Implications of Kneale on getting your credit agreement

[Amethyst]

Ref Fingers v Barclays

I dont know if anyones know much of the case but seems they followed the 31.16 pre action disclosure route to get the CCA from Barclaycard, (N244 application in court following failed s78 requests) discontinued following Kneale (who lost on appeal and blew 31.16 out the water for CCA pre action disclosure requests), and now Barclays want a ridiculous amount in costs. (It hasnt been to hearing has just been stayed pending Kneale)

You have to show a good reason for preaction disclosure and I'm not sure a whim is quite good enough. What reasons could you need your CCA for (other than to check its enforceable so you can stop paying of course) - ID Fraud etc? I think its feasible with ID fraud that you dont stop paying it and risk your credit rating especially if your work is dependant on a decent credit rating.

Thread on CAG >> Fingers Vs Barclaycard

They still don't have the credit agreement, all they have sent is rec T&C's.

So the point.........Is there no other way to get hold of your original credit agreement without putting yourself in a default position and getting them to sue you ?

Any thoughts ? ICO ?

[Differentjudge]

Re: Implications of Kneale on getting your credit agreement

Is the question "how would you obtain a copy of the original "?

Or

"what reason would you give for wanting a copy"?

[Amethyst]

Re: Implications of Kneale on getting your credit agreement

Well both really, should you need a good reason to want a copy ? Can you ask for one for your records because you lost your original copy ? If they refuse to supply it under s77/s78 and you have no specific dispute and you just want it, how can you get it ?

They should keep records. s77/78 are for protection of consumers. If they refuse to supply a copy or even a reconstruction of your agreement, they can't enforce it, but you cant find that out until you have defaulted and they have trashed your credit record and then suddenly they pop up with a perfect copy, sue your ass for the debt and add costs on.

CPR 31.16 is out unless there is a bonafide specific dispute on the debt. So how do you enforce s77/78 if you arent being taken to court for a debt ?

Sorry its a kind of all round question really isnt it.

[pandora]

Re: Implications of Kneale on getting your credit agreement

Why not just do a SAR and see what is supplied.

Of course under DPA rules it is perfectly acceptable for you to request and you be allowed a copy of your orig agreement, and under the same the creditor is obliged to send you one, or explain why they can't (i.e in the case of a recon) or why they won't comply with your request.

I did a CPR request last yr with an RBS offshoot - whereby they had sent a recon version, I said I wanted a copy of my orig with signature - and did a CPR on them - whereby they admited they had no agreement (or record of one) at all and that they thereby acknowledged they couldn't enforce the debt. I;ve only done it with one creditor - but I admit its dicey to do it if you have not intention of going the court route .. as it could all go very horribly wrong !!

P :beagle:

[Angry Cat]

Re: Implications of Kneale on getting your credit agreement

Disclosure before proceedings start

31.16

(1) This rule applies where an application is made to the court under any Act for disclosure before proceedings have started1.
(1. An application for disclosure before proceedings have started is permitted under section 33 of the Supreme Court Act 1981 (c.54) or section 52 of the County Courts Act 1984 (c.28))

(2) The application must be supported by evidence.

(3) The court may make an order under this rule only where –
(a) the respondent is likely to be a party to subsequent proceedings;

(b) the applicant is also likely to be a party to those proceedings;

(c) if proceedings had started, the respondent’s duty by way of standard disclosure, set out in rule 31.6, would extend to the documents or classes of documents of which the applicant seeks disclosure; and

(d) disclosure before proceedings have started is desirable in order to –
(i) dispose fairly of the anticipated proceedings;

(ii) assist the dispute to be resolved without proceedings; or

(iii) save costs.



(4) An order under this rule must –
(a) specify the documents or the classes of documents which the respondent must disclose; and

(b) require him, when making disclosure, to specify any of those documents –
(i) which are no longer in his control; or

(ii) in respect of which he claims a right or duty to withhold inspection.



(5) Such an order may –
(a) require the respondent to indicate what has happened to any documents which are no longer in his control; and

(b) specify the time and place for disclosure and inspection.
------------------------------- merged -------------------------------
Scope of this Part

31.1

(1) This Part sets out rules about the disclosure and inspection of documents.

(2) This Part applies to all claims except a claim on the small claims track.

[pandora]

Re: Implications of Kneale on getting your credit agreement

Exactly Angry C ..... couldn't have put it better myself .... !

CPR is not a route anyone responsible would suggest to peeps trying to force CCA disclosure ... as if you are not prepared to go the court route (as I was ... but this was way back early 2009, and before the recent test cases), your bluff may be well and truly called by the Creditor (which mine wasn't - they just admitted no agreement, that it wasn't enforceable in court, and there was no need for any court action to prove so).

Best advice for anyone is to do a SAR - which yes will cost a fee but should reveal what they hold .... and enable the Debtor to devise a considered plan of action.

P :beagle:

[Amethyst]

Re: Implications of Kneale on getting your credit agreement

Do you think Fingers should have continued in court despite Kneale ? rather than discontinuing ?

[The Debt Star]

Re: Implications of Kneale on getting your credit agreement

Exactly Angry C ..... couldn't have put it better myself .... !

