Consumer Credit Act 2006: Amendments to the Consumer Credit Act slaughter and may. October 2008

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1 Consumer Credit Act 2006: Amendments to the Consumer Credit Act 1974 slaughter and may October 2008

2 contents 1. Introduction 1 2. Overview of 1974 Act 1 3. Summary of changes 1 4. Background of CCA regulation 2 5. Scope of CCA regulation Expansion: removal of 25,000 financial limit Exclusions from scope of CCA 3 6. Licensing Limited licences Additional ancillary credit business requiring licence OFT: Licensing body and administrator 6 7. OFT powers General Overview of powers Intermediate sanctions Power to require information Power to access premises Power to impose requirements on licensees Enforcement of agreements by unlicensed trader Abolition of automatic unenforceability of regulated agreements Fixed-sum annual statement Default: Information requirements OFT information sheets Arrears notices Default notices 13 slaughter and may

3 11. Time orders Post-judgment interest The 2007 Regulations Unfair relationships New regime to replace extortionate credit bargain regime Scope of regime: credit agreements Transition Unfair relationship test Court powers Persons who may allege unfairness Burden of proof OFT action Fairness as a legal concept Consumer Credit Appeals Tribunal Financial Ombudsman Scheme Conclusion 25 Appendix: Consumer Credit Statutory Instruments Table 26 slaughter and may

4 consumer credit act 2006: amendments to the consumer credit act Introduction The Consumer Credit Act 2006 (the 2006 Act ) received Royal Assent on 30 March 2006 and principally amended the Consumer Credit Act 1974 (the 1974 Act ). The 2006 Act amendments were implemented over a two year period ending in October This memorandum provides an introduction to the changes that have been made to the 1974 Act under the 2006 Act. The 1974 Act as amended by the 2006 Act will be referred to as the CCA. 2. Overview of 1974 Act The 1974 Act set out a framework for the regulation of the supply of credit and the hiring of goods throughout the United Kingdom to individuals (which included natural persons, unincorporated associations and partnerships of any size) where the credit provided or payments for hire did not exceed 25, It provided that a licence was required to carry on a consumer credit business, consumer hire business or ancillary credit business as defined in the 1974 Act. The 1974 Act regulated the consumer credit and hire industry by a system of licensing the suppliers of such services and controlling the methods used by suppliers to seek business. The 1974 Act also regulated the entry into individual consumer credit or consumer hire agreements; the form and contents of such agreements; and matters arising during the currency of agreements and default under and termination of agreements generally. In addition, the 1974 Act regulated the giving of security in relation to agreements regulated under the Act, pawnbroking and the licensing of ancillary credit businesses. This memorandum will not cover these activities in detail. The scope of the 1974 Act extended to the whole of the United Kingdom (including Northern Ireland). 3. Summary of changes The 2006 Act introduced the following main changes to the 1974 Act: > removal of the 25,000 threshold: all new consumer credit and consumer hire agreements made by individuals are now regulated, subject to certain exemptions; > licence requirements: reform in the licensing of providers of consumer credit and consumer hire and ancillary credit services and the functions and powers of the OFT in relation to licensing; > unfair relationship test: the replacement of the extortionate credit test with an unfair relationship test enabling debtors to challenge unfair relationships with creditors where the court has wide discretion to re-write credit agreements which are unfair to the debtor; 1 As discussed below, this limit was abolished under the 2006 Act on 6 April slaughter and may

5 > the provision of new information requirements and notices to debtors and hirers after the agreement is made and in situations of default; > appeals against decisions of the OFT in relation to the licensing of consumer credit and hire businesses and ancillary credit businesses; and > the extension of the jurisdiction of the Financial Ombudsman Service established under the Financial Services and Markets Act 2000 ( FSMA ) to provide for an Ombudsman scheme to hear complaints in relation to businesses licensed under the CCA. 4. Background of CCA regulation In July 2001, the Secretary of State for Trade and Industry announced a review of the 1974 Act which resulted in the publication of the White Paper Fair, Clear and Competitive The Consumer Credit Market in the 21 st Century in December 2003 (the White Paper ). The review concluded that reform was necessary. This led to the publication of the joint DTI and Department for Work and Pensions Paper Tackling Over-Indebtedness Action Plan The government responded to these consultations 2 by embarking upon a series of legislative reforms in respect of the issues raised. Some of the reforms could be achieved by secondary legislation under the provisions of the 1974 Act. The first part of the consumer credit reform process brought significant changes to the prescribed form and content of consumer credit and hire agreements, advertisements, notices and other information under the following statutory instruments which came into force between October 2004 and May 2005: > Consumer Credit (Miscellaneous Amendments) Regulations ; > Consumer Credit (Electronic Communications) Order ; > Consumer Credit (Advertisements) Regulations ; > Consumer Credit (Agreements) (Amendment) Regulations ; > Consumer Credit (Enforcement, Default and Termination Notices) (Amendment) Regulations ; 2 The results can be found at: 3 SI 2004/ SI 2004/ SI 2004/ SI 2004/ SI 2004/ slaughter and may

