CABOT UK LTD v BACHELLIER [2010]

Re: Cabot Financial (UK) Limited-v Bachellier [2010]

I think its important to note that the breaches in this case centred around the terms and conditions at the point of assignment. Cabot produced terms and said that they were the terms applicable to the account at the point it was assigned to Cabot

I made a very important part 18 request for information. That request was to ascertain if , from the date of assignment to the present date, had there been any variations of the agreement pursuant to s82 Consumer Credit Act 1974. Cabot said no there had not so therefore the terms in-force at the point of assignment were those that had to be produced.

However, since i had the Harrison file, i could show what terms were inforce at key points over the term.

Unfortunately Cabot didnt do their home work, and the late payment charges didnt line up with the charges levied on the statements.

And the judge found against them

Another Judgment for the people.

Case No: 9XE32537
IN THE HASTINGS COUNTY COURT

The Law Courts

Horntye Park

Bohemia Road

Hastings

East Sussex

TN34 1QX

Friday, 29 October, 2010

Before:

DEPUTY DISTRICT JUDGE WINSLETT

_______________________

Between:

CABOT FINANCIAL (UK) LIMITED

Claimant

- and -

NATHAN MARK BACHELLIER

Defendant

_______________________

MR NEWMAN appeared on behalf of the Claimant.

MR POWELL (instructed by Watsons Solicitors, Llandudno) appeared on behalf of the Defendant.

_______________________

JUDGMENT (as approved)

_______________________

Tape Transcription by Audrey Jones Transcription,

49 Hill Rise, Romiley, Stockport, Cheshire SK6 3AP

Tel: 0161 430 4705 Fax: 0161 217 9626 ajtranscription@ntlworld.com

1. I have taken time to consider the submissions that were made to me before lunch by both the advocates in this case, Mr Newman for the claimant and Mr Powell for the defendant, and also consider the various documents and number of authorities that have been provided to me.

2. Can I say right at the outset I am grateful to both advocates in this case for the care and consideration that they have given in preparing their respective positions. This has not been an easy case. In these cases under the Consumer Credit Act we are looking at technicalities and I am very grateful for the assistance that you have both given me in ultimately reaching the decision in this case.

3. The claimants by their claim as Cabot Finance Limited seek to recover from the defendant the sum of £5,907.76. As far as the claimant is concerned it is the monies due under a Mastercard account that was entered into by the defendant with MBNA Europe Bank Limited. There is no dispute in this case that the defendant entered into such an agreement and that was in May 2000. One can see the document signed by him in the bundle at document 196.

4. The account seems to have run for some time and subsequently, as so often happens in respect of credit card agreements, there is an assignment of the debt as appears in this case.

5. The two issues that I have got to decide are, firstly, was there a proper assignment and following upon that was the defendant given the appropriate notice under the provisions of section 136 of the Law of Property Act 1925 of the assignment of that debt. It is conceded by Mr Newman that if I find against him on that point then his case comes to an end because he has no standing as far as seeking recovery from the defendant.

6. The second point of law I have got to decide is whether or not under the provisions of the Consumer Credit Act, section 78, have the claimants provided the defendant with a true copy of the agreement and terms and conditions, but it goes a little bit further than that because it is not just providing him with a copy, he has got to be provided with a copy effectively that is covered under the Consumer Credit (Cancellation Notice and Copies of Documents) Regulations 1983, Regulation 2(1),
“The lettering in every copy of an executed agreement delivered or sent to a debtor under any provisions of the Act shall, apart from any signature, be easily legible and of a colour which is readily distinguishable from the background medium upon which the information is displayed.”

7. So there are two aspects or two limbs basically under 78, has he been provided with a true copy of the agreement, and particularly the terms that applied at the time of assignment in September 2005, and if copies have been supplied are they legible? If I find that that section and the Regulations have not been complied with then once again it is conceded and accepted in law by Mr Newman the action fails.

