Cementing the interpretation of Section 127(3) CCAct 1974(as amended)

[vulture_bank]

© F A R Bennion Website: Francis Bennion -

Doc. No. 2003.061 JPN008L 167 JPN (2003) 773

Any footnotes are shown at the bottom of each page

Consumer Credit Act 1974 s 127(3)

As the draftsman of the Consumer Credit Act 1974 I would like to thank Dr Richard Lawson

for his interesting and well-argued article (30 August 2003) on Wilson v First County Trust

Ltd [2003] UKHL 40, [2003] 4 All ER 97.

Dr Lawson may be interested to know that I included the provision in question (section

127(3)) entirely on my own initiative. It seemed right to me that if the creditor company

couldn’t be bothered to ensure that all the prescribed particulars were accurately included in

the credit agreement it deserved to find it unenforceable, and that the court should not have

power to relieve it from this penalty. Nobody queried this, and it went through Parliament
without debate. I’m glad the House of Lords has now vindicated my reasoning and confirmed that nobody’s human rights were infringed.

167 Justice of the Peace (2003) 773.

in order to cement the meaning of the above may we refer to the following :--

HOUSE OF LORDS

Lord Goff of Chieveley Lord Lloyd of Berwick Lord Hoffmann

Lord Hope of Craighead Lord Clyde

OPINIONS OF THE LORDS OF APPEAL FOR JUDGMENT IN THE CAUSE

INVESTORS COMPENSATION SCHEME LIMITED

(

APPELLANTS)

v.





WEST BROMWICH BUILDING SOCIETY AND OTHERS

(RESPONDENTS)
ON 19 JUNE 1997

House of Lords - Investors Compensation Scheme v. West Bromwich Building Society

http://www.publications.parliament.u...9/invest01.htm

http://www.publications.parliament.u...9/invest02.htm



The meaning of the language

The objection to the plain meaning is the inclusion of the words "for undue influence" after "rescission"; for any lawyer would know that there are other grounds on which the investor might claim rescission, for example, on the ground of misrepresentation. Why, therefore, should the draftsman have specifically included one of the grounds on which the investor might claim rescission, but not others?

We do not know the answer to this question. It may be that if one had access to the preliminary drafts of the Claim Form, or to the mind of the draftsman himself, the answer would emerge clearly enough. It may be that a claim for rescission on the ground of undue influence was, for some reason, uppermost in the draftsman's mind; so he put the words in. But we cannot go into the draftsman's mind. We having nothing to go on but the words he has used. The inclusion of undue influence is odd, but not so odd as to obscure the meaning. "Or otherwise" must relate back to "whether sounding in rescission." Any other construction would leave "whether" hanging in the air. So "or otherwise" covers claims in contract and tort. It is not limited to other grounds for claiming rescission. The drafting is slovenly. But I do not have any great difficulty with the meaning.

It is said that the plain meaning would make the words in brackets otiose. So indeed it would. But words in brackets are often otiose, especially brackets in the format "(whether . . . or otherwise)." They show that the general words which precede the parenthesis are not limited to any particular kind of claim, but cover all claims so long as they are claims for reduction of sums due.

What are the alternatives? Mr. Vos submits that section 3(b) means "any claims sounding in rescission (whether for undue influence or otherwise) in which you claim an abatement . . ." I agree with Evans-Lombe J. that such a construction does violence to the language. I know of no principle of construction (whether by reference to what Lord Wilberforce said in Prenn v. Simmons [1971] 1 W.L.R. 1381, 1384-1386 or otherwise) which would enable the court to take words from within the brackets, where they are clearly intended to underline the width of "any claim," and place them outside the brackets where they have the exact opposite effect. As Leggatt L.J. said in the Court of Appeal, such a construction is simply not an available meaning of the words used; and it is, after all, from the words used that one must ascertain what the parties meant. Purposive interpretation of a contract is a useful tool where the purpose can be identified with reasonable certainty. But creative interpretation is another thing altogether. The one must not be allowed to shade into the other………….

