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Remember those TV adverts a few years ago that commenced "Fed up juggling all those credit card and small loans' bills? Then why not take out a new secured any purpose loan, halve those painful monthly outgoings, and treat yourself to that new car/kitchen/holiday or whatever else that you've been promising yourself.............

If so, or if you entered into any such agreement, which both refinanced and also provided additional credit, you may well find the following of interest:-

Many Billions of GB Pounds Sterling (estimated by Consumer Credit Agencies at about 200 - 300 billions, but probably considerably more) are currently secured as 'Triple-A' rated money-market  tradeable securities on the loan books of the so-called "Debt Consolidation Industry" in the UK following the above highly contraversial and hotly disputed 'landmark' ruling which went against the Consumer, and which we say is seen to defeat Parliament, contrary to the Rule of Law, ie unlawfully. The case is based upon The Consumer Credit Act (1974) ["The Act"]. Parliamentary policy regarding the non- documentation of Consumer Credit Agreements was the single principle issue underlying the case, and it fell to the Court to determine whether the Act protected our family and, being unprecedented, the general consumer, from a credit trader's preference to not document the Refinancing terms that affected existing Regulated Consumer Credit Agreements protected by and as defined by, Section 8 of the 1974 Act. Now an old case, it nevertheless remains the leading case regarding this important area of moneylending law. It has created division within the legal community.

There follows a drama that will make a good book ! :-

Here, 3 such existing Regulated Consumer Credit Agreements, totalling £12000 were refinanced by a new Multiple Agreement in November 1986 which provided a new total of £35000 spread over 3 new facilities. Pretty run of the mill stuff, you might think....

At stake was, and is, (we seek to reopen) the legal right of the creditor to recover in the circumstance where the non-documentation of the Refinancing terms that affect existing Regulated Consumer Credit Agreements features. The above unprecedented ruling affects the entire Credit Industry and every Consumer in the UK who entered into such refinancing agreements with credit traders after the ruling and before the implementation of the 2006 Consumer Credit Act. In this present case, no such refinancing terms were ever documented by Natwest, the Court apparently accepting that the agreements were concluded orally....

In court, Natwest defended its practice ruthlessly. It "destroyed, due to constraints of space" its own main investigative file (The Customer Service Unit file) into the case when the Court required to see it, minded of the risks to its loan book in similar fact cases, (I had told the bank that I was to release the file to the Regulators at the OFT and Bank of England who were discussing the case). Natwest insisted to the Court, right down the line, that the Act was not to be applied to this case.  The Court of Appeal (Lord Woolf MR, Lord Justice Auld, Lord Justice Robert Walker) agreed with the bank, essentially because they found no reliable evidence as to the refinancing terms that affected the 3 existing agreements. They were indeed concluded verbally. It was our word against the bank's.

N.B. The Court has at no time ruled as to whether the 3 existing agreements were  Regulated Agreements as defined by Section 8 of the 1974 Act. The point is critical to understanding the controversy surrounding the precedent set by the Court; Parliament intended that the protection provided to the 3 existing agreements, if they are so regulated, is to remain however an existing regulated agreement is subsequently dressed up by the credit trader. The Court has now refused to determine Regulation of the 3 existing agreements here.

In ruling that the Act did not apply, Lord Justice Auld did find that "...the undoubted existing debt of about £12000..." was "replaced" by a "part" (but by which "part" or "parts" of the new agreement, although known to the Court, was never formally identified by the Court) of a new (multiple) agreement that provided a total of £35000 spread over 3 new facilities. The total sum of £12000 falls within the (then) maximum of £15000 that qualified for the protection under Section 8 [Regulated Agreements]. It is therefore protected by the Act. The Court has not mentioned this "Catch-22" fact at any time, anywhere. It is a telling point, because the Court (and Natwest) will know that the Section 8 point is determinative of this case, because the Act then instructs the Court that the regulation is to remain however a credit trader may subsequently dress-up any refinancing (or other) agreement that affects its terms. The point is significant in law because the Section 8 point proves fatal to the Court's existing Judgment. We therefore continue in our efforts to seek Restorative Justice, ie we require a Final Determination of the Court as to whether Section 8 applies to that "undoubted" existing debt. The Court (the same Lord Justice Auld who delivered the original ruling) refused to determine the point when it was submitted in 2006 in a formal application to reopen the point. He passed no comment on the point. He similarly dismissd, again without comment, the evidence of Mr Fancis Bennion, the Draftsman of the 1974 Act. Mr Bennion (see below) states that the Act applies.

Parliamentary intention

Parliament determined in 1971, (Lord Crowther - Consumer Credit -  Report of the Committee- [Command 4596]) and Enacted in 1974, to protect Consumers from the mischief of non-documentation of Consumer Credit Agreements by Credit Traders, and to show it meant business, it enacted within the Act's "new legal framework" (that made the Common [Judge's] Law obsolete) that the non-documentation of Consumer Credit Agreements by credit traders was highly unacceptable in a civilised society. The practice, preferred by many such traders, was to be stamped out by the implementation of severe sanctions for the miscreant trader who relied upon non documentation in Court. The banks, which had been exempted from earlier Statutory moneylending Controls, were to be included in the new law. Lord Crowther, discussing the banks' previous exemption from the old Moneylending Acts, said, "No doubt the standard of the making of Consumer loans by the banks is particularly high and might  warrant the minimum of interference.................but to the individual consumer, faced with problems of the kind envisaged by protective legislation, it is little solace to know that the other party is a bank".

