Hoist Finance Witness Statement

IN THE COUNTY COURT AT DURHAM

CLAIM NO: [THE CLAIM NUMBER]

BETWEEN:

HOIST FINANCE UK HOLDINGS 3 LIMITED

CLAIMANT

And

MR [DEFENDANT NAME]

DEFENDANT

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WITNESS STATEMENT OF [ALLEGED WITNESS NAME]

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I, [ALLEGED WITNESS NAME], Paralegal of Howard Cohen and Co, Suite 1B, Joseph`s Well, Hanover Walk, Leeds, West Yorkshire, LS3 1AB, state as follows: -

1. I am a paralegal in the employ of Cohen Cramer Ltd T/a Howard Cohen & Co Solicitors (SRA Number 607109) for the Claimant, at the office address stated above. The matters to which I refer are within my own knowledge having had conduct of the case and upon reading the file of papers or are matters upon which I have received instruction from my client and are true to the best of my knowledge, information and belief. I am duly authorised by the Claimant to make this statement on its behalf.

2. Within this statement I make reference to various documents. These are now produced by me in a paginated bundle marked “JB1”. All references to page numbers within this witness statement are references to paginated exhibits of JB1 unless expressly stated to the contrary.

3. Insofar as the content of this witness statement is within my own personal knowledge, it is true. Insofar it is not within my personal knowledge, it is true to the best of my knowledge information and belief and save wherever I have stated, known to me from information, documents and instructions provided to me by Ms Ijeoma Igbokwe, the Head of Litigation or David Singleton, Transformation Manager UK (Customer Resolutions) for the Hoist group of companies. I am duly authorised by the Claimant to make this statement on its behalf and have had conduct of this case under the supervision of my principal, Solicitor and Director of Howard Cohen & Co ('HC').

4. By way of background, the Hoist group of companies within the UK consists of the parent company, Hoist Finance UK Ltd, and various subsidiaries established as holding companies for the purpose of acting as special purpose vehicles to take assignment of portfolios of delinquent accounts from original creditors. The respondent Claimant is one such holding subsidiary. HC has a long standing Solicitor and client relationship with the UK Hoist group of companies whether it be acting for an individual subsidiary, the parent company or the Hoist group. As a result of that relationship I and other employees within HC have acquired a detailed understanding of the policy, procedures and business practices applied by the respondent and Hoist Finance. For the avoidance of doubt the ‘Customer Resolutions’ team is a dedicated team within Hoist Finance which liaises with original creditors to obtain documentation in furtherance of legal proceedings.

5. The Claimant is a wholly owned subsidiary of Hoist UK Limited and is engaged in purchasing portfolios of debt from creditors.

Introduction

6. On the 24 September 2009, the Defendant entered into a Regulated Credit Card Agreement (the “Agreement”) with The Bank of Scotland Plc for the provision of a Halifax Credit Card under account number 5434294222381234. Now produced at pages 1-2 is a copy of the said signed agreement.

7. Now produced at pages 3-10 are the account Terms and Conditions.

8. From time to time, the Defendant made use of the banking facilities provided under the Agreement. Under the financial Terms and Conditions of the Agreement, the Defendant was contractually obligated to make payments as and when they became due. Now produced at pages 11-54 are copies of all available statements provided by the Claimant’s predecessor in title dated from 19 January 2011 to 21 January 2014.

9. Now produced at page 55 is a copy of the sales file data from the Claimant’s systems which shows the following entry: - “Date of Default Notice Issuance 27/05/2016”

The Claimant is informed by its predecessor in title that the entry marked “Date of Default Notice Issuance 27/05/2016” is the issuing of the Default Notice upon the Defendant.

10. The sales file data also details transaction history for transactions applied to the Defendant’s account from 8 June 2015 to 2 November 2018.

Assignment

11. On 28 November 2019, The Bank of Scotland Plc assigned all its rights and duties of the Defendants account to Hoist Finance UK Holdings 3 Limited. Such Notice of the Assignment was served upon the Defendant on 6 January 2020. Now produced at pages 56-61 is a copy of the said notice.

