AlphaGeeK Vs Amex ***WON***

[steven4064]

No you still refer to yourself as the defendant and Amex as the claimant (I suppose you could call yourself the counterclaimant and Amex the counterdefendant but that would be silly )

[Alphageek]

Hey, they started with the silliness, not me

 

Thanks again Steve.

[Alphageek]

Let's see if this makes sense.

 

DEFENCE

 

1.I, Alphageek of ADDRESS, am the defendant in this case and make the following statement as my defence to the claim made by AMERICAN EXPRESS SERVICES EUROPE LTD.

 

2.Except where otherwise mentioned in this defence, I neither admit nor deny any allegation made in the claimants’ Particulars of Claim and put the claimant to strict proof thereof.

3.The Defendant is embarrassed in pleading to the Particulars of Claim as it stands at present, inter alia: -

4.The claimants' particulars of claims disclose no legal cause of action and they are embarrassing to the defendant as the claimant's statement of case is insufficiently particularised and does not comply, or even attempt to comply, with CPR part 16 and practice direction 16. In this regard I wish to draw the courts attention to the following matters;

5.The claimant has issued proceedings in the Maidstone County Court therefore according to practice direction 16 Para 7.3

a.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.

6.The claimant has failed to include a copy of the written contract which he relies upon and it stands to reason that they are in breach of their obligations under the Practice Direction.

7.Furthermore the claimant offers no particulars in relation to how the sums claimed are calculated and no statements are attached with the claim in support of the figures.

8.A copy of any evidence of both the scope and nature of any default, and proof of any amount outstanding on the alleged accounts, has not been served attached to the claim form.

9.Consequently, I deny all allegations on the particulars of claim and do not know what case I have to meet.

10.Further to the case, in an attempt to ascertain on what grounds the claimant is bringing this action and to allow me to prepare my defence I requested on 25/04/2008 the disclosure of information pursuant to the Civil Procedure Rules, which is vital to this case from the claimant. The information requested amounted to copies of the Credit Agreement referred to in the particulars of claim and any default or termination notices, a transcript of all transactions, including charges, fees, interest and alleged repayments by myself. Also any other documents the Claimant seeks to rely on, including any default notices or termination notice. (Attached marked xxx01)

 

11.To Date the claimant has failed to comply with my request under the CPR and I have not received any such documentation requested. As a result it has proven difficult to compose this defence without disclosure of the information requested. All I have received in relation to my request is a letter dated 1st May 2008 in which I am directed to the Particulars of claim on the Claim form.

 

THE CREDIT AGREEMENT

 

12.On 15/05/2007 I requested that the claimant provide a true copy of the executed credit agreement, which they claim exists between parties pursuant to section 78(1) Consumer Credit Act 1974. The Consumer Credit (Prescribed Periods for Giving Information) Regulations 1983 (SI 1983/1569) sets out that the claimant must comply with such request in 12 working days of receipt of such request. Copies of the letter and proof of delivery attached marked Exhibit xxx X & X

 

13.For clarity, section 78(1) of the Consumer Credit Act 1974 states

78. Duty to give information to debtor under running-account credit agreement.-

(1) The creditor under a regulated agreement for running-account credit, within the prescribed period after receiving a request in writing to that effect from the debtor and payment of a fee of [F1 £1], shall give the debtor a copy of the executed agreement (if any) and of any other document referred to in it, together with a statement signed by or on behalf of the creditor showing, according to the information to which it is practicable for him to refer,-

(a)the state of the account, and

(b)the amount, if any currently payable under the agreement by the debtor to the creditor, and

©the amounts and due dates of any payments which, if the debtor does not draw further on the account, will later become payable under the agreement by the debtor to the creditor.

14.In response to this request, the claimant's response was to send a single page document, which is annexed to this defence, marked CCM X, which they claimed to be the credit agreement. The document clearly states "you have the right to cancel" yet no cancellation notice has been supplied nor are there any details relating to how to cancel which are referred to in the document. I note that the burden of proof is upon the claimant to prove they did indeed send cancellation details and notices as per the ruling of ANGLO LEASING PLC v. PASCOE and ANOTHER [1997] EWCA Civ 895 (31st January, 1997). There were also two copies of irrelevant terms and conditions from January 2006 (the account that is subject to this claim was opened in 1997).

15.In response to the purported credit agreement supplied by the claimant, Marked Exhibit xxx x, it is denied that it is a valid executed credit agreement within the definition contained within the Consumer Credit Act 1974 and it is submitted that the document fails entirely to comply with Consumer Credit legislation as laid out below.

