Lowell 37

Claim No: AB1234

In the County Court at Wigan

Between:

Lowell Portfolio i Ltd

Claimant

-and-

[DEFENDANT NAME]

Defendant

----------------------------------------------------------

WITNESS STATEMENT OF NAHEED FATIMA

----------------------------------------------------------

I, Naheed Fatima, of Overdales Legal Limited, whose registered address is Ellington House, 9 Savannah Way, Leeds, LS10 1AB, WILL SAY as follows:

INTRODUCTION

1. I am a Senior Complex Litigation Paralegal in the employ of Overdales Legal Limited, 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.

3. This witness statement is made in response to the Defendant's application to set Aside the Judgment dated 28 July 2022.

BACKGROUND

4. The Judgment relates to a Claim issued on 26 March 2021 for the recovery of a debt that has been assigned to the Claimant.

5. The debt relates to an Agreement regulated by the Consumer Credit Act 1974 ("the Agreement") between J.D. Williams & Company Ltd ("the Assignor") and the Defendant.

6. This Agreement commenced on 7 December 2016 under account number S57 and relates to the supply of credit in the form of giving the Defendant the ability to purchase from a catalogue from Fashion World. A copy of the reconstituted Agreement is hereto exhibited at "NF1".

7. Although the Defendant had the use and benefit of Agreement, the Defendant breached by failing to maintain the agreed payments. The Assignor has confirmed that the last payment received from the Defendant was on 2 January 2019 in the sum of £60.00, this is evident in the transactional statement. A copy of the statement with transaction summary is hereto exhibited at "NF2".

8. Following the Defendant's breach of the terms of Agreement, the debt was subject to a legal assignment from Assignor to the Claimant on 26 September 2019 pursuant to section 136 of the Law of Property Act 1925. Copies of the Notice of Assignment that were sent to the Defendant by the Claimant Assignor on 7 October 2019 to the address of [DEFENDANT OLD ADDRESS] are exhibited at "NF3". The Claimant allocated this account the reference of 335916730. The balance on assignment was £2338.85.

9. Legal proceedings were issued against the Defendant on 26 March 2021 and were deemed served on 31 March 2021 at [DEFENDANT OLD ADDRESS]. As the Defendant did not file a Defence, a County Court Judgment was entered against the Defendant on 13 May 2021 for the sum of £2,732.96.

THE DEFENDANT'S APPLICATION

10. The Defendant alleges that the Claimant failed to serve any pre action protocol documents.

11. The Defendant alleges that the Claimant failed to serve any Claim Form and Particulars of Claim.

12. The Defendant states that he never entered into an agreement with the Claimant.

THE CLAIMANT'S REPLY TO THE DEFENDANT'S APPLICATION

13. The Claimant opposes the Defendant's application on the basis that the Judgment is a regular and valid Judgment.

14. Prior to the commencement of this Claim, the Claimant sent a number of letters to the Defendant at his last known address of [DEFENDANT OLD ADDRESS]. A Notice of Pending Legal Action compliant with the relevant Pre-Action Protocol was sent on the 25 January 2021 on Defendant's last known address of. Copy of examples of these letters and Notice of Pending Legal Action is hereto exhibited at "NF4". No item was returned undelivered by Royal Mail, and the Defendant made no response, whether to raise matters now mentioned, or at all.

15. The Claimant therefore submits that their internal tracing systems confirmed that the Defendant was an active resident at [DEFENDANT OLD ADDRESS] at the time of issue and service. The Claimant confirms that 6 other defaults are registered on the service address on Defendant's credit file prior to issue and service of the proceedings.

16. The Claimant's trace method includes reliance on information held by Credit Reference Agencies by whom the Claimant is told, and of whom the Claimant believes, that they create links between persons of the same name at different addresses based on information provided by the subject of the information. In other words they will confirm a trace subject to be the same person at two or more different addresses where that person has either (i) given the new address to an existing creditor with whom they were previously corresponding from the old address; or (ii) confirmed the old address to a prospective new creditor as part of their application from the new address, or has otherwise managed the same credit or service account under the same name from both addresses.

