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although he should be acting according to law, so in theory there shouldn't be any problem......

 

Gawd, I hope you're right!

 

Any knowledge I possess or advice I proffer is based solely on my experiences in the University of Life. Please make your own assessment of legality, risks & costs before taking any action.

 

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Wonder if you could use this as an argument (a slightly different stance on Wilson v FCT)

 

It was said, in effect, in relation to article 1 of the First Protocol, that, where there was no document signed by the debtoror where the document signed by the debtor did not contain all the prescribed terms of the agreement – neither the agreement, nor the delivery of the pawn, conferred any enforceable rights on the creditor.

 

Could you possibly argue that there is NO original document????

 

jax

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It looks like we need a new thread on the question of certified copies and whether they need to be brought before the Court to allow enforcement.

 

This isn't my stance - it's the experience I've had in Court and with the threads of others. I don't agree with it in the slightest, but you can't get a Judge to change their mind and this is an issue they think they can "decide the facts" on without recourse. It would be interesting to see an appeal on this decision, so this is clarified.

 

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Which brings me back to my other question .... does a DJ have the powers to overrule CPR?? If so, on what basis??

 

Maybe you could ask him in court to give you a reason for his overruling/overturning this ruling?:D

 

jax

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It looks like we need a new thread on the question of certified copies and whether they need to be brought before the Court to allow enforcement.

 

This isn't my stance - it's the experience I've had in Court and with the threads of others. I don't agree with it in the slightest, but you can't get a Judge to change their mind and this is an issue they think they can "decide the facts" on without recourse. It would be interesting to see an appeal on this decision, so this is clarified.

 

A new thread would be a good idea. I do understand what you are saying Car, I know from experience that the judge you get on the day makes a huge difference to the outcome of any hearing and if they don't agree with the defence on the day there often isn't much you can do about it. Sometimes, almost from the moment you sit down, you can sense that they are leaning towards the creditor and you don't have a hope in hell. An appeal is always an option, but then, I believe, there is the question of costs if you don't win. I'm not sure how many people have actually used the "original agreement" argument, as apparently most people weren't aware of it until quite recently, so perhaps there haven't been that many cases where this issue has been raised. Does anyone know? Magda

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In this case a witness statement will normally be from you, that details the facts that support your case.

 

It would not be a statement from someone who has won their case. Your case will turn on its own merits.

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GS Sols. certainly killed the thread.

 

Originally Posted by car2403 viewpost.gif

It looks like we need a new thread on the question of certified copies and whether they need to be brought before the Court to allow enforcement.

Grand idea. this is opening up a whole new learning curve for me.

Cheers Q

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i think maybe it would be better to look at the legislation which requires a company to retain documents (originals) which could be used to argue that they are under a duty to retain documents and therefore the original must be brought before the court:)

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Hi pt

Funny that, I've just been learning a bit about that from rory's thread, very helpful http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/93884-wescot-rbofs-oh-dear.html

As I thought the six years to retain data was from the start of the agreement. I now know its not the start but the end.

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]I agree. Every case is individual and is won or lost based on the MERITS of the case. The merits are assessed on the strength of the evidence available, which includes witness evidence.

 

It is the claimant's burden to prove his or her cases on a balance of probabilities. (The claimant is the Debtors in this scenario)

 

It is the obligation of the judge to make a decision on whether or not the claimant has proved and met his burden. Judges do this by taking a view on the law and all the available evidence.

 

A good example is where a claimant tries to reclaim interest on a credit card because the defendant has not provided him with a copy of the executed agreement, when a new credit card has been reissued (pursuant to section 85 of the Consumer Credit Act 1974).

 

In this case it is helpful to have independent evidence in support of the claimant’s assertions that no executed agreement was provided or received. The defendants defence will of course be that an executed agreement is always provided and the claimant was sent a copy.

 

In this scenario the witness will probably not be able to say the claimant did not receive a copy of the agreement, unless the witness is a wife or partner or was there at the time of receiving the new card, (although relatives are not considered independent).

 

What the independent witness is likely to confirm is that they too never received an executed agreement with their reissued credit card.

Independent witness evidence is generally given more weighting in trying to find the elusive balance of probabilities. The reasoning behind this is that independent witnesses have no interest in the outcome of the trial. So having 1 witness is great but having 5 is far better.

 

You are correct in stating that this does not prove the claimant's case outright as in this scenario no one piece of evidence will. However what the evidence does is suggest that the defendant has a tendency to not always send the executed agreement.

If the matter ever goes to trail and the judge is presented with a plethora of witness evidence along with the usual disclosure evidence. It is easier for that judge to conclude that the defendant does not always do what it says it does.

Whilst It cannot categorically be siad that with witness evidence you will always will your case, as a general rule witness evidence is used to strengthen your arguments.

