Why the belief that the ORIGINAL Agreement Needed in Court?

[UnitedFront]

Apologies that this is going over ground that was covered a couple of years ago and is the subject of a sticky - mods please feel free to move/delete if you feel appropriate but.........

 

I've noticed that in almost every thread I read, regarding copies of agreements etc, that people continuously state that the claimant (OC / DCA etc) would HAVE to produce the ORIGINAL agreement in court if there were to obtain Judgment.

 

I may well be missing something, but my understanding is that this is not strictly true. This topic is the subject of a sticky in this forum, but I fear that many members have not read that thread and so continue to, totally unintentionally, give somewhat misleading advice to other members.

 

My understanding is that S8 Civil Evidence Act 1995 allows that copies of documents can be produced in proceedings and can be accepted as proof, so long as the court is satisfied as to their authenticity.

 

Civil Evidence Act 1995

8.— Proof of statements contained in documents.

(1) Where a statement contained in a document is admissible as evidence in civil proceedings, it may be proved—

(a) by the production of that document, or

(b) whether or not that document is still in existence, by the production of a copy of that document or of the material part of it,

authenticated in such manner as the court may approve.

(2) It is immaterial for this purpose how many removes there are between a copy and the original.

 

This topic is dealt with in far more detail in the sticky linked to below:

http://www.consumeractiongroup.co.uk/forum/showthread.php?162535-Documents-in-Court-Civil-Evidence-Act-1995

 

Now I can understand a claim that a COPY OF THE ORIGINAL must be produced in court - simply because it makes sense to my (somewhat simplistic!) mind that unless it is a copy of the original, the claimant is unable to prove what the alleged debtor actually signed and agreed to. But the actual, physical, original agreement? I feel not.

 

Unless I'm drastically mistaken and something has drastically changed, I feel that instead of advising people that originals are needed in court which, I feel is incorrect, we would be better placed by advising that copied may suffice and then going about devising a "plan B" in line with each individual situation, whereby the authenticity of copied could be challenged if the worst case scenario prevails and an alleged debtor ends up in court on the basis of copy documents.

 

Any thoughts would be readily welcomed.

 

All the best.

Cheers.

UF

[Guest Jason King]

I think the last post of the thread you included answers your question.

 

Also, I believe something along the lines of if an agreement has been varied then the lender must produce the original in court.

[rebel11]

Unitedfront,

 

Judge Waksman answers most of these questions, in Carey v HSBC (2009), in a nutshell, it's 'Subtance over form'.

[UnitedFront]

Hi Jason, thanks for the reply. Unfortunately that post does not answer the question, or the issue. The post to which you refer, is talking about reconstructed agreements, as per the Manchester Test Cases.... whereas I am talking about a direct copy of the agreement, such as a photocopy etc.

 

In the instance where the original document is no longer in existence, but the claimant (OC / DCA etc) wishes to pursue through the courts are are in possession of a direct copy and can satisfy a DJ as to the authenticity of that copy, then in my view (and, it appears, in the view of the OP of the thread to which I linked) that could be ruled as admissible evidence...

 

Cheers

UF

[UnitedFront]

rebel... that's my point in its entirety, really:

 

Given that it is substance over form, then why are we saying, so frequently, that only the original will do?? Surely, if it is substance over form that is important then a photocopy of the original will suffice? This appears clear to me, keeping in mind the Civil Evidence Act, as quoted?

 

Cheers

UF

[UnitedFront]

Also, we do need to distinguish at least a little bit between the Manchester Test Cases and this discussion... simply because I am not talking about reconstructed agreements, I am talking about direct copies....