6 > Consumer Credit (Disclosure of Information) Regulations ; and > Consumer Credit (Early Settlement) Regulations A brief summary and overview of the above secondary legislation is set out in the Appendix. The second part of the reform programme necessitated primary legislation which resulted in the 2006 Act. 5. Scope of CCA regulation 5.1 Expansion: removal of 25,000 financial limit The 2006 Act removed the 25,000 financial limit for the regulation of consumer credit and consumer hire agreements under the CCA meaning that all consumer credit and consumer hire agreements are now potentially within the scope of CCA regulation. The removal of the 25,000 financial limit took effect on 6 April Exclusions from scope of CCA The 2006 Act inserted the following additional exclusions from the scope of CCA regulation: (A) Business exemption Credit and hire agreements provided to businesses will potentially be exempt from CCA regulation 10. An agreement exceeding 25,000 will not be regulated if the agreement is entered into wholly or predominantly for business purposes. It is presumed that an agreement has been entered into for business purposes if it contains a declaration by a debtor or hirer that this is the case. The form of such declaration is prescribed in schedule 3 to the Consumer Credit (Exempt Agreements) Order However, if the creditor or hirer knows or has reasonable cause to suspect that the declaration is not true the presumption will not apply. (B) High net worth debtors and hirers The 2006 Act empowers the Secretary of State to provide by secondary legislation a new exemption 12 relating to high net worth debtors and hirers. The Consumer Credit (Exempt 8 SI 2004/ SI 2004/ Section 16B CCA. 11 SI 2007/ Section 16A CCA. 3 slaughter and may

7 Agreements) Order includes provisions that allow credit lending or hiring to high net worth borrowers or hirers, respectively, to be exempted from regulation under the CCA. The exemption applies where: (i) (ii) the debtor or hirer is a natural person; the agreement includes a declaration by the debtor or hirer in prescribed form 14 that he understands that certain protection and remedies will not be available; (iii) a statement of high net worth relating to the debtor or hirer has been made by: (a) (b) an accountant who is a member of a recognised professional body; or the creditor or owner, provided that they are an authorised bank. The statement of high net worth must be made no more than one year before the entry of the agreement. High net worth for the purposes of the exemption means that the debtor or hirer has: (i) (ii) a net annual income during the previous financial year of not less than 150,000; or net assets (disregarding their primary residence and certain pension and insurance assets) throughout the previous financial year of not less than 500,000. It should be noted that the unfair relationship regime (see paragraph 14 below) will nevertheless apply to such credit agreements. (C) Partnerships of more than three persons Partnerships of more than three persons are not included within the definition of individual for the purposes of the CCA 15. Consequently, borrowings or hire by partnerships of more than three members are outside the scope of the CCA and are to be treated in the same way as corporate businesses. The rationale behind the limitation of the definition of individual is that the impact on lending to large partnerships when combined with the removal of the 25,000 limit would have been enormous both in terms of process and documentation 16. Furthermore it has been recognised that larger businesses do not need the same level of protection as consumers. However, the view has been taken that smaller businesses, for instance sole traders, do need protection as their operations are more akin to that of a consumer. 13 SI 2007/ Schedule 1 Consumer Credit (Exempt Agreements) Order 2007, SI 2007/ Section 1 CCA. 16 Patient, J, The Consumer Credit Act 2006 J.I.B.L.R. 2006, 21(6) slaughter and may

8 (D) Buy-to-let exemption After much lobbying by the industry, there is also a specific exemption for buy-to-let mortgages. The policy intention underlying the 2006 Act was that lending over 25,000 for the purpose of buy-to-let would fall within the business exemption (referred to above), but the drafting of the business exemption means that it exempts only buy-to-let loans that are wholly or predominantly for business purposes, and not for investment purposes. After some initial transitional provisions, a new permanent buy-to-let or investment exemption was inserted into the CCA 17. The exemption applies to CCA loans of any value where, at the time the agreement is entered into, the borrower or a relation does not occupy or intend to occupy more than 39% of the property on which the loan is secured. 5.3 Conclusion With the abolition of the 25,000 financial limit, the overall scope of the CCA has been widened by the 2006 Act. There are exemptions for high net worth customers, agreements for business purposes where the credit agreement exceeds 25,000, and buy-to-let mortgages. Partnerships exceeding three persons are not protected by the CCA. 6. Licensing A licence under the CCA is required to carry out a business within the scope of the legislation. The changes to the licensing system pursuant to the 2006 Act are described below. 6.1 Limited licences Under the revised licensing regime, an applicant may apply for a licence to cover one or more of the licensable businesses without limitation; or alternatively, to merely cover one or more descriptions of business within the type of licensable business. 6.2 Additional ancillary credit business requiring licence The 2006 Act introduced debt administration 18 and the provision of credit information services 19 as types of ancillary credit business and, as a consequence, carrying on such businesses will require a licence. 17 Section 16C CCA (introduced by Article 3 of the Legislative Reform (Consumer Credit) Order 2008 which came into effect on 31 October 2008). 18 Section 145(1)(da) CCA. 19 Section 145(1)(db) CCA. 5 slaughter and may

