Lowell 33 Points

IN THE COUNTY COURT AT WALSALL

CLAIM NUMBER: K5K1234

BETWEEN:

LOWELL PORTFOLIO | LTD

Claimant

-and-

[DEFENDANT'S NAME]

Defendant

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WITNESS STATEMENT OF JULIE WILLIAMS

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I, Julie Williams, of Overdales Solicitors , 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 Solicitors, the solicitors instructed by the Claimant. I have conduct of this matter subject to the supervision of my Principals and | 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.

3. This witness statement is made in readiness for the Small Claims Hearing listed on 15 April 2024 at 10.00 and the Defendant's Amended Defence dated 28 December 2023.

BACKGROUND

4. The Claimant  would submit that the facts outline in the amended Particulars of Claim of Julie Williams dated 22nd December 2023 and the documents exhibited thereto remain the same. In order to avoid duplication, the facts outline in the amended Particulars of Claim and the documents exhibited thereto are repeated. The Claimant would respectfully request that this witness statement is read in conjunction with the amended Particulars of Claim.

5. As outlined in the amended Particulars of Claim, the Claim consists of a debt due under an account that has been assigned to the Claimant:

Claimant's reference Original creditor Original creditor reference

355053042 JD Williams & Company Ltd S2265939

6. It is the Claimant's submission that the documents to substantiate the balance outstanding are exhibited at Annex 1 to 4 of the amended Particulars of Claim.

7. The Defendant failed to respond to the 44 pre-action letters and emails sent by the Claimant from 16 May 2020 to 19 January 2023. The Defendant did not engage with the Claimant at all to discuss the outstanding debt and/or to arrange payment of the outstanding balance. Examples of these letters are exhibited at JW1.

8. Accordingly, the Claimant instructed its solicitors to correspond with the Defendant. The Claimant's solicitors sent to the Defendant a Letter of Claim dated 27 February 2023 prior to the issue of legal proceedings. The Defendant did not respond. A copy of this letter is exhibited at JW2.

9. Legal proceedings were issued against the Defendant on 16 April 2023 and the total amount claimed is £3,415.60. A breakdown of how the balance is made up is set out below:

Account Balance at issue Interest added upon issue

355053042 £3,124.82 £290.78

10. The Claimant, therefore, avers that it is the correct entity to bring these legal proceedings against the Defendant.

THE DEFENDANT’S DEFENCE

11. The Defendant has filed a detailed Defence disputing the entirety of the Claim and which the Claimant will summarise as follows:

• The Claimant seeks to rely on data from a computer system that generated erroneous and corrupt data;

• The Agreement entered into is a Void Agreement due to the 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, in respect of irresponsible lending;

• Disputes the Transaction History;

• Disputes the Default Notice;

• Disputes the Assignment of debt and request a copy of the Deed of Assignment; and

• Disputes that the Claimant is not entitled statutory interest as claimed.

THE CLAIMANT’S REPLY TO DEFENCE

12. The Claimant repeats paragraphs 4 to 10 of this witness statement.

13. The Defendant alleges that the Transaction History provided by the Claimant’s computer system is erroneous and corrupt data and seeks to rely on the article: 

“theguardian.com/uk-news/2021/apr/23/court-clears-39-post-office-staff-convicted-due-to-corrupt-data”

It is the Claimant’s submission that the Defendant has failed to set out and or evidence any definite proof that the data held by the Claimant is erroneous and corrupt. The Claimant would further submit that the article referred to by the Defendant has no bearing on this matter.

14. The Claimant’s repeats paragraph 5 of the amended Particulars of Claim insofar as the debt was subject to a legal assignment in accordance with s.136 Law of Property Act 1925. A copy of which is at Annex 4 of the amended Particulars of Claim. The Claimant would also refer the Court to a copy of the Default Notice which is at Annex 3 of the amended Particulars of Claim.

15. In relation to the Defendant's allegation of irresponsible lending, the Claimant would submit that the Defendant made a complaint to the Assignor on or around 13 February 2024. A copy of the Assignor’s Final Response is exhibited at JW3. The Claimant would refer the Court to the heading “S2265939 (Application)” of the Final Response, where it states that consideration was given to whether the Assignor was responsible for irresponsible lending. It will be noted that at the time the agreement was entered into the Defendant's credit score was satisfactory so the Assignor was comfortable offering a credit limit of £150.00. In addition to the above, there was no bankruptcies or county court judgment detected on the Defendant's credit file, and the most recent default at the time the agreement was entered into was 42 months. It is, therefore, the Claimant’s submission that the Assignor gave full and careful consideration to its duty as a responsible lender.

