CCA's and Dave against the world !!!

[nicklea]

this could be bigger than Wilson itself!!!!!

 

please give a great deal of consideration to the legal arguments and also i urge you to fully research this first before jumping in with both feet

 

Hi

I’ve seen quite a few comments about the Wilson v FCT case but nothing about the other Wilson cases that, to my mind, seem just as relevant to Dave’s case, if not more so.

In the Robertson case:-

Wilson v Robertsons (London) Ltd [2006] EWCA Civ 1088

She was trying it on (sorry – perhaps shouldn’t say that!) in the same way that she was in the previous pawnbrokers case:-

Wilson v Pawnbrokers [2005] EWCA Civ 147

She was trying to say that when she renewed each agreement, because they were unenforceable, that she should get the principal amount back for each renewal of the agreement. The court decided that this wasn’t right (big surprise). However, what is important is that it was held that there was no dispute that she was entitled to keep the principal amount of the loan, have her security returned and to have all the interest paid by her returned. There was no comment on return of payments she made towards the principal amount as she hadn’t made any, she was just paying off the interest.

The issue

15 Mrs Wilson claims that, on its true legal analysis, each renewal was a "novation", involving repayment of the original loan followed by the making of a new agreement for a loan of the same amount, secured by the redeposit of the same item.

 

16 The consequence, according to her argument, can be best seen from an example:

i) Mrs Wilson enters into agreement 1 under which she pawns the watch for £400, and receives a loan of £400.

ii) At the end of the period, she enters into agreement 2 under which the same item is stated to be pawned for the same £400 amount. She pays the interest due on agreement 1. No further money changes hands, but her liability to pay the sum of £400 is treated as a liability under agreement 2.

iii) This process is repeated with agreement 3 replacing agreement 2, and then agreement 4 replacing agreement 3. Again she pays interest due on each agreement, but no money changes hands in respect of principal, her liability being transferred to the new agreement.

17 At the end of this process, because the agreements were unenforceable under the Act, it is not in dispute that she is able to retain the £400 loan, to recover the watch, and to receive back all the interest payments actually made. However, in addition, she claims that she is entitled to payment (in this example) of a further sum of £1200 (£400 x 3), on the footing that, even though no new money changed hands, on a true legal analysis she had paid £400 to discharge each of the agreements. This, she argues, was "an amount received by the creditor… on realisation of the security…" within the meaning of section 106(d) of the Act, and therefore is repayable to her.

The interesting bit here is from p17:-

At the end of this process, because the agreements were unenforceable under the Act, it is not in dispute that she is able to retain the £400 loan, to recover the watch, and to receive back all the interest payments actually made

 

And also here from p3:-

3 Following that decision, the stay on the present proceedings was lifted in November 2003, and the case came for hearing on April 2005 before HH Judge Rose. His judgment in turn was subject to an appeal before Laddie J in June 2005. The combined effect of those decisions was that the agreements were held to be both defective and extortionate. There was no dispute that Mrs Wilson was entitled in principle not only to retain the amount of the loans to her, but also to return of the pawned goods, and to repayment of interest previously paid by her.

I hope that this is of some help.

Regards

Nicklea

[nicklea]

Dave,

 

Sorry if I'm teaching my grandmother to suck eggs. I'd be interested to hear how things go with you. In my case, I'm looking to use this as part of a counterclaim that I'm putting together against Goldfish.

 

Regards

 

nick

[nicklea]

There are quite a few points in that judgement which specifically go against what is presumed (on here) to be correct:-

 

s77/s78 request.

 

The judge said at [12] that it was not necessary for the terms and conditions to be sent in reply to a s77/78 request:-

 

"Mr and Mrs Rankine also sought to contend as a new thought at trial that as only the front page was scanned in, therefore the entire agreement had not been sent. The back only contained the standard conditions which were sent separate anyway so that is a very bad point an perhaps it was not surprising that it had not emerged until then.

 

He said at [16] that a s77/78 request was invalid after the agreement had been terminated so s78(6) could not be used to halt enforcement.

 

He then went on to say that in any case "enforce" is not descriptive of bringing proceedings (so a creditor can commence a court case even if they haven't responded to a s77/78 request). Doing this is merely a step taken with a view to enforcement and so is ok. The only recourse the debtor has is to seek an injunction under s170

 

 

Cancellation Rights

 

I have seen a couple of defences/witness statments from Tomtem8 that refer to notice of cancellation rights not having been given.

 

What the judge has said here (at [18] - [27]) is that in the case of credit cards for example that voluntarily give cancellation rights then they don't have to abide by all the procedures for giving notice of those rights.

 

Default notice

 

He said at [41] and [43] that if there is anything wrong with the default notice then it does not bar the creditor bringing a court action, but a debtor can only seek an injunction under s170.

 

He also said at [45] that if the default notice was overstated by only a small amount then that does not matter (in this case it was overstated by £10 when she had arrears of £347 and a total debt of about £6k. He then went on to refer to Woodchester Lease v Swaine as support of his position.

 

So, he is saying that a default notice does not have to be entirely accurate.

[nicklea]

Kiriri Cotton Co Ltd v Dewani [1960] AC 192

 

This was about two parties being "in pari delicto" ie both equally at fault - or rather they weren't both equally at fault.

 

That was a case involving a landlord and tenant where the duty of observing the law was firmly placed by the relevant legislation on the landlord, on whom alone a penalty was imposed if he disobeyed the law. Accordingly the tenant was held not to be in pari delicto.