IN THE COUNTY COURT AT BURNLEY
CLAIM NUMBER: E2345678
BETWEEN:
LOWELL PORTFOLIO I LTD
Claimant
-and-
MRS [DEFENDANTS NAME]
Defendant
WITNESS STATEMENT OF [ALLEGED WITNESS NAME]
I, [ALLEGED WITNESS NAME], of Lowell Solicitors Limited, Ellington House, 9 Savannah Way, Leeds Valley Park West, Leeds LS10 1AB, WILL SAY as follows:
INTRODUCTION
1. I am a Paralegal in the employ of Lowell Solicitors Limited, the Solicitors instructed by the Claimant. I have conduct of this matter subject to the supervision of my Principals and I am duly authorised by the Claimant to make this statement on the Claimant’s behalf.
2.The facts contained in this statement are known to me save as where expressly stated and are true to the best of my knowledge, information and belief from review of the Claimant’s computerised account record system.
BACKGROUND
3. The Judgment debt relates to a credit Agreement (“the Agreement”) regulated by the Consumer Credit Act 1974, between Shop Direct, under the brand Littlewoods (“the Assignor”) and the Defendant.
4. The Agreement was entered into by the Defendant on 21 November 2014 and relates to account number 88106407. A reconstituted copy of the Agreement with the associated terms and conditions is exhibited hereto at “FA1”.
5. The Assignor has provided the Claimant with a account and transaction summary which evidences the accrual of the balance of £647.61. For example, the Defendant ordered 32 items including an ‘spider man table’. The statement shows that the last payment made by the Defendant to the Assignor was in the sum of £4.88 on 16 December 2014. A copy of the account and transaction summary is exhibited hereto at “FA2”.
6. The Defendant failed to maintain the payments in accordance with the Agreement. A Default Notice was sent to the Defendant on 16 June 2015 to the address of 813 Briercliffe Road, Burnley, Lancashire BB10 2EZ, which required the Defendant to remedy the arrears. A copy of the Assignor’s system evidencing that a Default Notice was sent is exhibited hereto at “FA3”. As the Defendant did not clear the arrears or arrange repayments with the Assignor the Agreement was breached by the Defendant and the cause of action accrued.
7. Following the Defendant’s breach of the Agreement, the debt was subject to a legal assignment by written instrument dated 10 July 2015 from the Assignor to the Claimant pursuant to section 136 of the Law of Property Act 1925. The debt was allocated the Claimant’s reference 205677214. Notices of Assignment were sent to the Defendant to her current address on behalf of the Assignor and by the Claimant dated 11 August 2015. The Defendant failed to respond in order to resolve this matter. A reconstituted copy of the Notice of Assignment is exhibited hereto at “FA4”.
8. Given that there has been valid assignment of the debt from the Assignor to the Claimant, the Claimant avers that it is entitled to payment of the debt from the Defendant.
9. A further 22 pre-action letters were sent by the Claimant to the Defendant. The purpose of the Claimant’s correspondence was to discuss the outstanding debt with the Defendant, discuss suitable repayments towards the outstanding debt and/or provide the Defendant with the opportunity to raise any disputes she may have. The Defendant failed to respond to all correspondence.
10. The matter was then transferred to the Claimant’s solicitors to issue Court proceedings as a result of the lack of response from the Defendant. The Claimant’s solicitors sent the Defendant a Notice of Acting dated 18 July 2018 and a Letter Before Action dated 27 July 2018 at the Defendant’s current address. Copies of both letters are exhibited hereto at (“FA5”).
11. The Defendant failed to respond to any of the Claimant’s correspondence requesting payment of the outstanding debt or to raise any further disputes. The Claimant’s Solicitors therefore issued legal proceedings on 6 September 2018 to recover the sum of £647.61 plus interest in the sum of £51.81 pursuant to s.69 County Courts Act 1984 and costs in the sum of £150.00. The Claim Form was subsequently deemed served on 11 September 2018 at the Defendants current address.
12. Due to no Acknowledgment of Service or Defence being filed by the Defendant, the Claimant entered Judgment on 10 October 2018 for the sum of £829.42 including interest, costs and fees.
13. A further 15 letters were sent to the Defendant notifying the Defendant that Judgment had been entered against her.
14. The Claimant’s solicitors received the Defendant’s Application to set Judgment aside dated 11 October 2021.
THE DEFENDANT’S APPLICATION
15. The Defendant states ‘I myself do not believe I saw a letter or CCJ arrive at my home…..i was not aware that the Claimant had purchased a list of names’.
