Cabot/hudsons claimform - old barclaycard debt

[tinkerbell20]

I've been over Rankine a few times since finding the law report yesterday. That would be the decision of Simon Brown QC at a sitting of the QBD at Birmingham in May 2008, not Rankine's earlier unsuccessful application for permission to appeal the decision of Mr Recorder Corner QC sitting at Birmingham County Court.

 

Evidently the Rankines did not impress Simon Brown. He seems to have viewed them as people of no particular high moral standing. He plainly disliked hearing Mr Rankine boast how he had wriggled out of £65,000.00 of debt by arguing legal technicalities. Likewise how Mr Rankine intended to go into business as a credit card buster. He found them to have misused indulgences granted to them as LiPs, incoherent in their pleadings and witness statements and to be untruthful in their evidence. If all this was so and as it appears, the Rankines did CAG and persons seeking justice in relation to regulated consumer agremeents no favours.

 

Brown ruled on 6 issues, 2 only of which are pertinent I feel at this time, namely requests made under section 78 of the Act and default notices under section 87 of the Act.

 

This analysis of the judgment has consumed me in rather a lot of time, to the point at which Mrs X20 has got rather shirty with me. I was intending to deal with both sections 78 and 87 but thus far have not got around to dealing with section 87. This post is therefore confined to my assessment of Simon Brown's judgment in regard to section 78. It's just as well because I fear what follows is tedious in the extreme and if it was any lkonger you wouldn't thank me for it.

 

Section 78

Section 78(1) provides as follows:

(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 £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.

 

According to the judgment, the Rankines sought to persuade the Judge thay their opponents had failed to comply with the provisions of section 78 and that in consequence section 78(6) operated to prevent the enforcement of the agreements.

 

Section 78(6) provides as follows (though section 87(6)(b) has been repeated since 28 May 2008):

 

If the creditor under an agreement fails to comply with subsection (1)

(a)he is not entitled, while the default continues, to enforce the agreement; and

(b)if the default continues for one month he commits an offence.

 

In the case of 4 of the agreements before the court, the Judge found as a fact that there had been compliance by the creditors with section 78(1).

In one of those 4 agreements, an agreement with Tesco, Tesco were 'seeking enforcement'. It seems to me by reason of the discussion contained in the judgment, that by 'seeking enforcement' Tesco are to be treated as seeking an enforcement order under section 127 of the Act.

 

Section 189 defines an enforcement order as meaning 'an order under section 65(1), 105(7)(a) or (b), 111(2) or 124(1) or (2)'

 

Section 127 is entitled 'Enforcement orders in cases of infringement'/ It provides as follows:

 

(1) In the case of an application for an enforcement order under—

(a)section 65(1)(improperly executed agreements), or

(b)section 105(7)(a) or (b)(improperly executed security instruments), or

©section 111(2)(failure to serve copy of notice on surety), or

(d)section 124(1) or (2)(taking of negotiable instrument in contravention of section 123),

the court shall dismiss the application if, but (subject to subsections (3) and (4)) only if, it considers it just to do so having regard to

(i) prejudice caused to any person by the contravention in question, and the degree of culpability for it; and

(ii) the powers conferred on the court by subsection (2) and sections 135 and 136.

(2) If it appears to the court just to do so, it may in an enforcement order reduce or discharge any sum payable by the debtor or hirer, or any surety, so as to compensate him for prejudice suffered as a result of the contravention in question.

(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).

(4) The court shall not make an enforcement order under section 65(1) in the case of a cancellable agreement if—

(a)a provision of section 62 or 63 was not complied with, and the creditor or owner did not give a copy of the executed agreement, and of any other document referred to in it, to the debtor or hirer before the commencement of the proceedings in which the order is sought, or

(b)section 64(1) was not complied with.

(5) Where an enforcement order is made in a case to which subsection (3) applies, the order may direct that the regulated agreement is to have effect as if it did not include a term omitted from the document signed by the debtor or hirer.

 

The Rankines sought to contend that owing to a failure to comply with a section 78 request (on which point as mentioned, the Judge had ruled there had been compliance with the request) that the court should make a declaration under section 142(1) of the Act that by reason of the provisions of 78(6) Tesco were unable to obtain an enforcement order under section 127.

 

Section 142 is entitled 'Powers to declare rights of parties' and provides as follows:

 

(1) Where under any provision of this Act a thing can be done by a creditor or owner on an enforcement order only, and either—

(a)the court dismisses (except on technical grounds only) an application for an enforcement order, or

(b)where no such application has been made or such an application has been dismissed on technical grounds only, an interested party applies to the court for a declaration under this subsection, the court may if it thinks just make a declaration that the creditor or owner is not entitled to do that thing, and thereafter no application for an enforcement order in respect of it shall be entertained.

(2) Where—

(a)a regulated agreement or linked transaction is cancelled under section 69(1), or becomes

subject to section 69(2), or

(b)a regulated agreement is terminated under section 91,

and an interested party applies to the court for a declaration under this subsection, the court may make a declaration to that effect.

 

Simon Brown held the court had no power to make a declaration under section 142. He reached that decision in the following way:

 

Section 142 provided power to the court to declare the rights of the parties only in those situations where the court had power to grant or refuse to grant an enforcement order. The circumstances in which the court could make an enforcement order were limited to applications for orders under section 65(1), 105(7)(a) or (b), 111(2) or 124(1) or (2) (ie

as per the section 189 definition).

