Hello, everyone. Thank you for joining us for under that dates of law. Online Web, You know, open your all well today and ready to hear about enforceability and credit higher, but eventually going to give you a brief see bonus. I'm gonna talk about enforceability and contracts as well. And the impact that can have on you as a company toe hopefully speed things up with your own clients. So for those who don't know me, my name's Craig puts it on illegal Barrett SEPA credit higher acts in exchange on. Unfortunately, we may well be talking about some of my cases today. There you go. Okay. When we're talking about impossibility in relation to contracts and particularly credit hire contracts, it seems like we are going back to a long, long time ago in a galaxy far, far away, that Star Wars field. Because enforceability, I thought had pretty much been put to bed. There's been challenges. I certainly over the last 20 years now of how an agreement is unenforceable and therefore means the defendant doesn't have to pay anything because the claimant is not responsible to pay it. So a part of today's webinar I'm gonna take you through compliance with regulations. We're gonna look at numerous bits of case law of Member going to try and adopt in practice. But all these little things that we're gonna talk about will undoubtedly tie in to the previous two Webinars. You've been on credit higher if you popped into those. So hopefully by the end of today seminar, you will be in a position toe specifically onset. Any queries that are in relation to credit higher unless you're acting as the credit hire company? In which case not only will we give you answers as to how to deal with that, but we'll also talk about the best practice on how to make sure your cases are not faced with the challenge on enforceability. So when we talk about complaints, there's numerous bits of actual statutes that apply on a lot of them. Now are quite old statutes in the 1st 1 there, being the Consumer Credit Act 1978 which was a bizarre piece of legislation because it seems to take years to actually come into force on certainly is part of it coming into force was then followed up with the Consumer Credit Act exempt agreements. Order 1989 on in turn has been more modifications to this with the consumer credit. But you directive regulations 2010. So all these bits and pieces then take us up to the real. What I think is the present day situation, the consumer contracts, information, consolation and additional charges. 2000 and 13 regulations. So all quite seriously, on awful lot of start you that you have to consider just to form an agreement with somebody in relation to providing them with a replacement vehicle forming a road traffic accident No, we consume according out really is quite distinctive as to the amount, the things that need to be completed from what I'm gonna do is I'm gonna skip the consumer credit act in full because what I find is that the majority of credit card companies, and certainly are not anybody different. Actually, don't compliant consumer clearly ups what they comply with these. The exempt agreements are the 1989. We're gonna talk about the case that highlighted the exempt agreements on her shortly. But what I really wanted you to focus on is the three parts that were kind of introduced this partly exempt agreements order that mean that somebody doesn't have to go through the full scenario of the Consumer Credit Act, which sets out so many different bits and pieces of information and notification and how people comply and how customers have the opportunity within 14 days to counsel etcetera. Because the Consumer Credit Act exempt agreements on it was really quite a nice piece of legislation that introduced these little bits that made you exempt. I mean, key points here are that the credit must be repaid within 12 months. The repayment must be no more than four installments on the higher must, not 16 3 months. So those are really key points on what you see in higher agreements. Very much is that the credit is repaid by one repayment within 360 days to making sure that it complies with the 1st 2 bits, and then you will have a separate point that says that the Hyatt contained are so higher provided for within this agreement will be limited to 89 days and therefore does not exceed three months. That's what you kind of see as a standard. Now I think most hire companies have adopted these. So if I'm some, there is the defendant. Yes, it's worth looking for, but the majority of the agreements will help. These is a standard bid. I doubt as a defendant you would find any agreements that would cause you in issue. However, what did happen is that the U directive came in on this was in 2010. I think, if I remember rightly was October 2010 on this talks about the fact that the credit is provided without interest and without any other charges. Okay, now, this was a funny one because some high companies did have interest in their agreements in that if there was a late payment after 30 days and it hadn't been paid, then you the hire company would say, Well, is interest on something this come to the other without any of the charges in the moment? But the other bit that I wanted to focus on here is it. I don't know if you're aware of this one. The a B I g t. A. As much as the FBI have candid withdrawn their backing for In is now a group of insurers that support the GT a GT Ages stands for the general terms agreement, which is an agreement that a lot of insurers and a lot of hire companies have signed up to. That basically says, This is brass practice. This is what we do on it talked about how long it takes to instruct an engineer how long you act in relation to the engineers, reports how long it takes on the right off basis, how long you should be paid. So if a claim is that we're good on the G under the G t A. Any insurer is provided with the