MBNA told today that the show must go on……..

I attended a Summary Judgment hearing today in a matter that has been rumbling on for a long long time.
It ought to have been listed for trial in the next few weeks but since the Claimant decided to chance their arm at seeking Judgment, the case now faces being allocated into the Multi Track.
Anyhow, the application was heard today and when i heard the Claimants submissions i remember thinking “why the hell have they even applied”. The case is crying out for a trial, the evidence needs testing, and i can say that there are holes in it the size of the channel tunnel in my opinion, and clearly this matter was not suitable for a part 24 app.
The Judge agreed, and was rather critical in his judgment too at one point pointing out that the costs awarded today equalled half of the sum claimed. From my side of the fence there was no way those costs could have been avoided, so its unfortunate but if a party wishes to make a part 24 application they should ensure that the evidence supports the application, unlike today when the Claimant tried to rely on a document which was newly introduced and which was equally as defective as the previous documents ( sorry i cant give away anything more at this stage). Laurel & Hardy anyone?

 

This matter will no doubt be off to trial in the near future and if we succeed on one of the points that are being run it will be very damaging and costly to MBNA by virtue of the card agreement they purchased from Bank of Scotland. I cannot say anything more for now, but will post up the judgment in the case once it has been heard.

 

Watch this space

Watsons on the move

Over this next week we are moving office to a bigger and better premises. The firm has slowly been expanding and needs more room now, so the move was the most logical way forward.
As a result there is going to be a fair amount of disruption to service, but we are hoping to keep it to a minimum and hope that the move goes as smoothly as possible.

 

 

The new address will be Watsons Solicitors, second Floor, Ferndale House, Trinity SQ, Llandudno.
The phone numbers will remain the same, as long as BT do what they are told .

Santander v Mayhew

Case No: 0XY3859

IN THE CLERKENWELL AND SHOREDITCH COUNTY COURT

Date: 08/03/2012

Before :

DISTRICT JUDGE MANNERS

– – – – – – – – – – – – – – – – – – – – –
Between :

SANTANDER CARDS (UK) LTD Claimant
– and –
DIANA MAYHEW Defendant
– – – – – – – – – – – – – – – – – – – – –
– – – – – – – – – – – – – – – – – – – – –
Karin Tampion (instructed by Howard Cohen) for the Claimant
Paul Brant (instructed by Watsons Solicitors of Llandudno) for the Defendant
Hearing date: 8th March 2012
– – – – – – – – – – – – – – – – – – – – –

JUDGMENT

1. This is a claim for the recovery of a debt accrued on a credit card.

2. The starting point here must be a reminder that this is a case where a major
commercial enterprise is seeking judgment against a consumer. It is true that the
underlying “merits” undoubtedly favour the Claimant but it is also true that it is
and was incumbent on Santander to get its tackle in order.

3. In April 2000 the Defendant went into Harrods and picked up an application
form for a Harrods store card. She filled in the form at home and sent it to GE
Capital Bank on 5th April 2000. Her application was successful and a card was
sent to her. The Defendant began to use the card.

4. The card was “upgraded” to a credit card in September 2003. The Defendant
was “selected” for the upgrade and an unsolicited card was sent to her in the
post. The Defendant voluntarily activated the card and thereafter used it to make
some small purchases and to transfer the outstanding balances from several
other cards.

5. In May 2009 GE Capital Bank became Santander Cards (UK) Limited, the
Claimant.

6. The Defendant ran into financial difficulties and in July 2009 she failed to
make the minimum payment due on the card. She informed the Claimant of her
problems in February 2010 and it was agreed that she would make payments of
£5.44 a month from March 2010.

7. On 12th October 2010 the Claimant served a default notice with a final demand
being sent on 11th November 2010. These proceedings were issued on 20th
December 2010.

8. The Claimant brought this claim and it is for it to prove, on a balance of
probabilities that it is entitled to judgment for the sum claimed.

9. Evidence for the Claimant was given in the form of the statement of John-Paul
Murphy the solicitor with conduct of the case. A hearsay notice was served and
although Mr. Murphy was present in court no oral evidence was adduced on
behalf of the Claimant. The Defendant herself gave evidence.

10. Four issues fall for determination (i) whether the agreement entered into in
April 2000 was valid (ii) whether the upgrade in 2003 was valid (iii) whether
the default notice complied with the requirements of the Consumer Credit Act
and (iv) whether the Defendant’s request under section 78 of the Consumer
Credit Act was complied with and, if it did not, whether that rendered the whole
agreement unenforceable.

