bat, When an agreement is assigned, the assignor can not assign any more right in that agreement than he possesses. Where he assigns an agreement when he is in default of a section 77 or 78 request and thus prohibited from enforcing whilst the default continues, the assignee acquires the agreement subject to the prohibition. x20

Then if you were asked who to nominate by the bank and you nominated the company's solicitor, the bank discharged the notice. However the solicitor may be at fault. A solicitor ought to decline to act where he is faced with competing duties. The solicitor has a duty to his client company to serve that company's interests. The company had an interest in acquiring your signature to a bank guarantee. On the other hand he had a duty to give to you full and frank advice about the nature of the guarantee and all the pitfalls to include the 'consideration' which was on offer from the company as an enticement to procure your signature. Anything known to the solicitor concerning the company, its liquidity, business plan and so forth were things he would ordinarily be obliged to draw to your attention in pursuance of the duty owed to you. I say ordinarily because the solicitor has a competing duty to keep such things confidential. So he couldn't tell you such things and thus laid himself open to allegations of negligence. The negligence is tendering advice when compromised by the competing duties. Had he declined to act you would have gained advice elsewhere. It is reasonable to assume, especially with the beneit of hidsight that the advice you would have received from a solicitor with no competing duties would have been 'do not sign'. It wasn't the company solicitor who said you had a 10-20% chance of success by any chance was it? I'd take legal advice 'out of town', ie advice away from the town in which the solicitor who advised you prior to your signing the guarantee carries on business. x20

The bank will or on reasonable enquiry will have known that you were not a shareholder of the company whose debts you were being asked by the bank to guarantee. Your only interest in the business was as an employee. You put in the hours and you collected a wage. As such when your name was put forward as a potential guarantor of the company's liability to the bank, in my opinion the bank ought to have been put on their guard and may be treated as on notice that there was a risk that you were subject to the duress or undue influence of one or more officers of the company. When a bank is on notice it ought to take steps to discharge that notice. It does that by urging the proposed guarantor to take independent legal advice before signing. If you were not urged in writing to take independent legal advice I would advance that fact as a ground of defence. This type of defence is an extension of Avon Finance v Bridger / Barclays Bank v O'Brien type defences. Granted, these are decisions concerned with secured loans, but where a dominant third party (ie employer) procures the entry into a guarantee of his employee, it seems to me the bank has some responsibility to detach itself from any later suggestion the guarantee was procured by deceit and so forth, and where responsibility attaches but is not acted upon, Barclays v O'Brien shows where and when the court may provide assistance. Further, if you took legal advice from the company's solicitor I would contend that advice was not independent and unless the solicitor fully and frankly explained to you the risks that you were adopting by entering into the guarantee, would contend that advice was negligent advice. x20

If the debt was already statute-barred by when you resumed payments, the resumption of payments will not renew the limitation period. See section 29(7) Limitation Act 1980. x20

Well said dosser, and bang on the button. x20

pt, lexis and bat, The references to the guidelines are helpful in so far as they are just that, but it is not clear to me what consequence would follow from a failure to follow the guidelines. Without sanctions for breach the guidelines would be no more than a paper exercise on proper conduct. Obviously the ultimate sanction would be a loss of licence but what would be the penalty for breaches of the guidelines which did not warrant revocation of licence? Whatever, what does emerge it seems to me, is that if there was a statutory prohibition on assignment where an account was in dispute, the guidelines would identify it. That the guidelines don't, coupled with all other enquiries I've made, suggests to me there is no statutory prohibition on assignment where an account is in dispute. As to the query whether it is a necessary pre-condition of the power to assign that the power is reserved under the agreement (and hence consented to by the debtor), there is no need. There would only be a need to incorporate a (negating) clause of this kind if it was intended the creditor should be deprived of this power. There is no restriction as to the time when a creditor may assign. It seems to me he may assign before the ink is dry on the agreement, though why he should wish to do so is another matter. Accordingly he may assign during the currency of the agreement, before as well as after it has been terminated. Assignment and termination are quite distinct. It would be wrong to say that a creditor in possession of an improperly executed agreement is rendered powerless by reason of the Consumer Credit Act 1974 though ultimately that may be the effect. The question whether an agreement is improperly executed is a question for the courts to determine in the event of there being a dispute on this point and which is brought to its attention. Where the point is not brought to its attention the court will not enquire into it. That way, improperly executed agreements slip through the net and merge into money judgments. Additionally of course a creditor believing his agreement to have been improperly executed may apply to the court for permission to enforce it and a debtor having like belief may apply to the court for a declaration of the court on the point too. As I have said before, where a creditor fails to comply with his obligation following receipt of a section 77 or 78 request in time, he is prohibited from enforcing the agreement for so long as his default continues. In my opinion but not HHJ simon Brown's, that prohibition extends to the service of a default notice and since the service of a default notice is a pre-requisite of termination, to termination. That is not to say the creditor may not terminate full stop, merely to say that termination without prior service of an effective default notice operates to prohibit the creditor from claiming the benefits available under section 87(1) of the Act. On the data protection point, invariably, modern forms of agreement incorporate terms whereby the debtor gives his consent enabling the creditor to share data with third parties. Each agreement will need to be examined to establish whether any and if so what data sharing is permitted under the agreement. x20

