Robinson Way CCJ/CO Cap1 card debt - was unable to respond - now want to set aside **LOST** - appealed - **WON** Claim reset - **WON - Case dismissed**

[GhostDebt]

Have sent you an e-mail.

Regards

[RobinWayRobinme]

Hi all

Just received a letter from Horwich Farrelly sols with what may be a valid notice of assignment From Robinson Way & Company Ltd to Robinson Way Ltd . I will scan and post letter later. What is interesting is the wording which states "by an agreement dated 25th September 2009 our client Robinson Way & Company Ltd transferred all of it's assets to Robinson Way Ltd"

 

Reading literally, RW&Co Ltd have nothing now !!! Has anyone else received a letter like this? If the statement is correct, anyone that is dealing with RW&Co should have one.

 

Look forward to feed back.

 

Robin

[citizenB]

I think we need to see a copy of this Robin before comments can be made on it.

 

I am not sure if this affects your appeal in anyway. The transfer appears to have been done AFTER they took you to court though !!

 

Once you have the letter up then I will draw others attention to it.

[RobinWayRobinme]

Thanx CitizenB

Seems it may be to all as noticed cymruambyth has had a same letter. BTW checked with companies house and Robinson Way Ltd was only incorporated 29/07/2009.

Need to pop out for a while soon but will be back online a bit latter.

Robin

[RobinWayRobinme]

Notice of assignment to follow. Appeal filed with court before assignment took place. They have not stated an address for Robinson Way Ltd, does that make it a valid NoA?

 

Would be quite interesting if there were a mass of requests for a copy of the assignment (Van Lynn v Pelias)

 

NoA 1.pdf

[cymruambyth]

Hi, yes it is exactly the same letter as mine.

[RobinWayRobinme]

Guess there are many more like us. Makes sense as well with a letter I got from sols acting for RW&CO (not HF). Basically they chased for payment of costs awarded on set aside. I duly told them to go away as it was added to judgment. Guess they are not getting paid then by their client :grin:

 

Robin

[RobinWayRobinme]

If anyone wants to know whats happening at Robinson Way check out the link. Robinson Way // Robinson Way News Basically it appears to be a management buy out (MBO) These are normally done when the company has problems and unless it happens everything collapses. (known as a pheonix). The management team buy assets, the only thing of value, leaving their creditors to fight amongst themselves over the pickings of the failing company. How can any of this help anyone here, I'm not sure, but with further thought and contribution from other knowledgeable caggers maybe there is something that we can all gain from this.

 

In the meantime I will continue with my appeal, but I will also look at what these people have done and maybe there are issues that need to be looked at further as one area that MBO's are vulnerable to is fraudulent conveyance of assets. Who knows what someone may find. I am very bitter against these people. Its the same team in charge so don't expect their practices to change!

 

Maybe its because of groups like this that RW&COltd has ended the way it has. I'm realatively new to this forum but I do believe that it has given RW a bit of a kick up the backside.

 

Robin

[GhostDebt]

Hello Robin,

 

Can't read the image you posted as too small.

Can you re post please.

 

I expect you will get further comments later.

[cymruambyth]

Hi ghost, if you click on http://www.consumeractiongroup.co.uk/forum/attachment.php?attachmentid=12976&d=1254497635 and not the thumbnail you get the letter.

[GhostDebt]

Thanks for that, learn something new every day..

 

If this is a notice of assignment, two things first spring to mind.

 

1. Was it served in accordance with s196 Law of Property Act?

 

2. Read the letter again... ref the date of assignment. what date was it?

 

On a seperate issue,

I assume that Capital One are alleged to have assigned this to RW&Co originally. Was the original assignment ok?

 

Regards

[GhostDebt]

Quote from a post by 42Man on this thread

http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/190222-notice-assignment-default-notices.html

 

--

 

The Defendant denies that he is liable to the Claimant as alleged in the Particulars of Claim, /at all. It is averred that the Claimant has failed to serve a Notice of Assignment in accordance with section 136(1), of the Law of Property Act 1925, in respect of the alleged debt. The amount detailed in the Claimant’s claim, which is likely to include penalty charges, which are unlawful at Common Law, Dunlop Pneumatic Tyre Company Ltd v New Garage and Motor Company Ltd [1915], under The Unfair Contract Terms Act 1977 and The Unfair Terms in Consumer Contracts Regulations 1999. Accordingly, the inclusion of penalty charges in the purported Notice of Assignment renders it entirely legally unenforceable. The Claimant has failed to comply with section 136(1) of the Law of Property Act 1925, by furnishing a Notice of Assignment in respect of that which is denied, that is inaccurate, W.F.Harrison and Co Ltd v Burke [1956].

The defendant requires sight of the notice of assignment of the debt. In addition the defendant requires proof of service of the Notice of Assignment in accordance with s196 of the Law of Property Act 1925 which is required to give the claimant a legitimate right of action in their own name since it appears this is an assigned debt. the reason the defendant requests this information is inter alia to clarify the dates are correctly stated on all documents , the defendant notes that if there are errors in the assignment it may be rendered in effectual in law per W F Harrison and Co Ltd v Burke and another - [1956] 2 All ER 169

2 -Perfection of the assignment.

 

2.1. I have never received a notice of assignment according in all respects with s136 of the Law of Property Act 1925

 

2.2 I respectfully submit to the court that steps to ensure service of a notice of assignment are only adequate if the requirements of s196 of the law of property act 1925 are complied with regard to either (a) personal service or (b) postal service.

 

2.3 Since the claimant explicitly states the notice was “sent” it is assumed that this was done via the postal service.

 

The requirements for service via the post are

 

Law Of Property Act (1925) s196

.

Regulations respecting notices.

(4) Any notice required or authorised by this Act to be served shall also be sufficiently served, if it is sent by post in a registered letter addressed to the lessee, lessor, mortgagee, mortgagor, or other person to be served, by name, at the aforesaid place of abode or business, office, or counting-house, and if that letter is not returned by the postal operator (within the meaning of the Postal Services Act 2000) concerned undelivered; and that service shall be deemed to be made at the time at which the registered letter would in the ordinary course be delivered.

3.2 - It is noted that the claimant has, at no time, provided evidence that the notice of assignment was sent via registered post, and if “sent” via any other method, the notice was not sufficiently served

 

3.3 -. I did not receive any notice of assignment in the format prescribed by law and served in the prescribed manner from the respondent, and I have asked the other members of my family if they signed for such a document; they have assured me that they did not.

 

3.4 - To the best of my knowledge, any notice of assignment sent by registered post must, therefore have been returned to the respondent.

 

3.5 - Consequently, I do not believe that any notice of assignment was properly served upon me at the date of the claim, and therefore any assignment has not been perfected in law.

---

Highlighted a few bits in bold.

Regards

[RobinWayRobinme]

Must admit guostdebt I woke this morning with similar thoughts (I know a bit sad). However my thoughts were along the lines of this notice of assignment has not been properly served so (LPA s196). That being the case, bearing in mind that it is posted in normal 2nd class dodgy envelope post, the following options are available to all depending on their own individual dealings with Robinson Way.

1. NoA was never received so no lawful assignment.

2. Yes accept NoA as being received and ask for copy of assignment before you deal with them.

3. As there is no proof of delivery, we could pick whatever date we want as date of service should timing of certain issues be relevant. They could not prove to the contrary.

 

Basically saying, maybe tactically there is something to be gained.

[RobinWayRobinme]

Right here goes. 1st draft of skeleton argument to follow. Much appreciated if CitizenB and AndyOrch were to cast there eye over, but all welcome to give opinions and assistance.

 

1. This is an appeal against an order by District Judge xxxxxx dated 4th September 2009. The Appellant claims that the District Judge miss-directed herself as to the law and was wrong. As a result the order made was ultra vires. In addition there were failures to comply with the Civil Procedure Rules which (i) fatally undermined the Appellant’s application, and (ii) resulted in the parties being on an unequal footing. The hearing will take 2 hours.

THE TRAIL BUNDLE

2. References in this document prefixed “TB” are references to the Trial Bundle.

THE FACTS

3. The facts in this appeal are:

3.1. The first time the Appellant knew of the Respondent was January 2009, on receipt of their letter dated 30/12/2008 (TB X).

3.2. Before a claim was served on the Appellant only two further letters were received from the Respondent dated 14/01/2009 and 01/02/2009, both of which they were writing as debt collectors (TB X & X).

3.3. On 30/01/2009 the Appellant wrote to the Respondent requesting further details and asking who they were (TB X).

3.4. On 20/03/2009 the Respondent issued a claim form from Northampton County Court Bulk Centre, with the Particulars of Claim relying solely upon a credit agreement.

3.5. During this period, the Appellant was caring for his terminally ill Mother (TB X).

3.6. On 01/04/2009 the Appellant served an admission and request for time to pay in response to the Claim Form (TB X).

3.7. On 15/05/2009 the Respondent requested online that Judgment be entered in default of not replying to the claim.

3.8. On 18/05/2009 the Respondent attempted to correct the default judgment entered wrongly by filing with the Court a claimant’s notice stating that the Appellant admitted the claim but the Respondent did not accept the proposal for payment.

