Mate says he knows a company can wipe ny debts out? too good to be true?

[means2anend]

cheers patrickq1

i have just read the case you posted involving bank of Scotland v Mitchell.No doubt this case turned on the issue of whether all of the prescribed terms were in the one document it itself to be signed by both the creditor and debtor.On October 28th last week in THE HIGH COURT the court found for RBS against Maguffick in relation to the issue that copies of the original executed copies of the agreement were unavailable (s 77).But he brought in my opinion that case under section 63 improperley signed execution of agreement a wrong tactic...even though the Bank was unable to produce these I think he should have brought that under s77

But thanks for this peice of info...Means2anend

[patrickq1]

I HAVE ALWAYS TOOK THE STANCE AN APPLICATION IS AN APLICATION,AND MORE OFTEN THAN NOUGHT YOU WOULD NEVER RECEIVE THE TERMS AND CONDITIONS WITHIN THIS FORM......

PATRICKQ1

 

IN THE LEEDS COUNTY COURT Case No: 9LS70096

The Combined Court Centre

Oxford Row

Leeds

1st June 2009

Before

HIS HONOUR JUDGE LANGAN QC

__________

BANK OF SCOTLAND

(Claimant)

-v-

ROBERT MITCHELL

(Defendant)

__________

APPROVED JUDGMENT

__________

APPEARANCES:

For the Claimant: MISS GARDNER

For the Defendant: MR BERKLEY QC

__________

Transcribed from tape by

J L Harpham Limited

Official Court Reporters and Tape Transcribers

55 Queen Street

Sheffield S1 2DX

BANK OF SCOTLAND -v- ROBERT MITCHELL

1st June 2009

APPROVED JUDGMENT

JUDGE LANGAN:

 

1. I have to deal with an issue as to costs which has arisen on the informal discontinuance of an action.

 

2. The action was commenced on 21st May 2008. The claimant bank had, in December 2003, issued a credit card to the defendant, and the claim was for £15,417.23, being the amount said to be due on the defendant's account. Judgment in default, for a total sum of £15,727.23, was obtained on 4th July 2008. The defendant subsequently applied to have the judgment set aside. That application came before District Judge Jordan on 29th January this year and was successful. The recitals to the District Judge's order say this: 'And upon the defendant's proceedings on the basis of a breach of Section 61(1)(a) of the Consumer Credit Act, namely that the claimant failed to comply with the requirements to give copies of all the documents relevant to the agreement at the time of signing, and upon the defendant contending that notwithstanding Section 65 of the Consumer Credit Act 1974, Section 127(3) of the Act preventing the

enforcement'.

 

After those recitals it is ordered the court sets judgment aside, and it is ordered that there be, 'A determination of the issue set out above'. Various procedural directions then follow.

 

3. What has been listed for trial today is, 'The determination of issue', referred to in the order which I have just recited.

 

4. The agreement made in relation to the defendant's credit card was a regulated agreement within the Consumer Credit Act 1974. Section 61(1)(a) of that Act provides:

 

'A regulated agreement is not properly executed unless 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'.

Having regard to the date of the agreement made in this case, which was prior to amendments made to the Act which took effect from 5th April 2007, the result of non compliance with Section 61(1)(a) would be that the credit card agreement would be unenforceable against the defendant, see Consumer Credit Act 1974 Section 127(3).

 

5. This morning I was informed by Miss Gardner, counsel for the bank, that the bank was withdrawing its claim against the defendant. This announcement has been accepted by Mr Berkley QC, who appears for the defendant, as equivalent to the service of a notice of discontinuance under the Civil Procedure Rules Part 38.3. By the Civil Procedure Rules Part 38.6.1:

 

'Unless the court orders otherwise, a claimant who discontinues is liable for the costs which a defendant against whom the claimant discontinues incurred, on or before the date on which notice of discontinuance was served on the defendant'.