Clause 1 can not be readily understood without the availability of section 26. Further, that clause 1 should refer to the existence of clause 26 suggests there are not less than 26 clauses to the agreement and that therefore besides clause 26, clauses 24 and 25 are missing as well. On the other hand the reference to clause 26 may be a typo. The reference may be intended to refer to clause 22.6. I personally do not detect anything glaringly improper about the way in which the agreement was executed. x20

lexis, Section 136(1), Law of Property Act 1925 says: (1) Any absolute assignment by writing under the hand of the assignor (not purporting to be by way of charge only) of any debt or other legal thing in action, of which express notice in writing has been given to the debtor, trustee or other person from whom the assignor would have been entitled to claim such debt or thing in action, is effectual in law (subject to equities having priority over the right of the assignee) to pass and transfer from the date of such notice (a)the legal right to such debt or thing in action; (b)all legal and other remedies for the same; and ©the power to give a good discharge for the same without the concurrence of the assignor: Provided that, if the debtor, trustee or other person liable in respect of such debt or thing in action has notice (a)that the assignment is disputed by the assignor or any person claiming under him; or (b)of any other opposing or conflicting claims to such debt or thing in action;he may, if he thinks fit, either call upon the persons making claim thereto to interplead concerning the same, or pay the debt or other thing in action into court under the provisions of the Trustee Act, 1925. You will note that while the assignment is required to be under the hand of the assignor, the notice to the debtor need not be. All that is required is that the debtor has express notice of the assignment. Express notice may be given by the assignor, assignee or some third party even. A debtor mistrusting of a person claiming to be the assignee may enquire of the assignor for confirmation the assignment is genuine. As for disputes, a dispute arises whenever creditor and debtor are not in agreement as to the rights and obligations which the one owes to the other. Where a creditor fails to comply in time with a request made under section 77 or 78 Consumer Creidt Act 1974, the creditor ceases to be entitled under the Act to enforce that agreement for so long as his failure to comply continues. If a creditor claimed a right to enforce the agreement whilst in default of his section 77 or 78 obligations and the debtor disputed that right, there would be a dispute. But it would only be a dispute about the right to enforce. It wouldn't be a dispute on the account, which by the nature of the language would be a dispute as to an amount owing. To place the account in dispute invariably involves the debtor raising as an issue that the creditor overstates his demand and to pointing to the way in which the creditor has overstated it. If the debtor placed the account in dispute the creditor would be under a duty to take reasonable steps to investigate it and where the issue was found to be well maintained, to put the account right. Disregarding a debtor's dispute would probably be unfair practice and possibly a breach of pre-action protocol if the creditor sued upon the agreement before completing a reasonable investigation. That is not the same as saying the commencement of legal proceedings would be unlawful. In my view and subject to something satisfactory to my questions in the following paragraph, and subject obviously to the creditor having an entitlement to sue provided by the Consumer Credit Act 1974, commencing proceedings would not be unlawful where the account was in dispute. The court will be able to decide the dispute and the rights of the parties generally, and may sanction the creditor in costs where it thought it right to do so. When I ran a word search for 'assign'in The Data Protection Act 1998, The Consumer Protection from Unfair Trading Regulations 2008 and the OFT publication entitled 'Debt collection guidance - Final guidance on unfair business practices July 2003 (updated December 2006)', each time I got a 'text not found'. I would appreciate anyone able to quote the specific legislation or OFT guidance relied upon in support of the claim that either of the statutes contain provisions restraining a creditor from assigning an account in dispute. x20

I'd exercise some caution before firing off a letter of complaint to the court in which allegations of deriliction of duty, subterfuge and such like were levelled against court staff and a firm of lawyers. What's happened here is that a CPR 31.14 letter addressed to the Claimant or Claimant's solicitor has hit the court file and been wrongly treated as a Defence. That is all. There is nothing in writing from the court that the delivery of a CPR 31.14 letter constitues an admission and because it is so ridiculous a thing to claim, I wouldn't allege I was told this by court staff. You wouldn't get the Court Service to confess such advice had been given. Further, if it was treated as an admission, why in their letter do the court say they treated it as a Defence?. I don't imagine there was any grand conspiracy here. I imagine a cock up has occurred somewhere down the line and in time it will be put right. Meantime the presence of a 'Defence' on the court record is blocking default judgment. Two weeks is not an especially long time to wait to hear from the court in response to the letter I drew up. Particularly if it concerns a cock up. I'd wait longer. No one knows at present, for sure, how the CPR 31.14 letter got on to the file. You never know, the OP might have put it in an envelope addressed to Northampton by mistake. Chill till the court re-opens after Christmas. Alternatively, give them a call tomorrow. Be friendly and grateful. There's no grave injustice about to befall you. x20

