Embedded Files
In the County Court at [COURT LOCATION]
Claim No: ---------
Between:
Lowell Portfolio I Ltd
Claimant
-and-
[DEFENDANT'S NAME]
Defendant
------------------------------
WITNESS STATEMENT
-----------------------------
I, Ryan Ingham, of Overdales Solicitors, Ellington House„ Leeds Valley Park West, Leeds LS10 1AB, WILL SAY as follows:
INTRODUCTION
1. I am a Paralegal in the employ of Overdales Solicitors, the solicitors instructed by the Claimant. I have conduct of this matter subject to the supervision of my Principals and I am duly authorised by the Claimant to make this statement on the Claimant's behalf.
2. The facts contained in this statement are known to me, save as where expressly stated, and are true to the best of my knowledge, information and belief. The Claimant's solicitors have access to the Claimant's case record systems, from which the information in this statement originates. The facts outlined and the submissions made are based on the Claimant's instructions.
BACKGROUND
3. The Claim relates to an agreement between Three Mobile (Hutchison 3G UK Limited) ("Assignor") and the Defendant ("Agreement"). Under the Agreement, the Assignor provided the Defendant with, a telecommunications service with the provision of a mobile phone under a tariff description `.Essential 4GB Data AYCEM'.
4. The Agreement commenced on 12 February 2012 and the reference for this Agreement was 9537591951. The related mobile phone number was 07429 925 100. A copy of the representative terms and conditions are exhibited ("R11").
5. The original Agreement is not exhibited because:
a) the Claimant does not have access to a copy;
b) a copy will have been provided to the Defendant at the outset;
c) there is no legislation requiring the Assignor to retain a copy of the original Agreement; and
6. Although the Defendant had the use and benefit of the Agreement, the Defendant breached the Agreement by failing to maintain the agreed repayments. The Defendant was then given an opportunity to bring the Agreed repayments under the Agreement up to date without the adverse implications of the Agreement being terminated. The Defendant last made a payment of £75.65 to the Assignor on 6 October 2017.
7. A final bill was issued to the Defendant on 13 March 2018, exhibited at ("R12"), requiring a payment of £673.02 which was payable by 3 April 2018. As the Defendant did not comply with this, the cause of action hereby accrued on 4 April 2018. The default balance of the sum of £673.02 comprises of airtime charges of £133.77 and a contractual termination fee of £539.25.
8. Following the Defendant's breach of the Agreement, the debt was subject to a legal assignment 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 on behalf of the Assignor and the Claimant. Copies of the same are hereto exhibited at ("R13").
9. The Claimant continued to attempt to contact the Defendant. An example of a letter is exhibited ("R14"). These letters offered the Defendant the opportunity to maintain an affordable payment plan to clear this debt, propose a reduced settlement figure or the opportunity to raise a dispute. The Defendant responded by making various requests for information which was not relevant to this Agreement, such as a 'Notice of Conditional Acceptance' received by the Claimant dated 12 March 2021, which requested that the Claimant provide various documents. A copy of the Defendant's request, and the Claimant's response dated 16 March is exhibited at ("R15").
10. Despite the breach by the Defendant and with a view to being reasonable, the Claimant did not apply any additional interest or charges on the account throughout this period of trying to contact the Defendant.
11. The Claimant attempted to communicate with the Defendant to either agree an affordable repayment plan, negotiate a reduced settlement figure or offer the opportunity to raise a dispute at the earliest possible stage. If the Defendant had contacted the Claimant to explain their reason for failing to maintain payment, the Claimant would have placed the matter on hold and conducted an investigation with the Assignor. If the Defendant's alleged dispute had been valid, the matter would not have progressed to this stage. The Defendant's failure to make any meaningful contact with the Claimant in order to agree a resolution to this matter has led to litigation being necessary.
12. The contact received by the Claimant from the Defendant prior to, and after proceedings were issued has been limited to requests for information which has either: a. Already been provided; b. Has no statutory relevance to these proceedings given the Agreement is not regulated by the Consumer Credit Act 1974;
13. The Claimant then instructed solicitors to assist in the recovery of the outstanding debt. The Claimant's solicitors also sent a Letter of Claim to the Defendant to enable the parties to resolve the matter without the need to start Court proceedings ("R16").
14. As the Defendant failed to respond, legal proceedings were issued on 8 September 2021, deemed served dated 13 September 2021.
THE DEFENDANT'S DEFENCE
15. The Defendant has submitted a standard, internet template-style Defence wherein they purport several procedural inadequacies with the Claimant's Statement of Case.
16. The Defendant denies every allegation in the Claimant's statement of case. They put the Claimant to strict proof in their Defence and require that documents be provided to support their Claim.
17. The Defendant requests that the Claimant provide them with a deed of assignment and comments on Van Lynn Developments v Pelias Construction Co Ltd 1968.13] All ER 82, in support of this.
