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

[I've got no money]

The other thing of course is you do a CPR 31.16 letter - they don't reply - you do a chasing letter telling them that if they don't reply that you will conclude that the documents don't exist and if that doesn't get a reply apply to the County Court for a declaration s142 (1)(b) for an Order that the alleged agreement is unenforceable...

 

Even If you get to court and they produce an enforceable agreement you should not have to apy their costs as they ignored your CPR 31.16 request

[the_shadow]

The other thing of course is you do a CPR 31.16 letter - they don't reply - you do a chasing letter telling them that if they don't reply that you will conclude that the documents don't exist and if that doesn't get a reply apply to the County Court for a declaration s142 (1)(b) for an Order that the alleged agreement is unenforceable...

 

Even If you get to court and they produce an enforceable agreement you should not have to apy their costs as they ignored your CPR 31.16 request

 

Today the first CPR case has gone to court and the claimant won, the court ordered barclaysharks to produce the document and turned down the defendants requests for costs of a barrister due to non-compliance with CPR 31.16.

 

We await his full posting of details but its good news and just shows pt2537's reasoning to be solid.

 

S.

[SURFBOY]

i sent a CPR 31.16 request to the Co Op Bank for my visa credit card agreement.

They sent me the same application form that they sent to me after my SAR to them but a different set of terms and conditions.

Now they seem to think that they have complied with my request and continue to demand payment and put interest on to the ballance.

Where do i go from here?

[I've got no money]

Today the first CPR case has gone to court and the claimant won, the court ordered barclaysharks to produce the document and turned down the defendants requests for costs of a barrister due to non-compliance with CPR 31.16.

 

We await his full posting of details but its good news and just shows pt2537's reasoning to be solid.

 

S.

 

So that sounds interesting - I don't really understand what happened - which thread is it on

 

Who was the claimant - if the debtor won then the issue of costs wouldn't really arise as the general rule is that costs follow the event - that is loser pays winners costs. Where 31.16 would come in is that if the case went to trial and the debtor lost then you would argue that a failure to comply with 31.16 meant that the winner (i.e. the creditor) should not get their costs.

 

If it was a self contained Pre Action protocol application that is interesting but even if it were - costs would be awarded because you had won the application not because they had failed to comply with 31.16.

 

It may seem that I'm being pedantic but it is important tht we all understand how things actually work

[militantconsumer]

Here is the thread with today's success.......

 

http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/165349-smt37-morgan-stanley-goldfish.html

 

Well done smt! (and thanks to PT too)

[I've got no money]

That is quite a neat result - presumably when/if they don't comply you then issue proceedings for a declaration of unenforceability.

 

The other thing is that if they can't produce it - you can complain to the IC - as they've lost your personal data

[pt2537]

So that sounds interesting - I don't really understand what happened - which thread is it on

 

Who was the claimant - if the debtor won then the issue of costs wouldn't really arise as the general rule is that costs follow the event - that is loser pays winners costs. Where 31.16 would come in is that if the case went to trial and the debtor lost then you would argue that a failure to comply with 31.16 meant that the winner (i.e. the creditor) should not get their costs.

 

If it was a self contained Pre Action protocol application that is interesting but even if it were - costs would be awarded because you had won the application not because they had failed to comply with 31.16.

 

It may seem that I'm being pedantic but it is important tht we all understand how things actually work

yes while the general rule is that costs follow a victory the court under CPR 31.16 can order costs against the applicant for an order unless there has been a breach of protocol. hence why i stress it is important to show a breach of protocol first

 

there is a good amount of case law which i have quoted at the start of the thread which should offer a level of protection from an adverse costs order as the courts have said if there is a breach of protocol then at the very least the winner should get the documents with no order for costs, but it is easily possible that costs will be granted in your favour if you can show a breach of protocol

[blind-as-a-bat]

yes while the general rule is that costs follow a victory the court under CPR 31.16 can order costs against the applicant for an order unless there has been a breach of protocol. hence why i stress it is important to show a breach of protocol first

 

there is a good amount of case law which i have quoted at the start of the thread which should offer a level of protection from an adverse costs order as the courts have said if there is a breach of protocol then at the very least the winner should get the documents with no order for costs, but it is easily possible that costs will be granted in your favour if you can show a breach of protocol

 

I think that penny is starting to drop, slowly but is dropping:wink:

 

Im not sure everyone in this thread cottened on to that point, not through lack of trying though.

