Embedded Files
IN THE COUNTY COURT AT WESTERN SUPER MARE
CLAIM NUMBER: K9KQ6V8K
BETWEEN:
LOWELL PORTFOLIO I LTD
CLAIMANT
-AND-
[DEFENDANT'S NAME]
DEFENDANT
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WITNESS STATEMENT OF VICTORIA ANNE TERRY
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I, Victoria Anne Terry of Overdales Legal Lid, whose registered address is No. 1 The Square, Thorpe Park View. Thorpe Park, Leeds, LS15 8GH, WILL SAY as follows:
INTRODUCTION
1. I am a Paralegal in the employ of Overdales Legal Lid ('Overdales"), the Solicitors instructed by the Clalmant. 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 within this witness statement are known to me from my review of the Claimant's case records save where expressly stated, and are true to the best of my knowledge, information and belief.
BACKGROUND
3. The Claim is for the recovery of 3 debts that have been assigned to the Claimant.
Account 1
4. The first debt relates to an agreement ("Agreement 1") between the Defendant and Shop Direct Finance Company Limited (*Assignor 1) for the provision of a running credit account with Very. A copy of the Agreement which was entered into online and is regulated by the Consumer Credit Act 1974, is exhibited hereto at ("VAT1"). Agreement 1 relates to account number 79074404 and commenced on 3 March 2019.
5. The Defendant had the use and benefit of Agreement 1 before breaching the terms of it by failing to make the required payments, as per the terms and conditions. Assignor 1 have confirmed to the Claimant that the last payment received was on 26 October 2021, for the sum of £209.39.
6. A copy of the Statement of Account is hereto exhibited at ("VAT2"). The statement shows that the Defendant ordered goods totalling £4143.27, with interest incurred of £1012.01, delivery charges of £112.74 and additional charges of £120.00. The Defendant made payments totalling £2223.30, and an adjustment was applied to the account in the sum of £59.15.
7. Under Agreement 1, Assignor 1 have confirmed that the Default Notice was issued in 17 January 2022 to the Defendant under s.87(1) of the Consumer Credit Act 1974. The Claimant has been unable to obtain a copy of the Default Notice that was sent to the Defendant, however, Assignor 1 has confirmed to the Claimant that their system shows a copy was sent. In any event the Claimant asks the Court to consider the other evidence produced, such as the Agreement and the Statement, and find that on the balance of probabilities, this evidence is sufficient to demonstrate that Agreement 1 existed between the respective parties.
8. The Claimant respectfully draws the Courts attention to the case of Goodinson-v-PRA 2021] EWCA Civ 957, in which the Court of Appeal found that the Court had exercised its discretion properly in deciding that on the balance of probabilities that a fully compliant Default notice was served.
9. A screenshot of Assignor 1's computerised system showing the Default Notice having been sent, is hereto exhibited at (*VAT3").
10. Following the Defendant's breach of Agreement 1, by non-payment of the outstanding amount, the account was subject to a written legal assignment on 21 February 2022 pursuant to Section 136 of the Law of Property Act 1925, from Assignor 1, to the Claimant. Copies of the Notice of Assignment that was sent to the Defendant at their current address of 15 Canberra Grescent, Locking, Weston-super-mare, BS24 7DA. on behalf of the Claimant and Assignor 1 are hereto exhibited at ("VAT4"). The Claimant allocated this account the reference of 397469818 and the balance at assignment was £3223.87
Account 2
11. The second debt relates to an agreement between Capital One (Europe) Pic ("Assignor 2") and the Defendant for the provision of a credit card under the reference 5185810355892553 ("Agreement 2"). A copy of the Agreement which was entered into online and is regulated by the Consumer Credit Act 1974, is exhibited hereto at (*VAT5"). The agreement commenced on 10 December 2018.
12. The Defendant had the use and benefit of Agreement 2 before breaching the terms of it by failing to make the required payments, as per the terms and conditions. Assignor 2 have confirmed that the last payment received was on 2 August 2021 for the sum of 25.00.
13. A copy of the Statement of Account is hereto exhibited at ("VAT6"). The statement shows that the Defendant had the use of the credit available to him under Agreement 2 by making various purchases.
14. Assignor 2 has provided the Claimant with a copy of the Default Notice which was issued on 1 February 2022. This document notifies the Defendant that payment of the sum of £97.61 is required to be paid by 1 March 2022 clear the arrears and also the consequences of breaching the terms and conditions of Agreement 2. A copy of this document is hereto exhibited at ("VAT7").
15. Following the Defendant's breach of Agreement 2, by non-payment of the outstanding amount, the account was subject to a written legal assignment on 7 October 2022 pursuant to Section 136 of the Law of Property Act 1925 from Assignor 2 to the Claimant. Copies of the Notice of Assignment that was sent to the Defendant's current address on behalf of the Claimant and Assignor 2 are hereto exhibited at ("VAT8"). The Claimant allocated this account the reference of 413217647 and the balance at assignment was £292.56.
Account 3
16. The second debt relates to an agreement between Capital One (Europe) Plc (*Assignor 3) for the provision of a credit card under reference number 5460978967733170 ("Agreement 1"). A copy of the Agreement which was entered into online and is regulated by the Consumer Credit Act 1974, is exhibited hereto at ("VAT9"). Agreement 3 commenced on 23 August 2017.
17. The Defendant had the use and benefit of Agreement 3 before breaching the terms of it by failing to make the required payments, as per the terms and conditions. Assignor 3 have confirmed to the Claimant that the last payment received was on 29 July 2021, for the sum of £23.21.
18. A copy of the Statement of Account is hereto exhibited at ("VAT10"). The statement shows that the Defendant had the use of the credit available to him under Agreement 3 by making various purchases.
19. Assignor 3 has provided the Claimant with a copy of the Default Notice which was issued on 1 February 2022. This document notifies the Defendant that payment of the sum off £176.54 is required to be paid by 1 March 2022 clear the arrears and also the consequences of breaching the terms and conditions of Agreement 3. A copy of this document is hereto exhibited at (*VAT11").
20. Following the Defendant's breach of Agreement 3, by non-payment of the outstanding amount, the account was subject to a written legal assignment on 7 October 2022 pursuant to Section 136 of the Law of Property Act 1925, from Assignor 3, to the Claimant. Copies of the Notice of Assignment that was sent to the Defendant at their current address on behalf of the Claimant and Assignor 3 are hereto exhibited at ("VAT12"). The Claimant allocated this account the reference of 413362666 and the balance at assignment was £867.17.
21. The Claimant avers therefore that it is the correct entity to bring these legal proceedings against the Defendant.
PRE-ISSUE COMMUNICATIONS
22. On 16 August 2023 the Claimants Solicitors issue a Notice of Acting to the Defendant. inviting the Defendant to make an arrangement for payment. On 25 August 2023 a Letter of Claim was issued to the Defendant.
23. On 24 September 2023 the Defendant wrote to the Claimants Solicitors requesting the following documents in support of the Claimant Claim under Pre Action Conduct Section 6 (c):
a. Copy Agreements pursuant to 5.77-79 of the Consumer Credit Act 1974 (CCA).
b. Statements of Account, detaiis of each and every charge applied to the account.
c. A copy of the Default Notices in accordance with Section 87.1 CCA.
d. A copy of the legal absolute assignment of the Agreement, including a copy of a Duly Executed Deed of Assignment, and/or Deed of Tripartite Novation.
e. In accordance with section 195 of the Law of Property Act 1925 (*LPAT) Certified copies of how he was served with the Alleged Legal Assignment.
f. A Copy of the Alleged Notice of Assignment sent by the Original Creditor, to the Defendant and again, in accordance with section 196 of LPA Certified Copies of how this was served upon him.
g. The Claimant's FCA registration number and exact company name registered with the FCA.
24. On 16 October 2023 the Claimants Solicitors issued a letter to the Defendant providing him, with a copy of the Agreement in respect of Agreement 1, and advised that further documents had been requested and would be provided to him in due course. Copies of the Notices of Assignment were also provided to the Defendant. The letter also confirmed that there is no legal requirement to disclose the Deeds of Assignment, and that the Claimants Solicitors registration details are at the bottom of the letter, and that the matter would remain on hold until such time as the documents were received from the Original Creditors. Copies of the letters are exhibited hereto at ("VAT13").
25. In the absence of further communications from the Defendant, legal proceedings were issued on 1 November 2023 and deemed served on 6 November 2023.
DEFENDANTS DEFENCE
26. The Defendants has filed a template defence dated 30 November 2023 the likes of which the Claimant has seen many times before and is readily available on the internet.
27. The Defendant requires sight of documents subject to the Consumer Credit Act 1974, namely Agreement, Default Notice, Notice of Assignment, Statements and Deed of Assignment and claims that the Agreements are void.
CLAIMANTS RESPONSE TO DEFENCE
28. The Claimant denies all allegations pleaded within the Defence:
29. The Claimant sent a total of 19 letters to the Defendant across all 3 accounts, to the Defendant's current address, in an attempt to resolve any disputes the Defendant may have had or to reach a reasonable payment resolution. The Defendant failed to respond to any communication sent by the Claimant, with the first communication received from the Defendant after the Claimant had instructed solicitors. Copies of some of the letters are exhibited hereto at (*VAT14")
30. On 29 November 2023 the Defendant files a Part 18 request for further documentation. On 11 December 2023 the Claimant filed and served a response to the Part 18 request.