Service of the Claim Form

12. On 5 January 2021, a Letter of Claim was issued by Howard Cohen & Co Solicitors and served upon the Defendant. Now produced at pages 62-63 is a copy of the said letter.

13. On the 12 January 2021, the Defendant wrote a letter requesting the account documentation. The said letter was forwarded to the Claimant to deal with. Now produced at pages 64-65 is a copy of the said letter.

14. The Claimant informs me that a letter was sent to the Defendant on the 9 February 2021 informing him that the account documentation had already been sent to him, under cover of a letter dated 20 November 2020, and invited his proposals for settlement. No response was received to this letter.

15. Therefore, this Claim was issued electronically in the County Court Business Centre pursuant to Part 5 and 7 of the Civil Procedure Rules in respect of electronic data issue on 23 April 2021 and was deemed served at the Defendant’s usual residing address on 28 April 2021.

16. The Claimant’s claim was issued in the sum of £2,221.11.

17. The Claimant sufficiently particularised the claim, having identified the source of the debt. The Claimant prior to the issue of these proceedings has made a number of requests for the debt due and owing to be satisfied.

18. On the 5 May 2021, the Defendant again wrote to the Claimant for account documentation.

19. On the 7 July 2021, the Defendant filed a Part 18 request.

20. A response to the Part 18 request was filed and served by Howard Cohen & Co on the 21 July 2021.

Defence

21. The Defendant requests the account documentation and puts the Claimant to strict proof. Further, the Defendant denies signing any contract with the Claimant and requests proof that the Claimant has a right to pursue the debt.

Reply to Defence

22. The Claimant notes the comments made by the Defendant and will respond below; -

23. The Claimant draws the Court attention to paragraphs 1 – 11 above for confirmation of the debt claimed in these proceedings.

24. It is noted that the Defendant does not deny having opened and having had the benefit of a Halifax credit card account with The Bank of Scotland Plc.

25. On the 26 July 2021, Howard Cohen & Co e-mailed the Defendant with a copy of the Part 18 reply in response to his e-mail. Now produced at page 66 is a copy of the said e-mail.

26. On the 28 July 2021, Howard Cohen & Co e-mailed the Defendant with a copy of the statement of account provided by the original creditor and invited his proposals. Now produced at page 67 is a copy of the said e-mail.

27. The Deed of Assignment is a commercially privileged document and the Defendant has been provided with a copy of the Notice of Assignment, which is sufficient to satisfy Section 136 of the Law of Property Act.

28. The contents of the Defendant’s defence have been noted. However, the Claimant contends that the Defendant pleads no coherent grounds to dispute the validity of the Claim.

Conclusion

29. I therefore contend that the Defendant has no valid Defence to the Claim and respectfully submit that the Defendant is liable to Hoist Finance UK Holdings 3 Limited for the following sums: -

1) Principal Amount Claimed £2,036.11

2) Fixed Commencement Fee £105.00

3) Fixed Commencement Cost £80.00

4) Hearing Fee £170.00

Total £2,391.11

Together with any other sum that the court deems just upon entering Judgment.

Statement of Truth

30. I am duly authorized to make this Witness Statement on behalf of the Claimant.

31. 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 [ALLEGED WITNESS SIGNATURE]

Print Name – [ALLEGED WITNESS NAME]

Dated 25 August 2021

Howard Cohen & Co

Suite 1b, Josephs Well,

Hanover Walk, Leeds

LS3 1AB

Claimant’s Ref: 546872300 –JB

IN THE DURHAM COUNTY COURT

Claim No. [THE CLAIM NUMBER]

BETWEEN:

[DEFENDANT NAME]

Defendant

- and –

HOIST FINANCE UK HOLDINGS 3 LIMITED

Claimant

_____________________________________

WITNESS STATEMENT OF [DEFENDANT NAME]

_____________________________________

I [DEFENDANT NAME] of [DEFENDANT ADDRESS ]being the Defendant in this case will state as follows;

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 direct response to the claimants filing of a alleged witness statement of [ALLEGED WITNESS NAME] (the ‘Alleged Witness’) dated 25 August 2021 who's statement is based on her employment of a company called Cohen Cramer Ltd T/a Howard Cohen & Co Solicitors. The Alleged Witness bases her entire statement on hearsay evidence from the computer system of the Claimant and the computer system of The Bank of Scotland Plc (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:

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

It is my understanding 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. 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.