 

16.The document supplied is not compliant with the Consumer Credit Act 1974 and Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553)

17.Under the Consumer Credit Act 1974 there are certain conditions laid down by parliament which must be complied with if such agreement is to be enforced by the courts

18.Firstly, the agreement must contain certain Prescribed terms under regulations made by the Secretary of State under section 60(1) CCA 1974, the regulations referred to are the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) The prescribed terms for a Running credit account as set out below

19.The prescribed terms referred to are contained in schedule 6 column 2 of the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) and are inter alia: - A term stating the credit limit or the manner in which it will be determined or that there is no credit limit, a term stating the rate of any interest on the credit to be provided under the agreement and a term stating how the debtor is to discharge his obligations under the agreement to make the repayments, which may be expressed by reference to a combination of any of the following-

a.Number of repayments;

b.Amount of repayments;

c.Frequency and timing of repayments;

d.Dates of repayments;

e.The manner in which any of the above may be determined; or in any other way, and any power of the creditor to vary what is payable

20.It is submitted the document supplied falls foul of the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) in so far that the prescribed terms are not contained within the agreement. These terms must be contained within the agreement. They cannot be contained within a separate document. The prescribed terms must be with the agreement for it to be compliant with section 60(1) Consumer Credit Act 1974

21.I refer to the judgment of TUCKEY L J in the case of Wilson and another v Hurstanger Ltd [2007] EWCA Civ 299 "[11] Schedule 1 to the 1983 Regulations sets out the "information to be contained in documents embodying regulated consumer credit agreements". Some of this information mirrors the terms prescribed by Sch 6, but some does not. Contrasting the provisions of the two schedules the Judge said:

"33 In my judgment the objective of Schedule 6 is to ensure that, as an inflexible condition of enforceability, certain basic minimum terms are included which the parties (with the benefit of legal advice if necessary) and/or the court can identify within the four corners of the agreement. Those minimum provisions combined with the requirement under s 61 that all the terms should be in a single document, and backed up by the provisions of section 127(3), ensure that these core terms are expressly set out in the agreement itself: they cannot be orally agreed; they cannot be found in another document; they cannot be implied; and above all they cannot be in the slightest mis-stated. As a matter of policy, the lender is denied any room for manoeuvre in respect of them. On the other hand, they are basic provisions, and the only question for the court is whether they are, on a true construction, included in the agreement. More detailed requirements, which are designed to ensure that the debtor is made aware, so far as possible, of specified information (including information contained in the minimum terms) are to be found in Schedule 1."

22.If the agreement does not contain these terms in the prescribed manner it does not comply with section 60(1) CCA 1974, the consequences of which means it is improperly executed and only enforceable by court order

23.Notwithstanding point 22, The agreement must be signed in the prescribed manner to comply with s61 (1) CCA 1974, if the agreement is not signed by debtor or creditor it is also improperly executed and again only enforceable by court order

24.The courts powers of enforcement where agreements are improperly executed by way of section 65 CCA 1974 are themselves subject to certain qualifying factors. Under section 127 (3) Consumer Credit Act 1974 the requirements are laid out clearly what is required for the court to be able to enforce the agreement where section 65(1) has not been complied with 127(3) The court shall not make an enforcement order under section 65(1) if section 61(1)(a)(signing of agreements) was not complied with unless a document (whether or not in the prescribed form and complying with regulations under section 60(1)) itself containing all the prescribed terms of the agreement was signed by the debtor or hirer (whether or not in the prescribed manner).

25.Furthermore the courts attention is also drawn to the authority of the House of Lords in Wilson-v- FCT [2003] All ER (D) 187 (Jul) which confirms that where a document does not contain the required terms under the consumer credit act 1974 and the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) and Consumer Credit (Agreements) (Amendment) Regulations 2004 (SI2004/1482) the agreement cannot be enforced

26.With regards to the Authority cited in point 25, I refer to LORD NICHOLLS OF BIRKENHEAD in the House of Lords Wilson v First County Trust Ltd - [2003] All ER (D) 187 (Jul) over the following paragraphs

