Lowell 37 Point

CLAIM NUMBER: K4k 

IN THE COUNTY COURT AT STAFFORD 

BETWEEN: 

LOWELL PORTFOLIO I LTD 

CLAIMANT 

-AND-

MKS 

DEFENDANT 

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WITNESS STATEMENT OF MISS SALLY GRAVIL

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I, Sally Gravil, of Overdales Solicitors, whose registered address is Ellington House, Leeds, LS10 1AB, WILL STATE as follows: 

INTRODUCTION 

1 I am a Paralegal in the employ of Overdales Solicitors, the solicitors instructed by the Claimant. I have conduct of this matter subject to the supervision of my Principals and I am duly authorised by the Claimant to make this statement on the Claimant's behalf. 

2. The facts contained in this statement are known to me, save as where expressly stated, and are true to the best of my knowledge. information and belief. 

BACKGROUND 

3. The Claim relates to an agreement between Capital One (Europe) plc ("the Assignor") and the Defendant ("the Agreement"). 

4. The Agreement commenced on 8 September 2018 under account number 5460979247179473 and relates to the provision of a Luma Credit Card The Account is regulated by the Consumer Credit Act 1974. A copy of the electronically signed Agreement is hereto exhibited at ("SG1 at Pages 2-4"). 

5. Although the Defendant had the use and benefit of the Agreement, the Defendant breached the terms of the Agreement by failing to maintain the agreed repayments. A copy of the Statements are hereto exhibited at ("SG1 Pages 5-14") demonstrates the Defendant's use of the Account. 

6 The Claimant is informed by the Assignor that the last payment towards the Account was made on 22 May 2020, for the sum of £50.00, however this was insufficient to clear the outstanding balance. 

7. As a result of the Defendant's breach, the Assignor issued a Default Notice to the Defendant under section 87(1) of the Consumer Credit Act 1974 on 4 May 2020, hereto exhibited at ("SG1 at Pages 15-18) and a Termination Notice dated 6 June 2020, hereto exhibited at ("SG1 at Page 19"). 

8. Following the Defendant s breach of the terms of the Agreement and continued non-payment, the debt was subject to a legal assignment from the Assignor to the Claimant on 18 March 2021 pursuant to section 136 of the Law of Property Act 1925. A copy of the redacted Account Sales Particulars are exhibited hereto at ("SG1 at Pages 20-21") and Reconstituted Notices of Assignment that were sent to the Defendant on 30 March 2021 are exhibited hereto at ("SG1 at Pages 22-24"). The Claimant allocated the Account the reference of 378938617. The balance on assignment was £1,522.60. 

9. A total of 17 postal letters and 33 emails to the Defendants current postal address of 3( .„ . current email address of ????????????????????? were sent from the Claimant attempting to arrange an affordable repayment plan with the Defendant. Copies of examples of these letters are hereto exhibited at ("SG2"). 

10. The Defendant sent a Notice of Conditional Acceptance to the Claimant requesting documentation dated 30 March 2021. The Claimant responded in full by correspondence dated 19 May 2021 as exhibited hereto at ("SG1 at Pages 25-26"). 

11. Following disclosure of the requested documentation the Defendant made a complaint against the Claimant dated 6 July 2021 as she felt insufficient proof had been provided to support the purchase of the debt, the sums claimed were disputed, contact from the Claimant was harassment exacerbating her anxiety and the Claimant was not taking her illness into consideration. A full letter of response was provide to the Defendant, not upholding her complaint dated 22 July 2021 as exhibited hereto at ("SG3"). 

12. Despite ongoing attempts being made by the Claimant to discuss settlement of the account, no contact was received from the Defendant. The Defendant has not made any payments to the Claimant. 

13. The Claimant then instructed its solicitors to assist in the recovery of the outstanding debt on 7 November 2022. The Claimant's Solicitors sent a Notice of Acting dated 17 November 2022, exhibited hereto at ("SG4") and Letter of Claim in compliance with the Pre-Action Protocol for Debt Claims dated 28 November 2022, exhibited hereto at ("SG5"). 

14. The Defendant failed to respond, therefore, legal proceedings were issued against the Defendant on 13 January 2023. 

15. The Claimant claims the assigned sum of £1,522.60, interest of £121.81, plus costs and Court fees of £376.00. A total claim of £2,020.41 plus advocate costs in attending the Hearing. 

16. On 1 February 2023 the Defendant sent the Claimant Solicitors a Notice of Conditional Acceptance requesting documents identical to the previous one sent and responded to by the Claimant, copy exhibited hereto at ("SG6"). 

THE DEFENDANT'S DEFENCE 

17. The Defendant's Defence is a generic template commonly found on Internet forums and does not seek to address this matter specifically. Further, the Defence is repetitive and as such the Claimant summarises its understanding of the Defence as follows: 

a. Disputes the Claimant's legal standing and disputes legally assigned to the Claimant; 

b. Alleges irresponsible lending by the Assignor; 

c. Requests copy contract, statements, Default Notice & Sale Agreement; 

d. The particulars of Claim does not set out a clear and concise statement of facts. 

REPLY TO DEFENCE

18.  The Claimant repeats paragraph 3 to 16 above and submits that the Defendant's Defence is without merit and untenable, as evidenced by the documents exhibited in this Witness Statement. 

