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

[the_shadow]

Thanks for the reply Shadow.

 

The things is after reading this forum for over 12 hours solid, I am still unsure which Letter to send first, Letter 1 on this thread, s.77/78 letter elsewhere or something else..

 

I expect the either of the first 2 letters should come with the PPI details. We are not sure whether PPI was even taken out, as my parents were asked to visit Black Horse offices to sign the paperwork and, they think the paperwork might be different to the copies we have.

 

Thanks again.

 

Ok, S77 may get you the agreement but it may not, if PPI was taken out at time of application this should show as a signature or a tick on this form. £1 + 12+2 working day wait

 

a SAR will get you all statements/t&c/agreement/manual records although some firms send more and some send next to nothing back for these, £10 + 40day wait though and some firms dont sent t&c's some dont sent agreements some dont even send either

 

CPR ~ The two letters here and probably in all honesty court action via an N244 is the only other way of forcing the lender to show the agreement. Free + 21 Days + 21 Days + Court

Possible alternative for just getting the t&c is to ring them and ask for them to be sent as you may have a claim you wish to put in, they should send them and you'll be able to see if over60's can claim.

 

If the t&c do show claiming stops when you get to 60 then its a possible complaint to FOS over misselling either against the insurance firm for not advising cover was no longer available or the lender for selling a policy they knew would not be suitable.

 

Might be an idea to start your own thread and post the link here for others to follow..

 

S.

Edited May 21, 2009 by the_shadow
s78 replaced by s77, this is a loan not a credit card agreement

[johno23]

subbing

[angry cat]

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

[angel_1]

hiya all you kind caggers

 

pls take a look at mine and then beachy's thread

 

we had the same letter this past week

 

http://www.consumeractiongroup.co.uk/forum/barclaycard/185297-angel-bcard1.html

 

cheers is in a full responce back for our cpr requests or another tactic?

 

have a sunny day laters angel x

[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

[angry cat]

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

 

MOJ Practice Directions - Protocols;

see 4.6©

 

 

Pre-action behaviour in other cases4.1In cases not covered by any approved protocol, the court will expect the parties, in accordance with the overriding objective and the matters referred to in CPR 1.1(2)(a), (b) and ©, to act reasonably in exchanging information and documents relevant to the claim and generally in trying to avoid the necessity for the start of proceedings.

4.2Parties to a potential dispute should follow a reasonable procedure, suitable to their particular circumstances, which is intended to avoid litigation. The procedure should not be regarded as a prelude to inevitable litigation. It should normally include –

(a) the claimant writing to give details of the claim;

(b) the defendant acknowledging the claim letter promptly;

© the defendant giving within a reasonable time a detailed written response; and

(d) the parties conducting genuine and reasonable negotiations with a view to settling the claim economically and without court proceedings.

4.3The claimant's letter should –

(a) give sufficient concise details to enable the recipient to understand and investigate the claim without extensive further information;

(b) enclose copies of the essential documents which the claimant relies on;

© ask for a prompt acknowledgement of the letter, followed by a full written response within a reasonable stated period;

(For many claims, a normal reasonable period for a full response may be one month.)

(d) state whether court proceedings will be issued if the full response is not received within the stated period;

(e) identify and ask for copies of any essential documents, not in his possession, which the claimant wishes to see;

(f) state (if this is so) that the claimant wishes to enter into mediation or another alternative method of dispute resolution; and

(g) draw attention to the court's powers to impose sanctions for failure to comply with this practice direction and, if the recipient is likely to be unrepresented, enclose a copy of this practice direction.

4.4The defendant should acknowledge the claimant's letter in writing within 21 days of receiving it. The acknowledgement should state when the defendant will give a full written response. If the time for this is longer than the period stated by the claimant, the defendant should give reasons why a longer period is needed.

4.5The defendant's full written response should as appropriate –

(a) accept the claim in whole or in part and make proposals for settlement; or

(b) state that the claim is not accepted.

If the claim is accepted in part only, the response should make clear which part is accepted and which part is not accepted.

4.6If the defendant does not accept the claim or part of it, the response should –

(a) give detailed reasons why the claim is not accepted, identifying which of the claimant's contentions are accepted and which are in dispute;

(b) enclose copies of the essential documents which the defendant relies on;

© enclose copies of documents asked for by the claimant, or explain why they are not enclosed;

(d) identify and ask for copies of any further essential documents, not in his possession, which the defendant wishes to see; and

(The claimant should provide these within a reasonably short time or explain in writing why he is not doing so.)

