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

[angry cat]

I've found the section you are referencing, and it is 4.2(6), not 4.6©

 

as i have already said, 4.2(6) doesn't have an acompanying practice direction enabling enforcement of disclosure by the court. The incentive to follow 4.2(6) is costs and avoidance of litigation. 31.16 is an enforceable disclosure to enable you to determine if you have a case prior to the main shebang, so to speak.

 

If you read through most of this thread, the issue of track has been discussed a couple of times.

 

Also, you would not use an N1 for disclosure under 31.16, you use an N244.

 

You cannot seek an order for disclosure under 4.2(6)

 

H

 

I believe we are talking at cross purposes. I am NOT referring to 4.2(6) but 4.6©:

 

PRACTICE DIRECTION – PROTOCOLS - Ministry of Justice

 

This seems to be going around in circles.

 

AC

[heliosfa]

I believe we are talking at cross purposes. I am NOT referring to 4.2(6) but 4.6©:

 

PRACTICE DIRECTION – PROTOCOLS - Ministry of Justice

 

This seems to be going around in circles.

 

AC

 

That PD does not state that the court can enforce compliance which means you cannot make an application to the court to enforce it. THat section lays out how the parties SHOULD act, and that if they don't act then costs can be awarded against them.

 

If you go and make an application under 4.6, I can see it being thrown out and costs being awarded against you as the court has no "right" to make an order under that part.

 

CPR 31.16 is the correct route to go, as has already been stated by PT and myself.

 

H

[angry cat]

That PD does not state that the court can enforce compliance which means you cannot make an application to the court to enforce it. THat section lays out how the parties SHOULD act, and that if they don't act then costs can be awarded against them.

 

If you go and make an application under 4.6, I can see it being thrown out and costs being awarded against you as the court has no "right" to make an order under that part.

 

CPR 31.16 is the correct route to go, as has already been stated by PT and myself.

 

H

 

Not being difficult, just aiming at being correct.

 

:

THat section lays out how the parties SHOULD act, and that if they don't act then costs can be awarded against them."

 

The party has not acted as they should have, therefore any future Judge will see that I have pursued/am pursuing the party via CPR Pre-Action Court Protocol 4.6©.

 

I will now proceed to making a further request for disclosure but now under Part 31.16.

 

Heliosfa, I presume that you, like pt, work within the legal profession?

 

AC

[the_shadow]

I checked Part 31 and it stated that, Part 31 is not applicable to a small claims case;

small claims case, under £5,000.

 

I do not know what track it will be, if any track come to that, as the party clearly does not wish to enter into litigation. However, I have a right to the Docs. that I have requested.

 

 

AC

 

You missed the point of my post, the Judge decides what track it will be based on the info provided on the AQ, any attached evidence/directions and the defence and claim. To say a certain value will definitely be assigned to a track is wrong... its a guideline not a fact set in stone. Hence you use CPR 31.16 stating that as no court case has been brought and due to complexity will more than likely NOT be small claims it should be honoured.

 

S.

[angry cat]

Thanks for that Shadow.

 

Yes. I misunderstood your post but now it makes perfect sense, due to the complexity of my potential case...complex it is too.

 

AC

Edited May 24, 2009 by angry cat
error

[heliosfa]

Not being difficult, just aiming at being correct.

Not a problem, Just want to make sure that you have the best chance of getting the right outcome

 

The party has not acted as they should have, therefore any future Judge will see that I have pursued/am pursuing the party via CPR Pre-Action Court Protocol 4.6©.

Make sure that you mention this if you do get to court as it can influence the costs outcome

 

 

Heliosfa, I presume that you, like pt, work within the legal profession?

No, I'm an Engineering student but the more I look into law and learn about it, the more I am contemplating taking a law conversion course!

 

Sorry if I seemed a bit up myself

 

Thanks,

H

[angry cat]

Not a problem, Just want to make sure that you have the best chance of getting the right outcome

 

 

Make sure that you mention this if you do get to court as it can influence the costs outcome

 

 

 

No, I'm an Engineering student but the more I look into law and learn about it, the more I am contemplating taking a law conversion course!

 

Sorry if I seemed a bit up myself

 

Thanks,

H

 

Thanks for all your input Guys:)

 

I will continue to pursue...