16. The Claimant avers that the Transaction History provided by the Assignor (Annex 2 of the amended Particulars of Claim) clearly shows how the debt has been accrued by the Defendant. From the Transaction History it will be seen that the Defendant made regularly payments on the account which are not disputed by the Defendant. The Defendant has provided no documentary evidence as to why the last payment of £196.00 has not been made by her, and the Claimant therefore puts the Defendant to strict proof of non-payment.

17.  In relation to the Default Notice, the Claimant repeats paragraph 4 of the amended Particulars of Claim.

18. With regard to the Deed of Assignment, the Claimant would submit that there is no requirement for this to be disclosed to the Defendant. The Instrument of Assignment is a confidential and commercially sensitive document evidencing the terms of a private agreement to which the Defendant is not a party. S.136 of the Law of Property Act 1925 provides that assignment is effective if executed in writing, and that benefit of an assigned debt is enforceable by the assignee once written notice of the assignment has been given to the debtor. The Act does not say that a copy of the Instrument of Assignment i.e. Deed of Assignment must be provided.

19. Whilst the case of K/S Victoria Street v House of Fraser (Stores Management) Ltd [2011] EWCA Civ 904 case relates to an assignment in part, it is the Claimant’s submission that this case is not relevant to this matter.

20. The Van Lynn Developments Ltd v Pelias Construction Co.Ltd [1969] 1QB8607 case is not about entitlement to the deed of assignment, but rather about the requirements for validity of a notice of assignment, so anything said on the subject is entirely obiter. Secondly,though Lord Denning does in this context refer to a right to see the deed, he goes on to state that this would be in order for the debtor to be satisfied that the Assignee can give good discharge for the debt. This does not arise in this case as the notices of assignment have been served on the Defendant by the Claimant and on behalf of the Assignor, neither party dispute the assignment.

21. Promontoria (Oak) Limited v Emanuel [2020] EWHC 104 (Ch) case outlined relates to a matter in which there seemed to be doubt regarding the chain of assignment. As set out in Nicoll v Promontoria (RAM 2) Limited [2019] WEHC 2410 (Ch), only parties to assignment are entitled to challenge whether assignment is valid.

22. Jones v Link Financial Ltd [2013] 1 WLR 693 is a case about whether an assignee can be a creditor and not in relation to the production of a Deed of Assignment.

23. It is the Claimant's submission that the Notices of Assignment exhibited proves valid undisputed assignment of this debt and therefore, a copy of the Agreement between the Claimant and Assignor is not required to be provided.

24. In relation to the statutory interest, the Claimant is entitled pursuant to s.69 of County Court Act 1984 to claim interest on proceedings issued for a debt or damages at a rate the Court thinks fit. The interest claimed is at the county court rate and as stated in its amended Particulars of Claim limited to one year rather than claiming interest from the date of the cause of action to issue of proceedings and or Judgment, if obtained.

25. With regard to the Court fee and Legal costs, the Claimant is entitled to these on issue of proceedings for a debt that is properly due and owing, which has been substantiated within the amended Particulars of Claim and this witness statement.

26. The Defendant has by email dated 19 March 2024 alleged that the Assignor has admitted irresponsible lending and the Court is referred to exhibit JW3 and in particular the heading “After 28.12.2017” from which it will be seen that the Assignor admitted that its checks failed after 28 December 2017 and has therefore refunded the sum of £509.92 in respect of unfair interest and charges. The Claimant therefore confirms that the sum claimed has been reduced by £509.92, as advised by the Assignor to reflect the outcome of the complaint.

27. It is the Claimant’s submission that from the documents annexed to the amended Particulars of Claim it is clear that the Defendant entered into the Agreement with the Assignor and has had the use and benefit of the Agreement. The Defendant is and therefore remains liable for the outstanding balance due under the Agreement.

28. It is the Claimant’s submission that given the Defence filed and in accordance with its usual practice, the Claimant attempted to enter into settlement negotiations with the Defendant with a view to bringing this matter to a conclusion. The Claimant wrote to the Defendant on numerous occasions to which no positive response was received from the Defendant.

29. Given the Defendant's failure to enter into settlement negotiations, the Claimant has been left with no alternative but to pursue the Court proceedings with view to obtaining Judgment against the Defendant.

30. The Claimant submits that there is, therefore, no Defence to the Claim either with a real or any prospect of success or at all.

ORDER SOUGHT

31. The Claimant requests Judgment be entered for the Claimant as follows: 

£3,124.82 Principal debt

£290.78 Interest at the rate of 8% and limited to one year

£205.00 Issue fee

£80.00 Legal costs

£346.00 Hearing fee

£4,046.60 Total

£509.92 Assignor’s refund of unfair interest and charges

£3,536.68 Balance due and owing

32. The Claimant also respectfully seeks an Order that the Defendant do pay the Claimant’s advocates costs of attendance pursuant to rule 27.14 (g) of the CPR, in the sum £240.00 including VAT.

