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

[humbleman]

A lender sets up a cmc, introduce a client, get him to high court, gets a judgment and uses it against others.

 

or

 

do the reverse to help borrowers.

[means2anend]

i agree, personally i cannot see how anyone can even contemplate their next move until they have made the initial cca77/79 request.

 

the request should also include a clear and precise question to the lender to admit the fact of not having the original agreement if that is the case and referring them to OFT guidelines on misleading statements or ommissions that may lead the debtor into making decisions he otherwise would not have made

 

 

BINGO!!!

[means2anend]

38-Having said that, it seems to me that because CPR 31.16 (3)(a) and (b) do require the applicant to show that proceedings may well ensue (per Rix LJ at paragraph 72 of Black v Sumitomo) the applicant has to show some sort of prima facie case which is more than a merely speculative “punt”. In my judgment, that is exactly what any claim would be here. The applicant in the present case cannot even begin to demonstrate that his agreement with the bank was unenforceable and, for the reasons I have already given, I very much doubt whether it is necessary for him to have the disclosure he seeks in order to bring whatever claim he might wish to bring. The applicant certainly cannot show that proceedings may well ensue.

53-Mr Gosling submits that this case is different, because this is a focused application for a single document. He relies upon what Rix LJ said in Black v Sumitomo at paragraph 95:

“In my judgment, the more focused the complaint and the more limited the disclosure sought in that connection, the easier it is for the court to exercise its discretion in favour of pre-action disclosure, even where the complaint might seem somewhat speculative or the request might be argued to constitute a mere fishing exercise. In appropriate circumstances, where the jurisdictional thresholds have been crossed, the court might be entitled to take the view that transparency was what the interests of justice and proportionality most required. The more diffuse the allegations, however, and the wider the disclosure sought, the more sceptical the court is entitled to be about the merit of the exercise.”

54-However, in my judgment the applicant can gain little assistance from that passage in a case such as the present, where the necessity to have the document to bring any claim is simply not demonstrated for the reasons I have given. I cannot see any reason why, if the applicant had any sort of arguable case that the agreement was unenforceable, he could not make it on the basis of the documents already produced under section 78. That is the second reason why I would exercise my discretion to refuse to make an order for pre-action disclosure in this case. There is nothing in this case which puts it out of the ordinary run.

 

 

 

 

 

Also one approach in order to reach the jurisdictional threshold adopted by court in Rose I think was disapproved of by LJJ Gibson ,Mance and Keen,

That approach tried to address the problem the debtor had in arguing the reasonable prospects of success of the actual trial issues at the pre-action stage in order to have disclosure of documents.

Trial issues and or substantive issues at pre-action stage were highly assumptious and that at trial issues may very well be different.

 

At first flush it does appear that the original executed contract ''will never be seen again''

 

But good preparation and a prima facie arguable case, which, remember threshold according to Flaux is not that high can be achieved and I think DD's post above should not be taken lighty or underestimated..it is still evidence albeit prima facie....and so we do have the OPPORTUNITY to ''never see the original executed agreement again''

 

In relation to Humbleman's comment I cannot BUT agree with point that CMC's may ''double agents'' otherwise they and their solicitors must be 'just out of university'

Edited July 27, 2010 by means2anend

[bustthematrix]

E, just pondering over this issue and I'd like to dig a bit further on the following if you don't mind?

Good debate eh?! In essence think it's vital you can demonstrate to the court that all other avenues have been exhausted. In line with the request originally made to a creditor that is not pursuant to section 78 of the CCA (CPR Pre Trial as in my earlier post) it's important to detail why you are making a request to see a copy of the original agreement, even if that's not the actual reason for the request.

What would an original executed have in it that a true copy recon not have in it (other than signatures of course)? This assumes you were sent a true copy that is honest and accurate.

Examples would be I don't agree the APR is correct, or believe a prescribed term was absent etc. Please show me otherwise by providing an actual copy of our agreement.

