It then examines the situation further at 53 it was contended that the creditor must prove execution of the agreement by reference to the original document itself - this was rejected and lists the 14 reasons for that following and concluding at 54
MB with such knowledge why don't you ever offer some help? ?
eg; rather than dismissing Carey and the rejected 14 points at para53 use them to Isbos' advantage. IMO His main defence is the judge has ordered the Original docs. The claimant is planning on using a s78 reconstituted document as the 'proof purpose'. lets put heads together and help ISBO. All judges have heard of Waksman.. I am at work but here is 10 mins of my time.. will others please improve on my drivel..there are better sources than Waksman. lets help isbo not argue.
WaksmanI have already held that the purpose of the s78 copy is not to provide proof. Here it needs to be remembered that under s127 (3), the Court must not make an enforcement order “unless a document… containing all the Prescribed Terms… was190(1) signed by the debtor” [judges emphasis] ---------pretty clear 78 is not proof purpose and their needs to be a document.. the original agreement
Waksman and s78 is about a request for information. It is not for Proof purpose, for that you need the original agreement as Waksman tells you in the so called rejected 14 paragraphs among many other places. ISBO your Judge has ordered the originals be disclosed, you are in a strong position. They are using Waksman in their claim so use that to fight back. Plus if they are going to use Carey they will have to supply you and the court a copy a failure to do that ask for an adjournment on the claimants costs.
'I have already held that the purpose of the s78 copy is not to provide proof'. Many times he repeats it.. s78 is not for proof purpose. So..if s78 is not the proof purpose what is?.. it is "The original agreement' which they have been ordered to provide!
Actually at para 44 waksman explains what is the 'proof purpose'... The Claimants say that the information is both as to the present and the original position under the agreement, and the reason for having the information about the original agreement is so that the debtor may be satisfied that he did indeed enter the agreement by signing a document which was a properly executed agreement ("the Proof Purpose").
53) (8)]Moreover, the Proof Purpose contention requires that the creditor retain not only the front of the application form - where the signature would be but also the reverse, assuming that not all the terms were on the front and the reverse was not simply blank. It would not be enough for the creditor to produce a copy of what it said were the prevailing terms at the time for that card. Mr Uff said that this additional burden might be avoided if the front of the form had some sort of code on it, perhaps at the bottom, to indicate the precise set of terms which would apply and which could in turn be ascertained by reference to that code. But absent that both sides would be needed;
53) 5 Mr Uff thought that the omission was because the signature may have been on a set of carbon copies and the one retained by the creditor was too faint to reproduce; on the facts there is no evidence that this sort of problem could occur but if it did, it would suggest that the duty on the creditor to keep the original executed agreement as proof of the agreement made by the debtor may not be able to be fulfilled...note the word duty!
(11) It is said that if the debtor cannot have a copy in the sense required (for the most part) by Mr Uff and Mrs Thompson then he is at a disadvantage should he wish to challenge whether he made a properly executed agreement at all. I do not agree. First, this point only has real force if the Proof Purpose underlay s78 and I do not think that it does. Second, it assumes that there is no obligation on the debtor to make out at least some sort of positive case as to improper (or non-) execution of the original agreement. If he does and for example asserts positively that although he has been using a credit card agreement for years he never actually signed an agreement, or one that complied with s61, the creditor may well have to try and find the original in order to deal with that allegation. (I deal further with the absence of such positive allegations in relation to s61 when I consider below the Applications.) But that tells one nothing about the scope of s78;
And at 4 of the summing up It tells you the creditor must still provide a copy of the original agreement, as well as the varied terms;all agreements that have been running for a year or more will have had their terms unilaterally changed. apr etc.
SUMMARY OF FINDINGS
(1) A creditor can satisfy its duty under s78 by providing a reconstituted version of the executed agreement which may be from sources other than the actual signed agreement itself;
(2) The s78 copy must contain the name and address of the debtor as it was at the time of the execution of the agreement. But the creditor can provide the name and address from whatever source it has of those details. It does not have to take them from the executed agreement itself;
(3) The creditor need not, in complying with s78, provide a document which would comply (if signed) with the requirements of the Consumer Credit (Agreements) Regulations 1983 as to form, as at the date the agreement was made;
(4) If an agreement has been varied by the creditor under a unilateral power of variation, the creditor must still provide a copy of the original agreement, as well as the varied terms;
(5) If a creditor is in breach of section 78 this does not of itself give rise to an unfair relationship within the meaning of section 140A;
(6) The Court has jurisdiction to declare whether in a particular case, there has been a breach of s78. Whether it will be appropriate to grant such a declaration depends on the circumstances of that case;
(7) In assessing whether Prescribed Terms are "contained" in an executed agreement the principles set out at paragraph 173 above are relevant. On the assumed facts set out at paragraph 177 the Prescribed Terms were so contained;
(8) The claims that there was an unfair relationship and an IEA in Adris should be struck out or dismissed. The claim that there was an IEA in Yunis should be struck out or dismissed. The absence of any positive pleaded case or evidence as to the circumstances of the making of the agreement by the debtor concerned was fatal to the IEA claims. The absence of any positive plea or evidence as to particular facts relied upon in support of the unfair relationship claim other than failure to provide a s78 copy, was fatal to that claim.