Thursday, 22 September 2011

But Seriously - Guest Post

In response to this, one of my readers pa_broon, kindly offered to write the following guest post.  It is cross-posted on his own blog.

No, its not a Phil Collins album, I thought I might post something serious for a change, normally I'd say it doesn't suit me and that it involves to much in the way of work. You have to do stuff like 'research' and back up any claims you make with something called 'evidence'. It's much easier for me to transfer the contents of my head directly on to the screen, no need for any citations or providing sources because it all comes from the fevered imagination of a person who's blog no one reads; most importantly, no one is harmed.

But listen, while I am no brilliant academic, no wait, don't argue, I've accepted it. Nor am I a total shmuck, I've been around and I read a lot, it was suggested to me by another blogger that I might say a few words about Debt Collection Agencies and their methods along with things that could help you if you're being hounded by a DCA.

A very quick few words about my experience firstly; I joined a gym (I'll try not to be specific, it was a tennis orientated set-up, going by the name of David Lloyd.) I signed the standard twelve month minimum contract but four months in discovered three serious flaws; the service was terrible, the staff were entirely unhelpful and I simply wasn't middle class enough to be there. I told them I wasn't happy with the service (although I jest, the service was rotten and not worth £80 a month in anycase,)  they adopted a 'tough-you-signed-a-minimum-twelve-month-contract-that-you-can't-get-out-of-so-meh' stance, they were not interested in the slightest even although the reason I was unhappy was their fault.

I cancelled my direct debit and did not return to the club.

Here comes the serious bit.

They chased me at first themselves then after three months of correspondence (me telling them they'd broken their own contract by not providing a service they said they would) they passed the debt on to their pet DCA, we'll call them ARC because that was and still is their name. I explained to them the issue was still in dispute (meaning I was still jawing with David) but to no avail. Daily phone calls, letters on a weekly basis with threats of all sort of things ramping up as time went by. Eventually letters start coming from a solicitor called Trevor Munn, threatening action in Northampton (or was it Southampton) County Court. Needless to say, Trevor Munn is another arm of ARC and the next step in their intimidation program.

I'll stop the narrative here, you can google some of those companies and find all sorts of stories on consumer action websites and forums but here is the thing, never have I ever seen a post saying; 'That swine Trever Munn took me to county court!' Why? Because he (or they) never will.

The following information is true for any civil debt not including Council Tax or monies owed relating to property; it will stop DCA's and any action they're threatening to take (albeit it up to a certain value) in its tracks.

It is called more generally 'Prorogation of Jurisdiction' and is covered in paragraph 3(4) of schedule 8 of the Civil Jurisdiction & Judgments Act 1982.

Sounds technical but it isn't really, please don't be intimidated by it. What it means is this:

  • You can't be taken to court in a jurisdiction (ie. Northampton) except for the one in which you are personally domiciled. (Any threat by a DCA to do so is intimidation.) If you live in Edinburgh, they need to take action in Edinburgh.
  • Even if the contract you signed says you agree to be dealt with by English law (for example) this is null and void, no way does a clause in a consumer contract circumvent UK civil law, much as big business would like it to be the case. 
There are some caveats, the main one being; it doesn't work with immovable property, if you live in a house in Northampton (for example) and get some crazy paving, the crazy paving will still be in Northampton even if you're not; they can still chase you in Northampton.

Specifically what it doesn't cover and the topic that caused me to be serious for a moment is Council Tax. It wouldn't be covered since it's attached to property anyway but CT is a different kind of debt and a blog post all by itself; you don't have a leg to stand on. The statute of limitation for civil debt in Scotland is five years (in England it is six) meaning, if they don't chase you in that time you're probably ok. For Council Tax debt, the statute of limitation as far as I can gather is twenty years from the date of the summary warrant being generated, these warrants are issued automatically at the request of Council and they won't get lost on the way to the sheriff court either. (If any of that is incorrect please let me know, it was hard to find even that info.)

In summary, if you run up credit on a catalogue card or HP agreement, they have to sue you where you live. Obviously if it's thousands they'll go after you but even then if they're doing it in Plymouth you can write to the court asking for it to be 'dismissed with expenses in favour of the defendant'. The nub is; if its a couple of hundred quid, they won't because its not economically viable to do so. My supposed debt was around £550 and they left me alone, even Citizen's Advice (who didn't know about Prorogation of Jurisdiction) said they probably wouldn't chase me for that amount.

A lot of people go to great lengths to break out of contracts were the plaintiff (the company doing the chasing) simply has no intention of following through with legal action; it's all bluff. I think we can all agree Debt Collection Agencies are odious set ups many using as they do: very questionable techniques when it comes to dealing with what they like to call its clients.

Final point to make. If you have this kind of low level debt (maybe under £1000) and you are being chased by DCA's and their pet (in many cases, I think fake) solicitors; always have a good look at the wording of the letters they send; for example:

  • '...documentation is being prepared for submission to county court...'

Leaving to one side it'll be the wrong court, the court isn't preparing documents, Trevor is and he's a cad and a bounder and has no power whatsoever to do anything; only the correct court has that power and only after a fair hearing. Since Trev is lazy and a tight-arse to boot, he's not going to go to another court for a tawdry few hundred quid.

My point is, if you are unfortunate enough to find yourself in this situation, this law empowers you, it may not void the contract, although people with bigger minds might be able to say if adding a clause to a consumer contract saying 'any legal disputes' would be handled by a court that has no jurisdiction over the consumer does in fact void it?

Beyond that, it allows you to have some fun with debt collection staff, I used to think they were just doing their job, it wasn't their fault etc but now? Not so much so, the people at ARC were rude and intimidating and that is wrong. However when they phone you (and they will again and again) the negative attention can be remedied by saying things like, 'So glad you phoned back, isn't it annoying when our phone sex is disturbed, I was fast reaching a cli-'. Usually they hang up... 


Digressing slightly and because I don't want anyone to think I'm encouraging bad debt, my fight was just, they wanted me to pay for a substandard service I wasn't using, if I'd been using the gym  during the remainder of the contract (and my waist line will prove I wasn't) then I would have paid because that is fair. However, if you're a screaming store/credit card nutter with a shoe addiction; shame on you! You deserve all you get.

Although can I just say, those Ferragamos you're wearing are to die for!


Demetrius said...

It was around a decade ago that we were members of the local David Lloyd. It was OK then but there was a takeover and things began to change. Have they now become just another financial operation?

RMcGeddon said...

I got an offer of a months free membership at our local health club. When I went along with my swimming trunks for a wee swim ( scary thought I know ) they said my 5th month would be free but I'd have to cough up for the first 4 months membership before I had a swim. They also gave me a humongous form to fill in that weighed a ton .
I had a couple of pints in their bar ( draught guinness in a health club ? - tut tut ) and legged it ( slowly).

pa_broon74 said...

I think all the gyms are money presses. The folk on the shop floor are usually quite good but they all have the same fairly strict terms and conditions, 12 months minimum or they'll chase you...

Which is fine becuase you can go for two or three months, get fit and they'll not be able to catch you.

I'm a member at Bannatynes now, on the very rare occassion I go, on leaving the swimming pool I like to say 'am oot!'


subrosa said...

I have up my Bannatyne's membership pa_broon because once they took over from the original owner, the standard dropped. It was the swimming I enjoyed and it has a super pool but I couldn't get membership just for the pool only and £48 a month was steep (plus travel costs).

Still miss it though. The swimming I mean.

Apogee said...

An informative and humourus post.
The message seems to be to know the law and your rights, and dont be intimidated or let them bluff you.

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