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

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*** PLEASE NOTE **

 

There has been some major changes to Court Procedure Rules

- Please either speak to a site team member or look through our library to obtain the most up to date letters **

 

 

 

 

 

In the time I have been a member of the site I have seeen a number of examples where a member is being forced along with a legal case in a situation where the creditor is unwilling from the outset to provide a legible copy of the agreement sued upon.

 

Sometimes they produce fuzzy copies. Sometimes they produce only part of the agreement, not all of it. Sometimes they don't produce it all and claim that owing to the decision in Rankine, they can proceed with the case regardless of whether they can bring the agreement into court.

 

The ability of the Defendant to know how best to deal with the claim they are required to meet is impaired where a legible copy of the entire agreement is unavailable from the outset. For example, they will not know whether to plead that the agreement is unenforceable. Pleading that it is unenforceable without actually having an opinion on whether it is or is not enforcerable could be dangerous. Pleading that it is unenforceable will place the onus of proving that fact upon the debtor. That may place an insurmountable obstacle in circumstances where later on in the case, something less than full disclosure of the agreement occurs, or where the creditor serves witness statements which are designed to present to the court a re-construction or version interpretation of the agreement.

 

I have seen a number of situations where the Defendant has been encouraged to deliver what is termed a CPR Request or CPR Part 18 request. Versions of the request I have seen often demand disclosure of documentary material akin to the kind of information sought in a Data Protection Act S.A.R - ( Subject Access Request). Rarely do they genuinely seek Further Information by way of clarification of an issue raised in the case and which could not be dealt with during standard disclosure. As such, these requests have the habit of being refused as not being reasonable and proportionate. In cases where the sum involved is not more than £10,000, the Claimant answers by reference to CPR 27.2(f), saying that Part 18 does not apply.

 

Besides wishing to take an opinion on the agreeent, the Defendant will want to know whether to plead the default notice was ineffective, whether the Claimant's claim to have a right to sue as assignee of the debt is valid. If the agreement is unenforceable, the default notice is defective or the assigment is invalid, any one of these features will operate as a complete defence to the alleged liability.

 

In my view the proper thing for the debtor to do in those circumstances is to strike as quickly as possible; to go on the offensive and wrestle control of the case away from the Claimant by asserting rights which the Claimant must comply with before the Defendant becomes obliged to elect how to plead the Defence.

 

Such a right is found in CPR 31.14 and is concerned with the disclosure of documents mentioned in pleadings, the very place where the Claimant will refer to the agreement relied upon in even the most sparingly particularised claim.

 

I have therefore drawn up a draft of such a letter which I would recommend delivering to Claimants in a proper case so soon as possible after receipt of the Claim Form. It looks like this:

 

Dear Sir,

 

Re: (Claimant's name) v (Your name) Case No:

CPR 31.14 Request

 

On (date) I received the Claim Form in this case issued by you out of the (Name) County Court.

 

I confirm having returned my acknowledgement of service to the court in which I indicate my intention to contest all of your claim.

 

[Prior to the issue of proceedings I had delivered a request for the production of the agreement mentioned in the Claim Form and on which you rely. That request was ignored][delete if no such request was delivered]

 

Please treat this letter as my request made under CPR 31.14 for the disclosure and the production of a verified and legible copy of [each of the following / the] document(s) mentioned in your Particulars of Claim:

 

1 the agreement. You will appreciate that in an ordinary case and by reason of the provisions of CPR PD 16 para 7.3, where a claim is based upon a written agreement, 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. Further, that any general conditions incorporated in the contract should also be attached.

 

2 the assignment*

 

3 the default notice*

 

4 the termination notice*

 

5 [any other documents mentioned in the Particulars of Claim]*

 

* delete if not mentioned in the Particulars of claim.

 

[Although your claim is for a sum which is not more than £10,000.00 and will in all likelihood be allocated to the small claims track for determination upon my delivering a defence, at this moment in time I have not delivered my defence and the case has not been allocated to a track. In consequence the provisions of CPR 27(2) are of no effect and you should not seek to avoid compliance with your CPR 31 duties by claiming otherwise]#

 

# delete if claim for a sum exceeding £10,000

 

You should ensure compliance with your CPR 31 duties and ensure that the document(s) I have requested are copied to and received by me within 7 days of receiving this 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. Further, where I have requested a copy of a document, the original of which is now in the possession of another person, you will have a right to possession of that document if you have mentioned it in your case. You must take immediate steps to recover and preserve it for the purpose of this case.