 

Miss Gardner contends that the court should, 'Order otherwise', and make no order for costs as between the parties. Mr Berkley contends that the presumption in CPR 38.1.6 should operate, and further that the order for costs to be made in favour of his client should be an order for assessment on the indemnity basis.

 

6. The thrust of Miss Gardner's submission is that the issue directed by the District Judge, and on which the evidence has been focused, is whether the bank supplied the defendant at the time of signing the application form for credit with documents which contained all the terms of the agreement between them. I shall elaborate a little further on this. It has been the defendant's case that he was supplied with nothing more than the application form which he signed. It has been the bank's case that in accordance with the usual practice of the bank the defendant would have been, and must have been, supplied with other documents, including a pack which will have contained all the terms and conditions of the agreement made between the parties. Miss Gardner goes on to say that the defendant has at the last moment taken a new and radically different point, namely that the document signed by the defendant did not contain all the prescribed terms of the agreement. I must again elaborate on this. It is common ground that the only document signed by the defendant was the application form. It is also common ground that the application form did not, on its face, set out the prescribed terms of the agreement between the parties. The point which is treated by Miss Gardner as a new point is dealt with in paragraphs 22 and 23 of Mr Berkley's written argument, and it will, I think, be more economical if I simply quote those two paragraphs in full rather than attempt, in my own words, to expand on them:

 

'The key words in Section 61(1)(a) are the reference to a document itself containing all the prescribed terms, and conforming to the regulations under Section 61. This language is clear and specific, and ensures that mere reference to terms contained in another document will not suffice. The document must contain the prescribed terms, just as the signed document referred to in Section 127(3), which might save the day, must however contain the prescribed terms. The construction contended for by the defendant is entirely consistent with the language of Section 61(1), and is also supported by Professor Good in his encyclopaedic work - see Good & Consumer Credit Law and Practice volume 2, 2B 5.121, and see also the comments at 2B 5.247. There the learned author draws a distinction between the language of paragraph (a) contain and paragraph (b) embody. It is respectfully submitted that the court should adopt the same reasoning in determining this issue in favour of the defendant, irrespective of whether or not it finds that the defendant was supplied with documents other than the credit agreement itself'.

 

7. In my judgment, the point with which I have just been dealing is not properly to be characterised as a new point on which the bank can present itself as being taken by surprise. I refer to four documents. First, on 3rd November 2008, when the defendant was acting as a litigant in person, in the request to have the default judgment set aside he said this:

 

'As the court is aware, in the absence of all the prescribed terms being embodied, it will render a document unenforceable in court. These terms must be contained within the agreement, and not in a separate document headed 'Terms and Conditions', or words to that effect'. Secondly, on 18th February 2009, solicitors, who were by then acting for the defendant, sent to the solicitors acting for the bank a copy of what they called an expert report setting out the reasons why the agreement was in breach of Section 61(1)(a), and they went on:

 

'As you are aware it is our client's position that at the time he entered into the agreement he was not provided with a copy of the terms and conditions governing the agreement'.

 

If one goes to the so called expert's report, one finds that it is in effect an opinion prepared by another firm of solicitors, and the opinion contains the following:

 

'Based on the information provided, it appears that the prescribed terms and conditions were not included in the document signed by the borrower. The agreement would appear to be in breach of the regulations in that it does not contain within the signed agreement itself all of the prescribed terms'.

 

Thirdly, that point having been taken on behalf of the defendant, it was robustly rejected by the solicitors acting for the bank in their reply of 19th March 2009:

 

'Our client has sought counsel's opinion on this matter and her view is that the agreement is compliant. We note that your client is arguing that at the time of signing the agreement, the application for a credit card, he was not provided with the actual terms and conditions which were contained in a separate document to the application. Whilst our client accepts that the application itself does not comply with the requirements of the Consumer Credit Act 1974, and only becomes compliant by reference to terms and conditions, there are references in the agreement to the conditions in which it states that they are provided in the Halifax credit card application pack'.

