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Paul Tilley: My notable cases:
I thought it would be beneficial to get my most noteable cases down on paper so that the main results are all in one place. Arrow Global v John Devlin (2009) Mansfield County Court & Court of Appeal (Unreported) This was one of my first trials, it was a case where the credit agreement had […]
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Arrow Global v John Devlin (2009) Mansfield County Court & Court of Appeal (Unreported)
This was one of my first trials, it was a case where the credit agreement had been altered after it had been signed by the debtor. The requirements of the Consumer Credit Act 1974 made it clear that the document signed by the debtor must contain the prescribed terms, they cannot be added later and they cannot be incorrect in the slightest.
We also were intructed to seek to Counterclaim for monies paid back on the basis of the doctrine of mistake. The Claimants Defence to the Counterclaim was the strangest document ive ever seen, it had a opening statement like the beginning of a witness statement, it had a bare denial and offered no real basis for defending the counterclaim, and it had a statement of truth akin to a witness statement.
Accordingly, we applied for summary Judgment, and we got it. The Claimant appealed as we had an order allowing the client to recover all the monies paid under the contract. The case was settled out of court.
Phoenix Recoveries Sarl vs. Dr Ian Cresswell (2010) Birgmingham County Court – HHJ Worster.
Credit agreement with HFC Bank (marbles credit card) was found to be unenforceable by the Judge as it missed the prescribed terms. The Court was not convinced that the signed agreement contained the prescribed terms and the claim failed. The Judge also found there was no evidence that the Default notice relied upon was actually served. The Judge noted that the client was the sort of person who would have written to the bank and since the Default notice relied on by the creditor contained bizarre figures, the Court was satisfied Dr Cresswell would have written if he had received it.
Cabot Financial (UK) Limited v Nathan Bachellier (2010) Hastings County Court
The Claimant sought to enforce an agreement originally made between the Defendant and MBNA. The Claimant was an assignee of the account.
The client Defended on the basis that there had been a request under section 78(1) Consumer Credit Act 1974 and accordingly the Claimant had not complied and therefore could not obtain Judgment. The matter came before the District Judge who agreed that the Claimant had failed to discharge s78 as the documents before the Court were not easily legible and therefore the Claim failed.
Cabot Financial Limited v Pain and one other (2011)
This case was loaded with issues, the Claimant had purchased an account from a leading bank. The loan was a joint loan but the creditor had only given notice of assignment to one party, and more importantly had sued only one party to the agreement.
This presented the Claimant with an insurmountable hurdle, as the Consumer Credit Act 1974 required that where there was a loan with joint parties, then the creditor must sue all parties to the loan not just one of them. The Claimant had to add the second party, however it had also failed to give notice of assignment to the debtor before commencing proceedings, and case law appeared to suggest that the creditor would face an issue over its standing as a result.
There were also issues surrounding the agreement and its enforceability, plus there was a Counterclaim for missold ppi, as the way the creditor worked was the application was done over the phone, the clients were told the PPI was mandatory, and indeed it was automatically preprinted on the agreement without the clients consent. being compulsory made the PPI a charge for credit, however it was included in the credit thus rendered the agreement unenforceable (Wilson v First County Trust 2003 UKHL40)
Once all the cards were placed on the table in front of the creditor, they decided gracious retreat was the best option and abandoned the case immediately.
Keith Harrison v Link Financial Limited (2011) Mold Mercantile High Court -HHJ Chambers QC.
This was a widely reported case which was in my view the starting point for people to be able to challenge the unfair and unreasonable telephone harassment cases. Before Harrison, there had been a number of failed challenges to the Banks for unreasonably telephoning customers at all times of the day and night pursuing debts.
Keith Harrison suffered a large number of telephone calls from both MBNA and Link, at one point whilst a family member was in hospital seriously ill and despite being asked to stop calling, the calls continued and the Judge found as a fact that at that point the callers resorted to withheld numbers so that Keith would have to answer the phone as it could be the hospital calling.
Mr Harrison had paid around £70,000 back to the credit card against a borrowing of £26,000 and therefore had more than repaid what he borrowed. Mr Harrison had fallen into difficulty and had asked MBNA for some assistance in dealing with his short term problems, the bank, knowing he could not pay what they wanted took to calling him regularly demanding monies it knew he could not afford.
There were other issues with this case too. Mr Harrison had kept all the relevant documents in this case. He had the original cover letter that MBNA sent, he had the terms that were supplied ( and they werent what MBNA claimed were sent) he had all the statements and notices of variation, even the envelopes, he had the default notice and envelope and he had a sophisticated system for logging in all his mail.
The bank on the other hand struggled to produce reliable evidence, one only need read the judgment to see that.