17. The Claimant therefore submits that Defendant has no basis for suggesting that any mandatory ground for setting aside Judgment in accordance with CPR 13.2.

18. In order for Judgment to be set aside on discretionary grounds, the Defendant must satisfy the Court both that a discretionary ground applies in accordance with CPR 13.3, and that it would be just and equitable for the Court to exercise that discretion in all the circumstances.

19. The grounds at CPR13.3(1) are that:

(a) the defendant has a real prospect of defending the claim; or (b) it appears to the court that there is some other good reason why —

(i) the judgment should be set aside or varied; or
(ii) the defendant should be allowed to defend the claim

20 The Claimant submits that the Defendant is liable for the debt. The Defendant has had the benefit of the services provided by the Assignor. Furthermore the Defendant is not denying the existence of the Agreement.

21. The Claimant, as assignee, considers the assignment complete, is told by the Assignor and believes that the Assignor does too, as evidenced by its own Notice of Assignment already adduced in evidence at exhibit "NF3" and accepted by the Court. Thus, the parties to the Assignment consider the Assignment to be complete and as such the Assignment is not open to challenge.

22. The Claimant avers that there has been a valid assignment of this debt from the Assignor to the Claimant. The Claimant consequently further avers that it is entitled to payment of the debt from the Defendant.

23. The Claimant submits that their intention has been to communicate with the Defendant and to offer either an affordable repayment plan, or resolve the Defendant's dispute. Had the Defendant contacted the Claimant to explain his reason for non-payment, the Claimant's process is to place the account on hold and conduct an investigation with the Assignors. Should the Defendant's dispute have been valid, the Claimant would have closed the account. The Defendant's refusal to communicate had led to litigation being necessary.

24. The Claimant also respectfully reminds the Court that it now bears no burden of proof, the burden of proof in the application falling entirely on the Defendant as the applicant has to evidence and substantiate any allegation raised in his application. The Defendant has failed to do this.

25. The Defendant has not provided any evidence that he was no longer at that address at the time if he allege that claim form and Pre Action Protocol letter was not served upon him.

26. The Claimant submits that the Defendant has failed to show that there is some other good reason for the Judgment to be set aside or that he has a Defence to the Claim. The Defendant is not denying entering into an Agreement with the Assignor. As previously stated, the Judgment is a regular and valid Judgment. The Defendant had the opportunity to raise issues regarding the debt to allow the Claimant to investigate with the Assignor, but failed to do so.

DELAY

27. The Claimant avers that Judgment was obtained against the Defendant on 13 May 2021. The Defendant has not however made their application until 28 July 2022, which is 1 year and 2 months after the initial Judgment was obtained against them. Therefore the Defendant's application has not been made promptly.

28. In Core-Export SpA —v- Yang Marine Transportation Corp (2020) EWHC 425 (Comm), the High Court held that an application made 23 days after the Judgment was entered had not been made promptly in accordance to CPR 13.3(2). The Court is referred to the Judgment, in which HHJ Pelting QC stated In the circumstances, the existence of a realistically arguable defence is clearly outweighed by the history of delay, inaction, and non-engagement that is regrettably a feature of the way in which this litigation has been conducted and the pre-litigation interchanges as well... Otherwise, the purpose of approaching applications of this sort using the Denton criteria would be defeated and it would amount to a failure properly to address the requirement for applications to be made promptly as well."

29. The Claimant also relies on the ruling in Regency Rolls v Carnal' [2000] EWCA civ 379, where the Court of Appeal held that an application made 30 days after judgment has not been made promptly. 30. The Claimant's position is that the Court should apply the principles set out in the above Judgment and that the Defendant's application should therefore be dismissed.

RELIEF FROM SANCTIONS

31. The Claimant submits that there is therefore no Defence to the Claim, either with a real or any prospect of success or at all. The Claimant further submits that there is and the Defendant has suggested no other good reason why the Judgment should be set aside or varied, or why he should be allowed to defend the Claim.

32. If the Court is nevertheless satisfied that its discretion applies in this case, CPR 13.3(2) requires that in considering whether to exercise it, the Court most take into consideration whether the applicant has made the application promptly.

