Dissecting the Manchester Test Case....

[Axiom99]

Thought this judgenment might be interesting for the cases where section 77/78 request responses prove to be unsatisfactory as the CMC involved in the case then used CPR 31.16 to attempt to obtain a copy of the original agreement and obtained a successful judgement when the lender defended

 

IN THE CHESTER COUNTY COURT

 

Between:

ALAN KNEALE

Applicant

AND

 

BARCLAYS BANK PLC TRADING AS BARCLAY CARD

Respondent

 

 

Judgement On application for Pre Action Disclosure

 

1. This is a Consumer Credit Act case and it arises in the context of what might fairly be described as a deluge of such cases. A large number of debtors under finance agreements with various banks are seeking either to assert that the agreement is unenforceable against them because of failure to comply with the provisions of the Act, or are seeking to find out whether the agreement is enforceable against them for this reason.

 

2. In a large number of cases, requests are being made for the information the finance companies are required to supply under sections 77, 78 and 79 of the Act. In addition, many potential litigants are trying to find out whether their agreements are

unenforceable for failure to comply with section 61.

 

3. Because many of the banks concerned are simply overwhelmed by the large number of requests for information, documents or both, there are many cases in which repeated requests by or on behalf of the debtor are not answered by the bank within a reasonable time or indeed at all. In such circumstances, many debtors have resorted to one or other of two courses of action, they have either brought proceedings or they have sought pre – action disclosure of the relevant documents to enable them and their advisors to know how best to proceed. When proceedings are commenced the creditors often produce the documents within days. This leads the claimants concerned to abandon the proceedings and there is then at unmeritorious haggle over who should pay the costs. The banks are apt to defend such cases by claiming that such proceedings were premature and that application for pre-action disclosure should have been made. The alternative is to make the application for pre - action disclosure and this is such a case.

 

4. The applicant had a Barclaycard. The agreement was made on 10th March 1995. The precise date is not clear from the papers available to me and does not matter. Suffice it to say that it was prior to April 2007 at which stage section 127 (3) of the Act was repealed.

 

5. In early 2009 Mr Kneale himself made a request to the bank under section 78. It is not clear whether the request named section 78 but the reply, dated 19 January 2009, certainly does. The information supplied under cover of that letter included all the relevant account details. In response to the request for the agreement itself the bank supplied a copy of the terms and conditions. Whether this complies with section 78 is not the subject of this judgement. Certainly no copy of the agreement bearing the signature was sent.

 

6. The request was repeated between 9th and 30th January by Unfair Made Fair Ltd (who I assume are claims managers) acting on behalf of the Applicant. There was a response to that request on 30 January. This time the bank supplied the account details and a blank application form of the type in use in 1995. Again it is no part of my decision in this application to rule on whether this does or does not comply with section 78.

7. The request was repeated by solicitors on 10 March 2009 (a copy of the letter is in the bundle). There was a response but the letter is undated. It appears to have crossed in the post with a further letter from the solicitors concerned which is dated 27th of April The bank’s response indicates that they had sent direct to the applicant a copy of the generic form of the Barclaycard agreement in use at the time of the applicant's agreement, and details of the current balances on the account. This, they again assert complies with their obligations under section 78 and for the purposes of the present application it is not challenged that it does so comply. The issue of what is required in order to comply with section 78 by way of a copy is to be determined by His Honour Judge Waksman. He has heard the case and reserved judgement. The result is awaited and I am not invited to try the issue today.

 

8. What is clear is that by virtue of the Consumer Credit (Cancellation Notices and Copies of Documents) Regulations 1983, it is not necessary for the copy supplied in response to a section 78 request to include the signature. It follows that a debtor who alleges that there was no signed agreement for the purposes of section 61 or who alleges that the signed agreement did not contain all the prescribed or required terms, or who asserts that there may not have been a signed agreement or may not have been a signed agreement containing all the prescribed or required terms, cannot find out whether there is such an agreement by relying on section 78.

