Interpretation Act s7 v CCA 1974 s176/189

[cymruambyth]

Re: Interpretation Act s7 v CCA 1974 s176/189

Sorry if this is a stupid question (my speciality) but if going to court and using the service of a DN as one of the arguments, would it be sufficient to list the above mentioned cases or would it be necessary to have copies of them?

[Amethyst]

Re: Interpretation Act s7 v CCA 1974 s176/189

It would help to have at least read the cases so you know what the decisions were in them, you wouldnt want to be quoting something thats against your argument.

[Horse_with_no_name]

Re: Interpretation Act s7 v CCA 1974 s176/189

TMTR,



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 extrordinary if posting was deemed to occur sooner!

Dad

Indeed ! How could the date of service occur before the date of delivery ? As dad states s176A which deals with electronic service (defined as "an appropriate method" by s189 of the Act), states that date of delivery is deemed to occur on the next working day after a fax / email is sent.

Even the courts own rules (CPR), accept that it takes two working days for 1st class letters to be delivered by post and that time is the deemed Date of Service.

To send a document by "an appropriate method" is the process to achieve service as defined by s176, the Date of Service is the time at which that process is deemed to have been effected (completed). The Date of Service depends on the method used for service.

Clearly if under s176 to send by "an appropriate method" meant that Date of Service occured instantly, then that would make a nonsense of s176A.

The answer is that s176 does not define date of service for "an appropriate method" - this is handled elsewhere - in the case of electronic transmission, by s176A, in the case of docs served by post - by the Interpretation Act 1978 at s7 which states it applies "Where an Act authorises or requires any document to be served by post".

[Shepherdess]

Re: Interpretation Act s7 v CCA 1974 s176/189

Interesting thread!
Further insight into the intentions of the Act in using the term "served" may be drawn from Section 103 (Termination Statements):

103.
Termination statements.
— (1) If an individual (the “customer ”) serves on any person (the “trader ”) a notice—
(a)
stating that—
(i) the customer was the debtor or hirer under a regulated agreement described in the notice, and the trader was the creditor or owner under the agreement, and
(ii) the customer has discharged his indebtedness to the trader under the agreement, and
(iii) the agreement has ceased to have any operation; and

(b)
requiring the trader to give the customer a notice, signed by or on behalf of the trader, confirming that those statements are correct,


the trader shall, within the prescribed period after receiving the notice, either comply with it or serve on the customer a counter-notice stating that, as the case may be, he disputes the correctness of the notice or asserts that the customer is not indebted to him under the agreement.

Surely an Act created for Consumer Protection would not favour a trader with a prescribed time to act from receipt of a time sensitive document whilst denying the consumer the same right?

HTH
Shepherdess x

[dad]

Re: Interpretation Act s7 v CCA 1974 s176/189

Doh! Sometimes the answer is staring you straight in the face, but I did not notice it for looking at it!

In the commentary it says:

This provision (ie the Interpretation Act s 7), will accordingly, govern the efficacy of posted notices served under this Act except where it is excluded: See CCA 1974 s 69(7)

So what does s69(7) say:

Whether or not it is actually received by him, a notice of cancellation sent to a person shall be deemed to be served on him
(a) in the case of a notice sent by post, at the time of posting, and

(b) in the case of a notice transmitted in the form of an electronic communication in accordance with section 176A(1), at the time of the transmission.

So where the CCA 1974 intends service to occur at the point of sending it explicitly says so, which it does not in the case of s87.

If the accumulative definition of 'properly served' from 176/189 gave a contrary term which meant that service by post occurred on posting there would be no need for this specific exception. Parliament is presumed not to include unnecessary word in statutes, therefore the conclusion must be that these words are included in this section because the normal deemimg of service must be something else ie the Interpretataion Act s7.

HTH

Dad

[The Mouse That Roared]

Re: Interpretation Act s7 v CCA 1974 s176/189

Thanks again DAD. You are a star.

Just one question - where did this part come from?

'This provision (ie the Interpretation Act s 7), will accordingly, govern the efficacy of posted notices served under this Act except where it is excluded: See CCA 1974 s 69(7)'

Sorry if I'm having a 'thickie'!

TMTR

[dad]

Re: Interpretation Act s7 v CCA 1974 s176/189

Thanks again DAD. You are a star.

Just one question - where did this part come from?

'This provision (ie the Interpretation Act s 7), will accordingly, govern the efficacy of posted notices served under this Act except where it is excluded: See CCA 1974 s 69(7)'

Sorry if I'm having a 'thickie'!

