Embedded Files
CLAIM NUMBER: AB12345
IN THE COUNTY COURT AT PORTSMOUTH
BETWEEN:
LOWELL PORTFOLIO I LTD
Claimant
-and-
[DEFENDANT NAME]
Defendant
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WITNESS STATEMENT OF JOANNE CROFT
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I, Joanne Croft, of Overdales Solicitors, whose registered address is Ellington House, 9 Savannah Way, Leeds Valley Park West, 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 witness statement on the Claimant's behalf.
2. The facts contained in this witness statement are known to me, save as where expressly stated, from review of the Claimant's computerised case management system and are true to the best of my knowledge, information and belief.
BACKGROUND
3. The Claim consists of debts due on accounts that have been assigned to the Claimant:
Claimant's Reference
Account 1 350
Original Creditor - British Gas Trading Ltd
Original Creditor Reference
850
Claimant's Reference
Account 2 382 - NPower Ltd
Original Creditor Reference
206
4. The Claimant will now provide information on the aforementioned accounts in turn.
ACCOUNT 1
5. Account 1 relates to the provision of utilities (the "Agreement") not regulated by the Consumer Credit Act 1974, between the Defendant and British Gas Trading Ltd (the "Assignor 1"). The Agreement relates to the account number 850 and provision of dual fuel to [DEFENDANT OLD ADDRESS], which commenced on 12 June 2017.
6. The original Agreement is not exhibited because:
a. the Claimant does not have access to a copy as this was not retained by the Assignor;
b. there is no legislation requiring the Assignor to retain a copy of the original Agreement.
7. The Defendant had the use and benefit of the Agreement before breaching the terms of the Agreement by failing to make the required payments.
8. Assignor 1 has advised that the Defendant failed to make any payments on the account.
9. The Agreement was ended on 12 October 2017 with the final meter reading provided by the Defendant's new utility provider.
10. A copy of the final bill dated 23 March 2018 covering the period of 12 June 2017 to 12 October 2017 that has been provided to the Claimant by Assignor 1 is exhibited hereto at ("JC1").
11. Following the Defendant's breach of the Agreement by non-payment of the outstanding amount the account was subject to a written legal assignment on 18 December 2019 pursuant to Section 136 of the Law of Property Act 1925 from the Assignor to the Claimant. Reconstituted Notice of Assignments that were sent to the Defendant on behalf of the Claimant and Assignor, to the address known to them at the time being that for the Defendant, of 24 Kingsway, Hayling Island, P011 OLZ and are hereto exhibited at ("JC2"). The Claimant allocated this account the reference of 350 and the balance at assignment was £525.98.
ACCOUNT 2
12. Account 2 relates to the provision of utilities (the "Agreement") not regulated by the Consumer Credit Act 1974, between the Defendant and NPower Ltd (the "Assignor 2"). The Agreement relates to the account number 206150559 and provision of dual fuel to 358 London Road, Waterlooville, P07 7SR, which commenced on 13 October 2017.
13. The original Agreement is not exhibited because: a. the Claimant does not have access to a copy as this was not retained by the Assignor; b. there is no legislation requiring the Assignor to retain a copy of the original Agreement.
14. The Defendant had the use and benefit of the Agreement before breaching the terms of the Agreement by failing to make the required payments.
15. Assignor 2 has informed the Claimant that the last payment made by the Defendant was on 10 January 2019 in the sum of £370.
16. The Agreement was terminated by the Defendant on 27 February 2019 who provided the final meter reading to Assignor 2.
17. A copy of the final bill dated 27 February 2019 covering the period of 14 January 2019 to 27 February 2019 that has been provided to the Claimant by Assignor 2 is exhibited hereto at ("JC3").
18. Following the Defendant's breach of the Agreement by non-payment of the outstanding amount the account was subject to a written legal assignment on 4 June 2021 pursuant to Section 136 of the Law of Property Act 1925 from the Assignor to the Claimant. Reconstituted Notice of Assignments that were sent to the Defendant on behalf of the Claimant and Assignor, to the address known to them at the time being that for the Defendant, of [DEFENDANT OLD ADDRESS] and are hereto exhibited at ("JC4").
