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

[Guest]

Re: Richard Durkin supreme court help needed

@Dad

Yes i must admit my first reaction when i heard about the circumstances of the case was that it would be a pre-contractual breach.

Thinking along similar lines, my thoughts were that the credit agreement could be cancelled under section 57-69, i think one of the case transcripts mentions a similar idea.

Section 57 speaks of making an agreement, i remember reading in one of Goods books that there is a difference between an agreement being executed and it being made, in that the agreement is made when some action is taken on it(something like that).
If an agreement has not been made then the debtor can withdraw and the agreement is cancelled as if it were section69( even if it had been executed).

The creditor could not or should not have done anything on the agreement before the sale was confirmed, so section 57 should apply.

To be honest i quite agree with the definition of the appeal court to section 75 I don,t think it is about rescission.

The problem is now of course rectified because the EU directive introduced an across the board cancellation period of 14 days for credit agreements.


D

[Sparkie1723]

Re: Richard Durkin supreme court help needed

I think the Sale of Goods Act applies here in that the goods purchased were not upto the specfications the buyer bought the goods as per.....it did not contain the modem he was initially sold it as being contained in the lap top.......or was led to believe it did ............if the seller was unsure as it appears to be the case .........then the seller should not have sold it until he was sure it did or did not.It was therefore missold IMO

Just more of my ramblings bearing in mind I'm a senile old git.I've been wrong before and will be again in lots of instances

Sparkie

[Guest]

Re: Richard Durkin supreme court help needed

I think the Sale of Goods Act applies here in that the goods purchased were not upto the specfications the buyer bought the goods as per.....it did not contain the modem he was initially sold it as being contained in the lap top.......or was led to believe it did ............if the seller was unsure as it appears to be the case .........then the seller should not have sold it until he was sure it did or did not.It was therefore missold IMO

Just more of my ramblings bearing in mind I'm a senile old git.I've been wrong before and will be again in lots of instances

Sparkie

HI Sparkie yes as you say section 15 i think, fit for purpose.

I am not sure but i think that this is now acknowledged, the problem is linking that to the credit agreement, i know it seems insane that someone should have to pay for goods he does not have, but that seems to be the situation here.

D
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[Sparkie1723]

Re: Richard Durkin supreme court help needed

HI Sparkier yes as you say section15 i think, fit for purpose.

I am not sure but i think that this is now acknowledged, the problem is linking that to the credit agreement, i know it seems insane that someone should have to pay for goods he does not have, but that seems to be the situation here.

D
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I think this could be helpful to Richard and his team if they have not thought of it
Scedule 4.3b .of the CCA covers this.

When goods are bought....the CCA says in this section
"there is an implied condition that the goods supplied under the contract are reasonably fit for that purpose" ....its clear the laptop wasnt fit for the puropse he bought it for.
(Old mans ramblings)

THe Following also may be of help to folks in the future



What Constitutes a Loan Contract
This is taken from Goode on what a loan contract is
Nature of a loan contract
[11.71]
A loan contract is an agreement by which one party, L, for the purpose of giving financial accommodation to another party, B, pays money to B or to a third party at B's request upon the terms, express or implied, that B is to repay the sum in question with any stipulated interest.
A transaction is not a loan transaction unless the payment by L is made with a view to giving B financial accommodation. The mere fact that, in pursuance of an entirely different transaction, L lays out money on behalf of B which is to be recouped to him later does not make L's outlay a loan if the purpose was not to provide financial assistance.
So a solicitor who, as a matter of convenience, disburses moneys on behalf of his client (eg in payment of court fees, stamp duty or land registry fees) does not in so doing lend money to the client3; nor does a company lend money to one of its directors merely because it pays accounts on his behalf and debits the amount to a drawings account to which his fees as director will later be credited4. In such a case 'it would in fact be as inapt to say that the company paid him sums by way of loan when he was in debit on the account as to say that he paid the company sums by way of loan when he was in credit'5. Similarly, an arrangement between an investor and his broker by which the latter buys and sells stock for his client, accounting to him periodically, does not give rise to loans by one party to the other, according as the account is in debit or credit, for the payment arrangement is purely a matter of accounting convenience and is not intended as financial accommodation6. As we shallsee7, this point is very material in considering what constitutes an agreement for the provisions of credit for the purpose of the CCA 1974.

[pt2537]

Re: Richard Durkin supreme court help needed

Correct about the SOGA Sparkie mate, it doesnt include the word reasonably though, it must be fit for the purpose it is designed for. And in contract law a breach of a condition would allow the innocent party to treat the contract as at an end.