 

AC

x

[alangee]

Got my "Agreement" back from M&S after CPR 31.16 request. Same as before, an application with no prescribed terms. Only this time in the covering letter, they state that although it is not signed by them, they think this is a minor problem the courts would overlook.

 

It is now with one of the nastier DCA's, so with no prescribed terms and not signed, I think I might be having some fun.

 

Alan

[coxy742]

i hope that PT will be successful in his PAD.

 

But hope that he is aware that the he will most likely have to pay the other sides costs, if he wins or loses (see SES Contracting Ltd and Another v UK Coal PLC and others, Court of Appeal, Oct 2007) unless he can show that it was clearly unreasonable to oppose the application or where the mannor of the opposition was so unreasonable as to make it appropriate to bear all of both parties' costs

 

A PAD is a application (so you do not use a N1 but a N244). it is a Pre-action application so the value of your claim does not matter and therefore what track the case will be heard in is not of concern.

 

It application is made under CPR 31.16 but the underlying legislation is S.33(2) of the Supreme Court Act 1981. S.33 allows a PAD to be made against any party who is likely to be a part to subsequent proceedings.

 

The Application form (N244) should be filed with a witness statement setting out why you should be granted the order.

 

Your application form should state the following under Part A (2) "the Intended Defendant disclose X,Y and Z pursuant to the Civil Procedure Rule 31.16 (Pre-Action Disclosure)"

 

Part A (3) "It would assist in the disposing of the Proceedings or provide good grounds for an appliaction for XXXXXX in relation to liability, and will save costs."

 

Tick evidence in part C. On the back make reference to the witness statement marked eg WS1.

 

The rule on how a witness statement should be written and in what format can be found in the CPR.

 

The Witness statement must state why should should be granted the Order. You should it out in a chronological order the events ie the letters back and forth, your dispute etc. BUT YOU MUST state the following in the statement:

 

1. The Defendant will be party to the subsequest proceedings.

2. The claimant will be a party to those proceedings.

3. If started, the Defendants would be obliged to produce the docs- we know exist and the docs are highly material to the dipute.

4. The docs may assist to resolve the dispute b4 proceedings and/or it may provide a clear question of liability.

5. It may save time.

6. Evan if ambivalent it will provide an early and useful indication of the further steps neded in litigation ie cost-effecive and focussed litigation

7. You know that the document/s exist and that disclosure pre-action will lead to a considerable saving in cost and time for the court and parties in establishing if there is a claim or grounds for litigation.

 

I hope this helps

[the_shadow]

i hope that PT will be successful in his PAD.

 

Did you even read the first couple of posts before putting this up???

 

S.

[DIVERMOOSE]

I have tried to read as much of the 54 pages as possible on here and have come to a wall.

I would appreciate a quick comment on the following:

My debt is with a DCA who has taken over the debt (upon their assignment from Cap One)I have paid for many years interest free until a couple of months ago.

It is now about £1600 with no interest paying about £80 per month..or I was.

I have sent the standard CCA requests as advised and they eventually sent me a cut and pasted application form header with my details and the signature block from the bottom. I responded that this was not a true copy and wanted a true copy.

They have now written back stating:

***************************************************

Thank you for your letter dated 21 May 2009, the contents of which are noted.

Our position remains unchanged, the information supplied fulfils our requirements under the Consumer Credit Act 1974; it has well been established that under the CCA a creditor may produce a document representing the terms and conditions of any loan and not the original or a copy of the signed loan agreement.

 

Upon our assignment we became the data controller and as such are entitled to process your data in accordance with the principles of the Data protection act 1998.

 

We clearly seefrom the account that you do not dispute you liability as you have made several payments already to it.

 

Yours sincerely

XXXX

Debt Purchaser Correspondence Manager

****************************************************

 

What official notification or contract should a DCA have when taking over the debt from Cap One? They tell me that I owe them money now yet nothing official is ever sent to the debtor....I assume they are right and have paid for years. Is this right?

 

Reading this thread, unless I am prepared to go to court and go down that route, do I have no real argument to fight against the payment with only not having a true copy of the agreeement as my case, which appears weak and risky.

Can I push and push and try and agree a reduced payment or

should I just start paying again?

 

Thanks

[foolishgirl]

Divermoose, you should start yout own thread on this as you will get more specific help & advice. Try posting the Cap1 forum, in the meantime, quick reply below.