 

There was no power in section 142 to make a declaration in relation to the rights of the parties where it was contended there had been an infringement of section 78(1). Unlike sections 65, 105 et al, there is nothing in section 78 which provided for the need of an enforcement order.

 

In this part of his analyisis I am in agreement.

 

He further ruled:

 

Section 78(6) had application where the creditor failed to answer the request 'under an agreement'. Brown held 'The agreement was at an end. Therefore there is no reason why there cannot be enforcement.'

 

It would be helpful to know at what point in time the Rankines say they delivered their section 78 request. If it was delivered at any time after the agreeent had terminated, then I would agree.

 

However, if it was delivered during the currency of the agreement, I would have great difficulty in following this part of his ruling. It would be akin to saying a creditor may ignore his section 78 obligations with impunity and may escape them for all time and also the consequences of a failure to comply provided at 78(6) simply by ending the agreement and further, having ended the agremeent, the creditor is at liberty to enforce it.

 

Thirdly he ruled:

 

'the word “enforce” is not descriptive of the commencement of proceedings. Bringing proceedings during a time when the agreement has been brought to an end is only a step taken with a view to enforcement. It is not actually enforcement.'

 

This ruling took me aback. Whilst I can understand that the commencement of proceedings is 'not enforcement', invariably proceedings are commenced for the purpose of securing a judgment of the court upon some right which the Claimant believes he has over the Defendant

in order that upon securing it, the Claimant may then lawfully obtain a remedy for that right. It is necessary to commence proceedings because in our society where a man owes another some money, the creditor is not allowed to seize the debtor's belongings and sell them to raise sufficient to pay the debt. He is not allowed to make an arrangement with the

debtor's employer to pay him so much out of the debtor's wages. He is not allowed to do a deal with some third party who owes the debtor some money and tell the third party to pay that money direct to him. In all these situations, the creditor requires the existence of an

unsatsifed judgment to be then able to employ certain lawfully recognised enforcement procedures. Even with a judgment, a creditor is not allowed to seize the debtor's goods save by a bailiff, and so forth. In all circumstances, the creditor must act lawfully.

 

Likewise some proceedings may not be proceedings designed to enforce the agreement. Insolvency proceedings would not be proceedings designed to enforce the agreement for example.

 

'Enforce' does not appear in the list of definitions contained in section 189. The word therefore has no special meaning attached to it in the Act. The meaninig of 'enforce' is I would submit, intended to follow the ordinary, customary usage found in the English language.

 

In ordinary usage and in the context of an agreement, I would submit 'enforce' means no more than to 'compel obedience to'. Further, to enforce, connotes some resistance to obedience and hence the requirement of some effort or endeavour by which the one strives to compel the obedience of the other. The effort may still not result in obedience, but whether or not the one succeeded in compelling the obedience of the other, that effort was nonetheless an attempt to enforce.

 

In conclusion, as to the meaning of 'enforce, the word not having any specially defined meaning in the Act, I hold to the view that where the words 'may not enforce' appear in the Act, that means both 'to compel obedience' and also 'to strive to compel obedience'

 

For these reasons, I take the view that Simon Brown was wrong.

 

Simon Brown sought to draw an analogy with section 69(1) of the Solicitors Act, an Act also passed in 1974.

 

Section 69(1) of The Solicitors Act 1974 says:

 

Subject to the provisions of this Act, no action shall be brought to recover any costs due to a solicitor before the expiration of one month from the date on which a bill of those costs is delivered ..

 

Simon Brown concluded that if Parliament had intended creditors who failed to comply with 78(1) should be prohibited from bringing an action (ie commencing proceedings to obtain recovery of money or goods receivable under the agreement), then section 78 would have said so, in just the same way it is said in section 69(1).

 

In my view, that is a wrong interpretation, unless in the mind of the parliamentary draftsman, 'enforce' was to have some very narrow meaning. Unfortunately, nowhere in his judgment does Simon Brown say what that intended narrow meaning was, nor what would constitute 'enforce' within the meaning of section 78. And of course as I have already stated, the parliamentary draftsman did not think it necessary to define 'enforce' in section 189, owing I would sbmit to his being content that 'enforce' should mean what it ordinarily means.

 

In my view and adopting my previously stated view that 'enforce' is to carry the ordinary, customary meaning, the prohibition on enforcing therefore extends to cover any step by which the creditor 'strives to compel obedience'. That would include commencing proceedings and

doing anything which involved a threat or threat of consequence for disobedience.

 

Fourthly he ruled:

 

'the provisions of section 170(1) of the Act support the contention that a failure to comply with section 78 does not of itself give rise to the consequence that pending compliance with a request made under section 78 any steps taken are in some way invalid. It provides so far as relevant as follows:

 

“(1) A breach of any requirement made (otherwise than by any court) by or under this Act shall incur no civil or criminal sanction as being such a breach, except to the extent (if any) expressly provided by or under this Act.

(3) Subsection (1)does not prevent the grant of an injunction."

 

It follows that where a breach of the Act occurs, such as one of section 78, where no remedy is specified, the appropriate step is to seek an injunction. A view to this effect is set out in the notes to section 170 by the editors of Goode Consumer Credit: Law and Practice. In any event it is to be kept in mind, as the editors of Goode observe, that any such breaches may lead to questions relating to the licence of the lending body in question.

