Documents in Court - Civil Evidence Act 1995

[alanalana]

Hello all,

 

I have been trying to feed information on the Civil Evidence Act to as many forums as possible as it is I feel important when it comes to CCAs and other documents being produced in Court. I have decided to start a new thread where this may help and to stop it dissappearing into the middle of other threads. The information is on CAG in various places but best to have it available to all.

 

Hello all,

 

This may be useful if have to proceed to court and a COPY of the CCA is going to be produced. Here are two links to the Act

 

Results within legislation - Statute Law Database

 

Civil Evidence Act 1995 (c. 38)

 

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.

It could be useful if you are proceeding to Court and the defence is going to produce copies rather than originals.

aa

 

 

[surfaceagentx20]

Good stuff and it needed saying (though not three times ).

 

I would only add this, that from a tactician's perspective, paving the way by means of a Judge's directions order or generally flagging up the way things should be done properly for your opponent to introduce evidence in the correct fashion would not be a wise move. The wiser move would be to address the court at the conclusion of the creditor's evidence by referring to everything that was absent from it, the better to weaken its impact or indeed lead to its inadmissability.

 

By this I am thinking for example of the absence of [1] credibility or direct first hand knowledge of the facts the document or witness is called upon to prove, [2] corroborative documents and witnesses having first hand knowledge touching on document reconstructions [3] relevant Civil Evidence Act Notices and so on to name but a few.

 

You getting my drift?

 

x20

[alanalana]

hello x20,

 

Good stuff and it needed saying (though not three times ).

 

Your are right about three times I thought I was hitting 3 different forums.

 

I would only add this, that from a tactician's perspective, paving the way by means of a Judge's directions order or generally flagging up the way things should be done properly for your opponent to introduce evidence in the correct fashion would not be a wise move. The wiser move would be to address the court at the conclusion of the creditor's evidence by referring to everything that was absent from it, the better to weaken its impact or indeed lead to its inadmissability.

 

By this I am thinking for example of the absence of [1] credibility or direct first hand knowledge of the facts the document or witness is called upon to prove, [2] corroborative documents and witnesses having first hand knowledge touching on document reconstructions [3] relevant Civil Evidence Act Notices and so on to name but a few.

 

You getting my drift?

 

x20

 

Totally agree with the tactical point of view. Forwarned is Forarmed as they say. Much better to prepare a closing summary and throw a great big spanner in the works.

 

aa

[The_Grumlin]

Question(s)

 

What about the use of cross examination for documents submitted under Witness Statement? Is this a viable option if you very sure of your own standing and the legal situation of say ownership, agreement or validity of a default notice?

 

Say for example you know a document is missing or is incorrect on more than one or two ground could the defendant cross examine the person who made a witness statement to the court to certify those documents? Rather than have the claimant amend or change documents before presentation at trial (I am assuming fast track here)?

[surfaceagentx20]

Absolutely and very very important.

 

Take a situation where the Claimant produces a witness to deal with questions concerning say the default notice and who simply produces a screen print supposing it has to do with the default notice they say was delivered to the debtor but can't produce. I've seen screen prints which are essentially a database recording precious little information which is readliy understood by 'an outsider'. The screenshot might record 'date sent' followed by a date and that's about it.

 

Your purpose in cross-examination would be to demonstrate the witness and the screenshot are inadequate for proving the essentials required for showing what the paper DN looked like, said on it, when service occured and the manner of it. A milion questions could be put to dettach the witness from the database record and the DN the database is supposed to be able to re-construct.

 

I've seen witness statements made by solicitors professing to be able to verify the re-construction of a DN who make no mention of the source of their information or the steps taken by them to verify the truth of that information. Such a witness is hopeless.

 

I've even had one witness deal with a DN who it was eventually established, was still at school when the DN was supposedly delivered! The time had arrived to say 'No more questions' and sit down! Need I say more?

 

x20

[alanalana]

Hello Grumlin,

 

Question(s)

 

What about the use of cross examination for documents submitted under Witness Statement? Is this a viable option if you very sure of your own standing and the legal situation of say ownership, agreement or validity of a default notice? This is all about the validity of documents produced in Court ie any copied document must have a fully valid authentication as follows:8)

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 ...

 

Say for example you know a document is missing or is incorrect on more than one or two ground could the defendant cross examine the person who made a witness statement to the court to certify those documents? Rather than have the claimant amend or change documents before presentation at trial (I am assuming fast track here)?

You will have to consult the legal folks for an answer to this

 

Excellent question:)

 

However you will have to seek more legal expertise than I have as I only stumbled upon the Civil Evidence Act 1995 by doing a google search on ADMISSIBILITY OF LEGAL DOCUMENTS IN COURT and bingo what a nice result

 

aa

[alanalana]

Beaten to it by a legal mind

 

lol:D

 

aa

 

I try to help where I can without any admissability of liability in any post in any thread . Is that ok to prevent a Legal action??

 

aa

Edited October 3, 2008 by alanalana
sentence added

[creditcardmug]

subbing

[tinkerbell20]

very informative and agree with Sfx re tactical use of info:D

[Having_A_Knightmare]

Sub........

