Cabot Newday 33 Point

The RESULT - CLAIM DISCONTINUED

Witness Statement on behalf of: Claimant Name of Deponent: JK Statement No: 1 Exhibits: 1 "(JK1)" Date: 01 September 2022

IN THE County Court at Northampton

CLAIM NO: 1234567890

BETWEEN:

Cabot Financial (UK) Limited

CLAIMANT

and

[DEFENDANTS NAME]

DEFENDANT

WITNESS STATEMENT

I, JULIAN KENT, am employed by Cabot Financial (Europe) Limited ("Cabot Financial (Europe)"), 16-22 Grafton Road, Worthing, West Sussex, BN11 1QP, will say as follows:

1. I am employed by Cabot Financial (Europe) as a Senior Operations Manager, Litigation and External Services. Cabot Financial (UK) Limited, the Claimant, in these proceedings and Cabot Financial (Europe) are companies within the Cabot Group of Companies. The Claimant has appointed Cabot Financial (Europe) as the primary managing agent and servicer of the account held by the Defendant and Cabot Financial (Europe) continues to manage and service that account in that capacity.

2. I make this Witness Statement from my own knowledge, from my review of documentation and from my discussion with colleagues within Cabot Financial (UK) Limited. I also exhibit documents provided to Cabot Financial (UK) Limited by NewDay Ltd Re: Marbles ('NewDay'). I shall identify these documents as being provided by NewDay where applicable.

3. In this statement I will refer to various documents, true copies of which are contained in the paginated bundle exhibited to this statement marked "JK1".

4. I make this statement on behalf of the Claimant in opposition to the Defendant's Defence dated 26 March 2022. I do not believe the Defence has any reasonable prospects of success.

5. I also make this statement in accordance with the Order made by Deputy District Judge Calnan sitting in the County Court at Northampton on the 27 July 2022 (Drawn 3 August 2022).

BACKGROUND OF THE CLAIM

6. The Claim is for £996.08, which is the outstanding balance under a Credit Agreement ('the Agreement') (running account) granted by NewDay, the credit provider, to the Defendant.

7. The Defendant did apply online via a credit intermediary, namely MoneySupermarket, for a Credit Card on the 24 June 2016.

8. The Agreement was granted and executed to the Defendant on or around the 29 June 2016 and NewDay issued a Marbles Mastercard Credit Card to the Defendant, together with a Personal Identification Number ("PIN") and numbered 5193 4510 0111 4538. The Agreement was regulated by the Consumer Credit Act 1974 ('the CCA').

9. A copy of the Agreement dated 24 June 2016 between the Defendant and NewDay, and provided by NewDay, is contained in the paginated bundle at pages 1 to 5 bearing the Defendant's electronic signature and address of [DEFEENDANT'S ADDRESS]. This is the address given by the Defendant at the time of applying Marbles Mastercard Credit Card.

Electronic Signatures

10.I am informed by the Claimant's Solicitors, Mortimer Clarke Solicitors ('Mortimer Clarke'), that the Electronic Communications Act 2000 that came into force in the UK in July 2000 allows contracts to be concluded by electronic means. This, I understand, means that a person can validly 'sign' a document without the need for a 'wet ink' signature.

11. It is, therefore, the Claimant's position that the agreement that forms the subject matter of these proceedings was signed by electronic means. The Claimant would rely on the court's findings in the High Court matter of Bassano v Toft and Others [2014] EWHC 377 (QB) (26 February 2014). In this case Popplewell 3 held that:

"There is therefore nothing in the CCA to suggest that regulated agreements should not be capable of electronic signature; and I can see no reasons of policy why a signature should not be capable of being affixed and communicated electronically to an agreement regulated by the act."

The Court further found that:

"Providing it is the space in the document indicated for the purpose, "Accept" can therefore constitute a valid signature because the word "I" can be treated of the person agreeing to be bound by the terms of the document."

12. There are monthly Credit Card Statements for the Agreement covering the period 21 August 2016 until 19 June 2017 inclusive (copies can be found at pages 6 to 33), provided by NewDay. These Statements record (amongst other things);

i) The Marbles Mastercard Credit Card Account Number calta 4538;
ii) A credit Limit of £900.00;
iii) Spending on the account;
iv) Payments made to the account; v) Interest and charges applied to the account;
vi) The Defendant's failure to maintain payments in accordance with the Credit Card Agreement;
vii) The last contractual payment of £44.60 on 14 November 2016;
viii) The last token payment made towards the account was £5.00 on 19 June 2017; and
ix) The Closing Balance on the account as of 19 June 2017 was £1,011.08. Upon closure of the account, the account was transferred to NewDay Ltd's Debt Recovery Department.

NOTICES OF DEFAULT SUMS

13.1 am informed by the Claimant's legal representatives that in accordance with the Consumer Credit Act 1974 Notices of Default Sums were issued by NewDay on the 19 October 2016 (a copy can be found at pages 11 to 12), 20 November 2016 (a copy can be found at pages 14 to 15), 19 December 2016 (a copy can be found at pages 16 to 17), 19 January 2017, (a copy can be found at pages 19 to 20), and 19 February 2017, (a copy can be found at page 23 to 24).

14. I am also informed by the Claimant's legal representatives as this was a running account, Notice of Default Sums can be incorporated in a credit card statement in accordance with section 86E of the CCA.

NOTICES OF SUMS IN ARREARS

15. I am informed by the Claimant's legal representatives that in accordance with the Consumer Credit Act 1974 Notices of Sums in Arrears ('NOSIAs') were issued by NewDay on the 13 January 2017 (a copy can be found at page 21), 16 March 2017 (a copy can be found at page 26), and 15 May 2017 (a copy can be found at page 31).

16. I am also informed by the Claimant's legal representatives as this was a running account, NOSIAs can be incorporated in a credit card statement in accordance with section 86C of the CCA.

DEFAULT NOTICE

17.A Default Notice was sent to the Defendant on the 3 February 2017 by NewDay in accordance with Section 87 (i) of the Consumer Credit Act 1974 requesting that the arrears of £94.70 be paid by the 24 February 2017. The Claimant has been informed that the Default Notice was sent to the Defendant at his current address being [DEFENDANT'S ADDRESS] This is the address that NewDay held at the time.

18.A copy of the Default Notice sent to the Defendant on 3 February 2017 is at pages 34 to 36.

TERMINATION

19. The Agreement was subsequently terminated by NewDay by way of letter on the 21 March 2017 due to non-payment, the last contractual payment of £44.60 being received on the 14 November 2016. Upon termination of the Agreement the Defendant became liable to pay forthwith the full debt outstanding under the Agreement, being the outstanding sum plus interest and charges. The Defendant failed to pay the amount due.

20.It is worthy to note that in the Default Notice dated 3 February 2017, NewDay did give to the Defendant notice that if he did not pay the arrears of £94.70 by the 24 February 2017, NewDay will terminate the Credit Card Agreement.

21.A copy of the Termination Notice sent to the Defendant on 21 March 2017 is at page 37.

NOTICE OF ASSIGNMENT

22. 0n or around the 27 June 2017 NewDay Ltd assigned to the Claimant, absolutely, all amounts due from the Defendant to NewDay Ltd pursuant to the Agreement. The Defendant was provided with notice of the said assignment by the Alleged Assignor on 6 July 2017, to his last known address of [DEFENDANT'S ADDRESS]. It is disputed that the Defendant was also provided with a Notice of Assignment by the Claimant on July 2017 at his last known address of [DEFENDANT'S ADDRESS]. A copy of the Notice of Assignment is contained in the paginated bundle at pages 38 to 41.

23. Following the service of the Notices of Assignment, the Claimant sent further letters to the Defendant. These letters can be found at pages 42 to 62. Notification of the assignment of the account from NewDay Ltd was repeated by this subsequent correspondence, which all confirm the account details and the outstanding balance. The subsequent correspondence clearly advised the Defendant of the outstanding balance and his obligation to repay it. Its purpose was to invite the Defendant to make contact with the Claimant in order to explore the possibility of agreeing a concessionary repayment plan.

24. I can see that the letters were sent to the Defendant at his last known address of [DEFENDANT'S ADDRESS] and none were returned undelivered to the Claimant. Again letter were setn to the Defendant [OTHER ADDRESS?} and once again, none returned to the Claimant.

25. As a result of no contact or payment from the Defendant, the Claimant instructed Mortimer Clarke to commence legal proceedings against the Defendant. The Claimant understands that Mortimer Clarke wrote to the Defendant on 18 February 2022 to give notice of its instructions to issue a Claim. A copy of this letter can be found in the attached bundle at pages 63 to 68.

26. On 23 March 2022 County Court proceedings were issued electronically against the Defendant at the County Court Business Centre. MCS' file copy of the claim form is enclosed at page 69. The claim form was served by the Court and MCS was electronically notified that it was deemed served on 29 March 2022.