9 (A) Debt administration Debt administration means the taking of steps to perform duties under a consumer credit or consumer hire agreement on behalf of the creditor or owner, or to exercise or enforce rights under such an agreement on behalf of the creditor or owner (so far as these steps do not constitute the separate ancillary credit business of debt collecting) 20. (B) Credit information services Credit information services cover those businesses that help individuals to locate and correct records relating to their financial standing held by credit reference agencies and others in the credit and hire industries OFT: Licensing body and administrator The OFT remains the licensing body under the CCA and administers the licensing system. (A) Duration of licence The amendments introduced by the 2006 Act mean that the OFT will now issue most standard consumer credit licenses on an indefinite basis, for which there will be an initial charge and then a periodic maintenance charge. This replaces the previous five year licence which required periodic renewal. The OFT is also empowered to issue licences for a fixed period, provided the licences do not exceed a maximum period prescribed by the Secretary of State (five years), and to vary the duration of licences in certain circumstances. (B) Fitness test The fitness test for a licensee was extended by the 2006 Act. The new fitness test provisions came into force on 6 April and give the OFT clear powers to assess the competence of a business to provide credit, taking into account any circumstances that appear relevant to it. Relevant circumstances include: evidence of any past misconduct; the skills, knowledge and relevant experience that the people participating in the business have in relation to the licensed activity; and the practices and procedures proposed in the running of the business. The OFT has published guidance on the fitness test 23 which indicates that it will apply a riskbased approach to licensing that involves more scrutiny for high risk applications. The guidance 20 Section 145(7A) CCA. 21 Section 145(7B) CCA. 22 Section 25A CCA. 23 Consumer credit licensing: General guidance for licensees and applicants on fitness and requirements (January 2008) OFT slaughter and may

10 therefore strongly advises applicants to apply for a licence that only covers those activities they propose to carry out. If a high risk activity is unnecessarily included in the licence application, the application is subject to a more detailed examination and the applicant will have to provide additional information which might not otherwise be required. The OFT may also need to visit the applicant on site, which would extend the time needed to consider the application. In assessing fitness it will focus on: > evidence that raises doubts about the personal integrity of individuals running or controlling a licensed business; and > business activities that because of either their nature or their past association with high levels of complaint, have a greater potential for consumer detriment. As stated above, the OFT will take into account evidence of the skills, knowledge and experience of the licence applicant and those participating in its business to carry out the activities to be covered by the licence to a reasonable standard. The OFT will refer to this as the applicant or licensee s credit competence. Its consideration of credit competence relates only to the credit activities to be undertaken under the credit licence, not competence to run the business generally. Businesses that apply for a licence permitting a high risk credit business activity will need to provide the OFT with either a Credit Competence Plan or additional factual information, known as a Credit Risk Profile. > Credit Competence Plan The OFT may ask for a Credit Competence Plan to engage in categories of high risk credit activity such as third party debt collection or fee-charging debt management, where the OFT has already set out minimum standards in fitness guidance. The Credit Competence Plan is a summary document that explains the steps taken to ensure the business is credit-competent. Applicants/licensees will need to be ready to substantiate its Credit Competence Plan. In most cases the OFT will ask Local Authority Trading Standards Services to undertake a competence inspection for new applicants to help substantiate the Credit Competence Plan. > Credit Risk Profile As stated above, if additional factual information about a consumer credit business s model and activities is required, the OFT will obtain this information through a Credit Risk Profile. This additional information will be required if the business is proposing to engage in high risk credit activities with potential for serious consumer detriment. The OFT or Local Authority Trading Standards Services may also pay on site visits to clarify information given through a Credit Risk Profile. According to the OFT, business activities for which a Credit Risk Profile will be required include secured sub-prime lending and lending in the home. 7 slaughter and may

11 One of the OFT s main regulatory interests in these areas is to ensure that lending takes place responsibly. Irresponsible lending is cited specifically by the OFT s application of the fitness test as a business practice that may be considered deceitful or oppressive or unfair or improper. Lending irresponsibly will therefore call into question a person s fitness to be licensed. While making it clear that a lender may take different approaches to responsible lending in line with variations between the needs of different market sectors, the OFT also states that lenders should always take reasonable care in making loans or advancing lines of credit and should take full account of the interests of consumers in doing so. Lenders should undertake proper and appropriate checks on the potential borrower s creditworthiness and ability to repay the loan and to meet the terms of the agreement. The checks should be proportionate and should take into account: the type of agreement; the amounts involved; the nature of the lender s relationship with the consumer; and the degree of risk to the consumer. On 1 August 2008 the OFT launched a separate consultation on the scope of a project looking at irresponsible lending in UK consumer credit markets 24. The ultimate aim may be to produce guidance for the credit market and identify practices and conduct inconsistent with the requirements of responsible lending. The initial phase of the project involves full consultation to define the range and nature of the project and the consultation period closed on 24 October The issues the OFT says the review could consider include the advertising and marketing of products, selling techniques, product design, use of credit scoring techniques, appropriateness of products to borrowers, sale of associated products and management of consumers accounts including handling of defaults and arrears. (C) Guidance in general The OFT monitors business practices in the consumer credit market and may decide to issue specific tailored guidance to ensure that the appropriate standard of fitness is being met and to reduce unfair practices that may result in detriment to consumers. The OFT has indicated that knowledge of the guidance may be considered relevant to the question of credit competence. The OFT has issued a number of examples of specific guidance, including guidance on credit advertising 25, debt collection 26, debt management 27, non-status lending 28 and fitness and other requirements in relation to licensing Irresponsible lending a scoping paper available here: 25 August 2008: 26 January 2000: 27 September 2008: 28 November 2007: 29 January 2008: 8 slaughter and may