[sparkie1723]

I may cause a few eyebrows to lift, but I am posting a copy of a CCA agreement that section 127 actually refers to, and what it actually means.
I believe it means that the executed agreement should contain ALL the original term and conditions in its whole entirety itself not in a separate document.

I post below what I consider a CCA that complys with all the regs and Act.
This I believe is one of the very few CCA agreements that is completely lawfull and cannot be fought very easy ...its a good one.

You will see that page 1 contains all the financial particulars ...properly formatted.
pages 2 & 3 contain all the terms and conditions.

Page 4 contains the signature boxes etc etc etc.,

This means that you sign the full agreement at the very end all the terms and conditions are embodied in the actual agreement. You can't say you never read them or anything as all the signatures are at the end of the agreement and not on the first page.

I think this agreement can be used to show that any agreement that is not in this format is most likely UNLAWFULL and does not fully conform to the CCA or Regs.

I know its a HP agreement but it is a CCA agreement, its the layout that matters.
I think this is what Francis Bennion was trying to say.

Comments anyone

sparkie




Page 2 .....Terms and Conditions

Page 3 the rest of the terms and conditions

[The Terminator]

Agreed.This looks like one of the better ones

Term

[TANZARELLI]

http://www.francisbennion.com/pdfs/f...974-s127-3.pdf

Here is the link to VB's initial post

[BOUDICCA]

Originally Posted by TANZARELLI

http://www.francisbennion.com/pdfs/f...974-s127-3.pdf

Here is the link to VB's initial post

Exactly Right!

BOUDICCA

[sparkie1723]

Originally Posted by BOUDICCA

Exactly Right!

BOUDICCA

All County Court Judges should be made to read this till they know it by heart,and be made to learn from thier betters, and if a CCA isnt set out like that Capital Bank one ...throw it out of Court

sparkie

[Tamadus]

Although this is an excellent example of a credit agreement it does have one thing which could prove an expensive item.

If we look at the charges for credit we have an acceptance fee which is payable with the first payment. Then we have the charges which will be interest payable. Item 3 though is a credit facility fee (please don't ask me what this is for, I have no idea) The problem here is that this credit facility fee is payable with the last payment, this invariably means it will incur interest throughout the loan period.

Had they allowed for this to be paid at the start of the agreement it would have been virtually perfect.

[sparkie1723]

Originally Posted by Tamadus

Although this is an excellent example of a credit agreement it does have one thing which could prove an expensive item.

If we look at the charges for credit we have an acceptance fee which is payable with the first payment. Then we have the charges which will be interest payable. Item 3 though is a credit facility fee (please don't ask me what this is for, I have no idea) The problem here is that this credit facility fee is payable with the last payment, this invariably means it will incur interest throughout the loan period.

Had they allowed for this to be paid at the start of the agreement it would have been virtually perfect.

Hi Tam, I only posted this to show that this is how an agreement must be formatted to comply with section 127, not if it is expensive or any other note ...
just that it contains all the terms and conditions.....and how EVERY single Lawfull enforceable regulated CCA agreement should be..... all the others that have the terms and conditions supplied separately are unlawfull if it is not formatted like this and the signatures on the Last page.
Not on the first .

And could be used to support claims about other CCA agreements as an example to educate judges how they should be formatted.

sparkie

[Tamadus]

I appreciate your motives for posting it Sparkie and I agree it is an excellent example of what an agreement should be. This is more like what they should send out once the initial application form has been completed and credit checks carried out. We sign it, they sign it and send usa copy and IMHO 10 days later they send a credit card or whatever.

Its a very good example and many thanks for posting it. I have said in the past that GE do have good agreements (for them lol)

I think I have been looking for flaws in these for so long now it's become second nature to find anything which is questionable.

[ian1969uk]

The agreement posted even has page numbers to show that they are part of one document. Many multi-page agreements don't have that and can therefore be challenged on that basis.