Arrow v Frost 2013

[Guest]

Re: Arrow v Frost 2013

Correct but if, as is often the case, this is still outstanding then to say they don't have "the agreement" as mentioned in the pocs weakens their position substantially if the recon is questioned. In fact it may open the door to a summary judgement application by the defendant as s77-79 are clear that no enforcement is allowed without compliance and they'd just have said we don't have anything we'd call "the agreement"


It is not a defence to an application to say that "we don't need the agreement to win our case". they have mentioned it so the defendant is entitled to ask to inspect it. It matters not one jot whether it is needed by the claimant to make their case or not.

M1

Well it seems to matter in the case in question, and I have seen other instances where the court has said a similar thing , in that civil procedures or no the over riding objective is to have a fair and equitable system, and denying creditors the right to enforce a correctly executed agreement is contrary to this.

[Amethyst]

Re: Arrow v Frost 2013

In the case that the thread started on (BIGSIS) the court have said CPR wise a defence should be entered first then he can order the documents off the back of that if he considers they are needed as they were disclosed so should be available for inspection, so the defendant can admit or defence the case. There's no CCA arguments or anything, simply the defendant is currently in a position of playing guessing games as to what the debt might be and the claimant's won't give any other information as to what it relates to (I think in that case theres a 14 digit number which has been guessed at being sort code and account number combined and therefore might relate to an old student overdraft - but as they had credit card and loan with the same bank and don't recall any overdraft being left on the bank account it is simply just guess work - you can't admit OR defend a debt on that basis)

In Arrow v Frost - the documents were provided so far as they went and then the requirements for them legally was argued in court.

It really is a entirely separate issue.

[mystery1]

Re: Arrow v Frost 2013

If this discussion is to continue with me, you are going to have to be clearer as to when you want to discuss disclosure application and when you want to discuss Frost. I need to know what we are discussing now as i really don't know. You are jumping all over the place.

Frost is not a disclosure application case (not to say it didn't happen earlier in the litigation).

M1

[Guest]

Re: Arrow v Frost 2013

Oh and section 78 judgments can be remedied of course so a summary judgment application is unlikely to succeed IMO.

[Guest]

Re: Arrow v Frost 2013

If this discussion is to continue with me, you are going to have to be clearer as to when you want to discuss disclosure application and when you want to discuss Frost. I need to knwo what we are discussing now as i really don't know. You are jumping all over the place.

Frost is not a disclosure application case (not to say it didn't happen earlier in the litigation).

M1

I am not really bothered if you continue to discuss or not to be honest.

The CPR is there to assist the management of the case it is not a means to its own end, and cannot be considered in isolation, at least the court will not consider it so.

[Amethyst]

Re: Arrow v Frost 2013

I'll just pretend I'm not here

Who has applied for summary judgment ?

[Guest]

Re: Arrow v Frost 2013

In the case that the thread started on (BIGSIS) the court have said CPR wise a defence should be entered first then he can order the documents off the back of that if he considers they are needed as they were disclosed so should be available for inspection, so the defendant can admit or defence the case. There's no CCA arguments or anything, simply the defendant is currently in a position of playing guessing games as to what the debt might be and the claimant's won't give any other information as to what it relates to (I think in that case theres a 14 digit number which has been guessed at being sort code and account number combined and therefore might relate to an old student overdraft - but as they had credit card and loan with the same bank and don't recall any overdraft being left on the bank account it is simply just guess work - you can't admit OR defend a debt on that basis)

In Arrow v Frost - the documents were provided so far as they went and then the requirements for them legally was argued in court.

It really is a entirely separate issue.

Is it ?
didn't the judge say something like.

If no documents were available then he would have to decide on the balance of probablities if an agreement was signed, which is virtually word for word what was said in frost.
The initial issue may be CPR but it comes down to the same thing.

[Guest]

Re: Arrow v Frost 2013

yes here it is
We felt he had made assumptions about us right from the start by saying he knew people take this course of action when they know they owe a debt in order to avoid paying it. Also the fact that he thought it unlikely Lowell would be able to produce the documents and would probably have to produce a speciman of what would have been signed and he would have to judge on the probability of whether it had been signed or not!

[Amethyst]

Re: Arrow v Frost 2013

Indeed. However (and I haven't read her thread to see if she has answered my questions from yesterday) at the present time there is NO information other than the particulars of claim which are extremely vague. If it is the case the defendant genuinely doesn't believe there to be a debt owing then the claimants need to evidence that there is a debt, whether that's with an executed agreement, evidence of the account / default notice / balance / payments made and so on, that the debt was actually assigned to them by the OC and they have the right to collect on it. Defendants should be able to inspect the documents the claimants SAY they are relying on - the claimants don't have the documents - so how have they brough the claim. What if the case was that this really wasn't their debt, or it was a loan that had already been repaid ? You can't have a situation where anyone could enter a claim stating it's based on a breach of contract under the terms and conditions but never have to show that there really was a contract and the debt really is owed ?

I could send you a claim tomorrow saying you'd bought a kitchen from me and I'd installed it as agreed under a contract where you said you'd pay me £500 a month and you hadn't paid me. If you couldn't come back and ask me to prove it then you'd be pretty stuffed.

Forget the CCA issues, the CPR isn't about that.

[mystery1]

Re: Arrow v Frost 2013

yes here it is
We felt he had made assumptions about us right from the start by saying he knew people take this course of action when they know they owe a debt in order to avoid paying it. Also the fact that he thought it unlikely Lowell would be able to produce the documents and would probably have to produce a speciman of what would have been signed and he would have to judge on the probability of whether it had been signed or not!

Yet disclosure was ordered anyway.

Lowell must produce documents by 30th May.

M1

[Guest]

Re: Arrow v Frost 2013

Indeed. However (and I haven't read her thread to see if she has answered my questions from yesterday) at the present time there is NO information other than the particulars of claim which are extremely vague. If it is the case the defendant genuinely doesn't believe there to be a debt owing then the claimants need to evidence that there is a debt, whether that's with an executed agreement, evidence of the account / default notice / balance / payments made and so on, that the debt was actually assigned to them by the OC and they have the right to collect on it. Defendants should be able to inspect the documents the claimants SAY they are relying on - the claimants don't have the documents - so how have they brough the claim. What if the case was that this really wasn't their debt, or it was a loan that had already been repaid ? You can't have a situation where anyone could enter a claim stating it's based on a breach of contract under the terms and conditions but never have to show that there really was a contract and the debt really is owed ?

I could send you a claim tomorrow saying you'd bought a kitchen from me and I'd installed it as agreed under a contract where you said you'd pay me £500 a month and you hadn't paid me. If you couldn't come back and ask me to prove it then you'd be pretty stuffed.

Forget the CCA issues, the CPR isn't about that.

Nobody(at least not me) is saying that you can or should commence a claim without there being any agreement , or at least without there having been an agreement.

As far as the court is concerned there has to be a reasonable belief that an agreement did exist, this does not necessarily mean that one has to be produced on the day.

Yes I believe that disclosure has been ordered, but what will that disclosure have to be, the original document ? or just an indication of what the document would have looked like, as mentioned in the earlier quote.

Consequence of failure to disclose documents or permit inspection

31.21 A party may not rely on any document which he fails to disclose or in respect of which he fails to permit inspection unless the court gives permission.

I understand that the creditor may be making the whole thing up here and as such there must be the legal protections to say, show the proof, but the proof does not have to be the original document, and if the court decides that on the balance of probabilities an agreement was signed then there will be enforcement, as per frost and others.

[Amethyst]

Re: Arrow v Frost 2013

I don't think any one has argued it must be under the CPR requests at all ? They have to disclose for inspection the document they are relying on, if they are relying on a reconstruction, then fine, still give it to the defendant so they can work out from there what the case is.

[Guest]

Re: Arrow v Frost 2013

I don't think any one has argued it must be under the CPR requests at all ? They have to disclose for inspection the document they are relying on, if they are relying on a reconstruction, then fine, still give it to the defendant so they can work out from there what the case is.

Yes there will have to be some kind of documentary evidence to support the claim.

[Amethyst]

Re: Arrow v Frost 2013

Yip, and that is all we are asking for with the CPR requests.

[pt2537]

Re: Arrow v Frost 2013

Let me clear one thing up.

One of the problems with Arrow v Frost was that the Judge did not believe the clients evidence due to the fact much of the things she said she had done were actually done by the husband instead which came out on the stand in the Court.

That is part of the reason the Judge took the view that he preferred Arrows version.

For disclosure applications Peter you are misunderstanding what we ask for and why, and please read expandable v rubin LJ Rix para 24 for clarity, we are asking for the document mentioned in the Claim form, we are not asking for the signed agreement, if the bank gives us a recon so be it, but we want to see, and are entitled to see, what they rely upon to base their claim upon