|
| |
Rankine v
American Express Europe Ltd and others
QBD 16 May 2008
Mr & Mrs
Rankine had debts with various financial institutions. They profess to be
financial advisers and raised various arguments in support of their claim that
the debts were unenforceable.
-
They claimed that under s.78(6) of the
Consumer Credit Act 1974, an alleged non-delivery of copy agreements
rendered the agreements unenforceable; however the court heard evidence from
the lenders to the effect that copies had been correctly despatched. The
court also commented that, once an agreement had been terminated, s.78(6)
would have no effect.
-
Where an agreement is not cancellable under
section 67 of the Act but has been drafted as a cancellable agreement
(granting a contractual right to cancel the agreement notwithstanding that
there is no statutory right to cancel), the absolute bar to enforcement
under section 127(4) of the Act (as it then was, prior to its repeal), would
not apply. {This was the same
issue as was considered in the Rankine v MBNA case above.}
-
Section 62 of the Act, read with Regulation
3(1) of the Consumer Credit (Enforcement, Default and Termination Notices)
Regulations 1983, requires statutory copies of the agreement to be provided
to the borrower. On the facts copies had been provided electronically by the
lenders to the borrowers.
-
Sections 87 and 88 of the Act, read with the
Consumer Credit (Enforcement, Default and Termination Notices) Regulations
1983, require default notices, complying with statutory requirements, to be
issued. The court had no power under section 142(1) of the Act to make a
declaration where a defective default notice had been served, as the power
only exists in a case where the court could grant an enforcement order.
Furthermore, the contentions raised by Mrs Rankine were factually and
legally flawed.
The judgment commented that the context and
purpose of the Consumer Credit Act 1974 was to protect the individual who is
unsophisticated in financial affairs in contracts with unscrupulous and
sophisticated financial institutions. It was not design to help individuals in
the financial services business to make money out of financial institutions
through exploiting its undoubted technicalities.
Download
complete judgment (as Word file)
12/01/2010
|