Interpretation Act s7 v CCA 1974 s176/189

[The Mouse That Roared]

Re: Interpretation Act s7 v CCA 1974 s176/189

Correct !

[dad]

Re: Interpretation Act s7 v CCA 1974 s176/189

Service of s 76 notice

[45.19] [snip]
. 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) .

[snip]
(6) Lombard North Central plc v Power-Hines [1995] CCLR 24.

How did they explain this bit as service is relevant to s87 and so an exception to the general rule?

Dad

[paulb2905]

Re: Interpretation Act s7 v CCA 1974 s176/189

Forgive me if i appear somewhat puzzled by the confusion around this issue - service is surely a derivative of "serve" which is clearly explained under section 189

189.-(1) In this Act, unless the context otherwise requires
" give " means deliver or send by post to ;
" serve on " means deliver or send by post to ;
" working day " means any day other than-
(a) Saturday or Sunday,
(b) Christmas Day or Good Friday,
(c) a bank holiday within the meaning given by section 1 of the Banking and Financial Dealings Act 1971.

and as such the Interpretation Act only further clarifies the already specific terms???

[Guest]

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,

hi

HI
Yet the ideas of prejudice being introduced into the equation when ruling on section 87 has been approached before, although rendering a different conclusion.
In the judgment in the Worchester v Swain

Mr Hodgkinson goes on to submit that none of the authorities relied upon by the assistant recorder, when properly considered, suggests otherwise. He further submitted that this court has no discretion in the matter and invited our attention to other parts of the statute, particularly Section 60 and the sections associated therewith including Section 127 where it is clear that a discretion is given which is noticeably absent in the case of Sections 87, 88 and 89

Since section 127 (where the variation of a judgement is permited in according with predudice)is being referred to it would seem that the court cannot use prejudice in a case like this, yet clearly in Brandon they have.

Perhaps the appeal will be granted and this will come up
Peter

[Angry Cat]

Re: Interpretation Act s7 v CCA 1974 s176/189

Forgive me if i appear somewhat puzzled by the confusion around this issue - service is surely a derivative of "serve" which is clearly explained under section 189

and as such the Interpretation Act only further clarifies the already specific terms???

Please see point 18:
http://www.courtsni.gov.uk/NR/rdonly...j_weaf4023.htm

[Emphasis]: "unless the contrary is proved"

[paulb2905]

Re: Interpretation Act s7 v CCA 1974 s176/189

AG

Im not sure what your trying to say with reference to the NI Case. In it they refer to the 1978 Interpretation Act with reference to service (and an older 1958 act).

References to service by post. 7

Where an Act authorises or requires any document to be served by post (whether the expression “serve” or the expression “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 been effected at the time at which the letter would be delivered in the ordinary course of post.

Perhaps i should make my point clear that imho S7 of the Interpretation Act only further clarifies the sections in 176 & 189. There is no contrary intention or indeed conflict what so ever.

Arent we all agreeing that the Judge was incorrect in his decision.

The only difference would be whether this was delivered 1st class or 2nd class. And they would have to PROVE 1st class postage.

[banker_rhymes_with]

Re: Interpretation Act s7 v CCA 1974 s176/189

Hello Folks!

The only difference would be whether this was delivered 1st class or 2nd class. And they would have to PROVE 1st class postage.

The problem we have here is there are more options than just 1st Class and 2nd Class when it comes to sending letters via Post.

By that I mean more options for the bankers who all have Accounts with the various 3rd Party Mail Carriers such as TNT and UKMail.

But in terms of Post, the Service that these Carriers all offer is built on top of that provided via Royal Mail. They try to match Royal Mail but at lower cost, by taking over some of the sorting aspects and paying people less! But, no matter what they do, the end leg is not down to them.

Royal Mail, until they are broken up and sold off, is the primary carrier to ensure we keep the Universal Service that we are all so familiar with. That being one where we can all send mail from anywhere within the United Kingdom to anywhere within the United Kingdom, and know it will get to the other end and at low cost.

Right, getting back to my point...

If a banker elects to select the most slug like method of Posting that his limited budget of a few million can stoop to, then he can select a method that could easily take 16 Calendar Days, if not longer, before that letter reaches you.

There is a whole raft of rates and options open to him/her/it, in descending levels of speed and cost. Some are premium and will try to match Royal Mail 1st Class at a lower cost but, even the Premium Services depend on Royal Mail for the Final Leg.

IOW the little Red Royal Mail Van is what always delivers the Mail as part of the Universal Service.

Anything that is not delivered via Royal Mail would be a Carrier Delivery in effect, and not classed as Post.

Even within Royal Mail, they offer many different flavours of 1st and 2nd Class Post, all are equal, but some are more equal than others, and cost more, or less, as the case may be.

