John Pugh's Chambers
33 Cheadle Avenue
Liverpool
L13 3AE

Specialist in consumer credit litigation

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John Pugh LLB (Hons)
Barrister

Eileen Ashton JP LLB (Hons)
Practice Manager

Suzanne Thomas
Administrator

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A Handbook for Litigants in Person:

This is an excellent resource for a litigant in person.

Access or download it here.

It is written by a committee of the Council of Circuit Judges. Its advice is invaluable.

Its goes some way beyond consumer credit small claims litigation but it is clear and explains the procedure in which you are engaging.

If you are defending  consumer credit small claims case I suggest you read the 'headline' guidance at the start of the chapters, and think about what they say in relation to your own case, and the stage it has reached.

If you focus on the particular issues in hand at any stage of your own case  and venture into the text only where the headlines have proved particularly relevant to your case, it will be a less daunting read.

The Judges recommend two practices which will be particularly useful for you, which are set out, in summary, below.

Prepare a chronology

To help you understand your own case and be able to present it clearly, prepare a chronology of events. Use three columns, Date, Event, Page Reference (so you can find the page containing the information in your case file).

It helps your own thinking. It helps you in presenting. It helps you see the wood for the trees.

While you are compilning your three column chronology, things will occur to you such as "That needs to go in my witness statement" or "That answers the point made by the creeditors in their letter dated....".

I recommend the use of a 4th column to make those notes at the time the thoughts occur to you.

Make attendance notes

Litigation is a long drawn out process.

Every event in it, whether it be a phone call, a discussion, a piece of research needs its own dated note.

The benefits of this are more than you think. Not only are they an excellend aide memoire, but, if made contemporaneously with the events which are noted, they are a record to which you can refer if the events noted are in dispute as facts.

Make it a habit in your litigation. Keep the notes in a file in chronological order but on separate sheets, not in a notebook. That way if a note becomes relevant in a factual dispute you can produce the note without having to hand up your case file.

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A Guide to Bringing and Defending a Small Claim

This is produced by the Civil Justice Council.

You can consult it or download it here.

It is shorter than the Guide from the Circuit Bench.

It is focussed only small claims. It is  very informative.

It has a "This is What Happens", (matter of fact) style. It is clear and easy to assimilate.

With no disrespect to this guide I recommend you read the Circuit Judge's Guide, as well as it  gives more explanation of why civil procedure is as it is. That is a great help to a litigant in person whose learning curve regarding litigation will inevitably be very steep. It is much easier to learn 'how' and 'when', when one knows 'why'.

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A Guide to representing Yourself in Court

Published by the Bar Council.

You can view it or download it here.

My own profession has published a guide to representing yourself in court.

I place it third in the list of guides only because it is very far ranging and not of particular help to a litigant in person in a consumer credit small claim.

However as you would expect from my profession it has unique guidance on being cross examined and how to cross examine a witness (see pages 26 and 27). They are well worth reading, not at the outset, but as your case progresses and the time of trial draws near.

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What is a "Cause of Action"

In the guides you will come accross this expression, which lawyers take for granted, but in my experience many litigants in question do not understand.

A "cause of action" is a combination of circumstances that give you a right to a remedy from a court.

If you are run over by a careless driver the cause of action is negligence.

Negligence has 4 'elements' in law which are

(1) The existence of a duty of care owed to you not to injure you or damage your property

(2) A breach of that duty by the defendant i.e. by  carelessness

(3) Loss or injury to you

(4) That your loss was caused by that breach of duty.

Lawyers analyse claims (i.e causes of action) by looking at their individual 'elements'

A claim for damages for breach of contract is another cause of action. Here is an example. Someone sells you something that you are dissatisfied with because it does not function properly. Your claim is for damages for breach of contract.

The elements of the cause of action can be broken down into five parts namely:

(1) a contract

(2) a relevant term

(3) breach of the term

(4) loss suffered

(5) establishing causal link between breach and loss

Debt

If you are being sued for a debt the elements of the cause of action are

(1) Agreement

(2) Term requring payment of a given amount at a given date.

(3) Non payment of money due

These are the 'elements' of a debt claim.

Each 'element' needs proving factually. The law relating to that element must be considered. The elements relied upon must be set out in your statement of case.

When defending a claim the lawyer looks at the same 'elements' of the cause of action to see which are proved and which are not.

Proving 2 out of 3 'elements' convincingly, is of no avail to a claimant who cannot prove the third.

Consumer credit debt

In consumer credit litigation, however, there are added layers of complexity.

Not only do the elements of a contractual debt claim have to be established, but also, where the agreement is a regulated credit agreement, there are regulatory requirements, often quite a few, which are a pre-conditions of enforcement.

For example, you may owe arrears and the creditor may have a contractual right to terminate and sue for the account balance, but he is required to serve a regulation compliant default notice before he does so. If he does not the account balance is 'unenforceable'. It is still contractually due and owing but the creditor may not 'enforce' the agreement by entering judgment without first serving a valid, regulation compliant, default notice.

Often there is further complexity when a debt is assigned because the assignee must prove their entitlement to sue you instead of the person you contracted with. In this area too the law protects the people who have to pay the debt which are traded.

Analysing a consumer credit claim

Consumer credit law and financial mis-selling litigation are concerned primarily, but not exclusively, with these regulatory pre-conditions. You must become familiar with all those that apply to your claim before you can speak sensibly about the case brought against you

It is a mental exercise, not an emotional one.

It is a commercial transaction for gain, not a social occasion.

You must always be honest. Quite apart from the issue of conscience, honesty carries its own strength which shines through in speech, in expression, in demeanour and in confidence. Never run a dishonest case but do analyse the claim by breaking it down to ist constituent parts so see where your opponent stands with regard to proof of each 'element' of his cause of action.

Think like a lawyer

You will by now have appreciated that in a consumer credit claim by a debt purchaser a simple 'three element' debt claim acquires extra elements, e.g.:

(1) Agreement

(2) Entitlement to sue when not a party to an agreement

(3) Term requring payment of a given amount at a given date.

(4) Non payment of money due.

(5) Compliance with all regulatory pre-conditions to suing for the sums due

Think like a consumer credit lawyer

Think of it this way. It is not always about 'right' and 'wrong' between you and the creditor. It is often about 'right' and 'wrong' between creditors as a whole and consumers as a whole.

The sanction of unenforceability for non-compliance with regulations made for the protection of consumers. It is central to consumer credit law.

You must not be made to feel guilty about this. Money lending is massively profitable and often exploits the weak and vulnerable.

Creditors should always adhere to consumer protection regulations.

They know very well that the penalty for not doing so is unenforceability.

Of course they just don't like it when their own regulatory non compliance is pointed out to them.

They often bristle with righeous indignation and accuse you of lying about things just to get out of paying the debt.

But the truth is that they bear the onus of proof. They have the duties to keep the records. If they don't they can't expect you to recall what you have and have not received often over decades.

All they had to do was use a tiny, tiny fraction of the profits made to keep proper records and naother tiny fraction to do proper due diligence on their cases before they bring tghem to ensure they can prove they have complied with the regulations which govern them in lending to consumers.

The picture is bigger than whether you have had money from them and repaid it with all the interest and fees charged.

None of this means that all creditors are unscrupulous. But there are many  who are.

It makes sense to assume they are unscrupulous until they prove the contrary - because that is exactly who they will view you. Welcome to the world of civil litigation!

The only way to keep consumer credit lending safe, unexploitative and to keep borrowers protected, is to insist on proof of full regulatory compliance at all times. Why not?

Regulatory hurdles are part of a creditor's 'cause of action'. I repeat (and expain in more detail opposite) the onus of proof of such complaince rests on the creditor in all claims brought under regulated consumer credit agreements.

So why should they cry 'foul' when you require it, as they so often do?

Please reflect upon what a "cause of action" is until you fully understand the concept.

When you have you have made a transition in your thought process between that of layman and lawyer and it will help you to understand and analyse your own legal position.

 

 

(a) Responding to Letter of Claim and Reply Form under Pre-Action Protocol for Debt Actions.

The pre-action protocol for debt claims

It is 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 wary of.

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. 

Section 4 provides for the “Response by the Debtor”.  BE CAREFUL. Pay heed to the guidance below.

SECTION 1

Until your creditor has proved the debt to your satisfaction you TICK BOX D in section 1.  Do not tick Box A admitting you owe the debt just because you have an outstanding account balance.

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 mercilessly later.

In 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 your responses 

(1)  Is the agreement a regulated consumer credit agreement? If so start by saying so.

(2)  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 researching).

(3)  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.

(4)  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 otherwise.

(5)  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 admission.

(6)  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.

(7)  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, courteous, business-like.

SECTION 2

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 Financial Statement.  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.

SECTION 3

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 representation.

SECTION 4

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 applicable):

·         A copy of the original of the written contract giving rise to the debt (unless it has been supplied already)

·         A copy of the document assigning the debt.

·         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 interest claimed;

·         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.

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(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 always successful.

The Rule dealing with acknowledgement of service is CPR 10 which is supplemented by Practice Direction 10.

Defence

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 claimant's version.

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.

Directions Questionnaire

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 [Form 181].

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 court.

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.

Witness Statement

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 accurate.

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 service.

On receipt of the creditor's witness statements

The next development will be that you will receive from the creditor its witness statement and documents. 

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 trail.  

At Court:

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 claims trial coming up and wanted to see for yourself how a small claims case works beforehand.

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. 

Dress respectfully: 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 court early.

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 into court 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 to speak.

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 reason why.

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 your case.

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 them later.

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 things:

  1. Is it your statement?

  2. Is it true?

  3. Is the signature on it yours?

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.

Being questioned: 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 the point.

Don’t let words be put in your mouth. Let me give you an example. If the creditor relies on an important 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 alleged.

“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.

Submissions: 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 case.  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."

Judgment: 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 trial.

In conclusion:

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 about them. 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 them. 

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. Good Luck.

Never lose heart.

This Page:

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 agreement.

General Guidance for Litigants in Person defending small claims by banks and other financial institutions

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 time. 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 [2002] EWCA Civ 522 Lord Justice Clarke said:

“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 latter.”

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 agreed said:

“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 professional creditor.  ………..

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 enforced.

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 [2003] 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 social problem.”.

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 records?

In Rankine v AMEX and others [2008] 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".  That 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 of great distrust between consumers and financial institutions.

I am not saying every financial institution so behaves. But with some I have seen I do believe it is institutionalised.

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 have been.

Can I really do this for myself?

Yes, 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 to provide.

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 your homework.

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.

Commercial Break

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 over.

Basic principles in defended consumer credit litigation

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.

1.         Creditors must prove the debt by evidence, not just bare assertion.

2.         The onus of proof of a creditor’s entitlement to a debt, and to enforce a debt, rests on them.

3.         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.

4.         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 in it. You don't have to prove that. They have to prove their case.

5.         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 seen before.

6.         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 these regulations.

7.         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?

8.         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.

9.         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. I know 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 for trial.

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 about it.  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 demanded.

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 ahead .  

Internet Forums:

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.

The Internet:

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 Financial 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 permission.

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.

Search here to view the Courts Rules (the Civil Procedure Rules). For small claims look at Rule 27 and the practice direction supporting it.

To find court forms, if you need to make an application, search here.

To get contact or location details about the court, visit the Courts website.

Information gathering:

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.  What is 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 about. 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 ahead.

Why do you get claims from Debt Purchasers?

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 down.

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.  The pre-action protocol for debt claims is meant to change this.  We’ll see!

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 [2009] EWHC 3417 HH 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 significance.

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 assignment.  

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 crime].

Bear in mind these questions for the creditor's witness

Who made these "reconstituted documents" up? No-one says.

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 reconstitution? No-one.

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 course not.

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 prove nothing.

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!

Tel: 0151 236 5415    •    Email: Info@johnpughschambers.co.uk    •    DX 14182 Liverpool