Page last updated at 11:43 GMT, Friday, 8 May 2009 12:43 UK

Judges seek hold on debt claims

Credit card
The test cases should establish whether consumers can cancel debts

Judges in England and Wales are considering putting on hold up to 100,000 claims for the cancellation of credit card and other consumer debts.

Many of the cases have been generated by claims-handling firms advertising in the newspapers and on TV.

The firms argue that the debts cannot be enforced if lenders have not kept the right paper work.

The judiciary is planning to select a few claims for a test case in the High Court to decide the issues involved.

A spokesman for the Judicial Communications Office explained that the aim was to find a way of dealing with a very large number of claims.

"It is about the management of these cases in the most efficient manner," he said.

Test cases

The intention of the judiciary has been revealed in a recent letter written by Judge Derek Halbert, the head civil judge in Cheshire.

"It is apparent that there are a number of claims to be commenced nationally in which the main claim will be for a declaration of the invalidity of a credit agreement for non-compliance with the Consumer Credit Act (CCA)," Judge Halbert said.

"Estimates vary but up to 100,000 claims may be involved.

"The consensus is that the appropriate course is to refer a few carefully selected cases to the Commercial Court in London on a test basis... and then stay all others until the test cases have established the requisite principles," he added.

No deadline has been set for any decision on a test case, which will be decided by Lord Justice Moore-Bick, the deputy head of civil justice.

Challenging debts

Last year, a Staffordshire couple, Basil and Amanda Rankine, gained widespread publicity for managing to persuade lenders to write off more than £65,000 of assorted credit card debts and other loans.

Amanda and Basil Rankine
The Rankines were accused by a judge of lying in court

They relied on various arguments, including that the lenders had not produced accurate paperwork to back up their loans, or had not complied with other requirements of the CCA.

But when they went to the High Court to challenge further debts, and establish a legal precedent, they lost.

Judge Simon Brown accused them of lying, and said their arguments were factually and legally flawed, describing some of them as "pure sophistry" or "totally without factual or legal merit".

The law

The idea that some borrowers might be able to renege on some of their debts hinges on the wording of the 1974 CCA, which covers agreements struck before the advent of a new Act in 2006.

The purpose of the 1974 Act was stop unscrupulous lenders exploiting unsophisticated borrowers.

There are companies encouraging people to look for loopholes in loan agreements but our position is quite clear - if you borrow, you should repay
British Bankers' Association

But according to Marc Gander of the Consumer Action Group (CAG), it also contains requirements that can be used by some borrowers.

"If you write to the lender under the CCA and ask for a 'true copy' of loan agreement, if they are unable to supply it in the required time, then it becomes an unenforceable agreement," he said.

It is now clear that tens of thousands of such claims, based on this and other requirements of the 1974 Act, have been building up, garnered in many cases by claims-handling firms, and threatening to swamp the county courts.

Claims-handling firms are regulated by the Ministry of Justice (MoJ).

In February, the ministry and the Office of Fair Trading (OFT) warned they would close down any firms which made misleading claims about their ability to get their clients' debts written off.

The British Bankers' Association (BBA) said: "The BBA is aware there are companies encouraging people to look for loopholes in loan agreements but our position is quite clear - if you borrow, you should repay: if you are experiencing financial problems, talk to your lender."

Test case

The CCA issue has parallels with that of the bank charges saga, in which tens of thousands of claims for the return of bank overdraft charges were put on hold in the summer of 2007 pending the outcome of a High Court test case.

That has still not resolved whether overdraft charges are fair or not, and the first part of the litigation between the banks and the OFT reaches the House of Lords for an appeal in June.

The Commercial Court, part of the High Court, has agreed to hear any CCA test cases.

"Anyone who find themselves struggling with their debt should contact their lender and arrange to have their repayments restructured," said the consumers' organisation Which?

"If they are really worried about their debt, they should contact Citizens Advice, National Debtline or the Consumer Credit Counselling Service," it said.

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