Claims and S78 requests

[jon1965]

Once a claim has been issued can you still send a S78 request and use it in a defence?

I thought that this was not possible , just trying to help someone on another site

[mystery1]

Re: Claims and S78 requests

Non performance of s78 requests is a bar to enforcement. The courts ruled in Rankine, and from memory agreed in McGuffick and Carey, that enforcement does not include starting proceedings. I don't necessarily agree with that but a lower court should follow the rulings made.

I therefore see no reason why you cannot submit a s78 request after proceedings begin. You should do it way before this though particularly if you get a LBA and haven't done so.

M1

[jon1965]

Re: Claims and S78 requests

Thanks M1,

My memory must be playing up as I thought I had read something somewhere about it.

[mystery1]

Re: Claims and S78 requests

I wouldn't say you haven't, i'm just posting my view

M1

[Guest]

Re: Claims and S78 requests

The judge in Rankine stated that a section 78 request did not apply to a terminated account because it was no longer"under an agreement".
However this was widely disputed and I think it is mentioned in the OFT guidelines that they consider it to be incorrect, and that a request is valid right up until judgment, when the default sum becomes the judgment sum.

[jon1965]

Re: Claims and S78 requests

Thanks Andy , it does indeed OFT1272 sec 4. Only not valid if the agreement has been paid off

[FlamingParrot]

Re: Claims and S78 requests

People who have received claims on here have been advised to send a s.77-79 CCA request at the same time as sending a CPR 31.14 request for documents, if memory serves me, Celestine herself has recommended doing both. :thumb:

Obviously it's much better to do it much earlier and not wait till you receive a claim.