2. Within this statement I make reference to various documents. These are filed at the end of this Witness Statement marked “AJ1”.

3. It is disputed that insofar as the content of the Claimants Alleged witness statement is within her own personal knowledge, it is true. It is disputed that insofar it is not within the Alleged Witnesses personal knowledge, it is true to the best of her knowledge information and belief. It is disputed that save wherever she has stated, that it is known to her from information, documents and instructions provided to me by Ms Ijeoma Igbokwe, the Head of Litigation or David Singleton, Transformation Manager UK (Customer Resolutions) for the Hoist group of companies. It is disputed that the Alleged Witness is duly authorised by the Claimant to make her statement on its behalf and have had conduct of this case under the supervision of her principal, Solicitor and Director of Howard Cohen & Co ('HC'). The Defendant avers that the Alleged Witness confirms in statement that her entire statement is hearsay and the court is respectfully asked to give no weight to the entire testimony

4. It is disputed that the Claimant is anyway entitled or has any Legal Standing to bring any claim against the Defendant. It is disputed that the background of the operation of the Hoist group of companies within the UK has any relevance to this claim.

The Alleged Witness describes the Hoist group as consisting of the parent company, Hoist Finance UK Ltd, and various subsidiaries established as holding companies for the purpose of acting as special purpose vehicles to take assignment of portfolios of delinquent accounts from original creditors. The Alleged Witness states that the respondent Claimant is one such holding subsidiary.

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. The Defendant respectfully asks the Court to strike out the Claimants Claim for operating in breach of the Financial Services and Markets Act 2000.

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.

5. It is stated by the Alleged Witness that the Claimant is a wholly owned subsidiary of Hoist UK Limited and is engaged in purchasing portfolios of debt from creditors.

The Defendant avers that this is without the correct FCA registration and the Claimant is not authorised to issue an action at law without the correct registration.

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).

(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

(a) has permission, given under Part 4A or resulting from any other provision of this Act, in relation to that activity

(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.”

Introduction

6. It is disputed that on the 24 September 2009, the Defendant entered into a Regulated Credit Card Agreement (the “Alleged Agreement”) with The Bank of Scotland Plc (the 'Alleged Assignor') for the provision of a Halifax Credit Card under account number 5434294222381234.

It is disputed that the Claimant has any entitlement or Legal Standing to claim for the benefit of an agreement that they were not a party to due to the Common Law Doctrine of Privity. The Claimant is put to strict proof to prove an exemption to the Doctrine of Privity and demonstrate their Legal Standing to bring an action at Law.

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.

The Defendant avers that the Claimant has a duty to prove any exemption to the Common Law Doctrine of Privity and must show that permission was given for a third party to enforce the contract and that a valid Legal Assignment exists in the form of a Sale Agreement between the Alleged Assignor and the Claimant (the 'Deed of Assignment').

It is disputed that the document exhibited by the Claimant at pages 1-2 of their Witness Statement is a copy of the said signed agreement. The document presented by the Claimant details an Alleged Agreement date in 2005. The Defendant avers that no Agreement was entered into with the Alleged Assignor in 2005.

7. It is disputed that as the Claimant has provided an invalid Contract, upon which the rely, that the documents exhibited by the Claimant at pages 3-10 of their Witness Statement are the account Terms and Conditions. The Defendant avers that the Claimant is entirely reliant on hearsay evidence and respectfully requests that the court give no weight to the Claimant's entire Witness Statement.