(e) state whether the defendant is prepared to enter into mediation or another alternative method of dispute resolution."

 

As stated prior, I have already requested disclosure under The CPR Pre-Action Court Protocol: 4.6©...ignored!

[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

[angry cat]

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

 

PRACTICE DIRECTION – PROTOCOLS - Ministry of Justice

 

Rest assured that all pre-action court protocols have been followed to the letter!

 

A resolution has been sought, however, it has been ignored;

even a part 36 offer was made but ignored, also.

 

I was actually going to issue an N1 for dsiclosure of ALL the documents that I require.

However, because I am mindfull of following the correct procedures wanted to make sure that the CPR pre action court protocol 4.6© is sufficient for my needs and in the eyes of any future judge?

 

Yes, I know who pt is:)

 

Confused now;

why is 31.16 better than CPR pre action 4.6©?

 

AC

[pt2537]

Hi Everyone

 

The Pre action protocols are quite useful when you file a letter of claim, as the other side is expected to either accept your claim and settle thus avoiding court, or in the alternmative , reject your claim and where necessary serve upon you documents which support their claim

 

however CPR 31.16 allows you to seek disclosure of key documents which are needed to establish if there is a claim or not, as obviously, you can issue and then discontinue with costs against the other side if they produce docs which you have not been supplied prior to starting proceedings but that does become a waste of court time

 

I am in court on the 2nd June for a PAD Hearing under CPR 31.16 , it does work well when the other side refuses to provide documents that are essential to your case

[angel_1]

many thanks Pt.... i and others have had similar letter this week see my earlier post if you had missed it,

 

wondered what your legal mind made of it please if you have a moment spare

 

i appreciate everyones knowledge, thank you all

 

have a sunny weekend laters angel x:)

[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!

[Gazza112]

Hi Everyone

 

The Pre action protocols are quite useful when you file a letter of claim, as the other side is expected to either accept your claim and settle thus avoiding court, or in the alternmative , reject your claim and where necessary serve upon you documents which support their claim

 

however CPR 31.16 allows you to seek disclosure of key documents which are needed to establish if there is a claim or not, as obviously, you can issue and then discontinue with costs against the other side if they produce docs which you have not been supplied prior to starting proceedings but that does become a waste of court time

 

I am in court on the 2nd June for a PAD Hearing under CPR 31.16 , it does work well when the other side refuses to provide documents that are essential to your case

 

 

 

 

Hi PT

 

Look forward in seeing how you get on with your case.

I've gone down the route CPR 31.16 with these companies, and still they come back with we do not need to supply you copies under section 77/78.

I've gave them a follow up letter to supply these docs, so it looks like i'll be going the same way as you.

 

Gaz

[pt2537]

Hi PT

 

Look forward in seeing how you get on with your case.

I've gone down the route CPR 31.16 with these companies, and still they come back with we do not need to supply you copies under section 77/78.

I've gave them a follow up letter to supply these docs, so it looks like i'll be going the same way as you.

 

Gaz

Gazza

 

I dont think i have tooo many problems in my case, the other side supplied a document that said see terms and conditions, and then they say we are not entitled to the terms and conditions, its clear under s78 that we are as it states "any document refered to in it" and therefore i think their goose is cooked

[angry cat]

Hi Everyone

 

The Pre action protocols are quite useful when you file a letter of claim, as the other side is expected to either accept your claim and settle thus avoiding court, or in the alternmative , reject your claim and where necessary serve upon you documents which support their claim

 

however CPR 31.16 allows you to seek disclosure of key documents which are needed to establish if there is a claim or not, as obviously, you can issue and then discontinue with costs against the other side if they produce docs which you have not been supplied prior to starting proceedings but that does become a waste of court time

 

I am in court on the 2nd June for a PAD Hearing under CPR 31.16 , it does work well when the other side refuses to provide documents that are essential to your case

 

Agreed PT

 

:

© enclose copies of documents asked for by the claimant, or explain why they are not enclosed;

 

I have sought disclosure of key documents in order that I can establish the exact claim that I wish to make.

Surely, that is sufficient in my particular situation!