31. On 9 February 2024 the Claimants Solicitor wrote the Defendant, providing copies of the Agreements, Statements, Default Notice and Notice of Assignment in respect of each debt, and inviting the Defendant to reach an agreement for settlement for the amount claimed on the claim form being 84734.28. A copy of the letter is exhibited hereto at ("VAT15") without the documents to avoid duplication, as they are exhibited elsewhere within this Witness Statement. No reply has been received from the Defendant.
32. The Defendant has drawn the Court's attention to the words of Denning MR, in Van Lynn Developments Ltd. v Pellas Construction Co. Ltd [1968) 3 W.L.R. 1141, to the effect that a debtor is entitled to require sight of the assignment." This is a Judgment about requirements of notice of assignment, and not about validity or proof of the assignment itself, so the words were in any case obiter and, at best, merely persuasive rather than binding. But his Lordship in any case went on to qualify his comment by expressing a specific purpose for the suggested entitlement - namely, for the debtor to satisfy himself that the assignee can give good discharge - which cannot, as both the High Court and the Court of Appeal have since affirmed, arise where the assignor, as well as the assignee, has given notice of the assignment.
33. Here the Court's attention is directed to the words Mann J in Nicolliv-Promontoria (Ram 2) Ltd CH-2019-000095 at 41, and of Henderson, Philips & Nugee LLJ unanimously and jointly in Promontoria (Oak) Ltd-v-Emanuel & Ors [2021] EWCA Civ 1682 at 52, 53 & 56. In summary, the debtor has no standing to challenge assignment which is not questioned by either party to it, and a debtor who adduces no evidence that either party to the assignment, does challenge it, must struggle to succeed in proving that it is in any question.
34. The Defendant has also raised the case of Hancock V Promontoria (Chestnut) Ltd [2020] EWCA Civ 907). This case dealt with redactions of a document already voluntarily disclosed. It did not touch on whether there was an obligation to do so and was against a background of a complex chain of multiple assignments involving various linked companies, creating real doubt about where title finally landed. It was in this context that Hancock considered permissibility of redacting a document the Court was being asked to construe for meaning. Here, no such question is before the Court. Hancock's appeal was still dismissed, and even in those circumstances, assignment was found sufficiently proven to confirm the Claimant creditor's standing to bring the Claim.
35. In addition the Defendant has raised the case of Jones v Link Financial Ltd (2013) | 1 WLR 693 which is a case about whether an assignee can be a creditor and not in relation to the production of a Deed of Assignment.
36. Further the Defendant has raised the case of 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.
37. This case shows that a Legal Assignment (if fully compliant with Section 136 of the Law of Property Act 1925) creates an exception to the Common Law Doctrine of Privity of Contract and a Notice of Assignment is no proof of that exception.
38. The Assignors* belief that assignment is complete in the case of each debt in this Claim. is evidenced by the Assignors' Notices of Assignment exhibited and by the evidential documentation provided by the Assignors to the Claimant in support of the Claimant's Claim. Thus, the parties to the assignment consider the assignment to be complete and as such the assignment is not open to challenge by the Defendant.
39. The Notices of Assignment exhibited at "VAT4", "VAT8" and "VAT12". The Claimant submits that as the Assignor has taken no issue with the assignment, and the Defendant has neither evidenced nor even claimed to have made any attempt to ask the Assignor, and has neither corroborated nor even claimed any basis for believing that the Assignor disputes it, the Defendant has no standing to challenge it.
40. The Claimant respectfully draws the Courts attention to the Appeal number 33 of 2019 heard at the County Court at Kingston Upon Hull, in the case of Lowell v Hanson which considered this point, a copy of the Order made is exhibited hereto at ("VAT16"). In particular we draw the Court's attention to Paragraph 2.1 (Second so numbered) Paragraph's 7 and 8.
41. The Defendant denies that the Claimant is entitled to claim interest on the sums claimed. and quotes the case of Sempra Metals Ltd v Inland Revenue Commissioners (2007) UKHL 34. This case relates to compound interest claimed on a commercial debt. In these proceedings the Claimant is claiming simple interest at the rate of 8% of the balance assigned and is claimed in accordance with section 69 of the County Courts Act 1984.
42. The Claimant has provided evidence in support of its Claim to the Defendant. It is the Claimant's position that the Claimant has provided sufficient evidence that, on a balance of probabilities, the Defendant is liable for the full balance under the Claim.
43. Regarding the Defendant's allegations that the Claimant is in breach of CPR 16.4 (1)(a) and (c) the Claimant submits that the Particulars are clear and concise making it clear as to who the Defendant entered into the Agreements with, giving the relevant reference numbers as well as making it clear as to why the Agreements were terminated. The Claimants claim is not for aggravated damages or exemplary damages.
44. The Claimant has also supplied the date the debts were assigned with the Notices given and since provided to the Defendant.
45. The Defendant substantially does not defend the Claim; alleging documents should be provided is not a defence in that it does not comply with any of the requirements of CPR 16.5. Fundamentally, the Defendant does not deny entering into the Agreements or accruing the debt.
46. The Claimant accepts that proceedings were issued before the full documents had been provided to the defendant and has made attempts to settle the matter with the Defendant to prevent the need for a final hearing, but has received no response.
ORDER SOUGHT
47. The Claimant requests that judgment is granted in favour of the Claimant for the full sum of £5,365.28; which consists of the following:
a) Principal debt of £4,383.60
b) Interest of the sum of £350.68 at a rate of 8% but limited to one year,
c) Issue fee of £205.00;
d) Fixed commencement costs in the sum of £80.00;
e) Hearing fee of £346.00,
48. The Claimant respectfully seeks an order that the Defendants Defence be struck out: pursuant to CPR 3.4 (2) (a), that the statement of case discloses no reasonable grounds for bringing the Defence.
ATTENDANCE COSTS
49. The Claimant seeks the costs of their advocate's attendance at the hearing, in the sum of £200.00 plus VAT.
50. 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 11(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 16 April 2024
Signed:
Name: Miss Victoria Anne Terry
Position: Paralegal
IN THE COUNTY COURT AT WESTERN SUPER MARE
CLAIM NUMBER: K9K
BETWEEN:
LOWELL PORTFOLIO I LTD
CLAIMANT
-AND-
[DEFENDANT'S NAME]
DEFENDANT
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WITNESS STATEMENT OF [DEFENDANT'S NAME]
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I, [DEFENDANT'S NAME], of, [DEFENDANT'S 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 Victoria Anne Terry (referred to as the ‘Alleged Witness’) dated 16th April 2024, who's statement is based on her employment of a company called Overdales Legal Limited (referred to as the 'Lowell's Legal Firm') Company number 07407310, trading as 'Overdales Solicitors'. The Defendant points out that this company is an in house legal firm based at exactly same address as the Claimant, according to Company House records and no independent legal scrutiny of the Claimant's claim has occurred in this case.
The Alleged Witness bases her entire statement on hearsay evidence from the computer system of the Claimant and the computer system of Shop Direct (referred to as the ‘Alleged Assignor’).
The failure of such systems have been brought to light by the recent case where over 700 sub-postmasters were wrongly convicted based solely on the data from a computer system that generated corrupt data:
See news article: https://www.itv.com/news/2024-01-10/horizon-scandal-pm-announces-mass-exonerations-for-sub-postmasters
This article highlights the problem of allowing Claimants to rely solely on the data of computer systems in finding fact in both Criminal and Civil Litigation.
The Defendant avers that Claimant is using computer systems supplied by Fujitsu, the same company that supplied the Horizon computer system to the Post Office that resulted in the corrupt data scandal and as such the data supplied by the Claimant should be subject to scrutiny:
See webpage: fujitsu.com/uk/news/pr/2018/fs-20181011.html
The Defendant draws the Court attention to the statement in this article:
"Selecting Fujitsu to harmonise its diverse IT landscape3is part of Lowell’s strategy to leverage its increasing scale through efficiencies and introduce digital technologies such as robotics and Artificial Intelligence (AI)."
The Defendant avers that the use of Artificial Intelligence as early as 2018 by the Claimant suggests that data generated by it's computer systems has the potential to generate corrupt data on a far larger scale than seen in the Horizon Post Office Horizon Scandal.
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.
The assertion made in Point 2, of the Claimant's Alleged Witness Statement, regarding the witness's personal review of information from the Claimant's case record systems is noted. However, it is essential to highlight that personal review alone does not inherently validate the accuracy or reliability of the information presented.
The mere access to the Claimant's case record systems does not equate to firsthand witnessing of the events or transactions in question. The witness, as indicated, is relying solely on data retrieved from these systems, which inherently introduces a layer of potential uncertainty regarding the accuracy and integrity of the information presented.
Moreover, the statement does not provide assurance regarding the integrity of the Claimant's case record systems. Without verifiable confirmation of the accuracy and integrity of the data within these systems, it remains a possibility that the information extracted may be susceptible to errors, omissions, or corruption.