19 The Claimant submits that the debt was legally assigned to them and it is the correct entity to bring these proceedings and has complied fully with all relevant protocols. 

20. The Defendant was provided with a Notice of Assignment initially on 30 March 2021, in response to the Defence in correspondence dated 10 February 2023 and the redacted Sale Agreement in disclosure dated 30 June 2023. 

21. The Claimant Solicitors are unaware of any contact, complaint or dispute from the Defendant for the duration of the Agreement regarding irresponsible lending. The Claimant Solicitors note the Defendant has failed to provide any evidence in support of her allegation of irresponsible lending. 

22. The Claimant specifically refers to exhibit ("SG1 at Pages 25-26").which shows that the Claimant provided copy of requested documentation under cover of correspondence dated 19 May 2021 to the Defendant, nearly 20 months prior to the issue of proceedings. 

23. The Claimant submits that the Particulars of Claim do set out a clear and concise statement of facts and are fully compliant with CPR 16.4. 

24. A full response to the Defence and Notice of Conditional Acceptance was sent to the Defendant dated 10 February 2023 (enclosures removed to avoid duplication within the Hearing Bundle) as exhibited at ("SG7").

25. No response was received from the Defendant other than a 'Notice of Non-Response' dated 2 February which was not received by the Claimant Solicitors until 21 February 2023 which appeared to have crossed with the Claimant Solicitors response dated 10 February 2023. 

26. An email dated 9 March 2023 was sent to the Defendant requesting contact, as exhibited hereto at ("SG8"). No response was received. 

27. The Defendant Directions Questionnaire was received from the Defendant on 9 April 2023 in which she confirmed she was unwilling to participate in mediation to attempt resolution of the claim. 

28. The Claimant submits that the Defendant is in breach of CPR Rule 16.5(2)(a) as they have not provided a reason for denying the Claim, they have simply contested its legality. 

29. On 20 April 2023 and 21 April 2023 further email correspondence was sent to the Defendant providing additional Default evidence and acknowledging receipt of her Directions Questionnaire as exhibited hereto at ("SG9"). No response was received. 

30. The Claimant's intention throughout its attempts to communicate with the Defendant was to offer either an affordable repayment plan, or resolve the Defendant's dispute. Had the Defendant contacted the Claimant and explained their reason for non-payment, the Claimant's process is to place the account on hold and conduct an investigation with the Assignor. Should the Defendant's dispute be valid, the Claimant would have closed the account. The Defendant's refusal to communicate has led to litigation being necessary. 

31 The Claimant submits that the statement exhibited positively affirms how the Defendant accrued the debt; therefore, establishing the Claimant's case and the Defendant's liability. 

32. The Defendant has failed to adequately explain why they should not have to pay for the service and goods of which they has had the benefit. 

33. The Claimant submits that the Defendant has been unreasonable under CPR 27.14(2)(g), in that she has: 

a) failed to respond to the Claimant's pre-action communications; 

b) failed to respond to the Claimant's solicitor's pre-action communications; 

c) failed to provide a valid Defence; 

d) failed to provide any documentation in support of their allegations within the Defence; and e) refused to participate in mediation. 

34. The Claimant submits it was assigned the benefit of the debt and not the burden. The Account was assigned to the Claimant in good faith on the assurance that the balances were valid and owing. 

35. For the reasons stated above. the Claimant respectfully submits that it is entitled to recover the outstanding sum, which is due and owing by the Defendant. 

36. The Claimant requests that the Court exercise its power to strike out the Defence on the basis that, in accordance with CPR 3.4(2)(a) the Defendant's statement discloses no reasonable grounds for defending a claim. 

ORDER SOUGHT 

37. The Claimant requests that Judgment is granted in favour of the Claimant in the sum of £2,020.41, which is inclusive of the following sums: 

a. Principal debt of £1,522.60; 

b. Interest of £121.81; 

c. Issue fee of £115.00; 

d. Fixed commencement costs in the sum of £80.00; 

e. Hearing fee in the sum of £181.00; and 

f. Claimant's costs of attendance at the hearing which will be confirmed by the advocate at the hearing. 

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. 

I am duly authorised to make this statement on behalf of the Claimant. 

Dated: 20 July 2023 

Signed: S Name: Sally Gravil 

Position: Paralegal 

CLAIM NUMBER: K4k 

IN THE COUNTY COURT AT STAFFORD 

BETWEEN: 

LOWELL PORTFOLIO I LTD 

CLAIMANT 

-AND-

MKS 

DEFENDANT 

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WITNESS STATEMENT OF [DEFENDANT'S NAME]

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I,[DEFENDANT'S NAME], of [DEFENDANT 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 in direct response to the claimants filing of a alleged witness statement of Sally Gravil (the ‘Alleged Witness’) dated 20th July 2023, but not received by the Defendant until the 26th July 2023, who's statement is based on her employment of a company called Overdales Solicitors.

The Alleged Witness bases her entire statement on hearsay evidence from the computer system of the Claimant and the computer system of Capital One (Europe) 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

2.  The facts and matters set out in this witness statement are within my own knowledge unless otherwise stated and I believe them to be true.

