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Thread: Changes to Debt Pre Action Protocols - Your views

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  1. #1
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    Default Changes to Debt Pre Action Protocols - Your views

    Please vote as to whether you agree with the proposed new Court Procedural Rules with regards Debt claims, and give any opinions you have on the issue below. These are due to come into force in April 2015, however a number of creditors have complained there was no consultation period, thus there is now a consultation, which we want to respond to to help ensure these get bought in and claimants are forced to actually have the relevant information available BEFORE submitting a court claim. I appreciate there is quite a bit of reading but it is a very important issue and one we deal with constantly on here.


    INITIAL INFORMATION TO BE PROVIDED BY THE CLAIMANT


    3.1 The claimant should send a letter of claim to the defendant before proceedings are commenced—
    (a) containing the Notice set out at paragraph 3.2 of the Protocol;
    (b) providing details of the amount of the debt and any payments made by the debtor, including—
    (i) whether it includes interest and, if so, setting out any interest calculation;
    (ii) whether it includes charges and other sums and, if so, setting these out;
    (iii) where the debt arises out of a written agreement, either a copy of that agreement or an explanation of why no copy is available; and
    (iv) where the debt arises from an oral agreement, who made the agreement, what was agreed (including, as far as possible, what words were used) and when and where it was agreed;
    (c) providing, where relevant, details of the original debt and creditor, and any assignments of the debt together with details of the relevant notices of assignment;
    (d) if regular instalments have been offered by or on behalf of the defendant, or are being paid, explaining why a court claim is being considered;
    (e) providing details of how the money can be paid (for example the method of payment and the address to which it can be sent);
    (f) stating that the defendant can contact the claimant in order to discuss repayment options and providing the relevant contact details;
    (g) requiring the defendant to return the defendant’s reply form, at Annex 1, in the self addressed envelope, enclosed with the letter of claim, within 28 days; and
    (h) informing the defendant of the steps to be taken if the debt is disputed (see paragraph 5), including informing the defendant of the importance of obtaining independent advice, and that free independent advice and assistance can be obtained from various organisations, including those listed in the table below.


    3.2 The claimant should enclose with the letter copies of—
    (a) this Protocol (the Pre-Action Protocol for Debt Claims);
    (b) a full statement of account, including details of—
    (i) all interest and charges included on the outstanding balance of the debt, explaining how they have been calculated;
    (ii) any payments already made by the debtor;
    (c) the contract or agreement between the parties; and
    (d) the defendant’s reply form in the annex to this Protocol, together with a self-addressed envelope.


    3.3 The following NOTICE must be included at the beginning of all letters of claim—
    [I]“This letter sets out the information that the enclosed Pre-action Protocol requires [us] [me] to send you. You are required to complete and return the reply form at the end of this letter so that [we] [I] may know your response to [our] [my] claim. If you fail to do so, and we are forced to start proceedings for the money you owe the court could order you to pay any additional court costs and/or legal fees which [we] unnecessarily incur as a result.
    The Civil Procedure Rules require that, before starting court proceedings, the parties should (1) exchange information about the claim and the defence to the claim (if there is one) and (2) try to settle the matter without going to court. This claim is governed by the Pre-Action Protocol for Debt Claims which is enclosed with this letter and is also available at http://www.justice.gov.uk/courts/pro...civil/protocol.
    A successful court claim against you will normally add court costs to the debt and possibly legal and/or other fees as well. You are strongly recommended to seek independent advice on this matter. Free independent advice and assistance can be obtained from various organisations including those listed in Annex 2 to the attached Pre-Action Protocol for Debt Claims.”
    “We may not win by protesting, but if we don’t protest we will lose. If we stand up to them, there is always a chance we will win.” Hetty Bower

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    Default Re: Changes to Debt Pre Action Protocols - Your views

    RESPONSE BY DEFENDANT


    4.1 The defendant should use the reply form in Annex 1 to this Protocol for their response, which may be continued on a separate sheet of paper, and enclose copies of any additional documents considered necessary.