The Defendant's Defence dated 26 March 2022

27. In the Defendant's Defence dated 26 March 2022 the Defendant raises numerous points in his defence; it is long and of a template nature, with many points being repeated or being irrelevant to the details of this claim. However, it primarily revolves around the provision of documentation and putting the Claimant to strict proof of the debt. In short, he says (amongst other things):

i) The Particulars of Claim are lacking in detail and fail to set out the basis on which the claim is made.
ii) He was never served with a Default Notice;
iii) He never received a Termination Notice.
iv) He disputes that the Credit Card Agreement has been legally assigned to the Claimant.
v) He was never served with a Notice of Assignment. vi) He says that the Claimant has not complied with the Pre-Action Conduct Protocol. vii) He alleges that the Claimant is not authorised by the Financial Conduct Authority.

The Claimant's position

28. The Claimant's position is that the Defendant does not have a valid Defence to these proceedings for the reasons set out in paragraphs 6 to 26 above and in the Claimant's Reply to Defence dated 18 May 2022 found at pages 70 to 144 of the bundle.

29. Furthermore, the Defendant has received the documentation on the 18 May 2022 in response to his Part 18 Request and in the Claimant's Reply to Defence dated 18 May 2022 (pages 70 to 144). The documentation provided within this witness statement and to the Defendant, evidence that the Defendant entered into the Agreement, benefited from the credit provided and failed to maintain payments in accordance with the Agreement. The Claimant's position is that the Defendant is liable for the outstanding balance.

30. In addition to the Claimant's response to the Defendant's allegations around the Claimant's authorisation with the Financial Conduct Authority, the Claimant would further comment that the MSA defines an Account as a consumer credit agreement, or other similar account purchased by or on behalf of, or transferred to, the SPV, whether regulated by the Consumer Credit Act 1974 or not, and in respect of which CCM provides or causes to be provided the Services under the MSA. The Claimant made arrangements with CCM for the latter to exercise the Claimant's rights under various acquired debts, including the Defendant's Credit Card Agreement. The MSA provides that CCM can subcontract to an appointed representative or certain third parties any of the services "except for the exercising, or having the right to exercise, the lender's rights and duties under an Account".

31. I understand that the regulatory position shall be fully addressed by the Claimant's legal representatives if required. For the avoidance of doubt, the Claimant does not undertake debt-adjusting, debt-counselling or debt-collection itself, as it delegates any of these activities that need to be performed to other companies within its Group. The Claimant arranged for CCM to comply with any regulatory requirements.

In Summary

32. It is clear that the Defendant has no real prospect of successfully defending the Claim and there is no other reason why the case should be disposed of at trial.

Conclusion

33. For the reasons set out above, I invite this Honourable Court to strike out the Defendant's Defence dated 26 March 2022 and grant the Claimant Judgment in favour of the Claimant in the following sum payable by monthly instalments of £50.00 or such monthly figure as this Honourable Court thinks fit:

Principal Sum claimed : £ 996.08

Court Fees : £ 70.00

Fixed Solicitors Costs : E 70.00

Hearing Fee : £ 85.00

Our agent's costs for attendance : £ 240.00 (including VAT)

£1.461.08

STATEMENT OF TRUTH

I believe that the facts stated in this witness statement are true. I understand that proceedings for contempt of court may be brought against anyone who makes, or causes to be made, a false statement in a document verified by a statement of truth without an honest belief in its truth.

Signed Dated: 01 September 2022

Julian Kent

Ref: MC/MT/34231314

Witness Statement of: Defendant Name of Deponent: [DEFENDANT'S NAME] Statement No: 1 Exhibits: 1 "(AS1)" Date: 05 September 2022

IN THE County Court at Northampton

CLAIM NO: 1234567890

BETWEEN:

Cabot Financial (UK) Limited

CLAIMANT

and

[DEFENDANTS NAME]

DEFENDANT

WITNESS STATEMENT

I, [DEFENDANTS NAME], of [DEFENDANTS ADDRESS], will say as follows:

INTRODUCTION

1. I am the defendant in this case. The contents of this statement are true to the best of my knowledge, information and belief. I make this witness statement in response to the filing of a Witness Statement by Julian Kent (the ‘Alleged Witness’) on 1st September 2022.

The Alleged Witness states in his statement that his is employed by Cabot Financial (Europe) as a Senior Operations Manager. Cabot Financial (UK) Limited, the Claimant, in these proceedings and Cabot Financial (Europe) are companies within the Cabot Group of Companies. The

Claimant has appointed Cabot Financial (Europe) as the primary managing agent and servicer of the account held by the Defendant and Cabot Financial (Europe) continues to manage and service that account in that capacity.

The Defendant draws the Courts attention to the fact that the Claimant is not registered with the Financial Conduct Authority. The Defendant avers that the Claimant is in breach of Financial Services and Markets Act 2000, as a general principle of law that the Claimant, a debt purchaser, is not able to rely on the FCA authorisation of an affiliated 3rd party ( paragraph 55 of the Schedule to the Financial Services and Markets Act 2000 (Exemption) Order 2001) for the purpose of bringing a claim.

Also: (Arrow Global Guernsey Limited v Watson (County Court at Blackpool) [2019]) - Particulars of Claim struck out as Claimant was not registered with the FCA to issue a claim in the County Court.

2. Unless it is indicated to the contrary, all the facts and matters in this statement are true and to the best of my knowledge and belief.

It is disputed that the Alleged Witness bases any of his statement on actual fact witnesses and the Defendant avers that her entire statement is based on hearsay evidence from the computer system of the Claimant and the computer system of Newday Ltd (the ‘Alleged Assignor’).

The failure of such systems have been brought to light by the recent case where sub- postmasters were acquitted of Fraud after false convictions based solely on the data from a computer system that generated erroneous data:

https://www.computerweekly.com/news/252475611/Subpostmasters-proved-right-on-IT-system-failures-as-calls-for-full-public-inquiry-mount

The Defendant avers that the Claimant must serve notice to any hearsay evidence pursuant to CPR 33.2(1)(B) (notice of intention to rely on hearsay evidence) and Section 2 (1) (A) of the Civil Evidence Act ('No Notice Served'). The Defendant avers that no such notice has been served and respectfully asks the court to dismiss the Claimants claim which is entirely based on hearsay evidence.

3. Within this statement I refer to various documents, these are now produced in bundle marked (‘RS1’).

4. It is disputed that the Alleged Witness who makes his statement on behalf of the Claimant in opposition to the Defendant's Defence dated 26 March 2022 is in any position to not believe the Defence has any reasonable prospects of success. To the Contrary the Defendant avers that as bulk purchaser of delinquent accounts the Claimant and their Alleged Witness are well aware that they have no Legal Standing ('Locus Standi') to issue a Claim for a contract they were nor a party to:

See: Dunlop Pneumatic Tyre Co Ltd v Selfridge Ltd [1915] AC 847 - The Lords agree fundamentally with the decision of the Court of Appeal; there was no contract between Dunlop and Selfridge and therefore Dunlop cannot sue.

5. The Defendant also makes this statement in accordance with the Order made by Deputy District Judge Calnan sitting in the County Court at Northampton on the 27 July 2022 (Drawn 3 August 2022).

BACKGROUND OF THE CLAIM

6. It is disputed that the Claimant is entitled or has any Locus Standi to claim £996.08, which the Claimant claims is an outstanding balance under a Credit Agreement ('the Void Agreement') (running account) which the Claimant claims was granted by the Alleged Assignor, the alleged credit provider, to the Defendant.

The Defendant avers that the Void Agreement was entered into as a result of irresponsible lending practices and in breach of Section 138D of the Financial Services and Markets Act 2000 and CONC 5.2A of the the Consumer Credit Sourcebook, in respect of irresponsible lending which is currently the subject of a formal investigation by the Financial Ombudsman, see exhibit ('AS1') Page 1.

It is disputed that the Claimant has any Legal right to conduct matters in relation to Consumer Credit Agreements without proper authorisation from the Financial Conduct Authority. The Defendant draws the Courts attention to exhibit (‘AS1’) page 2 which is a printout of the Financial Conduct Authorities list of registered companies with the title ‘CABOT’. The Defendant draws the Courts attention to the Fact that the Claimant’s company is not listed.

It is disputed that the claimant can rely on paragraph 55 of the Schedule to the Financial Services and Markets Act 2000 (Exemption) Order 2001) for the purpose of bringing a claim due to the constraints of the Financial Services and Markets Act 2000 (as amended) S. 26A (4).

Financial Services and Markets Act 200026A Agreements relating to credit(4) If the administration of an agreement involves the carrying on of a credit-related regulated activity, the agreement may not be enforced by a person for the time being exercising the rights of the lender under the agreement unless that person[F2(a)] has permission, given under Part 4A or resulting from any other provision of this Act, in relation to that activity[F3(b) is an appointed representative in relation to that activity,(c) is an exempt person in relation to that activity, or(d) is a person to whom, as a result of Part 20, the general prohibition does not apply in relation to that activity].