11. Was the April 2000 agreement valid? Section 61 of the Consumer Credit Act
requires that a valid agreement must contain all the prescribed terms (credit
limit, interest rate and repayment terms) and be signed by the debtor and the
creditor. The Defendant’s case was that she went into Harrods banking hall
and picked up a pre-paid foldable application form which she took home,
filled in and sent off. She said there were no terms and conditions other than
those printed on one side of the form. She had kept a copy of the form for
her records. She also said that when she received the store card there were
no terms and conditions with it. It was the Claimant’s case that terms and
conditions were supplied, that procedures for providing terms and conditions
were automated and that it would be unrealistic to expect that the Claimant
could call anyone to give evidence as to the application of those procedures in
this case. The Claimant was not able to provide a copy of the documents which
it said would have accompanied the application form. The Defendant struck
me as a methodical person who had kept a copy of the application form for her
records and I have no doubt she would have kept, though possibly not read,
any terms and conditions sent to her. I believed her evidence that she had not
received any terms and conditions, either when she took the application form
or when she received the card. I therefore find that the April 2000 agreement is
unenforceable.

12. Was the 2003 upgrade valid? In September 2003 the Defendant’s card
was “upgraded” to a dual card meaning that it was now a storecard and a
Mastercard. The new card was sent unsolicited to the Defendant who needed to
sign and activate it before she used it. It was open to the Defendant to decline
the new card but she chose to activate it and use it. The new card had an
introductory rate of interest for transferred balances and using it would gather
loyalty points. The Defendant took advantage of both these features. The
Defendant says that the agreement changed from a restricted use debtor-creditorsupplier
agreement to being an unrestricted use debtor-creditor agreement and a
debtor-creditor-supplier agreement which amounts to a modification of the
agreement such that compliance with the requirements set out in regulation 7 of
the Consumer Credit (Agreements) Regulations 1983. Compliance with the
regulation requires a copy of the fresh agreement containing the relevant
prescribed information to be served on the debtor. The Claimant did not allege
that any such document was sent to the debtor. It was the Claimant’s case that
the new card was supplied under a credit token agreement which remained in
force and that there was no modification attracting regulation 7. In my judgment
the Claimant’s analysis is wrong and there was a modification of the agreement
requiring compliance with regulation7. The Claimant did not argue that it had
complied with the regulation.

13. Was the default notice valid? Under section 87 of the Consumer Credit Act
a default notice must be served before any termination or demand for earlier
payment. Section 88 of the Act provides that a default notice must be in the
prescribed form. The Claimant served a default notice by post of 12th October
2012. The Defendant says that the notice was defective because it gave the
wrong figure for the amount due and no OFT fact sheet was included. The
Claimant explains that the difference is the amount by which the Defendant’s
credit limit had been exceeded and that error was detrimental to the Claimant
rather than to the Defendant. It was the Claimant’s case that the OFT fact sheet
would have been included with the default notice and in the event that it was not
there was a clear statement at the end of the notice that the Defendant should
contact the Claimant so that the sheet could be sent. The Defendant denied
that the OFT fact sheet was sent with the default notice, stated that she did not
request the sheet and candidly admitted that she might not have read the whole
letter. No evidence was adduced before me actively saying the fact sheet had
been enclosed. The Claimant invited me to conclude that that the defects in the
default notice were de minimis but I do not agree. The whole point of a default
notice is that the debtor should know exactly what is owed and it is irrelevant
that any defect would be to the detriment of the creditor. I accept the evidence
of the Defendant that no OFT fact sheet was enclosed and words inviting her to
send for the missing sheet are not sufficient to remedy the defect of its absence.
It is unfortunately the case that many debtors in the position of the Defendant
in this case do not read to the end of letters thus the importance of documents
being enclosed.

14. The Defendant’s section 78 request In order to comply with section 78 the
creditor must provide a copy, reconstituted if necessary, of the terms and
conditions originally agreed between the parties and, if different, those in
force at the time of the request within 12 working days, the agreement is
unenforceable until the request has been complied with. On 17th November
2010 the Defendant made a section 78 request to Lewis Debt Recovery, a
chasing letter was sent on 6th January 2011 and a section 78 request was made
to the Claimant on 15th January. The request was replied to on 2nd February. The
Defendant sent an entirely disingenuous reply on 4th February alleging that she
had received information for the wrong account. She claimed that she needed
information for account 5413613010473940 not the information she had been
sent which related to account 6356505552255858. Her evidence was that she
had kept the original agreement and a moment’s checking would have revealed
to her that the 6356 number related to her original account. In my judgment the
Claimant complied with the section 78 request within the stipulated time and
is not prevented from enforcing this debt for non-compliance with a section 78
request.

