un1boy - N1 issued for breach of CCA request

[un1boy]

Who's skeleton arguments need to be filed and served by tomorrow if the order says teh Respondent? I'll email thema copy of mine anyway....but they have to give me theirs too, right? I'm really confused.

[un1boy]

I really need to re-index my court bundle too......I need to get some of the documents re-printed too.......

[un1boy]

Oh, and any idea of which authorities I should use?

[heliosfa]

Hi Un1, i've looked into it a bit, and they are def the respondent! sorry for confusing you a bit.

 

As for the authorities, i'd expect the ones you used plus the exxtra one you needed.

 

H

[un1boy]

Cheers matey.

 

I'll send them my skeleton arguments anyway.

 

I am a bit condused with what's happening to be honest - am I right in thinking that the document I produced for the appeal tha Dad helped me with (the one with my reasons for appeal etc) is my skeleton arguments for why I should be able to appeal and then if I am allowed to appeal, the trial will begin again from the start and I would then have to use the original skeleton arguments for the trial??

 

To be honest, if he allows my appeal - he would basically be agreeing that the agreement isn't enforcable, so would we still have to go through the trial?

[dad]

Hi Uni,

 

I am a bit condused with what's happening to be honest - am I right in thinking that the document I produced for the appeal tha Dad helped me with (the one with my reasons for appeal etc) is my skeleton arguments for why I should be able to appeal and then if I am allowed to appeal, the trial will begin again from the start and I would then have to use the original skeleton arguments for the trial??

 

No - the document we produced is the 'new' skeleton and this will be used as the basis for your appeal. The old skeleton is history unless you want to use it again.

 

I have had a quick read through the transcript and my initial thoughts are:

 

1. A badly organised bundle cost you your case.

 

2. You were not going to win on the overdraft so you were probably right to pay up.

 

3. I can see why the circuit judge didn't allow you to appeal the fairness of the hearing. Although it was probably horrible to go through it does not read back that badly when you come to it cold.

 

4. For the next hearing you need to have the key bits ready and easily accessible and well organised.

 

For the next round you need to apply the KISS principle.

 

The two core issues are:

 

a. They do not have an agreement which 'contains' rather than 'embodies' the prescribed terms. I think PT has an extract from Goode which explains the difference. You should PM him to see if he can send an extract to you.

 

b. The did not sent a default notice that complied with section 87 + 88.

 

I am up to my eyes until Thursday, but what I think you need is a one side summary of the key points you need to get over in the hearing.

 

Having read the transcript I would love to see how the judge explained how the other side complied with the Act.

 

HTH

 

Dad

[un1boy]

Hi Uni,

 

 

 

No - the document we produced is the 'new' skeleton and this will be used as the basis for your appeal. The old skeleton is history unless you want to use it again.

 

I have had a quick read through the transcript and my initial thoughts are:

 

1. A badly organised bundle cost you your case.

 

2. You were not going to win on the overdraft so you were probably right to pay up.

 

3. I can see why the circuit judge didn't allow you to appeal the fairness of the hearing. Although it was probably horrible to go through it does not read back that badly when you come to it cold.

 

4. For the next hearing you need to have the key bits ready and easily accessible and well organised.

 

For the next round you need to apply the KISS principle.

 

The two core issues are:

 

a. They do not have an agreement which 'contains' rather than 'embodies' the prescribed terms. I think PT has an extract from Goode which explains the difference. You should PM him to see if he can send an extract to you.

 

b. The did not sent a default notice that complied with section 87 + 88.

 

I am up to my eyes until Thursday, but what I think you need is a one side summary of the key points you need to get over in the hearing.

 

Having read the transcript I would love to see how the judge explained how the other side complied with the Act.

 

HTH

 

Dad

 

Dad, you're a star, thanks.

 

re the bundle - I have re-indexed it now and will send a copy to both the court and the bank.

 

So, I am right that I use the "new" arguments, even in the trial if I am allowed the appeal, or do I use different ones?

 

I've never heard of the KISS principle, what does it mean?

 

I'll write a summary of the points so I can keep them well organised.

 

I'll forward you the judgement as well if you like? She didn't apply it to the act - only said that on the balance of probability she thought the prescribes terms would have been in the T&C's....even though the bank said they couldn't confirm that.

 

Do you want the transcript of the judgement?

[AnimalMagic]

I've never heard of the KISS principle, what does it mean?

 

Aha! Something I CAN help you with: Keep It Simple Stupid

 

Regards and Good Luck!

[un1boy]

Aha! Something I CAN help you with: Keep It Simple Stupid

 

Regards and Good Luck!

 

haha ok....welll I'm working on the summary now....will make sure it links in to the newly indexed bundle...

 

with regards to the authorities, is it best to highlight EVERY relevant paragraph and direc the judge to them, or just select a couple. I assume the judge won't have read the authorities before the trial?!

