cpr 32, (13.1) inspection of original docs, cohens refusing

[dizzyblonde1966]

Thought ide start a new thread specific to CPR 32, "13.1" (inspection of original docs)

 

The cpr clearly sets out that "original agreements must be made available for inspection" as set out in practice direction 32 which states

 

"13.1 photocopies instead of original documents may be exhibited provided the originals are made avaialble for inspection by the other parties before the hearing and by the judge at the hearing"

 

 

 

So i took the bull by the horns and sent cohens a cpr32 (13.1) request to view the original document at their offices as it had already been included in the poc ,We are due to exchange disclose lists next week too and the judge has already ordered that both parties must properly comply with the duty of ongoing disclosure

 

Got a reply from Cohens today and i guess not many will be surprised to find that cohens are refusing to comply,

heres their reply

 

"we confirm that after making enquiries with the original credit provider,we have been informed that all original credit agreements are scanned onto their computer systems for future reference and the originals stored off site as they administer millions of accounts .Therefore a copy was provided for your reference and the original is not avaialble for your inspection"

 

Well as you can imagin this really got my back up, so i called them and recorded the call, and they clearly state they wont be allowing me to view the original document , and the copy they sent me will do,(well the copy is totally illegible) which is one of the reasons i wanted to see the original,

The member of staff was quiet defensive and tried to talk over me the whole time (didnt work, im a woman);-)

 

 

 

 

So where from here, do i go for a strike out/unless order ?

do i have to submit it in a court application? or do i just write to the court and provide Cohens letter of refusal to let me view the original document and see what the judge has to say about their non compliance

 

DB

Edited March 9, 2010 by dizzyblonde1966

[patrickq1]

So where from here, do i go for a strike out/unless order ?

or do i just write to the court and provide Cohens letter of refusal to let me view the original document and see what the judge has to say about their non compliance

you have it in one...

since they are unwilling to find the documents they have no call on the judges decision that is to make the origionals available for inspection see also shakespeare 62 thread with regards to expert witness..

write to the judge making available the letter of cohens and ask for his opinion and for a strike out

registered post dont forget

patrickq1

also ask PT if he can give you his opinion as to what you should be saying good luck

[dizzyblonde1966]

Would a n244 have more clout, i forgot to add in opening post,this case has already been allocated to fast track.

and I think i would be exempt from court fees as on families working tax.

 

Just read shakespears thread , very interesting,

Edited March 9, 2010 by dizzyblonde1966

[Wolfy]

For the record the rights of inspection are covered under CPR 31(14,15), 32(13.1) deals with witness statements.

 

Is this a fast track case? If its small claims then CPR 31 doesn't apply and they are correct.

 

However if it is fast track then their refusal to allow inspection of the documents means that they are not then allowed to rely on them as part of their evidence without the permission of the court. See CPR 31(21).

[dizzyblonde1966]

For the record the rights of inspection are covered under CPR 31(14,15), 32(13.1) deals with witness statements.

 

Is this a fast track case? If its small claims then CPR 31 doesn't apply and they are correct.

 

However if it is fast track then their refusal to allow inspection of the documents means that they are not then allowed to rely on them as part of their evidence without the permission of the court. See CPR 31(21).

 

Wolfy, yes its already been allocated to fast track by the judge.

DB

[hammyhound]

Dizzy have they paid the hearing fee yet? They are classic for not paying and the claim is then struck out

 

HH

[dizzyblonde1966]

Dizzy have they paid the hearing fee yet? They are classic for not paying and the claim is then struck out

 

HH

 

I dont know if they have paid or not, the case was transferred to Manchester from my local court before xmas ,It has gone past AQ stage,and we had a case management hearing at the lcoal court before it was transferred, were at disclosure stage now,

 

Anyone got any advice on which route to take re alerting the judge to their non compliance with my cpr request allowing me to view the original document?

 

n244 or just a simple covering letter to the court?

 

DB

[shakespeare62]

Dizzy, How long is it to your hearing ? If it's more than 7 days, I would be inclined to send them a CPR 31.15 request for inspection of the original agreement made in their Witness Statment or statement of case.

 

They have 7 days to comply following receipt of your 31.15 request.

 

Send your request special delivery / recorded delivery if possible. There is then case law (Court of Appeal) to back up your request for inspection.

 

If they fail to allow inspection, then you can apply for an order using N244.

(see my posts #77 and #82 on the above link - BTW I've been granted permssion to Appeal, so compliance with inspection is important).

[dizzyblonde1966]

Dizzy, How long is it to your hearing ? If it's more than 7 days, I would be inclined to send them a CPR 31.15 request for inspection of the original agreement made in their Witness Statment or statement of case.

 

They have 7 days to comply following receipt of your 31.15 request.

 

Send your request special delivery / recorded delivery if possible. There is then case law (Court of Appeal) to back up your request for inspection.

 

If they fail to allow inspection, then you can apply for an order using N244.

(see my posts #77 and #82 on the above link - BTW I've been granted permssion to Appeal, so compliance with inspection is important).

