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

[redsue]

surfaceagentx20 - thank you for this fabulous gem of a thread.

 

I'm in a situation where I am keen to take the CC company to court to stop them from ruining my credit file.

 

I've a long running thread here http://www.consumeractiongroup.co.uk/forum/mbna/81907-mbna-ding-ding-round.html#post729106

 

which I won't bore you with but to quickly recap, they have admitted in writing that they do not have the prescribed terms.

 

They refuse to answer any of my letters now and as far as I know have not sold it on. But they continue to damage my credit file with a default - no official DN served - I'm currently waiting on another SAR from them to try and dig up this DN.

 

Could CPR 31.14 be used as a claimant? I'm keen to have this issue cleared up once and for all - I'd like the agreement deemed unenforceable with s 127 in court.

[surfaceagentx20]

Sue,

CPR 31.14 is simply a device for obtaining disclosure of a specific brand of documents in litigation. It is procedural only. It can not be used to create a right to sue.

 

Consumer Credit Act 1974 section 127 deals with the range of situations where an application for an enforcement order might be made by the creditor. If you were inclined to be pro-active (and it is for you to weigh up the upside and the downside of going after your creditor in the way you chose to), it seems to me the better approach would be under section 142(1)(b) for a declaration.

 

x20

[redsue]

thanks x20 - I've held back from pursuing this as I know if will most probably come down to a district judge to rule on this and that is where the problem lies

 

How can a DJ possibly know the in's and out's of the CCA 1974?

[surfaceagentx20]

Judges can't be expected to know the ins and outs of the Act any more than they can be expected to know the ins and outs of any other Act either. They rely on the ability of the litigants to refer the court to whatever parts of the legislation they believe will further their case.

 

It's much the same with any complicated evidence based case. How else can a Judge be expected to know the ins and outs of and rule on the alleged unsatisfactory condition of say a state of the art race built motor-cycle braking system?

 

Our system for resolving civil litigation disputes is heavily reliant on quality advocates.

 

x20

[chlorochrome]

Hello there,

 

I'm new to these forums and encouraged by this particular thread. Am I albe to use the draft template of this letter when a CCJ has been set aside, as it was this week upon my application? I attended a short hearing and was unopposed. The judge could see the original CCJ claim forms were returned to the court, status Gone Away, because I had moved address, although I didn't inform the creditors of this. It does show up however on my Experian credit report that the creditors had a insight update placing me at my correct address some two months before they issued a claim. The debt dates back to 2004. The CCJ was recorded in 2005. I only discovered it by viewing my credit report recently.

 

I sent a letter by recorded delivery to the creditors on 23rd October 2008 requesting a copy of my credit agreement and a statement of account under the provisions of the Consumer Credit Act 1974 (sections 77-79). I enclosed the £1 fee required by the Act and said that it was my understanding that if I haven't received the necessary information within 12 working days, then the debt was unenforceable until they did. I note from the Royal Mail tracking service the letter was signed for it's receipt at the creditors on 27th October so the twelve working days have now passed. I briefed the judge on all of this.

 

I was in court on Tuesday so I'm still yet to receive the judge's set aside order and directions. She did mention giving the applicant 21 days to reply, presumably to resubmit the claim.

 

Hoping you can help.

 

Thank you,

 

Chlchr.

[surfaceagentx20]

Chloro,

In your case the default judgment was set aside for bad service. That judgment would relate to a Claim Form issued as long ago as 2005. Before taking any further steps in the case I would await receipt of the order to see precisely what the Judge was saying about any 're'-service of the Claim Form. I mention this because after having found the Claim Form had not been served techincally there could not be a 're'-service, and ordinarily it would now be too late for the Claimant to effect service of a Claim Form issued way back in 2005. Consider CPR 7.5(1).

 

You say your application was unopposed. Does that mean the Claimant was unrepresented or attended but consented? If the Claimant failed to attend it would suggest the Claimant may no longer be interested in the case. Alternatively and if the Claimant attended, do you recall whether the representative sought permission to extend the time for service of the Claim Form under CPR 7.6? Was permission granted?

 

As I say, if you are not sure I would leave taking any further steps until receipt of the order. But bear CPR 7.5 and 7.6 in mind. Let me know the position when the order comes in.

 

x20

[chlorochrome]

Chloro,

In your case the default judgment was set aside for bad service. That judgment would relate to a Claim Form issued as long ago as 2005. Before taking any further steps in the case I would await receipt of the order to see precisely what the Judge was saying about any 're'-service of the Claim Form. I mention this because after having found the Claim Form had not been served techincally there could not be a 're'-service, and ordinarily it would now be too late for the Claimant to effect service of a Claim Form issued way back in 2005. Consider CPR 7.5(1).