The Claimant allocated this account the reference of 382566206 and the balance at assignment was £1496.57.
19. The Claimant avers therefore that it is the correct entity to bring these legal proceedings against the Defendant.
20. The Defendant failed to respond to the request for payment on the accounts set out above, legal proceedings were issued on 8 February 2022 and deemed served on 14 February 2022.
21. The total amount claimed is £2145.32. A breakdown of how the balance is made up is set out below:
THE DEFENCE
22. The Defendant states that he has never entered into a contract with Lowell Portfolio I Ltd.
REPLY TO DEFENCE
23. Paragraphs 2-20 above are herein repeated.
24. The Defendant has not denied opening the accounts with the Assignors.
25. The Claimant submits that the Defendant would have been aware of his liability for the outstanding balances accrued on the accounts, as assigned to Lowell Portfolio I Ltd, as the Claimant has sent a total of 23 pre litigation letters to the Defendant.
26. On Account 1 the Claimant sent 9 letters between 12 June 2020 and 15 October 2020 to the address of [DEFENDANT OLD ADDRESS] . The Claimant then made further enquiries and retraced the Defendant to the address he now confirms to the Court. Between 4 November 2020 and 18 October 2021 the Claimant sent a further 8 letters to the Defendant at that address.
27. On Account 2 the Claimant sent 6 letters between 28 June 2021 and 29 September 2021 to the address of [DEFENDANT ADDRESS] as confirmed in by the Defendant as their current address in their Defence. Examples of the letters sent are hereto exhibited at ("JC5").
28. The Particulars of Claim are concise and have provided the relevant information for the Defendant to identify what the claim relates to. The pre action protocol was complied with as a Notice of Pending Legal Action was sent to the Defendant's confirmed address of [DEFENDANT ADDRESS] dated 13 December 2021 as exhibited hereto at ("JC6").
29. The Claimant submits that the Assignor and the Claimant have been corresponding with the Defendant at the address that he was shown to be registered living at being [DEFENDANT ADDRESS] this still being the Defendant's current residence. The Defendant would have, therefore, been aware of the outstanding debt prior to its assignment to the Claimant, but still refused to engage with the Claimant and/or its solicitors.
30. The Claimant avers that it has regularly attempted to reach an amicable resolution in this matter and provided the Defendant with evidence of his liability for the debts on a number of occasions; however, the Defendant failed to engage with the Claimant and or its Solicitors.
31. Had the Defendant contacted the Claimant and explained the reason(s) for non-payment, the Claimant's process is to place the accounts on hold and conduct an investigation with the Assignor. Should the Defendant's dispute have been valid, the Claimant would have taken the appropriate action. The Defendant's refusal to communicate has led to litigation being necessary.
32. The Claimant denies that the Defendant's Defence carries any prospect of successfully defending the claim. The Defendant has failed to evidence:
a) Why he should not have to pay for the goods and services he has had the benefit of;
b) Who, if not he, is responsible for accruing the debt? and
c) Why he failed to contact the Claimant following receipt of proof of his liability for the debt, therefore, resulting in these legal proceedings becoming necessary.
33. The Claimant avers that the Defendant failed to settle this matter amicably with the Claimant. The Defendant, therefore, left the Claimant with little alternative but to issue legal proceedings, the costs of which could have been avoided.
34. The accounts were purchased in good faith, and as far as the Claimant is aware, the debts are due and owing and the Defendant is liable to pay the same.
35. For the reasons stated within this Witness Statement the Claimant avers that the Defendant's Defence is without merit and untenable.
36. The Claimant submits that the Defendant's Defence is therefore without merit and submits that the Defendant's Defence should be struck out pursuant to CPR 3.4(2)(a) as the Defence discloses no reasonable grounds for Defending the Claim.
ORDER SOUGHT
37. The Claimant requests Judgment be entered for the Claimant in the sum of £2340.32, broken down below, plus costs of attendance note expected to exceed £190.00 plus VAT.
Total balance at issue Total Interest Court fees shown on claim Claimant Solicitor's costs on issuing claim
£2022.55 £122.77
£115
£80
Judgment Total £2340.32.
