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

[heliosfa]

were you out of the country when they initially got the CCJ (by default I assume?) against you? Did you inform them you were out of the country?

 

IF so, you may be able to get the judgement set asside and the case re-heard. Judgement being set aside should also deal with the charging order. Obviously when it goes through being reheard, you can ask for disclosure of the documents and get them that way.

 

How long has it been since they got judgement, and how long after that did they go for the CO?

 

I'd just get confirmation of this from a more knowledgeable bod as i'm still new here

[heliosfa]

Probably because they want to keep you guessing and delay. The less certain you are, the less likely you will be to take them to court.

 

Court can be expensive for companies who hire a local solicitor, especially in small claims as there are limited costs, and they want to try and avoid it.

[heliosfa]

The reasons why they won't send the original agreement for a CCA Request:

 

• They don't have to. Why do more than they need to to comply with the act?
  
• Cost - it's cheaper for them to send our a generic "agreement" that they beleive contains the same terms as the piece of paper that you "WOULD" have signed.
  
• Keep You Guessing - if they don't show you the real one, they keep you guessing & you are less likely to take them to court.Even if you took them to court, and it was small claims, and they won it would still cost them as there is cost protection in Small Claims.
  
• They don't have the agreement. Probably the most obvious reason, but they can keep you guessing...
  

It's all costs and mis-information/threats to them...

 

the CPR route can actually be backed up with a court order which they really do HAVE to comply with, and the court order would be for an actuall copy, not a "true Copy"

 

Thanks,

H

[heliosfa]

Absolutely - great summary, heliosfa.

 

The real advantage of this CPR 31.16 / N244 route is that it should stop their 'keep you guessing' tactic in its track.

 

Once the court orders them to produce the original agreement they either have to give you a copy or admit they don't have it.

 

And, unlike a failure to produce the agreement under CCA 1974 or the Data Protection Act, they can't later pull it out of the hat, having told the court they no longer hold it. So you can get some proper closure on the issue.

 

Why thankyou Militant Consumer

[heliosfa]

About 8 weeks ago I used the CPR pre-action court protocol 4.6© in order to obtain disclosure of documents from a DCA.

 

I realise now that I should have used 31.16, however, my 4.6© request has been ignored.

 

Should I go back and make a further request, or proceed to court for disclosure?

 

AC

 

Which protocols are you looking at? I've just had a look at the pre-action protocols on the MOJ site, and in the general ones (there are no specific ones for this type of case) there is no 4.6 ©

 

I would be starting again with a CPR 31.16 .

 

H

[heliosfa]

Right, OK, I still can't find that particular "version" of the pre action protocols however, I do have some comments. Did you comply with 4.2 and 4.3?

 

 

The whole point of the pre-action protocols is to try for resolution prior to court and if they are not followed, the court can make an advers costs order against the party who did not follow protocols. They are not really enforceable by the court for discosure, that is where the CPR and associated Practice Directions come in.

 

As I have already suggested, I would start again with the request at the start of this thread. PT is a practicing litigator and spent alot of time putting this together for CAG.

 

H

[heliosfa]

The 31.16 is better for disclosure because it can actually be enforced by a court order where as the pre-action protocols can't be. Not following the pre action protocols can lead to a costs order AGAINST the party who doesn't comply though.

 

 

CPR 31.16 is there for you to get information so that you can establish whether you do have a case prior to litigation.

 

Just seen that PT has responded and put it better than I could!

[heliosfa]

It's all down to that the pre-action protocols cannot actually be enforced by a court order whereas CPR 31.16 can. The incentive to follow pre-action is costs.

 

H

[heliosfa]

 

PT,

having just checked out Part 31,

it is not applicable to the small claims track!

 

Look like my CPR Pre-Action Protocol 4.6© request, was the correct way to go for disclosure in my particular case, which is just under £5,000.

 

Agree or, disagree?

 

AC

 

Untill allocation, you claim is not a part of the small claims track and as such part 31 applies untill/if it is allocated to Small Claims.

 

It could be argued that if you are close to the £5000 or if the case is "complex", it could go fast track. This is ultimately for the court (not the bank) to decide.

 

H

[heliosfa]

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

[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

[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