The case was successful and Mr Harrison succeeded with his claim. The Judge ruled the relationship was unfair, the agreement was improperly executed, and he declined the Counterclaim by Link Financial, instead ordering that the debt is discharged and the Defendant did not have to repay any monies to Mr Harrison.
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Arrow Global v John Devlin (2009) Mansfield County Court & Court of Appeal (Unreported)
This was one of my first trials, it was a case where the credit agreement had been altered after it had been signed by the debtor. The requirements of the Consumer Credit Act 1974 made it clear that the document signed by the debtor must contain the prescribed terms, they cannot be added later and they cannot be incorrect in the slightest.
We also were intructed to seek to Counterclaim for monies paid back on the basis of the doctrine of mistake. The Claimants Defence to the Counterclaim was the strangest document ive ever seen, it had a opening statement like the beginning of a witness statement, it had a bare denial and offered no real basis for defending the counterclaim, and it had a statement of truth akin to a witness statement.
Accordingly, we applied for summary Judgment, and we got it. The Claimant appealed as we had an order allowing the client to recover all the monies paid under the contract. The case was settled out of court.
Phoenix Recoveries Sarl vs. Dr Ian Cresswell (2010) Birgmingham County Court – HHJ Worster.
Credit agreement with HFC Bank (marbles credit card) was found to be unenforceable by the Judge as it missed the prescribed terms. The Court was not convinced that the signed agreement contained the prescribed terms and the claim failed. The Judge also found there was no evidence that the Default notice relied upon was actually served. The Judge noted that the client was the sort of person who would have written to the bank and since the Default notice relied on by the creditor contained bizarre figures, the Court was satisfied Dr Cresswell would have written if he had received it.
Cabot Financial (UK) Limited v Nathan Bachellier (2010) Hastings County Court
The Claimant sought to enforce an agreement originally made between the Defendant and MBNA. The Claimant was an assignee of the account.
The client Defended on the basis that there had been a request under section 78(1) Consumer Credit Act 1974 and accordingly the Claimant had not complied and therefore could not obtain Judgment. The matter came before the District Judge who agreed that the Claimant had failed to discharge s78 as the documents before the Court were not easily legible and therefore the Claim failed.
Cabot Financial Limited v Pain and one other (2011)
This case was loaded with issues, the Claimant had purchased an account from a leading bank. The loan was a joint loan but the creditor had only given notice of assignment to one party, and more importantly had sued only one party to the agreement.
This presented the Claimant with an insurmountable hurdle, as the Consumer Credit Act 1974 required that where there was a loan with joint parties, then the creditor must sue all parties to the loan not just one of them. The Claimant had to add the second party, however it had also failed to give notice of assignment to the debtor before commencing proceedings, and case law appeared to suggest that the creditor would face an issue over its standing as a result.
There were also issues surrounding the agreement and its enforceability, plus there was a Counterclaim for missold ppi, as the way the creditor worked was the application was done over the phone, the clients were told the PPI was mandatory, and indeed it was automatically preprinted on the agreement without the clients consent. being compulsory made the PPI a charge for credit, however it was included in the credit thus rendered the agreement unenforceable (Wilson v First County Trust 2003 UKHL40)
Once all the cards were placed on the table in front of the creditor, they decided gracious retreat was the best option and abandoned the case immediately.
Keith Harrison v Link Financial Limited (2011) Mold Mercantile High Court -HHJ Chambers QC.
This was a widely reported case which was in my view the starting point for people to be able to challenge the unfair and unreasonable telephone harassment cases. Before Harrison, there had been a number of failed challenges to the Banks for unreasonably telephoning customers at all times of the day and night pursuing debts.
Keith Harrison suffered a large number of telephone calls from both MBNA and Link, at one point whilst a family member was in hospital seriously ill and despite being asked to stop calling, the calls continued and the Judge found as a fact that at that point the callers resorted to withheld numbers so that Keith would have to answer the phone as it could be the hospital calling.
Mr Harrison had paid around £70,000 back to the credit card against a borrowing of £26,000 and therefore had more than repaid what he borrowed. Mr Harrison had fallen into difficulty and had asked MBNA for some assistance in dealing with his short term problems, the bank, knowing he could not pay what they wanted took to calling him regularly demanding monies it knew he could not afford.
There were other issues with this case too. Mr Harrison had kept all the relevant documents in this case. He had the original cover letter that MBNA sent, he had the terms that were supplied ( and they werent what MBNA claimed were sent) he had all the statements and notices of variation, even the envelopes, he had the default notice and envelope and he had a sophisticated system for logging in all his mail.
The bank on the other hand struggled to produce reliable evidence, one only need read the judgment to see that.
The case was successful and Mr Harrison succeeded with his claim. The Judge ruled the relationship was unfair, the agreement was improperly executed, and he declined the Counterclaim by Link Financial, instead ordering that the debt is discharged and the Defendant did not have to repay any monies to Mr Harrison.
