Elephant in the room

[PriorityOne]

Re: Elephant in the room

Indeed which i believe would shift the burden of proof(I think).
However I believe that this particular remark was made outside the content of the judgment, which as we know was about the section 78 issues.

Read the Waksman judgement for further clarity.... paras. 108 & 234 in particular. Balance of probabilities doesn't/shouldn't come into it.

[gravytrain]

Re: Elephant in the room

I think the level of proof required in any civil case is always, "on the balance of probabilities", unless I have missed something

[Paul.]

Re: Elephant in the room

I think the level of proof required in any civil case is always, "on the balance of probabilities", unless I have missed something

Correct, it is, on balance or as i call it, more likely than not

[greymatter]

Re: Elephant in the room

Carey was also the Claimant, which tends to get overlooked.

This does tend to be the case.

[helmsman]

Re: Elephant in the room

Correct, it is, on balance or as i call it, more likely than not

Hi Paul,
Just for my small brain if you signed a quick application form ie a mail shot but never signed a proper agreement is that good enough for U/E argument.

[Paul.]

Re: Elephant in the room

Hi Paul,
Just for my small brain if you signed a quick application form ie a mail shot but never signed a proper agreement is that good enough for U/E.

The answer is in section 127(3) of the 1974 Act.


There must be a document, signed by the debtor, containing the prescribed terms.

That is all that is necessary to be enforced by the Court

[jon1965]

Re: Elephant in the room

Or in other words yes. If the leaflet had all the pts in it as one document and they can show that this is the case you are screwed on this point.
Have i got that right?

[gravytrain]

Re: Elephant in the room

Or in other words yes. If the leaflet had all the pts in it as one document and they can show that this is the case you are screwed on this point.
Have i got that right?

I think the PT's and the signature have to be contained within the same document. A document however can be more than just one page.

It is not good enough to have a signature document minus PT's and then a separate document containing the terms and conditions.

[Paul.]

Re: Elephant in the room

I think the PT's and the signature have to be contained within the same document. A document however can be more than just one page.

It is not good enough to have a signature document and then a separate leaflet containing the terms and conditions.

Not quite

the Consumer Credit Agreements Regulations were amended, before the amendment, the signature did not have to appear on the same page as the prescribed terms

[gravytrain]

Re: Elephant in the room

Not quite

the Consumer Credit Agreements Regulations were amended, before the amendment, the signature did not have to appear on the same page as the prescribed terms

I don't think i said they did, anyway you are right they don't have to appear on the same page just within the same document.

[jon1965]

Re: Elephant in the room

Sorry, mixed up again. Does not an agreement need both creditors and debtors signature to be valid or am i mixing up legislation?

[Paul.]

Re: Elephant in the room

I don't think i said they did, anyway you are right they don't have to appear on the same page just within the same document.

correct, im multitasking so didnt read what you said

apologies

[gravytrain]

Re: Elephant in the room

One of my many problems with Carey was the re-definition of the word "document", which has relevance in this discussion i think.

When I was at school a document was sheets paper all of similar size contained together. Now it seems that a document is defined not by it's form but by its content, in other words if the content is connected it does not matter if half of it is on A4 and half on a glossy pamphlet, from what I read this would still represent a single document, seems barmy to me.

[gravytrain]

Re: Elephant in the room

correct, im multitasking so didnt read what you said

apologies

No need Paul

[gravytrain]

Re: Elephant in the room

Sorry, mixed up again. Does not an agreement need both creditors and debtors signature to be valid or am i mixing up legislation?

No just the debtors signature is a requirment.

Lack of a creditors signature would mean that the agreement was improperly executed, but it would still be enforceable as it would just be a minor defect and not trigger section 127(3)