CPR is not a route anyone responsible would suggest to peeps trying to force CCA disclosure ... as if you are not prepared to go the court route (as I was), your bluff may be well and truly called by the Creditor (which mine wasn't - they just admitted no agreement, that it wasn't enforceable in court, and there was no need for any court action to prove so).

Best advice for anyone is to do a SAR - which yes will cost a fee but should reveal what they hold .... and enable the Debtor to devise a considered plan of action.

P

unless its barclaycard who refer to a CCA in their letters but don't actually enclose it.

and then they deny there's a dispute because they have "fulfilled their obligations" under the CCA

[Angry Cat]

Re: Implications of Kneale on getting your credit agreement

Exactly Angry C ..... couldn't have put it better myself .... !

CPR is not a route anyone responsible would suggest to peeps trying to force CCA disclosure ... as if you are not prepared to go the court route (as I was), your bluff may be well and truly called by the Creditor (which mine wasn't - they just admitted no agreement, that it wasn't enforceable in court, and there was no need for any court action to prove so).

Best advice for anyone is to do a SAR - which yes will cost a fee but should reveal what they hold .... and enable the Debtor to devise a considered plan of action.

P :beagle:

The very first step that anyone should take, is to make a full Subject Access Request to the creditor. If, they do not fully comply, log a complaint with the ICO.

I also consider that it is extremely foolish/risky to take action against the creditor re: unenforceable credit agreements.

The CPR's are in place for a reason and should not be used just to obtain information under sections 77, 78 & 79.

[Amethyst]

Re: Implications of Kneale on getting your credit agreement

Thanks guys. So you have sent off your SAR and they come back with zip, you have sent off your section 77/78 and they come back with zip .... report to the ICO ? Can you still report to Trading standards ? (not sure if that changed when the criminal act bit was ditched)

Remember this is cases where you are keeping up payments and don't want court action to be taken against you.

[Angry Cat]

Re: Implications of Kneale on getting your credit agreement

Thanks guys. So you have sent off your SAR and they come back with zip, you have sent off your section 77/78 and they come back with zip .... report to the ICO ? Can you still report to Trading standards ? (not sure if that changed when the criminal act bit was ditched)

Remember this is cases where you are keeping up payments and don't want court action to be taken against you.

IMO, one should make the FULL SAR, prior to making a request under the CCA.
If, the creditor does not comply with the SAR;
log a complaint with the ICO.
The ICO, will investigate and if necessary take enforcement action against the creditor.

Sorry to say it, but far too many people have simply made a request under the CCA, when a FULL SAR request would have been more prudent.
It is probable, that some consider a request under sections 77-79 of the CCA, to be a get out of jail card quick?

A, I guess that you have already viewed the following:
https://www.eversheds.com/uk/home/ar...clays_Bank_plc

[Angry Cat]

Re: Implications of Kneale on getting your credit agreement

[quote] by Amethyst:
Can you still report to Trading standards ? (not sure if that changed when the criminal act bit was ditched)[quote]

Re: non disclosure under sections 77-79.
Please see;
The Consumer Protection from Unfair Trading Regs;
The Commercial Practices Regs.

Trading Standards/Weights & Measures can take enforement action under section 5 of the Enterprise Act...or, should one say, may.

Sorry to digress, just answering your query re: TS

[Amethyst]

Re: Implications of Kneale on getting your credit agreement

thanks AC. Yes I have read the eversheds report on Kneale.

Can you point out the relevant bits of


The Consumer Protection from Unfair Trading Regs;
The Commercial Practices Regs.


Thanks

[Ihaterbs]

Re: Implications of Kneale on getting your credit agreement

The SAR route is ok providing the agreement is stored in a relevant filing system. Bank's are circumventing this by claiming that locating the agreement is a disproportionate effort.

[Angry Cat]

Re: Implications of Kneale on getting your credit agreement

http://www.out-law.com/page-9050

http://www.cambridgeshire.gov.uk/com...tions+2008.htm

Prohibition of unfair commercial practices
3.—(1) Unfair commercial practices are prohibited.

(2) Paragraphs (3) and (4) set out the circumstances when a commercial practice is unfair.

(3) A commercial practice is unfair if—

(a) it contravenes the requirements of professional diligence; and
(b) it materially distorts or is likely to materially distort the economic behaviour of the average consumer with regard to the product.
(4) A commercial practice is unfair if—

(a) it is a misleading action under the provisions of regulation 5;
(b) it is a misleading omission under the provisions of regulation 6;
(c) it is aggressive under the provisions of regulation 7; or
(d) it is listed in Schedule 1.
Prohibition of the promotion of unfair commercial practices
4. The promotion of any unfair commercial practice by a code owner in a code of conduct is prohibited.

[Quote]:
“Though the true impact of these legislative changes is yet to be known, it is clear that they will significantly affect the credit industry going forward. DCAs for example, who buy debt from a lender with poor lending agreements and (knowingly) continue to recover debt under the terms of these agreements, could find themselves facing both criminal and civil sanctions for unfair commercial practices.[Quote]