Emma Carey v HSBC Bank plc et al

Emma Carey v HSBC Bank plc, Shafeel Yunis v Barclays Bank plc, Samantha Conniff v Barclays Bank plc, Mohammed Adris v Royal Bank of Scotland plc, Brian Backwell v Royal Bank of Scotland plc, Rajan Mandel v Royal Bank of Scotland plc, Andrew Light v MBNA Europe Bank Ltd and Robert Atkinson v Bank of Scotland plc.
Queen's Bench Division, Manchester Mercantile Court 23 December 2009

These cases arose from concerns at County Courts over the deluge of claims being made via Claims Management Companies (CMCs). Various CMCs were asked to put forward cases which could be taken together to the High Court. The OFT was also represented during the hearing.

The CMCs raised a number of different issues which were covered in the judgment, covering mostly whether copy agreement rules were satisfied in relation to credit card agreements (s.78 of the Consumer Credit Act 1974). In summary, the findings were:

(1) s.78 is satisfied if a reconstituted version of the agreement is provided, even where this generated using sources other than the agreement itself;

(2) the s.78 copy must include the name and address information as per the original agreement;

(3) the document provided under s.78 need not comply with the form of the signable agreement;

(4) the creditor must under s.78 provide a copy of any changed terms, or a copy of the amended agreement, in addition to the terms in the original agreement;

(5) a breach of s.78 does not on its own generate the possibility of an unfair relationship;

(6) it is up to a court whether it makes a declaration that s.78 is breached, depending on the circumstances which it finds;

(7) it is a matter of fact whether an agreement is complete with all its prescribed content, but is acceptable for there to be more than one sheet comprising an agreement;

(8) those cases claiming an unfair relationship should be struck out as merely speculative. There was no evidence on which a claim could be made.

For full judgment, see here.

[Comment: most of the issues here just confirm the clear provisions in the Consumer Credit Act 1974. Some of media comment has focused on the ways in which a creditor could now go to court using a reconstituted agreement, and without ever producing the original signed agreement. However, it remains the duty of the claimant to provide "best evidence", so evidence will be required to justify the use of any other than the signed agreement. See CPR 31.16.)