Quality Solicitors Howlett Clarke – My contact details

A few people have been leaving me messages here asking for email details, sadly i have no longer got access to Watsons Emails so any blog messages are not picked up by me, so please do not post messages here, i wont get them.

If you need to get in touch, then here are my details

Quality Solicitors Howlett Clarke ( Brightons oldest law firm)

8-9 Ship Street



Tel 01273 718544


I still cover consumer credit law, i also deal with insolvency work both statutory demands or Bankruptcy petitions. I will also look at cases on no win no fee basis, where the case merits it.

I hope this assists to those who have been trying to contact me 🙂

New followers of this blog

I note that there are a number of new followers of this blog.

I am grateful for the interest in my ramblings on Consumer Credit matters, but this blog is now closing down. I have left Watsons and moved to a new firm and it would not be right to carry on a blog in the name of Watsons.

I have started a new blog http://consumercreditlitigationanddebtcollection.wordpress.com/

And will be adding to it as soon as i get a free minute. However at the present time work is taking up all my time and i havent had chance to add much there.

Anyway,  i will leave this blog up but wont be adding any more CCA matters to it


Laters peeps

my new blog

For those who follow my blog posts, i have started a new blog where i will be posting which can be found here http://consumercreditlitigationanddebtcollection.wordpress.com/

And now the time has come.

This will be my last entry on this blog.

Sadly i am leaving Watsons Solicitors in the near future.

I will be opening a new personal blog which i will link to this blog so others can follow me.

I will release details of the new firm where i will be working on my new blog also.

I just want to say thank you to all who have followed this blog, and have contributed to the discussions that have taken place.



Bank-bashing by the Court of Appeal


The conduct was…intimidatory and controlling…If that amounts to good banking practice, that is a very sorry misassessment by the banks of what commercial morality and indeed legality requires

The Court of Appeal has held that the Bank of Scotland is liable for harassment in making hundreds of calls to  someone who exceeded her overdaft limit.

With the Information Commissioner taking recent robust action we all know that the making of unwanted calls by commercial organisations can be a breach of The Privacy and Electronic Communications (EC Directive) Regulations 2003 and the Data Protection Act 1998.

However, a recent Court of Appeal judgment has held that this practice can also constitute harassment, even when the calls are made by one’s own bank, in pursuit of a debt.

In Roberts v Bank of Scotland the claimant – a valiant litigant in person – had sought and was awarded damages in the County Court…

View original post 741 more words

Reflecting of Roberts- The recent Court of Appeal ruling on harassment.

I have been reflecting on the recent (and in my opinion, rather helpful ruling) in the case of Roberts v Bank of Scotland Plc.

Whenever anyone mentioned harassment under the Protection from Harassment Act 1997 before the Roberts ruling, the case of Conn v City of Sunderland [2007] EWCA Civ 1492 would crop up, normally along with the case of Majrowski v Guy’s and St Thomas’s NHS Trust [2006] UKHL 34.

The view coming from the Courts seemed to be that a civil claim could only arise as a remedy for conduct amounting
to a breach of s 1 of the Act, which by s 2 would also amount to a criminal offence. Certainly cases where a bank has telephoned its customer unreasonably it seemed an uphill struggle to get a claim for harassment off the ground. This was part of the reason why in Harrison v Link Financial Limited, the challenge surrounding the unfair telephone contact was based on the Unfair relationship provisions in the Consumer Credit Act 1974 as opposed to the PFHA 1997.

Of course there was the ruling in Ferguson v British Gas, however that was not so much about the conduct but the appeal centered on whether the case ought to have been struck out or not. The Court of Appeal finding that the case should go to trial and of course it settled very shortly afterwards.
However, the recent Court of Appeal ruling in Roberts seems to suggest that the Courts are willing to consider the issue of harassment when a creditor unreasonably pursues a debtor via the telephone. Its not a crime to be in debt, many people who are unfortunate to be faced with debts do not go out of their way to run up debts with the intention of never paying the money back. Most people who fall on hard times are honest genuine people, some with children, and some not, but nonetheless they do not deserve to be hounded and pressured by large corporations just because they cannot afford to pay what the bank demands. Lets not forget of course that much of the financial difficulties and economic issues which arose as a result of the banks. One only need look at the press reports to see that, yet the banks seem to think it is acceptable to hound people by telephone.