 

9. That is the factual substrate of this case. The applicant does not make a positive assertion that he did not sign an agreement or that it does not contain the prescribed or required terms, the application is designed to find out.

 

10. What is sought in this application is very precise indeed. The applicant asks for a copy of the signed agreement including the signature or else an acknowledgement that the bank does not have such a document.

 

11. It is common ground that, if an action were commenced by this applicant asserting that there was no such agreement or no such agreement which complies with section 61, the document, if available, would be a disclosable document.

 

12. However the bank in the present case says that the rules relating to pre-action disclosure do not permit this application to be granted. Their argument is that the person who does not know whether he or she has signed a section 61 agreement can neither commence proceedings nor seek pre-action disclosure.

 

13. I am not directly concerned with whether proceedings could be commenced and decline to answer the question. I propose only to deal with pre-action disclosure.

14. Pre-action disclosure is governed by CPR 31.16 . The relevant part is 31.16 (3) which so far as relevant reads:

 

“The court may make an order under this rule only where-

 

(a) the respondent is likely to be a party to subsequent proceedings

(b) the applicant is also likely to be a party to those proceedings

© if proceedings had started the respondent's duty by way of standard disclosure, set out in rule 31.6, would extend to the documents or classes of documents of which the applicant seeks disclosure; and

(d) disclosure before proceedings have started is desirable in order to:-

 

(i) disposed fairly of the anticipated proceedings

(ii) assist the dispute to be resolved without proceedings or

(ii) save costs”.

 

15. In the course of argument I was referred to a number of authorities

 

BLACK v SUMITOMO [2002] 1 WLR 1562

ROSE V LYNX EXPRESS LTD [2004] one BC LC 455

GWELHAYL LTD V MIDAS CONSTRUCTION LTD [2008] EW HC 2316

SES CONTRACTING LTD V UK COAL PLC [2007] EW CEA Civ 791

 

16. The principles which emerge are in my view relatively clear though there is little guidance on how to use them. I would summarise them as follows.

 

(A). An application for pre-action disclosure should not be allowed where what is involved is a rank fishing expedition. It should be considered only where there is a real prospect of impending litigation.

 

(B) The process involves a two stage consideration. The court must first consider whether it has jurisdiction to make such an order. If the conclusion is that there is jurisdiction, the court should then consider whether to exercise its discretionary power to grant it.

 

© The factors listed in subparagraphs a, b, c and d of CPR 31.16. 9(3) are all relevant to the issue of jurisdiction. Those in subparagraph d are relevant to the discretion.

 

17. I was referred to a number of quotations from the cases. Counsel for the bank in a conspicuously able argument relies on a number of references to an “injury” and argues that unless the applicant has suffered a definable “injury" there is no room for such an application to be made. Counsel for the Applicant , by way of reply, relies on the words of Rix LJ in Suitomo ( para 68) “What , however, these authorities ….reveal….is ..the power to grant pre-trial disclosure was not intended to assist only those who could already plead a cause of action to improve their pleadings, but also those who needed disclosure as a vital step in deciding whether to litigate at all. “

 

 

18. The argument of Counsel for the Bank is tantamount to saying that unless a claimant already knows and can positively plead that he or she has a cause of action, pre-action disclosure cannot be granted. This is contrary to what Rix J said and I consider that Counsel for the applicant is correct in his approach. The potential cause of action is clear. The document required is highly specific and the reason for asking for it is clear.

 

19. My analysis is relatively simple. On the jurisdictional issue it is well decided that the requirements of paragraphs A and B are met when IF proceedings were commenced the applicant and respondent would be parties to them. That is unarguably true of this case. It is not in dispute that paragraph C is met.

 

20. There remains paragraph D which is relevant both to jurisdiction and to discretion. It is my judgement that, considering the jurisdiction first, the disclosure sought would dispose fairly of the anticipated proceedings in that if the document does exist and is in compliance with section 61 there will probably be no proceedings; the Claimant will abandon the case. If the document t does not exist and never did or if it clearly does not comply with section 61, there will probably be no proceedings because the bank will concede the point and if there is a dispute about it then it will be disclosable in the proceedings anyway. Paragraph (i) is therefore met.

