Another day another blog……………this time one which didnt need a County Court to decide. The case turned on a Bank of Scotland credit card. The story went something like this………………………………………..
A customer receives an invitation to apply for a credit card. Customer completes the application form and gives the bank all of their financial information. Bank takes that information and misapplies it, instead of setting aside income for Housing Benefit, the bank includes this in the customers financial info, thus over-inflating their income.
The bank on the back of this offers a credit card, which it knows plainly would be unaffordable.
The credit agreement that the customer signed up to was not signed by the bank ( we had disclosure of the original) and also did not have the necessary prescribed terms within it.
So we placed the bank on notice of the numerous errors, citing everything from irredeemable unenforceability through to irresponsible lending creating an unfair relationship.
The bank denied liability, denied everything in fact, but then in a moment of guilt maybe decided that nevertheless it would write off the whole debt, discharge the customer from their contractual obligations, and consider the matter closed.
Now ill leave it up to you to make your mind up on who was right, but id say that if someone owed me money and i thought they legally had to pay it back i wouldnt be writing off nothing, would you?
Two good results this week for the Consumer Team at Howlett Clarke, firstly 1st Credit were silly enough to go head to head with me and Tom Brennan, and as a result, lost in spectacular form, and also they faced my colleague Chris Chapman in another matter. The result was the same although they saw sense and discontinued that case before the inevitable happened.
In the case i dealt with, it involved a Halifax credit card account, which had been allegedly assigned to 1st Credit. There was no Default notice apart from a template, which in itself was plainly unhelpful to the Claim as it dated apparently three years before the default actually occured (Whoops) and also the dates on the notice meant that it at best only allowed 13 days assuming it was delivered on the day it was dated for the debtor to remedy the breach. Thus their best evidence sunk their case before it even touched the water.
They also provided illegible documents under s78(1) Consumer Credit Act 1974, but we didnt need to go that far, the Court was happy to dismiss the claim purely on the Default notice.
It is of course interesting to note that the Claimant tried to argue that there had been some kind of “contractual termination” ala Brandon v Amex, however what was quite telling of that argument was the fact that it was not
- Mentioned in the Claimants evidence
- Subject to any correspondence between the parties
Accordingly the Judge refused to allow the volte face by the Claimant and refused to allow them to depart from their pleadings.
The only down side of this case was the Court did not allow costs as it was a small claim and the Court did not feel that the Claimants conduct was so unreasonable to trigger CPR 27.14(2)(g)
However, we were able to make the case affordable, and are now looking at progressing fixed fees for small claims cases to make litigation and representation accessible to those even with small claims cases.