discount are if the agreement is paid within 30 days. Of course, this is a fully one because then, after 30 days, but before 60 days, there's an additional charge for a late payment penalty. Now, arguably, you could sail around a minute. That's interest, isn't it? Because after 60 days, it then goes to commercial rates. So know only of ago a rates and that the customer has signed on the higher agreement. I've now got two of the rate. So isn't not interest that being provided on simply? No. And it's a no in a definite no, because it is a discount for payment early, as opposed to a charge for not paying. And that's where you kind of say Okay, all right, I get that the g t A. Is no about charging. Interest is about incurring penalties on, therefore, ultimately taking it up to the contract around the issues reversed if on the higher agreement the client provides for the discounted rate, and he's then charged on interest amount within the terms and conditions that take it up to a commercial rate. But nobody does that, so I wouldn't even bother looking for it without any other charges again. Another interesting one because arguably the GT A provides an administration charge. Now the administration charge a £37 is a bit of a funny one, because what is the administration is that in relation to providing interest even on non higher non GT A cases and the administration charge you would have to show was purely in relation to an amount that's listed or linked to the providing credit with interest. So the administration charge such is obtained db away checks, making sure that you cost amazing being saved. The are etcetera, those types of checks. I'm not in relation to the provision of interest, and therefore the argument wouldn't watch. So again. What you see is that the higher companies have pretty much got their act in order here on the agreements. Do comply by having no reference to interest or any of the charges or interest that then takes us to the consumer contracts, information, consolation and additional charges regulations. Now this better regulation is another interesting point, because this is part of the government's responsibility to review into regulations within five years. And so the consolation of contracts. Megan in the consumer's home or place of work Accessible Regulations 2000 and eight that was introduced in the October 2008 but was replaced with the consumer contracts rates in 2000 and 13. As part of that review on specifically, it talks about on premises or off premises. So when you look at these regulations, it's all about does the customer visit the hire company or indeed, does the solicitors? Because when I said to you at the start, this webinar that the consumer contracts and I was going to talk to you about how your contract could comply, this is very much. The regulations are all part and parcel of this. So if a client visit Sosa's liars and signs our client care letter on the premises that are different regulations that apply into those contracts that signed off the premises, and that includes things like a right to counsel another really a listed this is extensive information because really goes from a to about said, as on the schedule to as to things that you've got to include, such as complaints procedures such as your contact details, the office to dress, tell me phone numbers, email addresses, etcetera and, most importantly, and provides for this right to counsel no right to counsel is where somehow it cos no foul in that When the 2000 and eight regulations came in, there was a laugh. A lot of people that says I got a minute. This is nothing to do. We credit. Hire this. He's all about somebody knocking on your door and persuading you to tow by some time share or by windows and sitting there for two hours and you refused. They refused to go away until you sign something, Really, it's about protecting those people as opposed to clients who want to be wanted to hire a replacement vehicle. Boots. What you're now seeing is that again, everybody seems to understand this has got to grips with the on premises or off premises. And if you go back to the Web another and dig in relation to how you signed the documents, that's all governed best part and parcel of these regulations. Nothing. What I am saying is challenges in relation to off premises contracts. Andi, I've seen one high completely said This hate is part of the regular scheduled to regulations in case in the case of a contract of indeterminate duration or a contract containing its subscription the total cost building per billing period. Always, such contracts are charged at a fixed rate, the total monthly costs she'll be contained within the contract. So you're in this position where if your client has entered into the higher agreement, comes a credit hire agreement and it's an indeterminate duration. You don't know how long that high is gonna last for it could last for a week. It could last, but the 89 days that it maximum around could even be that you have a second agreement I think goes on beyond the 89 days. So do you have a responsibility as a higher company to actually put in what the total monthly costs are as well as your daily charging rates? Well, as much as I've seen that as a challenge, we've blasted it back and said, I'm gonna many that can't be right because their form was contradicts it on this is F within scheduled to obviously F because before hate on that says the total price of the goods or services inclusive of taxis or whether nature off the goods, all services in such that the price cannot reasonably be calculated in advance the manner in which the price is to be calculated. So home agreement will stipulate what the daily rate is. It will stipulate any additional charges, such as a collision damage way, the charge to reduce excess. There might be an additional driver charge that might be a young driver. Charge