Академический Документы
Профессиональный Документы
Культура Документы
Introduction
Judge Moloney QC Cambridge County Court 10th September 2010) has come to
have now been argued across the country, with varying results, favouring either
between credit hire company and hirer, relieves a third party tort-feasor of
liability to pay credit hire charges is that of the rule against double recovery
of the Consumer Credit Act 1974, the hire contract in that case was
Credit Act 2006 and now non-compliance with the Consumer Credit Act 1974,
and the Regulations made under it, renders a consumer credit agreement
5. But the law has moved on in the decade since Dimond: there is a wider
judgment cannot be obtained against the debtor, it does not necessarily follow in
2011, that the rule against double recovery would be offended if the hirer
is a relief of liability from obligations which parties owed under the contract.
The hirer under an unenforceable contract remains liable on the contract and
[2009] EWHC 2386, for failure to pay his obligations can be reported to credit
8. The authority which established this position is the case of Wilson .v.
United Counties Bank Limited [1920] AC 102 where Lord Birkenhead Lord
The objection was taken by the Defendants that this finding of the Jury cannot be supported without proof of
special damage. In deciding this point, I do not lay down a rule of general law, but I deal with the exceptional
language of an exceptional contract. The Defendants undertook for consideration to sustain the credit of the
trading customer. On principle the case seems to me to belong to that very special class of cases in which a
banker, though his customer’s account is in funds, nevertheless dishonours his cheque. The ratio decidendi in
such cases is that the refusal to meet the cheque, under such circumstances, is so obviously injurious to the
credit of a trader that the latter can recover, without allegation of special damage, reasonable compensation
9. Accordingly recovery in such a case would not offend the rule against
double recoverability, as the hirer has a real liability he needs to discharge with
that the human rights of both the hirer and the credit hire company are engaged
Human Rights was incorporated into United Kingdom law by the Human Rights
Act 1998.
Article 1
Protection of property
Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived
of his possessions except in the public interest and subject to the conditions provided for by law and by the
general principles of international law.
The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it
deems necessary to control the use of property in accordance with the general interest or to secure the payment
of taxes or other contributions or penalties.
3 Interpretation of legislation.
(1)So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect
in a way which is compatible with the Convention rights..
(2)This section—.
(a)applies to primary legislation and subordinate legislation whenever enacted;.
(b)does not affect the validity, continuing operation or enforcement of any incompatible primary legislation;
and.
(c)does not affect the validity, continuing operation or enforcement of any incompatible subordinate legislation
if (disregarding any possibility of revocation) primary legislation prevents removal of the incompatibility..
13. The effect of section 3 has been considered by the courts in many cases
may appear strained. The techniques to be used will not only involve the
provisions.
further than this. It is also apt to require a court to read in words which
“possible”, a court can modify the meaning, and hence the effect of
16. There is little scope for error here. A failure to comply with the
can be contended with a degree of force, that the construction contended for by
17. On a literal reading of the Regulations, they apply to all contracts made in
the Claimant’s home including the most mundane or low value of contracts. The
mischief that the Regulations were plainly meant to meet related to “doorstep
selling”, or other unsolicited sales calls, is removed from the situation where a
hirer has pro-actively sourced a hire car to meet his transport needs.
18. How would the Regulations be construed with a human rights compliance
gloss ? The 2008 Regulations provide that the agreement may not be enforced
against the Claimant: conversely it might be argued that the hirer could ratify
and enforce the agreement at his election and the sanction is not irredeemable
uneforceability.
visits (by reading in a comma, in the crucial clause !), which would largely
Conclusions
20. One thing is certain, the arguments are likely to continue, for as long as
there is a backlog of cases, which require the refinement and generation of ever
andrewhogan@ropewalk.co.uk