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

[Lord_Alcohol]

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).

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

I think that it has to be remembered that the term "enforcement" has a very specific meaning within the CCA, and should not be confused with the general use of the word.

Re defining "enforcement" in terms of the CCA would not be practical, to much case law under the bridge and to much guidance issued.

[Lord_Alcohol]

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

Thi is what he ICO say about genuine disputed defaults on agreements. So disputed agreement defaults breach the DPA in any event.
Sparkie
"If we conclude that there is a genuine, reasonable and unresolved dispute between the borrower and lender, then we are likely to find that personal data have been processed unfairly if a default has been filed. Defaults filed in these circumstances may also be inadequate for the purpose of credit referencing in that they do not provide meaningful information about the creditworthiness of the customer".

I used to think this too, until I realised that banks won't accept that there is a dispute !! Or, rather, you are disputing what has happened but they are not, so there is no dispute (according to them). I have an old letter from Egg that says, "we do not accept that there is a dispute...".

So as far as the banks are concerned, it takes both parties to dispute something before there is a dispute. Unless the bank disputes something you've done, then the above doesn't apply.

Bloody criminals, the lot of them.

[pt2537]

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

''Andrew Smith QC, who represented the married father of two in court, indicated the ruling would make it much harder for banks and other financial firms to report people to credit reference agencies, leading to them being blacklisted for credit. He said the judgment meant that where a consumer disputes that he or she defaulted on a loan or credit agreement, the bank or firm cannot put a default notice on their credit file until the matter has been resolved.

"It's victory, but they didn't have jurisdiction to help me in the end, which is disappointing," Durkin told the Guardian immediately after the judgment. "But I'm pleased for the consumer. A lot of people will benefit from this – it's massive."

Had Durkin lost, he would almost certainly have faced bankruptcy, as he could have been hit with a legal bill for an estimated £300,000, on top of his own £250,000 legal bill.

His legal team is now likely to argue that HFC Bank, a division of HSBC, and PC World – the other party in the case – should pay their own costs, plus at least some of Durkin's''

http://www.theguardian.com/money/201...-hsbc-pc-world

Indeed, im working with Andrew at the minute

The issue of Defaults and what constitutes enforcement will be a hot potato for a while, however there is a case in the Court of Appeal which will we hope hit directly on McGuffick .

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

Thi is what he ICO say about genuine disputed defaults on agreements. So disputed agreement defaults breach the DPA in any event.
Sparkie
"If we conclude that there is a genuine, reasonable and unresolved dispute between the borrower and lender, then we are likely to find that personal data have been processed unfairly if a default has been filed. Defaults filed in these circumstances may also be inadequate for the purpose of credit referencing in that they do not provide meaningful information about the creditworthiness of the customer".

Yes of course.

TBH I see very little in the judgment which addresses the issue of miss-applied notices.

[Sparkie1723]

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

Thi is what he ICO say about genuine disputed defaults on agreements. So disputed agreement defaults breach the DPA in any event.
Sparkie
"If we conclude that there is a genuine, reasonable and unresolved dispute between the borrower and lender, then we are likely to find that personal data have been processed unfairly if a default has been filed. Defaults filed in these circumstances may also be inadequate for the purpose of credit referencing in that they do not provide meaningful information about the creditworthiness of the customer".

[Amethyst]

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

Meanwhile, Smith said he had already received instructions from about 20 people who wished to follow Durkin's example in taking legal action on the grounds that they had suffered as a result of defaults being wrongly put on their files.

He said: "There may be many people who have in the past been wrongly listed as being in default who potentially have rights to litigate now."

Roll on the CMCs (ooooo so cynical)


anyway

He said the judgment meant that where a consumer disputes that he or she defaulted on a loan or credit agreement, the bank or firm cannot put a default notice on their credit file until the matter has been resolved.

Good. As it should be if the dispute is genuine and enquiries are made quickly.