 

 

What official notification or contract should a DCA have when taking over the debt from Cap One? They tell me that I owe them money now yet nothing official is ever sent to the debtor....I assume they are right and have paid for years. Is this right?

 

No, not correct, they should have sent you a Notice of Assignment

Reading this thread, unless I am prepared to go to court and go down that route, do I have no real argument to fight against the payment with only not having a true copy of the agreeement as my case, which appears weak and risky.

You can argue it but Cap1 & their DCAs don't often listen Litigation (providing you have the grounds) concentrates their minds.

Can I push and push and try and agree a reduced payment or

should I just start paying again?

 

See above comments, post up the details on your own thread, get CAGers advice then choose..

[foolishgirl]

Got my "Agreement" back from M&S after CPR 31.16 request. Same as before, an application with no prescribed terms. Only this time in the covering letter, they state that although it is not signed by them, they think this is a minor problem the courts would overlook.

:D Ha, ha!!

 

It is now with one of the nastier DCA's, so with no prescribed terms and not signed, I think I might be having some fun.

 

Alan

 

Enjoy the last laugh - FG

[pt2537]

i hope that PT will be successful in his PAD.

 

But hope that he is aware that the he will most likely have to pay the other sides costs, if he wins or loses (see SES Contracting Ltd and Another v UK Coal PLC and others, Court of Appeal, Oct 2007) unless he can show that it was clearly unreasonable to oppose the application or where the mannor of the opposition was so unreasonable as to make it appropriate to bear all of both parties' costs

 

A PAD is a application (so you do not use a N1 but a N244). it is a Pre-action application so the value of your claim does not matter and therefore what track the case will be heard in is not of concern.

 

It application is made under CPR 31.16 but the underlying legislation is S.33(2) of the Supreme Court Act 1981. S.33 allows a PAD to be made against any party who is likely to be a part to subsequent proceedings.

 

The Application form (N244) should be filed with a witness statement setting out why you should be granted the order.

 

Your application form should state the following under Part A (2) "the Intended Defendant disclose X,Y and Z pursuant to the Civil Procedure Rule 31.16 (Pre-Action Disclosure)"

 

Part A (3) "It would assist in the disposing of the Proceedings or provide good grounds for an appliaction for XXXXXX in relation to liability, and will save costs."

 

Tick evidence in part C. On the back make reference to the witness statement marked eg WS1.

 

The rule on how a witness statement should be written and in what format can be found in the CPR.

 

The Witness statement must state why should should be granted the Order. You should it out in a chronological order the events ie the letters back and forth, your dispute etc. BUT YOU MUST state the following in the statement:

 

1. The Defendant will be party to the subsequest proceedings.

2. The claimant will be a party to those proceedings.

3. If started, the Defendants would be obliged to produce the docs- we know exist and the docs are highly material to the dipute.

4. The docs may assist to resolve the dispute b4 proceedings and/or it may provide a clear question of liability.

5. It may save time.

6. Evan if ambivalent it will provide an early and useful indication of the further steps neded in litigation ie cost-effecive and focussed litigation

7. You know that the document/s exist and that disclosure pre-action will lead to a considerable saving in cost and time for the court and parties in establishing if there is a claim or grounds for litigation.

 

I hope this helps

LOL,

 

Ive had a fair amount of experience in discovery apps cheers,

 

i think you are in error though on the costs side of things

 

the CPR pre action protocols swung more in favour of the applicant due to the recent amendments, plus have you considered the effect of CPR 48(3)? the court can make an order for costs in your favour as was seen in SMT37's thread

[coxy742]

 

I think you are thinking of CPR 48.1.2 Pre-commencement disclosure and orders for disclosure against a person who is not a party.

 

(2) The general rule is that the court will award the person against whom the order is sought his costs—

(a) of the application; and

(b) of complying with any order made on the application.

(3) The court may however make a different order, having regard to all the circumstances, including—

(a) the extent to which it was reasonable for the person against whom the order was sought to oppose the application; and

(b) whether the parties to the application have complied with any relevant pre-action protocols.

 

The SEC case did not really move the goal posts. The Court of Appeal found on the facts that there was ample material to justify a departure from the general rule, but not to extent of ordering the respondent to pay the whole of the applicant's costs. The respondant produced vast amounts of documents, witness statements and arguements for the purpose of scaring the other side into submission. If they had acted more reasonable the general rule on costs would have been given.