If your lender is making telephone calls to your home, place of work, mobile etc and you do not wish to discuss the matter by phone, something the Court of Appeal made clear was a debtors right, then you should write to the creditor and ask them to stop phoning you, if the calls are causing difficulties at work then make this clear in the letter too and if the calls are upsetting too, then make this clear too.

Make sure the letter is sent recorded delivery and most importantly, make notes of each and every call made to your phone and keep it safe.

If the creditor keeps calling then tell them you do not wish to discuss the matter over the phone, and if the calls are upsetting you then tell them this too. Many people find calls from creditors and debt collectors deeply upsetting, there is no shame to tell a bank that they are making you feel ill, or upsetting you by phoning or that they are placing your employment at risk by calling your work. Also i would suggest that if you are in a position where you simply cannot pay what the bank is asking you to pay, then tell them, make it clear to them both in writing and by phone, send them income expenditure details and make it clear to them that by phoning they are not going to get the funds they are seeking and all the calls with do is cause you more distress.

It is worth noting that in Roberts the bank rang 547 times in around 6 months, now that may seem a lot, but it equate to 3 calls per day based on 182 days in the 6 month period. In Harrison v Link, Mr Harrison was called more than 3 times some days, and in many of the cases i see, the debtors will get called three times per day per phone, sometimes there will be a call to the home, the work, the mobile etc so 547 calls some of which were unanswered, is not many when you break it down.

It is impossible to say whether a person will have a claim for harassment, as each case turns on its own facts. However, it does seem to me, if the facts and the circumstances are right, that a counterclaim could well be viable under the PFHA 1997 which will no doubt be seen as good news by many Defendants, but not so good news for the banks.

Roberts v Bank of Scotland plc and another appeal – [2013] All ER (D) 88

Whilst i was searching for a case on Lexis Nexis today, i came across the case report on Roberts v Bank of Scotland plc and another appeal – [2013] All ER (D) 88. This case was very interesting indeed, not least because the Bank of Scotland appealed having lost at the first instance and took the matter to the Court of Appeal and lost again.

The facts however are most interesting, it seems the Bank had called the Claimant over 500 times in the space of 12 months, and the Claimant for her part had told the Bank that she did not want to discuss the matter with the bank or its debt collectors.

The lower courts are often quick to frown on a debtor who doesnt communicate with his creditor, however quite helpfully the Court of Appeal seems to have clarified matters on this point.


This is an extract from the case report.

(1) The existence of a debt did not give a lender the right to bombard the debtor with calls. It was for the debtor to decide whether they wanted to discuss the matter with the creditor.


In respect of the harassment appeal, the claimant had made it perfectly clear that she had not wanted to speak to the bank, and she had been perfectly entitled to do so. Once the bank had phoned a few times, it had been clear that no progress was to be made. Further calls had been futile and should have been stopped. The judge had been right to characterise the calls as intimidation and they had been wholly unjustified. In respect of quantum, there was no possible ground for interfering with the judge’s assessment of damages.

While this claim was raised under the Tort of Harassment and the Protection from Harassment Act 1997, it confirms that much like in the case of Harrison v Link Financial Limited, the Courts are happy to step in and uphold consumers rights not to be harassed by Banks or debt collectors, and where such conduct occurs, the Courts will award damages against the Bank or debt collector.


This is a very helpful Judgment and one which i will happily keep in my locker when i deal with cases where creditors have been excessive with their telephone calls.

A point of interest that arose today

I often post here about the misinformation floating around online, and the errors that people make in assuming things concerning Consumer Credit Law, however a series of events today made me decide to post this article.

I was presented with an argument about enforceability which was badly wrong. Well in fact a number of points were incorrect.

Error 1) If a bank or creditor cannot provide the original credit agreement then they cannot enforce the agreement in Court. Also if they don’t have the original then they cannot reconstitute the agreement.