 

I do not follow this part of his reasoning. Section 170 is entitled 'No further sanctions for breach of Act.'

 

To begin with until lately, a breach of the obligations in section 78(1) did incur a sanction, in particularly a criminal one, expressly provided for at section 78(6)(b).

 

Section 78(6)(b) said: if the default continues for one month he commits an offence.

 

In other words, a creditor who persisted in failing to comply with his obligations faced the risk ofa sanction by being prosecuted for that failure which was an offence. Schedule I to the Act defines the offence as one of 'Failure of creditor under running-account credit

agreement to supply copies of documents etc.' where on summary conviction the creidtor is to be fined at 'level 4 on the standard scale'.

Further still, the entire Act does not contain the words 'sanction' or 'sanctions' save where they appears in section 170. Neither are these words in the list of definitions in section 189. Again therefore 'sanction' and'sanctions' will import ordinary, customary usage.

 

In ordinay usage a 'sanction' will be (say) some coercive measure, whether it be a penalty or restraint, intended to ensure or compel compliance or obedience to something.

 

I accept that a breach of section 78(1) does not expressly provide for a civil remedy which is available to the debtor for him to positively pursue. And it seems to me none was expressly included because it did not appear to the parliamentary draftsman that it was necessary to since the debtor wold be adequately protected by knowing the creditor would be unable to enforce, or adopting my interpretation 'strive to compel obedience'.

 

I don't have the benefit of a copy of Goode Consumer Credit: Law and Practice. sitting on a bookshlef at home. How I wish I did. I understand PT does and it would be helpful to know exactly what is said in relation to section 78(6) and section 170.

 

That said, I would accept that a debtor may retain within his armoury the option to bring proceedings for an injunction compelling compliance with section 78(1), but I would not hold to the view that unless and until such an injunction has been obtained, the creditor is entitled to disregard his section 78 obligations and take steps to enforce the agreement.

 

x20

[1) or civil. Civil sanctions may take the form of liability in damages (see CCA 1974, s 92(3)) or to make restitution (see CCA 1974, s 91). The commonest form of sanction, however, is a restriction upon enforceability of agreements. In some cases an enforcement order must be sought from the court (see CCA 1974, s 127(1)) or an order must be obtained from the OFT (see CCA 1974, s 40). In other cases, a creditor ‘is not entitled to enforce’ an agreement as a consequence of non-compliance with a statutory duty (see, eg, CCA 1974, ss 77(4), 78(6), 79(3), 85(2) and 97(1)): in yet other cases he ‘is not entitled to enforce’ the agreement if he has failed to serve a statutory notice (see CCA 1974, ss 76 and 98) or must serve a notice before he ‘can become entitled’ to take certain steps to enforce the agreement (see CCA 1974, s 87). Quite apart from the question whether certain of these sanctions may be treated in themselves as ‘requirements’ for the purposes of CCA 1974, s 170(1) (see the note ‘A breach of any requirement’ above) the question arises what significance is to be read into the different forms of ‘sanction’ and the different words used to impose them. In particular, where the Act provides that a creditor is ‘not entitled’ to enforce an agreement, or must serve a notice before he can become entitled to do so, a natural inference is that any attempt to enforce the agreement must be wrongful, vis-à-vis the debtor (for example, a contractual right to repossession of goods will be suspended); if so, the debtor may resist judicial or extra-judicial enforcement (but if he is unable to prevent the creditor from enforcing the agreement, eg by preventing further drawings on a facility, is he entitled to redress for any consequent loss?)[/font]

Edited September 7, 2008 by tinkerbell20
too large a quote

[surfaceagentx20]

Thanks very much for that Tinks.

 

Tidied up, Tinks' quote from Goode looks like this:

 

Civil sanctions may take the form of liability in damages (see CCA 1974, s 92(3)) or to make restitution (see CCA 1974, s 91). The commonest form of sanction, however, is a restriction upon enforceability of agreements. In some cases an enforcement order must be sought from the court (see CCA 1974, s 127(1)) or an order must be obtained from the OFT (see CCA 1974, s 40).

 

In other cases, a creditor ‘is not entitled to enforce’ an agreement as a consequence of non-compliance with a statutory duty (see, eg, CCA 1974, ss 77(4), 78(6), 79(3), 85(2) and 97(1)): in yet other cases he ‘is not entitled to enforce’ the agreement if he has failed to serve a statutory notice (see CCA 1974, ss 76 and 9 or must serve a notice before he ‘can become entitled’ to take certain steps to enforce the agreement (see CCA 1974, s 87).

 

Quite apart from the question whether certain of these sanctions may be treated in themselves as ‘requirements’ for the purposes of CCA 1974, s 170(1) (see the note ‘A breach of any requirement’ above) the question arises what significance is to be read into the different forms of ‘sanction’ and the different words used to impose them. In particular, where the Act provides that a creditor is ‘not entitled’ to enforce an agreement, or must serve a notice before he can become entitled to do so, a natural inference is that any attempt to enforce the agreement must be wrongful, vis-à-vis the debtor (for example, a contractual right to repossession of goods will be suspended); if so, the debtor may resist judicial or extra-judicial enforcement (but if he is unable to prevent the creditor from enforcing the agreement, eg by preventing further drawings on a facility, is he entitled to redress for any consequent loss?)