33. If the Court is nevertheless satisfied that its discretion applies in this case, the Claimant further respectfully reminds the Court that, as held by the Court of Appeal in Gentry v Miller [2016] 1 WLR 2696 ("Gentry"), it must go on to separately consider the test for relief from sanction in CPR 3.9 pursuant to the rule Denton v TH White Ltd [2014] EWCA Civ 906 ("Denton"). Both cases are summarised in the High Court judgment in Redbourne Group Limited v Fairgate Development Limited [2017] EWHC 1223 (TCC) ("Redbourne"). In summary, entry of default judgment is a sanction for failure to respond to the Claim form, as an application to set judgment aside is also an application for relief from sanction, and a three-stage test is set for considering an application for relief from sanction.

34. The first stage of the Denton test is to consider whether the breach is serious or significant, and Gentry rules that a breach resulting in the sanction of entry of Judgment is by definition serious and significant. The second stage considers whether there is a good reason for the breach, and here whilst the Defendant has provided a reason for the breach, he has failed to explain why he failed to inform the Claimant of his position before this application and he does not dispute the service address, so the Court is entitled to conclude there is no good reason. The third stage is consideration of all the circumstances, but the Defendant mentions none whether relevant to the breach or at all and the Claimant submits that the Court should therefore conclude that there are none excusing either the breach, and none that cannot properly grant relief under stage three where the Defendant clearly fails the test at the first two stages.

ORDER SOUGHT

35. For the reasons set out above, at the hearing, the Claimant will seek an Order that the Defendant's application be dismissed and that the Defendant pay the Claimant's costs in respect of this application.

36. The claimant respectfully submits that since no other costs and in particular no solicitor's profit costs are sought, the above paragraph should be taken as satisfying any requirement for a Schedule of Costs, a separate Schedule in prescribed form being of no assistance either to the Defendant or to the Court, and the work and expense of preparing it being disproportionate and contrary to the Overriding Objective as to costs and expediency at CPR 1.1(2)(b), 1.1(2)(c)(i) and 1.1(2)(d).

DIRECTIONS IN THE ALTERNATIVE

37. If, notwithstanding the above, the Court is minded to set Judgment aside, the Claimant requests that it does so only on the basis that the Defendant bears her own costs and the Claimant's in any event, and the Defendant is directed to file and serve a fully particularised Defence supported by documentary evidence of the facts upon which it relies within 14 days. The Claimant then requests that Directions Questionnaires be dispensed with and the matter be allocated to the Small Claims track. In this event the Claimant confirms willingness to mediate.

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.

Dated this 23 day of September 2022

Signed:

Name: Naheed Fatima

Position: Senior Complex Litigation Paralegal

Claim No: AB1234

In the County Court at Wigan

Between:

Lowell Portfolio i Ltd

Claimant

-and-

[DEFENDANT NAME]

Defendant

--------------------------------------------------------------

WITNESS STATEMENT OF [DEFENDANT NAME]

--------------------------------------------------------------

I, [DEFENDANT NAME], of [DEFENDANT ADDRESS], WILL SAY as follows:

INTRODUCTION

1. I make this witness statement in direct response to the claimants filing of a witness statement of Naheed Fatima (the ‘Alleged Witness’) dated 23rd September 2022 who's statement is based on her employment of a company called Overdales Solicitors Limited.

2. The facts contained in this witness statement are known to me and are true to the best of my knowledge, information and belief.

It is disputed that the Alleged Witness bases any of her statement on actual fact witnesses and the Defendant avers that her entire statement is based on hearsay evidence from the computer system of the Claimant and the computer system of Vanquis Bank (the ‘Alleged Assignor’). The failure of such systems have been brought to light by the recent case where sub-postmasters were acquitted of Fraud after false convictions based solely on the data from a computer system that generated erroneous data:

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

It is the Defendants 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.

3. It is noted that the Alleged Witness makes her statement in response to the Defendant's application to set Aside the Judgment dated 28 July 2022.

BACKGROUND

4. It is not disputed that the Judgment relates to a Claim issued on 26 March 2021. It is disputed that the Claim was issued for the recovery of a debt that has been assigned to the Claimant. The Defendant no debt is owed to either the Claimant or the company they claim to have purchased the benefit of the chose in action from.

