cabot 2 lloyds credit cards - not provided CCA after 12 days what next?

[martin2006]

Given the date you obtained the cards, any agreement they do produce, must be a true copy of the original and not a reconstituted version

[martin2006]

The following is the full version

 

Preliminary issues with regards to Reconstituted version of a CCA

 

The preliminary issues determined by the judge in the case were:

 

Issue 1

 

When providing a copy of an executed agreement in response to a request under section 78(1) of the Act:

 

a. must a creditor provide a photocopy (or other form of complete copy) of the original agreement that was signed by the debtor or at least provide a copy which is derived directly from the original agreement or complete copy thereof? or

b. can a creditor provide a document which is a reconstitution of the original agreement which may be from sources other than the actual signed agreement itself?

It was held that a creditor can satisfy its duty under section 78 by providing a reconstituted version of the executed agreement which may be from sources other than the actual signed agreement itself.

 

The judge accepted that as a matter of law, section 78 does not itself require any particular explanation as to how the copy was made. However, as a matter of good practice and so as not to mislead the debtor, it is desirable that the creditor should explain that it is providing a reconstituted as opposed to a physical copy of the executed agreement. This will also explain why the copy might otherwise look a little odd. The creditor can also explain in the letter that this procedure is satisfactory under the Act.

The judge also provided that the following information needs to be included in the reconstituted copy agreement (assuming of course that it was present in the original):

 

1. Heading: Credit Agreement regulated by the consumer crediticon Act 1974

2. Name and address of the debtor

3. Name and address of the creditor

4. Cancellation clause applicable to the executed agreement.

 

All of the above may be provided on a sheet which is separate from the full statement of terms and conditions which also forms part of the reconstituted agreement. The creditor may, however, decide to reconstitute the agreement in a different way so that, for example, the information above is populated electronically onto the same sheet as that which sets out the terms and conditions, or some of them. The judge stated that he did not intend to prescribe the precise form of the reconstituted agreement. The key point is what information it should contain, subject to the point that its format should not be such as to mislead the debtor as to what he agreed to.

 

The judge also considered whether a statement like the one appearing in the reconstructed application form in Carey referring to the agreement to the terms and conditions "attached" needs to be included in the reconstituted copy. Alternatively if the application form had said "I agree to the terms overleaf", should that statement be included. The judge held that this aspect of the form is not necessary for the purpose of the section 78 copy, although there is nothing to stop a bank from putting it in or indeed from furnishing a copy of the type of application form or signatureicon page that the debtor would have signed, as some banks have done. The statement referring to terms and conditions is not itself prescribed information and the supply of the terms and conditions which were applicable at the time will tell the debtor what he needs to know in terms of the content of what he signed up to, including the presence (or otherwise) of the prescribed terms.

 

In practical terms what this is likely to mean is that if the creditor chooses to use as the section 78 copy the section 63 copy, which would have been provided to that particular debtor at the time following execution of the agreement, this will be sufficient provided that the information referred to above is supplied. This exercise is not a mere formality. The creditor will need to check carefully that the details of the debtor at the time are correct and that those are the particular terms (including prescribed terms) that he/she agreed to. This is to ensure that it is an honest and accurate copy.

Must a creditor provide a document which would comply (if signed) with the requirements of the Consumer Credit (Agreements) Regulations 1983 (Regulations) as to form, as at the date the agreement was made in order to comply with section 78?

 

A creditor need not, in complying with section 78, provide a document which would comply (if signed) with the requirements of the Regulations as to form, as at the date the agreement was made.

 

Must the copy provided under section 78 include the debtor's name and address as at the date when the agreement was made, and if so in what form?

The section 78 copy must contain the name and address of the debtor as it was at the time of the execution of the agreement. But the creditor can provide the name and address from whatever source it has of those details. It does not have to take them from the executed agreement itself.

 

Issue 2

 

If an agreement has been varied by the creditor under a unilateral power of variation, is a copy of the executed agreement as varied, a sufficient copy for the purposes of section 78(1), or must the creditor provide a copy of the original agreement as well?

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.

 

Issue 3

 

Does a creditor's breach of section 78(1) of itself give rise to an unfair relationship within the meaning of section 140A of the Act?

If a creditor is in breach of section 78 this does not of itself give rise to an unfair relationship within the meaning of section 140A.

 

Issue 4

 

If there is a breach of section 78(1), is that sufficient without more to make a declaration to that effect appropriate, in particular:

 

a. where the creditor admits the breach but did not admit it before the issue of proceedings?

b. where the creditor denies or does not admit the breach?

 

A court has jurisdiction to declare whether in a particular case there has been a breach of section 78. Whether it will be appropriate to grant such a declaration depends on the circumstances of that case. If there are proceedings on foot and within them the creditor formally admits non-compliance with section 78, there is no point in maintaining the proceedings just to obtain a declaration to that effect.

 

Issue 5

 

Does the document signed by the debtor contain the prescribed terms for the purposes of section 61 and/or section 127(3) if:

 

a. they are on a sheet which is referred to on the piece of paper that was signed by the debtor; or

b. that sheet is attached to the piece of paper signed by the debtor; or

c. that sheet is separate from but was supplied with the piece of paper signed by the debtor?

 

The judge held that in assessing whether prescribed terms are "contained" in an executed agreement the following principles are relevant:

 

• it is not sufficient for the piece of paper signed by the debtor merely to cross-refer to the prescribed terms without a copy of those terms being supplied to the debtor at the point of signature

• a document need not be a single piece of paper

• whether several pieces of paper constitute one document is a question of substance not form. In particular a physical connection between several pieces of paper is not necessary in order for them to constitute one document

• a physical connection (or one or more physical connections) between several pieces of paper does not necessarily constitute them as one document

• where the debtor's signature and the prescribed terms appear on separate pieces of paper, the questions of whether those pieces of paper together constitute one document is a question of substance and not form.

 

He added that he would not seek to answer the questions in issue 5 in their current state because the scenarios postulated all require some further elaboration before a simple "yes" or "no" answer can be given.

 

Issue 6

 

If it were not established, at trial, that there was a document signed by the debtor containing the prescribed terms, would that of itself entail an unfair relationship?

The judge held that the answer to the question was no.