Interpretation Act s7 v CCA 1974 s176/189

[pt2537]

Re: Interpretation Act s7 v CCA 1974 s176/189

s176 deals with service

[Amethyst]

Re: Interpretation Act s7 v CCA 1974 s176/189

Yes but 176 doesnt specify it only refers to service served delivery etc. Definitions in 189 are serve = deliver or send (which doesnt specify) hence referring to the interpretation act and Goode. It is only cancellation notices which has anything contrary defined.

[pt2537]

Re: Interpretation Act s7 v CCA 1974 s176/189

yes, trouble is, there is no established authority on service, we need a High Court decision, which we will hopefully get soon, which deals with this point,

Until we get that, it is down to the judges interpretations, and Goode isnt binding of course, nor is lloyd and Guest or Bennions Consumer Credit Control

Halsburys also dont assist,

I have seen the arguments counsel used, and they are very powerful, i must say

[dad]

Re: Interpretation Act s7 v CCA 1974 s176/189

...

I have seen the arguments counsel used, and they are very powerful, i must say

Pt,

Theirs or yours?

Dad

[pt2537]

Re: Interpretation Act s7 v CCA 1974 s176/189

Pt,

Theirs or yours?

Dad

wasnt involved in the case,

Just reading from the transcript

[cymruambyth]

Re: Interpretation Act s7 v CCA 1974 s176/189

wasnt involved in the case,

Just reading from the transcript

But which side are the powerful arguments on? And ignoring Costa amd Brandon have they succeeded against the claimant?

[Guest]

Re: Interpretation Act s7 v CCA 1974 s176/189

Hi
Excellent informative thread . Don’t know how missed it . I agree the judge was incorrect. Both judges in fact.
Peter

[pt2537]

Re: Interpretation Act s7 v CCA 1974 s176/189

Hi
Excellent informative thread . Don’t know how missed it . I agree the judge was incorrect. Both judges in fact.
Peter

I think that problem we face Peter, is due to the CMC revolution that has happened, many judges will take the view , certainly in respect of the 14 days time limits, that if the debtor makes no action to remedy the breach after 14 days from receipt of the notice, then there is no prejudice to the debtor . This was the view that the judge took in Brandon, whether or not we think its right or wrong, if the judgment is upheld by the Court of Appeal, then we are stuck with it.

This is the dam problem,

[mystery1]

Re: Interpretation Act s7 v CCA 1974 s176/189

yes, trouble is, there is no established authority on service, we need a High Court decision, which we will hopefully get soon, which deals with this point,

Until we get that, it is down to the judges interpretations, and Goode isnt binding of course, nor is lloyd and Guest or Bennions Consumer Credit Control

Halsburys also dont assist,

I have seen the arguments counsel used, and they are very powerful, i must say

There is a similar idea for criminal court where it took a 3rd court to set the precedent of service.

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

M1

[jumper999]

Re: Interpretation Act s7 v CCA 1974 s176/189

I think that problem we face Peter, is due to the CMC revolution that has happened, many judges will take the view , certainly in respect of the 14 days time limits, that if the debtor makes no action to remedy the breach after 14 days from receipt of the notice, then there is no prejudice to the debtor . This was the view that the judge took in Brandon, whether or not we think its right or wrong, if the judgment is upheld by the Court of Appeal, then we are stuck with it.

This is the dam problem,

Fantastic info pt..........but what if the debtor did try to remedy the breach after the 14 days and the creditor still continued to refuse his offers of paying in installments.

I guess things will be decided individually for each person?

[The Mouse That Roared]

Re: Interpretation Act s7 v CCA 1974 s176/189

Strange you should add that jumper!!!

[Amethyst]

Re: Interpretation Act s7 v CCA 1974 s176/189

Well after the 14 days surely thats past the remedy date so it is up to the creditor if they continue with termination or not ? You'd hope that if before termination that they creditor would go back, but at the end of the 14 clear days they are entitled to ask for the whole balance and terminate if they want to.

