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.

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

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!!!!