But on what basis would you dispute this if you don't have the original executed yourself or there was never an original in the first place?

Edited July 27, 2010 by bustthematrix
M2AE!!! :o))))

[means2anend]

in Kneale remember HHJ Flaux referred to it as a copy of executed agreement

[emandcole]

E, just pondering over this issue and I'd like to dig a bit further on the following if you don't mind?

 

Not at all

 

Good debate eh?! In essence think it's vital you can demonstrate to the court that all other avenues have been exhausted. In line with the request originally made to a creditor that is not pursuant to section 78 of the CCA (CPR Pre Trial as in my earlier post) it's important to detail why you are making a request to see a copy of the original agreement, even if that's not the actual reason for the request.

What would an original executed have in it that a true copy recon not have in it (other than signatures of course)? This assumes you were sent a true copy that is honest and accurate.

 

You've answered your own question I think? More about ascertaining the honesty of the lender perhaps as many have sent copy and paste agreements that bear no resemblance to the originals.

 

Examples would be I don't agree the APR is correct, or believe a prescribed term was absent etc. Please show me otherwise by providing an actual copy of our agreement.

But on what basis would you dispute this if you don't have the original executed yourself or there was never an original in the first place?

 

There must have been an original surely? Assuming that's the case you may not have a copy yourself but later begin to think the rate of APR you were originally offered is different to the APR on a statement. It would be perfectly fair to then ask the creditor to give you a true copy of the agreement to check you'd not been mislead.

 

The reason can be one of many, if it's a legitimate concern irrespective of how minor it may seem surely you have a right to have any doubts alleviated? A contract after all is between two willing parties, it should not be a dictatorship. The creditor should not be hiding anything.

[emandcole]

Would agree with that. I do get the impression however that since Carey the value of a section 78 request is now negligible.

Section 78 is kind of pointless but should still be done for formaility reasons, the judge however seemed to think that the bank did not need to produce the original agreement for inspection in this case.

 

 

Making a section 77-79 request is not a waste of time as stated in a previous post if the lender doesn't hold the original he must advise of this when complying. (Wacksman)

 

Think this relates to my earlier posting? Keen to point out I did not state it was a waste of time and repeated that it should still be carried out for purposes of formailty, but post Waksman section 78 has undeniably had its potency reduced.

 

How many of us have had the barest of documentation supplied with the creditor boldly declaring they've now fulfilled their obligations? Yes we can complain to the OFT et al but as they're basically toothless this also diminishes the value of the S78 request, whhich should ordinarily be pretty powerful.

 

The OFT have helped more recently by stating that creditors must not be deceitful or misrepresent their actual position when supplying copy agreements but this seems to be quite slow with some creditors taking time to acknowledge this regulation.

 

Have had far more luck personally with CPR, legal departments appearing to attach more importance to such requests (where appropriate of course) than yet another S78 landing on their desks. Just my experience.

[means2anend]

copy of original executed agreement can come from sources (''that existed at the time'') OTHER THAN the executed agreement itself...This therefore widens the ambit for errors and opportunities for reducing the ''accuracy and honesty'' of the true copy and could be used as one avenue for a cpr 31.16 disclosure......Just a thought

[means2anend]

Good debate eh?! In essence think it's vital you can demonstrate to the court that all other avenues have been exhausted. In line with the request originally made to a creditor that is not pursuant to section 78 of the CCA (CPR Pre Trial as in my earlier post) it's important to detail why you are making a request to see a copy of the original agreement, even if that's not the actual reason for the request.

 

Examples would be I don't agree the APR is correct, or believe a prescribed term was absent etc. Please show me otherwise by providing a an actual copy of our agreement.

Of course we also have the OFT to help us (for a change) as the creditor is not allowed to deceive the consumer by pretending they hold a signed agreement if in fact they do not. Ask the creditor therefore for a statement confirming they hold the signed agreement, merely a question but an important and powerful one.

