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

[means2anend]

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..

[means2anend]

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

[bustthematrix]

Trouble is, you can get the education here and if you appear to have a good case and are brave enough to go it alone (I just wouldn't be), you could get stuck with a judge (and there seems to be a few around) that ignore the Act and seem just to interpret it their way, which is not necessarily the correct way.

 

Even with the best will in the world, what chance have you got when coming up against this?!

I hear you. I am however extremely wary of all but the very best solicitors. (who don't come cheap)

 

You will do best for yourself either by becoming very knowledgeable and acting for yourself OR becoming knowledgeable and managing a good solicitor to act for you.

 

Either way, ignorance will always prove very costly, as we've all found out to some extent or another.

[Dotty50]

I hear you. I am however extremely wary of all but the very best solicitors. (who don't come cheap)

 

You will do best for yourself either by becoming very knowledgeable and acting for yourself OR becoming knowledgeable and managing a good solicitor to act for you.

 

Either way, ignorance will always prove very costly, as we've all found out to some extent or another.

 

 

OR hoping that a summons doesn't land on my door mat!

 

I do read a lot on here and have to say that a lot/most of the legal side of it just doesn't sink in. Probably an age thing!

[Fingers60]

I understand there was a test case in the week just gone weds 21st july...involving a cpr31.16 application vs barclays ...this case meant mine was put on hold pending the outcome...anyone have any update or news on this case?

 

Best

 

Fingers

[pt2537]

Kneale v Barclays Bank Plc (t/a Barclaycard) [2010] EWHC 1900 (Comm) (23 July 2010)

[Mandering]

Another defeat for the consumer, no surprise really.

[Fingers60]

Thanks PT

 

"

67. At all events this is academic since I have decided that, whether on grounds of jurisdiction or of discretion, there is no basis for any order for pre-action disclosure, so that the applicant must pay all the respondent's costs both at first instance and before me.
     
    Conclusion
    
68. The appeal is allowed and the applicant must accordingly pay the costs below and before me. "
    

So I guess we cant use 31.16 any more? I have gone down the section 78 route, had loads of t & cs etc....for that reason gone down the cpr 31.16 route ..but I guess my request for disclosure will now be judged in accordance with this case?

 

Where do we go from here?

 

Best

 

Fingers

[diddydicky]

the use of the carey judgement at first flush- seems to be a new weapon in the creditors armoury

 

however, weapons are dangerous things and can hurt those weilding them

 

the creditor may well "win" the first round with a numpty judge after which- if the debtor notifies his intent to appeal- then turns the weapon back on the creditor

 

since the creditor then runs the risk of a definitive appeal court ruling concerned solely with the issues of re constructed agreements in support of litigation and which i venture to suggest they would not be willing to risk at this moment in time

 

they may well posture right up until the hearing - but IMO would back down at the eleventh hour

[HP Mum]

Gosh, Poor Mr Kneale. After all that the judge landed him with Barclays costs on top of his own costs and the £14k debt. That really sucks.

I hope he doesn't have too much to lose....

[pt2537]

ok

 

my first reading of the case was, that Mr Kneale had put forward no evidence at all, to suggest that A) the terms werent his terms and B) if he signed any document at all

 

Flaux made a real big point on that, and it seems to me that the courts are looking for more than a simple prove it allegation

 

So its all down to what the DEBTOR has to say

 

so,

 

Identify the issues, find the faults with what has been provided, and you may be ok

[bustthematrix]

Well, to me it further highlights just how careful one has to be as Claimant.

 

As someone has keenly observed, the CCA was designed more as a shield for the consumer than a sword against lenders.

 

A few questions PT - thanks.

ok

 

my first reading of the case was, that Mr Kneale had put forward no evidence at all, to suggest that A) the terms werent his terms

How do you go about evidencing this? One way of course is with a relevant reference copy (original or not). Assuming that most people are no longer in possession of their copy, what then?

 

Some have mooted the idea of obtaining a copy issued by the same lender around the time one's agreement was taken out. The question is how do people do this and if the debtor is put to strict proof by the lender as to how he sourced such an agreement and it's reliability, how would he respond?

and B) if he signed any document at all

Not sure I understand your point here? As claimant, what is he supposed to have pleaded?

 

Flaux made a real big point on that, and it seems to me that the courts are looking for more than a simple prove it allegation

I think you have to seperate between requirements as Defendant vs as Claimant. Don't you think?

 

So its all down to what the DEBTOR has to say

When all he has are dusbiously "fulfilled" S77-9 requests and failed CPR requests, what more can the debtor say?

 

so,

 

Identify the issues, find the faults with what has been provided, and you may be ok

As Claimant or as Defendant???

:?

[Undercover-Elsa]

With regard to A} some reconstructions contain references to Acts which had not been passed at the time the agreement was taken out, and I have seen agreements where the current address has been used when the debtor was in a different address at the start (and the bank has been unable to populate the form with the original address from other sources)

If such reconstructions are also accompanied by a letter confirming that this is a reconstructed copy of the original agreement then presumably that would provide good evidence...