 

Here the protocol is the general one with the general provision for "early disclosure" but we all know this doesn't happen ever often

[pt2537]

sorry , made an error

 

i meant to say 48(1)(3)

 

(3) The court may however make a different order, having regard to all the circumstances, including –

(a) the extent to which it was reasonable for the person against whom the order was sought to oppose the application; and

 

(b) whether the parties to the application have complied with any relevant pre-action protocol.

 

 

 

[coxy742]

Agreed.

 

if a person can show that the docs that are being requested are necessary ie not abit of a fishing trip, are still in their possession and would have to be disclosed during standed disclosure. And the Creditor is refusing to send the docs, then I don't think that a DJ is really going to say that the creditor is behaving reasonable and will differ the order on costs

[the_shadow]

Agreed.

 

if a person can show that the docs that are being requested are necessary ie not abit of a fishing trip, are still in their possession and would have to be disclosed during standed disclosure. And the Creditor is refusing to send the docs, then I don't think that a DJ is really going to say that the creditor is behaving reasonable and will differ the order on costs

 

I really DONT mean to be rude but if you had read the first dozen or so posts on this thread you would have come to the same conclusion, hence my question to your first post on this thread.

 

S.

[mashmallow]

I have sent letter one to cap one and i got a reply today stating that they have sent me the original agreement and if any terms have been varied then the copy agreement will include the updated terms. They go on to say that any request for pre-action disclosure under this rule must satisfy the criteria set out at CPR 31.16 and they will not enter into any further corresspondence. I am now going to send letter 2 as above in the thread.

They have stated any application made to the court will be need to be accompanied by evidence explaining why the criteria are satisfied. What does this mean please?

 

Mashmallow

[exchange]

We all seem to be getting the same response to the CPR 31.16 letter as I got this too. I simply wote back and said in plain english send me a copy of my original agreement or go away, or words to that effect.

I agve them 21 days (again!) and await a reply, due by a couple of weeks time.

[Stubie]

I'm sure you will tell me if I'm being stupid, but;

 

If you send off a s77-79 request and get back a crappy document or, as with the above post, and I had the same from Cap 1, an amended one, as long as the accompanying letter states that this satisfies the request. Then they are saying this is the executed document.

 

In court they would have to produce this document, exact on material matters, bearing you signature, based on s172. So, if the alleged agreement states £12 charges, then you need to produce a signed agreement bearing this term.

 

If they try to produce a different document, could you have the new document ruled inadmissible on this basis.

 

How do the lenders stand if they make a statement, governed by law, and then effectively admit that they flouted the law, first time around, and in most cases, repeatedly?

[diddydicky]

seems we are all getting the same crap from the delightful debbie at M & S

 

this is my response if it is of any use to anyone else:-

 

:-M & S Money

Kings Meadow

CHESTER

CH99 9FB

 

Dear Sirs

 

Re:- Your Account Ref xxxxxxxxxxxxxxxx Account in Dispute

 

Thank you for your letter of 26 May the contents of which have been noted.

 

I note that you confirm that what you have sent me is a true copy of a properly executed credit card agreement

 

What you have sent me is an application form which is signed by me and which does not contain any prescribed terms. Nor does it refer to any prescribed terms as being within the same document. (for example on the reverse side). .

 

You have also sent me a further separate document upon which is typed my name and address with no signatures, and headed as being” a credit card agreement regulated by the consumer credit act 1974” and this document contains some prescribed terms.

 

This document is not part of the other document , This is a separate document.

 

You will know that the prescribed terms must be within the same document ( within the four corners) and cannot be in another document.

 

In light of this and contrary to your assertion regarding the likelihood of the agreement being enforced by a court - I would advise you that due to the failure of this application form to include the prescribed terms within the same document a court would be prevented under section 127(3) from ruling upon it

 

This is a defective and unenforceable agreement which is not properly executed. I am amazed that you should consider that this is a “minor matter”

 

 

 

 

- 2 -

 

Nothing within the legislation allows for the fact of receiving or using of goods or monies or use of an account as a reason to allow the creditor to enforce an unenforceable agreement or for a court to rule upon that which it is prevented from ruling under section 127(3)

 

Indeed, it was the intention of the act that where a creditor failed, for whatever reason to get the documentation correct, that any monies or goods would be forfeited by the creditor as a gift and I quote:-

 

1.In the case of Dimond v Lovell [2000] UKHL 27, Lord Hoffmann said , at page 1131:-

 

“Parliament intended that if a consumer credit agreement was improperly executed, then subject to the enforcement powers of the court, the debtor should not have to pay.”