 

I believe (because Tinks is to be envied for having Goode at the tips of fingers I assume to belong to a lady Cagger and who very kindly PMed me the whole shooting match from Goode under section 170) that what is said above is an extract relating to civil sanctions from the relevant passage of Goode in regard to section 170.

 

That being so, I first note the absence of any reference to an injunction, both in this shortened section or in the shooting match PNed to me. Second, I was very pleased to read the following which I regard as helpful:

 

'where the Act provides that a creditor is ‘not entitled’ to enforce an agreement, or must serve a notice before he can become entitled to do so, a natural inference is that any attempt to enforce the agreement must be wrongful, vis-à-vis the debtor (for example, a contractual right to repossession of goods will be suspended)'

 

The 'natural inference' referred to is, to my mind, an inference to be drawn from the ordinary meaning of the word 'enforce' as I discussed. Not some special meaning defined in the Act. Further, Goode's view of 'enforce' is not confined to the narrow interpretation espoused by Simon Brown, but rather, to the wider interpretation I advanced relating to 'effort' or 'endeavour' and by which the creditor 'strived to enforce' since, as Goode suggests: 'a natural inference is that any attempt to enforce the agreement must be wrongful, vis-à-vis the debtor.'

 

Readers of Simon Brown's judgment are none the wiser as to what would amount to lawful enforcement in the context of a failure to comply with a section 78(1) request.

 

It had ocurred to me that perhaps after taking the legal proceedings which Simon Brown found did not constitute 'enforcement', that perhaps at the conclusion of those proceedings, at the point where the Judge announced the judgment of the court, might it then be possible for the debtor to say' you can't enforce.'

 

But that would be a nonsense. For the enforcement contemplated at that point in time would be the enforcement of a judgment of the court, not the agreement.

 

I am really struggling to figure out what might be lawfully enforced (and if so, by what steps) where a section 78(1) request is ignored during the currency of the agreement.

 

Any one care to tell me?

 

x20

Edited September 7, 2008 by surfaceagentx20

[tinkerbell20]

Thanks very much for that Tinks.

 

Tidied up, Tinks' quote from Goode looks like this:

 

Civil sanctions may take the form of liability in damages (see CCA 1974, s 92(3)) or to make restitution (see CCA 1974, s 91). The commonest form of sanction, however, is a restriction upon enforceability of agreements. In some cases an enforcement order must be sought from the court (see CCA 1974, s 127(1)) or an order must be obtained from the OFT (see CCA 1974, s 40).

 

In other cases, a creditor ‘is not entitled to enforce’ an agreement as a consequence of non-compliance with a statutory duty (see, eg, CCA 1974, ss 77(4), 78(6), 79(3), 85(2) and 97(1)): in yet other cases he ‘is not entitled to enforce’ the agreement if he has failed to serve a statutory notice (see CCA 1974, ss 76 and 9 or must serve a notice before he ‘can become entitled’ to take certain steps to enforce the agreement (see CCA 1974, s 87).

 

Quite apart from the question whether certain of these sanctions may be treated in themselves as ‘requirements’ for the purposes of CCA 1974, s 170(1) (see the note ‘A breach of any requirement’ above) the question arises what significance is to be read into the different forms of ‘sanction’ and the different words used to impose them. In particular, where the Act provides that a creditor is ‘not entitled’ to enforce an agreement, or must serve a notice before he can become entitled to do so, a natural inference is that any attempt to enforce the agreement must be wrongful, vis-à-vis the debtor (for example, a contractual right to repossession of goods will be suspended); if so, the debtor may resist judicial or extra-judicial enforcement (but if he is unable to prevent the creditor from enforcing the agreement, eg by preventing further drawings on a facility, is he entitled to redress for any consequent loss?)

 

I believe (because Tinks is to be envied for having Goode at the tips of fingers I assume to belong to a lady Cagger and who very kindly PMed me the whole shooting match from Goode under section 170) that what is said above is an extract relating to civil sanctions from the relevant passage of Goode in regard to section 170.

 

That being so, I first note the absence of any reference to an injunction, both in this shortened section or in the shooting match PNed to me. Second, I was very pleased to read the following which I regard as helpful:

 

'where the Act provides that a creditor is ‘not entitled’ to enforce an agreement, or must serve a notice before he can become entitled to do so, a natural inference is that any attempt to enforce the agreement must be wrongful, vis-à-vis the debtor (for example, a contractual right to repossession of goods will be suspended)'

 

The 'natural inference' referred to is, to my mind, an inference to be drawn from the ordinary meaning of the word 'enforce' as I discussed. Not some special meaning defined in the Act. Further, Goode's view of 'enforce' is not confined to the narrow interpretation espoused by Simon Brown, but rather, to the wider interpretation I advanced relating to 'effort' or 'endeavour' and by which the creditor 'strived to enforce' since, as Goode suggests: 'a natural inference is that any attempt to enforce the agreement must be wrongful, vis-à-vis the debtor.'

 

Readers of Simon Brown's judgment are none the wiser as to what would amount to lawful enforcement in the context of a failure to comply with a section 78(1) request.