38. The Claimant respectfully submits that since no other costs and in particular no solicitor's profit costs are sought, and since counsel's attendance fee is excluded from the Schedule of Costs requirement by CPR 44PD 9.5(2)(d), 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).
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 30th day of September 2022
Signed:
Name:
On behalf of the Claimant.
CLAIM NUMBER: AB12345
IN THE COUNTY COURT AT PORTSMOUTH
BETWEEN:
LOWELL PORTFOLIO I LTD
Claimant
-and-
[DEFENDANT NAME]
Defendant
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WITNESS STATEMENT OF [DEFENDANT NAME]
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I, [DEFENDANT 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.
2. I make this witness statement in direct response to the claimants filing of a witness statement of Joanne Croft (the ‘Alleged Witness’) dated 8th August 2022 who's statement is based on her employment of a company called Overdales Solicitors Limited. The Alleged Witness bases her entire statement on hearsay evidence from the computer systems of the Claimant and the computer system of two different companies that the Claimant claims to have been assigned the benefit of two separate accounts.
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:
It is disputed that the facts contained in the Claimant's Alleged Witness statement are known to the Alleged Witness, save as where expressly stated, and are true to the best of his knowledge, information and belief. The Defendant avers that as the Claimant's solicitors have access to the Claimant's case record systems, from which the information in this statement originates, the entire Alleged Witness Statement is hearsay in nature and should be given no weight by the Court when deciding matters of fact in this claim.
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.
The Defendant submits that he is responding to the service of an Alleged Witness Statement by the Claimant and in compliance of the order of District Judge Pain dated 21st July 2022 who stated that documents must be sent no later than the 21st August 2022. The Defendant respectfully asks the Court from relief from sanctions for filing this Witness Statement after the date listed for the service for documents for the conciliation appointment on 4th October 2022 and contends that this Witness Statement will assist the Court in understanding the Defendant's position at this appointment and then the later full hearing on 22rd November 2022.
Within this statement I refer to various documents, these are now produced in bundle marked ("CH1").
BACKGROUND
3. It is disputed that the Claim consists of debts due on accounts that have been assigned to the Claimant. The Defendant disputes that any debt is due on the two accounts and disputes that the benefit of the accounts has legally been assigned to the Claimant. The Claimant lists the accounts as:
Claimant's Reference
Account 1 350
Original Creditor - British Gas Trading Ltd (the '1st Alleged Assignor')
Original Creditor Reference
850 (the '1st Alleged Agreement')
Claimant's Reference
Account 2 382 - NPower Ltd (the '2nd Alleged Assignor)
Original Creditor Reference
206 (the '2nd Alleged Agreement')
The Defendant avers that the Claimant is a bulk purchaser of lists of accounts who conducts no due diligence in to whether the data in the lists of accounts is accurate or not.
4. It is disputed that the Claimant has provided information on the aforementioned accounts in turn in her Alleged Witness Statement. The Defendant avers that the entire Alleged Witness Statement is hearsay in nature and no weight should be given to it in deciding fact in this claim.
ACCOUNT 1
5. It is disputed that Account 1 relates to the provision of utilities not regulated by the Consumer Credit Act 1974, between the Defendant and the 1st Alleged Assignor. It is disputed that the 1st Alleged Agreement relates to the account number 850 and provision of dual fuel to [DEFENDANT OLD ADDRESS], which commenced on 12 June 2017.
The Claimant is required to provide a copy of the contract upon which they rely to demonstrate any exception that the Claimant may have to the Common Law Doctrine of Privity of Contract ('Privity') may have under the Contracts (Rights of Third Parties) Act 1999 Section 1(3):
1 Right of third party to enforce contractual term.
(3) The third party must be expressly identified in the contract by name, as a member of a class or as answering a particular description but need not be in existence when the contract is entered into.
The Defendant avers that the Claimant has no EXCEPTION to Privity and has no Locus Standi to bring their claim.