7. It is not disputed the the Defendant applied online via a credit intermediary, namely MoneySupermarket, for a Credit Card on the 24 June 2016. The Defendant avers that the advertisment on the internet offered and easy solution to the Defendant's financial problems without fully disclosing the terms, conditions or amount that the Defendant would be required to pay back. The Defendant avers that the terms were both hidden and unfair terms.

8. It is not disputed that the Void Agreement was granted and executed to the Defendant on or around the 29 June 2016 and the Alleged Assignor issued a Marbles Mastercard Credit Card to the Defendant, together with a Personal Identification Number ("PIN") and numbered 5193 4510 0111 4538. It is not disputed that he Agreement was regulated by the Consumer Credit Act 1974 ('the CCA'). The Defendant avers that the Void Agreement was entered into as a result of irresponsible lending practices and in breach of Section 138D of the Financial Services and Markets Act 2000 and CONC 5.2A of the the Consumer Credit Sourcebook, in respect of irresponsible lending and was Void from the outset:

See: https://www.bechbruun.com/en/news/2020/danish-consumer-ombudsman-finds-66-loan-agreements-to-be-unfair-and-void

9. It is disputed that the document exhibited by the Claimant at pages 1 to 5 of their paginated bundle is a copy of the Void Agreement dated 24 June 2016 between the Defendant and Alleged Assignor, and provided by the Alleged Assignor. It is disputed that the document bears the Defendant's electronic signature. It is not disputed that the document bears the address of [DEFEENDANT'S ADDRESS]. It is not disputed that his is the address given by the Defendant at the time of applying Marbles Mastercard Credit Card. The Defendant avers that the Void Agreement was entered into as a result of irresponsible lending practices and in breach of Section 138D of the Financial Services and Markets Act 2000 and CONC 5.2A of the the Consumer Credit Sourcebook, in respect of irresponsible lending and was Void from the outset:

Electronic Signatures

10. It is disputed that the hearsay information provided by Claimant's Solicitors to the Alleged Witness is accurate. It is disputed that the Electronic Communications Act 2000 that came into force in the UK in July 2000 allows contracts to be concluded by electronic means. It is dispute that this means that a person can validly 'sign' a document without the need for a 'wet ink' signature.

The Defendant avers that Electronic Communications Act 2000 gave the Home Office the power to create a registration regime for encryption services and does not simply allow an agreement regulated under the Consumer Credit Act not to contain any signature whatsoever.

The Defendant avers that the Claimant is attempting to rely on a what the Claimant claims is a electronic signature that would fall into the category of a simple electronic signature that gives no evidence of who originated the or means of verifying the origin of the signature:

Electronic Communications Act 2000

7 Electronic signatures and related certificates.

(3) For the purposes of this section an electronic signature incorporated into or associated with a particular electronic communication or particular electronic data is certified by any person if that person (whether before or after the making of the communication) has made a statement confirming that—

(a) the signature,

(b) a means of producing, communicating or verifying the signature, or

(c) a procedure applied to the signature,

is (either alone or in combination with other factors) a valid means of [F2signing].

The Defendant avers that the government's 2018 consultation paper gives a helpful summary of the main methods of signing electronically. These divide into:

those where the person signing does something which gives the appearance of a signature in something like one of the forms accepted by the courts in pre-internet case law, but on an electronic document on a screen, and
the use of more sophisticated digital techniques such as public and private key infrastructures.

The Defendant avers that the alleged signature relied on provides no means of verifying the person who created it and cannot be verified like a normal hand written signature or a valid DIGITAL signature.

11. It is disputed that the Void Agreement that forms the subject matter of these proceedings was signed by electronic means (the'Alleged Signature'). It is disputed that the Claimant can rely on the court's findings in the High Court matter of Bassano v Toft and Others [2014] EWHC 377 (QB) (26 February 2014). In this case Popplewell 3 held that:

The Court further found that:

The Defendant avers that the Bassano v Toft and Others electronic signature differs from that of the alleged signature relied on by the Claimant. Regulations prescribed that the signature had to be in “the space in the document indicated for that purpose”. This was a separate requirement of form. The ‘I Accept’ button appeared in the designated space, but Mrs Bassano’s name was on the previous page. The judge held that the location requirement was satisfied. The words ‘I accept’ were in the correct place. The word ‘I’ could be treated as Mrs Bassano’s mark affixed for the purposes of authenticating and agreeing to be bound by the terms of the agreement.

The Defendant avers that the Alleged Signature relied on is not a signature at all and does not meet any of the standards applied in the Bassano v Toft and Others case as the Alleged Signature fails to identify either the Defendant or the intention to be bound by any agreement in the form of "I agree' as found in the Bassano v Toft and Others case.

The Defendant avers that the Electronic Identification, Authentication and Trust Services Regulation (EU) No. 910/2014 (‘eIDAS’) distinguishes electronic signatures generally from:

(i) ‘advanced electronic signatures’ and

(ii) ‘qualified electronic signatures’,

and provides that qualified electronic signatures shall have the equivalent legal effect of a handwritten signature (Article 25).

Definitions:

‘Advanced electronic signatures’ are electronic signatures which meet the following requirements (Article 26):

(a) Uniquely linked to the signatory.

(b) Capable of identifying the signatory.

(d) Linked to the data signed in such a way that any subsequent change is

detectable.

‘Qualified electronic signatures’ are advanced electronic signatures (see above) which meet the following additional requirements (Article 3(12)):

Created by a qualified electronic signature creation device.

Based on a qualified certificate for electronic signatures.

The Defendant avers that the alleged signature is not an advanced or qualified electronic signature and should not be treated as a hand written signature as required under Section 61 of the Consumer Credit Act.

12. It is disputed that the documents exhibited by the Claimant (at pages 6 to 33 of their paginated bundle) are monthly Credit Card Statements for the Void Agreement covering the period 21 August 2016 until 19 June 2017 provide by the Alleged Assignor. The Defendant avers that no weight should be given to the documents exhibited by the Claimant as they are merely computer generated and basing their Claim on such printouts, the Claimant is entirely reliant on hearsay.

It is disputed that these Statements record (amongst other things);

i) The Marbles Mastercard Credit Card Account Number ???????????? 4538 is disputed;
ii) A credit Limit of £900.00 is disputed;
iii) Spending on the account is disputed;
iv) Payments made to the account; v) Interest and charges applied to the account is disputed;
vi) The Defendant's failure to maintain payments in accordance with the Credit Card Agreement is disputed;
vii) The last contractual payment of £44.60 on 14 November 2016 is disputed;
viii) The last token payment made towards the account was £5.00 on 19 June 2017 is disputed; and
ix) The Closing Balance on the account as of 19 June 2017 was £1,011.08. Upon closure of the account, the account was transferred to the Alleged Assignor's Debt Recovery Department is disputed.

The Defendant avers that the Claimant must serve notice to any hearsay evidence pursuant to CPR 33.2(1)(B) (notice of intention to rely on hearsay evidence) and Section 2 (1) (A) of the Civil Evidence Act and no such notice has been served. The Defendant respectfully asks the court to dismiss the Claimants claim which is entirely based on hearsay evidence.

NOTICES OF DEFAULT SUMS

13. It is disputed that the the Alleged Witness can rely on hearsay information which the claim they have been informed by the Claimant's legal representatives. It is disputed that in accordance with the Consumer Credit Act 1974 Notices of Default Sums were issued by the Alleged Assignor on the 19 October 2016 (it is disputed that a copy can be found at pages 11 to 12), 20 November 2016 (it is disputed that a copy can be found at pages 14 to 15), 19 December 2016 ( it is disputed that a copy can be found at pages 16 to 17), 19 January 2017, (it is disputed that a copy can be found at pages 19 to 20), and 19 February 2017, (it is disputed that a copy can be found at page 23 to 24).

It is disputed that the Alleged Witness has any knowledge of the any of the documents being sent to the Defendant as is entirely reliant on the hearsay of third parties who should be called as witnesses if they wish to introduce their first hand knowledge of any the events in question that they claim to have witnessed.

14. It is disputed that the Alleged Witness is also informed by the Claimant's legal representatives, as this was a running account, Notice of Default Sums can be incorporated in a credit card statement in accordance with section 86E of the CCA. The Defendant avers that if they wish to rely on the statements made from the Alleged Assignor's legal representatives, they should provide written evidence to the fact and not simply say that they were told something. The Defendant respectfully asks that the Court strike out the Claimant's entire Alleged Witness Statement as being based entirely on hearsay evidence which they have not sought the permission of the Court to introduce.

NOTICES OF SUMS IN ARREARS

15. It is disputed that the Alleged Witness is informed by the Claimant's legal representatives that in accordance with the Consumer Credit Act 1974 Notices of Sums in Arrears ('NOSIAs') were issued by the Alleged Assignor on the 13 January 2017 (it is disputed that a copy can be found at page 21), 16 March 2017 (it is disputed that a copy can be found at page 26), and 15 May 2017 (it is disputed that a copy can be found at page 31).