Search Google, and you will find Royal Mail performance reports, and these will break down the different classes of Post within the umbrella of 1st Class, 2nd Class and I think they even mention a 3rd Class too.

So, however we look at this, there is a wide range of options available to the bankers, and unless something pins them down, then if we allow them to follow the logic that something is Served when Posted, then it would be entirely possible for them to send you a s87(1) Default Notice that did not actually arrive until after 14 Calendar Days had elapsed, say, if they sent the letter at the extreme end of a series of Public Holidays, such as can happen at Christmas and New Year, depending on the timing of Christmas Eve. The worst case being when Christmas Eve falls on a Friday (24th December).

Thus, the s87(1) Default Notice would be spent before you even saw it, and this, if you followed their logic, would be legal and in keeping with an Act that was created for the protection of Borrowers.

This issue would have been especially critical when only 7 days was required, because it would have been even easier to arrange for the delivery after the 7 days had expired.

If we consider the Christmas/New Year Post scenario, then if Christmas Eve fell on a Friday, then Monday 27th December would be a Public Holiday, as would Monday 3rd January. A s87(1) Default Notice drafted on Friday 24th December could easily be delivered well into January, if a banker was to be creative when selecting the Postal Service most suited to that end result.

Right, with me so far?

OK, the only way to level the playing field, is to inject a hefty dose of Common Sense, and go back to s176 and argue that the act of sending a s87(1) Default Notice via Post, must inevitably trigger s7 of The Interpretation Act 1978, and in turn the 1985 Queens Bench Practice Direction that clarified s7 of that Act to say that anything sent via 1st Class is deemed Served after +2 Working Days from the Date of Posting, and anything sent 2nd Class is deemed Served after +4 Working Days from the Date of Posting.

In one fell swoop, that removes the clutter and confusion, and ensures that no matter what the bankers try, the full 14 days is ensured from the deemed Date of Service which will be on or around the actual Date of Delivery (but very close either way). Plus, that Service does not occur unless Posted via 1st Class or 2nd Class, so this rules out 3rd Class and anything you can prove from a 3rd Party's Terms & Conditions can be regarded as 3rd Class.

Thus, if a banker cannot then prove true 1st Class, then 2nd Class must be assumed perhaps using an Administration of Justice argument, or basic s140 fairness argument.

Thus, if a banker cannot prove either true 1st Class or 2nd Class, then he could be in danger of his claimed act of Posting being deemed void, along with any Notice he claims to have sent.

Likewise, if you can prove receipt in some way, and that can be verified to the satisfaction of a Court, then the Date of Delivery becomes the Date of Service. You can argue that via the "unless the contrary is proved" argument.

The key is the above Act and Practice Direction are effective in ensuring that the Borrower is given the full 14 days that Parliament demands must be given. The onus is also then pushed back to the Creditor where it belongs, to ensure he is very careful when Posting, and must retain appropriate records to verify that he did Post it when claimed, and did use either true 1st Class or 2nd Class Post, and to be on the safe side, he would be well advised to allow a suitable margin for error on top of the 14 days, just in case...

...or he must remove that risk totally, and pay to have the thing delivered by Special or Recorded or Carrier with Tracking and Signature upon Delivery! In that case, then the Signed-for/Recorded Delivery is the Date of Service. You get 14 days from that!

Any other scenario would allow the absurd situation where a s87(1) Default Notice can be legitimately delivered after the 14 days, and the Notice expired before it is even delivered, just because a banker exploited this apparent loophole they are busy trying to create for themselves.

Keep all envelopes Folks, because I suspect this issue will be important once the issue is clarified in either the High Court or Court of Appeal.

Also, get to know your Postman, and if you think a s87(1) Default Notice is heading your way, get him to sign and date all envelopes to verify the Date of Delivery!

I cannot see the Court of Appeal, say, when Brandon gets to Appeal, agreeing that Served when Sent can possibly be valid...can you?

Cheers,
BRW

[Angry Cat]

Re: Interpretation Act s7 v CCA 1974 s176/189

Agree, BRW!

The contract mail companies such as TNT, Business Post, UKMail etc., have contracts with Royal Mail, in order that Royal Mail deliver the envelope/package(s) to the addressee.

I am given to understand, that this contract mail has already been pre-sorted at depots various and is then passed to RM for delivery; I believe the cost is approx. 15p. per letter (2009)

Generally, Royal Mail take at least 4/5 days to deliver contract mail.

Contract mail could not be classed as 2nd class mail or, 3rd class; it is contract class.

I personally have never received a DN by 1st class post or, 2nd class post; all have been delivered by Royal Mail in envelopes bearing the contract mail firms name e.g. UKMail express parcels & mail.
All DN's received arrived after at least 4/5 days, some took longer depending on the time of year.

I kept all envelopes, as evidence for the future.

p.s. default notice are computer generated.