Claim Stayed – Due to Unenforceable CCA Test Cases.

[reallymadwoman]

I've heard that judgement is expected to be handed down in January. Can anyone confirm this?

Also, does anyone have any information on what these test cases are deciding?

[reallymadwoman]

Can a reconstituted agreement have a reconstituted signature?

 

Can a DCA produce a reconstituted witness to this reconstituted agreement verifying its reconstituted accuracy?

 

Just asking.

 

Calling an entirely hypothetical spade an entirely hypothetical spade, no. And if some alleged DCA allegedly did reconstitute signatures, they allegedly might fall foul of the Fraud Act. That can carry a prison sentence.

[reallymadwoman]

Technically, anyone relying on a document in court has to produce the original at the hearing.

 

I say technically because if a creditor is actually required to produce the original document will to a large extent depend upon the judge in any particular case, especially if it's a small claim where rules of evidence are not strictly applied.

[reallymadwoman]

If the debtor has no property and is intent on not paying them in any situation then the only commercial sense is for the creditor to walk away isn't it? I mean when faced with any litigation.

 

You would think so, however sense and creditor are not often mentioned in the same sentence on this site.

[reallymadwoman]

I seem to remember reading at some point - though heaven only knows where - that a creditor's response to a s77-79 request is subsequently binding upon them. If it is binding, how would that affect them suddenly producing a 'proper' agreement later on, especially if it went to court?

[reallymadwoman]

I have read all the comments regarding 'reconstituted documents' and I realise that they are acceptable in court if the original agreement is not available. This appears to be accepted practice and the comments in the manchester cases, endorsing that opinion, if the original is lost in the case of fire etc. back it all up.

 

What about, as in the case of at least one lender, they admit that the originals have all been shredded and they therefore rely on a copy in court. Surely when the original has deliberately been destroyed the problem of no original should restrict them in the amount of leway they have in reconstruction.

 

Otherwise anyone with a dodgy set of originals could destroy the lot and recreate as needed.

 

The manchester cases only concerned responses to s77-79 requests and have no impact whatsoever on the requirement to produce original agreements in court. A copy, i.e. photocopy or microfiche, might be acceptable in court if the original has been lost, but a reconstituted one will never be acceptable if the consumer knows enough to challenge it - or even ask that the agreement be produced in the first place.

[reallymadwoman]

Thanks RMW

 

I realise that and thanks for pointing it out. I meant to type 'copy documents' so is a copy acceptable in court if the original has been deliberately destroyed?

 

For example: there are many instances on threads where only the front of the agreement has been provided and the lender is relying on standard T & C. which would have been overleaf or attached, as the original has been destroyed.

 

I realise that a S77/78 request can still be satisfied but I cannot find any cases that have been won or lost in court on this argument. Is it a fact that not a single one has been tested in court.

 

Technically in court the creditor would have to produce the original agreement. I say technically because, for various reasons, the judge might allow a copy. One such reason might be that it's on the small claims track and the strict rules of evidence don't apply, another reason might be that the creditor's legal team persuade the judge that it's reasonable for them only to provide a copy.

So far as I know, this has yet to be actually tested in court but there are a couple of threads on this forum where creditors have been ordered to produce the original. I don't think any of them have got to the final hearing yet though.

[reallymadwoman]

Having read many posts recently about judges ignoring the law, I am now desperate to use proper representation but am still confused as to the costs.

 

I am potless, having worked from leaving school until passing forty having paid tens of thousands in tax & hi am now at the bottom of the pile with a load of cc debts, some with no agreements, some with what appear uneanforceable ones, and a couple that I know are kosher.

 

Is there any route I can take to get proper legal representation? What would be the lowest possible entry fee?

 

Whether you get any help with costs through whatever Legal aid is now called depends almost entirely on your income and your assets, e.g. savings. Try and find a solicitor who offers a free initial interview (CAB should have a list of local ones). If nothing else, he could tell you if you have a chance of getting help and since it's free, you might as well try it.

[reallymadwoman]

hi can anybody recomend a good cmc

 

It depends what you want them to do. If it's sort out your finances and come up with a sensible payment plan, then CCCS or Payplan, being free, are your best bet.

 

If you want them to challenge debts etc, then I can't comment since I've never used one. Is it not worth at least a try at doing it yourself, with help from the forum?

[reallymadwoman]

4 c cards been with a solicitor for 10 months now he says not willing to go on since the test case of 23rd december

 

My suggestion is that you start a thread of your own, possibly one for each card, in the appropriate forum, then do a 'story' of what's happened so far and get some advice from the people on here.

[reallymadwoman]

In my opinion (and that is all it is) a judge might allow a copy in the following circumstances

 

1. It's a small claim where strict rules of evidence do not apply.

 

2. The creditor has some persuasive argument as to why they cannot produce the original, but can produce a photo- or microfiche copy, e.g. fire damage. A good barrister might even succeed in persuading the judge if it has just been lost.

 

3. The judge hates debtors and would send them to prison if he could.

 

4. **** happens.

 

I do not believe any judge should ever accept a reconstructed agreement in place of the original, but that doesn't mean that one won't at some point.

[reallymadwoman]

I am now lost just thought the above was an interesting version on the Fountain Court chamber website.

 

Former member of the Fountain Court chamber in the Temple was Waksman.

 

I suggest you read the judgement yourself. It may take some time and effort, but judgements are nearly always logically presented and can be followed by someone without any legal knowledge. There is a link somewhere on this thread but I don't have time to look for it just now.

 

For the record, my reading of the judgement is that a reconstructed agreement is fine to comply with a request under s77-79 of the CCA, and failure to provide/have a copy of the original does not prevent enforcement up to the issue of proceedings. This has no effect whatsoever on what is needed to enforce an agreement in court which remains the original agreement.

[reallymadwoman]

And whatever either side say, the general rules of evidence still apply to documents produced in court.