Off topic posts from "Getting them to Reveal their Vitals"

[Meldrew]

Originally Posted by Alison82

^^ What if I haven't even started a claim yet? I am trying to get as much information that they hold on me before I start anything.

 

Thanks

You cant use CPR 31.14 without a claim being in process...

 

CPR 31.16 is the one you want for pre-disclosure documents.. see this thread..

 

http://www.consumeractiongroup.co.uk/forum/legal-issues/173201-why-you-shouldnt-use.html

 

But read the first 8-10 posts of the thread carefully before instigating anything

 

S.

Dunno how far you've got with this Ali, but if you're still at the pre-claim stage you could use Annex A para.4.2(7) of CPR Pre-Action Conduct protocol [here] to ask for (free) copies of documents mentioned by a potential claimant.

 

CPR 31.2 defines disclosure: "A party discloses a document by stating that the document exists or has existed", and 31.3(1) allows inspection: "A party to whom a document has been disclosed has a right to inspect that document ...". So both CPR 31.16 (via 31.3(1)) and 31.14 will only let you inspect a document; they won't get you a copy. You have to ask for it under 31.15© and offer to pay "reasonable copying costs" - say, 10p/sheet, or whatever you'd pay at your local convenience store.

 

As shadow says, CPR 31.16 applies where a claim has not yet been issued (but seems likely). CPR 31.14 applies if a claim has been issued but either not yet allocated to a track or allocated to the Fast Track. For claims allocated to the Small Claims track you must use CPR 27.4(3)(a)(i) [here], where at a Preliminary hearing you can ask the judge to order "standard directions" for the claimant to give you a copy of all documents he'll rely on.

 

So in a nutshell, to get a copy of document:

 

• Claim threatened but not yet issued:
  
  • CPR 31.16 & 31.15©, or
    
  • Pre-Action Conduct protocol Annex A para.4.2(7)
    

   

  [*] Claim issued but not yet allocated: CPR 31.14 & 31.15©

  [*] Claim issued and allocated to the Small Claims Track: CPR 27.4(3)(a)(i)

  [*] Claim issued and allocated to the Fast Track: CPR 31.14 & 31.15©.

Using the appropriate route should produce an actual (not "true") copy of the agreement and any other documents vital to the claimant's case. If they don't appear, then most likely the claimant hasn't got them, in which case one hopes he will see his claim is groundless and futile, and withdraw it.

 

Here's a template letter for the first case above (cobbled from another of X20's master works - deep, deep homage!). You'll need to adapt it to your own circumstances:

RECORDED DELIVERY

Request for copies of documents

(Civil Procedure Rules 1998: Pre-Action Protocols)

 

Dear Sirs

Account/Reference [1234 5678 8765 4321] (IN DISPUTE)

 

Your letter dated **DATE** (received **DATE**) says your client has instructed you to commence court proceedings against me without delay, and that papers are being prepared for action at my local court to seek a judgement against me.

 

As you know, I have long since requested from your client, under both the Consumer Credit Act 1974 (“CCA 74”) and the Data Protection Act 1998, evidence of the agreement to which both you and your client allege I am a party. To date your client has failed to supply any such evidence, but instead tried to persuade me that providing a copy of an application form discharges your client from further obligations under section 78 of CCA 74. Conversely, I have explained that a copy of a mere application form is not a lawful substitute for a true copy of the executed agreement as required by CCA 74 s.78 and prescribed by Regulation 3 of the Consumer Credit (Cancellation Notices and Copies of Documents) Regulations 1983 (“CNCD 83”).

 

I remind you that CCA 74 s.78(6) provides that whilst a creditor is in default of a request made under sub-section (1) it may not enforce the alleged agreement.

 

Notwithstanding the above and your client's persistent, unexplained and wilful refusal to supply a copy of an executed agreement in accordance with its obligations (the permitted omissions under CNCD 83 Reg.3(2) excepted), you have made plain your client’s intention to begin legal proceedings against me. Consequently this matter is now subject to the Civil Procedure Rules and your letter appears to be intended as a “letter before claim”, despite not complying with the Pre-Action Conduct protocol.