6. It is not disputed that the original Alleged Agreement is not exhibited because:
a. the Claimant does not have access to a copy as this was not retained by the 1st Alleged Assignor;
The Defendant avers that the Claimant is required to provide a copy of the Alleged Agreement to ascertain if the Claimant has any exception under the Alleged Agreement to Privity or whether the sale of the benefit of the Alleged Agreement is prohibited under the terms of that Alleged Agreement.
b. there is no legislation requiring the 1st Alleged Assignor to retain a copy of the original Alleged Agreement.
It is disputed that there is no legislation requiring the 1st Alleged Assignor to retain a copy of the original Alleged Agreement. The Defendant avers that the 1st Alleged Assignor has an obligation under Section 386, 387 and 389 of the Companies Act 2006 to keep adequate accounting records for a period of 6 years, including but not limited to any consumer contracts.
The Defendant avers that the 1st Alleged Assignor has been fined for issuing incorrect terms and conditions about exit fees and so any such terms relied on should be provided by the Claimant:
7. It is disputed that the Defendant had the use and benefit of the 1st Alleged Agreement before breaching the terms of the 1st Alleged Agreement by failing to make the required payments. The Claimant is required to state exactly which terms they are reliant on in relation to any alleged breach of terms and conditions and provide a copy of such terms and condition upon which they rely in relation to the 1st Alleged Agreement.
8. It is disputed that Alleged Assignor 1 has advised that the Defendant failed to make any payments on the account. The Defendant avers that this the Claimant is solely reliant on hearsay evidence for which they have filed no application to admit under 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 respectfully invites the Court to give no weight to such unsubstantiated claims.
9. It is disputed that the 1st Alleged Agreement was ended on 12 October 2017 with the final meter reading provided by the Defendant's new utility provider. The Defendant avers that the Alleged Witness has no knowledge of any of the events that occurred and is solely reliant on the hearsay of data stored on a computer system. The Defendant avers that for every KLOC (1000 lines of computer code) every piece of commercial software contains 0.5 to 1 errors per KLOC.
It CANNOT be said that just because it's computer controlled that errors and CORRUPT data cannot occur as happened in the HORIZON SCANDAL:
https://www.theguardian.com/uk-news/2021/apr/23/court-clears-39-post-office-staff-convicted-due-to-corrupt-data
The Defendant avers that no weight should be given to the Alleged Witness simply regurgitating data read from a computer visual display unit.
10. It is disputed that the document exhibited by the Claimant as ("JC1") is a copy of the final bill dated 23 March 2018 covering the period of 12 June 2017 to 12 October 2017 that has been provided to the Claimant by 1st Alleged Assignor. The Defendant avers that the document is solely computer generated and the Alleged Witness cannot claim, in good conscience, to have witnessed any part of the data input that went into the automated production of such document which should be disregarded and given no weight in deciding fact in this claim.
11. It is disputed that the Defendant's breached the 1st Alleged Agreement by non-payment of the outstanding amount. it is disputed that the account was subject to a written legal assignment on 18 December 2019 pursuant to Section 136 of the Law of Property Act 1925 from the 1st Alleged Assignor to the Claimant 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 - (Any notice must be in writing).
It is disputed that reconstituted Notice of Assignments were sent to the Defendant on behalf of the Claimant and the 1st Alleged Assignor, to the address known to them at the time being that for the Defendant, of [DEFENDANT OLD ADDRESS] and are exhibited by the Claimant at ("JC2"). It is disputed that the Claimant allocated this account the reference of 350 and the balance at assignment was £525.98.
The Defendant avers that any allocation of numbers was entirely computer generated and any alleged balance was simply a computer generated numeric field with no relation to reality.
The Defendant avers the the alleged provision of a notice of assignment gives no EXCEPTION to Privity as seen in this case:
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 PROOF of an EXCEPTION to Privity which has been requested by the Defendant in phone calls, emails and letters to the Claimant.
The Defendant avers that the Claimant has no Locus Standi to issue a claim for the benefit of the 1st Alleged Agreement for which they were not a party as seen in:
See: Dunlop Pneumatic Tyre Co Ltd v Selfridge Ltd [1915] AC 847 - The Lords agree fundamentally with the decision of the Court of Appeal; there was no contract between Dunlop and Selfridge and therefore Dunlop cannot sue.
