Just Recieved A Signed Capital One Agreement

lilly white · July 3, 2009

SOMEONE MENTION HALIFAX

SUNFLOWER

I WOULD LIKE TO POST THIS ON YOUR TREAD JUST IN CASE YOU MISS IT

A RECENT COURT CASE WHICH WAS POST YESTERDAY BY DIDDY TICCY

ONE OF OWN

IT IS A GREAT READ O HAPPY DAYS

his should warm the cockles of your heart (this was halifax)

Here is the transcript of the recent Bank of Scotland v Mitchell case in the Leeds County Court.

I have just copied and pasted as I don't know how to attach a copy here,hope its ok

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 focussed, 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.

__________

Yesterday, 10:36 #44 (permalink

Edited July 4, 2009 by citizenB
Tidied up formatting for easier reading :)

MrMT · July 3, 2009

lilly white, thank you very very much for posting that here!! Although I get the gist of it, I would appreciate a breakdown in laymans terms as I get the impression the judgement is focusing on the application form as being the CCA because it is the signed document? And as such, does not contain the prescribed terms etc and therefore is unenforceable?

And I do love the reprimand given to the bank for playing the courts though I fail to see why it falls short of abuse.

GamekeeperToPoacher · July 3, 2009

it must be health and safety

Or taste?

Murphy69 · July 3, 2009

This is fantastic news illy white re your recent post.

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

This case can be used as a reference point.

Well done to everyone and keep the good fight up.

Please sign this petition - time is running out –

http://petitions.number10.gov.uk/Charging-Orders/

sunflower99 · July 3, 2009

Hi lily white brilliant news and a new very recent case law for us to bring up in defence as well as all the classics such as wilson V first county trust!:Di i will be printing that one off to quote !

sunflower99 · July 3, 2009

i did see something that i posted up about Halifax in this thread but did not get a much detail as you did! Another victory against these banks trying to take people to court when they dont have a valid or properly exrcuted CCA!

sunflower99 · July 3, 2009

Hi everyone!

A completely newbie to this forum so I hope I will get a warm welcome and some good impartial advice...

This thread came up on a Google search as I'm currently looking into getting a copy of my CCA for a Natwest Loan taken before April 2007.

I've read through to page 8 on the thread and so far some great reading. I will continue to read some more but right now I'm itching to find out how your particular case ended up Sunflower99? Did you get them to agree the CCA was unenforceable? Has the "debt" been written off?

Also, the initial post dates back to December 08, has much changed (in lender/ credit card company attitudes) since then? or is it still as much a fight? I was considering paying a debt management company to do the relevant checks and pursue this to court if needs be (£145 fee and on a no win, no fee basis). I'm not sure I have the patients for those persistent and very irritating demand for payment calls.

Also anyone had any experience with Natwest before?

Thanks in advance for all help...

S4VVY

Hi Savvy

No not as good as that im afraid! Crapital one are very reluctant to admit they dont have enforcable agteermens but it seems that after all the telephone harrsemrnen and threatogramst they usually go quiet if they realise they have taken on someone who knows their rights, and a lot of people have had crapital one go quiet on them after a barrage of threats .from them then debitarse and them sometimes the the pondfeeders they play pass the parcel with!but seem to give up and leave people alone after that in the case that they have unenforceable shreeded t or dodgy agreements!

Edited July 4, 2009 by sunflower99

lilly white · July 3, 2009

sunflower the bits i like

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.

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.

well no more to be said

silverfox1961 · July 4, 2009

Morning all,

Just an update for the fan club.

Cap1 have acknowledged my claim and are fully defending (for now)

For those that don't know what the hell I'm on about:

http://www.consumeractiongroup.co.uk/forum/legal-issues/204306-fox-cap1-dpa-sar.html#post2225332

Nervous now

keefyboy · July 4, 2009

Savvy

You bring up about using a debt management company to pursue your claim, make sure, even if it is no win no fee, how much you will have to pay them.

