WON !! Richard Durkin v HFC / PC World supreme court judgment 26/03/14

[pt2537]

Re: WON !! Richard Durkin v HFC / PC World supreme court judgment 26/03/14

I am sure you know better than this PT, section 89 does not say that the account should be treated as never having been in default, it just means that as far as the notice is concerned.

also I am sure you know that the section 87 notice has nothing to do with the notice of default on a CRA record.

Indeed i agree, but im troubled by the fact that to place a Default on a credit file lasts for 6 years, yet a default can be placed when a default notice is issued.

If the Default is remedied, then the breach never occured according to 89, yet the credit file can still record the default.

It seems the supreme Court was suggesting that with defaults more care ought to be taken before recording them.

There have been a few judgments where the senior Courts have said creditors should not do X but instead should resort to testing their rights in Court, hopefully the Court of Appeal will give more guidance on this when we get a hearing

[Lord_Alcohol]

Re: WON !! Richard Durkin v HFC / PC World supreme court judgment 26/03/14

I am sure you know better than this PT, section 89 does not say that the account should be treated as never having been in default, it just means that as far as the notice is concerned.

also I am sure you know that the section 87 notice has nothing to do with the notice of default on a CRA record.

Isn't the issue that the notice of intent to file the default (in accordance with the lending code and the ICO guidance) is contained within the s.87 notice, and that the s.87 notice says that the default will be recorded if the notice isn't satisfied? In other words, the default won't be recorded if the notice is satisfied.

But then the bank records the default anyway, or has already recorded it on service of the notice.

Not sure what my point is, but the two things are related and I doubt a default would be considered an accurate depiction of account management if the debtor remedied the problem within the timescale given by the creditor.

[pt2537]

Re: Richard Durkin v HFC / PC World supreme court hearing 28th January 2014

I think the agreement would become void after it had been rescinded, agreements are "voidable" see section 57 59 of the act.

no, because that would need the agreement to be void from the beginning and plainly it isnt. Google void ab initio

Re: WON !! Richard Durkin v HFC / PC World supreme court judgment 26/03/14

and of course theres the issue of defaults which are remedied too. It is the practice of the banks to default and leave that for 6 years, irrespective if the default is remedied . One merely need look at s89 CCA 1974 for this point, the default if remedied in the period of the default notice in law never happened. So should you have a default for 6 years?

I am sure you know better than this PT, section 89 does not say that the account should be treated as never having been in default, it just means that as far as the notice is concerned.

also I am sure you know that the section 87 notice has nothing to do with the notice of default on a CRA record.

Re: Richard Durkin v HFC / PC World supreme court hearing 28th January 2014

A "void" contract never has legal effect, it can never be enforced.

A void contract cant be rescinded cos it never has effect in the first place as i understand it ( and according to Chitty on Contract )

I think the agreement would become void after it had been rescinded, agreements are "voidable" see section 57 59 of the act.

[meellis]

Re: WON !! Richard Durkin v HFC / PC World supreme court judgment 26/03/14

In reference to PT's post 365 I will put this out there to deliberate on. When I was made bankrupt in 2010 I was automatically discharged in 2011. All of my defaults were removed from my credit score apart from alliance and Leicester who are saying they are leaving it there for 6 years. The bankruptcy and dealings with the insolvency estate were supposed to be the remedy from which I am supposed to rebuild from. Which of my former creditors are right the ones who have removed the default or the one who hasn't? I am a fair and just man so I would feel bad if people were unaware of my status but then again I cannot even start to re-build my credit rating until the A&L remove their default so bankruptcy hasn't been a remedy thus far.

Re: WON !! Richard Durkin v HFC / PC World supreme court judgment 26/03/14

HI
The quotes were superseded of course by the lords judgment in 2003 which stated that the creditor did not loose "peaceful enjoyment" because he was still entitled to possession, he was just not entitled to enforce an agreement to reclaim.

http://www.publications.parliament.u...710/will-2.htm

36. In the present case the essence of the complaint is that section 127(3) of the Consumer Credit Act has the effect that a regulated agreement is not enforceable unless a document containing all the prescribed terms is signed by the debtor. In my view, thus framed, the complaint does not bring article 6(1) into play. In terms of labels, that is a restriction on the scope of the rights a creditor acquires under a regulated agreement. It does not bar access to court to decide whether the case is caught by the restriction. It does bar a court from exercising any discretion over whether to make an enforcement order. But in taking that power away from a court the legislature was not encroaching on territory which ought properly to be the province of the courts in a democratic society.
37. In reaching the opposite conclusion the Court of Appeal focused on the exclusion of any meaningful consideration by the court of the creditor's rights under the agreement in a case where the document signed by the debtor does not include all the prescribed terms. The court held that the exclusion of any judicial remedy in such a case engages article 6(1): [2002] QB 74, 92-93, paras 31, 32. I am unable to agree. The inability of the court to make an enforcement order in such a case, whatever the circumstances, is a limitation on the substantive scope of a creditor's rights. It no more offends the rule of law and the separation of powers than would be the case if Parliament had said that such an agreement is void.

Also I think the ICO would say that the information on the credit file would have to represent a factual record of the payment history, if the account had entered the default condition it would have to be recorded.

[pt2537]

Re: Richard Durkin v HFC / PC World supreme court hearing 28th January 2014

I agree with the above, an unenforceable agreement isn't void but I suspect one that's been rescinded is.

