Hostname: page-component-cd9895bd7-p9bg8 Total loading time: 0 Render date: 2024-12-25T05:16:46.342Z Has data issue: false hasContentIssue false
  • English
  • Français

The Consumer Credit Act 1974

Published online by Cambridge University Press:  16 January 2009

R. M. Goode
Get access

Extract

The Consumer Credit Act, which after many vicissitudes was passed on 31 July 1974, represents the product of nearly six years' concentrated labour. The genesis of the Act was the appointment in 1968 of the Crowther Committee on Consumer Credit, whose twovolume Report covering the entire field of consumer credit, and much else besides, was published in March 1971. The Committee devoted close attention to the state of the law governing credit transactions, and at an early stage in its deliberations concluded that consumer credit could not be considered in isolation from the general legal framework within which credit was provided, whether for business or for consumers. Among the seven major defects in credit law identified by the Committee, three were fundamental.

Type
Articles
Information
The Cambridge Law Journal , Volume 34 , Issue 1 , April 1975 , pp. 79 - 130
Copyright
Copyright © Cambridge Law Journal and Contributors 1975

Access options

Get access to the full version of this content by using one of the access options below. (Log in options will check for institutional or personal access. Content may require purchase if you do not have access.)

References

1 Cmnd. 4596. Various surveys commissioned by the Crowther Committee from NOP Market Research Ltd. are available from the Librarian, Central Library, Department of Prices and Consumer Protection, at a price of £15.

2 Report of the Committee on Consumer Credit, para. 4.2.4.

3 Ibid., para. 4.2.8.

4 Ibid., Part V and Appendix III.

5 Reform of the Law on Consumer Credit (Cmnd. 5427).

6 At the time of writing, various consultation papers have been issued concerning the proposed content of regulations under Parts II–IV and X of the Act. Further consultation papers, devoted to the formidable topic of contract documentation, are expected in mid-1975.

7 Only two sections of the Act affecting the conduct of business are currently in force, namely s. 154 (prohibiting the canvassing of the services of a credit-broker, debt-adjuster or debt-counsellor off trade premises) and s. 155 (restricting to £1 the fee recoverable by a credit-broker if an agreement does not result from his introduction within six months). Even these provisions operate only in truncated form as regards credit-brokers, since an agreement made before the appointed day is not a regulated agreement (3rd Sched., para. 1), so that those parts of the definition of “credit-broker” which are geared to a consumer credit or consumer hire business, and therefore to regulated agreements (s. 189 (1)), are not yet in force. Hence at present the impact of the above provisions on credit-brokers is confined to mortgage brokers introducing loans to finance the acquisition or provision of dwellings (s. 145 (2) (a) (ii)). Parts I and XI of the Act became technically operative on the passing of the Act on 31 July 1974, but there is little on which these Parts can bite until other Parts are brought into operation. The present intention is to make regulations under Parts II and IV in February or March 1975; to publish regulations under Part V a month or two thereafter but defer the operation of these for 12 months to allow time for compliance; to make regulations governing rebates for early settlement, and regulations concerning credit reference agencies, in about March 1975; and to bring in licensing over an 18-month period commencing early in 1975, with the rest of the Act being brought into force early in 1976. However, many provisions of the Act, once brought into force, will have retrospective effect. As to these, see Goode, R. M., Introduction to the Consumer Credit Act 1974, Ch. 26.Google Scholar

8 Since the Consumer Credit Act is confined to credit transactions in which the debtor is an “individual” as defined by s. 189 (1).

9 Consumer Credit Act, s. 185 (5).

10 Under s. 123 a certificate given by the Board of Trade (now the Department of Trade) that they are satisfied that a person can properly be treated for the purposes of the Moneylenders Acts 1900–27 as being a person bona fide carrying on the business of banking is, for those purposes, to be conclusive evidence that he is so carrying on that business. Hence whilst such a certificate is not obligatory in order to establish banking status so as to qualify for exemption from the Moneylenders Acts, its issue puts such status beyond question, whereas in the absence of a certificate the onus will be on the lender to show that he is in fact carrying on such a business. The criteria applied by the Department for dealing with applications for certifications were made much more stringent in August 1973 in the light of abuses by certain s. 123 banks and general unease over the stability of the secondary banking system.

11 See Sched. 4, para. 1.

12 s. 189 (1).

13 The term “creditor,” which is defined in s. 189 (1), covers the person providing credit under any form of consumer credit agreement, including hire-purchase and conditional sale. “Owner,” hitherto used in the Hire-Purchase Act to denote the owner of goods let on hire-purchase, is now confined to the owner of goods let under a consumer hire agreement. Similarly, “hirer” denotes the person hiring goods under such an agreement, whilst the hirer under a hire-purchase agreement is embraced by the word “debtor.”

14 See VII (7), infra.

15 That is, an agreement between an individual (“the debtor”) and any other person (“the creditor”) by which the creditor provides the debtor with credit of any amount (s. 8 (1) ). The definition is inserted in the Act purely as a drafting device in order to have a label for use in certain other sections, e.g., s. 10 (1), to describe a type of agreement without reference to a financial ceiling.

16 s. 8 (2).

17 s. 8 (3). The same point is covered by the definition of “regulated agreement” in s. 189(1).

18 s. 189(1).

19 s. 9 (1). Where credit is provided otherwise than in sterling it is to be treated for the purposes of the Act as provided in sterling of an equivalent amount (s. 9 (2) ). A hire-purchase agreement involves the extension of credit (see n. 22, infra). An agreement for sale under which the purchase price is payable by instalments would, it is thought, constitute an agreement by which credit is provided if by the terms of the agreement the buyer, before completion of payment, obtains (i) possession and ownership (as in the case of the normal credit sale agreement), or (ii) possession without ownership (the normal conditional sale agreement), or (iii) ownership without possession (a form of layby sale well known in Australia and New Zealand), or (iv) other rights in relation to the goods not amounting to either possession or ownership, e.g., the right to treat the goods as appropriated to the sale contract so that the seller, while retaining both ownership and possession until payment, is contractually precluded from disposing of the goods elsewhere so long as the buyer performs his obligations. For a general discussion of the meaning of “credit” in the context of the Consumer Credit Act, see Goode, op. cit., paras. [3.8]–[3.11]. See also n. 43, infra.

20 Olds Discount Ltd. v. John Playfair Ltd. [1938] 3 All E.R. 275.Google Scholar

21 See definition of “security” in s. 189 (1) and Part VIII of the Act.

22 s. 9 (3) makes this explicit in relation to hire-purchase agreements, presumably in order to counter an argument that a hirer under a hire-purchase agreement does not receive credit since he is paying for the use of the goods as he goes along.

23 “Total charge for credit” means a sum calculated in accordance with regulations under s. 20 (1). The intention is to provide a definition which will embrace almost all the elements of the borrowing cost (whether in the nature of interest or otherwise), including charges payable by the debtor to third parties under ancillary contracts, e.g., of maintenance or insurance, where entry into such contracts is a condition of the granting of the credit and the debtor is not free to choose the supplier of the service in question.