33. The Claimant respectfully submits that since no other costs and in particular no solicitor’s profit costs are sought, and since counsel's attendance fee is excluded from the Schedule of Costs requirement by CPR 44PD 9.5(2)(d), the above paragraph should be taken as satisfying any requirement for a Schedule of Costs, a separate Schedule in prescribed form being of no assistance either to the Defendant or to the Court, and the work and expense of preparing it being disproportionate and contrary to the Overriding Objective as to costs and expediency at CPR 1.1(2)(b), 1.1(2)(c)(i) and 1.1(2)(d).

STATEMENT OF TRUTH

| believe that the facts stated in this witness statement are true. | 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: 27 March 2024

Signed:  Julie Williams

Name: Julie Williams

Position: Paralegal

IN THE COUNTY COURT AT WALSALL

CLAIM NUMBER: K5K1234

BETWEEN:

LOWELL PORTFOLIO | 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 Julie Williams (referred to as the ‘Alleged Witness’) dated 27th March 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 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 JD Williams & Company Limited (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 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.

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.

3. This witness statement is made in readiness for the Small Claims Hearing listed on 15 April 2024 at 10.00 .

BACKGROUND

4. I acknowledge the Claimant's assertion in point 4 of Julie Williams' Alleged Witness Statement that the facts outlined in the amended Particulars of Claim dated 22nd December 2023, and the accompanying documents exhibited thereto, remain unchanged. While the Claimant requests that the witness statement be read in conjunction with the amended Particulars of Claim, I affirm that I will thoroughly review both documents for a comprehensive understanding of the Claimant's case. The Defendant assures the Court of its diligence in examining the amended Particulars of Claim and attached documents. I appreciate the importance of clarity and consistency and reiterate our commitment to engage with all relevant documents provided by the Claimant. Therefore, I respectfully request that the Court duly consider this response in conjunction with the witness statement of Julie Williams and the amended Particulars of Claim. 

5. I acknowledge the assertion regarding the nature of the claim outlined in the amended Particulars of Claim, indicating that it pertains to a debt allegedly due under an account allegedly assigned to the Claimant, with reference to the Alleged Assignor being JD Williams & Company Ltd, as detailed by the Claimant's reference number 355053042 and the Alleged Assignor's reference S2265939 (referred to as the 'Void Agreement').

The Defendant avers that the Void Agreement was void from the outset 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 the Consumer Credit Sourcebook, in respect of irresponsible lending.   

See: Dimond v Lovell 2002 1 AC384 - Where Lord Hoffman held that agreements that do not comply with the requirements of the Consumer Credit Act 1974 are unenforceable.

6. The Defendant disputes the Claimant's assertion that the documents exhibited at Annex 1 to 4 of the amended Particulars of Claim substantiate the outstanding balance. It is crucial to note that the Claimant's reliance solely on the hearsay of computer-generated documents, susceptible to being easily produced within seconds by artificial intelligence algorithms, raises significant concerns about their reliability and authenticity. Therefore, it is imperative to subject these documents to thorough scrutiny to ascertain their accuracy and validity in determining the alleged outstanding balance. 

7.   It is disputed that the Defendant failed to respond to the 44 pre-action letters and emails sent by the Claimant from 16 May 2020 to 19 January 2023. It is disputed that the Defendant did not engage with the Claimant at all to discuss the outstanding debt and/or to arrange payment of the outstanding balance. It is disputed that the documents exhibited by the Claimant at JW1 are Examples of these letters.

The Defendant disputes the claim made by the Claimant regarding the alleged failure to respond to 44 pre-action letters and emails. The Defendant requests the Claimant to provide tangible proof of the sending of these letters, such as recorded delivery slips or a witness statement from the individual responsible for posting the letters. Without such corroborating evidence, the mere exhibition of examples of these letters at JW1 does not suffice to establish their actual dispatch and receipt by the Defendant. Therefore, the Defendant contests the assertion of non-response and emphasizes the necessity for concrete evidence to substantiate such claims especially in light of the Claimant's use of AI technology supplied by Fujitsu. 

8. It is disputed that the Claimant instructed its solicitors to correspond with the Defendant.  The Defendant avers that the word 'solicitor' is a protected term for an officer of the court and does not accurately describe the process that the Claimant engaged in.  

The Defendant avers that the Claimant instructed Lowell's Legal Firm - 'Overdales Legal Limited' Company number 07407310, who are based in the same building as the Claimant and as such, no independent legal scrutiny of the Claimant's claim has occurred and no officer of the Court has given scrutiny to the Claimant's claim. 

It is disputed that Lowell's Legal Firm sent to the Defendant a Letter of Claim dated 27 February 2023 prior to the issue of legal proceedings. It is disputed that the Defendant did not respond. It is disputed that the document exhibited by the Claimant at JW2 is a copy of this letter.

9. The Defendant acknowledges that legal proceedings were indeed initiated against them on 16 April 2023, claiming a total amount of £3,415.60. 

A breakdown of how the alleged balance is disputed both whole and in part:

Account Balance at issue Interest added upon issue

355053042 £3,124.82 £290.78

The Defendant avers that Nemo dat quod non habet, 'no one gives what they do not have' and as such the Alleged Assignor could not assign any balance to the Claimant to give the Claimant Locus Standi, 'Legal Standing' to issue their claim.

10. The Defendant disputes the assertion by the Claimant that it is the appropriate entity to bring legal proceedings against the Defendant. Without clear and verifiable evidence demonstrating the Claimant's legal standing and authority in this matter, the Defendant contests the Claimant's claim of being the correct entity to pursue legal action. Further scrutiny and clarification regarding the Claimant's legal capacity to bring these proceedings are necessary to ensure procedural integrity and fairness in this case. 

The Defendant argues that the Claimant has a duty to provide the instrument of assignment (referred to as the 'Deed of Assignment') which forms part of the agreement that the Claimant relies on, under Practice Direction 16, paragraph 7.3 as without this document, there is no evidence of any agreement between the Defendant and the Claimant.

THE DEFENDANT’S DEFENCE

11.  The Defendant confirms the filing of a comprehensive Defence, disputing the entirety of the Claim. Specifically, the Defendant contests the Claimant's reliance on data from a computer system, citing concerns regarding the potential generation of erroneous and corrupt data. 

Furthermore, the Defendant challenges the validity of the Agreement, asserting that it may be void due to the Assignor's alleged failure to comply with relevant financial regulations. 

Additionally, the Defendant disputes various aspects of the Claim, including the Transaction History, the Default Notice, and the Assignment of debt, while also requesting substantiating documentation such as the Deed of Assignment. 

Moreover, the Defendant contests the Claimant's entitlement to statutory interest as claimed. These disputes underscore the need for further examination and clarification to ensure a fair and just resolution of this matter. 

THE CLAIMANT’S REPLY TO DEFENCE

12.  The Defendant disputes the repetition of paragraphs 4 to 10 of the Claimant's witness statement. While acknowledging the importance of providing a comprehensive account of the Claimant's position, the Defendant asserts that merely reiterating previously stated assertions without addressing specific challenges raised by the Defence does not contribute meaningfully to the resolution of this dispute. The Defendant urges the Claimant to engage constructively with the issues raised in the Defence rather than simply restating their initial assertions. 

13. The Defendant disputes the Claimant's assertion regarding the Transaction History provided by the Claimant's computer system. The Defendant contends that there are legitimate concerns regarding the reliability and integrity of the data, particularly in light of the referenced article regarding corrupt data leading to wrongful convictions. 

“theguardian.com/uk-news/2021/apr/23/court-clears-39-post-office-staff-convicted-due-to-corrupt-data”

The Defendant asserts that this article is relevant as it raises broader questions about the potential fallibility of computer-generated data. Furthermore, the Defendant emphasizes the importance of ensuring the accuracy and credibility of the Transaction History, and thus requests additional evidence to substantiate its reliability.  The Defendant avers that the Claimant is using the same I.T. company FUJITSU who have admitted their involvement in providing incorrect and corrupt data in legal proceedings leading to miscarriages of justice and wrongful and unlawful convictions.

14. The Defendant disputes the assertion made in paragraph 14 of the Claimant's Alleged Witness Statement regarding the legal assignment of the debt as per s.136 Law of Property Act 1925. While the Claimant refers to Annex 4 of the amended Particulars of Claim as evidence of this assignment, the Defendant contests the adequacy of the evidence provided. Annex 4 merely presents alleged copies of notices of assignment without any accompanying proof of service or witness statement from the individual responsible for sending the documents. Without verifiable documentation or substantiation of the assignment process, the Defendant questions the validity and authenticity of the alleged assignment. Furthermore, the Defendant emphasizes the necessity for concrete evidence to support the Claimant's assertion regarding the legal assignment of the debt. 

The Claimant is required to provide the Deed of Assignment, upon which they rely, to establish an exception to the Common Law Doctrine of Privity of Contract: 

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.

And:  (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.'

Which demonstrates that a notice of assignment does not confer any exception to Privity.  

The Defendant avers that the Claimant is required under Practice Direction 16, paragraph 7.3, to provide the Deed of Assignment, as without this document, there is no evidence of any agreement between the Defendant and the Claimant.

15.   Regarding the Defendant's allegation of irresponsible lending, the Claimant acknowledges that the Alleged Assignor confirmed irresponsible lending in their letter dated around 13 February 2024. The Alleged Assignor refunded £509.92 in response to this complaint, as indicated in the Final Response exhibited at JW3. Despite the Alleged Assignor's refund, the Defendant maintains that this acknowledgment underscores the validity of the irresponsible lending claim. The Defendant asserts that the refund does not absolve the Alleged Assignor of their initial failure to conduct adequate assessments of the Defendant's financial circumstances prior to extending credit. Therefore, the Defendant contends that the Claimant's submission fails to refute the claim of irresponsible lending effectively. 

The Defendant avers the as the Alleged Assignor admitted not complying with the requirements of the Consumer Credit Act 1974, the account is unenforceable:

See: (Dimond v Lovell 2002 1 AC384) - Where Lord Hoffman held that agreements that do not comply with the requirements of the Consumer Credit Act 1974 are unenforceable.

16. The Defendant disputes the Claimant's assertion regarding the Transaction History provided by the Assignor. While the Claimant contends that the Transaction History clearly demonstrates how the debt accrued, the Defendant challenges the accuracy and completeness of this history. The Defendant asserts that the Transaction History may not provide a comprehensive view of the Defendant's financial transactions and circumstances, thus raising questions about its reliability as evidence. Furthermore, the Defendant denies the Claimant's claim that the Defendant has not provided documentary evidence regarding the last payment of £196.00. The Defendant maintains that all relevant information and evidence regarding payments have been disclosed and contests the Claimant's attempt to shift the burden of proof onto the Defendant. Therefore, the Defendant requests further examination and verification of the Transaction History to ensure its accuracy and reliability.

17. The Defendant disputes the repetition of paragraph 4 of the amended Particulars of Claim concerning the Default Notice. It is pertinent to note that no tangible evidence of a Default Notice has been provided; instead, the Claimant relies solely on a computer-generated printout suggesting that a Default Notice might have been sent by the Alleged Assignor. However, the mere suggestion of a Default Notice does not suffice to establish its proper issuance or compliance with legal requirements. Without concrete documentation or proof of service, the Defendant questions the validity and authenticity of the alleged Default Notice. Therefore, the Defendant contends that the Claimant's reliance on paragraph 4 lacks substantiation and urges for further evidence to ascertain the existence and legality of the Default Notice.

18. The Defendant disputes the Claimant's assertion regarding the disclosure of the Deed of Assignment. While the Claimant contends that there is no requirement for the Defendant to be provided with the Deed of Assignment, the Defendant asserts that transparency and legal clarity necessitate disclosure of such documentation. Contrary to the Claimant's argument, the Defendant maintains that the Deed of Assignment is not merely a confidential and commercially sensitive document, but rather a crucial piece of evidence that establishes the validity and legality of the assignment. Section 136 of the Law of Property Act 1925 outlines the requirements for assignment, but the absence of a specific mention of providing a copy of the Deed of Assignment does not negate the Defendant's right to access relevant documentation pertaining to their financial obligations. Therefore, the Defendant contests the Claimant's position and requests the disclosure of the Deed of Assignment to ensure transparency and fairness in this matter. 

19. The Defendant disputes the Claimant's assertion that the case of K/S Victoria Street v House of Fraser (Stores Management) Ltd [2011] EWCA Civ 904 is irrelevant to the present matter. Contrary to the Claimant's contention, this case bears relevance as it pertains to aspects of assignment, albeit in a different context. The principles established in case law can often provide guidance and precedent for similar legal issues, including those related to assignment. Therefore, the Defendant contends that the case of K/S Victoria Street v House of Fraser (Stores Management) Ltd [2011] EWCA Civ 904 should not be dismissed as irrelevant, but rather considered within the broader legal framework surrounding assignments. 

The court held that in order for K/S Victoria Street to have standing, it needed to show that it had a legal interest in the alleged agreement. The court stated that without a legal interest, K/S Victoria Street had no standing to bring the claim.

Therefore as the Claimant is reliant on a Deed of Assignment to demonstrate compliance with Section 136 of the Law of Property Act 1925, they have a duty to disclose that document. Should the Claimant fail to provide the Deed of Assignment, upon which they rely, to demonstrate an exception to the Common Law Doctrine of Privity of Contract, at any substantial hearing, the Court is respectfully invited to conclude the Claimant has no Locus Standi to issue their claim and Strike Out the Claim accordingly. 