 

You say your application was unopposed. Does that mean the Claimant was unrepresented or attended but consented? If the Claimant failed to attend it would suggest the Claimant may no longer be interested in the case. Alternatively and if the Claimant attended, do you recall whether the representative sought permission to extend the time for service of the Claim Form under CPR 7.6? Was permission granted?

 

As I say, if you are not sure I would leave taking any further steps until receipt of the order. But bear CPR 7.5 and 7.6 in mind. Let me know the position when the order comes in.

 

x20

 

Hello and thank you for replying surfaceagentx20

 

I received the order through the post today. There are 2 points.

 

IT IS ORDERED THAT

 

1. The default judgement dated November 7th 2005, be set aside

 

2. The claimants do serve the defendant with particulars of claim and a response pack by 4pm on 9th December 2008

 

The claimants weren't represented at the hearing. I was there alone. I should also point out that the amount claimed is only a three figure sum.

 

Do you still believe it's best to wait and not pre-empt anything by sending the template letter, bearing in mind the claimants haven't responded to my request for the Credit Agreement + statement of account under the CCA 1974 (sections 77-79), and it's well past the 12 working days now.

 

Thank you again.

[surfaceagentx20]

 

Do you still believe it's best to wait and not pre-empt anything by sending the template letter, bearing in mind the claimants haven't responded to my request for the Credit Agreement + statement of account under the CCA 1974 (sections 77-79), and it's well past the 12 working days now.

 

Thank you again.

 

I sure do.

 

x20

[surfaceagentx20]

CPR 18 is intended to be a means of enabling parties to litigation to obtain clarification of points in issue. If a point in issue is the way in which an account is made up, what constitutes a debit for goods and services, interest and charges and so on, then CPR 18 may be used to obtain that clarification.

 

Part 18 is generally excluded from CPR Part 27 by CPR 27.2(f), though CPR 27.2(3) enables the court to direct a party to furnish further information. Defendants facing claims for less than £5,000.00 face difficulties where a Claimant is unwilling to co-operate even though until such time as the case is allocated to track, it remains 'trackless'. The Claimant will quote CPR 27.2(f) and further may say that until a Defence has been served, technically there is no point on the Particulars of Claim which is in issue.

 

In those circumstances a Defendant unable to obtain disclosure of documents because the documents sought are not mentioned in the Particulars of Claim, or voluntary clarification as to the way in which an account is made up, but who wishes to obtain this information prior to serving a Defence, will need to make a prompt application to the court. He should first seek the documents or the clarification and in his letter to the Claimant make it crystal clear that a failure to respond will result in an application to the court, much in the way I drafted the CPR 31.14 letter. And much in the same way, I would include the paragraph dealing with CPR 27 in the letter. The Defendant needs to explain all this in his letter because he must make his application to the court promptly if the Claimant refuses to cooperate and he will want to show in his application that he explained why he wanted the disclosure or clarification and gave an opportunity to the Claimant to cooperate.

 

Any answer refusing will also be of assistance, especially if it fails to give an adequate reason. Reasons like 'CPR 27.2(f)' or 'the Particulars are sufficiently particularised' (so long as they are not) are not adequate. In my view it would be reasonable to refuse so much of a CPR 18 Request concerned with a S.A.R - (Subject Access Request) by the back door, or requests which were intentionally designed to be broadly drawn. Far better in a CPR 18 Request to be specific and on the point in issue. Besides the letter requesting the material, the Defendant will want to show the court the Claimant's unreasonable refusal as well. This will assist in obtaining an order and in obtaining a favourable costs order upon the application.

 

In the application, besides seeking an order for disclosure or clarification or whatever, the Defendant should also seek an extension of time for the service of his Defence.

 

x20

[andrew1]

Could any of this CPR 31 section be used to get a party to reveal the thinking behind a Part 36 offer? I have a situation where a Tomlin Order has been produced following a Part36 offer which I accepted http://www.consumeractiongroup.co.uk/forum/legal-issues/159980-36-offers-4.html and I believe it to have been abused. I have a few days in which I could attend a settlement meeting, but I would need to ask the OC for the thinking behind their P36 and I can guarantee they will hide behind 'Legal Privilege' is there a way I can obtain this using these CPR regs?

 

 

.

[chlorochrome]

Hello and thank you for replying surfaceagentx20

 

I received the order through the post today. There are 2 points.