5. It is disputed that the debt relates to an Agreement regulated by the Consumer Credit Act 1974 ("the Void Agreement") between J.D. Williams & Company Ltd ("the Alleged Assignor") and the Defendant.

The Defendant avers that the Void Agreement was void from the outset due to the failure of the Alleged Assignor 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 Defendant draws the Court attention to: https://www.bechbruun.com/en/news/2020/danish-consumer-ombudsman-finds-66-loan-agreements-to-be-unfair-and-void

The Defendant avers that as the Original Agreement was in breach of the Consumer Credit Act, the Alleged Assignor could not assign a benefit that was not owed - Nemo dat quod non habet - 'no one gives what they do not have'.

6. It is disputed that the Void Agreement commenced on 7 December 2016 under account number S57 and relates to the supply of credit in the form of giving the Defendant the ability to purchase from a catalogue from Fashion World. It is disputed that the document exhibited by the Claimant at "NF1" is copy of the reconstituted Void Agreement.

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

7. It is disputed that the Defendant had the use and benefit of Void Agreement. It is disputed that the Defendant breached the Void Agreement by failing to maintain the agreed payments. It is disputed that the Alleged Assignor has confirmed that the last payment received from the Defendant was on 2 January 2019 in the sum of £60.00. It is disputed that this is evident in the transactional statement. It is disputed that the document exhibited by the Claimant at "NF2" is a copy of the statement with transaction summary.

The Defendant avers that the document exhibited by the Claimant at "NF2" is simply a print out of a computer generated data that the Alleged Witness has no personal knowledge of.

8. It is disputed that the Defendant breached the terms of Void Agreement. It is disputed that the benefit of the Void Agreement was subject to a legal assignment from the Alleged Assignor to the Claimant on 26 September 2019 pursuant to section 136 of the Law of Property Act 1925 due to the constraints of:

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

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

⦁ Section 196 of the Law of Property Act 1925 - (notice must be in writing and given).

It is disputed that the documents, exhibited by the Claimant, at "NF3" are copies of Notice of Assignment that were sent to the Defendant by the Claimant and Assignor on 7 October 2019 to the address of [DEFENDANT OLD ADDRESS]. It is disputed that the Claimant allocated this account the reference of 335. It is disputed that the balance on alleged assignment was £2338.85.

The Defendant avers that by relying solely on alleged notices of assignment, the Claimant has demonstrated only a claim of Equitable assignment and has no Locus Standi to issue their 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.'

The Claimant is required to provide evidence of a valid legal assignment, in the form of a sale agreement between the Claimant and Alleged Assignor ('Deed of Assignment') or other EXCEPTION to the Common Law Doctrine of Privity of Contract ('Privity') without which the Claimant has no Locus Standi to issue a claim:

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.

9. It is a point of record that Legal proceedings were issued against the Defendant on 26 March 2021 and were deemed served on 31 March 2021 at [DEFENDANT OLD ADDRESS]. The Defendant avers that the Claimant issued a claim at an address without conducting any due diligence as to whether the Defendant was at that address or not in breach of CPR Part 6.9 (3):

Part 6 - Service of Documents:

6.9(3) Where a claimant has reason to believe that the address of the defendant referred to in entries 1, 2 or 3 in the table in paragraph (2) is an address at which the defendant no longer resides or carries on business, the claimant must take reasonable steps to ascertain the address of the defendant’s current residence or place of business (‘current address’).

The Defendant avers that the Claimant took no reasonable steps to ascertain the address of the Defendant's current residence and has gained an advantage by serving documents at an old address.

It is not disputed that the Defendant did not file a Defence and a County Court Judgment was entered against the Defendant on 13 May 2021 for the sum of £2,732.96. The Defendant avers that had the Claimant taken reasonable steps to ascertain the address of the Defendant's current residence, they could have easily found the correct address to serve documents and the Defendant would have responded by filing a Defence when served with a Claim form.