12 (D) Licence Fees Applicants for a licence have to pay a charge, the amount of which is determined by the OFT. Indefinite licences are subject to a charge every five years. 7. OFT powers 7.1 General As noted above, the OFT continues to be the licensing body under the CCA and continues to administer the licensing system. The White Paper expressed the view that the OFT would be more effective if it could divert resources into monitoring compliance rather than simply dealing with applications for licences. The priorities of the old regime were perceived as not adequately addressing more vulnerable consumers. The express policy was that the amended CCA regime should focus more on monitoring the licensing regime, the aim being to target the small percentage of lenders who posed a risk to consumers and to allow most responsible lenders to continue their business with little or no interruption from the OFT. 7.2 Overview of powers In summary, the OFT now has the power to: > charge different licensing fees for different licences, such fees going towards the cost of carrying out CCA functions 30 ; > introduce indefinite standard licences, thereby removing the burden of the five yearly renewal processes 31 (group licences will remain renewable as previously); > issue time limited standard licences; > vary standard licences 32 ; > impose requirements on licensees 33 and supervisory bodies 34. The OFT must publish 30 Section 28A (Charges to be paid by licensees), section 28B (Extension of period to pay charge) and section 28C (Failure to pay charge under s28a) CCA. 31 Section 34 CCA. 32 Section 31 CCA. 33 Section 33A CCA. The OFT can impose requirements on licensees in relation to a business carried on (or proposed to be carried on) under the licence where it is dissatisfied with the business or conduct of the licensee or an associate or former associate of his. 34 Section 33B CCA. Requirements will be imposed on the responsible person in relation to a group licence where the OFT is dissatisfied with the manner in which that person is regulating or otherwise supervising licensees, or proposes to do so. This power will not be affected by whether the matters giving rise to the OFT s concern arose before or after the relevant provisions came into force. For requirements generally see also section 33C (Supplementary Provisions relating to requirements) and section 33D (Procedures in relation to requirements) CCA. 9 slaughter and may

13 guidance on how it intends to exercise its powers or how it proposes to exercise its powers under sections 33A to 33C CCA 35 and has, accordingly, issued a Statement of Policy on Civil Penalties 36 ; > require applicants to provide information 37 and obtain information generally; > impose civil penalties for breaches up to 50, (the Secretary of State can amend this cap through secondary legislation subject to the affirmative resolution procedure); > require access to premises and enter premises under warrant 39. The power of seizure 40 and to copy (or take extracts) is also conferred to the OFT 41 ; > delegate the execution of its power of investigation to local Trading Standards Officers 42 ; and > power to request information to be in a specified form; authenticated or verified; accompanied by an explanation; to be told of its location; and specify a time period for its release Intermediate sanctions The 2006 Act has given the OFT new powers to impose intermediate sanctions to deal with behaviour which causes detriment but is not sufficient to render a business unfit to hold a licence. The OFT s previous powers to revoke a licence were difficult to invoke in relation to such behaviour. The OFT now has greater investigatory powers, as referred to below. 35 Section 33E CCA. 36 January 2008: 37 Section 44 (Provision on Information by applicants), section 36A (Further Duties to Notify Changes) and section 36B (Power of OFT to require information generally) CCA. 38 See section 39A (Power of OFT to impose civil penalties), section 39B (Further Provision Relating to Penalties) and section 39C (Statement of Policy in relation to Civil Policies) CCA. Where a licensee fails to comply with a requirement prescribed by the OFT a civil penalty of 50,000 may be imposed in respect of each breach. 39 Section 36C (Power of Access to premises) and section 36D (Entry to Premises under warrant) CCA. The OFT can require access to licensees premises at reasonable times on reasonable notice where there are reasonable grounds to believe there is on the premises, information in relation to which it could impose a requirement of access. It may obtain a warrant to enter and search the premises and to seize that information. 40 Section 36D CCA and under paragraph 18A of Part 1 of Schedule 1 Criminal Justice and Police Act Section 174A(2) CCA. 42 Section 36F CCA. 43 Section 174A CCA. 10 slaughter and may

