walton v rbos

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staggering...

 

Two points. The RBS has misinterpreted the legislation when it comes to "recreating" the credit agreement. They make it sound a trivial issue. I'm going to recreate tenners on my posh printer next week - If the RBS can do it then it must be OK...

 

But, I digress. Bennion, the draughtsman of the Consumer Credit Act, expained what S127(3) was all about;

 

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

A similar situation arises on failure to provide a true copy of the credit agreement under s77 onwards. Yes, they are in breach and commit an offence - but only if they insist that an amount is still payable under the agreement. If they write off the debt then their obligation to provide a copy ceases. Making up a worthless bit of paper does not releive them of their obligation. They provide the true copy of the original agreement or write off the debt. Their choice.

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It might not be so silent on the issue. In any case where the creditor insists on contractual interest post judgment that would imply a right under the contract and a duty under the CCA.

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And... the court cannot remove the creditor's duties under s77 etc. If there is an amount payable under the agreement; then it cannot be classed as "an agreement under which no sum is, or will or may become, payable by the debtor,...".

 

The Court claim was to legally enforce the rights under the regulated contract. It was not to supercede it. The contract still stands...

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And... (again) the existing EU Consumer Credit Directive says that agreements must (apart from a few exceptions) be in writing. So the protection afforded by the directive has been efectively sidestepped. I would suggest that a complaint to the Commission that you would appear to have no effective remedy arising from non compliance with this requirement would seem a good idea. Your complaint is that the UK Government has not fully implemented the Directive.They would have to show that they have and where that requirement has been met in your case, (although that might mean that your Euro MP may have to do some prodding of the Commission to really investigate your complaint).

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There are two conflicting positions as regards the basis for contractual interest and the requirement to provide a CCA post judgment.

 

The contractual interest bit did show up in one case;

"It is trite law in England that once a judgment is obtained under a loan agreement for a principal sum and judgment is entered, the contract merges in the judgment and the principal becomes owed under the judgment and not under the contract. If under the contract interest on any principal sum is due, absent special provisions the contract is considered ancillary to the covenant to pay the principal, with the result that if judgment is obtained for the principal, the covenant to pay interest merges in the judgment. Parties to a contract may agree that a covenant to pay interest will not merge in any judgment for the principal sum due, and in that event interest may be charged under the contract on the principal sum due even after judgment for that sum."

 

The case can be read here ; House of Lords - Director General of Fair Trading V First National Bank (and a very handy bit of work it is too).

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sorry to interupt...

 

http://www.creditlaw.co.uk/Documents/Cca1974.doc

read 86b where it mentions post judgment... seems to be quite clear in that regard that S77 et seq may also be relevant (similar wording) where ther has been a judgment

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Contract and merger of judgment is covered in this case;

House of Lords - Director General of Fair Trading V First National Bank

 

and there is a specific para which seems to cover it;

"At any rate since In re Sneyd; Ex p Fewings (1883) 25 Ch D 338, not challenged but accepted without demur by the House of Lords in Economic Life Assurance Society v Usborne [1902] AC 147, the understanding of lawyers in England has been as accurately summarised by the Court of Appeal at p 682 of the judgment under appeal:

• "It is trite law in England that once a judgment is obtained under a loan agreement for a principal sum and judgment is entered, the contract merges in the judgment and the principal becomes owed under the judgment and not under the contract. If under the contract interest on any principal sum is due, absent special provisions the contract is considered ancillary to the covenant to pay the principal, with the result that if judgment is obtained for the principal, the covenant to pay interest merges in the judgment. Parties to a contract may agree that a covenant to pay interest will not merge in any judgment for the principal sum due, and in that event interest may be charged under the contract on the principal sum due even after judgment for that sum."

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There are a couple of cases which would support Wlton’s case, this one is relevant in that it strengthens the argument that the absence of a valid default notice (prescibed terms etc) would nullify the original proceedings…

 

http://www.pinsentmasons.com/media/2036007463.pdf

 

And on the general principles, Scott Baker LJ said that:

'Each time the court is called upon to consider the effect of failure to comply with a provision such

as that in s.139(2) of the 1983 Act the all important consideration is the particular provision under

consideration. In my judgment failure to obtain the necessary consent before the proceedings are

begun renders the proceedings a nullity. I have been driven to this conclusion primarily by the

structure of the section and the fact that it applies to both civil and criminal proceedings

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The article is about steps that must be taken or may be taken in certain proceedings. That one is about mental health. The issue is "failure to comply". You have to read the full article.

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http://www.hmcourts-service.gov.uk/judgmentsfiles/j2130/tudor.htm

another indication

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I’m not an expert but we are aware of the Rankone case. (Substitute “i” for “o”). That’s one where his and his missus’ other posts on other sites went as far as alleging forgery had taken place. As we all know it’s been very difficult to get details of that case as it went to the Court of Appeal and although a civil case as it seems as if there are reporting restrictions.

 

Reporting restrictions in a civil case are not unusual – but in a Consumer Credit Case they are unheard of. Now this is pure speculation (but I bet I’m not far from the mark) that as the civil case may have involved allegations of criminal activity by the creditor, then in order to get a fair trial etc admissions of guilt, evidence etc; that may well have been produced in a civil court may be the subject of other action….

 

The only bit of criminal legislation that may fit the bill as far as consumer credit is concerned is the;

Forgery and Counterfeiting Act 1981 (Results within legislation - Statute Law Database

 

1.

The offence of forgery.

A person is guilty of forgery if he makes a false instrument, with the intention that he or another shall use it to induce somebody to accept it as genuine, and by reason of so accepting it to do or not to do some act to his own or any other person’s prejudice

 

2.

The offence of copying a false instrument.

It is an offence for a person to make a copy of an instrument which is, and which he knows or believes to be, a false instrument, with the intention that he or another shall use it to induce somebody to accept it as a copy of a genuine instrument, and by reason of so accepting it to do or not to do some act to his own or any other person’s prejudice.

 

3.

The offence of using a false instrument.

It is an offence for a person to use an instrument which is, and which he knows or believes to be, false, with the intention of inducing somebody to accept it as genuine, and by reason of so accepting it to do or not to do some act to his own or any other person’s prejudice.

 

4.

It is an offence for a person to use a copy of an instrument which is, and which he knows or believes to be, a false instrument, with the intention of inducing somebody to accept it as a copy of a genuine instrument, and by reason of so accepting it to do or not to do some act to his own or any other person’s prejudice

 

8.

Meaning of “instrument”.

— (1) Subject to subsection (2) below, in this Part of this Act “instrument” means—

(a) any document, whether of a formal or informal character

 

I could go on and on as most of the first part of the Act relates to you – but it is clear that you did not sign what they are suggesting that you did. Trying to persuade you and the Court that you did sign it is a criminal offence.

 

My attack would use your main points as already listed then at the end raise the issue of “false instrument”. That attacks the entire credibility of their position. I think that will be something that the Guardian will be more than interested in. But watch it go very quiet when the reporting restrictions kick in…

Oh - I'd let your local paper know about this as they may end up with a national scoop and the agency network they use will mean it will get very national.

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Well I'd be very quick about letting the Guardian know that this case may well be similar to one that has already got reporting restrictions - it's very likely they'll be represented then.

 

As for the MP - I wouldn't hold out too much on that or the Lord - but if the newspapers are aware of the story before then there's agood chance it will break nationally. I would let the Press Association know that there's a case at wotsit County Court involving a Bank and allegations of fraud and go into the background briefly. The angle (and there has to be one so the Press can identify the story) is that the Bank is making up agreements (breach of the Forgery Act) so they don't take another hit like they did over Bank charges.