"Without Prejudice" Response to my s78(1) Request

[Monty2007]

I took out a John Lewis MC in 2004 and in Jan 2009 requested a copy of my agreement as per s78(1) of the CCA 1974. JL responded with a blank application and a set of T&C's and stated that "they were unable to provide me with a photocopy of my original agreement". They then go on to state when the account was opened, present balance etc., which all conform to a S78(1) response BUT their letter is "Without Prejudice".

 

Six months on, I have defaulted and the account has been terminated. JL have issued a small claims summons against me but named HFC Bank Ltd as the Pursuer . The LBA letter came from a DCA but required I send an undefined sum to HSBC Bank.

 

While confusion relating to who owns the alleged debt is one thing (breach of S7.1, 7.2(b) and 7.2© of the OFT Guidelines on debt collection), my question is:

 

Given their S78(1) response is "Without Prejudice" and I therefore cannot refer to, or challenge the enforceability of the "Agreement" in my defence, CAN I CLAIM that the Pursuer's are constrained from enforcement by virtue of s78(6)? After all they cannot show it either?

 

In any case, I have issued them (HFC Bank Ltd) with an Incidental Application that requests that the Court orders their compliance and provide me with a "true copy of the properly executed credit agreement" and this is shortly to call before the court.

 

Given that John Lewis Financial Services Ltd, HFC Bank Ltd and HSBC Bank plc are interchanging their names in correspondence with me at random, I have also asked for clarification of which Limited company actually owns the alleged debt.

Edited August 6, 2009 by Monty2007
too many smilies

[Castlebest]

Store cards commonly use banking groups to administer their finances so hence the HSBC/HFC link. HFC are part of the HSBC group and I suspect the "DCA" will be Metropolitan and the "solicitor" will be DG .

 

Metropolitan and DG solicitors are little more than debt collecting departments of HSBC, Metro are even listed as having no employees with companies house they are just letter heads.

 

if you have received court papers, respond to whoever is listed as the claimant . No you cant use their letter as part of your defense but you can say they have failed to comply with your properly submitted request under the Consumer Credit act

 

pete

[Monty2007]

Store cards commonly use banking groups to administer their finances so hence the HSBC/HFC link. HFC are part of the HSBC group and I suspect the "DCA" will be Metropolitan and the "solicitor" will be DG .

 

Metropolitan and DG solicitors are little more than debt collecting departments of HSBC, Metro are even listed as having no employees with companies house they are just letter heads.

 

if you have received court papers, respond to whoever is listed as the claimant . No you cant use their letter as part of your defense but you can say they have failed to comply with your properly submitted request under the Consumer Credit act

 

pete

 

Many thanks CB, I should have mentioned that I am in Scotland and DG don't have an office up here. I don't want to name the sols and its not relevant. The DCA was also a Glasgow firm who are now the subject of a TS and OFT complaint.

 

My real question was in relation to using S78(6) within my defence since JL responded to my S78(1) request with a "Without Prejudice" heading so both parties are restricted from producing such in court.

[Monty2007]

Bump!

[noomill060]

The use of the term "without prejudice" in these circumstances is irrelavent.

 

A s.78 CCA request is made under statute and they had no option but to respond if they want to try and enforce this. By using WP in this scenario they have just shot themselves in the foot

 

"Without Prejudice" is used when a defendent wishes to protect themselves from admissions of liability made during genuine negotiations from being used in evidence in court by the claimant, NOT to attempt to cover up nonsense responses to a statutory request.

 

So yes of course you could show this letter to the judge.

 

WP is not a universal protection for documents marked as such.

 

WP must be used correctly or they end up looking very, very stupid when the judge asks them why they marked a letter WP when it clearly wasnt and why they attempted to conceal from the Court their response to a statutory request made under CCA1974.

Edited August 9, 2009 by noomill060

[Old Cogger]

Bump

[Monty2007]

The use of the term "without prejudice" in these circumstances is irrelavent.

 

A s.78 CCA request is made under statute and they had no option but to respond if they want to try and enforce this. By using WP in this scenario they have just shot themselves in the foot

 

"Without Prejudice" is used when a defendent wishes to protect themselves from admissions of liability made during genuine negotiations from being used in evidence in court by the claimant, NOT to attempt to cover up nonsense responses to a statutory request.

 

So yes of course you could show this letter to the judge.

 

WP is not a universal protection for documents marked as such.

 

WP must be used correctly or they end up looking very, very stupid when the judge asks them why they marked a letter WP when it clearly wasnt and why they attempted to conceal from the Court their response to a statutory request made under CCA1974.

 

So I can disclose it as evidence?

 

Also

 

Can they?

[postggj]

well if they have defaulted on your cca request and started court action

 

they are stuffed

 

they say they dont have the agreement and try to con you with a made up one

 

realy

 

times must be hard on the dca front

[noomill060]

Yes, you can, but google what WP means so that you can show you know WHY it is not a genuine use of WP and that they have attempted to conceal from the Court the response to a statutory request.

 

(I COULD be writing complete nonsense- its up to YOU to be able to show that YOU know what YOU are talking about, so find out what WP is and when it can -and cant -be used.)

 

A google search will bring loads of easily digestible explanations of WP and the perils and pitfalls of it's misuse.

Edited August 9, 2009 by noomill060

[Monty2007]

well if they have defaulted on your cca request and started court action

 

they are stuffed

 

they say they dont have the agreement and try to con you with a made up one

 

realy

 

times must be hard on the dca front

 

Thanks postggj

 

Given their WP response, I have submitted a holding degence where I state that they have not responded to my S78(1) request so they are restrained by S78(6) from enforcement.

