From Monument to.......Cabot

[freethemice]

re the witness statement.

 

Be careful with this as it is likely to be a reconstituted agreement witnessed as been 'what you would have receaved' by an employee of the bank.

[foolishgirl]

I am having fun ........ googling this 'Woodchester Lease Management Services Ltd v Swain & Co NLD 14 July 1998' has brought up (amongst other things!) a link to tb in badgers!!!!!!!!!!!!!!!!!!!!!!!!!

 

Think it's 'cos you mis-spelt Swain - should be Swayne. Maybe Google thought you were looking for Swine? In which case wonder why it didn't direct you to Cabot??

 

See that CB's sent you the pdf , here's the Bailii link to help other lost souls:

Woodchester v Swayne & Co [1998] EWCA Civ 1209 (14 July 1998)

[cymruambyth]

Thank you everyone for your help. I'm basically storing and printing copies of everything referred to in statements, defences etc.

[cymruambyth]

re the witness statement.

 

Be careful with this as it is likely to be a reconstituted agreement witnessed as been 'what you would have receaved' by an employee of the bank.

 

I have only received a reply card with a seperate leaflet of t&cs.

 

Also dates all seem to tally though I will post a copy of the sale document for comments on who is who!

[cymruambyth]

Having studied the 'Reply Card', it states: 'I authorise you to send me a Priority Reserve Visa card with terms stated in the enclosed Terms and Conditions T&Cs. I have read an agree to be bound by the T&Cs.'

The card does not state A Amount of credit

B Repayments

C Rate of

D Credit limit

The leaflet is generic and has no reference to the application/account number.

Therefore, it does fail to satisfy the CCA regulations and is not enforceable by s 127.

Please reassure me that I am correct!!!!!

THank you

[BeauBrummie]

Having studied the 'Reply Card', it states: 'I authorise you to send me a Priority Reserve Visa card with terms stated in the enclosed Terms and Conditions T&Cs. I have read an agree to be bound by the T&Cs.'

The card does not state A Amount of credit

B Repayments

C Rate of

D Credit limit

The leaflet is generic and has no reference to the application/account number.

Therefore, it does fail to satisfy the CCA regulations and is not enforceable by s 127.

Please reassure me that I am correct!!!!!

THank you

 

 

Hi cyruambyth,

 

You may well be correct but - in my case in court the DJ said "what else are you supposed to sign and send back?

 

I argued that the s61 was not complied with but DJ was having none of it, basically saying you had the the card - you signed the card - you sent it back - what more did you need to do.

 

DJ relied on the fact that it says in first sentence of that card "This is a credit agreement regulated by the consumer credit act 1974..........

 

We now know that the DJ was mis directing the hearing but I still have to go to an appeal hearing and argue the same point!!

 

Beau

[foolishgirl]

Having studied the 'Reply Card', it states: 'I authorise you to send me a Priority Reserve Visa card with terms stated in the enclosed Terms and Conditions T&Cs. I have read an agree to be bound by the T&Cs.'

The card does not state A Amount of credit

B Repayments

C Rate of

D Credit limit

The leaflet is generic and has no reference to the application/account number.

Therefore, it does fail to satisfy the CCA regulations and is not enforceable by s 127.

Please reassure me that I am correct!!!!!

 

IMO you are correct Cy. To add weight to this argument, this scenario was emphasized by HHJ Waksman in the recent Carey case:

 

The Issue:

 

 

1. This arises solely in connection with s61(l)(a) and the requirement thereunder that the document signed by the debtor "contains" all the Prescribed Terms . The question is as follows:
   
   "Does the document signed by the debtor contain the Prescribed Terms for the purposes of section 61 and/or section 127(3) if:
   (a) they are on a sheet which is referred to on the piece of paper that was signed by the debtor; or
   (b) where that sheet is attached to the piece of paper signed by the debtor; or
   © where that sheet is separate from but was supplied with the piece of paper signed by the debtor?"
   
   
   
   

   The Assessment
    
   

2. The parties in Carey have helpfully agreed the following principles. The fourth one was added by Mr Uff, with their agreement. No other party takes issue with them. The OFT has formulated the matter in a slightly different way but accepts these principles are close to its position.
   
