State of Play with the CCA

[Amethyst]

- in firms favour

Slater v Egg
Carey v HSBC
Amex v Brandon
Amex v Duffy
Kneale v Barclaycard
Blackhorse v Speak
SPML v Walker
Brooks v Northern Rock
Sternlight and Others v Various banks
Napier v HFC
Teasdale v HSBC
Brophy v HFC
Shaw v Nine Regions
Armstrong v Amex
Heath v SPML
McGuffick v RBS
Blackhorse v Hanson

Countycourt/forums
ccman v cabot (goldfish)
arrow global v bobbydog
wycome v restons (mbna)
hunni2006 v cabot
Debenhams v Zhanzibhar
??? v Costa (going to appeal)


- in consumers favour

Durkin v DSG Retail
Crutchely v Godebt
Yates v Nemo (PPI)
Woollerton v Blackhorse (PPI)
MBNA v Thouris (PPI)
Link financial v xxxx (PPI mistated credit)


countycourt/forum
MBNA v McCullagh
Arrow Global v Devlin
HFC Bank Limited v Mrs H
Phoenix Recoveries v Dr C
Cabot Financial UK Limited v Mr and Mrs P
DLC / Hillsden v Mr L

[mercury-the-messenger]

Re: State of Play with the CCA

Re:---- McGuffick v Royal Bank of Scotland plc

[2009]

EWHC 2386 (Comm), 6 October 2009

and the interpretation of Guildhall chambers (a law firm) in their Newsletter

COMMERCIAL NEWS SPRING 2010

quote "What does amount to enforcing the agreement, then? The answer is narrow:
obtaining a court order, or seeking to enforce it (for instance by way of a
charging order).
Mr McGuffick, as well as the OFT in its guidance on s.77, had got it wrong.
The decision may have surprised some consumer advisors, but it followed
from the various concessions made by the debtor. Once it is understood
why those concessions were rightly made – that steps merely preparatory
to enforcement were not enforcement – the weakness of Mr McGuffick’s
case is obvious. The Court of Appeal dismissed Mr McGuffick’s application for

permission to appeal on 16th February 2010."

the above is not our opinion but that of "Guildhall Chambers"

Remember this was S77 (loan) and not S78 (credit card) but can anyone see an own goal here ?

[dad]

Re: State of Play with the CCA

Re:---- McGuffick v Royal Bank of Scotland plc
[2009]

EWHC 2386 (Comm), 6 October 2009

and the interpretation of Guildhall chambers (a law firm) in their Newsletter

COMMERCIAL NEWS SPRING 2010

quote "What does amount to enforcing the agreement, then? The answer is narrow:
obtaining a court order, or seeking to enforce it (for instance by way of a
charging order).
Mr McGuffick, as well as the OFT in its guidance on s.77, had got it wrong.
The decision may have surprised some consumer advisors, but it followed
from the various concessions made by the debtor. Once it is understood
why those concessions were rightly made – that steps merely preparatory
to enforcement were not enforcement – the weakness of Mr McGuffick’s
case is obvious. The Court of Appeal dismissed Mr McGuffick’s application for

permission to appeal on 16th February 2010."

the above is not our opinion but that of "Guildhall Chambers"

Remember this was S77 (loan) and not S78 (credit card) but can anyone see an own goal here ?

Unfortunately Mr Justice Flaux (AKA The Banker's Judge) completely ignored the House of Lords earlier, and binding on him, ruling on what unenforceable means:

"When the governing statute enacts that no loan which fails to satisfy any of [its] requirements is to be enforceable it must be taken to mean what it says, that no court of law is to recognise the lender as having a right at law to get his money back."

'Orakpo v Manson Investments Ltd. House of Lords [1977] 3 W.L.R. 229 [1978] A.C. 95'

Lord Edmund Davies at *116

Pretty unequivocal.

It is only a matter of time before McGuffick is overturned. What is disappointing is that no one in the legal profession has pointed out Flaux's glaring error.

particularly:

The decision may have surprised some consumer advisors, but it followed from the various concessions made by the debtor

HTH

Dad

[Guest]

Re: State of Play with the CCA

Nope sory you ar wrong.