 

Where I have mentioned a document and there is in your possession more than one version of that same document owing to a modification, obliteration or other marking or feature, each version will be a separate document and you must provide a copy of each version of it to me. Your obligations extend to making a reasonable and proportionate search for any version(s) to include an obligation to recover and preserve such version(s) which are now in the possession of a third party.

 

In accordance with CPR 31.15© I undertake to be responsible for your reasonable copying costs incurred in complying with this CPR 31.14 request.

 

If you require more time in which to comply with this request you must tell me in writing. You must tell me before the time for compliance with this request has expired. In telling me you require more time you must tell me what steps you have taken and propose to take in order to comply with this request and also state a date by when you will comply with this request. In addition your statement must be accompanied with a statement that you agree to an extension of the time for me to file my defence. Your extension of time must be not less than 14 days from the date when you say you will have complied with my request and you must state the new date for filing my defence.

 

If you are unable to comply with this request and believe that you will never be able to comply with this request you must tell me in writing.

 

Please note that if you should fail to comply with this request, fail to request more time or fail to agree to an extension of time for the filing of my defence, I will make an application to the court for an order that the proceedings be struck out or stayed for non-compliance and a summary costs order.

 

I do hope this will not be necessary and look forward to hearing from you.

 

yours faithfully

I hope this draft will prove useful to site members experiencing uncertainty as to how best to deal with the claim where they do not have what are highly relevant documents.

 

 

x20

Edited by Andyorch
the typo noticed by FF - quotes round actual draft - amended sum for court - new level for small claims removed toApplication
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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

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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

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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.:D

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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 £10,000.00 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 £10,000.00 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 DQs 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 £10,000.00.

 

Hope this clears your query up.

 

x20

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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

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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

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Please treat this letter as my request made under CPR 31.14 for the disclosure and the production of a verified and legible copy of [each of the following / the] document(s) mentioned in your Particulars of Claim:

 

1 the agreement. You will appreciate that in an ordinary case and by reason of the provisions of CPR PD 16 para 7.3, where a claim is based upon a written agreement, 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. Further, that any general conditions incorporated in the contract should also be attached.

 

2 the assignment*

 

3 the default notice*

 

4 the termination notice*

 

5 [any other documents mentioned in the Particulars of Claim]*

 

* delete if not mentioned in the Particulars of claim.

 

 

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 :).


I really do appreciate all those 'thank you' emails - I'm glad I've been able to help. Apologies if I haven't acknowledged all of them.

You can also ding my gong if you prefer. :)

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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

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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.

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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

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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

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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 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

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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

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Crikey x20!:eek: 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

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Hello all,

 

I have already posted this on another thread...

Is My Agreement Enforceable - Useful

 

I believe it could be also useful here....

 

Hello all,

 

This may be useful if have to proceed to court and a COPY of the CCA is going to be produced.

 

Results within legislation - Statute Law Database

 

There is also information in Draft Order for Directions

 

Draft order for directions - including directions for disclosure

 

The general gist is as follows para e onwards is the legal requirement:

 

For claims or defences based on agreements regulated by the Consumer Credit Act 1974 if no enforceable copy of the agreement has been sent:

 

a) a copy of the executed agreement regulated by the Consumer Credit Act 1974 for the account

 

For a loan or hire purchase agreement

 

b) a statement signed by or on behalf of the [Claimant] [Defendant] (whichever is the loan company) showing, according to the information to which it is practicable for him to refer,--

(i) the total sum paid under the agreement by the [Claimant] [Defendant] (whichever you are);

(ii) the total sum which has become payable under the agreement by the [Claimant] [Defendant] (whichever you are) but remains unpaid, and the various amounts comprised in that total sum, with the date when each became due; and

(iii) the total sum which is to become payable under the agreement by the [Claimant] [Defendant] (whichever you are), and the various amounts comprised in that total sum, with the date, or mode of determining the date, when each becomes due.