   

3. (1) It is not sufficient for the piece of paper signed by the debtor merely to cross-refer to the Prescribed Terms without a copy of those terms being supplied to the debtor at the point of signature;
   (2) A document need not be a single piece of paper;
   (3) Whether several pieces of paper constitute one document is a question of substance not form. In particular a physical connection between several pieces of paper is not necessary in order for them to constitute one document;
   (4) Additionally, a physical connection (or one or more physical connections) between several pieces of paper does not necessarily constitute them as one document;
   (5) Accordingly, where the debtor's signature and the Prescribed Terms appear on separate pieces of paper, the questions of whether those pieces of paper together constitute one document is a question of substance and not form.

   
   

4. As a matter of law, those principles appear to me to be correct, in the context of s61.
   

[cymruambyth]

Thank you both for your comments.

BB I thought there had been some interesting interpretations on these cards which was why I queried it.

FG Thank you as always for applying your extensive knowledge. More printing!!!!

[cymruambyth]

IMO you are correct Cy. To add weight to this argument, this scenario was emphasized by HHJ Waksman in the recent Carey case:

 

The Issue:

 

 

1. This arises solely in connection with s61(l)(a) and the requirement thereunder that the document signed by the debtor "contains" all the Prescribed Terms . The question is as follows:
   
   "Does the document signed by the debtor contain the Prescribed Terms for the purposes of section 61 and/or section 127(3) if:
   
   
   (a) they are on a sheet which is referred to on the piece of paper that was signed by the debtor; or
   
   
   (b) where that sheet is attached to the piece of paper signed by the debtor; or
   
   
   © where that sheet is separate from but was supplied with the piece of paper signed by the debtor?"
   
   
    
   
   

   The Assessment
    
   

2. The parties in Carey have helpfully agreed the following principles. The fourth one was added by Mr Uff, with their agreement. No other party takes issue with them. The OFT has formulated the matter in a slightly different way but accepts these principles are close to its position.
    
   
3. 
   
   (1) It is not sufficient for the piece of paper signed by the debtor merely to cross-refer to the Prescribed Terms without a copy of those terms being supplied to the debtor at the point of signature;
   
   
   (2) A document need not be a single piece of paper;
   
   
   (3) Whether several pieces of paper constitute one document is a question of substance not form. In particular a physical connection between several pieces of paper is not necessary in order for them to constitute one document;
   
   
   (4) Additionally, a physical connection (or one or more physical connections) between several pieces of paper does not necessarily constitute them as one document;
   
   
   (5) Accordingly, where the debtor's signature and the Prescribed Terms appear on separate pieces of paper, the questions of whether those pieces of paper together constitute one document is a question of substance and not form.
   
   

   
   

4. As a matter of law, those principles appear to me to be correct, in the context of s61.
   

 

Hi FG

I know I'm tired and not fully functioning, but surely point 3 (1) means it will just be an argument in court and depend soley on DJ believing their barrister that this is the case.

Point 3(3) can be taken that any 2 sheets that aren't linked are an agreement.

Sorry if I'm being thick but I'm trying to ensure I'm covering everything.

[sir fussalot]

Hi FG

I know I'm tired and not fully functioning, but surely point 3 (1) means it will just be an argument in court and depend soley on DJ believing their barrister that this is the case.

Point 3(3) can be taken that any 2 sheets that aren't linked are an agreement.

Sorry if I'm being thick but I'm trying to ensure I'm covering everything.

 

hiya Cy..

 

That's how I read it at first glance, BUT;

 

(1) It is not sufficient for the piece of paper signed by the debtor merely to cross-refer to the Prescribed Terms without a copy of those terms being supplied to the debtor at the point of signature

 

Look again,

 

You DIDN'T have the PRESCRIBED TERMS included in the first place!.

 

Cym' this is my opinion. As you said Try to cover ALL arguments..

 

 

Fussey.

Edited March 13, 2010 by sir fussalot

[cymruambyth]

Still playing devil's advocate:(

Leaflet mentions amount of credit (we will determine from time to time); interest rate after 1st 3 months free will be BofE base rate plus a % margin; charges of £18.

[foolishgirl]

Still playing devil's advocate:(

Leaflet mentions amount of credit (we will determine from time to time); interest rate after 1st 3 months free will be BofE base rate plus a % margin; charges of £18.

 

It may mention all these in the leaflet but were they all there at the point of signature eg. either stated on the application card & if on the back referred to on the front ie. terms overleaf?

[cymruambyth]

'I authorise you to send me a Priority Reserve Visa card with terms stated in the enclosed terms and conditions T&Cs. I have read an agree to be bound by the T&Cs.'

