Thread: Getting Them To Reveal Their Vitals. Using CPR 31.14 to Your Advantage

An outstanding piece of work. Thanks.

Firstly you will need to correct a typo incase people copy the as is

provisions of CPR PD 17 para 7.3, where

its PD 16 para 7.3

One question x20. You state in your letter.

Your CPR 31 duties extend to making a reasonable and proportionate search for the originals of the documents I have requested, the better for you to be able to verify the document's authenticity and to provide me with a legible copy.

Does this mean that if the claimant says that they have made a reasonable search for the original but cannot find it then their obligation to produce an original document at the hearing is removed.

What does the 'better for you to be able to verify the document's authenticity and to provide me with a legible copy', actually mean? Are you saying that having the original is better for the claimant or that they need to verify any copy? Sorry if its a thick question.

FF

absolutely a great piece of research that will provide a significant shift in providing a defendent with a sound platform to promote his or hers defence.

would we rightly assume that providing the claimant is seeking less than £5000 that this pre defence action is applicable to credit agreements/ credit cards and other claims similar to utilites charges and the like of.

djc

FF, Thanks, it should be CPR 16 not 17 as you say. My Fat Fingers. typo corrected.

Where you quote from the letter saying: 'Your CPR 31 duties extend to making a reasonable and proportionate search for the originals of the documents I have requested, the better for you to be able to verify the document's authenticity and to provide me with a legible copy.',

and then ask:

Does this mean that if the claimant says that they have made a reasonable search for the original but cannot find it then their obligation to produce an original document at the hearing is removed,

The answer is 'No'. At this stage the Defendant is only interrogating the Claimant for documents mentioned in the Particualrs of Claim by the production of copies. The best quality copy will be a copy of the original. If it transpires that the best quality they can produce is a fuzzy, illegible copy or a copy with chunks missing from it, that will inevitably raise doubts as to what the agreement would have once said but no longer does say and which is now obscured by the fuzz or the missing parts.

In a case where the essentials of section 60 and 61 CCA 74 are not evident through the fuzz, there will be a doubt as to whether it is enforceable or not. In that scenario I would suggest pleading unenforceability and applying to the court for a stay of all proceedings pending a determination of the question of enforceability under section 65(1), by an appication made by the claimant to the court under s127(1).

Where you ask 'What does the 'better for you to be able to verify the document's authenticity and to provide me with a legible copy', actually mean? Are you saying that having the original is better for the claimant or that they need to verify any copy? Sorry if its a thick question.'

The answer is the Claimant is under an obligation to produce a true copy of the agreement mentioned in the agreement. Disclosure involves honesty. Although the letter asks for the production of modifications and so on, this aspect of the request is subsidiary to the primary request which is for a true copy of the original. If the Claimant produces a document which he represents is a true copy of the original, the Claimant is treated as having made a statement of truth. If it transpires that he has falsely represented the document he is guilty of contempt of court (See CPR 31.23). He is likely to do his case no favours. His credibility will be in tatters.

Accordingly, where I say 'the better for you to be able to verify the document's authenticity and to provide me with a legible copy', I am flagging up that the Claimant must take care in ensuring that what he produces and represents to me as being a copy of the agreement mentioned in the Particulars of Claim, truly is. Equally, where it isn't a true copy of the agreement, I expect him to say so or at the very least, to not represent it as somerthing it isn't.

Having the original is bettter for everyone. It is the means to justice.

x20

Thanks x20, it all make sense. Sometimes the 'legal speak' requires a different way of thinking.

In a situation where you have recieved a response to your 31.14 request, will this below help the defendant to force the claimant to prove the authenticity of the agreement (by producing the original) at the hearing?

32.19 (1)A party shall be deemed to admit the authenticity of a document disclosed to him under Part 31 (disclosure and inspection of documents) unless he serves notice that he wishes the document to be proved at trial.
(2)A notice to prove a document must be served –
(a)by the latest date for serving witness statements; or
(b)within 7 days of disclosure of the document, whichever is later.

So reading the above, if you doubt for example that the copies they have provided are from the same form, or the signature document is not linked to the document containing the prescribed terms (which happens alot as the creditor will only have the microfiche copy of the front page so they cobble together another bit with prescribed terms on it) would this be useful to force the claimant to prove it at trial by producing the original or could they just swear an afidavit that it was a copy of the 'whole' original document?

Thanks again, it wont let me click your scales anymore so you just have to feel the love.

djc,

CPR 31.14 is applicable in all cases where a document is mentioned in a statement of case. Its application is not restricted to just monetary cases.

Your queried assumption that the letter I prepared is applicable provided the Claimant is seeking less than £5,000.00 is wrong. It has application whatever the amount of the claim may be.