It was enacted that miscreant trader(s) could lose their money in an individual case and indeed they could lose their Consumer Credit Licence, where evidence of corporate policy emerged; here, the regulators awaited the Court's ruling before deciding what licensing action to take, powerless without the Court's Authority to investigate whether the bank operated such a policy. We supplied evidence to the Court that the branch involved (Street, Somerset) did indeed operate such a policy. It was rejected.

OUR INTENTION

The purpose of this site is therefore to inform the Consumer of the social and legal issues highlighted by this case where it has affected his/her rights and we aim to gather public support that the case be reopened to determine the issues because the outfall of the case shows that an unacceptable controversy regarding the principle of legal certainty exists within the legal community itself. Legal academics, text book writers and the Judiciary (Lord Ferris) have all commented on the controversy (follow the link to Mr Francis Bennion's writings on the case below). We say that the Court's decision, to effectively upheld the bank's policy to not document refinancing terms that affect regulated agreements, flies in the face of Parliament's intention to outlaw the practice,  where "transparency" and "truth in lending" featured highly in its Consumer Protection Legislation, as provided way back in the 1974 Act. 

The line up of critics against the ruling is formidable - for example, the Parliamentary Draftsman who wrote the Act, Mr Francis Bennion, (who also wrote The Sex Discrimination Act and very, very, much else), has openly declared that the Court's decision here is "wholly mistaken" and "incorrect", yet the Court has flatly refused to publicly and objectively determine his detailed and informed criticisms of the Judgment, "..certain obiter dicta.." within which Mr Bennion opines,  "show an uncertain Judicial grasp" of the intended working of this Primary Legislation. (http://www.francisbennion.com/doc/fb/1999/029/addendumtomultiagreements.htm#pt2) http://www.francisbennion.com/doc/fb/1999/029/addendumtomultiagreements.htm#pt2) http://www.francisbennion.com/doc/fb/1999/029/addendumtomultiagreements.htm#pt2) http://www.francisbennion.com/doc/fb/1999/029/addendumtomultiagreements.htm#pt2) http://www.francisbennion.com/doc/fb/1999/029/addendumtomultiagreements.htm#pt2) http://www.francisbennion.com/doc/fb/1999/029/addendumtomultiagreements.htm#pt2) http://www.francisbennion.com/doc/fb/1999/029/addendumtomultiagreements.htm#pt2) http://www.francisbennion.com/doc/fb/1999/029/addendumtomultiagreements.htm#pt2) http://www.francisbennion.com/doc/fb/1999/029/addendumtomultiagreements.htm#pt2) http://www.francisbennion.com/doc/fb/1999/029/addendumtomultiagreements.htm#pt2) http://www.francisbennion.com/doc/fb/1999/029/addendumtomultiagreements.htm#pt2) http://www.francisbennion.com/doc/fb/1999/029/addendumtomultiagreements.htm#pt2) http://www.francisbennion.com/doc/fb/1999/029/addendumtomultiagreements.htm#pt2) http://www.francisbennion.com/doc/fb/1999/029/addendumtomultiagreements.htm#pt2) http://www.francisbennion.com/doc/fb/1999/029/addendumtomultiagreements.htm#pt2) http://www.francisbennion.com/doc/fb/1999/029/addendumtomultiagreements.htm#pt2) http://www.francisbennion.com/doc/fb/1999/029/addendumtomultiagreements.htm#pt2) http://www.francisbennion.com/doc/fb/1999/029/addendumtomultiagreements.htm#pt2) http://www.francisbennion.com/doc/fb/1999/029/addendumtomultiagreements.htm#pt2) http://www.francisbennion.com/doc/fb/1999/029/addendumtomultiagreements.htm#pt2) 

Under Magna Carta (1215) and the Bill of Rights Act (1689) we are to again seek the Determination of the Court as to whether Section 8 applies to "the undoubted existing debt of about £12000" (Auld LJ). We are to ask why, when it is Lord Auld who is crticized by the Act and its draftsman, the application was considered by Lord Auld and why it was not passed to another Appellate Judge. We simply put it to the Court that if the Section does not apply, the Court will be able to objectively state why and put an end to the confounding and confusing controversy. We'd like to sleep at night.

In the meantime, the Court's continued silence is deafening.............

Watch this space:-  

Further applications to the Court(s) to reopen the case are in the pipeline.

Please register your support (or otherwise) ! (email address below).  Responses may well be posted.

The First Defendant, Anthony John Story, I am a former Principal Lecturer with International Computers Ltd;  My father, Anthony Walter Story, was a highly respected police forensic detective who eg served under Commander "Nipper" Reed on the hand-picked team of about 20 specialist officers that investigated, apprehended and successfully convicted the infamous Kray brothers. He gave evidence before Sir Melford Stevenson at the Old Bailey in their trial. I mention this family history only because it was my father, when we told him of the threats, unpleasantness and general delay of Natwest, who alerted me to the influence and power that could well feature in this case, ("Big 'uns only threaten when frightened, Lad - they've been caught, red-handed". "It's in the paperwork, or rather, the lack of it").

As Mr Peter Smith QC (a Consumer Credit Expert) told me, in front of my solicitor and Junior Counsel, a week before the trial at first instance (Bristol Mercantile Court) in May 1997, "It's all about Money - a lot of Money", and his considered advice to us all was that the Court would find for the Bank, "A ruling against the bank could prove potentially disastrous for Natwest. The Judge will fudge. Truth and Justice will be early casualties in this case". He was referring to His Honour Judge Raymond Jack QC. Mr Smith is now himself a High Court Judge.

We submit that Section 8 of the 1974 Act shows the truth of this case.

Anthony John Story