14 7.4 Power to require information The OFT now has the power, upon notice, to require a licensee to provide information and documents as specified in the notice for purposes connected with the OFT s functions under the CCA Power to access premises Upon notice, the OFT now has the power to require a licensee to grant access to an officer of an enforcement authority, so that he may observe the carrying on of the licensed business and inspect documents relating to such business as are specified in the notice and situated on the premises. The notice shall set out the reasons why the access is required. The premises which may be accessed include premises which are not premises of the licensee if activities of the business are carried out there. However, this does not include premises used only as a dwelling. 7.6 Power to impose requirements on licensees The OFT has a new power (additional to existing powers of revocation, suspension or variation of a licence) to impose requirements on licensees. The OFT may impose a requirement in relation to a business carried on (or proposed to be carried on) under the licence where it is dissatisfied with any matter in connection with the following, whether occurring before or after the person became a licensee: > a business being carried on, or which has been carried on, by a licensee or associate or former associate of the licensee; > a proposal made by a licensee, or associate or former associate of the licensee, to carry on a business; or > any other conduct of such a person. The OFT may require the licensee to do or not to do anything specified in a notice, with the aim of addressing the matter with which the OFT is dissatisfied or ensuring that the same or similar matters do not arise. The requirement must relate to a business that the licensee is carrying on, or is proposing to carry on, under the licence. The OFT may take action to impose a requirement while dealing with an application for a licence to be issued. The OFT may impose civil penalties for breaches of imposed requirements of up to 50, (the Secretary of State can amend this cap through secondary legislation subject to the affirmative resolution procedure). 44 Section 36B CCA. 45 See section 39A (Power of OFT to impose civil penalties), section 39B (Further Provision Relating to Penalties) and section 39C (Statement of Policy in relation to Civil Policies) CCA. Where a licensee fails to comply with a requirement prescribed by the OFT a civil penalty of 50,000 may be imposed in respect of each breach. 11 slaughter and may

15 7.7 Enforcement of agreements by unlicensed trader If a person carries on a consumer credit or hire business without a licence to do so, the resulting regulated agreements will be unenforceable unless an order from the OFT has been obtained which deems the agreement capable of being treated as if the unlicensed person had been licensed as required Abolition of automatic unenforceability of regulated agreements Sub-sections 127(3) to 127(5) of the 1974 Act were repealed 47 on 6 April This means that agreements which were previously automatically unenforceable due to infringement 48 may now be enforceable by a court order. There are now no circumstances in which an enforcement order cannot be made by a court under section 127(1) CCA. An enforcement order may be granted if the court is satisfied that it is just to do so, having regard to the prejudice caused to the debtor and the degree of the creditor s culpability. 9. Fixed-sum 49 annual statement The CCA now requires creditors under a regulated fixed-sum credit agreement (with a term of more than 12 months) to provide annual statements. This requirement is contained in a new section 77A of the CCA. Failure to comply with this section will mean that the debtor is not liable to pay interest or other default payments in respect of any period of non-compliance when a statement is due but has not been sent, nor will the creditor be able to enforce the agreement during the period. This provision will apply to existing agreements as well as agreements made after commencement of this requirement. Fixed-sum credit includes loans for a fixed term of a fixed amount and also covers hire purchase, conditional sale and credit sale agreements. The form and content of the fixed-sum annual statements are prescribed in the Consumer Credit (Information Requirements and Duration of Licences and Charges) Regulations Default: Information requirements The new CCA regime provides for more rigorous information requirements (described in this section) in relation to default under regulated agreements. The requirements apply in relation to regulated agreements whenever they are made, but only to defaults arising, and default sums becoming payable, after the relevant provisions of the new regime came into force. 46 Section 40(2) CCA. 47 Section 15 of the 2006 Act. 48 Infringement under the 1974 Act section 127 covered: (i) form of agreements not complying with prescribed parts of the Act under section 127(3) and (ii) failing to provide a cancellation notice in the terms required by the Act under section 127(4). 49 A fixed-sum facility is any facility under a credit agreement, other than running-account credit whereby the debtor is enabled to receive credit (whether in one amount or in instalments) and the amount borrowed is fixed at the outset. 50 SI 2007/1167 Regulations 3 to 11 and Schedule slaughter and may

16 10.1 OFT information sheets The OFT has published 51 two specific information sheets 52 that must be provided by the consumer credit business to the debtor when it issues: (A) (B) an arrears notice; or a default notice Arrears notices 53 Consumer credit and hire businesses are now required to issue an arrears notice 14 days after an account goes into arrears. An account is construed to be in arrears for this purpose when the debtor has missed the sum of his last two payments or, for running-account payments, when a debtor misses two consecutive payments and, in either case, if any default sum becomes payable and the creditor intends to charge interest on judgment debts. Such arrears notices give early warning to debtors/hirers who have started to go into arrears. Failure to provide notices 54 means that during the period of non-compliance the creditor may not: > charge interest on relevant sums due during the period of non-compliance; > charge default sums which would have been payable during the period of non-compliance or would have become payable after the end of the period in connection with the breach of the agreement during that period; and > where not yet enforced, to enforce the agreement. The form and content of the required notices are prescribed in the 2007 Regulations Default notices 56 If a default sum becomes payable under a regulated agreement, the creditor or owner is required to serve notice. A default sum is defined as any sum which is payable by a debtor or hirer as a result of a breach of a regulated agreement (other than interest) 57. The debtor or hirer is only 51 As required under section 86A CCA. 52 The OFT information sheets are available on its website: information/. 53 Section 86B (fixed-sum credit agreements) and section 86C (running-account credit agreements) CCA. 54 Section 86D CCA. 55 SI 2007/1167 Regulations and Schedule Section 86E CCA. 57 Section 187A CCA. A sum is not a default sum in relation to the debtor or hirer simply because, as a consequence of his breach of agreement, he is required to pay it earlier than he would otherwise have had to. 13 slaughter and may