 

I have, however also submitted an Incidental Application requesting they supply the "properly executed credit agreement". Hence I have covered myself and given their WP response (where they admit they don't have one) should be able to stuff them.

[postggj]

i helped out a pal recent with our friend mortimer clark and marlin

 

marlin quoted rankin and bog off

 

next thing he got an n1 claim

 

judge threw out there claim

 

you have a perfect defence

[Monty2007]

Yes, you can, but google what WP means so that you can show you know WHY it is not a genuine use of WP and that they have attempted to conceal from the Court the response to a statutory request.

 

(I COULD be writing complete nonsense- its up to YOU to be able to show that YOU know what YOU are talking about, so find out what WP is and when it can -and cant -be used.)

 

A google search will bring loads of easily digestible explanations of WP and the perils and pitfalls of it's misuse.

 

Thanks noomill, I am aware of what WP means (cannot be used as evidence without the permission of both parties).

[Monty2007]

Yes, you can, but google what WP means so that you can show you know WHY it is not a genuine use of WP and that they have attempted to conceal from the Court the response to a statutory request.

 

(I COULD be writing complete nonsense- its up to YOU to be able to show that YOU know what YOU are talking about, so find out what WP is and when it can -and cant -be used.)

 

A google search will bring loads of easily digestible explanations of WP and the perils and pitfalls of it's misuse.

 

I am sure that I cannot use it in court, it is privileged information.

 

It is just odd that they would send a S78(1) response WP, it really flags up that they don't have an agreement?!

Edited August 9, 2009 by Monty2007

[noomill060]

I suggest you find out what WP actually means and the exclusions.

[noomill060]

Just because they or you head a document "WP" doesnt make it so.

[sillygirl1]

I had a letter simply stating Phone XXX on XXX no marked "Without Prejudice" when clearly could be shown to a judge... its a much misused term these days, along the lines of "by return post".

[noomill060]

"

The Civil Procedure Rules defines the phrase ‘without prejudice’ as:

Without Prejudice Communications: Meaning Of the Words 'Without Prejudice' - Commercial Law Articles and News - Lawdit Reading Room

 

 

‘Negotiations with a view to a settlement are usually conducted “without prejudice” which means

that the circumstances in which the content of those negotiations may be revealed to the court are

very restricted’."

 

 

Are they negotiating with you?

[noomill060]

 

 

How to use 'without prejudice' to protect your interests

 

If what you say in your attempts to settle a dispute (with a customer, supplier or employee, for example) is 'without prejudice', it means what you say can't be used against you if the dispute turns into court proceedings.

To rely on the 'without prejudice' rule:

• there must be a dispute underway;
  
• what you say must be part of a genuine attempt at settling the dispute;
  
• you must not reveal the content of 'without prejudice' negotiations, or you can forfeit your right to confidentiality.
  

If you have a potential dispute with an employee or a customer, just using the words 'without prejudice' in a discussion or on correspondence does not automatically make it confidential. Your words could still be made public in court or the employment tribunal - they are not 'without prejudice' at all - unless you satisfy certain conditions.

 

How to use 'without prejudice' to protect your interests - Andrew Jackson Law Firm

[postggj]

Great Post

 

I Think That Explains That One For Future Reference

[Monty2007]

"

The Civil Procedure Rules defines the phrase ‘without prejudice’ as:

Without Prejudice Communications: Meaning Of the Words 'Without Prejudice' - Commercial Law Articles and News - Lawdit Reading Room

 

 

‘Negotiations with a view to a settlement are usually conducted “without prejudice” which means

that the circumstances in which the content of those negotiations may be revealed to the court are

very restricted’."

 

 

Are they negotiating with you?

 

No negotiations, they have issed a small claims summons. In response, I have served an incidental application so they will have to produce the "agreement" anyway.

 

My holding defence states that they have not complied with my S78(1) request so are restricted by S78(6).

 

I am domiciled in Scotland.

[noomill060]

So, as the document marked "Without Prejudice" doesnt contain anything that could remotely be considered an attempt to settle a dispute by negotiation, they cannot claim it to be protected by the Without Prejudice convention and so you may use it in your defence to show that they admit to not being able to comply with your S.78 request.

 

If theu start bleating about WP, refer the judge to the fact that it is a reply to a statutory request and the fact that it does not relate to and genuine negotiation.

 

Strange, WP is usually used by a defendant trying to settle a claim out of court, not by a claimant.

Edited August 9, 2009 by noomill060

[Monty2007]

Thanks Noomil

 

The Incidental Application will hopefully get the Sheriff to order them to produce it, in effect using WP has made it more difficult for them.

[noomill060]

If you are basising your defence on something a judge may or may not do, you are on thin ice.

 

Go in guns blazing and firing from the hip-

 

"Look your honour- they admit they dont have a CCA and they've tried to conceal this admission from the Court by marking it WP!!

 

Its up to you though.

[Monty2007]

If you are basising your defence on something a judge may or may not do, you are on thin ice.

 

Go in guns blazing and firing from the hip-

 

"Look your honour- they admit they dont have a CCA and they've tried to conceal this admission from the Court by marking it WP!!

 

Its up to you though.

 

Dear Noomill

 

The Incidental Application is a hearing before the first call date so they will have to provide a good excuse not to supply the agreement. If they don't or are not ordered to I will supply the WP document that they supplied me. In any case I have submitted a holding defence that brings in the enforcability of the agreement which they infer exists between us.

 

I have had much debate on the strategy and tactics with BRW........

[IdaInFife]

To be homest it won't make much difference as it willbe dependant on or if they produce something from the IA

 

what do you think the judge would like most: them refering to a statutory request with the WP or nothing at all

 

idax