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"To Noone shall we sell, or deny, or delay, right or justice" (Magna Carta [1215] ) "Whatever happened to Magna Carta. Did she die in vain?" (Tony Hancock)
- GOTCHA !!! - APPELATE JUDGES CAUGHT RED HANDED FAVOURING BANKSIN FLOODGATE-CLOSING CONSUMER CREDIT PRECEDENT-National Westminster Bank PLC -V - Story & Pallister (CA 7 May 1999)-Parliamentary draftsman, Mr Francis Bennion, speaks out against the ruling [below]-The UK Court of Appeal denies any wrongdoing, (Well, they would, wouldn't they?)butTHE FACTS SPEAK FOR THEMSELVES-Inevitable (?) £300 BILLIONS' + COVER-UP AT COURT OF APPEAL (UK)-Section 8 (Regulated Agreements) Consumer Credit Act (1974) ("The CCA") - Judges conceal the material fact that Section 8protects the consumer in order to favour a bank that iscaught defying the lawin everyday debt refinancing transactions-CREDIT RATINGS' AGENCIES MISLED BY THE COURT(where "TRIPLE - A RATINGS" subsequently assigned to (dis)affected securities) -CONSUMER CREDIT LAW- THE PROTECTION OF CONSUMERS IN UK LAWAGAINST THE MISCHIEF OF UNWRITTEN CONSUMER CREDIT (refinancing) AGREEMENTS (and/or debt consolidation agreements) IS REMOVED BY AN UNAUTHORISED APPELLATE COURT (Material fact of existing protection is deliberately concealed by Court)- THE COURT CONCEALS DETERMINATIVE MATERIAL FACT IN ORDER TO PROTECT A STATUTE-DEFIANT BANK FROM INVESTIGATION BY THE OFT AND BANK OF ENGLAND FOR UNACCEPTABLE PRACTICE & POLICY-At Issue here: LEGALITY : The Court has, in reality, ruled in the general law that 3 existing regulated (protected) agreements lose their protection when refinanced by a replacement agreement. We say "in reality" because in achieving and maintaining what is an unlawful and discriminatory position (that, contrary to provisions within primary legislation, regulated agreements may become unregulated by contracting-out of the law) the Court conceals the material fact that the 3 existing agreements that feature in this case are regulated agreements, as defined by Section 8 Consumer Credit Act (1974) ("CCA") and the regulation remains no matter how a clever credit trader may attempt to compromise the consumer's legal position. Regulated Agreements are protected in perpetuity from abuse of any kind, including the common law itself (the Judges) where Section 173 of the 1974 CCA forbids the Court (and the contracting parties) to "Contract-Out" of the CCA once terms of the kind regulated by Section 8 CCA are agreed by the parties. -By concealing material fact to favour a wrongdoer the Court acts unlawfully. The material fact in question, (that regulated agreements feature), requires the Court to give way to the Statute because a conflict arises between the common law and the Statute, and the law requires the Court to uphold the overriding principle of the CCA - the protection of the weaker party where the bank sought to profit from not documenting terms. This is for reasons of social policy, to combat what is termed "inequality of bargaining power" eg where a dispute arises over undocumented terms that affect a regulated agreement, (here, 3 such agreements) the weaker party has otherwise to fund a fight against a bank. - The legal costs here exceeded £1.5 million pounds.-Mr Francis Bennion, draftsman of the 1974 CCA speaks out, terming the ruling "wholly mistaken" and "Incorrect" that the Court "reveals an uncertain judicial grasp....." (see below - follow creditlaw link)---------------------------- "Concealment and perverting the Course of Justice"
The complained-of Judgment and Orders of the Court of Appeal in National Westminster bank PLC V Story & Pallister reveal, to the independent, fair minded and informed tribunal, the Court engaging in political activism - ie where it chooses to suppress, to conceal material evidence that the Court knows is determinative of an Appeal but for the Court's conscious concealment of that evidence. It is with great regret therefore that the Court of Equity should stand accused of most inequitous behaviour; protectionism. The Court cannot argue other than that National Westminster Bank PLC is shown by Section 8 CCA to defy Parliament's efforts to regulate its lending practices in consumer credit agreements.- We are indebted to our colonial cousins at Yahoo! for upholding the right to protest peacefully to seek redress of grievances
where both Magna Carta and the Bill of Rights Act (1689), (building blocks in the US constitution),
remind us all that laws made by an elected Parliament are constitutionally superior to law made
by unelected Judges,
where The Bill of Rights Act provides, but which provision the UK Court of Appeal refuses,
"The Common Law must not defeat the Statute"
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The first defendant (Story) was warned, forthrightly and unambiguously, by leading counsel, Peter Smith QC, before trial at first instance, (Bristol High Court) on 1 May 1997, that "the Judge will Fudge" and that "Truth and Justice will be early casualties in this case", because the outcome would otherwise be "potentially disastrous for Natwest".