In light of these considerations, it is imperative for the Claimant to provide concrete evidence corroborating the accuracy and reliability of the data presented, especially when such data forms the basis of the claims put forth in this matter.
Without sufficient evidence to establish the credibility of the information sourced from the Claimant's case record systems, the reliability of the assertions made in this witness statement remains questionable.
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. In response to point 3 of the Claimant's Alleged Witness Statement, I dispute the assertion that the claim is for the recovery of debts that have been validly assigned to the Claimant. Without sufficient evidence of a valid legal assignment, the Claimant's claim lacks merit.
A valid legal assignment requires clear documentation demonstrating the transfer of rights from the original creditor to the Claimant. This documentation typically includes an assignment agreement or deed that explicitly transfers the debts in question to the Claimant.
In the absence of such documentation, the Claimant cannot substantiate their claim to the debts in question. Mere assertion of assignment is insufficient to establish legal standing to pursue the debts.
Furthermore, without proof of a valid assignment, it remains unclear whether the Claimant has acquired the necessary legal rights to enforce the debts. Under English law, the assignee must have the legal right to enforce the debts in their own name, which necessitates a valid and legally effective assignment.
In light of these considerations, the Claimant's claim for the recovery of debts purportedly assigned to them is unsubstantiated and should be challenged until such time as they provide sufficient evidence of a valid legal assignment.
Account 1
4. In response to point 4 of the Claimant's Alleged Witness Statement, I dispute the assertion that Agreement 1 (referred to as "Void Agreement 1"), which relates to the first debt allegedly assigned to the Claimant, is enforceable. This dispute stems from the fact that the original creditor, Shop Direct Finance Company Limited (referred to as "Alleged Assignor 1"), was in breach of Section 138D of the Financial Services and Markets Act 2000 and CONC 5.2A of the Consumer Credit Sourcebook, rendering the account unenforceable.
The agreement, as described, falls under the purview of the Consumer Credit Act 1974, and as such, it must comply with the statutory requirements outlined in that legislation. However, if the original creditor, Shop Direct Finance Company Limited, indeed breached Section 138D of the Financial Services and Markets Act 2000 and CONC 5.2A of the Consumer Credit Sourcebook, it casts doubt on the validity and enforceability of Agreement 1.
The precedent set in Dimond v Lovell 2002 1 AC384, particularly the judgment delivered by Lord Hoffman, reinforces the principle that agreements failing to comply with the requirements of the Consumer Credit Act 1974 are rendered unenforceable. Therefore, if Agreement 1 is found to be non-compliant due to the alleged breach by the original creditor, it would be subject to the same fate of unenforceability as outlined in Dimond v Lovell.
Consequently, until the issue of compliance with relevant consumer credit legislation is resolved, Void Agreement 1 cannot be considered legally enforceable, and the Claimant lacks the basis to pursue the recovery of the debt associated with it.
5. In response to point 5 of the Claimant's Alleged Witness Statement, I dispute the assertion that the Defendant breached the terms of Void Agreement 1 by failing to make the required payments. This dispute arises from the previous contention regarding the enforceability of Void Agreement 1 due to the alleged breach of statutory obligations by Alleged Assignor 1.
Given the uncertainty surrounding the enforceability of Agreement 1, it is premature to conclude that the Defendant breached its terms by failing to make required payments. Without a valid and enforceable agreement in place, there can be no definitive determination of the Defendant's obligations or breaches thereof.
Furthermore, the assertion that Alleged Assignor 1 confirmed to the Claimant that the last payment received was on 26 October 2021, for the sum of £209.39, does not conclusively establish a breach by the Defendant. Such confirmation from Alleged Assignor 1 does not account for any potential discrepancies or inaccuracies in their records, nor does it consider any mitigating circumstances that may have affected the Defendant's ability to make payments.
Therefore, until the enforceability of Void Agreement 1 is established, any claims regarding the Defendant's breach of its terms remain speculative and unsubstantiated. Consequently, the Claimant cannot definitively assert that the Defendant breached Void Agreement 1 by failing to make required payments.
6. In response to point 6 of the Claimant's Alleged Witness Statement, I dispute the reliability and evidentiary value of the Statement of Account ("VAT2") provided by the Claimant. The entire case appears to be predicated on the hearsay of computer-generated data without sufficient corroborating evidence or verification of its accuracy.
Computer-generated statements, while commonly used in financial matters, are not inherently reliable or immune to errors. Without proper authentication and verification procedures in place, there is a significant risk of inaccuracies, discrepancies, or manipulation in the data presented.
Moreover, the reliance solely on computer-generated data raises questions regarding the admissibility and weight of such evidence in legal proceedings. Hearsay evidence, particularly when based on computer-generated records, lacks the reliability and credibility necessary to form the basis of a legal claim without additional supporting evidence.
In the absence of firsthand testimony or corroborating evidence to validate the accuracy and authenticity of the Statement of Account, it would be inappropriate to rely solely on this document to establish the Defendant's alleged breaches or financial obligations.
Therefore, the Claimant's case, which relies primarily on the hearsay of computer data without sufficient corroborating evidence, lacks the necessary credibility and reliability to substantiate the claims made by the Claimant in point 6. Further scrutiny and verification of the evidence are warranted before any conclusions can be drawn regarding the Defendant's alleged actions or liabilities.
7. In response to point 7 of the Claimant's Alleged Witness Statement, I dispute the claim that the absence of a copy of the Default Notice sent to the Defendant under s.87(1) of the Consumer Credit Act 1974 does not undermine the Claimant's case. The Default Notice is a critical document required by law to be served properly before certain actions can be taken, including the initiation of legal proceedings. Without a copy of the Default Notice, the Claimant cannot demonstrate compliance with statutory requirements, which raises doubts about the validity of their claim.
While the Claimant asserts that Alleged Assignor 1 confirmed the issuance of the Default Notice, mere confirmation from the assignor without tangible evidence does not suffice to establish the legal requirement of serving the notice. The absence of a physical copy of the Default Notice leaves the assertion open to challenge and fails to provide the necessary assurance that proper procedures were followed.
Moreover, the Claimant's request for the court to consider other evidence, such as the Agreement and the Statement, as sufficient to demonstrate the existence of Void Agreement 1, overlooks the distinct legal requirement of serving a Default Notice under the Consumer Credit Act 1974. Each piece of evidence must be evaluated in accordance with its relevance and legal significance. However, the absence of the Default Notice cannot be simply overlooked or replaced by other evidence, as it serves a specific legal purpose.
Therefore, without concrete evidence of the issuance of the Default Notice, the Claimant's case lacks a crucial element necessary to establish compliance with statutory requirements and validate the existence of Void Agreement 1. As a result, the Claimant's request for the court to consider other evidence as sufficient to demonstrate the existence of the agreement is unfounded and should be rejected.
8. In response to point 8 of the Claimant's Alleged Witness Statement, while the Claimant references the case of Goodinson v PRA [2021] EWCA Civ 957 to support their argument, it is essential to note that each case is determined based on its unique circumstances and legal merits.
Firstly, the decision in Goodinson v PRA [2021] EWCA Civ 957 does not establish a blanket precedent applicable to all cases involving Default Notices. The Court of Appeal's decision in that case was specific to the facts and evidence presented before them, and it does not automatically validate the Claimant's assertion regarding the Default Notice in this particular case.
Secondly, the Claimant's reliance on the discretion exercised by the court in Goodinson v PRA [2021] EWCA Civ 957 overlooks the fundamental legal requirement for the Claimant to provide tangible evidence of a fully compliant Default Notice in the present case. The absence of such evidence raises legitimate concerns regarding procedural compliance and the validity of the Claimant's case.
Furthermore, the Court's exercise of discretion in one case does not absolve the Claimant from their burden of proof in establishing compliance with statutory requirements, including the proper service of a Default Notice under the Consumer Credit Act 1974.
In conclusion, while the case of Goodinson v PRA [2021] EWCA Civ 957 may offer guidance on the exercise of judicial discretion, it does not alleviate the Claimant's obligation to provide compelling evidence of a fully compliant Default Notice in the present case. Without such evidence, the Claimant's reliance on this case precedent is misplaced, and the validity of their claim remains questionable.
9. In response to point 9, I dispute the evidentiary value of the screenshot of Alleged Assignor 1's computerized system purportedly showing the Default Notice having been sent. While the Claimant presents this screenshot as evidence, it lacks the necessary credibility and reliability to substantiate the claim that the Default Notice was indeed sent to the Defendant.
Firstly, a screenshot of a computerized system, without proper authentication and verification, cannot conclusively prove that the Default Notice was accurately generated and transmitted to the Defendant. Digital records are susceptible to manipulation, errors, and inaccuracies, and without appropriate safeguards in place, their reliability as evidence is questionable.
Secondly, the mere existence of a screenshot does not inherently establish the authenticity or validity of the information contained therein. Without additional corroborating evidence or testimony from a reliable source, such as a custodian of records or a witness with firsthand knowledge, the screenshot alone cannot be considered sufficient to prove that the Default Notice was sent in compliance with statutory requirements.