on all of these points are listed on a line by line basis within the contract. That then means your client understands exactly how that is calculated, and so when we look back at hate on it, saying what It's an indeterminate duration. You need to put the total move because some really that's just wrong, because you're in this position where you've got to be able to say, Hang on a minute. The total goods is perfectly calculable from what clients are seeing on. They've got that agreement in front of them. So a complicated one other state. Do you see that from the defendants? And I've not seen any success yet because of that. So a long, long time ago again just don't give you a different bunch of that. So give you a bit of a smile. That case Law was first listed with Diamond On have deliberately mis spelt it wrong on this on the slide because a lot of people referred to it as Dimond level and it's D i m o N d Mrs Diamond. She signed an agreement 367 pouncing on the £68 agreement that really changed the face of credit. I It got rid of a number of companies, really quite unbelievable home. The reason why simply was because he didn't comply with the Consumer Credit Act. Exempt agreements order 1989 if you remember three key points. Can it be able to be kind within 12 months? Hi. It couldn't subsist for more than three months, and it had to be no more than four. Repayments didn't happen because it didn't happen that maybe should have complied with the consumer credit at. And they didn't comply with the Consumer Credit Act, either. A. Such what was found out was that Mrs Diamond's agreement was void and therefore was recoverable against the defendant. So skip a few years forward, I think the amended input, the year on there by mistake. Diamond ultimately went into the House of Lords of Thing in 2000. I am on board and read is in love it case, but slightly x after diamond on this brings into question a company called Help IRA. They had no change them their name. That part of the exhibit scream Mrs. Bali, Now Mrs Bullish was named better. You can imagine Betty boldly on the stunned when she's staying. This a telephone high help higher on. It was explained to me that they provide high caste for the use of victims of non fall absolutes, it was explained. I understand that when help. I have provided the vehicle the charges acclaimed by money from the person at fault, all their insurer on that this hiker is not so free or Kirsty car. I confirm. I read the terms and conditions of the higher vehicle and agreed to be bound by them. I understand for me my liabilities to help higher under the terms and conditions of the agreement now in effect, Mrs Boldly, that he's saying that exactly is she's saying, Look, you know, I hide a vehicle from help hire They told me that it's not a case in cardboard you don't have to pay and cannot from We're going to get the money back from the person and the insure you sit. Yet with that in mind that was authorized, the court said, That's perfectly reasonable. You can say it. How is so? We've been stepped forward. I know that. Thank you ain't. And this time I've got today on Thompson. Now, this is one of our cases Now, Mr Kady, I think this is really representative of how long it takes to get a case to in here. Because even with the way I think we are issuing and we issue for early, probably sometimes with the way the courts are, it can still be 12 months, 18 months post the actual time of the agreement being signed. A mystical said in evidence that they assured him that he would have no personal liability to pay them. They told him they'd be. That's an exchange. They saw at least two separate occasions when he first spoke to them by telephone and subsequently when they informed him that they were getting the car ready for it. Now the defense was very, very loose in my mind. The claimant his puts a strict proof that the higher chances are enforceable in reclaiming as a contractual obligation to pay the same. Now here, Mr Cadei was never told for money. It was free, Mr Candela was told nothing different than what Miss Mrs Ball, he had been told. The situation is that people forget. I mean, unfortunately, Mr Kim, beer was effectively tricked by a defendant Barrish there into saying, you know what you were told. He was free on interpretation of freaking meaning, an awful lot of different things to different people, because if you're in this position where you're told something is free. That's that easy to deal with. But when you told something that you don't have to pay their front, we're gonna claim me. But from somebody else on your Bihar, you have any really bizarre position. So that's just skip back on, because way, then get that in the defense. It should be that the burden in such a case rests upon the party asserting the misrepresentation here, the defendant list of the ship. So we're now in a position where it's not for Mr Kadeer to say, I don't have to be repaid Jackson Exchange, Accent exchange and not a party to this proceeding so they can't put any evidence in. And you're in a position then where you say no, the defendant only has to do is get he's biased and to get Mr compared to say, you was told. Now, when that happens, the argument technical argument is that is misrepresentation. Because there was no argument that Mystic Qadus on the higher agreement, there's no argument about the higher agreement is enforceable. The argument is, the mistake today was told him told something different that made him sign the higher agreement amiss essentially, the misrepresentation. Pre contractual statements made during negotiations leading up to a contract may qualify as representations. Such representation to maybe statements of fights or law. A misrepresentation is a false statement of fact or law. Mr. Kadeer was never told anything that was false, Mr Kadeer was told, pretty much the same as