Dissecting the Manchester Test Case....

[B3rty]

P1,

 

Great idea to start a new thread but in view of the importance of these cases and the confusion that their use (or misuse by DCAs) can cause, would it not be an idea for the mods to make this a sticky with a summary of what the cases where about and the main conclusions?

 

Also I feel it would a good idea to rewrite the CCA request letter quoting from this judgement i.e

 

" If the copy you provide is reconstituted you must inform me whether you hold the original on file or if this is from your records as per Carey V HSBC Bank Plc 2009 [EWHC] 3417" ect ect

 

This should put the DCA's on their toes as you can bet they will be quoting their version's to us as soon as their paralegals have updated their theatomatic machine

[B3rty]

Could this be one of the areas in respect of regulation 7 which states;

 

7(1) Where an agreement has been varied in accordance with section 82(1) of the Act, every copy of the executed agreement given to a debtor, hirer or surety under any provision of the Act other than section 85(1) shall include either -

 

a) an easily legible copy of the latest notice of variation given in accordance with section 82(1) of the Act relating to each discrete term of the agreement which has been varied;

 

or

 

b) an easily legible statement of the terms of the agreement as varied in accordance with section 82(1) of the Act.

 

We are of the opinion that reg 7 refers to a copy of the executed agreement and that sub sections a) or b) are in addition to this and not any alternative to sending the "actual executed agreement".

 

from Carey V HSBC Bank plc [2009] EWHC 3417 (QB) (23 December 2009):

 

"108. Accordingly, I conclude that Reg. 7 requires a copy of the executed agreement in its original form as well as a statement of the terms as they are at the time of the request."

 

"SUMMARY OF FINDINGS:

 

234.

 

(4). If an agreement has been varied by the creditor under a unilateral power of variation, the creditor must still provide a copy of the original agreement, as well as the varied terms."

[B3rty]

"if the signature page said had that the debtor agreed to be bound by the terms “overleaf” and the relevant terms were set out on the reverse." well dammmmmmmmmmmm

 

and even if the terms and conditions for the purpose of compliance are set out physically in other pages , and even if there is not reference, all consumer will lose their case or will they???

 

Nothing has changed in this respect this was always the case for pre 2005 agreements as the order only came in in the 2004 SI

[B3rty]

This certainly brings out the flight or fight..

 

I see this from para 108

 

Accordingly, I conclude that Reg. 7 requires a copy of the executed agreement in its original form as well as a statement of the terms as they are at the time of the request.

[B3rty]

The argument, as with all contracts, is that the signature comes after the main terms ( prescribed in the case of CCA 1974 ) and not before, so unless referred to on the signature page, any other position should be worthless

 

Vint.....where does this come from?

[B3rty]

Basic contract law.

 

I think you may be wrong here as I cant find any contract or case law to support this..(I looked for this in my own case) however if you can point me in the right direction it would be much apprecaited

[B3rty]

Diddydicky...Good try but it contains some errors and miss stated facts

 

s.127(3) is a defence for enforcement action not a s.78 request this is what the judgement is really all about and not enforcement

 

Waksman sets out what a s.78 needs to contain and what a breach is or isn't and leaves the door open for action under s.140

 

The judgement states in para 119, The fact that if the creditor no longer has the original executed agreement is not therefore, itself a bar to compliance with s78.

 

However what it does give is clear guidelines as to what the copy has to show and if varied says they have to provide the original along with current terms

 

It also says in para 150 (5) that they must make it clear after 12 working days that the agreement isn't enforceable (They can still report to CRAs)

 

Para 132 says that the s.78 is not about proof of a properly executed agreement however 133 134 opens the door to s.140 unfair relationships based on individual particular facts (This stops the multi claims)

 

Here's something I have been working on maybe someone would like to top and tail it?

Dear Sir/Madam

 

Re 12345678910

 

With reference to the above account, I would be grateful if you would send me a copy of this credit agreement.

 

I refer to the recent judgement in the Manchester Mercantile Court Carey v HSBC bank Ltd [2009] EWHC 3417 where Judge Waksman set new case law regarding copies of agreements under the CCA1974

 

I understand that under the Consumer Credit Act 1974 (Sections 77−79), I am entitled to receive a copy of my credit agreement on request. I enclose a payment of £1.00 which represents the fee payable.

 

The copy may be reconstituted from your records but must comply with the requirements set out in Carey V HSBC however I would prefer a photocopy of the original document

 

I understand a copy of my credit agreement should be supplied within 12 working days and after this time you must advise me whether you hold a copy on file after this period you may not enforce the agreement and I may withhold payment as in Casey V HSBC para 150

 

If the agreement has been varied you must supply a copy of the original along with the current terms and conditions Casey V HSBC para 108

 

If you provide a reconstituted copy you must advise me of this and explain why it may differ from the original as per para 57 and OFT draft Guidelines

 

I look forward to hearing from you.

 

Yours faithfully

 

K.I.S.S

[B3rty]

How are you going to defeat it with 127(3)?

[B3rty]

I have used 127(3) myself but that only stops enforcement through the court it doesn't do anything for a s.78 request ...interestingly the judgement opens the door to s.140 for this type of thing as it would appear the claimants were using s.78 breech only for unfair relationships

[B3rty]

Sorry buddy...I see what you are saying...

