IGIT,

I’m coming into this thread a little late, but if I’ve got my facts straight it is that without first obtaining an order of the court, the Claimant re-possessed your car at a time when less than one third of the sums due had been paid and where the agreement had been terminated following service of a DN dated 30 October 2008. Further, that prior to re-possessing the car, the Claimant issued legal proceedings seeking an order for possession of the car and money. I haven’t seen the defence but understand it pleads technical defects in the form and content of the original agreement and the default notice.

A few thoughts.

First and whilst it is right to say a creditor may recover possession of goods where less than one third has been paid without the need to obtain an order of the court first (ie within the permitted circumstances featured in Consumer Credit Act 1974 section 90), it seems arguable to me that where the creditor brings proceedings for the purpose of obtaining an order for repossession he waives by his own election any right afforded by section 90 and submits himself and the question of his right of repossession to the jurisdiction of the court.

Further more, it seems to me there may be grounds for saying that since the repossession of the car took place after 1 October 2008 (when provisions of the 2006 Act came into effect) the creditor ought also to have served a notice under section 86B within 14 days of at least two instalment payments becoming outstanding under the agreement. The duty to serve a section 86B notice extends to fixed-sum credit agreements of which a HP agreement is a breed given the provisions of section 9(3) of the 74 Act. If the creditor was under a duty to serve a section 86B notice but failed to by when repossession occurred, his failure to do so rendered his power to enforce the agreement void by reason of the provisions of section 86D(3). If I am right in all this the enforcement by recovery of possession without court order may arguably be treated as analogous to a recovery of possession in contravention of section 90. The consequences of contravening section 90 are that the provisions of section 91 kick in. Section 91 provides for the debtor to be released from all further liability under the agreement and a right to recoup payments made by him under it.

Mixing up a defence based upon the creditor’s submission to the jurisdiction of the court coupled with the creditor’s enforcement of the agreement when it had no right to do so (if so) nor permission granted by order of the court may double the creditors jeopardy.

Next the complaint regarding the DN is that parts which ought to have been in capitals and emboldened were not. In short, such a notice would not have been in the prescribed form and it is a mandatory pre-requisite of any right to terminate an agreement and recover possession of goods that there was prior service of a DN in prescribed form [Consumer Credit At 1974 section 88(1)]. I do not know of a case where an otherwise compliant DN was treated as ineffective owing to a shortcoming of this kind. I would be concerned that such shortcomings may be treated by the court as de minimus.

Per Kennedy LJ in Woodchester v Swayne & Co [1998] concerning the content of a DN

The court might overlook an error which could be described as no more than de minimus,

That said, the creditor is keen to compromise the case and is offering to waive a good chunk of the sums claimed. May be the creditor can be pushed further. Provided the section 86B argument I have advanced can be shown to apply, besides defending there would then appear to be a case for counterclaiming for the return of payments made under section 91. Promoting a section 91 type Defence and Counterclaim may result in an even better deal being put on offer.

As for your questions:

1 Proof of prejudice is only necessary where the court is minded to treat a defect in the prescribed form as de minimus. Arguably, if Parliament believed that parts of the DN required the text to be in capitals and emboldened, but not other parts, Parliament believed that those parts required capitalising etc for the protection of consumers and to avoid them suffering prejudice. In other words, you were not afforded the protection Parliament intended you should have as a consumer. Once more in my opinion, I would contend in those circumstances that there is a presumption of the existence of prejudice where there was less than strict conformity to the prescribed form with the onus of showing that no prejudice has been caused falling on the creditor.

2 Probably not. The court is likely to grant an extension of time for the service of a Reply. Further still, if you should be minded to amend your Defence to include a section 86B Defence and also counterclaim it would probably be wise to say so because costs might be wasted in serving a Reply where some later amendment gives rise to a right to serve a Reply and Defence to Counterclaim.