8. It is disputed that, from time to time, the Defendant made use of the banking facilities provided under the Agreement. Under the financial Terms and Conditions of the Agreement, the Defendant was contractually obligated to make payments as and when they became due. It is disputed that the documents produced at pages 11-54 of their Witness Statement are valid copies of all available statements provided by the Alleged Assignor dated from 19 January 2011 to 21 January 2014 in relation to an account taken out in 2005 as detailed by the Alleged Agreement produced, and relied on by the Claimant in their Witness Statement. The Defendant avers that the Claimant has printed of data from their computer system which are, at best, unreliable hearsay with no proof that that the data contained in the file is accurate or even relevant to the Claimant's claim.

9. It is disputed that the document produced by the Claimant at page 55, of their Witness Statement is a copy of the sales file data from the Claimant’s systems which shows the following entry: - “Date of Default Notice Issuance 27/05/2016”

It is disputed that the Claimant has been informed by the Alleged Assignor that the entry marked “Date of Default Notice Issuance 27/05/2016” is the issuing of the Default Notice upon the Defendant.

If the Claimant has been informed by the Alleged Assignor of details pertinent to their claim, they should provide a Witness Statement from the Alleged Assignor to verify the details that the Claimant claims they have been informed. The Defendant avers that the Claimant's case is entirely hearsay and the Claimant has provided no evidence of service of a Default notice in relation to the Alleged Agreement.

10. It is disputed that the sales file data also details transaction history for transactions applied to the Defendant’s account from 8 June 2015 to 2 November 2018. The Defendant avers that the documents exhibited by the Claimant are at best, unreliable hearsay documents with no proof that that the data contained in the file is accurate.

The reliance on corrupt file data resulted recently in the acquittal of post masters, wrongly prosecuted and convicted by the Post Office:

bbc.co.uk/news/business-56859357

Assignment

11. It is disputed that on 28 November 2019, The Bank of Scotland Plc assigned all its rights and duties of the Defendants account to Hoist Finance UK Holdings 3 Limited due to the constraints of:

• i. The Common Law Doctrine of Privity;

• ii. The Contract (Rights of Third Parties) 1999;

• iii. Section 136 of the Law of Property Act 1925.

• iv. Section 196 of the Law of Property Act 1925;

• iv. Section 44 of the Companies Act 2006;

The Claimant has provided no evidence that they have any exemption from the Common Law Doctrine of Privity that would allow them to purchase the benefit of the Alleged Agreement. As a principle of Common Law, the Claimant would require the permission of the Defendant in order to be able to claim an exemption under:

It is disputed that Notice of the Assignment was served upon the Defendant on 6 January 2020. It is disputed that the document produced at pages 56-61 is a valid copy of any notice the Claimant claims to have sent, via unspecified methods, to the Defendant. Notice of Assignment is one or THREE requirements of Section 136 of the Law of Property Act 1925 that would establish Legal Standing for the Claimant to bring a claim. The Defendant avers that the word 'GIVEN' in Section 136 of the Law of Property Act 1925 denotes that notice should be handed to the debtor or served in compliance with with Section 196 of the Law of Property Act 1925, by registered mail.

The Defendant puts the Claimant to strict proof to provide a copy of the Deed of Assignment under CPR18 and CPR31.14 as being crucial to establish if the Claimant has any Legal standing to bring a claim the benefit of the Alleged Agreement. Claiming that the documents contain sensitive information is not a valid reason to withhold the document as the Defendant is willing to accept redacted copies of the Deed of Assignment as long as any references to the Defendant are apparent:

• Although in; Promontoria (Oak) Limited v Emanuel [2020] EWHC 104 (Ch) - Marcus Smith J concluded that the decision of the recorder at first instance to permit the claimant’s reliance on the redacted copy deed was sufficiently flawed as to require setting aside;

• 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 it was found that three conditions for the validity of a LEGAL 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 put to strict PROOF 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 Claimant should provide the Deed of Assignment in light of the media attention around the forging of documents, on an 'industrial scale' by Lloyds Bank: independent.co.uk/news/business/news/uk-banks-signature-forgery-police-commissioner-crime-nca-a9547941.html

The Defendant cites the case of:

PRA Group (UK) Limited v Mayhew at Central London County Court on 22nd March 2017 despite PRA Group providing unredacted Sale Agreements 'NO ASSIGMENT PROVED' in relation to a claimed assignment of a Barclays Bank agreement.

