Goodinson v PRA Group (UK) Ltd [2021] EWCA Civ 957 (Default Notice Requirement)

[whitelist]

Goodinson v PRA Group (UK) Ltd [2021] EWCA Civ 957 

 

Just been reading up on this case, the specifics being does the creditor need a Default Notice under s 77 and s 78 CCA 1974 to enforce the agreement?

 

It appears the actual copy of the original default notice is no longer required and that the creditor can use secondary evidence that the default notice was sent to the debtor such as customer information system logs.

 

Another thread on this forum the OP stated a Debt Collection Agency tried to use the above Court of Appeal judgement with failure in producing the default notice, but the circuit judge was having none of it saying the judgement was not relevant in this case,

 

A claim advanced without production of the original notice would fail, where (for example) the creditor is an assignee which is able to establish that it does not and never did have the original, but has compelling evidence that the document was created and served, in full compliance with every one of the statutory requirements. The debtor would escape in every case where the original was not produced, however good the explanation for failure to produce it, and however compelling the secondary evidence.”

 

So my question is?

 

What records would be in the customer system logs to substantiate a compliant Default Notice was sent to the debtor. The key being compliant and sent, not just a blank photocopy and a statement saying one was sent

 

 

 

[Andyorch]

I have covered this topic in depth many times here on the forum and you must take a few things into account before forcing this argument.

 

1. Very rare for a DCA to be able to disclose the original creditors customer logs and possibly arguable that they legally can as it could breach the DPA. Hence DCAs try to recreate the logs from their own none existent system's as proof of the default and that a notice was sent. On a few occasions the Judge has disregarded their evidence and dismissed the claim.

 

2. If they can disclose the original logs its difficult to prove it was ever received and or even valid as the original can no longer be found to be checked. Was it even sent to the correct address if the debtor has moved and failed to inform them of the change of address?

 

3. If a DN was sent it should be marked on a credit file as a default if not complied with within the statutory 14+ days , was it ever marked to your file hence the requirement to regularly check and retain reports particularly after 6 years has passed.

 

4.What type of District Judge could you get on the day of your hearing one that will know and follow the CCA1974 or one that goes with " on the balance of probabilities "attitude and simply wants the claim out of his court ASAP.?

 

So a few points to consider before embarking and basing a defence on the DN argument.

 

 

Andy

 

 

[whitelist]

Thanks for the reply, clear and objective

 

At the end of the day a judge lottery it seems

[Andyorch]

Well yes and no but if you do your ground work and follow the paper trail as above and you put the claimant to strict proof to disclose the (which most DCAs cant) then you raise a point in law.

Ultimately if you can prove that a default was never recorded to your credit files it follows that a DN pursuant to sec87(1) was never issued in the first place.