It is disputed that the Alleged Witness can accurately claim to be a Witness to any of the matters within the Claimant's Alleged Witness Statement and the Defendant respectfully requests that the Court give no weight to the Claimant's Alleged Witness Statement as it is based entirely on 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.

BACKGROUND 

3. It is not disputed that the Claim relates to an agreement between Capital One (Europe) plc ("the Alleged Assignor") and the Defendant (the "Void Agreement").  

The Defendant avers that the Void Agreements were void from the outset due to the Alleged Assignor's failure to comply with 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. 

4. It is not disputed that the Void Agreement commenced on 8 September 2018 under account number 5460979247179473 and relates to the provision of a Luma Credit Card. It is not disputed that the Account is regulated by the Consumer Credit Act 1974.  It is disputed that the document exhibited by the Claimant at  ("SG1 at Pages 2-4") is a copy of the electronically signed Void Agreement.

The Defendant avers that the Claimant is not compliant with Sections.77-79 of the Consumer Credit Act 1974 and Void Agreement is unenforceable.

The Defendant further avers that under the Consumer Credit Act 1974 section 61(1)(a) and 127(3) of the Act, a creditor must be able to produce a signed document (not necessarily the credit agreement) that contains the prescribed terms. The document must include the credit limit, the interest rate and details of how and when a debtor is to discharge his payment obligations.

The Defendant avers that the Claimant has failed to provide any signed document with the prescribed terms and Void Agreement  is irredeemably unenforceable.

Furthermore, it is disputed that Void Agreement is fully compliant with the Consumer Credit Act 1974, as per the case law established in the court of appeal in "Smith v. Barclays Bank plc [2016] EWCA Civ 675", where it was held that a failure to provide a consumer with a copy of the agreement before the credit was granted, would render the agreement unenforceable. Although the Claimant has provided an unsigned copy of the agreement, it is disputable whether the Defendant had signed it and received it before the credit was granted. Therefore, it would be incumbent upon the Claimant to prove that the Void Agreement was signed by the Defendant and provided to him before the credit was granted. 

5. It is disputed that the Defendant had the use and benefit of the Void Agreement. It is disputed that the Defendant breached the terms of the Void Agreement by failing to maintain the agreed repayments. It is disputed that the documents exhibited by the Claimant at  ("SG1 Pages 5-14")  are a copy of the Statements and demonstrate the Defendant's use of the Account. 

The Defendant avers that the document exhibited by the Claimant at (“SG1 Pages 5-14”) is simply a print out of a computer generated data that the Alleged Witness has no personal knowledge and as hearsay, has no bearing in this case and Void Agreement was void from the outset and irredeemably unenforceable.  

6. It is disputed that the Claimant is informed by the Alleged Assignor that the last payment towards the Account was made on 22 May 2020, for the sum of £50.00, however this was insufficient to clear the outstanding balance.  The Defendant avers that if the Claimant has communications confirming information, those communications or other Witnesses should be exhibited and the hearsay evidence of what the Alleged Witness says has been communicated should given no weight in deciding facts in this case. 

7. It is disputed that as a result of the Defendant's breach, the Alleged Assignor issued a Default Notice to the Defendant under section 87(1) of the Consumer Credit Act 1974 on 4 May 2020,. It is disputed that the document exhibited by the Claimant at ("SG1 at Pages 15-18) is a valid Default notice. It is disputed that the document exhibited by the Claimant at  ("SG1 at Page 19") is a valid Termination Notice dated 6 June 2020. The Defendant avers that the Void Agreement was void from the outset due to  the Alleged Assignor's failure to comply with 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. 

The Defenant avers that this matter is currently the subject of an irresponsible lending investigation by the Financial Ombudsman. 

8. It is disputed that the Defendant breached of the terms of the Void Agreement. It is disputed there was continued non-payment. It is disputed that the debt was subject to a legal assignment (the 'Alleged Assignment') from the Alleged Assignor to the Claimant on 18 March 2021 pursuant to section 136 of the Law of Property Act 1925 due to the constrains of Section 136 of the Law of Property Act 1925 and Section 44 of the Companies Act 2006.

The Defendant avers that Section 136 makes the requirement that any assignment must be under the hand of the assignor and Section 44 of the Companies Act 2006 requires that there be TWO signatories per company. The Defendant avers that the Claimant has no Legal Standing ('Locus Standi') to issue their claim as the instrument of assignment relied on does not meet the requirement of Section 136 of the Law of Property Act 1925 or Section 44 of the Companies Act 2006.    

It is not disputed that a copy of the redacted Account Sales Particulars are exhibited by the Claimant at ("SG1 at Pages 20-21") of their Alleged Witness Statement. It is disputed that Reconstituted Notices of Assignment were sent to the Defendant on 30 March 2021. It is disputed that the documents exhibited by the Claimant at ("SG1 at Pages 22-24") were sent to the Defendant. 

It is not disputed that the Claimant allocated the Account the reference of 378938617. It is disputed that the balance on Alleged Assignment was £1,522.60. 

The Defendant avers that no legal assignment took place as the instrument of assignment relied on by the Claimant and no balance could have been assigned as the Void Agreement was Void from the outset and no one gives what they do not have ('Nemo dat quod non habet').

