I thought it would be beneficial to get my most noteable cases down on paper so that the main results are all in one place.
Arrow Global v John Devlin (2009) Mansfield County Court & Court of Appeal (Unreported)
This was one of my first trials, it was a case where the credit agreement had been altered after it had been signed by the debtor. The requirements of the Consumer Credit Act 1974 made it clear that the document signed by the debtor must contain the prescribed terms, they cannot be added later and they cannot be incorrect in the slightest.
We also were instructed to seek to Counterclaim for monies paid back on the basis of the doctrine of mistake. The Claimants Defence to the Counterclaim was the strangest document ive ever seen, it had a opening statement like the beginning of a witness statement, it had a bare denial and offered no real basis for defending the counterclaim, and it had a statement of truth akin to a witness statement.
Accordingly, we applied for summary Judgment, and we got it. The Claimant appealed as we had an order allowing the client to recover all the monies paid under the contract. The case was settled out of court.
Phoenix Recoveries Sarl vs. Dr Ian Cresswell (2010) Birmingham County Court – HHJ Worster.
Credit agreement with HFC Bank (marbles credit card) was found to be unenforceable by the Judge as it missed the prescribed terms. The Court was not convinced that the signed agreement contained the prescribed terms and the claim failed. The Judge also found there was no evidence that the Default notice relied upon was actually served. The Judge noted that the client was the sort of person who would have written to the bank and since the Default notice relied on by the creditor contained bizarre figures, the Court was satisfied Dr Cresswell would have written if he had received it.
Cabot Financial (UK) Limited v Nathan Bachellier (2010) Hastings County Court
The Claimant sought to enforce an agreement originally made between the Defendant and MBNA. The Claimant was an assignee of the account.
The client Defended on the basis that there had been a request under section 78(1) Consumer Credit Act 1974 and accordingly the Claimant had not complied and therefore could not obtain Judgment. The matter came before the District Judge who agreed that the Claimant had failed to discharge s78 as the documents before the Court were not easily legible and therefore the Claim failed.
Cabot Financial (UK) Limited v Patterson (2010)
Cabot purchased an account from Morgan Stanley. The Claim form was poorly pleaded as is often the case with claims by debt purchasers. The Claimant sought to recover the sums due under the credit card agreement. However at trial the Claim failed.
The Defendant defended the case on the grounds that A) there had been a section 78 (1) Consumer Credit Act 1974 request which had not been complied with. B) that the Claimants assignment was in question and that there was not sufficient proof the account had been assigned and C) there was no compliant Default notice which entitled the Claimant to demand the full balance.
The matter went to trial, and the Court ruled that the Claimant had not complied with s78(1) and therefore the Claim must fail. The documents were not easily legible, nor were they sufficient to satisfy the Court that the terms were the correct ones for the account
Link Financial Limited v Mr and Mrs Opie (2010)
The Claimant (Link) was an assignee of an account from GE Money. The clients had taken out a home improvement loan from GE Money via a third party company. The salesman failed to follow the rules and applied a heavy pressure sell to the clients to include PPI in the loan. The reason for this became clear when the underwriting sheet was disclosed as the salesman pocketed a nice little backhander.
The clients were told the PPI was mandatory if they wanted the loan, and it was already printed on their loan agreement. There was no way they could sign for the loan without the PPI.
The PPI was included as credit on the agreement. It rendered the agreement unenforceable entirely.
Link challenged this, despite there being clear binding authorities from the Court of Appeal and House of Lords on these points. The matter came to trial before Judge Walker and he fully accepted the position that the PPI was wrongly stated in the credit and the agreement was unenforceable as a consequence.
Cabot Financial Limited v Pain and one other (2011)
This case was loaded with issues, the Claimant had purchased an account from a leading bank. The loan was a joint loan but the creditor had only given notice of assignment to one party, and more importantly had sued only one party to the agreement.
This presented the Claimant with an insurmountable hurdle, as the Consumer Credit Act 1974 required that where there was a loan with joint parties, then the creditor must sue all parties to the loan not just one of them. The Claimant had to add the second party, however it had also failed to give notice of assignment to the debtor before commencing proceedings, and case law appeared to suggest that the creditor would face an issue over its standing as a result.
