Hi Andy Thanks for your reply - that's the bit I have, what i would love to see is the Judgment that that appeal overturned. There is a recent case in CC where a creditor issued a faulty DN terminated debtor accepted rescission claim All side accepted DN was faulty and therefore ineffective DJ accepted termination had happened & DN was ineffective BUT DJ ruled that creditor had gained full rights to repayment of balance Seems similar to Woodchester, so was interested in the original CC ruling that went against Swayne for £14k i.e. full rights despite faulty DN The appeal above held that faulty DN meant the creditor only had entitlement to sums due at termination (which was taken to be date of DN issue interestingly) Unfortunately the text of the appeal does not use the word termination anywhere which muddies things a little (Claimant in current case says that the Woodchester agreement endured??? following the CoA ruling!!)

Thank you for searching Yes, it would seem that is the correct spelling - someone should let Goode know

Unfortunately that 'protection by information' i.e. the default notice was NOT carried out!! I do appreciate your point and your stance and the opinions you have sought from Counsel I am just wondering how the creditors have managed to sidestep the requirement for a default notice now/ They can terminate, they can demand sums not due and they can get Judgment to that effect, all without service of a Default Notice. just seems to go against the CCA and caselaw I do appreciate that, it may not be a straightforward case as it would certainly be a precedent setting one whichever way it went (should it go to appeal) as will Brandon & Costa But then in the case of Swayne, at the time of their CC Judgment - they must have felt pretty much the same (although they had the financial clout themselves to do something about it....) EDIT sorry meant to comment on sanctions for breach bit PH is not contending that there are any sanctions for breach. All she is contending are the rights which the creditor had acquired before their termination of the contract did NOT include accelerated repayment of the debt.

An interesting supposition, but one as you know has no basis in Law ..... (wrt to CCA regulated agreements)

and we have to remember, that if this case is right, then it does away with the need for a DN at all ...... all the creditor has to do is terminate and then demand and then off to Court. The debtor will have deemed to have accepted the termination by stopping payments.

Does it not come down to the type of breach? PH's breach was material and rectifiable (even now if the creditor had not terminated - and even now, today, upon service of a valid DN, PH could recitfy the breach and it would be treated as though it had never happened) The creditor did NOT server a valid DN however (as in Woodchester) ! important point is that in Woodchester the creditor did not realise teh error until litigation had started. PH informed the creditor of their error very clearly way before any claim was issued. The creditor's breach was fundamental. The consequences of a fundamental breach is that the contract comes to an end. This breach is far more severe and it is this breach which led to the contract coming to an end.

More here, http://www.publications.parliament.uk/pa/ld200203/ldjudgmt/jd030710/will-1.htm heavy reading but there are a few paras of note Also bear in mind that case law is NOT considered new evidence so you can bring up new pieces supporting your case

Maybe this was teh passage being referred to

I have not expressed an opinion on here. I have by PM I certainly haven't even made up my own mind yet, and without seeing the transcript it would be very difficult You will note I have advised how to go about getting the Order redetermined and how to apply for a stay pending appeal I think that sums up my thoughts at the moment. Just because i make an argument for 1 side or the other doesn't mean I believe it is 'right'? I could just as easily argue from your viewpoint, if I wanted to I am sure if you go over the threads of yours that I have had debates with you on before you will see that ...

Maybe, I am sure that point will be raised in any appeal on behalf of PH If they were not permitted to do something then the DJ was very wrong to accept that it was done and in that case obviously PH would have a very good argument for an Unfair Relationship bearing in mind what they have done which they were not permitted to do

I totally agree and a few months ago, Costa was in the same position and being hammered on here for his losing in Court, with no one willing to take his case on. However Harrison puts a whole new light on Costa's case now doesn't it ... The interpretation of the Law is fluid. always has been, always will be

I won't quote the whole post but :clap2:

in PH's case the contract was NOT terminated 'on the back of a DN faulty or not' (the creditor could not have relied upon the faulty DN as Harrison has recently confirmed) It was terminated by the creditor of their own free will. They refused to allow PH to repay teh loan as per contract, they withdrew her right to repay over another 3 or so years. That termination was stated as being a fundamental breach of contract by PH That termination was effective - there is no argument about that. The argument is about what rights teh creditor had at the time of their breach of contract (termination). Simple as that.

anyone got any pointers at all?