3 Any application to strike out for want of a Reply would fail.

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Lapdog,

A Claim Form for service in England and Wales has a life expectancy prior to service of 4 months only. See CPR 7.5. Since the default judgment, now set aside, dates back to 2007, the Claim Form clearly pre-dates the judgment and hence is now older than 4 months. The default judgment was set aside on grounds of non-service of the Claim Form and perhaps other grounds as well. That is why in setting the judgment aside, the Judge gave the claimant 14 days to serve the Claim Form. In effect, the Judge granted an extension of time for service of the Claim Form from some date in 2007 to 15 July 2009.

Compliance with CPR 7.5 and any time extension granted where service is by post is achieved not by the Claim Form arriving on your door mat, but by the Claim Form being put into a post box before the extension expires. So the Claim Form could turn up in the next day or two with compliance under CPR 7.5 having been achieved. If the Claim Form should show up in the next few days, look carefully for evidence of the date of posting. If posting occurred after 15 July, service will be bad. Tell Lloyds that and tell them they will have to make an application to the court for further time. Copy the letter to the court. Other than that, do nothing. If you receive nothing, telephone the court and ask if Lloyds have issued an application notice seeking an order extending the time for service once more. If one has been issued wait for the application notice to arrive. If you are told there has not been an application write to the court to say the Claim Form has not been received and that you were informed by a court officer that Lloyds had not made an application for an extension of time before the extension ran out. That letter will be placed on the court record and may come of use should Lloyds ever try to resurrect the case in the future.

As an alternative you could adopt the procedure set out in CPR 7.7, but frankly I wouldn’t bother. It’s a procedure where you write to Lloyds giving them not less than 14 days notice to serve the Claim Form and where if they don’t, you can then apply to the court for an order that the claim be struck out. The trouble is that if you write that letter and on the strength of it Lloyds serve, you’re then involved in a court case.

Assuming you don’t go with CPR 7.7 and a Claim Form was not processed in accordance with CPR 7.5, the position is that the proceedings are dead in the water until such time as Lloyds persuade a court to extend the time for service. Lloyds will have to persuade a court that there was some particular reason which prevented them from putting the Claim Form in the post in accordance with the terms of the set aside order. An application for an extension should be made promptly before the time allowed for service runs out. If Lloyds make an application after 15 July they will have to explain why they not only failed to serve in accordance with CPR 7.5 but also why they didn’t put on their application in good time. Clearly, the longer Lloyds delay, the less likely the court will grant another extension.

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Future,

An application for specific disclosure may be made where an opponent fails to include a material document in his standard disclosure. The application is made under CPR 31.12. In your case the application would appear to concern the Claimant’s failure to disclose a ‘true’ copy of the executed agreement. I do not know whether that means they have disclosed something they purport to be a true copy of the executed agreement but which isn’t, or whether they have failed to disclose anything which might constitute the agreement. I suspect the former and what follows is based upon that assumption.

First thing to bear in mind is rather obvious. That is, you don’t want them to produce a true copy of the agreement, if the document to be produced is water tight. Far better from your point of view that they endeavour to push through a claim based on a document which lacks one or more statutory essentials. The lack of such essentials affords you defence possibilities. Further, it will be necessary to be able to show at the hearing of your application that the document they produce is self-evidently not a true copy of the executed agreement.

Next, is that an application for specific disclosure should not precede an order of the court for standard disclosure. If an order for standard disclosure has yet to be made sit tight. In due course an application for standard disclosure will be made and of course the Claimant will be expected to comply with that order. An order for standard disclosure will require the Claimant to disclose not only the relevant and material documents in its possession but also those relevant documents which were once but which are no longer in its possession and a statement explaining what became of them.