9. It is disputed that a total of 17 postal letters and 33 emails to the Defendants current postal address  were sent from the Claimant attempting to arrange an affordable repayment plan with the Defendant. It is disputed that the documents exhibited by the Claimant at ("SG2") of their Alleged Witness Statement were sent to the Defendant. The Defendant avers that the Claimant is solely reliant on the hearsay of their Alleged Witness and the Defendant respectfully invites the Court to give no weight to the Claimant's Alleged Witness Statement.  

10. It is not disputed that the Defendant sent a Notice of Conditional Acceptance to the Claimant requesting documentation dated 30 March 2021. It is disputed that the Claimant responded in full by correspondence dated 19 May 2021 as exhibited by the Claimant at ("SG1 at Pages 25-26") of their Alleged Witness Statement.  The Defendant avers that the Claimant refused to provide a copy of the instrument of assignment, upon which they rely, and since has been produced by order of the Court as it is invalid as a legal assignment under Section 136 of the Law of Property Act 1925 as it is NOT under the hand of the Alleged Assignor. 

11. It is not disputed that following disclosure of the requested documentation the Defendant made a complaint against the Claimant dated 6 July 2021 as she felt insufficient proof had been provided to support the purchase of the debt, the sums claimed were disputed, contact from the Claimant was harassment exacerbating her anxiety and the Claimant was not taking her illness into consideration. It is disputed that a full letter of response was provide to the Defendant, not upholding her complaint dated 22 July 2021 as exhibited by the Claimant at ("SG3"). The Defendant avers that the Claimant adopted a standard corporate complaint procedure by dismissing the valid complaint that the Defendant has raised.  

12. It is disputed that ongoing attempts being made by the Claimant to discuss settlement of the account. It is disputed that no contact was received from the Defendant. It is not disputed that the Defendant has not made any payments to the Claimant.  The Defendant avers that no sums are owed to the Claimant as Nemo dat quod non habet, nobody gives what they don't have and the non existent benefit of the  Void Agreement was not legally assigned to the Claimant.

13. It is disputed that the Claimant then instructed its solicitors ('Overdales legal Limited') to assist in the recovery of the outstanding debt on 7 November 2022. The Defendant avers that the Claimant incorrectly refers to Overdales Legal Limited as solicitors which is a protected term and whilst the Defendant does not dispute that there may be solicitors which are  employees of the Limited company, which according to Company House registration  is based in the same building as the Claimant,  it is incorrect to refer to Overdales as solicitors. 

It is not disputed that the Overdales Legal Limited sent a Notice of Acting dated 17 November 2022, it is disputed that they are solicitors.  It is not disputed that the document exhibited by the Claimant at ("SG4") and is a Notice of Acting . It is disputed that a Letter of Claim in compliance with the Pre-Action Protocol for Debt Claims dated 28 November 2022, and exhibited by the Claimant at ("SG5"), was sent to the Defendant. 

14. It is disputed that the Defendant failed to respond. It is a matter for record that legal proceedings were issued against the Defendant on 13 January 2023.  The Defendant avers that such proceeding were issued in breach of Pre Action Protocol.

15. It is disputed that the Claimant is entitled to  claim the alleged assigned sum of £1,522.60, interest of £121.81, plus costs and Court fees of £376.00. It is disputed that the Claimant is entitled to claim of £2,020.41, which is disputed both whole and in part,  plus advocate costs in attending the Hearing. 

16. It is not disputed that on 1 February 2023 the Defendant sent the Claimant Solicitors a Notice of Conditional Acceptance requesting documents identical to the previous one sent. It is disputed that this was given a partial  responded by the Claimant, copy exhibited  by the Claimant at ("SG6"). The Defendant avers that they gave the Claimant multiple opportunities to provide a valid instrument of assignment but the Claimant has steadfastly refused to do so until ordered by the Court. The Defendant avers that the Claimant has no Locus Standi to issue their claim and respectfully invites the Court to conclude the same.  

THE DEFENDANT'S DEFENCE 

17. It is disputed that the Defendant's Defence is a generic template commonly found on Internet forums and does not seek to address this matter specifically.  The Defendant avers that it is the Claimant's Particulars of Claim which are templated as the Claimant is issuing bulk templated claims based on Mircrosoft Templates. 

It is disputed that the Defence is repetitive.  It is disputed that the Claimant accurately summarises the Defence as follows: 

a. Disputes the Claimant's legal standing and disputes legally assigned to the Claimant;  

The Defendant avers that the Claimant has failed to demonstrate any legal assignment of the benefit of the Void Agreement.

b. Alleges irresponsible lending by the Alleged Assignor; 

The Defendant avers that if the Claimant was the legal assignee of the Void Agreement they would be aware that an irresponsible lending complaint was filed with the Alleged Assignor and is now the subject of a formal investigation by the Financial Ombudsman. 

c. Requests copy contract, statements, Default Notice & Sale Agreement; 

The Defendant avers that the Claimant has failed to provide he documents required to support their claim or proof of service of such documents. 

d. The particulars of Claim does not set out a clear and concise statement of facts. 

The Defendant avers that the Particulars of Claim are based on Templates for bulk claims and due to their bulk use are generic in nature and not concise. The Defendant avers that the Claimant is issuing robotic claims using microsoft templates to issue bulk claims. The Defendant invites the Court to strike out this claim for abuse of process under CPR 3.4(2)(b).

