Doyle v PRA (jan 2019)

[brass]

Slightly concerning that the court of Appeal would entertain a late default notice as the cause of action and could extend out of time litigation as being within the 6 years.

so the default notice could be served 5 years later for eg?

Taking the above case (Doyle) and remembering Amex v Brandon, a defective default notice could be corrected by serving another one years later? The Brandon case seemed to hang in Limbo and merely pointed out that the default notice was defective.

[charitynjw]

[charitynjw]

[brass]

Thanks for that.
I think Tilley answered my question on page 4 of that blog.
"
May as well remove s87 entirely
How is it unfair? I mean, the judge has just said its allowed, he said that you can take 20 years and then issue, if thats the case its hard to see how it could be unfair under the unfair relationship provisions, theres the problem

Its bonkers, "

[charitynjw]

Thanks for that.
I think Tilley answered my question on page 4 of that blog.
"
May as well remove s87 entirely
How is it unfair? I mean, the judge has just said its allowed, he said that you can take 20 years and then issue, if thats the case its hard to see how it could be unfair under the unfair relationship provisions, theres the problem

Its bonkers, "

Laches?

[brass]

ok, what about this.
What if a debtor tells a creditor that he is not going to make any more payments at all on an account. Surely the cause of action starts there, and if a default notice does not follow......but does 7 years later?

[charitynjw]

Imho that is not much different to simply stopping payments.

& their Lordships have decided that the limitation cause of action accrues from the date specified in the DN, whenever that DN/payment date is dated.

There can always be exceptions to any decision; every case will turn on it's own facts as well.

[pt2537]

Slightly concerning that the court of Appeal would entertain a late default notice as the cause of action and could extend out of time litigation as being within the 6 years.

so the default notice could be served 5 years later for eg?

Taking the above case (Doyle) and remembering Amex v Brandon, a defective default notice could be corrected by serving another one years later? The Brandon case seemed to hang in Limbo and merely pointed out that the default notice was defective.

Wrong, Brandon was whether the Claimant was entitled to summary Judgment, and the Court found on its case it wasnt, because the Default notice didnt allow 14 days, and the creditor couldnt rely on contractual termination because it wasnt raised below.

[brass]

PT agreed, but the Court didn't enlighten anyone on what Amex could do to rectify. ie eg by simply applying to include contractual termination. thats why I say "limbo".

[pt2537]

PT agreed, but the Court didn't enlighten anyone on what Amex could do to rectify. ie eg by simply applying to include contractual termination. thats why I say "limbo".

The High Court has already dealt with whether a bad notice can be cured by service of a good notice.

[brass]

The fact that the Court of Appeal did not offer clear guidance on whether a technical deficiency in a default notice can be ignored where devoid of prejudice is lamentable.

The Court of Appeal reversed the High Court decision on a further claim by Amex that there had been, in any event, valid non-default contractual termination (now per s.98A) effected by the service of Notice of Cancellation on July 11 (pursuant to cl.10(2) of the regulated agreement). Gross L.J. stated such had "evolved into the decisive issue…without any pleadings whatsoever" (at [38]) and "this was simply too significant a change of case" but, obiter, commented that "this issue was realistically arguable on both sides…had the procedural groundwork been laid. But here that had not been done"
(at [40]).

This ambiguity is enunciated by the possible consequences of issuing “bad” default notices. It appears likely that once a creditor terminates an agreement on the back of a technically defective default notice, it arguably constitutes unlawful repudiation of the credit agreement- such was the view of the Court of Appeal in Eshun v Moorgate Mercantile Co Ltd, which ordered the respondent to pay compensation for wrongful retaking of a vehicle subject to hire purchase. It was unfortunate that the court in Brandon was concerned with summary judgement only- Amex had sought to enforce the agreement through the service of a Notice of Cancellation followed by proceedings for the outstanding debt, but the court was not required to comment further on the consequential impact of the flawed notice- in other words, did it render the agreement unenforceable? Judicial dictum indicating that a flawed notice need merely be re-drafted and served would almost certainly be limited to cases where there has not been an attempt at termination or recovery of possession.

e.g. Harrison v Link Financial Ltd [2011] E.C.C.26 at [75] per H.H Judge Chambers QC, where the agreement was deemed unenforceable for a failure to comply with a range of informational requirements under the Consumer Credit Act 1974, but it was doubtless the case, that a defective default notice was a key consideration in the court’s ultimate pronouncement on the matter.

[charitynjw]

If I'm reading this correctly, it would seem that, once the agreement is terminated, a subsequent 'good' DN cannot be issued to try & correct/rectify a 'bad' one.
That (to me, anyway) is entirely logical.
You can't unring the bell.

[pt2537]

A regulated agreement, cannot be terminated, i repeat cannot be terminated, by reason of breach by the debtor without a valid default notice. The effect of an invalid default notice means that you cannot terminate for breach.

You can of course serve a 98A notice, and terminate because of some other non breach reason.

I dont see why people are having problems with this point, its quite clear, a default notice if iti s bad is ineffective full stop

[Amethyst]

I think ( could be wrong) there is a query as to whether a bad default notice that is thus ineffective ( so the agreement was never actually terminated) can subsequently be corrected ( 20 years later, to be extreme ) and thus become a new cause of action... ( because the first default notice was ineffective it couldn't be a cause of action because the account didn't terminate and thus limitations can't start to run following Doyle )

That question made far more sense in my head xx

[pt2537]

I think ( could be wrong) there is a query as to whether a bad default notice that is thus ineffective ( so the agreement was never actually terminated) can subsequently be corrected ( 20 years later, to be extreme ) and thus become a new cause of action... ( because the first default notice was ineffective it couldn't be a cause of action because the account didn't terminate and thus limitations can't start to run following Doyle )

That question made far more sense in my head xx

yes, it can in theory.

There are counter arguments such as Laches and also S140A and there would be al imitation issue on a loan agreement obviously.