I inserted in brackets, a paragraph for use where the claim was for less than £5,000.00 since I have seen letters from Claimants say that they have no obligation to comply with a request where the case is allocated to the small claims track [in which event CPR 31 would have no application by reason of CPR 27(2)].

The purpose of this paragraph was to point out to the Claimant that before CPR 27(2) or for that matter, any part of CPR 27 has any effect upon the proceedings, the case must first be allocated to track. The court will not allocate a case to track until [1] a defence has been filed [2] the parties have delivered AQs and [3] the Claimant has paid an allocation fee. In other words, at the time the CPR 31.14 letter is delivered, the case is 'trackless' and the Claimant may not call to his aid his personal opinion as regards what may or may not be the future case management directions of the court as a valid reason for refusing to comply with the CPR 31.14 request.

The paragraph in question should be deleted from the letter where the claim is worth in excess of £5,000.00.

Hope this clears your query up.

x20

thanks surfaceagentx20

it more than clarifies the point raised and provides clear instruction to its use, for the litigant.

look forward to your response to claimant not conforming to the request of CPR 31.14

djc

FF,

If a Defendant does not accept the authenticity of the document provided (in short, the Defendant calls it a sham and very likely the produceer of it a liar), it will be necessary for the Defendant to say so and deliver a CPR 32.19 notice.

By 'authentic' I mean that the document copied by one party to the other is a true copy of what it purports to be.

One has to be careful here, especially when throwing allegations of deceit around. Judges of the civil courts are far too gentlemanly to allow for that save in the most proper of cases. Besides, if you do make that kind of allegation, you'll be expected to prove it.

One also has to be careful in terms of clarification. If I produce a copy of an agreement which is fuzzed up and unreadable because it is an umpteen times regenerated copy and claim it to be a copy of the original, the court is likely to construe my statement as 'true' on the basis that it is a copy of the original (assuming it is of course and not a photocopy of a, I dunno, a bus ticket). It is far better before chucking allegations around to require the producer of the document to clarify what was used to generate the copy document he produced to you.

Further, as the case progresses (remember at CPR 31.14 we haven't even put a defence in) the stage of standard disclosure will be reached. In giving standard disclosure, all parties to the case will be obliged to identify any documents which were once in their possession but which are no longer in their possession and say what has become of them. If the original agreement is unavailable they must say so and divulge when and in what circumstances the agreement ceased to be in that party's possession.

The person who reveals this information must have knowledge to be able to make the disclosure statement. That statement will be treated as truthful. The maker of the statement can be cross-examined as to his statement, to include of course suggestions aimed at showing the foolishness of disposing of such an important document and his acknowledgement that the loss of that document impacts upon the ability of the court to do justice between the parties etc..

Hope this helps.

x20

surfaceagentx20

this is probably totally irrelevant but in the unlikely event that the defendant already posses a true signed copy of said agreement would he be honour bound at some stage to produce it or keep his head down. We are assuming at some stage of proceedings disclosure could be sort by claimant.

djc

Originally Posted by surfaceagentx20

FF,

If a Defendant does not accept the authenticity of the document provided (in short, the Defendant calls it a sham and very likely the produceer of it a liar), it will be necessary for the Defendant to say so and deliver a CPR 32.19 notice.

By 'authentic' I mean that the document copied by one party to the other is a true copy of what it purports to be.

One has to be careful here, especially when throwing allegations of deceit around. Judges of the civil courts are far too gentlemanly to allow for that save in the most proper of cases. Besides, if you do make that kind of allegation, you'll be expected to prove it.

One also has to be careful in terms of clarification. If I produce a copy of an agreement which is fuzzed up and unreadable because it is an umpteen times regenerated copy and claim it to be a copy of the original, the court is likely to construe my statement as 'true' on the basis that it is a copy of the original (assuming it is of course and not a photocopy of a, I dunno, a bus ticket). It is far better before chucking allegations around to require the producer of the document to clarify what was used to generate the copy document he produced to you.

Further, as the case progresses (remember at CPR 31.14 we haven't even put a defence in) the stage of standard disclosure will be reached. In giving standard disclosure, all parties to the case will be obliged to identify any documents which were once in their possession but which are no longer in their possession and say what has become of them. If the original agreement is unavailable they must say so and divulge when and in what circumstances the agreement ceased to be in that party's possession.

The person who reveals this information must have knowledge to be able to make the disclosure statement. That statement will be treated as truthful. The maker of the statement can be cross-examined as to his statement, to include of course suggestions aimed at showing the foolishness of disposing of such an important document and his acknowledgement that the loss of that document impacts upon the ability of the court to do justice between the parties etc..

Hope this helps.

x20

Golly, your answer has created twice as many questions than it answered (in my head at least)! So I'll try and keep it concise.

What abour in a case (which is very typical of many on CAG) the claimant has produced a microfiche copy of a signed agreement (without the prescribed terms) and another page which they say is the back of the signature document and shows the prescribed terms. There is nothing on either document to link the 2 together and they may be in places largely ilegible. They have admitted that they don't have the original anymore.

