DCA: Using CPR 31.14 to Your Advantage
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: