un1boy - N1 issued for breach of CCA request

[car2403]

What terms and conditions does this relate to? If any of the prescribed terms are in the T&C's and they are "attached", it's improperly exectued because the prescribed terms have to be in the signature document;

 

the case of Wilson and another v Hurstanger Ltd also confirmed that the prescribed terms must be within the agreement document

 

"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."

 

[Taken from one of Paul's posts]

 

If the prescribed terms are not in the signature document, s.127(3) is very relevant and Wilson v FCT outlines the courts powers in such circumstaces;

 

i also found this little gem in Sir Andrew Morrits Judgment in the Court of Appeal in the Wilson & FCT case, i note that the House of Lords have not disturbed this part of his judgment since the HoL only looked at the issue of S127 being compatible with the Human Rights Act

 

 

Quote:

“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;”

[Also another gem from Paul's posts]

[un1boy]

Car, the terms and conditions - no one knows. they have not supplied them to me, the court or trading standards.

 

So god knows!!

 

They have tried to basically say that I agreed I have the debt and I am now trying to get rid of it on a technicality (trying to paint a bad picture of me in front of the court).

[un1boy]

They only produced their skeleton arguments after receiving mine - so even if they submitted them to curt already, it was done less than 2 weeks ago and if they have submitted them to the court then they've held off to give them to me - disgraceful, huh?

 

Is there anything in the CPR/law re the deadline for entering skeleton arguments?

 

I got their bundle, then 3 days later their index along with a schedule of costs for 6k and then their skeleton arguments today (the night before the trial)

[un1boy]

What terms and conditions does this relate to? If any of the prescribed terms are in the T&C's and they are "attached", it's improperly exectued because the prescribed terms have to be in the signature document;

 

 

 

[Taken from one of Paul's posts]

 

If the prescribed terms are not in the signature document, s.127(3) is very relevant and Wilson v FCT outlines the courts powers in such circumstaces;

 

 

[Also another gem from Paul's posts]

 

Am I right in thinking that because a higher court has ruled on a similar case, a lower court can't rule differently? Or am I wrong?

[un1boy]

I'm surprised to be honest that they are taking it into a court room!!

[tinkerbell20]

Am I right in thinking that because a higher court has ruled on a similar case, a lower court can't rule differently? Or am I wrong?

 

The Court of Appeal & House of Lords judgments bind all lower courts. High court rulings are followed by lower courts and are only persuasive on other High court cases.

 

You need to amend your skeleton to confirm the case law re s.127 in Wilson v Hurstanger. You also need to plead that they have ommitted the prescribed terms and specify both the terms and the relevant schedule within the Consumer Credit regulations.

 

Should the judge rule against you where there are no prescribed terms you have a right of appeal on apoint of law. Make certain you ask the judge for permission to appeal there and then.

[un1boy]

The Court of Appeal & House of Lords judgments bind all lower courts. High court rulings are followed by lower courts and are only persuasive on other High court cases.

 

OK, well wilson v FCT was in the court of appeal and House of lords.

 

How will this work - will the judge say that, or will he still listen to all our arguments?

 

You need to amend your skeleton to confirm the case law re s.127 in Wilson v Hurstanger. You also need to plead that they have ommitted the prescribed terms and specify both the terms and the relevant schedule within the Consumer Credit regulations.

 

I, unfortunately, can't do that - they were submitted two weeks ago and the trial is tomorrow.

 

Should the judge rule against you where there are no prescribed terms you have a right of appeal on apoint of law. Make certain you ask the judge for permission to appeal there and then.

 

that's great to know - I was planning on asking for right straight away.

 

the judge I had at the allocation hearing knew what he was talking about and said that he felt the may have walked into sec 127 themselves by entering a counterclaim against me for the balances.

 

so, I guess we'll see.

[tendogs]

Subbing

[robcag]

 

I, unfortunately, can't do that - they were submitted two weeks ago and the trial is tomorrow.

 

 

Hi un1boy

 

Regarding their behaviour and the lateness of them serving their skeleton argument on you (and by email at that), couldn't you report this to the Judge and ask for an adjournment which would then give you a little more time? (I don't know if this is possible in these circumstances, but someone more knowledgeable might comment).

 

Good luck in court

 

Rob

[macie]

good luck

[car2403]

un1, the Judge will allow them to rely on their late submitted documents if you agree to it.

 

I would, as an adjournment will just drag this out and give them more time to mess you around. make sure the Judge knows how long this has gone on and what you've been through with them - if you win, he will have no choice but to award you costs, IMHO, because of their litigation style.

 

As for precedent, it will be binding, but the other side will try to distinguish your case from the Wilson cases - that's how they can get around the Judgments, by convincing the Judge that your case is so different from the facts of Wilson's that the Judgment shouldn't be applied strictly. They are on a hiding to nothing, IMHO.

 

I am sorry to have to say this, mate, but it all depends on which Judge you get now - the famous Judge lottery! If the Judge sees it their way, he probably will tell you to pay up. IMHO, that is all wrong and is reason to appeal - only mention that if you can't convince him of your argument and he gives Judgment against you, though, as the mention of appeal to a Judge makes him think you don't think he knows what he is doing! (Not good, and won't do you any favours if he's undecided which one of you to believe!)

[Multay]

subbing

[tinkerbell20]

How did it go???

[un1boy]

I lost!!

[un1boy]

The bank alleged that the prescribed terms could be in anothere doc (like the T&C's) but they also admitted they dont have them.

 

The judge agreed under the definition section if the CCA that the prescribed terms could be in another doc.

 

She ruled that as a matter of fact and on the balance of probability the agreements were enforcable (despite the court not seeing any prescribed terms) and also would not give me leave to appeal -I now have to apply for it to a circuit judge.....how does that work>?