18. The Defendant states that the Claimant's claim has not been adequately pleaded pursuant to CPR part 16.4 and PD 16.
REPLY TO THE DEFENDANT'S DEFENCE
19. The Claimant repeats paragraphs 3 — 14 of the above Statement.
20. The Clamant submits that the Defendant's Defence is without merit and tenuous. The Defence submitted is an internet template which fails to address the cause of action. The Claimant avers that this alone proves that the Defendant has acted unreasonably pursuant to CPR 27.14(2)(g). The Claimant submits that the Defendant's conduct has been contrary to CPR Part 1.1(2)(b)(d)(f).
21. The Assignor has provided a full statement of account, detailing the transaction history of the Agreement, which evidences how the Defendant accrued the debt. The statement shows payments made by the Defendant under the Agreement and also charges for bills and usage. A copy of the statement of account is exhibited hereto at ("R17"). The same positively affirms quantum and proves the Defendant's liability and the Claimant's case.
22. The Claimant submits that the final bill provided by the Assignor, enclosed at "R12" is addressed to the Defendant at their current address of 37 Stanwell New Road; Staines-Upon-thames; Middlesex; TW18 4HY. The Claimant, therefore, avers that the Defendant must be liable for the sums Claimed and did knowingly enter into the Agreement with the Assignor.
23. The Defendant has failed to adequately explain why she should not have to pay for the service and goods of which she has had the benefit.
24. The Claimant submits that the Defendant has obstructed proceedings with their conduct. They have made numerous requests for information which the Claimant have accordingly responded to.
25. The Claimant has received no meaningful contact from the Defendant in order to practically address this matter. Rather, the Defendant has consistently sought to obstruct the Claimant with numerous requests for the same information, whilst in full knowledge of the debt.
26. The Claimant submits it was assigned the benefit of the debts and not the burden. The accounts were assigned to the Claimant in good faith on the assurance that the balances were valid and owing. Furthermore, the debt was assigned to the Claimant by way of debt sale agreement, and not by novation. As such, the Claimant could not have been assigned the burden of the Agreement.
27. The Claimant avers that there is no legal requirement for assignment of debt to be in the form of a Deed. In most cases this done by simple contract (a Debt Sale Agreement). The Claimant is under no legal obligation to disclose the Debt Sale Agreement to the Defendant. This is a private contract between the Claimant and the Assignor, the terms of which are commercially sensitive and confidential. No part of the Debt Sale Agreement could provide, support or assist in any Defence the Defendant may wish to raise and they have neither need nor right to be privy to that content. Service of the notices of assignment discharges the Claimant from the need to provide any further proof that the debt has been legally assigned.
28. The Defendant's comments on the developments seen in Van Lynn Developments v Pelias Construction Co Ltd [1968] are tenuous.
The Claimant comments as follows:
a. The obiter comment, made while ruling on the unconnected matter of the content of a notice of assignment, does not constitute the Court's having decided the necessity for a party to present a deed of assignment.
b. Secondly, Lord Denning's comment, albeit obiter and not echoed by either of the other two Judges gives fully reasoned rulings in the case, presumably because it was irrelevant to any question then before the Court, may perhaps still be persuasive absent any actual ruling on the point, had he not then qualified his comment, to the effect that he suggested this entitlement, so as to be satisfied.... That the assignee can give him good discharge'. That question simply does not arise where, as in this case, Notice of Assignment was given by the assignor as well as by the Claimant.
29. The Claimant would draw your attention to the case Nicoll v Promontoria (Ram 2) Limited [2019] EWHC 2410 (Ch), in which the High Court of Justice held that it was not for the debtor to challenge the validity of the assignment whose validity was not challenged by either party to the assignment. The Court is referred to paragraph 41 of the Judgment, in which Justice Mann stated (in part): a. "... at the very least, it was none of the business of the debtor to challenge an assignment whose validity and effectiveness was not being challenged by either of the actual parties to it. Applying that to the present case, the terms of the notice, which, it will be remembered, emanated from both assignor and assignee, made it clear that the parties to the assignment considered it to be complete. In the face of that, Mr Nicoll is not entitled to challenge the title of Promontoria."
30. The Claimant avers that the Defence brought by the Defendant does not attempt to address the cause of action, that of their unpaid usage. Rather, it attempts to point towards purported procedural issues with this action. All of which are denied by the Claimant as addressed in some detail above
31. As such, the Claimant avers that the Defence brought by the Defendant equates to a bare technical denial within the meaning of paragraph 1.6 of Practice Direction 3A.
CONCLUSION
32 For the reasons stated above, the Claimant respectfully submits that it is entitled to recover the outstanding sum and the Defendant is liable to pay the same. 33. The Claimant respectfully invites the Court to strike out the Defence and award Judgment in favour of the Claimant and costs.
ORDER SOUGHT
34. The Claimant request that Judgment is granted in favour of the Claimant for the sum of £ £673.02 and the Defendant is Ordered to pay the following to the Claimant:
a) Interest of the sum of £ £53.84 at a rate of 8% but limited to one year; b) Issue fee of £70.00; c) Fixed commencement costs in the sum of £70.00; d) Hearing fee which is yet to be directed; e) Claimant's costs of attendance at the hearing which will be confirmed by the advocate at the hearing, but not expected to exceed the sum of £228.00, inclusive of VAT.