Does this statement on the card not cover them? I thought that an argument had successfully been put forward that a leaflet that is referred to could be sufficient, though I know this wasn't the case in the original act.

[cymruambyth]

HI i've sent the CPR requests, but just wondered is it still possible to send Cabot a SAR even though court is imminent? Thought I would just check to see if they have anything in addition to reply to defence, WS and disclosure:eek:

[BeauBrummie]

HI i've sent the CPR requests, but just wondered is it still possible to send Cabot a SAR even though court is imminent? Thought I would just check to see if they have anything in addition to reply to defence, WS and disclosure:eek:

 

 

Cyruambyth,

 

I have been to court without having the benefit of information in a SAR.......I now wish I had done it sooner:wink:

 

I have now sent one, and I think they still have about 20 days to reply.

 

I think there will be no harm in sending one, and under the DPA s7 it is your right.

 

Beau

[cymruambyth]

Thank you. I was going to send one several months ago but went down the CPR route instead. Having done a bit of reading:rolleyes: it seems like a good idea!

[BeauBrummie]

'I authorise you to send me a Priority Reserve Visa card with terms stated in the enclosed terms and conditions T&Cs. I have read an agree to be bound by the T&Cs.'

Does this statement on the card not cover them? I thought that an argument had successfully been put forward that a leaflet that is referred to could be sufficient, though I know this wasn't the case in the original act.

 

This argument was put to me in court.

 

Having had that particular section read out to me verbatum I replied "Does that constitute an agreement that is contract"

 

DJ said "Yes it says so" and than goes on to quote "This is a Credit agreement regulated........

 

Maybe I used the wrong approach but it was about this point I realised I was starting to flounder.

 

DJ then continued in the same breath, to talk about how the document is considered as one......

 

"The whole of the document that you were sent including the T&C's constitutes the "Contract". The fact that you only have to send back a bit of it, and you do not have send back the whole of it, does not mean you did not effectivley sign the whole of it. It's one document. This says(The App Form) that this is sent to you with the T&C's and you accept the T&C's and you understand that it is a regulated agreement under the CCA.

 

Just looking a bit more into the reply card as you are - it says

 

"I understand you will telephone me in connection with my application to gain relevant additional details........

 

So on this point what other details could they be looking to get? and where were they recorded?

 

Im sure this application was a mailer through the post - so they would almost certaily looking to confirm your details on an agreement????

 

Or am I clutching at straws?

 

Beau

[cymruambyth]

I think he was wrong, most of what he did showed a lack of knowledge. The original act and the CAG interpretations show that the documents need to be within 4 corners or linked. This is neither.

I'm just throwing out arguments that I think may be given to me but which I think are wrong. (Sory to say I have learnt from your case and am trying to think of different arguments).

[cymruambyth]

Please can anyone point me to a copy of the CCA 1974 as the CAG copy is from Butterworths Direct and can't be reproduced etc and I don't with to encounter that argument with Morgans!!

[citizenB]

I dont know if the following will be of any use. I was clearing out some old email notifications and it looks as those DaveFireWalker had the same issues with a "reply card"

 

xx

 

http://www.consumeractiongroup.co.uk/forum/general-debt-issues/84285-ccas-dave-against-world-new-post.html

 

 

 

 

 

DFW

V

Barclays Bank plc

Particulars of claim

 

*_Statement of the facts_*

 

(1)The claimant is a litigant in person

 

(2)At all material times the claimant has had an account with the defendant from 1999 to the present day, originally numbered nnnnnnnnnn

 

(3) On or around the 12th April 2007 the claimant had asked the defendant for a copy of their agreement as is its right under S.78 of the Consumer Credit Act 1974 (as amended) “The Act”

 

(4) In response to that request the defendant supplied a single page document headed “Reply Card” that did not appear to conform to the required format of The Act in that no prescribed terms were evident, nor did it have the creditors name or address or any of the required terms as per The Consumer Credit (Agreements) Regulations 1983 (SI 1553.) They are bound to this by S.172 of The Act. Along with this they also supplied a handwritten statement of account.

 

(5) No copy of the original terms and conditions was produced despite a request to see them.

 

Points arising

 

(6) The Act is very specific about the form and content of regulated agreements, and the PROTECTIONS that are provided to consumers if these regulations are not adhered to. Francis Bennion, draftsman of the 1974 Act stated that........

“ 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.”

 

(7) This is shown in Wilson and others v. Secretary of State for Trade and Industry [2003] UKHL 40 on appeal from: [2001] EWCA Civ 633 where it was held that Mrs Wilson did not have to repay any money borrowed and in fact could also keep her vehicle offered as security.

 

 

(8)Also from 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

 

(9)Section 60 – 61 of The Act defines the Statutory content of the agreement, whereas The Consumer Credit (Agreements) Regulations 1983 (SI 1553) show exactly what format the agreement must take

 

(10) Schedule (1) of The Consumer Credit (Agreements) Regulations 1983 (SI 1553), Shows the format of the main content of the agreement, and schedule (6) shows the prescribed terms.

 

(11)In Wilson and anr v Hurstanger Ltd, Court of Appeal 4 April [2007] EWCA Civ 299 Lord Justice Tuckey observed that all terms should be within the signature document, and not in any other document. (Para 9 -11) an excerpt is reproduced below

 

“ In my judgement 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 s 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; and 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. “

 

(12) Section 127 of the Act allows the court to render the agreement unenforceable if any of the conditions of s60 - s61 are not met

 

(13)Section 142(b) allows the court to declare the rights of the parties and can if it chooses dismiss any future enforcement.

 

(14)As no original terms were supplied neither the claimant nor the defendant can be 100% sure as to the Content and Effects of any original terms. If such is the case the original terms may have contained unfair clauses that would now render the agreement ineffectual, or may or may not have contained terms now relied upon. They may have contained clauses that would leave them open to breach of contract. It MAY have contained a term whereby on the anniversary of the card they would credit me with £50, or when I finish the agreement they would give me a £1000 goodbye present. The right to vary the agreement may not have existed along with other terms....... In short the audit trail needs to be started from the beginning.

(15)As defined in S.189 of The Act “executed agreement ” means a document, signed by or on behalf of the parties, embodying the terms of a regulated agreement, or such of them as have been reduced to writing; “unexecuted agreement ” means a document embodying the terms of a prospective regulated agreement, or such of them as it is intended to reduce to writing;

 

(16)The defendant is also in breach of S.63 (2) of The Act in that as the document was never signed by the defendant it remains unexecuted, and as such it could not possibly have given a copy of the “Executed” agreement to the claimant. This would also make the agreement unenforceable under S. 127

 

(17) Further as no executed regulated agreement appears to exist the defendant could not possibly have complied with Section 85 of The Act, which would also put the defendant in default via paragraph 2 of S.85. This default has existed for several years, and would also make the agreement unenforceable.

 

(18)Despite its defaults being pointed out and its legal obligations explained, the defendant continues to try and enforce the debt unlawfully, and continues to report the account to the credit reference agencies to the detriment of the claimant, despite a S.10 DPA 1998 request not to.

 

(19) All avenues seem to have been exhausted in trying to resolve this matter with the defendant over the course of two years and in fact many of the letters delivered by recorded delivery and normal post to try to achieve settlement have been ignored.

 

The claimant therefore contends that:-

 

(20) As the form and content of s 60-61 were not complied with it must be declared improperly executed and unenforceable via section 127(3) of The Act. The agreement is unenforceable, as no valid prescribed terms are on the document. As this agreement is dated before the recent changes in the 2006 act the 1974 Act and its amendments are relevant and not the recent 2006 Act. Section 127 applies fully

 

(21)The agreement was not executed by the defendant and so is to date “unexecuted”

 

(22)The agreement is also unenforceable due to a breach of section 63(2) and section 127 of the Act

 

(23)The defendant is in default of Section 85 of The Act.

 

(24)As the original terms are unavailable, no proof can possibly be put forward that the claimant had agreed to any repayment schedule, the charging of interest, the variation of any terms, and the passing of data onto third parties, along with any other terms the defendant may now try to enforce. no valid terms and conditions exist or have existed, that allow the defendant to enforce the agreement, add interest, or pass data on third parties.