8. I therefore propose first of all dealing with the question of the assignment.

9. Within the bundle there is an agreement to purchase entered into between Kingshill No 1 Limited and MBNA to purchase various credit card debts. I have heard evidence today that details of the debtors are contained in a DVD and at document 318 and 319 details relating to the defendant do appear. It was raised by Mr Powell in his submissions to me that the name on the reconstructed letter notice of assignment was different to that of Kingshill No 1 Limited. I do not find that assists his case whatsoever. Cabot in fact were in existence before the assignment. It is a reconstructed letter. It may well be that the letter that did go out had Kingshill No 1 Limited on it, I know not, but it is reconstructed. I do not find as far as that point is concerned that it in any way affects my decision regarding the question of the assignment.

10. The claimants by letter dated 28 October 2005, and that is document 193, wrote to the defendant at (ADDRESS) giving him information that they had now taken over the account and that in fact the debt had been assigned. There is no dispute, and that is evidence from the defendant himself, that during that period, although not physically living at (ADDRESS) , his partner was still at that address. No arrangement had been made for post to be forwarded elsewhere and certainly within the claimant’s records it shows that a letter, and I find on the balance of probability it is the letter of 28 October 2005, was sent to the defendant informing him of the assignment.

11. There is one issue regarding the assignment and Mr Powell in his submissions to me says that, even if that is a notice of assignment, it is not sufficient because there is all the confusion regarding various account numbers and therefore that letter of 28 October 2005 is invalid. I asked him whether or not there was any law that he wished to put before me, because ticking away at the back of my mind going back to my student days there is always something about certain notices under the Law of Property Act and their format. When Mr Newman made his submissions to me he produced the case of Van Lynn developments Limited v Pelios Construction Co Ltd. It is a judgment of the Court of Appeal, October 8 and 9 1968 and the judgment of Lord Denning, who at that time was the Master of the Rolls, when he considered in his judgment what was sufficient notice of assignment and the format of a notice. What was sufficient notice of assignment and the format of a notice. At page 612, paragraph E, he says,
“What is a sufficient notice of assignment? There are only two or three cases on the subject. There is the case of Stanley v English Fibres Industries, Ltd which was accepted and applied by this court in W F Harrison & Co Ltd v Burke. Those cases show that, if a notice of assignment purports to identify the assignment by giving the date of the assignment - and that date is a wrong date - then the notice is bad. The short ground of those decisions was that the notice with a wrong date was a notice of a non-existing document. Assuming those cases to be correct, they leave open the question whether it is necessary to give the date of the assignment. Test it this way,”
In his usual style,
“suppose the mistaken sentence was omitted in this letter so it ran, ‘We have been instructed by our above named clients to apply to you for a payment of the sum of £5,296.19.5 outstanding,’ following the assignment of the debt to them by the National Provincial Bank. Would that be a good notice, even though it give no date for the assignment? I think it would. I think the correct interpretation of the statute was given by Atkins J in Denny Gascoigne(?) & Metcalf v Coglin. It is quite plain from his judgment that no formal requirement was required for a notice of assignment. It is sufficient if it brings,”
and this is page 613 paragraph (a)
“to the notice of the debtor with reasonable certainty the fact that the deed does assign the debt due from the debtor as to bind the debt in his hands and prevent him from paying the debt to the original creditor.”

12. I am satisfied, because we know that when the Law of Property Act was enacted we were not at that stage in history dealing with credit cards, but I get considerable assistance from, as always, the lucid judgment of Lord Denning, as he was then, that, even if there is some mistake it does not invalidate the notice. It is quite clear from the letter of 28 October 2005 to the defendant that the claimants had taken an assignment of the debt. They were the ones that had to be paid, there is no doubt about that. I also find as a matter of fact that the letter of 28 October 2005 was received by the defendant and therefore as far as the assignment point is concerned I am satisfied that this debt was duly assigned to the claimants.

13. The next point is to consider section 78 and clearly, as was said in the judgment in the case of MBNA v McCullheh, consumer provisions are there to protect the consumer. Even if a debtor accepts, as in this case, he entered into an agreement, that does not override in any way the obligations that are set out within the Consumer Credit Act and the regulations that were made following upon the Act.

