Clarification re Statute Barred

[letitbeme]

Your a star - have submitted a positive feed to your rep

Regards LIBM

[MARTIN3030]

They are documents to which you are entitled CPR 31.14.

 

The rule is that he who asserts must prove - no documents no proof.

 

The case is either struck out or dismissed

 

 

 

 

 

 

Struck out or dismissed at the Judges discretion-its not an automatic assumption !!!

[I've got no money]

I think you need to be very careful about using phrases such as "the judge's discretion" :-

 

As far as dismissal is concerned IMHO if a claimant cannot produce evidence to support the claim then he cannot prove his case on the civil standard of proof. That, technically, is a question of law not discretion - if the judge finds against you that decision is open to appeal.

 

Strike Out for non compliance is slightly different - it all depends what the non compliance is. A party is entitled to "inspect a document mentioned in..." (CPR 31.14) as part of the disclosure process. Disclosure ALWAYS takes place BEFORE witness statements are exchanged. If you don't get proper disclosure then you can't do your witness statements and the case is never ready for trial. The fact that they've destroyed or lost the documents is no excuse. Whilst tecnically, I would agree with Martin3030, in many respects the decision on an unless Order is a matter of discretion that discretion has to be exercised judicially. If not it is open to appeal.

 

As an example I have a case where the other side have failed to comply with an Order for disclosure. They blamed a third party. The Judge stayed the proceedings for six months to allow them extra time to get the documents. If the documents (Credit Card Agreement and T & C's) the case will be struck out.

 

Where there is an absolute entitlement to something, as CPR 31.14 gives it would be virtually impossible for a Judge, ultimately, not to strike out if a party cannot or will not comply.

[I've got no money]

I should have said that if the documents in my case are not provided within the the six months then the case is automatically struck out. without the need for further order.

 

I think what is important is that you make an application on an N244 telling the court what the other side haven't done and telling the court what you want it to do rather than just writing a letter or turning up at a trial and asking the judge to adjourn because the other side haven't done something.

 

You need to be pro active - do unto others as they would do unto you - only do it first...

 

Believe me it works.

[ukaviator]

The Civil Evidence Act 1995 is one of the most important acts in the UK.

 

Section 8 states:

 

(1) Where a statement contained in a document is admissible as evidence in civil proceedings, it may be proved:

 

by the production of the original

 

whether or not that document is still in existence, by the production of a copy of that document or of the material part of it, authenticated in such a manner as the court may approve.

 

(2) It is immaterial for this purpose how many removes there are between a copy and its original.

 

A company presenting documents that have not been altered since its creation or has a clear audit trail that shows any and all changes since its creation holds a greater ‘weight’ than a document that cannot show these procedures.

 

Section 9 states:

 

(1) A document that is shown to form part of the records of a business or public authority may be received in evidence in civil proceedings without any further proof.

 

(2) A document should be taken to form part of the records of a business or public authority if there is produced to a court a certificate to that effect signed either by an officer of the business or authority to which the records belong.

 

The law can be interpreted to show that an original document is not the only admissible evidence in a civil court. Electronic copies of documents are acceptable so long as their integrity can be shown.

 

Key documents/application forms etc must be kept until 5 years after that business relationship has ended. This is a requirement of The Money Laundering Regulations 1993, 2003 and 2007.

 

If you do write to them again, a reminder of these laws may make them think again. No documents, no case.

[I've got no money]

Exactly - I think they have real problems if they can't produce the documens

[steven4064]

However, IMO s8(1) of the CEA 1995 does not apply to Consumer Credit Agreements. They are written agreemnents and arecovered by CPR Practice Direction 16 paragraph 7.3

7.3 Where a claim is based upon a written agreement:

 

(1) a copy of the contract or documents constituting the agreement should be attached to or served with the particulars of claim and the original(s) should be available at the hearing

[I've got no money]

Even better - they never serve copies of the agreements with the claim AND of course if they don't have originals then they can't be available at trial...

 

You know I'd never read that Practice Direction - the bit on HP is interesting as well...

 

That's one of the things I like about this forum is that you learn new things all of the time...We need tp change the standard defences to include that point and we need to start applying to strike out for non compliance

 

I think the concensus of opinion is that the claimant is screwed...

[steven4064]

The requirement to attach the agreement to the POC is waived in the case of a claim made through MCOL under poaragraph 5.3 of Practice Direction 7e

 

There is also Practice Direction 32 paragraph 13.1

Photocopies instead of original documents may be exhibited provided the originals are made available for inspection by the other parties before the hearing and by the judge at the hearing

 

It all boils dowb to what BRW keeps saying, CCAs in court, only originals will do

[I've got no money]

Oh yes - we should really have a thread of our own on directions - I know the requirements of CPR 32.13(1) - the old CCR was so much nicer

 

Don't forget there is invariably in fast track cases a direction dealing with inspection of the original - usually you have to request within 14 days of disclosure and have to be allowed to inspect within 14 days thereafter. Of course that is in addition to the requirement to have the original at court

 

You are absolutely right without the original they are stuffed. The way to deal with it in practical terms is to ask to inspect the original as soon as you can, they don't let you (because they haven't got it) you then get an Order, which they don't comply with and eventually get them struck out. That way you avoid having a trial.

[steven4064]

I appreciate that the FT gives you better disclosure but there is no way this case will get alloaced to the FT. Therefore we have to work with what is available in the SCT.