 

IT IS ORDERED THAT

 

1. The default judgement dated November 7th 2005, be set aside

 

2. The claimants do serve the defendant with particulars of claim and a response pack by 4pm on 9th December 2008

 

The claimants weren't represented at the hearing. I was there alone. I should also point out that the amount claimed is only a three figure sum.

 

Do you still believe it's best to wait and not pre-empt anything by sending the template letter, bearing in mind the claimants haven't responded to my request for the Credit Agreement + statement of account under the CCA 1974 (sections 77-79), and it's well past the 12 working days now.

 

Thank you again.

 

 

A quick update on this -

 

Firstly, I received what can only best be described as a sort of compliments slip from the financial arm of Redcats, based in Bolton who returned my letter requesting the statement of account under the CCA 1974, and a standard reply claiming that they have no record of my account with the reference or name and address submitted. They had stamped it as received on the 19th November.

 

I'm not certain as to whether this is good news or not. They have cashed the £1 cheque which I attached, the fee payable under the CCA 1974 requirements but I'm still yet to receive any formal particulars of claim, as ordered by the judge, to be served by 4pm on the 9th December.

 

What can I do if they don't serve me by the 9th and why are Exqifax telling me I must give them a certificate of satisfaction to amend their file records when both Experian and CallCredit have confirmed that the CCJ has automatically been removed from the Register of Judgements AND my credit files with them.

 

Lastly, there is a still the Redcats default on my file pertaining to the CCJ. If they don't respond, can I get the default removed from my file as well?

 

Thank you.

[andrew1]

What would be the procedure to request the details from a sub-prime lender to reveal the agreement it had with a broker to pay them commission? I have read this parliamentary debate (which I have also posted on the mortgage & Secured loans threads) which states that a broker selling a sub-prime loan, as well as getting a brokers fee from the borrower also sometimes gets a fee from the company too - a 'secret commission'

 

I'd like to know how we can do 2 things. 1) ask the Loan co for a copy of their agreement with the broker 2) find out if our mortgage has been securitised (sold on) therefore leaving the lender with the Land Registry charge actually not the owner at all - (read the link) I just need to know how to ask?...thanks

 

makes an interesting read believe me.... House of Commons Hansard Debates for 16 Oct 2001 (pt 5)

 

 

 

.( 3000 posts - jeez I must get a life! )

[surfaceagentx20]

chlorochrome,

If you are not served by 9 December 2008 and the Claimant wishes to carry on with the action, the creditor will be obliged to apply to the court for an extension of time in which to comply with the earlier order. It seems to me to be highly unlikely the Claimant will do that. They did not attnd to oppose your application and have not since complied with the order.

 

Further still, and what surprised me about the order, was that if the judgment had been entered as long ago as November 2005 the claim form will therefore be over 4 months old. A claim form is only valid for service up to 4 months beginning with the date of its issue [see CPR 7.5(2)] and could not be validly served without an order extending the time for service. I assume the Claim Form and Particulars of Claim were not a separate document. Perhaps implicit in the order directing service by 9 December 2008 was an extension of the 4 month limit but I notice the order only referred to Particulars of claim and not the Claim Form. It is the service of ther Claim Form upon the Defendant which obliges the Defendant to answer to the court's jurisdiction, not the Particulars of Claim.

 

Be that as it may, if you wished to take further steps after 9 December you may submit a notice to the Claimant under CPR 7.7 requiring service of the Claim Form within 14 days and in default of service, apply to the court for an order directing that the claim be struck out for the Claimant's failure to comply. Alternatively, you could simply make the application without prior service of the notice on the basis of the default in compliance with the earlier order.

 

As for the defaults, I'm no grand fromage when it comes to things which aren't before the courts. If you decide to make an application for an order dismissing the claim under CPR 7.7 or for default in compliance with the erlier order, you could tack on as a consequence of dismissal of the action a reference to an order directing the Claimant to cause the withdrawal and deletion of adverse credit data concerning you. My real difficulty with that is that part of the order would be in the nature of an injunction and you have not sought an injunction order in these proceedings. That said, it would not be the first time a peculiar order resulted from an application.

 

x20

[surfaceagentx20]

Andrew,

The procedure is that provided for under County Courts Act 1984 section 52(2) as modified by The Civil Procedure (Modification of Enactments) Order 1998. The CPR covers the procedure at CPR 31.16 and is in the nature of an application for pre-action disclosure. In making the application it will be necessary to show that the documents of which pre-action disclosure is sought relate to a claim which is likely to be subsequently brought and in which you (as Applicant for pre-action disclosure) and the party from whom pre-action disclosure is sought (Respondent) will be parties. Alternatively, that disclosure will assist in resolving the issue betwen the Applicant and Respondent without proceedings and thereby save costs.