I also think that there may be some useful info in the original Woodchester v Swain hearing. The one where the DJ ordered Swain to pay £13k (i.e. full rights as in PH's case) which was then overturned at appeal down to lawful arrears at termination (which was taken to be date of issue of the DN interestingly).

If PH didn't accept they were going to apply to stay proceedings and issue a new compliant DN

On the thread you have the POC, initial defence PH's app for SO Claimant's app to amend POC last minute before PH's app Amended POC and amended Defence Both side's skellys Both sides WS summary of trial hearing --- As I have said before, the arguments put forward by members of the site are actually better than those relied upon by the Claimant IMHO. Read the Skelly again and see exactly what teh Claimant's said rather than what you think they should have been arguing. The one bit of info that we need would be at least a transcript of teh Judgement (better for whole trial) as it is only then anyone would be able to assess exactly how the DJ came to their thinking. PH has already been given leave to appeal (by the sounds of what she was told in Court by the DJ) I am also interested on what grounds the DJ awarded costs against PH in a SCT trial. PH's argument at trial was not new and she received positive 'vibes' from the DJ at the application hearing

When someone has stated that if ANY of their statements could be proved wrong they would go away And then at least one of those statements was proved wrong and they stay then, in my mind, it just becomes background noise .....

PH's costs were for her Strike Out application. The Claimant realised their argument was fatally flawed and at the last minute before the hearing submitted their own app to change their argument completely. Their app to amend the POC was accepted and PH was awarded all costs to that point Following AQ it was on SCT and as Caro has hinted at they should NOT have got costs. (With the decision given, I agree on the S.69 interest though i.e. they should have it BUT I don't agree with the decision and the costs issue just adds another point to the argument as to whether the DJ really was on the ball) S.69 interest is NOT payable on CCA Judgment debts i.e. following Judgment in CCA cases S.69 interest is NOT payable when another rate of interest is applicable (i.e. in all CCA cases where the agreement is not terminated) that follows that S.69 IS payable when no other rate of interest applies i.e. to a CCA debt on a terminated agreement as per Woodchester as well The fact that Woodchester (or Swain as it happens) was awarded S.69 interest would indicate that the agreement was terminated ... makes the Claimants argument in PH's case less convincing

The Claimant relied on it's rights prior to termination being intact following termination. This is common ground and I think everyone agrees on this What the parties do NOT agree on is what those rights were. The CCA is quite clear that the entitlement to sums not yet due is an entitledment that has to be earned. DID the creditor EARN THOSE RIGHTS?? The creditor also relies on teh fact that in Woodchester they say the agreement was NOT terminated, but lived on .... TBH I doubt this, I doubt the defendant maintained their payments following the appeal in 1998 where they won. Difficult as we don't have any evidence either way AFAIK - how can they rely on it then??

The terms of teh contract were that the OP was to make payments as and when they fell due. Other than that it was a regulated agreement. The term the creditor used in Court was S4 termination when teh debtor was in default and the CCA S87 has strict rules regarding that as you know.

PH, as the innocent party of the creditor's material breach of contract, accepted their termination clearly on the understanding that arrears only were due (as per her letter) What you are saying is that a creditor can terminate, a debtor can accept (and by not making furthe payments that acceptance is by deed) and then the creditor has fullr rights to teh balance of teh account without serving a Default Notice. An interesting side stepping of the CCA, and one that would blow many High Court and CoA rulings out of the water Now that one is more interesting, under what powers and invoking what Law did the Judge Order it? The DJ should not just be making up Law on the spot, but applying the Law to the arguments put forward. I don't see a valid argument put forward by the Claimant for full rights to teh contract i.e. capital + full interest less early settlement + S69 interest following THEIR material breach of contract AND their major breach of the CCA

Is the original Judgment available anywhere? Not the Kennedy 1998 one but the Assistant Recorder Hickinbottom in Cardiff County Court on 3 October 1997 one Ta

sorry Peter these are FACTS

I will just pick up on this 1. Please quote where in S55-S59 a creditor can refuse to release funds following an executed agreement. and you may want to check Woodchester ..... I know the suns already due at termination were ordered to be repaid - but what was the original claim for ... I think you will find it was in excess of £13k rather than arrears .... (stopped payments after about 2 years on a 6 year lease) Sorry Peter I do homework BEFORE posting ...