• Welcome to the LegalBeagles Consumer and Legal Forum.
    Please Register to get the most out of the forum. Registration is free and only needs a username and email address.
    REGISTER
    Please do not post your full name, reference numbers or any identifiable details on the forum.

Brophy v HFC - CCA ''“Your credit limit will be determined by us from time to time"..

Collapse
Loading...
X
  • Filter
  • Time
  • Show
Clear All
new posts

  • Brophy v HFC - CCA ''“Your credit limit will be determined by us from time to time"..

    HFC v Brophy went through High Court and Brophy lost - HFC were entitled to enforce the debt - however Brophy has now won the right to appeal. We received an email at LB admin as he is looking for investment to assist him bringing the case ..... that aside, it's an interesting case and quite relevant at the moment. Anyway summaries below and documents ref appeal attached.

    Originally posted by Addleshaw Goddard
    Brophy v HFC Bank Limited [2010] EWHC 819 (QB) where the High Court confirmed the definition of “credit limit” in the credit card agreement (expressed as “Your credit limit will be determined by us from time to time and notified to you”) complied with both Schedule 1 and Schedule 6 of the Consumer Credit (Agreements) Regulations 1983;

    Patrick Brophy v HFC Bank 2010 EWHC - Consumer Law Law Articles and News - Lawdit Reading Room
    Patrick Brophy v HFC Bank 2010 EWHC

    20 June 2010
    Patrick Brophy v HFC Bank 2010 EWHC

    By Paul Bicknell

    INTRODUCTION

    This case was an appeal of Judge Million's decision in the Willesden County Court in which the judge found for HFC Bank. The case concerned issues relating to the enforceability of the agreement (as is usually the case).

    ARGUMENTS

    The grounds of appeal where as follows

    "the judge erred in finding that the application form signed by Mr Brophy was an executed agreement for the purposes of the Consumer Credit Act. The way in which Miss O'Connor, for Mr Brophy, puts her case is refined somewhat from what she submitted before the learned judge, where she essentially sought to argue that there was no intention to create legal relations as there was no certainty as to whether Mr Brophy would be granted credit and, if so, in what amount."

    It was also averred that the agreement was irredeemably unenforceable because the credit limit has been miss-asserted. Which, of course, was a breach of schedule 6 to the Consumer Credit (Agreements) Regulations 1983. The resulting effect of which is that the agreement is improperly executed under section 61(1) of the Consumer Credit 1974 ('the Act') and a court cannot order the enforcement of such an agreement :section 127(3) of the Act) see also the decisison in Wilson v First County Trust [2004] 1 AC 816. (The reader should also note that that the Consumer Credit Act 2006 repealed with prospective effect section 127(3) of the Act).

    "application form was in essence merely an agreement by which the debtor gave the bank permission to investigate his credit rating and, accordingly, it was no more than an agreement to enter into a prospective regulated agreement, which is void under Section 59 of the Act."

    HELD

    Justice Flaux however, disagreed with the above analysis under point 1 above: "It seems to me that Miss O'Connor's submissions mischaracterise what is the correct contractual analysis here. By completing the application form the debtor agreed to be bound by the terms and conditions, as was expressly stated, in the event that the bank agreed to extend credit to him. The agreement warns him in terms not to sign it unless he wants to be legally bound by its terms. Thus, by completing the application form Mr Brophy made an offer to contract on these terms, which the bank accepted by counter-signing, and at that point there was an executed agreement within the meaning of Section 61 of the Act."

    In relation to the enforceability of the agreement Justice Flaux stated: it is not the purpose of Schedule 6 primarily to inform the borrower, a task which is discharged by Schedule 1, but rather the purpose of Schedule 6 is to set out the bare minimum terms which have to be included as an inflexible condition of enforceability.

    The result of the case was that the agreement did not contain any breaches of schedule 6 to the Consumer Credit (Agreements) Regulations 1983, so the agreement was enforceable and the court is entitled to order the enforcement of the same.