17 obliged to pay simple interest in relation to the default sum 58 and this only applies to default sums becoming payable after the provisions come into force 59. Failure to give this notice will mean that the creditor/owner cannot enforce the agreement unless the notice has been sent. In addition, the debtor/hirer will not be liable to pay interest in connection with the default sum until 30 days have elapsed since the notice was given to the debtor/hirer. A default notice, also known as a regulation 27 notice, should be given within 35 days of the default sum becoming payable by the debtor or hirer and can be included in monthly statements or other notices required under the CCA. Requirements for the form and content of notices of default sums and the prescribed periods of service are specified in the 2007 Regulations Time orders 61 A debtor or hirer can seek a Time Order if they give notice to the creditor or owner after they receive an arrears notice. Section 129A of the CCA is designed to create a dialogue between the parties. A 14-day period is available for the debtor and the creditor to negotiate a new payment plan. Under the section, a debtor cannot make an application for a Time Order unless he has included a new payment plan in his notice to the creditor. It is then at the option of the creditor whether to accept the offer, negotiate with the debtor out of court, or accept the impending application to court for a Time Order. 12. Post-judgment interest 62 Consumer credit or hire businesses will be required to give notice that they are charging postjudgment interest at six-monthly intervals. This is to avoid consumers being unaware that they have to pay interest in addition to the judgment sum. If a consumer credit or hire business fails to provide such notice it will not be entitled to charge the relevant interest. If not having previously done so, the business decides that it wishes to claim such interest, it may do so, providing that it gives notice and provides the six monthly notices. However, it will not be entitled to claim interest with respect to the period before it gave notice. The form and content of post-judgment notices are prescribed in the 2007 Regulations Section 86F CCA. 59 Schedule 3 CCA. 60 SI 2007/1167 Regulations and Schedule Section 129A CCA. 62 Section 130A CCA. 63 SI 2007/1167 Regulations and Schedule slaughter and may

18 13. The 2007 Regulations As discussed in context above, the 2007 Regulations focus on the form and content of the various statements and notices that lenders or owners are required to provide to their customers about their credit agreements to keep them informed about the state of their account. Additionally, the 2007 Regulations contain: > amendments to the existing Consumer Credit (Enforcement, Default and Termination Notices) Regulations 64 ; > regulations specifying the maximum duration of a time-limited licence 65 ; and > regulations specifying the periods within which periodic licence charges in relation to indefinite licences must be paid and the time when such charges will be current Unfair relationships New regime to replace extortionate credit bargain regime On 6 April 2007, the 2006 Act replaced the extortionate credit bargain regime with the new regime of unfair relationships. A bargain was extortionate if, at the time an agreement was made, it required the debtor to make payments which were grossly exorbitant or otherwise grossly contravened ordinary principles of fair dealing. The court was required to consider evidence concerning specific factors relevant to prevailing interest rates, the debtor (age, experience or degree of financial pressure) and creditor (e.g. accepted risk having regard to value of security). The reasons given for reforming the extortionate credit regime have been identified as the following: > the test under the extortionate credit bargain was too heavily weighted in favour of the creditor and was limited to factors prevailing at the time the loan was taken out; > the focus of the courts in applying the test has traditionally been narrow, for instance by only considering interest rates under the credit agreement at the time the arrangement was entered into; 64 SI 1983/1561. The amendments appear at SI 2007/1167 Regulation SI 2007/1167 Regulation SI 2007/1167 Regulation Sections 140A-140D CCA. 15 slaughter and may

19 > the cost and complexity of litigation; > the test could only be invoked if the borrower (or a guarantor) took the matter to court himself; and > the emergence of unfair practices such as pressure-selling which are not covered by the regime Scope of regime: credit agreements The unfair relationship test does not apply to hire agreements but applies to all consumer credit agreements whether regulated or not 68, except those which constitute Financial Services Authority ( FSA ) regulated mortgage contracts Transition The regime also applies to credit agreements that were entered into before the regime came into effect, unless the debt was repaid or settled before 6 April After 6 April 2008 a court may: (A) (B) find a relationship to be unfair by reference to events or conduct predating the commencement of the regime; and order the repayment of payments made before the commencement of the regime Unfair relationship test Under the unfairness relationship 69 regime, a court may find a credit agreement to be unfair to the debtor due to any one or more of the following: (A) (B) (C) any of the terms of the agreement or of any related agreement; the way in which the creditor has exercised or enforced any of his rights under the agreement or any related agreement; or any other thing done (or not done) by, or on behalf of, the creditor (either before or after the making of the agreement or any related agreement). 68 For example, even if the high net worth debtors exemption applies. 69 Section 140A CCA. 16 slaughter and may

