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why you shouldnt use section 77/78 CCA 1974 if you want the signed agreement

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Why do I think section 77/78 Requests made under the Consumer Credit Act are pointless if you wish to challenge your credit agreement?

 

 

A request made pursuant to s77/78 CCA 1974 leaves the lender able to send you a document that is not an exact copy of the original agreement. Thus if the original agreement was defective the lender may hide such defects with a “True Copy”.

 

This means that while the lender may have complied with the legislation, you will not have your signed agreement or a copy anywhere near to it.

 

So what can you do to get the correct information that you need? Well, firstly, you need to write to the lender and ask for the agreement making sure that you make it clear you require a copy of the signed agreement in its original form and that the request you are making is NOT made under the Consumer Credit Act 1974.

 

As a consumer, you probably wont be aware but the Civil Procedure Rules part 31.16 allows you to seek disclosure of documents which support your case from their other side. The main parts to concentrate upon are CPR 31.16(3)©&(D), lets have a look at what this section allows us to do.

 

 

CPR 31.16 states

Disclosure before proceedings start

 

31.16

 

(1) This rule applies where an application is made to the court under any Act for disclosure before proceedings have started1.

 

(1) This rule applies where an application is made to the court under any Act for disclosure before proceedings have started1.

(2) The application must be supported by evidence.

(3) The court may make an order under this rule only where –

(a) the respondent is likely to be a party to subsequent proceedings;

(b) the applicant is also likely to be a party to those proceedings;

© if proceedings had started, the respondent’s duty by way of standard disclosure, set out in rule 31.6, would extend to the documents or classes of documents of which the applicant seeks disclosure; and

(d) disclosure before proceedings have started is desirable in order to –

(i) dispose fairly of the anticipated proceedings;

(ii) assist the dispute to be resolved without proceedings; or

(iii) save costs.

(4) An order under this rule must –

(a) specify the documents or the classes of documents which the respondent must disclose; and

(b) require him, when making disclosure, to specify any of those documents –

(i) which are no longer in his control; or

(ii) in respect of which he claims a right or duty to withhold inspection.

(5) Such an order may –

(a) require the respondent to indicate what has happened to any documents which are no longer in his control; and

(b) specify the time and place for disclosure and inspection.

Thus you can ask for the documents if you believe you have a case against a proposed defendant, for example, you believe the agreement may be improperly executed and that you may have a claim for a declaration pursuant to s142 (1) Consumer Credit Act 1974. Without the original agreement you would not be able to assess if it was indeed properly executed, how do you know if the agreement was in the prescribed form? Containing the prescribed terms? Was it a multiple agreement but failed to set its terms out correctly? Was there PPI, which was not incorporated correctly into the agreement?

There are many reasons why you would need this information and remember at the time you entered into the agreement you probably weren’t aware of your rights as a consumer so you wouldn’t have checked the agreement with a fine tooth comb nor does the law expect you to, the law required the lender to get it right, to put together an agreement as required by the CCA to ensure you were told the true costs of borrowing, how much you would have to repay, when how etc

 

Unless you have the original document you wont know if it was compliant with the legislation, so you need to ask for it!!

 

If the lender fails to supply it on request, then you should write to them setting out that you need the agreement to assess if it was properly executed. You should point out to them that…

1.By disclosing the original agreement It will allow anticipated proceedings to be fairly disposed of because a cards on the table approach will be taken by each party. Currently the proposed Defendants will have failed to do this and will have ignored your requests to do so.

2.Furthermore disclosure will assist the dispute to be resolved without proceedings being necessary because once disclosure is given each party can see the strengths of their respective cases and informed negotiations may then be undertaken with the aim being to agree settlement without the need for proceedings to be issued.

3.It will also save costs because full proceedings may not be necessary. You will not need to continue to write unnecessary letters reminding the proposed Defendant to disclose documents. Both parties can deal with the claim more quickly and economically.

You should also enclose a copy of your original request for the documents with the second letter, that way they cannot claim not to have received your requests. Send by special delivery so that you have proof of posting and receipt.

 

If the lender fails to comply with this request or blusters about not being obliged to supply the original agreement, simply send them a final letter stating that if no response to your reasonable requests containing a full copy of your signed contract in its full and original form is forthcoming from them by 4pm on a date seven days from the date of your letter, you will make an application to the court for an order , ordering disclosure and you will lay all the correspondence before the court to show you have been more than reasonable and have tried to resolve the issue without the need to involve the court

 

 

This thread is work in progress please do not post on it yet

 

This is just my suggestion, if you are unsure as to what is the best way to deal with matters then you should seek independant legal advice

I will attach a set of draft letters and an application which i use to obtain disclosure in due course

 

Dear Sirs

 

Account number

 

I write with regards to the above account with your organisation.

 

I respectfully request that you provide me by return a copy of the credit agreement which bears my signature. I require this as i have reason to believe that there may be discrepancies within the agreement which may leave it improperly executed.Additionally i require the underwriting sheet or other document showing any commissions paid to you by the broker or by you to the broker

 

(If you have any other reasons why you need the agreement such as misselling of PPI Add it here)

 

obviously if the agreement is improperly executed i would be entitled to ask the court to consider the agreement and make a declaration of the rights of parties to the agreement.

