(a) Responding to Letter of Claim and Reply Form
under Pre-Action Protocol for Debt Actions.
pre-action protocol for debt claims
both a benefit and a trap. TREAT WITH EXTREME CARE.
You can find a
copy of the protocol
here. It is the reply form you should be very
Section 3, provides the “Initial Information to be
provided by the Creditor”.
If the creditor sends you a letter before
claim and does not provide all the information
required by Section 3 then write back requesting
what they have not supplied and say you may respond
further when they have done so. Don't let it
delay your responding to the letter within the 30
day time limit.
Keep a copy
of your letter and keep proof of posting.
4 provides for the “Response by the Debtor”.
Pay heed to the guidance below.
Until your creditor has proved the debt to your
TICK BOX D in section 1.
Do not tick Box A admitting you owe
the debt just because you have an outstanding
This claimant may have no right to the debt. The
debt may not be enforceable by them or by anyone for
a myriad of reasons which you are making it your
business to research.
DON’T give them your head on a plate by
completing Box A. It will be used against you
BOX D you are asked to set out on a separate piece
of paper (“The BOX D Statement”) why you dispute the
debt. Say nothing untrue but make no unnecessary admissions.
Before writing anything in response ask yourselves
the following questions which should guide you in
Is the agreement a regulated consumer
credit agreement? If so start by saying so.
If the claimant authorised by the FCA to exercise
rights under a regulated credit agreement? Look them
up. If not, say they are not authorised. (If the
company is registered off shore this is worth
Are you and the claimant both the parties to the
agreement? If not say you are not a party to an
agreement with the claimant.
If it is alleged the agreement has been assigned to
the claimant by another creditor, have you seen a
copy of the assignment itself (not just a notice of
assignment – but the actual document transferring
title to your debt)? If you have not seen the
assignment of your debt say so and say that you make
no admission as to assignment until you have seen
the assignment itself to be
sure it is valid and that the creditor can give you
a good discharge.
Seeing the notice of assignment will not do
and don't let anyone con you into thinking
Is your agreement improperly executed?
If you don’t know this, say that you don’t
know and until you see the original, you can make no
Has the claimant served all necessary notices under
the Consumer Credit Act?
If you don’t know say so and say that until
you see what has been served you make no admissions.
Has the claimant complied with
requests made by you under S77 and S78 of the
Consumer Credit Act? If not send a copy of the
request and say what has not been supplied.
Keep your responses as brief as possible. Short,
Unless you are prepared to admit the whol debt
without investigating whether it is enforceable
against you don’t complete Section 2 and don’t send back the
If you think
that information is being required to help the
creditor ensure you can afford your proposed
repayments, as the form suggests, think again. It is
required to see how much they think you can afford.
Let them prove the debt first. It’s a regulated
credit agreement. They signed up to comply with the
regulations. If they can’t prove they have complied
with them then either defend to trial or do a deal
which takes into account their evidential problems,
not just how much money you have left at the end of
the month. Don’t
fall on your sword by disclosing your finances to
them until they have proved they have a good case
against you and the
evidence to back it up.
Who you get advice from is none of their business.
Unless you are in debt management keep the correspondence with you. If defending is too
much for you, or if the creditor proves their case
to your satisfaction, then by all means complete
this section and get advice. I understand fully that
disputing debts is not for the faint hearted. You
may well have other life priorities. I am not
encouraging you to dispute debts. I am trying to
help you if you choose to do so as a litigant in
person in the small claims track without legal
In Section 4 tick BOX H if you have supplied
documents with your BOX D statement and list what
you have sent.
Always tick BOX I.
Request the following (obviously omitting
where you already have the document or it is not
A copy of the original of the written
contract giving rise to the debt (unless it has been
A copy of the document assigning the
The date of the assignment (if the
written assignment is not dated).
A copy of all statutory notices under
Part VI or VII of the Consumer Credit Act 1974
relied upon by the creditor in order to prove that
the debt is enforceable.
A copy of all other written notices
relied upon by the creditor to prove the debt.
A full statement of account,
including details of all interest and charges
included in the outstanding balance of the debt
explaining how they have been calculated and any
payment already made to-wards the debt.
The annual or daily rate of any
A description of the nature and
amount of any default charges, administration
charges or other charges included in the debt.
If the creditor is not authorised by
the FCA a copy of any agreement it relies upon as
exempting it from authorisation.
(In credit card claims only) a copy
of every notice sent to you under S 78 (4) of the
Consumer Credit Act 1974.
(b) Defending a small claim brought under a
regulated consumer credit agreement.
Returning the acknowledgement of service
You will receive a claim form through the post. It
will be very abbreviated. The procedure is simple.
Just read what comes with the claim form properly
and you will not go far wrong. You have 14 days from
receipt of the claim form to file an acknowledgement
of service. If you are being sued under a regulated
consumer credit agreement, then, unless you are sued
by a company outside the United Kingdom (in which
case get advice urgently as to whether to dispute
the jurisdiction on the acknowledgement of
service), select the option to
dispute the entire debt. If you really can't afford
advice on the jurisdiction issue it is probably
pragmatic and cost saving to select the option
to dispute the entire debt.
It is very important you do this within 14 days
after you were served with the claim form. If you
don't a judgment may be enetreed against you and you
may not defend afterwards unless you apply to have
the judgment set aside, which is costly and not
The Rule dealing with acknowledgement of service is
CPR 10 which is supplemented by Practice Direction
You have 28 days from receipt of the claim form to
file your defence. Again, read the instructions that
came with the claim form. It is ESSENTIAL you file
it in time. If you do not the creditor will take a
defualt judgment against you and you will incur
unnecessary and substantial costs in trying to get
it set aside.
