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Wilson v First County Trust

6 December 2000
The issues

Credit – Dimond v Lovell – Section 61 – Enforceability – Human Rights Acts.

The facts

Appellant Wilson raised a 6 month loan from First County Trust on the security of her car. The loan consisted of the figure of £5,000.00 and a variable “document fee” set at £250.00. Since she was unwilling to pay the fee, the amount of the fee was added to the amount of the loan.

She did not wish to pay the fee or the loan and sought to argue that because the documents had been improperly executed (Section 61) that therefore agreement could only be enforced by an Order of the Court under Section 65. She contended further following Dimond v Lovell that such enforcement was precluded by Section 127.

The decision

The Court of Appeal was clearly unhappy at a situation whereby the Appellant was allowed both to keep loan and car.

The Court therefore of its own motion, raised the issue of the Human Rights Act and whether the provisions of Section 127 of the Consumer Credit Act were compatible with convention rights. It appeared to the Vice Chancellor that it was arguable that it infringed Article 6 being a disproportionate restriction on the rights of the lender. If the correct conclusion is that it did infringe, there was no way in which the Court could see how it could be read and given effect to a way in which it was compatible with Article 6, (see Section 3 Human Rights Act 1998). Therefore the Court could either ignore the point or make a declaration of incompatibility. The Vice Chancellor took the view that notice should be given to the crown under Section 5 of the Human Rights Act for incompatibility to be further considered. Held appeal adjourned.

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