It is fundemental to their case to prove that these 2 seperate copies are in fact, front and back of the same document. As the copy containing the prescribed terms is generic it could have come from anywhere, therefore the only way to prove that it is what was originally signed and enforceable is to make the original available for inspection at the hearing. Otherwise the DCA's (who lets face it are not adverse to bending the odd law or 3 - allegedly!) could just say 'yes your honour thats a copy of the exact document as signed by the defendant' and the claimant has no way to dispute it.

Therefore, if there is nothing to prove that the evidence exhibited is a genuine copy of all parts of the original document, other than the sworn statement of a DCA employee, then surely the defendant has the right to suggest otherwise and ask them to prove something that links the 2 documents.

A classic case of this is the one of mine you have advised me on. They originally provided the uneforceable signature document (no prescribed terms) and then when I told them it wasn't enforceable and why they produced an illegible sheet, which they say contains the prescribed terms (although it is impossible to tell) is a different size from the other document, doesn't have a crease through the middle like the signature document, neither document has anything on it to reference the other yet they tell me thats all they need to make it enforceable and they don't have to produce the original as 8 years have passed and its not reasonable for them to keep it that long.

My whole case rests on the basis that the sheet with the prescribed terms is illegible and not linked to the signature sheet in anyway and their inability to produce the original document to prove otherwise.

On the basis of what I have read above, I don't have a hope in hell as they only have to swear to say the blob is a copy of the original and the court will construe this as 'true'.

Am I just being a doom munger and can you clarify.

Thanks, FF

One more thing...the CPR 32.19 says - A party shall be deemed to admit the authenticity of a document disclosed to him under Part 31 (disclosure and inspection of documents) unless he serves notice that he wishes the document to be proved at trial.

Yet you say -Besides, if you do make that kind of allegation, you'll be expected to prove it.

Providing I have some basis for making doubting the authenticity of the document then how can I prove my allegation and why should I when CPR states that I can ask for it to be proved.

The 2 statements seemingly contradict one another.

Originally Posted by djc

surfaceagentx20

this is probably totally irrelevant but in the unlikely event that the defendant already posses a true signed copy of said agreement would he be honour bound at some stage to produce it or keep his head down. We are assuming at some stage of proceedings disclosure could be sort by claimant.

djc

djc, he will be bound to disclose it as part of his standard disclosure obligations.

x20

Originally Posted by palomino

One question : You say that you should only ask for the documents mentioned in the POC. What is the reasoning for excluding the documents in 2 - 5 if they are not mentioned?
You may for instance be disputing that the claimant has a right to claim by virtue of there being no notice of assignment. But this notice wouldn't necessarily be mentioned in the poc would it? - but you would still like to see it (or a verified copy).

I have to confess that I'm not a lawyer so I'm still digesting all of this. I expect I speak for a lot of people here .

Palomino, as you say in your question, the right to demand production of the document under CPR 31.14 is limited to a right where the docment is mentioned in a statement of case, like the Particulars of Claim. Hence there would be no right to see document types 2-5 under CPR 31.14 if they were not mentioned and it would therefore be right to exclude their reference from the CPR 31.14 letter.

In a properly pleaded case where the Claimant brings the claim as assignee, the PoC will necessarily involve mentioning an assignment. If it does not mention an assignment, submit the CPR 31.14 letter and when a copy of the agreement comes back, plead the agreement by way of Defence and deny the claim on the basis the Claimant was not a party to the agreement and thus has no right to sue on it.

x20

Originally Posted by FunkyFox

What abour in a case (which is very typical of many on CAG) the claimant has produced a microfiche copy of a signed agreement (without the prescribed terms) and another page which they say is the back of the signature document and shows the prescribed terms. There is nothing on either document to link the 2 together and they may be in places largely ilegible. They have admitted that they don't have the original anymore.

FF,
Ok understand the question and what a good one it is.

The first thing I want to say is that being in a situation where there is a need for a CPR 32.19 notice is just the sort of situation the CPR 31.14 letter is designed to avoid. Demanding production in the way the draft letter does, with all its breadth and so forth, has the double edge of also raising the spectre of the admissability or inadmissability of what documentary evidence the Claimant may or may not have. By doing so early on in the proceedings, before you've made an election about how to craft your Defence (and so the Claimant doesn't know what that Defence will be by the time the CPR 31.14 letter hits his doormat), will cause the Claimant to examine what documentary material he has. If it's poor or challengeable he may feel he is on his backfoot and give in before the costs of the exercise begin to mount and render the claim uneconomic to him. If it is poor or challengeable and he elects to comply and does so properly, he has already been warned an application to the court will follow. He may not want that either. Keep his bsackfoot where it's meant to be.