15. It follows from what I have said above that the claim is dismissed. The claimant
must pay the Defendant’s costs to be subject to detailed assessment if not
agreed

Henrietta Manners
20th March 2012

Above is the Judgment of Judge Manners in Santander v Mayhew. It represents a very important ruling, especially for anyone with a Harrods, Debenhams, Marks & Spencers store card to name but a few. Yes it is only a County Court ruling but it accords with the view of the Office of Fair Trading, and also Goode Consumer Credit Law and Practice.

It is a very helpful judgment.

HFO Capital Limited vs………………..

At the beginning of this year, i faced off against HFO Capital Limited. I say “i” faced off, that isnt true entirely as i was merely the file handler. It was my client Mr Wegmuller who faced HFO.
The Court found in Mr Wegmullers favour, and the judgment is in the public domain already albeit in a limited capacity, however on reflection it is an important ruling and therefore i have decided to post the ruling on my blog.

 

IN THE BIRMINGHAM COUNTY COURT  Case No: 1QC52483

Priory Courts
33 Bull Street
Birmingham
B4 6DS

 
24th January 2012
BEFORE:

MR RECORDER CAMPBELL

BETWEEN:

HFO Capital Limited Claimant
-and-
Mr Roland Wegmuller Defendant

APPEARANCES:

For the Claimant: Miss Margiotta

(instructed by Turnbull Rutherford, London)

For the Defendant: Mr Turner

(instructed by Messrs Watsons Solicitors, Llandudno)
APPROVED JUDGMENT

Transcript provided by:
Posib, Y Gilfach, Ffordd y Pentre, Nercwys, Flintshire, CH7 4EL
Posib, DX26560 MOLD
Tel: 01352 757273
Fax: 01352 757252
No. of folios in transcript – Judgments: 59 / Proceedings: 62
No. of words in transcript – Judgments: 4280 / Proceedings: 4,441