Although the Claimant has refused to provide the Deed of Assignment in this case, the Defendant believes that is either does not exist or it is not compliant with Section 136 of the Law of Property act nor with:

Section 44 of the Companies Act 2006

44Execution of documents

• (1)Under the law of England and Wales or Northern Ireland a document is executed by a company—

  • (a)by the affixing of its common seal, or

  • (b)by signature in accordance with the following provisions.

• (2)A document is validly executed by a company if it is signed on behalf of the company—

  • (a)by two authorised signatories, or

  • (b)by a director of the company in the presence of a witness who attests the signature.

Service of the Claim Form

12. It is not disputed that on 5 January 2021, a Letter of Claim was issued by Howard Cohen & Co Solicitors and served upon the Defendant. It is agreed that the document produced at pages 62-63, of the Claimant's Alleged Witness Statement, is a copy of the Letter of Claim.

13. It is agreed that on the 12 January 2021, the Defendant wrote a letter requesting the account documentation. The said letter was forwarded to the Claimant to deal with. It is agreed that the document produced at pages 64-65, of the Claimant's Alleged Witness statement, is a copy of the said letter.

14. It is disputed that a letter was sent to the Defendant on the 9 February 2021 informing him that the account documentation had already been sent to him, under cover of a letter dated 20 November 2020, and invited his proposals for settlement. It is disputed that the documentation had already been sent. Notably in Section V of the Defendant's letter dated 12 January 2021, exhibited by the Claimant at 64-65, the Defendant requests a copy of the Deed of Assignment which they Claimant has failed to provide despite at least THREE written request and a formal CPR-18 application. See exhibit "AJ1" - Page? The Defendant draws the Courts attention to the fact that they Claimant has not exhibited this letter that they claim to have sent. The Defendant avers that the Claimant was in breach of Pre-Action Protocol by not responding to the Defendant's letter of 12 January 2021.

15. It is a matter of record that this Claim was issued electronically in the County Court Business Centre pursuant to Part 5 and 7 of the Civil Procedure Rules in respect of electronic data issue on 23 April 2021 and was deemed served at the Defendant’s usual residing address on 28 April 2021.

16. It is disputed that the Claimant has any right or Legal Standing to issue a claim in the sum of £2,221.11. The Defendant has not shown any evidence of a Legal Assignment and simply tries to rely on a Notice of Assignment that would only confirm an Equitable Assignment:

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 Claimant is put to strict proof to show that they have satisfied all THREE requirements of the Law of Property Act 1925, namely:

• 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.

17. It is disputed that the Claimant sufficiently particularised the claim, having identified the source of the debt.

The Defendant avers that the Claimant has failed to comply with Practice Direction 16 Pre Action Conduct in that it:-

• Failed to set out the basis on which the claim is made.

• Failed to provide a clear summary of the facts on which the claim is based.

• Failed to detail what the claimant wants from the Defendant.

• Failed to provide an explanation of how the amount of financial loss has been calculated.

• Failed to provide details of any funding arrangement (within the meaning of rule 43.2(1)(k) of the CPR) that has been entered into by the claimant.

• Failed to list those documents upon which the claimant intends to rely.

• Failed to state the date by which the claimant considers it reasonable for a full response to be provided by the Defendant.

• Failed to afford the Defendant the opportunity of requesting copies of those documents prior to the filing of a Defence.

• Failed, knowing that the Defendant was unrepresented to refer myself to this Practice Direction particularly in respect of paragraph 4 concerning the court's powers to impose sanctions for failure to comply with the Practice Direction.

• Failed to warn the Defendant that ignoring the letter before the claim will lead to the claimant starting proceedings and may increase my liability for costs.

It is not disputed that the Claimant prior to the issue of these proceedings has made a number of requests for the alleged debt to be satisfied but the Defendant avers that he has given the Claimant every opportunity to prove that a debt exists and that they Legally own the balance of the Alleged Agreement, but have failed despite numerous requests to provide any such evidence. The Claimant draw the Courts attention to exhibit ("AB1") - pages .........cpr18 letters etc.