STATEMENT OF TRUTH
I believe that the facts stated in this witness statement are true. Dated this 9 February 2022
Name: Ryan Ingham
In the County Court at [COURT LOCATION]
Claim No: ---------
Between:
[DEFENDANT'S NAME]
Defendant
-and-
Lowell Portfolio I Ltd
Claimant
-------------------------------------------------------------
WITNESS STATEMENT OF [DEFENDANT'S NAME]
-------------------------------------------------------------
I, [DEFENDANT'S NAME], of [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 Ryan Ingham (the ‘Alleged Witness’) dated 9th February 2022 who's statement is based on her employment of a company called Overdales Solicitors Limited. The Alleged Witness bases his entire statement on hearsay evidence from the computer system of the Claimant and the computer system of Hutchison 3G UK Limited (the ‘Alleged Assignor’) T/AS Three Mobile.
The failure of such systems have been brought to light by the recent case where sub-postmasters were acquitted of Fraud after false convictions based solely on the data from a computer system that generated erroneous data:
It is disputed that the facts contained in the Claimant's Alleged Witness statement are known to the Alleged Witness, save as where expressly stated, and are true to the best of his knowledge, information and belief. The Defendant avers that as the Claimant's solicitors have access to the Claimant's case record systems, from which the information in this statement originates, the entire Alleged Witness Statement is hearsay in nature and should be given no weight by the Court when deciding matters of fact in this claim.
It is my understanding that the Claimant must serve notice to any hearsay evidence pursuant to CPR 33.2(1)(B) (notice of intention to rely on hearsay evidence) and Section 2 (1) (A) of the Civil Evidence Act. The Defendant avers that no such notice has been served and respectfully asks the court to dismiss the Claimants claim which is entirely based on hearsay evidence.
Within this statement I refer to various documents, these are now produced in bundle marked ("GP1"),
BACKGROUND
3. It is disputed that the Claimant is entitled or has any Legal Standing ('Locus Standi') to issue a claim in relation to an agreement between the Alleged Assignor and the Defendant (the "Alleged Agreement"). It is disputed that under the Alleged Agreement, the Alleged Assignor provided the Defendant with, a telecommunications service with the provision of a mobile phone under a tariff description `.Essential 4GB Data AYCEM'.
4. It is disputed that the Alleged Agreement commenced on 12 February 2012 and the reference for this Agreement was 9537591951. It is neither agreed or disputed that the related mobile phone number was 07429 925 100. It is disputed that the document exhibited by the Claimant at ("R11") is a valid copy of the representative terms and conditions. The Defendant avers that the Claimant is NOT the Alleged Assignor and is reliant solely on hearsay to claim that the terms and conditions exhibited by the Claimant were agreed to in relation to the Alleged Agreement.
5. it is noted by the Defendant that the Claimant has failed to exhibit any original Alleged Agreement for following excuses:
a) the Claimant does not have access to a copy;
The Defendant avers that the Claimant should have access to a copy of the Original signed document before bringing a claim based solely on hearsay evidence.
b) a copy will have been provided to the Defendant at the outset;
It is disputed that any copy of the Original Alleged Agreement was provided to the Defendant.
c) there is no legislation requiring the Alleged Assignor to retain a copy of the original Alleged Agreement.
It disputed that there is no legislation requiring the Alleged Assignor to retain a copy of the Original Alleged Agreement. The Defendant avers that for the Alleged Assignor to be compliant with the Law of Property Act 1925, they must be able to establish that the alleged debtor agreed to the sale of the account.
Contracts (Rights of Third Parties) Act 1999
1 Right of third party to enforce contractual term.
(3) The third party must be expressly identified in the contract by name, as a member of a class or as answering a particular description but need not be in existence when the contract is entered into.
The Defendant avers that as the Claimant is unable to provide a copy of the Original Alleged Agreement upon which they rely, they cannot show that the Defendant agreed to any assignment of the benefit of the Alleged Agreement and therefore any assignment cannot be legal in nature, only Equitable. for which the Claimant is not entitled to bring an action at law without attaching the Alleged Assignor as a party to the action:
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."
6. It is disputed that the Defendant had the use and benefit of the Alleged Agreement. It is disputed that the Defendant breached the Alleged Agreement by failing to maintain the agreed repayments. It is disputed that the Defendant was then given an opportunity to bring the Agreed repayments under the Alleged Agreement up to date without the adverse implications of the Alleged Agreement being terminated. It is disputed that the Defendant last made a payment of £75.65 to the Alleged Assignor on 6 October 2017.
