So the last few weeks have been busy busy busy, but i wanted update the blog on some of the cases which have resulted in a judgment in favour of the consumer.
So the Arrow Global matter, well they lost as is to be expected but the manner of the defeat was pleasing.
The Client had taken out a M&S Charge card in about 1995, a while later the client was offered the chance of a “Flexible reserve account” which in essence is a credit token account which provides an amount of credit where you can draw down up to your credit limit by writing yourself a cheque.
The Client fell into difficulties for whatever reason and M&S werent helpful at all,they chose to sell the debt to Arrow who took the client to Court.
The client had tried to fight the case but realised that assistance was needed, so my firm enters the fray, we knock the case into shape and off to trial we go.
So our view is the agreement is unenforceable per s61(1)(a) CCA, s65(1) CCA and per s127(3) CCA.
We also argue the Default is defective as it only allows 12 days to remedy the breach and also it isnt in the prescribed form, words arent in capitals or afforded more prominence etc.
The Claimants argument, and this is a peach, is that the agreement isnt regulated because its a overdraft?@????
Well a few problems there, firstly its not an overdraft, M&S own website records confirm this, secondly an overdraft needs a current account to be sustained, you cannot have an overdraft without a current account, thirdly, the account couldnt hold a credit balance so therefore it couldnt be an overdraft.
We had a number of other issues to take but that was a flavour.
So we go to trial, the judge rules the agreement is irredeemably unenforceable, helpfully the statement we had said “Just ring us and we will give you credit” thus no signed agreement any way, and the Judge also ruled there was non compliance with s78 and basically Arrow never had a hope.
We also argued that we should be entitled to recover the costs for the client who was out of pocket. The judge disagreed to begin with but once Tom Brennan made his submissions it was game over, the judge agreed the Claimants conduct was so bad that they should pay the costs. One of Toms points was that they were claiming they didnt need to comply with s78 CCA which was plainly wrong and they knew it was wrong from their own documents but they still maintained the argument anyway.