THE CLAIMANT’S RESPONSE TO THE APPLICATION
16. The Claimant repeats paragraphs 3 to 14 of this Witness Statement.
17. The Claimant avers that the Defendant’s application is without merit.
18. The Claimant avers that the Defendant had the use and the benefit of services under the Agreement, before breaching the terms of the Agreement by failing to make the requisite payments. The Defendant has not denied the existence of the account.
19. Further to CPR 6.9 the Defendant’s address for service on the Claim Form was the Defendant’s current address of 813 Briercliffe Road, Burnley, Lancashire BB10 2EZ. The
Claimant submits that the pre-action letters had been sent to the Defendant’s current address which the Defendant has confirmed in her application. There are no issues in respect of service of the proceedings. The Claimant therefore obtained a regular judgment against the Defendant.
20. The Claimant does not believe there have been any issues with service and as such there are no mandatory grounds to set the Judgment aside in accordance with CPR 13.2.
21. As per CPR 13.3(1) In any other case, the court may set aside or vary a judgment entered under
Part 12 if –
a. the defendant has a real prospect of successfully defending the claim; or
b. it appears to the court that there is some other good reason why –
c. the judgment should be set aside or varied; or
d. the defendant should be allowed to defend the claim.
22. The Claimant’s intention throughout its attempts to communicate with the Defendant was to offer either an affordable repayment plan, and resolve the Defendant’s dispute. It is therefore the Claimant’s position that the Defendant does not have any real prospect of successfully defending the claim.
23. The Claimant also submits that the Defendant has provided no good reason as to why the Judgment should be set aside, why she should be allowed to defend the claim.
24. It is reiterated that the debt was subject to a legal assignment by written instrument dated 10 July 2015 from the Assignor to the Claimant pursuant to section 136 of the Law of Property
Act 1925. Notices of Assignment were sent to the Defendant to her current address on behalf of the Assignor and by the Claimant dated 11 August 2015. The Defendant therefore ought to known that a balance remained unpaid and should have responded to the Claimants correspondence.
25. If the Court is nevertheless satisfied that its discretion applies in this case, CPR 13.3.(2) requires that in considering whether to exercise it, the Court must take into consideration whether the Defendant has made the application promptly.
26. The Claimant avers that the Defendant’s Application has not been made promptly as per CPR 13.3(2). The Claimant’s solicitors entered Judgement on 10 October 2018, there has therefore been a delay of over 2 years to make the Application to set Judgment aside. The delay alone therefore renders it to be entirely unjust for the Judgment to be set aside as this would cause significant prejudice to the Claimant.
27. In Regency Rolls & Another v Carnall [2000] EWCA civ 379, the Court of Appeal held that an application made 30 days after the Judgment had not been made promptly. The Claimant also refers to paragraph 45 of the Judgment in which Brown LJ stated:
“I would accordingly construe “promptly” here to require, not that an applicant has been guilty of no needless delay whatever, but rather that he has acted with all reasonable celerity in the circumstances. That said, I would regard the appellant here as having failed even in that obligation. 30 days was altogether too long a delay before making his part 39 application. Having regard to the long, and generally unsatisfactory, history of the proceedings to that point, the application plainly could and in my judgment reasonably should, have been issued well before it was.”
28. In light of which the Claimant avers that the Defendant has failed in every way to make her Application promptly when the above case is considered.
29. The Claimant avers that the warrant being issued on 28 September 2021 has prompted the Defendant to make her Application to set aside the Judgment. On this point the Claimant will rely upon Nolan v Davenport [2006] EWHC 2025 (QB), in which the Court held that it was unreasonable for a Judgment Debtor to wait until the Judgment Creditor enforced a Judgment before seeking to have it set aside.
30. The Claimant avers that the judgment in Nolan clearly applies in this matter and respectfully refers the Court to Paragraph 17 of the judgment in which HHJ Grenfall stated: “In my judgment, it is clear that the real reason for seeking to set aside judgment is to frustrate enforcement. Had the real reason been that the second Defendant had a meritorious claim, then, in all the circumstances, she would surely have wished to apply to have such a significant judgment set aside immediately. The former reason, in my judgment, is capable of being an abuse of the Court’s procedure.”