21. As to paragraph (ii), for the reasons given in the preceding paragraph, the disclosure of the document has a very high chance of disposing of the dispute without the need for proceedings.

 

22. As to paragraph (iii) there can be no doubt whatever that disclosure of the document has a high chance of saving a substantial amount in costs.

 

23. I find therefore that the court has jurisdiction to make the order.

 

24. The discretionary decision will be a repetition of the jurisdictional decision in relation to paragraph D. It seems to me that the interests of justice require that this document is disclosed at this stage.

 

25. As to other factors which might be considered relevant the obvious candidate is confidentiality and since the two parties to this section are the two parties to the agreement there can be no real confidentiality to protect.

 

26. It is clear that this is not a case of inability or difficulty for the bank. The bank are simply flatly refusing to produce the document at all. Further more I am aware that in other cases where proceedings have been commenced other banks have said that proceedings should not have been commenced and an application of this kind should have been made.

 

27. It is my firm view that where there is doubt about whether Section 61 has been complied with the debtor has a right to know and an application for Pre Action Disclosure is a perfectly proper step in order to find out. I therefore think that disclosure should be ordered in this case.

 

28. As to costs the usual order in such an application is for the applicant to pay the costs though of course an applicant who subsequently litigates successfully can often recover those costs in the subsequent action.

 

29. However, CPR 48.1(3) gives the Court a wide discretion

 

“the Court may however make a different order having regard to al the circumstances including-

 

(a) the extend to which it was reasonable for the person against whom the order was sought to oppose the application”

 

30. It would have been quite simple for the bank, if they have the agreement to produce it, if they have not to say so, and if they have secondary evidence that the agreement did exist, though it does not any longer exist, to produce the secondary evidence. If the deluge of requests means they need more time, they could have asked for it. To have done none of these things but simply in a blanket way flatly to refuse to produce the document is in my judgement unreasonable.

 

31. Neither of the two Counsel was able to find any decided case in which costs had been awarded against the Respondent to an application of this type. My own research reveals none. Despite that, in my view the entirety of the costs in this application have been incurred as a result of the unreasonable attitude of the bank. In those circumstances the bank should pay all the costs of the application. The costs of the disclosure exercise itself should follow the normal rule. I am not prepared to attempt a summary assessment so the costs will be the subject of detailed assessment on the standard basis if not agreed.

 

32. In view of the obviously substantial public importance of this decision I grant permission to appeal both as to the substantive order and as to the costs. Since this is not a final decision in a Multi Track case appeal lies to a Judge of the High Court and I have arranged for the appeal to be dealt with by one of the High Court Judges at the Commercial Court in London. I extend time within which the appeal is to be lodged to 4:00pm on 12th February 2010.

 

 

 

Derek R Halbert

Designated Civil Judge, Cheshire.

8th January 2010.

[Axiom99]

Does this now open the door for CPR 31.16 to be used to obtain a copy of the original agreement where the lender fails to respond satisfactorily to section 77/78 requests?

[the_shadow]

That case is being appealed according to the solicitor involved...

 

See this thread.

 

http://www.consumeractiongroup.co.uk/forum/halifax-bank-bank-scotland/239338-cpr-court-hearing-tomorrow-9.html#post2766266

 

 

S.

[means2anend]

Diddydicky reckons the court will uphold this decision and I am inclined to concur.

 

The reason i give is that the courts are being deluged and the purpose of Lord Woolf back in '96 was for both parties to a potential litigation to put both cards on the table so that issues could be agreed upon outside court so as to not bring cases to proceedings that ought not be brought.

 

That is one of the purposes of costs sanctions...to deter and sanction unmeritorious litigation...and can also be used against the successful party.

 

It seems that the Civil Procedural Rules ''The System'' is in truth on trial here rather than any one individual or institution.

 

Just my opinion

[means2anend]

Does this now open the door for CPR 31.16 to be used to obtain a copy of the original agreement where the lender fails to respond satisfactorily to section 77/78 requests?

 

 

Justice Halbert...said it is a STEP in deciding whether or not to bring proceedings..

 

However IMHO I cannot help but come to the conclusion that it has the unintended(or intended) side effect of allowing a debtor to know earlier whether there is in existence an original signed executed copy without having to actually litigate.And to PUT an end to the bickering ONE WAY OR THE OTHER

 

What the Judge has IN EFFECT done is to have dealt with the issue of have they haven't they got an original/'true copy' dilemma at an earlier stage and not for it to be argued in Court.If the banks can provide it at that earlier stage then the debtor is not going to go to litigate.If the Banks do not have it they will have to say so and it ends there.

 

That is just my observation.

 

Which if you think it through rather makes the issue NOW of whether the ORIGINAL in COURT is required or whether a ''true copy '' is sufficient rather insignificant because that issue would now and HAS NOW have been dealt with at an earlier stage according to this case subject to a successful appeal.

This approach is in total harmony with the concept and ethos of the ''Pre-action-Protocol and conduct.

 

 

However the judge may just not wish to set a precedent against banks (just thought I should chuck this in for the conspiratorialists)

So subject to the appeal it has only been a positive outcome at this stage.

 

Rgds

 

m2ae:)

Edited February 15, 2010 by means2anend
typo

[johnerog]

Does this now open the door for CPR 31.16 to be used to obtain a copy of the original agreement where the lender fails to respond satisfactorily to section 77/78 requests?

 

It worked for me with Cap One. You have to know what you are dealing with.

You do not want a rabbit pulled out of a hat later eg, Maguffinck(?). It proves that the banks can find the documents when they want to; if they have them and just imagine the pressure it would take off the Justice system.

[banker_rhymes_with]

Hello Folks!

 

This is a prime example of a Tail that is Wagging a Dog.

 

What is so hard for a bank to wander up to a filing cabinet, open the drawer, pull out the Agreement, i.e. the document upon which their right to earn thousands of pounds depends, and admit if they have it or not, and provide proof if they have.

 

I am well aware of the legal fun and games, but I just wanted to bring the issue back down to earth.

 

It is a complete joke, at our expense, that the banks are getting away with this nonsense. But, they do get what they pay for, and they can afford to buy what they want.

 

Cheers,

BRW

[diddydicky]

i agree and the reason why, i believe that an appeal court may uphold our friendly judges verdict as it will take an enormous amount of cases out of the legal system

[Jeff2000]

Hi,

 

It's common sense to me. (Yeah, I know:rolleyes:)

 

If litigation can be prevented and an agreement can be reached between two parties without the need to go to Court, then everything that can be done to prevent it going to Court, should be.

 

Like banker_rhymes_with says, it is dead easy just to get the original agreement (if they still have it) from the cabinet and say "there you are, now pay up". This would, of course, prevent months of protractive arguments and wasting the Courts time etc.

 

Jeff.

[the_shadow]

i agree and the reason why, i believe that an appeal court may uphold our friendly judges verdict as it will take an enormous amount of cases out of the legal system

 

I think we are in danger of over-egging this result... each CPR 31.16 to the court must be proven and will be dependent on individual cases, its against the norm of court for disclosure to be given at this stage prior to litigation so you have to show merit to all parties and any intended litigation in obtaining the info.

 

Whilst we all know its in the interests of justice I can see the banks just defending any application as the times they do win they'll severly punish the claimant on each occasion in the form of costs.

 

As I understand this its not a test case and it an ordinary Joe vs the bank, even on appeal its only at the court level of only being suggestive in other cases and not binding i believe.

 

S.