[AA99]

I had cottoned on;) Well done people

[Gazza112]

Hi Pt and all

 

Looks like i'll be going the to Court on the 31.16 route.

Issued a 31.16 letter to Barclaycard in January but never had a reply from them. I've not done much about getting in touch to Barclaycard over non-compliance, as i'm dealing with other creditors at the moment.

 

Gaz

[pt2537]

Hi Pt and all

 

Looks like i'll be going the to Court on the 31.16 route.

Issued a 31.16 letter to Barclaycard in January but never had a reply from them. I've not done much about getting in touch to Barclaycard over non-compliance, as i'm dealing with other creditors at the moment.

 

Gaz

you need to make sure you have been more than reasonable with them and that you have sent follow up letters, if you dont then you may leave yourself open to an order for costs against you.

 

i know of a firm local to us who got stung for 2k costs for being unreasonable and failing to follow up with the second letter

[Gazza112]

Hi Pt

 

I'll have to go back but i think i gave them 21 day to reply to my first letter.

Yes, do agree i'll get a follow up letter in the post, and find out why they have not responded to the original letter i sent them.

 

Gaz

[FlyboyAgain]

Hello Folks!

 

Despite what the OFT or FOS spout out every now and again, it must be remembered that these are often just comments. All too often, they are not fully thought through, and the Debt Industry will always jump on anything they say if they think it is useful to them.

 

In the case of an Agreement made before CCA-2006, if there are no Prescribed Terms then it is not just unenforceable, there is no Debt.

 

 

BRW

 

I really need some assistance on PTs. After CCAing and following up with a second letter, the bank stepped in (not the DCA) and supplied a signed copy of the Priority Application form ( dated feb 2000) There are no PT on that three page photocopy but there is, in another Agreement document, details of what I should be paying to the credit catrd, to wit:-

a) 2% of the money you owe us

b) an amount equal to the total of and CC Repyaments Cover premiums, etc.

 

Further on, in the next section, it states that the 'total charge for credit is £xxx, consisting of £xxx(the same sum) in interest This is based on credit of £xxxx being borrowed at the start of the agreement.'

 

There is nothing else, other than interest rates, missing payment and interest charges, ad nauseam.

 

Anyone want to jump in here and advise me?

[I've got no money]

yes while the general rule is that costs follow a victory the court under CPR 31.16 can order costs against the applicant for an order unless there has been a breach of protocol. hence why i stress it is important to show a breach of protocol first

 

there is a good amount of case law which i have quoted at the start of the thread which should offer a level of protection from an adverse costs order as the courts have said if there is a breach of protocol then at the very least the winner should get the documents with no order for costs, but it is easily possible that costs will be granted in your favour if you can show a breach of protocol

 

Then the costs rules are no different to any other case - i.e. if there is a protocol and you don't follow it AND you win you run the risk of not getting costs and/or paying the other sides. If you follow the protocol AND win then you should get your costs

 

Doing a 31.16 application as I understand it all you need to do is a written request followed by a couple of chasing letters and a threat of an application. The only situation where there would be any risk of costs (unless you lost - which would be slightly different) would be if you didn't send a CPR 31.16 letter and didn't warn of legal action.

 

It really is no different to other civil applications - that's why when I advise people about 31.14 applications that is why I always advise them to do the initial request and then to follow it with the threat of an application and costs

[I've got no money]

yes while the general rule is that costs follow a victory the court under CPR 31.16 can order costs against the applicant for an order unless there has been a breach of protocol. hence why i stress it is important to show a breach of protocol first

 

there is a good amount of case law which i have quoted at the start of the thread which should offer a level of protection from an adverse costs order as the courts have said if there is a breach of protocol then at the very least the winner should get the documents with no order for costs, but it is easily possible that costs will be granted in your favour if you can show a breach of protocol

 

Then the costs rules are no different to any other case - i.e. if there is a protocol and you don't follow it AND you win you run the risk of not getting costs and/or paying the other sides. If you follow the protocol AND win then you should get your costs

 

Doing a 31.16 application as I understand it all you need to do is a written request followed by a couple of chasing letters and a threat of an application. The only situation where there would be any risk of costs (unless you lost - which would be slightly different) would be if you didn't send a CPR 31.16 letter and didn't warn of legal action.