31. The Claimant further respectfully reminds the Court that, as held by the Court of Appeal in Gentry v Miller [2016] 1 WLR 2696 (“Gentry”), it must go on separately to consider the test for relief from sanction in CPR 3.9 pursuant to the rule in Denton v TH White Ltd [2014] EWCA Civ 906 (“Denton”). Both cases are summarised in the High Court judgment in Redbourne Group Limited v Fairgate Development Limited [2017] EWHC 1223 (TCC) (“Redbourne”). In summary, an Application to set Judgment aside is also an Application for relief from sanctions, and a three-stage test is set for considering an Application for relief from sanctions.
32. The first stage of the Denton test is to consider whether the breach is serious or significant, and Gentry rules that a breach resulting in the sanction of entry of Judgment is by definition serious and significant. The Claimant avers that the Defendant’s failure to respond to the claim form was a serious and significant breach which led to the entry of the Judgment.
33. The second stage considers whether there is a good reason for the breach, and here the Defendant has failed to mention why she failed to respond to the claim form even though it was served at her current address or raise a dispute with the Claimant. Therefore, the Claimant submits that the Court is entitled to conclude that there is no good reason.
34. The third stage is consideration of all the circumstances, but the Defendant mentions none whether relevant to the breach. The Claimant therefore submits that the Court should therefore conclude that there are no circumstances excusing either the breach or the Defendant’s failure to explain it, and none that cannot properly grant relief under stage three where the Defendant clearly fails the test at the first two stages.
35. If, despite all of the factors set out above, the Court were to set aside the Judgment, this would cause significant prejudice to the Claimant, for the reasons set out below:
a) The Claimant’s ability to respond to any dispute would be severely prejudiced given the age of the debt and the fact that the debt has been legally assigned. This would also effectively reward the Defendant for delaying the application.
b) The Claimant would lose the security of its warrant. Such security does appear to be the only chance that the Claimant has of receiving payment in respect of the Judgment debt, as the Defendant has successfully avoided repayment for some years.
36. The Claimant’s position is that the Court should apply the principles set out in the above Judgment and that the Defendant’s application should therefore be dismissed.
37. The balance of £936.67 including interest, costs and fees remains outstanding.
ORDER SOUGHT
38. The Claimant respectfully requests that the Defendant’s Application to Set Judgment Aside be dismissed.
39. Since the application is wholly without merit the Claimant seeks that it be awarded its costs for attendance, which are to be confirmed by the advocate attending the hearing, but which are not expected to exceed £162.00 inclusive of VAT which the Claimant cannot otherwise recover as it is not VAT-registered because as a debt purchase vehicle, it makes no VATable supplies of either goods or services.
40. The Claimant respectfully submits that since no other costs and in particular no solicitor’s profit costs are sought, the above paragraph should be taken as satisfying any requirement for a Schedule of Costs, a separate Schedule in prescribed form being of no assistance either to the Defendant or to the Court, and the work and expense of preparing it being disproportionate and contrary to the Overriding Objective as to costs and expediency at CPR 1.1(2)(b), 1.1(2)(c)(i) and 1.1(2)(d).
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 this12th day of November 2021
Signed: [ALLEGED WITNESS SIGNATURE]
Name: [ALLEGED WITNESS NAME]
Position: Paralegal
IN THE COUNTY COURT AT BURNLEY
CLAIM NUMBER: E2345678
BETWEEN:
MRS [DEFENDANTS NAME]
Defendant
-and-
LOWELL PORTFOLIO I LTD
Claimant
WITNESS STATEMENT OF SAMANTHA CULSHAW
I, [DEFENDANTS NAME], of [DEFENDANTS ADDRESS], WILL SAY as follows:
INTRODUCTION
1. I am the defendant in this case. The contents of this statement are true to the best of my knowledge, information and belief.
2. I make this witness statement in direct response to the claimants filing of a witness statement of [ALLEGED WITNESS NAME] (the ‘Alleged Witness’) dated 12 November 2021 whose statement is based on her employment of a company called Lowell Solicitors Limited. The Alleged Witness, by her own admission, bases her entire statement on hearsay evidence from the computer system of the Claimant and the computer system of Shop Direct (the ‘Alleged Assignor’). The failure of such systems have been brought to light by the recent case where sub-postmasters were acquitted of Fraud after false convictions based solely on the data from a computer system that generated erroneous data: https://www.computerweekly.com/news/252475611/Subpostmasters-proved-right-on-IT-systemfailures-as-calls-for-full-public-inquiry-mount
It is my understanding that the Claimant must serve notice to any hearsay evidence pursuant to CPR 33.2(1)(B) (notice of intention to rely on hearsay evidence) and Section 2 (1) (A) of the Civil Evidence Act.