THE DEFENDANT'S APPLICATION

10. It is not disputed that the Defendant alleges that the Claimant failed to serve any pre action protocol documents. The Defendant avers that the Claimant is a bulk purchaser of lists of data on an Equitable basis from Alleged Assignors who conducts no due diligence in to whether any of the data they purchase is accurate, up to date or is corrupt data.

11. It is not disputed that the Defendant alleges that the Claimant failed to serve any Claim Form and Particulars of Claim. The Defendant avers that the Claimant took no reasonable steps to check whether the address data they had on file was the correct address for service in breach of CPR Part 6.9 (3).

12. It is not disputed that the Defendant states that he never entered into an agreement with the Claimant. The Defendant avers that the Claimant was not a party to the Void Agreement and therefore has no right to sue for any benefit of the Void Agreement without demonstrating an EXCEPTTION to Privity:

THE CLAIMANT'S REPLY TO THE DEFENDANT'S APPLICATION

13. It is disputed that the Claimant is entitled to oppose the Defendant's application on the basis that the Judgment is a regular and valid Judgment. The Defendant avers that the Claimant is a speculator that gambles on the purchase of portfolios or lists of data on an Equitable basis and is seeking betterment by bringing bulk claims against persons named in their lists of data without conducting any checks into whether the purchased data is valid in breach of CPR Part 6.9 (3).

14. It is disputed that prior to the commencement of this Claim, the Claimant sent a number of letters to the Defendant at his last known address of [DEFENDANT OLD ADDRESS]. It is disputed that a Notice of Pending Legal Action compliant with the relevant Pre-Action Protocol was sent on the 25 January 2021 to the Defendant's last known address of [DEFENDANT OLD ADDRESS]. It is disputed that the documents exhibited by the Claimant at "NF4" are copies of examples of these letters and Notice of Pending Legal Action. It is disputed that no item was returned undelivered by Royal Mail, and the Defendant made no response, whether to raise matters now mentioned, or at all. The Defendant avers that the Claimant has not provided any proof of postage, which is free with standard mail at the post office, for any of the documents they claim to have posted and have not provided any proof that they took any steps whatsoever to ensure they were serving documents to the correct address.

15. It is disputed that the Claimant's internal tracing systems confirmed that the Defendant was an active resident at [DEFENDANT OLD ADDRESS] at the time of issue and service. It is disputed that 6 other defaults are registered on the service address on Defendant's credit file prior to issue and service of the proceedings.

16. It is neither agreed nor disputed that the Claimant's trace method includes reliance on information held by Credit Reference Agencies by whom the Claimant is told, and of whom the Claimant believes, that they create links between persons of the same name at different addresses based on information provided by the subject of the information. In other words they will confirm a trace subject to be the same person at two or more different addresses where that person has either

(i) given the new address to an existing creditor with whom they were previously corresponding from the old address; or

(ii) confirmed the old address to a prospective new creditor as part of their application from the new address, or has otherwise managed the same credit or service account under the same name from both addresses.

17. It is disputed that the Defendant has no basis for suggesting that any mandatory ground for setting aside Judgment in accordance with CPR 13.2. The Defendant avers the Article 6 of the European Convention on Human Rights applies and the Defendant has the right to a fair trial in determination of his civil rights and obligations.

Article 6 § 1 of the Convention – Right to a fair trial

“1. In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interests of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice. ...”

The Defendant avers that the right to a fair trial exists in Civil cases as explained in this guide: https://www.echr.coe.int/documents/guide_art_6_eng.pdf

18. It is not disputed that in order for Judgment to be set aside on discretionary grounds, the Defendant must satisfy the Court both that a discretionary ground applies in accordance with CPR 13.3, and that it would be just and equitable for the Court to exercise that discretion in all the circumstances.

19. The grounds at CPR13.3(1) are that:

(a) the defendant has a real prospect of defending the claim; or (b) it appears to the court that there is some other good reason why —

(i) the judgment should be set aside or varied; or
(ii) the defendant should be allowed to defend the claim

The Defendant avers that he has a real prospect of defending the claimant and there is good reason why the judgment should be set aside.

