“Though very detailed, theConsumer Credit Act 1974 (CCA 1974) was never a complete Code. Except as otherwise provided by the CCA 1974, the rights and obligations of the parties remain governed by the common law, by other legislation and by the terms of the agreement between the parties so far as these are within the limits of contractual freedom set by the courts and by statute. […] The position of debtors and creditors under the consumer credit regime cannot be fully appreciated without a grasp of the underlying common law principles affecting typical credit transactions.”
“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)”
“AND THE CLAIMANT CLAIMS:-” (1) ‘Protected Goods’ under the Consumer Credit Act Section 91, for all monies to be returned for containers under attached agreements pertaining to the 51 containers, totalling circa£80,000 for defendant’s breach of Section 90. (2) Complete Statutory Relief from HPA 2 to 12 under the CCA 1974 section 60.1A-D ‘Prescribed Terms’ for which all said contracts HPA 2-12 do not include Prescribed Terms. (3) Nor so said HPA above£25,000 threshold contain the Prescribed Declaration relation to Exemption in Accordance with CCA 2006 16B(2) Damages as the Court sees fit, for Defendants willful Breach of. (1) CCA 1974 Unfair Relationships Section 140(A-D) ...”
“[Adaptainer] was in fundamental breach of contract such that [Mr Russell] was entitled to and did treat the contracts as repudiated”
“No, he [Mr Russell] didn’t say that terminology and I didn’t use that terminology. [But] he did instruct me to say that the actions of Adaptainer, Mr Clark and other members of the Clark family had resulted in breaches, which I particularised. He told me he was the victim of a serious and malicious conspiracy by the Clarks, Mr Metzner, CRT, bailiffs, a number of people. And that involved breaches of his agreements. It was his case.”
“Those were my instructions, you have to do the best you can in those circumstances”
“Yes, but he does not expand on that. It’s just a general denial. He wasn’t denying that the contract had expired. They then went on to plead they had expired.”
“The defendant will say that in refusing, at the meeting on2 October 2013 to allow the defendant to make the payments under each of the agreements that had reached the stage of completion, and for making demands to various further sums, the claimant was in breach of each individual contract and the defendant will seek an order in appropriate terms providing for transfer of title of the containers on hire purchase under each of the relevant contracts.”
“Judge: ...how were any of these agreements terminated? Mr Dabbs: Well, it seems both sides are agreed they are terminated, but on different bases. Judge: Well, what is yours? Mr Dabbs: Yes. Our basis of termination is that there is consistent non-payment since July 2013.”
“(1) So far as the 51 containers are concerned (which forms the main basis of the allegation that the goods were wrongfully repossessed) the judge found that the Appellant had agreed to the arrangements in August 2013. Thus whether or notsection 90(1)(b) of the Consumer Credit Act 1974 was satisfied became immaterial. Moreover the judge found as fact that it had not been shown to have been satisfied, and the attempt to demonstrate the contrary on appeal would not be permitted since the case was not presented that way below. (2) Once the 51 containers are cleared out of the way, the Claimant’s case was a simple case on conversion which is permitted bysection 134(3) of the Act . It was common ground that the agreements had all been terminated (see judgment at [30] to [32]) and it was also common ground that the Appellant had not title to the goods. (3) The argument under section 140A starts from the premise that the retaking of the 51 containers was unlawful. But since the judge found that the parties agreed the fate of the 51 containers, the premise is unsound. In consequence the argument cannot succeed. In addition, even if there was an unfair relationship the power to acquire the creditor to repay sums paid by the hirer is discretionary; and cannot be said to be wrong not to have ordered the creditor to repay all hire charges when the Appellant has had the full benefit of the hired goods.”
“…the courts have developed a clear and common-sense dividing line between those matters which the client must prove, and those which may better be assessed upon the basis of the evaluation of a lost chance To the extent (if at all) that the question whether the client would have been better off depends upon what the client would have done upon receipt of competent advice, this must be proved by the claimant upon the balance of probabilities. To the extent that the supposed beneficial outcome depends upon what others would have done, this depends upon a loss of chance evaluation.”
“When a person sues his former solicitors for negligence in the conduct of proceedings which has led to his action being struck out his loss is normally measured by reference to his prospects of success in the primary litigation: see Kitchen v. R.A.F. Association [1958] 1 W.L.R. 563. However, in order to recover for the loss of that kind the court must be satisfied that the plaintiff had at least a “real” or “substantial” chance that he would have succeeded in the primary action, not merely a speculative one: see Allied Maples Group v. Simmons & Simmons [1995] 1 W.L.R. 1602 per Stuart-Smith L.J. at 1614. If his prospects of success fall short of that, the court will ascribe no value to them, but provided the court can see that there were real prospects of success it will evaluate them notwithstanding the difficulties that may involve. The need to evaluate the prospects of success in that way usually arises because of uncertainty as to the final shape of the evidence which would have been before the court trying the primary action. In some cases, however, the outcome of the primary action is not in doubt, for example, if it can be seen that the claim is bad in law and could never have succeeded. In such a case, of course, there never were any prospects of success at all.”
“Parliament intended that if a consumer credit agreement was improperly executed, then subject to the enforcement powers of the court, the debtor should not have to pay. This meant that Parliament contemplated that he might be enriched and I do not see how it is open to the court to say that this consequence is unjust and should be reversed by a remedy at common law”. 3) Orakpo concerned loans rendered unenforceable by ss.6 ands.13(1) Moneylenders Act 1927 . The lender sought to be subrogated to the unpaid vendors’ liens and equitable charges. The House of Lords rejected the subrogation argument. Lord Diplock (reluctantly) observed that whilst the borrower had obtained an “undeserved enrichment” as a result of the unenforceability, such that subrogation might be engaged as a remedy, there were “insuperable obstacles to relying upon this particular kind of subrogation to mitigate the harshness to the moneylender and the undeserved enrichment of the borrower which would otherwise follow from a technical failure to observe the provision ofsection 6 of the Moneylenders Act 1927 ”
“A party seeking the recovery of goods must show that the defendant's possession of those goods is adverse to his own right to possession (whether his action is brought in contract or based upon his title to the goods). Certain provisions of this Act, however, entitle the debtor or hirer to retain possession of the goods until and unless the creditor or owner obtains a court order for delivery (see, in particular, CCA 1974, ss 65 and 90). The provisions of this section are necessary in order that the creditor or owner may treat the defendant's continuing possession as adverse to his own right to possession and prevent the defendant from arguing that he is retaining possession merely by virtue of the relevant statutory protection.”
“Ownership of the goods remains vested in the creditor, however, and if the debtor wrongfully disposes of the goods to a third party, the creditor will be able to sue the third party in conversion; the debtor's own action in parting with possession destroys any right of his to possession, which right reverts immediately to the creditor: see Union Transport Finance Ltd v British Car Auctions Ltd[1978] 2 All ER 385 , [1999] GCCR 499; Kasaam v Chartered Trust plc [1999] GCCR 2245. Where the debtor merely remains in possession of the goods without complying with his/her obligations to repay the creditor, the latter's remedy will normally be for breach of contract and he/she must apply for an enforcement order under CCA 1974, s 127. If, however, the debtor evinces an intention both to refuse performance and to refuse to return the goods, this may constitute a conversion by him for which the creditor may take action in tort notwithstanding CCA 1974, s 65, since he in so doing relies on the conversion and is not seeking to enforce the regulated agreement itself: cf Bowmakers Ltd v Barnet Instruments Ltd[1945] KB 65 ,[1944] 2 All ER 579 , [1999] GCCR 71. The debtor's possible argument, that in refusing to redeliver the goods he is merely relying on CCA 1974, s 65 to retain possession and is not denying the creditor's title or maintaining any adverse possession, may be met if the creditor has made a request for repossession complying with CCA 1974, s 134.”
“Well, perhaps an easier way of putting it is: if it is, there was no compliance”
“The Judge didn’t find that Mr Russell was consenting to something he might not have understood. Mr Russell was faced with a very stark choice. Take it or leave it. Here is what he described to us again yesterday as a choice that was leave the containers or leave the containers and pay for the pleasure. It was no choice at all. So, his case was I gave no consent – not I gave some consent but I hadn’t considered the minutiae of the CCA and how that might affect matters down line. The Judge found he had consented. I didn’t plead he only consented to having containers removed, business stripped, etc but he didn’t consent to lose his CCA rights. I can’t see how I could seriously have made that submission to the Judge. I don’t believe that referring to Pitcher would have helped us at all.”
“In any event, I consider ground 4 [the Pitcher point) to be unsound. Mr Brennan submits that the key to appeal is section 90 of the CCA (ground 4) and informed consent. He relies upon Chartered Trust v Pitcher [1988] RTR 72, based upon theHire Purchase Act 1965 , for the proposition that for an agreement by a hirer to give to give up possession of the hired goods and this the right to purchase to effective, there must be informed consent, which includes a full understanding of his rights under the legislation. The proposition is drawn too widely, as it seems to me, as it seems to me, but this authority was not referred to below, the issue was not explored in the evidence or in submission. That said, the reality is that once possession of the land on which the containers stood had been recovered by Mr Russell’s landlord and he failed to remove them, they were entitled, as they threatened, to dispose of them. The judge was entitled to conclude that his consent to the four-party arrangement was real consent. It is very difficult to understand how, in the face of the dilemma confronting Mr Russell which, contrary to his assertion that it resulted from a wide-ranging conspiracy, was of his own making he could have been influenced by any consideration of the minutiae of the CCA. He was in a fix and Adaptainer helped him through it – as he recognised in his email of thanks thereafter. As the judgment recorded, it appears that the ex post facto suggestion made by Mr Russell was that Adaptainer should have removed the containers at their own expense from Hale’s Wharf, because he was without funds, and delivered them to another unspecified site (para 73). As the judge noted, this was entirely “unreal”
“Further, had the Defendant [repeated allegations of negligence] ...in s.90- then it is patently obvious that the Court would have concluded that all the containers under all Hire Purchase Agreements from Adaptainer were properly to be considered to be protected goods within the meaning of the Act”