Cap1 & CCA return

[dad]

@Paulwlton

 

Paul, first of all can I congratulate you on your stand against RBS. I hope you will take my comments as constructive criticism, but I disagree with your interpretation of Kpohraror. eg:

 

Quote:

Originally Posted by paulwlton

The £1000 was for damages to his reputation in Nigeria.

 

Paul

 

 

Reading the judgement I believe it is clear that the damages (£5,500) were awarded as follows:

 

The assessment of damages came before Master Tennant in chambers on 16 February 1994. He awarded £5,550 with interest as general damages for the injury to the plaintiff's credit by reason of the dishonour of the cheque and the apparently discreditable reason given for it, which was of course unfounded.

 

Lord Justice Evans finished his judgement with:

 

The above conclusions mean that I would dismiss both the appeal and the cross-appeal, and would uphold the master's award of general damages of £5,550. He said that it was 'somewhat coincidental', that this was £1,000 more than the amount of the cheque, although I think he meant by this that the appropriate sum by way of general damages could be calculated in that way in the circumstances of this case. This amount, as he explained, contained some allowance, though not very great, for injury to the plaintiffs credit and reputation in Nigeria such as was alleged to have occurred.

 

The circumstances of the case are that the Woolwich acted very quickly to remedy their error, rather than the typical case we see here where bad credit records are maintained for months and sometimes years.

 

My personal view is you start with the 'default sum' which is then adjusted up depending on the actions of the defendant.

 

Dad

[dad]

Am i right in saying compensation was awarded to the value of the dishonored check for £4550, and £1000 for damages he was likely to suffer in Nigeria.

 

Paul

 

I think this is where we disagree. Remember the Woolwich replaced the cheque on the day that Mr K made his complaint.

The cheque was presented at the payee's bankers on 10 September with a request for special clearance. It was dishonoured on the ground that the cheque was reported lost. The payee informed the plaintiff of that. The plaintiff went to the branch at which he had his account before 5 pm, the mistake was acknowledged and at the plaintiffs request the manageress told the payee that there were sufficient funds in the account. The plaintiff accepted the building society's own cheque, which he received about 5.15 pm. The next morning the plaintiff took the cheque to the wholesalers, who accepted it and released the cosmetic goods the plaintiff required for shipment to Nigeria.

 

By the time of the court case Mr K had had his £4,500 back from the Woolwich. So my view is that all £5,500 was for the damage to his reputation.

[dad]

Isn't one of the key points raised in the summing up that to claim for anything more than nominal damages to claimant needs to prove such? In addition didn't the judge say the claimant would need "trader" status to claim anything more than nominal damages. So was Mr K's 5.5K nominal?

 

Rosie,

 

That is the exact opposite of what the judge is saying. Before this case that was the position. As I see it the three key points of this ruling are:

 

1. You no longer have to be a trader to claim substantial damages for wrongful damage to your reputation and credit.

 

2. Damage to your reputation and credit is an exception to the general rule for breach of contract that a plaintiff can not recover substantial damages in the absence of proof that some actual damage had been suffered.

 

3. The calculation of the amount of damage starts with the disputed sum with an addition depending on the behaviour of the defendant. (and I suppose if the claimant was negligent it could be reduced)

 

Dad

[dad]

Credit token definition from S14 of the CCA1974:

 

Credit-token agreements.

— (1) A credit-token is a card, check, voucher, coupon, stamp, form, booklet or other document or thing given to an individual by a person carrying on a consumer credit business, who undertakes—

(a)

that on the production of it (whether or not some other action is also required) he will supply cash, goods and services (or any of them) on credit, or

 

(b)

that where, on the production of it to a third party (whether or not any other action is also required), the third party supplies cash, goods and services (or any of them), he will pay the third party for them (whether or not deducting any discount or commission), in return for payment to him by the individual.

 

 

(2) A credit-token agreement is a regulated agreement for the provision of credit in connection with the use of a credit-token.

 

(3) Without prejudice to the generality of section 9(1), the person who gives to an individual an undertaking falling within subsection (1)(b) shall be taken to provide him with credit drawn on whenever a third party supplies him with cash, goods or services.

 

(4) For the purposes of subsection (1), use of an object to operate a machine provided by the person giving the object or a third party shall be treated as the production of the object to him.

 

EG

 

PS: I have just noticed that it has to be given to an individual - presumably then a company credit card is not a credit token. I wonder what can of worms that opens up?

[dad]

 

 

Bathgate,

 

I think it would be worth your while writing back to the FOS to justify how they came to this conclusion - Possibly as a FOI request. The House of Lords in Wilson set out exactly what 'unenforceable' meant. See Lord Nicholls at paragraph 49:

49. I consider, however, that there is no relevant restitutionary remedy generally available to a lender in the circumstances now under consideration. 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. That being the consequence intended by Parliament, the lender cannot assert at common law that the borrower has been unjustly enriched. That would be inconsistent with the parliamentary intention in rendering the entire agreement unenforceable. True, the Consumer Credit Act does not expressly negative any other remedy available to the lender, nor does it render an improperly executed agreement unlawful. But 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.

 

So in my view the HoL has said unenforceable = inoperative.

 

From well established principles: where a Act uses the same word in different places it has the same meaning in every case unless it expressly says otherwise and that words have their plain english meaning.

 

The Oxford English Dictionary says 'inoperative' means "Without practical force, invalid".

 

It would be very interesting to see how the FOS justify their position.

 

Dad

Edited February 12, 2009 by dad

[dad]

Hi

 

This has come up in a case i was involved in.The creditor had successfuly convinced the judge that the agreement was enforceable after some weeks of the usual arguments.

The debtor had ceased payments on the account sometime earlier and was under the impression that whilst the creditor was in default due to none issuace of copy, no payments were due.

The judge simply asked where it says this within the act? and pointed out that if an agreement is enforceable it is totally enforceable not just from a particular date and all monies payable on it were due as stated.

 

You may have noticed that the new regs (2006) about copy agreement requirements actually mentions that whilst the creditor is in default they can not charge interest so perhaps there has been some limited attempt to rectify what IMO was an oversite in the orriginal drafting of the act.

 

Regards

Peter

 

Peter,

 

I had a similar experience at a CMC, I used the speech of Lord Nichols I posted above. The DJ agreed I had an interesting and arguable point. Sadly the Creditor bottled it and settled at the doors of the trial.

 

Dad

[dad]

@PT2537

 

While you have Goode available, could you look to see what he says about Default Notices. I am particulalry interested in where regulation 1983/1561 says:

 

Schedule 2

...

3 A specification of:--

(a) the provision of the agreement alleged to have been breached; and

 

(b) the nature of the alleged breach of the agreement, specifying clearly the matters complained of;

...

I believe what this says is that in:

 

(a) the creditor needs to set out the precise term that is alleged to have been broken (ie give the number and wording of the term in question).

(b) because the term might be quite technical the creditor also has to set out clearly what has gone wrong.

 

Dad