20. It is disputed that the Defendant is liable for the benefit of the Void Agreement. It is disputed that the Defendant has had the benefit of the services provided by the Alleged Assignor. It is not disputed that the Defendant is not denying the existence of the Void Agreement. The Defendant avers that the Void Agreement was void from the outset due to the irresponsible lending practices of the Alleged Assignor in breach of Section 138D of the Financial Services and Markets Act 2000 and CONC 5.2A of the the Consumer Credit Sourcebook, in respect of irresponsible lending.

21. It is disputed that the Claimant, as assignee, considers the assignment complete. The Defendant avers that the Claimant is well aware that they have only a claim of Equitable assignment to the Void Agreement and no Locus Standi to issue their claim.

It is disputed that the Claimant is told by the Alleged Assignor and believes that the Alleged Assignor does too. It is disputed that this is evidenced by an alleged Notice of Assignment t exhibited by the Claimant at "NF3". It is disputed that this is accepted by the Court. It is disputed that the parties to the alleged assignment consider the alleged assignment to be complete and as such the alleged assignment is not open to challenge.

The Defendant avers that the Alleged Witness cannot speak with any substance as to what the Alleged Assignor believes and is solely reliant on hearsay for which they have made no application to admit. The Court is respectfully invited to give no weight to the hearsay claims of the Claimant when deciding fact in this case.

The Defendant avers that Notice of Assignment is no evidence of a Legal Assignment and the Claimant has demonstrates no exception to Privity and has no Locus Standi to issue a claim for the benefit of a Void Agreement on an Equitable basis as demonstrated in this case:

22. It is disputed that there has been a valid assignment of this debt from the Alleged Assignor to the Claimant. It is disputed that the Claimant consequently is entitled to payment of the benefit of the Void Agreement from the Defendant.

23. It is disputed that the Claimant's intention has been to communicate with the Defendant and to offer either an affordable repayment plan, or resolve the Defendant's dispute. It is disputed that had the Defendant contacted the Claimant to explain his 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 have been valid, the Claimant would have closed the account. It is disputed that the Defendant's refusal to communicate had led to litigation being necessary.

The Defendant avers that the Claimant is attempting betterment by bringing a Claim for a balance that the Claimant knows is not owed by the Defendant either to the Alleged Assignor or the Claimant.

24. It is disputed that the Claimant bears no burden of proof and the burden of proof in the application falls entirely on the Defendant as the applicant has to evidence and substantiate any allegation raised in his application. It is disputed that the Defendant has failed to do this. The Defendant avers that the Claimant is seeking to gain an advantage by issuing a claim at an address that mail was not being received by the Defendant in breach of the Defendant's Article 6 rights under the European Convention on Human Rights:

Article 6 § 1 of the Convention – Right to a fair trial

The Defendant avers that the right to a fair trial exists in Civil cases as explained in this guide: https://www.echr.coe.int/documents/guide_art_6_eng.pdf

25. It is disputed that the Defendant has not provided any evidence that he was no longer at that address at the time if he allege that claim form and Pre Action Protocol letter was not served upon him. The Defendant respectfully draws the Courts attention to Exhibit "HA1" that shows the Defendant was in the process of moving addresses at a time when the Claimant claims to have sent pre-action letters. The Defendant avers that the Claimant has provided no evidence of postage even by standard mail which if free if requested at the post office at time of posting.

26. It is disputed that the Defendant has failed to show that there is some other good reason for the Judgment to be set aside or that he has a Defence to the Claim. It is disputed that the Defendant is not denying entering into a Void Agreement with the Alleged Assignor. It is disputed that the Judgment is a regular and valid Judgment. It is disputed that the Defendant had the opportunity to raise issues regarding the debt to allow the Claimant to investigate with the Alleged Assignor, but failed to do so. The Defendant avers that the Claimant is in breach of CPR Part 6.9 (3) by not taking reasonable steps to ascertain the current address of the Defendant:

PART 6 - SERVICE OF DOCUMENTS

(3) Where a claimant has reason to believe that the address of the defendant referred to in entries 1, 2 or 3 in the table in paragraph (2) is an address at which the defendant no longer resides or carries on business, the claimant must take reasonable steps to ascertain the address of the defendant’s current residence or place of business (‘current address’).