 

There is a presumption that the Respondent's costs of the application and the codts of complying with the order will be met by the Applicant. See CPR 48.1(1).

 

Tartan,

Box cleared.

 

x20

[palomino]

Decency is irrelevant I'm afraid to say.

 

In any case, if you sued someone else you would probably engage a firm of solicitors to act for you. There is no obligation on you, yourself, to tell the defendant that solicitors are acting. The solicitors do this - it is a part of their 'acting' after all.

 

This sounds as though you are rather ignorant of the legal world - I'm not being derogatory! Ideally it's the best way to be. Unfortunately we all sometimes get involved with the law somehow, and this is where we engage solicitors to act for us because they are the ones that know about the law. Just keep asking questions - as the saying goes, the only dumb question is the one you didn't ask.

[StayingCalm]

Any advice as to what happens at an Application Hearing would be much appreciated.

 

Not much presumably in 5 minutes!

 

Does the other side have to attend as well?

 

Has anyone else attended one of these following a CPR 31.14 request?

 

 

Regards

SC

[StayingCalm]

Hi all

 

Re Application Hearing.

 

Phoned the Court on Friday. No contact from the Claimants. The lady said the C would normally attend as well, but not always. If they did they would appoint a local solicitor to act on their behalf.

 

The hearing is on Monday.

 

Anyone anything to add, or any advice?

 

Regards

SC

[citizenB]

Hi all

 

Re Application Hearing.

 

Phoned the Court on Friday. No contact from the Claimants. The lady said the C would normally attend as well, but not always. If they did they would appoint a local solicitor to act on their behalf.

 

The hearing is on Monday.

 

Anyone anything to add, or any advice?

 

Regards

SC

 

 

SC, good luck for today. I'm kind of lost, which CC does this apply to, I thought you had won:confused:

[StayingCalm]

Hi CB

 

And all others for your support.

 

 

Sorry for slow reply, didn’t realise you were all following as there were no responses to my previous postings.

 

Anyway, this is a new claim from another CC now passed to a DCA. Do not want to reveal too much at the moment, but will start a new thread as and when I need assistance.

 

Was updating this thread as I am following the CPR 31.14 route as advised by x20, and have not found much information on any other threads regarding this, now we seem to have lost x20. Thought it was too good to be true with all the fantastic advice that he gave.

 

The other side did not turn up. The Judge agreed my application for an Unless Order for a Strike Out if they do not supply the docs requested within 14 days of the date of the order sent by the Court. And if they do supply, 21 days to enter my Defence. He also agreed the costs.

 

However, he crossed out the part about ‘the Defendant shall be at liberty to enter judgment against the Claimant’, as he didn’t seem to think this was correct. Not sure if this is because I have not yet entered a Defence.

 

It was the same Judge as was dealing with my case with Restons, and he asked if I had heard any more from them, which I have not.

 

 

Regards

sc

[Gazza112]

Hi Stayingcalm and all

 

Looks like i may have to go down the Court Order line, as not heard anything from the Claiments Solicitor for Documents.

Will need help on what to do next when the time comes.

 

Gaz

[chlorochrome]

Chloro,

In your case the default judgment was set aside for bad service. That judgment would relate to a Claim Form issued as long ago as 2005. Before taking any further steps in the case I would await receipt of the order to see precisely what the Judge was saying about any 're'-service of the Claim Form. I mention this because after having found the Claim Form had not been served techincally there could not be a 're'-service, and ordinarily it would now be too late for the Claimant to effect service of a Claim Form issued way back in 2005. Consider CPR 7.5(1).

 

You say your application was unopposed. Does that mean the Claimant was unrepresented or attended but consented? If the Claimant failed to attend it would suggest the Claimant may no longer be interested in the case. Alternatively and if the Claimant attended, do you recall whether the representative sought permission to extend the time for service of the Claim Form under CPR 7.6? Was permission granted?

 

As I say, if you are not sure I would leave taking any further steps until receipt of the order. But bear CPR 7.5 and 7.6 in mind. Let me know the position when the order comes in.

 

x20

 

Hello again Surfaceagent20 (or indeed, anyone else who may like to offer advice),

 

My court case is coming up in a couple of weeks on my further application to request that, following the judge's ruling to set aside my CCJ, the default notice on my credit report also be taken off + the case against these creditors be struck out. I am asking for this under CPR7.7 and have submitted the letter from the financial dept of the creditors as evidence, stating that they don't have me on their records, at the address where the default is filed!

 

However I am uncertain as to whether simply citing CPR 7.7 is enough, or even if I have a correct understanding of it's direction.