 

I must stress this request is NOT made pursuant to section 78 Consumer Credit Act 1974 but is made pursuant to the Civil Procedure Rules ( Pre action protocols and Part 31.16) and therefore unsigned copy will not suffice, only a copy of the original contract in its unaltered form will suffice in these circumstances

 

Please confirm if you still hold a copy of my signed agreement and that you will provide me with this document.

 

I do not view this as an unreasonable request given that by supplying the document which i have asked for it will allow me to assess if my case has merit and will help to resolve matters possibly without the need to involve the court and will undoubtedly save costs on both sides

 

I look forward to your reply and wouyld ask for a response by 4pm on XXXX Date ( Give 21 days to respond)

 

Regards

 

 

 

xxxxxxxxxxx

 

1st letter

 

 

you really must give the lender a reasonable amount of time to reply

 

FORMAL REQUEST FOR INFORMATION

CPR part 31.16

 

Dear Sirs

 

Account number

 

On XXXXX i wrote to your organisation requesting that you supply me a copy of the agreement for my account. My request extended to the full agreement which bore my signature. Additionally i require the underwriting sheet or other document showing any commissions paid to you by the broker or by you to the broker {ONLY USE IF RELEVENT AND INCLUDED IN THE FIRST LETTER}

 

I enclose a copy of the letter which was sent should for your information.

 

I note that to date i have not received a reply from your organisation nor have i received a copy of the agreement which i requested. in view of the circumstances i do not feel it unreasonable to ask for this document to be disclosed, it is not commercially sensitive nor is it a restricted document and should be easily accessible for an organisation such as yours. therefore i would ask that you provide me with a copy of the contract which bears my signature, i require the complete document with all its parts .

 

the reasons why i require this information are clearly set out within my original letter dated XXXXX , but for clarity i require this document for the following reasons

 

1.I require this as i have reason to believe that there may be discrepancies within the agreement which may leave it improperly executed

 

2. Because i believe that the Payment protection insurance was not correctly incorporated within the agreement

 

3.because i believe that there was a commission paid in repect of this agreement which has not been disclosed to me and therefore is a breach of agency law

 

4. ...................

 

 

 

 

 

 

since this matter is likely to be subject to proceedings and gioven that your organisation is likely to be a defendant in any action which would be brought by me, i must draw your attention to Civil Procedure Rules part 31.16(3)©&(D) which gives the court the power to order you to disclose this document to me.

 

The disclosure of these documents will allow me to consider any claim i may have against your organisation and will allow for the matter to be dealt with possibly without the need for costly litigation. Therefore i again ask that you provide me with the documents which i have previously requested . I don't not consider this request unreasonable and therefore if you fail to comply with my request i will be left no option but to make an application to XXXX County Court for an order made under the provisions of CPR 31.16 ordering you to disclose the documents which i have requested.

 

additionally i will ask the court to make an order for my costs in bringing this application and reserve the right to disclose all communications in this matter before the court should such an application become necessary

 

Please confirm by no later than 4pm on XXXXXXX that you will comply with my request or if you will not comply, please provide your reasons in writing

 

Regards

 

XXXXXXXXXX

 

second letter

 

Again, you must give the lender a reasonable amount of time to comply

 

simply firing off a application to the court without being reasonable may end up with the court looking on you unfavourably and making an award for costs against you, so it is really important that you act very very reasonably

 

Ok application time then. if the lender has still not , despite your requests supplied you the information you require then you will need to think about making an application to the court for an order, ordering the lender to disclose the info youve been asking for

 

 

so how do you get disclosure??

 

 

 

Grab a N244 Application notice

part 1 write your name

 

part 2 you are the claimant

 

in box 3 write the following

An order (a draft of which is attached) that the Defendant do search for and disclose the documents listed in the Schedule attached to the draft Order ("the Schedule") because the applicant and the respondent are likely to be parties to the same subsequent proceedings, the respondent's duty of disclosure in those proceedings would extend to the documents listed in the Schedule and disclosure is desirable in order to dispose fairely of the anticipated proceedings .

 

This application is made pursuant to s.33 Supreme Court Act 1981 and CPR 31.16.

part 4 tick yes

 

part 5 at hearing

 

part 6 0 hours 20 minutes

 

part 7 N/A

 

Part 8 District Judge

 

Part 9 Proposed Defendant / Respondent

 

Part 10 tick witness statement

 

 

Here is a draft order for Disclosure

 

 

IN THE XXXXXXX COUNTY COURT Claim No:

 

 

 

 

 

 

IN A PROPOSED ACTION

 

BETWEEN:

 

 

[ ]

Claimant

and

[ ]

Defendant

draft/ORDER

UPON [hearing the claimant and the defendant]

 

AND UPON [reading the witness statements of [ ] and [ ]

 

IT IS ORDERED THAT:

 

 

  • the Defendant by [Date] shall confirm in writing to the claimant, which of the following documents are still in their possession
     
    1. The Credit agreement which is signed by the claimant and in its original form
     
    2. Any terms and conditions associated with the credit agreement being those which were relevant at the time the agreement was signed
     
    3. notices of variation (if any) which vary the terms of the original agreement in accordance with s82 Consumer Credit Act 1974
     
    4. The underwriting sheet or other document showing any commissions paid either by the Defendant to a third party or by a third party to the Defendant in respect of the loan agreement between the Claimant and Defendant

 