Third, prior to making an application for specific disclosure ensure that you have written to the Claimant highlighting what you claim are the inadequacies in the Claimant’s standard disclosure. The Claimant ought to respond in some shape or form. If for example the Claimant responds saying ‘I no longer retain possession of a true copy of the executed agreement’ that will be enough and will be a complete answer to questions concerning the existence of the document though of course other questions then arise. Only where you have evidence showing that the Claimant’s answer was dishonest might pursuing the matter further be worthwhile.

The further questions which arise are, ‘if the document is no longer in your possession, what became of it, when did it cease to be in your possession, who authorised disposal, who carried out the disposal, why was it disposed of and what are the circumstances surrounding its disposal.’ The answer might be ‘destroyed, 3 years ago, on the authority of Mr X, destruction carried out by shredder Y, save space in filing cabinets, in accordance with Claimant documents policy.’ In those circumstances I would be tempted to seek disclosure of documents evidencing the answer.

Any documents evidencing the answer are clearly somewhat off topic in terms of the main issue but it is important to guard against the risk of the document surfacing later, nearer the trial date. There is a risk the document may surface because CPR 31.11 imposes a continuing duty of disclosure. That means that after standard disclosure and at any time up to the end of the trial, (note end of trial) any relevant document which comes to light must be disclosed. If you have prepared your defence on the basis such and such a document is missing, that defence will be injured if under CPR 31.11 that very document materialises. Thus having documentary evidence that the document has indeed been destroyed is an insurance policy against the risk of the document subsequently materialising. An alternative would be an affidavit sworn by the Claimant to the same effect. Likewise an undertaking from the Claimant to not subsequently seek to rely on it. Whatever the method, you will see the importance of guarding against the risk of the document subsequently materialising.

Where the Claimant has said a particular document is not in its possession and after which you have gone through the hoops of ascertaining the truth of that statement and guarding against the risk of it subsequently being produced, any application for specific disclosure of that document is likely to fail. In my opinion the court will not compel a party to search for and disclose something it unequivocally declares is not in its possession owing to destruction or whatever. In my opinion the court would refuse the application on the basis that to do so would be disproportionate in the face of the Claimant’s unequivocal declaration.

An application for specific disclosure must be on notice in form N244. The evidence in support of the application must show that the claimant’s disclosure is inadequate and why it is both reasonable and proportionate for the claimant to search for the missing document and disclose it when found.

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OK. Then check with the court what the date of service of the certificate upon the opponent was.

If the time for payment has expired, get stuck in with the enforcement process.

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Have you served the default cost certificate on the opponent?

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I can not give any warranties. However, my question does not need answering with dates if you do not wish to reveal dates.

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The DN does seek the full balance. The amount sought on the DN correlates to the amount sought by the LBA and the claim form. It would be possible for the DN to correctly say the entire balance was owing if at the time the DN was served, the full balance owing was the same as the amount in arrear. The PoC says the amount demanded in the DN was the arrears. If the two were in fact different so that in truth the arears were less than the full balance, then the DN was ineffective in terms of giving rise to an ability to recover the excess over the arears where the DN was not fully complied with. It is a question which can only be answered by checking the statement of account. It is worth remembering the agreement was taken out in 1998 and the last payment was £20.00 made in November 2004 (at least that is what is said in the PoC). It seems to me therefore that there would be some grounds to suppose that arrears and total balance were the the same when the DN issued in February this year. But check.

Permission to amend the Particulars of Claim was given on or before 16 December. The earliest statement of the Amended PoC arriving which I have seen is yesterday. May be they arrived earlier, if so when?

I recomend you put in an Amended Defence.

Regarding your witness statement, paragraphs 2 to 24 deal with a whole raft of law about improperly executed agremeent. Keep all that stuff for your skeleton argument and legal submissions to the court. Instead and on ths point, just identify in your own words, the particular aspects of the Regulations you say the bank neglected to comply with and which render the agreement improperly executed. I've looked all over the statement and I can't say such particulars hit me between the eyes. Ideally these particulars will go in your Amended Defence.

