspection of originals.

 

The opposition have stated that they only have a photocopy of the documents as the originals destroyed. The documents concerned are a signed application form with no prescribed terms and a current set of terms and conditions (unsigned).

 

I was thinking about serving Notice to prove documents at trial under CPR 32.19

 

"Notice to admit or produce documents

32.19 (1) A party shall be deemed to admit the authenticity of a document disclosed to him under Part 31 (disclosure and inspection of documents) unless he serves notice that he wishes the document to be proved at trial.

(2) A notice to prove a document must be served –

(a) by the latest date for serving witness statements; or

(b) within 7 days of disclosure of the document, whichever is later."

 

I would appreciate any input on this. As I read it unless I serve notice to prove I accede to the authenticity of the photocopy.

 

Given that the judge has stated a time by which inspection of originals should take place by I wonder of there is an alternative to 32.19?