 

Shakespear62

 

 

There has already been a case management hearing in my local court, but the judge just stayed it and transferred the case to Manchester pending the outcome of the manchester test cases

 

Manchester court has now written to me and informed me the trial will be in August,

Disclosure by list has to be compled with by 19th march, and the judge states parties must comply properly with the ongoing disclosure,

 

Hence the reason i cpr"d cohens last week to ask to view the original cca at their offices as they have already made reference to it in both their poc and their sworn witness statement which they submitted at an earlier date to the intital court ,

 

Cohens then replied today to my cpr request to view the original document ,they replied by recorded delivery which went as follows

 

"we confirm that after making enquiries with the original credit provider,we have been informed that all original credit agreements are scanned onto their computer systems for future reference and the originals stored off site as they administer millions of accounts .Therefore a copy was provided for your reference and the original is not avaialble for your inspection"

 

 

DB

Edited March 9, 2010 by dizzyblonde1966

[diddydicky]

i would not bother with strike out applications- they rarely grant them in these instances

 

make the formal request as shaky has said and tell them that if they refuse to comply you will then seek an order of the court for them to comply and claim your costs

 

tell them that you note that they confirm that the original agreement is in existence and that it is stored in an unspecified location and if as a result of their client having "millions" of agreements stored away- they are unable or unwilling to produce it and instead rely on a document that is unreadable- they should consider discontinuing their claim.

 

(if the original s78 request also produced an illegible copy of an agreement- i would also warn them that in any event as they have failed to comply with s78 by providing an "easily legible document" they are prevented from enforcement)

[DonkeyB]

I think it's more likely that the original has actually been destroyed. This is a point you could push them on. If it exists, then you could in theory request an order for its disclosure for inspection via an N244, but that would cost you.

 

If they have stated it exists and in fact it doesn't, they have a bigger problem... it's called a fib.

[pookeymonkey]

Howard Cohen telling fibs - how could you even suggest such a thing?

[DonkeyB]

I didn't say they were - just suggested it's something that might be an issue if the document doesn't actually exist... but I know where you're coming from

[dizzyblonde1966]

Howard Cohens have been very carefull not to say it doesnt exisit,

they get around it by saying "the original creditor has informed them that all credit agreements are scanned onto their computer systems for future reference and the originals are stored off site "

 

 

Ive spoken to the court today, they have said i should apply on the n244 to enforce compliance

Ive downloaded and had a brief look at the n244 form,and seems straight forward enough,and i will add an appropriate draft order etc,

 

It wont cost me anything to submit the N244 as i qualify for fee remmision due to low income , so on the costs side do i add anything relating to costs so the courts get my fee remission costs back from Cohens or will the court do it automatically if the judge rules in my favour?, as far as im concerned i have made a valid request and cohens have refused so cohens should reimburse the court any fees that would have been applicable ,

 

 

DB

Edited March 10, 2010 by dizzyblonde1966

[DonkeyB]

Yes, it will go on to your final schedule of costs when they realise they're backing a donkey (!) and discontinue, or simply lose.

[patrickq1]

it could be a fib the fibbin barstewards fib tut tut i say

[patrickq1]

Yes, it will go on to your final schedule of costs when they realise they're backing a donkey (!) and discontinue, or simply lose.

had to look twice then backing you dB lol

[dizzyblonde1966]

N244 in now, will be interesting to see what the judge makes of Cohens refusal to comply with his previous order

 

Disclosure by list has to be in this Friday, now seeing as cohens have missed almost every deadline given to them so far im not expecting theirs to drop through my letter box on time,

 

We have until 4pm to disclose , do i have to send by post? or can i fax ?

 

DB

Edited March 16, 2010 by dizzyblonde1966

[DonkeyB]

Unless there's a pressing reason to do it by fax, such as needing the extra day, I'd do it all by recorded post, as they may deny receiving it at Cohen's.

[dizzyblonde1966]

Thanks,

What happens if cohens fail to disclose on time ,

is there any repercussions for them ?

[DonkeyB]

Sadly, probably not unless you get another N244 in quick for strikeout for non-compliance with the order.

 

Judges let these buggers get away with murder when they're late, but LiPs usually get it in the neck. They may wait for your bundle, see what they're against and then file, knowing that any N244 would probably take a week to get in front of a judge. Sad but true.

[dizzyblonde1966]

yes i know what u mean, one rule for them another for us,

 

I could actually get one of my friends who works in bradford to pop over to leeds for me to hand in my disclosure list in person on friday late afternoon at their offices , that would afford me the opportunity to make sure they had complied with their disclosure list and i would still beat the 4pm deadline for submitting my own disclosure list ,if theirs didnt come in the friday post i could then delay submitting mine to them until they complied,surely they couldnt complain against me if they hadnt complied,?

 

Would that be a viable option, ?

Edited March 16, 2010 by dizzyblonde1966

[DonkeyB]

Personally I think it's best to ALWAYS comply with a court order. What they do is not really an issue, but it pays to be wise to potential tactics.

 

A disclosure list shouldn't really throw up any surprises, unless they are planning a devious insertion of a witness or something similar.

[Satterthwaite]

DB, did you ever get to see the documents?