The Defendant avers that the Claimant is entirely reliant on hearsay documentation from computer systems that should not be relied on solely for finding of fact as such computer systems are know to generate corrupt data:
https://www.theguardian.com/uk-news/2021/apr/23/court-clears-39-post-office-staff-convicted-due-to-corrupt-data
7. It is disputed that a final bill was issued to the Defendant on 13 March 2018,. It is disputed that the document exhibited by the Claimant at ("R12") was ever provided to the Defendant, requiring a payment of £673.02 which was payable by 3 April 2018. It is disputed that the Defendant did not comply with this as this document was not received by the Defendant. It is disputed that a cause of action hereby accrued on 4 April 2018. It is disputed that the default balance of the sum of £673.02 comprises of airtime charges of £133.77 and a contractual termination fee of £539.25.
The Defendant disputes owing the Alleged Assignor any of the sums listed and disputed that the Claimant has an Locus Standi to issue a claim for a contract that they were not a party to:
See: Dunlop Pneumatic Tyre Co Ltd v Selfridge Ltd [1915] AC 847 - The Lords agree fundamentally with the decision of the Court of Appeal; there was no contract between Dunlop and Selfridge and therefore Dunlop cannot sue.
8. It is disputed that, following the Defendant's breach of the Alleged Agreement which is disputed, the debt was subject to a legal assignment from the Alleged Assignor to the Claimant (the 'Alleged Assignment') pursuant to section 136 of the Law of Property Act 1925 due to the contraventions 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 notices of Assignment were sent to the Defendant on behalf of the Alleged Assignor and the Claimant. it is disputed that the documents exhibited by the Claimant at ("R13") were ever GIVEN to the Defendant as one of THREE elements required under Section 136 of the Law of Property Act 1925.
See; [Jones v Link Financial Ltd (2013) ] 1 WLR 693 Where it was found that three conditions for the validity of a LEGAL assignment must be satisfied, 'namely': that the assignment was absolute and not by way of charge; that it was in writing under the hand of the assignor, and that express notice in writing had been given to the debtor.
The Defendant avers that to be compliant with Section 136 of the Law of Property Act 1925, any notice should be 'GIVEN' to the debtor indicating it should be handed directly to the person or served by registered mail in compliance with Section 196 of the Law of Property Act 1925 which lays out the requirements for the correct service of such document under the Law of Property Act 1925. The Defendant avers that no such notice was provided by the Alleged Assignor and the Claimant is put to strict proof to prove service of this document.
Law of Property Act Section 196 (3)
Any notice required or authorised by this Act to be served shall be sufficiently served if it is left at the last-known place of abode or business in the United Kingdom of the lessee, lessor, mortgagee, mortgagor, or other person to be served, or, in case of a notice required or authorised to be served on a lessee or mortgagor, is affixed or left for him on the land or any house or building comprised in the lease or mortgage, or, in case of a mining lease, is left for the lessee at the office or counting-house of the mine.
The Defendant avers that as Section 136 requires that notice be 'GIVEN' to the debtor, Section 196 (3) refers to the act of a person leaving a document at the last know place of abode. In the absence of a witness attesting to leaving the document at the last know place of abode, Section 196 (4) provides for services by registered mail:
Law of Property Act Section 196 (4)
Any notice required or authorised by this Act to be served shall also be sufficiently served, if it is sent by post in a registered letter addressed to the lessee, lessor, mortgagee, mortgagor, or other person to be served, by name, at the aforesaid place of abode or business, office, or counting-house, and if that letter is not returned [F1by the postal operator (within the meaning of [F2Part 3 of the Postal Services Act 2011]) concerned] undelivered; and that service shall be deemed to be made at the time at which the registered letter would in the ordinary course be delivered.
The Defendant avers the Claimant does not state caselaw to support their failure to provide any evidence of service of notice of assignment and as such has no Locus Standi to bring this claim:
See: (General Nutrition Investment Company v Holland and Barrett International Ltd and another [2017] EWHC 746 (Ch)) and another (H&B) provides an example of an equitable assignee being unable to deal directly with a contract counterparty as a result of a failure to provide a notice of assignment.
Section 7 of the Interpretation Act 1978 provides:
"Where an Act authorises or requires any document to be served by post… unless the contrary intention appears, the service is deemed to be effected by properly addressing, pre-paying and posting a letter…".
The Defendant avers that the contrary intention does appear as Section 196 (4) specifically states that service should be effected by Registered Mail.
9. It is not disputed that the Claimant continued to attempt to contact the Defendant. It is disputed that the document exhibited by the Claimant at ("R14") offered the Defendant the opportunity to maintain an affordable payment plan to clear this debt as not debt exists, propose a reduced settlement figure as no debt exists or the opportunity to raise a dispute which the Defendant did.
It is agreed that the Defendant responded by making various requests for information. It is disputed that this was not relevant to the Alleged Agreement. It is agreed that the Defendant sent a 'Notice of Conditional Acceptance' (the 'Offer to Settle') received by the Claimant dated 12 March 2021, which requested that the Claimant provide various documents. It is agreed that the documents exhibited by the Claimant at ("R15") are a copy of the Defendant's request, and the Claimant's response dated 16 March.