20. The Defendant disputes the interpretation of the case Van Lynn Developments Ltd v Pelias Construction Co.Ltd [1969] 1QB8607 provided by the Claimant. Contrary to the Claimant's assertion, this case does address the issue of entitlement to the Deed of Assignment, albeit within the context of the validity of a notice of assignment. The remarks made by Lord Denning regarding the right to see the deed are significant as they underscore the importance of providing transparency and assurance to debtors regarding the assignment process. While the Claimant contends that both parties have been served with notices of assignment and do not dispute the assignment, the Defendant maintains that the mere provision of notices does not absolve the Claimant from providing the deed of assignment for proper scrutiny and validation. Therefore, the Defendant asserts that the principles outlined in Van Lynn Developments Ltd v Pelias Construction Co.Ltd [1969] 1QB8607 remain relevant to the present case and emphasize the necessity of providing the Deed of Assignment for the Defendant's satisfaction and legal clarity. 

21.  The Defendant disputes the Claimant's interpretation of the case Promontoria (Oak) Limited v Emanuel [2020] EWHC 104 (Ch). Contrary to the Claimant's assertion, this case does not solely revolve around doubts regarding the chain of assignment. Instead, it addresses broader issues related to assignment validity and the legal principles governing such matters. Furthermore, the Defendant contends that the case of Nicoll v Promontoria (RAM 2) Limited [2019] WEHC 2410 (Ch) does not support the Claimant's argument that only parties to the assignment are entitled to challenge its validity. Rather, this case emphasizes the importance of ensuring procedural fairness and legal clarity in assignment disputes, which may involve considerations beyond the immediate parties involved. Therefore, the Defendant maintains that the principles outlined in these cases underscore the need for thorough examination and verification of the assignment process to ensure its validity and legality. 

The importance of providing the Deed of Assignment is underscored in the case of:

Hancock v Promontoria (Chestnut) Ltd [2020] EWCA Civ 907 (14 July 2020) - Where Henderson LJ said: 

"In all normal cases, the entire document should be placed before the court; and if, exceptionally, any redactions are made, they should be fully explained and justified by the party making the redaction, with sufficient particularity for the court to be able to rule on the need for the redaction if it is challenged."  

22.  The Defendant disputes the Claimant's interpretation of the case Jones v Link Financial Ltd [2013] 1 WLR 693. While the Claimant asserts that this case solely addresses whether an assignee can be a creditor, the Defendant maintains that the case also touches upon the broader issue of assignment documentation, including the production of a Deed of Assignment. The case discusses the legal relationship between assignee and creditor, which inherently involves considerations regarding the validity and documentation of the assignment process. Therefore, the Defendant contends that Jones v Link Financial Ltd [2013] 1 WLR 693 is relevant to the present matter as it underscores the importance of establishing the assignee's rights and obligations through proper documentation, including the Deed of Assignment. 

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.

Therefor the Defendant avers that the Claimant has a duty to prove their compliance with the THREE elements of a valid legal assignment to demonstrate an exception to the Common Law Doctrine of Privity of Contract. 

23. The Defendant disputes the Claimant's submission regarding the sufficiency of the Notices of Assignment as proof of a valid assignment of the debt. While the Claimant contends that the Notices of Assignment serve as evidence of an undisputed assignment, the Defendant asserts that mere notices do not adequately demonstrate the legality and validity of the assignment process. The Defendant emphasizes that providing a copy of the Agreement between the Claimant and the Assignor is essential to establish the terms and conditions governing the assignment. Without access to the Agreement, the Defendant's ability to verify the legality and enforceability of the assignment is compromised. Therefore, the Defendant maintains that the Claimant's reliance solely on Notices of Assignment is insufficient to substantiate the validity of the assignment and requests further documentation to support this claim.

See: (Mitchell Mcfarlane & Partners Ltd v Foremans Ltd 2002) - 'Even If I had held that notice of assignment had not been given, I do not think that this would have made any difference. As an equitable assignee Foremans could not have brought an action at law without joining the assignor, old Foremans.'

24.  The Defendant disputes the Claimant's entitlement to statutory interest as outlined in section 69 of the County Court Act 1984. While the Claimant asserts their right to claim interest on proceedings issued for a debt or damages, the Defendant challenges the Claimant's interpretation of the statute. Section 69 grants the court discretion to award interest at a rate it deems appropriate, but this does not inherently confer an automatic entitlement to interest. Furthermore, the Defendant contests the Claimant's decision to limit the interest claimed to one year, rather than seeking interest from the date of the cause of action to the issuance of proceedings or judgment. By limiting the interest claim, the Defendant argues that the Claimant fails to adequately address the full extent of the damages incurred. Therefore, the Defendant disputes the Claimant's assertion of entitlement to statutory interest and requests further clarification regarding the calculation and justification of the interest claimed. 

