MACKENZIE

[miliitant]

Re: MACKENZIE

and protection from harassment act 1997 is just as powerful as section 40 AOJ is.

fergusson v british gas is testament to that statement

[teaboy2]

Re: MACKENZIE

Although Section 40, Administration of Justice Act 1970 is still in force, it no longer carries the clout it did when it was originally enacted. A £400 fine in 1970 was a lot of money, but it is pocket money now. The Protection from Harassment Act 1997, although originally intended to dealing with stalking, has proved very effective in dealing with bullying and anti-social behaviour. Mjrowski -v- Guys & St Thomas's NHS Trust 2005 and Ferguson -v- British Gas Trading Ltd 2009 are proof of that. In my considered judgement, it is much more effective against DCAs and bailiffs than the Administration of Justice Act 1970 was or is. It has more flexibility and the provision to legally restrain persistent DCAs and bailiff companies who have been asked the question, "Which part of 'No' don't you understand?" and have not provided an answer.

The Malicious Communications Act 1988 was originally intended to address the activities of those who targeted people who work at places like Huntingdon Life Sciences with threatening letters. It can be used against DCAs and bailiff companies who send threatening communications through the post.

Section 127, Communications Act 2003 was originally intended to deal with those who send offensive material by email, but has proved very effective against cyber-bullying.

Hope you didn't mind me making that small contribution.

Don't mind at all BlueBottle as a totally agree with you.

The arguement here though was whether it still applied or not, Davyb wrongly claimed it does not, when it does indeed still apply. Off course its a pointless arguement given the protection from harassment act 1997 and unfair practices (which may amount to harassment) under the CUPTR 2008 are classed as an offence under CUPTR. Which means, regardless of section 40 their actions whether under a commercial operation or not, they are still an offense if it amounts to harassment or to a breach of the CUPTR 2008.

[teaboy2]

Re: MACKENZIE

Davyb

I repeat again, the act does still apply to those that use Unfair commercial practices, all section 3a does is protect those that uses commercial practices deemed under the CUPTR as fair and acceptable standard commercial practices. Hence why it only refers to "where what is done is a commercial practice within the meaning of the Consumer Protection from Unfair Trading Regulations 2008" I does not saying anything about what is considered an unfair commercial practice which is deemed a breach of the CUPTR (aswell as an offense) and not deemed as a commercial practice but as an unfair commercial practice by the CUPTR 2008 as per sections 3 through to 7 and schedule 1.

Now as i said before, it would not matter is section 40 still applied or not as any offense committed under the CUPTR in relation to using misleading, agressive, commercial practices to harass a debtor is automatically a breach of the protection from harassment act 1997 (aswell as a breach of the CUPTR 2008, comunications act and Malicious Communications Act), which puts the perpretator in breach of section 40 of the AOJ 1970. A person does not have to make a claim under both acts, and protection from harassment act 1997 is just as powerful as section 40 AOJ is, in fact more powerful.

[miliitant]

Re: MACKENZIE

please do bluebottle

i am loving it

for all the right reasons, gets the grey cells going

i have taken more inn tonight than hitting selwyns for a week

[bluebottle]

Re: MACKENZIE

Although Section 40, Administration of Justice Act 1970 is still in force, it no longer carries the clout it did when it was originally enacted. A £400 fine in 1970 was a lot of money, but it is pocket money now. The Protection from Harassment Act 1997, although originally intended to dealing with stalking, has proved very effective in dealing with bullying and anti-social behaviour. Majrowski -v- Guys & St Thomas's NHS Trust 2005 and Ferguson -v- British Gas Trading Ltd 2009 are proof of that. In my considered judgement, it is much more effective against DCAs and bailiffs than the Administration of Justice Act 1970 was or is. It has more flexibility and the provision to legally restrain persistent DCAs and bailiff companies who have been asked the question, "What part of 'No' don't you understand?" and have not provided an answer.

The Malicious Communications Act 1988 was originally intended to address the activities of those who targeted people who work at places like Huntingdon Life Sciences with threatening letters. It can be used against DCAs and bailiff companies who send threatening communications through the post.

