The cases which are lost in Court by litigants in person generally have common themes running through them, i did write a blog article a while ago about this problem but it seems its time to update things a little.
1) The correspondence Many people ignore everything, there is alot of advice on internet forums saying “Just ignore it” or words to that effect. Ask yourself this, what explanation will you give to the Judge if these letters are placed before the Court? what will you do? say you didnt receive them?thats a lie and whats more its a silly move, that is contempt of Court potentially and if found guilty then you can be sent to prison!!. So, why would you ignore a letter? if someone writes to you demanding money you would surely reply? if you dont owe the money being claimed then its better to write back and say that rather than bury head in the sand. If youre disputing the account then thats your perfect time to get the facts of the dispute on paper. If you ignore letters, then find yourself in Court, no matter how good your lawyer is he or she wont be able to change the fact if you havent replied to correspondence then the Court will take a dim view.
2) Use the law, make the relevant complaints etc Many consumers make requests under s77-79 Consumer Credit Act 1974, when the creditor fails to comply they do nothing else. Helpfully the FCA (Financial Conduct Authority) has issued guidance on compliance. In the Handbook at CONC 13.1.6 it sets out the FCAs view on how firms should act. The handbook must be complied with by firms authorised by the FCA. So, a firm when in breach of the handbook should not threaten legal action, it should not mislead the consumer , it should inform the consumer that the agreement is currently unenforceable as a result of the breach etc, the handbook is there for all to read, so read it, if a creditor threatens legal action when it is in breach of s77-79 then report them, and tell them youve reported them too. The FCA have a lot more bite than the old OFT, however the FCA relies on consumers to tell them about creditors failings, no complaints = no action
3)The letter of claim and pre action protocols The rules require a full and frank exchange of documents before court proceedings commence. When a creditor threatens legal proceedings, then that is the time to ask them to clarify their case, such as what documents will they be relying upon in those proceedings, how do they say the credit agreement was terminated? what default and termination notices do they rely on? how do they say the sums claimed have accrued etc. The pre action stage is the time for getting the facts you need and the documents you need to defend yourself in proceedings in my view, if you dont take advantage of this then youre leaving yourself in a weaker position. Plus if the Claimant fails to disclose or answer the questions this makes a perfect exhibit for any discovery application you may make later in proceedings ……”Look Judge i tried to find out what they were on about before they issued the Claim, they ignored me and issued any way, thats a bit naughty isnt it!!!” its difficult to see how a Judge could disagree when presented with that argument alongside an application for disclosure under CPR rule 31.14.
I will keep updating this article as and when i get time free