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I have found that having a copy of Blackstones Civil Practice 2008, Goode Consumer Credit Law and Practice and also the Halsburys series , especially the Consumer Credit Vol 9 re-issue works just as good as a witness statement from a partner etc

 

;)

 

Yeah, but a lot more expensive PT - as we've discussed before!! ;-)

Any knowledge I possess or advice I proffer is based solely on my experiences in the University of Life. Please make your own assessment of legality, risks & costs before taking any action.

 

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i think maybe it would be better to look at the legislation which requires a company to retain documents (originals) which could be used to argue that they are under a duty to retain documents and therefore the original must be brought before the court:)

 

I was notified os this on one of my threads:

 

The hearing related to a written agreement regulated by the Consumer Credit Act 1974. Practice Direction 16, 7.3(1) requires that a complete copy of the agreement should be attached to the claim form and the original(s) should produced at the hearing. Neither of these mandatory requirements was complied with and fatally undermines the claim form. This is an appeal under CPR 52.11(3)(b).

 

So, would this mean that they would have to have the original?

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Hi Un1boy, according to the practice direction 16.7.3 (that you quote) it would appear that the original should be available at the hearing, as unless you have the original, how can you know for certain that any copy is actually a 'true' copy. However, other people disagree and don't belive a DJ would think it necessary for the original to be produced. This is because a lot of companies scan in the original copy now and discard the hard copy rather than retaining mounds of paperwork. However their 'filing' system would have to be authenticated in such a way to prove that the scanned copy is indeed an exact copy of the original. Personally, I still think that the original should be available and i'm going to read up a bit more on this. Magda

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Hi Un1boy, according to the practice direction 16.7.3 (that you quote) it would appear that the original should be available at the hearing, as unless you have the original, how can you know for certain that any copy is actually a 'true' copy. However, other people disagree and don't belive a DJ would think it necessary for the original to be produced. This is because a lot of companies scan in the original copy now and discard the hard copy rather than retaining mounds of paperwork. However their 'filing' system would have to be authenticated in such a way to prove that the scanned copy is indeed an exact copy of the original. Personally, I still think that the original should be available and i'm going to read up a bit more on this. Magda

 

yeah, that's what I thought - just to let you know, the judge in my case said it was a shame it was not the original but that she realised that they have millions and would work off the copy they provided!!

Disclaimer: Anything I write in these forums is my personal opinion and offered without prejudice. If in doubt, please seek independent legal advice.

 

*If what I have told you in this post has helped, please press the star at the bottom left and tell me!!*

 

My charges claims:

un1boy vs egg *SETTLED* | Un1boy vs LTSB-SETTLED | un1boy vs Black Horse-SETTLED | Un1boy v Smile *WON* | un1boy v HSBC - SETTLED! | Un1boy's HSBC CC - SETTLED! | Un1boy vs Co-Op *SETTLED* |un1boy vs Co-Op CC *SETTLED*

 

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un1boy vs Experian - Default removal

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yeah, that's what I thought - just to let you know, the judge in my case said it was a shame it was not the original but that she realised that they have millions and would work off the copy they provided!!

 

Yes, that's the problem, but then again the copy can be reconstructed, which some of these companies are not above doing. Mind you in your case it wasn't even a proper agreement was it? so they definitely shouldn't have allowed it - are you still going to appeal?

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I was notified os this on one of my threads:

 

The hearing related to a written agreement regulated by the Consumer Credit Act 1974. Practice Direction 16, 7.3(1) requires that a complete copy of the agreement should be attached to the claim form and the original(s) should produced at the hearing. Neither of these mandatory requirements was complied with and fatally undermines the claim form. This is an appeal under CPR 52.11(3)(b).

 

So, would this mean that they would have to have the original?

 

Please remember that CPR 5.3 means that this is different for claims started using MCOL:

 

5.3 Paragraph 7.3 of the practice direction supplementing Part 16 (statements of case), which requires documents to be filed with the particulars of claim in contract claims, does not apply to claims started using an online claim form.

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Please remember that CPR 5.3 means that this is different for claims started using MCOL:

 

5.3 Paragraph 7.3 of the practice direction supplementing Part 16 (statements of case), which requires documents to be filed with the particulars of claim in contract claims, does not apply to claims started using an online claim form.

 

This only applies prior to a hearing/directions been set - in other words, where a claim isn't defended.

 

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http://www.justice.gov.uk/civil/procrules_fin/contents/practice_directions/pd_part16.htm

7.3

Where a claim is based upon a written agreement:

(1)

a copy of the contract or documents constituting the agreement should be attached to or served with the particulars of claim and the original(s) should be available at the hearing, and

(2)

any general conditions of sale incorporated in the contract should also be attached (but where the contract is or the documents constituting the agreement are bulky this practice direction is complied with by attaching or serving only the relevant parts of the contract or documents).

Maybe the answer lies in the word SHOULD(??)

jax

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