28.........I should outline the salient provisions of the Consumer Credit Act 1974. Subject to exemptions, a regulated agreement is an agreement between an individual debtor and another person by which the latter provides the former with a cash loan or other financial accommodation not exceeding a specified amount. Currently the amount is £25,000. Section 61(1) sets out conditions which must be satisfied if a regulated agreement is to be treated as properly executed. One of these conditions, in paragraph (a), is that the agreement must be in a prescribed form containing all the prescribed terms. The prescribed terms are the amount of the credit or the credit limit, rate of interest (in some cases), how the borrower is to discharge his obligations, and any power the creditor may have to vary what is payable: Consumer Credit (Agreements) Regulations 1983, Schedule 6. The consequence of improper execution is that the agreement is not enforceable against the debtor save by an order of the court: section 65(1). Section 127(1) provides what is to happen on an application for an enforcement order under section 65. The court 'shall dismiss' the application if, but only if, the court considers it just to do so having regard to the prejudice caused to any person by the contravention in question and the degree of culpability for it. The court may reduce the amount payable by the debtor so as to compensate him for prejudice suffered as a result of the contravention, or impose conditions, or suspend the operation of any term of the order or make consequential changes in the agreement or security.

 

29. The court's powers under section 127(1) are subject to significant qualification in two types of cases. The first type is where section 61(1)(a), regarding signing of agreements, is not complied with. In such cases the court 'shall not make' an enforcement order unless a document, whether or not in the prescribed form, containing all the prescribed terms, was signed by the debtor: section 127(3). Thus, signature of a document containing all the prescribed terms is an essential prerequisite to the court's power to make an enforcement order. The second type of case concerns failure to comply with the duty to supply a copy of an executed or unexecuted agreement pursuant to sections 62 and 63, or failure to comply with the duty to give notice of cancellation rights in accordance with section 64(1). Here again, subject to one exception regarding sections 62 and 63, section 127(4) precludes the court from making an enforcement order.

 

30. These restrictions on enforcement of a regulated agreement cannot be sidestepped..... And further more

 

36. In the present case the essence of the complaint is that section 127(3) of the Consumer Credit Act has the effect that a Regulated agreement is not enforceable unless a document containing all the prescribed terms is signed by the debtor

 

49. ".............The message to be gleaned from sections 65, 106, 113 and 127 of the Consumer Credit Act is that where a court dismisses an application for an enforcement order under section 65 the lender is intended by Parliament to be left without recourse against the borrower in respect of the loan. That being the consequence intended by Parliament, the lender cannot assert at common law that the borrower has been unjustly enriched.

 

50. This interpretation of the Consumer Credit Act accords with the approach adopted by the House in Orakpo v Manson Investments Ltd [1978] AC 95, regarding section 6 of the Moneylenders Act 1927 and, more recently, in Dimond v Lovell [2002] 1 AC 384, another case where section 127(3) precluded the making of an enforcement order. In Dimond's case the restitutionary remedy sought was payment of the hire charge for a replacement car used by Mrs Dimond. The House rejected a claim advanced on the basis of unjust enrichment. Lord Hoffmann observed that Parliament contemplated that a debtor might be enriched consequential upon non-enforcement of an agreement pursuant to the statutory provisions. It was not open to the court to say this consequence is unjust and should be reversed by a remedy at common law: [2002] 1 AC 384, 397-398

27.The House of Lords and the Court of Appeal before it in considering the Wilson case held that if the agreement does not contain the prescribed terms outlined in Schedule 6 column 2 of Statutory Instrument 1983/1553 then the court couldn't issue an enforcement order. The House of Lords clearly considered it the will of parliament that where a lender did not comply with the provisions of the Consumer Credit Act 1974 and the Subsequent regulations then the lender does not have any recourse, they cannot side step regulation by any other means and weather it is considered right or wrong for the debtor not to have to repay an unenforceable debt becomes irrelevant where the requirements of the CCA 1974 and regulations are not met

28.In addition to the requirements of schedule 6 of SI1983/1553 these terms must be within the agreement itself, not in a separate document. I refer to the judgement of TUCKEY L J from Wilson and Hurstanger in point 21 above, from reading the document submitted as the "agreement" I cannot see any prescribed terms within the document and since they cannot be contained within another document as laid out by TUCKEY L J then I cannot see any other conclusion other than the agreement rendered unenforceable

29.Therefore it is submitted that this document falls foul of the Consumer Credit Act 1974 as previously outlined in points 12 through to 28 and as a result Section 127(3) prevents this document from being enforced

 

30.I also refer to the website of Francis Bennion, the drafts person of the Consumer Credit Act 1974 and note in particular a PDF document that the honourable Mr Bennion has posted (located here http://www.francisbennion.com/pdfs/f...974-s127-3.pdf ) which states

"As the draftsman of the Consumer Credit Act 1974 I would like to thank Dr Richard Lawson for his interesting and well-argued article (30 August 2003) on Wilson v First County Trust Ltd [2003] UKHL 40, [2003] 4 All ER 97. Dr Lawson may be interested to know that I included the provision in question (section 127(3)) entirely on my own initiative. It seemed right to me that if the creditor company couldn't be bothered to ensure that all the prescribed particulars were accurately included in the credit agreement it deserved to find it unenforceable, and that the court should not have power to relieve it from this penalty. Nobody queried this, and it went through Parliament without debate. I'm glad the House of Lords has now vindicated my reasoning and confirmed that nobody's human rights were infringed.