I hope the Hitachi / B & Q hearing person comes back on today.

[EXC]

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

''Andrew Smith QC, who represented the married father of two in court, indicated the ruling would make it much harder for banks and other financial firms to report people to credit reference agencies, leading to them being blacklisted for credit. He said the judgment meant that where a consumer disputes that he or she defaulted on a loan or credit agreement, the bank or firm cannot put a default notice on their credit file until the matter has been resolved.

"It's victory, but they didn't have jurisdiction to help me in the end, which is disappointing," Durkin told the Guardian immediately after the judgment. "But I'm pleased for the consumer. A lot of people will benefit from this – it's massive."

Had Durkin lost, he would almost certainly have faced bankruptcy, as he could have been hit with a legal bill for an estimated £300,000, on top of his own £250,000 legal bill.

His legal team is now likely to argue that HFC Bank, a division of HSBC, and PC World – the other party in the case – should pay their own costs, plus at least some of Durkin's''

http://www.theguardian.com/money/201...-hsbc-pc-world

[Amethyst]

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

Press stories are skimming the issue really. http://www.mirror.co.uk/news/uk-news...-world-3287030

Re: Durkin v DSG Retail Ltd & Anor [2014] UKSC 21 (26 March 2014)

Is this likely to have an effect on credit agreemnts wrongly rescinded by a creditor via an invalid default notice?

No sadly not.

[ncf355]

Re: Durkin v DSG Retail Ltd & Anor [2014] UKSC 21 (26 March 2014)

Is this likely to have an effect on credit agreemnts wrongly rescinded by a creditor via an invalid default notice?

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

I think that what is being said is that whilst two separate contracts exist, (the sale and the credit), as far as the act is concerned there is one agreement, section 11b says that the finance is for restricted use , so it cannot be used for anything other than the one transaction. You cannot rescind one without rescinding the other.

[Amethyst]

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

11. Restricted-use credit and unrestricted-use credit.

12. Debtor-creditor supplier agreements.

Just for ease of reference.

26. .............. In my view, in order to reflect that reality, the law implies a term into such a credit agreement that it is conditional upon the survival of the supply agreement. The debtor on rejecting the goods and thereby rescinding the supply agreement for breach of contract may also rescind the credit agreement by invoking this condition. As the debtor has no right to retain or use for other purposes funds lent for the specific transaction, the creditor also may rescind the credit agreement. It appears to me that similar reasoning would apply to a section 12(c) agreement where the credit agreement tied the loan to a particular transaction.

27. I am satisfied therefore that Mr Durkin was entitled to rescind the credit agreement.

Still doesn't give a definitive answer, the 'debtor' has the RIGHT to rescind the agreement but doesn't say whether it is the DEBTOR who must cancel direct with creditor or if cancelling sales agreement is enough to automatically cancel credit agreement - ie. is it responsibility of 'supplier' to cancel the credit or the responsibility of the 'debtor'.???


In Durkin's case he DID contact the creditor by telephone, as well as the 'supplier' in writing ..... had he have done neither would the out come have differed ?

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

For me it's the very last bit that sums it up ie ''that it is conditional upon the survival of the supply agreement'' so the 'may' isn't really a choice.

I agree, the implied provision is part of section 11 and 12 of the act.

Good to see that the court has used an argument which as far as I can see was not presented in order for a sensible judgement to be made.

[EXC]

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

''The rescission of the supply agreement excuses the innocent party from further performance of any obligations he has under it.'' - makes perfect sense.


It's the may also bit I'm struggling with EXC. Is it May as in - the debtor has the right at that point to cancel the credit agreement - or May as in - when the supply agreement is cancelled it has the affect of cancelling the credit agreement.

Probably way over complicating things, but that's the bit we need a definitive answer on.

For me it's the very last bit that sums it up ie ''that it is conditional upon the survival of the supply agreement'' so the 'may' isn't really a choice.