 

Fourthly, going back in time a little, on 4th March 2009, in the defendant's witness statement made for the purpose of the trial of the issue, at the very beginning of the statement, in paragraph 3, he said this:

 

'It is my position that the agreement is not enforceable by the claimant as it has failed to comply with its obligations under Section 61 of the Consumer Credit Act 1974 by failing to include within the document that I signed all the prescribed terms'.

 

8. The absence of further reference to the point in the evidence is hardly surprising, since the point is one of law, on which there was no controversy as to the facts.

 

9. Miss Gardner has given no reason for the withdrawal of the action. She is in no way to be criticised for the omission. She is bound to act in accordance with her instructions, and those instructions were presumably to say no more than she has in fact said. But this does not prevent me from drawing what is in my judgment the only inference which can possibly be drawn from what has happened, which is that the bank realises that if the issue were to be contested it would either lose on the issue or be at serious risk of losing. There may be hundreds of similar cases and the bank would plainly not wish other defaulting customers to get wind of an adverse decision on the fundamental point which is embodied in the quotation from Mr Berkley's written argument, which I have already set out.

10. Accordingly, I conclude, without hesitation, that there is no reason for displacing the presumption as to incidence of costs which is ordinarily applicable in a case of discontinuance. The bank will pay the defendant's costs of the claim, subject only to any existing order for costs in favour of the bank not being disturbed.

 

11. Finally, I have to consider whether the costs of the defendant should be assessed on the standard or on the indemnity basis. In my judgment the assessment should be on the indemnity basis. The only realistic view of what has happened is that the bank has surrendered on a straightforward point of law, to which it has on several occasions been alerted by the defendant or his solicitors. A large commercial enterprise which proceeds with litigation in the face of warning signs of the kind which were erected here, adopts a high risk strategy. The point in question was a simple one. There was no relevant controversy as to the evidence. To choose to abandon the claim on the very day of the hearing is doing a serious disservice to the efficient administration of justice, and comes very close to constituting an abuse of process. At the very least, the bank's conduct of the litigation falls comfortably within the range of cases in which, on the modern authorities, an assessment of costs on the indemnity basis is appropriate.

[patrickq1]

(s 77).But he brought in my opinion that case under section 63 improperley signed execution of agreement a wrong tactic...even though the Bank was unable to produce these I think he should have brought that under s77

i dont think there was anything to stop him from bringing in both clauses also note the sec 127.3,in effect any bank with just an application form should no doubt hit the rails with a very big bump imo

patrickq1

[Axiom99]

As I see it this arguement if sustained will allow every agreement which does not satisfactorily deal with the credit limit issue to be ruled as unenforceable.

[JonCris]

cheers patrickq1

i have just read the case you posted involving bank of Scotland v Mitchell.No doubt this case turned on the issue of whether all of the prescribed terms were in the one document it itself to be signed by both the creditor and debtor.On October 28th last week in THE HIGH COURT the court found for RBS against Maguffick in relation to the issue that copies of the original executed copies of the agreement were unavailable (s 77).But he brought in my opinion that case under section 63 improperley signed execution of agreement a wrong tactic...even though the Bank was unable to produce these I think he should have brought that under s77

But thanks for this peice of info...Means2anend

 

 

The court erred in that it should have considered the Francovitch finding (Google it) in that the judge should have put himself on enquiry to establish the validity of the matter In other-words where a consumer is concerned the court should have enquired as to any other matters of regulation which could affect the contract. The court has a duty to investigate the whole of the agreement & not just the narrow point at 1st issue

 

[1995] ICR 722, ECJ Cases C-6 and 9/90 (also reported at [1992] IRLR 84 and [1993] 2 CMLR 66).

 

Edited November 5, 2009 by JonCris

[Axiom99]

Anyone want to comment on the credit limit issue I started the thread on rather than the RBS v Mitchel case in June or McGuffick which have been discussed extensively elsewhere?