 

167 Justice of the Peace (2003) 773.”

31.If the claimant is in disagreement, then it is respectfully requested that the claimant bring before the court the signed credit agreement containing the prescribed terms laid out in SI 1983 / 1553 schedule 6 and signed by both creditor and debtor as laid out in Regulation 6 of SI1983/1553. Should the claimant be unable to produce the original agreement or a copy of, signed by both debtor and creditor and containing the prescribed terms, I request that the court uses its powers under section 142 Consumer Credit Act 1974 and declare the agreement supplied by the claimant (marked Exhibit Xxx x) unenforceable.

 

 

THE DEFAULT

 

32.In addition to the credit agreement being irredeemably flawed, it is submitted that the claimant failed to issue a default notice served under s87 (1) Consumer credit act 1974 and so failed to comply with the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561)

 

33.I note that the claimants particulars of claim fail to even acknowledge service a Default notice as required by section 87(1) of the Consumer Credit Act 1974 before the claimant can even consider terminating the agreement or demanding repayment in full

34.It is denied that a Default notice was received at all thus not allowing the prescribed time frame required by the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) which states, Regulation 2(2) schedule 2

a.Details of breach of agreement and action required to remedy, or pay compensation for, the breach

b.A specification of:--

i.(a) the provision of the agreement alleged to have been breached; and

ii.(b) the nature of the alleged breach of the agreement, specifying clearly the matters complained of; and either

iii.© if the breach is capable of remedy, what action is required to remedy it and the date, being a date [not less than fourteen days] after the date of service of the notice, before which that action is to be taken; or

iv.(d) if the breach is not capable of remedy, the sum (if any) required to be paid as compensation for the breach and the date, being a date [not less than fourteen days] after the date of service of the notice, before which it is to be paid.

35.Furthermore, it follows that fourteen days cannot have been allowed between service of the default and the time laid out where the alleged breach needed to be remedied. I therefore put the claimant to strict proof as to the existence and date of service of said document.

36.For a creditor to be entitled to terminate a regulated credit agreement where there is a breach, demand repayment in full or take any legal action to recover any monies due under the agreement, a creditor must serve a Default Notice under section 87(1) CCA 1974 which states

(1) Service of a notice on the debtor or hirer in accordance with section 88 (a "default notice ") is necessary before the creditor or owner can become entitled, by reason of any breach by the debtor or hirer of a regulated agreement,-

(a) to terminate the agreement, or

(b) to demand earlier payment of any sum, or

© to recover possession of any goods or land, or

(d) to treat any right conferred on the debtor or hirer by the agreement as terminated, restricted or deferred, or

(e)to enforce any security.

37.I note the opening part of section 88(1), which states

88. Contents and effect of default notice.

(1) The default notice must be in the prescribed form.......

The word “must” makes it clear that no variation is acceptable. Therefore it cannot be dispensed with as a De Minimus issue

38.I note that the regulations do not allow any variation in the form of these statements and therefore it is suggested that where the statements are not as laid down in the regulations the default notice is rendered invalid as a consequence

39.In the case of Woodchester Lease Management Services Ltd v Swain & Co - [1998] All ER (D) 339 in the Court of Appeal, the court addressed in some detail the issue of the contents of a default notice and should the notice fail to comply with the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) it would render the default notice invalid I quote the comment of KENNEDY LJ: "This statute was plainly enacted to protect consumers, most of whom are likely to be individuals" the judgment appears to confirm the consumer credit legislation made under the Consumer Credit Act 1974 as plainly enacted and set out to offer protection to the consumer. Therefore it is suggested that the failure of the claimant to set out the default notice in accordance with the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) could unduly prejudice me as it failed to allow the required time to remedy the default

40.I suggest that since the claimant has not complied with the requirements to issue a valid default notice, the claimant should not be bringing this action before the court until the procedure set out for the protection of consumers has been followed. It is noted that the Consumer Credit (Enforcement, Default and Termination Notices Regulations 1983 (SI 1983/1561) require strict compliance and clearly indicates in the wording that substantial compliance is not enough.