 

Therefore take notice that, I request you supply to me within 14 days true copies of the following documents:

1) the executed credit agreement incorporating prescribed notices, terms and conditions applicable at the time the agreement was executed, and

2) any further or subsequent notices, terms and conditions relied on.

 

If you are unable to supply these documents please confirm discontinuance of your client’s claim.

 

Take note that this request is not made under either CCA 74 or DPA 98. It is under Annex A paragraph 4.2(7) of the CPR Pre-Action Conduct protocol, for a copy of alleged documents which I believe are relevant but do not have.

 

Should you ignore this request, I shall in due course make another under CPR 27 or 31.15, as appropriate. If you fail to comply with that request, I will ask the court to strike out your client's claim as an abuse of process due to lack of reasonable grounds, or at least order proceedings be stayed pending provision of the requisite documents. The application will refer to this and previous document requests, and apply for costs.

 

FOR THE AVOIDANCE OF DOUBT, THE ABOVE SHALL NOT BE CONSTRUED AS ADMITTING THE EXISTENCE OR VALIDITY OF AN AGREEMENT WITH OR DEBT TO YOU OR ANYONE YOU CLAIM TO REPRESENT.

Yours faithfully

 

PRINT NAME, DON'T SIGN

I'm sure X20 or other experts here will point out any flaws in this!

[Meldrew]

Im liking that there ^^^^ Meldrew! Might use that myself! You had any comebacks? I gotta put a defence in tomorrow with the court!

I haven't used it "in anger" yet. It's a development of X20's idea of using general court procedures as a much quicker and cheaper way of getting actual copies of documents you'll need to defend the claim, instead of relying on the specifics of CCA 74 ss.77-79 for what might be a manufactured so-called "true" copy of just the agreement & referred terms

 

As I said, it also teases out whether the claimant does actually have those documents. If he doesn't you'll know to ask the court to strike out the claim due to lack of good cause, in that the claimant will never be able to prove entitlement to payment. Striking out bars another claim on the same (or substantially similar) grounds, whereas the court can give permission for a discontinued claim to be reinstated later.

 

Good luck with your case - let us know if this does work.

[Meldrew]

My head feels like it is going to explode but can somebody point me to an idiots guide to CPR rules and regulations. I am sure other numpties like me might benefit from a simple clear breakdown of all the jargon and forms.

I don't think I've seen a CPR "idiots guide" and I'd be very interested if anyone has a link to one. There must be many legal textbooks about CPRs, though probably not readily understood by laymen like you & I - and that doesn't mean we're numpties.

If you google CPR it'll take you to the CPR site which lists all of them in numerical order and gives details of what each section deals with... ensure you do it in the morning tho as it'll send you to sleep at night.

You don't need to Google anything: the highlighted links in post 270 above lead to to the CPRs, which are quite understandable if you read them carefully and don't assume they say something they don't. The brief glossary in the menu on the left of the CPR page should help with some of the jargon. The associated Practice Directions explain the CPRs in reasonably plain language (you'll see what I mean when you get there), and some of them tell you which form/s to use. The list of forms is fairly self-explanatory. Don't try to read everything at once - only look at the bits you need to know at the time, or your head really will explode. If in doubt, ask here - there's loads of expertise & good advice in CAG.

 

As shadow says, CPR 31.16 is used PRE-court, i.e. where the other side has said or implied they might issue a claim against you but not actually done so yet - which I guess is where you are. Unfortunately, I fear Barclays are mostly right about the 31.16 procedure & costs, though 48.1(3) is a potential get-out for costs if the judge thinks the other side hasn't behaved properly. However, instead of making a formal application with the potential cost risks you can bypass court procedures by just writing to Barclays along these lines:

CPR 31.2 says,

"A party discloses a document by stating that the document exists or has existed."

 

31.3(1) says,

"A party to whom a document has been disclosed has a right to inspect that document ..."

 

31.15 says,

"Where a party has a right to inspect a document -

(a) that party must give the party who disclosed the document written notice of his wish to inspect it;

 

(b) the party who disclosed the document must permit inspection not more than 7 days after the date on which he received the notice; and

 

© that party may request a copy of the document and, if he also undertakes to pay reasonable copying costs, the party who disclosed the document must supply him with a copy not more than 7 days after the date on which he received the request."