3.9. On 18/05/2009 the Court returned the claimant’s notice informing the Respondent that as Judgment had already been entered the judgment entered wrongly could only be corrected by the Respondent applying to set aside the default judgment.

3.10. On 26/05/2009, following receipt of the default judgment, the Appellant telephoned the Respondent and pointed out that the default judgment was entered wrongly.

3.11. On 15/06/2009 the Appellant filed an application to set aside judgment.

3.12. On 29/06/2009 the Respondent made an application and obtained an Interim charging order.

3.13. On 01/08/2009 the Appellant made a disclosure request to the Respondent under CPR 31.14 for copy documents in support of their claim to be received by the Appellant within 14 days (TB X).

3.14. On 01/08/2009 as it appeared the alleged debt may have been an assignment from Capital One Bank (Europe) plc the Appellant made a Data Subject Access Request under section 7 of the Data Protection Act 1998 (TB X).

3.15. On 14/09/2009 the Appellant served his first Witness Statement on the Respondent (TB X).

3.16. On 15/08/2009 the Appellant sent a letter to the Respondent chasing the documents requested in the disclosure letter of the 01/08/2009, giving the Respondent a further 7 days to comply.

3.17. Before the Appellant entered the hearing on 04/09/2009, the Respondent had not provided any copy documents requested in the disclosure request, nor had Capital One Bank (Europe) plc replied to the Data Subject Access Request.

3.18. In the hearing on 04/09/2009 the Appellant was handed a copy of a letter allegedly sent by the Respondent to the Appellant on 25/11/2009 purporting to be a Notice of Assignment (TB X).

3.19. The copy letter was accepted by the court despite the Appellant objecting to it being used at the hearing as he had been given no time to consider it.

THE ISSUES

4. The issues in this appeal are:

4.1. Was the Default Judgment dated 15/05/2009 entered correctly meeting the conditions set in CPR 12.3(3)?

4.2. Did the Respondent prior to making the claim serve a valid Notice of Assignment on the Appellant making the alleged assignment effective and lawful?

4.3. Does the Respondent have a Consumer Credit Agreement which complied with the Consumer Credit Act 1974 and relevant subsequent Regulations in that it stated all prescribed terms correctly?

4.4. Did the Respondent prior to making the claim fulfil their obligations under the Consumer Credit Act 1974?

4.5. Following the allegation by the Appellant that the Respondent acted unfairly according to Section 140A of the Consumer Credit Act 1974 did the Respondent prove that they acted fairly towards the Appellant according to Section 140B of the Consumer Credit Act 1974?

4.6. Did the Respondent comply with the Civil Procedure Rules in particular CPR 16 Practice Direction 16 paragraph 7.3?

4.7. Was the District Judge right to accept at the hearing a copy letter dated 25/11/2008 purporting to be a Notice of Assignment as evidence when it was not recognisable as such?

4.8. Was the District Judge right to rule on the copy letter dated 25/11/2008 purporting to be a Notice of Assignment without establishing the reason for lateness, the failure to submit the same as an exhibit to an affidavit or witness statement and if satisfied with the explanations giving the Appellant an opportunity to review by adjourning the application?

4.9. Was the District Judge’s ruling correct that the copy letter dated 25/11/2008 was a valid Notice of Assignment correctly served on the Appellant?

4.10. Were the allegations in the Particulars of Claim correctly stated?

If the answer to any question is no then the appeal succeeds.

AUTHORITIES

5. The Appellant will cite the following authorities to establish the points of law below:

5.1. Akram v Adam [2004] EWCA Civ 1601:

5.2. Roundstone Nurseries v Stephenson Holdings [2009 EWCH 1431 (TCC):

5.3. Van Lynn Developments Ltd v Pelias Construction Ltd [1968] 3 All ER824:

5.4. Wilson v. Hurstanger [2007] EWCA Civ 299:

(i) Compliance with certain formalities is an essential prerequisite to enforcement of consumer credit agreements.

(ii) Objective of the Consumer Credit (Agreements) Regulation 1983 Schedule 6 is to ensure that, as an inflexible condition of enforceability, certain basic minimum terms are included and above all that they cannot be in the slightest misstated.

5.5. Wilson v First County Trust Ltd [2001] EWCA Civ 633:

5.6. Wilson and others v Secretary of State for Trade and Industry [2003] UKHL 40:

(i) Compliance with certain formalities is an essential prerequisite to enforcement of consumer credit agreements.

(ii) Where a creditor fails to comply with the CCA74, Parliament intended that the debtor should net a windfall gain ‘pour encourager les autres’.

(iii) The provisions of the CCA74 cannot be sidestepped either in equity or through the European Convention on Human Rights.

5.7. Woodchester Lease Management Services v Swain [1998] All ER (D) 339:

5.8. Other authorities

(i) LIST OTHER AUTHORITIES

5.9. Persuasive argument provided by Francis Bennion the draftsman of the Consumer Credit Act 1974. Consumer Credit and the Total Charge for Credit. Criminal Law and Justice Weekly. 4/03/2006.

5.10. Legislation:

(i) Consumer Credit Act 1974.

(ii) Consumer Credit Act 2006.

(iii) Law of Property Act 1925.

(iv) Postal Services Act 2000.

(v) Recorded Delivery Service Act 1962.

(vi) Consumer Credit (Agreements) Regulations 1983.

(vii) The Consumer Protection from Unfair Trading Regulations 2008.

ALLEGATIONS

6. The Appellant alleges that:

6.1. The Respondent on 15/05/2009 wrongly entered judgment in default by making a request online stating that the defendant had not replied to the claim and thereby the Respondent failed to comply with CPR 14, which states in 14.4(3)(b) “if the defendant has requested time to pay, the procedure in rule 14.9 will apply.” Rule 14.9 states “Rule 14.10 sets out the procedure to be followed if the claimant does not accept the defendant’s request for time to pay”. Rule 14.10(3) states “Where the defendant’s admission was served direct on the claimant, a copy of the admission and request for time to pay must be filed with the claimant’s notice” and 14.10(4) states “When the court receives the claimant’s notice, it will enter judgment for the amount admitted (less any payments made) to be paid at the time and rate of payment determined by the court”.

6.2. The Respondent knowingly deceived the court by commencing further enforcement proceedings knowing that judgment was wrongly entered. The Respondent is unable to deny this allegation as realising that they had entered judgment wrongly on 15/05/2009, they attempted to correct their error by filing a properly completed claimant’s notice on 18/05/2009, which was returned by the court as judgement had already been entered as the correct procedure was for the Respondent to set aside judgment. Further, the Appellant brought it to the Respondents attention on 26/05/2009 that the judgment was entered wrongly but the Respondent declined to take any action themselves nor to assist the Appellant to correct the error.

6.3. The Respondent, prior to making a claim, did not have a lawful assignment of the alleged debt with the original creditor, Capital One Bank (Europe) plc giving the Respondent a right of action. The Respondent failed to serve a valid Notice of Assignment which for the assignment to be lawful must be served according to the Law of Property Act 1925 which deals with the assignment of debts. Section 136(1) requires that for the assignment of a debt to be effective, express notice in writing must be given to the debtor:-

136. Legal assignments of things in action.

— (1) Any absolute assignment by writing under the hand of the assignor (not purporting to be by way of charge only) of any debt or other legal thing in action, of which express notice in writing has been given to the debtor, trustee or other person from whom the assignor would have been entitled to claim such debt or thing in action, is effectual in law (subject to equities having priority over the right of the assignee) to pass and transfer from the date of such notice—

(a) the legal right to such debt or thing in action;

(b) all legal and other remedies for the same; and

© the power to give a good discharge for the same without the concurrence of the assignor:

Section 196(4) prescribes the requirements for giving sufficient notice by post:-

196. Regulations respecting notices.

(4) Any notice required or authorised by this Act to be served shall also be sufficiently served, if it is sent by post in a registered letter addressed to the lessee, lessor, mortgagee, mortgagor, or other person to be served, by name, at the aforesaid place of abode or business, office, or counting-house, and if that letter is not returned [by the postal operator (within the meaning of the Postal Services Act 2000) concerned] undelivered; and that service shall be deemed to be made at the time at which the registered letter would in the ordinary course be delivered.

It is noted that by the Recorded Delivery Service Act 1962 a recorded delivery letter is equivalent to a registered letter and that under the Postal Services Act 2000 Schedule 8 any reference to registered post is to be construed as meaning a registered postal service (eg Royal Mail recorded delivery or special delivery).

6.4. The Respondent has failed to provide the Appellant a verified and legible copy of the credit agreement containing the prescribed terms under the Consumer Credit Act 1974 which states in Section 61:-

61. Signing of agreement

(1) A regulated agreement is not properly executed unless-

(a) 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, and

(b) the document embodies all the terms of the agreement, other than implied terms, and

© the document is, when presented or sent to the debtor or hirer for signature, in such a state that all its terms are readily legible.

The definition of the prescribed terms is found within the Consumer Credit (Agreements) Regulation Act 1983 Schedule 6.