[the_shadow]

Like banker_rhymes_with says, it is dead easy just to get the original agreement (if they still have it) from the cabinet and say "there you are, now pay up". This would, of course, prevent months of protractive arguments and wasting the Courts time etc.

 

Jeff.

 

Trouble is you can see where the banks quandary comes:-

 

If they disclose only the enforceable documents, then everybody who doesnt get an agreement will complain/stop paying etc etc

 

If they disclose all documents, then everybody who doesnt get an agreement thats enfoceable will complain/stop paying etc etc

 

If they disclose no documents.... its as it is now

 

S.

[vint1954]

Hi shadow,

 

I think this one is goung to a High Court Judge in the Commercial Court in London, which begs the question, why are they appealing when it will go to the High Court, which can be used as president.

[the_shadow]

Hi shadow,

 

I think this one is goung to a High Court Judge in the Commercial Court in London, which begs the question, why are they appealing when it will go to the High Court, which can be used as president.

 

Hmm strange!, there are already authoritative case law cases and ones which I would imagine both parties put forward in the original hearing.

 

These being:-

Black vs Sumitomo corporation on appeal

Bermuda International Securities vs KPMG on appeal

 

Other useful CPR cases:-

 

Steamship Mutual v Baring asset on appeal

SES Contracting Ltd and others v UK Coal Plc and others

Hands v Morrison Construction Services Ltd

 

S.

[vint1954]

Hmm strange!, there are already authoritative case law cases and ones which I would imagine both parties put forward in the original hearing.

 

These being:-

Black vs Sumitomo corporation on appeal

Bermuda International Securities vs KPMG on appeal

 

Other useful CPR cases:-

 

Steamship Mutual v Baring asset on appeal

SES Contracting Ltd and others v UK Coal Plc and others

Hands v Morrison Construction Services Ltd

 

S.

Yes, some of those used in para 15 of the judgement above in post 1501. Strange then why further clarification is needed.

[diddydicky]

Hi shadow,

 

I think this one is goung to a High Court Judge in the Commercial Court in London, which begs the question, why are they appealing when it will go to the High Court, which can be used as president.

 

i think the appeal is on the costs issues rather than the principal of the request itself

 

judge halbert says that the banks brough the costs on themselves by being difficult when all they had to do was provide what was requested

[vint1954]

Hi DD,

 

Yes, it's a bit unclear. I was going from the para 32.

 

32. In view of the obviously substantial public importance of this decision I grant permission to appeal both as to the substantive order and as to the costs. Since this is not a final decision in a Multi Track case appeal lies to a Judge of the High Court and I have arranged for the appeal to be dealt with by one of the High Court Judges at the Commercial Court in London. I extend time within which the appeal is to be lodged to 4:00pm on 12th February 2010.

 

It gives permission to appeal the order and costs. Have they just gone for an appeal of the costs issue?

[means2anend]

Hmm strange!, there are already authoritative case law cases and ones which I would imagine both parties put forward in the original hearing.

 

These being:-

Black vs Sumitomo corporation on appeal

Bermuda International Securities vs KPMG on appeal

 

Other useful CPR cases:-

 

Steamship Mutual v Baring asset on appeal

SES Contracting Ltd and others v UK Coal Plc and others

Hands v Morrison Construction Services Ltd

 

S.

 

So...will they be relying on the authorities that were already relied upon and came to this decision...OR did they miss anything that should have been relied upon...the judge said that counsel for both parties could not come up with anything nor that even he on his own research did not disclose anything apart from the authorities that WERE mentioned.

 

I do hope that they did not miss anything that the High Court suddenly at the last minute as was said ''pull out an authoritative rabbit outta the hat''

 

m2ae:???:

[the_shadow]

i think the appeal is on the costs issues rather than the principal of the request itself

 

judge halbert says that the banks brough the costs on themselves by being difficult when all they had to do was provide what was requested

 

That makes sense, the case authorities definately skew the costs as to the applicant... Cant see this being a precedent case tho as costs are to be decided on a case by case basis... I dont think case law can be set for this so unsure how a precedent can be made.