It maddens me when that happens. It wouldn't happen if you were legally represented. Supposing you'd got counsel lined up? It's totally bad form, a breach of the overriding objective and the court should hang its head in shame. x20

pt, I don't think the one can be inferred from the other. Where a man says he will not exercise a right to sue his debtor it does not follow he does not want his debtor to pay him. On the contrary, he may very well intend to pursue the debt short of beginning proceedings. The same can be said if the creditor says 'I will not pursue.' It does not follow that a declaration to forbear from commencing proceedings of from pursuing is tantamount to a declaration releasing the debtor from his debt. I do not take the view that a creditor will be bound to things he did not say unless the only logical conclusion to be deduced from the words he used is the thing he did not say. Where the creditor utters words 'ok you dont have to pay' that is a matter quite different from the creditor saying 'ok I won't sue' or 'I won't pursue'. Besides, 'I won't sue' is merely a statement of a present intention and in the nature of a promise unsupported by valuable consideration. 'You don't have to pay' is likewise a form of release unsupported by valuable consideration. If the debtor could show that the creditor gave that promise or release and the debtor shifted his position in reliance upon that promise or release which, if the creditor was allowed to resile from it would cause prejudice to the debtor, the debtor may be able to invoke the court's jurisdiction in equity to estop the creditor from pursuing the claim in light of it. If proceedings were brought to restrain the creditor from publishing defaults and the debtor was able to satisfy the court he had been released from the obligation to pay the debt, it seems to me that the publication of a default would be tantamount to claiming the debtor had breached an obligation to pay. To claim that there was an obligation to pay and a breach of it would of course be contrary to the fact of release. But I don't think you can take it that far. You don't have a release. You've only a promise not to sue or pursue and the equitable estoppel principle is available as a shield not a sword, that is, to a Defendant not a Claimant. x20

Put this: The Claimant commenced proceedings in relation to an agreement regulated under The Consumer Credit Act 1974, claiming a right to sue as assignee. A Defence was served in which the Defendant alleged the agreement was unenforceable on grounds the Claimant was not entitled to the relief claimed by reason of the provisions of the Consumer Credit Act 1974 and/or Limitation Act 1980. Following the delivery of the Defendant's allocation questionnaire, the Claimant served Notice of Discontinuance. x20

give or take a couple of months. x20

pt, In the example given, the creditor purports to have two rights, [1] to pursue the debt and [2] to publish adverse credit data about the debtor's failure to pay the debt. As to [1], the creditor says he will not exercise that right. As to [2] he says he will continue to exercise that right. It seems to me that the ability to exercise right [2] is only lost to the creditor where rights [1] and [2] are so closely interwoven that the election not to pursue right [1] leads naturally to the loss of right [2]. I take the view they are not so closely interwoven and that the exercise of right [2] may be exercised independently of the election not to pursue right [1]. A creditor may elect not to pursue a debtor for a range of reasons unconnected with the debtor's liability. The debtor may be inpecunious such that the creditor elects not to sue for commercial reasons. He thinks he would be sending good money after bad. That he reaches that decision would not alter the fact that, if correct, the debtor had defaulted under the agreement. In which event, the creditor may it seems to me at least, continue to publish data that the debtor was in default. However, in your example you say the adverse credit data is 'surely wrong' though you don't say why it is wong. If the data being published is factually wrong to the point of constituting a slur on the debtor's credit status, it seems to me, following Durkin, that a court may treat the publication of such data as tortious, restrain it and award damages. x20

tifo, Claimants have always reserved to themselves the right to begin proceedings at a time of their chosing. Ordinarily I would have thought a debtor would be content enough that a creditor was procrastinating or had elected not to sue. If the debtor is not content with the creditor's procrastination or decision not to sue and would prefer him to, too bad. If the debtor wants to stop harrassment he can take steps to restrict the DCA to communicating by letter only and then bin the letter the moment it comes through the letter box. If the debtor wishes to restrain the creditor from wrongly publishing adverse credit data he may sue the creditor alleging the breach of contract or wrongdoing relied upon and seek damages and an injunction. If the creditor has a legal right to publish adverse credit data, the court will not restrain the creditor from exercising that right. x20