So make filing the defence your
priority. Treat your defence as the most important
document in your case - because it is. If you don't
raise an issue in your defence, that you should have
raised, you may not be allowed to rely on it at
trial, even if it is a good defence you have that
you just overlooked.
If you are going to draft your own defence follow
the rules. CPR 16.5 and Practice Direction 16
paragraphs 10 and 11 tell you how to draft a
defence. Read the guides mentioned on this page as
to how to draft a defence. Understand the difference
between non admission and denial and the need to set
out your version of the facts when you deny the
Part of the reason debt purchasers buy debts with
virtually no paperwork to prove them is that they
rely on the consumer to prove their cases for them.
How so? (1) Consumers don't do their homework. They
don't set out all the points they need to make at the outset
- in their
defence. As a consequence they are shut out from relying on them later and (2)
deby purchasers rely on getting admissions
from consumers in the witness box at the small
claims trial, at a time they are nervous and unprepared.
If you take nothing else from this column, don't let
them sucker you that way. Prepare thoroughy and
early and take nothing for granted.
If you are not represented by a solicitor the court
will send out a form called a directions
questionnaire for you to complete. Again, read the
notes. There are different DQ's for small claims
[Form N180] and fast track or multi track trials
When you get one look in the top left corner for the
date by which the court requires it toi be returned
and diary that dete. Don't miss it and don't made
any agreement with the creditor to postpone that
date. You must comply with it.
The Small Claims DQ
This is easy to complete.
You are asked if you want the claim referred to the
small claims mediation service? Do you? If you had
had an avdice by me on the merits of your case you
may have more idea!. Small claim mediation takes
place by telephone. Its up to you whether you want
to engage in mediation. If you have shown you have a
viable defence you have more chance of getting the
creditor to accept a much reduced amount.
Agree the small claims track if you are
unrepresented. It protects you from the other side's
costs. Choose the County Court most convenient for
your home. If it is a consumer credit case you
will not need expert evidence and the probability is
only you will be a witness. If you have
holidays booked or work commitments remember to let
the court know the dates.
The Court's Directions for Trial
The court will send
out its directions for trial after reading each
side's directions questionnaire. Read them carefully and
diary them. Keep to the timetable set out by the
Disclosure of Documents
When you put your documents together do not include
any of the offer letters, from either side, or make
reference to them. these are privileged and the
court should not see them.
Put all other relevant
documents in date order, page number them and put an
index on the front of them. (You can use that indexed bundle
to refer to documents by page number when making
your witness statement). Keep proof of posting or
other means of service. Some creditors often accuse
you of not sending documents when you have.
Your witness statement should only deal with the
facts of the case. It is NOT a plce to argue your
case. It is a place to say what happened, what
documents you admit you have received and what
documents you dispute either as not being what you
received or dispute ever receiving them. Be clear in
your mind between 'non-admission' and 'denial'.
If the other side say they sent you a document but
you don't recall reciving it say you do not remember
receiving it and request proof it was sent to you.
If you see a document and know you did not receive
it then deny receoiving it and state the reason why
you deny receiving it.
You must be honest in your statement. Check you have
covered the evidence dealing with every issue in
your defence. Remember you will be questioned on the
document so keep it short, informative, honest and
Make sure you cover every allegation made by the
claimant in your witness statement. I appreciate
many particulars of claim issued online are very
truncated but they still need dealing line by line,
especially where you deny what they say. Remember
too that denial of fact needs no explanation It is
different to denying a legal point - in which case
your denial is worthless unless you can back it up
with argument. Where facts are concerned your denial
is enough in itself. E.G. If you know you did not
receive the alleged notice of assignment the
creditor alleges it sent to you, say "I did not
receive the alleged notice of assignment". There is
nothing else to say on an issue like that.
Get your witness statement made well before the
deadline for exchanging it wioth the other side.
Why? Because you will want to read it and re-read it
and probably make it shorter and clearer. You cut
out what is just 'comment'. You cut out unnecessary
words and repitition. You ask if what you say can be
said in fewer words and more clearly. If it can do
that. You 'hone' it. Your statement will
be the better for it.
The witness statement and any exhibits should be filed and served in accordance
with the court's directions order.
Again, keep proof of posting or other means of
On receipt of the creditor's witness
The next development will be that you will receive
from the creditor its witness statement and
Check carefully for added
documents over and above those served on you with
the pre-action protocol letter of claim.
Consider particularly whether any of
those additional documents negate things you have
said in your defence and if so, consider if you have
any answer to them.
When you first read the other side's documents and
go though it make notes on a paragraph by paragraph
basis as to what you deny, what you can prove to be
wrong, whether you need any other evdience to
dispute them. These notes will help you when it
comes to cross examining the other side's witness at
See some trials: Attend court well before your trial and watch some small claims consumer credit trials.
Always check with the usher first that they are
public. Most 'non-family' courts are open to the
public. Say nothing and do not interfere. If asked
what you are doing there, say you have a small
coming up and wanted to see for yourself how a small
File and serve a skeleton argument:
Shortly before the trial don’t be afraid to summarise (I mean summarise – one
side only if possible) your submissions on a piece
of paper (a skeleton argument) and file it at court
and serve it on your opponent two or three days
before the trial. Put the case name and number on
the top of it and head it “Defendant’s skeleton
argument for trial”.
It tells the judge what
your main points are and helps him understand where
you are coming from. As long as your points are
clear, sensible, and you can back them up with
evidence (or absence of evidence) and law and you
keep them unemotive, you will buy yourself some
Judicial patience, which is a precious commodity
especially when defending a debt claim against a
bank or other financial institution on the basis of
their lack of title to sue or their failure to
comply with regulations.