 

It really is no different to other civil applications - that's why when I advise people about 31.14 applications I always advise them to do the initial request and then to follow it with the threat of an application and costs

[smt37]

The write up of my hearing today is here : http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/165349-smt37-morgan-stanley-goldfish-4.html#post2121142

[the_shadow]

The write up of my hearing today is here : http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/165349-smt37-morgan-stanley-goldfish-4.html#post2121142

 

Well done!

 

Sorry you had to be the first but glad you were more than capable for the hearing:)

 

Sounds like you had a good fair judge. Hope this solves your Barclaysharks "problem" now.

 

S.

[pt2537]

Then the costs rules are no different to any other case - i.e. if there is a protocol and you don't follow it AND you win you run the risk of not getting costs and/or paying the other sides. If you follow the protocol AND win then you should get your costs

 

Doing a 31.16 application as I understand it all you need to do is a written request followed by a couple of chasing letters and a threat of an application. The only situation where there would be any risk of costs (unless you lost - which would be slightly different) would be if you didn't send a CPR 31.16 letter and didn't warn of legal action.

 

It really is no different to other civil applications - that's why when I advise people about 31.14 applications that is why I always advise them to do the initial request and then to follow it with the threat of an application and costs

well it can be the case that you can succeed with the application and still be left with an order for costs against so i will disagree there on that small point, however, it should normally be the case that you will atleast succeed with securing the docs, the judge can refuse to award you costs and also refuse to award the otehr sides costs too.

 

it is worth noting that when making a request under CPR 31.14, an extension for time to file your defence should also be sought and agreed with the other side, why leave yourself short of time because the other side failed to plead their case correctly.

 

i always seek 28 days from the point of disclosure and if they refuse then its an application on notice into the court, take no prisioners me:)

[Muffintop]

if you have gone 31.16 with no response should you follow up with 31.14?

[I've got no money]

[quote=pt2537;2121468

 

it is worth noting that when making a request under CPR 31.14, an extension for time to file your defence should also be sought and agreed with the other side, why leave yourself short of time because the other side failed to plead their case correctly.

 

i always seek 28 days from the point of disclosure and if they refuse then its an application on notice into the court, take no prisioners me:)

 

When I was in practice I always did it that way - mainly because the other side reply to correspondence from other Sols BUT with LIP's often the Sols don't - so if you go down the extension of time route you are forced into making an N244 application at a very early stage. If the other side don't reply you can't agree anything with them.

 

I find that with an LIP it's more straightforward to file a holding defence rather than apply to extend time for service of the defence. I then pursue either the Part 18 or CPR 31.14 request up to and including strike out. I find that LIP's feel happier with a defence of some sort being filed. Assuming that I get the disclosure I then draft an amended defence and when that's ready I apply for permission/agreement.

 

I'm interested that you now prefer the former approach as virtually all of the advice given on CAG is to adopt the latter. Indeed I remember some time ago you and I having a discussion over the "embarrassed defence" - when I pointed out some of its' failings - my recollection is that you argued that it was necessary

[pt2537]

When I was in practice I always did it that way - mainly because the other side reply to correspondence from other Sols BUT with LIP's often the Sols don't - so if you go down the extension of time route you are forced into making an N244 application at a very early stage. If the other side don't reply you can't agree anything with them.

 

I find that with an LIP it's more straightforward to file a holding defence rather than apply to extend time for service of the defence. I then pursue either the Part 18 or CPR 31.14 request up to and including strike out. I find that LIP's feel happier with a defence of some sort being filed. Assuming that I get the disclosure I then draft an amended defence and when that's ready I apply for permission/agreement.

 

I'm interested that you now prefer the former approach as virtually all of the advice given on CAG is to adopt the latter. Indeed I remember some time ago you and I having a discussion over the "embarrassed defence" - when I pointed out some of its' failings - my recollection is that you argued that it was necessary

Hi,

 

I think that i try to draw a line between what i do in the day job to what we do on here.