Besides the two possibilities that [1] the creditor is in possession of a properly executed agreement and [2] the creditor is in possession of an improperly executed agreement, there is the possibility that [3] the creditor is not in possession of the original signed agreement at all. This third possibility increases the more delinquent the debt. A creditor is more likely to be in possession of the agreement the closer in time the parties may be to the agreement being a current agreement. If the debtor had defaulted on the agreement long ago, the agreement may be a terminated agreement by when the debtor thinks aout a CPR 31.16 application and the debt may have been assigned one or more times. Part and parcel of the general rule regarding costs of a CPR 31.16 application is that the debtor applicant pays the costs incurred by the creditor respondent for complying with a CPR 31.16 disclosure order. That would entail searching for, disclosing and making the documents available for inspection. So where in PT's pre-action opening letter the debtor asks the creditor: Please confirm if you still hold a copy of my signed agreement and that you will provide me with this document. It seems to me the creditor is within his rights to say, provided it was true of course, that he is presently unable to confirm he is in possession of a signed agreement nor able to confirm he will provide that document to the debtor. It would be true unless the creditor actually held it or had it on his desk when he replied. I say this because, before he is able to give such confirmation it will be prudent for him to search for it and satisfy himself that where he gives confirmation to his debtor, he gives it correctly. And since searching for the document forms part of the expense the debtor will normally be expected to pay, carrying out that search without a court order or undertaking to pay, provides the debtor a service the court would not expect of the creditor without payment. Declining to go search for it following receipt of the debtor's opening letter would not be unreasonable in my opinion. So in addition to not knowing whether the agreement was or was not improperly executed, the debtor does not even know for sure whether the respondent to his proposed application actually possesses the agreement, or else where it might be. It is therefore not beyond the realms of possibility that [1] a debtor applies to court for a CPR 31.16 disclosure order [2] the court directs the creditor to give disclosure of the document [3] directs the debtor to pay the creditor's costs [4] the creditor delivers his list of documents saying the agreement is no longer in his control. PT asks the question: 'id ask how you would get documents from the other side if they refuse to comply with a request for the documents which are crucial to your clients case.' A few things are worth remembering: [1] the debtor wants the creditor to charge about producing documentary evidence because the debtor has his fingers crossed that he will subsequently be suing the creditor for a declaration of the court that the agreement was improperly executed, is unenforceable and thus, he can be relieved of the burden of the debt. The court is not going to expect anyone to bend over backwards to assist a potential future adversary. [2] Where the court directs a 'non-party' to assist, the general rule is that the non-party's costs are met by the applicant [3] that the documents are only 'crucial' where the agreement is improperly executed. The debtor does not have a case of any description unless [1] the creditor volunteers an improperly executed agreement or [2] the court directs CPR 31.16 disclosure and [3] following the making of such an order, the creditor discloses an improperly executed agreement. [4] where the agreement disclosed is properly executed, that fact is a total hinderance. So to begin with, a CPR 31.16 application has unattractive baggage in the shape of uncertainty of success on the application (for want of being able to demonstrate the existence of a case or belief in the fact the agreement was improperly executed), uncertainty as to whether anythiong and if so what may be disclosed, and risk that the exercise will prove to be a very expensive waste of time. If a creditor refuses to volunteer the agreement and the debtor is so desirous of seeing the document that he is willing to run a CPR 31.16 application with the risk, expense and uncertainty I have refered to, he is at liberty to bring on his application and hope for the best. It is his only chance of seeing the document pre-action. The debtor's other remaining option is to address the question whether or not the agreement was improperly executed as and when and if the creditor should sue on it. In those circumstances the burden will be upon the creditor to show the existence of a case, not the debtor, and the debtor will not have to fork out to get the creditor to produce the agreement. The debtor gets it as of right. x20

