Bypass microfiche defence with CPR 31.16?

[ninekey]

Thinking around the problem, I'm trying a different approach to getting at the pre-May 2004 statements.

 

I've invited Barclaycard (Carol Jones) to give voluntary pre-action disclosure pursuant to Part 31.16 of the Civil Procedure Rules:

PART 31 - DISCLOSURE AND INSPECTION OF DOCUMENTS Has anyone else given this a whirl yet? The relevant grounds in CPR 31.16 should be fairly easy to satisfy in these cases. It is possible to make an interim application to Court if they refuse, without starting a full claim, as such. The general principle is that the requesting party (i.e. us) has to pay for the respondent (i.e. Barclaycard) for their reasonable costs of complying. However, the court has a discretion to award costs against the respondent, if they have been obstructive or they haven't co-operated in the pre-application stages as they should.

 

What I've done is to offer to pay Barclaycard's reasonable photocopying charges (e.g. 10p per statement), if they will comply with my request without the need for a Court application.

 

It will be interesting to see how they reply. I'll keep you posted.

[shellevans]

Hiya,

Will be really interested to see how it goes!! Nice one!!

 

Shell 80)

[NitrousOxide]

You're thinking along the same lines I did.

If they don't supply it either they don't really have a defence against estimated applications.

[thourb]

Do the rules in section 31 of CPR even apply?

 

 

 

Scope of this Part

31.1

 

(1) This Part sets out rules about the disclosure and inspection of documents.

(2) This Part applies to all claims except a claim on the small claims track.

 

 

This is also backed up in Part 27.2 (1)(b)

 

27.2 (1) The following Parts of these Rules do not apply to small claims -

 

 

(b) Part 31 (disclosure and inspection);

 

 

Given that, would I be correct to say that this wouldnt apply unless you were claiming more than £5000 and were not on the small claims track?

 

 

(more importantly, what am I doing awake at nearly 3am?!)

[thourb]

Having looked a little further, the way i read this is that the microfiche defence will not stand up under CPR 27.4 (3a(i)) - which applies specifically to claims on the small claims track (claims for less than £5k).

 

 

a direction that each party shall, at least 14 days before the date fixed for the final hearing, file and serve on every other party copies of all documents (including any expert’s report) on which he intends to rely at the hearing

 

 

I read this as, if the bank were to take you to court, they would have to produce copies of all microfiche statements at least 14 days before the hearing. Although I cannot find the written rules to say this, I would think that if you were to make an estimated claim (lets say £5000 for example) and the bank were not to produce microfiche statements within 14 days of the hearing date, they would not be able to use said statements as a defence and the case to reclaim your money would be on the basis of your estimated claim.

 

Im not sure on the exact legal position really. As far as i'm aware, the onus is on you, as the claimant, to provide sufficient proof of charges. Your arguement would obviously be that the bank is deliberately blocking necessary information that stops you from making an exact claim.

 

I'm no lawyer, so I may be talking a complete load of garbage here. Can someone more qualified please clarify?

 

I'm going to bed.

[NitrousOxide]

Hi,

You're actually quite right. I think estimated claims need to ask for some sort of disclosure.

[Glenn UK]

As far as i have read those who have estimated claims make explicit reference requesitng dicsolsure of the relevant information prior to the hearing specifically to exlcude the bank claiming you have acted unreasonably.

 

Its worth perhaps doing a sreach if you have the time.

 

Glenn

[thourb]

 

After allocation the court will –

 

27.4 (1)(a) give standard directions and fix a date for the final hearing;

 

In this rule –

(a) ‘standard directions’ means –

 

(i) each party shall, at least 14 days before the date fixed for the final hearing, file and serve on every other party copies of all documents (including any expert’s report) on which he intends to rely at the hearing

Looking at the wording of this rule again, I would suggest that if, after allocation, the bank were not to disclose, they would not be able to rely on the same documents in court. If you have already written to the bank previously, asking for disclosure (even your S.A.R - (Subject Access Request) under the data protection act), surely this would prove to a judge that you were acting reasonably.