  • if any of the above listed documents are not in the possession of the Defendant, the defendant shall give to the claimant an explanation as to what has happened to them

 

 

  • The defendant by [date] shall supply the claimant copies of the documents listed in paragraph 1 which are still in the defendants possession

 

  • The defendant shall pay the claimant’s costs of this application to be assessed by the Court and paid within 14 days of the assessment

 

 

Dated the day of 200

 

 

 

 

** Only use the part at point 4 in blue if you need the under writing sheet

 

Witness statement

 

IN THE XXXXXXXX COUNTY COURT

IN A PROPOSED ACTION

 

BETWEEN:

 

 

[ ]

Claimant

and

[ ]

Defendant

 

WITNESS STATEMENT OF XXXXXXXXXXXXXXXXXXX

 

 

I, [NAME] of [home address of individual] make this statement in support of my application for an order for pre-action disclosure against the Defendant and will state as follows:

 

 

  • The facts and matters referred to in this witness statement are within my own knowledge, except where I have indicated otherwise. Where the facts are within my knowledge, they are true. Where they are not within my own knowledge, they are true to the best of my information and belief. I have stated the source of my information or belief.
  • There is now produced and shown to me a bundle of documents marked “ABC1”. The exhibit “ABC1” contains copies of correspondance between the claimant and defendant and identifies the documents in respect of which I seek disclosure in this Application
  • on xxxxx i entered into an agreement with the Defendant. the agreement was for a loan of £000000 ./ Credit card . the agreement number is 00000000000 and the loan / credit card is secured upon.../ is unsecured

 

The claim against the defendant

 

 

  • I have reasonable rounds for a cause of action against the defendant. The grounds are as follows
     
    a) I believe that the agreement is improperly executed and not compliant with the requirements of section 61(1)(a) Consumer Credit Act 1974 and therefore the claimant would be entitled to seek a declaration from the court pursuant to section 142(1) Consumer Credit Act 1974
     
    b) The loan / Credit card has payment protection insurance which I did not request, disclosure of the agreement will show this as such a policy will be incorporated within the agreement and should be clearly particularised within the agreement as required by section 18 Consumer Credit Act 1974
     
    c) the Defendant has been levying charges which were not set out within the original agreement and therefore are not permitted by the contract
     
    d) .................... ( add any other relevant information)
     
     
    e).......................

 

Previous requests

 

 

 

  • Previous requests for these documents have been made on the ........... and the ............. and in this regard I refer to exhibit “ABC1”. The Defendant has failed to respond to the requests for the documents and the only way that the Claimant can now make any progress with the claim is by making this application to the court. Unless the Defendant discloses the requested documents the Claimant cannot prepare accurate pleadings. This may lead to delay or additional expense if proceedings are issued and later need to be amended once standard disclosure is given.

 

Part 31.16 CPR 1998- pre-action discovery

 

 

 

 

  • This application complies with Part 31.16 of the CPR 1998 because:

a)It is supported by evidence in the form of this statement and the exhibits attached hereto

 

b)The Claimant and the Defendant are likely to be parties to subsequent proceedings

 

c)If proceedings are started the Defendant duty by way of standard disclosure as set out in Part 31.6 CPR 1998 would extend to the requested documents. Care has been taken to identify specific documents and to explain to the Defendant which issues that particular document relates to.

 

d)It will allow anticipated proceedings to be fairly disposed of because a cards on the table approach will be taken by each party. Currently the Defendants have failed to do this and have ignored the Claimants requests to do so.

 

e)It will assist the dispute to be resolved without proceedings being necessary because once disclosure is given each party can see the strengths of their respective cases and informed negotiations may then be undertaken with the aim being to agree settlement without the need for proceedings to be issued. The Claimant does intend to put forward settlement proposals in correspondence upon disclosure of the requested documents, which may lead to the claim being settled with having to use valuable court resources.

 

f)It will save costs because full proceedings may not be necessary. The Claimant will not need to continue to write unnecessary letters reminding the Defendant to disclose documents. Both parties can deal with the claim more quickly and economically.

 

 

Part 31.6 CPR 1998- standard disclosure

  • Standard disclosure requires a party to disclose only-
    a)The documents on which he relies
    b)The documents which
    i)Adversely affect his own case
    ii)Adversely affect another party’s case
     
    iii)Support another party’s case; and
    c)The documents which he is required to disclose by a relevant practice direction.
  • there is no relevant practice direction here,the claimant is seeking disclosure of documents as referred to within para 10 (a)&(b)as set out above in this statement
     
    Part 1 CPR 1998 – the over ridding objective
  • The application has been made with the overriding objective in mind. The Claimant has at all times tried to ensure that the overriding objective has been complied with. Due to the failure of the Defendant to give voluntary disclosure or any good reason for failing to give such disclosure this application has become necessary. The application fulfils the requirements of the overriding objective by using as little of the courts time as possible to put the parties on an equal footing in relation to the evidence that they hold and to avoid proceedings being issued unnecessarily

 

 

 

Case Law

 

 

 

  • The documents requested go directly to heart of the claimant’s case. In accordance with the guidance given by Lord Justice Rix in Black and others v Sumitomo and others [2001] EWCA Civ 1819 (and in particular para. 72 of his judgment) care has been taken to ensure that the disclosure request is narrow and that the documents requested are determinative of the dispute between the parties. At paragraph 88 of his judgement Rix LJ states that when determining whether to grant an application for pre-action discovery the court will consider “the nature of the injury or loss complained of; the clarity and identification of the issues raised by the complaint; the nature of the documents requested; the relevance of any protocol or pre-action inquiries; and the opportunity which the complainant has to make his case without pre-action disclosure”. These points have been repeatedly addressed through out the claimants attempts to obtain the documents which are at the heart of this application

 

 

  • SES Contracting Limited and others v UK Coal Plc and others [2007] EWCA Civ 791 addressed the issue of costs in pre-action discovery applications. Lord Justice Moore-Bick decided on that occasion that both paties should bear their own costs of the application. However, both parties where commercial organizations. In the present application the Claimant is an individual seeking disclosure against a large financial institution. In SES Contracting there was no breach of a pre-action protocol. In the present case the pre-action protocol practice direction has been broken by the Defendant in that the Defendant has failed to comply with paragraphs xxxxxxxxxxxxxx IDENTIFY WHICH PRE ACTION PROTOCOLS HAVE BEEN BREACHED BY THE L:ENDERS NON COMPLIANCE. Paragraphs 2.1; 2.3 and 3.3 of the protocol invite the court to take such breaches into account when making orders for costs. An award of costs against the defendant is likely to discourage a failure to comply with the protocol in future thereby obviating the need for an application to the court. An award of costs will also satisfy paragraph 2.4 of the pre-action protocol in placing the Claimant in no worse a position than he would have been in had the protocol been complied with. Any other order would place the Claimant in a worse position due to the Defendants non-compliance.
  • For the reasons which I have outlined above I ask the court to grant the relief sought as detailed within the draft order

 

 

 

 

 

 

I believe that the facts stated in this witness statement are true.

Signed ________________________

Dated ________________________

 

 

 

 

 

To identify which practice direction pre action protocols have been infringed as per the witness statement see this link PRACTICE DIRECTION – PROTOCOLS

 

There has been a recent amendment to the preaction protocols. it is important to note this , from the costs point of view certainly,as the costs swing more towards the applicant which can only be goood news

 

 

 

 

COST,COSTS,COSTS,COSTS

 

Right, one point which must be mentioned

 

there needs to be a refusal from the other side to comply with your requests for information which can be clearly identified as a breach of the Pre action Protocols Practice direction

 

If there is not a breach then you can potentially be held liable for costs of the other side in making the application and that could be huge so please please please don't go rushing in

 

I have included the pre action protocols below, if you cannot identify a situation which the lender has breached below then DO NOT make the application without getting advice.

 

Ideally the lender will have breached 4 or 5 paragraphs of the protocols when the application is made, this adds weight to your case

 

General

 

 

1.1

 

 

 

This practice direction applies to the pre-action protocols which have been approved by the Head of Civil Justice.

1.2

 

The pre-action protocols which have been approved are set out in para 5.1. Other pre-action protocols may subsequently be added.

 

1.3

 

Pre-action protocols outline the steps parties should take to seek information from and to provide information to each other about a prospective legal claim.

 

1.4

 

The objectives of pre-action protocols are:

(1) to encourage the exchange of early and full information about the prospective legal claim,

 

(2) to enable parties to avoid litigation by agreeing a settlement of the claim before the commencement of proceedings,

 

(3) to support the efficient management of proceedings where litigation cannot be avoided.

 

 

 

 

 

Compliance with Protocols

 

 

 

2.1

 

The Civil Procedure Rules enable the court to take into account compliance or non-compliance with an applicable protocol when giving directions for the management of proceedings (see CPR rules 3.1(4) and (5) and 3.9(e)) and when making orders for costs (see CPR rule 44.3(a)).

 

2.2

 

The court will expect all parties to have complied in substance with the terms of an approved protocol.

 

2.3

 

If, in the opinion of the court, non-compliance has led to the commencement of proceedings which might otherwise not have needed to be commenced, or has led to costs being incurred in the proceedings that might otherwise not have been incurred, the orders the court may make include:

(1) an order that the party at fault pay the costs of the proceedings, or part of those costs, of the other party or parties;

 

(2) an order that the party at fault pay those costs on an indemnity basis;

 

(3) if the party at fault is a claimant in whose favour an order for the payment of damages or some specified sum is subsequently made, an order depriving that party of interest on such sum and in respect of such period as may be specified, and/or awarding interest at a lower rate than that at which interest would otherwise have been awarded;

 

(4) if the party at fault is a defendant and an order for the payment of damages or some specified sum is subsequently made in favour of the claimant, an order awarding interest on such sum and in respect of such period as may be specified at a higher rate, not exceeding 10% above base rate (cf. CPR rule 36.21(2), than the rate at which interest would otherwise have been awarded.

 

 

2.4

 

The court will exercise its powers under paragraphs 2.1 and 2.3 with the object of placing the innocent party in no worse a position than he would have been in if the protocol had been complied with.

 

3.1

 

A claimant may be found to have failed to comply with a protocol by, for example:

(a) not having provided sufficient information to the defendant, or

 

(b) not having followed the procedure required by the protocol to be followed (e.g. not having followed the medical expert instruction procedure set out in the Personal Injury Protocol).

