|
|
|
|
Chartered
Trust plc v Pitcher Where a finance company re-possessed under a hire
purchase agreement goods protected under section 33(1) of the Hire Purchase Act
1965 otherwise than by action, that constituted a contravention of section 34(1)
if the hirer had not given an unqualified and informed consent to re-possession.
But such recovery would be permissible if it did not amount to "enforcing
any right" within the section. The Court of Appeal dismissed an appeal by Chartered
Trust plc from an order of a County Court judge, whereby the judge dismissed a
claim for £2,451 made by the company against Mr R. J. Pitcher. This was the
balance due from Mr Pitcher under a hire purchase agreement dated October 10,
1982, in respect of a Ford Granada car. Section 33(1) of the 1965 Act defined "protected
goods" as goods let under a hire purchase agreement of which one third of
the hire purchase price had been paid and when the hirer had not terminated the
agreement. It was held that it was clear that if there was
unqualified and informed consent by Mr Pitcher to the collection of the car by
Chartered Trust, then there could be no question of a breach of section 34(1). The section was penal in its consequences and it was
obviously impossible to conclude that if a finance company recovered possession
with the unqualified and informed consent of the hirer it was "enforcing a
right", that is, a right conferred by the hirer's consent. The issue turned
on the effect of the word "enforce". That implied action which was not
consensual, but to some extent coercive. The judge held that the recovery of the car was not
consensual because Mr Pitcher's consent to it was not "informed
consent". On the facts, the circumstances in which possession of the car
was recovered by Chartered Trust showed that its recovery was not on a merely
consensual basis so far as Mr Pitcher was concerned. The recovery which was made
was sufficiently coercive to amount to an enforcement of a right otherwise than
by action and that contravened section 34(1). It was never Mr Pitcher's wish
that Chartered Trust should simply take the car back. He did not intend to
exercise the option to terminate the agreement. What he really wanted was to
keep the car on the basis of some re-arrangement of this financial obligations. The court had power to make an order to that effect under
section 35 although Mr Pitcher did not know that. |