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You are here: BAILII >> Databases >> Mercantile Court >> Harrison v Link Financial Ltd  EWHC B3 (Mercantile) (28 February 2011)
Cite as:  EWHC B3 (Mercantile),  ECC 26
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QUEEN'S BENCH DIVISION
MOLD DISTRICT REGISTRY
B e f o r e :
(sitting as a Judge of the High Court)
| MR KEITH HARRISON
|- and -
|LINK FINANCIAL LIMITED
Iain MacDonald (instructed by DLA Piper LLP) for the Defendant
Hearing date: 30th September 2010
Crown Copyright ©
HHJ Chambers QC :
Irredeemable breaches under section 127(3)
Schedule 6 para 4 of the Consumer Credit (Agreements) Regulations 1983 ("the Regulations")
Failure to set out a rate of interest applicable to credit card cheques and other non-card transactions and a rate for balance transfers.
The case is based upon the assertion that the Claimant received the Application Form (TB1/128) on the reverse of which were provisions headed "FINANCIAL & RELATED CONDITIONS" (TB1/129) ("the FRC") but that neither then nor when his card was sent did he receive anything akin to the document headed "TERMS & CONDITIONS" ("the terms & conditions") referred to in the evidence indifferently as "C1" and "NW6" (TB4/1510) ("C1").
Although the failures of themselves constituted redeemable breaches, the need to refer over to the terms & conditions, whether provided or not, in order to ascertain the relevant interest rates, put MBNA and thus the Defendant in irredeemable breach.
Schedule 6 para 5 of the Regulations
Failed to state "any power of the creditor to vary what is payable".
Redeemable breaches under section 127(1) and (2)
Schedule 1 para 22 of the Regulations
Failed to set out the default charges payable by the Claimant on breach of the agreement.
Further failed to set out a term allowing MBNA to vary the terms of the agreement except at condition 8 which provides a power to vary the rates of interest.
Sections 62 and 63 - redeemable breaches under section 127(1) and (2)
Section 62 Failed to send a copy of the terms & conditions with the application pack.
Section 63 Failed to provide a copy of the executed agreement.
MBNA and the Defendant remain in default of a properly constituted request under section 78(1).
Sections 87(1) and 88 and schedule 2 para 3 of the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561)
By a notice dated 3 October 2008 and received on 9 October 2008 the Claimant was given until 21 October to pay £3,3361.78 a period of 12 (not 14) days. Furthermore the relevant indebtedness was assigned to the Defendant before 21 October 2008 thus rendering the notice ineffective to discharge its function.
Further the sum of £3,3361.78 was overstated by £26.65.
The wrong agreement number was given.
MBNA and the Defendant have harassed the Claimant in such a way as to disentitle the Defendant from any recovery under the agreement.
a. Did MBNA enclose a copy of its terms & conditions with the application form that it sent to the Claimant?
b. Did MBNA enclose a copy of its terms & conditions with the card that it sent to the Claimant in May 1998?
c. Did the MBNA serve a compliant default notice?
d. Has the Defendant complied with section 78(1)?
i. At the time when he was involved in acquiring a credit card from the MBNA the Claimant employed a system of retaining communications that was intended to be comprehensive.
ii. The system was normally implemented as described by the Claimant.
iii. Apart from the terms & conditions, the Claimant undoubtedly retained all documents whether by way of original or photocopy that were in the application package sent by MBNA however ephemeral.
iv. Albeit over a lengthy period, there are instances of failure on the part of MBNA to send or to prepare documentation as required.
The history thereafter
Exhibited to this Witness Statement at "NW3" is a copy of the default notice which was served by MBNA on the Claimant ("the Default Notice"). The Default Notice was dated 3 October 2008 and, in accordance with MBNA's standard procedure was despatched to the Claimant on 3 October 2008 by way of UK Mail's Business Class service which guarantees delivery within two days of despatch, including Saturdays. It is not, and was not in October 2008, the standard practice of MBNA to send default notices to customers by second class post. There is no reason why the Default Notice sent to the Claimant in this case would have been sent by second class post contrary to MBNA's standard procedures.
"... In April 2010 the Defendant requested a copy of the original terms and conditions which would have applied to the Credit Agreement at the time it was entered into. Initially MBNA retrieved from its template library a copy of the terms and conditions which applied to the Platinum Plus Visa credit card at a slightly earlier date to April 1998 and which therefore included different charges at condition 14.1 of the terms and conditions. A copy of these terms and conditions are attached at Exhibit "NW5" [i.e. C]. A copy of the terms and conditions template in use at the time that the Claimant entered into the Credit Agreement is now attached at "NW6" [i.e. C1]. The prescribed terms in conditions 8 and 9 of the document attached at "NW6" mirror those in the credit agreement (as they would have done at the time they were sent to the Claimant), and the remaining clauses were the standard clauses in force for all of MBNA's credit card customers at that time. I confirm that the template of the terms and conditions shown at "NW6" [i.e. C1] are the actual terms and conditions which applied to the Credit Agreement at the time that it was entered into."
The consequences of the findings
Regulatory conformity of the contractual documents
The notice of enforcement
Sections 127 and 140