 

 

3.2

 

A defendant may be found to have failed to comply with a protocol by, for example:

(a) not making a preliminary response to the letter of claim within the time fixed for that purpose by the relevant protocol (21 days under the Personal Injury Protocol, 14 days under the Clinical Negligence Protocol),

 

(b) not making a full response within the time fixed for that purpose by the relevant protocol (3 months of the letter of claim under the Clinical Negligence Protocol, 3 months from the date of acknowledgement of the letter of claim under the Personal Injury Protocol),

 

© not disclosing documents required to be disclosed by the relevant protocol.

 

 

3.3

 

The court is likely to treat this practice direction as indicating the normal, reasonable way of dealing with disputes. If proceedings are issued and parties have not complied with this practice direction or a specific protocol, it will be for the court to decide whether sanctions should be applied.

 

3.4

 

The court is not likely to be concerned with minor infringements of the practice direction or protocols. The court is likely to look at the effect of non-compliance on the other party when deciding whether to impose sanctions.

 

3.5

 

This practice direction does not alter the statutory time limits for starting court proceedings. A claimant is required to start proceedings within those time limits and to adhere to subsequent time limits required by the rules or ordered by the court. If proceedings are for any reason started before the parties have followed the procedures in this practice direction, the parties are encouraged to agree to apply to the court for a stay of the proceedings while they follow the practice direction.

 

 

 

 

Pre-action behaviour in other cases

 

 

 

 

 

4.1

 

In cases not covered by any approved protocol, the court will expect the parties, in accordance with the overriding objective and the matters referred to in CPR 1.1(2)(a), (b) and ©, to act reasonably in exchanging information and documents relevant to the claim and generally in trying to avoid the necessity for the start of proceedings.

 

4.2

 

Parties to a potential dispute should follow a reasonable procedure, suitable to their particular circumstances, which is intended to avoid litigation. The procedure should not be regarded as a prelude to inevitable litigation. It should normally include –

(a) the claimant writing to give details of the claim;

 

(b) the defendant acknowledging the claim letter promptly;

 

© the defendant giving within a reasonable time a detailed written response; and

 

(d) the parties conducting genuine and reasonable negotiations with a view to settling the claim economically and without court proceedings.

 

 

4.3

 

The claimant's letter should –

(a) give sufficient concise details to enable the recipient to understand and investigate the claim without extensive further information;

 

(b) enclose copies of the essential documents which the claimant relies on;

 

© ask for a prompt acknowledgement of the letter, followed by a full written response within a reasonable stated period;

(For many claims, a normal reasonable period for a full response may be one month.)

 

(d) state whether court proceedings will be issued if the full response is not received within the stated period;

 

(e) identify and ask for copies of any essential documents, not in his possession, which the claimant wishes to see;

 

(f) state (if this is so) that the claimant wishes to enter into mediation or another alternative method of dispute resolution; and

 

(g) draw attention to the court's powers to impose sanctions for failure to comply with this practice direction and, if the recipient is likely to be unrepresented, enclose a copy of this practice direction.

 

 

4.4

 

The defendant should acknowledge the claimant's letter in writing within 21 days of receiving it. The acknowledgement should state when the defendant will give a full written response. If the time for this is longer than the period stated by the claimant, the defendant should give reasons why a longer period is needed.

 

4.5

 

The defendant's full written response should as appropriate –

(a) accept the claim in whole or in part and make proposals for settlement; or

 

(b) state that the claim is not accepted.

 

If the claim is accepted in part only, the response should make clear which part is accepted and which part is not accepted.

 

4.6

 

If the defendant does not accept the claim or part of it, the response should –

(a) give detailed reasons why the claim is not accepted, identifying which of the claimant's contentions are accepted and which are in dispute;

 

(b) enclose copies of the essential documents which the defendant relies on;

 

© enclose copies of documents asked for by the claimant, or explain why they are not enclosed;

 

(d) identify and ask for copies of any further essential documents, not in his possession, which the defendant wishes to see; and

(The claimant should provide these within a reasonably short time or explain in writing why he is not doing so.)

 

(e) state whether the defendant is prepared to enter into mediation or another alternative method of dispute resolution.

 

 

4.7

 

The parties should consider whether some form of alternative dispute resolution procedure would be more suitable than litigation, and if so, endeavour to agree which form to adopt. Both the Claimant and Defendant may be required by the Court to provide evidence that alternative means of resolving their dispute were considered. The Courts take the view that litigation should be a last resort, and that claims should not be issued prematurely when a settlement is still actively being explored. Parties are warned that if this paragraph is not followed then the court must have regard to such conduct when determining costs;

It is not practicable in this Practice Direction to address in detail how the parties might decide which method to adopt to resolve their particular dispute. However, summarised below are some of the options for resolving disputes without litigation:

 

  • Discussion and negotiation.
  • Early neutral evaluation by an independent third party (for example, a lawyer experienced in that field or an individual experienced in the subject matter of the claim).
  • Mediation – a form of facilitated negotiation assisted by an independent neutral party.

The Legal Services Commission has published a booklet on ‘Alternatives to Court’, CLS Direct Information Leaflet 23 (Community Legal Advice Page Not Found), which lists a number of organisations that provide alternative dispute resolution services.

It is expressly recognised that no party can or should be forced to mediate or enter into any form of ADR.

 

4.8

 

Documents disclosed by either party in accordance with this practice direction may not be used for any purpose other than resolving the dispute, unless the other party agrees.