25.   The Defendant disputes the Claimant's assertion of entitlement to court fees and legal costs. While the Claimant contends that they are entitled to these fees and costs on the issue of proceedings for a debt that is properly due and owing, the Defendant challenges the adequacy of the substantiation provided within the amended Particulars of Claim and the witness statement. The Defendant maintains that mere assertion of entitlement does not suffice; rather, clear evidence and justification for these fees and costs are required. Without detailed documentation or explanation regarding the calculation and necessity of these fees and costs, the Defendant questions the validity of the Claimant's claim. Therefore, the Defendant disputes the Claimant's entitlement to court fees and legal costs until sufficient evidence and justification are provided. 

26.  The Defendant acknowledges receipt of the email dated 19 March 2024 and confirms the contents therein regarding the Alleged Assignor's admission of irresponsible lending. However, the Defendant emphasizes that the Assignor's admission and subsequent refund of £509.92 in respect of unfair interest and charges underscore the inherent flaws in the lending process and raise significant concerns about the validity and enforceability of the debt claimed by the Claimant. The Defendant contends that the admission of irresponsible lending by the Alleged Assignor casts doubt on the entire basis of the Claimant's claim and calls into question the legitimacy of pursuing legal proceedings to recover the outstanding balance. Therefore, the Defendant urges the court to consider the implications of the Alleged Assignor's admission and refund in assessing the validity and fairness of the Claimant's claim. 

See: Dimond v Lovell 2002 1 AC384 - Where Lord Hoffman held that agreements that do not comply with the requirements of the Consumer Credit Act 1974 are unenforceable.

27. The Defendant disputes the Claimant's submission regarding the clarity of the documents annexed to the amended Particulars of Claim in establishing the Defendant's liability under the Void Agreement. While the Claimant contends that the documents demonstrate the Defendant's entry into a Void Agreement with the Alleged Assignor and subsequent benefit from it, the Defendant challenges the sufficiency and authenticity of the provided documentation. The Defendant asserts that the mere existence of documents does not necessarily establish the Defendant's liability, especially considering the concerns raised regarding irresponsible lending and the subsequent refund of unfair interest and charges by the Alleged Assignor. Moreover, the Defendant questions the accuracy and reliability of the documentation provided, particularly in light of the disputed transaction history and default notice. Therefore, the Defendant disputes the Claimant's assertion of liability based on the documents annexed to the amended Particulars of Claim and requests further evidence to substantiate this claim.

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

The Defendant further avers that under the Consumer Credit Act 1974 section 61(1)(a) and 127(3) of the Act, a creditor must be able to produce a signed document (not necessarily the credit agreement) that contains the prescribed terms. The document must include the credit limit, the interest rate and details of how and when a debtor is to discharge his payment obligations.

The Defendant avers that the Claimant has failed to provide any signed document with the prescribed terms and Void Agreement  is irredeemably unenforceable.

Furthermore, it is disputed that Void Agreement is fully compliant with the Consumer Credit Act 1974, as per the case law established in the court of appeal in "Smith v. Barclays Bank plc [2016] EWCA Civ 675", where it was held that a failure to provide a consumer with a copy of the agreement before the credit was granted, would render the agreement unenforceable. 

Although the Claimant has provided an unsigned copy of the agreement, it is disputable whether the Defendant had signed it and received it before the credit was granted. Therefore, it would be incumbent upon the Claimant to prove that the Void Agreement was signed by the Defendant and provided to him before the credit was granted. 

The Claimant is required to provide a signed agreement to demonstrate compliance with Section 61 of the Consumer Credit Act. 

28.  The Defendant disputes the Claimant's submission regarding attempted settlement negotiations. While the Claimant asserts that they made multiple attempts to initiate settlement discussions with the Defendant, the Defendant contests the accuracy of this claim. The Defendant asserts that they did not receive any correspondence or communication from the Claimant regarding settlement negotiations. Moreover, the Defendant emphasizes the importance of transparent and documented attempts to engage in settlement discussions, which were lacking in this case. Without evidence of such attempts or any record of communication from the Claimant, the Defendant challenges the Claimant's assertion and requests further clarification or evidence to support this claim. Therefore, the Defendant disputes the Claimant's submission regarding attempted settlement negotiations until such evidence is provided. 

29.  The Defendant disputes the Claimant's assertion regarding the Defendant's failure to enter into settlement negotiations. Contrary to the Claimant's claim, the Defendant asserts that they were never approached by the Claimant for settlement negotiations. The Defendant maintains that they were open to resolving the matter outside of court and would have engaged in settlement discussions if approached by the Claimant. However, the Defendant reiterates that they did not receive any communication or attempt from the Claimant to initiate such negotiations. Therefore, the Defendant disputes the Claimant's implication that they refused to enter into settlement negotiations and asserts that they were willing to explore alternative resolutions to the dispute.