TMTR

See 'Sent by post' in post #15 above - I added the part in brackets rather than quote the whole 'sent by post' paragraph. So 'this provision' is referring to the preceeding sentence which discusses s7 of the Interpretation Act.

HTH

Dad

[Amethyst]

Re: Interpretation Act s7 v CCA 1974 s176/189

Its actually on a thread of yours over on CAG CCA 1974 ss176 (Service of Documents)/189 (Definitions)

[The Mouse That Roared]

Re: Interpretation Act s7 v CCA 1974 s176/189

Thanks for the help 'DAD'. Getting my skeleton argument together at the mo so it can accompany my N161. Will I'll be able to include these great snippets to reinforce my original argument?

Thanks again.

TMTR

[Angry Cat]

Re: Interpretation Act s7 v CCA 1974 s176/189

Other grounds of defence (which apply irrespective of the Claimant's status)

Default notice defective.

A Default notice is required by s 87(1) of the Act before the credit agreement can be terminated or enforced.

By s88(1) of the Act the default notice must give the date by which the default can be remedied.

By s88(2) of the Act [as amended by s14(1) of the Consumer Credit Act 2006 as from 1 October 2006] that date must not be less than 14 days after the date of service of the default notice.

The 14 day period was also required by paragraph 3(c) of Schedule 2 of the Enforcement Regulations (as amended).

A document dated (*edit to suit) which purported to be a default notice under s87(1) of the Act was posted to the Defendant by the Claimant. It is inferred that it was posted on *(please see above).

By s7 of the Interpretation Act 1978 a posted document is deemed to have been served at the time when it would be delivered in the ordinary course of post.

By case law 14 days in the secion means 14 "clear days".

The date given in the default notice by which the default could be remedied was " before (edit to suit), which was less than the 14 days required.

Accordingly the default notice was invalid.
Accordingly the Claimant is unable to bring this claim.

[The Mouse That Roared]

Re: Interpretation Act s7 v CCA 1974 s176/189

s.7 Interpretation Act does not override s.176/189 of CCA 1974. Therefore a dn is deemed to be served when it is put in the post not when the debtor receives it in the ordinary course of the post.

Let the floodgates open!!!

[Amethyst]

Re: Interpretation Act s7 v CCA 1974 s176/189

s.7 Interpretation Act does not override s.176/189 of CCA 1974. Therefore a dn is deemed to be served when it is put in the post not when the debtor receives it in the ordinary course of the post.

Let the floodgates open!!!

Have you a copy of the judgment which confirms this TMTR ?

[Amethyst]

Re: Interpretation Act s7 v CCA 1974 s176/189

Received order from Circuit Judge today - permission to appeal REFUSED. He said that the DJ was correct in his decision that s.7 Interpretation Act 1978 does not overide the combined meaning of s.176/189 of the CCA.

So from this ladies and gents we can now presume that a default notice is served when it is put in the post. NOT WHEN YOU RECEIVE IT.

I will post the Circuit Judge's full comments later. Just fuming at the moment !

Costa

Sorry to hear your appeal was refused ! Bloody hell.

Ground for refusal: an appeal would not have a reasonable prospect of success and there is no other compelling reason why an appeal should be heard.

Reason (s) for refusal: The issue for determination essentially rested on a legal interpretation of the effects of the Interpretation Act 1978 and whether the definition of 'service', in the context of a default notice, overrode the application of the strict provsion of section 176 and 189 of the CCA 1974 as amended. The district judge was correct not to permit the 1978 Act to override the clear statutory provision in the 1974 Act. On a review of his decision, there are no grounds to interfere.

Me v Tesco/Incasso - Appeal in process anyone looking at this issue should read Costas thread on CAG

It doesnt happen with me very much, but I actually agree in this case that the Judge has got this wrong.

[pt2537]

Re: Interpretation Act s7 v CCA 1974 s176/189

This has always been a troubling argument, as the CCA does detail the provisions for serivce, and the IA 78 can be ousted if the statute deals with service of documents which the CCA does appear to.

[Amethyst]

Re: Interpretation Act s7 v CCA 1974 s176/189

Why is it only specified in the cancellation of agreements part if it the case throughout the CCA ? a DN is not a notice of cancellation is it. It is a notice, but 69 refers solely to cancellation notices.

69(7) Whether or not it is actually received by him, a notice of cancellation sent to a person shall be deemed to be served on him— (a)
in the case of a notice sent by post, at the time of posting, and

(b)
in the case of a notice transmitted in the form of an electronic communication in accordance with section 176A(1), at the time of the transmission.