18. It is agree that on the 5 May 2021, the Defendant again wrote to the Claimant for account documentation. The Defendant avers that the Claimant has refused to provide the relevant documentation when requested which could have resolved any dispute without the need for the Court to adjudicate in this matter.

19. It is not disputed that on the 7 July 2021, the Defendant filed a Part 18 request. The Defendant avers that the Claimant is in breach of Part 18 by failing to provide the documents requested in that request. See exhibit ("AB1) pages....part18

20. It is disputed that a valid response to the Part 18 request was filed and served by Howard Cohen & Co on the 21 July 2021. The Defendant avers that the Claimant is in breach of Part 18 by failing to provide the documents requested. See exhibit ("AB1) pages....part18

Defence

21. It is agreed that the Defendant requests the account documentation and puts the Claimant to strict proof. It is agreed that the Defendant denies signing any contract with the Claimant and requests proof that the Claimant has a right to pursue the debt. The Defendant avers that the Claimant must show their exemption from the Common Law Doctrine of Privity which, as a basic principle of Contract Law states that only a party to a contract can sue in breach of the contract. The Defendant has requested proof of their exemption which the Claimant has refused to provide despite numerous requests including but not limited to a CPR-18 request.

Reply to Defence

22. It is disputed that the Claimant notes the comments made by the Defendant and has respond by addressing them in substance; -

23. It is disputed that paragraphs 1 – 11 of the Claimants Alleged Witness Statement are any confirmation of the alleged debt claimed in these proceedings.

24. It is disputed that the Defendant does not deny having opened and having had the benefit of a Halifax credit card account with The Bank of Scotland Plc. The Defendant avers that the Claimant is not party to any dealing the Defendant has with any third party Corporations and has addressed initial communication in trying to establish the Claimant's Legal Standing to ask for payment on behalf of a third party company. The Defendant avers that the Claimant has been either unwilling or unable to provide any proof of their Legal Standing and as such is not entitled to information relation to a third party company under GDPR and the Data Protection Act 2018.

25. It is not disputed that on the 26 July 2021, Howard Cohen & Co e-mailed the Defendant with a copy of the Part 18 reply in response to his e-mail. It is disputed that the document produced by the Claimant at page 66 of their Alleged Witness Statement is a valid response to the Defendant's Part 18 request as the Claimant has simply refused to provide documents they allege commercially privileged document.

See: Although in; (Promontoria (Oak) Limited v Emanuel [2020] EWHC 104 (Ch)) - Marcus Smith J concluded that the decision of the recorder at first instance to permit the claimant’s reliance on the redacted copy deed was sufficiently flawed as to require setting aside;

The Defendant avers that the Claimant could have simply redacted any Deed of Assignment they rely on in this matter to show they are compliant with the Section 136 of the Law of Property Act 1925, but has chosen not to and therefore has not satisfied the burden that the Claimant has both to show their Legal Standing to bring a claim.

As in this case:

(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.'

A notice of assignment does not confer the right to bring an action at Law. By relying on a Notice of Assignment the Defendant avers that the Claimant is demonstrating they do not have the right to bring this claim. They Claimant has, at most, an Equitable assignment and not Legal right to bring an action at law without joining the Alleged Assignor as party to the case.

26. It is not disputed that despite numbers requests by the Defendant to provide the Deed of Assignment relied on, on the 28 July 2021, Howard Cohen & Co e-mailed the Defendant with a copy of the statement of account provided by the Alleged Assignor and invited his proposals. The Defendant avers that he made it perfectly clear to the Claimant that the matter was disputed and the Claimant has not provided any proof that a debt is owed, to the Alleged Assignor or to the Claimant.

27. It is disputed that the Deed of Assignment is a commercially privileged document. It is disputed that the Defendant has been provided with a copy of the Notice of Assignment. It is disputed that this is sufficient to satisfy Section 136 of the Law of Property Act.