The Defendant draws the Courts attention to Exhibit “CH1” Page 1 & 2 (found at pages 13 and 14 of this Witness Statement) which demonstrates that the Defendant contacted the Claimant on 10th September 2020 and offered to settle the matter upon receipt of documents demonstrating the Claimant’s right to enforce the benefit of the Void Agreement to which they were not a party. The Claimant’s response shown at Exhibit “CH1” Page 3 (found at page 15 of this Witness Statement) demonstrates that the Claimant simply ignored the Defendant’s legitimate requests for documentation.   The Defendant avers that the Claimant’s constant refusal to provide the Deed of Assignment which forms the basis of their claim is both vexatious and unreasonable. 

30.  The Defendant disputes the Claimant's assertion that there is no defense to the claim. Contrary to the Claimant's submission, the Defendant maintains that they have presented a valid and substantive defense against the claim. The Defendant's defense challenges various aspects of the claim, including the validity of the assignment, allegations of irresponsible lending, discrepancies in the transaction history, and the adequacy of the documentation provided. Furthermore, the Defendant highlights the significant implications of the Assignor's admission of irresponsible lending and the subsequent refund of unfair interest and charges, which cast doubt on the legitimacy of the debt claimed by the Claimant. Therefore, the Defendant contends that there are valid grounds for disputing the claim, and asserts that the case merits further examination and consideration by the court.

ORDER SOUGHT

31. The Defendant disputes each figure detailed by the Claimant, both in whole and in part:

i. £3,124.82 Principal debt: The Defendant contests the validity of the principal debt claimed by the Claimant, as it is based on disputed and questionable grounds, including allegations of irresponsible lending and discrepancies in the documentation provided.

ii. £290.78 Interest at the rate of 8% and limited to one year: The Defendant challenges the calculation and application of interest, asserting that the interest claimed is not justified or accurately calculated, especially considering the contested nature of the debt.

iii. £205.00 Issue fee: The Defendant questions the necessity and reasonableness of the issue fee, arguing that it may not be warranted given the disputed nature of the claim and the issues raised in the defence.

iv. £80.00 Legal costs: The Defendant disputes the legal costs claimed by the Claimant, arguing that they may not be justified or reasonable given the complexities and contested aspects of the case.

v. £346.00 Hearing fee: The Defendant challenges the necessity of the hearing fee, especially if the case could have been resolved through settlement negotiations or alternative dispute resolution methods.

vi. £4,046.60 Total: The Defendant disputes the total amount claimed by the Claimant, asserting that it is inflated and not reflective of the true nature or validity of the debt.

vii. £509.92 Assignor’s refund of unfair interest and charges: While acknowledging the Alleged Assignor's refund, the Defendant asserts that this amount should be deducted from the total claimed by the Claimant, as it reflects acknowledgment of irresponsible lending and reduces the outstanding balance owed.

viii. £3,536.68 Balance due and owing: Given the disputed nature of the debt and the various challenges raised by the Defendant, the accuracy and validity of the balance claimed by the Claimant are called into question. Therefore, the Defendant disputes the balance claimed as being inaccurate and not reflective of the true state of affairs.

32.  The Defendant disputes the Claimant's request for an order to pay the Claimant’s advocate's costs of attendance. The Defendant contends that such costs may not be warranted or reasonable, particularly in light of the disputed nature of the claim and the issues raised in the defence. Furthermore, the Defendant asserts that the amount claimed for advocate's costs appears arbitrary and lacks justification or breakdown of expenses incurred. Therefore, the Defendant opposes the Claimant's request for an order to pay advocate's costs of attendance until further clarification and justification are provided. 

The Defendant emphatically emphasizes to the Claimant that, pursuant to Civil Procedure Rule Part 39 PD 39a (3.3) and Practice Direction 16, paragraph 7.3, all documents the Claimant intends to rely upon must be presented in their original form for comprehensive examination at any subsequent hearing. Additionally, the Defendant firmly asserts that witnesses must attend the hearing, as the Defendant has the inherent right to cross-examine them.

33.  The Defendant vehemently disputes the Claimant's submission and requests the honourable court to dismiss the claim in its entirety. The Claimant's assertion regarding the adequacy of the costs claimed lacks merit and transparency. Furthermore, the Defendant asserts that the Claimant's failure to provide a detailed breakdown of costs incurred is contrary to the principles of transparency and fairness in legal proceedings. The Defendant emphasizes that without a clear and itemized schedule of costs, it is impossible to assess the reasonableness and necessity of the claimed costs. Additionally, the Defendant contends that the Claimant's request for costs lacks justification and appears arbitrary. Therefore, in the interest of justice and fairness, the Defendant urges the court to dismiss the claim and award costs to the Defendant.

STATEMENT OF TRUTH

| believe that the facts stated in this witness statement are true. | 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: 31 March 2024

Signed:  Defendant's Signature

Name:  [DEFENDANT'S NAME]

Position: Defendant