[angel_1]

hiya Axiom99

 

this is very interesting and as im still learning about all the cca and its act im sure this thread within a couple of days you will find more comments flowing here

 

so am subbing to learn and be guided for the future too

 

thanks have a sunny day laters angel x:cool:

[Axiom99]

hiya Axiom99

 

this is very interesting and as im still learning about all the cca and its act im sure this thread within a couple of days you will find more comments flowing here

 

so am subbing to learn and be guided for the future too

 

thanks have a sunny day laters angel x:cool:

 

 

Hi Angel,

Thanks for your thoughts,its raining here hope it better where you are

 

Ax

[JonCris]

Anyone want to comment on the Francovich issue which is relevant to all jurisdictions within the EU

[robcag]

Hi JonCris

 

The court erred in that it should have considered the Francovitch finding (Google it) Googled, and it seems to be Francovich (as you state below) in that the judge should have put himself on enquiry to establish the validity of the matter In other-words where a consumer is concerned the court should have enquired as to any other matters of regulation which could affect the contract. The court has a duty to investigate the whole of the agreement & not just the narrow point at 1st issue

 

[1995] ICR 722, ECJ Cases C-6 and 9/90 (also reported at [1992] IRLR 84 and [1993] 2 CMLR 66).

 

 

The way I read your statement above (without pretending I understand the Francovich principle as it seems to be referred to) it sounds as if the courts should be taking a deeper view of the shortcomings of some of the PoCs and the regular failure of claimants to supply enforceable agreements and terminate accounts lawfully by issuing compliant DNs, just for starters!

 

And if the courts don't take that attitude and scrutinise PoCs and documents properly, would people who are wrongly treated as a result be entitled to some sort of compensation from the Government?

 

Anyone want to comment on the Francovich issue which is relevant to all jurisdictions within the EU

 

This sounds like it might be a very interesting can of worms, if I understand what you're getting at!

 

Cheers

Rob

[patrickq1]

The court erred in that it should have considered the Francovitch finding (Google it) in that the judge should have put himself on enquiry to establish the validity of the matter In other-words where a consumer is concerned the court should have enquired as to any other matters of regulation which could affect the contract. The court has a duty to investigate the whole of the agreement & not just the narrow point at 1st issue

 

[1995] ICR 722, ECJ Cases C-6 and 9/90 (also reported at [1992] IRLR 84 and [1993] 2 CMLR 66).

 

reading that jon i hope you can direct yourself to this thread kel need urgent help and this thread seems relevant with a few more tweeks will help kel

cheers patrickq1

http://www.consumeractiongroup.co.uk/forum/legal-issues/230352-sj-lost-but-battle-2.html

[JonCris]

Hi JonCris

 

 

 

The way I read your statement above (without pretending I understand the Francovich principle as it seems to be referred to) it sounds as if the courts should be taking a deeper view of the shortcomings of some of the PoCs and the regular failure of claimants to supply enforceable agreements and terminate accounts lawfully by issuing compliant DNs, just for starters!

 

And if the courts don't take that attitude and scrutinise PoCs and documents properly, would people who are wrongly treated as a result be entitled to some sort of compensation from the Government?

 

 

 

This sounds like it might be a very interesting can of worms, if I understand what you're getting at!

 

Cheers

Rob

 

Correct They should also be taking a close look at the agreements upon which the claims are based If they fail the government can be sued without the necessity of a Judicial Revue

[patrickq1]

Correct They should also be taking a close look at the agreements upon which the claims are based If they fail the government can be sued without the necessity of a Judicial Revue

 

i would love to see Mr Brownstuffs face if that happened since he took us in he cant contract out willy nilly can he plus it would shake up de judges huh

[means2anend]

Hi Axiom99

 

Two issues have just arisen this evening for me..well for my friend as i am currently 'AUDITING' his agreement.

 

I am currently looking at a credit card agreement for a friend of mine in the CREDIT CARD AGREEMENT TERMS sent to him by HSBC after a request under section 78(1) CCA 1974.I received this today and am looking under the section Interest Rates and APRs.The next section says Introductory Rates, BUT the next section says Credit Limits.