JUDGMENT 24th January 2012

MR RECORDER CAMPBELL:
1. This is a claim brought by the claimant for monies allegedly owed by the defendant under a
credit agreement regulated by the Consumer Credit Act 1974. It is claimed that the credit
agreement was made between Barclaycard and the defendant in about June 2006. It
involved the provision of a credit card by Barclaycard to the defendant.
2. It is claimed that the debt was assigned from Barclaycard to the claimant and in this action
the claimant claims the principal sum of £7,246.06 plus contractual interest.
3. This has been listed before me as a one day Fast Track trial of the entire action. No doubt
it was allocated to the Fast Track because of the amount involved and the time estimate that
had initially been put forward by the parties. However, by the time that the papers were
fully prepared to trial and transferred overnight (last night) from Northampton County
Court to Birmingham County Court, it was clear to both parties, and indeed to me, that the
complexity of this case was such that if I were to try the entirety of the action, it would take
considerably more than one day.
4. Only this morning, I was provided with two lengthy, detailed and very helpful, skeleton
arguments, bundles of authorities running to over two hundred pages, and a bundle of
contractual and other documents running to nearly two hundred pages too. For that reason,
I was invited by the parties to try one preliminary issue today, namely the enforceability of
the credit agreement.
5. That invitation was extended to me on the grounds that if I were to try this preliminary
issue, it may mean the end of the case. Alternatively, it would enable the parties to take
stock and proceed further if so advised. So at the invitation of the parties, and because of
the clear lack of time, earlier today I agreed that I would try the preliminary issue of the
enforcement of the agreement.
6. It is the defendant’s case that this credit agreement is not enforceable on the grounds that
all of the prescribed terms within the meaning of the Consumer Credit Act 1974 were not
contained in the document signed by the defendant.
7. It is common ground that the only document signed by the defendant was a Barclaycard
application form signed with the date of 25th March 1996, to be found at page 41 of the trial
bundle. It is a very poor copy of the document and parts of it have been blacked out for
reasons that no one has been able to explain. Perhaps the other striking feature is that there
is no evidence before me from anyone, either from the claimant or Barclaycard of other
similar documents from the time for me to make a comparison, or any evidence of
Barclaycard’s system back in 1996. Miss Margiotta has rightly submitted to me that I
should not be too critical of the claimant in this regard and I should bear in mind how
difficult it is to obtain such evidence so many years after the event, and I have to say I have
some sympathy with Miss Margiotta in this respect particularly as she points out to me
these matters were only raised by way of criticism from the defendant relatively recently.
However, as against that, I have to deal with this matter on the evidence before me. In the
respects that I have identified that evidence is somewhat inadequate.
8. It is submitted by the defendant that if all of the prescribed terms are not contained in the
document itself, then that is fatal to the enforceability of the agreement, and it would not be
sufficient if, for example prescribed terms were sent a few weeks later with the credit card,
which is what the defendant suggests may have been the way that the terms and conditions
were provided. I therefore have to make a finding of fact on the balance of probability as
to whether the prescribed terms and conditions were contained in that document.
9. I have to make a finding of fact in the context of the relevant law, to which I have been
most helpfully referred by both counsel in this case by their informative skeleton
arguments and also by way of oral submissions. I turn to that law now.
10. I start at section 61 of the Consumer Credit Act 1974 that provides as follows:
“(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 stress is laid there by the defendant on the need for the document itself to contain all
the prescribed terms.
11. I have been pointed to certain guidance on what is meant by the phrase “a document in the
prescribed form itself containing all the prescribed terms”, and I have been referred to the
case of Emma Carey v HSBC Bank [2009] EWHC 3417 and it is the judgment of His
Honour Judge Waksman QC, sitting as a Judge of the High Court in a case of first instance.
I am told by counsel, and I have no reason to suspect that this is wrong, that the principles
set out in that case have been followed in other subsequent cases, including cases of higher
authority. His Honour Judge Waksman QC said this in relation to the agreed principles in
this area (see paragraph 173):
“173. The parties in Carey have helpfully agreed the following principles. The fourth one
was added by Mr Uff, with their agreement. No other party takes issue with them.
The OFT has formulated the matter in a slightly different way but accepts these
principles are close to its position.
(1) 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;
(2) A document need not be a single piece of paper;
(3) 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;