24 s. 9 (4).

25 See VII (11), infra.

26 In relation to running-account credit, “credit limit” means, as respects any period, the maximum debit balance which, under the credit agreement, is allowed to stand on the account during that period, disregarding any term of the agreement allowing that maximum to be exceeded merely temporarily (s. 10 (2) ). For the significance of these concluding words, see Goode, op. cit., para. [3.22].

27 s. 171 (1).

28 A lease or tenancy of land is not within the Act. In this respect, the ambit of control of hiring is more limited than of control of credit.

29 As defined by s. 189 (1), the word “individual” covers a single person, a partnership, an unincorporated association and any other form of legal entity which is not a body corporate.

30 s. 15 (1).

31 s. 15 (2).

32 In determining whether the hirer is committed to payments in excess of £5,000, the statutory power of termination conferred by s. 101 must be disregarded, since that section cannot come into operation until it has first been established that the agreement is a consumer hire agreement within the definition in s. 15. This point is brought out by the draftsman in example 20 in Sched. 2.

33 S. 189 (1).

34 See definition of “regulated agreement” in s. 189 (1).

35 See Part IV of the Act.

36 As defined by s. 19 (1).

37 ss. 137–140.

38 s. 16 (2) (c), which is totally unintelligible, is designed to cover the case where a building society, pursuant to an arrangement with an insurance company, provides a larger purchase-money advance than it would ordinarily do (e.g., 90 per cent of the price instead of 80 per cent.) against a bond from the insurance company on which payment of the premium charged to the purchaser is financed by the building society as part of the advance.

39 E.g., the Commission for the New Towns, the Agricultural Mortgage Corporation the White Fish Authority. All the other classes listed in s. 16 (1) are defined in s. 189 (1), with the exception of organisations of employers or of workers. Statutory definitions of these terms are to be found in the now repealed Industrial Relations Act 1971, ss. 61, 62, which would no doubt be used by the court as a guide.

40 Though s. 16 (1) does not so require, it is understood that specific application by a creditor to be exempted will be required by regulations to be made unders. 16 (1).

41 s. 16 (4).

42 See VII (5), infra.

43 This exemption will render academic many difficult questions that would otherwise arise as to the meaning of “credit,” e.g., whether a running-account between two traders in which the credit balance is sometimes in favour of one, sometimes of the other, is a credit agreement, and if so, who is the creditor and who the debtor.

44 See VII (5), infra.

45 Kingston upon Hull operates its own telephone system.

46 s. 101. See XII (7), infra.

47 E.g., ss. 90, 91, 99, 100, 133.

48 See s. 11 (1).

49 s. 11 (2), (3).

50 s. 45 prohibits certain advertisements of purchase-money credit where the supplier does not supply for cash. S. 71 deals with continuance of a loan agreement, as regards repayment of an advance already made, desipte cancellation by the debtor. Both these provisions are examined later in this article.

51 For the statutory definition, see s. 10 (1) (a).

52 s. 10 (1) (b).

53 See IV (2), supra.

54 See Crowther Report, para. 6.5.20.

55 s. 49 (1). The expression “off trade premises” does not include a place where a business is carried on (whether on a permanent or temporary basis) by the creditor or owner, a supplier, the canvasser or his employer or principal, or the consumer (s. 48). A finance house is thus at liberty to canvass loan applications from unincorporated dealers at a motor or agricultural show where the finance house has a stand or at the dealers' own premises.

56 ss. 21 (1), 23 (1), (3).

57 s. 69 (1).

58 s. 75. See X, infra.

59 Thus small debtor-creditor-supplier agreements for restricted-use credit are by s. 74 (2) exempt from the whole of Part V (other than ss. 55 and 56). This exemption would cover, for example, small credit sale, check trading and credit card transactions.

60 s. 189 (1).

61 s. 74 (1).

62 s. 75 (3).

63 ss. 77 (5), 78 (7), 107 (5), 108 (5).

64 s. 63 (4).

65 ss. 83, 84, which restrict the debtor's liability to £30 and exclude any liability at all for use of the credit-token after the creditor has been given notice that it is lost or stolen or is for any other reason liable to misuse.

66 s. 51 (1).

67 See XII (6), infra.

68 See XII (2), infra.

69 See XIV (3), infra.

70 As under s. 54 of the Hire-Purchase Act 1965, a buyer under a conditional sale agreement within the new Act will be deemed, for the purpose of s. 9 of the Factors Act and s. 25 (2) of the Sale of Goods Act, not to be a person who has bought or agreed to buy goods, and thus cannot, by a wrongful disposition, pass a good title to a third party under those provisions (Sched. 4, paras. 2, 4). They will, however, continue to apply to dispositions by a conditional buyer holding under a conditional sale agreement outside the Act. For the definition of “hire-purchase agreement” and “conditional sale agreement” see s. 189 (1), from which it will be observed that these expressions bear a somewhat wider meaning than under s. 58 (1) of the Hire-Purchase Act 1965. It may be noted that credit-sale agreements are not a distinct category for the purpose of the Consumer Credit Act. The term “credit-sale agreement” is, it is true, denned in s. 189 (1) (and this definition is referred to, quite unnecessarily, in example 5 in Sched. 2), but the expression does not appear in the body of the Act and appears to have been defined solely for the purpose of providing a new definition of “credit-sale agreement” in s. 138 (5) of the Fair Trading Act 1973 (see Consumer Credit Act, Sched. 4, para. 37).

71 s. 19 (3). But this subsection may be excluded by regulations in relation to linked transactions of the prescribed description. Exercise of this exempting power may be necessary, for example, in order not to invalidate compulsory third party insurance under a policy taken out in connection with a prospective regulated agreement comprising a motor vehicle.

72 s. 69 (1).

73 s. 96 (1). But discharge of the debtor's liability under the linked transaction does not affect a debt which has already become payable (ibid.). S. 96 (1), which may be excluded by regulations as regards linked transactions of a prescribed description (s. 96 (3) ), does not apply to a linked transaction which is itself an agreement providing the debtor or his relative with credit (s. 96 (2) ). It should be noted that s. 96 applies only in the case of early discharge of the debtor's obligations under the credit agreement. Termination of the agreement by the debtor or creditor otherwise than by way of early settlement has no effect on a linked transaction.

74 For an illustration, see Sched. 2, example 18.

75 For example, an agreement by which a bank issues a customer with a credit card that can be used to draw cash or to pay suppliers of goods or services who have agreed with the bank to accept the card. Such an agreement embraces no less than four categories within the Act. As regards the cash drawing facility, it is a debtor-creditor agreement for unrestricted-use credit. As regards purchases from suppliers, it is a debtor-creditor-supplier agreement for restricted-use credit. The Act does not define “category” for the purpose of s. 18. If taken in its widest sense to cover every possible permutation under the Act, s. 18 is capable of embracing a very large number of different categories. Consider, for example, whether the following are to be treated as distinct categories: (1) A hire-purchase/conditional sale agreement. (2) A debtor-creditor agreement enabling the debtor to overdraw on a current account, as compared with a debtor-creditor loan account agreement (see, e.g., s. 74 (1) (b)). (3) A debtor-creditor-supplier agreement under which the cash price for the supply does not exceed £30 (see s. 75 (3) (b) ). (4) A cancellable, as opposed to a non-cancellable, agreement. (5) A consumer hire agreement terminable under s. 101, as opposed to one exempt under s. 101 (7) from the operation of that section. (6) A secured/unsecured/partly secured agreement (see s. 86 (1), (2)).