 

Hands vs Morrison is interesting in a pre-disclosure requirement sort of way and its a case won by Lovells LLP (Barclays normal solicitors I believe) when they were the applicant for CPR

 

S.

[means2anend]

That makes sense, the case authorities definately skew the costs as to the applicant... Cant see this being a precedent case tho as costs are to be decided on a case by case basis... I dont think case law can be set for this so unsure how a precedent can be made.

 

Hands vs Morrison is interesting in a pre-disclosure requirement sort of way and its a case won by Lovells LLP (Barclays normal solicitors I believe) when they were the applicant for CPR

 

S.

 

Proceeding on the assumption that what you say is correct...it appears that a successful appeal seems to be diminishing on the substantive order...INMHO

On what new grounds would there lie for a basis to appeal

 

m2ae:???:

[the_shadow]

Hi DD,

 

Yes, it's a bit unclear. I was going from the para 32.

 

32. In view of the obviously substantial public importance of this decision I grant permission to appeal both as to the substantive order and as to the costs. Since this is not a final decision in a Multi Track case appeal lies to a Judge of the High Court and I have arranged for the appeal to be dealt with by one of the High Court Judges at the Commercial Court in London. I extend time within which the appeal is to be lodged to 4:00pm on 12th February 2010.

 

It gives permission to appeal the order and costs. Have they just gone for an appeal of the costs issue?

 

Eeek!

 

I personally dont think this is good news for the claimant, I imagine the defence for Barclays originally claimed that the undue burden of responding to CPR 31 requests when CCA responses are available would be excessive. Also I suspect they stated that if the claimant feels the contract is unenforceable he should be seeking this in court and not trying a "fishing" exercise via CPR 31.16 which is to be reserved for extraordinary cases.

 

Barclays will no doubt want to play up the big picture and undue burden, the claimant should keep it simple as a humble person seeking his agreement, each case on its own merit etc etc, clear case for CPR 31.16 in THIS instance etc

 

If this becomes a test case then it'll fail just like all the other test cases, sorry to be so pessimistic but I've no confidence in justice being blind at present.

 

S.

[means2anend]

para:26 the judge said that he is aware that in other cases where proceedings have been commenced that the banks were complaining that an application should have been made and proceedings should not have been commenced.

 

para:29 the court had a wide discretion in CPR 48 1(3)...

I think that appellate courts are slow in substituting their own views where there is a wide discretion given to lower courts in relation to differing circumstances in relation to costs...

[vint1954]

Yes, he does mention the fishing excersize up front.

 

Judgement On application for Pre Action Disclosure

 

1. This is a Consumer Credit Act case and it arises in the context of what might fairly be described as a deluge of such cases. A large number of debtors under finance agreements with various banks are seeking either to assert that the agreement is unenforceable against them because of failure to comply with the provisions of the Act, or are seeking to find out whether the agreement is enforceable against them for this reason.

 

2. In a large number of cases, requests are being made for the information the finance companies are required to supply under sections 77, 78 and 79 of the Act. In addition, many potential litigants are trying to find out whether their agreements are

unenforceable for failure to comply with section 61.

 

3. Because many of the banks concerned are simply overwhelmed by the large number of requests for information, documents or both, there are many cases in which repeated requests by or on behalf of the debtor are not answered by the bank within a reasonable time or indeed at all. In such circumstances, many debtors have resorted to one or other of two courses of action, they have either brought proceedings or they have sought pre – action disclosure of the relevant documents to enable them and their advisors to know how best to proceed. When proceedings are commenced the creditors often produce the documents within days. This leads the claimants concerned to abandon the proceedings and there is then at unmeritorious haggle over who should pay the costs. The banks are apt to defend such cases by claiming that such proceedings were premature and that application for pre-action disclosure should have been made. The alternative is to make the application for pre - action disclosure and this is such a case.

