un1boy - N1 issued for breach of CCA request

[tinkerbell20]

how about visiting merseyside...........................

[noomill060]

Gosh PT- you get around as much as the mysterious P. Brown and his friends do (or dont!), on their personal collection visits for NCO (Europe) Ltd!

[alanfromderby]

Ok, but again, I thought that I had a limited time to appeal - do I need to chase this from the court?!

 

It is 21 days from the date of the order - unless the judge gave a shorter period.

[un1boy]

It is 21 days from the date of the order - unless the judge gave a shorter period.

 

Ok, it's been 7 days - but I need to wait for the order papers to come through the post, don't I? Should I call the court to chase?

[un1boy]

I am going to refer the bank's sols to the Solicitor's regulation Authority because I believe they have not acted with integrity.

 

Would this have to be done after the appeal?

 

Also, I read on another thread about the Fraud Act (which I have read previously, but never twigged that it could potentially be used in this case!)

 

Any thoughts on whether taking the bank to court over the following could work:

 

Sec/3 Fraud by failing to disclose information.

A person is in breach of this section if he-

 

a/ Dishonestly fails to disclose to another person information

which he is under a legal duty to disclose and

b/ intends,by failing to disclose the information-

(1) To make a gain for himself or another

or

(11) To cause loss to another or to expose another to a

risk of loss.

 

Sec/4 Fraud by abuse of position.

 

IE - they know it's unenforcable due to being a Consumer Credit Licence (CCL) holder. the above is pretty self-explanatory - any thoughts?

 

eg:

a/ Dishonestly fails to disclose to another person information which he is under a legal duty to disclose and

 

Dishonestly failed to provide confirmation that the agreement is unenforcable and says that they provided a statement of account as required under sec 78 by sending me statements

 

b/ intends,by failing to disclose the information-

(i) To make a gain for himself or another

or

(ii) To cause loss to another or to expose another to a

risk of loss.

 

Both of the above are relevant - but I think (ii) would be the on to pursue because they have caused a loos to me and exposed me to a risk of loss that is not intended by law and which is backed up by rulings made by the House of Lords (HoL).

Sec/4 Fraud by abuse of position.

 

I want to sort the appeal out first.....but thought this could be an option?!

Edited August 29, 2008 by un1boy

[alanfromderby]

It may be worth it - I have been in a similar position, and they weren't going to send out the N460 until I said I specifically needed it.

[un1boy]

It may be worth it - I have been in a similar position, and they weren't going to send out the N460 until I said I specifically needed it.

 

Ok Alan, I'll call them on Monday. It wouldn't surprise me if they say that to me - although the judge apparently made a note that I would be appealing to the CJ and for the forms ot be sent to me - I haven't even got the sealed order yet!

[FunkyFox]

I'm really sorry to read about your experience. Very interested to read about what happens next.

 

Very best of luck. FF

[redsue]

uniboy I found this information which may help with your appeal

 

© F A R Bennion Website: Francis Bennion -

 

Doc. No. 2003.061 JPN008L 167 JPN (2003) 773

 

Any footnotes are shown at the bottom of each page

 

Consumer Credit Act 1974 s 127(3)

 

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.

 

from here

in order to cement the meaning of the above may we refer to the following :--

 

HOUSE OF LORDS

Lord Goff of Chieveley Lord Lloyd of Berwick Lord Hoffmann

Lord Hope of Craighead Lord Clyde

 

OPINIONS OF THE LORDS OF APPEAL FOR JUDGMENT IN THE CAUSE

 

INVESTORS COMPENSATION SCHEME LIMITED

 

(

APPELLANTS)

v.

 

WEST BROMWICH BUILDING SOCIETY AND OTHERS

 

(RESPONDENTS)

ON 19 JUNE 1997

 

House of Lords - Investors Compensation Scheme v. West Bromwich Building Socie

 

it was a case of "I saw this and thought of you"...

i hope it may be useful for you

[un1boy]

sorry Dad, only jsut got around to answering:

 

I just want to clear up the difference between filed and served. Filed is sending the papers to the court, served is when you received them. A small side point is that it is not when you actually received them, but dependant on the method of sending and the deemed date of service, which is set out in CPR 6. So in law you were not served with the skeleton until the day after the hearing by email. The service of the posted version depends on the date of posting.