[un1boy]

Hi Uni,

 

 

 

No - the document we produced is the 'new' skeleton and this will be used as the basis for your appeal. The old skeleton is history unless you want to use it again.

 

I have had a quick read through the transcript and my initial thoughts are:

 

1. A badly organised bundle cost you your case.

 

2. You were not going to win on the overdraft so you were probably right to pay up.

 

3. I can see why the circuit judge didn't allow you to appeal the fairness of the hearing. Although it was probably horrible to go through it does not read back that badly when you come to it cold.

 

4. For the next hearing you need to have the key bits ready and easily accessible and well organised.

 

For the next round you need to apply the KISS principle.

 

The two core issues are:

 

a. They do not have an agreement which 'contains' rather than 'embodies' the prescribed terms. I think PT has an extract from Goode which explains the difference. You should PM him to see if he can send an extract to you.

 

b. The did not sent a default notice that complied with section 87 + 88.

 

I am up to my eyes until Thursday, but what I think you need is a one side summary of the key points you need to get over in the hearing.

 

Having read the transcript I would love to see how the judge explained how the other side complied with the Act.

 

HTH

 

Dad

 

Dad,

 

with regards to the default notice - they provided a mock up of one and relied on the postal rule as confirmation it was sent.....not sure how I get around this one?!

[un1boy]

WOOHOO!!

 

Here is my summary and basic structure of my presentation:

 

Key Points:

An extract from Goode Consumer Credit Law and Practice (see xxx) confirms the difference between the words “embody” and “contain in relation to section 61(a) and sectionn 61(b) of the CCA:

By para (b) the document must embody all express terms of the agreement. The word “embody” (in contrast to “contain in para (a)) means that the document need not set out all the terms itself, but may refer to another document setting out the term”

Section 61(a) and (b) states:

“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,“

As you can see, by use of the word “contain,” section 61(a) is explicit in its objectives that the prescribed terms must be on the same page as the signature. By referring to the document supplied by the Respondent (see XXX) it is evident that the prescribed terms are not contained in the agreement and whether or not they were contained in a separate document (for example the terms and conditions) is irrelevant as in order for the court to order enforcement the prescribed terms must be contained and not embodied.

With regards to the Regulations, Schedule 1 states the "Information to be contained in documents embodying regulated consumer credit agreements other than modifying agreements.” and Schedule 6 states the “Prescribed terms for the purposes of sections 61(1)(a) and 127(3) of the Consumer Credit Act 1974.” Therefore the information in Schedule 6 should be contained in the agreement in order for the court to be allowed to enforce it under section 127. Due to none of the prescribed terms being in the agreement provided, section 127(3) is invoked thus preventing the court from making an order of enforcement.

 

Section 127(3) states: "(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). "

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.

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.

 

The Respondent’s failed to provide a default notice that complied with section 87 and 88 of the Act. They state that they sent one and that it complied with the relevant sections, however they proved this by providing a template of what the default notice would have looked like and relied on the postal rule explaining that the Appellant would have received it.

 

I think last time I was thrown by the bank coming up with thigns I hadn't had time to prepare for and not being able to relate it back to my documents....that, coupled with a badly organised bundle and the way the judge managed the trial, knocked my confidence.

That's it to be honest, plain and simple. The bank tried to bring all sorts of things in to it, but the above is effectively what I need to bring to the Judge's attention. Any other comments/ideas would be greatly apprecaited.

 

Now, I know what I am talking about and have everything indexed. Can I "introduce" the Goode quote at this stage, bearing in mind that it hasn't been mentioned at all before - can I put it in my appeal bundle?

Edited June 1, 2009 by un1boy

[un1boy]

One more question re the skeleton arguments.

 

The document I submitted to the court explained my concerns over the way the hearing was handled by the judge - do I use the same arguments, or submit new ones taking that element out?

[dad]

The document I submitted to the court explained my concerns over the way the hearing was handled by the judge - do I use the same arguments, or submit new ones taking that element out?

 

Properly you should send a new one with the bits where permission has been refused left out.

 

Dad

[un1boy]

Properly you should send a new one with the bits where permission has been refused left out.

 

Dad

 

Cool, will do...how about my summary above? Any thoughts?

[un1boy]

Also, ny original bundle had evidence in it for the current account claim. I ma only appelaing the credit card one, so do I still just use the full budle? It doesn't make much difference to be honest I suppsoe.

[un1boy]

Here are my skelton arguments:

 

SKELETON ARGUMENT FOR THE APPELLANT

 

1. This is an appeal against an order by Deputy Judge Batchelor dated . The Appellant claims that the Deputy Judge mis-directed herself as to the law and was wrong. As a result the order made was ultra vires. The Respondent only served their skeleton arguments on the Appellant the day before the trial by email and after the trial by post. They also 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 3 hours.