See; (Jones v Link Financial Ltd [2013] 1 WLR 693) Where it was found that three conditions for the validity of a LEGAL 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 Defendant avers that the Claimant could have redacted any commercially privileged information from the Deed of Assignment and provided a redacted document showing the Defendant's name and account number and clearly evidencing the sale of the Alleged Agreement form the Alleged Assignor to the Claimant. The Defendant avers that the Claimant has not satisfied ANY of the THREE elements of Legal Assignment as required under Section 136 of the Law of Property Act 1925.

28. It is disputed that Defendant pleads no coherent grounds to dispute the validity of the Claim. The Defendant avers that it is the Claimant who is attempting to bring a claim in breach of the Financial Services and Markets Act 2000 and without any Legal Standing to do so. The Defendant draws the Courts attention to Exhibit ("AJ-1") Page 1, also found at Page 5 of the Claimants alleged Witness statement, which shows that within the Claimant's account information the Seller does not permit Court action on the account. The Defendant avers that this evidences the fact that the Claimant has only, at most, an Equitable Assignment of an Alleged Agreement

Conclusion

29. It is disputed that the Defendant has no valid Defence to the Claim. It is disputed that the Defendant is liable to Hoist Finance UK Holdings 3 Limited for the following sums: -

1) Principal Amount Claimed £2,036.11 is disputed;

2) Fixed Commencement Fee £105.00 is disputed;

3) Fixed Commencement Cost £80.00 is disputed;

4) Hearing Fee £170.00 is disputed;

The total £2,391.11 is disputed

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

Statement of Truth

30. I am the Defendant in this case.

31. 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: [DEFENDANT SIGNATURE]

[DEFENDANT NAME] - Defendant

Dated:

IN THE DURHAM COUNTY COURT

Claim No. [CLAIM NUMBER]

BETWEEN:

[DEFENDANT NAME]

Defendant

- and –

HOIST FINANCE UK HOLDINGS 3 LIMITED

Claimant

_____________________________________

2^nd WITNESS STATEMENT OF [DEFENDANT NAME]

_____________________________________

I [DEFENDANT NAME] of [ADDRESS] being the Defendant in this case will state as follows;

I am the defendant in this case. The contents of this statement are true to the best of my knowledge, information and belief.

1. I make this witness statement in direct response to the claimants filing of the claimants hearing bundle and Miss Broadbent’s (the ‘Alleged Witness’) second witness statement. It is disputed that the matters to which the Alleged Witness refers to are within her own knowledge. The Defendant avers that they are matters upon which she has received instructions from her client and are nothing more than hearsay.

It is my understanding 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. 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.

2. The Defendant makes this 2nd Witness statement in readiness for the hearing fixed for 30th September 2021 at 2.00pm. Within this statement I make reference to various documents. These are filed at the end of this Witness Statement marked “AJ2”.

The Defendant avers that the Claimants 2nd Witness Statement fails to clarify the Claimants position and the Defendant respectfully asks the Court to order the Claimant to comply with CPR-18 and provide the documents requested. The Claimant has steadfastly refused to provide any evidence of a valid Legal Assignment without which the Claimant has no Legal Standing to bring their claim.

3. It is disputed that the Claimant responded to the Defendants Part 18 request on the 20th July 2021 and provided copies of all documentation referred to. In their response on the 20th July 2021, the Claimant refused to provide a copy of the sale agreement (the 'Deed of Assignment') between the Claimant and the The Bank of Scotland Plc (the 'Alleged Assignor') stating that the request goes beyond a Part 18 request.

The Defendant avers that this is a reasonable request as this document is the only document that would show if the Claimant has Legal Title to bring this claim. The Deed of Assignment is 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 it was found that three conditions for the validity of a LEGAL 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.

On the Claim Form issued by the Claimant on 23/04/2021 the Claimant stated that 'The Claimant claims the sums due following a Legal Assignment of the Agreement'. The Defendant avers that the Deed of Assignment is both mentioned in the Particulars of Claim and RELIED on by the Claimant as a basis for bringing an action at Law. If the Claimant cannot demonstrate the THREE elements of Legal Assignment, they have no right to bring 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."