The Defendant repeats that No Notice Served, pursuant to CPR 33.2(1)(B) (notice of intention to rely on hearsay evidence) and Section 2 (1) (A) of the Civil Evidence Act, for the Claimant's reliance on hearsay evidence and as such the Court should pay no weight to any of the hearsay claimed by the Alleged Witness is their Alleged Witness statement. The Defendant respectfully asks that the Court strike out the Claimant's entire Alleged Witness Statement as being based entirely on hearsay evidence which they have not sought the permission of the Court to introduce.

16. It is disputed that the Alleged Witness is also informed by the Claimant's legal representatives as this was a running account, NOSIAs can be incorporated in a credit card statement in accordance with section 86C of the CCA.

DEFAULT NOTICE

17. It is disputed that a Default Notice was sent to the Defendant on the 3 February 2017 by the Alleged Assignor in accordance with Section 87 (i) of the Consumer Credit Act 1974 requesting that the arrears of £94.70 be paid by the 24 February 2017. It is disputed that he Claimant has been informed that the Default Notice was sent to the Defendant at his current address being [DEFENDANT'S ADDRESS]. It is disputed that this is the address that the Alleged Assignor held at the time.

18. It is disputed that the document exhibited by the Claimant at pages 34 to 36 of their paginated bundle is a copy of a Default Notice which the claimant incorrectly claims was sent to the Defendant on 3 February 2017. The Claimant is required to provide proof of postage or a witness who attests to sending this document. The Defendant avers that again the Claimant is reliant entirely on hearsay and the Court is invited to strike out their Witness Statement for breach of CPR 33.2(1)(B).

TERMINATION

19. It is disputed that the Void Agreement was subsequently terminated by the Alleged Assignor by way of letter on the 21 March 2017 due to non-payment. It is disputed that the last contractual payment of £44.60 being received on the 14 November 2016. It is disputed that upon termination of the Void Agreement the Defendant became liable to pay forthwith the full debt outstanding under the Void Agreement, being the alleged outstanding sum plus interest and charges. It is disputed that he Defendant failed to pay the amount due.

The Defendant avers that the Void Agreement was Void from the outset due to the Alleged Assignor's failure to comply with the requirements of Section 138D of the Financial Services and Markets Act 2000 and CONC 5.2A of the the Consumer Credit Sourcebook, in respect of irresponsible lending.

20. It is disputed that a Default Notice, dated 3 February 2017 was sent to the Defendant. It is disputed that the Alleged Assignor gave to the Defendant notice that if he did not pay the arrears of £94.70 by the 24 February 2017, the Alleged Assignor will terminate the Credit Card Agreement.

The Defendant avers that no default notice was provided by the Alleged Assignor in relation to the Void Agreement. The Claimant is required to provide evidence of service of any default notice that they claim was provided by the Alleged Assignor. The Defendant avers that the Claimant is entirely reliant on the hearsay documents generated by the Alleged Assignor's computer system.

21. It is disputed that the document exhibited by the Claimant at page 21 of their paginated bundle is a copy of the Termination Notice sent to the Defendant on 21 March 2017. It is disputed that the Alleged Assignor ever sent the Defendant a termination notice in relation to the Void Agreement. The Claimant is required to provide evidence of service of any Termination Notice they are reliant on in relation to the Void Agreement.

NOTICE OF ASSIGNMENT

22. It is disputed that on or around the 27 June 2017 the Alleged Assignor assigned to the Claimant, absolutely, all amounts due from the Defendant to the Alleged Assignor pursuant to the Void Agreement due to the constraints of:

⦁ Section 44 of the Companies Act 2006 - (a Deed of Assignment requires TWO signatures from the Assignor);

⦁ Section 136 of the Law of Property Act 1925 - (An assignee cannot buy future debts, they must have a valid Deed of Assignment and notice must be 'GIVEN'); and;

⦁ Section 196 of the Law of Property Act 1925 - (Service of documents must be by registered mail).

The Claimant is required to provide a copy of the Debt Sale Agreement (the 'Deed of Assignment') under CPR Part 31.6, CPR18 and CPR31.14 as being crucial to establish if the Claimant has any Locus Standi to bring any claim. The Defendant invites the Court to conclude that failure to provide any Deed of Assignment, upon which the Claimant relies on to prove any exception from the Common Law Doctrine of Privity of Contract, that the Claimant is reliant solely on and EQUITABLE Assignment of the Void Agreement and has no Locus Standi to issue this claim:

⦁ See: (Mitchell Mcfarlane & Partners Ltd v Foremans Ltd 2002) - 'Even If I had held that notice of assignment had not been given, I do not think that this would have made any difference. As an equitable assignee Foremans could not have brought an action at law without joining the assignor, old Foremans.'

⦁ See: (Van Lynn Developments v Pelias Construction Co Ltd [1969] 1 QB 607) Where Lord Denning MR said: 'After receiving the notice, the debtor will be entitled, of course, to require a sight of the assignment so as to be satisfied that it is valid, and that the assignee can give him a good discharge.'

⦁ Also: Jones v Link Financial Ltd | [2013] 1 WLR 693 Where at it was found that three conditions for the validity of such an assignment must be satisfied, 'namely': that the assignment was absolute and not by way of charge; that it was in writing under the hand of the assignor, and that express notice in writing had been given to the debtor.

The Claimant is required to show that all three elements of Legal Assignment are satisfied:

⦁ a. that the assignment is absolute and not by way of a charge;

⦁ b. that it is in writing under the hand of the assignor (the Debt Sale Agreement aka the Deed of Assignment');

⦁ c. and that express notice in writing has been given to the debtor.

The Defendant draws the Courts attention to exhibit ('AS1' Pages ???-????) which are letters sent by the Defendant to the Claimant and demonstrate that the Claimant has bees asked to provide the Sale Agreement between the Alleged Assignor and the Claimant (the ' Deed of Assignment') and the Claimant has refused to provide this document. The Defendant invites the Court to conclude that as the Claimant has failed to provide any evidence of compliance, other than an alleged notice, that the Claimant is not complaint with Section 136 of the Law of Property Act 1925 and has no Locus Standi to issue a claim for a contract they were not a party to:

See: (Mitchell Mcfarlane & Partners Ltd v Foremans Ltd 2002) - 'Even If I had held that notice of assignment had not been given, I do not think that this would have made any difference. As an equitable assignee Foremans could not have brought an action at law without joining the assignor, old Foremans.'

The Defendant also avers that no one gives what they do not have ('Nemo dat quod non habet').

It is disputed that the Defendant was provided with notice of the said assignment by the Alleged Assignor on 6 July 2017, to his last known address of [DEFENDANT'S ADDRESS]. It is disputed that the Defendant was also provided with a Notice of Assignment by the Claimant on July 2017 at his last known address of [DEFENDANT'S ADDRESS]. It is disputed that the document exhibited by the Claimant at pages 38 to 41 of their paginated bundle is a copy of a Notice of Assignment that was sent to the Defendant.

The Defendant avers that the word 'given' in Section 136 of the Law of Property Act 1925 denotes that the document should be handed to the debtor or served in compliance with Section 196 of the Law of Property Act 1925, by registered mail.

The Claimant is required to provide proof of posting by registered mail as required under Section 196 of the Law of Property Act 1925.

Law of Property Act 1925

196 Regulations respecting notices.

(4) Any notice required or authorised by this Act to be served shall also be sufficiently served, if it is sent by post in a registered letter addressed to the lessee, lessor, mortgagee, mortgagor, or other person to be served, by name, at the aforesaid place of abode or business, office, or counting-house, and if that letter is not returned [F1by the postal operator (within the meaning of [F2Part 3 of the Postal Services Act 2011]) concerned] undelivered; and that service shall be deemed to be made at the time at which the registered letter would in the ordinary course be delivered.

23. It is disputed that following the service of the Notices of Assignment, the Claimant sent further letters to the Defendant. It is disputed that the documents exhibited by the Claimant at pages 42 to 62 of their paginated bundle were sent to the Defendant. It is disputed that notification of the assignment of the account from the Alleged Assignor was repeated by this subsequent correspondence. It is disputed that these confirm the account details and the outstanding balance. It is disputed that the subsequent correspondence clearly advised the Defendant of the outstanding balance and his obligation to repay it. It is disputed that there is any outstanding balance or any obligation to pay either the Alleged Assignor or the Claimant. It is disputed that its purpose was to invite the Defendant to make contact with the Claimant in order to explore the possibility of agreeing a concessionary repayment plan.

The Defendant avers that the Claimant as a bulk purchaser of lists of old accounts, on an EQUITABLE basis, who speculates on the purchase of lists of data, some of which is corrupt data and the Claimant's speculative nature of business has lead them to purchase an account that is Void in nature and as such no sum is owed by the Defendant to the Claimant. The Defendant avers that the legal maxim of 'Let the buyer beware' ('caveat emptor') applies.