76 s. 18 (2)–(4).

77 “Advertiser,” in relation to an advertisement, means any person indicated by the advertisement as willing to enter into transactions to which the advertisement relates (s. 189 (1) ). A person can therefore be the advertiser for the purpose of the Act even though he himself did not place the advertisement and indeed even if he was unaware of the fact that it was to be published and did not authorise its publication. “Business” includes profession or trade (s. 189 (1) ) and would appear to cover voluntary services (e.g., those provided by Citizens' Advice Bureaux and Neighbourhood Law Centres) and to embrace the activities of local authorities, though these are exempt from the licensing requirements. (s. 21 (2)). An advertisement is within Part IV even though the business for the purpose of which it is published does not involve the grant of consumer credit or consumer hire facilities. Thus advertisements for new staff which, as an inducement, offer loans at modest interest rates would seem to be within Part IV whatever the nature of the advertiser's business.

78 s. 43 (1).

79 I.e., a consumer credit or consumer hire business, a business in the course of which he provides credit to individuals secured on land or a business comprising or relating to unregulated agreements which would be regulated but for the fact that the proper law of the agreement is that of a country outside the United Kingdom.

80 I.e., (1) in the case of an advertisement of a credit facility, if it indicates that the credit must exceed £5,000 without security or on security other than land or that the credit is available only to a body corporate, or (2) in the case of an advertisement of a hiring facility, if it indicates that the advertiser is not willing to enter into a consumer hire agreement.

81 s. 43 (5).

82 Thus, an advertisement of credit by an advertiser who does not carry on a consumer credit business and whose advertisement makes it clear that only credit above £5,000 will be given is nevertheless controlled by Part IV if the advertiser's business involves loans to individuals secured on land and the advertisement fails to state that land security is not required.

83 See White Paper, Appendix I.

84 The most telling criticism was that by equating with “specific” advertisements those which merely describe the cost of credit, either quantitatively (e.g., 20 percent. per annum) or qualitatively (e.g., “cheap,” “moderate”), the proposed regulations would require information to be given in the advertisement appropriate to a specific transaction with a particular debtor when at the time of the advertisement there was no specific transaction or debtor under consideration and thus no way of complying with the regulations. The Department of Prices and Consumer Protection appears to have recognised this difficulty, and it is likely that there will be a half way house for such “quasi-specific” advertisements in which the required information will be of a more general character.

85 s. 167 (2). See also s. 47 (1).

86 s. 46.

87 s. 170 (1).

88 See n. 77, supra. For the statutory defences, see infra.

89 s. 45.

90 Viz. that the advertisement was published in the course of a business carried on by him and he received it in the course of that business and did not know and had no reason to expect that its publication would be an offence under Part IV. This defence, modelled on s. 25 of the Trade Descriptions Act 1968, is particularly useful to publishers of newspapers and magazines.

91 See XVII, infra.

92 See n. 55, supra.

93 s. 49 (1).

94 ss. 21 (1), 23 (1), (3).

95 s. 49 (3).

96 s. 50 (1). It is a defence for a person charged under this provision to prove that he did not know, and had no reasonable cause to suspect, that the addressee of the circular was a minor (s. 50 (2) ).

97 s. 51 (1). This section applies even if the credit agreement by which the credit-token is to be governed would be an exempt agreement or, indeed, outside the Act altogether.

98 s. 74 (1).

99 s. 74 (2).

1 ss. 60, 61 (1).

2 Namely the Hire-Purchase (Documents) (Legibility and Statutory Statements) Regulations 1965.

3 For an Explanation, see R. M. Goode, op. cit., Appendix A.

4 Such regulations will be made under s. 20 of the Act.

5 s. 58. It will be observed that the special procedure is not confined to situations that for other classes of agreement would attract a right to cancel, but applies even if, for example, the agreement to be secured by the land mortgage is signed at the creditor's premises.

6 s. 58 (1).

7 s. 61 (2) (b).

8 s. 61 (2) (c).

9 s. 61 (2).

10 s. 65 (1). The principles governing the exercise of the court's discretion are laid down in s. 127. Enforcement of an improperly executed agreement without a court order, though an infringement of s. 65, does not attract any civil or criminal sanction (s. 170 (1)) except the risk of suspension, revocation or non-renewal of the creditor's licence (see s. 32) or the grant of a prohibitory injunction to restrain a threatened breach or a mandatory injunction to restore the status quo (s. 170 (3)). The latter would not, it is thought, be made so as to disturb the rights of an innocent purchaser (cf. s. 177), though the court would appear to have power to require the offending creditor to account to the debtor for the whole or part of the proceeds resulting from the wrongful enforcement. See further XIII (3), nn. 84, 85, infra.

11 s. 59 (1). But regulations may exclude from the operation of this provision agreements such as are described in the regulations (s. 59 (2)).

12 s. 57 (1). This is so even where the agreement, if made, would not have been a cancellable agreement (s. 57 (4)).

13 s. 57 (2).

14 s. 189 (1).

15 Byrne v. Van Tienhoven (1880) 5 C.P.D. 344.

16 This, at least, was the intention of Parliament. The original version of the section did in fact provide expressly that notice of withdrawal sent by post by the debtor or hirer should take effect when posted, whether or not received by the creditor or owner, but that such a notice sent by post by the creditor or owner should take effect only when received by the debtor or hirer. As a result of protests at this disparity of treatment between the parties, this provision was dropped, and the intended effect was to make a notice of withdrawal effective on receipt, whether served by the creditor or owner or by the debtor or hirer. See H.C. Deb., 19 July 1974, cols. 877–878. This would indeed appear to be the effect of s. 57 in its present form. A lingering doubt remains, however, because of judicial interpretation of s. 26 of the Interpretation Act 1889, which applies to service of a notice of withdrawal by virtue of s. 176 (2) of the Consumer Credit Act and also by reason of the definition of “give” in s. 189 (1) of that Act. S. 26 of the Interpretation Act provides that where an Act authorises or requires service of a document by post then unless the contrary intention appears the service shall be deemed effected by properly addressing, prepaying and posting a letter containing the document. The section goes on to say that unless the contrary is proved, service is then deemed to have been effected at the time at which the letter would be delivered in the ordinary course of post. However, in a series of decisions the courts have held that this latter part of s. 26 applies only where under the relevant enactment the time at or by which the document has to be received, as opposed to the mere fact of service, is material, and that if the enactment does not make the time of service material then under the first limb of s. 26 service is established by proof of posting a properly addressed pre-paid letter, and the addressee cannot rely on non-receipt as invalidating the service. See R. v. Appeals Committee of County of London Quarter Sessions, ex parte Rossi [1956] 1 All E.R. 670Google Scholar, followed in Saga of Bond Street Ltd. v. Avalon Promotions Ltd. [1972] 2 All E.R. 545Google Scholar, A/S Cathrineholm v. Norequipment Trading Ltd. [1972] 2 All E.R. 538Google Scholar and Maltglade Ltd. v. St. Albans Rural District Council [1972] 3 All E.R. 129Google Scholar, as well as in other cases. since as a matter of general contract law revocation of an offer is not achieved by mere posting of a letter of revocation but takes effect only on receipt by the offeree (Byrne v. Van Tienhoven, supra), and since Parliament must be presumed to have enacted the Consumer Credit Act with knowledge of this rule, it is thought that the rule embodied in s. 26 of the Interpretation Act is displaced by a “contrary intention.” Support for this is to be found in the opening words of s. 57 (3): “Each of the following shall be deemed to be the agent of the creditor or owner for the purpose of receiving a notice under subsection (2). …”