The Defendant avers that no such notice has been served and respectfully asks the court to dismiss the Claimants claim which is entirely based on hearsay evidence.
Within this statement I refer to various documents, these are now produced in bundle marked (‘SC1’) and (‘SC2’).
BACKGROUND
3. It is disputed that the Claimant is entitled or has any Locus Standi to bring a claim in relation to an agreement regulated by the Consumer Credit Act 1974 between the Defendant and Shop Direct ("the Alleged Assignor") under the account number 13892821 (the "Void Agreement").
The Defendant avers that the Void Agreement was entered into as a result of irresponsible lending practices and in breach of the Consumer Credit Act 1974 Section 25(2B). This matter is currently the subject of a irresponsible lending complaint pending an investigation by the Financial Ombudsman.
www.bechbruun.com/en/news/2020/danish-consumer-ombudsman-finds-66-loan-agreements-to-be-unfair-and-void
The Defendant avers that as the Original Agreement was in breach of the Consumer Credit Act, the Alleged Assignor could not assign a benefit that was not owed - Nemo dat quod non habet - 'no one gives what they do not have'
It is disputed that the Claimant has any entitlement or Legal Standing to claim for the benefit of an agreement that they were not a party to due to the Common Law Doctrine of Privity of Contract.
The Defendant draws the Courts attention to the ruling of:
Dunlop Pneumatic Tyre Co Ltd v Selfridge Ltd [1915] AC 847 -The court found that firstly, only a party to a contract can claim upon it. Secondly, Dunlop had not given any consideration to Selfridge and therefore there could be no binding contract between the parties. Lastly, Dunlop was not listed as an agent within the contract and could therefore not be included as a valid third-party who had rights to claim on the contract.
The Defendant avers that the Claimant has not claimed any exemption to the Common Law Doctrine of Privity of Contract and has failed to provide any evidence of an exemption.
4. It is not disputed that the Void Agreement was entered into by the Defendant on 21 November 2014 and relates to account number 88106407. It is disputed that a reconstituted copy of the Agreement with the associated terms and conditions is exhibited by the Claimant in their Witness Statement at “FA1” is a valid copy of the Void Agreement as per the Consumer Credit Act 1974. The Claimant is put to strict proof to prove that and agreement was signed by the Defendant giving the Claimant an exemption from the Common Law Doctrine of Privity of Contract. The Defendant avers that a reconstituted copy of the Void Agreement provides no evidence that the Defendant agreed to the specific terms provided or agreed to the sale of the benefit of the Void Agreement that would give the Claimant the right to bring an action at law.
The Defendant avers for the Claimant to rely on Section 1 of the Contracts (Rights of Third Parties) Act 1999, the Assignee must be expressly identified in the contract by name or class:
(1) Subject to the provisions of this Act, a person who is not a party to a contract (a “third party”) may in his own right enforce a term of the contract if—
(a) the contract expressly provides that he may, or
(b) subject to subsection (2), the term purports to confer a benefit on him.
(2) Subsection (1)(b) does not apply if on a proper construction of the contract it appears that the parties did not intend the term to be enforceable by the third party.
(3) The third party must be expressly identified in the contract by name, as a member of a class or as answering a particular description but need not be in existence when the contract is entered into.
The Defendant avers that the Agreement was entered into as a result of irresponsible lending practices and in breach of the Consumer Credit Act 1974 Section 25(2B). The Agreement is currently subject to a complaint of irresponsible lending pending a formal investigation by the Financial Ombudsman. The Defendant avers that the relationship with ‘the Assignor’ is an unfair relationship. Section 140A of the Consumer Credit Act 1974 (CCA) provides that a court may order the lender to reduce, discharge or repay a loan under a credit agreement should it determine that the relationship between the lender and the borrower is unfair to the borrower.
5. It is disputed that the Alleged Assignor has provided the Claimant with a account and transaction summary which evidences the accrual of the balance of £647.61. It is disputed that, for example, the Defendant ordered 32 items including an ‘spider man table’. It is disputed that the statement shows that the last payment made by the Defendant to the Alleged Assignor was in the sum of £4.88 on 16 December 2014. It is disputed that the document exhibited by the Claimant at “FA2” is a valid copy of the account and transaction summary. The Defendant avers that the Claimant is reliant solely on hearsay evidence for which they have made no application to admit. 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.