 

Would be considered a misleading act giving further ground to support a subsequent 31.16 application if the creditor tried to blag it. Don't run therefore before you can even stand up! This case sufficiently demonstrates that if we try to do that we're likely to fall and hurt ourselves.

 

 

mmm.. dont know!

 

16 So far as the other requirements of section 61 of the 1974 Act are concerned, specifically that the agreement contained the prescribed terms and conformed with the Regulations and that it contained all the terms of the agreement, it seems to me that the applicant and his advisers are well able to establish whether the agreement complied with the requirements of section 61 from a consideration of the pro forma Application and terms and conditions which they have already received. Mr Gosling for the applicant saw the force of this point, but sought to challenge it by submitting that it might be that that pro forma Application and terms and conditions were not what the applicant signed and he could only be sure what he did sign when the original or a direct copy was disclosed.

 

17 The difficulty with that argument is that the only material before the court is that a bank employee who has considerable experience of Barclaycard terms and conditions is confident that these are the ones which the applicant would have signed. There is simply no evidence either from or on behalf of the applicant that he does not believe this is the form of agreement he signed or that some other form of terms and conditions and/or Application was extant at the time in 1995, which he might have signed instead. It seems to me inconceivable that, if the solicitors and claims management companies who lie behind this and similar applications had any evidence from past cases that, at any given time, more than one form of Barclaycard terms and conditions was extant, they would not have deployed it in support of this and similar applications.

18 Accordingly, I remain extremely sceptical about the suggestion that it is really necessary for the applicants in this or similar cases to receive by way of pre-action disclosure a direct copy of the executed agreement in order to see whether the particular agreement is unenforceable.

Edited July 27, 2010 by means2anend

[means2anend]

31.1 Scope of this Part

(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

 

31.16 Disclosure before proceedings start

 

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

(2) The application must be supported by evidence.(HOW ON EARTH WAS THIS MISSED)

 

(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.

 

Has anyone comments on ''except a claim on the small claims track'' and did Kneale or his advisors think that assertions made on Panorama about unenforceable agreements was evidence...if not then what evidence did they think they had and did Halbert J give due weight to the evidential aspect or was the overrididing object what Halbert J focus on in order to dispose of the case.

Edited July 28, 2010 by means2anend
hih to did

[means2anend]

delete for duplication

[paulwlton]

copy of original executed agreement can come from sources (''that existed at the time'') OTHER THAN the executed agreement itself...This therefore widens the ambit for errors and opportunities for reducing the ''accuracy and honesty'' of the true copy and could be used as one avenue for a cpr 31.16 disclosure......Just a thought

 

There was a case recently where a member had retained his carbon copy, he then sent a CCA request and accordingly the bank complied omitting signature etc. The bank started a claim and the member made a CPR request for disclosure of the original, the bank duly obliged and guess what? yes! it didn't match the "true copy" simply because they'd doctored it after execution and was therefore unenforceable....the bank discontinued.

 

PW

[means2anend]

Thanks for that Paul

 

Also...

 

7 In Carey v HSBC [2009] EWHC 3417 (QB) HH Judge Waksman QC sitting in the Manchester Mercantile Court decided a series of test cases which concerned, inter alia, the scope of a creditor’s obligations under section 78. In that case the debtor argued that the creditor was obliged pursuant to section 78 to recreate a copy of the executed agreement by reference to the original signed version. The learned judge rejected that argument, concluding that the creditor can satisfy its duty under the section by supplying a reconstituted version of the executed agreement which may be from sources other than the actual signed agreement itself.

 

So is Flaux AFFIRMING that reconstituting from other sources does not apply to s61 and that construction directly from a copy of the executed agreement or the original executed agreement itself is required

[means2anend]

There was a case recently where a member had retained his carbon copy, he then sent a CCA request and accordingly the bank complied omitting signature etc. The bank started a claim and the member made a CPR request for disclosure of the original, the bank duly obliged and guess what? yes! it didn't match the "true copy" simply because they'd doctored it after execution and was therefore unenforceable....the bank discontinued.