REPLY TO DEFENCE

18.  As the Claimant repeats paragraph 3 to 16 of their Alleged Witness Statement, the Defendant repeats paragraph 3 to 16 of this Witness Statement and submits that the Defendant's Defence is not without merit and untenable, but it is the Claimant's claim is without merit.  The Defendant avers that documents exhibited by the Claimant in thier Alleged  Witness Statement are nothing more than hearsay for which the Claimant has filed no application to admit before the Court. 

19. It is disputed that the debt was legally assigned to the Claimant and it is the correct entity to bring these proceedings. It is disputed that the Claimant has complied fully with all relevant protocols.  The Defendant avers that without demonstrating a valid legal assignment the Claimant has no right to bring this claim. The Defendant cites the caselaw of: 

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.

20. It is disputed that the Defendant was provided with a Notice of Assignment initially on 30 March 2021. It is not disputed that a document claiming to be a Notice of Assignment was provided in a response to the Defence in correspondence dated 10 February 2023. It is not disputed that a  copy of a redacted Sale Agreement was provided in disclosure dated 30 June 2023.  The Defendant avers that this heavily redacted document provides no evidence of a transfer of the Void Agreement as it fails to reference the Defendant or the account in question and fails to meet the requirements of either Section 136 of the Law of Property Act 1925 or Section 44 of the Companies Act 2006.  The Defendant cites the case of:

Hancock v Promontoria (Chestnut) Ltd [2020] EWCA Civ 907 - In this case, the court held that the redacted deed of assignment did not provide the necessary information to establish the terms of the assignment, the identity of the parties involved, or the legal rights and obligations of the parties. The court therefore concluded that the claimant had not provided sufficient evidence of the assignment to establish their legal right to enforce the debt.

Also: (Promontoria (Oak) Ltd v Emanuel & Others 2021 EWCA Civ 1682) - Where redactions are to be made to the operative parts, Hancock gives clear guidance as to the appropriate way to proceed: a clear explanation must be given of the nature and extent of the redactions and the reasons for them; and the material that is redacted must not only be irrelevant but have some other additional feature such as privacy or confidentiality to justify the redaction: Hancock at [74], [89].'

21. It is disputed that Overdales Legal Limited are unaware of any contact, complaint or dispute from the Defendant for the duration of the Void Agreement regarding irresponsible lending. The Claimant Solicitors note the Defendant has failed to provide any evidence in support of her allegation of irresponsible lending.  The Defendant avers that had the Claimant had a valid legal assignment they would be aware of the ongoing complaint which is now under investigation by the Financial Ombudsman.

22. It is disputed that the documents exhibited by the Claimant at ("SG1 at Pages 25-26") shows that the Claimant provided copy of requested documentation under cover of correspondence dated 19 May 2021 to the Defendant, nearly 20 months prior to the issue of proceedings.  The Defendant avers that these documents are hearsay in nature and should be given no weight by the Court in deciding fact in this claim.

23. It is disputed that the Particulars of Claim do set out a clear and concise statement of facts and are fully compliant with CPR 16.4. 

The Defendant avers that the Particulars of Claim fail to meet the requirements of of CPR 16.4 (i)(a) and (c) and by not providing concise details of claim and not stating if claiming aggravated damages.

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 those documents upon which C intends to rely;

⦁ d. any date that D is Claimed to have entered into the Void Agreement; 

⦁ e. any date of alleged failure to maintain payments; 

⦁ f. any date of any alleged default; 

⦁ g. any date of any cause of action; or;

⦁ h. date of any alleged 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.

24. It is disputed that a full response to the Defence and Notice of Conditional Acceptance was sent to the Defendant dated 10 February 2023 (enclosures removed to avoid duplication within the Hearing Bundle) as exhibited by the Claimant at ("SG7"). 

The Defendant avers that the the Claimant in their own Alleged Witness Statement confirms that no instrument of assignment was provided until 30th June 2023 as ordered by the Court. 

25. It is disputed that no response was received from the Defendant other than a 'Notice of Non-Response' dated 2 February which was not received by the Claimant Solicitors until 21 February 2023 which appeared to have crossed with the Overdales Legal Limited response dated 10 February 2023.  The Defendant avers that as no instrument of assignment was provided by the Claimant, they had failed to substantiate their claim and a Notice of Non Response was the correct response to the Claimant's refusal to provide any evidence of legal assignment. 

26.  It is not disputed that an email dated 9 March 2023 was sent to the Defendant requesting contact, as exhibited by the Claimant at ("SG8"). I tis not disputed that no response was received. The Defendant avers that the Claimant was asked to provide proof of ownership of the benefit of the Void Agreement in the Notice of  Conditional Acceptance and could have removed any controversy by simply providing the instrument of assignment relied on. The refusal of the Claimant, for reasons that are now obvious, to provide the basis of their claim when asked in numerous letters are due to the Claimant's total lack of any Locus Standi to bring this claim. 