Furthermore, the reliance on a screenshot from Alleged Assignor 1's computerized system raises concerns about hearsay and the admissibility of evidence in legal proceedings. Without proper authentication and verification procedures, the screenshot may be subject to challenge and may not carry the necessary weight to support the Claimant's assertions.
In summary, while the Claimant presents a screenshot of Alleged Assignor 1's computerized system as evidence of the Default Notice having been sent, its evidentiary value is limited without proper authentication, verification, and corroboration. Without additional credible evidence to support the claim, the screenshot alone is insufficient to establish the Defendant's receipt of the Default Notice.
10. In response to point 10 of the Claimant's Alleged Witness Statement, I dispute the assertion that the account was subject to a valid legal assignment from Assignor 1 to the Claimant following the Defendant's alleged breach of Agreement 1. Several issues raise doubts about the validity and effectiveness of the assignment as described:
i. Compliance with Section 136 of the Law of Property Act 1925: The Claimant asserts that the assignment was made pursuant to Section 136 of the Law of Property Act 1925. However, it is essential to ensure that all statutory requirements for a valid assignment under this provision were met. Any deficiencies in compliance with the statutory requirements could invalidate the assignment.
ii. Notice of Assignment: While the Claimant states that copies of the Notice of Assignment sent to the Defendant are exhibited, the mere provision of copies of the notice does not guarantee compliance with the legal requirements for valid notice. The sufficiency of the notice, including its contents, timing, and method of delivery, must be thoroughly examined to determine whether it meets the standards prescribed by law.
iii. Verification of Assignment: Without proper authentication and verification procedures, the Claimant's assertion of a legal assignment remains unsubstantiated. It is crucial to establish the authenticity and validity of the assignment, including confirming the authority of both parties involved and ensuring that all necessary legal formalities were observed.
iv. Allocation of Account Reference and Balance: While the Claimant provides an account reference and balance at assignment, these details alone do not validate the assignment. The accuracy and reliability of the account information must be verified, and any discrepancies or inconsistencies must be addressed.
In conclusion, while the Claimant asserts that a legal assignment took place from Alleged Assignor 1 to the Claimant following the Defendant's alleged breach of Void Agreement 1, several uncertainties and deficiencies cast doubt on the validity and effectiveness of the assignment. Further investigation and scrutiny are necessary to ascertain the legal status of the assignment and its implications for the present case.
Account 2
11. In response to point 11 of the Claimant's Alleged Witness Statement, I dispute the assertion that Agreement 2 (referred to as "Void Agreement 2"), which relates to the second debt allegedly assigned to the Claimant, is enforceable. This dispute stems from the fact that the original creditor, Capital One (Europe) Plc (referred to as "Alleged Assignor 2"), was in breach of Section 138D of the Financial Services and Markets Act 2000 and CONC 5.2A of the Consumer Credit Sourcebook, rendering the account, for the provision of a credit card under the reference 5185810355892553 which commenced on 10 December 2018, unenforceable.
The agreement, as described, falls under the purview of the Consumer Credit Act 1974, and as such, it must comply with the statutory requirements outlined in that legislation. However, if Alleged Assignor 2 breached Section 138D of the Financial Services and Markets Act 2000 and CONC 5.2A of the Consumer Credit Sourcebook, it casts doubt on the validity and enforceability of Void Agreement 1.
The precedent set in Dimond v Lovell 2002 1 AC384, particularly the judgment delivered by Lord Hoffman, reinforces the principle that agreements failing to comply with the requirements of the Consumer Credit Act 1974 are rendered unenforceable. Therefore, if Agreement 2 is found to be non-compliant due to the alleged breach by the original creditor, it would be subject to the same fate of unenforceability as outlined in Dimond v Lovell.
Consequently, until the issue of compliance with relevant consumer credit legislation is resolved, Void Agreement 2 cannot be considered legally enforceable, and the Claimant lacks the basis to pursue the recovery of the debt associated with it.
12. In response to point 12 of the Claimant's Alleged Witness Statement, I dispute the assertion that the Defendant breached the terms of Void Agreement 2 by failing to make the required payments. This dispute stems from Alleged Assignor 2's purported breach of Section 138D of the Financial Services and Markets Act 2000 and CONC 5.2A of the Consumer Credit Sourcebook.
The confirmation of the last payment received from Alleged Assignor 2 lacks sufficient credibility and reliability without proper authentication and verification procedures. Additionally, Alleged Assignor 2's confirmation does not provide context or detail regarding the payment history or any potential mitigating circumstances affecting the Defendant's ability to make payments.
Similar to the dispute regarding Void Agreement 1, if Alleged Assignor 2 breached relevant consumer credit legislation, it raises doubts about the enforceability of Void Agreement 2. The precedent established in Dimond v Lovell 2002 1 AC384 further supports the principle that agreements failing to comply with the requirements of the Consumer Credit Act 1974 are rendered unenforceable.
Consequently, until the issue of Alleged Assignor 2's compliance with relevant consumer credit legislation is resolved, Void Agreement 2 cannot be considered legally enforceable. Therefore, the assertion that the Defendant breached the terms of Void Agreement 2 is disputed, and the Claimant lacks a valid basis to pursue the recovery of the associated debt.
13. In response to point 13 of the Claimant's Alleged Witness Statement, I dispute the assertion that the Defendant had the use of credit available under Void Agreement 2 solely based on the exhibition of a Statement of Account ("VAT6"). The presentation of a Statement of Account alone does not provide conclusive evidence that the Defendant utilized the credit available to them under the agreement.
i. Lack of Context: The mere existence of a Statement of Account does not offer sufficient context to ascertain whether the Defendant utilized the credit available under Void Agreement 2. Without additional documentation or evidence detailing the specific transactions, dates, and amounts involved, it is speculative to conclude that the Defendant made purchases utilizing the available credit.
ii. Verification of Transactions: The accuracy and validity of the transactions listed in the Statement of Account require further verification. Without corroborating evidence such as receipts, invoices, or transaction records, the information presented in the Statement of Account remains unverified and subject to challenge.
iii. Consideration of Mitigating Circumstances: It is essential to consider any potential mitigating circumstances that may have influenced the Defendant's use of credit under Void Agreement 2. Factors such as financial hardship, disputed charges, or fraudulent activity could impact the accuracy and interpretation of the Statement of Account.
In summary, while the Claimant exhibits a Statement of Account purportedly showing the Defendant's use of credit under Void Agreement 2, further investigation and verification are necessary to establish the accuracy and validity of the transactions listed. Without comprehensive evidence and consideration of mitigating circumstances, it is premature to accept the assertion that the Defendant utilized the credit available under the agreement. Therefore, the validity of this claim is disputed.
14. In response to point 14 of the Claimant's Alleged Witness Statement:
It is disputed that Alleged Assignor 2 has provided the Claimant with a copy of the Default Notice which was issued on 1 February 2022. It is disputed that this document notifies the Defendant that payment of the sum of £97.61 is required to be paid by 1 March 2022 clear the arrears and also the consequences of breaching the terms and conditions of Void Agreement 2. It is disputed that document exhibited by the Claimant at ("VAT7") is a copy of this document.
Verification of Default Notice:
- The assertion that Alleged Assignor 2 provided a copy of the Default Notice lacks sufficient evidence to confirm its authenticity and compliance with legal requirements, particularly those outlined in the Consumer Credit Act. A thorough examination reveals that the Default Notice provided does not comply with the specific provisions of the Consumer Credit Act, raising doubts about its validity and effectiveness.
Compliance with Consumer Credit Legislation:
- It is essential to emphasize that the Default Notice must adhere to the requirements set forth in the Consumer Credit Act to be considered legally valid and enforceable. Any deviation from these statutory requirements undermines the effectiveness of the notice in informing the Defendant of their obligations and the consequences of non-compliance.
Adequacy of Notice Content:
- Further scrutiny of the Default Notice is necessary to assess whether it provides clear and unambiguous information regarding the Defendant's outstanding arrears, the deadline for payment, and the potential consequences of non-payment. Failure to include such essential information would render the notice inadequate and ineffective in fulfilling its purpose.
Consideration of Mitigating Circumstances:
- In light of the potential deficiencies in the Default Notice's compliance with the Consumer Credit Act, it is crucial to consider any mitigating circumstances that may have impacted the Defendant's ability to comply with the notice. Factors such as financial hardship or disputed charges could further complicate the validity and enforceability of the notice.
In summary, the Default Notice provided by Alleged Assignor 2 does not comply with the requirements of the Consumer Credit Act, raising significant doubts about its validity and effectiveness. Further verification and assessment are necessary to determine the notice's compliance with statutory requirements and its adequacy in informing the Defendant of their obligations. Without conclusive evidence of compliance and effectiveness, the validity of this claim is highly disputed.
15. In response to point 15 of the Claimant's Alleged Witness Statement:
It is disputed that the Defendant's breached Void Agreement 2, by non-payment of the outstanding amount. It is disputed that the account was subject to a written legal assignment on 7 October 2022 pursuant to Section 136 of the Law of Property Act 1925 from Alleged Assignor 2 to the Claimant. It is disputed that copies of the Notice of Assignment that was sent to the Defendant's current address on behalf of the Claimant and Alleged Assignor 2. It is disputed that they are exhibited by the Claimant at ("VAT8"). It is disputed that the Claimant allocated this account the reference of 413217647 and the balance at assignment was £292.56.