6. It is disputed that the Defendant failed to maintain the payments in accordance with the Void Agreement. It is disputed that a Default Notice was sent to the Defendant on 16 June 2015 to the address of 813 Briercliffe Road, Burnley, Lancashire BB10 2EZ, which required the Defendant to remedy the arrears. It is disputed that the document exhibited by the Claimant at “FA3” is a valid copy of the Alleged Assignor’s system evidencing that a Default Notice was sent. It is disputed that as the Defendant did not clear the arrears or arrange repayments with the Alleged Assignor the Void Agreement was breached by the Defendant and the cause of action accrued.
The Defendant avers that the Claimant has provided no evidence of service of a Default Notice and relies on the unreliable hearsay of computer generated documents without no evidential value to which no weight should be given by the Court.
7. It is disputed that following the Defendant’s breach of the Void Agreement, the benefit of the Void Agreement was subject to a legal assignment by written instrument dated 10 July 2015 from the Assignor to the Claimant (the 'Deed of Assignment') pursuant to section 136 of the Law of Property Act 1925.
The Defendant avers that the Claimant has mentioned the Deed of Assignment in their Witness Statement, so the Defendant is entitled to see the document in question to ensure that the Claimant can give good discharge of any benefit of the Void Agreement.
See: (Van Lynn Developments v Pelias Construction Co Ltd 1968.[3] All ER 824) Where Lord Denning MR said 'the debtor is entitled to view the sale agreement to ensure that the assignee can give him good discharge under the contract';
The debt was allocated the Claimant’s reference 205677214. Notices of Assignment were sent to the Defendant to her current address on behalf of the Assignor and by the Claimant dated 11 August 2015. The Defendant failed to respond in order to resolve this matter. A reconstituted copy of the Notice of Assignment is exhibited hereto at “FA4”.
8. It is disputed that there has been valid assignment of the benefit of the Void Agreement from the Alleged Assignor to the Claimant, due to the constraints of:
The Common Law Doctrine of Privity of Contract - (A third party cannot litigate a contract they were not a party to);
Section 44 of the Companies Act 2006 - (a Deed of Assignment requires TWO signatures from the Assignor);
Section 136 of the Law of Property Act 1925 - (An assignee cannot buy future debts, they must have a valid Deed of Assignment and notice must be 'GIVEN'); and;
Section 196 of the Law of Property Act 1925 - (Service of documents must be by registered mail).
It is disputed that the Claimant it is entitled, or has any legal standing to claim payment of the benefit of the Void Agreement from the Defendant.
The Defendant is entitled to view the Deed of Assignment that the Claimant is relying on in this matter. The Defendant is willing to accept redacted copies of any documents that may contain sensitive commercial data or personal details of other clients providing that evidence relating to the Defendant is apparent.
Although in; Promontoria (Oak) Limited v Emanuel [2020] EWHC 104 (Ch) - Marcus Smith J concluded that the decision of the recorder at first instance to permit the claimant’s reliance on the redacted copy deed was sufficiently flawed as to require setting aside;
See (Van Lynn Developments v Pelias Construction Co Ltd 1968.[3] All ER 824) Where Lord Denning MR said 'the debtor is entitled to view the sale agreement to ensure that the assignee can give him good discharge under the contract';
Also; [Jones v Link Financial Ltd (2013) ] 1 WLR 693 Where it was found that three conditions for the validity of a LEGAL assignment must be satisfied, 'namely': that the assignment was absolute and not by way of charge; that it was in writing under the hand of the assignor, and that express notice in writing had been given to the debtor.
The Claimant is put to strict proof to provide a copy of the Deed of Assignment, that they mention in their Witness Statement and they rely on to establish Legal assignment from the Alleged Assignor to the Claimant.
The Claimant is put to strict PROOF to show that all three elements of Legal Assignment are satisfied:
a. that the assignment is absolute and not by way of a charge;
b. that it is in writing under the hand of the assignor (the 'Deed of Assignment');
c. and that express notice in writing has been given to the debtor.
9. It is disputed that a further 22 pre-action letters were sent by the Claimant to the Defendant. It is disputed that the purpose of the Claimant’s correspondence was to discuss the outstanding debt with the Defendant, discuss suitable repayments towards the outstanding debt and/or provide the Defendant with the opportunity to raise any disputes she may have. It is disputed that the Defendant failed to respond to all correspondence.