17 For a discussion of which see Goode, op. cit., para. [27.6].

18 ss. 11–15.

19 s. 67.

20 Ibid.

21 Ibid.

22 s. 174.

23 As defined by s. 56.

24 s. 67. Cf. Hire-Purchase Act 1965, ss. 11 (1), 58 (1) (definition of “appropriate trade premises”). But whereas under s. 58 (1) of the Hire-Purchase Act, the premises had to be those at which the owner or seller “normally” carried on business, under s. 67 of the Consumer Credit Act it suffices that the premises are those at which any business is being carried on, whether permanently or temporarily. The cooling-off provisions are thus excluded if the agreement is signed at a trade fair or agricultural show where the creditor, etc., has a tent or stand.

25 s. 67. But the representations need not be made to the debtor, etc. It suffices that they are made in his presence.

26 s. 69 (1).

27 s. 71 (1).

28 i.e., before the expiration of one month following service of the notice of cancellation or, if the credit is repayable by instalments, before the date on which the first instalment is due (s. 71 (2)).

29 s. 71 (3).

30 This is the combined effect of ss. 70 (1) and 72 (9).

31 ss. 69 (2), 70 (8), 72 (9).

32 See, in relation to sale, Benjamin on Sale (ed. A. G. Guest), Part 4.

33 As to these Acts, see O'keefe, J., The Law Relating to Trade Descriptions.Google Scholar

34 s. 75 (1). Subject to any agreement between them, the creditor is entitled to be indemnified by the supplier for loss suffered by the creditor in satisfying his liability under s. 75 (1), including costs reasonably incurred by him in defending proceedings instituted by the debtor (s. 75 (2)). s. 75 applies even if the debtor, in entering into the supply transaction, exceeded the credit limit or otherwise contravened any term of the agreement (s. 75 (4)).

35 But there may be cases in which s. 75 operates even in relation to goods acquired on hire-purchase, rather than for cash made available by way of loan, as where, in relation to a hire-purchase agreement concluded direct between the shop and the hirer, payment of the deposit is wholly or partly financed by a finance house. Such an arrangement does not contravene the Hire-Purchase and Credit Sale Agreements (Control) Order 1973. The position would be otherwise, however, if the required deposit was only provided as a result of a loan from the shop itself or from the manufacturer. See ibid., Art. 2 (3) (a).

36 Paras. 6.6.24–6.6.25. See also paras. 6.6.22–6.6.23.

37 i.e., within the limits permitted by the general law of contract (and in particular the doctrine of fundamental breach) and special statutes, such as the Supply of Goods (Implied Terms) Act 1973.

38 But see n. 39, infra. As a matter of policy, there is no reason why the courts should feel diffident about imposing liability on the bank under s. 75 in these circumstances. The use of the credit card to pay for goods from the foreign supplier will have resulted from pre-existing arrangements, or a contemplation of future arrangements, between the bank and the supplier (for otherwise s. 75 would not apply); and in view of the difficulty and expense confronting a United Kingdom consumer wishing to assert a claim against a foreign supplier abroad, there is every reason to afford him the statutory remedy against the bank in his own country, which is better placed than he is to ensure that the foreign supplier conducts its business properly and which is engaged in a joint venture with the foreign supplier in the same way and to the same extent as with suppliers in this country who have agreed to recognise the card. A debtor bringing proceedings against the bank could, of course, be met with the defence that the supplier was not liable under the proper law of the contract, so that there is no liability on the bank. But this would have to be specially pleaded, since foreign law is an issue of fact in proceedings in England, and unless otherwise pleaded is presumed to be the same as English law on the points at issue (De Reneville v. De Reneville [1948] P. 100Google Scholar; The Colorado [1923] P. 102Google Scholar).

39 s. 75 (3). Semble, this provision applies to an item of services as well as an item of goods. It should also be borne in mind that (by virtue of the definition of debtor-creditor-supplier agreement in s. 12), s. 75 only imposes a liability on the creditor where the credit agreement is a regulated agreement. If, therefore, the credit agreement is exempt under s. 16, s. 75 does not come into play. This may help various classes of creditor, including banks issuing credit cards under agreements which require payment to be made in fewer than three instalments.

40 ss. 77 (1), 78 (1), 79 (1). If a security instrument given by a third party is not referred to in the agreement, so as to attract the right to receive a copy under these provisions, a written request for a copy, accompanied by a fee of 15p, may be made under s. 110.

41 s. 78 (4).

42 s. 97 (1). The debtor does not have to pay a fee.

43 s. 103.

44 s. 172 (1), (2).

45 s. 172 (3).

46 ss. 107 (1), 108 (1), 109 (1).

47 The distinction between s. 76 (1) (c) and s. 98 (1) would appear to be that the former deals with termination of a particular right conferred by an agreement, without disturbing the rest of the agreement, whilst s. 98 is concerned with termination of the agreement as a whole.

48 No default notice, or indeed any other formality, is required by the Act before institution of proceedings against the debtor alone which are restricted to a claim for arrears under the agreement. If, however, the creditor wishes to join a surety as defendant, this step, which constitutes enforcement of a security, must be preceded by service of a default notice on the debtor under s. 87 and of a copy of such notice on the surety under s. 111, and proceedings must not be commenced until after the period allowed by the default notice for payment (being not less than seven days) has expired without payment being made or tendered.

49 See XIII (3), infra.

50 s. 89.

51 ss. 33–44. See Goode, R. M., Hire-Purchase Law and PracticeGoogle Scholar, 2nd ed., Chap. 19.