 

 

And again in 16 (A)

 

 

9. That is the factual substrate of this case. The applicant does not make a positive assertion that he did not sign an agreement or that it does not contain the prescribed or required terms, the application is designed to find out.

 

10. What is sought in this application is very precise indeed. The applicant asks for a copy of the signed agreement including the signature or else an acknowledgement that the bank does not have such a document.

 

11. It is common ground that, if an action were commenced by this applicant asserting that there was no such agreement or no such agreement which complies with section 61, the document, if available, would be a disclosable document.

 

12. However the bank in the present case says that the rules relating to pre-action disclosure do not permit this application to be granted. Their argument is that the person who does not know whether he or she has signed a section 61 agreement can neither commence proceedings nor seek pre-action disclosure.

 

13. I am not directly concerned with whether proceedings could be commenced and decline to answer the question. I propose only to deal with pre-action disclosure.

14. Pre-action disclosure is governed by CPR 31.16 . The relevant part is 31.16 (3) which so far as relevant reads:

 

“The court may make an order under this rule only where-

 

(a) the respondent is likely to be a party to subsequent proceedings

(b) the applicant is also likely to be a party to those proceedings

© if proceedings had started the respondent's duty by way of standard disclosure, set out in rule 31.6, would extend to the documents or classes of documents of which the applicant seeks disclosure; and

(d) disclosure before proceedings have started is desirable in order to:-

 

(i) disposed fairly of the anticipated proceedings

(ii) assist the dispute to be resolved without proceedings or

(ii) save costs”.

 

15. In the course of argument I was referred to a number of authorities

 

BLACK v SUMITOMO [2002] 1 WLR 1562

ROSE V LYNX EXPRESS LTD [2004] one BC LC 455

GWELHAYL LTD V MIDAS CONSTRUCTION LTD [2008] EW HC 2316

SES CONTRACTING LTD V UK COAL PLC [2007] EW CEA Civ 791

 

16. The principles which emerge are in my view relatively clear though there is little guidance on how to use them. I would summarise them as follows.

 

(A). An application for pre-action disclosure should not be allowed where what is involved is a rank fishing expedition. It should be considered only where there is a real prospect of impending litigation.

 

(B) The process involves a two stage consideration. The court must first consider whether it has jurisdiction to make such an order. If the conclusion is that there is jurisdiction, the court should then consider whether to exercise its discretionary power to grant it.

 

© The factors listed in subparagraphs a, b, c and d of CPR 31.16. 9(3) are all relevant to the issue of jurisdiction. Those in subparagraph d are relevant to the discretion.

 

17. I was referred to a number of quotations from the cases. Counsel for the bank in a conspicuously able argument relies on a number of references to an “injury” and argues that unless the applicant has suffered a definable “injury" there is no room for such an application to be made. Counsel for the Applicant , by way of reply, relies on the words of Rix LJ in Suitomo ( para 6:cool: “What , however, these authorities ….reveal….is ..the power to grant pre-trial disclosure was not intended to assist only those who could already plead a cause of action to improve their pleadings, but also those who needed disclosure as a vital step in deciding whether to litigate at all. “

 

 

18. The argument of Counsel for the Bank is tantamount to saying that unless a claimant already knows and can positively plead that he or she has a cause of action, pre-action disclosure cannot be granted. This is contrary to what Rix J said and I consider that Counsel for the applicant is correct in his approach. The potential cause of action is clear. The document required is highly specific and the reason for asking for it is clear.

 

 

But goes on to say..................

 

 

19. My analysis is relatively simple. On the jurisdictional issue it is well decided that the requirements of paragraphs A and B are met when IF proceedings were commenced the applicant and respondent would be parties to them. That is unarguably true of this case. It is not in dispute that paragraph C is met.

 

20. There remains paragraph D which is relevant both to jurisdiction and to discretion. It is my judgement that, considering the jurisdiction first, the disclosure sought would dispose fairly of the anticipated proceedings in that if the document does exist and is in compliance with section 61 there will probably be no proceedings; the Claimant will abandon the case. If the document t does not exist and never did or if it clearly does not comply with section 61, there will probably be no proceedings because the bank will concede the point and if there is a dispute about it then it will be disclosable in the proceedings anyway. Paragraph (i) is therefore met.