There were also issues surrounding the agreement and its enforceability, plus there was a Counterclaim for missold ppi, as the way the creditor worked was the application was done over the phone, the clients were told the PPI was mandatory, and indeed it was automatically preprinted on the agreement without the clients consent. being compulsory made the PPI a charge for credit, however it was included in the credit thus rendered the agreement unenforceable (Wilson v First County Trust 2003 UKHL40)
Once all the cards were placed on the table in front of the creditor, they decided gracious retreat was the best option and abandoned the case immediately.
Keith Harrison v Link Financial Limited (2011) Mold Mercantile High Court -HHJ Chambers QC.
This was a widely reported case which was in my view the starting point for people to be able to challenge the unfair and unreasonable telephone harassment cases. Before Harrison, there had been a number of failed challenges to the Banks for unreasonably telephoning customers at all times of the day and night pursuing debts.
Keith Harrison suffered a large number of telephone calls from both MBNA and Link, at one point whilst a family member was in hospital seriously ill and despite being asked to stop calling, the calls continued and the Judge found as a fact that at that point the callers resorted to withheld numbers so that Keith would have to answer the phone as it could be the hospital calling.
Mr Harrison had paid around £70,000 back to the credit card against a borrowing of £26,000 and therefore had more than repaid what he borrowed. Mr Harrison had fallen into difficulty and had asked MBNA for some assistance in dealing with his short term problems, the bank, knowing he could not pay what they wanted took to calling him regularly demanding monies it knew he could not afford.
There were other issues with this case too. Mr Harrison had kept all the relevant documents in this case. He had the original cover letter that MBNA sent, he had the terms that were supplied ( and they werent what MBNA claimed were sent) he had all the statements and notices of variation, even the envelopes, he had the default notice and envelope and he had a sophisticated system for logging in all his mail.
The bank on the other hand struggled to produce reliable evidence, one only need read the judgment to see that.
The case was successful and Mr Harrison succeeded with his claim. The Judge ruled the relationship was unfair, the agreement was improperly executed, and he declined the Counterclaim by Link Financial, instead ordering that the debt is discharged and the Defendant did not have to repay any monies to Mr Harrison.
HFO Capital v Cunningham (2012) Appeal Bristol District Registry
The client had failed with a Defence to the claim and had a CCJ. The Judge had made numerous errors in his judgment, there were totally illegible documents in the Court file which supported the clients arguments that s78 had not been complied with, the reconstructed documents were plainly incorrect as the rates of interest were different to the original statements, the terms were plainly not original which was clear from the documents that were before the Court.
I instructed a QC to prepare the appellants notice, and we lodged formal notice of appeal with the Court. The clients case was very very strong, and the opponents knew this clearly as we were invited to dispose of the appeal by consent. Terms were agreed and the case was disposed of.
This case showed that even with a strong case, the lack of ability to argue the case before the Judge, and the lack of knowledge of the CPR was the downfall of the client. This case should never have resulted in a CCJ, however the right result came out in the end.
MBNA Europe Bank Limited v Hutchings (2012)
This was an interesting case. The Claimant had purchased the credit card account from Bank of Scotland PLC it seems as part of a portfolio, however it appeared that the original terms for this account were not passed across.
The Claim was issued and the client defended on the basis that there had been a breach of s78 Consumer Credit Act, the Default notice was invalid, and the agreement was unenforceable as the original signed document lacked the prescribed terms.
The Claimant sought summary judgment which was successfully opposed, around a week after the summary judgment hearing the Claimant decided to abandon the Claim by discontinuing. It seems that MBNA will have a difficulty in enforcing the Bank of Scotland accounts that they purchased.
Santander v Mayhew (2012)
This case was a case that my colleague was the file handler on, however due to the difficulties in the case i was asked to advise with regularity and was also asked to attend the trial and assist with the brief. While not strictly a file i managed it was a file that i had a significant degree of input on.
The case centred on a Harrods Store Card which had been taken out many years previous. The card was underwritten by GE Money and became a Santander card. The Defendant was paying her debt, at an agreed amount, and it was truly bizzare that Santander took the decision to sue the Defendant.
The Defendant contacted the firm, and i prepared a draft Defence with the file handler. The case was initially allocated to the small claims track, but due to the issues involved the case was reallocated as it was quite complex. There were issues relating to s51(1) Consumer Credit Act, s61(1)(a) Consumer Credit Act, s78 Consumer Credit Act, s87 Consumer Credit Act, s82 and the Consumer Credit Agreements Regulations 1983.