 

There is a thread on directions http://www.consumeractiongroup.co.uk/forum/bank-templates-library/147609-draft-order-directions-including.html

[I've got no money]

Yes - if the case is under 5k unless you have truly compelling reasons - you're stuck with the SCT

[I've got no money]

Hang on a sec - isn't this claim just under £7k - that makes it fast track

[I've got no money]

Yes - post 150 - claim on poc is £6774.55

[letitbeme]

Thanks to you all, for the clarification re the production of documents/copies or none production .

IGNM - ignore my PM , have resolved the problem.

[steven4064]

Sorry IGNM, I'm on two different threads ATM - it's the other one that's

[I've got no money]

Steven,

 

Tell me about it - I'm struggling keeping up with the threads...

[steven4064]

I'm subscribed to 2121 threads

[I've got no money]

That's a full time job...

[steven4064]

Fortunately many of them are not active - I just looked as a matter of interest and I viewed 350 of my subscribed threads in June and posted on most of those, some many times.

 

I need to get out more

[ODC]

It is not unknown for DCAs/Creditors to make a nominal payment to extend the shelf life of a debt. This makes it worth more to the leeches that are debt purchasers.

 

MBNA MUST prove you made the payment.

[letitbeme]

Thanks ODC, I have taken on board your comment “MBNA MUST prove you made the payment.” Cold you explain regarding what proof MBNA must provide.

 

On the point of a token payment on the account by the DC. They did try and pay the £1 PO (CCA request payment) on the account, but I sent a letter stating that the payment was for the CCA request and not a payment towards the debt.

[letitbeme]

Could some one explain what my options are in relation to a draft order that I want to submit to the court?

 

I want the court to order the claimant to supply the following documents

 

Default Notice

Letter of assignment

All account statements for the duration of the account

A full breakdown of the total amount claimed, including all charges

 

The problem that I am facing is the claimant in its reply to my defence states that MBNA are not required to hold copies of the default notice after six years and the claimant is therefore unable to produce a copy of the same.

 

Again in a letter from MBNA they state

 

“As stated in the previous letter, MBNA no longer have system notes from 2000 – 2001.

 

You requested copies of the following in your letter:

 

Default notice – the default was issued in AUGUST 2001. As this is over six years ago, we are legally no longer required to hold a copy of this.

 

Letter of assignment – Link informed us that they issued this to your correct address in April 2005. If you require a further copy, please contact Links Legal Department.

 

A full breakdown of the disputed debt – as stated in my earlier letter, we do not hold statements over six years old therefore we cannot provide this.”

 

 

 

A copy of a letter of assignment dated April 2005 was sent to me by the claimant, but it was a copy of Links letter informing me that they are now the owners of the debt.

 

I have not revived a letter from MBNA as required for the assignment to be legal.

 

MBNA say they do not hold documents longer than six years and are therefore unable to comply with my request.

 

What I’m saying is if I request the relevant documents using N244 (Court order) and the claimant turns up at the allocation hearing and states that the documents are not available, but we do have a copy of the letter of assignment that we sent to the defendant and we also have a copy of the offer letter from MBNA re the sale of the debt. What would the outcome be

[letitbeme]

OK – This is the draft order that I intend to send later on this afternoon

 

 

 

 

 

In the ************* County Court

 

 

 

Claim number **********

 

 

Between

 

************* - Claimant

 

 

and

 

 

xxxxxxxxxx - Defendant

 

 

 

Draft Order for Directions

 

 

The Claimant shall within 14 days of service of this order send to the Defendant and to the Court:

 

 

 

1. A clear and readable copy of the Credit Agreement and any documents referred to within it which complies with the consumer Credit Act 1974 and all subsequent regulations, which the claimant seeks to rely upon

2. Default Notice compliant with s87 (1) Consumer Credit Act 1974 and Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) as amended

3. Notice of assignment issued by MBNA,

4. Proof of service of the Notice of assignment compliant with s196 of the Law of Property Act 1925.

5. Document, contract or deed of assignment

6. Copies of account statements for the duration of the account.

7. A full breakdown of the total amount claimed and including all charges added.

8. Any other document relied upon

 

If the Claimant fails to comply with this order, the claim will be struck out without further order.

 

 

 

 

 

 

The Defendant shall within 14 days thereafter file and serve the following

• An amended defence sufficiently particularised in response to the documents supplied by the claimant
  

If the Defendant fails to comply with this order, the Defence will be struck out without further order.

 

 

 

 

 

If the court is in agreement, the defendant respectfully requests that special directions may be given as per the attached draft order.

 

I have on two occasions requested copies of the relevant documents: 24th July 2007, 6th April 2008 (Please see the attached letters and proof of postage, proof of receipt).

The defendant proposes these directions in mind of the Overriding Objectives, and in particular the duty of the parties to help the court further them. The issues outlined below are the crux upon which this claim rests, and the proposed directions identify these issues and will allow them to be assessed in advance of the hearing so that this claim may proceed justly and expeditiously;

 

without production of the requested documents, I am at a disadvantage and am unable to serve a proper defence. Failure of the claimant to supply the requested documentation will make the case much harder for the court to deal with as without production of the requested documentation will inhibit the courts ability to deal with the case

 

It is respectfully requested this case be allocated to the small claims track, it is a straight forward case and is easily resolved on production of the required documentation by the claimant, should the claimant not have the documentation required to progress this case I suggest that there will be no case to answer

 

Therefore it stands to reason that the documents must be disclosed before this case can progress any further

[steven4064]

Looks good.

 

You could mention that one/both of the occasions when you have asked for documents it was under CPR Part 18.