In Goodinson v PRA Group (UK) Ltd  EWCA Civ 957 the Court of Appeal has upheld the decisions of DDJ Simpson at first instance, and HHJ Melissa Clarke on appeal, that secondary evidence can be a sufficient basis for the finding of fact that a default notice, which is compliant with the requirements of the Consumer Credit Act 1974 (‘CCA’), was created and sent to the debtor. The creditor was not in possession of the original, but had adduced secondary evidence to demonstrate that a default notice was created, and what its contents would have been at the time it was produced.
The debtor’s argument on appeal was that only a copy of the original default notice was sufficient to discharge the evidential burden which lies with the creditor. The Court held that the debtor had contended for the imposition of a rule that was, “contrary to authority, insupportable in principle, hard to apply, and calculated to generate unjust results.”
The Respondent creditor was an assignee of the original debt from MBNA International Bank Ltd (‘MBNA’). Its case was that the debt had been validly assigned, and that prior to assignment, MBNA had generated and served a compliant default notice on the debtor on 3 December 2012 – i.e. a notice which complied with the requirements under ss87 and 88 of the CCA.
At trial, the debtor’s representatives relied on four categories of MBNA document: (i) credit card statements, (ii) correspondence, (iii) customer information system log, and (iv) archived comment log. This last document was identified in the records as showing “additional comments which have been archived from the main account notes”, that is to say the customer information system log.
The trial judge found as fact that the entry in the comment log on 3 December 2012 was the source of the information that then appeared in the default notice itself.
In a dramatic shift in position which did not go unnoticed by the Court of Appeal, the debtor’s representatives then attempted to argue on appeal that reliance ought not to have been placed upon the archived comment records of MBNA. The Court rejected this argument without hesitation.
Warby LJ, with whom Bean LJ and Laing LJ agreed, delivered the judgment of the Court. The Judge held that to apply such a strict level of scrutiny would yield injustice to creditors. He posed hypothetical examples by way of illustrating this point, stating at :
“A claim advanced without production of the original notice would fail, where (for example) the creditor is an assignee which is able to establish that it does not and never did have the original, but has compelling evidence that the document was created and served, in full compliance with every one of the statutory requirements. The debtor would escape in every case where the original was not produced, however good the explanation for failure to produce it, and however compelling the secondary evidence.”
The Court cited with approval the judgment of Jonathan Parker LJ in Masquerade Music Ltd v Springsteen  EWCA Civ 563,  EMLR 25. The best evidence rule no longer exists in English law. At , Lord Justice Warby concluded:
“No doubt 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 properly be drawn in all the circumstances of the particular case.”
*Since publication, the Appellant (Debtor) has made an application for permission to appeal to the Supreme Court. 09/8/21*