The statement does not deal with

1. the difficulties which lead to your falling into arrear
   
2. the amount claimed and the accuracy of the claim
   
3. the default notice
   
4. termination
   
5. assignment
   

When is the hearing fixed to take place?

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The DN is deffective. Also, is the date of the DN a date prior to the date on which proceedings began in August 2008? If so, how many days prior?

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See Insolvency Act 1986 Part IX Chapter V, 'Adjustments of Prior Transaction etc', in particular section 341 which deals with 'relevant time'.

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Can you clarify the question?

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maddie,

An application for a charging order should not be confused with an application for the compulsory sale of your home. The court may grant the application for a charging order yet quite properly refuse an application for compulsory sale.

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dog,

You could show the judge the default notice itself. The DN is a prescribed form containing prescribed language to include the following words:

"IF THE ACTION REQUIRED BY THIS NOTICE IS TAKEN BEFORE THE DATE SHOWN NO FURTHER ENFORCEMENT ACTION WILL BE TAKEN IN RESPECT OF THE BREACH".

If Parliament intended that the action which will be taken where the DN is not complied shall constitute 'Further Enforcement Action', then Parliament also intended that when the DN was served there had been 'Enforcement Action'. If that were not so, then the subsequent action would not constitute 'Further Enforcement Action'. There must have been some original enforcement action for the later action to constitute 'Further' Enforcement Action. If no enforcement action can be identified and which originated earlier than the DN, the DN must constitute the original enforcement action.

I am aware of Rankine and the opinion of HHJ Simon Brown that beginning legal proceedings did not even amount to enforcement action. Unfortunately Brown carefully dodged saying what would constitute enforcement action. Taking his train of thought to its logical conclusion, if prosecuting legal proceedings does not constitute enforcement, then evidently only steps taken pursuant to a judgment could be treated as enforcement. But then that would be enforcement of the judgment, not of the agreement. The only remaining alternative would be enforcement by means other than the recovery of money, ie goods. But as we know, the recovery of goods is permissable only following service of a DN and where the goods are protected goods, under a judgment of the court.

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FF

your words were not defamatory but I was concerned that unless I threw in a word or two to encourage people to think twice, claims or inference of malpractice or deceit against a partner in a firm of solicitors and who is clearly identifiable might follow.

Seems to me my words may have been ignored. As has rory's crucial question. I think it would be extremely helpful to see the accompanying letter, the statement and anything else referred to. I don't doubt this claim form has not been issued. We are told it came 'with a draft POC', and in some other document which has so far been kept private, there are words which say 'These are draft documents'. The solicitor is not purporting to effect service of issued legal process at all and has expressly referred to the documents as 'draft'. The question readers are invited to answer is whether disclosing the documents to a proposed Defendant in advance of their issue, expressly identifiyng them as 'draft', is somehow unlawful or somehow a breach of professional duty. In my view it is not and further, that there has been no attempt to deceive the recipient into thinking the documents constitute regularly issued legal process.

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You will need to complete the AQ form and return it to your local court by the date stated on it. Arrow will have to do the same and also pay the court fee. As Defendant, you don't pay the AQ fee.

A case gets automatically transferred to an individual's home county court when that individual enters a Defence.

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Everyone should be careful about what they say in this thread. There is such a thing as defamation.

As for the OPs enquiry whether a solicitor can deliver documents for the purpose of frightening people, the answer is as you would expect, that a solicitor should not send out documents to frighten people.

As for whether this claim form may have been delivered to frighten recipients into paying money, the claim form doesn't identify the value of a claim at all. Rather, the claim form seeks a restraining injunction, the delivery up of products allegedly infringing the claimant's trade mark and damages or disgorgement of any profit established after inquiry. All that is quantified is the court fee.

Let's be careful people.

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Seeing earlier quotes of mine freaks the living daylights ...