What the debtor wants to see is an improperly executed agreement. He doesn't want to see a properly executed one. And this brings me to my major concern which is that where you are a debtor you can ask for the documents if you believe you have a case against a proposed defendant, for example, you believe the agreement may be improperly executed and that you may have a claim for a declaration pursuant to s142 (1) Consumer Credit Act 1974 Without the original agreement you would not be able to assess if it was indeed properly executed, Unless you have the original document you wont know if it was compliant with the legislation (per PT this thread post no1) Accordingly, a debtor who seeks to invoke the pre-action protocol and engage the creditor in dialogue regarding the agreement does so without any idea whatsoever whether he has a cause of action. He might have some idea if he has a response to a SAR or a form of answer to a section 77 or 78 request, but not otherwise. I presently fail to see therefore, how a creditor can be charged with unreasonable conduct if, after inviting the debtor to particularise the grounds supporting his belief that the agreeent was improperly executed, that debtor, for whatever reason, demonstrates an unwillingness or inability to provide satsifactory answers, the creditor then decides against continuing the dialogue. Ordinarily an applicant for pre-action disclosure already has some evidence to support a cause of action. Let's say B is in unlawfully possession of A's printer and A wants it back. I imagine that before A seeks pre-action disclosure, A will have some evidence that B is unlawfully possession of the printer. Let's also say that besides regaining his printer, A also wishes to disgorge from B the profits B has made from his unauthorised commercial use of it. But before launching legal proceedings for the return of the printer, wants to know the extent of that profit. To be able to do this he needs access to B's books and records. So he applies for disclosure of these documents. Now contrast the situation where B voluntarily returned the printer so that all that was left was potential for a claim for the profits. Does A know B profited? B may have made a loss. Before A can depose to the truth of a statement that he believes B profited, A will need something on which to base his belief. When A writes to B and asks for access to his books and records, would B be conducting himself unreasonably if he asked A to show him one scrap of evidence tending to show he had made profitable use from A's computer? And if A was unable to produce that scrap of evidence would you say that it was unreasonable of B to decline to show A his books and records? Would your answer be different if A wrote to B six times asking for production of the books and records but never during any of those six times did A produce that single scrap of evidence that B had asked for? Now let's move on to the case of the debtor. All he has in front of him are his crossed-fingers and his prayers. What's so different to the hypothetical 'profit' scenario above? Apart from the fact the debtor doesn't even know if the respondent is in possession of the darn agreement? If the creditor has not behaved unreasonably, the debtor pays the respondent's costs of the CPR 31.16 application under the general rule. More on possession by the respondent (or non-possession) later. x20

miffed PT is the guy that is churning out the CPR 31.16 applications with great success including successful cost outcomes. I have no experience of them in the special field of consumer credit. My experience is limited to the sphere of commercial/mercantile litigation situations so what I bring to this debate comes from there. So I'm hoping PT will join us with a few of his illuminating fillets very shortly. That said, where the court was satisfied that both applicant and respondent had conducted themselves reasonably in the course of the CPR 31.16 application, to include pre-application communications, I take the view there would be nothing upon which the Judge might justify departure from the general rule that the applicant should pay the respondent's costs. The order sought upon a CPR 31.16 application is an order for the discloure of whatever documents are identified in that application. In the case in point, it would be for the disclosure of the agreement as executed. The disclosure occurs after the order has been made. If the applicant should be disatisfied with the disclosure made by the respondent the applicant may return to court for an order compelling compliance. If the court should decide the respondent had failed to comply with the provisions of the previous order I would expect the court to award the cost of the application to compel compliance against the respondent in breach. If the respondent discloses the agreement as executed he complies with the order. The court entertaining the application under CPR 31.16 will not cause further investigation to ascertain whether the agreement was improperly executed. That question will be for another set of proceedings. The court will not reverse a costs order in favour of the respondent simply because in complying with the order the respondent disclosed an improperly executed agreement. After all, the document the creditor respondent disclosed was precisely what the debtor applicant had hoped for. x20

miffed, Such a feature improves the debtor's prospects in my view. You will have gathered that I am debating with pt whether owing to the lack of any such feature constituting grounds to suppose the agreement was improperly executed, a debtor contemplating a CPR 31.16 application might be in difficulty in honestly stating that he truly held a belief the agreement was improperly executed and thereby, bring himself within the threshold requirements of CPR 31.16. In this regard I have my doubts that a creditor's election to decline to comply with what would amount to a pre-action [(ie action under section 142(1)(b)] protocol application for the disclosure of the agreement would be unreasonable where the debtor applicant was unable to advance an honest belief the agreement had been improperly executed or that there was presently some merit in his making an application under section 142(1)(b) for a declaration regarding unenforceability. Simply doubting reasonableness wouldn't be so bad if it were not for the fact that the general rule regarding the costs of applications under CPR 31.16 directs that the applicant should meet his own as well as the creditor's costs incurred in dealing with the application and the disclosure of the documents. If the debtor can make his case out so as to bring it into line and on all fours with CPR 31.16 and at the same time the respondent conducts himself unreasonably, there is some prospect for supposing the debtor will not be ordered to pay the creditor's costs of the application. If the creditor can show he conducted himself reasonably it seems to me the general rule will apply. If the creditor can show the debtor behaved unreasonably, by for example bringing a CPR 31.16 application which was not on all fours within the rule, it seems to me the debtor faces the real hazard that his application will be dismissed in which event an adverse costs order against the debtor strikes me as inevitable. x20