The Defendant avers that the Claimant is seeking to deny the Defendant his rights under Article 6 of the European Convention on Human Rights to have a fair trial in the determination of his civil rights and obligations.

DELAY

27. It is a matter of record that Judgment was obtained against the Defendant on 13 May 2021 by default. It is not disputed that the Defendant has not however made their application until 28 July 2022, which is 1 year and 2 months after the initial Judgment was obtained against them. It is disputed that the Defendant's application has not been made promptly.

The Defendant avers that he was unaware of the Default judgment, obtained at a time of national crisis and upheaval and made the application promptly when he discovered the default judgment.

28. It is disputed that the Claimant can rely on Core-Export SpA —v- Yang Marine Transportation Corp (2020) EWHC 425 (Comm), the High Court held that an application made 23 days after the Judgment was entered had not been made promptly in accordance to CPR 13.3(2). The Court is referred to the Judgment, in which HHJ Pelting QC stated In the circumstances, the existence of a realistically arguable defence is clearly outweighed by the history of delay, inaction, and non-engagement that is regrettably a feature of the way in which this litigation has been conducted and the pre-litigation interchanges as well... Otherwise, the purpose of approaching applications of this sort using the Denton criteria would be defeated and it would amount to a failure properly to address the requirement for applications to be made promptly as well."

The Defendant avers that the judgment also included the fact that "The background to this is instructive. The claim was first presented to the defendants as long ago as 30 January 2019. "Unless the claim was simply ignored from that point until judgment was entered, the second defendant had the opportunity to investigate what on any view is an apparently straight forward claim for 9 months."

The Defendant avers that he has no previous history of ignoring documents, as ruled in the case cited above, and acted promptly when he discovered the default judgment entered on his credit file.

29. It is disputed that the Claimant can rely on the ruling in Regency Rolls v Carnal' [2000] EWCA civ 379, where the Court of Appeal held that an application made 30 days after judgment has not been made promptly.

The Defendant avers that he acted promptly and filed the application to set aside the judgment as soon as he became aware of the existence of the judgment and well inside time limit ruled in the Regency Rolls v Carnal case.

30. It is disputed that that the Court should apply the principles set out in the Core-Export SpA —v- Yang Marine Transportation Corp (2020) EWHC 425 (Comm) and Regency Rolls v Carnal' [2000] EWCA civ 379, Judgments. It is disputed that that the Defendant's application should be dismissed.

The Defendant avers that the Court should grant the set aside in line with the ruling in:

Melanie Stanley v London Borough of Tower Hamlets [2020] EWHC 1622 (QB)

Mr Justice Knowles found that the claimant’s solicitor “knew or should have known [the defendant’s offices] were shut and the [defendant] was highly unlikely to be in a position to respond”. The court took the view that the claimant’s solicitor “was at fault for not checking whether service by post was still possible and feasible” and that it would have been “unconscionable” to have allowed the claimant to benefit from the “unprecedent health emergency” of COVID-19.

RELIEF FROM SANCTIONS

31. It is disputed that there is no Defence to the Claim, either with a real or any prospect of success or at all. It is disputed that there is and the Defendant has suggested no other good reason why the Judgment should be set aside or varied, or why he should be allowed to defend the Claim.

The Defendant avers that he has the right to a fair trial under Article 6 of the European Convention on Human Rights and it is fair and reasonable to set aside the judgment to allow the Defendant to defend the claim. The Defendant avers that it would be unfair to allow the judgment to stand without affording the Defendant the opportunity to present his Defence to the Court.

32. It is not disputed that if the Court is nevertheless satisfied that its discretion applies in this case, CPR 13.3(2) requires that in considering whether to exercise it, the Court must take into consideration whether the applicant has made the application promptly. The Defendant avers that he acted promptly and filed the application to set aside the judgment as soon as possible after learning that a judgment existed.

