• Welcome to the LegalBeagles Consumer and Legal Forum. Please register to get the most out of the forum. Registration is free and only needs a username and email address.
  • Please note that LegalBeagles is a public forum and the main areas are accessible to all, and as such, please take care your username or posts do not identify you. There is no need to post claim numbers, names or precise amounts to get support with your case. When uploading documents please ensure that you have properly redacted your personal details. Thank you.

Phoenix Recoveries v Kotecha Jan 2011

Collapse
X
  • Filter
  • Time
  • Show
Clear All
new posts

  • Phoenix Recoveries v Kotecha Jan 2011


    PHOENIX RECOVERIES (UK) LTD SARL v DEVENDRA KOTECHA (2011)

    CA (Civ Div) (Thorpe LJ, Lloyd LJ, Patten LJ) 26/1/2011
    CONSUMER LAW
    CONSUMER CREDIT : CREDIT CARDS : CREDITORS' POWERS AND DUTIES : REGULATED AGREEMENTS : CREDITOR'S COMPLIANCE WITH DEBTOR'S REQUEST FOR COPY OF REGULATED CREDIT AGREEMENT : ENTITLEMENT TO ENFORCE DEBT : CONSUMER CREDIT ACT 1974 : s.78(1) CONSUMER CREDIT ACT 1974 : s.78(6) CONSUMER CREDIT ACT 1974

    A creditor had failed to satisfy a debtor's request under the Consumer Credit Act 1974 s.78(1) for a copy of a credit card agreement as it had not, on the evidence, included the original, actual terms and conditions in respect of interest rates then in force. The creditor was, accordingly, not entitled to proceed to enforce the debt under s.78(6).

    The appellant (K) appealed against a decision of the judge allowing a claim by the respondent company (P) for amounts due under a credit card agreement. That agreement, which was regulated by the Consumer Credit Act 1974, had been entered into by K and a bank (B) in 1998. K was then issued with a credit card which he used extensively. B subsequently merged with another bank (H) and H took over B's credit card business. In 2007, K made a request under s.78(1) of the Act for a copy of the credit card agreement. H supplied an incomplete version and following K's further request it sent a copy of what it contended were the terms and conditions incorporated into the agreement. K disputed whether that version of the terms and conditions was correct. H later sent a default notice and issued proceedings against K, alleging that he was in breach of the agreement. H then assigned the claim to P, who was substituted as a party. K, then acting in person, defended the action on the ground that, because the s.78(1) request was not complied with, P could not enforce the agreement pursuant to s.78(6) of the Act. The judge found, on the balance of probabilities, that the appropriate records had been supplied by P. She therefore held that P had satisfied the s.78(1) request and that it was not precluded from enforcing the debt. K contended that there was no credible evidence that the documents set out as evidence by P were the same as those which had been used in the agreement between him and B. He submitted, inter alia, that a scanned copy of B's leaflet inviting him to apply for the credit card clearly set out an annual percentage rate (APR) of 9.9 per cent for balance transfers, reverting to 16.9 per cent after six months, and 18.7 per cent APR for cash withdrawals, whereas by contrast the terms and conditions given in evidence by P sent out in terms rates of 20.9 per cent APR for balance transfers and 22.8 per cent for cash withdrawals. It was accepted that that point had not been before the judge, although it was discernible from the papers.

    HELD: Interest rates were a term of central importance in credit card agreements. There was a strong case that the interest charges which would have been specified in the terms and conditions when B and K made the agreement in 1998 were those in the leaflet and not those which appeared in P's evidence. Under s.78(1), a creditor was required to set out the actual, original terms and conditions of the agreement at the time it was made. In those circumstances, P had not proved that that obligation was satisfied, and it was therefore not entitled to progress to enforce the debt against K under s.78(6).

    Appeal allowed
    Counsel:
    For the appellant: Kelly Pennifer
    For the respondent: Guy Sims

    Solicitors:
    For the appellant: Watsons (Llandudno)
    For the respondent: Weightmans LLP (Liverpool)




    Hot Off the press
    I work for QualitySolicitors Howlett Clarke in the Consumer Credit Department. I give my free time available to helping other on the forum and would be happy to try and assist informally where needed. Any posts I make on LegalBeagles are for information and discussion purposes only and shouldn't be seen as legal advice. Any advice I provide is without liability.

    if you need to contact me please email paultilley@howlettclarke.co.uk . My firms initial advice is always free.

    I have been involved in leading consumer credit and data protection cases including Harrison v Link Financial Limited (High Court), Grace v Blackhorse (Court of Appeal) and also Kotecha v Phoenix Recoveries (Court of Appeal) along with a number of other reported cases and often blog about all things consumer law orientated.

