do not apply, to the extent set out in the table, to a person with an interim

permission with respect to the carrying on of a credit-related regulated activity; or 2. are to apply to such a person with respect

to the carrying on of a credit-related regulated activity with the modifications specified in the table in CONC 12.1.4R.

CONC 12.1.4R:

Table: Disapplied or modified modules or provisions of the Handbook

[See table under CONC 12.1.4R of the Consumer Credit Sourcebook]

You must observe the disapplications and modifications as set out by the FCA in CONC 12.1.4R if you hold interim permission.

Interpretation (D) The FCA define the expression ‘interim permission’ in terms of current legislation.

N/A The following rule has been introduced by the regulator:

CONC 12.1.5R

In this section 12.1, the expression ‘interim permission’ means a permission which a person is to be treated as having under article 56(9)(a) or (b) of the Financial Services and Markets Act 2000 (Regulated Activities) (Amendment) Order 2013.

13.1 Application

Application (G) CONC 13 applies to firms with respect to consumer credit lending and consumer hiring.

N/A –

application N/A – application

Guidance (G) The regulator takes the view that borrowers and hirers should be able to obtain, without imposing unnecessary burden on business, a copy of the executed agreement showing the total payable sum that currently remains unpaid, the various amounts comprised in that total sum, and the date when each became due.

N/A The following guidance has been introduced by the regulator:

CONC 13.1.2G (1):

The FCA takes the view that sections 77, 78 and 79 of the CCA should be read in a way that allows the borrower or hirer to obtain the information needed in order to be properly informed without imposing unnecessary burden on firms.

CONC 13.1.2G (2):

The statement referred to in the relevant section must be prepared according to the information to which it is ‘practicable’ for the firm to refer. In the FCA’s view, this means practicable at the time of the request and includes information which can reasonably be obtained from third parties.

CONC 13.1.2G (3):

Firms should take steps to ensure that information is preserved and kept available to be used to give information to a borrower or hirer.

It is expected that you will be able to provide the customer with a copy of the executed agreement and other information about payments due, without it being a burden on the business.

You should keep relevant information available to be used to give information to the customer.

The request and the

duty to give (G) The regulator clarifies that firms must ‘give’ a copy of the executed agreement in response to a request that is received from or on behalf of the borrower or hirer – for a copy of their executed agreement and any other document referred to in it and the required statement.

N/A The following guidance has been introduced by the regulator:

CONC 13.1.3G (1):

A request must be from or on behalf of the borrower under sections 77 and 78 or from or on behalf of a hirer under section 79. This would include a friend or relative, a solicitor, a claims management company or other third party. Under the Data Protection Act 1998 and the Data Protection Principles, the lender or owner is not allowed to reveal such information to a third party without the authority of the borrower or hirer. It should therefore satisfy itself that the person making the request has proper authority to obtain the information. If a copy of such authority is not enclosed with the request, the lender or owner is entitled to reply by asking to see the authority.

CONC 13.1.3G (2):

Where there are two or more borrowers or hirers and the request comes from one only, it must be nevertheless complied with, and the response must be given to both (or all) borrowers or hirers.

CONC 13.1.3G (3):

If the recipient considers that another person is the lender or owner, the recipient should either inform the applicant of who it considers is the correct recipient or pass the request on to that person.

CONC 13.1.3G (4):

In accordance with the sections referred to in (1) the firm must ‘give’ a copy of the executed agreement and any other document referred to in it and the required statement. In the FCA’s view, sending a copy of them by ordinary second class post will suffice. Guidance on what constitutes a copy is given below and found in the case of Carey v HSBC Bank plc [2009] EWHC 3417 (QB).

CONC 13.1.3G (5):

The duty under the relevant section does not apply if no sum is, or will or may become, payable by the borrower or hirer under the agreement. This is irrespective of whether the agreement may have been terminated.

The FCA expects you to provide a copy of the executed agreement on request from or on behalf of a hirer where there remain sums due under that agreement.

The copy agreement

(G) The regulator clarifies that

the copy of the executed agreement given by firms in response to a request by the customer must be a ‘true copy’ of the original, although firms can reconstitute a copy rather than provide the carbon copy, photocopy, or microfiche copy of the signed credit agreement.

N/A The following guidance has been introduced by the regulator:

CONC 13.1.4G (1):

The copy of the executed agreement should be a ‘true copy’ of the original. However, as confirmed in the case of Carey v HSBC Bank plc [2009] EWHC 3417 (QB), in this context the term ‘true copy’ does not necessarily mean a carbon, photocopy, microfiche copy or other exact copy of the signed agreement.

There is no obligation to provide a copy which includes a copy of the signature.

CONC 13.1.4G (2):

The firm can reconstitute a copy. It can do this by re-populating a template of the relevant agreement form with the details of the specific agreement taken from its records. If the firm does provide a reconstituted copy, it should explain that that is what it has done, to avoid misleading the customer that this is a contemporaneous copy.

CONC 13.1.4G (3):

The terms and conditions should be those applicable at the time the agreement was executed. The name and address at the time of execution must be included.

CONC 13.1.4G (4):

The reconstituted agreement should contain a heading prescribed by the CCA and any relevant cancellation notice.

CONC 13.1.4G (5):

If the reason why no copy is given in response to a request under these sections is that there never was an executed agreement, the firm should acknowledge this in its response.

