The Realities of Civil Litigation
While we endeavour to assist people in their legal battles, and give them hope that it is possible to succeed in money claims brought by lenders and debt purchasers, we would like to make you aware of some of the realities of litigation in these circumstances.
The Consumer Credit Act is there for the protection of consumers. It dictates that creditors should follow certain regulations and guidelines in order to be able to enforce debts through the court process. A simple example would be that of the section 77/78 request. The Consumer Credit Act states that a creditor may not take enforcement action through the courts whilst in breach of a section 77/78 request for information.
It is therefore reasonable to expect that a creditor would not commence legal action while they are in breach. However, the reality is that they generally issue claims in large numbers (thousands at a time) prior to checking paperwork and documentation. Hence they do frequently issue whilst in breach of section 77/78. We have seen numerous cases where this has happened, and creditors have only provided the requested documentation immediately prior to or even at court itself. The courts will normally accept this as compliant.
Another issue with section 77/78 is that it can be difficult to argue whether documentation is compliant or not. Creditors use cases such as Carey v HSBC to support their assertion that reconstituted documents are acceptable. A true copy does not actually mean a photocopy, but complex arguments are often required to win even this simple point. Default notices are another area of concern. The lack of a compliant default notice should in theory stop a claimant from issuing proceedings, however, claimants will often proceed anyway and worry about the technicalities later or just re-issue a new notice.
Judges in civil courts deal with a wide range of types of cases. Few judges are particularly experienced in consumer credit claims, as this is a very complex area of law. What one judge may say is a legible copy of a document may differ greatly from another judges view of the same document. Another problem here is that creditors may have supplied you with a poor copy of a document but present a clearer copy at court.
The point is that the law is not black and white, as often appears to be the case from some of the information on the internet. Assuming your case has merit, and the legal process has been followed correctly, most cases that make it to court are won or lost by the quality and experience of the counsel or advocate, and the quality of their brief. You can have a perfect case on paper, but if you do not know how to argue the points, and address the counter arguments brought by the creditors counsel, sadly there is no guarantee of success. For every argument, there is a counter argument.