Section 127, Communications Act 2003 was originally intended to deal with those who send offensive material by email, but has proved very effective against cyber-bullying.

Hope you didn't mind me making that small contribution.

Re: MACKENZIE

Sorry for completeness i should show the CUPTR's definition of cemmertial practice. i think yo9 will identify the OP in there.

“commercial practice” means any act, omission, course of conduct, representation or
commercial communication (including advertising and marketing) by a trader, which is
directly connected with the promotion, sale or supply of a product to or from consumers,
whether occurring before, during or after a commercial transaction (if any) in relation to a
product;

D

Re: MACKENZIE

So you think that national debtline and the CAB have it wrong.
I have seen other cases on here where you have been patently wrong, in the short time i have been here, you seem to be unable to admit your error.
So I wont waste anymore time with you.
If anyone else is unclear i will gladly continue.

If not then see you later

D

Re: MACKENZIE

Punishment for unlawful harassment of debtors.E+W

(1)A person commits an offence if, with the object of coercing another person to pay money claimed from the other as a debt due under a contract, he—
(a)harasses the other with demands for payment which, in respect of their frequency or the manner or occasion of making any such demand, or of any threat or publicity by which any demand is accompanied, are calculated to subject him or members of his family or household to alarm, distress or humiliation;
(b)falsely represents, in relation to the money claimed, that criminal proceedings lie for failure to pay it;
(c)falsely represents himself to be authorised in some official capacity to claim or enforce payment; or
(d)utters a document falsely represented by him to have some official character or purporting to have some official character which he knows it has not.
(2)A person may be guilty of an offence by virtue of subsection (1)(a) above if he concerts with others in the taking of such action as is described in that paragraph, notwithstanding that his own course of conduct does not by itself amount to harassment.
(3)Subsection (1)(a) above does not apply to anything done by a person which is reasonable (and otherwise permissible in law) for the purpose—
(a)of securing the discharge of an obligation due, or believed by him to be due, to himself or to persons for whom he acts, or protecting himself or them from future loss; or
(b)of the enforcement of any liability by legal process.
[F36(3A)Subsection (1) above does not apply to anything done by a person to another in circumstances where what is done is a commercial practice within the meaning of the Consumer Protection from Unfair Trading Regulations 2008 and the other is a consumer in relation to that practice.]


The act does not apply to as in no longer applies to, now i would call that a change in the function of the act, it really cannot be much clearer.

D

[teaboy2]

Re: MACKENZIE

Hi Militant

The Ferguson case was under the protection from harassment act 1997.

See paragraph 4 of the judgement - http://www.bailii.org/ew/cases/EWCA/Civ/2009/46.html

Also the case itself was regarding actions that took place prior to the CUPTR 2008 coming into force, so would not have any bearing on this argument even if Ferguson had included a claim under section 40 AOJ.

[miliitant]

Re: MACKENZIE

davyb

the thing is teaboy2 is quoting the relevant statute law, please supply yours to counter what is being said rather than interpretation

[teaboy2]

Re: MACKENZIE

Well really that section of the act was superseded by the new act. Did i say anything about any acts superceding another? Err thats categorically a big NO i did not!!

It isn't an argument i am just trying to point out a fact to you that you are unable to accept. I can not accept something that is not true and not a fact but nothing but a misinterpretion of the law as a fact. As doing so would be wrong and illogical, especially when i know as a fact that it is not what you claim is not in fact a fact at all but just a misinterpretation!!

The AOJ act does still exist of course it is just not relevant in the op case, i do'y think the legislation is spurious. - ????? I did not say legislation was Spurious, i said your claims regarding NationDebtHelpline advisors being mainly lawyers was.

D

Err no section of section 40 of the AOJ act was superceded by the CUPTR 2008!!!