[alanalana]

Sorry all I have to bump to keep this in the eyes of CAGers. I believe this ins important on CCAs and other documentation produced.

 

aa

[citizenB]

Perhaps this is another thread that could be stikkied

[tinkerbell20]

bump

[banker_rhymes_with]

Hello aa!

 

Bump, this should be considered for some CAG Glue to stick it in place somewhere!

 

Mods: hint, hint.

 

Cheers,

BRW

[alanalana]

Thanks brw,

 

helpful as ever my friend.

 

aa

[alanalana]

Sorry to all on the forum but I do believe this needs to be in the limelight in case of impending Court actions with documentatin being produced.

 

So I bump and request to be stickied if that is at all possible CAGers I believe need to be aware of this information:D

 

thank you

 

aa

[citizenB]

alanalana, I clicked on the triangle and asked for this to be stikkied for you.

[42man]

Made into a sticky....good work !!!

[Docman]

In the XXXXXX County Court

Claim number XXXXXX

 

 

 

 

Between

 

XXXXXXXX - Claimant

 

 

and

 

 

 

XXXXX - Defendant

 

 

Draft Order for Directions

 

For straightforward bank charges claims where you are the claimant:

 

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

 

a) A schedule setting out each charge repayment of which is sought, showing the date, amount, and reason given (if any) for that charge being made

b) Copies of any statement or other document relied upon as showing that each and every charge has been made

c) A statement of evidence of all matters relied upon as tending to show that the charges are unfair

d) Copies of decided cases and other legal materials to be relied upon

 

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

 

 

2. The Defendant shall within 14 days thereafter file and serve a response to the Claimant's schedule, stating in respect of each item claimed;

 

For a counterclaim (eg when you are being taken to court for a debt but are claiming charges as part of your ‘defence’) omit part 1 above and change the heading of this part to:

 

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

 

If the bank has failed to supply a list of charges or statements, insert

 

a) A list of all charges applied to the Claimant’s account with dates, type and amount of each charge

 

and renumber the remainder accordingly. Otherwise:

 

a) Pursuant to what contractual provision such charge was made, producing a copy of the contractual document relied upon

 

for credit cards insert b) whether such charge is accepted to be a penalty, and if not why not;

b) Whether such charge is accepted to be unfair, and if not why not

c) If such charge is alleged to be fair, all facts and matters intended to be relied upon showing the basis upon which the charge was calculated and all evidence to be adduced at trial as to show that the charge was fair and reasonable

d) Any witness statements

e) Copies of decided cases and other legal materials to be relied upon

 

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

 

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

 

Alanalana

This is a very useful piece of info. I had a look at S 8(1) of the Act and noted that the phrase "authenticated in such manner as the court may approve" is at the end of the paragraph.

What is to stop an old duffer of a DJ accepting any statement from a solicitor representing a creditor as 'authenticating in such manner ...' the document? Did the wording in your post above come from some regulations or case that you can quote?

[alanalana]

Docman,

 

Alanalana

 

This is a very useful piece of info. I had a look at S 8(1) of the Act and noted that the phrase "authenticated in such manner as the court may approve" is at the end of the paragraph.

 

What is to stop an old duffer of a DJ accepting any statement from a solicitor representing a creditor as 'authenticating in such manner ...' the document? Did the wording in your post above come from some regulations or case that you can quote?

 

I have no regulations or case that I can quote.

I started searching when I saw the problems people were having with Copies of CCAs that were obviously not the original but cobbled together to try and satisfy requests being made under the CCA 1974 sections 77/78.

I did a google on legal admissibility of documents in Court and found the Beautiful Civil Evidence Act 1975 which will mean Documents produced in Court that are not orignals but copies must be backed up with a full accredited audit trail showing how the copies were copied, by whom, when and records will be required as they are being presented as adduced hearsay and the Court must be notified of this fact.

 

aa

[angel_1]

oh alanalana

 

you have just allowed me to not get so fearful no longer of any court action

 

im so grateful there are people like you who so passionate in helping others like so many others that have helped me so far

 

i have previously subbed so i can learn even more as time passes by

 

have a fun day many thanks again Ciao maz

[tem19]

subbing:D

[Last of the Mohicans]

Just found this - excellent work Can anyone advise if - and how - you can apply for a Disclosure order on a case that has already been dealt with by a default judgement that you're trying to get set aside?

 

I refer of course to a case where the Claimant feels "not obliged" to comply with a belated CCA request.

[alanalana]

Just found this - excellent work Can anyone advise if - and how - you can apply for a Disclosure order on a case that has already been dealt with by a default judgement that you're trying to get set aside?

 

I refer of course to a case where the Claimant feels "not obliged" to comply with a belated CCA request.

 

You may get faster response if you post in this forum starting your own thread:)

 

Legal Issues

[Mightyacorn]

I too have CCJ's with Egg:-

http://www.consumeractiongroup.co.uk/forum/egg/185380-mightyacorn-egg-2.html