Faux quite rightly stated that the enforcement process commences in court.This is where the issue of "if the creditor gets his money back" is decided",Not during the proceedings leading upto the courtroom.

The first statement you quote is siubstantiated by the second, not contradicted by it.

You will be waiting a long time to see it overturned i am affaid.

regards
Peter

[basa48]

Re: State of Play with the CCA

Nope sory you ar wrong.

Faux quite rightly stated that the enforcement process commences in court.This is where the issue of "if the creditor gets his money back" is decided",Not during the proceedings leading upto the courtroom.

The first statement you quote is siubstantiated by the second, not contradicted by it.

You will be waiting a long time to see it overturned i am affaid.

regards
Peter

I agree Peter (for once !!).

It is clear that enforcement can only be through actual court action. Whether that action proves to be successful is set out in the second statement.

[dad]

Re: State of Play with the CCA

@Basa,

Could you just clarify why, other than McGuffick, it is clear that enforcement is only by Court action please.

This is what the headnote in Kasumu actually says:

The words of deprivation in section 19 (4), "not be entitled to enforce any claim in respect of any
transaction" were very widely drawn and were not to be confined to the assertion of rights

by means of or in the course of legal proceedings. The performance of such acts in the law
as the exercise of a right of sale over property mortgaged or charged or the retention or taking

possession of such property in assertion of the claim to repayment, was also precluded.

I have specific caselaw approved by the HoL subsequently in 'Orkapo v Manson Investments', which bound Flaux, to support my argument. So it is not clear to me that I am wrong.

If there is something more than 'flaux is right' please let me know.

Dad

[Guest]

Re: State of Play with the CCA

HI

Mcgufic was a high course case, there is no need of further authority, every case and encounter since then has accepted that this is the case, however If you have subsequent higher ranking case law that contradicts this i for one would like to see it, i cannot find the one you quoted could you provide a link.

Peter

[Guest]

Re: State of Play with the CCA

Hi Again

Whilst we are waiting another thought occured to me.
This case you mentioned. Was it a consumer credit agreement? You see the judge in McG gave a ruling in a case concerning the consumer credit act 1974 and defined a term used within it, i am not sure that a precident set in another aspect of civil litigation or under a differnt statute or common law would be relevant.

I have never seen this happen in any of the many cases i have looked at, sometimes the judge will use a peice of associated legislation as guidance when arriving at a decision but never as authority.

Peter

[labman]

Re: State of Play with the CCA

I think this may be what is being referred to, but the above places the quotation totally out of context, as it was in a case about Equitable Set-Off provision via alternative securities, so I agree with Peter. By the way the full title is Orakpo (Respondent) v Manson Investments Ltd. [1978] A.C. 95:


Lord Hoffmann, citing Orakpo v Manson Investments Ltd, said [2000] 2 WLR 1121, 1131: "Parliament intended that if a consumer credit agreement was improperly executed, then . . . the debtor should not have to pay. This meant that Parliament contemplated that he might be enriched and I do not see how it is open to the court to say that this consequence is unjust and should be reversed by a remedy at common law".

Orakpo v Manson Investments Ltd was heard in 1978.

[Guest]

Re: State of Play with the CCA

HI

Yes then of course in Wilson the house of lords ruled that the act should not deprive the creditor of "peaceful enjoyment of his possetions," in other words unenforceable does not mean that the debtor is freed from the liabiltiy to pay, it just means that the agreement cannot be enforced in law.

Peter

[basa48]

Re: State of Play with the CCA

HI

Yes then of course in Wilson the house of lords ruled that the act should not deprive the creditor of "peaceful enjoyment of his possetions," in other words unenforceable does not mean that the debtor is freed from the liabiltiy to pay, it just means that the agreement cannot be enforced in law.