This is incorrect. Even going back to Wilson v First County Trust (2003) UKHL 40, the Lords said that there must have been an agreement, signed by the debtor, however the Lords did not say that if the bank doesn’t have this agreement then they cannot enforce. There have been a series of judicial rulings which address this point.

HHJ Langan in Lloyds TSB vs Mitchell that the creditor did not have to produce the original signed agreement, he pointed out cases such as the Iron Mountain fire where thousands of credit agreements were burnt and pointed out that if the creditor lost his agreement because of the fire, then it would produce an absurd result that would have left the creditors unable to enforce compliant and enforceable credit agreements. That was never the intention of the Consumer Credit Act 1974.

In Carey v HSBC Bank Plc HHJ Waksman QC made it clear that the creditor does not need the original agreement to produce a true copy, he can rely on records held in computers and other sources to produce a true copy of the agreement, the only caveat is that the copy must be honest and accurate.

The Courts have also set down some guidance on the issue of unenforceabilty and who shares the burden of raising such arguments relating to unenforceabilty. In HFO Services vs Kirit Patel HHJ Platts made it clear where a debtor wishes to raise an allegation of unenforceability, he cannot just say “its unenforceable guvnor” he needs to say why. For example, its unenforceable because the amount of credit is misstated and therefore a prescribed term is missing and therefore the agreement does not comply with s61(1)(a) Consumer Credit Act 1974.

So what if you don’t have the original agreement? well the burden does rest on the debtor to make a positive assertion about the original agreement, as the law stands , unless the debtor is able to make a positive assertion that the agreement was unenforceable because….. or that there never was a signed agreement…………………….(Please note: This only applies for agreements signed before 6th April 2007) then it is going to be very difficult to challenge the enforceability of the credit agreement.

I would also point out that no where in the 1974 Act does it state the “Original actual signed piece of paper” must be brought to the Court. It would no doubt be accepted by the Court if a member of staff working for the bank in their archiving department gave evidence that there was a credit agreement recorded on the banks archives, and that the type of credit agreement in use at that time was “X” and the computer records show that “X” % rate of interest would have applied and the credit limit was “£XXXXX”. The Court is likely to accept such evidence unless there is a positive assertion coming from the debtor as to what he did or did not sign. Now i would also point out that making a positive assertion that you didn’t sign an agreement when you know you did, is not only likely to get found out and make you look foolish, if you make such an assertion in a Defence and sign such with a statement of truth knowing it isn’t true, then you may well end up facing contempt of court too.

That said, there are often ways of proving the agreement the bank says is a “true copy” is in fact not a true copy. I have developed this skill over the years, and have been successful on a number of occasions in proving that the “true copy” provided by lenders isnt.

Error 2) Improper execution is not the same as unenforceable when dealing with s61 and 127(3) Consumer Credit Act.

This error was argued before me today. If an agreement is unenforceable, then it is unenforceable because the agreement fails to comply with s61 Consumer Credit Act, s61 clearly states an agreement is “improperly executed unless……..” if we then turn to s65(1) Consumer Credit Act 1974 we find that an “improperly executed agreement is only enforceable by order of the Court”

If we look at s127(3) Consumer Credit Act 1974 which has now been repealed, that 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).

So, we say unenforceable but to use the term improperly executed would lead to the same conclusion.

The Jackson Reforms… a month on………….

Well its nearly a month since the wonderful Government brought in the amendments to the CPR which hit among other things the recoverability of successfees under no win no fee agreements.

Obviously, the initial thoughts were that consumers would face difficulties in obtaining access to justice and while this will undoubtedly be true for Claimants wishing to pursue a personal injury claim as they would now have to pay the successfee from their damages, for our clients it is not as bad as we first thought.

It is true that we are now more strict with the criteria of cases we take on, but the reality of it is that we are still taking cases on no win no fee, and while the client will now have to pay any success fee, we are not obliged to charge the Client a successfee at all if we dont want to and we are taking a flexible approach with clients and are happy to allow payment over a period of months where the case warrants it.

I must confess i did  think that the firm would cease taking on no win no fee cases, however, clearly i was wrong and the Jackson reforms, while more challenging are not a reason to stop taking cases on no win no fee.

Also, statutory demands are unaffected by these reforms, so we can still recover the successfee from the opponent, so cases involving bankruptcy are not affected at all.