The Defendant avers that the Claimant, as a debt purchase company, operates on the purchase of debts on an Equitable basis and as such they cannot bring an action at law without attaching the Alleged Assignor:
See (Mitchell Mcfarlane & Partners Ltd v Foremans Ltd 2002) - "Even If I had held that notice of assignment had not been given, I do not think that this would have made any difference. As an equitable assignee Foremans could not have brought an action at law without joining the assignor, old Foremans."
The assignment of debt by way of a charge is prohibited under Section 136 of the Law of Property Act 1925 and the Defendant avers that the Claimant is not compliant with ANY of the THREE requirements of Section 136 of the Law of Property Act 1925.
10. It is disputed that the matter was then transferred to the Claimant’s solicitors to issue Court proceedings as a result of the lack of response from the Defendant. The Defendant avers that the Claimant uses an 'in house' limited company called 'Lowell Solicitors Limited' that operates from the same physical location as the Claimant and any transfer that the Claimant alleges occurred was simply a paperwork exercise.
It is disputed that the Claimant’s solicitors sent the Defendant a Notice of Acting dated 18 July 2018 and a Letter Before Action dated 27 July 2018 at the Defendant’s current address. It is disputed that the document exhibited by the Claimant at (“FA5”) are copies of both letters. The Claimant is put to strict proof to provide proof of postage of both letters exhibited which the Defendant avers are at best hearsay evidence that should be given no weight by the Court.
11. It is disputed that the Defendant failed to respond to any of the Claimant’s correspondence requesting payment of the outstanding debt or to raise any further disputes. It is a matter of record that the Claimant’s in-house Solicitors issued legal proceedings on 6 September 2018. It is disputed that this was to recover the sum of £647.61 plus interest in the sum of £51.81 pursuant to s.69 County Courts Act 1984 and costs in the sum of £150.00 as the Claimant has no legal right to claim the benefit of a Void Agreement that they were not a party to. It is a matter of record that the Claim Form was deemed served on 11 September 2018 at the Defendants current address. The Defendant avers that she did not receive the Claim Form and was unware of any Legal Action by the Claimant and would have Acknowledged Service and Defended the claim if she had been aware.
12. It is a matter of record that due to no Acknowledgment of Service or Defence being filed by the Defendant, the Claimant entered Judgment on 10 October 2018 for the sum of £829.42 including interest, costs and fees. The Defendant avers that she did not receive Claim Form so was unable to respond by filing an Acknowledgment of Service..
13. It is disputed that a further 15 letters were sent to the Defendant notifying the Defendant that Judgment had been entered against her. The First letter the Defendant received was dated 10th august 2021, this was not received until the 20th August 2021. At the time the Defendant had builders in the property since April 1st 2021 when a flood destroyed the bathroom and downstairs. The Defendant avers that she wrote to the Claimant upon receiving this letter and asked for the Claimant to agree to a set aside. The Defendant avers that the Claimant did not respond to this request.
14. It is not disputed that the Claimant’s solicitors received the Defendant’s Application to set Judgment aside dated 11 October 2021.
THE DEFENDANT’S APPLICATION
15. It is not disputed that the Defendant states ‘I myself do not believe I saw a letter or CCJ arrive at my home…..i was not aware that the Claimant had purchased a list of names’.
THE CLAIMANT’S RESPONSE TO THE APPLICATION
16. The Defendant repeats paragraphs 3 to 14 of this Witness Statement.
17. The Defendant avers that the Claimant’s claim is totally without merit.
18. It is disputed that the Defendant had the use and the benefit of services under the Void Agreement. It is disputed that the Defendant breached the terms of the Void Agreement by failing to make the requisite payments as the Void Agreement was effectively voided by the Alleged Assignor failing to comply with Consumer Credit Act 1974 Section 25(2B).
19. It is not disputed that the Defendant’s address for service on the Claim Form was the Defendant’s current address of 813 Briercliffe Road, Burnley, Lancashire BB10 2EZ. It is disputed that the pre-action letters had been sent to the Defendant’s current address which the Defendant has confirmed in her application. It is not disputed here are no issues in respect of service of the proceedings. It is not disputed that the Claimant obtained a regular judgment against the Defendant. The Defendant avers that the Claimant issued a claim for the benefit of an Alleged Agreement that they were not a party to and have no right or Legal Standing to issue such a claim, The Defendant submits that she has an Article 6 ECHR right to a fair trial:
Article 6: Right to a fair and public hearing
In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.