The claim came to trial and the Clients Defence succeeded. The case can be found here http://www.bailii.org/cgi-bin/markup.cgi?doc=/ew/cases/Misc/2012/14.html&query=mayhew&method=boolean
Blackhorse v Power Evans (2013)
This case was another intriguing matter, it turned on a single point of law, that was the question of whether the bank had complied with s77 (1) Consumer Credit Act 1974.
The Defendants case was that the terms were so plainly not the terms which related to her agreement, that the bank had not complied with s77 CCA 1974 and therefore it would be barred from succeeding on its claim.
The Claim was heard by HHJ Hampton, the same judge who had found against Mr Kotecha in the case of Phoenix Recoveries v Devendra Kotecha. The Judge considered the arguments and found in the Defendants favour. The basis of the finding of non compliance was per the Defendants issues with the documents. The Judge accepted that for the banks arguments to succeed, the bank would have had to have sent out an obviously defective document, the banks proof reading systems must have failed, the printers must have been incompetent and the whole system catastrophically failed. The judge took the view that this was unlikely, on the one hand the bank was saying its systems never failed, on the other it was saying that the whole procedure fell over. The Judge found this highly unlikely.
Arrow Global v Coster
The Claimant discontinued on the day of the trial. The case had interesting issues, which centred around the question of accord and satisfaction.
Mal’ouf v MBNA t/a Abbey Cards (2014)
MKDP v Beaumont Hayes (2015)
This was a case involving a Barclays credit agreement. The Court ruled that the agreement was unenforceable as it did not contain the prescribed terms at the point the agreement was signed. The Default notice was non compliant. In fact the whole case from MKDP was shambolic.
MKDP v Power (2015)
Another Barclaycard agreement, this time declared unenforceable by HHJ Alison Hampton. The same issues as per Beaumont Hayes, the same outcome.
MKDP v Ali (2015)
Another Barclaycard agreement, and the same issues as the above MKDP cases. Again the agreement was declared unenforceable. This was a small claims case, and the conduct was deemed so seriously bad that the Court ordered costs to be paid by MKDP.
MDKP v Sejpal (2015)
The same issues as the above cases. In this case however MKDP thought they would be clever and discontinue the Claim to avoid the need to have a trial and get stuck on for costs. Sadly for them that didnt work, the Court deemed their conduct so seriously unreasonable that the Court ordered them to pay the costs of the Claim.
Hoist Portfolio v Wigley (2015)
This case involved a bank account that Santander had made an error with the Default notice. The Court had no difficulty concluding the Default notice did not give 14 days from service to remedy the breach. As a consequence the Court dismissed the Claim and ordered the Claimant to pay costs.
PRA Group UK Limited v Brunt (2016)
In this case, the PRA group brought a claim against our client over a MBNA credit card agreement. The agreement was improperly executed as it failed to comply with s61 Consumer Credit Act in our opinion. In addition, the Default notice was quite bizarre, it referred to the Defendant breaching clause 8 of his contract, yet clause 8 was about the right to cancel!!.
We also challenged the assignment, the documents provided raised more questions than answers. The documents in our view did not establish that title had been transferred to the Claimant company.
The Claimant in this case did not litigate the matter in accordance with the overriding objective, far from it, there were numerous without notice applications made, there were a number of vacated trials etc. When the matter finally came before HHJ Clarke, she threw the Claim out swiftly, the PRA Group didnt even make it over the first hurdle. The Judge ruled that the documents before her did not satisfy her on the balance of probabilities that there had been an assignment.
The Claim was dismissed, the Claimant ordered to pay indemnity costs AND the costs of the case from when it was a small claims matter. This is without doubt one of the harshest orders i have seen on costs.
And the losses
Arrow Global Guernsey v Frost.
In this case, the main central issue was did the client sign an agreement regulated by the Consumer Credit Act 1974. The Claimant did not have a signed agreement. The Defendant denied signing an agreement.
The Court found that the Defendant was unreliable as a witness and therefore found that there “was” a signed agreement, and that it did comply with the Consumer Credit Act, and that therefore the arguments of enforceability fall away. It was a disappointing ruling, but thats the way things go. The win vs lose ratio still sits well in my favour.
I do have many of the above judgment transcripts.