 

Ok, well, they sent their skeleton arguments BY EMAIL to me the day before the trial, but I received them in the post the day OF the trial. They gave the docs to the court THE morning of the trial.

 

Each part of the Civil Procedure Rules has an accompanying Practice Direction, It amplifies the part and explains how it is to be followed. They are available on line at:

 

CPR - Parts and Practice Directions

 

 

great, I'm reading as we speak! So, (and I'm sorry for being thick here, but want to make sure I know EXAACTLY what to say with this appeal) how exactly should the practice direction be used?

 

 

The CCA2006 brought in significant changes by altering the CCA1974. But your agreement is subject to transitional provisions which means that existing agreements, like yours, still have the protection of s127(3) and the judge is barred from making the order she did. If you did not understand then we have not got this ground right - I am trying to balance between keeping them short and being clear.

 

Hi dad, I do understand the differences, I just wasn't sure where the CCA 2006 fitted in to it, but I do understand what you mean now by transitional provisions.

 

I can understand this and in the end it is a personal decision that you must take as you are the only one who knows your own circumstances and can balance the decision to appeal against the cost of not appealing. Whatever your decision people on the site can advise you. But CPR 27 is very clear about the costs of an appeal:

 

Don't worry, I'll definitely appeal - just need to make sure my argument is completely sound and that I say the things I need to say.

 

Yes, but you will have to ask for them in court after the judgement. I think the correct term is 'costs here and below'.

 

Ok, just like the bank did?!

 

They go in the N164 in section 5.

 

Great - I've downloaded the file/

 

This should be the sealed order and the N460. (Which should be an interesting read given that she has made such a pigs ear of the law). You need both of these documents before you can submit the appeal.

 

well, apprarently, the order is being drafted by the court today so I should get it in the next two days - do you want me to post it when I get it?

[un1boy]

Right guys, if I am filling in the N164 form:

the appeal ref number (I assume will be on the order?)

Section 1 and Section 2 I understand

Secion 3:

I have not been given permission to appeal

I am asking for a stay of execution for any orders made against me

Section 4:

It doens't include anything under the Human rights

I am askign for a stay of execution for orders made agaisnt me

I am lodging it within 21 days

I m not making any other applications

Section 5:

On grounds for appeal I am entering:

1. The Appellant was served with the Respondent's skeleton argument only 12 hours before the Hearing. This was unreasonable [and a breach of the trial directions]. The Judge refused to allow the Appellant to cite authorities to rebut the Respondent’s arguments as the authorities had not been served in advance of the trial. This meant that the parties were on an unequal footing in breach of CPR 1.1(2) (a). This is an appeal under CPR 52.11(3)(b).

 

2. The hearing related to a written agreement regulated by the Consumer Credit Act 1974. Practice Direction 16, 7.3(1) requires that a complete copy of the agreement should be attached to the claim form and the original(s) should produced at the hearing. Neither of these mandatory requirements was complied with and fatally undermines the claim form. This is an appeal under CPR 52.11(3)(b).

 

3. The Judge ordered the enforcement of a regulated consumer credit agreement, subject to the transitional provisions of the Consumer Credit Act 2006 so still subject to section 127(3) of the Consumer Credit Act 1974, which did not contain the the terms prescribed under Section 61(1) of the 1974 Act. In these circumstances the Judge was barred from ordering the enforcement of the agreement. This is an appeal under CPR 52.11(3)(a).

 

4. The Judge ordered the enforcement of a regulated consumer credit agreement where the Respondent had not complied with a request for information under section 78 of the Consumer Credit Act in that the Respondent did not produce the terms and conditions of the agreement or a statement in the format prescribed by section 78 of the Consumer Credit Act 1974. This is a breach of section 78(6) of the Consumer Credit Act 1974. This is an appeal under CPR 52.11(3)(a).