 27. It is not disputed that the Defendant Directions Questionnaire was received from the Defendant on 9 April 2023 in which the Defendant confirmed she was unwilling to participate in mediation to attempt resolution of the claim.  The Defendant avers that the Claimant as a bulk debt purchaser was well aware of their lack of Legal Standing to issue their claim and is attempting betterment by bringing a claim for losses they have not suffered. It is the Defendant's position that no money whatsoever is owed to the Claimant and mediation would have served no purpose other than to delay proceedings. 

28. It is disputed that the Defendant is in breach of CPR Rule 16.5(2)(a) as they have not provided a reason for denying the Claim, they have simply contested its legality.  The Defendant avers that as a bulk purchaser of data lists of delinquent accounts the Claimant is well aware of the Irresponsible Lending activities of the Alleged Assignors who it purchases lists of data from on an Equitable basis and chooses to ignore breaches of the Consumer Credit Act such as irresponsible lending despite the fact that these activities render an account both unenforceable and Void from the outset.:

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

Also: Wilson v First County Trust [2003] UKHL 40 - Where the house of lords ruled that credit agreements that do not comply with requirements of the Consumer Credit Act 1974 are unenforceable.  

29. It is disputed that on 20 April 2023 and 21 April 2023 further email correspondence was sent to the Defendant providing additional Default evidence and acknowledging receipt of her Directions Questionnaire as exhibited by the Claimant at ("SG9"). It is disputed that no response was received. 

The Defendant avers that the Claimant having started their claim, then sought to justify making the claim by requesting further documents whilst withholding the instrument of assignment until ordered to produce it by the Court. 

30. It is disputed that he Claimant's intention throughout its attempts to communicate with the Defendant was to offer either an affordable repayment plan, or resolve the Defendant's dispute. It is disputed that had the Defendant contacted the Claimant and explained their reason for non-payment, the Claimant's process is to place the account on hold and conduct an investigation with the Alleged Assignor. It is disputed that should the Defendant's dispute be valid, the Claimant would have closed the account. It is disputed that he Defendant's refusal to communicate has led to litigation being necessary. 

I strongly dispute this claim on the grounds that the Claimant does not possess a valid legal assignment for the alleged debt, and the Alleged Assignor's irresponsible lending practices render the account void from the outset. As the Defendant, I maintain my right to challenge the validity of the debt and request proof of a legally binding assignment, as well as assert my right to withhold communication until the Claimant provides verifiable evidence of their entitlement to pursue this claim. Any litigation that has ensued is a direct result of the Claimant's failure to present sufficient evidence of a valid assignment and their disregard for the Alleged Assignor's irresponsible lending practices, which undermine the credibility of their claim. 

31 It is disputed that the statement exhibited positively affirms how the Defendant accrued the debt; therefore, establishing the Claimant's case and the Defendant's liability. 

The Defendant avers that the statement provided by the Claimant lacks sufficient context and verifiable evidence to establish the Defendant's liability. The statement does not address the issues of the alleged invalid legal assignment and the Alleged Assignor's irresponsible lending practices, which are critical elements in determining the validity of the debt. Without addressing these fundamental issues, the statement alone does not substantiate the Claimant's case nor establish the Defendant's liability. As such, I request the court to thoroughly examine all relevant evidence, including evidence related to the assignment and the Alleged Assignor's lending practices, to reach a fair and just resolution in this matter.

32. It is disputed that the Defendant has failed to adequately explain why they should not have to pay for the service and goods of which they has had the benefit. 

Firstly, I reiterate that the main points of contention in this case are the validity of the alleged debt and the Claimant's right to enforce it. The alleged debt remains in dispute due to the lack of a valid legal assignment and the Alleged Assignor's irresponsible lending practices, which render the account void from the outset. Until the Claimant provides concrete evidence of a legally binding assignment and addresses the issues of irresponsible lending, my liability for the alleged debt remains in question.

Secondly, I have not refused to acknowledge any legitimate debts that may be owed. My stance is centered on seeking clarity and assurance that any debts are valid, lawful, and enforceable under the applicable legal principles.

Therefore, I assert that my dispute is not about evading legitimate debts but rather about ensuring that my rights as a consumer are protected, and any claims against me are based on accurate and lawful information. I request the court to consider these points and thoroughly evaluate the evidence presented before making any determination on the alleged liability.

33. It is disputed that the Defendant has been unreasonable under CPR 27.14(2)(g), in that the Defendant has: 

a) failed to respond to the Claimant's pre-action communications; 

b) failed to respond to the Claimant's solicitor's pre-action communications; 

c) failed to provide a valid Defence; 

d) failed to provide any documentation in support of their allegations within the Defence; and 

e) refused to participate in mediation

I dispute the assertion that I have been unreasonable under CPR 27.14(2)(g) in the following manner:

a) Pre-action Communications: I deny any failure to respond to the Claimant's pre-action communications. However, I must clarify that any alleged communications from the Claimant have not been received by me or have not been adequately substantiated. As a diligent defendant, I would have promptly responded to any legitimate pre-action communications had they been properly delivered to me.

b) Solicitor's Pre-action Communications: Similarly, I dispute any claim of failing to respond to the Claimant's solicitor's pre-action communications. To the best of my knowledge, I have not received any pre-action communications from the Claimant's solicitor. If such communications exist, the Claimant must provide verifiable evidence of delivery to establish their claim.