Prepare for trial: Get yourself
familiar with the documents again the evening before
your trial, especially your witness statement, read
it thoroughly - you are going to be questioned about
it in depth tomorrow! Make notes both in preparation
for your cross examination and you closing
submissions. Keep them short and clear. they atre
'reminders', 'aid memoire's', not the questions or
submissions themselves. If you write it all out at
length it may help you prepare but they will be no
good as notes to you in court. Notes are short and
concise and can be taken in in a glance.
Prepare for settlement offers: Remember that
the door of the court is a place where a lot of
cases are settled or compromised. So don't be
surprised if you are approached with a view to a
compromise. The way not to be surprised is to be
prepared for it and have in mind how far you may be
willing to go with a view to settling. Give yourself
your own bottom line the night before. Don't let
someone bounce you into one on the day.
Get to court in good time: NEVER be late. Allow
plenty of travel time and allow for problems parking
etc. Have money for car parking. Don't assume every
car park takes credit cards.
It's a court. Dress appropriately.
Treat every part of the trial process and everyone
involved with respect and courtesy – always, no
matter how others behave.
On arrival: You
go though a security check - so leave behind all
sharp objects, cans of fluid, hair sprays - all the
usual stuff 'security' get twitchy about. Ask the
security people where to go if you don't know.
The court lists will
be on a notice board. Find your case and check the
court you are in. There will be an usher or court
official sometimes at a desk. Give your name in.
Make yourself known to
your opponent. Be courteous. Don't be surprised if
he or she approaches you with a view to settlement.
That's quite normal. Listen. Having listened give
yourself time to think. If need be, say you'd like time to call
your husband/wife/ whatever. Normally its enough just to say,
"Please give me a monent or two to think about this"
. Most professionals will do that - but not if the
case is due on in two minutes. So again - get to
If your opponent gives you
a copy of an authority (a previously decided case he
is going to rely on at court as precedent) it is
perfectly acceptable to ask him to mark the margin
of copy he gives you so you
can see which part of the judgment(s) he will be
referring to. Read it and make a short written note
of how you will respond to it. Don't panic. If
you have brought statutes or regulations supporting
your case give him copies in exchange and check he
has your skeleton argument if you sent one (always
take spare copies to court).
When the case is called on and you are shown
you are in front of a District Judge or a Deputy
District Judge. You call them 'Sir' or 'Madam'.
The creditor's opening: The
creditor's representative will start the case off.
Listen, make notes of things you want to say in
response. Don't interrupt until it is your turn
The creditor's witness: If the creditor's witness is called, he will just
affirm his witness statement as being true. If he
adds some supplementary information make a note of
it - because it will be important or he would not
bother. If it is somehting that takes you by
surprise then say so before you cross examine him. If you are disadvantaged by it because it has taken
you by surprise. Tell the Judge and say why. If it
is something you can cope with if given more time to
think it through then ask for it. If it needs
adjournment to deal with then say so and explain the
Questioning the other side's witness:
Questioning a witness is about testing his evidence,
not badgering him into agreeing with you. He won't. Don't
ask him to be reasonable. He won't.
If you dispute
what he says then dispute it with him and put your
case to him forthrightly. Don't argue. Just put your
case. Cross examination is not the place to argue
Make sure the judge knows what facts you
are disputing because if you don't dispute them with
the witness the judge won't allow you to dispute
It is, however, quite common for creditor's witnesses not to turn up
at small claims consumer credit trials, so you may
have to give evidence first of all. Don't be thrown
by having to give evidence earlier than you thought.
Your Evidence: In a small claims case you
may not be asked to take and oath at all but some
judges do it. You will certainly be asked to take an
oath in any other track. You wil be asked how
you want to take the oath. It is usually a choice
between your holy book or affirmation. Do whichever
is comfortable for you. I only mention it so you
know you will be asked. The judge will then ask you
to look at your statement and he will ask you three
Is it your statement?
Is it true?
Is the signature on it
If there is an error in
your statement say so when asked if it is true. Just
say that "It is true except I made mistake in
paragraph X which should read .........." or "II
thought it was true when written but I have since
discovered x y z" or whatever is the case.
Your witness statement is your evidence. It is where
you set out what happened. Again, it is
not where you argue
your legal points.
When being questioned about the facts you have
stated in your witness statement keep your answers short and to
Don’t let words be put in your mouth. Let
me give you an example. If the creditor relies on an
document, but can’t prove it was sent to you (which
happens quite often) – they need an admission from you.
If you do not recall receiving that document
your evidence is “I do not remember receiving that document”.
If asked, “Is it possible you received it” you can
repeat, “I do not remember seeing it and I have seen
no proof it was sent to me”.
Don’t be pushed into giving an opinion of whether it
was sent or not. That is not your function. If you
do not recall receiving it and the creditor has no
evidence (e.g. a proved contemporaneous record) that it was sent to you, the judge must conclude
it was not sent.
So guard against being trapped into
conceding some sort of possibility or probability.
You can be hard pressed with 101 reasons why it is
likely the document was sent to you. e.g. "There is
no problem with your post is there?" "You got such
and such a letter addressed there didn't you?" "You
don't remember everything you get in the post do
you?" None of that is evidence that the disputed
letter arrived. It is comment. If there is no
evidence it was
posted from someone who actually posted it or is looking at
contemporaneous records of posting (which are documents which should
be disclosed if they exist) the creditor does not
prove it was posted.
Always remember. the fact you did not receive a
document is not itself evidence it was not posted.
The important point is that just because a purported
copy of a document exists, that is not evdience it
was posted to you or, in the case of a
'reconstituted document' that it existed at the time
“I don’t know and prefer not to speculate”, if true,
is a perfectly acceptable response to a lot of this
sort of cross examination if you are being pressed
about speculations or thing you have already said
you know nothing about.