 

THE TRIAL BUNDLE

 

2. References in this document prefixed (TB) and (TB2) are references to the trial bundle. References prefixed (AB) are references to the authorities bundle. References prefixed (TT) are references to the Trial Transcript.

 

BACKGROUND TO THE CASE

 

3. The background to this case is:

• On 17th August 1997, the Appellant took out an agreement with the Respondent
  
• The Appellant applied under sec 78 for a copy of the agreement on 10th August 2006, in writing. (TB page 7)
  
• The Respondent sent an agreement with no prescribed terms and no T&C's, on 27th September 2006 which was not sent within the time limit prescribed under sec 78(1) of the agreement (TB 1-5)
  
• The Appellant sent various letters explaining that it was unenforceable and withheld payment (TB pages 6-32)
  
• The Appellant wrote asking for them to remove adverse data and close account in order to sort the problem without involving the court on 31st October 2006 (TB page 13)
  
• The Appellant issued court papers on 23rd July 2007 requesting for the court to order the agreement’s unenforceability, removal of adverse credit bureaux data and costs incurred by the appellant. (TB Page 60-62)
  
• The Respondent entered a defence dated 17th August 2007 which had no relevance to the Appellant’s claim as it was a standarised defence to bank charges claims.
  
• On 6th September 2007 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.
  
• 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 26th September 2007 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 24th October 2006 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 8th November 2006 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 18th December 2007 (one day after the order stated)
  
• 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 07th August 2008
  
• The Respondent sent their court bundle to the Appellant on 7th August 2007 by guaranteed next day special delivery
  
• The Respondent submitted their skeleton arguments and some other documents that were relied upon for the trial to the appellant by email on 21st August 2008 (the day before the trial) and I received them by post on 22nd August 2008 (the morning of the trial.) They were also only submitted to the court on the morning of the trial.
  
• The Appellant proceeding to enter a request for Appeal.
   
  
  

THE ISSUES

 

4. The issues in this appeal are:

• Did the Respondent prior to making the claim fulfill their obligations under Section 78 of the Consumer Credit Act 1974?
  

• Did the Respondent fulfil their obligations under S.78 of the Consumer Credit Act 1974 prior to making the claim?
  

• 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

 

5. 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;

ii. Where a creditor fails to comply with the CCA74, Parliament intended that the creditor should forfeit all rights under the agreement;

 

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

 

ALLEGATIONS

6. The Appellant alleges that:

 

a. 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 )

 

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

(1) The creditor under a regulated agreement for running-account credit, within the prescribed period after receiving a request in writing to that effect from the debtor and payment of a fee of £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.

(4) Where running-account credit is provided under a regulated agreement, the creditor shall give the debtor statements in the prescribed form, and with the prescribed contents—

(a) showing according to the information to which it is practicable for him to refer, the state of the account at regular intervals of not more than twelve months, and

(b) where the agreement provides, in relation to specified periods, for the making of payments by the debtor, or the charging against him of interest or any other sum, showing according to the information to which it is practicable for him to refer the state of the account at the end of each of those periods during which there is any movement in the account.

(5) A statement under subsection (4) shall be given within the prescribed period after the end of the period to which the statement relates.

(6) 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.

(7) This section does not apply to a non-commercial agreement, and subsections (4) and (5) do not apply to a small agreement.

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).

b. 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.

c. The Respondent states that the original document has been destroyed.

 

THE OUTCOME

 

7. The issues in this appeal are:

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

No.

The agreement does not contain any of the prescribed terms required under Schedule 6 of “The Consumer Credit (Agreements) Regulations 1983”such as: (TB2 Page 32)

· Amount of Credit

· Credit Limit

· Rate of interest

· Repayments

· The APR

• 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). (TB2 Page 32)
   
  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 11

Tukey 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.

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 Respondent fulfil their obligations under S.78 of the Consumer Credit Act 1974 prior to making the claim?
   
  No.
   
  Section 78(1) of the Consumer Credit Act 1974 provides for a debtor to request a copy of the executed agreement and 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

 

Section 78(4) of the Consumer Credit Act 1974 provides that:-

 

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.

 

Prior to making their claim and to date the Respondent had failed to provide the terms and conditions governing the agreement. (TT page 16 para B, C and D).

 

i. If the Law was misinterpreted, how and why

The law was misinterpreted because the judge made a judgment based on the balance of probability that the prescribed terms could have been provided in the terms and conditions, which weren’t present. The Respondent admitted that they did not dispute that the agreement must contain or embody the terms (TT page 13 Para D) and then relied on the definitions section of the act for the “embodies”, stating that the prescribed terms could be in another document that is referred to in the agreement (IE, the terms and conditions). Deputy Judge Batchelor agreed with this contention, but, an extract from Goode Consumer Credit Law and Practice (AB page 1) clearly states the difference between the section61(1)(a) and (b) and therefore the difference between contains and embodies. The Respondent’s representative brought this up during the trial and explained that he had just thought of it on the train (TT page 15 para D)

ii. What does that mean?