    4.2 If the defendant intends to seek debt advice and is unable to provide a full response within the time specified in the letter of claim, then the defendant should reply using box 1 of the reply form and state—
    (a) that the defendant is seeking advice;
    (b) from where; and
    (c) the date of any appointment for that advice

    4.3 The claimant is required to allow the defendant sufficient time to seek debt advice and, in any event, at least 28 days. If a defendant is seeking specialist debt advice which cannot be obtained within 28 days, the defendant must tell the claimant, who must allow reasonable additional time to enable the defendant to obtain that advice.
    “We may not win by protesting, but if we don’t protest we will lose. If we stand up to them, there is always a chance we will win.” Hetty Bower

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  3. #3
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    Default Re: Changes to Debt Pre Action Protocols - Your views

    DISCLOSURE OF DOCUMENTS - WHERE ANY ASPECT OF THE DEBT IS DISPUTED (OTHER THAN THE TERMS OF ANY PAYMENT ARRANGEMENT)

    5.1 If the existence, enforceability, amount or any other aspect of the debt is disputed (other than the terms of payment), both parties should exchange sufficient information and disclose sufficient documents to enable them to understand each other’s position.

    5.2 This would include, for example, where a debt is believed to be time barred (because nothing has been paid and the existence of the debt has not been admitted in writing by the defendant for 6 years, or 12 years for debts secured, or previously secured, on property and some other debts), or a credit agreement which is unenforceable because the claimant has not complied with the requirements of the Consumer Credit Act. (Defendants would need to seek specialist debt advice on these aspects as they involve technical issues which may be complex.)

    5.3 If the parties disagree about the disclosure of any document, either party may make an application to the court under CPR 31.16 before proceedings are issued. Applications could result in the court ordering either party to pay additional court and/or other legal costs.
    “We may not win by protesting, but if we don’t protest we will lose. If we stand up to them, there is always a chance we will win.” Hetty Bower

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  4. #4
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    Default Re: Changes to Debt Pre Action Protocols - Your views

    The full proposal can be found here along with the proposed form for debtors / defendants;

    Attached Images Attached Images
    “We may not win by protesting, but if we don’t protest we will lose. If we stand up to them, there is always a chance we will win.” Hetty Bower

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  5. #5
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    Default Re: Changes to Debt Pre Action Protocols - Your views

    Can you just tell me is this another loop hole possibly closed on behalf and in favour of the lenders


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    Default Re: Changes to Debt Pre Action Protocols - Your views

    Indeed. If you look at pretty much ALL of the court claims forum, we spend weeks trying to get the information out of the claimants about the claim. what the debt is and to evidence it is actually owed. This takes applications, letters, fees, time and stress which would all be avoided if the claimants provided the information BEFORE court action. It will serve to reduce massively the number of debt claims in the courts system and increase the number of arrangements and settlements made BEFORE court.

    It will also make defending a claim much simpler and people would actually be able to defend on true issues with the debt, rather than having to enter ''embarrassed'' defences to ask the court to order the claimants to provide information.

    Will make an absolutely massive difference, for the better and it absolutely in the interests of justice.

    Court claims should not be able to be brought against people when all the information the ''creditor'' has is a list of names, amounts and addresses - and often doesn't even know if it is a loan, credit card or overdraft.

    In case you didn't guess, I'm completely for it lol.
    “We may not win by protesting, but if we don’t protest we will lose. If we stand up to them, there is always a chance we will win.” Hetty Bower

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  7. #7
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    Default Re: Changes to Debt Pre Action Protocols - Your views

    If it works then I say yes ... It sets out everything in a simple/understandable way, and makes it easier to know how to either bring a claim or compile a defence against a claim.

    (even I understood it well enough LOL :tinysmile_twink_t2
    Debt is like any other trap, easy enough to get into, but hard enough to get out of.

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    Default Re: Changes to Debt Pre Action Protocols - Your views

    Okidoki just makin sure xx


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    Default Re: Changes to Debt Pre Action Protocols - Your views

    Now, On the face of it this does actually look like an improvement but…..the following are a little erm ambiguous? For example;
    3.1
    iii) Where the debt arises out of a written agreement,either a copy of that agreement or an explanation of why no copy is available;
    And
    5.2 This would include, for example, where a debt is believed to be time barred (because nothing has been paid and the existence of the debt has not been admitted in writing by the defendant for 6 years, or 12 years for debts secured, or previously secured, on property and some other debts), or a credit agreement which is unenforceable because the claimant has not complied with the requirements of the Consumer Credit Act. (Defendants would need to seek specialist debt advice on these aspects as they involve technical issues which may be complex.)

    Would this result in the same old cobblers where the claimant still takes the defendant to court before a clear ruling as to whether or not their reasons for not producing a copy of the agreement are acceptable? Ifso this achieves nothing.
    Also in 3.1
    (b) Providing details of the amount of the debt and any payments made by the debtor, including—
    (i) Whether it includes interest and, if so, setting out any interest calculation;
    (ii) Whether it includes charges and other sums and, if so, setting these out;


    Is this just the sums added after the DCA has bought the debt or to include all charges added to the balance owed including the interest and charges added by the OL?
    If it is set to go through in 2015
    I can see an absolute flurry of court action over the next few months; Brace yourselves!!!



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    Default Re: Changes to Debt Pre Action Protocols - Your views

    Sorry, Senior moment!

    An optimist is someone who falls off the Empire State Building, and after 50 floors says, 'So far so good'!
    ~ Anonymous

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    Default Re: Changes to Debt Pre Action Protocols - Your views

    Why does a creditor need to know where you are getting help from ? mm..

    Other than that it seems good although much of it is part of the protocols now so the big question is really what will happen in default ?

    M1

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    Default Re: Changes to Debt Pre Action Protocols - Your views

    I do like it in principle, the ADR bit needs to be emphasised in terms of what can be looked at or more importantly acted upon prior to court procedures (unregulated) for instance..............but it looks very good in terms of getting rid of unnecessary debate/argument.............to encourage more co-party agreement & ADR if needed is great for my thoughts & it gives more power along with some ownership to those feeling put out by the system.............am all for this type of stuff providing there are no more get outs on consultation approved....................its not about business as usual but "fair" & honest agreements that do not allow one party to take serious advantages............aw:

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    Default Re: Changes to Debt Pre Action Protocols - Your views

    Quote Originally Posted by mystery1 View Post
    Why does a creditor need to know where you are getting help from ? mm..

    Other than that it seems good although much of it is part of the protocols now so the big question is really what will happen in default ?

    M1
    This is the plan, although as we know the current PAP is largely ignored, but the courts ARE p*ssed off so hopefully they will go sanction heavy....

    THE COURT’S GENERAL APPROACH TO COMPLIANCE

    7.1 The Civil Procedure Rules enable the court to take into account the extent of the parties compliance with this Protocol when giving directions for the management of claims (see CPR rules 1, 3.1(4) and (5)) and when making orders about who should pay costs (see CPR rule 44.3(5)(a)). Copies of the Civil Procedure Rules can be downloaded free of charge at: www.justice.gov.uk/courts/procedure-rules/civil


    7.2 Where a party has not complied with this Protocol the court may make an order for costs against that party or deprive it of costs which it would otherwise have recovered.


    7.3 When considering compliance the court will—
    (a) be concerned with the degree to which parties have complied in substance with the relevant principles and requirements of the Protocol and is not likely to be concerned with minor or technical shortcomings;
    (b) consider the proportionality of the steps taken compared to the size, complexity, and importance of the matter including whether any costs incurred and claimed against the other party bear a reasonable relationship to the sums in issue; and
    (c) take account of the urgency of the matter and any consequent lack of opportunity to comply.


    7.4 The court will look at the overall effect of non-compliance on the other party when deciding whether to impose sanctions.


    7.5 If, in the opinion of the court, there has been non-compliance, the sanctions which the court may impose include–
    (a) staying (that is suspending) the proceedings until steps which ought to have been taken have been taken;
    (b) an order that the party at fault pays the costs, or part of the costs, of the other party or parties (this may include an order under rule 27.14(2)(g) in cases allocated to the small claims track);
    (c) an order that the party at fault pays those costs on an indemnity basis (rule 44.3(3) sets out the definition of the assessment of costs on an indemnity basis);
    (d) if the party at fault is the claimant in whose favour an order for the payment of a sum of money is subsequently made, an order that the claimant is deprived of interest on all or part of that sum, and/or that interest is awarded at a lower rate than would otherwise have been awarded; and
    (e) if the party at fault is a defendant, and an order for the payment of a sum of money is subsequently made in favour of the claimant, an order that the defendant pay interest on all or part of that sum at a higher rate, not exceeding 10% above base rate, than would otherwise have been awarded.

    7.6 Claimants should be aware of the creditor's responsibilities under section 40 of the Administration of Justice Act 1970 and the Consumer Protection from Unfair Trading Regulations 2008 (where they apply) not to harass debtors or treat them unfairly.
    “We may not win by protesting, but if we don’t protest we will lose. If we stand up to them, there is always a chance we will win.” Hetty Bower

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  14. #14
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    Default Re: Changes to Debt Pre Action Protocols - Your views

    Quote Originally Posted by Amethyst View Post
    This is the plan, although as we know the current PAP is largely ignored, but the courts ARE p*ssed off so hopefully they will go sanction heavy....

    THE COURT’S GENERAL APPROACH TO COMPLIANCE

    7.1 The Civil Procedure Rules enable the court to take into account the extent of the parties compliance with this Protocol when giving directions for the management of claims (see CPR rules 1, 3.1(4) and (5)) and when making orders about who should pay costs (see CPR rule 44.3(5)(a)). Copies of the Civil Procedure Rules can be downloaded free of charge at: www.justice.gov.uk/courts/procedure-rules/civil


    7.2 Where a party has not complied with this Protocol the court may make an order for costs against that party or deprive it of costs which it would otherwise have recovered.


    7.3 When considering compliance the court will—
    (a) be concerned with the degree to which parties have complied in substance with the relevant principles and requirements of the Protocol and is not likely to be concerned with minor or technical shortcomings;
    (b) consider the proportionality of the steps taken compared to the size, complexity, and importance of the matter including whether any costs incurred and claimed against the other party bear a reasonable relationship to the sums in issue; and
    (c) take account of the urgency of the matter and any consequent lack of opportunity to comply.


    7.4 The court will look at the overall effect of non-compliance on the other party when deciding whether to impose sanctions.


    7.5 If, in the opinion of the court, there has been non-compliance, the sanctions which the court may impose include–
    (a) staying (that is suspending) the proceedings until steps which ought to have been taken have been taken;
    (b) an order that the party at fault pays the costs, or part of the costs, of the other party or parties (this may include an order under rule 27.14(2)(g) in cases allocated to the small claims track);
    (c) an order that the party at fault pays those costs on an indemnity basis (rule 44.3(3) sets out the definition of the assessment of costs on an indemnity basis);
    (d) if the party at fault is the claimant in whose favour an order for the payment of a sum of money is subsequently made, an order that the claimant is deprived of interest on all or part of that sum, and/or that interest is awarded at a lower rate than would otherwise have been awarded; and
    (e) if the party at fault is a defendant, and an order for the payment of a sum of money is subsequently made in favour of the claimant, an order that the defendant pay interest on all or part of that sum at a higher rate, not exceeding 10% above base rate, than would otherwise have been awarded.

    7.6 Claimants should be aware of the creditor's responsibilities under section 40 of the Administration of Justice Act 1970 and the Consumer Protection from Unfair Trading Regulations 2008 (where they apply) not to harass debtors or treat them unfairly.
    Therein lies the rub. We've seen the debtors are scum attitude prevalent in many judges, including some consumer wins, and some do not like defendants using rules to their advantage. This may help some not to do that but i'm afraid some judges will never apply that to a LIP and some probably even when legal teams are employed.

    Theory and practice in law are not always good bedfellows especially when judges have morality issues.

    M1

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    Default Re: Changes to Debt Pre Action Protocols - Your views

    I have read through the whole thing and despite slipping into a coma and resuming my addiction to nicotine I kind of, sort of, do believe that in principle it is satisfying many of the issues I have had with the current system.
    However, I still do worry that claimants may think it worthwhile to fight the point that they have a good enough reason for not producing documents including an agreement, before court action. For instance, dare I mention the old chestnut of the store card upgrades!( Santander v Mayhew) I know many think that this was thrown out because there was no new agreement but it seems there was a lot more to it than that. Although not producing an agreement should be a solid defence we have seen many posted here where this has been explained away and the defendant lost. Also worrying in light of Mr. Moore’s recent court battle,when is an agreement considered sufficiently illegible.
    I still think that where the alleged balance owed is more than 3 or 4 k then the claimant will think it is worth the gamble to say the agreement could not be produced for a valid reason and push on with court action.

    An optimist is someone who falls off the Empire State Building, and after 50 floors says, 'So far so good'!
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    Default Re: Changes to Debt Pre Action Protocols - Your views

    lol, it's not THAT bad xx

    This protocol doesn't change the requirements of the Consumer Credit Act at all. So agreements will still need to be produced and be compliant with s.77/s.78

    Remember this is the pre-action protocol, so it should stop those ultra vague goods and/or services and/or finance type claims which don't even tell you who the original creditor is.
    “We may not win by protesting, but if we don’t protest we will lose. If we stand up to them, there is always a chance we will win.” Hetty Bower

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    Default Re: Changes to Debt Pre Action Protocols - Your views

    All I can write is if consumers or non legal professionals are subject to court proceedings of this nature & the said are respectful.............. I can only think this will help with the very limited understanding most have of the system..............it should help prevent missing critical issues/documentation & perhaps from a layman's point help balance the issues of debate with seasoned experts rather than be just an annoyance for a Judge.

    The objectives do not mention a serious lack of legal aid or access to duty solicitors...................but it seems to me this is some kind of way towards making the current potential pain ease a little.

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    Default Re: Changes to Debt Pre Action Protocols - Your views


    lol, it's not THAT bad xx
    Haha.:bounce: Fair enough but you speak the lingo! It was like trying to read Nabokov in the original Russian. (Actually it was like reading Nabokov in English!!!:wacko:

    Yep, I’ll click the ‘for it’ button. I can see all those dipsh**S running down the road to Northampton with their claims to get them in under the wire.:bolt:

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    Default Re: Changes to Debt Pre Action Protocols - Your views

    Well, the creditors are arguing against it, saying it will put their costs up, and 'most claims go undefended' etc etc, so we need to respond to counter this supposition - I expect CAB and others working with debtors will be arguing FOR it, as I suspect will the Courts service as they seem quite fed up of it too, but we should get a voice heard as we deal with a lot of claims and its very rare nowadays the documents are produced pre defence, and hardly ever before the claim is submitted.

    Creditors said it would be too expensive to supply details of the contract and statements of account, and complained that the 28-day period for defendants to seek advice was not sufficient.

    In letters to the committee, they also objected to the requirement in the debt protocol to consider alternative dispute resolution.
    “We may not win by protesting, but if we don’t protest we will lose. If we stand up to them, there is always a chance we will win.” Hetty Bower

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    Default Re: Changes to Debt Pre Action Protocols - Your views

    Quote Originally Posted by Amethyst View Post
    Well, the creditors are arguing against it, saying it will put their costs up, and 'most claims go undefended' etc etc, so we need to respond to counter this supposition - I expect CAB and others working with debtors will be arguing FOR it, as I suspect will the Courts service as they seem quite fed up of it too, but we should get a voice heard as we deal with a lot of claims and its very rare nowadays the documents are produced pre defence, and hardly ever before the claim is submitted.

    It really is a great argument. Why should we submit claims which are compliant with the rules of the court when most are undefended and judges just rubber stamp them no matter what.

    Speaks volumes that anyone could argue that.

    M1

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    Default Re: Changes to Debt Pre Action Protocols - Your views

    An alleged debt should be substantiated with evidence BEFORE any court action.
    producing agreements and info as to payments and default and any action taken before to recover the debt should be available.

    Would the CPS try someone without some strong proof in the way of evidence than can be produced and contested, So what if it costs the likes of lowlifes and carter more money DCAs pay a pittance for a debt.

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    Default Re: Changes to Debt Pre Action Protocols - Your views

    Quote Originally Posted by Amethyst View Post
    Well, the creditors are arguing against it, saying it will put their costs up, and 'most claims go undefended' etc etc, so we need to respond to counter this supposition - I expect CAB and others working with debtors will be arguing FOR it, as I suspect will the Courts service as they seem quite fed up of it too, but we should get a voice heard as we deal with a lot of claims and its very rare nowadays the documents are produced pre defence, and hardly ever before the claim is submitted.
    For me its the consumer "bite the bullet" Vs the unassailable providers that causes so little in terms of serious challenge to the preconceived results......they know the consumer will not challenge & the consumer is so often told to take what could prove to be expensive advise............................let them put costs up & place themselves out of business ?.............the system does need serious reviews & subsequent change for the better of all.......................I therefore welcome any news on this given most of the law is good & fair yet hides behind the threat of intimidation of sorts........

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    Default Re: Changes to Debt Pre Action Protocols - Your views

    Another case won (well, discontinued cause of no paperwork, and didn't even bother to tell the defendant they'd discontinued before attending the court for the hearing today) http://www.legalbeagles.info/forums/...read.php?53408
    “We may not win by protesting, but if we don’t protest we will lose. If we stand up to them, there is always a chance we will win.” Hetty Bower

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    Default Re: Changes to Debt Pre Action Protocols - Your views

    Well, the creditors are arguing against it, saying it will put their costs up
    Well that’s good enough for me! Come on everyone; get clicking. :thumb:

    An optimist is someone who falls off the Empire State Building, and after 50 floors says, 'So far so good'!
    ~ Anonymous

  25. #25
    Join Date
    Jul 2009
    Posts
    4,146
    Mentioned
    8 Post(s)

    Default Re: Changes to Debt Pre Action Protocols - Your views

    Will try to make sense of it in the cold light of day.
    Once again LB have helped us!


    Never give up, Never surrender. ( from Galaxy Quest )
    Everything changes and nothing remains still (Plato, Cratylus )



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