 

You started this thread about a new argument for unenforceability so I now wish to bring to your attention what this states under the title Credit Limits.It states

 

'Your Credit Limit Will Be The Amount We Advise You From TIME TO TIME.You Must Not Exceed It.'

 

Axiom99 do you have any comments on this as I can now see the relevance in what you were saying.

 

Is this term too vague to be of any certainty for the debtor(us/me/you)

Does it not say somewhere in Common Law that when terms are vague they should be construed in favour of defendant/claimant?

 

Any Input on this...also there is no signature in this agreement.IT IS DEFFO AN AGREEMENT and NOT an APPLICATION for A CREDIT CARD as that has already been signed for under another separate form.

 

Does it matter that there is no signature on this even though he downloaded the agreement electronically.In other words can the creditor dispense with signatures on distance selling. i know this is a separate issue from credit limit issues but can you or any one help on both these points???

 

Thanks-Means2anend

[Axiom99]

Hi Axiom99

 

Two issues have just arisen this evening for me..well for my friend as i am currently 'AUDITING' his agreement.

 

I am currently looking at a credit card agreement for a friend of mine in the CREDIT CARD AGREEMENT TERMS sent to him by HSBC after a request under section 78(1) CCA 1974.I received this today and am looking under the section Interest Rates and APRs.The next section says Introductory Rates, BUT the next section says Credit Limits.

 

You started this thread about a new argument for unenforceability so I now wish to bring to your attention what this states under the title Credit Limits.It states

 

'Your Credit Limit Will Be The Amount We Advise You From TIME TO TIME.You Must Not Exceed It.'

 

Axiom99 do you have any comments on this as I can now see the relevance in what you were saying.

 

Is this term too vague to be of any certainty for the debtor(us/me/you)

Does it not say somewhere in Common Law that when terms are vague they should be construed in favour of defendant/claimant?

 

Any Input on this...also there is no signature in this agreement.IT IS DEFFO AN AGREEMENT and NOT an APPLICATION for A CREDIT CARD as that has already been signed for under another separate form.

 

Does it matter that there is no signature on this even though he downloaded the agreement electronically.In other words can the creditor dispense with signatures on distance selling. i know this is a separate issue from credit limit issues but can you or any one help on both these points???

 

Thanks-Means2anend

Hi means to an end and thanks for keeping your comments related to the original subject I posted about.

The information on the agreement about the credit limit certainly seems to fit the same category as the case I posted about and therefore the same argument could be used.

As I stated this was an argument used earlier this week in a case where the judge has yet to hand down his judgement and I had not seen this argument before so I hoped to stimulate some debate amongst the more learned members but no luck so far.

About the signature issue I am sorry but I do not know about how significant it is that the agreement was downloaded electronically.

[means2anend]

hello Axiom99

 

I am just 'auditing' a credit card agreement from HSBC for a friend of mine.his agreement was actually signed on 19th Jan 2005 BUT on a separate piece of paper titled 'Your information'.

 

As a result his agreement will be mostly regulated by Consumer Credit Agreements Regulations 1983/1553 which I have been reading night and day for the past two days.I am minded of the Consumer Credit Agreements Amended Regulations 2004/1482 as well so I shall update his bear my mind on any updates required.The 1983 regulation in relation to your thread 'a new argument for unenforceability' is beginning to unravel.

 

I shall explain;

 

In Scedule 1 section 8 (a),(b),© and (d) in the left hand column under 'Credit Limits

 

The prescribed terms required by that regulation are as follows

 

Agreements for 'Running Account Credit':The Credit Limit expressed as

(a) a sum of money

(b) a statement that the credit limit will be determined by the creditor from time to time under the agreement and that notice of it will be given by him to the debtor; or

© a sum of money together with a statement that the creditor may vary the credit limit to such sum as he may from time to time determine under the agreement and that notice of it will be given by him to the debtor; or

(d) in a case not falling within head (a),(b) or © above , either a statement indicating the manner in which the credit limit will be determined and that notice of it will be given by the creditor to the debtor or a statement indicating there is no credit limit

 

The actual thing on the HSBC says 'Your Credit Limit Will Be The Amount We Advice You From Time to Time.You Must Not Exceed It.