The Defendant respectfully invites the Court to conclude that the refusal of the Claimant to provide any evidence of a valid Legal assignment means that the Claimant has no Locus Standi to bring this claim and Privity applies.
ACCOUNT 2
12. It is disputed that Account 2 relates to the provision of utilities (the "2nd Alleged Agreement") not regulated by the Consumer Credit Act 1974, between the Defendant and NPower Ltd (the "2nd Alleged Assignor"). It is disputed that the 2nd Alleged Agreement relates to the account number 206 and provision of dual fuel to [DEFENDANT OLD ADDRESS], which commenced on 13 October 2017.
The Claimant is required to provide a copy of the contract upon which they rely to demonstrate any exception that the Claimant may have to the Common Law Doctrine of Privity of Contract ('Privity') may have under the Contracts (Rights of Third Parties) Act 1999 Section 1(3):
1 Right of third party to enforce contractual term.
(3) The third party must be expressly identified in the contract by name, as a member of a class or as answering a particular description but need not be in existence when the contract is entered into.
The Defendant avers that the Claimant has no EXCEPTION to Privity and has no Locus Standi to bring their claim.
13. It is disputed that the original Agreement is not exhibited because:
a. the Claimant does not have access to a copy as this was not retained by the 2nd Alleged Assignor;
The Defendant avers that the Claimant is required to provide a copy of the Alleged Agreement to ascertain if the Claimant has any exception under the Alleged Agreement to Privity or whether the sale of the benefit of the 2nd Alleged Agreement is prohibited under the terms of the 2nd Alleged Agreement.
b. there is no legislation requiring the Assignor to retain a copy of the original Agreement.
It is disputed that there is no legislation requiring the 2nd Alleged Assignor to retain a copy of the original 2nd Alleged Agreement. The Defendant avers that the 2nd Alleged Assignor has an obligation under Section 386, 387 and 389 of the Companies Act 2006 to keep adequate accounting records for a period of 6 years, including but not limited to any consumer contracts.
14. It is disputed that the Defendant had the use and benefit of the 2nd Alleged Agreement before breaching the terms of the 2nd Alleged Agreement by failing to make the required payments. . The Claimant is required to state exactly which terms they are reliant on in relation to any alleged breach of terms and conditions and provide a copy of such terms and condition upon which they rely in relation to the 2nd Alleged Agreement.
15. It is disputed that the 2nd Alleged Assignor has informed the Claimant that the last payment made by the Defendant was on 10 January 2019 in the sum of £370. The Defendant avers that this the Claimant is solely reliant on hearsay evidence for which they have filed no application to admit under 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 respectfully invites the Court to give no weight to such unsubstantiated claims.
16. It is disputed that the 2nd Alleged Agreement was terminated by the Defendant on 27 February 2019 who provided the final meter reading to 2nd Alleged Assignor. The Defendant avers that this the Claimant is solely reliant on hearsay evidence for which they have filed no application to admit under 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 respectfully invites the Court to give no weight to such unsubstantiated claims.
17. It is disputed that a copy of the final bill dated 27 February 2019 covering the period of 14 January 2019 to 27 February 2019 that has been provided to the Claimant by Assignor 2 is exhibited by the Claimant at ("JC3").
The Defendant avers that this the Claimant is solely reliant on hearsay evidence, some of which is computer generated hearsay output from computer systems for which no error logs or certificate of accuracy have been provided and for which they have filed no application to admit under 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 respectfully invites the Court to give no weight to such unsubstantiated claims.
18. It is disputed that the Defendant breached the 2nd Alleged Agreement by non-payment of the outstanding amount the account. It is disputed that the 2nd Alleged Agreement was subject to a written legal assignment on 4 June 2021 pursuant to Section 136 of the Law of Property Act 1925 from the 2nd Alleged Assignor to the Claimant.
It is disputed that the documents exhibited by the Claimant at ("JC4") are reconstituted Notice of Assignments that were sent to the Defendant on behalf of the Claimant and the 2nd Alleged Assignor, to the address known to them at the time being that for the Defendant, of 358 London Road, Waterlooville, PO7 7SR.