(5) Accordingly, 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.”
At paragraph 174, His Honour Judge Waksman QC said:
“174. As a matter of law, those principles appear to me to be correct, in the context
of s61.”
12. So, what are the Prescribed Terms that must be contained in the document as so defined in
section 61(1)(a) of the Consumer Credit Act 1974 and in Carey?
13. I now turn to the Consumer Credit (Agreements) Regulations 1983. It is common ground
that these were the Regulations in force in relation to this credit agreement and set out in
Schedule 6 are various Prescribed Terms that must be included and the three relevant ones
here are under Clauses 3, 4 and 5:
“Credit Limit
3. Agreement for running-account credit. A term stating the credit limit or the
manner in which it will be
determined or that there is no credit
limit.
Rate of interest
4. Agreement for – A term stating the rate of any interest on the credit to be
provided under the agreement.
Repayments
5. Consumer credit agreements. A term stating how the debtor is to discharge his
obligations under the agreement to make the
repayments, which may be expressed by reference
to a combination of any of the following – …”
And “the following” deals with the repayment.
14. I pause there for a moment. It is worth noting that none of those three terms is actually
visible on the copy application form document in the bundle that was signed by the
defendant on 25th March 1996.
15. As to the effect of a failure to comply with those statutory obligations, I turn now to section
65(1) of the Consumer Credit Act 1974 that provides:
“An improperly-executed regulated agreement is enforceable against the debtor or
hirer on an order of the court only”.
16. However, it does not rest there because there was important additional statutory material on
this point that was in place in relation to this particular credit agreement (though since
repealed), because by Section 127(3) of the Consumer Credit Act 1974 it was provided
that:
“The court shall not make an enforcement order under section 65(1) if section
61(1)(a) was not complied with unless a document, whether or not in the prescribed
form of complying with the 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.”
17. In other words, the Court is precluded from making an order granting relief from the
infringement of the statutory conditions as to the enforceability if all of the prescribed
terms that I have identified above were not contained in the signed document itself.
18. So moving to the factual issue itself, I start briefly with a matter upon which I have
received some submissions, namely the burden of proof. In submissions the defendant
conceded that there was a prima facia case established by the claimant that there was a
credit agreement in place and therefore the evidential burden of proving the index factual
issue is upon the claimant. I was referred to a first instance case in the County Court of
HFO Services Limited v Kirit Patel. It was decided by His Honour Judge Platt on 20th May
2009. Of course, I accept that this is a first instance decision and is therefore only
persuasive. Nevertheless, I found the judgment of His Honour Judge Platt to be persuasive
in that way and I would wish to take the same approach.
19. His Honour Judge Platt said at paragraph 19:
“Therefore, in my judgment, when the defendant wishes to rely on section 65, several
consequences flow. First, it is not sufficient for him simply to allege that the
agreement is not properly executed. He must specify the particular breach or
breaches of the Regulation on which he relies. The burden of proving that the
agreement has been properly executed then rests with the claimant. It is his
obligation to put before the Court evidence which he considers sufficient to satisfy
the Court on this issue.”
20. Miss Margiotta on behalf of the claimant indicates that she has not had an opportunity to
consider or reflect upon the law in this area, because the above case was only produced by
the Defendant this morning, and she wishes to reserve her position. But she did indicate
also that she accepted that it was for the claimant to show the necessary factual matter on
the balance of probabilities.
21. On this factual issue, I have read and heard evidence on the claimant’s side of the case
from Mr Jonathan Titherley, who is a litigation paralegal for the claimant’s solicitors. I
have read his two statements and heard him give evidence. On the defendant’s side, I have
read the two witness statements of the defendant, Roland Wegmuller. I have also read
numerous documents, the principal ones being the application form signed by the
defendant on 25th March 1996 (to which I have already referred). Another document of
relevance is a current a blank standard form of Barclaycard’s terms and conditions put in
the bundle by the claimant, to be found at pages 43 and 44, and it is worth noting that on
that standard blank form, the relevant prescribed terms are included. Of course, the issue
for me is whether those terms and conditions were contained in the actual document that
was signed.
22. I have already observed that it is disappointing and makes it difficult for the Court without
further evidence from Barclaycard, and Mr Titherley says, and I entirely accept Mr
Titherley’s evidence, that his client asked for this information but for whatever reason, it
was not forthcoming, and therefore there are no similar documents of the time to compare
with this one. So although I accept Mr Titherley’s evidence generally, he was unable to
give any direct evidence on whether the application form actually contained the prescribed
forms, whether on the front, back or anywhere else.
23. Mr Wegmuller gave evidence on the matter. In his witness statement, he set out the
general circumstances in which he came to sign this agreement. He said that about six
months after he had come to the United Kingdom from Spain, he saw an advertisement in a
magazine and he recalled completing the document and posting it back to Barclaycard. He
said he recalled that the application was in the form of a glossy style fold-out pamphlet. In
his witness statement he said he recalled there was no other documentation with the
application form; certainly, there was no separate booklet of terms like those the claimant
has produced in the course of these proceedings.
24. Mr Wegmuller was honest enough to concede that he had certain difficulties with his
recollection of exactly what was on the form. This is perhaps not surprising given that he
was referring back to his recollection of some sixteen years ago, and it is true to say that
there were some slight fluctuations in his evidence that were quite properly referred to by
Miss Margiotta in her submissions. Nevertheless, his evidence taken as a whole, and that is
how I have to view it, was really to the effect that whilst he could not categorically say that
there were no further textual items on the document, either on the front or on the back, he
did not believe that there were significant additions to the document, and he did not believe
that there were the prescribed terms on the document for example on the back or in the
blacked-out spaces of it.
25. The impression that I formed of Mr Wegmuller was that he was a man who was doing his
best to give a truthful and accurate recollection of what he saw, and as I say, he conceded
that it would be difficult to be absolutely precise on that. But in general terms, I was
satisfied that he was a credible witness.
26. Miss Margiotta on behalf of the claimant has made a number of submissions to support her
proposition that on the balance of probabilities it is likely that the prescribed terms were on
the form. If I may summarise her submissions in particular those I regard as her strongest
ones.
27. Firstly, she submits that Barclaycard are and were a reputable large-scale organisation who
had in 1996 a legal department and a compliance department and therefore, in effect, it is
inherently unlikely that they would make the mistake of sending out an application form in
a magazine without the prescribed terms stipulated in the Regulations to which I have
referred, particularly as the Regulations has been in force for a number of years at that
time.
28. That is a perfectly proper point for Miss Margiotta to make. However, it seems to me that
it would be wrong for me to place too great a reliance upon that, particularly as one knows
that there have been numerous more recent examples where financial institutions of similar
size have on occasions made errors in terms of compliance with their financial services
obligations.
29. Secondly, and this is also a good and proper point to be made on behalf of the claimant, if
one actually looks at the form that was signed by Mr Wegmuller, difficult though it is to
make out, one part that is plain if one looks carefully, and Mr Wegmuller agreed this, is
that he did sign a caption stating that:
“This is a Credit Agreement regulated by the Consumer Credit Act 1974. Sign only
if you wish to be bound by the terms of the agreement.”
30. Miss Margiotta submits that this sentence having been signed by the defendant (and it is
not suggested by the defendant that he had difficulties with the English language, although
he is of course of Swiss nationality originally), the likelihood is that there would have been
“some” terms and conditions somewhere on that document otherwise he would not have
signed this. However, the mere fact that there may not have been such terms and
conditions on the face of the document may not necessarily have been a critical factor in
the decision whether or not to sign this application form. The evidence that he gave was
that what was at the forefront of his mind was obtaining a credit card, rather than the detail
of the terms and conditions, which of course is something of a two-edged sword.
31. In my judgment, those were the strongest submissions. However, I do not accept that
those factors are conclusive.
32. I am satisfied on the balance of probabilities that the application form signed by the
defendant did not contain the three prescribed terms to which I have referred, and I come to
that conclusion principally for these reasons.
33. Firstly, I look at the document itself; the application form. That is the best evidence that
the claimant has been able to provide in terms of the documentation. Quite simply, there is
no reference whatsoever to any of those three prescribed terms that are required. It is
submitted that I should infer that it is more probable than not that they would have been
there, either in the blacked-out areas or on the back. I am afraid there is quite simply
insufficient evidence to enable me to draw that inference. And I repeat that matters may
have been very different if further and better evidence had been produced, either from the
claimant or Barclaycard, as to what the position was back in 1996. We do not have that
evidence and I have to deal with the evidence that is before me.
34. The second real reason why I find in favour of the defendant on this issue is that in general
terms I accept his evidence as I have set out, and having heard him give evidence today I
found him to be a credible witness.
35. Mr Turner on behalf of the defendant made various other submissions associated with the
standard terms and conditions on the blank documention. I did not find those submissions
of such force as his others and they did not play a major part in my conclusion.
36. I am satisfied on the balance of probabilities that the requisite prescribed terms and
conditions were not contained in, on or together with the document that was signed by the
defendant, and therefore I conclude that this is a credit agreement that cannot be enforced.
37. Before I leave this matter, just for the avoidance of doubt and clarity, given that Miss
Margiotta has indicated, in a slightly equivocal submission, that she wishes to reserve
herself on the burden of proof, I hereby indicate that it would have made no difference to
my ultimate conclusion upon whom the burden of proof lay because the result would have
been the same in either event.
End of judgment