CONC 13.1.4G (6):

If the agreement has been varied, the duty is to provide not only a copy of the agreement as originally executed but also either:

a. a copy of the latest variation given in accordance with section 82(1) of the CCA relating to each discrete term of the agreement which has been varied; or, b. a clear statement of the terms of the

agreement as varied.

CONC 13.1.4G (7):

Further, section 180(1)(b) of the CCA and regulation 3(2) of the Consumer Credit (Cancellation Notices and Copies of

Documents) Regulations 1983 expressly allow certain matters to be omitted from the copy.

There may be excluded from the copy of the executed agreement to be provided under these sections:

a. any information relating to the borrower, hirer or surety, or information included for the use of the lender or owner only, which is not required to be included by the or any regulations made under the CCA as to the form and content of the agreement;

b. any signature box, signature or date of signature;

c. in the case of pawn agreements, any description of the article taken in pawn.

The FCA requires you to give the copy of the executed agreement in a prescribed format.

The statement of

account (G) The regulator clarifies the effect on firms if they possess insufficient information to ascertain the amount and date of any sum payable.

N/A The following guidance has been introduced by the regulator:

CONC 13.1.5G

If the firm possesses insufficient information to enable it to ascertain the amount and date of any sum which is to become payable, it is sufficient to indicate the basis on which they would fall to be ascertained.

Where there is insufficient information to ascertain the amount and date of sums due, the FCA deem it to be sufficient to indicate the basis on which they are ascertained.

Failure to comply (G) The regulator sets out the effects on firms of failure to comply with the provisions under sections 77, 78 and 79 of the Consumer Credit Act 1974.

N/A The following guidance has been introduced by the regulator:

CONC 13.1.6G (1):

Failure to comply with the provisions means that the agreement becomes unenforceable while the failure to comply persists, and the courts have no discretion to allow enforcement.

CONC 13.1.6G (2):

In such cases, a firm should in no way, either by act or omission, mislead a customer as to the enforceability of the agreement.

CONC 13.1.6G (3):

In particular, a firm should not in such cases either threaten court action or other enforcement of the debt or imply that the debt is enforceable when it is not.

CONC 13.1.6G (4):

The firm should, in any communication or request for payment in such cases, make clear to the customer that although the debt remains outstanding it is unenforceable.

CONC 13.1.6G (5):

In the judgment of McGuffick –v- The Royal Bank of Scotland plc [2009] EWHC 2386 (Comm) Flaux J held in a case under section 77 of the CCA that passing details of a debt to a credit reference agency and related activities do not constitute enforcement under the CCA. He also held that steps taken with a view to enforcement, including demanding payment from a claimant, issuing a default notice, threatening legal action and the actual bringing of proceedings, are not themselves

‘enforcement’ under the CCA. On the other hand he confirmed that the actions listed under sections 76(1) and 87(1) of the CCA did amount to enforcement notwithstanding that some of the actions ‘less obviously’ amounted to enforcement. These actions are demanding earlier payment, recovering possession of goods or land, treating any right conferred on the debtor by the agreement as terminated, restricted or deferred, enforcing any security and terminating the agreement.

CONC 13.1.6G (6):

While Flaux J agreed with the decision of HHJ Simon Brown QC (sitting as a Deputy High Court Judge) in Tesco Personal Finance v Rankine [2009] C.C.L.R. 3 that commencing proceedings was not enforcement, but a step taken with a view to enforcement, both he and HHJ Simon Brown appear to have been drawing a distinction between commencing proceedings and entering judgment in those proceedings.

If you do not comply with the relevant provisions, the agreement becomes unenforceable and courts may not allow enforcement.

In such an instance, you must make clear that the debt is unenforceable in any communications to the customer and you must not imply that the debt is enforceable when it is not.

CONC 13.1.6G (7):

This guidance deals only with the question of whether an agreement is unenforceable in relation to sections 77, 78 and 79 of the CCA.

A lender’s rights to enforce an agreement may be restricted for a variety of reasons, by the Act, by or under the CCA and by virtue of the general law.

CONC 13.1.6G (8):

However, where a firm is aware that an agreement is unenforceable because of non-compliance with an information request under section 77, 78 or 79 of the CCA, a firm should make it clear when communicating to a customer about a debt that the debt is in fact unenforceable. Failure to do so, in that case, would in the FCA’s view unfairly mislead the customer by omission. Any communication that implies expressly or otherwise that a debt is enforceable when it is known that it is not, would be misleading. One way to avoid this would be for the firm to explain to the customer the full meaning of ‘unenforceable’.

14.1 Application

Application (R) Section 14 of CONC applies to firms with respect to consumer credit lending or consumer hiring.

N/A –

application N/A – application

Requirements (R & G) The regulator sets out the required conditions under which a firm may appoint an individual to act as an agent of the firm, in carrying on regulated activities of the firm.

N/A The following rules and guidance have been introduced by the regulator:

CONC 14.1.2R:

A firm must not appoint an individual, who is not an authorised person or an exempt person, to act as an agent of the firm, in carrying on regulated activities of the firm unless all of the following conditions are met at the date of the individual’s appointment and while the individual continues to act as the firm’s agent:

1. the firm appoints the individual as the