On Friday we faced MKDP again in Court. On behalf of our client we instructed Mr Thomas Brennan, MKDP instructed an agent of some kind.
The issues arose out of a Barclaycard agreement which had been assigned to MKDP allegedly. I say allegedly as they couldnt provide any supporting evidence that they actually owned the debt.
There were so many problems with MKDP’s case that i dont really know where to start.
- Their evidence was appallingly bad. Who ever advises them clearly struggles with the concept of evidence, when you make a statement you are required to state the source of your knowledge. In this case there were numerous statements that “Barclays would have done X” or “The Court can be satisfied that a default notice was sent” er well no it cant because Mr MKDP your witness doesnt tell us how you know this??????? As a result the evidence wasnt given any weight. FYI MKDP read CPR 32 and PD 32 as this tells you what must be in a statement.
- The second problem, they had no witness in Court. Our client had raised numerous points which could only have been dealt with by live evidence. The fact they had no witness hung them out to dry.
- The documents supplied were grossly illegible, now didnt i say this would be a big problem for creditors? http://www.bbc.co.uk/news/business-13349239 ahh yes i did.
- The correspondence was shambolic, one of the main problems was that MKDP provided documents which purported to come from Barclays, yet Barclays were fully aware the client moved in 2011, yet if MKDP are to be believed Barclays wrote to the client at an address Barclays knew he moved from 4 years ago. Entirely unlikely, and as we have seen from Hillesden v Moore, some debt purchasers do use other parties letter heads and create fictitious people etc.
- The Credit agreement was so obviously unenforceable, the terms and conditions that were produced by MKDP had a clear clause which said that these terms accompany the Card, plainly they werent provided to the client when he signed the application form. Of course there was a further problem, by MKDPs own evidence the application was an A4 Sheet of paper, however as i understand their argument, they sought to claim that 2 pages of A4 were in fact on the reverse of the A4 application form , as a matter of common sense, if the front is A4 the back is A4, it cannot therefore house two pages of A4
So, we turn up at Court, we go in before the Judge, its fair to say we are feeling very sorry for the opponents advocate. She had no witness, no case, no hope, in fact anyone with an ounce of knowledge of consumer credit matters would have given up and gone to the pub.
Anyway, we go before the Judge, Tom makes a submission that the easiest way to deal with this case was to look at s61(1)(a) Consumer Credit Act 1974 and the regulations which set down the prescribed terms. If the Court finds that the prescribed terms were missing when the agreement was signed then the agreement is irredeemably unenforceable. Secondly it was submitted that the documents before the Court could not satisfy s78(1) Consumer Credit Act and given these points were raised in the Defence and through correspondence, the Claimant cannot claim to be prejudiced if the Claim is dismissed as it was aware of the issues before arriving at Court, and in respect of s78 at least, it could have attempted to put those issues right by serving legible documents!!.
The Judge considered s61 Consumer Credit Act and ruled that the prescribed terms were not in the document signed by the debtor therefore the agreement was unenforceable and the Claim was dismissed.
The Judge made an order that the agreement was irredeemably unenforceable which now means MKDP cannot record this on the clients credit file per Grace v Blackhorse.
Also despite this being a small claim the opponent was ordered to pay the costs in full, the reason was the Judge found this was such a hopeless case, so hopeless that anyone with an ounce of common sense would have seen and would have abandoned before stepping within 10 foot of a Court.
The icing on the cake however was when the Claimants representative asked what her client could have done differently, well one suggestion, they could have instructed me, but then again, i only act for consumers………