Invalid Proof of Assignment:
- The Claimant's submission of copies of the Notice of Assignment, purportedly sent to the Defendant, does not constitute sufficient evidence to validate a legal assignment. Merely providing copies of the Notice of Assignment does not substantiate the execution and legality of the assignment process as required by law. Without proper documentation and verification of the assignment, the Claimant's claim to the debt associated with Agreement 2 remains unsubstantiated.
Compliance with Legal Requirements:
- The reference to Section 136 of the Law of Property Act 1925 does not automatically confer validity to the assignment process. Compliance with legal requirements, including proper execution, documentation, and registration of the assignment, is essential for its legality and enforceability. The Claimant has failed to provide substantive evidence demonstrating compliance with these legal requirements, casting doubt on the validity of the assignment.
Adequacy of Notice of Assignment:
- While the Claimant presents copies of the Notice of Assignment allegedly sent to the Defendant, it is important to note that notice alone does not suffice as conclusive proof of assignment. Adequate notice of assignment must be accompanied by substantive evidence demonstrating the execution and legality of the assignment process. Without such evidence, the Notice of Assignment remains insufficient to establish the Claimant's right to the debt.
Need for Substantive Evidence:
- It is crucial to emphasize that providing copies of the Notice of Assignment does not constitute substantive evidence of assignment. The Claimant must provide comprehensive documentation and verification of the assignment process, including evidence of proper execution, documentation, and compliance with legal requirements. Without such evidence, the validity of the assignment and the Claimant's claim to the debt remain in question.
In summary, the Claimant's submission of copies of the Notice of Assignment does not provide sufficient evidence to validate the assignment process. Further substantiation of the assignment's execution, legality, and compliance with legal requirements is necessary to establish the Claimant's right to the debt associated with Void Agreement 2. Without such evidence, the validity of this claim is highly disputed.
Account 3
16. In response to point 16 of the Claimant's Alleged Witness Statement, I dispute the assertion that Agreement 3 (referred to as "Void Agreement 3"), which relates to the first debt allegedly assigned to the Claimant, is enforceable. This dispute stems from the fact that the original creditor, Capital One (Europe) Plc (referred to as "Alleged Assignor 3") for the provision of a credit card under reference number 5460978967733170 ("Void Agreement 3"), was in breach of Section 138D of the Financial Services and Markets Act 2000 and CONC 5.2A of the Consumer Credit Sourcebook, rendering the account unenforceable.
The agreement, as described, falls under the purview of the Consumer Credit Act 1974, and as such, it must comply with the statutory requirements outlined in that legislation. However, if Alleged Assignor 3, breached Section 138D of the Financial Services and Markets Act 2000 and CONC 5.2A of the Consumer Credit Sourcebook, it casts doubt on the validity and enforceability of Void Agreement 3.
The precedent set in Dimond v Lovell 2002 1 AC384, particularly the judgment delivered by Lord Hoffman, reinforces the principle that agreements failing to comply with the requirements of the Consumer Credit Act 1974 are rendered unenforceable. Therefore, if Agreement 3 is found to be non-compliant due to the alleged breach by the original creditor, it would be subject to the same fate of unenforceability as outlined in Dimond v Lovell.
Consequently, until the issue of compliance with relevant consumer credit legislation is resolved, Void Agreement 3 cannot be considered legally enforceable, and the Claimant lacks the basis to pursue the recovery of the debt associated with it.
17. In response to point 17, I dispute the claim as speculative, hearsay, and influenced by irresponsible lending practices. Firstly, the assertion that I had the use and benefit of Agreement 3 before allegedly breaching its terms lacks concrete evidence and relies solely on hearsay provided by Assignor 3 to the Claimant. Additionally, the information provided regarding the last payment received on 29 July 2021 for the sum of £23.21 is based on hearsay from Assignor 3 and has not been independently verified or substantiated. Moreover, considering the context of irresponsible lending practices, it is pertinent to question the validity of the agreement itself and whether it was entered into under circumstances where the original creditor failed to adequately assess my ability to meet the repayment obligations. Therefore, the Claimant's claim regarding the breach of Agreement 3 cannot be accepted as factual, especially when influenced by potential irresponsible lending practices, and I request that this unsubstantiated assertion be disregarded by the court.
18. In response to point 18, I dispute the claim as relying solely on hearsay and uncorroborated data from a computer system. The Statement of Account provided by the Claimant is merely a printout or representation of data stored in a computer system, which may not accurately reflect the transactions or circumstances surrounding the alleged use of credit under Agreement 3. Furthermore, such statements are susceptible to errors, inaccuracies, or misinterpretations, especially when presented without supporting documentation or independent verification. Without corroborating evidence to confirm the accuracy and authenticity of the transactions purportedly made by me, relying solely on the Statement of Account as proof of use of credit under Agreement 3 is insufficient and should be considered hearsay. Therefore, I request that this uncorroborated data from a computer system be disregarded by the court.
19. In response to point 19, I dispute the claim on several grounds. Firstly, the authenticity and validity of the Default Notice provided by Assignor 3 to the Claimant cannot be independently verified, as it is presented without proper authentication or certification. Additionally, the content of the Default Notice, including the amount allegedly owed and the consequences outlined for breaching the terms and conditions of Agreement 3, is based solely on the assertion of the Claimant without sufficient evidence to support its accuracy. Furthermore, the Claimant has not provided any documentation or proof demonstrating compliance with legal requirements regarding the issuance and delivery of a valid Default Notice, such as proof of service or adherence to statutory timelines. Without such evidence, the Claimant's claim regarding the Default Notice lacks credibility and should be treated with scepticism. Therefore, I request that this unsubstantiated claim be disregarded by the court until proper evidence of the Default Notice's validity and compliance with legal requirements is provided.
20. In response to point 20, I dispute the claim made by the Claimant regarding the alleged breach of Void Agreement 3 and subsequent assignment of the account to the Claimant. Firstly, the Claimant has failed to provide sufficient evidence to substantiate the assertion of breach of Void Agreement 3 by non-payment of the outstanding amount. Without clear documentation or proof of the breach, such claims remain speculative and unsubstantiated. Additionally, the Claimant's reference to a written legal assignment on 7 October 2022 pursuant to Section 136 of the Law of Property Act 1925 lacks supporting evidence of compliance with legal requirements for such assignments. Moreover, the Notice of Assignment provided by the Claimant lacks verification of delivery to the Defendant at their current address, and there is no evidence to confirm the validity of the assignment process. Furthermore, the Claimant's allocation of an account reference and assertion of a specific balance at assignment lack credibility without proper documentation or verification. Therefore, I request that the court disregards this unsubstantiated claim until the Claimant provides sufficient evidence to support the validity of the alleged breach of Void Agreement 3 and the subsequent assignment of the account.
21. In response to point 21, I dispute the Claimant's assertion that it is the correct entity to bring these legal proceedings against me. The Claimant's statement lacks sufficient evidence or legal basis to support its claim of standing in this matter. Furthermore, the Claimant has not provided documentation or proof demonstrating its legal authority or ownership of the alleged debt in question. Without such evidence, the Claimant's assertion of being the correct entity to initiate legal proceedings against me remains unsubstantiated and should be questioned. Therefore, until the Claimant provides clear and verifiable evidence of its standing and legal authority in this matter, its claim cannot be accepted as valid.
PRE-ISSUE COMMUNICATIONS
22. In response to point 22, I acknowledge receipt of the Notice of Acting issued by the Claimant's Solicitors on 16 August 2023 and the subsequent Letter of Claim issued to me on 25 August 2023. However, it's crucial to highlight that the mere issuance of these notices does not automatically validate the Claimant's position or substantiate the claims against me. As the Defendant, I reserve the right to scrutinize the details provided in the Letter of Claim and respond accordingly within the stipulated timeframe. Additionally, I assert my right to request further information and clarification regarding the alleged debt and any supporting documentation. Therefore, while acknowledging receipt of the notices, I maintain my stance of requiring proper evidence and justification from the Claimant before proceeding with any arrangements for payment.
23. In response to point 23, I confirm that on 24 September 2023, I wrote to the Claimant's Solicitors, requesting several crucial documents in support of the Claimant's claim under Pre Action Conduct Section 6 (c). These documents included:
a. Copy Agreements pursuant to Sections 77-79 of the Consumer Credit Act 1974 (CCA).
b. Statements of Account detailing each and every charge applied to the account.
c. A copy of the Default Notices in accordance with Section 87.1 CCA.
d. A copy of the legal absolute assignment of the Agreement, including a copy of a Duly Executed Deed of Assignment and/or Deed of Tripartite Novation.
e. Certified copies of how I was served with the Alleged Legal Assignment, in accordance with section 195 of the Law of Property Act 1925 (LPAT).
f. A Copy of the Alleged Notice of Assignment sent by the Original Creditor to me, and Certified Copies of how this was served upon me, in accordance with section 196 of LPA.
g. The Claimant's FCA registration number and exact company name registered with the FCA.
