Interpretation Act s7 v CCA 1974 s176/189

[The Mouse That Roared]

Hi All,

I am looking for a different angle. Just had my defence struck out and summary judgment entered against me. Received a faulty DN from Claimant which was, in my view, short on time to remedy. So at the Claimant's Application Hearing last month my argument was based on s7 of Interpretation Act and the Claimants response to this was that the accumulative effect of s176/189 of the CCA 1974 gave a contrary intention and therefore s7 of Interpretation Act did not have any effect. DJ sided with the Claimant's barrister and therefore struck out my defence and entered the judgment in their favour.

Some of my notes from the Judgment are as follows:

The main argument is the validity of the Default Notice.
The DN was clearly produced on 25-09-09
The DN was received on or about 01-10-09
Date for compliance was 12-10-09
If the date of service was on or about 01-10-09 then there were insufficient days to remedy.
If the date of service was on 25-09-09 then there were sufficient days to remedy.
Defendant’s position was that the Interpretation Act (s7) applies to the service of a DN.
The issue in question is whether s7 applies to the CCA 1974 or whether a contrary intention appears in the CCA 1974.
s88(1)b of CCA 1974 gives that the DN must contain the remedy and a date, s88(2) says that there is a requirement for 14 days.
s176 CCA 1974 (Service of Documents) gives (1) and (2) that DN sent/delivered and (3) sent by post.
s189 CCA 1974 (Definitions) gives that ‘serve on’ means to deliver or send.
Claimant argues that these provisions make it clear that there is a contrary indication.
Claimant quotes Goode (Consumer Credit) – s76 Notice – refers to s176 of CCA 1974 and gives a meaning of ‘mode of service’.
DJ was surprised that there are no references to DN in Goode after the CCA 1974 is 36 years old.
The accumulative definition of ‘properly served’ from s176/189 gives a contrary term.
However, this is awkward due to s88(2) gives that there must be 14 clear days.
What is the date of service? s176/189 gives a contrary meaning and therefore Interpretation Act s7 does not apply and therefore DN is valid due to service is deemed to have occurred when the DN is put in the post.
I still believe that I have a sound argument/defence. I therefore believe an Appeal could be a way forward. However, I need the evidence to aid my Appeal. With the clock ticking I have approximately 9 days to apply for the Appeal.
Any help would be much appreciated,
Thanks, in advance.
TMTR

[Amethyst]

Re: Interpretation Act s7 v CCA 1974 s176/189

Hiya, so the judge is saying that s7 doesn't apply because the CCA 1974 only specifies deliver or send as a definition of service which is contrary to s.7 (below) ? What does the DJ deem as the word which gives the contrary intention as thats not clear I dont think from your post. The word 'send' appears in s.7 and as such is defined, 'deliver' ? to me that means 'give' thus 'received'. So is use of the word 'sent' the contrary intention ? To me 'sent' is the same as 'send' and s7 states ' or any other expression is used '

Tricky one, and yes very important as there are many many DNs which are produced and dated on the day of, or even a few days prior to, posting and not received for 2-5 days thus leaving less that 14 clear days for remedy.

7. Where an Act authorises or requires any document to be served by post (whether the expression "serve" or the expressions "give" or "send" or any other expression is used) then, unless the contrary intention appears, the service is deemed to be effected by properly addressing, pre-paying and posting a letter containing the document and, unless the contrary is proved, to have effected at the time at which the letter would be delivered in the ordinary course of post.

I dont think there is a contrary intention in the CCA as the intention of the 14 days is for the debtor to remedy the default. The debtor cannot start to remedy the default until receipt of the default notice so the 14 days clearly should start on the day of receipt (as per s.7)

So can we look at the change from 7 to 14 days and why that was implemented, and would that help prove no contrary intention ?



So Consumer Credit Act 2006

Section 14: Default notices

36. Section 14 amends section 88 of the 1974 Act to extend from seven to 14 days the minimum period after which a creditor or owner may take action in respect of the agreement after having issued a default notice. Section 87 of the 1974 Act requires a creditor or owner to give the debtor or hirer a default notice in the prescribed form if he wishes to terminate the agreement, demand earlier payment of a sum, recover possession of any goods or land, treat any right conferred on the debtor or hirer by the agreement as terminated, restricted or deferred, or to enforce any security. .

Now THAT does indicate a contrary intention I think. Its based on ISSUE and the CREDITOR taking action as opposed to what I said above that the 14 days was to allow the DEBTOR to remedy. So the emphasis is on the creditor (sender) rather than Debtor (receiver).... but the 2006 Act is to amend the 1974 Act and isnt standalone.