 

I am ready to seek disclosure through the courts and cannot see why, I should make a further request under 31.16, when I have already sought disclosure under CPR Pre Action 4.6©.

 

However, I will if you think that, by using 31.16 it will benefit me, then I will do so?

 

AC

[pt2537]

Agreed PT

 

:

© enclose copies of documents asked for by the claimant, or explain why they are not enclosed;

 

I have sought disclosure of key documents in order that I can establish the exact claim that I wish to make.

Surely, that is sufficient in my particular situation!

 

I am ready to seek disclosure through the courts and cannot see why, I should make a further request under 31.16, when I have already sought disclosure under CPR Pre Action 4.6©.

 

However, I will if you think that, by using 31.16 it will benefit me, then I will do so?

 

AC

 

Hello AC,

 

Hmm, i think that if you are going to seek documents then i think that CPR 31.16 would be the provision that you would be asking for under anyway, but of course you have the option to issue proceedings on the back fo their non compliance but the only risk there is if they produce the docs during standard disclosure then you would need to discontinue, although you would secure your costs of bringing the claim in those circumstances

 

but CPR 31.16 would ensure you are on sound footing with the docs before proceedings are started

 

thats just my view of course

[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

[angry cat]

Agreed PT

 

 

 

Hello AC,

 

Hmm, i think that if you are going to seek documents then i think that CPR 31.16 would be the provision that you would be asking for under anyway, but of course you have the option to issue proceedings on the back fo their non compliance but the only risk there is if they produce the docs during standard disclosure then you would need to discontinue, although you would secure your costs of bringing the claim in those circumstances

 

but CPR 31.16 would ensure you are on sound footing with the docs before proceedings are started

 

thats just my view of course

 

Point taken, Thank You!

 

The party concerned is just being difficult...I know that if they disclose, they will have shot themselves in the proverbial foot. Therefore, if I bring pressure to bear in court for dsiclosure, no doubt they will come up with, something...!

 

Therefore, in order that I cross all the i's and t's, I will make a further request under 31.16, frustrating as it is.

 

AC

[angry cat]

Gazza

 

I dont think i have tooo many problems in my case, the other side supplied a document that said see terms and conditions, and then they say we are not entitled to the terms and conditions, its clear under s78 that we are as it states "any document refered to in it" and therefore i think their goose is cooked

 

Terms and Conditions;

PPI policy plus original Conditions...same old story...

Edited May 23, 2009 by angry cat
error

[Beck1968]

If they were not to provided you with an exact copy of the original agreement and you know any "agreement" was pre 2007....

 

could you just not go down the line of "FORMAL DISPUTE" and stop all payment on your side and stop calls and letters for payment on there side (or that would be harassment)and stop entrys on your credit file

 

could you then not have the debt wrote off and your credit file restored

as the debt is un-enforceable

 

might be waffle.........your thoughts!!!!

 

Beck

[angry cat]

Agreed PT

 

 

 

Hello AC,

 

Hmm, i think that if you are going to seek documents then i think that CPR 31.16 would be the provision that you would be asking for under anyway, but of course you have the option to issue proceedings on the back fo their non compliance but the only risk there is if they produce the docs during standard disclosure then you would need to discontinue, although you would secure your costs of bringing the claim in those circumstances

 

but CPR 31.16 would ensure you are on sound footing with the docs before proceedings are started

 

thats just my view of course

 

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

[the_shadow]

 

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

 

If you havent got passed the AQ stage yet then who is to say what track it will be

 

S.

[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

[Beck1968]

Hi,

"is NOT made pursuant to section 78 Consumer Credit Act 1974 but"

would this text not be better removed from the template so they

can't send letters quoting "Consumer Credit Act 1974" as the request

was totally pursuant to the Civil Procedure Rules ( Pre action protocols and Part 31.16)

and any mention would look like clear breach

Beck

[angry cat]

 

If you havent got passed the AQ stage yet then who is to say what track it will be

 

S.

 

I have requested disclosure of ALL Documents under CPR 4.6©;

I cannot issue until I am in receipt of such.

 

Of course, I have not passed the AQ stage, because at present I am in limbo...

 

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.

 

The CPR's are so confusing, therefore I am just trying to make sure that I am following the correct route.

Wouldn't look good if I issue an N1 for disclosure under 31.16 and then the judge says;

you should have used CPR 4.6© as your potential claim will be listed under small claims.

 

AC

[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