However, despite providing ample opportunity and clear requests for these essential documents, the Claimant has specifically refused to provide any instrument of assignment relied on in their claim for any of the 3 Void Agreements. The absence of such crucial documentation raises serious doubts about the validity and legitimacy of the Claimant's assertions. Therefore, I urge the court to consider the Claimant's refusal to provide the requested evidence as indicative of the weakness of their claim.
24. In response to point 24, I dispute the adequacy of the response provided by the Claimant's Solicitors on 16 October 2023. While the Claimant's Solicitors claim to have provided a copy of the Agreement in respect of Agreement 1 and Notices of Assignment, they have failed to address the crucial documents requested by me in my previous correspondence, including the Deeds of Assignment. The refusal to disclose the Deeds of Assignment, which are instrumental in establishing the validity of the alleged assignments, raises significant concerns about the transparency and integrity of the Claimant's case. Moreover, the Claimant's Solicitors' assertion that there is no legal requirement to disclose the Deeds of Assignment contradicts established legal principles and casts doubt on the Claimant's adherence to due process. Furthermore, the provision of registration details at the bottom of the letter does not absolve the Claimant from their obligation to provide necessary documentation to substantiate their claim. Therefore, the Claimant's response fails to address the core issues raised and does not alleviate the concerns regarding the validity of their claim.
25. In response to point 25, I acknowledge that legal proceedings were issued by the Claimant on 1 November 2023 and deemed served on 6 November 2023. However, it's important to note that the absence of further communications from me does not indicate acquiescence or acceptance of the Claimant's assertions. Rather, it reflects my ongoing scrutiny of the Claimant's claims and the pursuit of necessary evidence to assess the validity of their case. Despite the initiation of legal proceedings, my position remains unchanged: I continue to contest the Claimant's claims and require proper evidence to substantiate their assertions. Therefore, the issuance of legal proceedings does not alter my stance, and I reserve my right to challenge the Claimant's claims in court.
DEFENDANTS DEFENCE
26. In response to point 26, I dispute the characterization of my defence as a "template defence" and reject the implication that it lacks authenticity or merit. My defence was meticulously crafted based on the specific circumstances of this case and grounded in legal principles relevant to the matter at hand. Any resemblance to other defences available online is purely coincidental and does not diminish the validity or integrity of my defence. Furthermore, the mere availability of similar defences online does not negate the individualized nature of my defence or its relevance to the particulars of this case. Therefore, I reject the insinuation that my defence lacks substance or originality and maintain that it represents a legitimate response to the claims brought forth by the Claimant.
27. In response to point 27, I reiterate my previous requests for sight of documents subject to the Consumer Credit Act 1974, including the Agreement, Default Notice, Notice of Assignment, Statements, and Deed of Assignment. These documents are crucial for me to properly assess the validity of the claims against me and to ensure compliance with relevant legal requirements. Furthermore, my assertion that the Agreements are void is based on genuine concerns regarding compliance with legal and regulatory standards, which necessitate the provision of these documents for scrutiny. Without access to these documents, I am unable to fully participate in the legal proceedings and exercise my rights to challenge the claims brought against me. Therefore, I respectfully request that the Claimant provide the requested documents to enable a fair and transparent resolution of this matter.
CLAIMANTS RESPONSE TO DEFENCE
28. In response to point 28, I acknowledge the Claimant's denial of all allegations pleaded within the Defence. However, it's important to emphasize that my Defence is grounded in factual assertions and legal arguments supported by evidence. Each allegation within the Defence has been carefully considered and is based on genuine concerns regarding the validity and legality of the claims brought against me. Therefore, while I respect the Claimant's denial, I maintain the integrity of my Defence and stand by the assertions made therein. Ultimately, it will be for the court to assess the merits of both parties' arguments and determine the outcome of this matter based on the evidence presented.
29. In response to point 29, I acknowledge the Claimant's assertion regarding the letters sent to me in an attempt to resolve disputes or reach a reasonable payment resolution. However, I contest the implication that my failure to respond to these communications was deliberate or indicative of a lack of willingness to engage in resolution efforts. The volume of letters sent by the Claimant does not necessarily correspond to their effectiveness or adequacy in addressing the concerns I have raised regarding the alleged debts. Additionally, it's important to consider the context in which these communications were sent, including any previous requests for documentation or clarification on my part that may have gone unanswered.
Furthermore, the Claimant's assertion that the first communication received from me occurred after they had instructed solicitors does not necessarily reflect an unwillingness to engage, but rather may be attributed to the complexity of the issues at hand and the need for legal advice before responding.
Ultimately, my priority has always been to seek clarity on the claims brought against me and to ensure that any resolution reached is fair and legally sound. Therefore, I remain open to constructive dialogue and resolution efforts, provided that they are based on a thorough understanding of the facts and legal considerations involved.
30. In response to point 30, while I acknowledge the Claimant's filing and service of a response to my Part 18 request on 11 December 2023, it is imperative to highlight that the response failed to address a crucial component of my request. Specifically, the Claimant's response did not include the provision of the instrument of assignment, which I had explicitly requested in my Part 18 request. The instrument of assignment is essential for verifying the validity and legality of the alleged assignment of the debt in question. Without access to this documentation, it becomes challenging for me to fully assess the basis of the Claimant's claims and participate effectively in the legal proceedings.
Therefore, despite the Claimant's efforts to respond to my Part 18 request, their refusal to provide the instrument of assignment raises significant concerns regarding the transparency and completeness of their case. I reiterate my request for the provision of this crucial document to ensure a fair and equitable resolution of the matter.
31. In response to point 31, I acknowledge the correspondence dated 9 February 2024 from the Claimant's Solicitor, purportedly providing copies of the Agreements, Statements, Default Notice, and Notice of Assignment. However, it's critical to highlight that despite the Claimant's assertion of providing these documents, none of the three Deeds of Assignment were included. These Deeds of Assignment are fundamental documents forming the basis of the Claimant's claim, particularly regarding the alleged assignment of the debts in question.
The absence of these crucial documents severely hinders my ability to fully assess the validity and legality of the Claimant's claims. Without access to the Deeds of Assignment, I am unable to ascertain the legitimacy of the alleged assignment of the debts and the Claimant's standing to bring forth legal proceedings against me. As such, the failure to provide these documents undermines the transparency and integrity of the Claimant's case and inhibits my ability to engage effectively in settlement discussions or any further legal proceedings.
Therefore, I respectfully request that the Claimant ensures the immediate provision of the Deeds of Assignment, as these documents are essential for a fair and comprehensive evaluation of the matter at hand.
32. In response to point 32, I dispute the interpretation provided by the Claimant regarding the words of Denning MR in Van Lynn Developments Ltd. v Pellas Construction Co. Ltd [1968) 3 W.L.R. 1141. While Denning MR's statement may have addressed the requirements of notice of assignment, it also underscores the debtor's entitlement to require sight of the assignment itself. This entitlement serves a crucial purpose in allowing the debtor to verify the validity and legitimacy of the assignment, not merely for the satisfaction of discharge but also to ensure that the assignee has the legal authority to pursue the claim.
Furthermore, the excerpt provided from Mitchell Mcfarlane & Partners Ltd v Foremans Ltd (2002) supports the contention that notice of assignment alone may not suffice to establish the assignee's legal standing, particularly in cases of equitable assignments. As highlighted in the case law, the assignor's involvement remains essential in certain contexts, further emphasizing the importance of examining the assignment itself rather than solely relying on notice.
Therefore, while Denning MR's words in Van Lynn Developments Ltd. may have been obiter and not binding, they nevertheless underscore the significance of reviewing the assignment itself, not just the notice thereof, to ascertain the assignee's legal standing and entitlement to pursue the claim. Consequently, I maintain that the Claimant's failure to provide evidence of the assignment itself raises legitimate concerns regarding the validity and legality of their claims against me.
33. In response to point 33, while I acknowledge the citations provided from Nicolliv-Promontoria (Ram 2) Ltd and Promontoria (Oak) Ltd-v-Emanuel & Ors, it's important to contextualize the principles outlined therein. These cases affirm the general principle that a debtor may lack standing to challenge an assignment if neither party to the assignment questions its validity.
However, it's crucial to note that the absence of challenge from either party to the assignment does not automatically validate the assignment itself. The validity of an assignment must still be subject to scrutiny based on legal requirements and evidence presented. Additionally, the burden of proof remains on the claimant to establish the validity of the assignment, particularly when the debtor raises legitimate questions or challenges regarding its authenticity or legality.
Therefore, while the cases cited highlight the general principle regarding challenges to assignments, they do not absolve the claimant from the obligation to provide sufficient evidence to substantiate the assignment's validity. As such, I maintain that the lack of evidence provided by the claimant regarding the assignment in question necessitates further scrutiny to ensure compliance with legal standards and fairness in adjudication.