 

PW

 

It would appear that he satified the reasonable prospect of success test by having prima facie evidence in the form of the Carbon Copy would have satisfied 31.2 ''must be supported by evidence''

 

Therefore the 2 stage jurisdictional test of both parties being likely to proceedings was satisfied and the discretion (in order to fairly dispose of anticipated proceedings was the outcome because the bank discontinued based upon the totality of the circumstances entitled him to disclosure

[means2anend]

Also suggests bank never had original executed agreement anymore and under OFT guidelines should have stated that in as much..but then they do not want to make that definitive statement do they;)

 

..Preparation is definitely the key and decision in Kneale whilst courageous of him to take it forward is not fatal to request for originals provided 31.2 is complied with...PREPARATION..

 

Position is different if debtor is already in proceedings 31.3© before disclosure request is made ....so let them initiate the proceedings and we debtor defend.

.......In this case the jurisdictional test has been met in that both ARE and not merely ''likely'' parties to the proceedings and the 2nd stage of discretion cannot be applied 'cos the Court has none (it is too late to dipose of the proceedings when proceedings have already begun..... a request should be made for disclosure after proceedings havbe begun but as early as possible.

Edited July 28, 2010 by means2anend

[RobinWayRobinme]

Another suggestion of when a 31.16 pre-action disclosure may be successful is when recon s.78 can be argued that t&c's could not be part of original agreement because of a, b, and c etc. or some of the terms contained in recon could not be correct because of .... or address is wrong

 

Deny the accuracy of s78 copy and state reasons why you deny accuracy and IMO you still should get pre-action disclosure.

R

[means2anend]

Yes but be careful of what HHJ Flaux said in paras 16 , 17 and 18.

 

To sum up the banks employee was gave evidence that terms and conditions actually used ''would have been the ones used in 1995''

 

I would have liked to have seen if she had a contract of employment with the lender at that time?...if not contemporenoeus would be in issue.

 

Also and I find this rather strange HHJ Flaux stated or what amounted to the proposition that it was sufficient if the A/f can show that PT's were present. (this was stated in the above paras..)

[diddydicky]

which all goes to show (IMO) it is far better, less costly and time consuming- to simply let the creditor take you to court and then wrest control away from him using CPR31.14 and which would give exactly the same result!!

[bustthematrix]

There was a case recently where a member had retained his carbon copy, he then sent a CCA request and accordingly the bank complied omitting signature etc. The bank started a claim and the member made a CPR request for disclosure of the original, the bank duly obliged and guess what? yes! it didn't match the "true copy" simply because they'd doctored it after execution and was therefore unenforceable....the bank discontinued.

 

PW

Hi Paul, this is the ideal scenario, that one has their own copy of the original and that it is IEA. The problem is when you don't and they don't OR they do but won't disclose as it is IEA or would rather 'lose it in archive' so they can get a crack at doctoring up a fully compliant recon.

 

Funny that :rolleyes: , how so many of the executed originals were faulty/IEA but the recons are almost always pristine (except for when they can be shown NOT to be true copies of the executed original of course).

Edited July 28, 2010 by bustthematrix

[bustthematrix]

Wow just read the judgment pt posted

 

This judge is clearly pro-bank and anti-debtor... how any judge can say that a claim of unenforceability can be seen by a response to a s78 reconstructed copy proves it.

You can say that again. Have you read through McGuffick? Some of his comments in there are, IMO, disgraceful. Makes a mockery of justice and the purpose of the CCA.

 

Unenforceability is largely based on S61/S127. s78 is not supposed to address that at all, just to give information. How he reasoned that one is beyond me.