The Defendant avers that the Notice of Conditional Acceptance removed any need for the Claimant to bring an action at law as this notice offered to settle any outstanding debt if they Claimant provided evidence that any such debt existed. The Defendant further avers that the Claimant's response dated 16 March did not provide the documents requested, including but not limited to the Sale Agreement between the Alleged Assignor and the Claimant (the 'Deed of Assignment'). The Claimants refusal to provide any evidence of a Legal Assignment leaves the Defendant to conclude that the Claimant is reliant solely on an Equitable assignment of the Alleged Agreement and has no Locus Standi to bring this claim.
10. It is disputed that despite the alleged breach by the Defendant and with a view to being reasonable, the Claimant did not apply any additional interest or charges on the account throughout this period of trying to contact the Defendant.
The Defendant avers that as a bulk purchaser of benefits of Alleged Agreements, the Claimant did not and is not behaving in a reasonable fashion and is seeking betterment by bringing a claim for an Alleged Agreement that they were not a party to and for which they have purchased, on an Equitable basis, for a fraction of the amount for which the Claimant brings this action.
11. It is disputed that the Claimant attempted to communicate with the Defendant to either agree an affordable repayment plan, negotiate a reduced settlement figure or offer the opportunity to raise a dispute at the earliest possible stage. The Defendant avers that if the Claimant wanted to settle this matter they could have simply complied with the Offer to Settle and supplied the documents requested.
it is disputed that if the Defendant had contacted the Claimant to explain their reason for failing to maintain payment, the Claimant would have placed the matter on hold and conducted an investigation with the Alleged Assignor. The Defendant avers that the Claimant is being disingenuous as they were well aware that the Offer to Settle was made on 12th March 2021, and by refusing to provide the documents requested, the Claimant left the Defendant no alternative to issue a Notice of Non Response giving the Claimant a further 14 days to provide the documents, including but not limited to the Deed of Assignment. These letters are exhibited by the Defendant at ("GP1") Pages 1 to 9.
It is disputed that if the Defendant's alleged dispute had been valid, the matter would not have progressed to this stage. It is disputed that the Defendant's failure to make any meaningful contact with the Claimant in order to agree a resolution to this matter has led to litigation being necessary.
The Defendant avers that litigation is brought solely by the Claimant for the purpose of Betterment, without merit or Locus Standi and without controversy as the Defendant offered to settle upon proof that a debt was owed.
12. It is disputed that the contact received by the Claimant from the Defendant prior to, and after proceedings were issued has been limited to requests for information which has either:
a. Already been provided;
b. Has no statutory relevance to these proceedings given the Alleged Agreement is not regulated by the Consumer Credit Act 1974;
The Defendant avers that the Claimant is well aware of their steadfast refusal to provide any proof of a valid legal assignment and relies solely on the Alleged Agreement not being regulated under the Consumer Credit Act 1974 for their refusal to provide any evidence of a binding legal agreement between the Defendant and the Alleged Assignor. The Defendant further avers that it is the Claimant who has a duty to prove their claim and Locus Standi to issue a claim for an Alleged Agreement that they were not a party to:
See: Dunlop Pneumatic Tyre Co Ltd v Selfridge Ltd [1915] AC 847 - The Lords agree fundamentally with the decision of the Court of Appeal; there was no contract between Dunlop and Selfridge and therefore Dunlop cannot sue.
13. It is disputed that the Claimant then instructed solicitors to assist in the recovery of the outstanding debt. The Defendant avers that Overdales Solicitors Limited operates from the same physical address (Ellington House, 9 Savannah Way, Leeds Valley Park West, Leeds, England, LS10 1AB) as the Claimant and solely operates in Claimant's interest in order to give the appearance of a company instructing a legal firm when in fact the two companies, for all intent and purposes, are the same.
It is disputed that the Claimant's solicitors also sent a Letter of Claim to the Defendant to enable the parties to resolve the matter without the need to start Court proceedings. It is disputed that the document exhibited by the Claimant at ("R16") was ever sent to the Defendant.
14. It is a matter of record disputed that legal proceedings were issued on 8 September 2021, deemed served dated 13 September 2021. The Defendant avers that this was not due to any failure on the Defendant's part to respond but in the Claimant's interest in profiting from the purchase of an Alleged Agreement that they were not a party to and had conducted no due diligence in establishing the Defendants liability for.
THE DEFENDANT'S DEFENCE
15. It is disputed that the Defendant has submitted a standard, internet template-style Defence wherein they purport several procedural inadequacies with the Claimant's Statement of Case. The Defendant avers it is the Claimant who issues thousands of template claims with template Particulars of Claims and is being disingenuous when they receive challenges that look like templates because they are responding to a template issued by the Claimant.
16. It is not disputed that the Defendant denies every allegation in the Claimant's statement of case. It is not disputed that the Claimant is put to strict proof in the Defence and require that documents be provided to support their Claim.
The Defendant avers that the Claimant, a bulk issuer of robotic claims, has a duty to provide the basis of those claims and Locus Standi to issue such claims and seeks to muddy the water by claiming that asking for PROOF or EVIDENCE is acting on a template responding to their template. The Defendant avers that this is simply an AD HOMINEM attack on any form of template drafting of defences.