 

4.9

 

The resolution of some claims, but by no means all, may need help from an expert. If an expert is needed, the parties should wherever possible and to save expense engage an agreed expert.

 

4.10

 

Parties should be aware that, if the matter proceeds to litigation, the court may not allow the use of an expert's report, and that the cost of it is not always recoverable.

 

 

 

 

AND HERES A NICE LITTLE AMENDMENT TO THE PROTOCOLS

 

http://www.justice.gov.uk/civil/procrules_fin/contents/practice_directions/pd_pre-action_conduct.htm#IDADC04B

 

SECTION II – THE APPROACH OF THE COURTS

 

4. Compliance

 

4.1

 

The CPR enable the court to take into account the extent of the parties’ compliance with this Practice Direction or a relevant pre-action protocol (see paragraph 5.2) when giving directions for the management of claims (see CPR rules 3.1(4) and (5) and 3.9(1)(e)) and when making orders about who should pay costs (see CPR rule 44.3(5)(a)).

 

4.2

 

The court will expect the parties to have complied with this Practice Direction or any relevant pre-action protocol. The court may ask the parties to explain what steps were taken to comply prior to the start of the claim. Where there has been a failure of compliance by a party the court may ask that party to provide an explanation.

 

Assessment of compliance

 

4.3

 

When considering compliance the court will –

(1) be concerned about whether the parties have complied in substance with the relevant principles and requirements and is not likely to be concerned with minor or technical shortcomings;

 

(2) consider the proportionality of the steps taken compared to the size and importance of the matter;

 

(3) take account of the urgency of the matter. Where a matter is urgent (for example, an application for an injunction) the court will expect the parties to comply only to the extent that it is reasonable to do so. (Paragraph 9.5 and 9.6 of this Practice Direction concern urgency caused by limitation periods.)

 

 

 

Examples of non-compliance

 

4.4

 

The court may decide that there has been a failure of compliance by a party because, for example, that party has –

(1) not provided sufficient information to enable the other party to understand the issues;

 

(2) not acted within a time limit set out in a relevant pre-action protocol, or, where no specific time limit applies, within a reasonable period;

 

(3) unreasonably refused to consider ADR (paragraph 8 in Part III of this Practice Direction and the pre-action protocols all contain similar provisions about ADR); or

 

(4) without good reason, not disclosed documents requested to be disclosed.

 

 

 

Sanctions for non-compliance

 

4.5

 

The court will look at the overall effect of non-compliance on the other party when deciding whether to impose sanctions.

 

4.6

 

If, in the opinion of the court, there has been non-compliance, the sanctions which the court may impose include –

(1) staying (that is suspending) the proceedings until steps which ought to have been taken have been taken;

 

(2) an order that the party at fault pays the costs, or part of the costs, of the other party or parties (this may include an order under rule 27.14(2)(g) in cases allocated to the small claims track);

 

(3) an order that the party at fault pays those costs on an indemnity basis (rule 44.4(3) sets out the definition of the assessment of costs on an indemnity basis);

 

(4) if the party at fault is the claimant in whose favour an order for the payment of a sum of money is subsequently made, an order that the claimant is deprived of interest on all or part of that sum, and/or that interest is awarded at a lower rate than would otherwise have been awarded;

 

(5) if the party at fault is a defendant, and an order for the payment of a sum of money is subsequently made in favour of the claimant, an order that the defendant pay interest on all or part of that sum at a higher rate, not exceeding 10% above base rate, than would otherwise have been awarded.

 

 

 

 

 

 

 

I am now opening this thread to allow people to comment, ask questions etc.

 

please be aware that this thread is still work in progress and not the finished article as things stand, so please do not rely upon the drafts provided yet. i will confirm when i have completed the witness statement

  • Haha 3

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Got this from another thread from 2006 here http://www.consumeractiongroup.co.uk/forum/barclaycard/19870-bypass-microfiche-defence-cpr.html which talked about the same thing and asked do the rules in section 31 of CPR even apply to small claims?

 

 

Scope of this Part

31.1

 

(1) This Part sets out rules about the disclosure and inspection of documents.

(2) This Part applies to all claims except a claim on the small claims track.

 

 

This is also backed up in Part 27.2 (1)(b)

 

27.2 (1) The following Parts of these Rules do not apply to small claims -

(b) Part 31 (disclosure and inspection);

Edited by tifo

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Got this from another thread, but do the rules in section 31 of CPR even apply?

arguably yes, to bring such an action before the small claims court would be ridiculous as the SCT is not set up for such an action.

 

due to the complexity of the case which you would be bringing if disclosure had been made, you would automatically fall into the fast track and it is a point i raise in the AQ that the claim should be allocated to fast track as a minimum due to complexity issues and the specialist knowledge of the case required

 

so yes PT31 does apply

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the claim should be allocated to fast track as a minimum

 

Wouldn't this open us up to the potential bank's costs?

 

I can see CPR 31.16 being used before any action just to get the information because a track has not been allocated due to no actual claim being submitted.

 

Or, as most of us are in small claims, how do we exactly use this CPR 31.16?