It is disputed that the Claimant allocated this account the reference of 382566206 and the balance at time of alleged assignment was £1496.57. The Defendant avers that any allocation of numbers was entirely computer generated and any alleged balance was simply a computer generated numeric field with no relation to reality.
The Defendant avers the the alleged provision of a notice of assignment gives no EXCEPTION to Privity as seen in this case:
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 PROOF of an EXCEPTION to Privity which has been requested by the Defendant in phone calls, emails and letters to the Claimant.
The Defendant avers that the Claimant has no Locus Standi to issue a claim for the benefit of the 1st Alleged Agreement for which they were not a party as seen in:
See: Dunlop Pneumatic Tyre Co Ltd v Selfridge Ltd [1915] AC 847 - The Lords agree fundamentally with the decision of the Court of Appeal; there was no contract between Dunlop and Selfridge and therefore Dunlop cannot sue.
The Defendant respectfully invites the Court to conclude that the refusal of the Claimant to provide any evidence of a valid Legal assignment means that the Claimant has no Locus Standi to bring this claim and Privity applies.
19. it is disputed that the Claimant is the correct entity to bring these legal proceedings against the Defendant. The Defendant avers that the Claimant has provided no evidence whatsoever that:
a) that the Defendant entered into either the 1st Alleged Agreement or the 2nd Alleged Agreement;
b) no evidence whatsoever that a binding legal contract existed.
c) No copy of any terms and conditions upon which they rely to establish a breach of such terms and conditions;
d) no Cause of Action in relation to either the 1st Alleged Agreement or the 2nd Alleged Agreement;
e) no evidence of a valid legal assignment and as such no evidence of any EXCEPTION from Privity.
20. It is disputed that the Defendant failed to respond to the request for payment on the accounts set out above. The Defendant avers that he contacted the Claimant on numerous occasions by phone to request copies of the Contracts upon which the Claimant relies and a copy of the sale agreements between the Claimant and Alleged Assignors and the Claimant has steadfastly refused to provide such documents. It is a point of record that legal proceedings were issued on 8 February 2022 and deemed served on 14 February 2022.
21. The total amount claimed is £2145.32 is disputed both whole and in part. It is disputed that a breakdown of how the balance is made up is set out below:
THE DEFENCE
22. It is not disputed that the Defendant states that he has never entered into a contract with the Claimant. The Defendant avers that the Claimant is a bulk purchaser of lists of data on an EQUITABLE basis who speculates or gambles on being able to collect balances that are claimed to be owed without conducting any due diligence into whether or not the data they are purchasing is accurate of not and as such the Claimant has no EXCEPTION to Privity and either through the Law of Property Act 1925 or the Contracts (Rights of Third Parties) Act 1999:
1 Right of third party to enforce contractual term.
(3) The third party must be expressly identified in the contract by name, as a member of a class or as answering a particular description but need not be in existence when the contract is entered into.
The Defendant avers that the Claimant has met none of the THREE elements of a valid Legal Assignment required under the Section Law of Property Act 1925 and therefore has no Locus Standi to issue this claim.
See; [Jones v Link Financial Ltd (2013) ] 1 WLR 693 Where it was found that three conditions for the validity of a LEGAL assignment must be satisfied, 'namely': that the assignment was absolute and not by way of charge; that it was in writing under the hand of the assignor, and that express notice in writing had been given to the debtor.
REPLY TO DEFENCE
23. As the Claimant repeats Paragraphs 2-20 of their Alleged Witness statement the Defendant repeats Paragraphs 2-20 of this Witness Statement.
24. It is disputed that the Defendant has not denied opening the accounts with the Alleged Assignors. The Defendant avers that he has disputed both entering into the accounts with the Alleged Assignors and that the Claimant has a valid Legal Assignment of the benefit of the those accounts.
25. It is disputed that the Defendant would have been aware of his liability for the outstanding balances accrued on the accounts, as assigned to Lowell Portfolio I Ltd, as the Claimant has sent a total of 23 pre litigation letters to the Defendant. The Defendant avers that the Claimant has not sent 23 letters to the Defendant. The Claimant is required to provide proof of postage for any of the pre litigation letters they claim to have sent.