20 In deciding whether a credit agreement is unfair, the court shall have regard to all matters it thinks relevant (including matters relating to the creditor and matters relating to the debtor). Potential triggers for action under the unfair relationship provisions could relate to contract terms or business practices. In some cases, unfair contract terms may be sufficient in themselves to give rise to an unfair relationship. In other cases it may be the combination of terms taken together with business practices or other acts or omissions of the lender Court powers The court now has wide powers to make an order against the creditor arising on an application by the debtor or surety or in any other proceedings where relevant. If a credit agreement is found by a court to be unfair, the court may do one or more of the following 70 : (A) (B) (C) require the creditor, or any associate or former associate of his, to repay (in whole or in part) any sum paid by the debtor or by a surety by virtue of the agreement or any related agreement (whether paid to the creditor, the associate or the former associate or to any other person); require the creditor, or any associate or former associate of his, to do or not to do (or to cease doing) anything specified in the order in connection with the agreement or any related agreement; reduce or discharge any sum payable by the debtor or by a surety by virtue of the agreement or any related agreement; (D) direct the return to a surety of any property provided by him for the purposes of a security; (E) (F) otherwise set aside (in whole or in part) any duty imposed on the debtor or on a surety by virtue of the agreement or any related agreement; alter the terms of the agreement or of any related agreement; and (G) direct accounts to be taken between any persons. Paragraph 14.8 below discusses the OFT guidance Unfair Relationships: Enforcement action under Part 8 of the Enterprise Act The courts are not required to have regard to this OFT guidance, although they may choose to do so if they consider it to be relevant in a particular case. In the guidance the OFT indicates that factors in the guidance may be relevant to the court s consideration in individual cases involving allegations of unfair relationships. 70 Section 140B CCA. 17 slaughter and may

21 14.6 Persons who may allege unfairness A court order may be made in connection with a credit agreement only: (A) (B) (C) on an application made by the debtor or by a surety; at the instance of the debtor or a surety in any proceedings in any court to which the debtor and the creditor are parties, being proceedings to enforce the agreement or any related agreement; or at the instance of the debtor or a surety in any other proceedings in any court where the amount paid or payable under the agreement or any related agreement is relevant 71. Therefore, as with the previous extortionate credit bargain regime, it is for individual borrowers (or guarantors) to invoke the regime. However (as referred to in section 14.8 below), the OFT has the power to take enforcement action in respect of unfair conduct which causes harm to the collective interests of consumers Burden of proof 72 If the debtor or surety alleges that the relationship between the creditor and the debtor is unfair to the debtor, it is for the creditor to prove the contrary; the burden of proof is on the creditor OFT action Part 8 of the Enterprise Act 2002 ( EA ) allows the OFT to take enforcement action in respect of unfair conduct which causes harm to the collective interests of consumers. Section 140D CCA requires that advice and information published by the OFT under section 229 of the EA shall indicate how the OFT expects the unfair relationships provisions to interact with Part 8 CCA. The guidance 73 indicates the kinds of factors that are likely to influence the OFT s consideration under Part 8. In summary, the current OFT guidance states 74 : > it is for consumers to seek redress for themselves as individuals; in the case of unfair relationships this might be by means of court order or making a formal complaint; 71 Section 140B(2) CCA. 72 Section 140B(9) CCA. 73 Unfair Relationships: Enforcement action under Part 8 of the Enterprise Act 2002 updated May 2008, OFT854.com, available here: 74 Unfair Relationships: Enforcement action under Part 8 of the Enterprise Act 2002 June 2006, OFT854.com. 18 slaughter and may

22 > the OFT cannot take complaints on behalf of individual consumers but does have the power to take action where acts or omissions breach specified legislation and harm the collective interests of consumers each case would fall to be considered on its merits; > the guidance does not seek to define what is an unfair relationship but rather to indicate how Part 8 powers might be used in this area. It is for the courts to determine in an individual case whether the particular credit relationship is unfair to the borrower; different facts may apply in other cases; > it may be helpful to group the potential triggers for action by the OFT under (a) contract terms, and (b) business practices. However, an act or omission may give cause for concern even if it is on-off and so does not amount to a practice within the usual meaning; > when contemplating action under Part 8 EA, factors the OFT will consider include: contract terms; rates and charges; business practices; practices in breach of current law; practices not necessarily in breach of law; other relevant guidance, e.g. the Consumer Protection from Unfair Trading Regulations, FSA Principles and treating customers fairly initiative, and findings by the Financial Ombudsman Service; > the unfair relationship test 75 applies to all agreements made after 6 April 2007 and to preexisting agreements from 6 April 2008; > it has been recognised that larger businesses do not need the same level of protection as consumers; however, smaller businesses, for instance sole traders, do need protection as their operations are more akin to that of a consumer; and > the guidance will be kept under review and may be supplemented at any time; in any event, it will be reviewed in April The OFT has informally indicated it will only take matters to court if there is a material problem ; it will not be using its powers as a backdoor route to force the courts to define an unfair relationship Fairness as a legal concept The court may take into account all matters it thinks relevant relating to the creditor and the debtor in making its assessment. The court is provided with a range of remedies to address the unfairness. 75 See section 140A-C CCA and also Schedule 3 CCA As indicated by the DTI in the British Bankers Association Consumer Credit Act 2006 Briefing (17 August 2006). 19 slaughter and may