24. It is disputed that the Alleged witness can see that the letters were sent to the Defendant at his last known address of [DEFENDANT'S ADDRESS] and none were returned undelivered to the Claimant. Again letter were sent to the Defendant [OTHER ADDRESS?} and once again, none returned to the Claimant. The Defendant avers that the Alleged Witness has no actual knowledge of any letters being sent to the Defendant and it totally reliant on the hearsay of computer systems with no knowledge that any of the data is accurate or corrupt in nature.

25. It is neither agreed or disputed that as a result of no contact or payment from the Defendant, the Claimant instructed Mortimer Clarke Solicitors Limited ('MCSL') to commence legal proceedings against the Defendant. It is disputed that the Claimant understands that Mortimer Clarke wrote to the Defendant on 18 February 2022 to give notice of its instructions to issue a Claim.

The Defendant avers that the Alleged Witness is not speaking of facts that he is aware, simply that he understands from third party information that something may have occurred. It is disputed that the document exhibited by the Claimant at pages 63 to 68 of their paginated bundle was sent to the Defendant.

26. It is a point of record that on 23 March 2022 County Court proceedings were issued electronically against the Defendant at the County Court Business Centre. MCS' file copy of the claim form is exhibited by the Claimant at page 69 of their paginated bundle. It is not disputed that the claim form was served by the Court and MCSL was electronically notified that it was deemed served on 29 March 2022.

The Defendant's Defence dated 26 March 2022

27. It is not disputed that in the Defendant's Defence dated 26 March 2022 the Defendant raises numerous points in his defence. It is not disputed that it is long. It is disputed that it is template in nature, with many points being repeated or being irrelevant to the details of this claim. The Defendant avers that it is the Claimant that is reliant on templates to issue bulk claims for account it has purchased on a EQUITABLE basis with many of the accounts being void in nature.

It is disputed that it primarily revolves around the provision of documentation and putting the Claimant to strict proof of the debt. The Defendant avers that the Claimant has a duty to supply evidence that their claim has basis in fact and is not reliant solely on hearsay and what the Alleged Witness has allegedly heard from a third party.

The Claimant summaries the Defendants defence and cites these 7 points but concedes there are more points raised:

i) The Particulars of Claim are lacking in detail and fail to set out the basis on which the claim is made.

ii) He was never served with a Default Notice;

iii) He never received a Termination Notice.

iv) He disputes that the Credit Card Agreement has been legally assigned to the Claimant.

v) He was never served with a Notice of Assignment. vi) He says that the Claimant has not complied with the Pre-Action Conduct Protocol.

vii) He alleges that the Claimant is not authorised by the Financial Conduct Authority.

The Claimant's position

28. It is disputed that the Defendant does not have a valid Defence to these proceedings. As the Claimant cites that their reasons are set out in paragraphs 6 to 26 of the Claimant's Alleged Witness Statement the Defendant cites paragraphs 6 to 26 of this Witness Statement.

It is disputed that the Claimant's Reply to Defence dated 18 May 2022 found at pages 70 to 144 of the bundle is a valid response to the Defence raised by the Defendant. The Defendant draws the Courts attention to the RESPONSE TO REPLY TO DEFENCE by the Defendant attached to the end of this Witness Statement.

The Defendant avers that the Claimant has steadfastly refused to provide any evidence of a valid legal assignment despite the Defendant's numerous requests including specific requests in the Defendant's Defence at point 3:

3. It is disputed that the benefit the Void Agreement was legally assigned to the Claimant (the 'Alleged Assignment'), on an unspecified date, due to the constraints of the Common Law Doctrine of Privity of Contract; Section 136 & Section 196 of the Law of Property Act 1925; and; Section 44 of the Companies Act 2006.The Defendant puts the Claimant is required to provide a copy of the Deed of Assignment under CPR Part 31.6, CPR18 and CPR31.14 as being crucial to establish if the Claimant has any Locus Standi to bring any claim. The Defendant avers that failure to provide any Deed of Assignment will mean that the Claimant is reliant solely on and EQUITABLE Assignment of the Void Agreement:

See: (Mitchell Mcfarlane & Partners Ltd v Foremans Ltd 2002) - 'Even If I had held that notice of assignment had not been given, I do not think that this would have made any difference. As an equitable assignee Foremans could not have brought an action at law without joining the assignor, old Foremans.'
See; (Van Lynn Developments v Pelias Construction Co Ltd 1968.[3] All ER 824) Where Lord Denning MR said 'the debtor is entitled to view the sale agreement to ensure that the assignee can give him good discharge under the contract'.
⦁Also; Jones v Link Financial Ltd | [2013] 1 WLR 693 Where at it was found that three conditions for the validity of such an assignment must be satisfied, 'namely': that the assignment was absolute and not by way of charge; that it was in writing under the hand of the assignor, and that express notice in writing had been given to the debtor.
The Claimant is required to show that all three elements of Legal Assignment are satisfied:

⦁ a. that the assignment is absolute and not by way of a charge; ⦁ b. that it is in writing under the hand of the assignor (the 'Deed of Assignment');⦁ c. and that express notice in writing has been given to the debtor.

The Defendant avers that the failure of the Claimant to provide the Sale Agreement between themselves and the Alleged Assignor means that the Claimant has failed to provide any evidence of a Legal Assignment or EXCEPTION to the Common Law Doctrine of Privity of Contract and has no Locus Standi to issue this claim:

29. It is not disputed that the Defendant has received limited documentation from the Claimant on the 18 May 2022 in response to his Part 18 Request and in the Claimant's Reply to Defence dated 18 May 2022 (pages 70 to 144).

It is disputed that the documentation provided within this witness statement and to the Defendant, evidence that the Defendant entered into the Void Agreement, benefited from the credit provided and failed to maintain payments in accordance with the Void Agreement. It is disputed that the Defendant is liable for the outstanding balance.

The Defendant avers that the Claimant is reliant solely on hearsay evidence and provides on a notice of assignment which gives no EXCEPTION to the Common Law Doctrine of Privity of Contract.

30. It is neither disputed or agreed that that the MSA defines an Account as a consumer credit agreement, or other similar account purchased by or on behalf of, or transferred to, the SPV, whether regulated by the Consumer Credit Act 1974 or not, and in respect of which CCM provides or causes to be provided the Services under the MSA. It is neither disputed or agreed that the Claimant made arrangements with CCM for the latter to exercise the Claimant's rights under various acquired debts, including the Defendant's Credit Card Agreement. It is disputed that the MSA provides that CCM can subcontract to an appointed representative or certain third parties any of the services "except for the exercising, or having the right to exercise, the lender's rights and duties under an Account".

The Defendant avers that the Claimant is not regulated by the Financial Conduct Authority and any Master Service Agreement does not give the Claimant authority to bring an action at law.

The Defendant avers that the Claimant is in breach of Financial Services and Markets Act 2000, as a general principle of law that the Claimant, a debt purchaser, is not able to rely on the FCA authorisation of an affiliated 3rd party ( paragraph 55 of the Schedule to the Financial Services and Markets Act 2000 (Exemption) Order 2001) for the purpose of bringing a claim. The Defendant has checked the FCA register and the Claimant is not listed.

See: (Arrow Global Guernsey Limited v Watson (County Court at Blackpool) [2019]) - Particulars of Claim struck out as Claimant was not registered with the FCA to issue a claim in the County Court.

31. It is disputed that the regulatory position can be fully addressed by the Claimant's legal representatives if required. I It is disputed that, for the avoidance of doubt, the Claimant does not undertake debt-adjusting, debt-counselling or debt-collection itself, as it delegates any of these activities that need to be performed to other companies within its Group. It is disputed that the Claimant arranged for CCM to comply with any regulatory requirements.

The Defendant avers that the Claimant is a bulk purchaser of lists of accounts on a EQUITABLE basis and as such is not registered with the FCA to enforce Consumer Regulated agreements by bringing an action at law and has no Locus Standi to issue a claim for a contract that it was not a party to.

In Summary

32. It is disputed that the Defendant has no real prospect of successfully defending the Claim and there is no other reason why the case should be disposed of at trial. The Defendant avers that the Claimant has failed to provide any evidence of their Locus Standi to issue a claim for a contract they were not a party to and despite numerous requests from the Defendant, the Claimant is solely reliant on alleged notices of assignment that give no EXCEPTION to the the Common Law Doctrine of Privity of Contract.

Conclusion

33. For the reasons set out above, I invite this Honourable Court to dismiss the Claimant's claim.

Principal Sum claimed : £ 996.08 is disputed;

Court Fees : £ 70.00 is disputed;

Fixed Solicitors Costs : E 70.00 is disputed;

Hearing Fee : £ 85.00 is disputed;

Our agent's costs for attendance : £ 240.00 (including VAT) is disputed;

Total claimed of £1.461.08 is disputed

The defendant invites the court to dismiss the Claimant's claim and to allow such defendants costs as are permissible under civil procedure rule 27.14.

