Section 78 Consumer Credit Act 1974

[pt2537]

I thought it was about time to draw together some of the strands of information about the Consumer Credit Act and more importantly to address some of the points which often cause consumers confusion. So, here goes, and this is just my own opinion bear in mind. Ill keep adding to this over the time […]


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[thedirtyhound]

I think that the decision in the HSBC versus Carey case was totally perverse. I run a company and if I tried to sue a client under a contract, the first thing the court would look for would be a copy of the contract. So I take steps to keep things safe. I keep the original, which I also scan and make a photocopy of. So if anything was to go wrong and I need to sue the client, I can produce either the original or the photocopy or the scan.

If I were to go to court and give the judge a blank contract, I think my chances of winning would be 50% at best, possibly less.

I have an old credit card account that is currently being dealt with my one of the debt purchase firms. The original agreement was with the UK subsidiary of a US bank. It decided to withdraw from the UK credit card market and so all accounts were passed to Barclaycard, who in turn sold it on to the company that now "own" it.

The original agreement I signed was in response to a mail shot, which I later realised did not contain all the terms and conditions. It was a tear off slip from the foot of the letter. I made several requests in the past for a copy of the agreement and each time I received big word processing documents, multiple pages long, claiming to be a "true copy". The problem is that none of them are true copies. There is nothing in any of them that correlates to the "blurb" on the top half of the mail shot, which I still have.

It seems to me that the Carey ruling was a "Cheats Charter" for the banks to effectively lie their way out of trouble. The courts nearly always accept what the bank provides as being correct, but my own experience is exactly the opposite. Sometimes they may rely on guesswork, but in my case it has been one blatant lie after another.

It is not rocket science for a bank or any other kind of business to keep documents secure. This means, if necessary, storing things in more than one location, both in paper and scanned form. A true scanned copy would be fine if it were legible, but to get 10 or 20 page bundles of paper masquerading as a true agreement is just not acceptable in my view.

I can't believe that this decision has been allowed to stand the test of time without some kind of challenge. Or better still, legislation to correct it!

[Amethyst]

S.77/78 responses are for information, as opposed to proof. If you deny that the agreement they have sent is a true copy of the agreement they should have to provide the true copy or evidence that what they have provided is a true copy. Carey was at a time when there were a lot of bandwagon jumping CMCs ripping consumers off and promising them total debt write off solely based on creditors not replying to a letter within 12 days (I'm sure others will have other views about all that )

If they have provided a true copy then you can look at whether it was compliant at the time it was signed - so if your original agreement was literally a tear off bit under some minimal marketing faff that didn't include all the prescribed terms - you should argue that, and that these additional terms they have now provided were not provided at the time. To that end theres a more cases since Carey on various aspects such as s61 other than simple compliance with s.77/78 - Harrison seems to suit your circumstances https://legalbeagles.info/harrison-v...february-2011/

[Diana M]

Joanna Connolly explains this on another thread here >

Carey v HSBC 2009 ?

In my very simplistic understanding that basically says a recon is okay unless the debtor argues they werent given the terms at the time of signing the agreement ( so lack of prescribed terms) - then they'd have to evidence that they were present at the time of signing, or the agreement could be ruled iredeemably enforceable pursuant to 127(3) ( which is where pre 2007 comes in as 127 was revoked in 2007 ). Joanna C was one of the solicitors involved in that case so she'll be able to give a much better breakdown of what it actually means

They use this tactic of misrepresenting the Carey v HSBC judgment all the time (including against me - though not successfully).

The judgment in Carey v HSBC related to the "information purpose" of s.78 CCA1974 ( s.78 is a request for information) not the "proof purpose" of a trial. It's only relevant in a trial where it has been pleaded that the claimant is in breach of a s.78 request.

Having said that a claimant can reconstitute the terms & conditions for evidential purposes (secondary evidence) but it should have to prove how they are the correct ones.

In the case of Santander Cards (UK) Ltd v Diana Mayhew (me ) DJ Henrietta Manners ruled against non compliance with s.78 CCA (Para 14 of the Judgment) but I won on other legal arguments >

http://news.bbc.co.uk/1/shared/bsp/h...wjudgement.pdf

Di

[pt2537]

Carey was considered by the Court of Appeal in Kotecha, and the Court went further than Waksman did in Carey by ruling that the creditor must provide the complete agreement not just part of it, if there were any terms and conditions such as ppi or rewards which make up the agreement, then they should be included too. See para 7 of the Judgment

[Amethyst]

Link to Kotecha in Paul's signature - Mayhew is http://www.bailii.org/cgi-bin/markup...c/2012/14.html