 

I would appreciate your thoughts - please can you help?

 

Thank you,

 

chlchr

[chlorochrome]

chlorochrome,

If you are not served by 9 December 2008 and the Claimant wishes to carry on with the action, the creditor will be obliged to apply to the court for an extension of time in which to comply with the earlier order. It seems to me to be highly unlikely the Claimant will do that. They did not attnd to oppose your application and have not since complied with the order.

 

Further still, and what surprised me about the order, was that if the judgment had been entered as long ago as November 2005 the claim form will therefore be over 4 months old. A claim form is only valid for service up to 4 months beginning with the date of its issue [see CPR 7.5(2)] and could not be validly served without an order extending the time for service. I assume the Claim Form and Particulars of Claim were not a separate document. Perhaps implicit in the order directing service by 9 December 2008 was an extension of the 4 month limit but I notice the order only referred to Particulars of claim and not the Claim Form. It is the service of ther Claim Form upon the Defendant which obliges the Defendant to answer to the court's jurisdiction, not the Particulars of Claim.

 

Be that as it may, if you wished to take further steps after 9 December you may submit a notice to the Claimant under CPR 7.7 requiring service of the Claim Form within 14 days and in default of service, apply to the court for an order directing that the claim be struck out for the Claimant's failure to comply. Alternatively, you could simply make the application without prior service of the notice on the basis of the default in compliance with the earlier order.

 

As for the defaults, I'm no grand fromage when it comes to things which aren't before the courts. If you decide to make an application for an order dismissing the claim under CPR 7.7 or for default in compliance with the erlier order, you could tack on as a consequence of dismissal of the action a reference to an order directing the Claimant to cause the withdrawal and deletion of adverse credit data concerning you. My real difficulty with that is that part of the order would be in the nature of an injunction and you have not sought an injunction order in these proceedings. That said, it would not be the first time a peculiar order resulted from an application.

 

x20

 

sorry surfaceagaent, this is the quote to bring you up to speed!

 

thanks,

 

chlclr.

[Dark]

Some posters refer to the possibility of a copy of a CCA being produced in Court, where the original is unavailable/destroyed.

 

Surely this is not permissible? I refer to Practice direction supplementing CPR Part 16:

CPR 16

Practice Direction PART 16

STATEMENTS OF CASE

This Practice direction supplements CPR Part 16

 

OTHER MATTERS TO BE INCLUDED IN PARTICULARS OF CLAIM

 

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, and

 

(2) any general conditions of sale incorporated in the contract should also be attached (but where the contract is or the documents constituting the agreement are bulky this practice direction is complied with by attaching or serving only the relevant parts of the contract or documents).

 

So surely the original must be produced in Court? Edited May 6, 2009 by Dark

[foolishgirl]

Some posters refer to the possibility of a copy of a CCA being produced in Court, where the original is unavailable/destroyed.

 

Surely this is not permissible? I refer to Practice direction supplementing CPR Part 16:

So surely the original must be produced in Court?

 

The devil is in the detail, dark - 'should' & 'must'. The CPR says 'should' so can be ignored by a DJ is he so chooses & many creditors can get away with producing only a copy of the front but not the back by saying that the back would have contained the t&cs etc. & guess what, many DJs believe them!

 

Justice can be a fickle fella in the county court.

[WelshMam2009]

Some posters refer to the possibility of a copy of a CCA being produced in Court, where the original is unavailable/destroyed.

 

Surely this is not permissible? I refer to Practice direction supplementing CPR Part 16:

So surely the original must be produced in Court?

 

The devil is in the detail, dark - 'should' & 'must'. The CPR says 'should' so can be ignored by a DJ is he so chooses & many creditors can get away with producing only a copy of the front but not the back by saying that the back would have contained the t&cs etc. & guess what, many DJs believe them!

 

Justice can be a fickle fella in the county court.

 

I agree with Foolishgirl on this. I've also read many threads where posters are rubbing their hands with glee because they have been supplied with a micro fiche copy of an agreement and confidently believe that they are home and dry as the Creditor will not be able to produce the original in court.

 

In a fair and just world, the original agreement should be provided. However, if you consider that the majority of older agreements have been destroyed and all that exists is a micro fiche, then, in theory, all creditors should lose these court cases as they won't be able to produce the original documents. But, the truth is that they don't lose on this basis...do they?!!

 

This is why certain agreements are being scrutinised for any potential post signature amendments/additions. Whilst it is natural to assume that such highly sophisticated financial institutions would have no need for such alterations, the system is potentially open to abuse by those less scrupulous parties.