6.5. Before making the claim and assuming, that which is denied, the Respondent had an enforceable agreement for a debt that had been lawfully assigned, the Respondent failed to:-

(i) Serve a default notice on the Appellant according to the Consumer Credit Act 1974 Section 87(1) which states:-

(1) Service of a notice on the debtor or hirer in accordance with section 88 (a “default notice”) is necessary before the creditor or owner can become entitled, by reason of any breach by the debtor or hirer of a regulated agreement,-

(a) to terminate the agreement, or

(b) to demand earlier payment of any sum, or -

(ii) Serve a notice of default sum on the Appellant according to the Consumer Credit Act 1974 Section 86E which states:-

(1) This section applies where a default sum becomes payable under a regulated agreement by the debtor or hirer.

(2) The creditor or owner shall, within the prescribed period after the default sum becomes payable, give the debtor or hirer a notice under this section.

6.6. The Respondent has acted unfairly and in a deceitful manner throughout the time the Respondent has been known to the Appellant since January 2009 and gives rise to an unfair relationship according to the Consumer Credit Act 1974 Section 140A which states:-

(1) The court may make an order under section 140B in connection with a credit agreement if it determines that the relationship between the creditor and the debtor arising out of the agreement (or the agreement taken with any related agreement) is unfair to the debtor because of one or more of the following-

(a) any of the terms of the agreement or of any related agreement;

(b) the way in which the creditor has exercised or enforced any of his rights under the agreement or any related agreement;

© any other thing done (or not done) by, or on behalf of, the creditor (either before or after the making of the agreement or any related agreement.

Areas of the unfair relationship are set out below:-

(i) The Respondent has not been transparent in their dealings with the Appellant, with full and early disclosure, and

(ii) the Respondent misrepresented their legal position or authority to act, and

(iii) the Respondent did not have due regard to the interests of the Appellant and treat him fairly, and

(iv) the Respondent did not have due regard to the information needs of the Appellant and communicate information in a way which is clear, fair and not misleading, and

(v) The Respondent did not comply with any pre-action protocols as set out in Practice Directions – Pre-Action Conduct

(vi) the Respondent has engaged in a business practice that is deceitful, oppressive or otherwise unfair or improper.

6.7. The Respondent did not have the original credit agreement referred to in the particulars of claim at the hearing on 04/09/2009 for the court to examine, which is in contravention of CPR Practice Direction 16 paragraph 7.3 which states:-

Where a claim is based upon a written agreement:

(1) A copy of the contract or documents constituting the agreement should be attached to or served with the particulars of claim and the original(s) should be available at the hearing.

It is accepted by the Respondent that as the claim was started using Money Claim Online, according to Practice Direction 7e paragraph 5.2A documents are not required to be attached to the claim unless the particulars of claim are served separately.

6.8. The District Judge should not have accepted a copy letter dated 25/11/2008 as evidence as it was not recognisable as such as it should have been presented as evidence according to CPR 32 as oral testimony, or an affidavit or verified witness statement exhibiting the document and verifying it as true.

6.9. The District Judge was incorrect to rule on the copy letter dated 25/11/2008 as to do so without establishing the reason for its lateness and why it had not been properly presented to the court as evidence and then giving the Appellant an opportunity to review by adjourning, fatally undermined the Appellant’s application and resulted in the parties being on an unequal footing.

6.10. The District Judge’s ruling on the copy letter dated 25/11/2008 purporting to be a valid notice of assignment was wrong as argued above in 6.3.

6.11. The particulars of claim were wrong in the following ways:-

(i) It did not contain a concise statement of the facts CPR 16.4(1)(a).

(ii) The particulars of claim referred to interest but failed to comply with CPR 16.4(2).

(iii) It did not make a statement for value according to CPR 16.3(2)(a).

(iv) As the claim was based on a credit agreement in accordance with the Consumer Credit Act 1974, it did not contain the conduct relied upon in breach of the agreement according to Practice Direction to CPR 16 paragraph 7.5.

THE OUTCOME

7. The issues in the appeal are:

7.1. Was the Default Judgment dated 15/05/2009 entered correctly meeting the conditions set in CPR 12.3(3)?

No.

CPR Part 12 Default Judgment clearly states:-

12.3 Conditions to be satisfied.

(3) The claimant may not obtain a default judgment if-

©(i) the claimant is seeking judgment on a claim for money; and (ii) the defendant has filed or served on the claimant an admission under rule 14.4 or 14.7 (admission of liability to pay all the money claimed) together with a request for time to pay.

The Appellant cites the following:-

Akram v Adam [2004] EWCA Civ 1601 at paragraph 33 states:-

“33. It appears to me that the CPR rule-makers had the pitfalls of earlier practice well in mind when they made their new procedural code. Thus the new code

vi) made it clear that the difference between a default judgment wrongly entered (which must be set aside – see CPR 13.2) and any other default judgment (which may only be set aside if one of the conditions set out in CPR 13.3(1) are satisfied and the application was made promptly) depends on whether the procedural steps required by CPR 12.3 were or were not followed (so far as relevant in the particular circumstances) or whether the whole of the claim had been satisfied before the judgment was entered”

Roundstone Nurseries v Stephenson Holdings [2009] EWHC 1431 (TCC) at paragraph 27 states:-

“27 The regime is straightforward. If the judgment is irregular in one of the three ways identified in r.13.2, the judgment must be set aside.”

7.2. Did the Respondent prior to making the claim serve a valid Notice of Assignment on the Appellant making the alleged assignment effective and lawful?

No.

The disclosure request made to the Respondent on 01/08/2009 under CPR 31.14 included reference an assignment. The Appellant is curious why the Respondent was unable to produce a copy of the notice of assignment together with proof of delivery prior to proceedings commencing as without which the Respondent had no right of action and no standing before the court. The giving of a notice does not, of itself, create an assignment as there must also be an actual assignment in existence for the Respondent to derive title. The Appellant would wish to view the assignment and would cite Van Lynn Developments v Pelias Construction Co. Ltd in this respect.

7.3. Does the Respondent have a Consumer Credit Agreement which complied with the Consumer Credit Act 1974 and relevant subsequent Regulations in that it stated all prescribed terms correctly?

No.

The disclosure request made to the Respondent on 01/08/2009 under CPR 31.14 was not complied with and the Respondent’s advocate at the hearing on 04/09/2009 confirmed that the Respondent did not have an agreement. Therefore, as the Respondent does not have a properly executed agreement containing the prescribed terms the court is barred from making an enforcement order by way of Section 127(3) of the Consumer Credit Act 1974 which states:-

127(3) The court shall not make an enforcement order under section 65(1) if section 61(1)(a) (signing of agreements) was not complied with unless a document (whether or not in the prescribed form and complying with regulations under section 60(1)) itself containing all the prescribed terms of the agreement was signed by the debtor or hirer (whether or not in the prescribed manner).

To avoid doubt, the alleged agreement would have been entered into before 06/04/2007 and therefore Section 127(3) would not have been repealed by the Consumer Credit Act 2006.

The Appellant cites the following authorities.

Wilson v. Hurstanger [2007] EWCA Civ 299 at paragraph 11 Tukey LJ agreed with the first instance judge who said in respect of the prescribed terms:

“11. In my judgment 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 section 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; 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.”

Wilson v First County Trust Ltd [2001] EWCA Civ 633 at paragraph 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

Wilson and others v Secretary of State for Trade and Industry [2003] UKHL 40 paragraphs 4 & 71 confirms that errors in the prescribed terms preclude a court from making an enforcement order and that Parliament expressly intended that such errors should render credit agreements unenforceable. At paragraph 49 Lord Nicholls of Birkenhead stated:-

“49. The message to be gleaned from sections 65, 106, 113 and 127 of the Consumer Credit Act is that where a court dismisses an application for an enforcement order under section 65 the lender is intended by Parliament to be left without recourse against the borrower in respect of the loan… when legislation renders the entire agreement inoperative, to use a neutral word, for failure to comply with prescribed formalities the legislation itself is the primary source of guidance on what are the legal consequences. Here the intention of Parliament is clear.”

Persuasive argument is provided by Francis Bennion the original draftsman of the Consumer Credit Act 1974 in his statement. (TB X)

“Consumer Credit Act 1974 s 127(3)

As the draftsman of the Consumer Credit Act 1974 I would like to thank Dr Richard Lawson for his interesting and well-argued article (30 August 2003) on Wilson v First County Trust Ltd [2003] UKHL 40, [2003] 4 All ER 97.

Dr Lawson may be interested to know that I included the provision in question (section 127(3)) entirely on my own initiative. It seemed right to me that if the creditor company couldn’t be bothered to ensure that all the prescribed particulars were accurately included in the credit agreement it deserved to find it unenforceable, and that the court should not have

power to relieve it from this penalty. Nobody queried this, and it went through Parliament without debate.” 167 Justice of the Peace (2003) 773

Although the article discusses the “amount of credit” Schedule 6 of the Consumer Credit (Agreements) Regulations 1983 also defines “repayments” and “amounts of repayments” as also being prescribed terms and therefore subject to the same restrictions by virtue of Section 127(3) of the Consumer Credit Act 1974.

7.4. Did the Respondent prior to making the claim fulfil their obligations under the Consumer Credit Act 1974?

No.

