Yesterday a hearing took place in the County Court that many may overlook as being the norm, a debt purchaser lost its case and failed to recover any money. Indeed a very regular occurrence in our world.
However, while this was a County Court decision, it does have the potential to unlock doors for consumers. Why? well heres the thing.
In this case, we had a consumer who had an overdraft with their bank account. The bank had acted entirely unreasonably and had created a cycle of debt which the consumer couldnt escape from. The charges were in our view unfair (yes were aware of the UKSC ruling on bankcharges) however while bank charges can be challenged post OFT v Abbey, i had always been of the view that there was scope under the Consumer Credit Act 1974 to challenge assignees such as debt purchasers and to seek the return of those charges from them even though the debtor never paid the debt purchaser the charges in the first place.
Cue s140A Consumer Credit Act 1974. Overdrafts are clearly credit. They are clearly within the scope of s140A if the relationship has been made unfair as a result of any of the points in s140A.
The case yesterday brought before the Court the question as to whether the previous creditors conduct in creating that cycle of debt among other things was sufficient to cause an unfair relationship.
The Court concluded yes it was, and whats more the Creditor was ordered to repaid the monies to the Defendant with interest.
It seems a door has been opened, albeit ajar at present, but it seems there may well be scope to seek redress with bankcharges under the Consumer Credit Act as well as using the arguments deployed in Oliver Foster Burnell v Lloyds TSB bank plc.
I am pleased to be able to report another successful outcome from a case involving the PRA Group UK Limited.
The case in question, PRA v Gavin resulted in a ruling dismissing the Claim but crucially the Court also found the relationship was unfair as a result of over 500 harassing telephone calls made to the Defendant.
The agreement which was originally an MBNA credit agreement, was declared unenforceable by the Court as the Claimant had failed to discharge their obligations under s78(1) Consumer Credit Act 1974, there were other issues such as a breach of s61(1) Consumer Credit Act, but the Court ruled that it didnt need to look beyond the s78 issues.
So, onto the Counter-claim. Total schoolboy errors here, the Claimant carried the burden of proof per s140B(9) Consumer Credit Act, yet their evidence was so lacking and limited that they really didnt have a hope. Our clients evidence was contemporaneous , they had written down every call in a note book, they had kept letters etc.
So the outcome was the relationship was declared unfair, the claim dismissed and a substantial sum of damages to be paid by the PRA group…………oh and costs too.
This week has been very disappointing, well for me at least. For the customers its been a week of excellent results.
Today, another notice of discontinuance arrived. This time it was from Hoist Portfolio.
At least its a good end to the week.
In January 2016, the County Court heard a trial in a case involving Hoist Portfolio Holding 2 limited. The issues in the case were:-
- The Defendants account had been assigned to Hoist but the validity of the assignment was disputed
- The Default notice issued by Cahoot was materially defective as it failed to allow the statutory time for compliance
- The Creditor had failed to comply with s78(1) Consumer Credit Act 1974.
- The terms of the contract were unfair per UTCCR 1999
The Claimant made a real mess of the proceedings, indeed the trial bundle didnt arrive as a hard copy until the morning of the trial, the Claimant applied to introduce new evidence on the morning of the trial. The Claimant also changed their stance in respect of their witness, they were sending the witness, then they werent, then they were!!
Any way, we represented the Defendant on a no win no fee basis, we also secured a barrister (Mr Thomas Brennan) also on a no win no fee basis.
The case came before DDJ Campbell, who after listening to the evidence, and hearing submissions, reserved her Judgment.
The Judgment was handed down little over 10 days ago, and the Court ruled that
- the Default notice did not comply with the requirements of s88 Consumer Credit Act 1974; and
- The Claimant had failed to come close to complying with s78(1) Consumer Credit Act.
Accordingly the Judge dismissed the Claim and ordered the Claimant to pay the Defendants costs.
Clearly MKDPs legal advisors (whoever they may be) have shown some serious consistency, consistency in so far that they havent managed to win a case against me todate.
Whats more, this theme has shown no sign of changing as today we were in Court again facing them, and again their backside took a kicking. Another Barclays credit agreement, another case where the agreement on its face confirmed no terms and conditions were present with the application form and another case where the Court dealt with the claim swiftly, ordering MKDP to pay indemnity costs too.
In this case we also took the matter forward on a no win no fee agreement, the barrister was also working on a no win no fee agreement thus the client was able to defend this case without being at risk of a huge legal bill other than his successfee which was agreed between the parties and which we kept low to keep the case affordable.
If you are being sued by MKDP then please do get in touch.