    You can also follow my blog on consumer credit here.
    Tags: None

  • #2
    Re: Phoenix Recoveries v Kotecha Jan 2010

    Priceless
    Light travels faster than sound. This is why some people appear bright until you hear them speak.

    Nemo me impune lacessit - No one provokes me with impunity. (Motto of the Kings of Scotland)

    Comment


    • #3
      Re: Phoenix Recoveries v Kotecha Jan 2010

      for you, extremely
      I'm away till the 24th August - please contact @Kati if needed

      “We may not win by protesting, but if we don’t protest we will lose. If we stand up to them, there is always a chance we will win.” Hetty Bower

      Any support I provide is offered without liability, if you are unsure please seek professional legal guidance.

      If we have helped you we'd appreciate it if you can leave a review on our Trust Pilot page

      Find Solicitors offering fixed fees on our sister site - JustBeagle.com

      Comment


      • #4
        Re: Phoenix Recoveries v Kotecha Jan 2010

        All I have to do now is work out how to get Wescot to withdraw based on this - no pressure then ;0)
        Light travels faster than sound. This is why some people appear bright until you hear them speak.

        Nemo me impune lacessit - No one provokes me with impunity. (Motto of the Kings of Scotland)

        Comment


        • #5
          Re: Phoenix Recoveries v Kotecha Jan 2010

          Originally posted by frisp View Post
          All I have to do now is work out how to get Wescot to withdraw based on this - no pressure then ;0)

          Godd Luck frisp I am sure you will ge there

          Comment


          • #6
            Re: Phoenix Recoveries v Kotecha Jan 2010

            Thanks Enaid despite all my attempts to persuade Wescot to the light side of the force they stubbornly refuse to leave their dark offices and see whats in front of them :tinysmile_hmm_t2:
            Light travels faster than sound. This is why some people appear bright until you hear them speak.

            Nemo me impune lacessit - No one provokes me with impunity. (Motto of the Kings of Scotland)

            Comment


            • #7
              Re: Phoenix Recoveries v Kotecha Jan 2010

              Well you can easily show they aren't the right terms from the original agreement as MBNA didn't have A&L cards till after you took out the agreement and they have given you MBNA T&Cs...and submitted them in court.....I think a mention of that and a copy of this case summary would be enough to make them seriously look at their case. Shame you have no statements from inception....but talk to PT he'll have a better idea how to demonstrate they arent right and I think this HC judgment does the arguing part for you now. Sounds like Pt's lot bought in the differing T&Cs late n in the day in this case xx
              I'm away till the 24th August - please contact @Kati if needed

              “We may not win by protesting, but if we don’t protest we will lose. If we stand up to them, there is always a chance we will win.” Hetty Bower

              Any support I provide is offered without liability, if you are unsure please seek professional legal guidance.

              If we have helped you we'd appreciate it if you can leave a review on our Trust Pilot page

              Find Solicitors offering fixed fees on our sister site - JustBeagle.com

              Comment


              • #8
                Re: Phoenix Recoveries v Kotecha Jan 2010

                Oh, now THIS I like!

                Good work there PT, lets hope many use this

                We can but hope it will put an end to the crapola some DCA's/OC's like to spout, but we'll see

                Comment


                • #9
                  Re: Phoenix Recoveries v Kotecha Jan 2010

                  Paul

                  Does "Under s.78(1), a creditor was required to set out the actual, original terms and conditions of the agreement at the time it was made." mean that it is not necessary to have the statements from inception of the account? Or does the point of wrong terms still have to be proved by the Defendant?

                  Alan


                  Comment


                  • #10
                    Re: Phoenix Recoveries v Kotecha Jan 2010

                    Hi, am I being too simplistic, but if I am going to SC court with a short application form and unrelated t&cs, none of which show an APR this judgement means that the 'CCA' cannot be enforced?
                    And following on, would I need a new WS or can I just submit a skellie with this as an authority?
                    Thank you

                    Comment


                    • #11
                      Re: Phoenix Recoveries v Kotecha Jan 2010

                      Originally posted by cymruambyth View Post
                      Hi, am I being too simplistic, but if I am going to SC court with a short application form and unrelated t&cs, none of which show an APR this judgement means that the 'CCA' cannot be enforced?
                      And following on, would I need a new WS or can I just submit a skellie with this as an authority?
                      Thank you
                      the key is the comment of the unrelated terms and conditions

                      why are they unrelated?
                      I work for QualitySolicitors Howlett Clarke in the Consumer Credit Department. I give my free time available to helping other on the forum and would be happy to try and assist informally where needed. Any posts I make on LegalBeagles are for information and discussion purposes only and shouldn't be seen as legal advice. Any advice I provide is without liability.

                      if you need to contact me please email paultilley@howlettclarke.co.uk . My firms initial advice is always free.