 

It had ocurred to me that perhaps after taking the legal proceedings which Simon Brown found did not constitute 'enforcement', that perhaps at the conclusion of those proceedings, at the point where the Judge announced the judgment of the court, might it then be possible for the debtor to say' you can't enforce.'

 

But that would be a nonsense. For the enforcement contemplated at that point in time would be the enforcement of a judgment of the court, not the agreement.

 

I am really struggling to figure out what might be lawfully enforced (and if so, by what steps) where a section 78(1) request is ignored during the currency of the agreement.

 

Any one care to tell me?

 

x20

In other cases, a creditor ‘is not entitled to enforce’ an agreement as a consequence of non-compliance with a statutory duty (see, eg, CCA 1974, ss 77(4), 78(6), 79(3), 85(2) and 97(1))

 

 

Goode appears to be saying that if a creditor doen't comply with 78(6) then he 'is not entitled to enforce' the agreement?

[surfaceagentx20]

That would be my view too Tinks.

 

To support my running theory that Simon Brown defined 'enforce' too narrowly, imagine that during the currency of the agreement and whilst a section 78(1) request is outstanding, the creditor decides to enforce the agreement owing to the default of the debtor, regardless of what is said in section 78(6).

 

In those circumstances, the creditor will serve a default notice under section 87 and which default notice must be in prescribed form as provided for in section 88. For the default notice to be in prescribed form the creditor will be obliged to incorporate into the notice the words prescribed by the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983.

 

Schedule 2 Regulation 4 compels the use of the following statement:

 

"IF THE ACTION REQUIRED BY THIS NOTICE IS TAKEN BEFORE THE DATE SHOWN NO FURTHER ENFORCEMENT ACTION WILL BE TAKEN IN RESPECT OF THE BREACH".

 

To my mind, the parliamentary draftsman clearly regarded, by his requiring the words NO FURTHER ENFORCEMENT ACTION to be included in the default notice, that

 

[1] the service of the default notice was of itself a form of enforcement action, for why else would there be a risk of 'further' enforcement action to follow if the act of serving the default notice was other than enforcement action?, and

 

[2] that the steps which the creditor would be at liberty to take if the requirement of the default notice were not complied with would constitute 'Further Enforcement Action'

 

If enforcement action has been taken by the service of the default notice and non-compliance would lead to 'further Enforcement action' aren't both therefore steps to 'enforce the agreement', such steps being expressly forbidden under section 78(6).

 

Like I said earlier, nowhere in his judgment does Simon Brown say what that intended narrow meaning (of 'enforce') was, nor what would constitute 'enforce' within the meaning of section 78.

 

The more I look into it the more I conclude Simon Brown was wrong on his narrow, undefined definition. In fact, I am now having difficulty in figuring out how he could have come to the conlcusion he did and I am wondering therefore whether I have made an assumption too many. May be I ought to have assumed that Tesco were seeking to enforce the agreement following termination of it by the Rankines.

 

I'll have yet another look at the decision for clues.

 

x20

[tinkerbell20]

That would be my view too Tinks.

 

To support my running theory that Simon Brown defined 'enforce' too narrowly, imagine that during the currency of the agreement and whilst a section 78(1) request is outstanding, the creditor decides to enforce the agreement owing to the default of the debtor, regardless of what is said in section 78(6).

 

In those circumstances, the creditor will serve a default notice under section 87 and which default notice must be in prescribed form as provided for in section 88. For the default notice to be in prescribed form the creditor will be obliged to incorporate into the notice the words prescribed by the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983.

 

Schedule 2 Regulation 4 compels the use of the following statement:

 

"IF THE ACTION REQUIRED BY THIS NOTICE IS TAKEN BEFORE THE DATE SHOWN NO FURTHER ENFORCEMENT ACTION WILL BE TAKEN IN RESPECT OF THE BREACH".

 

To my mind, the parliamentary draftsman clearly regarded, by his requiring the words NO FURTHER ENFORCEMENT ACTION to be included in the default notice, that

 

[1] the service of the default notice was of itself a form of enforcement action, for why else would there be a risk of 'further' enforcement action to follow if the act of serving the default notice was other than enforcement action?, and

 

[2] that the steps which the creditor would be at liberty to take if the requirement of the default notice were not complied with would constitute 'Further Enforcement Action'

 

If enforcement action has been taken by the service of the default notice and non-compliance would lead to 'further Enforcement action' aren't both therefore steps to 'enforce the agreement', such steps being expressly forbidden under section 78(6).

 

Like I said earlier, nowhere in his judgment does Simon Brown say what that intended narrow meaning (of 'enforce') was, nor what would constitute 'enforce' within the meaning of section 78.

 

The more I look into it the more I conclude Simon Brown was wrong on his narrow, undefined definition. In fact, I am now having difficulty in figuring out how he could have come to the conlcusion he did and I am wondering therefore whether I have made an assumption too many. May be I ought to have assumed that Tesco were seeking to enforce the agreement following termination of it by the Rankines.

 

I'll have yet another look at the decision for clues.

 

x20

 

 

I was told by someone that the Rankines had presented the arguments badly and that the Judge had not given them any 'slack' for being LIP's.............quite likely given the judges vitriolic summing up of their character.

[B3rty]

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."

 

This is the wrong SI it should be "the Consumer Credit (Cancellation Notices and Copies of Documents) Regulations 1983" which does have a regulation 3(1) and 3(2).

