Discovery is a way of forcing someone who is suing you to give you copies of the documents they think will prove their case. In our experience, lenders rarely have as clear-cut a case as they make out, so asking them to produce documents puts them in a difficult position.
You can trigger discovery at two points - both after the court has served a summons on you. To do this successfully, you should have responded to everyone of the lender's threats with a letter asking for documentary proof of the alleged debt, including mortgage deeds, mortgage terms and conditions and mortgage indemnity guarantee. How to do this is well explained on the rest of this site.
A reader who had not yet received a summons posted this email after doing some research into discovery herself:
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.
The three important points in this email are:
Another reader got a slightly different story when they asked their solicitor about how to start discovery. Their solicitor said they could ask a judge to issue the lender with a section 31.16 order even if the lender had not already got the court to issue a summons against the borrower.
Here's what the reader said:
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.
Lawyers - and this includes lawyers acting for lenders - use several tricks to try to get around the discovery rules. A common trick abuses the fact that the documents are supposed to be put in the post on a certain day. Amazingly, many such documents get lost in the post, almost as though they were never put in the post in the first place. Another trick is to bombard you with every piece of paper that could possibly relate to your account. The idea is that there is too much stuff to wade through. A variant is to deliver the documents late, usually the day before or the day of the court hearing. This leaves you with too little time to examine the documents.
Here's what readers have got to say about this:
Tony Hayter (Tony@Hayter.com) added a message to the Repossession bboard:
Subject: Response to Forcing A Lender To Supply Documents
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.
And another reader responded to this post with their own tale.
Subject: Response to Forcing A Lender To Supply Documents
Catherine Adams (catherine@olias.co.uk) added a message to the Repossession bboard: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?
Where does all this get you?
Well, it explains why lenders rarely bother to take you to court. If they did apply to court to have you summonsed, they would be locking themselves into this discovery procedure. We've dealt elsewhere on this site with why lenders do not want to hand over documents, whether it is because you asked for them or as part of court-ordered discovery.
Discovery is now called disclosure. You can find plenty more information about it at: http://www.law.warwick.ac.uk/Woolf/rules/rules6.html#27.1
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