The Judgment speaks for itself, i need not say anything more about the case .

Watsons succeed again….

I am pleased to report that the firm has recently succeeded on an appeal for a client who was the victim of a poor decision. I say poor, but really i cannot totally criticise the judge as the advice the client was given was unhelpful. I go as far to say that had the client followed his instinct and not the advice given to him before my involvement then he may have secured a different outcome and thus avoided the need to appeal.

The client really did have his arguments set up from what he told me, but as i said he was advised not to run those points but to instead follow a different route. The outcome of doing so was that he lost at trial and was slapped with over £6k costs.

In truth he should not have lost the case as it was soo clear that the lender had difficulties, in fact it would be fair to say the lender would have been surprised to have won.

When instructions were received a complete assessment of the case was carried out and the issues identifed.A fully detailed brief was prepared setting out the key arguments and refering to the case law that applied. A leading QC was instructed to represent the client at the appeal along with junior counsel and an appellants notice was prepared and filed.

Although i cannot be sure, it seems to me that the Claimant accepted that it was at risk, especially with the Court of Appeal in Kotecha supporting our arguments, and the fact that the Claim was funded by a CFA meant that the Claimant would get caught by the success fee if they lost the appeal, as they came to us seeking to allow the appeal by consent.

Now normally the Court will not disturb a ruling of the lower court without hearing the parties, however there is a provision in CPR rule 52 PD 52 which allows (Subject to the Court being satisfied) the Court to allow an appeal without actually hearing the appeal.