    #staysafestayhome

    Any support I provide is offered without liability, if you are unsure please seek professional legal guidance.

    Received a Court Claim? Read >>>>> First Steps

  • #2
    Re: Brophy v HFC - CCA ''“Your credit limit will be determined by us from time to tim

    lets see what the High Court makes of my case then
    I work for Roach Pittis Solicitors. I give my free time available to helping other on the forum and would be happy to try and assist informally where needed. Any posts I make on LegalBeagles are for information and discussion purposes only and shouldn't be seen as legal advice. Any advice I provide is without liability.

    If you need to contact me please email me on Pt@roachpittis.co.uk .

    I have been involved in leading consumer credit and data protection cases including Harrison v Link Financial Limited (High Court), Grace v Blackhorse (Court of Appeal) and also Kotecha v Phoenix Recoveries (Court of Appeal) along with a number of other reported cases and often blog about all things consumer law orientated.

    You can also follow my blog on consumer credit here.

    Comment


    • #3
      Re: Brophy v HFC - CCA ''“Your credit limit will be determined by us from time to tim

      Along similar lines isn't it PT ?

      Is it normal for a court document to have the word - just - in ?
      #staysafestayhome

      Any support I provide is offered without liability, if you are unsure please seek professional legal guidance.

      Received a Court Claim? Read >>>>> First Steps

      Comment


      • #4
        Re: Brophy v HFC - CCA ''“Your credit limit will be determined by us from time to tim

        yeah

        but mines better constructed, and targets the proper construction of the term and the accompanying terms and conditions

        our argument is that the clause causes serious confusion as those terms reveal that the “Individual Limit” is supposed to be a limit which the Claimant has chosen for the account (as to which there is no evidence). Condition 3 says that that “Individual Limit” will
        be notified by Egg to the Claimant (even though the agreement records that
        the Claimant has chosen it) but only if it is different from the Approved Limit. If
        that does not leave the average consumer bemused one wonders what will?

        The Consumer is going to be even more confused when she sees her first
        account statement which tells her what her ‘credit limit’ is and does not even
        mention the approved limit and/or the individual limit that she notified Egg
        about and then Egg notified her about (unless of course it was not different
        from the approved limit in which case they would not notify her at all about
        what she notified them about). It is unnecessary and confusing.
        I work for Roach Pittis Solicitors. I give my free time available to helping other on the forum and would be happy to try and assist informally where needed. Any posts I make on LegalBeagles are for information and discussion purposes only and shouldn't be seen as legal advice. Any advice I provide is without liability.

        If you need to contact me please email me on Pt@roachpittis.co.uk .

        I have been involved in leading consumer credit and data protection cases including Harrison v Link Financial Limited (High Court), Grace v Blackhorse (Court of Appeal) and also Kotecha v Phoenix Recoveries (Court of Appeal) along with a number of other reported cases and often blog about all things consumer law orientated.

        You can also follow my blog on consumer credit here.

        Comment


        • #5
          Re: Brophy v HFC - CCA ''“Your credit limit will be determined by us from time to tim

          interesting reading... could I use anything like this to get argos or capitolone to increase my limit by confusing them into thinking they have not given me a limit?!

          Comment


          • #6
            Re: Brophy v HFC - CCA ''“Your credit limit will be determined by us from time to tim

            on the Egg agreement they dont actually say credit limit at all, its limit, approved limit , individual limit

            Certainly on agreeements before 2005,

            The act requires a term stating the "credit limit" and while credit isnt prescribed by the act as being a must use term, it is hard to see how one can convey the term adequaltley using the method Egg use.

            Id suggest that this argument applies to Egg agreements only
            I work for Roach Pittis Solicitors. I give my free time available to helping other on the forum and would be happy to try and assist informally where needed. Any posts I make on LegalBeagles are for information and discussion purposes only and shouldn't be seen as legal advice. Any advice I provide is without liability.