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right

 

part 31.16 give a right of disclosure if the proposed defendant is frustrating matters and refusing to provide documents which you have identified as being essential to your case,

 

now ifd you want the signed agreement using the CCA isnt going to get it in most cases as we have seen

 

 

so you have two real choices, sit back and wait to be sued in which case this is all irrelevent anyway

 

or you can ask for the documents as i have set out above,

 

if the lender refuses then you will have a right to ask the court to order them be disclosed to you

 

once you have the documents you can assess if you have a claim , yes?

 

then you can take the lender on head on and go for the declaration under S142(1) CCA 1974

 

the matter of costs is dealt with within the witness statement??? so have a read and you will see that there is case authority that should protect you from costs of disclosure

 

 

remember this is for you to go on the front foot and bring a claim NOT ON THE BACK FOOT and defend it

 

if you are defending a claim then you need to look at CPR pt 31.14 not 31.16;) as this is irrelevant

 

Wouldn't this open us up to the potential bank's costs?

 

I can see CPR 31.16 being used before any action just to get the information because a track has not been allocated due to no actual claim being submitted.

 

Or, as most of us are in small claims, how do we exactly use this CPR 31.16?

 

In what way do you think it will open you up to the banks costs???? ive missed something there tifo

 

also it is worth noting that the argument you would advance if the other side say "Oh this would be small claims" is that it is due to complexity issues that the claim should go fast track

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In what way do you think it will open you up to the banks costs???? ive missed something there tifo

 

sorry, i meant that if we went fast track (as this CPR is intended for) then we could potentially pay the bank's costs if we lose.

 

i know that at this stage it is only used to gain the information we want, but bank's being what they are, we have to be careful not to be accused of using something intended for fast track when we have no real intention of going down that route but small claims instead.

 

i also think that, if and when we receive the info we ask for, we decide to go small claims instead, we can get accused by the bank of twisting the CPR to our needs.

 

just thinking out aloud on potentialities as i'm no lawyer.

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I totally see your point,but the thing is, without the signed agreement you will never know what case if any you have, its essential you get the signed agreement

 

that is why i say you should be reasonable, give them the option to supply it, even offer to pay their reasonable costs in supplying you the agreement.

 

at the end of the day, when you have the agreement in your sweaty mitts, they are more likely to come to the table and talk, especially given the fact that they will be in real trouble if they claim they havent got it to the court and then try to sue you later and produce it then;)

 

when you have disclosure, i have found the other side talks to you in a more amicable way thus removing the need to go to court at all save for the initial application for disclosure

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also it is worth noting that the argument you would advance if the other side say "Oh this would be small claims" is that it is due to complexity issues that the claim should go fast track

 

what if the bank use this when we do go small claims, i.e. the claimant has already stated they intended to go fast track in order to use CPR 31.16 so why are they in small claims now, and the judge asks "what have you got to say about this, young man"?

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you dont go small claims, the case is allocated by the judge

 

now you need to be a real mcmuffin if you go and sue your bank for a declaration pursuant to s142(1) CCA on the back of an agreement that isnt wholly defectice

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when you have disclosure, i have found the other side talks to you in a more amicable way thus removing the need to go to court at all save for the initial application for disclosure

 

ok, but don't we need to go to court (small claims?) to get a declaration under s.142?

 

now you need to be a real mcmuffin if you go and sue your bank for a declaration pursuant to s142(1) CCA on the back of an agreement that isnt wholly defectice

 

i know, but you know what people are like .... especially when powerful info comes into their hands .... just want to be careful how this is used, hence my hesitations.

 

so you are saying we should go for a declaration under s.142 only if we are absolutely sure the agreement cannot be enforced in any way, and this is a big if i think.

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Hi Pt and thanks for the thread.

 

You have said you need to send the banks letters. Something you have not put is if these should be signed? I am only asking for the obvious reasons, photoshop, and if a new person sees this they might just go ahead and sign it.

 

If your not in court procedings would you need it issue to the defendant a order via a N1 as i thought a N244 was only able to be used if procedings were already issued? I may be wrong there so if i am iam sorry.

 

Can this only be used for banks?

 

Thanks again GM


OFT debt collection guidance

 

Please remember the only stupid question is the one you dont ask so dont worry about asking the stupid questions.

 

Essex girl in pc world looking 4 curtains 4 her pc,the assistant says u dont need curtains 4 a computer!!Essex girl says,''HELLOOO!! i,ve got WINDOWS!!'.

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the problem as i see it on here is that too often we see users who are sent a blank set of terms and conditions in reply to a cca request,

 

then they start saying that the debt is unenforceable and they aint gonna pay blah blah blah. next thing they know the debt has been sold and the new company pull a properly executed agreement out of the hat but its too late for the OP at that point cos they are being sued

 

my point is that this is only to get the agreement. this thread is not intended to be the first step towards suing your lender but it is intended to assist in getting the correct docs so that people who come here can do so with the docs that we need to identify if the agremeent is enforceable or not

 

Hi Pt and thanks for the thread.

 

You have said you need to send the banks letters. Something you have not put is if these should be signed? I am only asking for the obvious reasons, photoshop, and if a new person sees this they might just go ahead and sign it.

 

If your not in court procedings would you need it issue to the defendant a order via a N1 as i thought a N244 was only able to be used if procedings were already issued? I may be wrong there so if i am iam sorry.

 

Can this only be used for banks?

