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

[means2anend]

subbing!!!

[means2anend]

Depends on the type of claim and your percieved chances of success. Let's just say they're no mugs...they will only take on such work where there is a perceived high chance of success...OR an easy route to payment e.g. Legal Aid.

 

...and probably rightly so at the end of the day...who wants to be involved in costly lengthy battles without reward?

 

Education, education, education, education....this is what gives the 'man on the street' the best chances.

 

Legal Costs are a hot topic at the moment...I was watching the debates currently on defamation law and the issue of ''no win no fee''....that there is an anomaly in the fact that ATE and no win no fee,and success fess will only be taken by lawyers on the chance of highly successful case...but then if there is the prospect of a case being highly successful why accrue waste in costs shifted to the losing side...why the need for ATE when the risks of losing are so small..It is almost the same as the situation when Banks will only give credit to the rich and not the poor..the rich dont need credit so why puch cards at them...the ones who need it more are the poor at favourable rates...

 

m2ae

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Yes Dotty but Insurance is Insurance it is about the value one is prepared to pay against an event happening which is basically inverse in relation to the occurrence of that event......

 

Ultimately the subsequent premiums WILL of neccesity have to be paid by the consumer/taxpayer....and so when the case has been risk assessed as being very low in losing (the Event) Insurance is wasteful because that will ultimately be shifted onto the losing parties insurers into their annual premiums..

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In truth when a civil case ONLY needs 51% chance of success for the insurers to be interested...so why when there is an 80% chance is insurance still given..surely if the solicitor in his judgement is confident then it matters not that there be insurance..in this case the solicitor has TRULY exercised an objective independant judgement base purely in his capabililties....and the merits of the case before him.he can choose to accept or reject..

 

Insurance is important but it is being overly used and there is too much OVER insurance resulting in wastage....but that argument is for another time on another thread

 

m2ae

[means2anend]

Waksman in Carey et al referring to one of the others simply threw his case out for lack of ''positive evidence''...in kneale that glaring fact alone should not have been missed....

 

This is at County court level why is it beng represented as a test caes...it not binding is it?

 

Is it binding because there is a High Court Judge sitting in?

[means2anend]

CmC's are a load of punts mmmm!!!

[means2anend]

AHH!

 

Appeal at High Court goes against Kneale did you receive 2 pm's from me because the 2nd pm contained more info

 

thanks BTM

[means2anend]

Just in case BTM

 

this was the 2nd PM if you did not receive it

 

PART 2 explains the application of Rules in relation to proceedings in County and High courts

 

Part 18.2 gives an interesting insight on ''information'' and in what circumstances it may

be used.

 

Part 31.(2)SCOPE of APPLICATION ''except claims on a small track''

 

31.6 what documents are to be disclosed

 

31.16.1 request made under ANY ACT

 

31.16 BOTH parties have to already be in proceedings or likely to...

 

So BTM in all probability BOTH have to be at least likely to be part of proceedings in order to request disclosure....that is the parameter.

 

BUT scope appears not apply to small track claims as above mentioned.Thats how i interpret it from wording mentioned

 

In conclusion there appears to be no automatic entitlement/right to disclosure documents save in those defined circumstances

 

Let me know if you find anything!!!

 

m2ae

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Actual Proceedings are not necessary...just ''likely''

 

Focusing on High Court Appeal decision...it does not really change the fact that documents according to disclosure can still be requested under 31.16 subject to a prima facie case that debtor can show absence of proper executed contract.

 

Kneale brought the case at County court ...hence AGAIN there he failed to provide positive evidence....shoulkd have let THEM bring proceedings...that would have shifted Burden.

 

High Court effectively on BURDEN.

[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

[means2anend]

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

[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

[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

[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..)

[means2anend]

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)

 

yes...it would help us in overcoming exactly what HHJ Flaux says in latter part of para 17....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.

[means2anend]

We should get Caggers to donate their t&c's for the same years 1995,1996,1997....and see whteher there are indeed inconsistencies with Cagger A's 1996 T&c's compared to Cagger B's 1996 t&c's and so on....or whether Cagger A 1996 matched Cagger B's 1997 ....

 

Indeed Claims Management Companies STATE that they somehow have a sliding generic scale as to t&C's for particular years...this can then be used to challenge Anne Temple's evidence ''the clerk'' statement that ''that is what it would have looked like at that time''

Edited July 28, 2010 by means2anend
add 'STATE' that they'

[means2anend]

m2ae

 

T&C's differ on a month by month basis, so, for instance, showing a 2001 set of t&c's may not help your case if the OC had different deals during that year.

 

Alan

 

Thanks

 

That further reinforces the risks of error!!!

 

Anne Temple gave evidence back to 1995:eek:...when did she join?

 

my post count suddenly gone down...why???

[means2anend]

could be used as 'dis-similar fact evidence to rebuff allegations of similar fact evidence!

[means2anend]

Lets distinguish the evidence required in support of CPR 31.16 from the issue of whether there is in existence an 'true copy' which is honest and accurate of the original EXECUTED agreement ......there is a distinction.