PRE-ACTION DISCLOSURE:

Mortgage shortfall victims nearly always have problems getting the lender to supply the documents (Valuations, Estimates,Invoices etc.) that the lender will eventually be required to produce in court to substantiate any alleged claim. I have been informed by a friendly legal source that it may be possible for the victim's solicitor to make an application to the court under CPR 31.16 for pre-action disclosure by the lender of these documents. I would imagine of course that this would only be possible where evidence is available of proceedings being likely i.e. A letter from the lender or the lender's agents threatening legal proceedings being commenced within a certain time period if an alleged claim is not settled.

The relevant rule is below:

====== CPR 31.16 ======

(1) This rule applies where an application is made to the court under any Act for disclosure before proceedings have started.

(2) The application must be supported by evidence.

(3) The court may make an order under this rule only where --

(a) the respondent is likely to be a party to subsequent proceedings; (b) the applicant is also likely to be a party to those proceedings; (c) if proceedings had started, the respondent's duty by way of standard disclosure, set out in rule 31.6, would extend to the documents or classes of documents of which the applicant seeks disclosure; and (d) disclosure before proceedings have started is desirable in order to --

(i) dispose fairly of the anticipated proceedings; (ii) assist the dispute to be resolved without proceedings; or (iii) save costs.

(4) An order under this rule must --

(a) specify the documents or the classes of documents which the respondent must disclose; and (b) require him, when making disclosure, to specify any of those documents --

(i) which are no longer in his control; or (ii) in respect of which he claims a right or duty to withhold inspection.

(5) Such an order may --

(a) require the respondent to indicate what has happened to any documents which are no longer in his control; and (b) specify the time and place for disclosure and inspection.

-- Tony Hayter (Tony@Hayter.com), December 19, 2000

Answers

Here's an interesting snippet for you, Tony. I think it relates to the above(sort-of), and I believe that it gives an insight into how a solicitor's mind works......

When I was due to make 2 court appearances courtesy of the Bradford and Bingley, copies of the documentation to be used by their solicitors arrived on the day before the hearings. The solicitors - Wright Hassall(I kid you not!) of Leamington Spa - then seemed to make a point of asking me on the day if I had received the documents.

Is it just me, or do you think that the delivery of these documents was timed deliberately to cause me the most disruption/upset possible? Do all solictors behave like this?

Best wishes, Catherine.

-- Catherine Adams (catherine@olias.co.uk), December 19, 2000.

I would have thought that under the new CPR the court would have questioned the late disclosure of documents as not contributing to the "level playing field" conditions because I believe that it was only of advantage of the claimant.

Tactics by claimants such as this should be a thing of the past under the new CPR. Another tactic we should see the end of is "snowing". This is a ploy where important documents disclosed by a claimant are surrounded by such a large quantity of other documents that the task of reading them all causes the defendant to miss a critical document or to not recognise its significance to his/her case.

In my opinion the new CPR should be utilised by all Mortgage Shortfall Victims to achieve the justice they deserve.

-- Tony Hayter (Tony@Hayter.com), December 19, 2000.

I reckon most of them do it on purpose, I think it takes a special kind of sadist to be a solicitor - especially in litigation matters!

Unfortunately, what most people don't realise, is that if papers you have asked for from the other side don't arrive in time, you can ask for an adjournment when you get to court, to consider your position. Its not guaranteed you'll get it, but if you don't ask you won't know.

This happened to me on another matter, I didn't get information from the other side until the morning before the hearing and I was in a right state, so I just calmly told the judge that I didn't think it was fair that I'd been given just a few hours to read through all the paperwork. The other side got a rollicking and the case adjourned for a month. I still lost my case though :(

-- pendle (pendle@amun-ra.demon.co.uk), December 19, 2000.

I just spoke to my local county court regarding discovery and getting sight of the MIG.

The court suggested that if I wanted sight of a particular document, then I should make a polite request to the other side, stating that the document would have to be supplied during discovery anyway, and its far better to get this over with now.

If the docs weren't supplied, to submit my defence with a covering letter stating that I had requested sight of the MIG but this was refused. Its possible that the judge might make an order then for the MIG to be supplied, but this isn't guaranteed.

Once the defence is made, and the hearing date set, directions are given by the judge - which includes the discovery procedure. If the docs still aren't supplied, then I could ask the judge to make an order that the lender supply them.

All sounds very simple, but it may be for some that getting a look at the MIG documents especially might not happen until the lenders are forced to by the court.

-- pendle (pendle@amun-ra.demon.co.uk), December 19, 2000.

This kind of answers a question I have had in my mind for a while, which is why, in some cases, has a particular lender (no prizes for guessing which) specifically *not* threatened court action to some shortfall victims, merely pressed for a settlement as an 'amicable' solution, and ignored requests for evidence and proof of the claim.

Is it possibly to steer clear of CPR pre-action disclosure? Which makes me think that the documents being sought - all the stuff suggested by this site (deed, MIG, valuations etc) - *are* important in and of themselves, rather than simply being some bits of paper the lender can't be arsed to retrieve from the warehouse and supply.

It's a thought, certainly.

-- Eleanor Scott (eleanor.scott@btinternet.com), January 03, 2001.