(i) The disclosure request made to the Respondent on 01/08/2009 under CPR 31.14 included a request for a copy of a default notice, which to be valid needed to be accurate in terms of both the scope and nature of the breach and include an accurate figure to remedy any such breach (Woodchester Lease Management Services v Swain [1998] All ER (D) 339). The service of a default notice must be served allowing a minimum of 14 days following the date of service to rectify any such breach before the creditor can (a) terminate the agreement, or (b) demand earlier payment of any sum.

(ii) The failure of the Respondent to provide a notice of a default sum in accordance with Section 86E of the Consumer Credit Act 1974 prohibits the Respondent from enforcing the agreement until the notice is given. Section 86E(5) of the Consumer Credit Act 1974 states:-

(5) If the creditor or owner fails to give the debtor or hirer the notice under this section within the period mentioned in subsection (2), he shall not be entitled to enforce the agreement until the notice is given to the debtor or hirer.

7.5. Following the allegation by the Appellant that the Respondent acted unfairly according to Section 140A of the Consumer Credit Act 1974 did the Respondent prove that they acted fairly towards the Appellant according to Section 140B of the Consumer Credit Act 1974?

No.

The allegation was made in paragraph 19 of the Appellant’s first witness statement dated and served on the Respondent on 11/08/2009. The Appellant avers that the Respondent, having been given sufficient time to make their representations to prove to the contrary before the hearing on 04/09/2009, has not been able to prove that they have acted fairly to the Appellant according to Section 140B(9) of the Consumer Credit Act 1974 which states:-

(9) If in any such proceedings, the debtor or a surety alleges that the relationship between the creditor and the debtor is unfair to the debtor, it is for the creditor to prove to the contrary.

The Appellant would refer to the Office of Fair Trading publication OFT854 Unfair Relationships (TBXXX) which states in section 3.17 relating to S140A© of the CCA 1974:-

3.17 In our view, category © would include, for example, pre-contract business practices (such as advertising) and post-contract actions not based on a right (such as demanding sums of money the consumer has not agreed to pay). Relevant omissions might include failure to provide key information in a clear and timely manner (or at all), or to disclose material facts. Category © would also encompass acts or omissions which are non-commercial.

OFT854 refers to the Consumer Protection from Unfair Trading Regulations 2008 (CPRs) and states in section 4.35:-

4.35 The CPRs introduce a general prohibition on unfair commercial practices. A commercial practice means any act, omission, course of conduct, representation or commercial communication (including advertising and marketing) by a trader, which is directly connected with the promotion, sale or supply of a product to or from consumers, whether occurring before, during or after a relevant transaction.

The unfair relationship between the Appellant and Respondent is averred to that as defined in the Consumer Protection from Unfair Trading Regulations 2008 according to:-

3.-(1) Unfair commercial practices are prohibited.

(2) Paragraphs (3) and (4) set out the circumstances when a commercial practice is unfair.

(3) A commercial practice is unfair if -

(a) it contravenes the requirements of professional diligence; and

(b) it materially distorts or is likely to materially distort the economic behaviour of the average consumer with regard to the product.

(4) A commercial practice is unfair if -

(a) it is a misleading action under the provisions of regulation 5;

(b) it is a misleading omission under the provisions of regulation 6;

5.-(1) A commercial practice is a misleading action if it satisfies the conditions in either paragraph (2) or paragraph (3).

(2) A commercial practice satisfies the conditions of this paragraph-

(a) if it contains false information and is therefore untruthful in relation to any of the matters in paragraph (4) or if it or its overall presentation in any way deceives or is likely to deceive the average consumer in relation to any of the matters in that paragraph, even if the information is factually correct; and

(b) it causes or is likely to cause the average consumer to take a transactional decision he would not have taken otherwise.

(4) The matters referred to in paragraph (2)(a) are-

(d) the motives for the commercial practice.

6.-(1) A commercial practice is a misleading omission if, in its factual context, taking account of the matters in paragraph (2)-

(a) the commercial practice omits material information,

(b) the commercial practice hides material information,

© the commercial practice provides material information in a manner which is unclear, unintelligible, ambiguous or untimely, or

(d) the commercial practice fails to identify its commercial intent, unless this is already apparent from the context,

and as a result it causes or is likely to cause the average consumer to take a transactional decision he would not have taken otherwise.

(2) The matters referred to in paragraph (1) are-

(a) all the features and circumstances of the commercial practice;

(3) In paragraph (1) “material information” means-

(a) the information which the average consumer needs, according to the context, to take an informed transactional decision

The interpretations in the Regulations are:-

“commercial practice” means any act , omission, course of conduct, representation or commercial communication (including advertising and marketing) by a trader, which is directly connected with the promotion, sale or supply of a product to or from consumers, whether occurring before, during or after a commercial transaction (if any) in relation to a product;

“materially distort the economic behaviour” means in relation to an average consumer, appreciably to impair the average consumer’s ability to make an informed decision thereby causing him to take a transactional decision that he would not have taken otherwise;

“product” means any goods or service and includes immovable property, right and obligations;

“professional diligence” means the standard of special skill and care which a trader may reasonably be expected to exercise towards consumers which is commensurate with either-

(a) honest market practice in the trader’s field of activity, or

(b) the general principle of good faith in the trader’s field of activity;

“transactional decision” means any decision taken by a consumer, whether it is to act or to refrain from acting, concerning-

© whether, how and on what terms to exercise a contractual right in relation to a product.

7.6. Did the Respondent comply with the Civil Procedure Rules in particular CPR 16 Practice Direction 16 paragraph 7.3?

No.

The Respondent’s advocate at the hearing admitted that the Respondent did not have the agreement relied upon in the particulars of claim. The fact that the Respondent does not have the original agreement fatally undermines the claim in as much as there is no means by which the Appellant or the Court may verify the validity of the claim.

7.7. Was the District Judge right to accept at the hearing a copy letter dated 25/11/2008 purporting to be a Notice of Assignment as evidence when it was not recognisable as such?

No.

The District Judge should only have accepted the copy letter as evidence if exhibited according to CPR 32 by way of a witness statement verified by a statement of truth. The Respondent is a commercial company well versed in these matters and accepting the letter as evidence fatally undermined the Appellants application and resulted in the parties being on an unequal footing, particularly as the Appellant is a Litigant in Person. The Appellant avers that the District Judge was misled by the Respondent who was resorting to tactical games-playing when there should have been cooperation and commonsense, which is contrary to the whole basis of the CPR.

7.8. Was the District Judge right to rule on the copy letter dated 25/11/2008 purporting to be a Notice of Assignment without establishing the reason for lateness, the failure to submit the same as an exhibit to an affidavit or witness statement and if satisfied with the explanations giving the Appellant an opportunity to review by adjourning the application?

No.

The Appellant would question the authenticity of the letter dated 25/11/2009 as it was only provided to the court just before the hearing and only then in the hearing handed to the Appellant. The letter, if authentic, would have been exhibited with a witness statement and would have been made available to the Appellant within 14 days of receipt of the disclosure request dated 01/08/2009 according to CPR 31.14 and the District Judge should only have ruled upon it if it was submitted correctly as evidence, verified with a statement of truth, and served on the Appellant before the hearing. In so doing otherwise it fatally undermined the Appellant’s application and resulted in the parties being on an unequal footing.

7.9. Was the District Judge’s ruling correct that the copy letter dated 25/11/2008 was a valid Notice of Assignment correctly served on the Appellant?

No.

This has been dealt with in 7.2.

7.10. Were the allegations in the Particulars of Claim correctly stated?

No.

The statement of case discloses no reasonable grounds for bringing or defending the claim and is an abuse of the court’s process or is otherwise likely to obstruct the just disposal of the proceedings as:-

(i) It referred to a credit agreement the Respondent didn’t have, and;

(ii) it did not adequately describe the agreement, and;

(iii) it did not include a concise statement of facts on which the claimant relies, and;

(iv) it did not include a statement on interest as interest was referred to therein, and;

(v) it did not specify the conduct relied upon as the agreement would have been one regulated by the Consumer Credit Act 1974.

THE COURTS POWERS

8. The courts powers are as follows:-

8.1. Default judgment wrongly entered on 15/05/2009.

CPR 13.2 states:-

13.2 Cases where the court must set aside judgment entered under Part 12

The court must set aside a judgment entered under Part 12 if judgment was wrongly entered because -

(a) in the case of a judgment in default of an acknowledgment of service, any of the conditions in rule 12.3(1) and 12.3(3) was not satisfied;

The Appellant respectfully asks the court set aside judgment as it is required to do so according to CPR13.2.

8.2. Failing to serve a valid Notice of Assignment prior to making the claim.

As the Respondent had no right of action and no standing before the court, the Appellant respectfully asks the court to strike out the Respondents claim.

8.3. Failure to have a Consumer Credit Agreement with all prescribed terms.

Statute and case law both agree that there must be a credit agreement containing all prescribed terms with no error, no matter how small. Parliament, when enacting the Consumer Credit Act 1974 intended to place a heavy burden of strict liability on creditors to ensure that they produced documentation free from any errors and to provide debtors with the highest level of protection possible. Therefore, the only course of action available is to strike out the Respondent’s claim.