c) Valid Defence: I reject the assertion that I failed to provide a valid Defence. My Defence was submitted in accordance with the relevant court procedures and was based on genuine concerns regarding the alleged debt, including the lack of a valid legal assignment and irresponsible lending practices by the Alleged Assignor.

d) Documentation in Support of Allegations: My Defence was accompanied by all relevant documentation available to me at the time, supporting my position and challenging the validity of the alleged debt. Any missing documentation is solely due to the Claimant's failure to provide a valid assignment and their obligation to support their claim adequately.

e) Refusal to Participate in Mediation: I dispute the claim that I refused to participate in mediation. To my knowledge, no formal mediation request was received or properly presented to me by the Claimant. If the Claimant has evidence of a legitimate mediation invitation, they must provide such evidence to establish their assertion.

In conclusion, I assert that I have acted reasonably throughout this process and have diligently adhered to the appropriate legal procedures. My defence is based on genuine concerns regarding the validity of the alleged debt and the Claimant's failure to provide essential evidence to support their claim. I request the court to consider the facts presented and the lack of substantiated evidence by the Claimant before making any determination of reasonableness under CPR 27.14(2)(g).

34. It is disputed that the Claimant was assigned only the benefit of the debt and not the burden. The burden of proof rests upon the Claimant to demonstrate the validity of the assignment and their right to enforce the debt, and I assert that they have not provided sufficient evidence to support this claim.

Firstly, the Claimant has failed to produce a legally valid assignment of the debt from the Original Creditor to themselves. As per the Common Law Doctrine of Privity of Contract, an assignment must be legally executed and properly evidenced to transfer both the rights and obligations of the original contract. Without a valid assignment of the debt, the Claimant cannot assert their right to enforce it against me.

Secondly, I contest the assertion that the assignment was made in good faith on the assurance that the balances were valid and owing. There has been no substantiated evidence presented by the Claimant to demonstrate the due diligence they undertook to verify the accuracy and legality of the debt. Given the Alleged Assignor's history of irresponsible lending practices, any assignment made without proper investigation raises doubts about the Claimant's good faith and compliance with responsible lending principles.

Furthermore, I reiterate that the Alleged Assignor's irresponsible lending practices, which rendered the original loan agreement void from the outset, cast significant doubt on the validity of any purported assignment and subsequent claim by the Claimant.

In light of the above, I dispute the Claimant's claim of being assigned only the benefit of the debt and not the burden. The burden of proof remains with the Claimant to provide verifiable evidence of a valid assignment, conducted in good faith, and in compliance with all relevant legal and regulatory requirements. Until such evidence is presented, I maintain that the alleged debt is unenforceable against me. I request the court to thoroughly examine all evidence related to the assignment and the Alleged Assignor's lending practices to arrive at a just and informed decision in this matter.

35. In response to point 35 of the Claimant's submission, I dispute their claim that they are entitled to recover the outstanding sum from me. My previous responses have already highlighted several valid reasons challenging the Claimant's case and questioning the validity of the alleged debt.

Firstly, the Claimant has not provided a valid legal assignment of the alleged debt from the Original Creditor to themselves, as required by the Common Law Doctrine of Privity of Contract. Without a valid assignment, the Claimant cannot establish their right to enforce the alleged debt against me.

Secondly, the Alleged Assignor's irresponsible lending practices have rendered the original loan agreement void from the outset. As a result, any purported assignment of the debt carries significant doubt about its validity and enforceability.

Additionally, the Claimant's assertion that they acted in good faith and diligently communicated with me is disputed. I have not received any verified pre-action communications or legitimate mediation requests from the Claimant. Furthermore, my right to dispute the alleged debt and request verifiable evidence is fully protected under consumer protection laws.

In light of these valid disputes, the Claimant's claim to recover the outstanding sum is baseless and unfounded. I maintain my position that the alleged debt lacks a valid legal assignment, is void due to the Alleged Assignor's irresponsible lending practices, and the Claimant has not provided sufficient evidence to support their claim.

Therefore, I respectfully request the court to consider these valid disputes and thoroughly evaluate all evidence presented by both parties before making any determination regarding the Claimant's entitlement to recover the outstanding sum from me. Until the Claimant provides a legally valid assignment and addresses the concerns raised regarding the Alleged Assignor's lending practices, their claim remains unsubstantiated, and I maintain my position that I am not liable for the alleged debt.

36. I strongly dispute their request to strike out the Defence on the basis that it discloses no reasonable grounds for defending the claim. My Defence is grounded in valid legal arguments and factual disputes, which warrant a fair and just consideration by the court.

Firstly, my Defence questions the validity of the alleged debt due to the Claimant's failure to provide a valid legal assignment from the Original Creditor to themselves. As per the Common Law Doctrine of Privity of Contract, a valid assignment must transfer both the rights and obligations of the original contract. The absence of a valid assignment raises serious doubts about the Claimant's right to enforce the alleged debt.

Secondly, I have raised concerns about the Alleged Assignor's irresponsible lending practices, which render the original loan agreement void from the outset. This crucial aspect of my Defence casts significant doubt on the Claimant's entitlement to pursue the alleged debt and highlights the necessity of evaluating the validity of the assignment.

