On 12th June 2014 at Oxford County Court, a case which had been on-going for over a year finally came to an end. The trial extended to 2 days, the judgment was reserved, and then after judgment was handed down, the rather unusual steps of a further adjournment took place.
This then led to further hearings taking place, which ended up before Recorder Bowdery QC in June 2014. It is worth noting that Recorder Bowdery QC was not the trial judge, he was sitting as cover for the original judge HHJ Charles Harris QC.
So, what happened?
Ok, well the claim was brought by Hillesden Securities against Mr Moore, the defence argued that the creditor Hillesden securities had failed to comply with s78 Consumer Credit Act 1974 by providing easily legible documents which satisfied the test laid down in Carey v HSBC Bank Plc. Now for all those debt purchasers arguing “were not the creditor” hard luck, Jones v Link Financial Limited, a High Court ruling, confirms that the assignee takes responsibility for the statutory compliance with the Consumer Credit Act. So any s78 requests outstanding become the obligation of the debt purchaser on assignment.
Anyway, in November 2013 the Court handed down Judgment. The Court found that there had been non compliance with s78(1) Consumer Credit Act because the documents were
a) Not complete, that is to say parts were missing
b) the documents simply were not easily legible.
This was the position advance by the Defendant all along, so great, weve won we thought, how wrong could we be.
HHJ Charles Harris decided that in line with Kotecha v Phoenix recoveries, the creditor should have another chance to put things right. So he made an order that the Claimant had another chance to comply. In passing the judge said he quite expected that they would comply. However, submissions were made to the Court that it was unsafe to simply accept that the Claimant would comply by submitting new documents, especially given the fact that the Claimant had been found wanting with its documentation at trial therefore the Court would be wrong to simply assume they could go and put it right without those documents being properly tested before the Court.
Accordingly (and he would have been appealed if he didnt) the Judge ordered that the Claimant had to comply with s78(1) Consumer Credit Act and if they failed the matter would go back to the Court.
The Claimant attempted compliance, however numerous faults were identified within the documents, not least the fact that they simply were not LEGIBLE, no where near easily legible which coincidently is what the law requires.
So a request for a further hearing was made. The hearing came around at the early part of the year, and further representations were made that the documents were not compliant. The judge bizarely was leaning towards giving judgment to the Claimant when he made an error, he read out the address on the agreement and he got it wrong, this was when we were able to push the point that the documents simply werent legible if the Judge cant even read the address correctly. Accordingly, a further order was made that the Claimant had one last bite of the cherry to get its house in order or this time they would be struck out.
Its worth noting the Judge at the hearing in the above paragraph did consider whether they should have a further opportunity, he considered the test in Mitchell v News Group News papers, however he decided they should be allowed relief from the previous Court order and should be allowed a further chance. I pause for a second and ask, what if it were the Defendant in breach of a court order? would he get the same indulgence? this in my view would be answered in the negative, despite the Consumer Credit Act being a consumer protection statute of course.
So, on to the third hearing after the trial. The Claimant served more of the same really, illegible documents, certainly it wasnt easily legible as the law requires.
Back to Court we go, we remain steadfast in our arguments, the documents arent easily legible, and the Court on this occasion agrees. It really was common sense though, why take risks, what i mean is, if i were the Claimant, i would have simply asked a secretary to hand type the documents up and that way there simply would not have been any issue over legibility. In fact the Judge made that exact point but it seemed to fall on deaf ears.
The Claimant now has to pay the costs of its failed claim. At a time when the Courts are looking to keep matters proportionate and avoid unnecessary costs being incurred, one wonders what the Claimant was thinking as all they did by failing to heed the Courts warning was increase the liability that their client now faces.