 

Many of the people who come to the CAG are not legally trained and some probably dont have funds for a lawyer and most probably dont have an understanding of the court process

 

It is difficult, if the LIP shows a full understanding of practice and procedure ( due to the assistence given on here) then there is a risk that they will be considered as more knowledgable than they actually are, so i try to keep it simple on here, i do still consider a holding defence is a useful tool for the LIP as courts will more likely allow them to amend if the claimant has not disclosed matters pleaded.

 

however some people are getting wise to CPR 31.14 and as i said, its more in my day job that i use that proceedure than on here but that said, as long as people understand it fully then they will be ok which ever approach they follow

 

the main thing for me is that people are assisted to fight back against these oppressive and unreasonable financial institutions and i feel that there has been a great deal of success on that front

[angel_1]

hiya all

 

well I for one am truely thankful for the help from cag and this thread opens up your eyes to a lot of more legal avenues

 

just on the question of being reasonable, - ive sent the first letter i actually gave my creditor a bit more than 21 days, they have totally ignored it, now due to helping my friend defend a house eviction, i m looking at sending my second letter to my creditor they have had another 3 weeks after my initial letter date finished, i could in theory give them 21 days now or stick to my original more days....- just thinking im being very very very reaonable before i hit them at court....

 

actually giving them enough rope to shoot them even more in their foot if they dont reply havent I???

 

many thanks laters angel, otherwise ive stuck to the letter you have drafted at the beginining of the thread

 

ready now to send 2nd letter will await your responce,

 

cheers angel x have a sunny day all:)

[I've got no money]

Hi,

 

I think that i try to draw a line between what i do in the day job to what we do on here.

 

Many of the people who come to the CAG are not legally trained and some probably dont have funds for a lawyer and most probably dont have an understanding of the court process

 

It is difficult, if the LIP shows a full understanding of practice and procedure ( due to the assistence given on here) then there is a risk that they will be considered as more knowledgable than they actually are, so i try to keep it simple on here, i do still consider a holding defence is a useful tool for the LIP as courts will more likely allow them to amend if the claimant has not disclosed matters pleaded.

 

however some people are getting wise to CPR 31.14 and as i said, its more in my day job that i use that proceedure than on here but that said, as long as people understand it fully then they will be ok which ever approach they follow

 

the main thing for me is that people are assisted to fight back against these oppressive and unreasonable financial institutions and i feel that there has been a great deal of success on that front

 

Hi,

 

So are you in practice - now - that's excellent. Are you doing a training contract?

[cloggy]

Hi All,

 

Have been out of circulation for a few days and just back on the thread.

Well done SMT - great news and a real boost to us all who are fighting the same ones.

 

Like all of us, I have learnt so much from joining CAG.

 

I have been asking my chums at Mercers to wait while I turn my tape on, I tell them they are the XX harrassing call and then ask for them to give me their full names, phone no and Credit Licence no before I can confirm who I am.

 

They have now taken to immediately giving a set of random numbers as a CCL and when I refuse to confirm who I am they seem to get most annoyed and hang up.

 

My thanks to all who contribute to the thread and help us through with our problems. Keep up the good work and particular thanks to PT for starting this one off.

 

Cloggy.

[louloujs]

Many of the people who come to the CAG are not legally trained and some probably dont have funds for a lawyer and most probably dont have an understanding of the court process

 

It is difficult, if the LIP shows a full understanding of practice and procedure ( due to the assistence given on here) then there is a risk that they will be considered as more knowledgable than they actually are,

 

This is exactly why this site works. I am your typical lay consumer who wants to find out more about how various points of law can be applied to challenge and redefine agreements that finance houses have been using for years to ride roughshod over any number of codes of conduct, largely in the name of profit.

 

If, or rather when I walk into the courtroom, the impression I want to give is not that I'm there to get out of paying a debt (i.e. misinformed and belligerent) but that I am relying on the law that I have researched to protect myself and others from poor practices etc. (i.e. reasonably well-informed and concerned).

 

The thought that DJ would consider that I'm more knowledgeable than I am because of the procedures that I've followed is possibly enough to stop me getting to the courtroom door - and of course I'd be open to abuse from the other side.

 

I have a feeling that given enough legal rope to pursue my cases with too much zest, I might just be in line for a hanging.

 

Original CPR letter at the ready.

 

Thanks to excellent work by pt and a superb execution by smt. Examples to us all.

 

LL