Also; Promontoria (Oak) Ltd v Emanuel [2020] EWHC 104 (Ch) (30 January 2020) (at [64]) that: “when one is talking about documents of title, prima facie the entirety of the document (and any documents incorporated by reference) is disclosable, simply because it is (generally speaking) necessary to consider the entire document in order to understand precisely the terms of the transfer”.

The Defendant avers that the Claimant is attempting to rely solely on a Notice of Assignment when this does not provide evidence of title, only a Claim of title, and is only one of THREE requirements under Section 136 of the Law of Property Act 1925. The Defendant avers that he is entitled to view the entirety of the documents relating to assignment as set out in Promontoria (Oak) Ltd v Emanuel [2020] EWHC 104 (Ch) (30 January 2020) (at [64]).

4. It is agreed The Claimant filed a Witness Statement on the 25 August 2021 which complied with the order of District Judge Hambler dated 4 August 2021. The Defendant also filed a Witness Statement dated 1st September 2021.

It is not disputed that the Claimants Witness Statement exhibited copy documentation. The Defendant avers that the documentation relied on is insufficient for the Claimant to demonstrate their Locus Standi to issue their claim and the Defendant respectfully requests that the Court strike out their claim.

5. It is disputed The Claimant is reliant on the original creditor to provide the account documentation. As a matter of due diligence the Claimant has a duty to ensure it has all documents needed before the issue of an action at law.

It is noted by the Defendant that Further to the Defendant having filed an Application under Part 18, further requests for documentation have been sent to the original creditor. The Defendant avers that this does not negate the Claimants duty to prove their claim and provide documents requested under CPR 18.

6. It is disputed that it is acceptable that as of 22 September 2021, no further documentation has been received from the original creditor and it is not anticipated that any additional documentation will become available. If it is the position that no more documentation will become available, the Defendant avers that the claimant has no Locus Standi to bring this claim before the court as there is no valid consumer credit agreement nor default notice of which the claimant had listed in their particulars of claim. If their evidence of default notice is to be accepted then as such the stipulation they have no permission to litigate the account should also be accepted.

7. It is disputed that The Defendant has been provided with sufficient information and documentation in order for him to understand the claim made against him and it is the Claimants position that its obligations under Part 18 have been complied with. The Defendant avers that the Claimant is refusing to provide the documents requested despite being relied on by the Claimant to bring their Claim and the Defendant is entitled to and respectfully requests an order from the court for the Claimant to disclose the Deed of Assignment relied on in the Claimants claim.

8. The Defendant avers that the Claimant has failed to follow the instructions set out for the hearing. The defendant emailed the claimant on Friday 17th September 2021 as the defendant expected a reasonable amount of time to review the bundle and make a decision on agreement to it’s contents. (Exhibit A).

Miss Broadbent replied on Tuesday 21 September 2021 at 15:47 , the reply contained an attachment of just the bundle index. (Exhibit B).

The defendant replied to Miss Broadbent at 19:31 that same evening asking her to check her attachment as it was missing the documents to be included in the bundle.(Exhibit C).

Miss Broadbent replied at 9:05 on 22 September 2021 stating that she advised the defendant had already had sight of all the documents and should agree to the bundle index summary. (Exhibit D).

The defendant again replied to Miss Broadbent Wednesday 22 September 2021 at 9:05 and stated that whilst the index summary is agreed the defendant would like to see the bundle and check it for errors. (Exhibit E).

The Defendant avers that Miss Broadbent has ignored the defendants request and instead filed the bundle including what the defendant would describe as a one sided case summary and not the neutral case summary as requested in the judges instructions part ii.

The Defendant avers that Miss Broadbent has also failed to follow the judges instructions part iv. By refusing to allow the defendant to view the contents of the bundle prior to filing them.

Statement of truth

9. I am the Defendant in this case.

10. 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:

[DEFENDANT NAME] - Defendant

Dated:

27/09/2021