Moving on from my previous post PT, you contend that to improve the prospects of an applicant debtor securing a favourable costs order: there needs to be a refusal from the other side to comply with your requests for information which can be clearly identified as a breach of the Pre action Protocols Practice direction That involves two things: [1] a refusal to comply with a request for information coupled with [2] a breach of the pre-action protocol. The pre-action stuff will be pre section 142(1)(b) proceedings. Let's say I get this letter from PT & Co: Dear x20 Account number I write with regards to the above account with your organisation. I respectfully request that you provide me by return a copy of the credit agreement which bears my signature. I require this as i have reason to believe that there may be discrepancies within the agreement which may leave it improperly executed.Additionally i require the underwriting sheet or other document showing any commissions paid to you by the broker or by you to the broker obviously if the agreement is improperly executed i would be entitled to ask the court to consider the agreement and make a declaration of the rights of parties to the agreement. I must stress this request is NOT made pursuant to section 78 Consumer Credit Act 1974 but is made pursuant to the Civil Procedure Rules ( Pre action protocols and Part 31.16) and therefore unsigned copy will not suffice, only a copy of the original contract in its unaltered form will suffice in these circumstances Please confirm if you still hold a copy of my signed agreement and that you will provide me with this document. I do not view this as an unreasonable request given that by supplying the document which i have asked for it will allow me to assess if my case has merit and will help to resolve matters possibly without the need to involve the court and will undoubtedly save costs on both sides I look forward to your reply and would ask for a response by 4pm on XXXX Date ( Give 21 days to respond) So I reply as follows: Dear PT, Thank you for your letter dated (date). I note you advance as justification for your request for a copy of the agreement, a reason to believe there may be discrepancies within the agreement which may leave it improperly executed. In order that I might give further consideration to your request I should be pleased if you would at your earliest convenience, furnish me with proper particlars of each and every reason upon which you say your belief there may be discrepancies is founded. Additionally, please also let me know the precise nature and particulars of the case to which you allude and the merit I presume you to say is presently found within it. If you are unable to identify a reason for holding such a belief, particularise any present merit in a case or otherwise demonstrate potential for a cause of action upon which there might be dialougue within the meaning of the relevant pre-action protocol, I regret that I may be incapable of assisting you further. I look forward to hearing from you in early course. More devil's advocating you realise. x20

'Schedule 3 S 11 CCA 2006'. Bang on the button PT. Good stuff. 'Secondly, Lord Nichols of Birkenhead stated in Wilson that prejudice was irrelevant if the agreement was improperly executed the court could do nothing but find it unenforceable even if the debtor had not been prejudiced in the slightest so Prejudice is neither here nor there.' Indeed, though said in the context of what then constituted section 127(3) of the Consumer Credit Act 1974, but where prejudice would be relevant in so far as an agremeent was improperly executed on or after 6 April 2007. 'as for costs i refer to Black and Sumitomo and also SES contracting' Neither case would prohibit me as a representative for the bank from seeking a costs order. For the proposed pre-action disclosure application to succeed (on which a costs order is dependent) it is a pre-requisite that the applicant is able to show there is some likelihood of subsequent proceedings involving the applicant and respondent, or the subsequent settlement of some present dispute. In the build up to an application for pre-action disclosure of the agremeent, upon the creditor's receipt of the debtor's letter asking for production of the agreement, (not being a request under section 77 or 78) the creditor would be entitled to enquire as to the grounds upon which the applicant based a belief that proceedings between the debtor and creditor were likely or otherwise contended there was a present dispute. If the answer was an otherwise unsupported statement that the agreement had been improperly executed it would in my opinion, be reasonable for the creditor to conclude that the debtor had no reasonable grounds for reaching such a conclusion. It seems to me that if the debtor was unable to advance an arguable case on this point it would not be unreasonable for the creditor to decline to cooperate. If the creditor declines to co-operate but the debtor wishes to proceed he is bound to furnish the court with the material demonstrating the application meets the requirements of CPR 31.16. To this end you have incorporated in your draft witness statement a statement in the following terms: I have reasonable grounds for a cause of action against the defendant. The grounds are as follows a) I believe that the agreement is improperly executed and not compliant with the requirements of section 61(1)(a) Consumer Credit Act 1974 and therefore the claimant would be entitled to seek a declaration from the court pursuant to section 142(1) Consumer Credit Act 1974 If I was a representative for the bank I would be bound to contend that a person who was not in possession of the agreement in question and who required pre-action disclosure of it in order to determine whether it had been improperly executed or not, was not a person who might verify as true that he had reasonable grounds for believing the agreement was improperly executed and non-compliant with the requirements of section 61(1)(a). At best the applicant is speculating with no reasonable, genuine belief in the truth of his statement whatsoever. The absence of genuine belief would strike at the debtor's credibility. Further the debtor would fail to reach the threshhold requirements, namely that he has reasonable grounds for bringing a claim and that the bringing of a claim is likely, as a condition of invoking the court's discetion whether to direct pre-action disclosure. The general rule on costs is found at CPR 48.1 and provides that generally, it will be the applicant for pre-action disclosure who shall pay the costs including the respondents costs of the the application. It says: (1) This paragraph applies where a person applies (a) for an order under (i) section 33 of the Supreme Court Act 1981; or (ii) section 52 of the County Courts Act 1984, (which give the court powers exercisable before commencement of proceedings); or (b) for an order under- (i) section 34 of the Supreme Court Act 1981; or (ii) section 53 of the County Courts Act 1984, (which give the court power to make an order against a non-party for disclosure of documents, inspection of property etc). (2) The general rule is that the court will award the person against whom the order is sought his costs- (a) of the application; and (b) of complying with any order made on the application. (3) The court may however make a different order, having regard to all the circumstances, including- (a) the extent to which it was reasonable for the person against whom the order was sought to oppose the application; and (b) whether the parties to the application have complied with any relevant pre-action protocol In Black v Sumitomo, on appeal the Court of Appeal reversed the decision of the Judge below to direct pre-action disclosure. In SES, the judge at first instance allowed the applicant the costs of the application. On appeal the costs order was substituted with as 'no costs' order. The 'no costs' order was substituted even though the Court of Appeal through Moore-Bick LJ concluded that where the judge at first instance had formed the view that the conduct of the respondent to the application might fairly be criticised as unreasonable, nonetheless, a departure from the general rule would be justified but not to such an extent that the applicant recovered the costs of the application. Moore-Bick LJ said: After nearly three days the judge was well placed to assess not only the nature of the evidence filed by UK Coal but also the extent to which its approach to the application had affected the preparation for the hearing and the hearing itself. I see no reason to differ from his assessment and I would therefore approach the question of costs on the basis that the criticisms he made were well-founded. In my view there was ample material to justify a departure from the general rule, but not to the extent of ordering UK Coal to pay the whole of SES's costs. I would set aside his order and substitute no order as to costs. In other words, notwithstanding acceptance of the fact that the respondent to an application had conducted himself unreasonably, the extent to which the court was prepared to depart from the general rule was limited to making no order as to costs so each party met their own. In the examples you cite PT, where you have been involved and obtained costs orders for your applicant-client, the stupid creditor has simply and unreasonably ignored the request so that an application then followed. May be the stupid creditor didn't even show up at court. It seems to me that it would be unsafe to presume that all creditors will always conduct themselves unreasonably. On the contrary it seems to me a well-advised creditor may conduct itself reasonably whilst avoiding the making of an order for pre-action disclosure, especially where it can be shown that the applicant fails to meet the threshold test I discussed earlier. If that should occur why should the respondent be denied his costs? x20

Once a debt has been assigned the assignor ceases to have any interest in the debt and the interest is the exclusive property of the assignee. A re-assignment may occur thereafter to include a re-assignment from the original assignee (now as assignor) to the original assignor (now as assignee). The requirements for the giving of formal notice to the debtor will apply to each and every assignment of the debt. x20

tifo has already arrived at the point of this post of mine. The idea behind bringing an application for pre-action disclosure of the consumer credit agreement would appear to be to enable the debtor by having the agreement in question before him, to form a view as to whether the agreement was improperly executed. If the debtor should form the view the agreement was improperly executed he may wish to bring proceedings for a declaration under section 142(1)(b) of the Consumer Credit Act 1974 to the effect that the agreement owing to improper execution ought not to be enforced. If the debtor should form the view that the agreement was properly executed he will plainly not wish to make such an application. My concern is that given the effect of section 15 of the Consumer Credit Act 2006, the powers of the court available under section 127 Consumer Credit Act 2004 have been significantly diluted. For example, the court no longer is compelled to decline to make an enforcement order where the circumstances set out at section 127(3) to (5) exist. Those sub-sections have vanished and the court now has a discretionary power to permit enforcement of an improperly executed agreement. The court will decline to permit enforcement 'if, but only if, it considers it just to do so having regard to (i) prejudice caused to any person by the contravention in question, and the degree of culpability for it; and (ii) the powers conferred on the court by subsection (2) and sections 135 (Power to impose conditions, or suspend operation of order) and 136 (Power to vary agreements and securities). (2) If it appears to the court just to do so, it may in an enforcement order reduce or discharge any sum payable by the debtor or hirer, or any surety, so as to compensate him for prejudice suffered as a result of the contravention in question. In short, it seems to me that only where the debtor is able to show improper execution plus culpability on the part of the creditor alternatively that the debtor has suffered consequential prejudice of such enormity that the imposition of conditions or variations to the agreement or a partial reduction on the amount payable under it would be insufficient to compensate the debtor, will the agreement be declared as unenforceable. It further seems to me that the likelihood of a debtor being able to satisfactorily demonstrate both improper execution and overwhelming consequential prejudice so as to achieve in the discretion of the court a declaration of unenforceability is remote. At best on proof of prejudice, he will get something knocked off the debt. It therefore begs the question, why bother seeking pre-action disclosure? Because unless prior to making the application for pre-action disclosure the debtor can also make out a case of prejudice, the reality is that the debtor would be ill-advised to make an application under section 142(1)(b). The debtor may not know whether his agreement was improperly executed for a kick-off, but he ought to be able to formulate in his mind how he might say he has suffered prejudice in the event that following disclosure, the agreement proves to have been improperly executed. The pre-action disclosure of the agreement does not bring with it the tools to demonstrate culpability or prejudice. If I was representing a respondent bank to an application for pre-action disclosure of a credit agreement where the likely proceedings were defined as proceedings for a declaration under section 142(1)(b) I should very much like to know, indeed, be entitled to know, what culpability or prejudice the debtor will contend for in the subsequent proceedings. If I was able to show the agreement was properly executed I would be able to show subsequent proceedings were unlikley. Likewise, if the debtor was unable to set out a case for either culpability or prejudice, the debtor will be unable to show the likelihood of subsequent proceedings. The lack of a likelihood of subsequent proceedings would be a bar to relief under CPR 31.16 in which event I should seek a costs order against the debtor. In fact I'd seek a costs order against the debtor whatever the outcome of the application. The foregoing is another manifestation of the devil's advocate within me and I should welcome a read of the counter-argument. x20

Why do you think it would make things worse? x20

car, rest assured the thing I'm pointing at you isn't loaded. You are of course at liberty to treat the word 'Currency' in the title to Part VI of the Act as meaning 'Amount Owed'. You'd just be wrong to. In my opinion I do know what was in the mind of the parliamentary draftsman when he came to give a title to the collection of sections in Part VI of the Act. I am able to pass such an opinion owing to the choice of words he used to express what Part VI of the Act was intended to cover. I don't think I'd have any difficulty satisfying a Judge that my interpretation of Part VI is the right one. I am happy to accept that (regardless of whether) there is an amount owed under the agreement, (whether that's "currency", "amount owed", "agreement running" or "lasting" or "enduring") a CCA request can still be made. The real question is whether and if so when is a creditor under an obligation to answer that request. That's where you and I disagree. I say the creditor's obligation expires once the agreement ceases to be a current agreement. You say the obligation endures regardless of whether the creditor has become a judmgent creditor and only expires once the debt has been reduced to nil. Whether a judgment gives rise to a cause of action is a matter of law not opinion and it is crass law to say that one does. Causes of action have been around a long time so definitions tend to be ancient too. Here's a couple: 'The words 'cause of action' comprise every fact (though not every piece of evidence) which it would be necessary for the plaintiff to prove, if traversed, to support his right to the judgment of the court' Lord Esher MR in Read v Brown (1888) 'If the plaintiff alleges the facts which, if not traversed, would prima facie entitle him to recover, then he makes out a cause of action.' Lord Esher MR in Coburn v Colledge (1897). Since as I said before, causes of action if proven given rise to judgments of the court, it follows that a judgment can not be a cause of action for itself. The point in my quoting the speech of Lord Bingham was twofold. There was the matter of post-judgment interest (as to which now see section 130A), but primarily I quoted Lord Bingham because of what he said in the final sentence, namely how the covenant to pay interest was subsumed in the judgment. 'Subsumed' or 'merged' is a much better word than 'morphed' which latter word I would avoid using in court, but the point is clear. Which is why I was surprised to read you telling me that agreements don't morph into judgments. Lord Bingham will tell you they do, though he'd use the word 'subsume' or 'merge'. I disagree that a judgment should be set aside owing to the simple fact that a section 77 or 78 request has not been answered. Other factors will play a part in the decision whether to set aside but the only notable factor in such a scenario would be whether the unanswered request had been delivered during the currency of the agreement. A request delivered once the agreement had been terminated should be dismissed as an irrelevancy. On the matter of my supposed indication that 'a CCJ would be dodgy should the debtor make a CCA request that isn't complied with', apart from the fact I am unable to locate my saying such a thing in a reply to something said by you and would disagree with myself if I had said such a thing save in the limited circumstances set out in the preceeding paragraph, I do not accept that 'where a CCA request is incapable of being made due to s.77(3)/s.78(3), no CCJ can exist.' First and as I have said earlier in this thread, the question is not whether a rquest can be made but whether there is any obligation to answer it. There is no obligation to answer a request made where the conditions of section 77(3) or 78(3) are satisfied. But that section 77(3) or 78(3) is satisfied does not render a judgment of the court a nullity or 'non-existent'. To begin with the applicability of either section 77(3) or 78(3) would have long vanished by the time the court came to grant a judgment. But putting that fact to one side, CCJs do not 'cease to exist' or worse become treated as if they had never been made untiil a court declares that so. Reducing a money judgment to nil renders the judgment satisfied and that is all. I don't think there is anything I can usefully add. x20