Mrs Barley was told. A misrepresentation becomes actionable if it is an unambiguous on false standard of funds. All law address to a party who is misled by it, and it's is a material misrepresentation which induces the contract and causes loss. So in Cadet, the defendant's aside, I got a minute, Mr Today was misled, and that was a material misrepresentation and induced him to sign the higher agreement. Blacks in exchange. The consequence of an actionable misrepresentation is to make a contract voidable rather than rendering void. Big difference that okay, and this was taken from the effectively. Bible on credit. Higher Written by Cavan Analysis Think of on unaided alleys. I may say that the aural assurance may amount to a misrepresentation, making the contract voidable. This is likely to be hard to prove, since the defendant would mean to establish that a positive misrepresentation was made as opposed to Mishael. Stop! I'm not missing geese declaiming two and set the contract. In any event, claimants may argue that the effects of a misrepresentation the agreement is voidable, not void. It therefore, remains enforceable. That's a court. No, it's enforceable by court and silver Kliment elects to avoid it. A liability therefore remains for which it could be argued. The claimant should be compensated by the defendant. Defendants may say not in any event, are failure to reach the contract we sing. The contract would be a failure to mitigate. This argument is likely to be weak because a set above a claim it does not have to take the risk of uncertain litigation against that thereby nor the risk of being sued by a policy so really severe in some awesome, then progress to this comment by the judge. Is there an alternative replacement vehicle loss in the event? The high charges are really curable and if so, to what amounts So essentially here we were saying, I'm gonna minute I'll leave any fallout. He's right and should be an alternative loss and effectively. The readings were, as a consequence of the accident the following financial loss has been sustained, which I now seek to recover from the defendant. I think the sum of £21,000 representative costs appearing alternative transport, fire, accident exchange from the 25th of November. It's in a 30 job now. Essentially, we've not changed all our pleadings because, the judge said there isn't also whisper there before but claim for damages generally in relation so high cost, not associating with the agreement. So if we're in a position now, our pleadings represent what I think he's the interpretation of the Darren Bent cakes, and that, simply is that in the alternative the claimant, the sustained loss of use and the value of the loss of use, Cumbie claimed it as per the value of the higher charges. Now that's alluded to invent. But there's a further case in the name of Mongol, where the claimant son was the main use of the vehicle. The vehicle was hired to the dot in the main, some being in a personal itself. So the main loss and from that the alternative waas that Mr Mongol Jr was Bailey in possession and therefore he would still have sustained lost to the value of the higher challenges case, which was running full. Unfortunately, Mr Candy's case, the judge did not award is anything or other and warned Mr Kadeer, anything on there for Mr Condition could melt ratepayers. Now, before I take you onto this famous bit, what do you tell a climb just wanted to use? This is a little too Will name? Don't telling you name Pike from the famous dogs Army clip. This is all about trying to get in your mind in the inferences you don't tell clients anything that compromises behind me Going. You never say to a client. It's free. You always make sure that the witness statement cool is what they had sold. And you've got to get your pleadings right and claim in the alternative loss of used to the value off. Now, that's key, because tiny clients something that may compromise the high agreement were quite clearly no matter whether you told it all know if the claimants interpretation in court is such that you that he was told it was free. You've got and get in and say I'm gonna make it. Wasn't told that what happens now for ourselves is that client explain to recording under recording his reference within the disclosure. There's gonna be no argument, Mr What my client has been told. Now this was taken further, and there's a more recent case. I'm not included in these lines the name of Irving A. Morgan symbol, which we this year won the time Williams, from Mrs Irving effectively says within her evidence that she was told that it was like a no win no fee agreement, and she wouldn't have to pay. In that case, even the judge intervened by cross examining the claimant at first instance, and came to the conclusion that Mrs Irvine had been misrepresented and therefore didn't have to pay anything. However, on appeal Missus, Irvin's case was quite clear in that essentially, the Court of Appeal of the Appeal court found nuts. There was a contingent liability on the contingent. Liability was a bit basically contingent upon the defendant's insurer paying the higher charges that we're in Mrs Irving's name. So if you're unsure on this, it's a medical case to the look up. But essentially, just remember, these team fights do not tell you anything that compromises by agreement. Make sure that your witness statement covers what they're told And get your pleadings right claim in the old Senate. So hopefully a bit of a whistle stop tour there of enforceability within hire agreements don't figure out the same principles apply when it comes to things like our client Callouses, etcetera. So these bits are still all relevant when you're getting close to sign any kind of contract that provides credit. Thank you very much indeed. For your attendance today, take
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