Originally posted by Ihaterbs
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24. On the one hand it is for the claimant to prove its case, and it has not done so on its own documents. On the other hand, first the point was not taken below; and secondly the effect of Section 78 is only suspensory so that if the claimant can give further evidence, either by finding the correct version of the terms and conditions in HFC’s archives inherited from Beneficial Bank or by putting in evidence as to the interest rates prevailing in the summer of 1998 or in some other manner, the claimant may yet be able to prove its case and to comply with the obligation under Section 78, in which case it may be that it will become entitled to judgment. It is accepted, and there are first instance authorities for this, that failure to comply with Section 78 does not prevent a creditor from starting proceedings, but it does prevent a creditor from obtaining judgment.
25. Accordingly, there may be a case for this Court on allowing the appeal to remit the case to the county court so as to give the claimant an opportunity to put in further evidence and to try again to comply at last with the request made under Section 78 in February 2007 rather than to dismiss the claim entirely. Whatever order should be made in consequence, however, I would allow the appeal and set aside the judge’s order on the basis that the claimant has not shown that the documents in evidence are a true copy of the agreement between the defendant and Beneficial Bank in July 1998 and therefore has not shown that the obligation under Section 78, which arose on the request made in February 2007, has been complied with.
25. Accordingly, there may be a case for this Court on allowing the appeal to remit the case to the county court so as to give the claimant an opportunity to put in further evidence and to try again to comply at last with the request made under Section 78 in February 2007 rather than to dismiss the claim entirely. Whatever order should be made in consequence, however, I would allow the appeal and set aside the judge’s order on the basis that the claimant has not shown that the documents in evidence are a true copy of the agreement between the defendant and Beneficial Bank in July 1998 and therefore has not shown that the obligation under Section 78, which arose on the request made in February 2007, has been complied with.
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