Hey, I'm beginning to follow your reasoning!!!!

Fortunately I have no cases where the creditor hasn't provided an 'agreement' consequent on s.78. But I can see how lack of anything can be a headache. This surely leaves everything in limbo - the creditor cannot go to court and the debtor cannot challenge a non agreement.

Obviously under s78(6) they cannot enforce, but the creditors last resort being default is seemingly endorsed by the ICO.

It can be expensive for a debtor to issue injunctions and the like, and I for one wouldn't know quite where to start to put a case like this to bed, i.e. obtain declaration and remove defaults.

PS: Just thoughts - not looking for a case management walkthrough!!!!

I have some sympathy for the judge in this case. How can he declare rights in an agreement if the agreement is not in existence or available in evidence?

The rankine case is flawed throughtout, in this case.

They should have sought an s127 (c) declaration of unenforcibility due to the absence of an s60 compliant agreement. This is the problem judges have, they can only consider the cases as pleaded. They may not advise or modify the case as this might be construed as a lack of impartiality.

It is unusual for there to be no agreement because of the "statement true by creditor" clause (s172), which is why there is always a response to s78 and any response is acceptable in law. The next hurdle is s142 and/or s127 - take the proffered agreement and challenge this on the basis of the detailed provision of the legislation.

Personally, If I had a case where no agreement was forthcoming, I would not challenge on s142. The creditor has no rights in the absence of an agreement and to bring the case on behalf of the debtor presumes the contrary.

Much better to let the creditor come for you (which won't happen), seek disclosure, if no agreement, submit an embarrased defence (no agreement, how can I defend) request the court force compliance on disclosure and stay proceedings pending, then seek a strike out if the agreement is not disclosed.

To seek a hearing based on an agreement where the agreement cannot be disclosed is vexation.

QED

S

Thanks again Stubs

Seems as usual I was on a totally irrelevant sidetrack.

I do like to know all the possible pitfalls in going into court.

Similarly my citing s.142. I had read in the Rankine case where the judge has said if there is no agreement such that the creditor could not enforce then the debtor cannot ask for a declaration.

Whilst this scenario does not apply in any of my cases (as they have all sent 'agreements' as such) I do like to dot 'i's' and cross 't's'. I also appreciate many people think this is a stupid and much criticised conclusion by the judge.

The evidence act relates primarily to hearings not held under court rules but where strict evidence rules apply.

In a court environment, CPR is the framework and the evidence provisions of CPR apply.

S

(sorry :-))

Stubie-One:

CPR overrides the Evidence Act .......................

S

Ah...now I didn't know that!!

Looks like I may have shown my ignorance by quoting the Evidence Act in a reply to one of my (American) creditors who have produced a 'mash up' of an agreement to make it look compliant.

Many thanks, of course, that makes a BIG difference in my fight for survival.

I haven't forgotten Tsk Tsk

Thought you would be able to work it out from that.

...............

Seriously, rules of evidence are set out in CPR. CPR overrides the Evidence Act which is primarily concerned with hearings not under CPR jurisdiction.

There is a general acceptance that documents over 25 years old may have degraded to such an extent that a copy would be preferable to aid clarity.

CPR contradicts the Evidence Act, CPR is the primary standard for evidence in the court tracks.

S

basa48:

Stubie-One:Documents pre 1984

More clues please!!

Bump!

Stubie-One:Documents pre 1984

More clues please!!

Stubie-One:

The documents have all the hallmarks of microfished copies, they will need the original to enforce - these may meet s78 but will not withstand a hearing.

S

Not sure about this. I understood that where original copies are not available then copies may be accepted under Civil Evidence Act 1995 section 8.

Can anyone confirm a definitive rule on this?

Nope, me neither! neither any cancellation rights, this would be a cancellable agreement, What a shame.

Redforever, just sending you a PM.

The documents have all the hallmarks of microfished copies, they will need the original to enforce - these may meet s78 but will not withstand a hearing.

S

Huckster,

Thanks for your information.

As you can probably see I have added the documents to photobucket and the links are in the post above.

Thanks again

Redforever

Thanks Stubie-one,

I have emailed you the copies of the documents

Links to photobucket for copies of documents also.

http://i933.photobucket.com/albums/ad179/redforever/lloydstsb1.jpg

http://i933.photobucket.com/albums/ad179/redforever/lloydstsb2.jpg

Redforever

Thanks Huckster,

This is the best route as many skilled posters can offer their interpretation.

As You say, remove personal details, we don't need them and there are other, less welcome, eyes runnig through these forums trying to identify the posters.

If this fails then there is an email addy, click on my username and its in my profile. Scan and email - still remove personal stuff, I will never need to know who you are or where you live etc. especially remove account and card numbers etc as the creditor moles can identify you from this.

All the best

S