You think its worth following down that line ?


Whats the definition of ISSUE ? '' To send out officially ''


See in other acts ''must serve notice and allow 30 Days to remedy this default''

Now in the 1974 act (as amended)

87.— Need for default notice.

(1) Service of a notice on the debtor or hirer in accordance with section 88

my emphasis

88.— Contents and effect of default notice.


(2) A date specified under subsection (1) must not be less than [14]1 days after the date of service of the default notice,

again my emphasis


Clearly must not be less the 14 days AFTER the date of SERVICE - no contrary intentions there.


Okay, this is where I say, I don't get what the claimants argument was ? after the date of service is clear.

[dad]

Re: Interpretation Act s7 v CCA 1974 s176/189

Hi All,

DJ was surprised that there are no references to DN in Goode after the CCA 1974 is 36 years old.

Not true. In the notes to section 88 Goode says the following:

Not Less than 14 days after In calculating the minimum period specified by sub-s(2), '14 days' means 14 clear days, excluding the day on which the notice was served and the day on which the creditor proposes to take the steps specified in the notice: see Re Railway Sleepers Supply Co Ltd (1885) 29 ChD 204; R v Turner [1910] 1 KB 346; Re Hector Whaling Ltd [1936] Ch 208; Carapanayoti & Co Ltd v Comptoir Commercial Andre et Cie Sa [1972] 1 lloyd's Rep 139.

Service of Default Notice This may be done by post or personal delivery: CCA 1974, s 189(1). As to what constitutes an effective posting or delivery, see CCA 1974, s 176(2)-(5). If there is more than one debtor, a default notice must be delivered to each: see CCa 1974, s 185(1)(a).
A notice served by post is deemed to have been served at the time when it would be delivered in the ordinary course of post: Interpretation Act 1978, s 7, (41 Halsbury's statutes (4th edn) (Reissue) 989). If more than one debtor must be served (above) it appears the 14-day period specified in sub-s (2) would run only from the latest service; the creditor would, therefore be wise to ensure (a) that all such notices as served so far as possible simultaneously and (b) that if a date is specified in the notices it is more than the statutory minimum of 14 days after the date on which he hopes that all the services will be effected.

HTH

Dad

[Amethyst]

Re: Interpretation Act s7 v CCA 1974 s176/189

Excellent Dad, Goode's is pretty darn clear on the issue then, can't be much clearer really. Must have had a blind judge.

[The Mouse That Roared]

Re: Interpretation Act s7 v CCA 1974 s176/189

Hi All,

Thanks for the input. 'Dad', if possible, could you please let me have the exact reference for the extract from Goode. That would be much appreciated.

TMTR

[gh2008]

Re: Interpretation Act s7 v CCA 1974 s176/189

Excellent post Dad - *exactly* what the OP needs

IF, as per tmtr's notes of the Judgment, the lack of apparent comment by Goode on teh matter was a deciding factor - is that in itself grounds for appeal?

There is *very* little caselaw - I have only managed to rake up 1 mention in a NI appeal Judgment

[Amethyst]

Re: Interpretation Act s7 v CCA 1974 s176/189

Costa ?

Just reading the background on your case if so.

[dad]

Re: Interpretation Act s7 v CCA 1974 s176/189

TMTR,

Not less than 14 days after: Goode: Consumer Credit Law and Practice - Volume IIB paragraph [5.168] page 470;

Service of Default Notice: Goode: Consumer Credit Law and Practice - Volume IIB paragraph [5.168] page 471.

HTH

Dad

[Tya]

Re: Interpretation Act s7 v CCA 1974 s176/189

Hi All,

Can someone point me in the right direction for a CCA letter.

I do have one already, but just want to make sure that nothing has changed..

Thanks

[Amethyst]

Re: Interpretation Act s7 v CCA 1974 s176/189

Here Tya - Legal Beagles Consumer Forum - View Single Post - Letter Templates Re Debt (offer to pay / freeze interest etc)

[Tya]

Re: Interpretation Act s7 v CCA 1974 s176/189

Your a star Amethyst,

Thanks as always.

Tya

[The Mouse That Roared]

Re: Interpretation Act s7 v CCA 1974 s176/189

Many thanks 'DAD' for the Goode references. You are a star!

[mystery1]

Re: Interpretation Act s7 v CCA 1974 s176/189

In criminal court it took 3 goes to get service of post sorted.

http://www.bailii.org/ew/cases/EWHC/...2009/2924.html

M1

[The Mouse That Roared]

Re: Interpretation Act s7 v CCA 1974 s176/189

'DAD'

Your help is appreciated so much. Need one more bit of info if poss.