(think I'm missing something though as to why jumper asked this at this time)

[gh2008]

Re: Interpretation Act s7 v CCA 1974 s176/189

IMHO, there is a clear difference between this case and 'Brandon'

In Brandon, the notice stated that the remedy was due 'within 14 days of service of this notice' or wording to that effect.

However because of the statutory wording it also said 'remedy before the date shown' and of course the 'within 14 days of service of this notice' is not a date, and therefore the only date shown was, in fact the date of the notice.

In this case, the notice DID give a date, and did NOT give any '14 days from service type of allowance'

It was clearly short.

The claimants relied on Goode [45.19] which I haven't seen :-( so if that could be posted up it would certainly help.

My thoughts are that [45.19] is the section that deals with dead debtors where the notice is deemed as served when posted - I presume this is because it is presumed .... well you know

It is also possible using this thinking, that before the change from 7-14 days it would have been possible for the creditor to actually act on the DN without the debtor even having received it .... (posted after collection on a Friday of a bank holiday w/e posted 'bulk class' with UKMail)
(Note this DN was also produced on a Friday)

[The Mouse That Roared]

Re: Interpretation Act s7 v CCA 1974 s176/189

Service of s 76 notice

[45.19] The CCA 1974, s 176 lays down general rules as to service. If the debtor or hirer has died, the notice can be served on his executor (even before probate) as the ‘debtor’ or ‘hirer’ within the CCA 1974, s 189(1) or, if there is no executor, on the person to whom letters of administration were granted; but it is unnecessary to serve in this way, since service will be validly effected if addressed to the debtor or hirer and sent by post to, or left at, his address last known to the creditor or owner (1) . This is so even if the debtor or hirer died intestate and it is desired to serve a s 76 notice prior to letters of administration, since it is not permitted to serve a notice on the Probate Judge (2) ; ie the President of the Family Division (3) , even though the estate is vested in him pending the grant (4) . For the most part the rules as to service laid down in s 176 relate to the mode of service, not the deemed time of service (5) . It is not necessary that the debtor or hirer shall have received the notice, only that it has been served as required. Proof of time of service is necessary only where the time or service is relevant, which under the CCA 1974 it generally is not (6) .



(1) CCA 1974, s 176 (1)-(6).
(2) CCA 1974, s 176(7).
(3) Administration of Justice Act 1970, s 1(6) and Sch 2, para 5.
(4) Administration of Estates Act 1925, s 55(1)(xx), as amended by Administration of Justice Act 1970, s 1(6) and Sch 2, para 5.
(5) The exceptional case is service or a person as having capacity he has ceased to hold (CCA 1974, s 176(5)).
(6) Lombard North Central plc v Power-Hines [1995] CCLR 24.

[gh2008]

Re: Interpretation Act s7 v CCA 1974 s176/189

Service of s 76 notice

[45.19] The CCA 1974, s 176 lays down general rules as to service. If the debtor or hirer has died, the notice can be served on his executor (even before probate) as the ‘debtor’ or ‘hirer’ within the CCA 1974, s 189(1) or, if there is no executor, on the person to whom letters of administration were granted; but it is unnecessary to serve in this way, since service will be validly effected if addressed to the debtor or hirer and sent by post to, or left at, his address last known to the creditor or owner (1) . This is so even if the debtor or hirer died intestate and it is desired to serve a s 76 notice prior to letters of administration, since it is not permitted to serve a notice on the Probate Judge (2) ; ie the President of the Family Division (3) , even though the estate is vested in him pending the grant (4) . For the most part the rules as to service laid down in s 176 relate to the mode of service, not the deemed time of service (5) . It is not necessary that the debtor or hirer shall have received the notice, only that it has been served as required. Proof of time of service is necessary only where the time or service is relevant, which under the CCA 1974 it generally is not (6) .

So they seem to have been relying on your untimely demise ......

Goode [45.19] was the paragraph relied on by the claimants wasn't it? and cited in the Judgement?