52 s. 34 (1) of the Hire-Purchase Act 1965 precluded the owner or seller from enforcing a right to recover possession of protected goods, and this was held not to bar repossession with the consent of the hirer or buyer (Mercantile Credit Co. Ltd. v. Cross [1965] 1 All E.R. 577Google Scholar) or the recovery of abandoned goods (Bentinck Ltd. v. Cromwell Engineering Co. [1971] 3 All E.R. 33Google Scholar). S. 90 (1) disables the creditor from recovering possession of protected goods without a court order, and omits the ingredient of enforcement. Hence at first sight, even recovery with the debtor's consent would be a contravention of the section. However, by s. 173 (3), a provision of the Act under which a thing may be done in relation to any person on an order of the court or the Director only is not to be taken to prevent its being done at any time with that person's consent given at that time. Hence a consent to surrender given at the time of repossession continues to be lawful. Similarly, it remains in order for the creditor to recover abandoned goods, since the debtor's consent to repossession which is implicit in the act of abandonment continues up to the time of repossession. A consent given in advance does not, however, bind the debtor or debar him from changing his mind, any more than under the Hire-Purchase Act (see Goode, R. M., Hire-Purchase Law and Practice, 2nd ed., p. 418Google Scholar).

53 s. 91.

54 e.g., where the agreement is improperly executed (s. 65 (1)) or where the goods are given as security under an improperly executed security instrument (s. 105 (7)).

55 Reliance on the statutory provision is necessary in such a case in order to surmount the defence of the debtor that in declining to surrender the goods he was not acting in wilful defiance of the creditor's right to possess but was merely invoking his statutory right to require the creditor to apply for a court order. See Smart Bros. Ltd. v. Pratt [1940] 3 All E.R. 432Google Scholar, per Luxmoore L.J., at p. 437, a decision on a comparable provision in s. 10 of the Hire-Purchase Act 1938 (since repealed).

56 s. 48.

57 See Goode, op. cit., pp. 279–280.

58 Consumer Credit Act, s. 132. This provision can be invoked by the hirer even if it was he who terminated the hire agreement. Indeed s. 132 is a necessary safeguard for the hirer in such a case, for the Act contains no provision limiting his monetary liability on exercise of his statutory right to terminate.

59 s. 93.

60 s. 92 (1).

61 s. 92 (2).

62 s. 92 (3). As to securities and their enforcement, see XIII, infra.

63 Hire-Purchase Act 1965, s. 28. See Goode, op. cit., pp. 377, 405–407.

64 s. 100.

65 For the position under the Hire-Purchase Act 1965, see ibid., s. 29 (2) (c).

66 Since in computing damages the court must assume that the debtor would have adopted the contractual option involving him in the least liability (in accordance with the principle established in Withers v. General Theatre Corporation Ltd. [1933] 2 K.B. 536Google Scholar), and must therefore take account of the debtor's ability to limit his liability by exercise of a right to terminate.

67 s. 101 (3).

68 s. 101 (7). An equipment lease granted by the manufacturer of the equipment is not within the second exemption, i.e., that in s. 101 (7) (b), since it is a condition of that exemption that the goods shall have been acquired by the owner for the purpose of the consumer hire agreement.

69 s. 101 (8). The Director's waiver is by notice to the applicant and can only be given if it appears to the Director that it would be in the interests of hirers to do so, e.g., if the Director took the view that without such dispensation the hiring facility would be denied to hirers at large because owners would not wish to do business when faced with the risk of premature termination under s. 101.

70 See (4), supra.

71 s. 105 (1), (6).

72 s. 105 (2).

73 s. 105 (3)–(4).

74 s. 105 (9). This does not mean that regulations will have to require a security given by the debtor to be in the same document as the regulated agreement. It will suffice if the security is embodied in a document referred to in the regulated agreement (see s. 189 (4)).

75 s. 179 (giving power to prescribe the form and content of credit-cards, tradingchecks and other “secondary documents” issued by creditors, owners or suppliers under or in connection with regulated agreements, or by other persons in connection with linked transactions) is not relevant for this purpose, since the security is given by the debtor or hirer, not issued by the creditor, owner, etc.

76 But the security remains unaffected to the extent to which it secures non-regulated agreements, whether they be exempt agreements or agreements outside the Act altogether. Hence a security covering the obligations of the debtor under both regulated and non-regulated agreements is not rendered wholly ineffective by the application of s. 106.

77 s. 106. Such duties include the obligation to repay to the surety any amount received by the creditor or owner on realisation of the security (s. 106 (d)). This provision is an example of the unhappy confusion of genus with species in the use of the word “security,” which in this context evidently refers to security given by a surety though its general meaning, as given in s. 189 (1), is any form of security provided by or at the request of the debtor or hirer. See also n. 95, infra.

78 An application is to be taken to be dismissed on technical grounds if the court so certifies (s. 189 (5)). For a discussion of this provision, see Goode, R. M., Introduction to the Consumer Credit ActGoogle Scholar, para. [13.12].

79 s. 113 (3) (c).

80 s. 105 (8).

81 s. 113 (3) (a), (b). For a complete list of cases where s. 106 applies, see Goode, op. cit., para. [13.15].

82 ss. 87 (1) (e), 88, 89. See also s. 112 which enables regulations to be made providing for any matters relating to the sale or other realisation of security furnished in relation to an actual or prospective regulated agreement.

83 s. 126. Semble, this prohibition extends to enforcement of the personal covenants in the mortgage if the mortgage instrument is distinct from the credit agreement, If the mortgage and the credit agreement are in the same document, the personal covenants would be enforceable qua terms of the credit agreement.

84 s. 170 (1), (3). But the county court's power to grant an injunction, which is derived from s. 74 of the County Courts Act 1959, is exercisable only if the injunction is ancillary to some other relief claimed in the action which is within the jurisdiction of the court (De Vries v. Smallridge [1928] 1 K.B. 482Google Scholar; Kenny v. Preen [1962] 3 All E.R. 814Google Scholar; Arnbridge (Reading) Ltd. v. Hedges [1972]Google Scholar C.L.Y. 551). Hence a debtor claiming an injunction against a creditor who has enforced, or threatens to enforce, a land mortgage without a court order should be made ancillary to an application for a time order (if s. 129 (1) applies) or a claim for a declaration under s. 142 of the Act. Before enforcement of the mortgage the debtor or hirer can apply to the court under s. 142 for a declaration that the creditor is not entitled to enforce the mortgage, and the making of such a declaration precludes a subsequent application for an enforcement order (s. 142 (1)); but in the absence of an express sanction against realisation without an enforcement order, the claim for a declaration should be supported by an application for an injunction (as permitted by s. 170 (3)) restraining sale or other realisation of the security without leave of the court.