26. It is disputed that on Account 1 the Claimant sent 9 letters between 12 June 2020 and 15 October 2020 to the address of [DEFENDANT OLD ADDRESS] . It is disputed that the Claimant then made further enquiries and retraced the Defendant to the address he now confirms to the Court. The Defendant avers that the actions of the Claimant writing to an old address confirms that the Claimant conducted no due diligence in checking that the lists of data they had purchased on an Equitable basis was accurate or not. The Defendant avers that it was the Defendants actions of Contacting the 2nd Alleged Assignor to enquire about incorrect data stored on their computer system that caused the Claimant to be notified of the Defendant's correct address.
It is disputed that between 4 November 2020 and 18 October 2021 the Claimant sent a further 8 letters to the Defendant at that address. The Claimant is required to provide proof of postage for any of the letters they claim to have sent.
27. It is disputed that on Account 2 the Claimant sent 6 letters between 28 June 2021 and 29 September 2021 to the address of [DEFENDANT ADDDRESS] as confirmed in by the Defendant as their current address in their Defence. It is disputed that the documents exhibited by the Claimant at ("JC5") are examples of the letters sent. The Defendant avers that the alleged witness has no personal knowledge that any letters were sent and is solely reliant on the data they have regurgitated from the Claimant's computer system and as such no weight should be given to the Claimant's Alleged Witness Statement when deciding fact in this claim.
28. It is disputed that he Particulars of Claim are concise and have provided the relevant information for the Defendant to identify what the claim relates to. It is disputed that pre action protocol was complied with as a Notice of Pending Legal Action was sent to the Defendant's confirmed address of 358 London Road, Waterlooville, P07 7SR dated 13 December 2021. It is disputed that the document exhibited by the Claimant at ("JC6") was sent to the Claimant. The Claimant is required to provide proof of postage (free with standard mail at the post office) of the letter upon which they rely to establish they have complied with pre action protocol. The Defendant avers that the Claimant is in breach of Pre Action Protocol.
It is contended that the Claimant is in breach of CPR 16.4 (i)(a) and (c) and PD 16 paragraphs 7.3(ii) by not providing concise details of claim and not stating if claiming aggravated damages and provides no copy of contract relied on.
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 the claimant intends to rely;
⦁ d. the date that the Defendant is Claimed to have entered into either of the Alleged Agreements;
⦁ e. how either of the Alleged Agreements came about;
⦁ f. if the Claimant is reliant on estimate or acutal readings for either of the Alleged Agreements;
⦁ g. if the Claimant is reliant on a deemed, implied or expressed contract in relation to the 1st or 2nd Alleged Assignor;
⦁ h. if the Claimant is reliant on estimated or actual readings in relation to the 2nd Alleged Assignor;
⦁ i. any date(s) of any alleged failure to maintain payments;
⦁ j. an date of any alleged default;
⦁ k. any date of any cause of action;
⦁ l. any date of any alleged assignment; or;
⦁ m. any 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.
29. It is disputed that the Assignor and the Claimant have been corresponding with the Defendant at the address that he was shown to be registered living at being 358 London Road, Waterlooville, P07 7SR this still being the Defendant's current residence. It is disputed that the Defendant would have, therefore, been aware of the outstanding debt prior to its alleged assignment to the Claimant, but still refused to engage with the Claimant and/or its solicitors. The Defendant avers that the Claimant is giving a misleading impression that the have instructed solicitors (officers of the Court) in this case.
The Defendant avers that the Claimant used an in house legal company called Overdales Legal Limited which is registered at the same officer address, on companies house, as the Claimant and solely conducts legal matters for the Claimant and as such any statement claiming that an officer of the court has sent correspondence to the Defendant in this matter is in the Defendant's view, incorrect.
30. It is disputed that the Claimant has regularly attempted to reach an amicable resolution in this matter and provided the Defendant with evidence of his liability for the debts on a number of occasions; however, the Defendant failed to engage with the Claimant and or its Solicitors.
