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

[Guest]

26/03/2014
EDIT: JUDGMENT FROM SUPREME COURT NOW ADDED TO THREAD AND DISCUSSION THEREAFTER FROM Post #298 http://www.legalbeagles.info/forums/...551#post420551 Onwards.




OK

Please correct me if i err

The case began when Mr D went into PC world to by a computer, in particular he wanted one with a built in modem.
The shop found him a model but they were not sure if it had the required modem built in or not.
Mr D agreed to purchase the item and take it home on the grounds that if it did not have the required modem he could return it the next day and take advantage of their " no quibble return policy". He paid a £50 deposit and signed a crediit agreement with HFC.

It didn't have the modem built in, so he took it back, the shop refused to accept the item reneging on their promise.

He left the item with them.

Unfortunately the credit agreement continued to run, with the effect that a default marker was eventually placed on his credit file. Mr D had in progress some large purchases for which he needed an A1 credit score, these fell through due to the adverse marker.

Mr D sued both parties the shop for not keeping to their bargain and the credit company for placing the marker on his file, claiming substantial damages from the second party for his losses in his aborted purchases.

He won on all counts and received the awards, unfortunately the action he took to rescind the credit agreement was overturned on appeal, so the creditor was vindicated in placing the marker on his file.

The technical point in question was, could section 75 of the act be used to rescind a contract under these circumstance.

I was aware of this case purely because i had used the precedent created in the awarding of costs issue. Which i may say has been a great help to many.
I couldn't believe the circumstance that caused the problem, i assumed that a credit agreement would automatically be cancelled on the return of an item in this way.
I was a little surprised when i read the transcript of the hearing to be honest, in that that the agreement was said to have been rescinded, due to section 75.
I didn't think that 75 worked that way, my immediate reaction was that the agreement would have been cancelled under the provisions in section 55-56 of the act in that no agreement was" made", as prof. Goode puts it.

I considered section 75 to be a device where, if you paid money to a supplier and lost it through their breach, you could sue the creditor in their place. This mechanics are simpler to understand on a running credit account, on a fixed term agreement the creditor i thought would simply repay the loan account( which i suppose is a kind of rescission). It is a subtle distinction and i suppose one that only emerges in the situation that came up here.

It is a serious gap in the consumer protection measures available under the act, lets hope the SC has the skill and the will to plug it.

D

[enaid]

Re: Richard Durkin supreme court help needed

So bottom line, this will enable people to have incorrect bad credit marks removed and compensation for any loss suffered due to the mark. Providing you can prove the mark is incorrect of course.

[Guest]

Re: Richard Durkin supreme court help needed

Yes. What the case has done, which is incontrovertible, is that it has established a precedent which says, if you have a default on your credit file which has been unlawfully placed there you can sue for damages.

I believe this is the core of a case currently in progress on here.

The issue is about the consumers protection when returning goods within the terms of the sale of goods act but still being liable for any attached credit agreement under the consumer credit act.

D

[enaid]

Re: Richard Durkin supreme court help needed

Fab, am pleased I asked even though people may think I am thick lol
Thanks very much xx

[Guest]

Re: Richard Durkin supreme court help needed

This is the appeal hearing/opinion of the court. Appologies if it is already on here

http://www.scotcourts.gov.uk/opinions/2010csih49.html

[Rico]

Re: Richard Durkin supreme court help needed

He won on all counts and received the awards

I was awarded half of what was required less expenses for delaying proceedings while the key witness (necessary to prove fraud) waited for a passport.

Reparation, despite being "awarded" had been grossly miscalculated.

The appeal was based on maths HFC know to be true. The cross appeal based on continued malice. The appeal judgement and altering of facts highly suspicious.

Since begining this case in 2004, the law hasn't allowed me or my representatives to claim any expenses (totalling over £300K now) as the case is still in progress.

We've been living hand to mouth now for 8 years and have been in an effective recession for the last 13.

Rico.

