English and Welsh Courts - Miscellaneous

IN THE BIRMINGHAM COUNTY COURT

Case No: 1QC52483

Priory Courts 33 Bull Street Birmingham

B4 6DS

24th January 2012

BEFORE:

MR RECORDER CAMPBELL

(instructed by Messrs Watsons Solicitors, Llandudno)

APPROVED JUDGMENT including s and e and t

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JUDGMENT

MR RECORDER CAMPBELL:

1. This is a claim brought by the claimant for monies allegedly owed by the defendant under a credit agreement regulated by the Consumer Credit Act 1974. It is claimed that the credit agreement was made between Barclaycard and the defendant in about June 2006. It involved the provision of a credit card by Barclaycard to the defendant.

2. It is claimed that the debt was assigned from Barclaycard to the claimant and in this action the claimant claims the principal sum of £7,246.06 plus contractual interest.

3. This has been listed before me as a one day Fast Track trial of the entire action. No doubt it was allocated to the Fast Track because of the amount involved and the time estimate that had initially been put forward by the parties. However, by the time that the papers were fully prepared to trial and transferred overnight (last night) from Northampton County Court to Birmingham County Court, it was clear to both parties, and indeed to me, that the complexity of this case was such that if I were to try the entirety of the action, it would take considerably more than one day.

4. Only this morning, I was provided with two lengthy, detailed and very helpful, skeleton arguments, bundles of authorities running to over two hundred pages, and a bundle of contractual and other documents running to nearly two hundred pages too. For that reason, I was invited by the parties to try one preliminary issue today, namely the enforceability of the credit agreement.

5. That invitation was extended to me on the grounds that if I were to try this preliminary issue, it may mean the end of the case. Alternatively, it would enable the parties to take stock and proceed further if so advised. So at the invitation of the parties, and because of the clear lack of time, earlier today I agreed that I would try the preliminary issue of the enforcement of the agreement.

6. It is the defendant-�s case that this credit agreement is not enforceable on the grounds that all of the prescribed terms within the meaning of the Consumer Credit Act 1974 were not contained in the document signed by the defendant.

7. It is common ground that the only document signed by the defendant was a Barclaycard application form signed with the date of 25th March 1996, to be found at page 41 of the trial bundle. It is a very poor copy of the document and parts of it have been blacked out for reasons that no one has been able to explain. Perhaps the other striking feature is that there is no evidence before me from anyone, either from the claimant or Barclaycard of other similar documents from the time for me to make a comparison, or any evidence of Barclaycard-�s system back in 1996. Miss Margiotta has rightly submitted to me that I should not be too critical of the claimant in this regard and I should bear in mind how difficult it is to obtain such evidence so many years after the event, and I have to say I have some sympathy with Miss Margiotta in this respect particularly as she points out to me these matters were only raised by way of criticism from the defendant relatively recently. However, as against that, I have to deal with this matter on the evidence before me. In the respects that I have identified that evidence is somewhat inadequate.

8. It is submitted by the defendant that if all of the prescribed terms are not contained in the document itself, then that is fatal to the enforceability of the agreement, and it would not be sufficient if, for example prescribed terms were sent a few weeks later with the credit card, which is what the defendant suggests may have been the way that the terms and conditions were provided. I therefore have to make a finding of fact on the balance of probability as to whether the prescribed terms and conditions were contained in that document.

9. I have to make a finding of fact in the context of the relevant law, to which I have been most helpfully referred by both counsel in this case by their informative skeleton arguments and also by way of oral submissions. I turn to that law now.

10. I start at section 61 of the Consumer Credit Act 1974 that provides as follows:

-�(1) A regulated agreement is not properly executed unless-�

(a) a document in the prescribed form itself containing all the prescribed terms and conforming to regulations under section 60(1) is signed in the prescribed manner both by the debtor or hirer and by or on behalf of the creditor or owner,-�

And stress is laid there by the defendant on the need for the document itself to contain all the prescribed terms.

11. I have been pointed to certain guidance on what is meant by the phrase -�a document in the prescribed form itself containing all the prescribed terms-�, and I have been referred to the case of Emma Carey v HSBC Bank [2009] EWHC 3417 and it is the judgment of His Honour Judge Waksman QC, sitting as a Judge of the High Court in a case of first instance. I am told by counsel, and I have no reason to suspect that this is wrong, that the principles set out in that case have been followed in other subsequent cases, including cases of higher authority. His Honour Judge Waksman QC said this in relation to the agreed principles in this area (see paragraph 173):

-�173. The parties in Carey have helpfully agreed the following principles. The fourth one was added by Mr Uff, with their agreement. No other party takes issue with them. The OFT has formulated the matter in a slightly different way but accepts these principles are close to its position.