            If you need to contact me please email me on Pt@roachpittis.co.uk .

            I have been involved in leading consumer credit and data protection cases including Harrison v Link Financial Limited (High Court), Grace v Blackhorse (Court of Appeal) and also Kotecha v Phoenix Recoveries (Court of Appeal) along with a number of other reported cases and often blog about all things consumer law orientated.

            You can also follow my blog on consumer credit here.

            Comment


            • #7
              Re: Brophy v HFC - CCA ''“Your credit limit will be determined by us from time to tim

              Have subbed with interest as part of my defence I have pleaded exactly what Brophy pleaded as the wording for credit limit on my App form/agreement is stated exactly the same. Assume that getting to Appeal is going to be subject to funding as 1st post states. Any idea when appeal may be heard as I have a trial set during November and the result of this, assuming result is positive, would be extremely helpful?
              R

              Comment


              • #8
                Re: Brophy v HFC - CCA ''“Your credit limit will be determined by us from time to tim

                Hi

                Yes i posted this on the egg thread over the road.

                Noody else thought it at all relevant then.

                Strange world
                ------------------------------- merged -------------------------------
                Originally posted by pt2537 View Post
                yeah

                but mines better constructed, and targets the proper construction of the term and the accompanying terms and conditions

                our argument is that the clause causes serious confusion as those terms reveal that the “Individual Limit” is supposed to be a limit which the Claimant has chosen for the account (as to which there is no evidence). Condition 3 says that that “Individual Limit” will
                be notified by Egg to the Claimant (even though the agreement records that
                the Claimant has chosen it) but only if it is different from the Approved Limit. If
                that does not leave the average consumer bemused one wonders what will?

                The Consumer is going to be even more confused when she sees her first
                account statement which tells her what her ‘credit limit’ is and does not even
                mention the approved limit and/or the individual limit that she notified Egg
                about and then Egg notified her about (unless of course it was not different
                from the approved limit in which case they would not notify her at all about
                what she notified them about). It is unnecessary and confusing.
                Hi wont comment on this unless you really want me to.

                Exept to say.
                nope wont do it

                Lets wait
                unless

                MMMMM
                Last edited by peterbard; 4th August 2010, 17:09:PM. Reason: Automerged Doublepost

                Comment


                • #9
                  Re: Brophy v HFC - CCA ''“Your credit limit will be determined by us from time to tim

                  ther ws also this which reached a similar conclusion where they wear kilts

                  http://www.scotcourts.gov.uk/opinions/A483_09.html

                  Comment


                  • #10
                    Re: Brophy v HFC - CCA ''“Your credit limit will be determined by us from time to tim

                    Originally posted by peterbard View Post
                    ther ws also this which reached a similar conclusion where they wear kilts

                    http://www.scotcourts.gov.uk/opinions/A483_09.html
                    The Agreement
                    (2) The Agreement between the parties referred to "credit limit" in three instances. In Condition 1 headed "Definitions" the Agreement specified:
                    "Credit Limit" means the maximum debit balance which at any time may be outstanding on the Account as determined under Condition 3".

                    Condition 3 was headed "Credit Limit" and specified:
                    "Your Credit Limit will be determined by us from time to time and notified to you."

                    Thirdly, Condition 12 was headed "General" and specified inter alia:
                    "(b) We may from time to time vary this Agreement to such extent and in such manner permitted by law including but not limited to the interest rate, the Credit Limit, and Statement date."

                    Parties were agreed that the operative Condition which might potentially satisfy the requirement in the Regulation was Condition 3 and that was the one which was concentrated upon.







                    There was no mention of credit limit on the Egg agreement aiui so it is different.

                    M1

                    Comment


                    • #11
                      Re: Brophy v HFC - CCA ''“Your credit limit will be determined by us from time to tim

                      Just read the judgment. Very interesting. Couple of quick questions.