8.4. Respondent’s failure to fulfil obligations under Consumer Credit Act 1974.

Statute and case law both agree that unless the obligations on the creditor are not followed they cannot (a) terminate the agreement, (b) demand earlier payment of any sum, or © enforce the agreement. Therefore, the only course of action available is to strike out the Respondent’s claim.

8.5. Respondent’s failure to prove they acted fairly.

Section 140B of the Consumer Credit Act 1974 allows the court, where the creditor has failed to prove they have acted fairly, a number of different remedies in relation to unfair relationships and it is averred by the Appellant that the proper arena for determining this is at trial as this is a defence in its own right. Therefore the only course of action would be to set aside judgment entered 15/05/2009.

8.6. Failure to comply with Civil Procedure Rules Part 16 paragraph 7.3.

The Respondent’s failure and subsequent inability to comply with the Civil Procedure Rules fatally undermines their claim. This makes the claim unsustainable and as such it is respectfully requested that in these circumstances the court strike out the Respondents claim.

8.7. Failure to accept evidence only recognisable as such.

The Appellant respectfully asks the court to reconsider the order being appealed taking into consideration only evidence recognisable as such and vary such order to set aside judgment entered 15/05/2009.

8.8. Wrong to rule on copy letter dated 25/11/2009.

The Appellant respectfully asks the court to reconsider the order being appealed taking into account that the court was misled into accepting the copy of letter as evidence and resulted in the District Judge making an ultra vires decision. In such circumstances the Appellant asks the court to vary the order being appealed to set aside judgment entered 15/05/2009.

8.9. Incorrect ruling on copy letter dated 25/11/2009.

The Appellant respectfully asks the court to vary the order being appealed to set aside judgment entered 15/05/2009.

8.10. Particulars of claim incorrectly stated.

This makes the claim unsustainable and as such it is respectfully requested that in these circumstances the court strike out the Respondents claim.

In these circumstances it is respectfully requested that the Court vary the order of District Judge Shanks.

REQUEST FOR COURT ORDER

The Appellant respectfully requests the Court make the following orders:

1. The Judgment for Claimant entered against the Defendant on 15/05/2009 be set aside and the Claimant shall pay the Defendants costs of the application.

2. The court strike out the Respondent’s claim.

Statement of Truth

 

Comments very much appreciated with this because as is the case with most things I'm doing here, its all new to me.

 

Robin

[GhostDebt]

Hi Robin,

 

re the bit in 42Mans post I quoted, "clarify the dates are correctly stated in all documents".

 

Did you spot the obvious error in their letter?.... post #244 point 2.

 

Regards

[RobinWayRobinme]

Spotted it. 2 different dates. body of letter says 25/09. bottom letter says 26/09. Typical of this lot. Am I right that implications of this according to harrison V burke?

 

Also in answer to earlier question you posted, yes was originally allegedly assisgned from Cap to RW&Co Ltd. If you look at 7.2 of my draft skeleton argument, I'm arguing that prior to procedings it was not lawfully assigned. However, the fact I was handed a copy of letter purporting to be the notice I am assuming that it is considered as valid service on me on 04/09/2009. Again, am I right in assuming this?

 

Robin

[GhostDebt]

That is my opinion but others will hopefully clarify.

 

As I understand it hand delivery is ok for service, but this was after the judgement anyway wasn't it? So, at the time of judgement it wasn't properly assigned to RW&Co.

 

Regards

[RobinWayRobinme]

Agree with you totally GD. I must consider my tactics regarding the new assignment but as it is has not been lawfully assigned (196 LPA and maybe issue with dates) I think it may be best for to do nothing and keep this card up my sleeve for a while. Any opinions?

 

Many thanx

 

Robin

[GhostDebt]

I think its worth keeping it quiet for the time being.

My opinion only though.

 

Regards

[RobinWayRobinme]

mine to. thanks gd

[citizenB]

Spotted it. 2 different dates. body of letter says 25/09. bottom letter says 26/09. Typical of this lot. Am I right that implications of this according to harrison V burke?

 

Also in answer to earlier question you posted, yes was originally allegedly assisgned from Cap to RW&Co Ltd. If you look at 7.2 of my draft skeleton argument, I'm arguing that prior to procedings it was not lawfully assigned. However, the fact I was handed a copy of letter purporting to be the notice I am assuming that it is considered as valid service on me on 04/09/2009. Again, am I right in assuming this?

 

Robin

 

Robin/Ghost.. the assignment has to be ACCURATE in all areas.

 

That is my opinion but others will hopefully clarify.

 

As I understand it hand delivery is ok for service, but this was after the judgement anyway wasn't it? So, at the time of judgement it wasn't properly assigned to RW&Co.

 

Regards

 

Hand delivery or Registered post (ie recorded delivery now).

 

I think its worth keeping it quiet for the time being.

My opinion only though.

 

Regards

 

Might be worth having andyorch or 42man comment on that.

 

Right, just going to have a peek at your statement.. brb

[RobinWayRobinme]

Thanx for clarifying some points citizenB. Guess i'm still on right track

 

I know the Skeleton argument is a bit of a beast but opinion as always greatlt appreciated. Also agree that andyorch or 42man input would be very helpful

 

Robin

[citizenB]

 

This is an appeal against an order by District Judge xxxxxx dated 4th September 2009. The Appellant claims that the District Judge miss-directed herself as to the law and was wrong. As a result the order made was ultra vires. In addition there were failures to comply with the Civil Procedure Rules which (i) fatally undermined the Appellant’s application, and (ii) resulted in the parties being on an unequal footing. The hearing will take 2 hours.

THE TRIAL BUNDLE

2. References in this document prefixed “TB” are references to the Trial Bundle.

THE FACTS

3. The facts in this appeal are:

3.1. The first time the Appellant knew of the Respondent was January 2009, on receipt of their letter dated 30/12/2008 (TB X).

3.2. Before a claim was served on the Appellant only two further letters were received from the Respondent dated 14/01/2009 and 01/02/2009, both of which advised they were writing as debt collectors (TB X & X).

3.3. On 30/01/2009 the Appellant wrote to the Respondent requesting further details and asking who they were (TB X).

3.4. On 20/03/2009 the Respondent issued a claim form from Northampton County Court Bulk Centre, with the Particulars of Claim relying solely upon a credit agreement.

3.5. During this period, the Appellant was caring for his terminally ill Mother (TB X).

3.6. On 01/04/2009 the Appellant served an admission and request for time to pay in response to the Claim Form (TB X).

3.7. On 15/05/2009 the Respondent requested online that Judgment be entered in default implying the Appellant had not replied to the claim.

3.8. On 18/05/2009 the Respondent attempted to correct the default judgment entered wrongly by filing with the Court a claimant’s notice stating that the Appellant admitted the claim but the Respondent did not accept the proposal for payment.

3.9. On 18/05/2009 the Court returned the claimant’s notice informing the Respondent that as Judgment had already been entered the judgment entered wrongly could only be corrected by the Respondent applying to set aside the default judgment.

3.10. On 26/05/2009, following receipt of the default judgment, the Appellant telephoned the Respondent and pointed out that the default judgment was entered wrongly.

3.11. On 15/06/2009 the Appellant filed an application to set aside judgment.

3.12. On 29/06/2009 the Respondent made an application and obtained an Interim charging order.

3.13. On 01/08/2009 the Appellant made a disclosure request to the Respondent under CPR 31.14 for copy documents in support of their claim to be received by the Appellant within 14 days (TB X).

3.14. On 01/08/2009 as it appeared the alleged debt may have been an assignment from Capital One Bank (Europe) plc the Appellant made a Data Subject Access Request under section 7 of the Data Protection Act 1998 (TB X).

3.15. On 14/09/2009 the Appellant served his first Witness Statement on the Respondent (TB X).

3.16. On 15/08/2009 the Appellant sent a reminder letter to the Respondent in respect of the documents requested in the disclosure letter of the 01/08/2009, giving the Respondent a further 7 days to comply.

3.17. Before the Appellant entered the hearing on 04/09/2009, the Respondent had not provided any copy documents requested in the disclosure request, nor had Capital One Bank (Europe) plc replied to the Data Subject Access Request.

3.18. In the hearing on 04/09/2009 the Appellant was handed a copy of a letter allegedly sent by the Respondent to the Appellant on 25/11/2009 purporting to be a Notice of Assignment (TB X).

3.19. The copy letter was accepted by the court despite the Appellant objecting to it being used at the hearing as he had been given no time to consider it.

THE ISSUES

4. The issues in this appeal are:

4.1. Was the Default Judgment dated 15/05/2009 entered correctly meeting the conditions set in CPR 12.3(3)?

4.2. Did the Respondent prior to making the claim serve a valid Notice of Assignment on the Appellant making the alleged assignment effective and lawful?

4.3. Does the Respondent have a Consumer Credit Agreement which complies with the Consumer Credit Act 1974 and relevant subsequent Regulations in that it stated all prescribed terms correctly?

4.4. Did the Respondent prior to making the claim fulfil their obligations under the Consumer Credit Act 1974?

4.5. Following the allegation by the Appellant that the Respondent acted unfairly according to Section 140A of the Consumer Credit Act 1974 did the Respondent prove that they acted fairly towards the Appellant according to Section 140B of the Consumer Credit Act 1974?