 

Given this, I wouldnt even worry that the bank has argued about Microfiche, because they will have to disclose before a hearing anyway, unless they want to go into the hearing with no evidence themselves. Perhaps it may be worthwhile specifically asking for the microfiche documents in the letter before action?

 

Maybe something along the lines of:

 

[your address]

 

[their address]

 

LETTER BEFORE ACTION

 

Dear Sir/Madam,

 

ACCOUNT NUMBER: xxxxxxxxx

 

I am very disappointed that you have failed to respond to my letter of the [XXDATEXX].

I now understand that the regime of 'fees' which you have been applying to my account in relation to direct debit refusals, exceeding overdraft limits and so forth are unlawful at Common Law, Statute and recent Consumer regulations.

 

I would draw your attention to the terms of the contract which you agreed to at the time that I opened my account. It is an implied term of that contract that you would conduct yourselves lawfully and in a manner which complies with UK law.

 

I am frankly shocked that you have operated my account in this way as I had always reposed confidence in your integrity and expertise as my fiduciary.

 

I estimate that you have taken £XXXXX plus £XXX which you have charged me in overdraft interest for the sum which you have taken. Total £XXXXX.

 

I require repayment in full of this money. If you do not comply fully within 14 days then I shall begin a claim against you for the full amount plus interest plus my costs and without further notice.

Furthermore, should you deny my request for a refund of these unlawful charges, I shall require a copy of all statements held on your microfiche filing system for use as evidence in any future court hearing.

Yours faithfully,

[ninekey]

It's worth remembering that few if any of these cases will ever get to the stage where the District Judge gives directions for disclosure and even then - on the small claims track - each party only needs to disclose those docs upon which they intend to rely. If you've estimated your charges, I don't think the burden would be on them to produce the pre-2004 statements to disprove your estimation. Rather, it would work the other way around. Barclaycard would simply say: "OK, you've estimated charges of £x: now substantiate that!"

 

Really, this is all about getting at the evidence up front. Tom is right that CPR Part 31 doesn't apply on the small claims track BUT the beauty of making the application at the pre-action stage (using CPR 31.16) is that no allocation to track has yet been made at that juncture. For all Barclaycard knows, your case might ultimately be allocated to the fast track!

 

There are other helpful mechanisms under the CPR too, to throw at Barclaycard and others. Take a look at the general practice direction on pre-action protocols, below, for example. Parties are obliged to share information and docs to try to avoid the necessity to issue proceedings:

 

PRACTICE DIRECTION – PROTOCOLS -

[thourb]

Rather, it would work the other way around. Barclaycard would simply say: "OK, you've estimated charges of £x: now substantiate that!"

 

You cant substantiate it because Barclays are deliberately withholding information from you. You have shown the judge that you have been reasonable by asking them for the information to substantiate your claim and you have also asked for the information under the Data Protection Act, which they failed to comply with also.

 

I think that the onus must be on them to disprove as they have failed to disclose evidence to you, which - by law - they must do.

[ninekey]

yep, you can definitely nail 'em for failing to follow the protocol: the judge could well make a costs order against them for that sort of behaviour but this aside, it is always for us, as Claimants, to prove our losses. Technically, they can sit back and say 'bring it on.'

[Glenn UK]

I think the onus on the claimant where the sum claimed is estimated, is to have some basis on how to make their estimation.

 

Even if its simply i estimate from memory that i was charged 100 pcm whilst i had the account.

 

The more info you have to make your claim the less liable the judge will be to make signficant alterations.

 

bearing in mind that the bank has it in its power to confirm the exact amount of charges, i think a reasonable estimate on the part of the claimant would go without effective challenge.

 

The key is to have something logical which you can write down and produce if required. ultimately if its wrong then you claim any extra if and when you become aware of the difference, or the bank can provide you with the information to allow you to claim the correct amount.

 

I think its a non-issue in reality.

 

JMHO

 

Glenn

[ninekey]

Agreed. In the event, the potential problems on estimation are likely to be overshadowed by the Bank's conduct in not disclosing the pre-2004 charges information.