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The case is succintly described by creditlaw.co.uk experts on Consumer Credit Law, "This strange case was incompletely recorded and may well have been incorrectly decided" . There are many other commentators, but we are particularly indebted to Credit Law for their kindness and because the site has a full listing of the Court of Appeal Judgment, http://www.creditlaw.co.uk/Cases/Natwest.htm
Referring to the "significance" of Auld LJ's finding that "the undoubted existing debt of about £12000" is within the limit of £15000 that qualified for regulation under Section 8 here, the Act's Draftsman, Mr Francis Bennion, has bravely spoken out against the ruling because Lord Justice Auld found that the contractual purpose of the new Multiple Agreement here was "partly to replace existing borrowings and partly to provide new monies". Where the existing borrowings are regulated, they are to remain regulated, however the credit trader may later "tinker" with the terms of those existing regulated agreements - eg Section 173 CCA forbids "contracting out" of the Act's formalities . Who better therefore,than Mr Bennion to clarify the intended effect of Section 18 (Multiple Agreements) to the new package of facilities that the Court otherwise allowed to successfully defeat the anti-avoidance mechanisms within Section 18 ?
http://www.francisbennion.com/doc/fb/1999/004/multiagreementsconscredit01.htm
The 1974 Act (together with subsequent secondary legislation) was passed for the multitude of reasons advocated by Lord Crowther in his 1971 white paper "Consumer Credit - Report of the Committee [Command 4596]". Lord Crowther found that of all the contracts where consumer abuse occurred, by far the most cases occurred within moneylending. Banks had been exempted from the draconian documentational requirements of the old Moneylending Acts because of their status. Lord Crowther deemed this exemption as unsatisfactory, that a level lending field must be created and maintained. As he prophetically put it, discussing (in 1971) the exemption enjoyed by the banks,
"........to the individual consumer faced with problems of the kind envisaged by protection legislation, it is little solace to know that the other party is a bank".
Indeed in 1971, the banks were subjected to very few statutory controls, their status within society deeming to place them beyond reproach.
Lord Crowther's white paper was similarly highly critical of the existing Common Law as it applied to moneylending; it tended to favour the powerful and it had become vague and subjective - and the outcome to a particular commonplace dispute would be decided upon the preferred choice of precedents before the Court. Lord Crowther recommended "a sweeping review" of the law, to correct the mischief in the Common Law with a standardised approach to common problems experienced by both Consumers and Creditors - the Act is not one-sided, its whole aim being to create a level lending field where transparency ruled the day; that "truth in lending" would prevail.
The new legal framework was intended to make obsolete, to repeal, and did make obsolete, repealed, but for the decision here, the Common Law into Consumer Credit - where the new law is to apply - a point not lost on our Common Law Judges. The decision here effectively takes control for (consumer) moneylending cases away from Parliament. This is highly unsatisfactory, as Section 8 clearly demonstrates. Parliament decided that moneylending law was not an issue for the Common Law Courts - consequently, sole jurisdiction was granted to the County Court as a designated court of competence. Here, where the case was cleverly bundled up as a common law claim by the bank and placed before the High Court, Section 141(2) of the CCA deems the action as "improperly brought" where it was not transferred immediately to the County Court from the High Court, once it was clear to that Court that there was a CCA defence to the common law claim.
Lord Crowther's report is a very interesting read indeed. It is highly recommended for anyone who wishes to study this important area of social law.
Watch this space:-
Further applications to the Court(s) to reopen the case are in the pipeline.
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