4.6. Did the Respondent comply with the Civil Procedure Rules in particular CPR 16 Practice Direction 16 paragraph 7.3?

4.7. Was the District Judge right to accept at the hearing a copy letter dated 25/11/2008 purporting to be a Notice of Assignment as evidence when it was not recognisable as such?

4.8. Was the District Judge right to rule on the copy letter dated 25/11/2008 purporting to be a Notice of Assignment without establishing the reason for lateness, the failure to submit the same as an exhibit to an affidavit or witness statement and if satisfied with the explanations did the District Judge give the Appellant an opportunity to review by adjourning the application?

4.9. Was the District Judge’s ruling correct that the copy letter dated 25/11/2008 was a valid Notice of Assignment correctly served on the Appellant?

4.10. Were the allegations in the Particulars of Claim correctly stated?

If the answer to any question is no then the appeal succeeds.

AUTHORITIES

5. The Appellant will cite the following authorities to establish the points of law below:

5.1. Akram v Adam [2004] EWCA Civ 1601:

5.2. Roundstone Nurseries v Stephenson Holdings [2009 EWCH 1431 (TCC):

5.3. Van Lynn Developments Ltd v Pelias Construction Ltd [1968] 3 All ER824:

5.4. Wilson v. Hurstanger [2007] EWCA Civ 299:

(i) Compliance with certain formalities is an essential prerequisite to enforcement of consumer credit agreements.

(ii) Objective of the Consumer Credit (Agreements) Regulation 1983 Schedule 6 is to ensure that, as an inflexible condition of enforceability, certain basic minimum terms are included and above all that they cannot be in the slightest misstated.

5.5. Wilson v First County Trust Ltd [2001] EWCA Civ 633:

5.6. Wilson and others v Secretary of State for Trade and Industry [2003] UKHL 40:

(i) Compliance with certain formalities is an essential prerequisite to enforcement of consumer credit agreements.

(ii) Where a creditor fails to comply with the CCA74, Parliament intended that the debtor should net a windfall gain ‘pour encourager les autres’.

(iii) The provisions of the CCA74 cannot be sidestepped either in equity or through the European Convention on Human Rights.

5.7. Woodchester Lease Management Services v Swain [1998] All ER (D) 339:

5.8. Other authorities

(i) LIST OTHER AUTHORITIES

5.9. Persuasive argument provided by Francis Bennion the draftsman of the Consumer Credit Act 1974. Consumer Credit and the Total Charge for Credit. Criminal Law and Justice Weekly. 4/03/2006.

5.10. Legislation:

(i) Consumer Credit Act 1974.

(ii) Consumer Credit Act 2006.

(iii) Law of Property Act 1925.

(iv) Postal Services Act 2000.

(v) Recorded Delivery Service Act 1962.

(vi) Consumer Credit (Agreements) Regulations 1983.

(vii) The Consumer Protection from Unfair Trading Regulations 2008.

ALLEGATIONS

6. The Appellant alleges that:

6.1. The Respondent on 15/05/2009 wrongly entered judgment in default by making a request online stating that the defendant had not replied to the claim and thereby the Respondent failed to comply with CPR 14, which states in 14.4(3)(b) “if the defendant has requested time to pay, the procedure in rule 14.9 will apply.” Rule 14.9 states “Rule 14.10 sets out the procedure to be followed if the claimant does not accept the defendant’s request for time to pay”. Rule 14.10(3) states “Where the defendant’s admission was served direct on the claimant, a copy of the admission and request for time to pay must be filed with the claimant’s notice” and 14.10(4) states “When the court receives the claimant’s notice, it will enter judgment for the amount admitted (less any payments made) to be paid at the time and rate of payment determined by the court”.

6.2. The Respondent knowingly deceived the court by commencing further enforcement proceedings knowing that judgment was wrongly entered. The Respondent is unable to deny this allegation as realising that they had entered judgment wrongly on 15/05/2009, they attempted to correct their error by filing a properly completed claimant’s notice on 18/05/2009, which was returned by the court as judgement had already been entered as the correct procedure was for the Respondent to set aside judgment. Further, the Appellant brought it to the Respondents attention on 26/05/2009 that the judgment was entered wrongly but the Respondent declined neither to take any action themselves nor to assist the Appellant to correct the error.

6.3. Prior to making the claim, the Respondent did not have a lawful assignment of the alleged debt with the original creditor, Capital One Bank (Europe) plc giving the Respondent a right of action. The Respondent failed to serve a valid Notice of Assignment which for the assignment to be lawful must be served according to the Law of Property Act 1925 which deals with the assignment of debts. Section 136(1) requires that for the assignment of a debt to be effective, express notice in writing must be given to the debtor:-

136. Legal assignments of things in action.

— (1) Any absolute assignment by writing under the hand of the assignor (not purporting to be by way of charge only) of any debt or other legal thing in action, of which express notice in writing has been given to the debtor, trustee or other person from whom the assignor would have been entitled to claim such debt or thing in action, is effectual in law (subject to equities having priority over the right of the assignee) to pass and transfer from the date of such notice—

(a) the legal right to such debt or thing in action;

(b) all legal and other remedies for the same; and

© the power to give a good discharge for the same without the concurrence of the assignor:

Section 196(4) prescribes the requirements for giving sufficient notice by post:-

196. Regulations respecting notices.

(4) Any notice required or authorised by this Act to be served shall also be sufficiently served, if it is sent by post in a registered letter addressed to the lessee, lessor, mortgagee, mortgagor, or other person to be served, by name, at the aforesaid place of abode or business, office, or counting-house, and if that letter is not returned [by the postal operator (within the meaning of the Postal Services Act 2000) concerned] undelivered; and that service shall be deemed to be made at the time at which the registered letter would in the ordinary course be delivered.

It is noted that by the Recorded Delivery Service Act 1962 a recorded delivery letter is equivalent to a registered letter and that under the Postal Services Act 2000 Schedule 8 any reference to registered post is to be construed as meaning a registered postal service (eg Royal Mail recorded delivery or special delivery).

6.4. The Respondent has failed to provide the Appellant a verified and legible copy of the credit agreement containing the prescribed terms under the Consumer Credit Act 1974 which states in Section 61:-

61. Signing of agreement

(1) A regulated agreement is not properly executed unless-

(a) 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, and

(b) the document embodies all the terms of the agreement, other than implied terms, and

© the document is, when presented or sent to the debtor or hirer for signature, in such a state that all its terms are readily legible.

The definition of the prescribed terms is found within the Consumer Credit (Agreements) Regulation Act 1983 Schedule 6.

6.5. Before making the claim and assuming, that which is denied, the Respondent had an enforceable agreement for a debt that had been lawfully assigned, the Respondent failed to:-

(i) Serve a default notice on the Appellant according to the Consumer Credit Act 1974 Section 87(1) which states:-

(1) Service of a notice on the debtor or hirer in accordance with section 88 (a “default notice”) is necessary before the creditor or owner can become entitled, by reason of any breach by the debtor or hirer of a regulated agreement,-

(a) to terminate the agreement, or

(b) to demand earlier payment of any sum, or -

(ii) Serve a notice of default sum on the Appellant according to the Consumer Credit Act 1974 Section 86E which states:-

(1) This section applies where a default sum becomes payable under a regulated agreement by the debtor or hirer.

(2) The creditor or owner shall, within the prescribed period after the default sum becomes payable, give the debtor or hirer a notice under this section.

6.6. The Respondent has acted unfairly and in a deceitful manner throughout the time the Respondent has been known to the Appellant since January 2009 and gives rise to an unfair relationship according to the Consumer Credit Act 1974 Section 140A which states:-

(1) The court may make an order under section 140B in connection with a credit agreement if it determines that the relationship between the creditor and the debtor arising out of the agreement (or the agreement taken with any related agreement) is unfair to the debtor because of one or more of the following-

(a) any of the terms of the agreement or of any related agreement;

(b) the way in which the creditor has exercised or enforced any of his rights under the agreement or any related agreement;

© any other thing done (or not done) by, or on behalf of, the creditor (either before or after the making of the agreement or any related agreement.

Areas of the unfair relationship are set out below:-

(i) The Respondent has not been transparent in their dealings with the Appellant, with full and early disclosure, and

(ii) the Respondent misrepresented their legal position or authority to act, and

(iii) the Respondent did not have due regard to the interests of the Appellant and treat him fairly, and

(iv) the Respondent did not have due regard to the information needs of the Appellant and communicate information in a way which is clear, fair and not misleading, and

(v) The Respondent did not comply with any pre-action protocols as set out in Practice Directions – Pre-Action Conduct

(vi) the Respondent has engaged in a business practice that is deceitful, oppressive or otherwise unfair or improper.

6.7. The Respondent did not have the original credit agreement referred to in the particulars of claim at the hearing on 04/09/2009 for the court to examine, which is in contravention of CPR Practice Direction 16 paragraph 7.3 which states:-

Where a claim is based upon a written agreement:

(1) A copy of the contract or documents constituting the agreement should be attached to or served with the particulars of claim and the original(s) should be available at the hearing.

It is accepted by the Respondent that as the claim was started using Money Claim Online, according to Practice Direction 7e paragraph 5.2A documents are not required to be attached to the claim unless the particulars of claim are served separately.