 

Mine was an attempt at rewriting the CCA request letter as I think we need one

[B3rty]

Its WAR I think you are in the wrong thread the s.127(3) was in connecting with the subject in this thread not your's however it wont help you as its to stop enforcement.

 

Surely you have the right to see the documents you would use if you were about to litigate using 140 unfair relationships a judge can't stop that and its not about a s.78 request.

[B3rty]

Just put a letter on the thread that worked for me after I received the same type of letter from them.....I expected more of a fight however they withdrew very quickly and said they had returned the account to the original creditor.

[B3rty]

I sent CPR 31.a6 request to LLoyds Tsb they replied treating it as a response to a s78 they sent up to date agreement nothing to tie it to my husbands account and stated that they cannot locate the signed agreement but with endeavour to locate it and go on further to say they will not enter into anymore discussion on the matter, so how can you be seen by the banks to be doing all in your power to give creditors a chance to put things right when such as Lloyds Tsb arrogantly state they won`t enter into any more discussion on the matter

 

This is where the Waksman judgement is good because it opens up the opportunity for s.140 unfair relationship litigation for this type of situation

[B3rty]

Please don't take this the wrong way but if anyone has to ask the question then you are on a sticky wicket because you will need to be able to convince the judge thats its not and why quoting the ACT/SI and case law...

 

I may say its OK someone else may say its not and we had a lot of this over recon agreements prior to Waksman....

[B3rty]

Paul I know you are an experienced CAGer but did you quote 127(3)...Goode, case law ect?

[B3rty]

That's tough...did you appeal?

[B3rty]

This was always the case for pre 2005 agreements after then the prescribed terms had to come between the parties and the signature.

 

So I assume the agreement was challenged using s.140 unfair relationships and the court would be asked to rule based on the fact that the PT were not on the signature page for a s78 request which this ruling now allows reconstructed agreements.

 

However put the boot on the other foot the judgement also says under reg 7 a copy of the agreement under a s78 request must provide a copy of the original as well as the current terms and with out that they can't enforce i.e bring litigation, so I could see a lot of cases getting thrown out at AQ stage if this is quoted as a reconstituted agreement just will not do

 

So this is my summary

 

S.78 requests leading to claims are now more difficult for the LIP as the case law to use this for s.140 unfair relationship claims is in the favour of the creditor, and the judgement states that each claim must be judged on merit

 

However using the judgement for reg 7 to stop enforcement action has helped the cause as the judgement states this must be an original and during the breech the creditor can't enforce through litigation

 

 

The grey area is how long does can an agreement be in breech of a s.78 request before it's deemed and unfair relationship and s.140 used and I would assume this is where future CMCs will earn their money and those without the means to fund this action will just wait six years for it to drop off the record

[B3rty]

I can tell you that in all my cases all i signed was an application form. I cant remember if I was given any T&C but most were postal applications. I am rather worried though as in most cases they have supplied a copy of the original and current T&Cs and since they are all referred to in the application forms am I right in thinking that a judge would assume "they would have been given to me at the time" ??

 

Wasn't that the application you signed in the supermarket and don't you remember saying to the girl " I don't normally sign with out seeing the conditions and she said these would be posted to me and I could always change my mind" !!

[B3rty]

also if they could get the insurance to cover them in case they lost

 

Its all about money for them at the end of the day.. doesn't matter who's side they represent they always make money

[B3rty]

If you look at this in the context of the judgement its about s.78 requests and their inability to produce the original copy thus enabling the enforceability issue for collections and CFA reporting with regard to how long can an agreement be temporarily unenforceable i.e for s.140 purposes ..so all he (and this is a quote from Mitchell not a Waksman actually quote) all he is doing is closing the s.140 door

 

Its been said many time that this judgement is more about proactive rather than defensive litigation and this is one aspect of it that I don't think would stand up for enforcement through the courts as a claimant.

[B3rty]

Better still read the Secret by Rhonda Byrne and start focusing on the positives rather then the negatives...especially in the Waksman judgement ...they are there if you look in the right way

[B3rty]

Am i right in thinking all this Manchester hearing has really done is effectively stopped alot of these claims management companies from risking bringing claims and clogging up the courts with thousands of cases.

 

Spot on as now each case is to be viewed on its own merit.

 

Its made it more difficult for an agreement to be classed as irremediably unenforceable due to the non production of a s.78 request so whilst its in dispute you can stop paying they can still ask for money, they can report to CRA's but they can't take you to court or instruct a DCA to do this, and whilst in dispute you can't automatically go for s.140 either as they may find the agreement in the future!!

 

Miss sold PPI or terms would be a case that would be acceptable for s.140.

 

My understanding is if the agreement is varied under reg 7 they have to produce a copy of the original which many wont be able to do so this could help get any litigation for these types of sitaution chucked out at A.Q stage.

 

I think a lot more people will have just to accept the credit file and wait the 6 years

[B3rty]

Does anyone know where i can find the Original Consumer Credit Regulations 1983 S/1553 BUT without the 2004 amendments

 

I tried desperately to find these a while ago for my own court case but from what I can gather the amendment with regards to Form & Content means that from 31st May 2005 the prescribed terms had to come before the signature rather than just in the same document...however although my agreement was pre 2004/5 I still used this and got away with it..