17. It is agreed that the Defendant requests that the Claimant provide them with a Deed of Assignment and comments, amongst other cases, on Van Lynn Developments v Pelias Construction Co Ltd 1968.13] All ER 82, in support of this.
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';
And; 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.
Also; Jones v Link Financial Ltd | [2013] 1 WLR 693 Where at it was found that three conditions for the validity of such an 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.
18. It is agreed that the Defendant states that the Claimant's claim has not been adequately pleaded pursuant to CPR part 16.4 and PD 16.
It is contended that the Claimant is in breach of Rule 16.4(a) of the Civil Procedure Rules 1998 in that the Particulars of Claim do not set out a clear and concise statement of facts upon which they rely.
In particular, the Particulars of Claim does not identify:
⦁ a. any explanation of how the amount of financial loss has been calculated;
⦁ b. any list those documents upon which the Claimant intends to rely;
⦁ c. any clear summary of the facts on which the claim is based;
⦁ d. the date that the Defendant is Claimed to have entered into the Alleged Agreement with the Alleged Assignor;
⦁ e. if the Claimant intends to rely on hearsay evidence;
⦁ f. the nature of the Alleged Agreement with the Alleged Assignor or any phone number for what appears to be a telecommunications based company;
⦁ g. on which date(s) the Defendant had allegedly failed to maintain the payments;
⦁ h. the exact date when the Alleged Assignor terminated the Alleged Agreement and gave notice of the same;
⦁ i. the date, if any, that notice of assignment was served on the Defendant and if in accordance with Section 196 of the Law of Property Act 1925;
⦁ j. whether the Claimant is relying on an Equitable Assignment or a Legal Assignment; and;
⦁ k. That Pre-action Conduct protocol has ben complied with. This should be stated in the claim form or particulars of claim. See Practice Direction-Pre-Action Conduct para.9.7. There is no claim by the defendant on the Claim Form that they have complied with Pre-Action Protocol.
The defendant invites the court to dismiss this claim as it is in breach of pre court protocols in relation to the particulars of claim under practice direction 16, set out by the ministry of justice and also civil procedure rules under 16.4 and to allow such defendants costs as are permissible under civil procedure rule 27.14.
REPLY TO THE DEFENDANT'S DEFENCE
19. As the Claimant repeats paragraphs 3 — 14 of their Witness Statement the Defendant repeats paragraph 3 - 14 of this Witness Statement.
20. It is disputed that the Defendant's Defence is without merit and tenuous. It is denied that the Defence submitted is an internet template, an Ad Hominem attack on the internet as a source of information , which fails to address the cause of action. It is disputed that this alone proves that the Defendant has acted unreasonably pursuant to CPR 27.14(2)(g). It is disputed that the Defendant's conduct has been contrary to CPR Part 1.1(2)(b)(d)(f).
The Defendant submits that it is the Claimant who is behaving unreasonably in breach of CPR 27.14(2)(g) by bringing an action before the court for which there is no controversy and for which they have no Locus Standi. The Defendant avers that the Claimants conduct is contrary to CPR Part 1.1(2)(b)(d)(f).
21. It is disputed that the Alleged Assignor has provided a full statement of account, detailing the transaction history of the Alleged Agreement. It is disputed that the hearsay documents relied on by the claimant evidence how the Defendant accrued the alleged debt. It is disputed that the statement shows payments made by the Defendant under the Alleged Agreement and also charges for bills and usage. It is disputed that the document exhibited by the Claimant at ("R17") is a valid copy of a statement of account . It is disputed that this positively affirms quantum and proves the Defendant's liability and the Claimant's case. The Defendant avers that the Alleged Witness is solely reliant on computer generated documents that provide no proof of any liability whatsoever. The unlawful reliance of the Australian Government solely on computer generated data was the subject of a major scandal in Australia that should serve as a warning to finding of facts based on computer generated data:
https://www.theguardian.com/australia-news/2020/mar/27/robodebt-government-admits-it-will-be-forced-to-refund-550m-under-botched-scheme
22. It is disputed that the document exhibited by the Claimant at "R12" is a final bill provided by the Alleged Assignor. It is disputed that "R12" is addressed to the Defendant at their current address of 37 Stanwell New Road; Staines-Upon-thames, Middlesex, TW18 4HY. It is disputed that these computer generated document show that the Defendant must be liable for the sums Claimed and did knowingly enter into the Alleged Agreement with the Alleged Assignor. The Defendant avers that the Claimant has provide no evidence that the Defendant entered into the Alleged Agreement and no evidence that the Claimant has any Locus Standi to issue a claim for an Alleged Agreement they were not a party to.
See: Dunlop Pneumatic Tyre Co Ltd v Selfridge Ltd [1915] AC 847 - The Lords agree fundamentally with the decision of the Court of Appeal; there was no contract between Dunlop and Selfridge and therefore Dunlop cannot sue.