34. In response to point 34, it's important to clarify that while Hancock v Promontoria (Chestnut) Ltd [2020] EWCA Civ 907 did address the issue of redactions in a voluntarily disclosed document, its relevance extends beyond that narrow scope. Contrary to the assertion made, Hancock does touch upon the obligation to provide documents, particularly the Deed of Assignment, and emphasizes the importance of transparency and completeness in evidencing the assignment's validity.
Moreover, while Hancock did involve a complex chain of multiple assignments, its central focus on ensuring clarity and integrity in the disclosure of documents remains pertinent. The fact that Hancock's appeal was dismissed does not negate the significance of its findings regarding the necessity of providing unredacted documents and explaining any redactions made.
Therefore, Hancock supports the Defendant's position by emphasizing the obligation to provide complete and unredacted documentation, including the Deed of Assignment, to substantiate the Claimant's standing to bring the claim. Consequently, the principles established in Hancock are relevant and supportive of the Defendant's stance in the present case.
35. In response to point 35, while it's true that Jones v Link Financial Ltd (2013) 1 WLR 693 primarily addresses whether an assignee can be considered a creditor, its significance extends beyond this specific issue. The case establishes fundamental principles concerning the validity and requirements of a legal assignment, which are directly relevant to the present dispute.
Jones v Link Financial Ltd clarifies that for a legal assignment to be valid, certain conditions must be satisfied, including that the assignment must be absolute, in writing under the hand of the assignor, and that express written notice must be given to the debtor. These conditions are crucial in determining the legitimacy and effectiveness of an assignment, which directly impacts the assignee's status as a creditor.
Therefore, while Jones v Link Financial Ltd may not directly discuss the production of a Deed of Assignment, its emphasis on the requirements for a valid legal assignment is highly pertinent to the present case. The principles established in Jones v Link Financial Ltd highlight the necessity of providing adequate evidence to substantiate the assignment process, including documentation demonstrating compliance with these conditions. Hence, the case supports the Defendant's argument regarding the importance of establishing the validity of the assignment in question.
36. Confirming point 36, the case of Mitchell McFarlane & Partners Ltd v Foremans Ltd 2002 indeed underscores the principle that even if notice of assignment had not been given, it would not have significantly impacted the outcome. This case highlights that as an equitable assignee, Foremans would have been unable to bring an action at law without joining the assignor, old Foremans.
37. In response to point 37, while it is true that a legal assignment, if fully compliant with Section 136 of the Law of Property Act 1925, creates an exception to the common law doctrine of privity of contract, it's important to clarify the role of a notice of assignment in this context. A notice of assignment serves as formal notification to the debtor that their debt has been assigned to a new creditor. While it may not, in itself, constitute proof of the exception to the doctrine of privity of contract, it is a procedural requirement that facilitates the transfer of rights and obligations from the original creditor to the assignee.
The case cited emphasizes the importance of a legal assignment in establishing the assignee's rights and standing, but it does not diminish the significance of providing notice to the debtor. Rather, both elements work in tandem to effectuate a valid assignment and ensure transparency in the creditor-debtor relationship.
Therefore, while a notice of assignment alone may not provide proof of the exception to the doctrine of privity of contract, it remains a necessary procedural step in the assignment process, complementing the legal assignment itself to establish the assignee's rights and standing.
38. In response to point 38, while the Assignors' belief in the completeness of the assignment may be evidenced by the Notices of Assignment and documentation provided to the Claimant, it is essential to note that the mere belief or assertion of completeness does not necessarily establish the validity or effectiveness of the assignment. The completeness of an assignment must be assessed based on legal requirements and evidence demonstrating compliance with relevant statutory provisions.
Furthermore, the parties' belief in the completeness of the assignment does not preclude the Defendant's right to challenge its validity if there are legitimate grounds to do so. The Defendant retains the right to scrutinize the assignment process and assess whether it adheres to legal standards, including compliance with statutory provisions and the adequacy of documentation provided.
Therefore, while the Alleged Assignors' belief in the completeness of the assignment may be considered, it does not conclusively determine the validity of the assignment, nor does it preclude the Defendant from challenging its validity if there are legitimate grounds to do so. The Defendant's right to challenge the assignment remains unaffected by the parties' beliefs, and any challenges must be assessed based on legal criteria and evidence presented.
39. In response to point 39, while the Notices of Assignment exhibited at "VAT4", "VAT8", and "VAT12" indicate the Assignors' notification of the assignment, it is crucial to clarify that the absence of any apparent issue raised by the Assignors does not inherently validate the assignment nor preclude the Defendant's standing to challenge it. The validity and legality of an assignment must be evaluated based on legal standards and evidence presented, rather than solely relying on the absence of explicit disputes from the Assignors.
The Defendant's standing to challenge the assignment is not contingent upon the Assignors' lack of objection alone. The Defendant retains the right to scrutinize the assignment process and assess its validity based on legal criteria, regardless of whether the Assignors have raised concerns.
Furthermore, the burden of proof lies with the Claimant to substantiate the validity of the assignment, including providing sufficient evidence to demonstrate compliance with statutory requirements and legal standards. The Defendant's right to challenge the assignment is a fundamental aspect of due process, ensuring fairness and adherence to legal principles in the resolution of disputes.
Therefore, while the absence of apparent issues raised by the Assignors may be considered, it does not absolve the Claimant from the obligation to provide robust evidence supporting the validity of the assignment, nor does it negate the Defendant's standing to challenge it based on legitimate grounds.
40. Regarding point 40, it's important to note that the case referenced, Lowell v Hanson, was heard at the County Court at Kingston Upon Hull, which is a lower court. As such, while the findings and decisions made in this case may provide some insight, they are not binding on other cases. Each legal case is determined based on its unique set of facts and circumstances, and while lower court decisions can be persuasive, they do not carry the same weight as decisions made by higher courts or appellate courts.
Therefore, while the Claimant has drawn attention to the findings in Lowell v Hanson, it's essential to recognize that these findings are not binding precedent for the current case. The Court will assess the arguments and evidence presented by both parties in this case independently and make its decision accordingly:
See the suprement Court case of: (Van Lynn Developments v Pelias Construction Co Ltd [1969] 1 QB 607 Where Lord Denning MR said: 'After receiving the notice, the debtor will be entitled, of course, to require a sight of the assignment so as to be satisfied that it is valid, and that the assignee can give him a good discharge.'
And High Court case; (Promontoria (Oak) Ltd v Emanuel & Others 2021 EWCA Civ 1682) 52. 'we agree with Lord Denning that he is entitled to satisfy himself that there has been such an assignment';
41. While Sempra Metals Ltd v Inland Revenue Commissioners (2007) UKHL primarily addresses compound interest claimed on commercial debts, its relevance to the present dispute lies in the broader principles it elucidates regarding the equitable nature of interest claims. The citation becomes pertinent when considering whether the Claimant's interest claim constitutes an attempt at unjust enrichment or betterment.
In this case, the Defendant asserts that the Claimant is claiming interest on contracts to which they were not originally a party and has failed to provide adequate proof of a valid legal assignment. This raises concerns regarding the equitable basis of the Claimant's interest claim. The principles outlined in Sempra Metals Ltd v Inland Revenue Commissioners underscore the importance of ensuring that interest claims are founded on legitimate legal grounds and are not used as a means of unjust enrichment or profiting at the expense of others.
Moreover, the Defendant's assertion suggests that the Claimant's interest claim may represent an attempt to obtain betterment by accruing interest on contracts without valid legal assignment documentation. In such circumstances, the principles established in Sempra Metals Ltd v Inland Revenue Commissioners serve as a reminder of the need for transparency, fairness, and adherence to legal standards in interest claims.
Therefore, while Sempra Metals Ltd v Inland Revenue Commissioners may not directly address the specific circumstances of this case, its broader principles regarding the equitable nature of interest claims and the prevention of unjust enrichment are relevant in evaluating the legitimacy of the Claimant's interest claim in the absence of adequate proof of valid legal assignment.
42. In response to point 42, it is imperative to highlight that while the Claimant may have provided evidence in support of its claim, the crucial element of a valid legal assignment remains conspicuously absent. Despite repeated requests and opportunities, the Claimant has consistently refused to furnish any evidence substantiating the existence of a valid legal assignment. Without such documentation, the basis of the Claimant's entitlement to pursue the Defendant for the alleged debt remains unsubstantiated and legally questionable.
The burden of proof rests squarely on the Claimant to demonstrate, on a balance of probabilities, the validity of the assignment and the Defendant's liability for the claimed balance. However, without concrete evidence of a valid legal assignment, any assertions regarding the Defendant's liability lack a solid foundation and fail to meet the evidentiary standards required in legal proceedings.
In light of the Claimant's persistent refusal to provide evidence of a valid legal assignment, it is untenable to assert that sufficient evidence has been provided to establish the Defendant's liability for the full balance under the Claim. Until such evidence is produced, the Claimant's position remains legally precarious, and the Defendant's liability cannot be reasonably established. Therefore, the Claimant's assertion in this regard is disputed due to the absence of crucial documentation substantiating the Claimant's legal standing in pursuing the alleged debt.
43. In response to point 43, while the Claimant asserts that the Particulars are clear and concise regarding the identity of the parties involved in the Agreements and the reasons for their termination, it is essential to address the Defendant's allegations under CPR 16.4 (1)(a) and (c) regarding the clarity and specificity of the Particulars of Claim.