Back to your question; the difficulty for the Defendant now faced with having to deal with the issue of admissable or inadmissable documentary evidence in the context of whatever may be pleaded in the Defence and the theatre of a trial, is that he is unable to promote a positive case. He is unable to say in your example, that 'the two separate microfiche documents are unconnected because ..' and then go on to advance a credible reason. The Defendant's success is dependant upon sowing the seeds of doubt.

How to deal in those circumstances would be the subject of a mammoth treaty. But trying to be as brief as I can, the evidence reveals two distinct events. [1] the making of the microfiche copies by the copying of the original and [2] the subsequent destruction of the original.

I would be inclined to demand documentary evidence, a paper trail if you like, surrounding both events in order to then interrogate whoever is brought along for the Claimant as a witness on the point.

Things like:
[1] the Claimants contemporaneous policy document dealing with [a] the microfiching and [b] the destruction of documents.

[2] The instruction to microfiche. Does it identify the agreement? Who gave the instruction and when? Did that person have the authority to give the instruction? Was the instruction in accordance with the policy? Who was the instruction to? Did that person directed to do it carry out the microfiching? Where is the document which records it was done and does it identify the particualr agreement in question and the person who did it? Is the person who did it in court and ready to be cross-examined? If not, which witness for the Claimant will be able to come into court and prove the microfiche is indeed a true copy of the original?

[3] Likewise the destruction. It's all very well being able to say the original was microfiched but that is not the same as saying the original was also and in fact destroyed. May be it wasn't. Ask the same or similar questions designed to yield that paper trail I went through with [2] above.

If you arrive at a situation where although a witness may appear on behalf of the Claimant to prove authenticity and to answer your questions on the subject, if you are able to demonstrate that in fact this witness is insufficiently connected to one or both the two events I spoke of, to such an extent that the evidence is mere supposition and conjecture, the court will be unable to attach any great weight to that evidence and doubt will remain.

I doin't know whether that's of any great help, but do you see where I am coming from in terms of tactical litigation techniques?

x20

Originally Posted by FunkyFox

One more thing...the CPR 32.19 says - A party shall be deemed to admit the authenticity of a document disclosed to him under Part 31 (disclosure and inspection of documents) unless he serves notice that he wishes the document to be proved at trial.

Yet you say -Besides, if you do make that kind of allegation, you'll be expected to prove it.

Providing I have some basis for making doubting the authenticity of the document then how can I prove my allegation and why should I when CPR states that I can ask for it to be proved.

The 2 statements seemingly contradict one another.

Ok, on to this question. Admision of authenticity is deemed without the other party to the case having to do anything. Only where the other party acts positively by serving a CPR 32.19 notice will the parties be joined on the question of authenticity of one or more documents. CPR 32.19 is permissive. The other party doesn't have to serve the notice in all cases, only where he intends to challenge authenticity.

Thus the delivery of a notice is the throwing down of the challenge. It will be a case of 'may the best man win.'

The rule can be legitimately read in the way that you report it. But you must remember that litigation costs money. If you exercise your right to require an opponent to prove a document in court in circumstances which subsequently appear unnecessary and wasteful (because you opted out of the 'deeming' provisions but were unable to challenge or demonstrate a good reason for opting out), whilst the proving of the document will be over in 2 minutes, a lot of time and expense may have been incurred in preparing the proof and arranging for the witness(es) to be in attendance.

A requirement to prove and which is subsequerntly found to have been unnecessary or wasteful, may result in an adverse costs order.

Both litigants have the benefit of using the CPR armoury. But that armoury is only there for use in a proper case. How many time have you seen the phrase 'abuse of process'? Avoid selecting what you might think is a weapon if in truth it will bite you back.

Hope this helps.

x20

Crikey x20! In this thread CAG has upped the litigation volume to number 20. Its like an episode of Judge John Deed, Ally McBeal, LA Law and Rumpole all rolled into one.

I jest of course, but its a scarey proposition for an LiP to be thinking about cross examining witnesses. Although on the other hand it may be quite good fun. What you say does make sense and assuming there is not another way to succeed in the circumstances I refer to, then we can only hope they back down and discontinue. Scary!

Thanks again for your help.

Just seen the answer to my other question. You're a star. Thanks

Sorry to interrupt a great thread, but just for info, if you go to "thread tools" and hit the subscribe button, you will automatically be subscribed - saves a lot of posts saying "JUST SUBSCRIBING" adding to an already complex train of thought!

hi! surfaceagentx20
under forum heading 'campaign'we have posted a thread named 'Fighting back against northampton bulk cc' something we would welcome your views upon. sorry not been able to find out how to link to this yet but early days.

This piece of work that you posted hear we believe clearly provides a way forward in helping those in desperate need of clear advice and quick help.

we are not sure if the thread that's
there is the right one but would welcome your input.

regards

djc