Contracts, Termination, Repudiation and Rescission

[pt2537]

Re: Contracts, Termination, Repudiation and Rescission

perhaps someone should send that judgement to the brandon judge?

Worth noting

Brandons judge was a Crown Judge

Harrisons Judge was a specialist Mercantile court judge who has background in CCA cases, such as conister v hardman if my memory serves me correct

[Angry Cat]

Re: Contracts, Termination, Repudiation and Rescission

Good, im glad,

I hope that it helps many, who have suffered at the hands of various debt collectors, as frankly Link have only themselves to blame here with that judgment

They were unreasonable and pushed our client into a corner.

Had they been reasonable then we would have met them at the table but they chose to close all the doors, so i say tough luck on them

Absolutely, Brilliant!!!

And yes, the judgement will most certainly help many consumers.

About time that Link Financial took a whipping, not fogetting the Delaware Cowboys, of course...:beagle:

PT, 'Link'do not understand the word: reasonable.

[pt2537]

Re: Contracts, Termination, Repudiation and Rescission

perhaps someone should send that judgement to the brandon judge?
------------------------------- merged -------------------------------



the judge was saying that a bad dn can be put right be serving a good one (provided that the defendant is not prejudiced in the meantime)

the creditor here did not correct the bad dn and carried on anyway


the judge also "punished " the creditor in costs for waiting until half way through the case before he complied with s78 and more or less said that this should be complied with before proceedings start

(correct me if i am wrong)

sorry you are wrong

The Judge did not punish them in costs for non compliance,as there is a case authority being Teasdale that says he couldnt

but he was very critical of their conduct

[jumper999]

Re: Contracts, Termination, Repudiation and Rescission

PT I hope you have booked some time off as you have a house full of LB's tonight and instead of counting sheep when you go to sleep you'll be giving out explanations of this judgment LO,

Hope your prepared LOL, well done BTW

[fallenangel]

Re: Contracts, Termination, Repudiation and Rescission

Thanks PT

[New_Age_Biker]

Re: Contracts, Termination, Repudiation and Rescission

It would be safe i think - in response to a LBA to inform the creditor that he has not complied , that his DN and TN are unlawful (they NEVER take any notice of you anyway) and then let him commence proceedings-based on the invalid DN - and then submit a defence and apply for the strike out

at the very least i believe it will discourage the creditor from starting over again unless he is really determined

I suggest it may be better to state you have not received a valid Dn or Tn, this alerts the creditor in a softer manner hopefully he then continues with is action. Let us not forget he can reissue very easily

[jumper999]

Re: Contracts, Termination, Repudiation and Rescission

I can say that some of the comments made by the judge will be very useful in my case to say the least. He has given me a lot to think about and add more weight to my arguments that I have already forwarded in my defence. Especially about the unfairness parts and paragraph 83 is an excellent piece of advice.

Thank you again PT

[buster1967]

Re: Contracts, Termination, Repudiation and Rescission

Can someone please clarify,
if a bad dn means no enforcement action can be taken until rectified, then how does that affect the Brandon case,

If they issued a bad dn, how did the claimant win, as he shouldnt have been able to start enforcement action on the back on a bad DN,

Surely if thats the case Brandon should win his appeal,? obviously theres nothing stopping them re issuing a new compliant DN, and re issuing new proceddings, but how can Brandon loose this appeal if their actions were unlawfull in the first place,?

Doubly confused now.

B x

[Lord_Alcohol]

Re: Contracts, Termination, Repudiation and Rescission

Buster

The claimant was the debtor, not the creditor.

[pt2537]

Re: Contracts, Termination, Repudiation and Rescission

If they issued a bad dn, how did the claimant win, as he shouldnt have been able to start enforcement action on the back on a bad DN,

I assume you mean this in context of the Harrison ruling?

If so, my client was the Claimant, we sued Link not the other way around.

The trouble arises out of the fact that we had to amend the pleadings, as we were seeking an injunction to declare non compliance with s78 and then contrary to the written correspondence the Defendat counterclaimed out of the blue so we had a CMC and agreed to bring all the issues into play and thus amended the pleadings accordingly

[Angry Cat]

Re: Contracts, Termination, Repudiation and Rescission

"Cumulatively and damningly is what I find to be the way that MBNA and the Defendant (Link Financial) went about recovering their debt"

"An inability to comply with section 78 can be no excuse for conduct of which it must be supposed the sole purpose must have been to make the Claimants life so difficult that he would come to heel. I cannot think that in a society that is otherwise so sensitive of a consumer's position this conduct should be countenanced."

Nice to know that HHJ Chambers QC, had the measure of both Link Financial and the Delaware Cowboys!

[Lord_Alcohol]

Re: Contracts, Termination, Repudiation and Rescission

PT

This is truly helpful - many thanks.

Am I right to think there was no issue of enduring contracts because MBNA had failed to send out T&Cs at the outset, so there was no enforceable agreement?

I guess this might be about right as the judge makes the comment that enforcement cannot happen where a DN is bad but that the DN can be rectified. Had there been an actual agreement that was enforceable, then would the court have told Link to just produce a new one?

Sorry PT, am worried that my untrained eye is missing the key points...

[Angry Cat]

Re: Contracts, Termination, Repudiation and Rescission

Link, were not "the creditor" at the time that the ineffective DN was served!

[Angry Cat]

Re: Contracts, Termination, Repudiation and Rescission

Okay, I have read the judgement once and will read again.

I found the claimants retention of documents most interesting;
it is something that I have always done.

And yes, I keep everything letters, docs. flyers and envelopes.

Nice to know that there are others like me; homes full of lever arch files and archive boxes.

[buster1967]

Re: Contracts, Termination, Repudiation and Rescission

I assume you mean this in context of the Harrison ruling?

If so, my client was the Claimant, we sued Link not the other way around.

The trouble arises out of the fact that we had to amend the pleadings, as we were seeking an injunction to declare non compliance with s78 and then contrary to the written correspondence the Defendat counterclaimed out of the blue so we had a CMC and agreed to bring all the issues into play and thus amended the pleadings accordingly

Sorry guys I mean in the Brandon DN case,
They issued a DN that didnt allow enough days after service, but the judge ruled that as they never took enforcement action till way after 14 days the it was ok,?
Thats the bit im confused about,

If the creditor was not lawfully entitled to start the action in the first place without a a valid dn, how can Brandon loose at appeal? surely they will have to re issue a new DN and start again,? shouldnt really mattter what happened after the dn was issued, the fact it was an invalid DN should win hands down shouldnt it?

B x