STATEMENT OF TRUTH

Signed Dated: 05 September 2022

REPLY TO DEFENCE

CLAIM NO: 123456790

IN THE County Court at Northampton CCBC

BETWEEN:-

Cabot Financial (UK) Limited

Claimant

-and-

[DEFENDANTS NAME]

Defendant

REPLY TO DEFENCE

1. This is the Claimant's reply to the Defendant's Defence dated 26 March 2022.

2. The Claimant herein takes issue with the Defendant's Defence in its entirety.

3. In this Reply to the Defence, save where otherwise indicated;

a) References to paragraphs by number are to the paragraphs of the Defendant's Defence.

b) For convenience, the Claimant adopts the defined terms used in the Particulars of Claim and the Defendant's Defence (without thereby intending any admissions).

c) And save where the Defendant provides an admission, the Claimant joins issue with the Defendant's Defence for the reasons set out in its Particulars of Claim and Reply to the Defence.

REPLY

4. As to paragraph 1 of the Defence the Claimant will say that it does have legal standing in these proceedings.

5. Further to the above, the Claimant denies that the agreement that forms the subject matter of these proceedings is void.

6. The Claimant will say that the Defendant did apply online via a credit intermediary, namely MoneySupermarket, for a Credit Card on the 24 June 2016.

7. Further to the above it is averred that the Agreement was granted to the Defendant on or around the 29 June 2016 and an Marbles Credit Card was issued to the Defendant, together with a Personal Identification Number ("PIN"), to his last known address of 4 Paddocks Way, Little Billing, Northampton, Northamptonshire, NN3 9EU. The Agreement was regulated by the Consumer Credit Act 1974 ('the CCA').

8. A copy of the Agreement dated 24 June 2016 entered into between the Defendant and NewDay Ltd, and provided by NewDay Ltd, is attached bearing the Defendant's electronic signature and address of 4 Paddocks Way, Little Billing, Northampton, Northamptonshire, NN3 9EU. This is the address given by the Defendant at the time of applying for the said Marbles Credit Card.

9. It is the Claimant's position that the agreement was signed by electronic means. The Claimant would rely on the court's findings in the High Court matter of Bassano v Toft and Others [2014] EWHC 377 (QB) (26 February 2014). In this case Popplewell 3 held that:

The Court further found that "Providing it is the space in the document indicated for the purpose, "Accept" can therefore constitute a valid signature because the word "I" can be treated of the person agreeing to be bound by the terms of the document.

10. It is further averred that pursuant to the Agreement and headed "How do we tell you how much to pay each month?" NewDay Ltd sent to the Defendant regular monthly statements. A copy of the Credit Card Statements, provided by NewDay Ltd, for the period 21 August 2016 to 19 June 2017 inclusive and showing how the balance of £1,011.08 was incurred by the Defendant, are attached.

11. Further to the above, the Claimant will say that as the Defendant failed to make payment in accordance with the monthly Credit Card Statements on the 3 February 2017 a Default Notice was issued by NewDay pursuant to 87(i) of the Consumer Credit Act 1974 to the Defendant at his last known address of 4 Paddocks Way, Little Billing, Northampton, Northamptonshire, NN3 9EU. The Default Notice requested that the Defendant pays the sum of £94.70 by the 24 February 2017 in order to remedy the situation. A copy of the Default Notice dated 3 February 2017 is attached.

12. Further to the above it is averred that as the Defendant failed to remedy the breach in accordance with the Default Notice, the Agreement was subsequently terminated by NewDay Ltd on or about the 27 June 2017.

13.1t is further averred that there is no statutory requirement for a Termination notice to be served. The Claimant will say that in the Default Notice dated 3 February 2017, NewDay Ltd did give to the Defendant notice that if he did not pay the arrears of £94.70 by the 24 February 2017, NewDay Ltd will terminate the Agreement.

14.A copy of the Termination Notice dated 21 March 2017 is attached.

15. As to paragraph 2 of the Defence the Claimant will say that the Claimant is not authorised by the Financial Conduct Authority ("the FCA"). However, the Claimant's ultimate parent company, Cabot Credit Management Group Limited ("CCM"), is authorised by the FCA to undertake the activity specified by article 60B (2) of the Financial Services and Markets Act 2000 (Regulated Activities) Order 2001 ("the RAO"), namely the activity of exercising, or having the right to exercise, the lenders' rights under the regulated credit agreements.

16. Further to the above, the Claimant has made arrangements with CCM for it to exercise the Claimant's rights under the Agreements. Such arrangements were made pursuant to a Master Servicing Agreement ("the MSA") with CCM dated 22nd March 2016. As such, the Claimant benefits from the exemption contained in the Financial Services and Markets Act 2000 (Exemption) Order 2001, article 5(2) and paragraph 55 of the Schedule ("the Paragraph 55 Exemption").

17. As such, the Claimant benefits from the exemption contained in the Financial Services and Markets Act 2000 (Exemption) Order 2001, article 5(2) and paragraph 55 of the Schedule ("the Paragraph 55 Exemption").

18.The Paragraph 55 Exemption which the Claimant in this case relies on was heavily considered in a four-day appeal case, MFS Portfolio Ltd v Anastasia Phelan & Nigel West [2019] GCCR 17149. MFS Portfolio Ltd is a company within CCM as is the Claimant. District Judge Choudary at trial found MFS Portfolio Ltd were entitled to rely on the paragraph 55 exemption. This ruling in relation to this point was upheld on appeal.

19. Further and alternatively, the Claimant relies on an exclusion contained in Article 601 of the Financial Services and Markets Act 2000 (Regulated Activities) Order 2001 ("the Article 601 Exclusion").

20. As to paragraph 3 of the Defence it is averred that the Claimant will say that it has no statutory obligation to provide the Defendant with a copy of the Deed of Assignment which is a commercially sensitive document. The Claimant has complied with its statutory obligations by sending the Defendant a Notice of Assignment on the 26 July 2017 in accordance with Section 136 of the Law of Property Act 1925.

21.As to paragraph 4 of the Defence it is averred that on the 27 June 2017 NewDay Ltd assigned to the Claimant, absolutely, all amounts due from the Defendant to NewDay Ltd pursuant to the Agreement. The Defendant was provided with notice of the said assignment by NewDay Limited on 26 July 2017, to his last known address of 4 Paddocks Way, Little Billing, Northampton, Northamptonshire, NN3 9EU. The Defendant was also provided with a Notice of Assignment by the Claimant on the 26 July 2017, to his last known address of 4 Paddocks Way, Little Billing, Northampton, Northamptonshire, NN3 9EU. A copy of the Notice of Assignment dated 26 July 2017 is attached.

22. Following the service of the Notices of Assignment, the Claimant sent further letters to the Defendant asking him to address the debt. These letters are attached. Notification of the assignment of the accounts from NewDay Ltd was repeated by this subsequent correspondence, which all confirm the account details and the outstanding balance. The subsequent correspondence clearly advised the Defendant of the outstanding balance and his obligation to repay it. Its purpose was to invite the Defendant to make contact with the Claimant in order to explore the possibility of agreeing a concessionary repayment plan.

23. The Claimant takes issue with the Defendant in relation to paragraph 5 of the Defence.

24. The Claimant will say with reference to the Particulars of Claim ('POC'):

a) The Claimant pleads a sum pursuant to a Credit Card Agreement.

b) The date of the Credit Card Agreement is provided.

c) The subject matter of the Credit Card Agreement is detailed. d) The name of the original creditor is provided.

25. The Claimant will also say as follows:

a) There is no requirement to attach documents to the POC with reference to Practice Directions 7A paragraph 5.2A of the Civil Procedure Rules.

b) On or about the 18 February 2022 the Claimant's Solicitors sent to the Defendant a debt Pre-Action Protocol letter clearly setting out the Claimant's claim. A copy of the debt Pm-Action Protocol letter dated 18 February 2022 is attached.

c) Accordingly, it is averred that the Defendant has sufficient knowledge of the claim in which to understand the cause of action and make submission.

26. It is averred that the Letter Before Action dated 18 February 2022 and POC provided sufficient details to enable the Defendant to establish the subject matter of these proceedings.

27. In the circumstances the Defence should be struck out.

28. For the reasons set out above, the Court is invited to strike out the Defence pursuant to the provisions of CPR 3.4 (2) (a) in that it discloses no grounds for defending these proceedings.

Dated this 18th day of May 2022

Statement of Truth

The Claimant believes that the facts stated in this Reply to Defence are true. I am duly authorised by the Claimant to sign this statement. I understand that proceedings for contempt of court may be brought against anyone who makes, or causes to be made, a false statement in a document verified by a statement of truth without an honest belief in its truth.

Full name: Michael F Thomas

Name of claimant's solicitor's firm: Mortimer Clarke Solicitors

Signed: Michael F Thomas position or office held: Defence Executive

Claimant's solicitor (if signing on behalf of a firm or company)

Mortimer Clarke Solicitors

PO Box 130

Blyth

NE24 9FA

CLAIM NO: 1234567890

IN THE County Court at Northampton CCBC

BETWEEN:-

Cabot Financial (UK) Limited

Claimant

-and-

[DEFENDANTS NAME]

Defendant

RESPONSE TO REPLY TO DEFENCE

1. This is the Defendant's reply to the Claimant's Reply to Defence dated 18 May 2022 by Michael F Thomas (the 'Alleged Witness').