41.I respectfully request the court give consideration to the claimants rights to bring this case while not in compliance with Sections 87,88 & 89 of the Consumer Credit Act 1974 in respect of the default notice and its failure to adhere to Consumer Credit (Enforcement, Default and Termination Notices Regulations 1983 (SI 1983/1561)

42.In view of matters pleaded, I respectfully request the court give consideration to striking out the claimants case pursuant to part 3.4

(2) The court may strike out a statement of case if it appears to the court –

(a) That the statement of case discloses no reasonable grounds for bringing or defending

(b) That the statement of case is an abuse of the court's process or is otherwise likely to obstruct the just disposal of the proceedings; or

© That there has been a failure to comply with a rule, practice direction or court order.

43.If the court considers it inappropriate to use its case management powers, it is requested that the court order the claimant to produce the original documents before the court as the documents supplied do not comply with the Consumer Credit Act or Regulations made under the act, this is confirmed by case law as well. Without production of the requested documents the case cannot be dealt with justly and fairly, and will severely prejudice my rights to a fair trial

44.I request that the original document be made available by the claimant for inspection pursuant to Practice Direction 32 .if the claimant cannot supply the original documents in this case it is requested that the claimants case be struck out as to seek enforcement the claimant would need to retain the agreement in case a stored copy was for example illegible or corrupted, therefore it stands to reason that the claimant must surely hold such document. However I note there is other pieces of legislation which set out the requirements of Document retention

45.According to sections 221 and 222 of the Companies Act 1985, a public company is required to maintain records for a period of six years (section 222(5)(b).

46.As a loan agreement is active until the agreement is terminated, I would suggest that all the payment records (and other documents making up the file - including the agreement/application etc) would be "live" until the account is paid, or terminated - thus, the full file should be retained for at least six years after that.

47.This interpretation fits in with Inland Revenue legislation that requires prime documents to be retained for a period of six years - AFTER THE END OF THE RELEVANT ACCOUNTING PERIOD. That would mean some files need to be retained for up to seven years. The relevant legislation is found in Schedule 18 of the Finance Act 1998 (paragraph 21) - of particular significance is sub-paragraph (6) which states:

"The duty to preserve records under this paragraph includes a duty to preserve all supporting documents relating to the items mentioned in sub-paragraph (5)(a) and (b)."

48.Key documents/application forms etc must be kept until 5 years after that business relationship has ended. This is a requirement of The Money Laundering Regulations 1993, 2003 and 2007.

49.I respectfully request that should the claimant disclose any new documentation that has not been disclosed so far with the Particulars of Claim that the court grant permission to amend this defence accordingly

50.Should the issue arise where the claimant seeks to rely upon the fact that they can show that the defendant has had benefit of the monies and therefore the defendant is liable, I refer to and draw the courts attention to the judgment of Sir Andrew Morritt in the case of Wilson v First County Trust Ltd - [2001] 3 All ER 229, [2001] EWCA Civ 633 in the Court of Appeal

a.at para 26

"In effect, the creditor--by failing to ensure that he obtained a document signed by the debtor which contained all the prescribed terms--must (in the light of the provisions in ss 65(1) and 127(3) of the 1974 Act) be taken to have made a voluntary disposition, or gift, of the loan moneys to the debtor. The creditor had chosen to part with the moneys in circumstances in which it was never entitled to have them repaid;"

51.Finally I will address the issue of which Act is relevant in this case, in case it is suggested that the claim falls under the Consumer Credit Act 2006, it is drawn to the courts attention that schedule 3, s11 of the Consumer Credit Act 2006 prevents s15 repealing s127 (3) of the 1974 Act for agreements made before s15 came into effect. Since the agreement would have commenced prior to the inception of the Consumer Credit Act 2006, section 15 of the 2006 Act has no effect and the Consumer Credit Act 1974 is the relevant act in this case.

52.For the avoidance of any doubt I include the relevant section of the 2006 Consumer Credit Act (Except taken from Consumer Credit Act 2006 (c. 14) - Statute Law Database accessed Thursday 31st January 2008

11 The repeal by this Act of-

(a)the words "(subject to subsections (3) and (4))" in subsection (1) of section 127 of the 1974 Act,

(b)subsections (3) to (5) of that section, and

©the words "or 127(3)" in subsection (3) of section 185 of that Act,

has no effect in relation to improperly-executed agreements made before the commencement of section 15 of this Act.