                      1. Do the County Courts in England have to follow this judgment or is it just considered as persuasive argument?
                      2. Is the Judgment being Appealed?
                      3. Lombard Tricity Finance v Paton [1989] is referred to in the Judgment. Does anyone have a link to this judgment?
                      R
                      Originally posted by peterbard View Post
                      ther ws also this which reached a similar conclusion where they wear kilts

                      http://www.scotcourts.gov.uk/opinions/A483_09.html

                      Comment


                      • #12
                        Re: Brophy v HFC - CCA ''“Your credit limit will be determined by us from time to tim

                        http://www.swarb.co.uk/lisc/Cnsmr19851989.php

                        Summary of the case is here. Cannot find it on Bailii.
                        "Family means that no one gets forgotten or left behind"
                        (quote from David Ogden Stiers)

                        Comment


                        • #13
                          Re: Brophy v HFC - CCA ''“Your credit limit will be determined by us from time to tim

                          Has it been overridden by Paragon v Nash ? Or did they just chose not to follow it?
                          #staysafestayhome

                          Any support I provide is offered without liability, if you are unsure please seek professional legal guidance.

                          Received a Court Claim? Read >>>>> First Steps

                          Comment


                          • #14
                            Re: Brophy v HFC - CCA ''“Your credit limit will be determined by us from time to tim

                            Thanx leclerc
                            Originally posted by leclerc View Post
                            http://www.swarb.co.uk/lisc/Cnsmr19851989.php

                            Summary of the case is here. Cannot find it on Bailii.

                            Comment


                            • #15
                              Re: Brophy v HFC - CCA ''“Your credit limit will be determined by us from time to tim

                              Originally posted by mystery1 View Post
                              The Agreement
                              (2) The Agreement between the parties referred to "credit limit" in three instances. In Condition 1 headed "Definitions" the Agreement specified:
                              "Credit Limit" means the maximum debit balance which at any time may be outstanding on the Account as determined under Condition 3".

                              Condition 3 was headed "Credit Limit" and specified:
                              "Your Credit Limit will be determined by us from time to time and notified to you."

                              Thirdly, Condition 12 was headed "General" and specified inter alia:
                              "(b) We may from time to time vary this Agreement to such extent and in such manner permitted by law including but not limited to the interest rate, the Credit Limit, and Statement date."

                              Parties were agreed that the operative Condition which might potentially satisfy the requirement in the Regulation was Condition 3 and that was the one which was concentrated upon.







                              There was no mention of credit limit on the Egg agreement aiui so it is different.

                              M1
                              Thought we had decided that the words"crdit limit "are not required.

                              Peter
                              ------------------------------- merged -------------------------------
                              Originally posted by RobinWRM View Post
                              Just read the judgment. Very interesting. Couple of quick questions.

                              1. Do the County Courts in England have to follow this judgment or is it just considered as persuasive argument?
                              2. Is the Judgment being Appealed?
                              3. Lombard Tricity Finance v Paton [1989] is referred to in the Judgment. Does anyone have a link to this judgment?
                              R
                              Hi
                              No this sets no precedent in english courts. However it has been known for judges to consider findings from other courts when making decisions.

                              Peter
                              Last edited by peterbard; 6th August 2010, 08:46:AM. Reason: Automerged Doublepost

                              Comment

                              View our Terms and Conditions

                              LegalBeagles Group uses cookies to enhance your browsing experience and to create a secure and effective website. By using this website, you are consenting to such use.To find out more and learn how to manage cookies please read our Cookie and Privacy Policy.

                              If you would like to opt in, or out, of receiving news and marketing from LegalBeagles Group Ltd you can amend your settings at any time here.


                              If you would like to cancel your registration please Contact Us. We will delete your user details on request, however, any previously posted user content will remain on the site with your username removed and 'Guest' inserted.
                              Working...
                              X