 

Thanks again GM

Hello GM

 

No an N1 is not the correct route here, it is indeed the N244 as you cannot commence a claim unless you have full disclosure of the documents upon which your claim will be based

 

with regards to the signature, yes i think that the letter needs to be signed, its your call if that is block capitals and printed or not at the end of the day

 

 

regards

 

 

Pt

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Thanks PT.

Can i use this request for any company and not just banks.

Further to that can i send this request to a DCA if the case is in the hands of a DCA?


OFT debt collection guidance

 

Please remember the only stupid question is the one you dont ask so dont worry about asking the stupid questions.

 

Essex girl in pc world looking 4 curtains 4 her pc,the assistant says u dont need curtains 4 a computer!!Essex girl says,''HELLOOO!! i,ve got WINDOWS!!'.

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Thanks PT.

Can i use this request for any company and not just banks.

Further to that can i send this request to a DCA if the case is in the hands of a DCA?

the CPR is a very powerful tool when used correctly

 

yes you can but the rules apply you MUST be seen to be reasonable, you need to ask and ask and ask again for the info and if the lender says no then you need to evaluate their reasons, after all you are not entitled to all documents from everyone etc, so it really depends upon

 

A) the circumstances surrounding your situation

 

B) what documents you are asking for

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Rite so if a catalogue company has failed to supply a copy of your cca and despite saying they know they cant take it to court or issue a statory demand as they have no cca but they have passed it to a DCA who are demanding payment or court action despite knowing the catalog company have said they have no cca then can i use CPR 31.16 on the dca to make the catalogue company produce a valid document or admit they dont have it?


OFT debt collection guidance

 

Please remember the only stupid question is the one you dont ask so dont worry about asking the stupid questions.

 

Essex girl in pc world looking 4 curtains 4 her pc,the assistant says u dont need curtains 4 a computer!!Essex girl says,''HELLOOO!! i,ve got WINDOWS!!'.

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Rite so if a catalogue company has failed to supply a copy of your cca and despite saying they know they cant take it to court or issue a statory demand as they have no cca but they have passed it to a DCA who are demanding payment or court action despite knowing the catalog company have said they have no cca then can i use CPR 31.16 on the dca to make the catalogue company produce a valid document or admit they dont have it?

yes,

 

but dont lose sight of the fact that the minute the company tells you they dont have it and therefore cannot enforce the debt, you dont need to use CPR 31.16 all you need to do is send the DCA a copy of that letter and tell them to sod off

 

;)

 

 

 

CPR 31.16 is something which is only something you should look at if you have a issue with the lender not giving you the agreement and not confirming if they have it or not

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"you dont go small claims, the case is allocated by the judge

 

now you need to be a real mcmuffin if you go and sue your bank for a declaration pursuant to s142(1) CCA on the back of an agreement that isnt wholly defectice"

 

 

I may be a candidate for McMuffin of the year then.

 

Ive made a claim for return of 4x £12 CC charges and a bucket load of PPI plus interest levied thereon and asked for a s.142 declaration.

 

They did supply another company's T&Cs in response to a s.78 request though.

 

Went Small Claims as well- although where I live

(N.Ireland) you do have the choice of SC or the Big Scary Court.

 

It hasnt been served as yet.

Edited by noomill060

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"you dont go small claims, the case is allocated by the judge

 

now you need to be a real mcmuffin if you go and sue your bank for a declaration pursuant to s142(1) CCA on the back of an agreement that isnt wholly defectice"

 

 

I may be a candidate for McMuffin of the year then.

 

Ive made a claim for return of 4x £12 CC charges and a bucket load of PPI plus interest levied thereon and asked for a s.142 declaration.

 

They did supply another company's T&Cs in response to a s.78 request though.

 

Went Small Claims as well- although where I live

 

(N.Ireland) you do have the choice.

do you have a thread going on this?

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yes,

 

but dont lose sight of the fact that the minute the company tells you they dont have it and therefore cannot enforce the debt, you dont need to use CPR 31.16 all you need to do is send the DCA a copy of that letter and tell them to sod off

 

;)

 

 

 

CPR 31.16 is something which is only something you should look at if you have a issue with the lender not giving you the agreement and not confirming if they have it or not

 

 

I have done but yesterday i recieved a letter saying the OC does not accept they cant persue it even tho they have admitted it in the letter that the DCA have been supplied. They have now said they never issued that letter.


OFT debt collection guidance

 

Please remember the only stupid question is the one you dont ask so dont worry about asking the stupid questions.

 

Essex girl in pc world looking 4 curtains 4 her pc,the assistant says u dont need curtains 4 a computer!!Essex girl says,''HELLOOO!! i,ve got WINDOWS!!'.

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Subbing. Excellent work Paul:)


<<<If I have helped please tickle the scales;-)<<<

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Now i would like to say, that it does no harm to ask for the agreement using section 77 or 78 CCA 1974, however this thread is for those that have a situation when the lender is saying that they have complied by sending a load of terms and conditions which are clearly not the agreement which you signed

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Subbing to this useful thread (I know I'll never find it again tomorrow) - note to self - must buy a pink keyboard

 

 

Quote from my own thread

"It doesn’t look as though they actually take the time to read any of the letters I send.

 

Should I just make it short and sweet and ask them to send me copies of the documents they would attach to a County Court Summons if I stopped paying them? "

Wils

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this is a great thread, will be keeping an eye on it - cheers to everyone who has contributed so far, very interesting...

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