ON APPEAL FROM LEICESTER COUNTY COURT
(HER HONOUR JUDGE HAMPTON)
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE LLOYD
LORD JUSTICE PATTEN
|MR. DEVENDRA KOTECHA
|- and -
WordWave International Limited
A Merrill Communications Company
165 Fleet Street, London EC4A 2DY
Tel No: 020 7404 1400 Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
Mr Guy Sims (instructed by Messrs Weightmans LLP) appeared on behalf of the Respondent.
Crown Copyright ©
Lord Justice Lloyd:
"(1) 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 of any other document referred to in it, …"
I need not read the rest of that subsection.
"(6) 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."
"The terms and conditions of the agreement are set out on the face of the agreement and on the second page headed 'Terms and Conditions'. The terms and conditions on the second page are standard for various types of agreements at various times. Rather than scanning in the terms and conditions the claimant retains copies of the standard terms used for particular agreements at particular times. Terms and conditions annexed to the Particulars of Claim with the first page of the agreement are the terms and conditions of the agreement."
(The reference to the Particulars of Claim is unfortunate; it should be to the Reply. No document was annexed with the Particulars of Claim which were issued through the Northampton County Court Bulk Processing Centre.)
"Accordingly, there is acceptable evidence before the Court that the terms and conditions that are set out on pages 59 and 60 of the Court's bundle were those that were in operation at the material time and were those that would have been attached to the application form and which subsequently became the credit agreement which had been signed by both parties, as can be seen on page 58."
"27. The claimant has appropriate records and those records, in my judgment, establish on the balance of probabilities that the terms and conditions that had been archived by the claimants relating to this particular agreement are those which are to be found on pages 59 and 60 of the Court bundle. The fact that there had been a change of name when Beneficial merged with HFC is neither here nor there. It seems to me that the document on pages 59 and 60 is clearly referring to what is described as a Beneficial scheme at the bottom left hand corner of page 59 when HFC took over Beneficial and its business and started to use Beneficial as one of its trading names. That does not necessarily mean that the terms and conditions set out on pages 59 and 60 related to a different time.
28. Accordingly, from the defendant's description of the type of document he signed, I find on the balance of probabilities that the document he signed did indeed contain terms and conditions of the credit card agreement and that those terms and conditions I find, using the evidence that the claimant has supplied, on the balance of probabilities, are those terms and conditions set out at pages 59 and 60 of the Court bundle."
"We may from time to time, by giving you reasonable notice which will not be less than seven days' notice in writing or notice in such other way as is required or permitted by law…
(ii) introduce and/or maintain either generally or on specific promotions only different interest rates and APRs for balance transfers, cash advances, transactions or different balances outstanding on the account."
I need not read out (iii), which deals with the right to vary the interest rate.
Lord Justice Patten:
Lord Justice Thorpe:
Order: Appeal allowed