85 ss. 25, 29, 32, 170 (2). Nice questions arise where the mortgagee sells without leave before any application has been made to the court for an injunction restraining the sale. The position of the purchaser would then appear to be as follows. (1) If he completes in good faith and without notice of the breach of s. 126, he obtains a good title under Law of Property Act 1925, s. 104 (2), the efficacy of which is preserved by s. 177 (2) of the Consumer Credit Act notwithstanding other provisions of that Act. (The decision in Anchor Trust Co. Ltd. v. Bell [1926] 1 Ch. 805Google Scholar that sale without leave of the court as required by the Courts (Emergency Powers) Act 1914 was not saved by s. 21 (2) of the Conveyancing Act 1881, being a purported exercise of a power abrogated by that statute and not merely the irregular exercise of a lawful power, would not appear relevant to s. 104 (2), which expressly covers the situation of a sale without leave of the court when such leave is required). (2) A purchaser taking with notice of the breach, and thus disabled from relying on s. 104 (Bailey v. Barnes [1894] 1 Ch. 25; Anchor Trust Co. Ltd. v. Bell, supra), does not acquire a good title, the conveyance to him operating merely as a transfer of the mortgage (Selwyn v. Garfit (1888) 38 Ch.D. 273; Anchor Trust Co. Ltd. v. Bell, supra), (3) A purchaser who acquires notice of the breach of s. 126 after contract but before completion is entitled to refuse to complete and, on treating the contract as repudiated, to claim damages (this is not inconsistent with s. 170 (3) of the Consumer Credit Act since it is not a sanction for breach of that Act as such but is a claim for damages for breach of the contract of sale). More difficult to determine is the position of the debtor after sale without leave to a bona fide purchaser without notice. If the debtor can show loss (e.g., because but for the sale he would have had a reasonable prospect of selling at a higher price to a purchaser of his own choosing) he can recover damages, not for the breach of statutory duty as such (precluded by s. 170 (1)) but under s, 104 (2) of the Law of Property Act 1925. But what of the moneys in the hands of the mortgagee as the result of the wrongful sale? Retention of these (and a fortiori their purported application towards discharge of the mortgage debt) would appear to be an enforcement of the mortgage, even though the property originally subject to the mortgage has been sold, and a mandatory injunction (if claimed as ancillary to other relief—see n. 84, supra) could be made against the mortgagee requiring him to hand over the whole or part of the moneys to the debtor. It is true that this would not discharge the debt incurred under the regulated agreement, for which the creditor could make a cross-claim, but the debtor could reply with an application for a time order under s. 129. If there is a second mortgage, the court's enjoining power could likewise be exercised (a) to restrain the first mortgagee from making any payment of a surplus to the second mortgagee, or if such payment has already been made, then (b) to prohibit the second mortgagee from enforcing his second mortgage by retention of the sum paid over to him, without leave of the court, and directing him to release it to the debtor. But the court is likely to adopt a sympathetic attitude to the second mortgagee if he did not connive at the wrongful sale by the first mortgagee.

86 Except for (1) the obligation under s. 87 to serve a default notice before enforcing the chattel mortgage on the ground of a breach; (2) the obligation under s. 76 (1) to serve a notice under that section before recovering possession of the goods otherwise than by reason of a breach (but exercise of a power of sale without taking steps to recover possession appears to be outside s. 76 (1)); (3) the ability of the debtor or hirer to apply for a time order under s. 129 (see XIV (2), infra). (4) such restrictions as may be imposed by regulations under s. 112 (see n. 82, supra).

87 For footnote, see p. 114 ss. 7 and 7A, the latter being added by the Consumer Credit Act, Sched. 4, para. 1.

88 See Goode, op. cit., paras. [13.21]–[13.31].

89 Paras. 6.6.35 et seq.

90 It was necessary to exclude banks in order not to interfere with the mechanism of collection of cheques by bankers.

91 A postal order can be taken since this is not a negotiable instrument. Less clear is the case of a post-dated cheque. This is undoubtedly a negotiable instrument (see Bills of Exchange Act 1882, s. 13 (2)), but at the time of delivery to the payee is not a cheque as defined by s. 73 of the Bills of Exchange Act since it is not payable on demand. Hence if the definition of a cheque in s. 73 is applicable for the purpose of s. 123 of the Consumer Credit Act, a post-dated cheque cannot be taken as payment under a regulated agreement. It is, however, submitted that s. 123 ought not to be construed as prohibiting post-dated cheques—these being outside the mischief against which the section is aimed—and that “cheque” should be interpreted in accordance with current usage as covering a post-dated cheque, the essential ingredient being that it is drawn on a banker.

92 Consumer Credit Act, s. 123 (1).

93 s. 123 (2). This is the only provision of the Consumer Credit Act which makes an express exception as regards banks. “Banker” is unhelpfully defined in s. 2 of the Bills of Exchange Act as including a body of persons whether incorporated or not who carry on the business of banking. The essential characteristics of a banker are the acceptance of deposits from customers, the collection of cheques on behalf of customers and honouring of cheques drawn by customers and, as a corollary, the maintenance of current accounts to record cheques so collected and drawn (United Dominions Trust Ltd. v. Kirkwood [1966] 1 All E.R. 968Google Scholar). No licence, or Indeed official recognition of any kind, is technically necessary in order to establish banking status, except as required by certain specific statutes, e.g., the Protection of Depositors Act 1963 and the Companies Act 1948, for the purpose of those statutes. Optional certification is for the moment available under s. 123 of the Companies Act 1967 but solely to establish banking status qualifying for exemption from the Moneylenders Acts. This will disappear with the repeal of those Acts. The Bank of England also maintains a list of banks for its own purposes, compiled according to its own requirements and criteria.

94 s. 123 (3). A negotiable instrument is taken as security for the discharge of a sum if the sum is intended to be paid in some other way, and the negotiable instrument is to be presented for payment only if the sum is not paid in that way (s. 123 (4)).

95 s. 124 (1), (2). “Security” in s. 124 (2) appears to mean the contract of suretyship, and not to bear the wider connotation set out in s. 189 (1). See also n. 77, supra.

96 s. 124 (3).

97 s. 125 (4). For the definition of “holder in due course,” see Bills of Exchange Act 1882, s. 29 (1). A person to whom a bill is negotiated will not be a holder in due course if at the time of negotiation to him he had notice of the fact that the negotiation was in contravention of s. 123 (2), for such negotiation constitutes a defect in title for the purpose of s. 29 (1) of the Bills of Exchange Act (Consumer Credit Act, s. 125 (2)).

98 s. 125 (3).

99 s. 189 (1).

1 s. 141 (1).

2 Ibid.

3 s. 139 (5).

4 Hire-Purchase Act 1965, s. 49 (1).

5 s. 139 (1).

6 Under s. 39 of the County Courts Act 1959, as varied pursuant to s. 192 of that Act by the County Courts Jurisdiction Order 1974, the county court has jurisdiction in contract and tort actions where the debt or claim does not exceed £1,000. The special rules in s. 49 (1) of the Hire-Purchase Act 1965 governing the particular county court in which proceedings have to be commenced are not contained in the new Act. Hence the venue for institution of proceedings is now governed by the general rules embodied in C.C.R., Ord. 2.

7 In the case of a hire-purchase or conditional sale agreement only, such a time order may also deal with sums which, though not payable by the debtor at the time the order is made, would if the agreement continued in force become payable under it subsequently (s. 130 (2)).

8 s. 129 (1) (a). An enforcement order is an order under s. 65 (1), 105 (7) (a) or (b), 111 (2) or 124 (1) or (2) (s. 189 (1)).