I must say that Kerry Underwood of Underwoods solicitors was right when he said that the reforms are not as bad as some people thought they would be.

And s77-79 Consumer Credit Act 1974 is still causing the credit industry problems.

In May 2011 i took part in an interview with Ian Pollock from the BBC. Ian also interviewed Raymond Cox QC who is a leading expert on banking and finance law.

In that interview, i predicted that the banks were facing a big problem, Ray Cox QC also agreed with this view. Interestingly the Credit Services association Chief Exec Peter Wallwork was quoted as saying “Debt purchasers are not waking up and suddenly finding they have a problem on their hands,” and he apparently denied that lenders had a problem.

If that was correct, then it would be fair to say that i would be out of work by now, as plainly if the banks and creditors were not facing a problem then they wouldn’t lose in court, my firm wouldn’t win, and we would all be out of business. I’m sure that is the lenders wish, but sadly it isn’t whats happening.

On 4th March 2013 a Court heard a case involving a loan agreement. The agreement wasn’t that old, and the bank shouldn’t have had any problem producing a copy of the agreement, if of course their records were good and reliable. However, as was proven in Court before a Circuit Judge, their records fell down badly.

The Defendant made a request under s77(1) Consumer Credit Act 1974 for a copy of the loan agreement, it was a request made so that the Defendant could ascertain the terms of the agreement and to satisfy herself that the bank was entitled to take certain actions and to levy certain charges on to the account.

The first copy produced, was grotesquely illegible, it was ridiculous given that this was a bank who plainly knew what the law said about legibility, to make the point even the banks barrister said in court that no one could say this document was legible!!. It never ceases to amaze me that a bank would send out something which plainly could not be read, i mean what is the sense in doing that? what does it achieve? how does it assist anyone?

The bank then took legal action against the customer, despite failing to provide the documents which it was obliged to provide, and i pause for a moment to also point out that the bank also had a duty to provide documents under the Civil Procedure Rules Pre Action Protocols, so there was a double failing on the banks part.

I actually lost count of how many attempts the bank took at complying with what seemingly is a straight forward piece of legislation. If one reads the BBC interview you would think that the banks had no issues with complying with these s77 – 79 requests.

Everytime the bank sent a copy of the agreement, there were faults, faults so obvious Stevie Wonder on a galloping horse could have seen them clearly. I highlighted that the documents did not comply, yet this was seemingly ignored, in fact on one occasion the bank said, in the hope that a line can be drawn under this particular issue…… and they enclosed the same documents, with the same glaringly obvious errors.

When the case came to Court, the banks barrister ran a rather novel argument that the errors were errors which would have featured in the original signed agreement. The client recalled the document she signed and was adamant that what was produced wasnt it. Also, it seems to have escaped the bank that in running its argument that the errors were present in the original meant that the lawyers who drafted the contract must have been incompetent to write in these errors, further they were incompetent in not proof reading. Then, the printers also were incompetent in printing such a document with such glaring errors, and not proof reading, then, the bank and its agents must also have been incompetent as they sent out a credit agreement riddled with errors. And as the Judge who was alive to all the issues pointed out, no one at the bank had picked up on these errors for nearly 7 years until a customer of the bank pointed them out. Plausible? i think not, and the Judge agreed with that point of view, and dismissed the Claim.

But this isn’t the only case which i have dealt with that has fallen over on s77-79 Consumer Credit Act 1974. I dealt with a claim two weeks prior, where a large debt purchaser could not provide a true copy of the Defendants credit agreement. The judge on that case also dismissed the Claim and found for my client on all points taken.

Then there is the cases which don’t get to trial, many get abandoned when the creditors find they cannot comply with s77 – 79.

I remain of the view that the lenders have a headache facing them, certainly from the documents i see being put forward as “true copies” i am often able to find fault, whether it is a phone number that was not in use, or an address that wasn’t in use, or a rate of interest that wasn’t used until a year later or late payment charges which didn’t apply at the point the agreement was executed,the devil is in the detail.

I wonder if the credit services association would stand by their view some two years on or whether they will finally accept that lenders do have a problem.