21. As to paragraph (ii), for the reasons given in the preceding paragraph, the disclosure of the document has a very high chance of disposing of the dispute without the need for proceedings.

 

22. As to paragraph (iii) there can be no doubt whatever that disclosure of the document has a high chance of saving a substantial amount in costs.

 

I however do share your disspondency.

[Ruprecht]

I suppose each case would have to be on it's own merits.

 

If you have tried simply asking for it, a s77/s78 request and a DPA Subject Access request and still not got it.

 

Then after a 31.16 request to them and giving them plenty of time to find it, they still won't come up with it and/or refuse to say if it exists or not, then I don't see how they can claim to be reasonable.

 

The whole civil procedure rules are about settling and saving expense/the courts time. You need look no further than CPR 1.1

 

The overriding objective

 

1.1

 

(1) These Rules are a new procedural code with the overriding objective of enabling the court to deal with cases justly.

 

(2) Dealing with a case justly includes, so far as is practicable –

(a) ensuring that the parties are on an equal footing;

 

(b) saving expense;

 

© dealing with the case in ways which are proportionate –

(i) to the amount of money involved;

 

(ii) to the importance of the case;

 

(iii) to the complexity of the issues; and

 

(iv) to the financial position of each party;

 

 

(d) ensuring that it is dealt with expeditiously and fairly; and

 

(e) allotting to it an appropriate share of the court’s resources, while taking into account the need to allot resources to other cases.

 

 

It would be truly absurd if they allowed the appeal in anyway.

[WelshMam2009]

Trouble is you can see where the banks quandary comes:-

 

If they disclose only the enforceable documents, then everybody who doesnt get an agreement will complain/stop paying etc etc

 

If they disclose all documents, then everybody who doesnt get an agreement thats enfoceable will complain/stop paying etc etc

 

If they disclose no documents.... its as it is now

 

S.

 

Excuse my possible naivity...but shouldn't all of these documents be disclosed, regardless of enforceability, if a SAR was undertaken??

[means2anend]

Eeek!

 

I personally dont think this is good news for the claimant, I imagine the defence for Barclays originally claimed that the undue burden of responding to CPR 31 requests when CCA responses are available would be excessive. Also I suspect they stated that if the claimant feels the contract is unenforceable he should be seeking this in court and not trying a "fishing" exercise via CPR 31.16 which is to be reserved for extraordinary cases.

 

Barclays will no doubt want to play up the big picture and undue burden, the claimant should keep it simple as a humble person seeking his agreement, each case on its own merit etc etc, clear case for CPR 31.16 in THIS instance etc

 

If this becomes a test case then it'll fail just like all the other test cases, sorry to be so pessimistic but I've no confidence in justice being blind at present.

 

S.

 

This case was ongoing while judgement had had been completed but was reserved in Carey.

 

In para 53(1):Carey-J.Waksman says that to provide a copy of the agreement should be straightforward uncomplicated and this was reflected in its cost £1.00

 

The banks might find it difficult to argue from an ''undue burden perspective'' as the High Court has already taken it's position on this...

 

Whether there is a distinction to be made on the one hand in there being an ''undue burden'' in a request for Pre-Action Disclosure (bar costs) and on the other a CCA s78 request purely in terms of the effort and THE burden appears negligible because if they have the copy THEN GIVE IT NOW and SAVE THE COSTS.

 

BUT the banks are using the costs awarded against the applicant as a tactic in the hope that there wont be a request for disclosure....and then if proceedings do actually start then suddenly a copy appears and then comes the question who pays the costs of the proceedings?

 

Lets stop wasting time and playing brinkmanship if you got it then just supply it as early as possible subject to the appropriate request.

 

m2ae:mad: