PRACTICE DIRECTION – PRE-ACTION CONDUCT - Ministry of Justice The new Practice Direction came into force on 6 April this year. Annex A sets out a procedure to be followed. Refer to Annex A, paragraphs 2.2(1) and 4.2(7). Also refer to paragraph 4.4(5) of the main PD and to paras 4.5 and 4.6. BoS might argue that Annex A does not apply because it is a simple debt action subject to a statutory procedure but your counter to that is that they are on notice that there is a dispute and that they have failed to follow the statutory procedure. Hope that helps. Gotta go again but hope to be back in later.

As usual, I am catching up with threads over my coffee before having to dash off to do something, so this is just a quickie. But ... I think I should flag up the Practice Direction reference is now superseded by the recently introduced Practice Direction on Pre Action Conduct. You are still entitled to ask for documents but the reference will be different. The Practice Direction will be on the MoJ website.

Lack of a total amount is a failure to serve in the prescribed form. As for the has it or hasn't it been terminated question, the fact is that they demanded earlier payment, for which a DN is also required.

6 April 2007

good luck

Looks ok to me but procedure is not my forte.

Aren't we all missing the wood for the trees here? Termination is not the only thing that requires a DN under section 87(1): demanding earlier payment and bringing proceedings (both of which they have done) are also on the s87(1) list. Doing any of the three things without serving a valid DN first is repudiation. Whether they have terminated as well could well be a red herring.

Game is not up, just moved on a bit. Is the agreement enforceable? Do the statements include charges? Have they provided a DN (and, if so, any proof of service)? Is the DN a valid one?

I must admit to being a little queasy about some of the assertions made about the effect of putting an account in dispute, because I have yet to see a good explanation of the basis for them. I also think that making assertions that you don't understand is potentially very difficult. All sections 77-79 say is that the alleged debt is unenforceable. What that means is up for grabs, I suppose. Some of the 2006 amendments (such as the Arrears Notice provisions and the post-judgment interest provisions) do actually go on to say that interest and default sums may not be charged during a period of default but this was not extended to the existing provisions.

... especially when Egg got its first batch all wrong - corrected notices were sent out, I have reason to believe. Check the second AN too: does it use the closing balance from the original notice or the corrected one as its opening balance?

A termination notice following a duff DN is just one way of establishing that the contract was repudiated. Demanding full payment without a valid DN is repudiation, as is commencing proceedings without a valid DN.

Arrears Notices were introduced in the 2006 Act and came into force on 1 October 2008. They are fertile ground for challenge. By all means, file your ANs but do check them for mistakes. As for why they are still being sent during the court case, the requirement to produce ANs continues until judgment is obtained.

I did figure that there was some element of local rivalry. It's just that there's always someone worse off than you are, even if you support a North London club.

Well done! If it is any consolation, I am a Partick Thistle supporter and, if I win, it'll be the first victory worth celebrating since 1971!!!

They are right and wrong at the same time. The £1 CCA request does not include a DN. A £10 SAR ought to include any DN. A (free) CPR 31.16 request can include a DN.

First things first: http://www.royalmail.com/portal/rm/content2?catId=69800733&mediaId=80300735 That will get an investigation started to track down the SAR. Whether or not an SAR was received is really irrelevant to whether or not an account is in dispute. An SAR is only a request for information. The lack of a valid DN before termination is grounds enough for a dispute. Write to them pointing out that they would require a court order to repossess the goods and that having terminated the contract without having served a valid DN they have repudiated the contract and are precluded from obtaining a court order. Any attempt to seize the goods without a court order will be theft and conversion, exposing them to criminal and civil liability. Continued phone calls will be regarded as harassment, again exposing them to criminal and civil liability. Don't get drawn into issues about affirmation at this stage. Can you scan and post up the 3rd DN for us to look at?

There is indeed a time limit of 40 days from date of receipt but the often overlooked bit of the time limit is a requirement that SARs are dealt with promptly. Data controllers, please note.

Depends how you look at it, really. If you look at it cynically, it is a scare tactic. If you look at it sympathetically, then LTSB are the victims of an inefficient court system that is too backlogged to have told them in time that you had filed your defence before they requested default judgment. In fairness to LTSB, they have not actually claimed to have obtained judgment (which some creditors are said to do), merely to have requested one. They may have requested default judgment but they will not now get one. Sit tight but a brief letter advising them that you did file a defence in time and they will not get judgment would not go astray.

If the DN was served on or after 1 Oct 2008, it needed to include the post-judgment interest wording. There is also a requirement for regular post-judgment interest notices to be served but I am not so familiar with that requirement.

A requirement to provide annual statements for fixed sum credit (eg loans) was introduced on 1 October 2008, the first statement having to be produced within 12 months of that date. I got an annual statement for my Egg Loan fairly recently too but I don't know whether they are doing all loans at this time of year or if that is just coincidence. For the record, mine posed more new questions than it answered outstanding old ones.

Another "administrative error"?

They've already terminated wrongly twice and they can't say you affirmed the second time (even if - repeat, if - they can for the first one). Was the third "DN" right? Even if it was, I would tell to shove off, you have nothing to lose by doing so. And I would remind them - in writing - that they need a court order, which they have no right now to get.

The PoCs are dreadful! I am also intrigued as to what Human Rights Act issues HFO had in mind when they ticked the yes box to that question on the claim form!!!

Yes, they need a court order. Attempting to repossess the goods without either your agreement or a court order is a no no. Out of interest (but it should be irrelevant), did they send a third so-called DN? (I say so-called because the first two weren't actually valid DNs.)

Had lost track of the date (just read the letter without re-reading any of the rest of the thread) but that just makes the letter even more tauroscatalogical. How could your passport possibly be relevant to determining whether the tick is your tick or someone else's tick? Honestly!