9 s. 129 (1) (b).

10 s. 129 (1) (c).

11 I.e., before the creditor has served a default notice or notice under s. 76 (1) or 98 (1) or applied for an enforcement order or instituted proceedings.

12 s. 130 (3).

13 Such an order may be made in favour of the debtor or hirer or of a surety.

14 I.e., any remedies against the debtor, hirer or a surety of a kind listed in s. 87 (1), together with any acceleration clause or other provision becoming operative on a breach (s. 130 (5) (a), (b)). If while the relevant period subsists the breach to which the order relates is remedied, it is to be treated as not having occurred (s. 130 (5) (c)).

15 The remedy of the creditor or owner is to apply for revocation of the time order under s. 130 (6).

16 Under s. 136.

17 Under ss. 133 (1), 135 (1). See infra. In the case of a consumer hire agreement, the court has no power to make a return order under s. 133 (1) but can make an order for delivery in common law form and suspend the operation of the order under s. 135 (1), but not so as to prolong the hirer's right to possession beyond the contract period (s. 135 (3)).

18 Under s. 35 (4) (b) of the Hire-Purchase Act 1965.

19 s. 129.

20 s. 133 (1).

21 s. 135 (1).

22 s. 137 (2) (a).

23 The hirer is, however, protected in a different way by s. 132. See XII (4), supra.

24 See Snell's Principles of Equity, 27th ed., pp. 551 et seq.

25 For a detailed analysis of the operation of the rule against penalties in relation to hire-purchase agreements, see Goode, R. M., Hire-Purchase Law and Practice, 2nd ed., pp. 383Google Scholaret seq.

26 Moneylenders Act 1927, s. 10 (1).

27 s. 137 (1).

28 Ibid. However, in re-opening the agreement the court may, for the purpose of relieving the debtor or a surety from payment of any sum in excess of that fairly due and reasonable, by order set aside the whole or part of any obligation imposed on the debtor or a surety by the credit baragain or any related agreement (s. 139 (2) (b)). See also (5), infra.

29 s. 137 (1), (2).

30 As defined by ss. 189 (1), 184 (5).

31 Namely (a) his age, experience, business capacity and state of health, and (b) the degree to which, at the time of making the credit baragain, he was under financial pressure, and the nature of that pressure (s. 138 (3)).

32 Namely (a) the degree of risk accepted by him, having regard to the value of any security provided, (b) his relationship to the debtor and (c) whether or not a colourable cash price was quoted for any goods or services included in the credit baragain (s. 138 (4)). The phrase “colourable cash price” is not defined in the Act but denotes a price artificially inflated with a view to concealing the effective rate of charge.

33 s. 138 (5).

34 s. 138 (2) (c).

35 Re Enoch & Zaretzky, Bock & Co. [1910] 1 K.B. 327Google Scholar; Fallon v. Calvert [1960] 1 All E.R. 281.Google Scholar

36 Including, it is thought, prevailing rates of interest. See, for example, Cook v. J. L. Kier & Co. Ltd. [1970] 2 All E.R. 513Google Scholar, per Russell L.J., at p. 516.

37 See (3), infra.

38 s. 139 (1).

39 See Abrahams v. Dimmock [1915] 1 K.B. 662Google Scholar, a decision on s. 1 (1) of the Moneylenders Act 1900.

40 s. 139 (2).

41 Hence though it is primarily the credit agreement that is re-opened, even obligations incurred to third parties may be set aside if arising under contracts forming part of the credit baragain, though there appears to be no power to order repayment by the third party, but only by the creditor.

42 But not, it seems, a third party. See n. 41, supra.

43 e.g., to insurers under a related insurance contract or servicing agents under a related maintenance contract.

44 But an order made under s. 139 (2) may not alter the effect of any judgment (s. 139 (4)).

45 The equitable right of contribution between parties arises only if both are liable to a common demand and thus cannot be invoked where one is liable (in this case, the creditor) and the other (the party to the related contract) is not. See Johnson v. Wild (1890) 44 Ch.D. 146.

46 See paras. 6.6.3–6.6.5 and ch. 7.2.

47 See paras. 4.1.11 et seq., 6.3.2.

48 See further Instalment Credit (ed. A. L. Diamond), pp. 51 et seq.

49 s. 1 (1).

50 See XVIII, infra.

51 s. 21 (2).

52 s. 21 (3).

53 An ancillary credit business is any business so far as it comprises or relates to (a) credit brokerage, (b) debt-adjusting, (c) debt-counselling, (d) debt-collecting or (e) the operation of a credit reference agency (s. 145 (1)). These forms of activity, which are defined in s. 145 (2)–(8), with exclusions set out in s. 146, cover a wide range of businesses and professions. For example, the definition of “credit-broker” embraces not only money and mortgage brokers but motor dealers and other retailers introducing business to finance houses by submitting hire-purchase and instalment sale agreements signed by their customers. Similarly, “debt-counselling” has a wide connotation, taking in Citizens' Advice Bureaux, Consumer Aid Centres, Neighbourhood Law Centres and most solicitors. Included in the definition of “debt-collector” will be solicitors (usually) and assignees of debts who proceed to collect them in, e.g., commercial bad-debt purchasing organisations, factors who factor and collect in receivables under consumer credit and consumer hire agreements and finance houses who block discount hire-purchase and rental agreements for motor dealers. A barrister or advocate acting in that capacity is not, however, to be treated as doing so in the course of any ancillary credit business (s. 146 (1)). A solicitor is similarly exempt but only in relation to contentious business, a qualification which effectively negates the value of the exemption since it means that solicitors who, for example, successfully negotiate on behalf of all their debtor clients without proceedings by the creditors will require to be licensed as debt-counsellors and debt-adjusters, whereas no licence will be required for such activities by the solicitor if the matters become contentious as the result of the creditors issuing writs! However, solicitors, like Citizens' Advice Bureaux and other similar organisations, are likely to qualify for group licences.

54 s. 147 (1).

55 Namely (1) the carrying on of a consumer credit business; (2) the carrying on of a consumer hire business; (3) credit brokerage; (4) debt-adjusting; (5) debt-counselling; (6) debt-collecting; (7) the operation of a credit reference agency; (8) the canvassing off trade premises of debtor-creditor-supplier agreements or regulated consumer hire agreements (s. 23 (3)). Some of these categories are capable of subdivision, e.g., consumer credit brokers, consumer hire brokers.

56 ss. 22 (1) (a), 23. Moreover, the authorised activity or activities can only be carried on under the name or names specified in the licence (s. 24).

57 s. 39 (1). It is also an offence to carry on business under a name not specified in the licence (s. 39 (2)).

58 s. 40.

59 s. 149.

60 I.e., prescribed by regulations made by the Secretary of State (s. 189 (1)).

61 s. 22 (1) (a).

62 s. 22 (3).

63 s. 22 (4).

64 s. 36 (5). As to termination generally, see s. 37.