                      I have been involved in leading consumer credit and data protection cases including Harrison v Link Financial Limited (High Court), Grace v Blackhorse (Court of Appeal) and also Kotecha v Phoenix Recoveries (Court of Appeal) along with a number of other reported cases and often blog about all things consumer law orientated.

                      You can also follow my blog on consumer credit here.

                      Comment


                      • #12
                        Re: Phoenix Recoveries v Kotecha Jan 2010

                        The only relationship between the documents is a hand written number on the t&cs. The clauses do not match up to those on the DN either.

                        Comment


                        • #13
                          Re: Phoenix Recoveries v Kotecha Jan 2010

                          Originally posted by cymruambyth View Post
                          The only relationship between the documents is a hand written number on the t&cs. The clauses do not match up to those on the DN either.
                          but are they truly separate or are the suggested to be the rear of the document?

                          Each case turns on its own facts, so its really a case of attention to the detail and finding the faults, so that there can be no argument that the terms are not correct
                          I work for QualitySolicitors Howlett Clarke in the Consumer Credit Department. I give my free time available to helping other on the forum and would be happy to try and assist informally where needed. Any posts I make on LegalBeagles are for information and discussion purposes only and shouldn't be seen as legal advice. Any advice I provide is without liability.

                          if you need to contact me please email paultilley@howlettclarke.co.uk . My firms initial advice is always free.

                          I have been involved in leading consumer credit and data protection cases including Harrison v Link Financial Limited (High Court), Grace v Blackhorse (Court of Appeal) and also Kotecha v Phoenix Recoveries (Court of Appeal) along with a number of other reported cases and often blog about all things consumer law orientated.

                          You can also follow my blog on consumer credit here.

                          Comment


                          • #14
                            Re: Phoenix Recoveries v Kotecha Jan 2010

                            Hi pt, it is a short application form with a short piece st the bottom stating that it is a credit card account agreement. It asks for me to read 'the use of information overleaf (s23 of the agreement) which sets out how your information will be used. S23 on the t&cs supplied is Governing Law. This agreement is governed by English Law.

                            The Dn refers to s3 for failing to adhere to agreement; in these t&cs it relates to additional card holder.
                            There are no aprs on any of the 'documents', there are no amounts listed for the t&cs.

                            In the t&cs it mentions Key Financial Information, Interest Rate, Monthly Payments all forming part of the terms of the agreement. I DO NOT HAVE THEM and they are not in the trial bundle submitted by them.

                            Also the reference number written on the top relates to the DCAs own records not that of the agreement.
                            Last edited by cymruambyth; 29th January 2011, 17:33:PM.

                            Comment


                            • #15
                              Re: Phoenix Recoveries v Kotecha Jan 2010

                              are there interest rates ?

                              are they correct?
                              I work for QualitySolicitors Howlett Clarke in the Consumer Credit Department. I give my free time available to helping other on the forum and would be happy to try and assist informally where needed. Any posts I make on LegalBeagles are for information and discussion purposes only and shouldn't be seen as legal advice. Any advice I provide is without liability.

                              if you need to contact me please email paultilley@howlettclarke.co.uk . My firms initial advice is always free.

                              I have been involved in leading consumer credit and data protection cases including Harrison v Link Financial Limited (High Court), Grace v Blackhorse (Court of Appeal) and also Kotecha v Phoenix Recoveries (Court of Appeal) along with a number of other reported cases and often blog about all things consumer law orientated.

                              You can also follow my blog on consumer credit here.

                              Comment

                              View our Terms and Conditions

                              LegalBeagles Group uses cookies to enhance your browsing experience and to create a secure and effective website. By using this website, you are consenting to such use.To find out more and learn how to manage cookies please read our Cookie and Privacy Policy.

                              If you would like to opt in, or out, of receiving news and marketing from LegalBeagles Group Ltd you can amend your settings at any time here.


                              If you would like to cancel your registration please Contact Us. We will delete your user details on request, however, any previously posted user content will remain on the site with your username removed and 'Guest' inserted.

                              Announcement

                              Collapse
                              No announcement yet.
                              Loading...

                              upgrade to vip

                              Want exclusive access to forums, more privacy and a live chat box? Upgrade to become a bigger part of our community.

                              only £15/yr

                              Offers available. No subscription traps.

                              sign up now



                              Search and Compare fixed fee legal services and find a solicitor near you.

                              Find a Law Firm


                              Working...
                              X