DCA: Using CPR 31.14 to Your Advantage

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With thanks to Surfaceagentx20

In the time I have been a member of the site I have seeen a number of examples where a member is being forced along with a legal case in a situation where the creditor is unwilling from the outset to provide a legible copy of the agreement sued upon.

Sometimes they produce fuzzy copies. Sometimes they produce only part of the agreement, not all of it. Sometimes they don't produce it all and claim that owing to the decision in Rankine, they can proceed with the case regardless of whether they can bring the agreement into court.

The ability of the Defendant to know how best to deal with the claim they are required to meet is impaired where a legible copy of the entire agreement is unavailable from the outset. For example, they will not know whether to plead that the agreement is unenforceable. Pleading that it is unenforceable without actually having an opinion on whether it is or is not enforcerable could be dangerous. Pleading that it is unenforceable will place the onus of proving that fact upon the debtor. That may place an insurmountable obstacle in circumstances where later on in the case, something less than full disclosure of the agreement occurs, or where the creditor serves witness statements which are designed to present to the court a re-construction or version interpretation of the agreement.

I have seen a number of situations where the Defendant has been encouraged to deliver what is termed a CPR Request or CPR Part 18 request. Versions of the request I have seen often demand disclosure of documentary material akin to the kind of information sought in a Data Protection Act S.A.R - (Subject Access Request). Rarely do they genuinely seek Further Information by way of clarification of an issue raised in the case and which could not be dealt with during standard disclosure. As such, these requests have the habit of being refused as not being reasonable and proportionate. In cases where the sum involved is not more than £5,000.00, the Claimant answers by reference to CPR 27.2(f), saying that Part 18 does not apply.

Besides wishing to take an opinion on the agreeent, the Defendant will want to know whether to plead the default notice was ineffective, whether the Claimant's claim to have a right to sue as assignee of the debt is valid. If the agreement is unenforceable, the default notice is defective or the assigment is invalid, any one of these features will operate as a complete defence to the alleged liability.

In my view the proper thing for the debtor to do in those circumstances is to strike as quickly as possible; to go on the offensive and wrestle control of the case away from the Claimant by asserting rights which the Claimant must comply with before the Defendant becomes obliged to elect how to plead the Defence.

Such a right is found in CPR 31.14 and is concerned with the disclosure of documents mentioned in pleadings, the very place where the Claimant will refer to the agreement relied upon in even the most sparingly particularised claim.

I have therefore drawn up a draft of such a letter which I would recommend delivering to Claimants in a proper case so soon as possible after receipt of the Claim Form. It looks like this:

Dear Sir,

Re: (Claimant's name) v (Your name) Case No:

CPR 31.14 Request

On (date) I received the Claim Form in this case issued by you out of the (Name) County Court.

I confirm having returned my acknowledgement of service to the court in which I indicate my intention to contest all of your claim.

[Prior to the issue of proceedings I had delivered a request for the production of the agreement mentioned in the Claim Form and on which you rely. That request was ignored] [delete if no such request was delivered]

Please treat this letter as my request made under CPR 31.14 for the disclosure and the production of a verified and legible copy of [each of the following / the] document(s) mentioned in your Particulars of Claim:

1 The agreement. You will appreciate that in an ordinary case and by reason of the provisions of CPR PD 16 para 7.3, where a claim is based upon a written agreement, a copy of the contract or documents constituting the agreement should be attached to or served with the particulars of claim and the original(s) should be available at the hearing. Further, that any general conditions incorporated in the contract should also be attached.

2 The assignment*

3 The default notice*

4 The termination notice*

5 [any other documents mentioned in the Particulars of Claim]*

* delete if not mentioned in the Particulars of claim.

[Although your claim is for a sum which is not more than £5,000.00 and will in all likelihood be allocated to the small claims track for determination upon my delivering a defence, at this moment in time I have not delivered my defence and the case has not been allocated to a track. In consequence the provisions of CPR 27(2) are of no effect and you should not seek to avoid compliance with your CPR 31 duties by claiming otherwise]#

# delete if claim for a sum exceeding £5,000.00

You should ensure compliance with your CPR 31 duties and ensure that the document(s) I have requested are copied to and received by me within 7 days of receiving this letter. Your CPR 31 duties extend to making a reasonable and proportionate search for the originals of the documents I have requested, the better for you to be able to verify the document's authenticity and to provide me with a legible copy. Further, where I have requested a copy of a document, the original of which is now in the possession of another person, you will have a right to possession of that document if you have mentioned it in your case. You must take immediate steps to recover and preserve it for the purpose of this case.

Where I have mentioned a document and there is in your possession more than one version of that same document owing to a modification, obliteration or other marking or feature, each version will be a separate document and you must provide a copy of each version of it to me. Your obligations extend to making a reasonable and proportionate search for any version(s) to include an obligation to recover and preserve such version(s) which are now in the possession of a third party.

In accordance with CPR 31.15(c) I undertake to be responsible for your reasonable copying costs incurred in complying with this CPR 31.14 request.

If you require more time in which to comply with this request you must tell me in writing. You must tell me before the time for compliance with this request has expired. In telling me you require more time you must tell me what steps you have taken and propose to take in order to comply with this request and also state a date by when you will comply with this request. In addition your statement must be accompanied with a statement that you agree to an extension of the time for me to file my defence. Your extension of time must be not less than 14 days from the date when you say you will have complied with my request and you must state the new date for filing my defence.

If you are unable to comply with this request and believe that you will never be able to comply with this request you must tell me in writing.

Please note that if you should fail to comply with this request, fail to request more time or fail to agree to an extension of time for the filing of my defence, I will make an application to the court for an order that the proceedings be struck out or stayed for non-compliance and a summary costs order.

I do hope this will not be necessary and look forward to hearing from you.

Yours faithfully