[Rico]

Re: Richard Durkin supreme court help needed

Mr D agreed to purchase the item and take it home on the grounds that if it did not have the required modem he could return it the next day and take advantage of their " no quibble return policy". He paid a £50 deposit and signed a crediit agreement with HFC.

It didn't have the modem built in, so he took it back, the shop refused to accept the item reneging on their promise.

He left the item with them.

Unfortunately the credit agreement continued to run

I didn't agree to purchase the laptop until I was sure the laptop had an inbuilt modem.

Because PC World couldn't check the laptop had a modem, I offered to check it at home.

They agreed but insisted on the deposit and me signing the agreement.

I insisted that the credit agreement be post dated and assured that it wouldn't be processed if the laptop didn't have a modem.

The agreement was processed fraudulently.

Extortion, blackmail and continuing malice from HFC followed.

(They've just sent another letter asking for payment and threatening to default me!)

Rico.

[miliitant]

Re: Richard Durkin supreme court help needed

you mention a financial account has been set up in an office to make donations

most people, me included have ebay and paypal accounts, it is far easier and quicker that way and is instant

any news on setting up a seperate paypal account for this

even a pound is a pound nearer the mark, i am sure we all can afford that without asking for it back due to the importance of this appeal,
where case law will be a corner stone

[Guest]

Re: Richard Durkin supreme court help needed

I didn't agree to purchase the laptop until I was sure the laptop had an inbuilt modem.

Because PC World couldn't check the laptop had a modem, I offered to check it at home.

They agreed but insisted on the deposit and me signing the agreement.

I insisted that the credit agreement be post dated and assured that it wouldn't be processed if the laptop didn't have a modem.

The agreement was processed fraudulently.

Extortion, blackmail and continuing malice from HFC followed.

(They've just sent another letter asking for payment and threatening to default me!)

Rico.

You must understand that this was a precis of your case , made in order to give the member an overview of the issues involved , if err'd on some particulars i apologise.

However i presume that the other side(s) say that since the agreement was executed and the deposit made you agreed the sale.

However none of this excuses the fact that both agreements should have been cancelled on the return of the item of course.

My understanding of the case was that the agreements were executed but should be rescinded under section 75, as they were linked agreements under the act. Is this correct?

D

[Rico]

Re: Richard Durkin supreme court help needed

You must understand that this was a precis of your case , made in order to give the member an overview of the issues involved , if err'd on some particulars i apologise.

However i presume that the other side(s) say that since the agreement was executed and the deposit made you agreed the sale.

However none of this excuses the fact that both agreements should have been cancelled on the return of the item of course.

My understanding of the case was that the agreements were executed but should be rescinded under section 75, as they were linked agreements under the act. Is this correct?

D

Apology not needed. I'm grateful for your effort. It's the bank that needs to get a grip and find some morals.

I'm just trying to clear up popular misconceptions about the case, created by the lawyers and the justiciary

The evidence is that there is only one contract and it was fraudulently processed. The bank is malicious. The judges shouldn't ignore the evidence though.

Afraid I'm unable to shed light on linked agreement theme given the above.

The two separate agreement theory was made up to fit in with case law.

Rico.

[Celestine]

Re: Richard Durkin supreme court help needed

Hi Rico

I've posted on your other thread.

http://www.legalbeagles.info/forums/...t-action-v-HFC

I've also just tweeted the link to the petition on LB Twitter.

If a Paypal account is unavailable, can members wishing to help out make small donations to the client account you mentioned above?

[Rico]

Re: Richard Durkin supreme court help needed

most people, me included have ebay and paypal accounts, it is far easier and quicker that way and is instant

any news on setting up a seperate paypal account for this

even a pound is a pound nearer the mark, i am sure we all can afford that without asking for it back due to the importance of this appeal,
where case law will be a corner stone

Thanks very much. I don't have a paypal account nor any intention to set one up. I'm clearly not "most people"!

I'm really looking for a couple of investors that are equally cheesed off with the banks and comfortable enough with the law to know the investment is sound and will help bring back morals to one part of our society.

I'm drumming the fact that it's so nearly impossible to beat the crooked bankers onto my MP who claims that ministers are aware.

I've a reasonable income and I'm not short of a few pounds. It's thousands that I'm short of with only a few months to find it.

The 2 largest payments are court fees (~5K) and printing fees (~5K). My solicitor is trying to negotiate a line of credit with the printers and we'll have another go at explaining why we're unable to magic up the court fees in September.

If there's an interested investor out there, 1% per month is a good return. No middle man. I'd use Zopa if I wasn't black-listed!

The bank's evil empire will end soon.

Cheers,

Rico.

[Guest]

Re: Richard Durkin supreme court help needed

Interesting article

http://uk.search.yahoo.com/r/_ylt=A7...op-paul-durkin

[Guest]

Re: Richard Durkin supreme court help needed

I am a little convened about the way the above thread is developing.


Dont get me wrong i 100% agree that there has been an injustice here. MY concern is that people are being encouraged to invest and i have not seen any mention of the fact that the Supreme court may find against Mr Durkin.
There seems to have been little or no discussion about the legal merits of this on here and from what i see very little over the road.


I think that their several points that need to be addressed, not least the appeal courts assesment of the function of section 75 , which if i read it right will have to be overturned if the case for reparation is to succeed.


I think if people are going to invest , they should be aware of the facts, personally i will be investing but only what I can afford to lose, because I think it a cause worth fighting, but i am a realist.


I would start a new thread about this , but from previous experience i find that sometimes people interpret rugged analysis of an argument as criticism and i suspect i would be drawn to the job of playing devils advocate in order to get some constructive debate. This is the section that makes me wary.


[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. It follows, therefore, that throughout the period of time the entries posted by the second respondents remained on the registers of the credit reference agencies they were factually accurate, apart from the arithmetical error of referring to £1499 when it should have been £1449.
[64] The Sheriff dealt with the delictual issues which arose in this case in paras 93 - 121 of his judgment. Standing the conclusion we have reached on the rescission issues that also arose, it is unnecessary for us to deal with them in detail. Indeed it was recognised on behalf of the appellant that if we found against the appellant on the issue of whether he had been entitled to rescind his credit agreement by relying on the provisions of section 75(1), it would not open to him to successfully defend the award of damages that the sheriff had made in favour of the appellant.
[65] That concession was very properly made. The provisions of the 1974 Act admit the possibility of a creditor such as the second respondents supplying information relating to a debtor, such as the appellant, to a credit reference agency licensed under the Act. The credit agreement between the appellant and the second respondents in the present case explicitly provided that the appellant agreed that the second respondents could supply information relating to the credit agreement and to his conduct of the loan he received in terms of that agreement to credit reference agencies. The provisions of section 159 of the 1974 Act enabled the appellant to give notice of correction to credit reference agencies, which he did. In such circumstances, standing the appellant's conscious decision not to make any payments under the credit agreement to the second respondents and the conclusion we have reached on the issue of whether the appellant was entitled to rescind his credit agreement with the second respondents, by relying on the provisions of section 75(1), we consider that the second respondents were entitled to treat the appellant as being in default of the credit agreement. In these circumstances it follows that the Sheriff was not entitled to hold that the second respondents had made false representations relating to the appellant; that the second respondents had breached a duty of care they owed to him; and that the appellant was entitled to the award of damages he made.


Any thoughts anybody.


D

[dad]

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:

102 Agency for receiving notice of rescission.E+W+S+N.I. (1)Where the debtor or hirer under a regulated agreement claims to have a right to rescind the agreement, each of the following shall be deemed to be the agent of the creditor or owner for the purpose of receiving any notice rescinding the agreement which is served by the debtor or hirer—
(a)a credit-broker or supplier who was the negotiator in antecedent negotiations, and
(b)any person who, in the course of a business carried on by him, acted on behalf of the debtor or hirer in any negotiations for the agreement.

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

Dad