20. It is disputed that there has not been any issues with service and as such there are no mandatory grounds to set the Judgment aside in accordance with CPR 13.2.
The Defendant avers that Article 6 of the ECHR affords the Defendant a right to a fair trial and the Defendant maintains that due many difficulties and incidents, that this right has not been afforded and respectfully requests that the judge sets aside the default judgement.
21. It is agreed that as per CPR 13.3(1) In any other case, the court may set aside or vary a judgment entered under
Part 12 if –
a. the defendant has a real prospect of successfully defending the claim; or
b. it appears to the court that there is some other good reason why –
c. the judgment should be set aside or varied; or
d. the defendant should be allowed to defend the claim.
The Defendant avers that in this case there are very good reasons to set aside the judgment and respectfully asks the Court to do just that.
22. It is disputed that the Claimant’s intention throughout its attempts to communicate with the Defendant was to offer either an affordable repayment plan, and resolve the Defendant’s dispute. It is disputed that the Defendant does not have any real prospect of successfully defending the claim. The Defendant avers that the Claimant is a bulk debt purchase company who purchases accounts on an Equitable basis with little regard to whether the actual details of the account are accurate and whether the Alleged Assignor was complaint with the Consumer Credit Act 1974. The Defendant avers that the correct company, in the absence of proof of Legal Assignment, to bring an action at law would be the Alleged Assignor:
See: (Mitchell Mcfarlane & Partners Ltd v Foremans Ltd 2002) - 'Even If I had held that notice of assignment had not been given, I do not think that this would have made any difference. As an equitable assignee Foremans could not have brought an action at law without joining the assignor, old Foremans.'
23. It is disputed that the Defendant has provided no good reason as to why the Judgment should be set aside, why she should be allowed to defend the claim.
The Defendant avers that in the interest of justice and Article 6 of the European Court on Human Rights, the Defendant has a right to defend any Civil claim and respectfully asks the Court to set aside the judgement obtained by the Claimant in default.
24. It is disputed that the debt was subject to a legal assignment by written instrument dated 10 July 2015 from the Assignor to the Claimant pursuant to section 136 of the Law of Property Act 1925. The Claimant has failed to provide any evidence of Legal Assignment and appears to rely solely on Notice of Assignment that would only establish, at most, an Equitable Assignment of a Void Agreement that would not give the Claimant any right to bring an action at law.
It is disputed that Notices of Assignment were sent to the Defendant to her current address on behalf of the Assignor and by the Claimant dated 11 August 2015. It is disputed that the Defendant therefore ought to known that a balance remained unpaid and should have responded to the Claimants correspondence.
The Claimant has failed to provide any evidence of service of any Notice of Assignment for the alleged assignment of the Void Agreement.
25. It is agreed that if the Court is nevertheless satisfied that its discretion applies in this case, CPR 13.3.(2) requires that in considering whether to exercise it, the Court must take into consideration whether the Defendant has made the application promptly. The Defendant avers that she has acted promptly within the difficult circumstances she has found herself in and respectfully ask the Court to Set Aside the judgment.
26. It is disputed that the Defendant’s Application has not been made promptly as per CPR 13.3(2). It is not disputed that the Claimant’s solicitors obtained Judgement in default on 10 October 2018 and there has therefore been a delay of over 2 years to make the Application to set Judgment aside. It is disputed that the delay alone therefore renders it to be entirely unjust for the Judgment to be set aside. It is disputed that this would cause significant prejudice to the Claimant. The Defendant avers that she made the application promptly, when she found out about the judgment.
27. It is disputed that the case of Regency Rolls & Another v Carnall [2000] EWCA civ 379, where the Court of Appeal held that an application made 30 days after the Judgment had not been made promptly, is in away similar to this case. The circumstances were that a delay once the person is aware of the judgement should be no more than 30 days, but in the case, the Defendant applied as quickly as possible and no where near the 30 days in the Regency Rolls case.
28. It is disputed that the Defendant has failed in every way to make her Application promptly when the above case is considered.
The Defendant cites that case of:
Barons Bridging Finance Plc v Nnadiekwe [2012] EWHC 2817 (Comm) which saw the court set aside a judgment entered several years earlier, due to severe conflicts of evidence between the parties, including the defendant alleging that she was the victim of fraud.