23 There is no definition of the word unfair as the test is intended to be flexible and judicially defined. During the parliamentary debates, the Minister of State responsible for the 2006 Act (Gerry Sutcliffe) stated: It is important that the test does not constrain or impede the courts ability to do justice in every case. That is why I will not try to define an unfair relationship. It is for the courts to determine such things according to the relevant facts of each case. Unfairness is not a new concept for the industry, and fair lenders have nothing to fear from its introduction 77. This has led commentators to argue the test will lead to legal uncertainty and undermine the effectiveness of the unfair credit relationship test. The OFT guidance referred to in paragraph 14.8 and entitled, Unfair Relationships: Enforcement action under Part 8 of the Enterprise Act 2002 notes that an unfair relationship is not defined in the CCA and that it is for the courts to determine in an individual case. Therefore the OFT guidance states that it is impossible, before any case-law is established, for the OFT to provide definitive guidance on the meaning of the unfair relationships test or how it is likely to be applied by the court. The main purpose of the guidance is to explain how its powers in Part 8 of the EA might be used in the context of unfair relationships and what factors are likely to influence the OFT s consideration under Part 8. The OFT also indicates that it will consider expanding the current guidance to take into account relevant court judgments. However, the OFT does set out its views on factors to be considered in relation to the test and while they may not bind the courts, the OFT believes they may underpin the courts interpretation. The OFT expresses the view that a finding in one case may not necessarily be repeated in another, even if the same terms or practices are involved, since the circumstances may be different. For example, in one case a lender may be found to have exploited the borrower s vulnerability or lack of understanding, or failed to provide relevant information, and so caused detriment to the particular consumer. Different facts may apply in a second case. This is quite important to lenders in the context of considering the enforceability of their loan portfolios if they were to be successfully challenged in a particular case. As stated in paragraph 14.4(C) above, a relationship can be unfair because of any other thing done (or not done) by or on behalf of the lender either before or after the making of the agreement or any related agreement. In the OFT s view, this catch-all is intended to be as wide as possible to ensure maximum flexibility for the courts in considering unfairness. The OFT notes, for example, that this could include pre-contract business practices (such as advertising) and post-contract actions not based on a right (such as demanding sums of money the consumer 77 HC Hansard Cols slaughter and may

24 has not agreed to pay). Omissions might include failure to provide key information in a clear and timely manner if at all; or to disclose material facts. Unfair is a familiar concept in consumer protection. The OFT confirms that a court, in deciding whether or not a relationship is unfair, might have regard to whether practices are of a kind that has been identified as unfair in the past or which are recognisably unfair according to established tests of fairness. These tests are set out in closely related legislation, associated jurisprudence and regulatory guidance. For example, the guidance states that it has no reason to suppose that the courts will give a meaning to the concept of unfairness in relationships which is fundamentally different from that set out in legislation relating to contract terms. Therefore, the OFT states that in considering unfairness (for the purposes of exercising its powers under Part 8 of the EA) it would have regard to whether a term would be unfair under the Unfair Terms in Consumer Contract Regulations 1999 and the Unfair Contract Terms Act The Unfair Commercial Practices Directive 78 and the Consumer Protection from Unfair Trading Regulations 79 ( CPRs ) Another factor which may be used to assess fairness is the CPRs, which came into force on 26 May 2008 and implement the Unfair Commercial Practices Directive in the UK. The CPRs are briefly discussed in the OFT guidance. Schedule 1 to the CPRs may prove useful as it provides a non-exhaustive list of commercial circumstances that may be considered unfair. The CPRs cover two main categories of unfair commercial practices: misleading practices (actions as well as omissions) and aggressive commercial practices. A practice will be unfair if (a) it contravenes the requirements of professional diligence; and (b) it materially distorts or is likely to materially distort the economic behaviour of the average consumer with regard to the product 80. Professional diligence is defined as the standard of special skill and care which a trader may reasonably be expected to exercise towards consumers which is commensurate with either (a) honest market practice in the trader s field of activity, or (b) the general principle of good faith in the trader s field of activity Consumer Credit Appeals Tribunal The 2006 Act established an independent Consumer Credit Appeals Tribunal 82 (the Tribunal ) to which persons may appeal the following decisions of the OFT: 78 Directive 2005/29/EC. 79 SI 2008/ SI 2008/1277 regulation SI 2008/1277 regulation Under section 40A and Schedule A1 CCA. 21 slaughter and may

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