31.21 says,

"A party may not rely on any document which he fails to disclose or in respect of which he fails to permit inspection unless the court gives permission."

Therefore, if Barclays have mentioned a specific document they have disclosed it to you, so you have a right to inspect it and hence ask for a copy of it, which they must send you within 7 days at no cost other than "reasonable copying costs" - say, 10p/sheet ("reasonable" means reasonable to you, not necessarily them). If they don't produce it they can't use it in court without justification.

 

However, I haven't used that tack yet so I don't know if it works, though I suppose it'd be worth a try. I still maintain the most effective way of getting all the documents you need, before the claim is issued, is by the Pre-Action Conduct protocol (see post 270). The advantages over CPR 31.16 are:

 

• no form filling
  
• no court fees
  
• no need to struggle with drafting the disclosure order
  
• no blocking or stalling by other side
  
• not at mercy of judge's whim whether to order disclosure
  
• no costs risk
  

I know which I'd choose.

 

Of course, none of this applies if they haven't yet mentioned court action.

Edited December 5, 2009 by Meldrew
Typo - oops!

[Meldrew]

That is the best way forward. Send them a 31.14 request and give them 7 days to comply (interestingly they don't actually HAVE to reply to you! The only 31.14 or 31.15 request they have to react to is one made by the court!)...

Ooh dear, missed that - where does it say so?

... If they don't respond in 7 days, do a 31.15 request giving them 7 days, if they don't respond to that you MUST make an application to the court asking them to compel the OP to reply or to strike the claim...

Weeeelll, yeesss, you can - buttt. I'm all for combining 31.14 & 31.15© requests. If the claimant doesn't produce a copy of the docs in time, he probably doesn't have them.

... But, no, apparently they DON'T HAVE to reply unless the court either makes the request or makes an order for them to comply and even then there seems to be no sanctions for not complying! ...

So, CPR 31.21 (caution - this also applies to the defendant):

"A party may not rely on any document which he fails to disclose or in respect of which he fails to permit inspection unless the court gives permission."

The claimant would have to drum up a pretty convincing excuse to explain his failure to disclose and/or allow inspection & copying. If the docs seem vital to the claimant's case don't mess around seeking compliance, just go for a CPR 3.4 strike-out with costs:

"(2)

The court may strike out a statement of case if it appears to the court –

(a) that the statement of case discloses no reasonable grounds for bringing or defending the claim;

(b) that the statement of case is an abuse of the court’s process or is otherwise likely to obstruct the just disposal of the proceedings; or

© that there has been a failure to comply with a rule, practice direction or court order.

(3) When the court strikes out a statement of case it may make any consequential order it considers appropriate."

This is all very eye opening. I just hope I have a judge who knows the rules ...

Which is why you need to be prepared to remind him.

[Meldrew]

Its true that you can submit a s31.15 request and under this section you can request both to inpect an agreement and also to have a copy; this is a s31.15 request, a s31.14 request is just for copies (if you read the two sections you will see the difference). But, I understand it is not good protocol to just use the s31.15 request before a s31.14 has been tried and failed. Unless for some reason just receiving a copy of a document just wasn't appropriate??? As I said before I'm only repeating what I have heard about WHEN you should use them, but I have read the statute about what they are...

Cor, now you - and other posters - have got me thinking - and wondering - about CPR 31.14/15 requests. I'd followed surfaceagentx20's lead at the top of this thread and hadn't questioned his advice. But prompted by what you said I've had another look, and now I'm not so sure.

 

This thread is about getting a look at - and maybe a copy of - specific documents that the claimant seems to rely on, so you can understand his arguments and the strength of his case, to enable you to decide to admit or defend the claim and perhaps review your tactical options.

 

To unpick this a bit (with apologies for repetition from previous posts):-

 

CPR 31 generally covers disclosure of documents that the parties refer to (presumably because they are relevant to the case, else why mention them).

 

CPR 31.2 defines "disclosure":

"A party discloses a document by stating that the document exists or has existed."

... extended by 31.11:

"(1) Any duty of disclosure continues until the proceedings are concluded.

 

(2) If documents to which that duty extends come to a party’s notice at any time during the proceedings, he must immediately notify every other party."