(1) It is not sufficient for the piece of paper signed by the debtor merely to cross-refer to the Prescribed Terms without a copy of those terms being supplied to the debtor at the point of signature;

(2) A document need not be a single piece of paper;

(3) Whether several pieces of paper constitute one document is a question of substance not form. In particular a physical connection between several pieces of paper is not necessary in order for them to constitute one document; -�

(5) Accordingly, where the debtor's signature and the Prescribed Terms appear on separate pieces of paper, the questions of whether those pieces of paper together constitute one document is a question of substance and not form.-�

At paragraph 174, His Honour Judge Waksman QC said:

-�174. As a matter of law, those principles appear to me to be correct, in the context of s61.-�

12. So, what are the Prescribed Terms that must be contained in the document as so defined in section 61(1)(a) of the Consumer Credit Act 1974 and in Carey?

13. I now turn to the Consumer Credit (Agreements) Regulations 1983. It is common ground that these were the Regulations in force in relation to this credit agreement and set out in Schedule 6 are various Prescribed Terms that must be included and the three relevant ones here are under Clauses 3, 4 and 5:

-�Credit Limit

3. Agreement for running-account credit. A term stating the credit limit or the manner in which it will be determined or that there is no credit limit. Rate of interest

4. -� A term stating the rate of any interest on the credit to be provided under the agreement. Repayments

5. Consumer credit agreements. A term stating how the debtor is to discharge his obligations under the agreement to make the repayments, which may be expressed by reference to a combination of any of the following -� -�-�

And -�the following-� deals with the repayment.

14. I pause there for a moment. It is worth noting that none of those three terms is actually visible on the copy application form document in the bundle that was signed by the defendant on 25th March 1996.

15. As to the effect of a failure to comply with those statutory obligations, I turn now to section 65(1) of the Consumer Credit Act 1974 that provides:

-�An improperly-executed regulated agreement is enforceable against the debtor or hirer on an order of the court only-�.

16. However, it does not rest there because there was important additional statutory material on this point that was in place in relation to this particular credit agreement (though since repealed), because by Section 127(3) of the Consumer Credit Act 1974 it was provided that:

-�The court shall not make an enforcement order under section 65(1) if section 61(1)(a) was not complied with unless a document, whether or not in the prescribed form of complying with the 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.-�

17. In other words, the Court is precluded from making an order granting relief from the infringement of the statutory conditions as to the enforceability if all of the prescribed terms that I have identified above were not contained in the signed document itself.

18. So moving to the factual issue itself, I start briefly with a matter upon which I have received some submissions, namely the burden of proof. In submissions the defendant conceded that there was a prima facia case established by the claimant that there was a credit agreement in place and therefore the evidential burden of proving the index factual issue is upon the claimant. I was referred to a first instance case in the County Court of HFO Services Limited v Kirit Patel. It was decided by His Honour Judge Platt on 20th May 2009. Of course, I accept that this is a first instance decision and is therefore only persuasive. Nevertheless, I found the judgment of His Honour Judge Platt to be persuasive in that way and I would wish to take the same approach.

19. His Honour Judge Platt said at paragraph 19:

-�Therefore, in my judgment, when the defendant wishes to rely on section 65, several consequences flow. First, it is not sufficient for him simply to allege that the agreement is not properly executed. He must specify the particular breach or breaches of the Regulation on which he relies. The burden of proving that the agreement has been properly executed then rests with the claimant. It is his obligation to put before the Court evidence which he considers sufficient to satisfy the Court on this issue.-�

20. Miss Margiotta on behalf of the claimant indicates that she has not had an opportunity to consider or reflect upon the law in this area, because the above case was only produced by the Defendant this morning, and she wishes to reserve her position. But she did indicate also that she accepted that it was for the claimant to show the necessary factual matter on the balance of probabilities.

21. On this factual issue, I have read and heard evidence on the claimant-�s side of the case from Mr Jonathan Titherley, who is a litigation paralegal for the claimant-�s solicitors. I have read his two statements and heard him give evidence. On the defendant-�s side, I have read the two witness statements of the defendant, Roland Wegmuller. I have also read numerous documents, the principal ones being the application form signed by the defendant on 25th March 1996 (to which I have already referred). Another document of relevance is a current a blank standard form of Barclaycard-�s terms and conditions put in the bundle by the claimant, to be found at pages 43 and 44, and it is worth noting that on that standard blank form, the relevant prescribed terms are included. Of course, the issue for me is whether those terms and conditions were contained in the actual document that was signed.

22. I have already observed that it is disappointing and makes it difficult for the Court without further evidence from Barclaycard, and Mr Titherley says, and I entirely accept Mr Titherley-�s evidence, that his client asked for this information but for whatever reason, it was not forthcoming, and therefore there are no similar documents of the time to compare with this one. So although I accept Mr Titherley-�s evidence generally, he was unable to give any direct evidence on whether the application form actually contained the prescribed forms, whether on the front, back or anywhere else.