Furthermore, I have adequately presented evidence and legal arguments in support of my position, including the lack of communication from the Claimant or their solicitor's pre-action communications, which undermines their assertion that I have been unreasonable.

It is essential to reiterate that as the Defendant, I have every right to challenge the claim against me and seek validation of the alleged debt. The court's duty is to ensure fairness and justice, and as such, my Defence must be considered on its merits, rather than summarily struck out.

In light of the substantive and genuine disputes raised in my Defence, I firmly oppose the Claimant's request to strike it out. I request the court to evaluate all evidence, legal arguments, and concerns presented, as well as scrutinize the Claimant's assertions and evidence of a valid legal assignment, before making any decision on the claim.

I believe that my Defence has disclosed reasonable grounds for defending the claim, and I respectfully request the court to exercise due diligence and impartiality in evaluating my case. Striking out my Defence without proper consideration would be unjust and contrary to the principles of fairness and due process.

ORDER SOUGHT 

37. In response to point 37 of the Claimant's submission, I dispute their request for Judgment in their favour in the sum of £2,020.41. My previous responses have already highlighted various valid disputes concerning the validity of the alleged debt, the lack of a valid legal assignment, and the Alleged Assignor's irresponsible lending practices.

Firstly, without a valid legal assignment from the Original Creditor to the Claimant, the Claimant lacks the necessary legal standing to pursue the alleged debt against me. As per the Common Law Doctrine of Privity of Contract, a valid assignment must transfer both the rights and obligations of the original contract, which has not been adequately demonstrated by the Claimant.

Secondly, the Alleged Assignor's irresponsible lending practices render the original loan agreement void from the outset, and any purported assignment based on this agreement is questionable. Consequently, the Claimant's claim to recover the principal debt and interest lacks a sound basis under these circumstances.

Thirdly, the additional fees claimed by the Claimant, including the issue fee, fixed commencement costs, and hearing fee, are subject to challenge given the fundamental disputes raised in my Defense. If the court finds in my favor concerning these disputes, it would be unjust to award these fees to the Claimant.

Lastly, the Claimant's request for "Claimant's costs of attendance at the hearing" lacks specificity and transparency. These costs should be itemized and supported by relevant evidence to justify their claim.

Therefore, I respectfully oppose the Claimant's request for Judgment in their favor and the sum of £2,020.41. Given the genuine disputes raised in my Defense, the court should thoroughly evaluate all evidence and arguments presented before making any determination on the amount owed, if any.

I request the court to consider the validity of the alleged debt, the absence of a valid legal assignment, and the Alleged Assignor's irresponsible lending practices, as well as scrutinize the additional fees claimed by the Claimant. A fair and just judgment can only be reached by thoroughly evaluating all aspects of this case, and I trust that the court will uphold the principles of fairness and due process in rendering a decision.

a. Principal debt of £1,522.60 is dispted both whole and in part; 

b. Interest of £121.81 is disuted both whole and in part; 

c. Issue fee of £115.00 is disputed; 

d. Fixed commencement costs in the sum of £80.00 is disputed; 

e. Hearing fee in the sum of £181.00 is disputed; and 

f. Claimant's costs of attendance at the hearing which will be confirmed by the advocate at the hearing is disputed. 

38.  I respectfully request the court to strike out the Claimant's claim on the grounds that it is solely based on hearsay evidence. The Claimant has failed to provide any direct, admissible evidence to substantiate their allegations, and instead, relies solely on hearsay statements that lack reliability and credibility.

• Hearsay evidence is generally inadmissible in court proceedings as it does not allow the opposing party the opportunity to cross-examine the original declarant and challenge the accuracy or truthfulness of the statements. The absence of firsthand testimony or documented evidence undermines the integrity of the Claimant's claim and violates the principles of fair trial and due process.

• Throughout this case, the Claimant has repeatedly presented documents, statements, or information without providing any firsthand testimony or verified records to support their authenticity and accuracy. This reliance on hearsay evidence raises significant doubts about the reliability and veracity of the Claimant's case.

• The absence of direct evidence places an unfair burden on the Defendant, as it hinders their ability to challenge the Claimant's claims effectively and provide a comprehensive defense. The Defendant is entitled to a fair and just legal process, which includes the right to confront and cross-examine witnesses and evidence presented against them.

• Given the lack of credible evidence and the reliance on hearsay statements, I respectfully request the court to exercise its power to strike out the Claimant's claim. Striking out the claim is essential to uphold the principles of fairness and ensure that justice is served in this case.

• Furthermore, in light of the unnecessary time and resources expended by the Defendant in addressing a claim based on hearsay evidence, I request that the court awards costs in favor of the Defendant. The Defendant has had to bear unwarranted legal expenses and inconvenience due to the Claimant's failure to provide proper evidence to support their claim.

• Awarding costs to the Defendant will serve as a necessary deterrent against the presentation of unsubstantiated claims and reinforce the importance of adhering to proper evidentiary standards in legal proceedings.

In conclusion, I respectfully urge the court to strike out the Claimant's claim based on hearsay evidence and award costs in favor of the Defendant. Such action is crucial to upholding the principles of justice, fairness, and adherence to evidentiary standards in this legal matter.

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: Defendant.

Dated: 

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