6.8. The District Judge should not have accepted a copy letter dated 25/11/2008 as evidence as it was not recognisable as such as it should have been presented as evidence according to CPR 32 as oral testimony, or an affidavit or verified witness statement exhibiting the document and verifying it as true.

6.9. The District Judge was incorrect to rule on the copy letter dated 25/11/2008 as to do so without establishing the reason for its lateness and why it had not been properly presented to the court as evidence and then giving the Appellant an opportunity to review by adjourning, fatally undermined the Appellant’s application and resulted in the parties being on an unequal footing.

6.10. The District Judge’s ruling on the copy letter dated 25/11/2008 purporting to be a valid notice of assignment was wrong as argued above in 6.3.

6.11. The particulars of claim were wrong in the following ways:-

(i) It did not contain a concise statement of the facts CPR 16.4(1)(a).

(ii) The particulars of claim referred to interest but failed to comply with CPR 16.4(2).

(iii) It did not make a statement for value according to CPR 16.3(2)(a).

(iv) As the claim was based on a credit agreement in accordance with the Consumer Credit Act 1974, it did not contain the conduct relied upon in breach of the agreement according to Practice Direction to CPR 16 paragraph 7.5.

THE OUTCOME

7. The issues in the appeal are:

7.1. Was the Default Judgment dated 15/05/2009 entered correctly meeting the conditions set in CPR 12.3(3)?

No.

CPR Part 12 Default Judgment clearly states:-

12.3 Conditions to be satisfied.

(3) The claimant may not obtain a default judgment if-

©(i) the claimant is seeking judgment on a claim for money; and (ii) the defendant has filed or served on the claimant an admission under rule 14.4 or 14.7 (admission of liability to pay all the money claimed) together with a request for time to pay.

The Appellant cites the following:-

Akram v Adam [2004] EWCA Civ 1601 at paragraph 33 states:-

“33. It appears to me that the CPR rule-makers had the pitfalls of earlier practice well in mind when they made their new procedural code. Thus the new code

vi) made it clear that the difference between a default judgment wrongly entered (which must be set aside – see CPR 13.2) and any other default judgment (which may only be set aside if one of the conditions set out in CPR 13.3(1) are satisfied and the application was made promptly) depends on whether the procedural steps required by CPR 12.3 were or were not followed (so far as relevant in the particular circumstances) or whether the whole of the claim had been satisfied before the judgment was entered”

Roundstone Nurseries v Stephenson Holdings [2009] EWHC 1431 (TCC) at paragraph 27 states:-

“27 The regime is straightforward. If the judgment is irregular in one of the three ways identified in r.13.2, the judgment must be set aside.”

7.2. Did the Respondent prior to making the claim serve a valid Notice of Assignment on the Appellant making the alleged assignment effective and lawful?

No.

The disclosure request made to the Respondent on 01/08/2009 under CPR 31.14 included reference to an assignment. The Appellant is curious why the Respondent was unable to produce a copy of the notice of assignment together with proof of delivery prior to proceedings commencing as without which the Respondent had no right of action and no standing before the court. The giving of a notice does not, of itself, create an assignment as there must also be an actual assignment in existence for the Respondent to derive title. The Appellant would wish to view the assignment and would cite Van Lynn Developments v Pelias Construction Co. Ltd in this respect.

7.3. Does the Respondent have a Consumer Credit Agreement which complied with the Consumer Credit Act 1974 and relevant subsequent Regulations in that it stated all prescribed terms correctly?

No.

The disclosure request made to the Respondent on 01/08/2009 under CPR 31.14 was not complied with and the Respondent’s advocate at the hearing on 04/09/2009 confirmed that the Respondent did not have an agreement. Therefore, as the Respondent does not have a properly executed agreement containing the prescribed terms the court is barred from making an enforcement order by way of Section 127(3) of the Consumer Credit Act 1974 which states:-

127(3) The court shall not make an enforcement order under section 65(1) if section 61(1)(a) (signing of agreements) was not complied with unless a document (whether or not in the prescribed form and complying with regulations under section 60(1)) itself containing all the prescribed terms of the agreement was signed by the debtor or hirer (whether or not in the prescribed manner).

To avoid doubt, the alleged agreement would have been entered into before 06/04/2007 and therefore Section 127(3) would not have been repealed by the Consumer Credit Act 2006.

The Appellant cites the following authorities.

Wilson v. Hurstanger [2007] EWCA Civ 299 at paragraph 11 Tukey LJ agreed with the first instance judge who said in respect of the prescribed terms:

“11. In my judgment 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 section 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; 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.”

Wilson v First County Trust Ltd [2001] EWCA Civ 633 at paragraph 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

Wilson and others v Secretary of State for Trade and Industry [2003] UKHL 40 paragraphs 4 & 71 confirms that errors in the prescribed terms preclude a court from making an enforcement order and that Parliament expressly intended that such errors should render credit agreements unenforceable. At paragraph 49 Lord Nicholls of Birkenhead stated:-

“49. The message to be gleaned from sections 65, 106, 113 and 127 of the Consumer Credit Act is that where a court dismisses an application for an enforcement order under section 65 the lender is intended by Parliament to be left without recourse against the borrower in respect of the loan… when legislation renders the entire agreement inoperative, to use a neutral word, for failure to comply with prescribed formalities the legislation itself is the primary source of guidance on what are the legal consequences. Here the intention of Parliament is clear.”

Persuasive argument is provided by Francis Bennion the original draftsman of the Consumer Credit Act 1974 in his statement. (TB X)

“Consumer Credit Act 1974 s 127(3)

As the draftsman of the Consumer Credit Act 1974 I would like to thank Dr Richard Lawson for his interesting and well-argued article (30 August 2003) on Wilson v First County Trust Ltd [2003] UKHL 40, [2003] 4 All ER 97.

Dr Lawson may be interested to know that I included the provision in question (section 127(3)) entirely on my own initiative. It seemed right to me that if the creditor company couldn’t be bothered to ensure that all the prescribed particulars were accurately included in the credit agreement it deserved to find it unenforceable, and that the court should not have

power to relieve it from this penalty. Nobody queried this, and it went through Parliament without debate.” 167 Justice of the Peace (2003) 773

Although the article discusses the “amount of credit” Schedule 6 of the Consumer Credit (Agreements) Regulations 1983 also defines “repayments” and “amounts of repayments” as also being prescribed terms and therefore subject to the same restrictions by virtue of Section 127(3) of the Consumer Credit Act 1974.

7.4. Did the Respondent prior to making the claim fulfil their obligations under the Consumer Credit Act 1974?

No.

(i) The disclosure request made to the Respondent on 01/08/2009 under CPR 31.14 included a request for a copy of a default notice, which to be valid needed to be accurate in terms of both the scope and nature of the breach and include an accurate figure to remedy any such breach (Woodchester Lease Management Services v Swain [1998] All ER (D) 339). The service of a default notice must be served allowing a minimum of 14 days following the date of service to rectify any such breach before the creditor can (a) terminate the agreement, or (b) demand earlier payment of any sum.

(ii) The failure of the Respondent to provide a notice of a default sum in accordance with Section 86E of the Consumer Credit Act 1974 prohibits the Respondent from enforcing the agreement until the notice is given. Section 86E(5) of the Consumer Credit Act 1974 states:-

(5) If the creditor or owner fails to give the debtor or hirer the notice under this section within the period mentioned in subsection (2), he shall not be entitled to enforce the agreement until the notice is given to the debtor or hirer.

7.5. Following the allegation by the Appellant that the Respondent acted unfairly according to Section 140A of the Consumer Credit Act 1974 did the Respondent prove that they acted fairly towards the Appellant according to Section 140B of the Consumer Credit Act 1974?

No.

The allegation was made in paragraph 19 of the Appellant’s first witness statement dated and served on the Respondent on 11/08/2009. The Appellant avers that the Respondent, having been given sufficient time to make their representations to prove to the contrary before the hearing on 04/09/2009, has not been able to prove that they have acted fairly to the Appellant according to Section 140B(9) of the Consumer Credit Act 1974 which states:-

(9) If in any such proceedings, the debtor or a surety alleges that the relationship between the creditor and the debtor is unfair to the debtor, it is for the creditor to prove to the contrary.

The Appellant would refer to the Office of Fair Trading publication OFT854 Unfair Relationships (TBXXX) which states in section 3.17 relating to S140A© of the CCA 1974:-

3.17 In our view, category © would include, for example, pre-contract business practices (such as advertising) and post-contract actions not based on a right (such as demanding sums of money the consumer has not agreed to pay). Relevant omissions might include failure to provide key information in a clear and timely manner (or at all), or to disclose material facts. Category © would also encompass acts or omissions which are non-commercial.

OFT854 refers to the Consumer Protection from Unfair Trading Regulations 2008 (CPRs) and states in section 4.35:-

4.35 The CPRs introduce a general prohibition on unfair commercial practices. A commercial practice means any act, omission, course of conduct, representation or commercial communication (including advertising and marketing) by a trader, which is directly connected with the promotion, sale or supply of a product to or from consumers, whether occurring before, during or after a relevant transaction.