I would think that just mentioning a document amounts to "stating that [it] exists or has existed" (how can you mention a non-existent document?), so a document mentioned under 31.14(1) is disclosed by 31.2.

 

Inspection of disclosed documents after the claim has been issued is covered in CPR 31.3:

"(1) A party to whom a document has been disclosed has a right to inspect that document except where –

(a) the document is no longer in the control of the party who disclosed it;

(b) the party disclosing the document has a right or a duty to withhold inspection of it; or

© paragraph (2) applies.

(2) Where a party considers that it would be disproportionate to the issues in the case to permit inspection of documents within a category or class of document disclosed under rule 31.6(b) –

(a) he is not required to permit inspection of documents within that category or class; but

(b) he must state in his disclosure statement that inspection of those documents will not be permitted on the grounds that to do so would be disproportionate."

[

Note

: 31.6(b) refers to documents ordered under Standard Disclosure via 31.5(1) which

"(i) adversely affect his own case, (ii) adversely affect another party’s case or (iii)

support another party’s case"

]

... and 31.14(1):

"A party may inspect a document mentioned in –

(a) a statement of case;

(b) a witness statement;

© a witness summary; or

(d) an affidavit."

... and 31.15:

"Where a party has a right to inspect a document –

(a) that party must give the party who disclosed the document written notice of his wish to inspect it;

(b) the party who disclosed the document must permit inspection not more than 7 days after the date on which he received the notice; and

© that party may request a copy of the document and, if he also undertakes to pay reasonable copying costs, the party who disclosed the document must supply him with a copy not more than 7 days after the date on which he received the request."

From the above, 31.3 & 31.14 seem merely informative, identifying which documents can be inspected; 31.15 enables the other party to inspect (and/or get a copy of) them.

 

So, while endorsing everything else SAx20 says in post #1, I think inspection and/or copying requests should really be made by notice under 31.15, referring to the right to inspect in 31.3 and/or 31.14. Thus there is no need for a separate 31.14 request, and no need to wait before submitting a 31.15 notice.

 

I don't see any requirement or need for the court to order compliance with 31.15. In fact the claimant's non-compliance would be to your advantage. If he fails to disclose a document at any time, or to permit inspection within a week, 31.21 bars him - without very good reason - from relying on it:

"A party may not rely on any document which he fails to disclose or in respect of which he fails to permit inspection unless the court gives permission."

... and failure to disclose, allow inspection of or supply a copy of any document is a breach of the Rules, when 3.4(2) & (3) kick in:

"(2) The court may strike out a statement of case if it appears to the court –

(a) that the statement of case discloses no reasonable grounds for bringing or defending the claim;

(b) that the statement of case is an abuse of the court’s process or is otherwise likely to obstruct the just disposal of the proceedings; or

© that there has been a failure to comply with a rule, practice direction or court order.

(3) When the court strikes out a statement of case it may make any consequential order it considers appropriate."

Note that "any consequential order" in (3) includes a costs order. You will probably have to apply for the court to act under 3.4(2) & (3). Or you could merely write to the court saying the claimant failed to comply (which would thus "appear to the court") and ask it to exercise its powers to strike out and order costs.

 

Note too that all the above provisions apply to both parties, so you must allow the claimant to inspect and/or copy any documents you mention; should help to cut down the paperwork.

 

... But this is just my view; I'm sure SAx20 and other knowledgeable CAGgers will point out the flaws in it!

[Meldrew]

... I also went back to the original doc, as Paul [pt2537] always suggests

... me too.

Originally Posted by emandcole

The CPR 31.14 and 31.15 references should not be mixed. By this I mean a 31.15 request should be kept completely seperate to any other letter, what you're considering using is powerful and demands to be issued by itself, after 31.14 has been issued and ignored.

 

So...sit tight on the 31.15 and see if they comply with the 31.14 first. Only issue the 31.15 if you are immediately prepared to make an application to the court to ask for an enforcement of this request...

'fraid I disagree with emandcole - see#421 for reasons (correction/s welcome - with explanation).

Originally Posted by emandcole

... Important the 31.15 is used correctly.

... but I'm right with him there (#421 again)!