Peter

No he just sends round 'Arry the Enforcer with his baseball bat !!!!!! j/k

[ODC]

Re: State of Play with the CCA

Just looking over where the firms won its mostly Big Banks and Large compaies. Whereas where the customer won it usually against the scum that are DCAs

[dad]

Re: State of Play with the CCA

Peter,

As with many of the decisions in favour of the consumer the judgemnts are only available in copyright form. However here is a summary of the decisions which bound Mr Justice Flaux:

1. High Court: Cohen v J Lester Ltd [1939] 1 K.B. 504 (Moneylenders Act 1927)

Keeping jewellery until the consumer had paid the amount due under an unenforceable contract was enforcement of the contract. Moneylender ordered to return jewellery without payment.

2. Privy Council: Kasumu v Baba-Egbe [1956] A.C. 539; [1956] 3 W.L.R. 575; [1956] 3 All E.R. 266 (Nigerian Moneylenders ordinance. Same format as Moneylenders Act 1927)

When a statute enacts that no loan which fails to satisfy any of [its] requirements is to be enforceable it must be taken to mean what it says, that no court of law is to recognise the
lender as having a right at law to get his money back. That is part of the penalty which the statute imposes. There is no room to reform the terms of the loan, since the statute is not concerned with the vice of its content but with the vice of the conditions under which it was
made. If a court were to impose terms of repayment as a condition of making any order for relief it would be expressing a policy of its own in regard to such transactions which is in direct conflict with the policy of the Acts themselves. If the courts impose upon themselves the obligation of protecting the lender while the Act protects the borrower they may find themselves in the difficulty that they are in effect reversing the Act of Parliament in their endeavour to achieve a truly equitable solution.

3. House of Lords: Orakpo (Respondent) v Manson Investments Ltd. (Appellants) [1978] A.C. 95 (Moneylenders Act 1927)

The Moneylenders Acts 1900 to 1927 are so different from those of section 4 of the Infants Relief Act 1874 that I do not think that a decision given without benefit of argument in a case decided under the latter statute can be applied by analogy in the instant case or should have been so applied in the Congresbury Motors case [1971] Ch. 81.

While that is sufficient for the disposal of the appeal, it is desirable that I should consider also the provisions of section 13 (1) of the Act of 1927. The wording of the operative part of that enactment is different in certain respects from that of section 6 (1). The latter provides that no contract for the repayment by a borrower of money lent to him and no security given by the borrower in respect of any such contract shall be enforceable, unless the requisite conditions are satisfied. The former provides that no proceedings shall lie for the recovery by a moneylender of any money lent by him or for the enforcement of any security taken in respect of any loan, unless commenced within the appropriate time. I am of opinion, however, that no particular significance is to be attached to this difference of wording. I do not consider that, in this context, any material distinction can be drawn between, on the one hand, the enforcement of a contract for the repayment of money lent and, on the other hand, the recovery of money lent.

The decision in Orakpo was approved by the HoL in relation to the CCA 74 in both Dimond v Lovell and Wilson.

HTH

Dad

[Guest]

Re: State of Play with the CCA

HI

All of the above are cosidered in Wilson http://uk.search.yahoo.com/r/_ylt=A7...710/will-1.htm

Many of the apects that you mention are available in the Consumer credit act, the invalidity of an security on a unenforceable agreement for insatnce.
The issue here was if section 127 deprived the creditor of the rights to his property, and if it did would this be a contrevention of his human rights under article 6.
It was decided that it did not because the rights to the money was not removed just the ability to enforce the rights via satute.

Peter

[Guest]

Re: State of Play with the CCA

HI Dad

Just trying to get a handle o your argument . I think what you are saying i that because "enforcement " is aplied by creditors when they sieze securities under tems of a contract then this disproves the comment in Mc g and Faux, that enforcemt commences in the court.

This has been discussed, and i thnk it is mentioned in Wilson also somewhere. The difference is that it is a defferent kind of enforcement, one is enforcement of a term of the contract the other is enforcement to recover sums due under a contract(post repudiatory breach and termination), the later an only be done in court.

For instance a consumer contract may say that he must deposit £5 amonth in his account or it wil be terminated, this is enforcement of a contractural term.

Wilson also says thet securieties cannot be inforced on an unenforceable contract, this is echoed in section 113 of the act. The reason for this given in Wilson is, if the agreement was never correctly executed the security was never assigned to the creditor any way so should never have been in his possetion.

Peter