33. It is disputed that if the Court is satisfied that its discretion applies in this case, the ruling by the Court of Appeal in Gentry v Miller [2016] 1 WLR 2696 ("Gentry") applies and it must go on to separately consider the test for relief from sanction in CPR 3.9 pursuant to the rule Denton v TH White Ltd [2014] EWCA Civ 906 ("Denton"). Both cases are summarised in the High Court judgment in Redbourne Group Limited v Fairgate Development Limited [2017] EWHC 1223 (TCC) ("Redbourne"). In summary, entry of default judgment is a sanction for failure to respond to the Claim form, as an application to set judgment aside is also an application for relief from sanction, and a three-stage test is set for considering an application for relief from sanction.

The Defendant cites the case of:

Erol v Global Fashion Links [2014] EWHC 4687 (IPEC) (9 December 2014), a Claimant’s failure to serve a response pack is potentially a good enough reason, by itself, to set aside Judgment in default, irrespective as to the merits (or otherwise) of a Defendant’s case.

The Defendant avers that the Claimants failure to comply with CPR Part 6.9 (3) is enough on it's own to grant a set aside and relief from sanctions.

34. It is not disputed that the first stage of the Denton test is to consider whether the breach is serious or significant, and Gentry rules that a breach resulting in the sanction of entry of Judgment is by definition serious and significant. It is not disputed that he second stage considers whether there is a good reason for the breach. It is not disputed that the Defendant has provided a reason for the breach. It is disputed that the Defendant has failed to inform the Claimant of his position before this application. The Defendant avers that he telephoned the Claimant and asked if they would agree to the set aside in order to save Court time and allow the Defendant his right to a fair trial under Article 6 of the European Convention on Human Rights. The Defendant avers that he was told that the Claimant would not agree to the set aside and therefore was forced to make this application.

It is disputed that the Defendant does not dispute the service address. It is disputed that the Court is entitled to conclude there is no good reason.

It is not disputed that the third stage is consideration of all the circumstances. It is disputed that the Defendant mentions none whether relevant to the breach or at all. It is disputed that the Court should conclude that there are none excusing either the breach, and none that cannot properly grant relief under stage three. It is disputed that the Defendant fails the test at the first two stages.

The Defendant avers that an overriding principle Article 6 of the European Convention on Human Rights should be considered and the set aside granted.

ORDER SOUGHT

35. It is disputed that the Claimant is entitled to seek an Order that the Defendant's application be dismissed and that the Defendant pay the Claimant's costs in respect of this application.

The Defendant respectfully submits that the Court should exercise it's powers to grant the Defendant's application to set aside the judgment and afford the Defendant the right to a fair trial under Article 6 of the European Convention on Human Rights.

36. it is not disputed that since no other costs and in particular no solicitor's profit costs are sought, the above paragraph should be taken as satisfying any requirement for a Schedule of Costs, a separate Schedule in prescribed form being of no assistance either to the Defendant or to the Court, and the work and expense of preparing it being disproportionate and contrary to the Overriding Objective as to costs and expediency at CPR 1.1(2)(b), 1.1(2)(c)(i) and 1.1(2)(d).

DIRECTIONS IN THE ALTERNATIVE

37. It is disputed that if the Court is minded to set Judgment aside, the Claimant requests that it does so only on the basis that the Defendant bears his own costs and the Claimant's in any event, and the Defendant is directed to file and serve a fully particularised Defence supported by documentary evidence of the facts upon which it relies within 14 days. The Defendant respectfully requests that any costs be reserved and the Claimant should be ordered to provide the documents that they are reliant on in the claim within 14 days, including but not limited to the Deed of Assignment relied on, and the Defendant be allowed to respond within a further 14 days.

It is not disputed that the that Directions Questionnaires should be dispensed with and the matter be allocated to the Small Claims track. It is not disputed that in this event the Claimant confirms willingness to mediate.

STATEMENT OF TRUTH

Dated this 4th day of October 2022

Signed: Defendants name

[DEFENDANT NAME] - Defendant

EXHIBITS "HA1"

Claim No: AB12345

In the County Court at Wigan

Between:

Lowell Portfolio i Ltd

Claimant

-and-

[DEFENDANT NAME]

Defendant

--------------------------------------------------------------

EXHIBITS “HA1” OF [DEFENDANT NAME]

--------------------------------------------------------------

Dated this 4th day of October 2022

Signed: DEFENDANT NAME

Page updated

Google Sites

Report abuse