Do you have anything on Goode's comments wrt CCA 1974 s176 along with the Interpretation Act 1978.

Thanks

TMTR

[dad]

Re: Interpretation Act s7 v CCA 1974 s176/189

'DAD'

Your help is appreciated so much. Need one more bit of info if poss.

Do you have anything on Goode's comments wrt CCA 1974 s176 along with the Interpretation Act 1978.

Thanks

TMTR

TMTR,

176 Service of documents
Commencement
31 July 1974: see CCA 1974, Sch 3, Note.
Amendment
Sub-s (2): SI 2004/3236, art 2.
Sub-s (7): Law of Property (Miscellaneous Provisions) Act 1994, s 21, Sch 1.
General effect
The section makes general provision relating to the service of documents under this Act. Compliance with this section means that a statutory notice will have been duly ‘served’ on ‘the subject’ for the purposes of the Act. The section is not exhaustive, however, in the sense that ‘proper service’ does not, per se, constitute effective service; for example, a notice of withdrawal under CCA 1974, s 57 or of rescission under CCA 1974, s 102 will be properly served if posted to a ‘subject’ specified in those sections, but it does not follow that the notice thereupon takes effect (see note to sub-s (2), below).
Serve, served, service
To ‘serve on’ means, for the purposes of the Act, to deliver, or send by post, to the subject: see CCA 1974, s 189(1). ‘Delivery’ includes personal delivery, and references to ‘serving’ a document therefore include giving the document to the subject: sub-s (8).
...
Sent by post
The effect of sub-s (2) is that provisions of this Act which require or authorise service of a document also authorise the service of that document by post, bringing into operation the Interpretation Act 1978 (IA 1978), s 7 (41 Halsbury's Statutes (4th edn) (Reissue) 989) by which service is deemed to be effected by properly addressing, prepaying and posting a letter containing the document. Unless the contrary is proved, service will be deemed to have been effected at the time when the letter would be delivered in the ordinary course of post. This provision will, accordingly, govern the efficacy of posted notices served under this Act except where it is excluded: see CCA 1974, s 69(7).
For decisions on the Interpretation Act 1889, s 26 which was to a similar effect as the IA 1978, s 7, see Sharpley v Manby [1942] 1 KB 217, [1942] 1 All ER 66; Sandland v Neale [1956] 1 QB 241, [1955] 3 All ER 571; R v County of London Quarter Sessions Appeals Committee, ex p Rossi [1956] 1 QB 682, [1956] 1 All ER 670; Beer v Davies [1958] 2 QB 187; Stylo Shoes Ltd v Prices Tailors Ltd [1960] Ch 396, [1959] 3 All ER 901; Moody v Godstone RDC [1966] 2 All ER 696, [1966] 1 WLR 1085; White v Weston [1968] 2 QB 647, [1968] 2 All ER 842; Cooper v Scott-Farnell [1969] 1 All ER 1781, [1969] 1 WLR 120; Hewitt v Leicester City Council [1969] 2 All ER 802, [1969] 1 WLR 855; Maltglade Ltd v St Albans RDC [1972] 3 All ER 129, [1972] 1 WLR 1230; Saga of Bond Street Ltd v Avalon Promotions Ltd [1972] 2 QB 325n; [1972] 2 All ER 545n; A/S Cathrineholm v Norequipment Trading Ltd [1972] 2 QB 314; Thomas Bishop Ltd v Helmville Ltd [1972] 1 QB 464, [1972] 1 All ER 365; Migwain Ltd (in liquidation) v Transport and General Worker's Union [1979] ICR 597.

[5.346A]

176A Electronic transmission of documents
[(1) A document is transmitted in accordance with this subsection if-
(a) the person to whom it is transmitted agrees that it may be delivered to him by being transmitted to a particular electronic address in a particular electronic form,
(b) it is transmitted to that address in that form, and
(c) the form in which the document is transmitted is such that any information in the document which is addressed to the person to whom the document is transmitted is capable of being stored for future reference for an appropriate period in a way which allows the information to be reproduced without change.
(2) A document transmitted in accordance with subsection (1) shall, unless the contrary is proved, be treated for the purposes of this Act, except section 69, as having been delivered on the working day immediately following the day on which it is transmitted.
(3) In this section, ‘electronic address’ includes any number or address used for the purposes of receiving electronic communications.]
Amendment
Inserted by SI 2004/3236, art 2 as from 31 December 2004.
[5.347]

I have included section 176a which deals with electronic service. Note that sub-s 2 explicitly states that an email is not considered delivered until the day after it is sent. It would be extraordinary if posting was deemed to occur sooner!

Dad