53.Therefore the Consumer Credit Act 2006 is not retrospective in its application and has no effect upon this agreement and the Consumer Credit Act 1974 is the act which this agreement is regulated by.

 

COUNTERCLAIM

 

54.The Defendant entered into an agreement (“The Agreement”) with the Claimant on or around xx/xx/199x, whereby the Claimant was to advance credit facilities to the Defendant under a running credit account, Account no xxxx xxxxxx xxx ("The Account").

55.The Agreement essentially consisted of the Claimant providing the Defendant with a credit card (“The Card”) which would allow the Defendant to make purchases and receive cash advances on credit. In return the Claimant was entitled to charge interest at the published rate.

 

56.The Agreement was a Regulated Agreement for the purposes of the Consumer Credit Act 1974.

 

57.At all material times the contract was subject to the Claimant’s standard terms and conditions which could be varied from time to time.

 

Summary

58.Throughout the course of the Agreement, the Claimant has added numerous default charges to the Account for the Defendant’s failure to make the minimum payment on the due date and or for exceeding the credit limit and or if a payment is returned. (Full particulars are set out in schedule 2).

59.The default charges were applied in accordance with the standard terms of The Agreement which were:

a.A penalty payable on breach of contract and thus unenforceable: and

b. An unfair term under the Unfair Terms in Consumer Contracts Regulations 1999 (“The Regulations”) and therefore not binding on the Claimant.

60.The Defendant is accordingly entitled to repayment of the sums wrongly added to the Account.

 

The Charges

 

61.The standard Terms of the Agreement in substance provided as follows:

a.The Claimant would provide the Defendant with the Card. The Defendnt was entitled to use the Card to make purchases and receive cash advances up to a credit limit (“the Limit”) set by the Claimant. The Claimant could unilaterally change the Limit by giving the Defendant notice in writing.

b.The Claimant was entitled to charge interest on the purchases and cash advances at the published rate.

c.The Defendant was to pay the minimum payment of 2.5% of the amount owed or £5 (whichever was the greatest) by the due date as notified in the monthly statements.

d.In addition the Claimant was entitled to charge default fees (“the Charges”) where the Claimant exceeded the Limit, did not pay on the due date or had a payment returned. The Charges are currently £25 for each transgression. Prior to 2006 the Charges were various amounts including, but not limited to £12, £15 and £20.

Penalty

 

62.The Charges were payable on breach of contract by the Defendant.

63.The amount of the Charges exceeded any genuine pre-estimate of the damage which would have been suffered by the Bank in relation to the Defendant’s transgressions.

64.In the premises the Charges were punitive and a penalty and thus unenforceable at common law.

 

The Regulations

 

65.At all material times the Defendant was a consumer within the Regulations.

66.At all material times the terms of the Agreement providing for the Charges were unfair within regulation 5 of the Regulations in that contrary to the requirement of good faith they caused a significant imbalance in the parties' rights and obligations to the detriment of the Defendant.

67.Without prejudice to the burden of proof, the Claimant will refer to the following matters in support of the contention that the terms are to be assessed as unfair as at the time of the conclusion of the Agreement, and of each revision to the Standard Terms.

a.The terms relating to Charges were standard terms; they would not be individually negotiated. b.The Charges were a penalty for breach of contract.

c.The Charges exceeded the costs which the Bank could have expected to incur in dealing with the exceeding of the credit limit, late payment or returned payment.

d.Accordingly the Charges were a disproportionate charge incurred by the Claimant for their failure to meet their contractual obligation and thus within the ambit of Schedule 2 (1) (e) of the Regulations and indicative of an unfair term.

e.As the Bank knew, the Charges were of subsidiary importance to the customer in the context of the Agreement as a whole and would not influence the making of the Agreement.

f.As the Claimant knew, the Defendant had no means of assessing the fairness of the Charges.

g.In the premises, the effect of the Charges would be prejudicial to the customer who incurred them, and cause an imbalance in the relations of the parties to the Agreement by subordinating the customer’s interests to those of the Defendant in a way which was inequitable.

68.Without prejudice to the burden of proof, the Defendant will contend that the terms imposing the Charges are not core terms under regulation 6 of the Regulations and relies on the following matters.

a.The assessment of fairness does not relate to terms which define the main or core subject matter of the Agreement.

b.The assessment of fairness does not relate to the adequacy of the price or remuneration as against the goods or services supplied in exchange (in other words, whether or not the relevant services were value for money).

c.The Charges are correctly described as default charges by the Defendant in the key information provided to new customers.

