Unenforceability & Template Letters

never-in-doubt · 9 August 2009 at 9:42AM

Redacted......

savagej · 9 August 2009 at 10:20AM

Just to let you know the Administration of Justice Act 1970 does not apply in Scotland.

never-in-doubt · 9 August 2009 at 10:32AM

savagej wrote: »

Just to let you know the Administration of Justice Act 1970 does not apply in Scotland.

I know it doesn't mate - where have I said it does?

If you look at the two versions of the limitations letters, the top one (england only) mentions it; the bottom one (scotland only) does not

savagej · 9 August 2009 at 10:37AM

Sorry, was not wearing my glasses and have not completely woken up yet.

Edit: Ah, it is in the harrassment by telephone letter, you might need to put in brackets only put in that statement if you are in England or Wales.

never-in-doubt · 9 August 2009 at 10:44AM

savagej wrote: »

Sorry, was not wearing my glasses and have not completely woken up yet.

Edit: Ah, it is in the harrassment by telephone letter, you might need to put in brackets only put in that statement if you are in England or Wales.

LOL, the letters are all based for England unless quoted mate. The Protection from Harassment act would be relevantwhich would suggest either/or scenario. If I start doing england/scotland versions then it will become tedious and I hope people from Scotland realise they have differing laws and just to check before posting things off..... :beer:

Inactive · 9 August 2009 at 11:05AM

Lot of hard work gone in to that lot NID, well done mate.

savagej · 9 August 2009 at 11:13AM

I would love to see the look for some people in DCA's going "oh christ, not another one that knows their rights", lol.

fermi · 9 August 2009 at 11:30AM

Section 40 of the "Administration of Justice Act 1970" no longer applies to the harassment of a debtor under a "commercial practice" since the CPUTR 2008 came into effect.

CPUTR 2008 however does prohibit this, so it is better to quote that.;)

Well........ That is what the OFT told me when I asked, so...........

never-in-doubt · 9 August 2009 at 12:06PM

fermi wrote: »

Section 40 of the "Administration of Justice Act 1970" no longer applies to the harassment of a debtor under a "commercial practice" since the CPUTR 2008 came into effect.

CPUTR 2008 however does prohibit this, so it is better to quote that.;)...........

Ahh yes, sorry well spotted Fermi. Thanks.

To quote:

Administration of Justice Act 1970

13. In section 40 of the Administration of Justice Act 1970(a) (punishment for unlawful harassment of debtors), after subsection (3) insert—

"(3A) Subsection (1) above does not apply to anything done by a person to another in circumstances where what is done is a commercial practice within the meaning of the Consumer Protection from Unfair Trading Regulations 2008 and the other is a consumer in relation to that practice.".

To me this simply means that because the debt is in a "commercial interest" they can lawfully pursue it! But then there has to be an equal level of cover from CPUTR which is what i'm struggling to find.... in essence this has been removed then, there is nothing in CPUTR that overrules this 'amendment' to s.40.

Section 40 - The Administration of Justice Act 1970.

Section 40 of the act provides that a person commits an offence if, with the object of coercing another person to pay money claimed from the other as a debt due under contract, he or she:
harasses the other with demands for payment which by their frequency, or the manner or occasion of their making, or any accompanying threat or publicity are calculated to subject him or his family or household to alarm, distress or humiliation;

falsely represents, in relation to the money claimed, that criminal proceedings lie for failure to pay it;

falsely represent themselves to be authorised in some official capacity to claim or enforce payment;

utters a document falsely represented by him to have some official character or purporting to have some official character which he knows it has not.

Paragraph (1) above does not apply to anything done by a person which is reasonable (and otherwise legal) for the purpose of:
of securing the discharge of an obligation due, or believed by him to be due, to himself or to persons for whom he acts, or protecting himself or them from future loss; or

of the enforcement of any liability by legal process.

It is also provided that a person may be guilty of an offence under paragraph (1) above if he concerts with others in the taking of such action as is described in that paragraph, notwithstanding that his own course of conduct does not by itself amount to harassment.

fermi · 9 August 2009 at 12:22PM

never-in-doubt wrote: »

But then there has to be an equal level of cover from CPUTR which is what i'm struggling to find....

Comes under this according to the OFT when I asked.....

Aggressive commercial practices

7.—(1) A commercial practice is aggressive if, in its factual context, taking account of all of its features and circumstances—
(a) it significantly impairs or is likely significantly to impair the average consumer’s freedom of choice or conduct in relation to the product concerned through the use of harassment, coercion or undue influence; and
(b) it thereby causes or is likely to cause him to take a transactional decision he would not have taken otherwise.
(2) In determining whether a commercial practice uses harassment, coercion or undue influence account shall be taken of—
(a) its timing, location, nature or persistence;
(b) the use of threatening or abusive language or behaviour;
(c) the exploitation by the trader of any specific misfortune or circumstance of such gravity as to impair the consumer’s judgment, of which the trader is aware, to influence the consumer’s decision with regard to the product;
(d) any onerous or disproportionate non-contractual barrier imposed by the trader where a consumer wishes to exercise rights under the contract, including rights to terminate a contract or to switch to another product or another trader; and
(e) any threat to take any action which cannot legally be taken.
(3) In this regulation—
(a) “coercion” includes the use of physical force; and
(b) “undue influence” means exploiting a position of power in relation to the consumer so as to apply pressure, even without using or threatening to use physical force, in a way which significantly limits the consumer’s ability to make an informed decision.

never-in-doubt · 9 August 2009 at 12:29PM

so you're saying to take that paragraph out or amend it to abbreviate it to say 'we're now knackered, you have carte blanche - do what you want'?

Personally, it stinks because the CPUTR does not offer the same protection, if any, as s.40!

Unenforceability & Template Letters

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