29. It is disputed that the warrant being issued on 28 September 2021 has prompted the Defendant to make her Application to set aside the Judgment. On this point the Claimant will rely upon Nolan v Davenport [2006] EWHC 2025 (QB), in which the Court held that it was unreasonable for a Judgment Debtor to wait until the Judgment Creditor enforced a Judgment before seeking to have it set aside.
The Defendant avers that the application to set aside was made as soon as the Defendant became aware of the judgment.
30. It is disputed that in Nolan clearly applies in this matter and the Defendant avers that the Claimant as a bulk debt buyer seeks to rely on a Default judgment against a vulnerable litigant in person which they have brought despite having no legal right to bring an action at law without attaching the Alleged Assignor.
See: (Mitchell Mcfarlane & Partners Ltd v Foremans Ltd 2002) - 'Even If I had held that notice of assignment had not been given, I do not think that this would have made any difference. As an equitable assignee Foremans could not have brought an action at law without joining the assignor, old Foremans.'
31. It is not disputed that the Court of Appeal in Gentry v Miller [2016] 1 WLR 2696 (“Gentry”), it must go on separately to consider the test for relief from sanction in CPR 3.9 pursuant to the rule in Denton v TH White Ltd [2014] EWCA Civ 906 (“Denton”). Both cases are summarised in the High Court judgment in Redbourne Group Limited v Fairgate Development Limited [2017] EWHC 1223 (TCC) (“Redbourne”). In summary, an Application to set Judgment aside is also an Application for relief from sanctions, and a three-stage test is set for considering an Application for relief from sanctions.
The Defendant avers that it is at the Courts discretion to set aside the judgment and the circumstances of this case merit the such a judgment.
32. It is disputed that the Defendant’s failure to respond to the claim form was a serious and significant breach which led to the entry of the Judgment. The Defendant avers that not knowing of the existence of the claim made it impossible for the Defendant to respond.
33. It is disputed that the Defendant has failed to mention why she failed to respond to the claim form even though it was served at her current address or raise a dispute with the Claimant. It is disputed that the Court should to conclude that there is no good reason.
34. It is disputed that the Court should conclude that there are no circumstances excusing either the breach or the Defendant’s failure to explain it, and none that cannot properly grant relief under stage three where the Defendant clearly fails the test at the first two stages.
35. It is disputed that if the Court were to set aside the Judgment, this would cause significant prejudice to the Claimant, for the reasons set out below:
a) It is disputed that the Claimant’s ability to respond to any dispute would be severely prejudiced given the age of the debt and the fact that the debt has been legally assigned. If the Claimant had sufficient evidence when they brought the Claim, such evidence would still be in their possession. It is denied that this would also effectively reward the Defendant for delaying the application. The Defendant avers that there has been no delay of the application.
b) It is disputed that the Claimant would lose the security of its warrant. It is disputed that such security is the only chance that the Claimant has of receiving payment in respect of the Judgment debt, as the Defendant has successfully avoided repayment for some years. The Defendant avers that no debt is owed to the Claimant or the Alleged Assignor in relation to the Void Agreement.
36. It is the Defendant’s position is that the Court should exercise judgement and set aside the Default judgment in the interest of justice and Article 6 of the European Convention on Human Rights.
37. It is disputed that the balance of £936.67 including interest, costs and fees remains outstanding. The Defendant avers that no money is owed to either the Claimant or Alleged Assignor in relation to the Void Agreement.
ORDER SOUGHT
38. The Defendant respectfully requests that the Application to Set Judgment Aside be granted.
39. It is disputed that the application is wholly without merit. It is disputed that the Claimant is entitled to seek costs for attendance, which are to be confirmed by the advocate attending the hearing, but which are not expected to exceed £162.00 inclusive of VAT which the Claimant cannot otherwise recover as it is not VAT-registered because as a debt purchase vehicle, it makes no VATable supplies of either goods or services.
40. It is disputed that since no other costs and in particular no solicitor’s profit costs are sought, the above paragraph should be taken as satisfying any requirement for a Schedule of Costs, a separate Schedule in prescribed form being of no assistance either to the Defendant or to the Court, and the work and expense of preparing it being disproportionate and contrary to the Overriding Objective as to costs and expediency at CPR 1.1(2)(b), 1.1(2)(c)(i) and 1.1(2)(d).
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 23rd day of November 2021
Signed: [DEFENDANTS SIGNATURE]
Name: [DEFENDANTS NAME]
Position: Defendant