23. Mr Wegmuller gave evidence on the matter. In his witness statement, he set out the general circumstances in which he came to sign this agreement. He said that about six months after he had come to the United Kingdom from Spain, he saw an advertisement in a magazine and he recalled completing the document and posting it back to Barclaycard. He said he recalled that the application was in the form of a glossy style fold-out pamphlet. In his witness statement he said he recalled there was no other documentation with the application form; certainly, there was no separate booklet of terms like those the claimant has produced in the course of these proceedings.

24. Mr Wegmuller was honest enough to concede that he had certain difficulties with his recollection of exactly what was on the form. This is perhaps not surprising given that he was referring back to his recollection of some sixteen years ago, and it is true to say that there were some slight fluctuations in his evidence that were quite properly referred to by Miss Margiotta in her submissions. Nevertheless, his evidence taken as a whole, and that is how I have to view it, was really to the effect that whilst he could not categorically say that there were no further textual items on the document, either on the front or on the back, he did not believe that there were significant additions to the document, and he did not believe that there were the prescribed terms on the document for example on the back or in the blacked-out spaces of it.

25. The impression that I formed of Mr Wegmuller was that he was a man who was doing his best to give a truthful and accurate recollection of what he saw, and as I say, he conceded that it would be difficult to be absolutely precise on that. But in general terms, I was satisfied that he was a credible witness.

26. Miss Margiotta on behalf of the claimant has made a number of submissions to support her proposition that on the balance of probabilities it is likely that the prescribed terms were on the form. If I may summarise her submissions in particular those I regard as her strongest ones.

27. Firstly, she submits that Barclaycard are and were a reputable large-scale organisation who had in 1996 a legal department and a compliance department and therefore, in effect, it is inherently unlikely that they would make the mistake of sending out an application form in a magazine without the prescribed terms stipulated in the Regulations to which I have referred, particularly as the Regulations has been in force for a number of years at that time.

28. That is a perfectly proper point for Miss Margiotta to make. However, it seems to me that it would be wrong for me to place too great a reliance upon that, particularly as one knows that there have been numerous more recent examples where financial institutions of similar size have on occasions made errors in terms of compliance with their financial services obligations.

29. Secondly, and this is also a good and proper point to be made on behalf of the claimant, if one actually looks at the form that was signed by Mr Wegmuller, difficult though it is to make out, one part that is plain if one looks carefully, and Mr Wegmuller agreed this, is that he did sign a caption stating that:

-�This is a Credit Agreement regulated by the Consumer Credit Act 1974. Sign only if you wish to be bound by the terms of the agreement.-�

30. Miss Margiotta submits that this sentence having been signed by the defendant (and it is not suggested by the defendant that he had difficulties with the English language, although he is of course of Swiss nationality originally), the likelihood is that there would have been -�some-� terms and conditions somewhere on that document otherwise he would not have signed this. However, the mere fact that there may not have been such terms and conditions on the face of the document may not necessarily have been a critical factor in the decision whether or not to sign this application form. The evidence that he gave was that what was at the forefront of his mind was obtaining a credit card, rather than the detail of the terms and conditions, which of course is something of a two-edged sword.

31. In my judgment, those were the strongest submissions. However, I do not accept that those factors are conclusive.

32. I am satisfied on the balance of probabilities that the application form signed by the defendant did not contain the three prescribed terms to which I have referred, and I come to that conclusion principally for these reasons.

33. Firstly, I look at the document itself; the application form. That is the best evidence that the claimant has been able to provide in terms of the documentation. Quite simply, there is no reference whatsoever to any of those three prescribed terms that are required. It is submitted that I should infer that it is more probable than not that they would have been there, either in the blacked-out areas or on the back. I am afraid there is quite simply insufficient evidence to enable me to draw that inference. And I repeat that matters may have been very different if further and better evidence had been produced, either from the claimant or Barclaycard, as to what the position was back in 1996. We do not have that evidence and I have to deal with the evidence that is before me.

34. The second real reason why I find in favour of the defendant on this issue is that in general terms I accept his evidence as I have set out, and having heard him give evidence today I found him to be a credible witness.

35. Mr Turner on behalf of the defendant made various other submissions associated with the standard terms and conditions on the blank documention. I did not find those submissions of such force as his others and they did not play a major part in my conclusion.

36. I am satisfied on the balance of probabilities that the requisite prescribed terms and conditions were not contained in, on or together with the document that was signed by the defendant, and therefore I conclude that this is a credit agreement that cannot be enforced.

37. Before I leave this matter, just for the avoidance of doubt and clarity, given that Miss Margiotta has indicated, in a slightly equivocal submission, that she wishes to reserve herself on the burden of proof, I hereby indicate that it would have made no difference to my ultimate conclusion upon whom the burden of proof lay because the result would have been the same in either event.