The Defendant avers that the Claimant has refused to provide any evidence of liability and seeks betterment by claiming losses they have not suffered. The Defendant avers as a bulk purchaser of lists of alleged debts, for a fraction of what is claimed by an Alleged Assignor is owed, the Claimant speculates and gambles on the data purchased being valid without conducting any due diligence as the whether the data they are purchasing is accurate or not.
31. It is disputed that had the Defendant contacted the Claimant and explained the reason(s) 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 taken the appropriate action. It is disputed that the Defendant's refusal to communicate has led to litigation being necessary. The Defendant avers that the Claimant as a speculator in the business of purchasing lists of accounts conducts no due diligence and adopts a standard Corporate complaints procedure when dealing with any dispute as to whether their demands are valid or not.
The Defendant avers that the Claimant is well aware of the inaccuracy of some of the corrupt data which it purchases on an Equitable basis:
https://www.ofgem.gov.uk/publications/npower-pay-ps26m-failing-treat-customers-fairly
32. It is disputed that the Defendant's Defence carries no prospect of successfully defending the claim. The Defendant has failed to evidence.
a) Why he should not have to pay for the goods and services he has had the benefit of;
The Defendant avers that no benefit exists to either chose in action that the Claimant claims to have purchased the benefit of and no one gives what they do not have ('Nemo dat quod non habet').
b) Who, if not he, is responsible for accruing the debt? and
The Defendant avers that no debt is owed to either the Alleged Assignors or the Claimant who has demonstrated no Locus Standi to issue their claim.
c) Why he failed to contact the Claimant following receipt of proof of her liability for the debt, therefore, resulting in these legal proceedings becoming necessary.
The Defendant avers that he did contact the Claimant who has steadfastly refused to provide any proof that a valid debt is owed to either the Alleged Assignors or the Claimant.
33. It is disputed that the Defendant failed to settle this matter amicably with the Claimant. The Defendant, therefore, left the Claimant with little alternative but to issue legal proceedings, the costs of which could have been avoided.
The Defendant avers that the Claimant could have simply provided the documents when requested in instead of refusing to provide them and saved any costs and time for themselves, the Defendant and the Court in this matter.
34. It is disputed that the accounts were purchased in good faith, and as far as the Claimant is aware, the debts are due and owing and the Defendant is liable to pay the same.
The Defendant avers that the Claimant is well aware that it is purchasing account form Alleged Assignor that are written off by the Alleged Assignors as much of the data stored is subject to data inaccuracy, data corruption and overcharging errors:
https://www.simplyswitch.com/british-gas-hit-2-65m-fine-overcharging-customers/
35. It is disputed that the Defendant's Defence is without merit and untenable. For the reasons stated within this Witness Statement the Defendant avers that the Claimant's claim is without merit and untenable. The Claimant has failed to provide any details of how the sums claimed are calculate, with no details of if the amounts calculated are estimated are actual reading or service charges applied to the accounts.
36. The Defendant submits, for the reasons stated within this witness statement that the Claimant's claim is therefore without merit and untenable and submits that the Claimant's claim should be struck out pursuant to CPR 3.4(2)(a) as the Particulars of Claim and Alleged Witness statement discloses no reasonable grounds for bringing the claim.
ORDER SOUGHT
37. It is disputed that the Claimant is entitled to request Judgment be entered for the Claimant in the sum of £2340.32, broken down below, plus costs of attendance note expected to exceed £190.00 plus VAT.
It is disputed that the total balance at issue Total Interest Court fees shown on claim Claimant Solicitor's costs on issuing claim
£2022.55 is disputed;
£122.77 is disputed;
£115 is disputed;
£80 is disputed;
Judgment Total £2340.32 is disputed both whole and in part.
38. It is disputed that since no other costs and in particular no solicitors profit costs are sought, and since counsel's attendance fee Is excluded from the Schedule of Costs requirement by CPR 44PD 9.5(2)(d), 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).
39. The defendant respectfully invites the court to dismiss this claim and to allow such defendants costs as are permissible under civil procedure rule 27.14.
STATEMENT OF TRUTH
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 2nd day of October 2022
Signed: [DEFENDANT SIGNATURE]
Name: [DEFENDANT NAME] - Defendant
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