[diddydicky]

which highlights a major failing of this forum- for if caggers could get reference to results of actual cases won by other caggers - even in county courts- the balance of probabilities would shift significantly

 

i am serious considering starting an off site storage facility where caggers can send their case results so that other caggers can access them

 

dont know yet how practical it would be or how it would work- but it is the missing link in our chain of armour (IMO)

[bustthematrix]

Another suggestion of when a 31.16 pre-action disclosure may be successful is when recon s.78 can be argued that t&c's could not be part of original agreement because of a, b, and c etc. or some of the terms contained in recon could not be correct because of .... or address is wrong

 

Deny the accuracy of s78 copy and state reasons why you deny accuracy and IMO you still should get pre-action disclosure.

R

100% agree. The problem is how to do this when you don't have a copy of the original?

 

What can you do when the recon is 'correct' but still 'wrong'? It's right in that it ticks all the boxes and cannot be faulted i.e. all the t&c's are as they would have been, the historic address is right etc, they have ensured all the prescribed terms are shown in one document etc. You would not be able to fault such a recon on the basis of inconsistent T&C's or that the historic default charges are stated wrongly etc. It would of course have no signatures from either party.

 

So the recon is now correct in that

a) It truly encompasses all that would be in the original and

b) It cleans up all the previous errors that may have rendered it IEA

 

However it is WRONG in that it is not a true copy of the original executed agreement i.e. it is not honest and accurate because the original had some 'honest errors' by the lender in it which have, of course, not been reproduced in the recon.

[diddydicky]

100% agree. The problem is how to do this when you don't have a copy of the original?

 

What can you do when the recon is 'correct' but still 'wrong'? It's right in that it ticks all the boxes and cannot be faulted i.e. all the t&c's are as they would have been, the historic address is right etc, they have ensured all the prescribed terms are shown in one document etc. You would not be able to fault such a recon on the basis of inconsistent T&C's or that the historic default charges are stated wrongly etc. It would of course have no signatures from either party.

 

So the recon is now correct in that

a) It truly encompasses all that would be in the original and

b) It cleans up all the previous errors that may have rendered it IEA

 

However it is WRONG in that it is not a true copy of the original executed agreement i.e. it is not honest and accurate because the original had some 'honest errors' by the lender in it which have, of course, not been reproduced in the recon.

 

i think you answered your own question

 

if you do not have the original then how can you know aout the honest errors?

 

if you DO have a copy of the original and it is materially different then why bother with 31.16- just wait for them to take you to court with a dodgy rec onstruction!

 

clearly MINOR errors will be tolerated-

[bustthematrix]

which highlights a major failing of this forum- for if caggers could get reference to results of actual cases won by other caggers - even in county courts- the balance of probabilities would shift significantly

 

i am serious considering starting an off site storage facility where caggers can send their case results so that other caggers can access them

 

dont know yet how practical it would be or how it would work- but it is the missing link in our chain of armour (IMO)

Absolutely DD. How judges can claim that justice is served by allowing lenders such leeway with vitally important documents is, amazing.

 

Consumers should not have to go to such lengths and face restrictive evidential burdens. The very fact that various lenders and DCAs have been shown to doctor documents should be enough for judges to seriously frown on these recons and unchallenged witness statements.

 

In fact, I would not be at all surprised to find that the overwhelming majority of Claims started by credit have been won off the back of either

a) Application forms + seperate T&C's

b) Recons + Witness statements

 

Originals? Let alone compliant originals? In court?

 

But necessity, they say, is the mother of invention. Maybe this is the next level, the next stage of the fight to be taken to the banksters.

 

Should such a thing be started, I'd certainly support it.

[bustthematrix]

8)

i think you answered your own question

Not sure you've understood the point though...

if you do not have the original then how can you know aout the honest errors?

You don't know. You suspect. They've lost the original and have admitted to it and the judge allows a recon and WS, because, says he, that is, after all...reasonable...

if you DO have a copy of the original and it is materially different then why bother with 31.16- just wait for them to take you to court with a dodgy rec onstruction!

Well there's no stress if you have your own IEA original copy is there?

 

clearly MINOR errors will be tolerated-