23. It is disputed that the Defendant has failed to adequately explain why she should not have to pay for the service and goods of which she has had the benefit. The Defendant avers that if the Claimant is now claiming that the bill outstanding is for 'services and goods' then any goods element would be credit extended and that element of the Alleged Agreement would be subject to the Consumer Credit Act 1974 for which the Claimant is unable to provide a valid copy of the Original Alleged Agreement for which would also make claim invalid under the Consumer Credit Act 1974.
24. It is disputed that the Defendant has obstructed proceedings with their conduct. The Defendant avers that the Claimant has obstructed proceeding with their conduct by refusing to comply with valid requests for documents that the Claimant should have in their possession before the issue of any claim.
It is agreed that the Defendant has made numerous requests for information. It is disputed that the Claimant has accordingly responded to. The Defendant avers that the Claimant has steadfastly refused to provide any proof of ownership (Deed of Assignment) something that they could have provided when they received the Offer to Settle in March 2021.
25. It is disputed that the Claimant has received no meaningful contact from the Defendant in order to practically address this matter. The Defendant avers that the Offer to Settle made in March 2021 was a meaningful communication and gave the Claimant an opportunity to provide evidence of their legal ownership of the Alleged Agreement, something that the Claimant was unable or unwilling to do.
It is disputed that the Defendant has consistently sought to obstruct the Claimant with numerous requests for the same information. It is disputed that this was whilst in full knowledge of the debt. The Defendant avers that it is the Claimant who has consistently sought to obstruct the Defendant with their unwillingness to settle this matter by providing the Deed of Assignment required as a matter of due diligence to ensure that the Claimant is able to give 'good discharge' of any benefit from the Alleged 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';
26. It is disputed that the Claimant was assigned the benefit of the Alleged Agreement. It is agreed that they could not be assigned the burden as that would require a Deed of Novation.
It is disputed that the accounts were assigned to the Claimant in good faith on the assurance that the balances were valid and owing. The Defendant avers that 'good faith' should not be relied on in matters of debt purchase and the phrase Caveat emptor ('let the buyer beware') applies to this case as the Claimant has failed to conduct any due diligence in the Equitable purchase of a list of alleged debts from the Alleged Assignor.
It is disputed that the debt was assigned to the Claimant by way of debt sale agreement. It is agreed that the Claimant has not claimed to have a novation.
As the Claimant CLEARLY alleged that the benefit of the Alleged Agreement was assigned to the Claimant by a debt sale agreement, otherwise called a Deed of Assignment, the Defendant puts the Claimant to strict proof to provide this document at any future hearing as to date they have so far been unable or unwilling to provide any proof of the existence of such an agreement.
27. It is disputed that no legal requirement for assignment of debt to be in the form of a Deed. An online Dictionary definition of the word 'DEED' is:
a legal document that is signed and delivered, especially one regarding the ownership of property or legal rights.
The Defendant avers that the Claimant is obfuscating the point when they are well aware, as a bulk purchaser of computer data (some of which is corrupt), that a Debt Sale Agreement is commonly referred to as a Deed of Assignment whether in 'Deed format' or not.
It is disputed that the Claimant is under no legal obligation to disclose the Debt Sale Agreement to the Defendant. The Claimant has a duty to provide documents on which they rely on in their claim and mention in their Witness Statement. Under CPR 31.14(1), a party may inspect a document "mentioned" in a statement of case, witness statement, witness summary or affidavit.
It is disputed that this is a private contract between the Claimant and the Alleged Assignor, the terms of which are commercially sensitive and confidential. The Defendant avers that the Claimant could easily have provided a redacted copy of the Deed of Assignment but instead choses to rely on a document they refuse to provide:
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;
It is disputed that no part of the Debt Sale Agreement could provide, support or assist in any Defence the Defendant may wish to raise and they have neither need nor right to be privy to that content. The Defendant avers that the terms and conditions within the sale agreement would establish if the Deed of Assignment relied on by the Claimant satisfies the THREE elements of Legal Assignment or whether the basic Sale Agreement amounts solely to an Equitable assignment:
See; [Jones v Link Financial Ltd (2013) ] 1 WLR 693 Where it was found that three conditions for the validity of a LEGAL assignment must be satisfied, 'namely': that the assignment was absolute and not by way of charge; that it was in writing under the hand of the assignor, and that express notice in writing had been given to the debtor.
It would also show if the Deed of Assignments meets the requirements of the Section 44 of the Companies Act 2006 where there must be TWO signatories to an agreement:
44 Execution of documents
(1) Under the law of England and Wales or Northern Ireland a document is executed by a company—
(a) by the affixing of its common seal, or
(b) by signature in accordance with the following provisions.
(2) A document is validly executed by a company if it is signed on behalf of the company—
(a) by two authorised signatories, or
(b) by a director of the company in the presence of a witness who attests the signature.
(3) The following are “authorised signatories” for the purposes of subsection (2)—
(a) every director of the company, and
(b) in the case of a private company with a secretary or a public company, the secretary (or any joint secretary) of the company.
it is disputed that service of the notices of assignment discharges the Claimant from the need to provide any further proof that the debt has been legally assigned. The Defendant avers that Notice of Assignment is required to be GIVEN to the debtor under Section 136 of the Law of Property Act 1925 as one of THREE requirements for a valid legal assignment:
See; [Jones v Link Financial Ltd (2013) ] 1 WLR 693 Where it was found that three conditions for the validity of a LEGAL assignment must be satisfied, 'namely': that the assignment was absolute and not by way of charge; that it was in writing under the hand of the assignor, and that express notice in writing had been given to the debtor.