How do you think that effects the judgement in terms of using the wrong reference?

[tinkerbell20]

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."

 

This is the wrong SI it should be "the Consumer Credit (Cancellation Notices and Copies of Documents) Regulations 1983" which does have a regulation 3(1) and 3(2).

 

How do you think that effects the judgement in terms of using the wrong reference?

 

 

It severely weakens it I would think.

[B3rty]

Yes my thoughts exactly...I may be in in court soon against a claimant using the Rankine judgement...I will be using this to put doubt into the proceeding regarding the judgement ...also the case law Wilson & Hurstanger as pointed out by PT is from a higher court so should take president...however my ace card is there isn't a CCA...I have a letter from the OC to say this is lost...

 

The claimant is saying they dont need this as the agreement was at an end as per the Rankine judgement...

[tinkerbell20]

Yes my thoughts exactly...I may be in in court soon against a claimant using the Rankine judgement...I will be using this to put doubt into the proceeding regarding the judgement ...also the case law Wilson & Hurstanger as pointed out by PT is from a higher court so should take president...however my ace card is there isn't a CCA...I have a letter from the OC to say this is lost...

 

The claimant is saying they dont need this as the agreement was at an end as per the Rankine judgement...

 

 

Well thats absolute cobblers. At the very least they have to provide a agreement containing prescribed terms signed by you to comply with the CCA

[creditcardmug]

Yes my thoughts exactly, its one thing to say the agreement is at an end so we dont have to provide it, but surely to be able to enforce any sort of debt there must be a contract of some kind before the court?

[tinkerbell20]

Yes my thoughts exactly, its one thing to say the agreement is at an end so we dont have to provide it, but surely to be able to enforce any sort of debt there must be a contract of some kind before the court?

 

 

They only don't have to find it under a s.78 request & frankly I think that any enforcement by a creditor after they have terminated it is still trying to enforce it under a running agreement. The Rankine decision was badly flawed and wil inevitably be relooked at by future cases

[surfaceagentx20]

I’m not fully convinced that it is an absolute rule that the creditor must be able to produce the executed agreement in all cases in which it seeks to enforce the agreement. Not right now at any rate. I’m playing devil’s advocate here but hear me out.

 

Imagine a case was brought to recover money and arrears under a HP agreement concerning a car. Would it be necessary for the creditor to bring the executed agreement into court to show that the agreement concerned, say, a Ford Mondeo registered number XXXX XXX where it was able to show by other extrinsic evidence that on a balance of probability the vehicle had been so supplied? Who would step into the witness box and flatly deny ever taking the car.? It seems to me the only person to do that would be a person who told the truth or a bare faced liar.

 

Would it be necessary to show the debtor had agreed to pay £300.00 pcm where extrinsic evidence showed the debtor paying £300.00 by direct debit every calendar month until payments stopped? Who would enter the witness box and say the £300.00 pcm were payments to some other creditor of his? Again, only the person telling the truth who, for back up, would produce the real recipient of this sum. How would the debtor overcome the situation where the £300.00 pcm were payments made into the account of the creditor?

 

It seems to me that the situation where production of the actual agreement was required for scrutiny by the court would be where either

 

[1] the debtor denied ever entering into the agreement, or

[2] the debtor claimed the agreement was executed improperly and therefore was unenforceable.

 

As to [1] the burden will be upon the creditor to prove that on a balance of probability, the debtor entered into an agreement to take the Mondeo on HP at £300.00. The creditor may do that by producing the executed agreement. But it is not the only way since as I argue, he may be able to do this by extrinsic evidence.

 

As to [2], in such a situation, it would be the debtor making the allegation of unenforceability, not the creditor. The burden of proof would be upon the debtor to show the agreement had been improperly executed rendering it unenforceable, not the creditor.

 

It is a perverse statement in pleading to say something in the Defence like ‘The agreement was executed improperly, is unenforceable and the Defendant puts the Claimant to strict proof.’ To strict proof of what? The creditor is making no allegation in relation to the unenforceability of the agreement. It is the debtor who makes the allegation and it will be for the debtor to discharge the burden of proof on a balance of probability. It will be for the debtor, not the creditor to bring the agreement into court to establish the truth of the allegation. If the debtor is unable to, the debtor will be unable to back up his allegation unless he too relies on extrinsic evidence to back up his allegation. If he is unable to produce either he will be unable to discharge the burden.

 

What’s wrong with that?

 

As to the ‘wrong reference’ Simon Brown would undoubtedly say ‘Did I use the wrong reference? Oh so I did. Where I said that I meant this.’ It would, so long as it was a clear case of unintentional mistake, be a judicial slip no more. B3rty knows Brown made a mistake and that where he said ‘that’ he meant ‘this.’

 

Just my two cents keeping the debate alive.

 

x20

Edited September 10, 2008 by surfaceagentx20

[miaow99]

In the case of [2], would the debtor be able to bring details of other cases (with different debtors) where that particular creditor had been shown to be using unenforceable agreements?

[surfaceagentx20]

That would be details of cases decided by judges in courts of law, or to the satisfaction of a regulatory body right?

 

I would have thought that in a proper case such evidence going to the issue would be admissable. Quite what weight was to be attached to the value of that evidence would be a matter for the Judge. I would imagine such judicial findings would be reported and further investigated such that a witness from an investigative body might produce that evidence.