Allowing unopposed appeals or applications on paper

13.1

The appeal court will not normally make an order allowing an appeal unless satisfied that the decision of the lower court was wrong, but the appeal court may set aside or vary the order of the lower court with consent and without determining the merits of the appeal, if it is satisfied that there are good and sufficient reasons for doing so. Where the appeal court is requested by all parties to allow an application or an appeal the court may consider the request on the papers. The request should state that none of the parties is a child or protected party and that the application or appeal is not from a decision of the Court of Protection and set out the relevant history of the proceedings and the matters relied on as justifying the proposed order and be accompanied by a copy of the proposed order.

The only way to allow the appeal was to do so by consent. The other option was to agree to abandon the appeal with an agreement that the Claimant would not enforce the agreement but that would have left the CCJ in place but just not enforced. Of course the other option would have been to go to the appeal and proceed and be heard etc, but that itself would have brought huge risks.
 
This is why a consent order was used as it allowed the Judgment to be removed without the risk of going to appeal. It was a good result in the end, but it could have been far worst, and could have left the Defendant in circumstances where despite him having a strong case, due to the fact that he followed advice that was not entirely correct he would have had a CCJ which he may not have been able to overturn if he hadnt contacted us and moved quickly. With a CCJ the Claimant could easily sought a charging order or order for sale.
 
However the terms which were agreed now mean no CCJ or any further risk for the client. A good result in my opinion

Debt avoidance

The words debt avoidance often cause controversy, one merely need look at forums such as MSE and CAG to see some opinionated folk spouting off that ” if you borrow it you should pay it back” but often that is not the full story. I have been involved in hundreds of cases where people have borrowed money and wanted to pay it back but were not able to because of the fact that the creditor took an unreasonable point of view.

Now many people would say morally if you borrow the money you should pay your debts, however, i say morally if a creditor wishes to recover his money from someone in debt, then he should at least treat them fairly!! shouldnt he?

Lets look at the Mayhew case for example, or Harrison v Link, anyone who knows those cases would know that the people behind them were genuinely trying to pay their debts. In Mayhew, Ms Mayhew was even paying each month and the Bank sued her irrespective of the fact that she was paying.

Its easy to take the moral high ground and shout and holler that people should not be avoiding their debts blah blah blah however what about the fact that the law fully supported Keith Harrison, Di Mayhew, Roland Wegmuller, Dr Cresswell etc. If the creditor wishes to ensure that it recovers its money then it should ensure that it follows the laws laid down by parliament. The consequences of not doing so are clear.

Maybe its about time that these moral crusaders started looking at the creditors conduct in these cases before jumping on the soap boxes. Imagine this, you fall into difficulties and then you try to pay your debt but your creditor refuses your offers, sues you and tries to obtain a charging order and then tries for an order for sale. How would you feel? would you still sit there saying i must pay my debt ? or would you at that point say, to hell with them, if i have a fighting chance im going to damn well take it? Id rather be slated by the moral crusaders and have a roof over my head than lose my home but feel morally vindicated for ensuring my debts are paid.

 

Lets not forget that banks arent whiter than white, one only need look at the news to see another scandal breaking out. Some of the cases ive had involvement in have included attempts by staff in a bank to forge the clients signature on a loan agreement, another one they tried to scribble out the amount of credit which was wrong and rendered the agreement unenforceable and insert the right figures. Or what about the bank that tried to argue that the client had taken out a credit agreement online, despite the fact that it had provided a letter (by accident) saying that the bank had forgotten to provide the client with an agreement and had sent them a credit card without complying with the Consumer Credit Act.

 

I do not agree with those people who go out to borrow money with the intention of never ever paying it back, but i would happily provide anyone who finds themselves in the same situation as Keith Harrison or Di Mayhew with the assistance they need to defend themselves from the creditor, and if that means that a Court rules that the law says the debtor does not have to pay then so be it. If creditors were more receptive to people in debt and acted with forbearance then there would be less litigation and more time orders sought in my view.

Surely it would be better to allow a debtor to pay £5 per month if thats all they can afford while they are in difficulty than slap tons of charges upon them and raise the interest rates to over 30% from circa 19% ala Harrison and make the debt that the person is already struggling with balloon even bigger than it already is? Seems to me that those who are getting on their soap box about people using the law to defend themselves are complaining about the wrong thing, if they feel the law is wrong then it is parliament they should be lobbying.