I had a company do 2 credit card charges claims (this was unfair charges) and the first one we won quite easily, I was astonded to have only just over £300 left after everything was taken.

There was the 25% for the company + VAT, there was court fees to pay (set fees cant remember offhand how much they were), then there was the solicitors fees, even though you were awarded costs the costs are set at a certain level and is included within your claim, so they had to be paid £105, and in the end I had paid out loads and got just over £300, better than nothing. The second case was with the same management company against CITI cards, it was adjourneds several times because Citi sent very unprepared person for the case, who failed to bring certain documents and on one occasion they even failed to turn up. But the judge allowed the case to be heard at a later date, which was december last year, she listened to everything and everyone, then ajourned the court to give her chance to run through everything (there was 6 cases put in together). It turned out that she took notice of the mainly worst case against CITI and finally delivered her verdict in March this year, and SHE BLEW it out, all six cases, because this one case was so weak case to win.

Luckily it was a no win no fee case, so it didnt matter to me.

So Savvy and anyone else wondering about these sort of claims and using a Debt Recovery company (Not a Debt Management Company who looks after your debtors etc for a set fee each month. I currently do employ a DMC and they are totally different to a Company offering their services to recover charges etc). Check them out thoroughly first. I know they take the hassle out of it but at a BIG price..

KB

mnayyar · July 5, 2009

Hi

I am new to this site and am considering trying to write off my credit card debt. I have managed to obtain the template letter to send to the company but wanted a little bit of adviceregarding what happens after this. I have done something similar with bank charges and found a lot more advice on how to handle responses. I have several questions including:

Once I have sent the letter, what should I do if the they have no CCA? Should I stop paying, but if so will they take me to court?

If I stop paying and they don;t take me to court, how will this appear on my experion credit report- will it appear assettled or defaulted?

If they do threaten to take me to court, what should I do then? I could not find any further letters and whilst I do want to do and avoid paying high fees to solicitirs, I am slightly concerned that with very limited legal knowledge, I am taking on more than I can handle.

Also I have been reading your case abut them sending the application- if this is a case of them scanning and changing docs- is there anything that can be done to fight against this.

Any advice from an expert or anyone who has done this before would be greatly appreciated.

Thanks :-)

the_shadow · July 5, 2009

Hi
I am new to this site and am considering trying to write off my credit card debt. I have managed to obtain the template letter to send to the company but wanted a little bit of adviceregarding what happens after this. I have done something similar with bank charges and found a lot more advice on how to handle responses. I have several questions including:

Hi mynayyer, You havent stated... is this because you are in financial difficulty at present?

Once I have sent the letter, what should I do if the they have no CCA? Should I stop paying, but if so will they take me to court?

If you stop paying iits a possibility, it depends who the creditor is and how aggressive they deal with accounts. Most companies will respond with something, a set of t&c or a blank agreement that will probably satisfy the s78 request.

If I stop paying and they don;t take me to court, how will this appear on my experion credit report- will it appear assettled or defaulted?

That is the one certainty in all this... your credit file will be marked as missing payments until they eventually default your account and mark a default on your credit file for the next six year (or until you take them to court to get it removed(if they have no CCA))

If they do threaten to take me to court, what should I do then? I could not find any further letters and whilst I do want to do and avoid paying high fees to solicitirs, I am slightly concerned that with very limited legal knowledge, I am taking on more than I can handle.

Too many days down the line to say to be honest... you need to see what they come back with for the s78 request before people can give you specific advice.

Also I have been reading your case abut them sending the application- if this is a case of them scanning and changing docs- is there anything that can be done to fight against this.

If the application contains the prescribed terms then I believe a judge will find it enforceable.

You need to start your own thread, if you follow this link it take you to the general section, click on the new thread button to start a new one.

General Debt Issues - The Consumer Forums

S.