Section 6:

I am asking for the order to be set aside

Section 7:

not needed to be filled in

Section 8:

In support of my applications in Section 7, I wish to rely upon the following evidence:

Section 127, paragraph (3) of the CCA:

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).

The agreement disputed includes no prescribed terms and therefore does not comply with section 60(1).

60 Form and content of agreements

(1) The Secretary of State shall make regulations as to the form and content of documents embodying regulated agreements, and the regulations shall contain such provisions as appear to him appropriate with a view to ensuring that the debtor or hirer is made aware of—

(a) the rights and duties conferred or imposed on him by the agreement,

(b) the amount and rate of the total charge for credit (in the case of a consumer credit agreement),

© the protection and remedies available to him under this Act, and

(d) any other matters which, in the opinion of the Secretary of State, it is desirable for him to know about in connection with the agreement.

61 Signing of agreement

(1) A regulated agreement is not properly executed unless—

(a) a document in the prescribed form itself containing all the prescribed terms and conforming to regulations under section 60(1) is signed in the prescribed manner both by the debtor or hirer and by or on behalf of the creditor or owner, and

(b) the document embodies all the terms of the agreement, other than implied terms, and

© the document is, when presented or sent to the debtor or hirer for signature, in such a state that all its terms are readily legible.

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."

The judgement made in this case was based on the prescribed terms being in the terms and conditions for the agreement which the judge said would have been given to the Appellant at time of signing. As tested above, the prescribed terms have to be on the signature page, but even if it was the case that they were allowed to be in the terms and conditions, the defendant has failed to supply the appellant, court and trading standards with a copy of the terms and conditions relevant at the time. The judge made a ruling based on fact that the agreement is enforceable due to the prescribed terms being in the terms and conditions, despite not seeing a copy of them and despite the defendant confirming they did not have them.

What is the N460 form that has to be enclosed?

[un1boy]

can I update my skeleton argumetns for the appeal too?

[un1boy]

Also, how would it affet the appeal if I pay off the overdraft calim and not the credit card one?

 

would the judge look at this, or cann they not?

[AnimalMagic]

AFAIK you can always include a letter stating that payment is being made without predjudice to your contention that you do not owe the money.

Makes it clear you are not admitting the debt.

[un1boy]

AFAIK you can always include a letter stating that payment is being made without predjudice to your contention that you do not owe the money.

Makes it clear you are not admitting the debt.

 

sorry animal, I wasn't clear enough.

 

I have 2 claims - one for a credit card (where the agreement has my sig, but no prescribed terms) and one for an overdraft (where they have not sent the relevant docs under the OFT determination and have basically admitted that too).

 

Both were deemed enforcable by the judge.

 

the balance on the credit card is higher and I think I have a better chance of winning this calim on appeal.

 

I want to pay the overdraft balance immediately so that I don't get a CCJ and just be done with that particular claim. (they asked for 8% interest and seemed smug whilst doing it, but to be honest I think the interest rate was higher than this anyway - or would have been if I'd have taken a managed loan like they wanted me to -it would have been about 14%) so I think I should just pay this and be done.

 

I think I less chance of winning the overdraft on appeal becasue it's evennmore complicated than the credit card one and the bank completely misled the judge and she lapped it up.

 

To be hoenst, I can't be assed fighting them both at the same time - I'd rather jsut concentrate on the credit card.

 

What I need to know is if this would affect the appeal - although the claims were heard togther, they weren't consolidated so have seperate orders against thhem.

[AnimalMagic]

I don't know if it would affect the appeal at all, but I wouldn't think so - I have no knowledge in that area, just an interest in following your case. If you pay without predjudice, then you always have the option to fight in the future.

 

I would like you to fight on, but I do understand it can get you down - that's what they rely on. Anyway good luck...

[un1boy]

I don't know if it would affect the appeal at all, but I wouldn't think so - I have no knowledge in that area, just an interest in following your case. If you pay without predjudice, then you always have the option to fight in the future.

 

I would like you to fight on, but I do understand it can get you down - that's what they rely on. Anyway good luck...

 

hi animal - thanks for your interest in my case.

 

I would be interested what everyone thinks re the overdraft account - I just can't run the risk of losing this on appeal and being awarded their costs!

[dad]

Hi Uni,

 

Ok there are lots of questions to answer. I will try to cover them all.

 

Ok, well, they sent their skeleton arguments BY EMAIL to me the day before the trial, but I received them in the post the day OF the trial. They gave the docs to the court THE morning of the trial.

 

This may be more important than you think. It is irrelevant when you ACTUALLY received the documentation, what matters is when CPR 6 DEEMS that you received the documentation. From what you describe you were deemed to have received the documentation AFTER the hearing. See this Court of Appeal case for an explanation (At Para 10):

 

Cranfield & Anor v Bridgegrove Ltd. [2003] EWCA Civ 656 (14 May 2003)

 

In light of that I think that the first ground of appeal needs a slight improvement:

 

1. The Respondent, by CPR 6, was irrebuttably deemed to have filed his skeleton argument after the Hearing. The Appellant was irrebuttably deemed to have been served with the Respondent's skeleton argument after the Hearing. This was unreasonable, a breach of the trial directions and CPR 6. The Judge allowed the Respondent to use his skeleton argument but refused to allow the Appellant to cite well known authorities to rebut the Respondent’s arguments as the authorities had not been served in advance of the Hearing. This meant that the parties were on an unequal footing in breach of CPR 1.1(2) (a). This is an appeal under CPR 52.11(3)(b).

 

You might want to consider spliting this into two grounds for appeal - I am not sure either way.

 

The N164

 

the appeal ref number (I assume will be on the order?)

 

No leave this blank, when the appeal is issued the court will give you an appeal number.

 

Secion 3:

...

I am asking for a stay of execution for any orders made against me

 

I don't think this goes here.

 

Section 5: On grounds for appeal I am entering:

 

a. See my comments on 1 above. (Just check the trial directions did require the service of skeletons in advance of the hearing)

 

b. I think ground three can be more explicit:

3. The Judge ordered the enforcement of a regulated consumer credit agreement, subject to the transitional provisions in Schedule 3 paragraph 11of the Consumer Credit Act 2006 so still subject to section 127(3) of the Consumer Credit Act 1974, which did not contain the the terms prescribed under Section 61(1) of the 1974 Act. In these circumstances the Judge was barred from ordering the enforcement of the agreement by section 127(3) of the 1974 Act. This is an appeal under CPR 52.11(3)(a).

 

Section 7:

not needed to be filled in

 

You need to fill in Section 7 Part A if you want a stay. I did not need a stay so I am not sure how to word it. But i 'think' it should be something along the lines that you will have to take irreversible steps to comply eg go bankrupt, sell your house etc etc while the Respondent will not be prejudiced as the amount is small relative to his business and if he succeeds he is likely to be awarded commercial rates of interest, so will suffer no loss.

 

Section 8:

 

I think you have gone a bit awry here. This is the evidence to support why you want a stay on execution not the reasons for the appeal.

 

Again I am not sure what goes here, it depends on what you say in 7A above. But in the possible scenario I outline it would be evidence of your resources and the Respondent's business.

 

Also, how would it affet the appeal if I pay off the overdraft calim and not the credit card one?

 

would the judge look at this, or cann they not?

 

As they were two separate claims it cannot be raised in the appeal. Remember the appeal is about law and procedure which is why no new evidence is allowed other than in exceptional circumstances.

 

What is the N460 form that has to be enclosed?

 

The N460 is the form showing reasons the DJ gave for refusing you leave to appeal.

 

can I update my skeleton argumetns for the appeal too?

 

When you get permission to appeal you will need to submit a new skeleton argument based around the grounds of appeal as part of your appeal bundle.

 

Dad

Edited September 2, 2008 by dad
P!ss poor spelling

[dad]

Uni,

 

I have just re-read your thread and realised that the claim against you was a counterclaim. In that case I think ground 2 should read as:

 

2. The Respondent's Part 20 claim related to a written agreement regulated by the Consumer Credit Act 1974. Practice Direction 16, 7.3(1), requires that a complete copy of the agreement should be attached to the Part 20 claim and the original(s) should produced at the hearing. Neither of these mandatory requirements was complied with and fatally undermines the Part 20 claim. This is an appeal under CPR 52.11(3)(b).

 

By the way what is the date on their counterclaim?

Edited September 2, 2008 by dad

[un1boy]

Uni,

 

I have just re-read your thread and realised that the claim against you was a counterclaim. In that case I think ground 2 should read as:

 

2. The Respondent's Part 20 claim related to a written agreement regulated by the Consumer Credit Act 1974. Practice Direction 16, 7.3(1), requires that a complete copy of the agreement should be attached to the Part 20 claim and the original(s) should produced at the hearing. Neither of these mandatory requirements was complied with and fatally undermines the Part 20 claim. This is an appeal under CPR 52.11(3)(b).

 

By the way what is the date on their counterclaim?

 

Thanks Dad

[un1boy]

Here's the order:

 

Before Deputy District Judge blah blah

 

1. The Claimant's claim in case no xxx (The credit card) is dismissed and there be judgement for the defendant on the counterclaim in the agreed sum of xxx plus interet of xxx

 

2. The Claimant claims no xxx is dismissed and there be judgement for the defendant on the counterclim in the sum of xxx okus interest of xxx.

 

3. there be no order as to costs

 

4 Permission to appeal is refused because I have made findings of fat on the basis of the evidence presented to me and have correctly applied the law relating to the Consumer Credit Act 1974 and believe and were correctly exercised my discretion where necessary.

 

Firstly, what's the difference between a normal judge and a deputy one?

 

Also, I don't understand this bit: and believe and were correctly exercised my discretion where necessary.

 

One more thing, how has she applied the law correctly exactly?

[un1boy]

ok, here's her reasons for not letting me appeal:

 

 

Nature of hearing: Small claim final hearing. Claimant acknowledged he was indebted to defendant under the 2 agreements (1 relevant to each claim) but alleges indebtedness not enforcable because of breaches under Consumer Credit Act 1974

 

result of hearing/trial: Claimant's claim dismissed and judgement for defendant on counterclaim in agreed sum of xxx plus interest.

 

Claimant's application for permission to appeal: Refused

 

Brief reasons for decision to allow or refuse appeal:

 

I made findings of fact on the basis of the evidence presented to me, and referred to and applied the relevant terms of the consumer credit act 1974 and I believe I correctly exercised my discretion where necessary and as such I believe there is no prospect of a successful appeal.

 

Comments please

[davefirewalker]

Well you already know my opinion, she has come over as a biased and not very knowledgeable judge who should not be sitting in ANY court of law. I do not believe that she applied the law correctly, and only exercised her discretion in favour of the creditor. It was unlucky you got her.....

 

other than that you seem to be doing all you can to rectify this awfull state of affairs. I hope that the circuit judge allows the appeal.

 

Dave

[un1boy]

other than that you seem to be doing all you can to rectify this awfull state of affairs. I hope that the circuit judge allows the appeal.

 

Yeh, but what if he doesn't??

 

He has a judge there saying that she has seen the evidence and ruled based on fact (but has not confirmed what fact)

 

Are my appeal request paragraphs sufficient do you think?

[davefirewalker]

Yeh, but what if he doesn't??

 

He has a judge there saying that she has seen the evidence and ruled based on fact (but has not confirmed what fact)

 

Are my appeal request paragraphs sufficient do you think?

 

Having read your arguments they seem to put the "facts of the case" into doubt. They also raise the possibility that there were procedural failings and other inconsistencies and unless you get her boyfriend, anyone with an ounce of sense of justice would allow the appeal.

 

Dave