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  #21  
Old 18-12-2007, 12:45 PM
ncf360 ncf360 is offline
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CCA 2006 -

11 The repeal by this Act of—

(a) the words “(subject to subsections (3) and (4))” in subsection (1) of section 127 of the 1974 Act,

(b) subsections (3) to (5) of that section, and

(c) the words “or 127(3)” in subsection (3) of section 185 of that Act,

has no effect in relation to improperly-executed agreements made before the commencement of section 15 of this Act.

I for one would be prepared to give towards an appeal fund if it is still possible to appeal the judges decision - just what was he thinking?
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  #22  
Old 18-12-2007, 06:55 PM
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I'd donate too, a judge that has simply ignored the law needs bringing to task.
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  #23  
Old 19-12-2007, 10:33 AM
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Me too (would have to be a postal order though lol as dont have credit cards any more for some reason LMAO oh or a cheque book)
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  #24  
Old 19-12-2007, 10:42 AM
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We need to get the campaign funds rolling in for this fight. Rhia is already speaking to the solicitors and I know Bradley Say does not come cheap 2000.00 was the last quote for him
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  #25  
Old 19-12-2007, 11:10 AM
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Hi

Did the judge actually say section 127(3-5) unenforceablitity was not relevant in this case because the removal of the section was retrospective?

Best regares
Peter
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  #26  
Old 19-12-2007, 11:36 AM
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From what has been posted up about that hearing, it appears that the agreement was deemed improperly executed under 127(1) because it was illegible. It was not wholly unenforceable under s127(3), because this section only applies if no document containing the prescribed terms was signed by the debtor. The agreement did contain all the prescribed terms, albeit illegible on the copy supplied.

No changes have been made to s127 (1). The agreement is enforceable on an order of the court only, and the judge decided that there was no evidence of prejudice (or insufficient evidence pleaded) and decided to allow enforcement.

Is this right, because I can't see how a judge can simply chose to ignore s127(3) if an agreement is actually caught by it!
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  #27  
Old 19-12-2007, 12:22 PM
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HI
I see
I suppose this is why the question of prejudice was brought up.

I would have thought that if the Prescribed terms were not easily legible as per the the agreement regulations they should not have been considered to be have being there at all and section 127(3-5) would apply.
So the question would be are they easily legible if so then it is enforceable or if not then section127(3) applies and it is not.

Best regards
Peter
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  #28  
Old 19-12-2007, 12:32 PM
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Yes, but s127(3) states:

(3) The court shall not make an enforcement order under section 65(1) if section 61(1)(a) (signing of agreements) was not complied with unless a document (whether or not in the prescribed form and complying with regulations under section 60(1)) itself containing all the prescribed terms of the agreement was signed by the debtor or hirer (whether or not in the prescribed manner).

So, even though illegible, the prescribed terms were there (in some manner) in a document that was signed by the debtor!
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  #29  
Old 19-12-2007, 12:33 PM
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Hi
Dont agree
If this were true where would it end they could be on a microdot.
Best regards
Peter
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  #30  
Old 19-12-2007, 12:52 PM
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Yes, I agree that it is a slippery slope, but the judge does appear to have given the question of enforcement some consideration and did recognise that the illegibility was an issue. If sufficient prejudice had been pleaded then it's possible that enforcement would not have been allowed, or the agreement may have been re-opened and altered to effect compensation.

The problem is proving prejudice. If the document produced in court was the original, and was illegible, then it would be easy to say that the terms were never readable and so the debtor had no way of knowing exactly what was being agreed to at the time of signing. If it was a copy, then the creditor could argue that the illegibility was due to copy quality and that the original would have been legible at the point of execution. How could this be challenged?
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