65 s. 22 (1) (b)

66 To surmount the practical difficulty involved in the processing of all licensing applications by the day appointed for commencement of licensing, the Act provides that where a person carrying on any description of consumer credit or consumer hire business applies for a licence before the appointed day, then on the appointed day he is deemed to have been granted a licence, and this is deemed to continue in force until the licence applied for is granted or, if the application is refused, until the end of the appeal period (Sched. 3, para. 5 (2)).

67 The procedure for suspension and revocation is laid down by s. 32. The Act also provides for compulsory variation of a licence (s. 31).

68 s. 25 (1) The information required by the Director to enable him to evaluate an application for a licence will be derived primarily from (i) the application form (which the Director has stated will be extremely detailed) and (ii) local trading standards inspectors. In addition, where a person is convicted of an offence or has a judgment given against him by or before any court in the United Kingdom and it appears to the court that having regard to the functions of the Director the conviction or judgment should be brought to the Director's attention and that it may not be brought to his attention unless arrangements for that purpose are made by the court, the court may make such arrangements even though the proceedings have been fully disposed of (s. 166).

69 “Associate” is defined in s. 184, “controller” in s. 189 (1).

70 ss. 27, 34.

71 ss. 29, 32.

72 s. 41.

73 s. 42.

74 For an exhaustive analysis of the grounds of judicial review, see De Smith, S. A., Judicial Review of Administrative ActionGoogle Scholar, 3rd ed.

75 Tribunals and Inquiries Act 1971, s. 12 (1).

76 E.g., (1) knowingly or recklessly giving false information to the Director (s. 7); (2) impersonating enforcement authority officers (s. 162 (6)); (3) obstructing enforcement authority officers (s. 165 (1)) or giving them false information (s. 165 (2)).

77 E.g., (1) advertising goods on credit when not available for cash (s. 45); (2) false or misleading advertising (s. 46 (1)); (3) advertising infringements (s. 47 (1)); (4) canvassing of debtor-creditor agreements off trade premises (s. 49 (1)); (5) sending circulars to minors (s. 50 (1)); (6) supplying unsolicited credit-tokens (s. 51 (1)).

78 E.g., (1) engaging in activities requiring a licence when not licensed (s. 39 (1)); (2) carrying on business under a name not specified in the licence (s. 39 (2)); (3) failing to notify a change in registered particulars (s. 39 (3)).

79 E.g., (1) failure to supply statements of account and copies of contract documents to the debtor or hirer or a surety (ss. 77 (4), 78 (6), 79 (3), 107 (4), 108 (4), 109 (3), 110 (3)); (2) failure of debtor to give information as to whereabouts of the goods (s. 80 (2)); (3) failure of the creditor to quote a settlement figure (s. 97 (3)) or provide a termination statement (s. 103 (5)).

80 I.e., (1) taking pledges from minors (s. 114 (2)); (2) failing to supply copies of the pledge agreement or pawn-receipt (s. 115); (3) unreasonable refusal to allow redemption of the pawn (s. 119 (1)).

81 E.g., (1) refusal of creditor, owner or negotiator to supply the name of a credit reference agency contacted (s. 157 (3)); (2) failure of a credit reference agency to disclose or to correct filed information (ss. 158 (4), 159 (6)); (3) failure of agency to comply with requirements of alternative procedure for disclosure of information (s. 160 (3), (4)). See further n. 99, infra.

82 E.g., the supply of false information to the Director (s. 7); the obstruction of an enforcement authority officer (s. 165 (1)).

83 Infra.

84 See VIII (1), text and n. 90, supra. Offences of strict liability include those relating to the seeking of business (see n. 77, supra) and the supply of information (see n. 79, supra).

85 Tesco Supermarkets Ltd. v. Nattrass [1971] 2 All E.R. 127.Google Scholar

86 Ibid.

87 Birkenhead and District Co-operative Society Ltd. v. Roberts [1970] 3 All E.R. 391Google Scholar; Butler v. Keenway Supermarkets Ltd. [1974] Crim.L.R. 560Google Scholar.

88 Birkenhead and District Co-operative Society Ltd. v. Roberts, supra.

89 Butler v. Keenway Supermarkets Ltd., supra.

90 ss. 1 (1), 161 (1).

91 His other duties (apart from such additional functions as may be conferred on him by the Secretary of State under s. 2 of the Act) include (1) keeping under review, and advising the Secretary of State about, social and commercial developments in the United Kingdom and elsewhere relating to the provision of credit or bailment of goods to individuals and related activities, and the working and enforcement of the Act and regulations (s. 1 (2)); (2) disseminating information and advice to the public about the operation of the Act, the credit facilities available to them and other matters within the scope of his functions under the Act (s. 4—and cf. Fair Trading Act 1973, s. 124 (1), which, however, is limited to “consumers,” as opposed to “the public”); (3) making an annual report on his activities to the Secretary of State (Fair Trading Act 1975, s. 125 (1), (2), which is not confined to the Director's duties under that Act but embraces his duties under any enactment).

92 s. 161 (2).

93 Ibid.

94 s. 162 (1) (a).

95 s. 162 (1) (b); and see n. 96, infra.

96 Ibid. A barrister, advocate or solicitor cannot be compelled to produce or surrender a document containing a privileged communication (s. 162 (7)). There is no exemption in favour of banks, but under s. 162 (5) regulations may provide that, in cases described by the regulations, an officer of a local weights and measures authority is not to be taken to be duly authorised for the purpose of s. 162 unless authorised by the Director. It is likely that regulations under this section will be made to limit the range of officers authorised to inspect bankers' books.

97 s. 162 (1) (c).

98 s. 162 (1) (d).

99 It also provides some measure of protection to the consumer who is denied access to the credit market as a result of adverse information on the file of a credit reference agency which is erroneously believed to refer to that consumer or which, though referring to him, is in some way inaccurate or misleading. A creditor, owner or negotiator is placed under a duty, within the prescribed period after a request in writing from the debtor or hirer (which by virtue of s. 189 (1) includes a prospective debtor or hirer), to supply him with the name and address of any credit reference agency from which the creditor, owner or negotiator has, during the antecedent negotiations, applied for information about his financial standing (s. 157). Any individual (“the consumer”) is entitled, on written request together with such particulars as the agency may reasonably require to enable them to identify the file and a fee of 25p, to be supplied with a copy of his file (s. 158). However, to avoid disclosure of the source of the agency's information where the debtor is a trader, s. 160 allows an alternative procedure by which the agency supplies the consumer with such information included in or based on entries in the file as the Director may direct, with power to the Director, where the consumer is dissatisfied with the information he receives, to require the agency to give the file to the Director, who may disclose to the consumer such information on it as he thinks fit. Finally, a consumer is entitled to require incorrect information on the file to be removed or amended (s. 159).

1 See Crowther Report, Part 5. The case for fundamental changes of this kind is also powerfully argued by Thornely, J. W. A. and Ziegel, Jacob S. in “Hire-Purchase Reformed” [1965] C.L.J. 59, at pp. 88–92.Google Scholar