 

For a credit card

 

b) a statement signed by or on behalf of the [Claimant] [Defendant] (whichever is the loan company) showing, according to the information to which it is practicable for him to refer,--

(i) the state of the account,

(ii) the amount, if any currently payable under the agreement by the [Claimant] [Defendant] (whichever you are) to the [Claimant] [Defendant] (whichever is the loan company), and

(iii) the amounts and due dates of any payments which, if the [Claimant] [Defendant] (whichever you are) does not draw further on the account, will later become payable under the agreement by the [Claimant] [Defendant] (whichever you are) to the [Claimant] [Defendant] (whichever is the loan company).

 

General

 

c) copies of Default Notices (if any) issued pursuant to s87(1) of the Consumer Credit Act 1974 by the [Claimant] [Defendant] (whichever is the loan company) to the [Claimant] [Defendant] (whichever you are)

 

d) a copy of any Notice of Assignment to the [Claimant] [Defendant] (whichever is the loan company) relating to the [Claimant’s] [Defendant’s] (whichever you are) account

 

e) if copies of any of the above documents are to be relied on in court rather than originals, a copy of the Notice of proposal to adduce hearsay evidence required under s2(1) of the Civil Evidence Act 1995 together with proof of the authenticity of the document(s) as required under s8(1)(b) of the Act, including but not limited to:

 

(i) a copy of the procedure(s) used for copying, storing and retrieving documents

(ii) a copy of the relevant log entry showing the time and date of the scan or copy, the name of the member of staff making the copy, the method used for copying, storage and retrieval and time and date of destruction of the original document(s)

(iii) copies of internal and external audit reports covering the entire period from the date of the copy to the present to demonstrate that the procedures have been complied with

(iv) copies of Quality Assurance accreditation certificates covering the entire period from the date of the copy to the present to demonstrate that the procedure(s) and audit process(es) comply with the appropriate quality standards

 

hope this is of use:-)

 

aa

 

The more people are aware of this the better.:)

 

aa


I have no legal training and the advice I offer is a matter of support. Before you commit to any Legal action you are advised to contact a qualified legal practitioner.

------------------------------------------------

Bank charge successes:

Halifax - Full settlement incl interest.

HSBC - Settlement, goodwill no admission of liability about 75% of claim.

RBS - Settlement, goodwill no admission of liability about 70% of claim.

2 ongoing claims for bank charges with HSBC with more to come. (Supreme Court ruling could have upset these claims) They did :mad:

PPI Successes

PPI 4 settlements on 9 loans. FOS involvement on 7 added on the 8 % Statutory interest another 30% to both.

2 claims settled in full with LV without FOS involvement.

2 claims settled in full with HSBC without FOS involvement

 

PPI Claims ongoing with:

Cap one Now with the FOS

Barclays. Paid up today 24/04/10 cheque received for over £4,500 and in the bank.

LTSB still have to decide on this as their SAR production was abysmal. Papers data mixed up documents missing etc

1 Complaint not upheld by FOS they said it was ICO issue. Complaint upheld by ICO. See this..

Post 290 from

***RBS PPI Claim Long fight but, WON***

Please do not PM me for advice as it may be sometime before I can respond.

 

Keep at them. Do not give way and do not accept all they tell you, they will delay and stall for as long as they can to prevent repaying you your mis-sold PPI.

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Hello x20 and thank you for the scales tip:)

 

Can you tell me if the CEA 1995 has any relevance to the CPR 31 in respect of authenticated copies of the CCA when requested by a DSAR or CCA request?

 

Total novice with legal stuff but I like to help folks when I can:-?

 

aa


I have no legal training and the advice I offer is a matter of support. Before you commit to any Legal action you are advised to contact a qualified legal practitioner.

------------------------------------------------

Bank charge successes:

Halifax - Full settlement incl interest.

HSBC - Settlement, goodwill no admission of liability about 75% of claim.

RBS - Settlement, goodwill no admission of liability about 70% of claim.

2 ongoing claims for bank charges with HSBC with more to come. (Supreme Court ruling could have upset these claims) They did :mad:

PPI Successes

PPI 4 settlements on 9 loans. FOS involvement on 7 added on the 8 % Statutory interest another 30% to both.

2 claims settled in full with LV without FOS involvement.