The unfair relationship between the Appellant and Respondent is averred to that as defined in the Consumer Protection from Unfair Trading Regulations 2008 according to:-

3.-(1) Unfair commercial practices are prohibited.

(2) Paragraphs (3) and (4) set out the circumstances when a commercial practice is unfair.

(3) A commercial practice is unfair if -

(a) it contravenes the requirements of professional diligence; and

(b) it materially distorts or is likely to materially distort the economic behaviour of the average consumer with regard to the product.

(4) A commercial practice is unfair if -

(a) it is a misleading action under the provisions of regulation 5;

(b) it is a misleading omission under the provisions of regulation 6;

5.-(1) A commercial practice is a misleading action if it satisfies the conditions in either paragraph (2) or paragraph (3).

(2) A commercial practice satisfies the conditions of this paragraph-

(a) if it contains false information and is therefore untruthful in relation to any of the matters in paragraph (4) or if it or its overall presentation in any way deceives or is likely to deceive the average consumer in relation to any of the matters in that paragraph, even if the information is factually correct; and

(b) it causes or is likely to cause the average consumer to take a transactional decision he would not have taken otherwise.

(4) The matters referred to in paragraph (2)(a) are-

(d) the motives for the commercial practice.

6.-(1) A commercial practice is a misleading omission if, in its factual context, taking account of the matters in paragraph (2)-

(a) the commercial practice omits material information,

(b) the commercial practice hides material information,

© the commercial practice provides material information in a manner which is unclear, unintelligible, ambiguous or untimely, or

(d) the commercial practice fails to identify its commercial intent, unless this is already apparent from the context,

and as a result it causes or is likely to cause the average consumer to take a transactional decision he would not have taken otherwise.

(2) The matters referred to in paragraph (1) are-

(a) all the features and circumstances of the commercial practice;

(3) In paragraph (1) “material information” means-

(a) the information which the average consumer needs, according to the context, to take an informed transactional decision

The interpretations in the Regulations are:-

“commercial practice” means any act , omission, course of conduct, representation or commercial communication (including advertising and marketing) by a trader, which is directly connected with the promotion, sale or supply of a product to or from consumers, whether occurring before, during or after a commercial transaction (if any) in relation to a product;

“materially distort the economic behaviour” means in relation to an average consumer, appreciably to impair the average consumer’s ability to make an informed decision thereby causing him to take a transactional decision that he would not have taken otherwise;

“product” means any goods or service and includes immovable property, right and obligations;

“professional diligence” means the standard of special skill and care which a trader may reasonably be expected to exercise towards consumers which is commensurate with either-

(a) honest market practice in the trader’s field of activity, or

(b) the general principle of good faith in the trader’s field of activity;

“transactional decision” means any decision taken by a consumer, whether it is to act or to refrain from acting, concerning-

© whether, how and on what terms to exercise a contractual right in relation to a product.

7.6. Did the Respondent comply with the Civil Procedure Rules in particular CPR 16 Practice Direction 16 paragraph 7.3?

No.

The Respondent’s advocate at the hearing admitted that the Respondent did not have the agreement relied upon in the particulars of claim. The fact that the Respondent does not have the original agreement fatally undermines the claim in as much as there is no means by which the Appellant or the Court may verify the validity of the claim.

7.7. Was the District Judge right to accept at the hearing a copy letter dated 25/11/2008 purporting to be a Notice of Assignment as evidence when it was not recognisable as such?

No.

The District Judge should only have accepted the copy letter as evidence if exhibited according to CPR 32 by way of a witness statement verified by a statement of truth. The Respondent is a commercial company well versed in these matters and accepting the letter as evidence fatally undermined the Appellants application and resulted in the parties being on an unequal footing, particularly as the Appellant is a Litigant in Person. The Appellant avers that the District Judge was misled by the Respondent who was resorting to tactical games-playing when there should have been cooperation and commonsense, which is contrary to the whole basis of the CPR.

7.8. Was the District Judge right to rule on the copy letter dated 25/11/2008 purporting to be a Notice of Assignment without establishing the reason for lateness, the failure to submit the same as an exhibit to an affidavit or witness statement and if satisfied with the explanations giving the Appellant an opportunity to review by adjourning the application?

No.

The Appellant would question the authenticity of the letter dated 25/11/2009 as it was only provided to the court just before the hearing and only then in the hearing handed to the Appellant. The letter, if authentic, would have been exhibited with a witness statement and would have been made available to the Appellant within 14 days of receipt of the disclosure request dated 01/08/2009 according to CPR 31.14 and the District Judge should only have ruled upon it if it was submitted correctly as evidence, verified with a statement of truth, and served on the Appellant before the hearing. In so doing otherwise it fatally undermined the Appellant’s application and resulted in the parties being on an unequal footing.

7.9. Was the District Judge’s ruling correct that the copy letter dated 25/11/2008 was a valid Notice of Assignment correctly served on the Appellant?

No.

This has been dealt with in 7.2.

7.10. Were the allegations in the Particulars of Claim correctly stated?

No.

The statement of case discloses no reasonable grounds for bringing or defending the claim and is an abuse of the court’s process or is otherwise likely to obstruct the just disposal of the proceedings as:-

(i) It referred to a credit agreement the Respondent didn’t have, and;

(ii) it did not adequately describe the agreement, and;

(iii) it did not include a concise statement of facts on which the claimant relies, and;

(iv) it did not include a statement on interest as interest was referred to therein, and;

(v) it did not specify the conduct relied upon as the agreement would have been one regulated by the Consumer Credit Act 1974.

THE COURTS POWERS

8. The courts powers are as follows:-

8.1. Default judgment wrongly entered on 15/05/2009.

CPR 13.2 states:-

13.2 Cases where the court must set aside judgment entered under Part 12

The court must set aside a judgment entered under Part 12 if judgment was wrongly entered because -

(a) in the case of a judgment in default of an acknowledgment of service, any of the conditions in rule 12.3(1) and 12.3(3) was not satisfied;

The Appellant respectfully asks the court set aside judgment as it is required to do so according to CPR13.2.

8.2. Failing to serve a valid Notice of Assignment prior to making the claim.

As the Respondent had no right of action and no standing before the court, the Appellant respectfully asks the court to strike out the Respondents claim.

8.3. Failure to have a Consumer Credit Agreement with all prescribed terms.

Statute and case law both agree that there must be a credit agreement containing all prescribed terms with no error, no matter how small. Parliament, when enacting the Consumer Credit Act 1974 intended to place a heavy burden of strict liability on creditors to ensure that they produced documentation free from any errors and to provide debtors with the highest level of protection possible. Therefore, the only course of action available is to strike out the Respondent’s claim.

8.4. Respondent’s failure to fulfil obligations under Consumer Credit Act 1974.

Statute and case law both agree that unless the obligations on the creditor are not followed they cannot (a) terminate the agreement, (b) demand earlier payment of any sum, or © enforce the agreement. Therefore, the only course of action available is to strike out the Respondent’s claim.

8.5. Respondent’s failure to prove they acted fairly.

Section 140B of the Consumer Credit Act 1974 allows the court, where the creditor has failed to prove they have acted fairly, a number of different remedies in relation to unfair relationships and it is averred by the Appellant that the proper arena for determining this is at trial as this is a defence in its own right. Therefore the only course of action would be to set aside judgment entered 15/05/2009.

8.6. Failure to comply with Civil Procedure Rules Part 16 paragraph 7.3.

The Respondent’s failure and subsequent inability to comply with the Civil Procedure Rules fatally undermines their claim. This makes the claim unsustainable and as such it is respectfully requested that in these circumstances the court strike out the Respondents claim.

8.7. Failure to accept evidence only recognisable as such.

The Appellant respectfully asks the court to reconsider the order being appealed taking into consideration only evidence recognisable as such and vary such order to set aside judgment entered 15/05/2009.

8.8. Wrong to rule on copy letter dated 25/11/2009.

The Appellant respectfully asks the court to reconsider the order being appealed taking into account that the court was misled into accepting the copy of letter as evidence and resulted in the District Judge making an ultra vires decision. In such circumstances the Appellant asks the court to vary the order being appealed to set aside judgment entered 15/05/2009.

8.9. Incorrect ruling on copy letter dated 25/11/2009.

The Appellant respectfully asks the court to vary the order being appealed to set aside judgment entered 15/05/2009.

8.10. Particulars of claim incorrectly stated.

This makes the claim unsustainable and as such it is respectfully requested that in these circumstances the court strike out the Respondents claim.

In these circumstances it is respectfully requested that the Court vary the order of District Judge Shanks.

REQUEST FOR COURT ORDER

The Appellant respectfully requests the Court make the following orders:

1. The Judgment for Claimant entered against the Defendant on 15/05/2009 be set aside and the Claimant shall pay the Defendants costs of the application.

2. The court strike out the Respondent’s claim.

Statement of Truth

 

I made one or two small amendments, highlighted in red. Looks good to me though.

Edited October 3, 2009 by citizenB

[RobinWayRobinme]

thanx CitizenB realy appreciate the time you have spent on this.

 

Will go through it a little later (just about to eat)

 

Thank you

Robin

[RobinWayRobinme]

Bump for help on Skeleton argument please. Andyorch/CitizenB