[un1boy]

She wasn't very nice to me from the beginning - I knew she didn't like me!

 

she was up the sols arse to be honest.

 

She sent us away for the first hour because she has not had any reading time.

[un1boy]

She also granted their counterclams.

 

I asked for leave for appela on the basis that the court had not seen a document with the prescribed terms, but she said she had made a ruling on that so I couldn't appeal.

[un1boy]

They were relying on this:

 

189 Definitions

 

(1) In this Act, unless the context otherwise requires—

 

 

“embodies” and related words shall be construed in accordance with subsection (4);

(4) A document embodies a provision if the provision is set out either in the document itself or in another document referred to in it.

 

I can understand where they are coming from, but they did not provide the "other" document let alone any prescribed terms

[un1boy]

un1, the Judge will allow them to rely on their late submitted documents if you agree to it.

 

I wasn't asked -they submitted the docs this morning!!! the Judge just took them, but wouldn't take the extra cse law I put together after receiving their skeleton arguments alst night by email (today in the post!!)

[car2403]

I'm so sorry, un1, but that Judge Lottery strikes again.

 

These District Judges are a law unto themselves, IMHO - they have no knowledge of the CCA and "make" the law up based on their own bias and allow themselves to be lead down the garden path by their "buddies" who represent the other side.

 

I've heard this before - including in my own cases - "the bank wouldn't have made such a mistake", "such a big organisation couldn't have been so reckless", etc, etc... It's all a load of tosh.

 

And - refusing to give leave... who does she thinks she is, then?

 

I'm furious for you!

 

You do have grounds to appeal, though - the law surrounding where the prescribed terms is contained within the Act and the subsequent regulations and is not open to interpretation. Even the case law we've seen on this thread supports that view.

 

If you want to appeal, I'd advise you seek professional legal advice - getting a Judge to overturn another Judges' decision isn't going to be easy, at all. (It will be very costly if it doesn't work, also)

[un1boy]

I'll have to get legal advice now I think.

 

She kept saying that it cause banking chaos and that the bank did send things and that I, basically, waslying about not getting the default notices as I had contacted their DCA to make payment.

 

I explained that when you get a letter from a DCA threatening legal action, you make an arrangement!!

 

She said that because they had provided statements and stuff with all the required info iunder sec 88, they had complied.

[un1boy]

I'm so sorry, un1, but that Judge Lottery strikes again.

 

So am I mate, especially as she has not even seen the T&C's (I could maybe understand if she had, but they even admitted they dont know what was on them!!)

 

These District Judges are a law unto themselves, IMHO - they have no knowledge of the CCA and "make" the law up based on their own bias and allow themselves to be lead down the garden path by their "buddies" who represent the other side.

 

tell me about it - the last jusde I had knew his stuff, had read the wilson cases and even the act - we were laughing and stuff, he was great. he even saud that they may have walked into sec 127(3) by counterclaiming - and he was only allocating the cases.......the trial judge was a deputy judge, didnt read anything thouroughly at all and was all flustered.

 

I've heard this before - including in my own cases - "the bank wouldn't have made such a mistake", "such a big organisation couldn't have been so reckless", etc, etc... It's all a load of tosh.

 

What happened to your cases where this happend? Am I right that they can't enforce the court Judgement whilst I want to appeal?

 

And - refusing to give leave... who does she thinks she is, then?

 

Yeh, that was I thought - she told me I had to give her a good enough reason....when I said that they were relying on the prescribed terms being in the T&Cs but the court havent seen them and therefore the fact they were in there was hearsay, she said - it's not hearsay, I've made a ruling based on fact. (I thought, what effing fact?!!)

 

I'm furious for you!

 

I'm knackered mate, truly bloody knackered - another "unauthorised" day of work too -the barstewards!! (the court, not work! )

 

You do have grounds to appeal, though - the law surrounding where the prescribed terms is contained within the Act and the subsequent regulations and is not open to interpretation. Even the case law we've seen on this thread supports that view.

 

Where is it in the act though? Re the prescribed terms having to be on the sig doc?

 

If you want to appeal, I'd advise you seek professional legal advice - getting a Judge to overturn another Judges' decision isn't going to be easy, at all. (It will be very costly if it doesn't work, also)

 

Think I'll have to find one of those no win no fee guys - the bank have all my money!!

[car2403]

If they've admitted to not having the prescribed terms, how can they prove they are accurate?

 

the case of Wilson and another v Hurstanger Ltd also confirmed that the prescribed terms must be within the agreement document

 

"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."

 

This is just one of basis on which you can form an appeal.

[un1boy]

I referred her to that but she was basically saying that the CCA allows the terms to be in another document (IE, terms and conditions) so the referral to a single document above means that they were in a "single document"

 

I don't know how they can prove the prescribed term are accurate mate? but the judge wanst having any of it. She hadnt even read anything the bundles - despite having them for 2 weeks!!

[dad]

If you want to appeal, I'd advise you seek professional legal advice

Good advice

getting a Judge to overturn another Judges' decision isn't going to be easy, at all.

True - but not impossible.

(It will be very costly if it doesn't work, also)

Not True if it is an appeal from a small claims track hearing. I speak from experience. I lost the compound interest appeal against HBOS and only had to pay my own costs. Costs cannot be awarded in an appeal from a small claims track judgement unless you are unreasonable.

 

The key thing is you do not have very much time to file your appellant's notice. you have to get it in on time (even though you will not have all the documentation that needs to accompany it.)

 

The most difficult thing to get is a copy of the judgement. As a LiP the other side is required to provide you one under the CPR so I would email them pretty sharpish.

 

HTH

 

Dad