2 claims settled in full with HSBC without FOS involvement

 

PPI Claims ongoing with:

Cap one Now with the FOS

Barclays. Paid up today 24/04/10 cheque received for over £4,500 and in the bank.

LTSB still have to decide on this as their SAR production was abysmal. Papers data mixed up documents missing etc

1 Complaint not upheld by FOS they said it was ICO issue. Complaint upheld by ICO. See this..

Post 290 from

***RBS PPI Claim Long fight but, WON***

Please do not PM me for advice as it may be sometime before I can respond.

 

Keep at them. Do not give way and do not accept all they tell you, they will delay and stall for as long as they can to prevent repaying you your mis-sold PPI.

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Hello x20!

 

I wonder if you could please comment on something that has just cropped up in one of my battles. This is directly related to the CPR 31.14 issue, hence my Posting to this Thread.

 

I have one Court Case looming where, at least until the POC appeared, only a crabby single page Application Form copy has ever been produced via my s78(1) Request and again via S.A.R - ( Subject Access Request). These copies had no Prescribed Terms.

 

Then, all of a sudden, a better looking copy with a 2nd Page of what looks like Prescribed Terms has now appeared in the Court POC?

 

I'm not 100% convinced they have an original Copy of a 2-sided Application Form, but it's possible this is what they have found. Or they may have just found a better Photocopy of my Application, and another Copy if what may've been the rear of the main page. It's not certain the two Pages in the POC were copied from the same Original...the quality is still not perfect, and the 2nd Page seems to be slightly less clear than the first page, suggesting even this latest attempt is cobbled together from two Documents, or even copies of two Documents.

 

I do have original Copies of both that I made myself, i.e. 1st generation copies taken from original documents, and my copies are perfect, in line with a copy taken straight from an original. I regret I do not know now if the two pages were back to back, or on two Sheets.

 

However, in terms of what they have now sent me, I have now seen two main versions of the Document they are saying is my Agreement. Namely the single Page copies sent via s78(1) and again via S.A.R - ( Subject Access Request), and then the better quality version sent in the POC that now includes a 2nd Page that has not, thus far, appeared beforehand in anything they have sent me.

 

The OC went ahead to Default (invalid Default as it happens, as 14 Days were not allowed from Date of Service) before this new version appeared, and they went ahead to Terminate as well, on the back of this invalid Default.

 

I only have 2 weeks to submit my Defence and Counter-Claims, but thought I may try to use the CPR 31.14 angle straight away to ask them to clarify what this new Document really is.

 

IOW, can I use CPR 31.14 if they have included both a front and back page of what they are claiming to be my Agreement?

 

By that, I mean that have not forgotten to include it in the POC, so I simply wish to question what they have included, to try and pin them down to make sure they do admit if they have the Original and/or make it clear via CPR PD 16 7.3 that they must bring this along to Court.

 

This issue may be a lost cause, i.e. if they have the Original, then my Defence will be based on Invalid Default and then Counter-Claims for Harassment, Unlawful Charges and perhaps a related Loan that has mis-sold PPI and a faulty Agreement (they failed to send Cancellation Rights).

 

One final comment, the only document mentioned (and included) in their POC was the above two page Application Form. They have not mentioned nor included the Default Notice (funny that)!

 

Many thanks in advance for your thoughts.

 

Cheers,

BRW

Edited by banker_rhymes_with
Typo.

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Hello x20!

 

I wonder if you could please comment on something that has just cropped up in one of my battles. This is directly related to the CPR 31.14 issue, hence my Posting to this Thread.

 

I have one Court Case looming where, at least until the POC appeared, only a crabby single page Application Form copy has ever been produced via my s78(1) Request and again via S.A.R - ( Subject Access Request). These copies had no Prescribed Terms.

 

Then, all of a sudden, a better looking copy with a 2nd Page of what looks like Prescribed Terms has now appeared in the Court POC?

 

I'm not 100% convinced they have an original Copy of a 2-sided Application Form, but it's possible this is what they have found. Or they may have just found a better Photocopy of my Application, and another Copy if what may've been the rear of the main page. It's not certain the two Pages in the POC were copied from the same Original...the quality is still not perfect, and the 2nd Page seems to be slightly less clear than the first page, suggesting even this latest attempt is cobbled together from two Documents, or even copies of two Documents.