It means that the court have ordered the enforcement of an agreement that is legally unenforceable by the court under section 127(3) of the consumer credit act 1978.

iii. Was "fact" decided incorrectly, or was the Law applied incorrectly? How and why?

I believe that both fact was decided incorrectly and the law was applied incorrectly because the judge made her judgment based on fact, which she explained was that the prescribed terms would have been in the terms and conditions. The respondent however confirmed that they did not have the terms and conditions and nor could they confirm if the prescribed terms would have been in them. (TT page 16 para B, C and D). Therefore, her judgment is based on a fact that could not be confirmed.

The law itself was applied incorrectly because the judge ordered enforcement of an agreement that the law and parliament intended the court not to have the power to enforce. This has been backed up by higher courts, including the court of appeal and the House of Lords.

iv. What are the arguments against the appeal?

The arguments against the appeal are that the appellant does have the right to appeal because the agreement itself is enforceable and by virtue, Deputy Judge Batchelor’s order is correct. As discussed in this document and in my trial bundle, the agreement is not enforceable and therefore the order dated 22nd August 2008 should not have been made.

v. What injustice/prejudice has the Judgment caused?

The judgment has caused the appellant to incur extra costs by not being able to pay off existing debts and therefore having to pay interest on them. The judgment has also allowed the respondent to continue to process a default marker on his credit file which is detrimental to his credit status and occupation. The judgment has also caused the appellant unnecessary monetary costs, such as appeal and court costs, as well the extra time he has had to take to prepare the appeal.

• 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?
  
  No.
  

Despite the appellant being a litigant in person, who included his skeleton arguments with his trial bundle, which was received by the Respondent weeks before the trial, the Respondent did not include their skeleton arguments in the trial bundle they sent to the Appellant, but instead issued their skeleton arguments via email the day before the trial. They were received by mail by the Respondent when he returned home after the trial.

THE COURTS POWERS

 

1. 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 22nd August 2008.

 

REQUEST FOR COURT ORDER

 

The Appellant respectfully requests the Court make the following orders:

• The judgment dated 22nd August 2008 made by Deputy Judge Batchelor is set aside
  
• The court strike out the Respondent’s counter claim
  
• The court to make judgment in favour of the Appellant by confirming the agreement is unenforceable by virtue of section 127(3) of the Consumer Credit Act 1974.
  
• With regards to paragraph 3 above, the respondent is to remove account and default data from the appellant’s credit file (s)
  
• Court and other costs deemed necessary by the court to be awarded to the Appellant
  
• Damages at the discretion of the court, if the court deems necessary
   
  Statement of Truth
   
  I, un1boy, believe the above statement to be true and factual
  

SIGNED:

DATE:

[pt2537]

dude, you need to get your case citations right, Wilson and FCT?? where the case citation? there were three wilson reports between the CC and House of Lords so the judge will want to know which one your at

[un1boy]

dude, you need to get your case citations right, Wilson and FCT?? where the case citation? there were three wilson reports between the CC and House of Lords so the judge will want to know which one your at

 

Sorry, I don't understand what you mean.....do you mean saying

Wilson vs First County Trust [2003] UKHL 40 instead?

[pt2537]

Sorry, I don't understand what you mean.....do you mean saying

Wilson vs First County Trust [2003] UKHL 40 instead?

no, i mean the first reference says Wilson and FCT, which wilson case are you refering to? the Court of Appeal? the second Court of Appeal? or the House of Lords?

[pt2537]

a. Wilson vs FCT Trust

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 creditor should forfeit all rights under the agreement;

 

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

see the difference?

[un1boy]

see the difference?

 

 

Ah, I see - it's the house of lords one, so do I add that at the end of the title?

[un1boy]

I have just had a call from the bank's sols - the order says that the respondant needs to enter their skelton by he is saying it's me, not them and that the order is wrong

[un1boy]

He has said that they have a barrister who will be attending who will be experienced enough go deal with it anyway if I don't send them mt skeleton arguments.

 

He has said that because I don't have permission to appeal, they have nothing else to say.

 

He also said that I should serve it if I'm bringin anything new in to it - could the reference from Goode be calssed as something "new"?

[un1boy]

If they already ahve a court order, can we still discuss a negotiated setltlement?

 

I was pretty confident a min ago after getting things sorted, by my confidence is shot now so I want to offer a cash settlement to them.

[un1boy]

Also, what's the best way for me to use the authorities - I am thinking that I refer the judge to relevant paragraphs in order to back my argument up.

 

does this have to be done in the skeleton arguments, or can I bring them in to at any point?