 

Elsa x

Edited July 26, 2010 by Undercover-Elsa
clarity

[RobinWayRobinme]

Seems case makes clear what thresholds are required to successfully make a 31.16 pre-action disclosure. Is there a silver lining in this judgment at p55 & 56. It appears there is a definate distinction between disclosure of the original signed agreement and s.78 regime and being unimpressed with barclays arguments about difficulty in providing original agreement should there be an order for its disclosure.

 

Any opinions on this?

R

[emandcole]

Seems case makes clear what thresholds are required to successfully make a 31.16 pre-action disclosure. Is there a silver lining in this judgment at p55 & 56. It appears there is a definate distinction between disclosure of the original signed agreement and s.78 regime and being unimpressed with barclays arguments about difficulty in providing original agreement should there be an order for its disclosure.

 

Any opinions on this?

R

 

Would agree with that. I do get the impression however that since Carey the value of a section 78 request is now negligible.

 

I also get the impression after reading the judgment that the claim itself, by a claims management company on behalf of Mr. Kneale, was poorly presented and badly handled from the beginning.

 

On the face of it, at first glance it seems that the request of documentation under the Civil Procedure Rules (Pre-action protocols and Part 31.16) and therefore an unsigned copy will not suffice, only a copy of the original contract in its unaltered form will suffice in these circumstances wasn't enough, which is disturbing as the judge appeared to suggest that this request was entirely inappropriate as he considered it to be little more than a fishing trip in the hope of finding an agreement that was unenforceable.

 

Surely, this is your right as co-party to any contract? It's different sure but if I was asked to show my TV licence and I didn't wouldn't that expose me to risk of prosecution, which I could easily avoid by simply showing my licence (databases and computer records of payment aside of course).

 

Section 78 is kind of pointless but should still be done for formaility reasons, the judge however seemed to think that the bank did not need to produce the original agreement for inspection in this case.

 

Why? Can only suspect that the judge found the case for Kneale to be poorly presented having provided no argument to suggest that Barclaycard hadn't fulfilled their section 78 obligations or complied with the requirements of a correctly executed credit agreement. It would follow that a simple accusation that the agreement is unenforceable with no intelligent evidence to back that up was not sufficient to persuade the judge that the CPR 31.16 order was required.

 

So, if we are to use 31.16, after using 31.14 and 31.15 perhaps, then we need to support any accusation we make with a credible reason in order to give the creditor an opportunity to respond.

 

I suspect (might be wrong) that in this case the claims management company had simply requested an order for disclosure having made no definitive accusation the bank could respond to, which would ordinarily have allowed the judge to consider that response and determine if the 31.16 was in fact then necessary.

 

Finally, as the post RobinWayRobinMe added above regarding silver linings found in paras 55 and 56 it does seem apparent that Justice Flaux would have been prepared to make such an order irrespective of the protestations of the bank that it would make their lives extremely difficult if they were ordered to produce the original agreement (clearly they've destroyed it then). This is of course quite right, inconvenience for one party is not an excuse to bypass legal process.

 

If you intend to use 31.16 then make sure you've founded such application on a solid bedrock of evidence and help the court to help you. Simply wandering into the court requesting an order is made with little in the way of evidence to substantiate that request will be met with the sort of response Kneale suffered.

 

Just my thoughts of course.

 

[diddydicky]

Well, to me it further highlights just how careful one has to be as Claimant.

 

As someone has keenly observed, the CCA was designed more as a shield for the consumer than a sword against lenders.

 

A few questions PT - thanks.

 

:?

 

i think (IMO) you might be missing the point here

 

the onus of proof is on the claimant to prove that something did happen- not for the defendant to prove it did not

 

unless the defendant actually makes a positive assertion that he:-

 

did not sign a document

 

did not receive a document

 

etc etc

 

but instead just relies on "quoting the rules" then the judge has nothing to work with and the claimant has nothing much to prove

[RobinWayRobinme]

Yes I agree, it appears that kneale's case was badly presented and the appeal was lost purely on grounds that the rules for making an application for pre-action disclosure were not met. My interpretion is that as barclays had complied with s78 request kneale should have been able to determine question of enforceability from that, but if there was a question over what was provided in answer to s78 request or alleged that an agreement was not signed, he may have been more successful.

 

However, in a claim being made by the creditor, I would suggest that a 31.14 disclosure is a totally different matter as there is not a test that must be met before pre-action disclosure is allowed as action has already been started. The point with my original post was that P55 and 56, if it were needed, helps to rubbish any argument that a re-conned agreement allowed under s.78 has nothing to do with disclosure in court proceedings where a creditor is attempting to enforce an agreement regulated by the CCA.

R

[bustthematrix]

Another defeat for the consumer, no surprise really.

Lets not be so quick to write these things off as 'defeats' and losses etc. Sometimes they offer vital learning points as to the best way forward. Flaux was also the Judge in McGuffick (the so called nonsense ruling) and is very clearly pro-lender in these matters. I think a higher court may well find differently to these two rulings by him, for the lenders. I've heard that McGuffick may well be appealed and overtunred at some point but we shall see...