 

I do have original Copies of both that I made myself, i.e. 1st generation copies taken from original documents, and my copies are perfect, in line with a copy taken straight from an original. I regret I do not know now if the two pages were back to back, or on two Sheets.

 

However, in terms of what they have now sent me, I have now seen two main versions of the Document they are saying is my Agreement. Namely the single Page copies sent via s78(1) and again via S.A.R - ( Subject Access Request), and then the better quality version sent in the POC that now includes a 2nd Page that has not, thus far, appeared beforehand in anything they have sent me.

 

The OC went ahead to Default (invalid Default as it happens, as 14 Days were not allowed from Date of Service) before this new version appeared, and they went ahaed to Terminate as well, on the back of this invalid Default.

 

I only have 2 weeks to submit my Defence and Counter-Claims, but thought I may try to use the CPR 31.14 angle straight away to ask them to clarify what this new Document really is.

 

IOW, can I use CPR 31.14 if they have included both a front and back page of what they are claiming to be my Agreement?

 

By that, I mean that have not forgotten to include it in the POC, so I simply wish to question what they have included, to try and pin them down to make sure they do admit if they have the Original and/or make it clear via CPR PD 16 7.3 that they must bring this along to Court.

 

This issue may be a lost cause, i.e. if they have the Original, then my Defence will be based on Invalid Default and then Counter-Claims for Harassment, Unlawful Charges and perhaps a related Loan that has mis-sold PPI and a faulty Agreement (they failed to send Cancellation Rights).

 

One final comment, the only document mentioned (and included) in their POC was the above two page Application Form. They have not mentioned nor included the Default Notice (funny that)!

 

Many thanks in advance for your thoughts.

 

Cheers,

BRW

 

 

Serve a Notice to prove (N256)

 

The requested resource (/HMCSCourtFinder/tiles/Her Majesty's Courts Service -Forms and Guidance) is not available

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I like your style but the above raises a question in my mind: does it help the creditor's case or the consumer's if the court accepts an unreadable document as a copy of the original agreement? Presumably this depends on the degree of unreadability?

 

If it's unreadable how do you know it's a credit agreement at all? It could be a page out of the bible...

Otherwise it must be, at least partially, readable.

  • Haha 1

I really do appreciate all those 'thank you' emails - I'm glad I've been able to help. Apologies if I haven't acknowledged all of them.

You can also ding my gong if you prefer. :)

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Can I ask, is it too late to employ the CPR 31.4 at allocation stage? MBNA have admitted they do not have a copy of my application and only supplied 6 pages of T & C's stating this was the agreement and I got a very rude reply from Optimistic legal to my CPR 18 request i.e. that they were not going to allow me to conduct what they perceived to be a "fishing exercise"!

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Miss Muppet,

It's not so much lateness, more that, CPR 31.14 is the very earliest procedural means of obtaining access to some of the vital documents in the Claimant's case. I pointed the rule out as a swifter, CPR regulated alternative to CCA 77/78 requests, and SARS.

 

Unfortunately CPR 31.14 limits what can be obtained to just documents mentioned in the Particulars of Claim or other statements and statements of case. By the time the case has reached allocation the court will embark on directing the parties to give a much wider disclosure of documents, namely standard disclosure which requires the disclosure of documents which not only go to support a party's case, but also those which go to support that party's opponent's case or which tend to undermine its own.

 

In those circumstances there would be little benefit in making a CPR 31.14 request. Await the issue of an order for the wider requirements of standard disclosure.

 

x20

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What are the implications, if any, for a claimant who totally ignores a CPR 31.14?

(Twice in my case!).

 

PV :-)


LOWELLS-Stat Demand Set Aside-No CCA & Statute Barred-£1800-Gone Away-April 2008

 

Scotcall on behalf of Cabot-£2200-no CCA returned to Cabot-file closed-March 2009

 

Cabot-Court Claim issued despite no CCA and Stat Barred-Claim discontinued-March 2009

__________________________________________

 

IF I HAVE BEEN HELPFUL PLEASE CLICK MY SCALES. :)

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The fee payable to the court on filing this application is presently £100.00./£255.00

 

 

Am I right in thinking you get this back?

 

Also just to confirm the CPR request should be sent as soon as the claim form arrives.

 

 

HAK

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