14. For the purpose of the record, section 78(1) of the Consumer Credit Act 1974 states the following:
“The creditor under a regulated agreement for running account credit within the prescribed period after receiving a request in writing to that effect from the debtor and payment of a fee of £1 shall give the debtor a copy of the executed agreement, if any, and any other documents referred to in it.”
One then moves to section 78(c):
“If the creditor under an agreement fails to comply with subsection (1) -(a) he is not entitled while the default continues to enforce the agreement,”
but we must also read, as I have indicated at the outset of this judgment, the Consumer Credit (Cancellation Notice and Copies of Documents) Regulations 1983, regulation 2(1) which states the following:
“The lettering in every notice in a form prescribed by these regulations and in every copy of an executed agreement or other document referred to in the Act and delivered or sent to a debtor under any provisions of the Act shall, apart from any signature, be easily legible ...”

15. First of all, have the claimants complied with section 1 by providing a true copy of the agreement in this case, and if they have is it legible? I have heard very clear and crafted submissions by both advocates in this case. There is confusion regarding various numbers that appear on documents throughout. There is no doubt that the agreement or the front page of the agreement was signed by the defendant but I have got to be satisfied not that I am sure, because that is the criminal standard, but, on the balance of probability, have the claimants provided, whether reconstructed or not, the terms and conditions that would have been provided at the time of the signing of the agreement.

16. One of the difficulties I find in this case, although there is the signed agreement, there are a number of other documents, terms and conditions, certainly as it is submitted by Mr Newman on behalf of the claimants, that one should look at the documents and they clearly relate to this account. But how can I be satisfied that they do? There is nothing between the original documents signed by him and the various terms and conditions relating to the agreement entered into by the defendant with the claimant to show those terms and conditions relate back to the document with his signature on. There is nothing initially at the top.

17. Also, the original terms and conditions as contended by Mr Newman have a clause, and that is document 199, showing late payment of £15. This is something I have struggled with and it was a question I did ask, were there any other documents, any other variations. We have the defendant’s statements from pages 245 to 260 and they range from a period 3 June 2004 through to 3 October 2005 where it shows a late payment charge of £25. We then have a further document which the evidence was the terms and conditions at the time of the assignment would show a penalty charge of £12. I have got to be satisfied that the claimants in this case have provided all the relevant documents, but I do find it a slight mystery that in the statements provided by or contained within the bundle relating to the defendant’s account, as I have said at pages 245 to 260, seem to have a late payment of £25. That does not come out of thin air, which leads me to believe that there must be further documentation available in this case and it has not been produced.

18. The other issue is the question, as I have already dealt with, under the Consumer Credit Regulations, Regulation 2(1). Are the documents legible? Well, one has got to apply common sense. It is not something that comes within the statute. We have got a copy of the document at page 196. We have got copies of the various terms and conditions at pages 197 and 199. Even with my glasses, that are varifocals and therefore give me an advantage of reading at fairly short quarters, I have struggled in reading those documents. When one looks at other documents even with slightly smaller print, and take for example the case that Mr Newman was good enough to hand up to me, although it is reasonably small print it is fairly clear to read and understand. I find that the claimants in this case have not complied with section 78.

19. On the balance of probability I am not satisfied on the evidence before me and certainly it may have assisted the claimants in this case, I know not, if there had been some direct evidence from MBNA in this case, but we have heard nothing from them. The evidence that I did hear, and certainly Mr McCausky endeavoured to do the best he could on the information that was available, but there were holes in providing perhaps clearer details relating to the original contract. I am not satisfied that the claimants have complied with section 78(1). Nor am I satisfied that the documents that they did supply and with the best will in the world, and I pondered over this because it is a question of common sense, it is not a question of law or otherwise, whether or not the documents that were put before me were legible. I do not find that they were and therefore, in those circumstances, in light of those two findings that I make under section 78 and the under the Regulations, and as it was conceded by Mr Newman at the outset of this case if I find against the claimants on those points then the claim must fail and therefore in those circumstances, although I find that the debt was assigned, I do not find that there has been compliance by the claimants with the provisions of section 78 of the Consumer Credit Act, nor the provisions of Regulation 2(1) of the Consumer Credit (Cancellation Notice and Copies of Documents) Regulations 1983, and therefore in those circumstances this case must fail.

20. Therefore, I dismiss the claim.
______________________________

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CABOT UK LTD v BACHELLIER [2010]

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CABOT UK LTD v BACHELLIER [2010]