Nonetheless, making a section 77 or 78 request does not put the account in dispute. A creditor who fails to comply with such a request in time is consequentially prohibited from enforcing the agreement for so long as the creditor remains in default. If a creditor in default should pretend to have the right to enforce, the debtor may place the right to enforce in dispute.

Placing the right to enforce in dispute should not be confused with placing the account in dispute. To place the account in dispute requires someone, invariably the debtor, to contend for good reason, that the sum appearing as due on the account is overstated.

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Re post 47:

Inspection of documents by copying is a modern phenomenon. The historical right to make, to demand even, a physical inspection exists in all its glory. However, the disclosing party is under no obligation to cause the document to be moved from where it is stored to some place to suit the convenience of the inspecting party. If the document is in New Zealand and the inspecting party wishes to makes a physical inspection he will need to book his flight and hotel.

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Golly SH, you serious?

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Excellent. Then get an application in. Want some assistance on the application notice or do you know what to do?

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I note you are yet to say whether you received the judgment albeit improperly addressed to you. You would need to answer that point directly in any application to the court to set aside. I would understand if you did not want to answer that question on a public forum.

You would also need to say when you first came to learn of the claim, why you did nothing about it and what your defence to the claim would be(unless you say the claim never arrived either).

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An amending letter is inadequate to amend Particulars of Claim. A party's automatic right to amend a statement of case is lost after service and amendment may only occur where the other party consents or the court gives permission. [see CPR 17.1(2)].

Your request was a request under CPR 31.14 (Good). A litigant should comply with any reasonable request for the disclosure of documents or information which helps to clarify an issue and CPR 31.14 provides a right to documents mentioned in a statement of case. That the provision of documents would appear to be necessary is made out by the fact the Claimant already acknowledges that his statement of case will be confusing to you.

A litigant faced with a refusal to cooperate in the provision of documents following a proper request may feel it necessary to apply to the court for an order and give the rule some teeth. In your case I'd be inclined to make that application.

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Quote:

I dont know about anyone else, but i really am getting fed up with these consumer advice web sites.

My company has had so many letters recently informing us of what we can & cannot do.

Everything from...not being able to visit debtors homes without prior permission to having to provide credit agreements etc.

What can be done about these websites?

They are costing us too much money/profit & i know they are having an effect on other debt collection companies as well.

The injustice of it all speaks volumes and something needs to be done. I mean to say, people should be free to turn up at other peoples' houses unannounced and late at night, and then demand money without having to provide any evidence of a right to it. Kids do it every year at hallowe'en and no one complains. So why can't grubby debt collectors?

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looby is mis-informed and I'm pleased to say the prospect of a second action on the same facts is remote on the basis that to begin a second action on the same facts would be to re-litigate that on which the court has decided. The defence to any second claim is the oft heard 'res judicata'.

NR may suggest that since the case was struck out without a trial on the merits, there has been no decision on the merits. That may be so but then begs the question why not? The question is inevitably answered by reference to some default on the part of NR. Where that is so, the res judicata principle is extended to prevent re-litigation where it can be shown that the event which operated to deprive NR of justice in the first action and which they seek by virtue of their having brought a second action, may have been overcome by NR with reasonable diligence on their part. That's quite a hurdle to overcome. If lack of time was the problem, NR might have applied to extend time. If they applied but were denied time did they then exhaust the appeal system? If they did not then they were not dilligent. If they did and the case was still struck out, there was evidently justice in depriving NR of the right to carry on with the case.

If NR bring a second action based upon facts different to those advanced in the first action but facts which it nevertheless might have included in the first action, the rule in Henderson v Henderson may be wheeled out as a defence to that second action.

Giving any clearer advice is dependent upon NR bringing a second action and their statement of grounds justifying it. Hopefully there won't be any need.

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I am of the view there are underlying features which would justify exploring the possibility of there being a case against the solicitor in question. Why else would your solicitor suggest you obtain the file?

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I am not surprised the file has gone walk-about.

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