No your not pointing out a fact at all, all you have pointed out is your flawed interpretation that subsection 3A also protects companies whos actions are deemed Unfair Commercial Practices, when all section 3A does is protect companies whos actions deemed as standard, acceptable and fair commercial practices. You clear can not understand that they is a clear difference between what is deemed Commercial Practice (Standardised, acceptabe and fair practice) and what is deemed as an unfair commercial practice (Unfair, Unreasonable, Misleading, Aggreassive) under the CUPTR 2008. Section 3a under section 40 does not mention about Unfair commercial practices purely because it is not ment to be used to protect companies from harassment claims under section 40 when they have used unfair commercial practices.

Your lack of knowledge on the changes of section 40 went from no longer applies, to repealed, to AOJ was inacted before CUPTR 2008 so therefore does not refer to CUPTR 2008 (when i clearly does refer to CUPTR in subsection 3A of section 4), to now, what was superceded by the CUPTR 2008 act (the new act as you refer to it). Your lack of basic knowledge on the effect the CUPTR 2008 had on section 40 of the AOJ is shocking to say the least. Whats more shocking is you inability to comprehend that companies the use what is deemed by the CUPTR 2008 as unfair commercial practices, are not protected from harassmet claims under the AOJ at all by subsection 3a of section 40 AOJ - it is only companies that use what is deemed as standard, acceptable and fair practices that are protected.

Its becoming even more and more clearer here that not only are you unable to interpretate the law logically, you are clearly not even able to follow the arguement as you clearly have completely ignored, misread or misinterpretated what i have been saying. Did i say part of the act had been superceded by the CUPTR 2008, not i did not, i merely said it had been admended (e.g. admended to include the subsection 3A as a result of what was added under Schedule 2 section 13 of the CUPTR 2008 act). In basic simple english, the subsection 3A was simply inserted into section 40 of the administration of justice act 1970, no changes to section 40 were made other than the insertion of subsection 3a.

Heres a FACT for you to consider - Nearly everybody on the forum with experience in this issues would support the content of the telephone harassment letter that i posted for the OP to use. Militant himself did not consider section 40 of the AOJ as no longer applying and still does not, therefore clearly does not agree with you either until otherwise by case law of statute, thats a FACT. All you have is your own personal interpretation and based on what you have read others saying on other sites, whom themselves were misinterpretating the effect of subsection 3a and what it would mean to section 40's use in harassment claims. When truth is it didn't change a dam thing, it only clarified what section 40 can be used for and when, nothing more, nothing less. Like i said if a company is using fair commercial practices they are protected, if however they are using unfair commercial practices, then they are not protected by subsection 3a of section 40 of the AOJ 1970. Its that simple, its not (as you put it yourselve) rocket science!!

[miliitant]

Re: MACKENZIE

off the top of my head i think this was the 1977 act wasn't it, an appeal in 2009. perhaps the initial case was in 2008, i would have to look it up

D

it was feb 2009 (appeal)
2006 was the case

many thanks for the corection

there is another Court of Appeal case from 2007, Conn v Sunderland, that decided that it was necessary to prove a criminal level of harassment.)

[miliitant]

Re: MACKENZIE

i am a third year law student doing a Bachelor of Laws (Honours) degree

i do not take sides as such, i rely on statute and case law legislation

i love this healthy debate where people who have a passion about the law can do a civilised debate without mud slinging

i am quite happy sitting on the fence at the moment going through my ring binders to offer something constructive to throw into this

the law is never open and shut for interpretations, its making the correct interpretation that counts

Re: MACKENZIE

in all this i forgot about the protection from harassment act and the
malicious communications act

was it not these statutes used in fergusson v british gas and not CPUTR

confirmation would be nice, as stated before, i will accept with open arms if proved to be incorrect

off the top of my head i think this was the 1977 act wasn't it, an appeal in 2009. perhaps the initial case was in 2008, i would have to look it up

D

Re: MACKENZIE

in all this i forgot about the protection from harassment act and the
malicious communications act

was it not these statutes used in fergusson v british gas and not CPUTR

confirmation would be nice, as stated before, i will accept with open arms if proved to be incorrect

i con't really understand what further confirmation i can give you, to be honest.

I presume you have looked at the legislation

D