28. It is disputed that the Defendant's comments on the developments seen in Van Lynn Developments v Pelias Construction Co Ltd [1968] are tenuous.
The Claimant comments are disputed as follows:
a. "The obiter comment, made while ruling on the unconnected matter of the content of a notice of assignment, does not constitute the Court's having decided the necessity for a party to present a deed of assignment."
While the statement by Lord Denning may be considered obiter, Lord Denning was very clear that:
'the debtor is entitled to view the sale agreement to ensure that the assignee can give him good discharge under the contract';
b. "Secondly, Lord Denning's comment, albeit obiter and not echoed by either of the other two Judges gives fully reasoned rulings in the case, presumably because it was irrelevant to any question then before the Court, may perhaps still be persuasive absent any actual ruling on the point, had he not then qualified his comment, to the effect that he suggested this entitlement, so as to be satisfied.... That the assignee can give him good discharge'. That question simply does not arise where, as in this case, Notice of Assignment was given by the assignor as well as by the Claimant."
It is disputed that Notice of Assignment has be given by the Alleged Assignor or the Claimant. The Defendant avers that the Claimant while going into great detail about why they should not provide Deed of assignment because they do not feel there is a compelling caselaw to force them, they should provide the Deed of Assignment as a requirement under under CPR 31.14(1), a party may inspect a document "mentioned" in a statement of case, witness statement, witness summary or affidavit.
The Defendant further avers that the under Civil Procedure Rule Part 39 PD 39a (3.3) any documents upon which the claimant intends to rely the ORIGINALS should be brought to any subsequent hearing for examination.
Should the Claimant seek to not provide this document to the Court, the Defendant respectfully request that the Court strike out the Claimant's claim.
29. It is noted by the Defendant that the Claimant draws the Court's attention to the case Nicoll v Promontoria (Ram 2) Limited [2019] EWHC 2410 (Ch), a case in the Chancery division of the High Court. The Defendant avers that the Claimant is demonstrating by their reliance on a Chancery ruling that they have and Equitable assignment and have no legal basis to bring this case before the County Court without attaching the Alleged Assignor as party to the action:
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.'
30. It is disputed that the Defence brought by the Defendant does not attempt to address the cause of action, that of their unpaid usage. The Defendant avers that no such usage was supplied to the Defendant.
It is disputed that the Defence attempts to point towards purported procedural issues with this action. The Defendant avers that the defence points raised are the very basis for the Claim which the Claimant seeks to demonstrate any compliance with. It is disputed that the Claimant has provided any satisfactory addressed these points despite going into details of why they think they should not provide evidence to support their claim.
31. It is disputed that the Defence brought by the Defendant equates to a bare technical denial within the meaning of paragraph 1.6 of Practice Direction 3A. The Defendant avers that the Claimant as a purchaser of bulk lists of names and number is reliant solely on hearsay evidence of computer generated records, some of which are erroneous and corrupt in nature. The Claimant is solely reliant on this hearsay and a refusal to provide documents mentioned in their Witness Statement as required under CPR 31.14(1), a party may inspect a document "mentioned" in a statement of case, witness statement, witness summary or affidavit.
CONCLUSION
32 For the reasons stated above, the Defendant respectfully submits that the Claimant's claim is totally without merit. It is disputed that the Claimant it is entitled to recover any sum they claim to be outstanding. it is disputed that the Defendant is liable to pay the Claimant any sum.
33. It is disputed that the Claimant is entitled to claim the sum of £ £673.02 and:
a) Interest of the sum of £ £53.84 at a rate of 8% but limited to one year is disputed;
b) Issue fee of £70.00 is disputed;
c) Fixed commencement costs in the sum of £70.00 is disputed;
d) Hearing fee which is yet to be directed is disputed;
e) Claimant's costs of attendance at the hearing which will be confirmed by the advocate at the hearing, but not expected to exceed the sum of £228.00, inclusive of VAT. is disputed
ORDER SOUGHT
34. As the Claimant basis their claim entirely on hearsay evidence and has failed to provide, despite repeated requests, any evidence of their Locus Standi or exception to the Common Law Doctrine of Privity of Contract, the defendant invites the court to dismiss this claim and to allow such defendants costs as are permissible under civil procedure rule 27.14.
STATEMENT OF TRUTH
I believe that the facts stated in this witness statement are true. I understand that proceedings for contempt of court may be brought against anyone who makes, or causes to be made, a false statement in a document verified by a statement of truth without an honest belief in its truth.
Dated this 15th day of February 2022
Signed: [DEFENDANT'S SIGNATURE (can be just typed)]
Name: [DEFENDANT'S NAME]
Page updated
Google Sites
Report abuse