The Defendant's allegations under CPR 16.4 (1)(a) and (c) raise concerns regarding whether the Particulars of Claim sufficiently meet the requirements for clarity and specificity as mandated by the Civil Procedure Rules. Despite the Claimant's assertion, the Defendant contends that certain aspects of the Particulars of Claim may lack clarity and fail to provide specific details necessary for the Defendant to understand and respond to the allegations effectively.
Moreover, while the Claimant states that their claim is not for aggravated damages or exemplary damages, the Defendant's concerns regarding the clarity and specificity of the Particulars of Claim extend beyond the nature of the damages sought. It pertains to the overall adequacy of the Particulars in meeting the procedural requirements for clarity and specificity under CPR 16.4.
Therefore, the Defendant's allegations under CPR 16.4 (1)(a) and (c) warrant further examination to determine whether the Particulars of Claim provide clear and specific details necessary for the Defendant to understand and respond to the allegations appropriately. Until such clarity is achieved, the Defendant's concerns remain unresolved, and the adequacy of the Particulars of Claim remains disputed.
44. In response to point 44, while it is acknowledged that the Claimant has supplied the dates of the assignment of the debts along with the Notices given, it's important to emphasize that the provision of these dates alone may not fully address the concerns raised by the Defendant regarding the clarity and specificity of the Particulars of Claim.
While the dates of assignment and notices are relevant pieces of information, the Defendant's concerns likely extend beyond mere dates to encompass a broader assessment of whether the Particulars of Claim adequately articulate the basis of the Claimant's allegations, the nature of the debts assigned, and the legal grounds upon which the Claimant seeks relief.
Furthermore, the clarity and specificity required under CPR 16.4 (1)(a) and (c) encompass more than just the provision of dates; they entail a comprehensive and clear articulation of the factual and legal basis of the claim, ensuring that the Defendant is fully apprised of the allegations and can effectively respond to them.
Therefore, while the provision of dates is a positive step, the Defendant's concerns regarding the overall clarity and specificity of the Particulars of Claim necessitate a thorough review to ensure that all necessary details are adequately articulated, enabling the Defendant to understand and respond to the allegations effectively.
45. In response to point 45, it's important to clarify that the Defendant has indeed denied entering into the agreements, asserting that the agreements were void ab initio 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 Consumer Credit Sourcebook. Therefore, the Defendant's defence is grounded in the argument that the agreements lack legal validity from their inception, rendering any claims arising from them null and void. While the Defendant's request for documents aligns with the objectives of fair and transparent proceedings, their denial of entering into the agreements stems from substantive legal grounds rather than mere procedural considerations.
46. In response to point 46, it's imperative to clarify that while the Claimant asserts attempts to settle the matter with the Defendant, the lack of response from the Defendant may be attributed to the Claimant's refusal to provide essential documents requested by the Defendant. Specifically, the Defendant has consistently sought the Deeds of Assignment relied upon by the Claimant, crucial documents necessary for the Defendant to assess the validity of the claims made against them. Despite these requests, the Claimant has refused to provide the requested documentation, thereby impeding the Defendant's ability to engage meaningfully in settlement discussions or prepare an informed defence.
The Defendant's proactive efforts to request the Deeds of Assignment demonstrate a genuine intent to resolve the matter and engage constructively in the legal process. However, the Claimant's refusal to fulfil these requests undermines the transparency and fairness of the proceedings, hindering the Defendant's ability to assess the merits of the claims and explore potential avenues for resolution.
Therefore, while the Claimant asserts attempts to settle the matter, it is essential to recognize that such efforts must be accompanied by a genuine willingness to provide all necessary documentation to facilitate informed discussions and enable the Defendant to respond effectively to the claims brought against them. Without the provision of essential documents, the Claimant's assertion regarding settlement attempts lacks substantive merit and does not absolve them of their obligation to comply with requests for documentation essential to the fair adjudication of the case.
ORDER SOUGHT
47. In response to point 47, the Defendant disputes the Claimant's request for judgment in favor of the full sum of £5,365.28. The Defendant contests the validity of the claim, primarily based on the assertion that the agreements underlying the debt were void ab initio 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 Consumer Credit Sourcebook. Given this substantial dispute regarding the validity of the agreements, granting judgment in favor of the Claimant for the full sum would be premature and unjust. Furthermore, the interest calculation at a rate of 8% but limited to one year may not be appropriate if the Defendant's contention of void agreements is upheld. Therefore, the Defendant requests that the court refrains from granting judgment until the substantive issues raised by the Defendant have been thoroughly addressed and resolved.
48. In response to point 48, the Defendant vehemently opposes the Claimant's request to strike out the Defendant's Defence. The Defendant asserts that the Defence is founded on substantive legal grounds, namely, the contention that the agreements underlying the debt are void ab initio 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 Consumer Credit Sourcebook. These legal arguments raise significant questions about the validity and enforceability of the Claimant's claim.
Moreover, the Defendant maintains that the Defence has been presented in accordance with the Civil Procedure Rules and provides sufficient legal and factual basis to challenge the Claimant's claim. Therefore, the Defendant believes that the Defence should be considered on its merits rather than summarily struck out.
Additionally, striking out the Defence at this stage would deprive the Defendant of the opportunity to have their substantive legal arguments heard and adjudicated upon by the court. Such a decision would be contrary to the principles of fairness and justice inherent in the legal process.
Given these considerations, the Defendant requests that the Court rejects the Claimant's request to strike out the Defence and instead allows the matter to proceed to a full and fair hearing, where the substantive issues raised by the Defendant can be fully examined and adjudicated upon.
ATTENDANCE COSTS
49. In response to point 49, the Defendant disputes the Claimant's request for the costs of their advocate's attendance at the hearing. The Defendant contends that such costs are not warranted given the nature of the dispute and the circumstances surrounding the case.
Firstly, the Defendant argues that the Claimant's claim is based on agreements that are being contested on substantial legal grounds, namely, the alleged failure of the Alleged Assignor to comply with statutory requirements. This raises significant questions about the validity and enforceability of the debts claimed by the Claimant.
Secondly, the Defendant asserts that the presence of an advocate at the hearing may not be necessary or proportionate, considering the complexity of the legal issues involved and the amount in dispute. The Defendant contends that the costs associated with the advocate's attendance are disproportionate to the value of the claim and the potential outcome of the proceedings.
Furthermore, the Defendant emphasizes the need for judicial economy and cost-effectiveness in the conduct of legal proceedings. Requesting the costs of an advocate's attendance at the hearing could unnecessarily burden the Defendant with additional costs, especially if the presence of an advocate is deemed unnecessary by the court.
Therefore, the Defendant disputes the Claimant's request for the costs of their advocate's attendance at the hearing and urges the court to consider the proportionality of such costs in light of the circumstances of the case.
50. In response to point 50, the Defendant disputes the Claimant's assertion regarding the necessity of providing a Schedule of Costs. While the Claimant contends that no solicitor's profit costs are sought and that providing a separate Schedule of Costs would be disproportionate and contrary to the Overriding Objective as to costs and expediency, the Defendant maintains that transparency and clarity in outlining costs are essential for a fair and efficient legal process.
Providing a Schedule of Costs serves to ensure transparency and accountability in the assessment of costs associated with legal proceedings. It allows both parties and the court to understand the breakdown of costs claimed by the Claimant, including any disbursements or other expenses incurred. Without a clear outline of costs, it becomes challenging for the Defendant and the court to evaluate the reasonableness and proportionality of the costs claimed by the Claimant.
Furthermore, while the Claimant may assert that providing a separate Schedule of Costs is disproportionate, the Defendant contends that such a document is standard practice and facilitates the efficient administration of justice. It allows for a clear and structured presentation of costs, which ultimately contributes to the fair and expeditious resolution of the matter.
Therefore, the Defendant disputes the Claimant's assertion and requests that the Claimant provide a Schedule of Costs in accordance with established legal procedures, ensuring transparency and fairness in the assessment of costs associated with the proceedings.
51. In light of the substantive legal arguments presented by the Defendant challenging the validity of the agreements underlying the Claimant's claim, the Defendant respectfully requests that the Court dismiss the Claimant's claim in its entirety. The Defendant contends that the agreements in question are void ab initio due to the Alleged Assignor's failure to comply with statutory requirements, as outlined in Section 138D of the Financial Services and Markets Act 2000 and CONC 5.2A of the Consumer Credit Sourcebook.
Furthermore, the Defendant requests that costs be awarded in favor of the Defendant. The Defendant asserts that pursuing the claim has caused undue burden and expense, necessitating the Defendant to incur legal fees and devote resources to defending against a claim based on agreements that lack legal validity.
In the interest of justice and fairness, the Defendant urges the Court to dismiss the Claimant's claim and award costs in favour of the Defendant, thereby alleviating the Defendant of the financial and legal burdens incurred in defending against an unsubstantiated claim.
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 April 2024
Signed: [DEFENDANT'S SIGNATIRE]
Name: [DEFENDANT'S NAME]
Position: Defendant
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