Councils into forced marriages; unfair shock; and credit reference peril
Stop that marriage
The Forced Marriage (Civil Protection) Act 2007 introduced forced marriage protection orders (see 158 NLJ 7347 p 1681). Lest the victim lacks the strength, will or opportunity to seek an order, there is provision for applications without leave by designated third parties. As from 1 November 2009 local authorities are designated (Family Law Act 1996 (Forced Marriage) (Relevant Third Party) Order 2009 (SI 2009/2023).
Just a mention
Trust in judges to tell the truth has risen by two per cent over the last year. That’s according to a survey by Ipsos MORI for the Royal College of Physicians. Judges rank only below doctors, teachers and professors and they are above the police—and pollsters!
Me and my shadow
A practitioner who needs to be deterred for aspiring to judicial office can shadow a judge for one to three days. The shadowing scheme—see www.judiciary.gov.uk—now extends to legal executives and takes in High Court judge shadowing as well as judges below. The number of shadow applications has more then doubled in the last year.
No show, no trial
The court may set aside judgment given at trial from which the applicant party was absent under CPR 39.3. In Forcelux Ltd v Binnie[2009] EWCA Civ 854, [2009] All ER (D) 216 (Oct) the Court of Appeal held that the hearing of a landlord’s possession claim against his tenant in a county court’s undefended list was not a trial for CPR 39.3 purposes. However, in this situation CPR 3.1(2) (m) afforded a power to set aside if the interests of justice demanded it.
Not creditable
The consumer who defaults under a credit agreement will usually take recovery proceedings in his stride. What may become at the least wearisome, however, are the actions of the creditor and its collection agents in seeking to ascertain details of his welfare and intentions at every conceivable opportunity—day and night, at home and at work.
The Protection from Harassment Act 1997 allows for injunctions and damages against creditors who go too far and there has been a proliferation of these claims.
An unsatisfied judgment following an uncontested hearing will lead to registration at the Register of Judgments, Orders and Fines. But a credit reference agency referral once default occurs without proceedings may be equally damaging to the consumer.
For many defaulting consumers, the Consumer Credit Act 1974, s 77 has proved something of a coup. It entitles a fixed rate credit agreement borrower, subject to payment of a reasonable £1 fee, to certain information about the state of his account —and a copy of his executed agreement.
The creditor is debarred from enforcing the agreement while the information or copy agreement remain outstanding: in short, whilst the creditor itself remains in default. And that has resulted in attempts at securing injunctions against creditors to restrain them reporting the borrowers’ default to credit reference agencies during their s 77 default.
Such an attempt has just failed in the High Court which had taken a transfer of one of the Chester cornucopia of consumer credit cases (see NLJ 26 June 2009 p 923)—the test case of McGaffick v Royal Bank of Scotland plc [2009] EWHC 2386, [2009] All ER (D) 71 Oct in which the lender had told the consumer that the existence of information on his default at the agencies might impair his ability to obtain credit or other financial facilities such as current accounts for a period of up to six years.
In McGaffick the effective period of the lender’s s 77 default was short. Flaux J ruled that the default did not prevent reporting to credit reference agencies whilst it lasted. This was because the rights of the creditor and corresponding liability or obligations of the consumer had continued to exist.
The reporting allowed the agencies to share the creditor’s data with other financial institutions for the purposes of assessing credit applications so as to promote responsible lending. Accordingly, the data protection legalisation was not offended.
Forget the pleadings
The recent decision of the European Court of Justice in Pannon v Gyorfi C-243/08 will have major implications for the trial of small and not so small claims.
It concerns Council Directive 93/13/EEC which is applied here by the Unfair Terms in Consumer Contracts Regulations 1999 (SI 1999 / 2083) The court must examine the unfairness of a contractual term where it has available to it the legal and factual elements necessary for that task. It is unnecessary for the consumer to have challenged the validity of the term beforehand.
Where it considers the term to be unfair, it must not apply it unless the consumer wants to be bound. Well advised businesses will be ready to justify fairness of any material standard term and condition in every contested claim to which the 1999 regulations apply, irrespective of the consumer’s statements of case.
A touch of ambiguity
Ambiguity in a question posed by an insurance proposal form. In R & R Developments Ltd v AXA Insurance UK plc [2009] Lawtel 30 September Ch Mr Nicholas Strauss QC (sitting as a deputy High Court judge) ruled (obiter) that the subjective understanding of the question by the insured was neither crucial nor relevant although certain insurance law textbooks suggested to the contrary.
The better view was that, where there was an ambiguity, the contra proferentem principle applied to the representation in the proposal form and, where it became a term, to the term of the contract with an objective construction reigning supreme. Was the answer true on a reasonable interpretation of the question in the proposal form?