2. It is noted that the Claimant takes issue with the Defendant's Defence in its entirety. The Defendant avers that the Claimant is a bulk purchaser of lists of accounts on an EQUITABLE basis and as such has no Legal Standing ('Locus Standi') to issue their claim.

3. In this Response to the Reply to Defence, save where otherwise indicated;

a) References to paragraphs by number are to the paragraphs of the Claimant's response.

b) For convenience, the Defendant adopts the defined terms used in the Particulars of Claim and Defence (without thereby intending any admissions).

c) And save where the Claimant provides an admission, the Defendant joins issue with the Claimant's Particulars of Claim and Reply to Defence for the reasons set out in the Defence and this response.

REPLY

4. It is disputed as to paragraph 1 of the Defence that the Claimant can say that it does have legal standing in these proceedings. The Defendant avers that the Claimant has no Locus Standi to issue a claim for a contract that they are not a party to due to the Common Law Doctrine of Privity of Contract ('Privity'):

5. It is noted that further to the above, the Claimant denies that the agreement that forms the subject matter of these proceedings is void. The Defendant avers that as a bulk purchaser of lists of names and numbers on an EQUITABLE basis, the Claimant speculates on financial markets and purchases alleged balances listed on computer systems for accounts without conducting any due diligence as to whether an account is void or not due to the Alleged Assignors failure to comply with the requirements of the Consumer Credit Act. The Defendant avers this is an understandable oversight on the Claimant's part as they are not registered with the FCA handle Consumer Credit related accounts.

6. It is not disputed that the Defendant did apply online via a credit intermediary, namely MoneySupermarket, for a Credit Card on the 24 June 2016 (the 'Void Agreement'). The Defendant avers that the Void Agreement was void from the outset due to the Alleged Assignors failure to comply with the requirements of Section 138D of the Financial Services and Markets Act 2000 and CONC 5.2A of the the Consumer Credit Sourcebook, in respect of irresponsible lending.

See: https://www.bechbruun.com/en/news/2020/danish-consumer-ombudsman-finds-66-loan-agreements-to-be-unfair-and-void

7. It is not disputed that the Void Agreement was granted to the Defendant on or around the 29 June 2016 and an Marbles Credit Card was issued to the Defendant, together with a Personal Identification Number ("PIN"), to his last known address of [DEFENDANTS ADDRESS]. It is not disputed that the Agreement was regulated by the Consumer Credit Act 1974 ('the CCA').

The Defendant avers that the matter is currently the subject of a formal investigation by the Financial Ombudsman in relation to the irresponsible lending behaviour of the Newday Ld (the 'Alleged Assignor').

8. It is disputed that a copy of the Void Agreement dated 24 June 2016 entered into between the Defendant and the Alleged Assignor and provided by the Alleged Assignor, is attached bearing the Defendant's electronic signature and address of 4 Paddocks Way, Little Billing, Northampton, Northamptonshire, NN3 9EU. It is not disputed that this is the address given by the Defendant at the time of applying for the said Marbles Credit Card.

The Defendant avers that the Claimant has provided a document claiming to be the Void Agreement but which does not bear any signature of the Defendant either digital or otherwise which is not compliant with Section 61 of the Consumer Credit Act 1974.

9. It is disputed that the Void agreement was signed by electronic means.

It is disputed that the Claimant can rely on the court's findings in the High Court matter of Bassano v Toft and Others [2014] EWHC 377 (QB) (26 February 2014). In this case Popplewell 3 held that:

The Defendant avers that the document provided by the Claimant fails to meet the standard met in the case of Bassano v Toft and Others [2014] as there is simply no signature whatsoever to identify the person that the Claimant claims signed the document.

10. It is disputed that pursuant to the Void Agreement and headed "How do we tell you how much to pay each month?" the Alleged Assignor sent to the Defendant regular monthly statements. It is disputed that a copy of the Credit Card Statements, provided by the Alleged Assignor, for the period 21 August 2016 to 19 June 2017 inclusive and showing how the balance of £1,011.08 was incurred by the Defendant, are attached to the Claimant's REPLY TO DEFENCE. The Defendant avers that the Alleged Witness does not base any of his statement on actual facts witnessed and the Defendant avers that her entire statement is based on hearsay evidence from the computer system of the Claimant and the computer system of Newday Ltd (the ‘Alleged Assignor’).

https://www.computerweekly.com/news/252475611/Subpostmasters-proved-right-on-IT-system-failures-as-calls-for-full-public-inquiry-mount

11. It is disputed that as the Defendant failed to make payment in accordance with the monthly Credit Card Statements on the 3 February 2017 a Default Notice was issued by Alleged Assignor pursuant to 87(i) of the Consumer Credit Act 1974 to the Defendant at his last known address of [DEFENDANTS ADDRESS]. It is disputed that the Default Notice requested that the Defendant pays the sum of £94.70 by the 24 February 2017 in order to remedy the situation. It is disputed that a copy of the Default Notice dated 3 February 2017 is attached to the Claimant's REPLY TO DEFENCE.

12. It is disputed that as the Defendant failed to remedy the breach in accordance with the Default Notice, the Void Agreement was subsequently terminated by the Alleged Assignor on or about the 27 June 2017. The Defendant avers that the Void Agreement was void from the outset due to the irresponsible lending behaviour of the Alleged Assignor.

13. It is not disputed that there is no statutory requirement for a Termination notice to be served. It is disputed that in the Default Notice dated 3 February 2017, the Alleged Assignor did give to the Defendant notice that if he did not pay the arrears of £94.70 by the 24 February 2017, the Alleged Assignor will terminate the Void Agreement. The Defendant avers that the Alleged Witness is entirely reliant on hearsay and bears no witness to any events that they claim to be a witness of and is simply reading data from a computer system. The Defendant avers that for every KLOC (1000 lines of computer code) every piece of commercial software contains 0.5 to 1 errors per KLOC. It CANNOT be said that just because it's computer controlled that errors and CORRUPT data cannot occur as happened in the HORIZON SCANDAL:

https://www.bbc.co.uk/news/business-56718036

14. It is disputed that a copy of the Termination Notice dated 21 March 2017 is attached to the Claimant's REPLY TO DEFENCE.

The Defendant cites another example of corrupt software being relied on to adduce outcomes that resulted in even more serious consequences:

https://www.vox.com/business-and-finance/2019/3/29/18281270/737-max-faa-scandal-explained

15. As to paragraph 2 of the Defence it is agreed that the Claimant is not authorised by the Financial Conduct Authority ("the FCA").

It is disputed that the Claimant can rely on it's ultimate parent company, Cabot Credit Management Group Limited ("CCM"), which is authorised by the FCA to undertake the activity specified by article 60B (2) of the Financial Services and Markets Act 2000 (Regulated Activities) Order 2001 ("the RAO"), namely the activity of exercising, or having the right to exercise, the lenders' rights under the regulated credit agreements.

The Defendant avers that the Claimant is a bulk purchaser of lists of accounts on an EQUITABLE basis and it's business activities and reliance on it's parent companies registration is accepted under Common Law but not under statute.

See: (Arrow Global Guernsey Limited v Watson (County Court at Blackpool) [2019]) - Particulars of Claim struck out as Claimant was not registered with the FCA to issue a claim in the County Court.

16. It is not disputed that the Claimant has made arrangements with CCM for it to exercise the Claimant's rights under the Agreements. It is not disputed that such arrangements were made pursuant to a Master Servicing Agreement ("the MSA") with CCM dated 22nd March 2016. It is disputed that, as such, the Claimant benefits from the exemption contained in the Financial Services and Markets Act 2000 (Exemption) Order 2001, article 5(2) and paragraph 55 of the Schedule ("the Paragraph 55 Exemption").

17. It is disputed that, as such, the Claimant benefits from the exemption contained in the Financial Services and Markets Act 2000 (Exemption) Order 2001, article 5(2) and paragraph 55 of the Schedule ("the Paragraph 55 Exemption") due to the constraints of the Financial Services and Markets Act 2000 (as amended) S. 26A (4).

18. It is not disputed that the Paragraph 55 Exemption which the Claimant in this case relies on was heavily considered in a four-day appeal case, MFS Portfolio Ltd v Anastasia Phelan & Nigel West [2019] GCCR 17149. It is not disputed that MFS Portfolio Ltd is a company within CCM as is the Claimant. It is not disputed that District Judge Choudary at trial found MFS Portfolio Ltd were entitled to rely on the paragraph 55 exemption. It is not disputed that the ruling in relation to this point was upheld on appeal but the Defendant avers that this point would have been appealed further if had MFS Porfolio's case not been dismissed due to failure to provide any evidence of Locus Standi to bring a claim.

Joanna Connolly solicitor for the Defendant in the case:

"The court also positively approved of the principle established in a European case ruling we put before the court that it is for the creditor to prove statutory compliance.

