No Original CCA - Solicitor Claiming Carey Case Means Don't Need It???

[WinOrLose]

I have a case that has gone on for some time and is due to be heard soon. But I have recently found out that they do not have an original credit agreement.

 

I have been sent what appears to be a copy of a signed agreement and terms. But when I asked to inspect the originals, I have been told that the creditor (Sainsbury's) do not have the original but that the Carey vs HSBC case means that they don't need one.

 

I think this is a bluff. But the Carey case is a recent one so may have an effect?

 

I think Carey only deals with s77/s78 requests whereas not having an original agreement is concerned with s127.

 

Does anyone have any experience or knowledge about this? Is the solicitor bluffing. What should I do now.

[angry cat]

Absolute Rubbish!

[PriorityOne]

If they're taking you to court as the claimant (which they would be), then they do need one.... as this is the basis of their claim against you.

 

The Carey case involved the creditor as the defendant which was a completely different ball game...

 

Nice try though...

[WinOrLose]

Thanks Angry_Cat and PriorityOne. What would be my next steps...

 

The solicitors have written to me to explain that Sainsbury's would have taken a microfliche of the front of the (alleged) agreement and not kept the rest. Hence they are only able to produce a copy.

 

We have to exchange witness statements very shortly.

 

Should I ask the court to dismiss the case or strike out the claim on the basis that the claim is based on a copy agreement which cannot be verified as a true copy?

 

Or should I put in my witness statement that since they do not have an original copy there is no agreement with my signature and so court cannot enforce unser s127?

 

Also what should I do about costs incurred. They have only very recently given me the information that there is no original and I have incurred considerable costs over the period of the claim (I had a solicitor looking at this until I lost my job and could not pay him).

[PriorityOne]

Thanks Angry_Cat and PriorityOne. What would be my next steps...

 

The solicitors have written to me to explain that Sainsbury's would have taken a microfliche of the front of the (alleged) agreement and not kept the rest. Hence they are only able to produce a copy.

 

We have to exchange witness statements very shortly.

 

Should I ask the court to dismiss the case or strike out the claim on the basis that the claim is based on a copy agreement which cannot be verified as a true copy?

 

Or should I put in my witness statement that since they do not have an original copy there is no agreement with my signature and so court cannot enforce unser s127?

 

Also what should I do about costs incurred. They have only very recently given me the information that there is no original and I have incurred considerable costs over the period of the claim (I had a solicitor looking at this until I lost my job and could not pay him).

 

The legal arena is not my field, as such... but they appear to have kindly confirmed that they don't have the original, so I imagine you would need to include something referring to that fact.... and Sec. 127 (3).

 

[WinOrLose]

They had to admit that they do not have an original because I asked to inspect the originals after they listed them in their disclosure.

 

I guess what I'm trying to work out at the moment is, do I just put this in as additional information in my witness statement or can I get the case dismissed before the trial.

 

Is there anyone with enough legal experience who could give guidance as to what the best legal option is?

[empowered]

Hi there

have just got back from court where we lost today. Bank confirmed they had no original agreement and supplied photocopied front and back. Cos it had our sig and personal details on it, plus the core terms, judge deemed it to be enforceable. Carey was also mentioned today.

[WinOrLose]

This doesn't sound good!

 

I thought that the claimant had to produce the original agreement in court.

 

Any comment from the legally minded.

[empowered]

This doesn't sound good!

 

I thought that the claimant had to produce the original agreement in court.

 

Any comment from the legally minded.

 

I mentioned this and the judge just rode roughshod over my objection and said that as it had OH personal details on it, plus T/Cs on the back, it was good enough for him to prove that we had signed it and spent the money.

 

If you want to get into other CPR arguments, he didn't agree that their failure to comply with 4 court orders earlier held any water:eek:

[diddydicky]

This doesn't sound good!

 

I thought that the claimant had to produce the original agreement in court.

 

Any comment from the legally minded.

 

alas the act says only that they "should" produce the original in court and not "must"

 

however- i suspect that perhaps the counter argument against their reference to carey was absent or not presented properly - so all is not necessarily lost

 

comments in that case with reference to enforcing agreements are likely to have been orbiter dicter

[WinOrLose]

alas the act says only that they "should" produce the original in court and not "must"

 

however- i suspect that perhaps the counter argument against their reference to carey was absent or not presented properly - so all is not necessarily lost

 

comments in that case with reference to enforcing agreements are likely to have been orbiter dicter

 

Sorry this might be going a bit over my head diddy.

 

a) What is the counter argument to Carey?

b) Comments in the [Carey?] case are orbiter dicter. As in should be used as guidance not as a rule?

c) Without the original is the court taking it on trust that the copy has not been tampered with in any way? Can they do that?

[PriorityOne]

Depends on what Judge you have on the day unfortunately, but you can appeal a cack ruling and many on here have done so and won as a result.