 

(25)As the Claimant was under the impression the agreement was a legally enforceable, properly executed regulated agreement under the Consumer Credit Act 1974, any interest paid to the defendant was paid in mistake and as such is due restitution. Lord Denning In his summing up of Kiriri Cotton Co Ltd -v- Dewani [1960] AC 192 explained…

 

“Nor is it correct to say that money paid under a mistake of law can never be recovered back. The true proposition is that money paid under a mistake of law, by itself and without more, cannot be recovered back. ... If there is something more in addition to a mistake of law – if there is something in the defendant’s conduct which shows that, of the two of them, he is the one primarily responsible for the mistake – then it may be recovered back. Thus, if as between the two of them the duty of observing the law is placed on the shoulders of the one rather than the other – it being imposed on him specially for the protection of the other – then they are not in pari delicto and the money can be recovered back”

 

(26)The Claimant also contends that the Defendant would be unjustly enriched if the Claimant’s entitlement was limited to recovery of a compensatory award and of simple interest at the statutory rate. The defendant has been in wrongful possession of the Claimant’s funds for a considerable period of time and as a lending institution has earned profit by way of interest by re-lending those funds at its commercially compounded rates. Conversely, the Claimant having been denied use of its funds in the defendants wrongful possession and was forced to replace those funds by increased borrowing at commercially compounded rates. Thus an award of compound interest is necessary to provide full restitution and a just remedy. This has been shown recently in Sempra Metals v Inland Revenue

 

(27)The claimant would also point out that damage may have been caused to her reputation and financial standing due to the misreporting of inaccurate data to the credit reference agencies. (Kpohraror v Woolwich Building Society [1996] 4 All ER 119) and as such is due compensatory damages at any rate the court sees fit.

 

(28)In Durkin v DSG RETAIL LIMITED and HFC BANK PLC, it was stated “Kpohraror confirmed that such damages were available to individuals who were not traders. In that case a cheque was dishonoured and then the matter put right within 24 hours. Also in that case the plaintiff claimed both special damages and the general damages of £5,500”. Lord Justice Evans said at page 124 "The credit rating of individuals is as important for their personal transactions, including mortgages and hire purchase as well as banking facilities, as it is for those who are engaged in trade, and it is notorious that central registers are now kept. I would have no hesitation in holding that what is in effect a presumption of some damage arises in every case in so far as this is a presumption of fact."

 

Therefore the claimant claims that:-

1) The agreement be declared unenforceable in perpetuity under Sections 127 and 142 of the Consumer Credit Act 1974. Alternatively it be declared unenforceable.

2) All interest paid to the account to be returned, as any payments of the Interest were in fact a mistake and as such is due restitution by the defendant. As calculated and shown on schedule of charges (schedule A) this amounts to £4040.69 Alternatively at the courts discretion all the money paid to account that was paid in mistake should duly be returned.

3)Any money returned should be subject to the defendants own cash interest rate compounded at a daily rate, as allowed by the judgement in Sempra Metals Limited (Respondents) - v - Her Majesty's Commissioners of Inland Revenue and another (Appellants). [2007] UKHL 34 on appeal from: [2005] EWCA Civ 389 Where the House of Lords held that compound interest is available at common law where the Claimant seeks a restitutionary remedy for the time value of money paid under a mistake. As again shown on schedule A this would amount to (as far as can be ascertained) £6962.88

 

4)Alternatively a Section 69 of the county courts act 1984 rate of 8% from the date of each charge which calculates to £1675.37 or at any other rate or amount that the court feels just.

 

5) As no regulated agreement seems to exist any adverse data or defaults posted by the defendant to the credit reference agencies to be removed as per the basic principles of the Data Protection Act, in that any such data would be / is inaccurate and could constitute further harm and be of detriment to the claimant. This is provided for by the Data Protection Act 1998 S.10 and S.14 (1) + S.14 (3)

 

6) Interest at the same rate as above to be added to the amount until payment of judgement or at whatever other rate the court sees fit.

7) Any costs / court fees allowable

I believe the contents of these particulars of claim to be true.

 

 

Signed

 

DFW

 

[cymruambyth]

Thanks CB, I'll add it to my collection

[foolishgirl]

Here's your CCA link Cy:

Results within Legislation - Statute Law Database

[cymruambyth]

Thank you

[BeauBrummie]

Hi Cyruambyth,

 

I have been doing further digging re SAR.

 

It appears as though we should write to

 

The Data Protection Team

Dept LRC

Barclaycard

Northampton

NN4 1ZY

 

This after phoning Monument because they have not acknowledged my request. I have found that some accounts were moved onto a Company called Compucredit and others were sold to DCA's and the Data Controller is still Barclaycard.

 

Beau

[cymruambyth]

Hi I've gone to Cabot to see what they have!