69.By reason of the said matters the terms were not binding under regulation 8 of the Regulations.

70.The Claimant wrongly applied Charges to the Account totalling some £593.16 between xx-Jan-200x and xx-April-2008. Particulars appear from Schedule 2.

71.The Claimant wrongly reported the account status to third-party data controllers including, but not limited to, Experian, Equifax and Callcredit.

72.On 0x xxx 2008 the Defendant demanded repayment of the sums wrongly applied.

73.The Claimant has not repaid them or any of them.

 

Failure of a Default Notice

 

74.There is a body of case law, which has confirmed that where a statutory default notice issued under section 87(1) is not compliant with the Consumer Credit Act 1974 and the subsequent Regulations it does not allow a creditor to terminate the agreement or demand repayment etc. In addition your attention is drawn to the fact that Failure of a default notice to be accurate not only invalidates the default notice (Woodchester Lease Management Services Ltd v Swain and Co - [2001] GCCR 2255) but is a unlawful termination of contract which would not only prevent a court enforcing any alleged debt, but give me a counter claim for damages via the ruling in the case of Kpohraror v Woolwich Building Society [1996] 4 All ER 119.

75.The Claimant has published via Experian, Equifax and Callcredit. since July 2005, that this account is in a state of Default. The information has been readily available to other financial institutions and has caused considerable harm to my creditworthiness.

 

Harassment

 

76.Whilst this dispute continues the Claimant passed the account to debt collection agency AIC (Allied International Credit), a firm of Solicitors called Casey & Co and finally back to AIC who contacted me on four occasions, adding a file referral fee of £1xx.xx, demanding repayment in full of the disputed account either immediately in AIC’s case or within 7 days in Casey & Co’s case.

77.These actions were in clear contravention of the OFT’s guidelines on debt collection and amounted to harassment of the Defendant.

78.The Claimant has added a further file referral fee of £xx.xx in its Particulars of claim. Which is in clear contravention of the OFT’s guidelines on debt collection.

 

And the Defendant counterclaims

 

79.A declaration that the sums totalling £750.xx have wrongly been applied to the Account.

80.Payment of the said sum of £750.xx and interest of £491.xx applied by the Claimant thereon.

81.Interest under section 69 of the County Courts Act 1984 at the rate of 8% per annum from the date of payment of the Charge to date in the sum of £151.07, and at the daily rate of £0.16 until judgment or sooner payment.

82.Removal of incorrect account status data from third-party data controllers including, but not limited to, Experian, Equifax and Callcredit.

83.

a.Damages of £500 for the harm caused to my creditworthiness since July 2005 by way of account default status being published via credit reference agencies when no default notice was issued.

b.Alternatively, damages at the discretion of the Court.

84.

a.Damages of £75 for harassment caused by the Claimant passing a disputed account to collection agents who demanded repayment in full.

b.Alternatively, damages at the discretion of the Court.

85.

a.Punitive damages of £500 for the Claimant pursuing the Defendant when it had failed to keep correct records as laid out in para. 45-48

b.Alternatively, damages at the discretion of the Court.

86.Court costs.

[steven4064]

Minor point - para 42 CPR Part 3.4

 

Major point - having seen it set out like this in all its glory I wonder whether there isn't a large inconsistency with a defence that says 'there is no agreement' and a counter claim that says 'there is an agreement which the defendant has breached and penalties applied as a result'

[Alphageek]

Para 42 amended.

 

On the major point of the inconsistency: I think I would say that Amex have an unenforceable agreement at best and an unexecuted at worst, leading them to believe they could levy charges and report data to CRAs.

 

They, along with Newmans et al, misled me in to believing their actions were lawful and, under this misapprehension, I continued to pay them money.

 

I subsequently discover the true nature of the agreement and their unlawful actions and am counterclaiming for restitution.

 

I am not sure about 83-85 either.

[steven4064]

On damages for injury to creditworthyness have a read of http://www.consumeractiongroup.co.uk/forum/legalities/142788-116000-awarded-wrongful-default.html

[Alphageek]

That was one expensive mistake by PC World!

 

Para 114 onwards is interesting. If I am reading it correctly, I don't necessarily need to show I sought and was refused credit for a judge to agree there was injury to my creditworthiness.

 

Is the Sheriff's Court like the County Court in England as far as precedence goes?

 

More reading tomorrow. Sleepy time now.

