Pre-Action Protocols

[bobsfrancis]

Re: Pre-Action Protocols

Hi Debt Camel,

I'm just trying to work through some of my own thoughts about how this new PAP works for people that may have already started a claim against them.

For example in my own situation the DCA claimant used a solicitor to issue the claim, but this was stayed, and the solicitor company said they would not take any further action in this matter. I guess my question is as follows. If the DCA claimant use another solicitor or company to start a claim would this constitute as starting a new claim and therefore would have to adhere to the new PAP? Or if the DCA claimant was to issue a claim themselves would this count as a new claim?

Many thanks

Bobs

[bobsfrancis]

Re: Pre-Action Protocols

Posted this twice sorry!

[Diana M]

Re: Pre-Action Protocols

in my own situation the DCA claimant used a solicitor to issue the claim, but this was stayed, and the solicitor company said they would not take any further action in this matter. I guess my question is as follows. If the DCA claimant use another solicitor or company to start a claim would this constitute as starting a new claim and therefore would have to adhere to the new PAP? Or if the DCA claimant was to issue a claim themselves would this count as a new claim?

You need to be precise about the current status of the claim before that question can be answered.

Did the solicitor Discontinue the claim or leave it stayed?

If they Discontinued but you had filed a Defence then the debt owner would need to make an application to court for permission to issue a new claim if the facts were the same or substantially the same as the first claim.

If the claim is simply stayed then the proceedings are effectively live albeit not ongoing/continuing and the Claimant (or their successor in title) would need to make an Application to lift the stay before they could go to the next stage.

Di

[Diana M]

Re: Pre-Action Protocols

While we're on the subject....

Letter Before Claim - April 2016 - pay up in 14 days or else.
County Court claim issued October 2017

Would the Claimant be able to rely on the pre- new PAP LBC, given the delay?

It may depend on what happened after the Letter Before Claim was sent in April 2016. Were documents then requested by the debtor and did the debt owner produce any? Was any dispute raised by the debtor and dismissed by the debt owner? Were things left on hold while a complaint was escalated to the FOS and then not upheld?

It's important to emphasise that non compliance with the new Pre-Action Protocol Letter Before Claim (for debt claims) is not a Defence. It's what sanctions (if any) the court can impose on the Claimant.

These will mostly be costs sanctions such as when a claim is won in the Small Claims Court then the Defendant may get their legal team's costs paid (we already ask for them).

Or the court may order a stay while the Claimant attempts to comply retrospectively (produce documents).

The court is unlikely to be concerned with minor breaches particularly where the matter is urgent i.e. where there are limitation issues. If the debt is due to become SB before the 30 day process is played out then the court will take that on board.

Di

[Diana M]

Re: Pre-Action Protocols

I suspect that social policy may be a better way to progress these than fighting individually through the courts.

I agree that the issue is wider than each individual court case.

Most debtors will not have heard of Pre Action Protocol, so won't know that it should have been complied with when they receive their claim through the post.

Since 87% of MCOL claims go straight to Default Judgment, the new Pre Action Protocol won't be any help to those Defendants, except the ones who apply for a set aside of their Default Judgment.

Debtors who receive documents in response to their request for information following a LBC, may have no idea whether what they've been sent is enforceable in court so settle when they received 'something' which looks authentic when it's possibly not.

It also gives the debt owner the opportunity to get their house in order (source or reconstitute documents) over several weeks whereas if they've issued a claim and a robust Defence is filed the Defendant may be in a position to put pressure on the Claimant to Discontinue or make an Application to force disclosure or seek a strike out etc.

Di

[bobsfrancis]

Hi All,

Received a letter from DCA last week informing me that they were unable to obtain a copy of CCA from the original creditor. They then continue to say that

'This account will not be subject to collection activity until such time as the document becomes available and we provide you with a copy of the same'.

I guess that this means that they are unable to sell this account on to others? Does this mean that they may make a copy without the original documents?

Many thanks

Bobs

[warwick65]

They may try to sell the account on to another party at which time I would write and tell the newer owner the account was disputed and the previous owner was unable to satisfy your CCA request.

Also they can make up a reconstituted copy of the agreement but all that may do is satisfy S77-79 cca and doesn't mean the debt is then enforceable