[Rico]

Re: Richard Durkin supreme court help needed

HI Richard

Can you tell us what the submission will be based around. Will it be about the interpretation of section 75 or the antecedent compliance(section55) issues.

D

I understand that it will be based primarily on the latter but while it's in the Supreme Court, Section 75 should be straightened out.

Something very fishy happened in Edinburgh.

[Guest]

Re: Richard Durkin supreme court help needed

Correct about the SOGA Sparkie mate, it doesnt include the word reasonably though, it must be fit for the purpose it is designed for. And in contract law a breach of a condition would allow the innocent party to treat the contract as at an end.

Yes the appeal accepted that the sale agreement was cancelled, what it didn't accept was that it triggered the cancellation of the credit agreement.

D

[Guest]

Re: Richard Durkin supreme court help needed

HI
I think this is the most telling part of the appeal judgment


[63] The Sheriff held the appellant validly rescinded his contract of sale with the first respondents on 29 December 1998 and his finding to that effect was not challenged before this court. However, for the reasons we have given, it was not open to the appellant to rescind the credit agreement, by invoking the provisions of section 75(1) of the 1974 Act. No other basis for rescinding the credit agreement has been advanced on behalf of the appellant.

In other words the court could only make its decision on the pleadings of the case, the section 75 point.

In my opinion the pleadings surrounding the 75 point and the widely criticized precedent that supported it , was misguided, it forced(or allowed) the court to make a decision on the narrow points presented.

Hopeful the new presentation will be more wide ranging.

D

[Guest]

Re: Richard Durkin supreme court help needed

@DaveyB,

You raise a valid point.

In answer to your question, the issue of notice is expressly dealt with in s102 of the CCA:



Telling PC world was by statute telling HFC. Separately it could be argued that all the discussions were 'antecedant negotiations" and s57 applies.

Dad

Unfortunately the court decided that these were two separate agreements and rescinding the sale did not give the buyer the right to rescind the credit, they dispute that this was a d-c-s agreement, this is the definition that the court accepted.

[42] Before this court it was argued on behalf of the second respondents that United Dominions Trust Ltd vTaylor had been wrongly decided. The Sheriff Principal had laboured under fundamental misapprehensions as to the meaning and effect of two key expressions found in the 1974 Act. First, the Sheriff Principal had failed to notice that the statutory expression "linked transaction", which is defined in section 19(1), is given effect to only in relation to certain of the provisions of the 1974 Act in which it is expressly mentioned and for specific purposes. It is not to be read into other provisions, such as section 75(1), in which no reference to section 19(1) is made. Moreover the expression "linked transaction" refers to a transaction, such as a sale agreement, linked to a "principal agreement", such as a credit agreement to which the linked transaction does not form part. When the principal agreement, the credit agreement, falls the linked transaction, the sale agreement also falls; not the other way round (cf section 67 of the 1974 Act). Secondly, the Sheriff Principal had erred when he took the view that the debtor's contract of sale with the suppliers was part of the debtor-creditor-supplier agreement (as defined by section 12(1)(b)), namely the credit agreement - the contract of loan, between the defender and the pursuers. The Sheriff had treated them as parts of the same agreement. They were not. They were separate contracts.
[43] The construction of section 75 (1) advanced by counsel for the second respondents was one that limited the words "a like claim" to a claim for repetition of the price or for damages at the instance of a debtor for either or both of which his creditor is jointly and severally liable with his supplier. A claim by the debtor relating to the rescission of his contract of loan with the creditor was not "a like claim" to any claim the debtor might have against his supplier, even a claim against the supplier for rescission of their contract of sale.

D

[Magrew]

Re: Richard Durkin supreme court help needed

Sorry, I have been away from this for a few days, I have a couple of observations and a couple of questions.

I understand that the Supreme Court is an appeal against the earlier decision, it therefore will be primarily tasked with identifying an error in law from the earlier decision. I would expect therefore that it will be limited in how many "new" arguments will be relevant to introduce in regard to SOGA and related matters unless they were in play in the original consideration.

It may be that these are related to the agreement(s) that are under dispute so they may be able to be introduced as an oversight in earlier considerations but I haven't seen that as the thrust of Rico's discourse. (correct me if I am wrong)

As I see it the main fact to pin down is whether there were one or two agreements. Why does Rico affirm there was one agreement when the court appears to be clear on the fact there was two.

Were there two signatures, one for each agreement or were there two "contracts" contained within one signatory document?

If it can be proven that there was only one agreement does that not clinch the case?

[Guest]

Re: Richard Durkin supreme court help needed

Of to bed M.
I will give you chapter and verse tomorrow.
D

[Sparkie1723]

Re: Richard Durkin supreme court help needed

Yes the appeal accepted that the sale agreement was cancelled, what it didn't accept was that it triggered the cancellation of the credit agreement.

D

Question
If the sale agreement was cancelled and the credit agreement was specifically for the purchase of said laptop that sale was cancelled........therefore what was the credit agreement for if it was still in force..........logic says ........no purchase of goods.....no sale.... no loan for the purchase of any goods.......who had the loan funds it wasn't Richard Durkin HFC stil had the funds.....so Richard was not responsible to repay a loan that dod not happen or exist. No funds were drawn down

Just more of my ramblings

Sparkie

[Guest]

Re: Richard Durkin supreme court help needed

Question
If the sale agreement was cancelled and the credit agreement was specifically for the purchase of said laptop that sale was cancelled........therefore what was the credit agreement for if it was still in force..........logic says ........no purchase of goods.....no sale.... no loan for the purchase of any goods.......who had the loan funds it wasn't Richard Durkin HFC stil had the funds.....so Richard was not responsible to repay a loan that dod not happen or exist. No funds were drawn down

Just more of my ramblings

Sparkie

Yes i agree, unfortunately the law is an ass. The courts like to find a legal framework for their decisions, and the appeal court could not /or were not willing to find one that supports what seems to be the logical conclusion.

The weakness in the case in my view was the submission that this was a d-c-s contract(under 12b) and that it could be rescinded under section 75.
In my view the court were correct in rejecting both these statements, and since there were no other pleadings made, there was no other avenues for them to permit cancellation/ recision of the credit agreement.
D

[Guest]

Re: Richard Durkin supreme court help needed

Sorry, I have been away from this for a few days, I have a couple of observations and a couple of questions.

I understand that the Supreme Court is an appeal against the earlier decision, it therefore will be primarily tasked with identifying an error in law from the earlier decision. I would expect therefore that it will be limited in how many "new" arguments will be relevant to introduce in regard to SOGA and related matters unless they were in play in the original consideration.

This is what i was asking Richard, whilst the issue with the return of the goods is settled in that the store has accepted the return of the goods. the pleadings that were unsuccessful in the original case, are in my view unlikely to bear any more fruit in the new submission. Richard did indicate that some new element should be allowed, hopefully these will enable the court to find a a way to put things right.

It may be that these are related to the agreement(s) that are under dispute so they may be able to be introduced as an oversight in earlier considerations but I haven't seen that as the thrust of Rico's discourse. (correct me if I am wrong)

As I see it the main fact to pin down is whether there were one or two agreements. Why does Rico affirm there was one agreement when the court appears to be clear on the fact there was two.

Section 75 of the act depends on the the credit agreement coming under section 12b of the consumer credit act, in that it was a d-c-s agreement where the creditor and the supplier had a pre existing arrangement to provide credit. If the agreement did not comply with this requirement then section 75 could not be used.

Also if there was only one agreement returning the goods under the sales of goods act section15 would have terminated both contracts. There was also an argument that it would be linked agreement under the act, but the court said tht even if this were the case the credit agreement would form the principle and resciding the secondary agreement(the sale ) would not result in the credit agreement being cancelled

Were there two signatures, one for each agreement or were there two "contracts" contained within one signatory document?

This is a good question i do not know, however it would ot prove that it was a DCS agreement under 12b only 12a.

If it can be proven that there was only one agreement does that not clinch the case?

It would but i think it unlikely, the whole language of the act talks about their being two agreements, the way section 75 operates for instance, the "like claim" just my opinion of course.

Personally i think that Mr D should have been able to withdraw from the agreement under section 57 as the agreement had not been made. Hopefully the SC will allow these pleadings to be used.

D

[Magrew]

Re: Richard Durkin supreme court help needed

Davyb, that was very helpful.

Is there not two courses that could be followed here.

1. Appeal the decision that has already gone, but to do so you need to prove an error in law in the earlier decision. That is fine if everyone is comfortable that there are solid Grounds of Appeal.
2. Open a new complaint to cover the pleadings that were not made if that is what the weakness in the first case was. There is a rule that you cannot keep going back to look for a different decision under the same circumstances (I think it is called "res judicata"). In this case though, if there is an evident failure under a seperate section of the act that is more relevant is it not possible, and more appropriate, to bring that issue under scrutiny. Or does the "law" prevent that possibility?

This frustrates me about the courts, it is not unusual for something that is outside the pleadings becoming evident in a hearing but if it doesn't form part of the case then it gets set to the side. It is not absorbed into the case. That is more often than not why "the law is an ass".