You then have the opportunity to argue your case
(which is different from giving evidence). This is
where you explain why you are disputing the case and
what the claimant has not done in order to prove its
If your opponent disputes any of the legal points you make,
be sure you have brought the statute or regulation
or case that backs your argument up to court, along with copies for
the judge and the creditor.
Creditor's submissions: After that the creditor's
representative will have the opportunity to respond
to you. Listen courteously and don't interrupt. If
he says something you have not had a chance to
respond to and want to respond to, wait till he has
finished and say to the judge, "There is something
said I have not had the chance to respond to. Please
may I reply to it."
The Judge will then deliver judgment which will
start with the reasons for his decision. He will
make a formal order at the end.
Make a careful note of his order, whichever way the
case has gone.
If the case has gone against you and you need time
to pay you may have to make an application at a
later date to get
that time. The Judge is unlikley to engage in a
means investigation immediately after a disputed
I have not given you letters to copy
and technical sounding arguments to cut and paste. It
would not help you if I did. It
would not help you argue your corner when challenged
Only doing the research yourself will do that. This is consumer credit
law and it is difficult.
The best I can do for you, if I cannot plead your
case for you or represent you, is to walk you down
to the deep end (i.e. the Act and the Regulations)
and gently push you in.
You will not do yourself
justice as a litigant in person in a consumer credit small claims trial unless you
have read the relevant Act and Regulations and understood
Even if you have tried to understand and failed, the
fact you can be seen to have tried, will result in a
far more satisfactory trial than if you have made no
effort at all.
Most judges will listen if they
think you are trying to put forward a case
genuinely, even if you make mistakes. You get the
'glazed look' when it is obvious you don't know what
you are talking about. Doing the work shows. Even if
you don't get it completely right it shows - and it
buys you time and attention, and a fair hearing, or
it should do.
There are no certainties in litigation. Cases are
won and lost for an infinite number of reasons.
There is no Judge in the land who will not
accept that other Judges hearing the same case as
them might reach a different conclusion. This is one
of the reasons why appeals are hard to win.
Even if you could
afford a lawyer the outcome is not certain. All
a lawyer can do is
change the odds. The cost
of the lawyer will rarely be awarded in a small
claim but it can often be recouped by getting a better settlement than
you may do otherwise.
But, if you can't afford legal fees, doing
your own research, making yourself
knowledgable about the law relating to your own
case, learning how to
defend yourself in court and preparing yourself for
the trial can also change the odds.
Never lose heart.
The left column: introduces you to three excellent
guides to help you as a litigant in person and
explains something none of the guides cover,
i.e.what is a 'cause of action'
The right column:
discusses what you are taking on
as litigant in person, defending a small claim under
a regulated credit agreement and shows you where to
find information about the creditors and the law.
The middle column: shows you how to reply to a Letter
of Claim under the Pre Action Protocol for Debts and
how to defend a small claim under a credit
General Guidance for Litigants in Person
defending small claims by banks and other financial
If your consumer credit debt is over £10,000 and you
intend disputing it, you
need legal advice, even if just to discover your
options and (very great) costs risks of defending
such a claim. You need advice in such a situation
just as you need a good surgeon after your body has
been mangled in an accident.
It is a false
economy to proceed without it.
Only read the following if you face a claim for
under £10,000 on the small claims track (or a larger
claim if it has been allocated to the small claims
track as some are). Provided
both sides behave reasonably, no costs orders are
made (other than the payment of limited fixed costs
and court fees).
There is nothing unreasonable about defending a
claim where a professional creditor does not provide
you with credible evidence that a debt is not just
owed, but that it is own to them and is enforceable.
I am not giving you all a free lecture on consumer credit
law. I can’t. It is too difficult. I hope by the
following guidance, however, to toughen you up enough to be able to
argue your own consumer credit case at a small
claims trial, if it is your wish to do so.
It’s hard work:
If you are going to dispute a claim by a bank or
debt purchaser in the small claims court you have to
take time to understand the relevant law. It takes
I don't say that as a lawyer. I am not
qualified to judge. I say it because of the number
of public access clients who have told me about the
hours they put in, after work and after family
commitments, before coming to me.
In the preface to the handbook for litigants in
person referred to opposite, the Committee of
Circuit Judges say, "If there is a message in this
Handbook it is this: If you are to engage in
litigation you should take it seriously." What they
mean is you really need to work at it. And that is
especially so in consumer credit claims.
It is therefore not surprising that at the commencement of his
judgment in McGinn v Grangewood
Securities  EWCA Civ 522 Lord Justice
“These appeals raise a number of
issues under the Consumer Credit Act 1974 ("the
Act") which has recently provided so much work for
the courts. Like others, this case demonstrates the
unsatisfactory state of the law at present.
Simplification of a part of the law which is
intended to protect consumers is surely long overdue
so as to make it comprehensible to layman and lawyer
alike. At present it is certainly not comprehensible
to the former and is scarcely comprehensible to the
Enough said? O.K. Let’s move on from the doom and gloom.
Never forget the professional creditor must prove a
case against you:
Don’t pay any heed to creditors or creditor’s
solicitors that tell you the onus of proof that you
do not owe the debt rests on you. That is plain
wrong. If you see that in a letter keep a copy to
show the judge so he can see how they are prepared
to mislead you.
The most authoratative case is CA Consumer Finance v Bakkhaus
in the European Court. There the
Advocate-General, with whom the EC
“The fact remains that it follows
quite logically from the objective of consumer
protection pursued by Directive 2008/48 that the
burden of proving fulfilment of the pre-contractual
obligations to provide information and to conduct
checks must, in principle be borne by the
The creditor may be required to
provide the court with proof that those
pre-contractual obligations have been duly
fulfilled, which, as the French Government have
indicated, requires the creditor to exercise a
degree of diligence in the collection and retention
of the evidence of its fulfilment of the obligations
to provide information and explanations.”
Where does the protection come from?
The preamble to the Consumer Credit Act 1974 stated
that it is
“An Act to establish for the
protection of consumers a new system, administered
by the Director General of Fair Trading, of
licensing and other control of traders concerned
with the provision of credit….”
And it does protect.
It regulates how agreements are made and
Banks and other large financial institutions are so
large it is hard to pin down responsibility for
compliance with regulations to individuals. Fines
are like water off a duck’s back to them. The best
sanction for non-compliance with consumer protection
obligations is to deny a creditor the right to
enforce agreements, in whole or in part depending on
the level of their regulatory breach. The Consumer
Credit Act works that way. “Enforceability” is often
your only life line.
The courts do recognise this (although sometimes it
helps to remind them). In Wilson v Secretary of
State for Trade and Industry  UKHL 40 Lord
Nicholls of Birkenhead said,
“I have no difficulty in accepting that in suitable
instances it is open to Parliament, when Parliament
considers the public interest so requires, to decide
that failure to comply with certain formalities is
an essential prerequisite to enforcement of certain
types of agreements. This course is open to
Parliament even though this will sometimes yield a
seemingly unreasonable result in a particular case.
Considered overall, this course may well be a
proportionate response in practice to a perceived
Creditors would have you believe that the only issue
is the amount of the debt.
That is not
true either. Both ‘Title to sue’ and
“Enforceability” are highly relevant issues. But
they don’t want you to understand that and will
pepper you with ridicule. Ridicule from creditors
and their debt collectors and solicitors is a good
thing. It usually shows you are on the right lines
or have hit a sensitive nerve.
You’d think it easy for creditors to keep the
necessary proofs in your file and to provide them
when requested. Why not? Your doctor has no problem
providing your medical records when you need them.
When your garage presents a bill you get an itemised
account of what has been done and receipts for parts
attached. Why is it so hard for banks to keep
In Rankine v AMEX and
others  C.T.L.C.195, HH Judge Simon
Brown QC said, " Needless to say, most of the
evidence involved formally producing or referring to
documentation much of which had been electronically
generated or produced. ........They are all
highly sophisticated financial institutions whose
systems and programmes have long since been well
geared to the mechanics of the Consumer Credit Act
that has been on the statute book for over 30 years
and Regulations of some longstanding."
If that is so, and there is no doubt HH Judge Simon
Brown QC beleived it to be soo, and with good
reason, why is it now so common to see evdience
which amounts to bare 'assertion' that some
reconstituted document should be accepted as if it
was the original with no attempt to provide records,
electronic or otherwise, to back them up? It is fine
to do this when providing 'information'
in response to an enquiry, but it has no place
whatsoever in the world of evidence as
'proof' in disputed litigation.
Guidance given by the Financial Conduct Authority
("FCA") in the Consumer Credit Sourcebook at CONC
13.1.3G says, in the context of information requests
and not of proof of anything, "The firm can
reconstitute a copy. It can do this by
repopulating a template of the relevant agreement
form with the details of the specific agreement
taken from its records. If the firm does produce a
reconstituted copy, it should explain that is what
it has done, to avoid misleading the cutomer that
this is a contemporaneous copy."
Why a firm should 'reconstitute' anything in
litigation as opposed to satisfying a S.77/78 CCA
request is hard to understand, unless of course, it
has no exact copy of the document and has no
contemporaneous record it can rely upon. Then all
that is left is to make something up. Is that
too harsh? Not in my opinion. Day after day I
am peppered with these 'reconstitutions' with no
evidence of the maker, no evidence of the records
from which they are made and no opportrunity to
question the maker about the so called
'reconstitution' and no explanation why we are given
'make-believe' instead of evidence.
The reality is that operating consumer protection
regulations, giving consumers correct information,
operating required safeguards, sending required
notices, and keeping contemporaneous records of it,
all costs creditors money. It eats into profits! May it be, perhaps, cheaper to hector you,
bamboozle you, frighten you and bully you, than
spend the money needed to comply with regulations
and prove that they have been complied with?
Only a small proportion will actually challenge
them. It is a numbers business, remarkably similar,
in some ways, to that of a book maker.
I have heard many times in court the glib and
legally flawed statement, "I know its' hearsay
but that is allowed in a small claims court".
is wrong. It is not hearsay. It does not even get to
that threshhold. 'Hearsay' describes one person
recounting the statement of another. A reconstituted
document, source unknown, manufactured from source
unknown, and concealed from you so you cannot
question it, is not even a 'statement'. To be a
'statement' (and therefore to qualify even as
hearsay), a 'person' must be identified as the
source that uttered it. 'reconstituted documents' do
not even get that far. In my opinion theit standing
lies somewhere between 'stage-prop' and 'origami'.
It is high time the courts started to take this
seriously because it is a source
great distrust between consumers and financial
I am not saying every financial institution so
behaves. But with some I have seen I do believe it is
So don’t feel guilty about requiring regulatory
compliance to be proved. There is no need to be
belligerent about it either. Just be courteous but
firm. Don’t get into unnecessary debate. Just calmly
but persistently ask for real proof that any regulations
have been complied with that you suspect may not
Can I really do this for myself?
but not effortlessly. You can’t request proper proof of the
creditor’s entitlement to the debt and proof that it
is enforceable, if you don’t know the regulatory
landscape and have some basic understanding of the
law of evidence. If you litigate in person you litigate
alone - so you must find out about it. You must
become familiar with the relevant statutes and the
regulations, so you understand them. You can with
guidance, which is what this web page is an attempt
Don't expect the judge to
help you make your case. That is not their function.
Read the second half of page (iii) of the Preface
to the Handbook for Litigants in person published by
the Council of Circuit Judges to understand why.
They are not bad people for syaing what is said
there. It is part and parcel of their requirement to
manage court time and provide an even handed
apoproach. On the contrary they are helping you by
warning you thorugh their guidance that you must do
And don't, ever, expect your opponents to help you. Their duty
is to their clients.
And don't complain that that the Judge only listens to the
creditor's lawyer. If that is your experience ask
yourself why. If the creditor's barrister is the
only one talking legal sense that is inevitable.
It really is up to you to
show the judge from the work you have done that you
have a good case which he ought to accept. There
isn't a soul in the world going to help you do that
- only you.
Try not to rely
only on other people’s opinions unless they are
legally qualified and experienced.
You have to
know what to do and why.
It's not, 'all or nothing', 'have- or 'have
not'. Help is available in small measure or large
measure. Often one single 'good steer' can make a
lot of difference
I don't allow adverts on my web site - except
for this one!. Do remember even if you cannot afford
full representation an advice on the merits of your
claim from a barrister for £150 can keep you on the
right track from the start and a defence at £150 can
present your creditor with a very different
impression from what you do yourself. There is no
commitment to further expenditure. Advertisement
Basic principles in defended consumer
If you get lost in the complexity of it all and you
really cannot afford legal advice keep the following
9 principles in mind.
Please write them down and keep them in your
file as an antidote to creditor’s hectoring letters.
Creditors must prove the debt by
evidence, not just bare assertion.
The onus of proof of a creditor’s
entitlement to a debt, and to enforce a debt, rests on them.
If you are sued on a written
agreement you are entitled to see a copy of it and
to call for production of the original at court.
Always give written notice to produce originals and
keep a copy of that notice and proof of posting to
show the judge when no original is produced.
If an agreement is lost a creditor
should be able to explain why and provide credible secondary
evidence from genuine contemporaneous records.
Creditors are expected to keep records. If a copy
agreement is not available, and no explanation why
is forthcoming, it may be because the creditor does not want it to be available due to some flaw
You don't have to prove that. They have
to prove their case.
Creditors are expected to have made
agreements fairly and in accord with regulations in
force at the time they were made. Check copy
agreements against regulations - always.
Sometimes you get a photocopy of your application
form 'melded' with something else you have never
Creditors must only enforce debts
fairly and in accord with the regulations governing
regulated credit agreements. Learn the regulations
which impose a sanction of unenforceability of all
or part of the debt. Demand proof of compliance with
Creditors with no records proving
compliance with regulations face restraint from
enforcement in whole or in part.
If they send you “reconstituted documents”
ask yourselves why it is necessary for them to
resort to ‘Document Reconstitution’.
A made-up document is at best wishful
thinking and at worse, pure theatre - a stage prop
of no evidential value. If a document is
‘reconstituted’ from genuine records – ask why can’t you
see the record?
If a claimant bought the debt they
must prove that the law regulating assignments of
regulated agreements has been complied with. Demand
to see the assignment (not just the notice). Close
your ears to their howls. If they have an assignment
you are entitled to inspect it if it is your debt.
If they won’t let you see it, it likely does not
exist. Executing proper assignments can eat into
profits. If you get a copy, (heavily redacted in all
probability) compare it with S 136 Law of Property
Act 1925 and see if it assigns your debt.
Proof of a consumer credit claim is a
legal issue not a moral one. Creditors are experts
at laying guilt trips. Ignore all that. Demand
proof. Research your position. Appraise it honestly.
Stand by your own judgment. If they have proved
their case admit it. I look for lawfully proved
cases from creditors every day of my professional
life and I don’t see as many of them as I should,
especially in the small claims court.
that strict rules of evidence don't apply there but
there has to be some
evidence and it has to be credible.
Creditor's common weaknesses
Ask for originals to be brought to court.
They rarely produce them. Ask for them.
As well as asking for copy documents always request
from your creditor, in writing, that originals of
the agreement they sue upon be provided at trial.
Disclose and take that letter to trial as well.
If the originals have not been brought ask
why not. They should be.
Proof of posting. At an early stage,
always request, in writing, proof of posting of any
documents claimed to have been sent to you if you do
not recall receiving them. There is no reason to
assume they were sent to you just because a creditor
now says they were. Ask for contemporaneous proof of
posting and put that letter in with your documents
The creditor's best evidence
You. Creditors rely on you going into the
witness box. They rely on you admitting your debt in
the witness box. They rely on the fact that most
people are decent and truthful but also legally
unsophisticated and unable, in the context of a
trial, to articulate the difference between saying,
"I am not taking issue with your accounting (if that
be the case) and "I do not beelive you own this
debt, or I do not believe you are entitled to
enforce this debt." To be able to stand your ground
in the witness box you must be aware of this
distinction and understand it so that when you saty
it you beleive it. If you cannot by your research
bring yourself to a position when you cannot state
that with confidence and a clear conscience, then
you should not be defnbding the claim.
It should go without saying that before you
accept the creditor's accounting, check through the
transactions to be sure they are yours.
Before you accept their interest charged and
their default charges you need to be sure they are
entitled to the interest charged or the defualt
charges. If, e.g. they have not served notices of
sums in arrears they may not recover those charges
during period of default. If you don't know what I
am talking about find out.
There is an element of 'ritual' about a
consumer credit small claims trial. The creditor
comes armed with whatever evidence it can cobble
together within it's case budget, and with an advocate
skilled in plugging the gaps in his case by
soliciting admissions from debtors in evidence.
Don't make their task easy by lack of knowledge of
subject matter on your part.
The psychology of it all
When a creditor or debt collector tries to make you
feel guilty for not paying, instead of providing you
with the proof you need, be aware of what they are
doing. They are trying to make you, emotionally,
forget about the fact that they have not proved
title to the debt or that they have not proved the
debt is enforceable by trying to make you embarrassed
Don’t fall for it. It is just masking the
fact they can’t prove their case. If they could they
would point to the documents and proof required instead of trying to get admissions out of
you by aggressive cross examination.
Don’t fear a trial. Accept that you have a trial on
your hands and prepare for it. It’s not that bad! Go
and watch a few first. Prepare. There is nothing to
fear. Remember all the time, if your creditor offers
you a deal, think about it. You can always make a
counter offer if you wish. The first offer will be
just that – a ‘first offer’.
Can I settle out of court?
Yes, at any time, if you can reach agreement. You don't have to
pay everything demanded, just because it is
When negotiating just offer figures and payment
terms, not reasons. The reasons why your creditor
should negotiate ought to be clear from your defence (and
witness statement if it has been served).
Head any such letters “without prejudice save
as to costs” so the judge will not read them at
trial if a creditor improperly includes them in
their evdience. Remember this is hard-nosed and cold
blooded. You won’t be offered deals if you show you
are a push over.
Do use your common sense. If your debt has
been purchased for 8 pence in the pound there is
always a deal to be done. If your debt is to the
person you originally contracted with they may be
less willing to do a deal. Whichever it is it will
cost them unrecoverable money to take you to a small
claims trial, so they will be interested in
compromise. If your defence shows you know what you
are doing and their case will be seriously tested at
trial they will be more willing to do a deal. When
they make offers they will not necessarily be their
final offers so don't be too generous too soon.
There are ways of settling cases that do not involve
you submitting to judgment. The most common is
called a Tomlin Order under which the action is
stayed on terms that a sum is paid at an agreed
rate. Such orders can protect your credit history.
But be sure you can keep to the terms of any Tomlin
Order you agree to because the usual term is that in
default of any one instalment being paid on time the
whole balance falls due. Then they go to get a
charge on your house. So if you do get a
Tomlin Order pay a few instalments in advance if you
can - just to protect you against the bank that
doesn't pay the standing order, or you forgetting on
one occasion, or the creditor saying it arrived late
when it didn't. Remember one late payment of a
settlement sum can trigger payment of the balance of
the debt so always stay a couple of payments
Everyone can access them including your creditor. Do
keep your identity anonymous. No clues as to your
name in your user name. Try to use terms like ‘a
bank’ or ‘a debt purchaser’ or ‘creditor’ instead of
naming the creditor. Keep amounts approximate. Don’t
give out dates of claims or letters.
There are a lot of decent and often very experienced
people trying to help you, selflessly and in good
faith. I mean them no disrespect by suggesting you
treat the advice you receive with care. Use it to
help you research but never let it be the sole extent
of your research. The Consumer Credit Act is there
to read, so read it – read the index first to see
the landscape. Then home in on what looks relevant.
Get a few opinions on different sites and look for a
pattern of response. Respect other people’s opinions
but form your own.
And for heaven’s sake keep your financial
affairs off any social media.
For the Consumer Credit Act 1974 and regulations made under it visit
legislation.co.uk. If it is your first visit to
the Act read the index – it gives you a good
overview of how it works. Words like “duty”,
‘notice’ and ‘enforce’ should prick your interest,
especially in Parts V to IX of the Act.
For Cases on Consumer Credit you can visit BAILLI (www.bailli.org).
Search using any terms relevant to your case e.g.
“Consumer Credit Act” and a section number and a
term like “default notice”. I’m afraid most relevant
cases are reported in specialist publications which
are very expensive to access. I have many such
judgments myself in cases I have been involved in but
the courts will not let me publish them on my web
site or I would.
For the Consumer Credit Source Book (‘CONC’) use the
Financial Services Authority’s Handbook. For
litigation purposes CONC is much less important than
the Act itself but CONC 13 for example gives
valuable guidance on information requests under S77
and S78 of the Consumer Credit Act.
To Find out if your creditor is authorised to
enforce lenders rights under a regulated consumer
credit agreement search the
Services Register and look at the section on
“Permissions”. If you see no authority try the
Consumer Credit Interim Permission Register. If
you can’t find permission to enforce lenders rights
under a regulated credit agreement on either of
those sites chances are they don’t have such
If your creditor’s name has changed from the
original agreement, to find out if the creditor is
the same company you contracted with use
Webcheck at Companies House which lists all
names a company has had.
here to view the Courts Rules (the Civil
Procedure Rules). For small claims look at Rule 27
and the practice direction supporting it.
court forms, if you need to make an application,
To get contact or location details about the court,
Creditors are notorious for withholding information.
Do the following now, if you have not already
done so. Don’t
worry about it triggering a claim.
important is you get information about any of your
debts before you are sued - so that the creditor
does not hold all the cards.
Information request under Section 77 or Section 78
Consumer Credit Act 1974
To obtain a copy of your regulated credit agreement
us S.77 or S.78 CCA 1974. I am not providing you
with a model letter to copy. Read the source
legislation yourself and compose the letter when you
have understood it using the language of the
statute. Get into the habit of looking things up for
yourself and writing your own letters.
I won’t give you a precedent because I am
trying to help you learn to research and apply the
law for yourselves and be confident in doing so,
instead of being spoon fed pre-processed pap by
others which you won't understand when you send it
and will make you feel foolish when cross examined
If its your own work, it may be right or
wrong, but you will know why you sent what you sent
because you will have understood it to send it.
Data Subject Access Request
To obtain the data held on you by any given
financial institution, make a data subject access
request under S 7 of the Data Protection Act 1998.
Again, I am
not giving you a precedent.
Go to the
legislation and understand it and write your own
letter once you have understood it. I know there are
precedents on all the forums, but this is your case.
If you are thinking of contesting it you need to be
able to understand the law you are using and deal
with this sort of enquiry without cutting and
pasting something someone else has done whilst
remaining totally ignorant about it. I am not being
mean. I am trying to toughen you up for the fight
Why do you get claims from
There are companies, usually large multinational
conglomerates, who buy what is termed ‘distressed
debt’ which means cases where the original creditor
had ‘charged off’ the debt on the basis the
relationship between creditor and debtor has broken
They are often credit card debts or overdraft debts.
They will buy your debt for a very few pence
in the pound. Then they will require you to pay 100%
of its value. Some even claim interest from when
they bought the debt. Some even claim interest from
before they bought the debt which has to be a
touchstone for defining absolute greed.
Is it legal?
Unfortunately, it is.
Do debt purchasers need to be authorised by
the FCA? Yes they do (exemption is a hot topic at
the moment and a number of disputed cases are in the
course of determination). I’ll update the site if a
higher court rules.
What can you do about it? The same as with banks and
other original creditors. Put them to proof. Often,
they have no proof and sue speculatively and
discontinue when challenged.
In my experience some of them do not take proper
legal assignments and issue claims speculatively
without having any evidence.
pre-action protocol for debt claims is meant to
change this. We’ll
When are "reconstituted documents" acceptable?
The recent fashion of “reconstituted documents”
arises from a misuse by the finance industry of a
judgment of HH Judge Waksman QC in Carey v HSBC.
It is permissible to ‘reconstitute’ an agreement for
an information purpose. If e.g. you wish to know
what your agreement is and the bank does not have
the original to hand but can honestly and accurately
reproduce its content to you by sending you e.g. the
form used and the terms applicable at the date of
the form, that satisfies the statutory requirement
to give information.
A request for a copy agreement and account under S
77 or S 78 CCA 1974 does not involve 'proof' of anything, far less
verification by statutory statement of truth. You
will have just asked your creditor for a copy for your
information and they will have sent a reconstitution
which they say is a true copy. There is nothing wrong with reconstitution in
that sense. See CONC 13.1 for guidance. It is the inappropriate extension of this
practice, trying to elevate it to 'proof' in
disputed court claims, where the fact of the
agreement or its terms or regulatory compliance, or
titlke to the debt is in dispute that is wrong.
in Carey v HSBC
 EWHC 3417
Judge Waksman QC was careful to contrast the
‘information supply’ purpose under Sections 77 and
78 of the Consumer Credit Act with the ‘proof
purpose’ where the existence of an agreement is
challenged, or the existence of a regulation
compliant agreement is challenged.
Have a look
at paragraphs 44 and 53 (11) of his judgment to
understand the difference and its crucial
A ‘proof purpose’ arises where the creditor is
called upon to prove his agreement in court and
prove that its terms are compliant with regulations
in force at the time.
The cobbled together copy is irrelevant to
that purpose and HH Judge Waksman QC is the first to
acknowledge that in his judgment. If the agreement
is needed for a proof purpose the original will have
to be found.
Unfortunately a finance industry that was
distributing application forms for credit cards like
confetti in the nineties and at the turn of the
century has, since Carey v HSBC, sought to
deliberately confuse the two purposes so they can
provide ”reconstituted” agreements where they can’t
prove compliance by production of the original
signed agreement – not because it is lost but
because it was never complaint in the first place
and they want it lost.
One now regularly sees
“reconstituted” default notices or “reconstituted”
notices of sums in arrears or “reconstituted”
termination notices or “reconstituted” notices of
If you doubt the point I am making, imagine you have
a £20 note but you lost it. You want to put it in
the bank. You write
on a piece of blue paper, with a photograph of the
monarch pasted into it, “I promise to pay the bearer
on demand the sum of £20” and ‘reconstitute’ the
signature of the Chief Cashier of the Bank of
England on it. Then
tell your bank, quite honestly, that you have lost
the £20 note but want to credit it to your account. Do you really think
the bank would accept the 'reconstitution'? and
credit your account with £20? What is the difference between
doing that and providing ‘reconstituted documents’
showing regulatory compliance, after the event, from
unknown sources, with no explanation what has
happened to the original?
[PS - don't try this.
Counterfeiting the currency of the realm is a
Bear in mind these questions for the
Who made these "reconstituted documents" up? No-one
From what records were they made? No one says. You
never get to see them.
Who takes responsibility for the accuracy of
reconstitution given that evidence is suppored by
statement of truth? No-one.
Who is put forward to be asked questions about the
Why can’t we see the records from which the document
is supposedly constructed instead of the made-up
document itself No-one tells us.
Is it assumed that Judges as too unintelligent to be
shown the original contemporaneous records from
which ‘reconstitutions’ are supposed to have been
made and decide the issue for themselves on the
basis of original contemporaneous evidence? Of
In all probability you won't ever get the chance to ask the
questions. As often as not, in small claims cases,
the creditor's witness does not turn up to give
evdience. Only his statement is used. If so,
you can say to the judge you would like to have had answers to these
questions, but the creditor is ducking them by
keeping its witness away from court.
In short, never accept 'reconstituted documents as evidence of
anything other than S77/78 CCA 1974 compliance. They
The people doing the 'reconstitution' do not seem to
be lawyers in my expereince. I say that because
some ‘reconstitutions’ prove to be hopeless
that you could sail the Titanic through the gap
between them and the regulations the 'original' was supposed
to have complied with. There is always a silver lining!