End of judgment

JUDGMENT ON APPLICATIONS BY CLAIMANT 24th January 2012 MR RECORDER CAMPBELL:

1. 1I have to deal with two applications made on behalf of the claimant and I shall take them in turn.

2. 2The first application made by the claimant is this. On the preliminary issue that I have just decided, I reached a conclusion on the relevant factual scenario that meant that the credit agreement was unenforceable. It had been agreed between both counsel a few minutes ago that in those circumstances, the appropriate order would be for the claimant-�s action to be dismissed.

3. 3However, Miss Margiotta on behalf of the claimant has considered the matter further with the paralegal attending her and now submits that the appropriate order that I should make is not that it be dismissed, but that it should be stayed for this reason; it had been noted that in my judgment I pointed out that there was a lack of evidence that was put forward by the claimant, and in particular identified what I regarded as perhaps a surprising and striking absence of evidence from Barclaycard. It is now suggested that I should stay the matter so that an opportunity is given for that further evidence to be obtained by Barclaycard.

4. 4It would be quite wrong for me to entertain any such application. Had the claimant wished or been able to provide that evidence from Barclaycard, then the claimant ought to have produced it for this trial and not another proposed trial with consequential additional costs, and it is simply not good enough to suggest, as Miss Margiotta has, that the reason that the claimant did not produce that better evidence was because of issues of proportionality, yet now that the claimant has lost the case it should have a further opportunity to provide better evidence.

5. 5So I am afraid that that application must be dismissed.

6. 6The second application made by claimant is for permission to appeal, and the essence of that submission is that the finding of fact is incorrect because in effect Mr Wegmuller, the defendant, was not credible.

7. 7I am not prepared to give permission to appeal. My decision was based upon a finding of fact that was based upon the evidence that I saw and heard before me. I heard Mr Wegmuller give evidence. I made allowance for the fact that there were fluctuations in his evidence and that he had difficulties of recollection, which were not surprising, but I concluded that in general terms he was a credible witness whose evidence I accepted.

8. 8I repeat that there was a lack of proper clear documentation, for whatever good reason there may or may not have been on the Claimant-�s side of the case.

9. 9In my judgment, there is no realistic prospect of success and therefore I will not grant permission to appeal.

End of judgment

JUDGMENT ON COSTS 24th January 2012 MR RECORDER CAMPBELL:

1. 1In terms of the costs of this matter, it is a Fast Track case. My initial inclination was to summarily assess the costs. However, I have been persuaded by Miss Margiotta that there are some serious disagreements with regard to the costs that properly require a detailed assessment. So I am not going to make that Order.

2. 2The Costs Order that I will make is that the claimant pay the defendant-�s costs, to be the subject of a detailed assessment in default of agreement.

3. 3I am next asked, in those circumstances, by the claimant to make an interim award on account towards the defendant-�s costs. I have been referred in particular to the notes in the White Book starting at paragraph 44.3.50. In particular, to a paragraph the first few sentences of which set out the principles very helpfully in the following terms:

-�In general, an interim order for payment of costs prior to assessment should be made, but the Court has to take into account all the circumstances in the particular case, including the unsuccessful party-�s wish to appeal, the relative financial position of each party and the Court-�s overriding objective to deal with cases justly.-�

1. 1Of course, I bear in mind that the defendant has won the case and that the ordinary rule is that there should be a summary assessment of costs. I bear in mind that notwithstanding the refusal of my permission to appeal, that it is still the wish of the claimant to appeal and I do take that into account.

2. 2I have paid close regard to the defendant-�s statement of costs and I do take into account the possibility that some of the claimant-�s arguments will succeed with a base cost of over £14,000; those may be knocked down to a degree. But I have to bear in mind that this was a complicated case in which both sides put an enormous amount of work in. I have already alluded earlier to the fact that it was allocated to the Fast Track initially, but it certainly would not have surprised me if, after all the evidence had been obtained, it had been reallocated, and I certainly gave thought this morning as to whether I ought to reallocate it, having regard to its complexity and length.

3. 3There is a CFA uplift. I am told it is 100%. That may be challenged to a certain extent, but this was a hard fought case to trial and in my judgment there is bound to be some significant uplift on that. And then there is VAT; that would bring the claim for costs up to £33,377-odd, and there are disbursements on top.

4. 4Even if I take into account those being dramatically knocked down, I accept the submission that Mr Turner has made that there is no prospect of those costs, in a case like this, dipping beneath the £10,000 mark, and so the Order that I make is that the claimant pay to the defendant, on account of the defendant-�s costs, the sum of £10,000. And that must be paid within the next fourteen days,

End of judgment