 

Wouldn't such an oufit expect to have its licence swiped?

 

If not decided law cases etc, then 'shown' to whom?

 

x20

[andrew1]

Under the revised CCA errors in the execution of Agreements are treated differently than with earlier agreements. However, it is the Debtors responsibility and onus to prove the agreement unenforceable. No creditor is going to take his/her agreement into court to plead it's unenforceable for obvious reasons - ( be nice if they did, save us all a lot of trouble and money ) but the case law is there stating that if an agreement is wrong, then argument could be made for the finance company to have provided the monies as a 'gift' and the debtors repayment a 'mistake' - sounds fanciful, but it's there and Sir Francis Bennion who drafted the original CCA has written much about the fact that if a Creditor cannot be bothered to ensure all the prescribed terms are not included or the agreement does not adhere to the CCA then the creditor should suffer the consequences of having it deemed irredeemedly unenforceable. It does sound tough on the creditors and as I once said when putting the very same argument to a judge a couple of years back " I have a moral issue here m'lord, because I had the funds, but the judge said " we are not here to judge morals, just the facts".

 

One should not lose sight of the other issue here of these finance companies, many of the companies are huge and have teams of legal advisors who really should know better in making agreements as tight as a ducks a*se as far as the CCA and the laws are concerned. Many are enforced remember that, when there is no legal right to enforce them if they were scrutanised properly. Just think of the number of people who have had their homes repossessed as a result of defaulting on a loan - now ask yourself if that should have happened if the agreement was unenforceable?

 

I think we are hijacking joghuj's thread, but it's an interesting and very valid debate this.

 

 

Sarah

[surfaceagentx20]

Andrew1, at risk of persisting in the hijack, it would seem you agree with me. The onus is on the debtor to prove unenforceability. And the only sure fire way of doing that is to bring the agreement into court and highlight the agreement's shortcomings. In Wilson v First County Trust [2001] (the 'gift' case), it was Penelope Wilson who first brought the proceedings in the county court and who was able to discharge the burden. The agreement was plainly before the court for scrutiny.

 

x20

[andrew1]

Andrew1, at risk of persisting in the hijack, it would seem you agree with me. The onus is on the debtor to prove unenforceability. And the only sure fire way of doing that is to bring the agreement into court and highlight the agreement's shortcomings. In Wilson v First County Trust [2001] (the 'gift' case), it was Penelope Wilson who first brought the proceedings in the county court and who was able to discharge the burden. The agreement was plainly before the court for scrutiny.

 

x20

 

Yes I do, but I'd also stress as a final point that many of these cases get brought before a County Court Judge and the finance companies, if they don't settle before it gets to court will throw Barristers at this and this is where LIP's lose as there are a few specialist Consumer Debt Barristers and they tie Judges with scant knowledge of the Act around their little fingers. These challenges HAVE to be done with skilled knowledge as the CCA is complex when it comes to these issues, very complex.

 

Sarah

[B3rty]

And that case Law is from a higher court including Hurstanger which I have also used.....

 

I am not concerned about the legal argument its just that Rankine is an irritation and being used by DCAs now to scare folk who may not understand the bigger picture

 

We all know that on the wrong day the wrong judge could go the other way despite the best legal argument in the world little elements like the wrong SI referrence just help to build the picture

 

I went to court with one DCA and won...I settled with another out of court for a F&F and I have had 2 (same DCA) drop their action due to my legal arguments presented through correspondance with their legal dept or to be precise their paralegal.

 

The research I did for this was invaluable and I have a defence in all cases based on 127(3) although ironically the case I won they had produced something that resembled an agreement....its just that now if a claimant starts to quote the Rankine case I (we) need to be prepared in the best possible way as we dont want to be seen crititising Judge Brown in front of another Judge and this needs to be handled with tact.

[miaow99]

@X20 - cases that have been decided against the creditor in court are exactly what I am referring to. However, as most of them seem to be decided in county court, are they still admissable?

 

From what you are saying here, it sounds like pursuing action against the creditor (injunction?) based on the CCA is actually a better option than waiting to be sued. Seeing as the burden of proof is on the debtor anyhow regards unenforceability, is not attack the best form of defence in the situation?

[volvodriver]

The creditor is required to bring to court on enforcement the original, signed credit agreement yes or no?

 

There are clear tests which can determine the enforceability of the agreement yes or no?

 

If its there, and enforceable the debtor pays, if its not, or not the creditor has made a gift yes or no

 

Its being complicated by devious creditors, and yes debtors, and manipulative lawyers who treat the court process and their adversaries with utter contempt.

 

Its not justice and it really hasn't moved on since the days of the local squire/magistrate.

 

It makes me not proud to be British.

[joghuj]

I'm trying to get an application off to Bar Probono later today after seeing local CAB to authorise it. Can anyone tell me if there is a standard time to appeal against court decisions?

 

Also Surfaceagent, bearing in mind the recent discussions on this thread, do you maintain that there is little chance of successful appeal?

 

Cheers

[volvodriver]

As a further comment, surely if courts were to check that claims made were compliant with CPR when submitted, a lot of cases would never get to trial - therefore no more staff would be needed to make these checks.

 

Justice is then at the court where it should be, not in the hands of large institutions who have no regard for anything but their profit.