S4VVY · July 9, 2009

Savvy
You bring up about using a debt management company to pursue your claim, make sure, even if it is no win no fee, how much you will have to pay them.

I had a company do 2 credit card charges claims (this was unfair charges) and the first one we won quite easily, I was astonded to have only just over £300 left after everything was taken.

There was the 25% for the company + VAT, there was court fees to pay (set fees cant remember offhand how much they were), then there was the solicitors fees, even though you were awarded costs the costs are set at a certain level and is included within your claim, so they had to be paid £105, and in the end I had paid out loads and got just over £300, better than nothing. The second case was with the same management company against CITI cards, it was adjourneds several times because Citi sent very unprepared person for the case, who failed to bring certain documents and on one occasion they even failed to turn up. But the judge allowed the case to be heard at a later date, which was december last year, she listened to everything and everyone, then ajourned the court to give her chance to run through everything (there was 6 cases put in together). It turned out that she took notice of the mainly worst case against CITI and finally delivered her verdict in March this year, and SHE BLEW it out, all six cases, because this one case was so weak case to win.

Luckily it was a no win no fee case, so it didnt matter to me.

So Savvy and anyone else wondering about these sort of claims and using a Debt Recovery company (Not a Debt Management Company who looks after your debtors etc for a set fee each month. I currently do employ a DMC and they are totally different to a Company offering their services to recover charges etc). Check them out thoroughly first. I know they take the hassle out of it but at a BIG price..

KB

KB

Thanks for your input. I'm a little baffled as to why you had to pay when you won? I thought the solicitors apply in court for all their fees to be paid by the other side? And have a duty to you to not let the fees get out of hand?

The couple of companies I've spoken to offer a no win no fee service but there is a fee upfront. If the solicitors decide they won't take your case or you don't win the case you get a refund on part of that payment.

Do you mind if I PM you to ask which company you used? So that it's not seen as advertising...

S4VVY

beachcomber60 · July 10, 2009

Hi fellow members,

Just updated my own thread & thought I'd post it here also :-

*** HELP ***

Although I have disputed the account based on charges, I have received(yet again) a reply from capquest stating that they have been instructed by capone to carry on with collection activities, capone will deal with the dispute (they have only offered a £12 refund :shock: ), surely capquest arent allowed to pursue a disputed account.

Capq are only collecting on behalf of capone.

Currently dealing with three bereavements within eight days and can well do without these leeces at the moment. :Cry:

Any advice would be most welcome.

Disputed account materials Follow this link to our library of materials to help you try to deal with the problems of defaults on disputed accounts.

It is contrary to Information Commissioner guidelines and also contrary to the banking code to default disputed accounts.

However, it happens all the time.

Beachy

the_shadow · July 10, 2009

Hi fellow members,

Just updated my own thread & thought I'd post it here also :-

*** HELP ***

Although I have disputed the account based on charges, I have received(yet again) a reply from capquest stating that they have been instructed by capone to carry on with collection activities, capone will deal with the dispute (they have only offered a £12 refund ), surely capquest arent allowed to pursue a disputed account.

Capq are only collecting on behalf of capone.

Currently dealing with three bereavements within eight days and can well do without these leeces at the moment.

Any advice would be most welcome.

Disputed account materials Follow this link to our library of materials to help you try to deal with the problems of defaults on disputed accounts.

It is contrary to Information Commissioner guidelines and also contrary to the banking code to default disputed accounts.

However, it happens all the time.

Beachy

Personally I'd send a strong letter back to crapquest warning them that as this is a disputed account balance which they confirm capital one have acknowledged they are in breach of the oft debt collection guidelines.

Advise them you are therefore reporting them for this and thank them for the letter which will be forwarded as evidence to the OFT.

....and sorry to hear about the bereavements, get the letter sent off and just put at the bottom until the dispute is settled no further correspondence will be responded to, you have more important things to worry about than this bunch of losers

S.

sunflower99 · July 23, 2009

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 focussed, 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 betweenthe 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