 

[steven4064]

Is the Sheriff's Court like the County Court in England as far as precedence goes?

Yes - there is no precedent - althoug I think you can quote such a case for guidance

[Alphageek]

Ok, I have re-read it and apart from the odd typo it makes sense to me.

 

I am not saying there is no agreement. I am saying there is no enforceable agreement and the best paragraph I think is the comments by Sir Andrew Morritt;

 

"In effect, the creditor--by failing to ensure that he obtained a document signed by the debtor which contained all the prescribed terms--must (in the light of the provisions in ss 65(1) and 127(3) of the 1974 Act) be taken to have made a voluntary disposition, or gift, of the loan moneys to the debtor. The creditor had chosen to part with the moneys in circumstances in which it was never entitled to have them repaid;"

 

I have added a paragraph under 75

 

76. Sheriff J K Tierney (Sheriffdom Of Grampian Highland And Islands At Aberdeen) in his Judgment in DURKIN Vs DSG RETAIL LIMITED and HFC BANK PLCs (A187/04) states

115. The case of King v British Linen & Co ((

1899) 1F 928 )

dealt with the situation where there had been no specific damage. The only loss which the pursuer had occurred sustained was the loss to his credit standing. That was valued by the sheriff at £100 in 1897, a figure which was not interfered with in the Inner House. It is clear that the reason that the Inner House did not consider it appropriate to interfere with it was because they were dealing with a case where, in the words of Lord Kinnear, "No exact measure" of damages could be fixed. The case is clear authority to the effect that award of damages can be made for simple injury to credit although no actual loss is sustained. It is not, in my opinion, authority for the proposition where injury to credit causes actual loss or damage the fact of the injury itself warrants an award over and above the actual losses.

 

To reinforce the injury to my creditworthiness parts of my counterclaim.

 

I can't think of the newspaper man's name who once said "publish and be damned", but I am going to grasp his advice.

 

Do I need 3 copies like when I am the claimant and do I send all copied to the Court?

 

Do I need an Nxxx form to send as well?

[Alphageek]

Dur, I already said form N9B.

 

What is the fee payable, is it on a sliding scale like when I am the claimant?

[Alphageek]

Ok, from Fees

 

3. Counterclaim

To make a claim against the claimant (a ‘counterclaim’) the fees above apply; that is, the fee to be paid depends on the amount of the counterclaim. It must be paid when the counterclaim is filed at the court office

 

So, the fee is £85 in this case.

[steven4064]

It's the same fee you would have paid if you were the claimant

[Alphageek]

N9B, Defence & Counterclaim and fee mailed this morning.

[Alphageek]

Counterclaim fee debited from my current account on 16/05/08.

[Alphageek]

I have spoken to the Court just now to check I hadn't missed any thing in the mail.

 

They have received my defence and counterclaim but have just got around to "putting it on" - so I guess they're about 7 or 8 weeks behind with their mail.

 

So, I will just wait for allocation and take it from there.

[Alphageek]

Received from the Court today a Notice of Issue (Part 20 claim) - "Your Part 20 claim was issued on 22 July 2008. The court sent it and accompanying papers to the Part 20 defendant by first class post on 22 July 2008 and it will be deemed served on 25 July 2008. The Part 20 defendant has until 11 August 2008 to reply."

[Alphageek]

If they don't reply to my part 20 counterclaim by Monday 11th, should I request judgement or does the fact that it took the Court 8 weeks to "put on" my defence and counterclaim mean I will just have to sit tight for another 2 months?

[tinkerbell20]

I would ring the court and check if they've responded on Tuseday. If they haven't fax the request for judgment to the Court same day.

[Alphageek]

That's what I was planning. I just read so many times that the Court's staff tell people they are so far behind with their post, that they should wait.

[tinkerbell20]

That's what I was planning. I just read so many times that the Court's staff tell people they are so far behind with their post, that they should wait.

 

 

Fax it in and judgment should be entered the next day

[Alphageek]

N225 - Request for judgment and reply to admission (specified amount)

 

Does not really seem to be the correct form to use when I am a Part 20 counterclaimant.

 

Anyone know which form to use?

[tinkerbell20]

http://www.hmcourts-service.gov.uk/courtfinder/forms/n227_0406.pdf

 

I would say this one as you are asking court to determine amounts in part of your claim

[Alphageek]

Thanks Tinker!

[tinkerbell20]

Thanks for Rep Alpha............. Go Get 'em:D

[Alphageek]

The Court have not received a reply to my part 20 counterclaim so I have faxed to them a request for judgment.