 

Anyway, it is worth noting that Kneale vs Barclaycard succeeded in the county court! So that judgement has been overturned by what appears to be, in my view a pro-lender judge.

 

At part 54 of his ruling, Justice Flaux commented that

 

.. in a case such as the present, where the necessity to have the document to bring any claim is simply not demonstrated ...

 

This was the same problem Carey and co had - they knew there was a problem but could not prove it and the Judges have pounced on this weakness. Is it wise to be the Claimant in such a situation?

[bustthematrix]

i think (IMO) you might be missing the point here

 

the onus of proof is on the claimant to prove that something did happen- not for the defendant to prove it did not

 

unless the defendant actually makes a positive assertion that he:-

 

did not sign a document

 

did not receive a document

 

etc etc

 

but instead just relies on "quoting the rules" then the judge has nothing to work with and the claimant has nothing much to prove

Not so sure. As I am coming to understand it, this particular case was about the Claimant's right to use CPR31.16 to compel the lender to disclose the original documents for examination. It's not about the agreement itself, but whether he had done enough to show that the court should order the lender to disclose.

[bustthematrix]

However, having read through (almost all the judgement), I think Flaux has bent over backwards (again) to side with the Lender here. He seems to find for the lender at every opportunity without much regard to prejudices to the rights of debtors.

 

I seriously hope there will be an appeal and that a higher court will clearly see that a CPR31.16 request, properly served, will prevent all kinds of needless and costly litigation from lenders that really do not have a proper cause of action due to improper records (read compliant enforceable agreements). This alone would have been reason enough to uphold the County Court decision.

 

This was another missed opportunity to send a clear message to the bankster community.

 

I do agree though that Kneale could have pleaded better.

[emandcole]

Not so sure. As I am coming to understand it, this particular case was about the Claimant's right to use CPR31.16 to compel the lender to disclose the original documents for examination. It's not about the agreement itself, but whether he had done enough to show that the court should order the lender to disclose.

 

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.

[bustthematrix]

Good debate eh?! In essence think it's vital you can demonstrate to the court that all other avenues have been exhausted.

Just how many avenues are there E? Think how much the courts love to use the phrase "in the interests of justice". Do they really mean this or is it all part of the facade?

 

Think how easy (and proper and just) it would be for a court to order a lender to produce an original/copy original of the executed agreement?

 

Think how much nonsense that would get rid off for all parties concerned and how much simplicity and clarity it would bring to proceedings. If there is a valid claim, it can be decided quickly and easily on the facts, if not, the claims go away!

[bustthematrix]

So much of the battle is now being fought with smoke and mirrors instead of the facts and it really should not be allowed to continue.

 

For example, is it justice that though Kneale has 'lost' this case and been ordered to pay his costs + claimants + the debt balance , Barclaycard are eventually found to either 1) not have an original agreement to speak of or 2) it's very IEA if they do?

 

In the US, their laws make it much simpler to request originals and where they can't be produced by the lender, there are very severe consequences.

[emandcole]

Just how many avenues are there E?

 

True, was referring to the Section 78 (useless) and 31.14 and 31.15 (dependent on whether litigation has started, track allocated etc) and other CPR options but agree there really are limited options.

 

Having reviewed a number of threads, especially as more are turning to the CPR's as knowledge grows, it seems the case in the majority of occasions that creditors are happy to ignore such requests when we all accept it would be far simpler for the creditor to just play ball.

 

This of course would be in line with overriding objectives and should save costs so that potential litigants, regardless of side know where they stand.

 

Sure it will suck for the creditor on many occasions but the fact is creditors have also ignored many of the regulations governing credit agreements for far too long, now is simply the age of realisation for consumers.

 

Ideally creditors should just man up and accept this is inevitable to some extent whilst making every effort to ensure all future documentation is accurate, including default notices etc.

 

Ultimately perhaps there needs to be greater emphasis placed on the importance of the pre-trial CPR requests (where a consumer feels they may have been incorrectly processed by the creditor) with the establishment upholding correctly detailed requests where appropriate.

 

As you've pointed out however Justice Flaux does appear to be less than impartial so a good appeal resulting in clearer guidelines for all would be great. Just think how much simpler it would be if all of this could be tidied up, instead of the games we all see as either party tries to back the other into a corner .

[bustthematrix]

So much of the battle is now being fought with smoke and mirrors instead of the facts and it really should not be allowed to continue.

 

For example, is it justice that though Kneale has 'lost' this case and been ordered to pay his costs + claimants + the debt balance , Barclaycard are eventually found to either 1) not have an original agreement to speak of or 2) it's very IEA if they do?

 

In the US, their laws make it much simpler to request originals and where they can't be produced by the lender, there are very severe consequences.

 

Whilst we must learn from Kneale's apparent mistakes, we shouldn't be too hard on him as the Chester County Court did find for him earlier. Flaux however, seemed to bend over backwards to assist Barclaycard, in my view.