 

2.Sir Andrew Morritt, Vice Chancellor in Wilson v First County Trust Ltd [2001] EWCA Civ 633 said at para 26 that in the case of an unenforceable agreement:-

 

“The creditor must…be taken to have made a voluntary disposition, or gift, of the loan monies to the debtor. The creditor had chosen to part with the monies in circumstances in which it was never entitled to have them repaid;”

 

also:-

 

I refer to the judgment of TUCKEY LJ in the case of Wilson and another v Hurstanger Ltd [2007] EWCA Civ 299

"[11] Schedule 1 to the 1983 Regulations sets out the "information to be contained in documents embodying regulated

consumer credit agreements". Some of this information mirrors the terms prescribed by Sch 6, but some does not. Contrasting

the provisions of the two schedules the Judge said:

 

"33 In my judgment the objective of Schedule 6 is to ensure that, as an inflexible condition of enforceability, certain basic minimum terms are included which the parties (with the benefit of legal advice if necessary) and/or the court can identify within the four corners of the agreement. Those minimum provisions combined with the requirement under s 61 that all the terms should be in a single document, and backed up by the provisions of section 127(3), ensure that these core terms are expressly set out in the agreement itself: they cannot be orally agreed; they cannot be found in another document; they cannot be implied; and above all they cannot be in the slightest mis-stated. As a matter of policy, the lender is denied any room for manoeuvre in respect of them.

 

 

- 3 -

 

and finally I quote the author of the consumer credit act:-

 

 

As the draftsman of the Consumer Credit Act 1974 I would like to thank Dr Richard Lawson

for his interesting and well-argued article (30 August 2003) on*Wilson v First County Trust

Ltd*[2003] UKHL 40, [2003] 4 All ER 97.

Dr Lawson may be interested to know that I included the provision in question (section

127(3)) entirely on my own initiative. It seemed right to me that if the creditor company

couldn’t be bothered to ensure that all the prescribed particulars were accurately included in

the credit agreement it deserved to find it unenforceable, and that the court should not have

power to relieve it from this penalty. Nobody queried this, and it went through Parliament

without debate. I’m glad the House of Lords has now vindicated my reasoning and confirmed

that nobody’s human rights were infringed.

167*Justice of the Peace*(2003) 773.

 

If you feel that you do have an original properly executed agreement which contains the signatures and prescribed terms within one document then may I suggest that you make this available at your offices for me to inspect., as this would then enable you to achieve what you are demanding.

 

It is my opinion however that such an agreement does not exist and your failure to allow me to see it would not only confirm that fact but would also , in my opinion have serious repercussions in any future litigation in terms of costs awards since clearly you now have an opportunity to resolve this matter without the need for further protracted discourse or legal action.

 

It seems clear to me that it is more likely that such a document does not exist and therefore your early acknowledgment of this fact would allow us to discuss an outcome that would be to our mutual satisfaction

 

 

Yours sincerely

[basa48]

Slightly off topic as far as the previous post is concerned, but it appears many MBNA's agreements are illegible and even though we all know the various clauses in the Acts and Regs I thought this comment from Lord Sumner (Commercial Credit Company of Canada v Fulton [1923] AC798 ) was amusing whilst relevant:

 

"The Act promises him a true copy, not a puzzle. He is to inspect it, not recover the original by a process of conjectural emendation"

 

 

PS: Bloody excellent letter diddydicky

Edited June 1, 2009 by basa48
added PS

[diddydicky]

thanks- sorry about that just saw the M & S references and it struck a chord

 

ill copy that one and use it too!

[P-Eazy]

Can i start following these proceedings if i've already made a request under the CCA and refused to acknowledge any debt as they have failed to provide the signed credit agreement? i have started my own thread;

 

http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/201994-unenforceable-agreements-under-consumer.html

 

Please advise...