A "void" contract never has legal effect, it can never be enforced.

A void contract cant be rescinded cos it never has effect in the first place as i understand it ( and according to Chitty on Contract )

[pt2537]

Re: WON !! Richard Durkin v HFC / PC World supreme court judgment 26/03/14

oh and for completeness

1. The parameters of the case
   
2. Before setting out the issues with which the case is concerned, I should make clear the parameters of the case and this judgment and, specifically, the matters which this judgment is not dealing with.

and

In other words, this is a case of temporary or redeemable unenforceability, concerned only with section 77 of the Act. In that respect it differs from two other factual scenarios where unenforceability can be said to be permanent or irredeemable^[1]: (i) where the agreement is improperly executed, so that by virtue of section 65(1) of the Act, the agreement is only enforceable on an order of the court and, in the exercise of its discretion under section 127(1) the court declines to make an enforcement order and (ii) the case again under section 65(1) where section 61(1) (a) has not been complied with and by virtue of section 127(3), the court has no power to make an enforcement order (and the similar provision under section 127(4) where section 64 has not been complied with). Sections 127(3) and (4) were repealed by the Consumer Credit Act 2006, but only prospectively in respect of agreements made after 6 April 2007.

Now the Court in McGuffick was concerned only with a situation where the agreement was unenforceable while a breach continued.

[pt2537]

Re: WON !! Richard Durkin v HFC / PC World supreme court judgment 26/03/14

and of course theres the issue of defaults which are remedied too. It is the practice of the banks to default and leave that for 6 years, irrespective if the default is remedied . One merely need look at s89 CCA 1974 for this point, the default if remedied in the period of the default notice in law never happened. So should you have a default for 6 years?

[pt2537]

Re: WON !! Richard Durkin v HFC / PC World supreme court judgment 26/03/14

Could some kind soul explain the costs issue?

Richard won his case but his barrister is asking the court that the losing side pay its own costs? I thought that the losing side had to pay everyone's costs (their own and Richard's, in this case).

Costs dont automatically follow the event any more. See the case of PGF II as a prime example of that in action. PGF won but had to pay the costs.

[pt2537]

Re: WON !! Richard Durkin v HFC / PC World supreme court judgment 26/03/14

Ok, just throwing this out there

3 All ER 229]So, in the present case, the creditor had no relevant 'possessions' to the peaceful enjoyment of which it was entitled, or of which it was deprived by s 127(3) of the 1974 Act. In effect, the creditor--by failing to ensure that he obtained a document signed by the debtor which contained all the prescribed terms--must (in the light of the provisions in ss 65(1) and 127(3) of the 1974 Act) be taken to have made a voluntary disposition, or gift, of the loan moneys to the debtor. The creditor had chosen to part with the moneys in circumstances in which it was never entitled to have them repaid; so there is nothing to engage the rights guaranteed by art 1 of the First Protocol.

and

The real difficulty, as it seems to me, is that to treat Mrs Dimond as having been unjustly enriched would beinconsistent with the purpose of s 65(1). Parliament intended that if a consumer credit agreement was improperly executed, then subject to the enforcement powers of the court, 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

Now then, If the credit agreement is unenforceable, not void or voidable, then the two decisions above clearly say that the debtor doesnt have to pay. The creditor is never entitled to be repaid. I dont think any one can read the above and say actually even thought its unenforceable you do have to pay.

You need to look beyond s78 unenforceability though, as i know other forums seem to think the s78 breach is the same as s61 but clearly it isnt.

So, if a credit agreement is unenforceable forever and ever, and the Court of Appeal and House of Lords say the debtor doesnt have to pay, and the debtor goes to Court and gets a declartion the agreement is unenforceable, should the creditor be able to place a default if the debtor succeeds in Court and gets an order that he doesnt have to pay?

Seems somewhat perverse if the bank after all that can still default the debtor

[Lord_Alcohol]

Re: WON !! Richard Durkin v HFC / PC World supreme court judgment 26/03/14

This may sound like a silly question, but with this judgment does it make it so the bank has to offer a financial payment when it admits fault in registering a default on someones credit file?

I hope it does, that would definately be a kick in their teeth.

It should, shouldn't it? Although knowing the banks they will wait until the claim process is underway and you're on the steps of the courtroom before they cough up.

I wonder where the ICO is on this? Surely it should now be preparing a statement in response, to give to lenders, telling them to compensate where it is shown they have breached their duty of care.

[patrick]

Re: WON !! Richard Durkin v HFC / PC World supreme court judgment 26/03/14

This may sound like a silly question, but with this judgment does it make it so the bank has to offer a financial payment when it admits fault in registering a default on someones credit file?

I hope it does, that would definately be a kick in their teeth.

[Ihaterbs]

Re: Richard Durkin v HFC / PC World supreme court hearing 28th January 2014

I think that care should be given regarding the statement the the creditor should have checked the "enforceability" of the agreement before entering the Default.

On the face of it this seems to contradict Mc Guffic and other established case law which says that reporting to the CRA is not enforcement.

It must be remembered that this case is talking about enforcement via way of the rescission of the agreement, not via the requirements of section 127 and the restriction of the ability to issue an enforcement order.

I agree with the above, an unenforceable agreement isn't void but I suspect one that's been rescinded is.