[diddydicky]

Sorry this might be going a bit over my head diddy.

 

a) What is the counter argument to Carey?

b) Comments in the [Carey?] case are orbiter dicter. As in should be used as guidance not as a rule?

c) Without the original is the court taking it on trust that the copy has not been tampered with in any way? Can they do that?

 

a/ that it was a case brought by the debtor against the creditor and concerned only provision of a copy of agreement under s77/79 (information given to debtor) - the burden of proof therefore being on the debtor

 

b/ orbiter dicter -(IMO) is not guidance in that case but comments made on matters which are referred to- but not part of that action - in other words they are an "aside" - they are a pain in the arse IMO and it would be better if the judge kept his gob shut and dealt only with the matters at hand

 

c/ yes- they work on the basis (fools) that the banks, being large national bodies - would not stoop so low as to attempt the deceive anyone

[Sagittarius]

If they don't have the original agreement what they have produced is Hearsay Evidence.

 

Hearsay Evidence is covered by the Civil Evidence Act 1985 (see s4.1) and is weighted on probability accordingly. The point will then be decided on a 'balance of probability.'

 

I would have thought you would want to cross examine the person giving any Witness statement about the agreement.

 

e.g. did they personal who gave the WS (Witness Statement) have knowledge of the document in question e.g. did they handle it ? Where were they working at the time the agreement was made ? (e.g. if it turns out they were still at school then it's game over), how many agreements a week do handle ? What was so special about your agreement that they should remember handling it after all this time ? If the agreement was destroyed is there a certificate of Destruction ? Who witnessed it's destruction ? Who witnessed the copying of the original document ? is there an audit trail for the document retention and managment since ?

 

There are international and BSI guidelines on best practice for electronic document and retention for legal admissibility in Court. Here's a link

See section 3 of the doc on that link.

Edited April 10, 2010 by Sagittarius

[Sagittarius]

See also point (e) here

 

Also these comments on cross examination by X20.

 

Also these important comments by X20 (Claimant must have served a notice under CPR 33.2 if they are going to rely upon Hearsay Evidence. You must also serve a notice under CPR 32.19 if you require them to proved copy docs in Court - otherwise you are deemed to admit authenticity)

[PriorityOne]

Love it Sagittarius!!

 

The next weapon in our armoury, I think.... as a cross-examination like that won't be expected at all.

[WinOrLose]

Thanks all of you guys. For various reasons, I've not been able to reply earlier.

 

This stuff looks like it could definitely be relevant to my case.

 

In addition, I think they have another problem in that they have admitted that they do not have a copy of the back of the agreement! They just have a copy of the front and a reconstituted agreement (which had the wrong interest rate on it the first time they sent it to me).

 

I will follow up the various links you have all left me and post any developments.

 

Thanks...

[eggboxy1]

Hi, not wishing to hijack this thread but my case is fairly identical and I have returned from Court last week having managed to obtain a reserved judgement on a Summary Judgement (brought by our friends Restons on behalf of MBNA) where Restons now have to produce a copy of an executed agreement with both signatures. So my information may possibly help.

 

I will be posting up my own thread shortly as I need help on a Skeleton Argument I now have to present when we are back in court. Let me first say that I had read how much of a lottery going to court was on here but it shocks you just how much that lottery is when you get there (this is both good and bad and I will explain further on my thread) .

 

Basically, the judge accepted MBNA had a signed agreement (I was following DickyDicky's argument that what they had was an application form but this was rejected) but he was clearly unhappy when I stated the agreement was dated the 24th of the month, wasn't executed as required by the CCA 1974 (having just my signature and also no box for the Creditor signature) when Restons were claiming in their evidence that the executed agreement was dated the 26th of the month and it was pointed out no such document had been brought in evidence showing both signatures as required to be executed?

 

Carey was mentioned by the young solicitor (maybe trainee barrister) acting for Restons saying they didnt need one under S78, but I managed to waffle that S78 was only relevant to what the creditor had to supply under a S78 request (ie when you send a £1 asking for a copy) and not if a Creditor was trying to bring a claim that his agreement was enforceable. I was on a wing and a prayer by this time (as will be explained in my thread) but, luckily for me, this was accepted by the judge and the Young Solicitor obviously didnt know if this was correct or not (as it wasn't argued I was talking B******!)

 

So I managed to muddy the waters enough (which is what the information I had gleaned was best to do in a Summary Judgement to stop judgement being given with a signed agreement) for the judge to reserve his judgement until Restons came up with the document they were referring to as being signed on the 26th which Restons were arguing was available but MBNA just hadnt found it yet? So hopefully they will Discontinue now as they obviously havent got a copy of that document or it would have been rammed down my throat at court?

 

I will post here what happens when I return to court but my advice is don't back down until you have put your point across to the judge but do bang him over the head relentlessly (as I did) that signed or not, the agreement has to be proven to be properly executed or the CCA 1974 states a court can't enforce if its not.