un1boy - N1 issued for breach of CCA request

[un1boy]

the two schedules kinda interact with each other

 

Schedule 1 is the general terms which must be in the agreement, if they are missing it is improperly executed and only enforceable by order of the court

 

Schedule 6 sets out the terms which MUST be within the agreement , if they arent there then S127(3) operates

 

Thanks mate!

[un1boy]

Guys,

 

I have amended my document, taking on board some of the bits from the post below Dad's comments.....can you check over this and let me know your thoughts? I can "revert" back to my original document at any time, but thought I would try to include some of the other issues raised in the one found by Milly.....

 

1. This is an appeal against an order by xx dated xx. The Appellant claims that the District Judge mis-directed herself as to the law and was wrong. As a result the order made was ultra vires. In addition there were failures to comply with the CPR and the Civil Bench Book which (i) fatally undermined the Respondent's counterclaim and (ii) resulted in the parties being on an unequal footing. Further there was a failure to comply with the provisions and case law of the European Convention on Human Rights and Fundamental Freedoms which resulted in the Appellant being denied a full and fair hearing. For example, she had not read either party’s skeleton arguments before the trial and used the first 45 minutes of the trial for this purpose and then relied on information brought up by the Respondent during the trial that was not included in their skeleton arguments, giving the appellant no time to consider his defence.

The hearing will take 2 hours.

 

THE TRIAL BUNDLE

 

2. References in this document prefixed (TB) are references to the trial bundle.

 

BACKGROUND TO THE CASE

 

[This section is to set out all the facts. It is very easy and tempting to start setting out your arguments here, but I suggest not]

 

 

• On xxx the Appellant took out an agreement with the Respondent
  
• .The Appellant applied under sec 78 for a copy of the agreement on xx in writing
  
• The Respondent sent an agreement with no prescribed terms and no T&C's, on xxx which was not sent within the time limit prescribed under sec 78(1) of the agreement (TB page xx para)
  
• The Appellant sent various letters explaining that it was unenforceable and withheld payment. (TB page xx para xx)
  
• The Appellant wrote asking for them to remove adverse data and close account in order to sort the problem without involving the court on xx (TB page xx para xx) 5.
  
• The Appellant issued court papers on xx requesting for the court to order the agreement’s unenforceability, removal of adverse credit bureaux data and costs incurred by the appellant (TB page xx para xxx)
  
• The Respondent entered a defence dated xxx which had no relevance to the Appellant’s claim as it was a standarised defence to bank charges claims.
  
• On xxx, the court ordered a stay of the Appellant’s claim on the grounds that it was a bank charges claim and should therefore be stayed in accordance with claim 2007 Folio 1196 in the Commercial Court.
  
• On xxx the Appellant wrote to the court explaining that the claim had no relation to bank charges and requested that the court set aside the original order and remove the stay
  
• On xxx the court set aside its original order and ordered the Respondent to enter a defence that complies with CPR 16.5 and if this was complied with, the Appellant would be entitled to enter a judgment request.
  
• On xxx the respondent entered an application for consolidation of both claims that were entered and for an extension of time for them to enter a defence.
  
• ON xxx the court made an order extending the Respondent’s time to enter a defence to 7 days after the determination of the consolidation hearing.
  
• The Respondent failed to serve their defence until xxx (one day after the order dated xxx)
  
• On 24th June 2008, the court ordered that the parties should exchange documents they wish to rely on no later than 8th August 2008.
  
• The Appellant sent his court bundle and skeleton arguments to the Respondent on xxx
  
• The Respondent sent their court bundle to the Appellant on xxx
  
• The Respondent submitted their skeleton arguments and some other documents that were relied upon for the trial to the appellant by email on xxx (the day before the trial) and I received them by post on xxx (the morning of the trial.) They were also only submitted to the court on the morning of the trial.
  
• On xxx, Deputy Judge xxxx started the hearing by explaining that she had to send both parties away for at least 45 minutes because she hadn’t had time to read any documents that had been submitted by either party due to work loads and as previous hearings had run late, she needed to attend a telephone hearing during that time, which is contrary to guidance given in the Civil bencj Book (August 2006) section 11.5.1
  
• Deputy Judge xxx asked both parties what they thought were the most important documents from their bundles she should read.
  
• Deputy judge xxx relied upon documents submitted by the Respondent on the morning of the trial and would not consider documents the Appellant had forgotten to include in his bundle.
  
• Deputy Judge xxxx based her judgment on information that was not included in the Respondent’s court bundle as their representative had “only thought of it on the train to the court”. The Judge made her judgment that based on the balance of probability, she considered original the terms and conditions would have included the prescribed terms required, despite the Respondent confirming during the trial that they had no copy of them and couldn’t confirm that they would have been included. She also confirmed that she would not give me leave to appeal, and when she asked me if I wanted to appeal later in the hearing, I explained that I wanted to appeal on the basis that even if the law allowed the prescribed terms to be included in the terms and conditions (which they don’t), that the terms and conditions would have to be present at the hearing, and given that the Respondent had confirmed they couldn’t say on oath the prescribed terms were the other document, I didn’t understand her judgment. Her response was that, in her opinion and as she had made an official judgment, the prescribed terms were in the terms and conditions. The Judge refused leave to appeal contrary to the guidance given in the Civil Bench Book (August 2006) section 5.6.
   
  
  

THE ISSUES

 

3. The issues in this claim are:

 

a. Did the Respondent comply with the Civil Procedure Rules in particular CPR 16 Practice Direction 16 paragraph 7.3?

b. Did the Respondent have a Consumer Credit Agreement which complied with the Consumer Credit Act 1974 and relevant subsequent Regulations in that it stated all prescribed terms correctly?

c. Did the Respondent prior to making the claim fulfil their obligations under Section 77 of the Consumer Credit Act 1974?

 

b. Did the Respondent have other documents required ie the terms and conditions relevant to the original agreement at the trial?

 

c. . Did the court’s refusal to comply with the provisions of the Civil Bench Book (2006) result in the Appellant being denied a full and fair hearing?

 

e. Should xxxx have based her judgment on information not contained in the Respondent’s skeleton arguments when the Appellant had no time

to prepare his defence?

 

f. Was xxxx consideration that section 127(3) of the Act does not apply to this agreement correct?:

 

g. Was xxxx’s consideration that under the balance of probability the original terms and conditions would have included the prescribed terms, despite the fact that the Respondent confirmed they don’t have a copy of them and can’t confirm if the prescribed terms would have been included in them, correct?

 

h. Did the Appellant have enough time to prepare his defence when he only received the Respondent’s skeleton arguments the night before the trial by email, and the afternoon after trial by post?

 

If the answer to any question is No then the appeal succeeds.

 

AUTHORITIES

 

4. The Claimant will cite the following authorities to establish the points of law below:

a. Wilson vs FCT Trust

i. Compliance with certain formalities is an essential prerequisite to enforcement of consumer credit agreements (TB page xx para xx);

ii. Where a creditor fails to comply with the CCA74, Parliament intended that the creditor should forfeit all rights under the agreement (TB page xx para xx);

 

b.Wilson v. Hurstanger [2007] EWCA Civ 299

i. Compliance with certain formalities is an essential prerequisite to enforcement of consumer credit agreements.

ii.Objective of the Consumer Credit (Agreements) Regulation 1983 Schedule 6 is to ensure that, as an inflexible condition of enforceability, certain basic minimum terms are included and above all that they cannot be in the slightest misstated.

c. Wilson and others v Secretary of State for Trade and Industry [2003] UKHL 40

i. Compliance with certain formalities is an essential prerequisite to enforcement of consumer credit agreements

ii. Where a creditor fails to comply with the CCA74, Parliament intended that the debtor should net a windfall gain ‘pour encourager les autres’

iii. The provisions of the CCA74 cannot be sidestepped either in equity or through the European Convention on Human Rights

d. Legislation

i. Consumer Credit Act 1974

ii. Consumer Credit (Agreements) Regulations 1983

 

e. Guidance

i. Civil Bench Book. August 2006

 

f. Before the European Court of Human Rights

Pronina v. Ukraine. Application No:63566/00 at para 25

Van den Hurk v Netherlands. Applicarion No:16034/90 at para 59

Van Kűck v. Germany. Application No:35968/97 at para 48

i. Domestic courts must give sufficient reasons for their decision to dismiss an argument without consideration.

ii. Domestic courts must make an analysis of the case before dismissing it.

iii. The court is under a duty to conduct a proper examination of the submissions, arguments and evidence adduced by the parties.

 

ALLEGATIONS

7. The Appellant alleges that:

 

a. The Respondent did not have the original credit agreement available for the court to examine. Such failure is in direct contravention of the requirements clearly laid down in the Civil Procedure Rules, in particular CPR 16 Practice Direction 16 paragraph 7.3. which states:

Where a claim is based upon a written agreement:

“a copy of the contract or documents constituting the agreement should be attached to or served with the particulars of claim and the original(s) should be available at the hearing”

b. The copy of the credit agreement does not comply with the requirements of the Consumer Credit Act 1974 and subsequent relevant Regulations in as much as it does not contain any of the prescribed terms and fails to meet the requirements of the regulations made under the Consumer Credit Act 1974

i. Consumer Credit Act 1974:

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.

ii. The definition of the prescribed terms is contained within the Consumer Credit (Agreements) Regulation 1983 Schedule 6

c. The Respondent should be aware the agreement is unenforceable due to the fact they are Consumer Credit License holders;

d. The Agreement produced by the respondent does not include the prescribed terms required by section 61(1)(a) as stated in Statutory instrument 1983 No 1553 “The Consumer Credit (Agreements) Regulations 1983”. (See TB page xx )

 

This therefore invokes section 127(3), which states:

 

127 Enforcement orders in cases of infringement

 

(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).

e. The Respondent has no rights to enforce the agreement and therefore no rights to request payment or process account data on the Appellant’s credit files without an agreement that conforms to the Act.

f. The District Judge contrary to the requirements of the Civil Bench Book (2006) and S.6 of the European Convention on Human Rights and Fundamental Freedoms denied the Appellant the opportunity to present their defence as stated within their trial bundle. By doing so the court infringed the Appellants rights under S.6. The Judges refusal to comply with the Civil Bench Book (2006) in respect of form N460 has prejudiced the successful outcome of the appeal.

THE OUTCOME

 

[in this section having taken the judge through the facts and law, then we tie it all back into the questions set above]

 

12. f. Did the Respondent have a Consumer Credit Agreement in accordance with the Consumer Credit Act, signed by the Appellant at the trial?

 

i. No, the agreement does not contain any of the prescribed terms required under Schedule 6 of The Consumer Credit (Agreements) Regulations 1983” such as:

• Amount of Credit
  
• Credit Limit
  
• Rate of interest
  
• Repayments
  
• The APR
  

• Did the Respondent comply with the Civil Procedure Rules in particular CPR Practice Direction 16 paragraph 7.3?
   
  No.
   
  The Respondent has admitted that the original agreement has been destroyed and that they were therefore unable to comply with CPR Part 16. They justify this on the grounds that due to the large number all documents are sent for copying and are then destroyed.
   
  The Respondent is a large commercial organization with the capability to know precisely what the Civil Procedure Rules require of them when making a claim as well as possessing the resources to ensure that original documents are stored until such time as they are no longer required.
   
  The fact that the original agreement has been destroyed fatally undermines the claim in as much as there is no means by which the Appellant or the Court may verify the validity of the claim.
  

• Did the Respondent have a Consumer Credit Agreement which complied with the Consumer Credit Act 1974 and relevant subsequent Regulations in that it stated all prescribed terms correctly?
   
  No.
   
  The prescribed terms referred to in Section 61 of the Consumer Credit Act 1974 are contained in Schedule 6 of the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553).
   
  If the agreement does not contain these terms or they are incorrectly stated then it does not comply with section 60(1) CCA 1974, the consequences of which means it is improperly executed and in respect to the prescribed terms the court is barred from making an enforcement order by operation of S.127 (3) of the Consumer Credit Act 1974.
  

• The authorities cited make it plain that their Lordships are explicit on the subject of incorrect prescribed terms and how if incorrectly stated the agreement is unenforceable.
   
  Wilson v. Hurstanger [2007] EWCA Civ 299 at para 11Tukey LJ agreed with the first instance judge who said in respect of the prescribed terms:
   
  “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 section 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; 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.”
   
  Wilson v First County Trust Ltd [2001] EWCA Civ 633 at para 26
  “The creditor must…be taken to have made a voluntary disposition, or gift, of the loan monies to the debtor. The creditor had chosen to part with the monies in circumstances in which it was never entitled to have them repaid;” Sir Andrew Morritt VC
   
  Wilson and others v Secretary of State for Trade and Industry [2003] UKHL 40 paras 4 & 71confirms that errors in the prescribed terms preclude a court from making an enforcement order and that Parliament expressly intended that such errors should render credit agreements unenforceable. At para 49 Lord Nicholls of Birkenhead stated
  “The message to be gleaned from sections 65, 106, 113 and 127 of the Consumer Credit Act is that where a court dismisses an application for an enforcement order under section 65 the lender is intended by Parliament to be left without recourse against the borrower in respect of the loan… when legislation renders the entire agreement inoperative, to use a neutral word, for failure to comply with prescribed formalities the legislation itself is the primary source of guidance on what are the legal consequences. Here the intention of Parliament is clear.”
   
  Persuasive argument is provided by Francis Bennion the original draftsman of the Consumer Credit Act 1974 in his statement. Bundle 2 item xxxx
  i. “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.”
  167 Justice of the Peace (2003) 773
   
  Although the article discusses the “amount of credit” Schedule 6 of the Consumer Credit (Agreements) Regulations 1983 also defines “repayments” and “amounts of repayments” as also being prescribed terms and therefore subject to the same restrictions by virtue of S127(3) CCA 1974.
   
  The Respondent claims that the credit agreement does not contain any errors and that the agreement is properly executed.
   
  
  
• Did the Appellant receive a fair hearing as required by Article 6 of the European Convention on Human Rights and Fundamental Freedoms?
   
  No
   
  The Civil Bench Book (August 2006) Sections 11.5.1 and 5.6 give guidance to the court in respect of the courts duties.
  

Section 11.5.1 states:

“Whatever the listing arrangements and whatever time pressures there may be, it is essential that you read the papers before the parties enter.”

Section 5.6 States:

“A judgment is likely to depend upon findings of fact. In order to reach such findings it is

necessary to set out the relevant evidence for either side (together with relevant arguments)

and to state what your findings are and why. Moreover, it is always necessary to set out the

reasons for preferring one witness over another. In this regard it is important to remember that

demeanour can be misleading and that analysis of the documents and circumstances are a far

surer guide.As Robert Goff LJ said in The Ocean Frost:4

‘Speaking from my own experience, I have found it essential … when considering

the credibility of witnesses, always to test their veracity by reference to the objective

facts proved independently of their testimony, in particular by reference to the

documents in the case and also to pay particular regard to their motives and to the

overall probabilities.’

If demeanour is relied upon, it is important to spell out the type of demeanour and the

conclusions drawn from it.”

By refusing to comply with Sections 11.5.1 and 5.6 the court has prejudiced the appeal in respect of the formulation of the grounds for appeal.

 

 

 

THE COURTS POWERS

 

1. Failure to comply with Civil Procedure Rules Part 16 paragraph 7.3

The Respondents failure and subsequent inability to comply with the Civil Procedure Rules fatally undermines their claim. The destruction of the original document and the lack of a duly authenticated copy makes the claim unsustainable, as such it is respectfully requested that in these circumstances the court strike out the Respondents claim.

 

 

2. Errors in Prescribed Terms

The statute and case law both agree that there can be no error, no matter how small, in the prescribed terms of a credit agreement, that such errors bar the court from making any enforcement order , that Parliament when enacting the Consumer Credit Act 1974 and subsequent Regulations intended to place a heavy burden of strict liability on creditors to ensure that they produced documentation free from any and all errors, and to provide debtors with the highest level of protection possible.

 

Under S.61 & S127 of the CCA 1974 and the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) as applied by the Court of Appeal and the House of Lords such an error precludes the court from making an enforcement

Order and therefore the only course of action available is to strike out the Respondents claim.

 

In these circumstances it is respectfully requested that the court set aside the order of xxxx.

 

[un1boy]

*bump*

[un1boy]

I had a call from the court today - I have to get all this to them tomorrow..... I am happy with what I have now, but as for the alst section should I be askign for anything else:

 

REQUEST FOR COURT ORDER

 

The Appellant respectfully requests the Court make the following orders:

 

1. The court strike out the Respondent’s claim.

2. The judgment of xxxx dated xxxx is set aside .

3. The court makes judgment in favour of the Appellant by confirming the agreement is unenforceable by virtue of section 127(3) of the Consumer Credit Act 1978.

 

[un1boy]

Submitted everything to the court - wish me luck.

 

I'll let you know what happens! :-/

[millymollymoo]

Wishing you Good Luck Uni1boy!

 

milly XX

[patrickq1]

very best of luck uni i think you have more than done enough but good luck

patrickq1

[AnimalMagic]

Wishing you a better judge!

[Alphageek]

Good luck!

[rippedoffagain]

Wow, subscribing.

 

Good luck.

[citizenB]

Is it today ?. Good luck uniboy:)

[millymollymoo]

Hows things going!

 

Milly XX

[un1boy]

I do not effing believe what I got from the court today:

 

IT IS ORDERED THAT

 

The appellant's notice contains an attack on the manner in which the hearing was conducted. The Appellant must therefore obtain, file and serve a transcript of the hearing (this is in addition to the judgement already filed). This should be done by 19th May 2009.

 

So, I now have to spend EVEN MORE money (which I REALLY do not have) getting a full transcript of the hearing depsite the fact the judge could just listen to it...and I've been given less than a month to do it?

 

Why can't he just give me leave to appeal on the basis that the judgment was wrong (which is what was in my notice). It was my skeleton arguments that mentioned about the judge.

 

I am sooo peed off it is unbelievable...........does anyone think this is a good thing?

Edited April 21, 2009 by un1boy

[un1boy]

sorry to all the people above you commented and I didn't get back to....I was waiting to get the appeal approved, but as you can see, I've jsut been shafted.

 

Plus, I don't get my notifications through email from this site and haven't been on for a while.

[citizenB]

 

Plus, I don't get my notifications through email from this site and haven't been on for a while.

 

 

Go to USER CP at the top of the screen

EDIT OPTIONS down left hand side of that page

Scroll down to MESSAGING NOTIFICATIONS, there is a drop down box where you can reset your email notification choices

 

 

Sorry to hear you have another set back x

[car2403]

I'm as mad as you are, Un1 - this just goes to prove that only the rich can have access to Justice.

 

When will these damn Courts come in to the 21st Century? I mean, recording hearings on tape, then wanting them transcribed before considering appeals - surely they could easily record hearings using MP3 and have them compressed centrally, meaning there is no "cost" in recovering them.

 

Now, don't take this as a given, as I'm just thinking out loud here, but would a SAR to the Court not result in access to the tapes you need being granted as part of the response? I can just imagine what would happen if they didn't comply with your SAR, but we should bear in mind that HMCS is a data controller within the definitions of the DPA. Just a thought, as I can't think of anything more I can say that hasn't already been said or will add more value at this stage.

 

(still fuming...)

[un1boy]

It's going to cost me £168 per hour for the transcript - I'm sure it went on for at least 2....so gotta put it on my credit card!

 

Do you think it's a bad thing he's asked for this? Or could he be considering making a judgment without a hearing?

[un1boy]

Go to USER CP at the top of the screen

EDIT OPTIONS down left hand side of that page

Scroll down to MESSAGING NOTIFICATIONS, there is a drop down box where you can reset your email notification choices

 

 

Sorry to hear you have another set back x

 

Thanks x

[un1boy]

I'm as mad as you are, Un1 - this just goes to prove that only the rich can have access to Justice.

 

When will these damn Courts come in to the 21st Century? I mean, recording hearings on tape, then wanting them transcribed before considering appeals - surely they could easily record hearings using MP3 and have them compressed centrally, meaning there is no "cost" in recovering them.

 

Now, don't take this as a given, as I'm just thinking out loud here, but would a SAR to the Court not result in access to the tapes you need being granted as part of the response? I can just imagine what would happen if they didn't comply with your SAR, but we should bear in mind that HMCS is a data controller within the definitions of the DPA. Just a thought, as I can't think of anything more I can say that hasn't already been said or will add more value at this stage.

 

(still fuming...)

 

Good point Car, but if the Judge wants a transcript then he'll have to have one - plus, I don't have 40 days to wait.

 

It would be interesting to test the theory anyway, which I may do when (if) this is ever over....

[car2403]

It's going to cost me £168 per hour for the transcript - I'm sure it went on for at least 2....so gotta put it on my credit card!

 

Do you think it's a bad thing he's asked for this? Or could he be considering making a judgment without a hearing?

 

Probably more interested in defending the original Judge, IMHO!

 

:mad:

[un1boy]

Probably more interested in defending the original Judge, IMHO!

 

:mad:

 

Yeah I know....so, what could happen? He doesn't give me leave to appeal so it goes to a telephone hearing?

 

What is the point of case law if they just ignore it? Jesus Christ....

[pt2537]

well, if the appeal notice contained an issue as to how the hearing was dealt with then im not surprised the judge is dealing with it as well, sorry but im not surprised this is happening, however if you are on low income, there is a fund as i understand it that may be able to assist with the costs of getting the transcript.

 

check with the court

[un1boy]

well, if the appeal notice contained an issue as to how the hearing was dealt with then im not surprised the judge is dealing with it as well, sorry but im not surprised this is happening, however if you are on low income, there is a fund as i understand it that may be able to assist with the costs of getting the transcript.

 

check with the court

 

No, I won't be elgible for help mate.

 

What do you think could happen now then mate?

[car2403]

Any Secret Millionaires subbed to the thread?

 

[un1boy]

Any Secret Millionaires subbed to the thread?

 

 

Haha - thanks for the confidence boost! lol....