 

No Notice and Deffo not near enough to the Prescribed Particulars.

 

By Jove (My Fair Lady) I Think We'Ve Got It Axiom99 and this agreement and all those generically for that that year are Potentially unenforceable!!!

 

Rgds Keep you posted

 

Means2anend

[means2anend]

hi Axiom99

there are other apparent defects in the agreement that I have just found such as sig box and the name of the debtor as a party to the agreement.But to stick to credit limit terms...i am waiting for this judgement that you spoke about earlier this week.

 

Means2annend

[Docman]

Axiom2

 

I think you have done a great service bringing this to CAGgers. It is a good case. But the question I have is just what is meant by the phrase in the schedule "that notice of it will be given by him to the debtor". What happens when the credit company just increase the credit limit without any notice? How many people have got into trouble because the credit companies increased their limit without any notice? It could be another way of defeating badly written CCAs from greedy banks. Please try and post the judgment when it is handed down.

[lilly white]

I BELIVE IT IS THE TERM CREDIT LIMIT IS THE KEY

 

 

8. Agreements for running-account credit.

 

 

The credit limit expressed as:--

(a) a sum of money;

(b) a statement that the credit limit will be

determined by the creditor from time to time

under the agreement and that notice of it will be

given by him to the debtor;

© a sum of money together with a statement that

the creditor may vary the credit limit to such sum

as he may from time to time determine under the

agreement and that notice of it will be given by

him to the debtor; or

(d) in a case not falling within head (a), (b) or ©

above, either a statement indicating the manner in

which the credit limit will be determined and that

notice of it will be given by the creditor to the

debtor or a statement indicating that there is no

credit

[Axiom99]

I will try to obtain the judgement when it is handed down however as I wrote in my original post whichever side loses is likely to appeal.

I was hoping there would have been more interest in this thread particularly from the more learned members,anyone know how to attract their attention?

[pedross]

Hi Axiom

 

It is a very interesting post and the case is obviously important to many caggers. I think the lack of posts is because it is a very technical point to comment on without thorough research.

 

I would expect them to have good arguments to follow that route so it will be interesting to find out what happens.

 

Pedross

[means2anend]

Hi Docman

 

The interpretation given to Statutes traditionally before Parliament gave away powers was interpreting the words literally.THE LITERAL RULE...

 

However the ECJ and Roman Civil Law and the way European Judges tend to interpret legislation made by the executive is The Spirit behind the law..or in this country called the Golden Rule and or Purposive Rule...

 

English Judges always have had these 'levers' with which to use to 'GET OUT OF JAIL'..obviously this then makes it harder to advise consumers which way it will go.Judges in this Country are tending to shift in that direction now.

 

You are quite right to a degree..it is all semantics and what was 'meant' behind the words used.

 

Just like that quote in Alice in Wonderland

 

I say what I mean BUT I mean what I say?? and can dress anything up to appear like something else...

 

A rose by any other name as far as I am concerned is still a rose..it smells like a rose etc..

 

You can give anything a 'label' but in substaNCE THAT IS WHAT IS TRUTH.

 

i HAVE BEEN READING BOTH CCA 1983/1553 AND CCA 2004/1482 THE LAST COUPLE OF NIGHTS AND IT does appear THAT MY FRIEND'S hsbc CREDIT CARD rUNNING aCCOUNT IS UNENFORCEABLE FOR A NUMBER OF REASONS..

 

i SHALL KEEP YOU ALL INFORMED ON THE PROGRESS

 

bYE Y'aLL

 

MEANS2ANEND

[Basil Fawlty]

Subbing.

[Pipster2797]

subbing

[means2anend]

what does subbing mean???

thanks

means2anend