 

We have reaped what we have sown, and we the electorate have allowed this to happen.

[pt2537]

I'm trying to get an application off to Bar Probono later today after seeing local CAB to authorise it. Can anyone tell me if there is a standard time to appeal against court decisions?

 

Also Surfaceagent, bearing in mind the recent discussions on this thread, do you maintain that there is little chance of successful appeal?

 

Cheers

52.4 (1) Where the appellant seeks permission from the appeal court it must be requested in the appellant’s notice.

(2) The appellant must file the appellant’s notice at the appeal court within –

(a) such period as may be directed by the lower court (which may be longer or shorter than the period referred to in sub-paragraph (b)); or

(b) where the court makes no such direction, 21 days after the date of the decision of the lower court that the appellant wishes to appeal.

(3) Unless the appeal court orders otherwise, an appellant's notice must be served on each respondent –

(a) as soon as practicable; and

(b) in any event not later than 7 days,

 

after it is filed.

 

 

 

 

 

this covers the time limits for appeals

[pt2537]

I'm trying to get an application off to Bar Probono later today after seeing local CAB to authorise it. Can anyone tell me if there is a standard time to appeal against court decisions?

 

Also Surfaceagent, bearing in mind the recent discussions on this thread, do you maintain that there is little chance of successful appeal?

 

Cheers

sorry must have missed it but did x20 say you have little prospect of success?

 

i would disagree, especially if you have the support of the Bar Pro Bono dept, the judge made some grave errors in the judgment, that is so obvious , i think you would have a reasonable prospect of success however no one can absolutly gaurantee success

 

I think the main thing is that you should secure legal assistence before going through with the appeal

[tinkerbell20]

I’m not fully convinced that it is an absolute rule that the creditor must be able to produce the executed agreement in all cases in which it seeks to enforce the agreement. Not right now at any rate. I’m playing devil’s advocate here but hear me out.

 

Imagine a case was brought to recover money and arrears under a HP agreement concerning a car. Would it be necessary for the creditor to bring the executed agreement into court to show that the agreement concerned, say, a Ford Mondeo registered number XXXX XXX where it was able to show by other extrinsic evidence that on a balance of probability the vehicle had been so supplied? Who would step into the witness box and flatly deny ever taking the car.? It seems to me the only person to do that would be a person who told the truth or a bare faced liar.

 

Would it be necessary to show the debtor had agreed to pay £300.00 pcm where extrinsic evidence showed the debtor paying £300.00 by direct debit every calendar month until payments stopped? Who would enter the witness box and say the £300.00 pcm were payments to some other creditor of his? Again, only the person telling the truth who, for back up, would produce the real recipient of this sum. How would the debtor overcome the situation where the £300.00 pcm were payments made into the account of the creditor?

 

It seems to me that the situation where production of the actual agreement was required for scrutiny by the court would be where either

 

[1] the debtor denied ever entering into the agreement, or

[2] the debtor claimed the agreement was executed improperly and therefore was unenforceable.

 

As to [1] the burden will be upon the creditor to prove that on a balance of probability, the debtor entered into an agreement to take the Mondeo on HP at £300.00. The creditor may do that by producing the executed agreement. But it is not the only way since as I argue, he may be able to do this by extrinsic evidence.

 

As to [2], in such a situation, it would be the debtor making the allegation of unenforceability, not the creditor. The burden of proof would be upon the debtor to show the agreement had been improperly executed rendering it unenforceable, not the creditor.

 

It is a perverse statement in pleading to say something in the Defence like ‘The agreement was executed improperly, is unenforceable and the Defendant puts the Claimant to strict proof.’ To strict proof of what? The creditor is making no allegation in relation to the unenforceability of the agreement. It is the debtor who makes the allegation and it will be for the debtor to discharge the burden of proof on a balance of probability. It will be for the debtor, not the creditor to bring the agreement into court to establish the truth of the allegation. If the debtor is unable to, the debtor will be unable to back up his allegation unless he too relies on extrinsic evidence to back up his allegation. If he is unable to produce either he will be unable to discharge the burden.

 

What’s wrong with that?

 

As to the ‘wrong reference’ Simon Brown would undoubtedly say ‘Did I use the wrong reference? Oh so I did. Where I said that I meant this.’ It would, so long as it was a clear case of unintentional mistake, be a judicial slip no more. B3rty knows Brown made a mistake and that where he said ‘that’ he meant ‘this.’

 

Just my two cents keeping the debate alive.

 

x20

 

 

So in essence what you have said if i have read it right is that in all cases where creditors have unenforceable agreements they would be better off just saying we don''t have a copy and thereby would be allowed to enforce an unenforceable agreement because for arguments sake they could produce statements showing you have had money from them. :-? Makes a mockery of the Wilson cases and the relevant COA & HOL rulings saying that they have to produce a piece of paper containing the prescribed terms with the debtors signature on and that if they haven't got an enforceable agreement that it is as if the Creditor made a gift to the Debtor of the money,then doesn't it :-?I guess the fact that the Consumer Credit Act is intended to protect the unwary borrower from the unscrupulous borrower is irrelevant too.:-? Well guess we all may as well pack up and go home because I reckon there will be vast numbers of lenders now no longer able to find their agreementsin response to the SAR request - :???: