Original and best: Advancing a claim without the primary document

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29 June 2021

What happens if you want to bring a claim, but you no longer have the original version of the key document you need to support your case?

This is a point which the Court of Appeal was asked to consider in the case of Goodison v PRA Group (UK) Limited.

Background

The appellant, G, had entered into a credit card agreement with MBNA International Bank Limited (MBNA).  That agreement was regulated by the Consumer Credit Act (CCA). G had defaulted on the terms of the agreement. As the agreement was a regulated agreement, MBNA was required to serve a default notice in compliance with section 87 (1) of the CCA before it could terminate the agreement.  MBNA served the default notice and then, according to the respondent, PRA Group UK Limited (PRA), MBNA assigned the debt to PRA. 

PRA advanced a claim for £18,415.66 and interest in the County Court.

First instance decision

PRA was unable to produce the original default notice in support of its claim and, instead, relied on a reconstituted notice which had been printed from MBNA’s electronic systems. However, that notice differed from the original notice.  PRA later said in witness evidence that this was because of electronic settings which had been automatically updated since the original notice had been created.

At a preliminary hearing, the District Judge was asked to determine whether MBNA had served a valid default notice.  Witness evidence was not available at that hearing but the District Judge had been presented with MBNA’s account notes.  With reference to the content of those note, the District Judge found that “on the balance of probabilities” a default notice complying with section 87 of the CCA had been served on G.

Appeal to High Court

G appealed the District Judge’s decision, but the appeal was rejected.  The High Court Judge stated that the District Judge was entitled to “draw an inference” that the default notice was “on the balance of probabilities” compliant with the CCA based on the evidence which was available at the preliminary hearing.

The court noted that not all judges would have made the same inference as the District Judge, but that that is not the relevant test. The test is whether the inference was, in all the circumstances, within the ambit within which reasonable disagreement is possible

The Court of Appeal

In its judgment, the Court of Appeal noted that it used to be the case that a party in possession or control of an original document, would not be allowed to produce secondary evidence about the contents of that original document in the form of a copy in court proceedings. However, this principle, which was known “the best evidence role” is no longer relevant to civil proceedings.

For instance, section 8 of the Civil Evidence Act 1995 provides that a party may produce secondary evidence of a statement contained in the document “whether or not that document is still in existence”.   The key question for the court is what weight should be placed on the secondary evidence.

The Court of Appeal was satisfied that the District Judge had identified the correct primary issue, which was whether the evidence was sufficient to establish that MBNA had produced a default notice which complied with the terms of the CCA. The District Judge had approached this issue in a rational manner and he did not make any error of principle.

The Court also held that it would be wrong to lay down that the creditor under a regulated agreement could only prove, on the balance of probabilities, that the default notice was compliant, if the creditor had the original notice. If that were the case, it would mean that the debtor would escape liability in every case where the default notice was not available, regardless of how good the explanation for the missing notice was, or how compelling the secondary evidence was.

However, the Court of Appeal also made clear that it was not the case that the court should always find that it is acceptable for creditors to rely on secondary evidence noting that, “District Judges who deal with cases of this kind every day in courts across the land, will demonstrate a healthy common-sense approach to the specific evidence adduced by the party bearing the burden of proof, and the inferences that can be properly drawn in all the circumstances of the particular case.”

The appeal was dismissed

Comment

In the age of digital documents, parties to litigation are less likely to hold “carbon” paper copies of original documents. In this case, the later reprint of an electronic copy of the default notice, included digitised and automated changes.

In our day to day lives, we do not make day to day decisions based on how things might later be viewed by a judge in a court but, for organisations dealing with matters relating to consumer contracts, it would be wise to restrict automated changes to electronic copies of key documents.

As this case demonstrates, if there is compelling secondary evidence, the fact that the primary evidence is no longer available will not necessarily be fatal.

© Melissa Worth, June 2021

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