The appeal court also found that MFS Portfolio Ltd had not proved the Assignment to it from the original creditor.

We were not successful on the MFS Portfolio Ltd’s lack of FCA Authorisation point. For obvious reasons, having won the actual appeal for our Clients, this won’t be appealed further by our Clients - however this decision is not a binding decision on other courts as HHJ Walden-Smith was sitting as a Circuit Judge and not as a High Court Judge."

The Defendant avers that the Claimant's failure to be registered with the FCA prohibits it from bringing an action at law as well as failure to provide any evidence of Locus Standi to bring a claim or any EXCEPTION to the Common Law Doctrine of Privity of Contract.

19. It is disputed that further and alternatively, the Claimant can rely on an exclusion contained in Article 601 of the Financial Services and Markets Act 2000 (Regulated Activities) Order 2001 ("the Article 601 Exclusion").

The Financial Services and Markets Act 2000 (Regulated Activities) Order 2001

F1Arranging administration by authorised person

60I. A person (“A”) who is not an authorised person does not carry on an activity of the kind specified by article 60B(2) in relation to a regulated credit agreement where A—

(a) arranges for another person, who is an authorised person with permission to carry on an activity of that kind, to exercise or to have the right to exercise the lender’s rights and duties under the agreement, or

(b) exercises or has the right to exercise the lender’s rights and duties under the agreement during a period of not more than one month beginning with the day on which any such arrangement comes to an end.]

The Defendant avers that Article 601 provides no exclusion in order to bring an action at law.

20. As to paragraph 3 of the Defence it is disputed that the Claimant has no statutory obligation to provide the Defendant with a copy of the Deed of Assignment which is a commercially sensitive document. The Defendant avers that the Claimant has a duty to prove legal title to the account:

See: (Van Lynn Developments v Pelias Construction Co Ltd [1969] 1 QB 607 Where Lord Denning MR said: 'After receiving the notice, the debtor will be entitled, of course, to require a sight of the assignment so as to be satisfied that it is valid, and that the assignee can give him a good discharge.'

It is disputed that he Claimant has complied with its statutory obligations by sending the Defendant a Notice of Assignment on the 26 July 2017 in accordance with Section 136 of the Law of Property Act 1925. The Defendant disputes that the Claimant sent a notice of assignment on 26 July 2017 which if actually 'given' to the Defendant, by registered mail (as required under Section 196 of the Law of Property Act 1925) it would only be ONE of THREE requirements under Section 136 of the Law of Property Act 1925.

See: Jones v Link Financial Ltd | [2013] 1 WLR 693 Where at it was found that three conditions for the validity of such an assignment must be satisfied, 'namely': that the assignment was absolute and not by way of charge; that it was in writing under the hand of the assignor, and that express notice in writing had been given to the debtor.

The Claimant is required to show that all three elements of Legal Assignment are satisfied:

⦁ a. that the assignment is absolute and not by way of a charge;

⦁ b. that it is in writing under the hand of the assignor (the Debt Sale Agreement aka the Deed of Assignment');

⦁ c. and that express notice in writing has been given to the debtor.

21. As to the Claimant's response to paragraph 4 of the Defence it is disputed on the 27 June 2017 the Alleged Assignor assigned to the Claimant, absolutely, all amounts due from the Defendant to the Alleged Assignor pursuant to the Void Agreement. It is disputed that the Defendant was provided with notice of the said assignment by the Alleged Assignor on 26 July 2017, to his last known address of 4 [DEFENDANTS ADDRESS]. It is disputed that the Defendant was also provided with a Notice of Assignment by the Claimant on the 26 July 2017, to his last known address of[DEFENDANTS ADDRESS]. It is disputed that a copy of the Notice of Assignment dated 26 July 2017 which is attached to the Claimant's REPLY TO DEFENCE was sent to the Defendant. The Defendant requires the Claimant to provide proof of postage, by registered mail in compliance with Section 196 of the Law of Property Act 1925 for any Notice of Assignment they are reliant on to establish ONE of THREE elements of Legal Assignment.

22. It is disputed that following the service of the Notices of Assignment, the Claimant sent further letters to the Defendant asking him to address the debt. It is disputed that letters attached to the RESPONSE TO DEFENCE were sent to the Defendant. It is disputed that notification of the assignment of the accounts from the Alleged Assignor was repeated by this subsequent correspondence, which it is disputed confirm the account details and the outstanding balance. It is disputed that the subsequent correspondence clearly advised the Defendant of the outstanding balance and his obligation to repay it. It is disputed that its purpose was to invite the Defendant to make contact with the Claimant in order to explore the possibility of agreeing a concessionary repayment plan.

The Defendant avers that the Claimant is bulk purchaser of lists of accounts on an EQUITABLE basis and speculates on the purchase of those account for approximately 10% of the alleged balances that is claimed on the accounts and as such takes a gamble on whether a balance in genuinely owed or not. The Defendant avers that it is not in the interest of the Alleged Assignor to disclose it's failure to comply with the requirements of the Consumer Credit Act 1974 and in speculative purchases it is not usual to undertake to investigate if a balance is genuinely owed for the entire items on the list, as many accounts are simply corrupt data and many others unenforceable for a variety of reasons.

23. It is not disputed that the Claimant takes issue with the Defendant in relation to paragraph 5 of the Defence. The Defendant avers that no money is owed to the Claimant.

24. It is not disputed that the Claimant will say with reference to the Particulars of Claim ('POC'):

a) The Claimant pleads a sum pursuant to a Credit Card Agreement.

b) The date of the Credit Card Agreement is provided.

c) The subject matter of the Credit Card Agreement is detailed. d) The name of the original creditor is provided.

It is contended that the Claimant is in breach of CPR 16.4 (i)(a) and (c) and PD 16 paragraphs 7.3(i) & (ii) by not providing concise details of claim and stating if claiming aggravated damages and provides no copy of contract relied on. In that the Particulars of Claim do not set out a clear and concise statement of facts upon which they rely.

In particular, the Particulars of Claim does not identify:

a. any clear summary of the facts on which the claim is based;

b. any explanation of how the amount of financial loss has been calculated;

c. any list of documents upon which the claimant intends to rely;

d. if the Claimant intends to rely on hearsay evidence; and;

e. any date(s) for cause of action, date of default notice, date of assignment or date of notice of assignment;

The defendant invites the court to dismiss this claim as it is in breach of pre court protocols in relation to the particulars of claim under practice direction 16, set out by the ministry of justice and also civil procedure rules under 16.4 and to allow such defendants costs as are permissible under civil procedure rule 27.14.

25. The Claimant will also say as follows:

a) It is not disputed that there is no requirement to attach documents to the POC with reference to Practice Directions 7A paragraph 5.2A of the Civil Procedure Rules. The Defendant avers that the requirement to provide a copy of the contract relied on it found at PD16 7.3(1) and as the Defendant is not legally trained, the Defendant made an error in stating the Civil Procedure Rule:

PRACTICE DIRECTION 16 – STATEMENTS OF CASE

7.3 Where a claim is based upon a written agreement:

(1) a copy of the contract or documents constituting the agreement should be attached to or served with the particulars of claim and the original(s) should be available at the hearing, and

(2) any general conditions of sale incorporated in the contract should also be attached (but where the contract is or the documents constituting the agreement are bulky this practice direction is complied with by attaching or serving only the relevant parts of the contract or documents).

b) It is disputed that on or about the 18 February 2022 the Claimant's Solicitors sent to the Defendant a debt Pre-Action Protocol letter clearly setting out the Claimant's claim. A copy of the debt Pre-Action Protocol letter dated 18 February 2022 is attached. The Defendant avers that no Pre-Action Letter was sent and the Claimant has issued proceedings in breach of Pre-Action Protocol.

c) It is disputed that the Defendant has sufficient knowledge of the claim in which to understand the cause of action and make submission.

26. It is disputed that the Letter Before Action dated 18 February 2022 and POC provided sufficient details to enable the Defendant to establish the subject matter of these proceedings as no Letter Before Action was received by the Defendant. The Claimant is required to provide proof of postage of any Letter Before Action they claim to have sent in this matter.

27. It is disputed that n the circumstances the Defence should be struck out. The Defendant avers that in the circumstances, the Claimant's Particulars of claim should should be struck out for breaches of CPR 16.4 (i)(a) and (c) and PD 16 paragraphs 7.3(i) & (ii) by not providing concise details of claim and stating if claiming aggravated damages and provides no copy of contract relied on. In that the Particulars of Claim do not set out a clear and concise statement of facts upon which they rely.

28. For the reasons set out above, the Court is invited to strike out the Claimant's claim pursuant to the provisions of CPR 3.4 (2) (a) in that it discloses no grounds for bringing these proceedings.

Dated this 18th day of May 2022

Statement of Truth

Signed:

Full name: [DEFENDANTS NAME]

Position: DEFENDANT

3 Letter Process as Exhibit

PART 18 requests as Exhibits

Page updated

Google Sites

Report abuse