Last week, in the High Court in Mold, North Wales, Keith Harrison had his debt of £20,270 written off by the judge, Nicholas Chambers QC.
The lender, MBNA bank, was criticised by a High Court judge for, as he put it, "torturing" a customer with repeated phone calls demanding repayment of a credit card debt. The judge also accepted that there was no evidence of MBNA providing Mr Harrison with the terms and conditions for the credit card, when it was taken out.
The judge was very critical of the tactics used by MBNA and its debt collection agents, commenting as follows:
"The calls were a form of torture oppressively frequent in amount and often without attribution to an identifiable number. The sole purpose must have been to make the claimant's life so difficult that he would come to heel.”
However, whilst the conduct of MBNA was heavily criticised, it was not the reason that the debt was written off. The successful argument related to very technical arguments under the Consumer Credit Act 1974, which sets out the requirement which lenders must comply with.
In court, Mr Harrison argued that, contrary to the requirements of the Consumer Credit Act Regulations 1983, the bank had failed to send him the necessary terms and conditions for his card, either when he applied for the card or when it was issued to him by post. MBNA said it would have done so, but they could not prove to the court that this had occurred.
This is a very interesting decision, as in previous cases the Courts have accepted that if it was a lender’s usual practise to send out terms and conditions, and that they can prove it, they will generally accept that the terms and conditions were sent. In Mr Harrison’s case, not only could MBNA could not produce any evidence that the document was sent out, but there was also positive evidence in terms of the documents produced by Mr Harrison.
He had kept copies of all of the other documents sent to him when the loan was taken out, and had even copied any documents before returning them to MBNA. The judge was therefore satisfied that if they had been sent out, Mr Harrison would have kept a copy.
This shows that each case like this is determined on its own facts. As a solicitor specialising in disputed Consumer Credit agreements, this could be very helpful for some borrowers.
Stephensons offers an assessment of the agreement to see whether or not it can be challenged. If it can be challenged, you may be entitled to Legal Aid, subject to financial eligibility. You should contact our specialist Consumer experts on 01616 966 229 to speak to one of our advisors.
By consumer solicitor, Heather Korwin-Szymanowska
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