PRAC 118118

Filed On behalf of the Claimant Name of Witness: Corrin Brown Witness Statement: `I Exhibits: CB1

IN THE COUNTY COURT AT HASTINGS

CLAIM NUMBER: [CLAIM NO]

PRAC FINANCIAL LIMITED

CLAIMANT

-V-

[DEFENDANT NAME]

DEFENDANT

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WITNESS STATEMENT OF CORRIN BROWN

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I, Corrin Brown, a Solicitor in the employment of BW Legal Services Limited, Enterprise House, Apex View, Leeds, West Yorkshire, LS11 9BH WILL SAY AS FOLLOWS:

INTRODUCTION

1. BW Legal Services Limited are the Solicitors for the Claimant. I have conduct of this action subject to the supervision of my principal. All matters to which I refer are based on information provided to me by the Claimant, save where expressly stated to the contrary, and are true to the best of my knowledge, information and belief. I am duly authorised by the Claimant to make this statement on its behalf.

2. I make this witness statement for the hearing listed for the 24 February 2022 at 12:00 and in support of the Claim.

3. Within this statement, I make reference to various documents now produced to me in a paginated bundle at 'CBI and have been provided to me by the Claimant to support the claim. Any reference to a page number within this witness statement is a reference to the pages of exhibit `CB11 unless expressed to the contrary.

PARTICULARS OF DEBT / THE AGREEMENT

4. The Claimant is a private limited company whose business is focussed on the acquisition of debt portfolios from other businesses.

5. The Claimant's claim against the Defendant is for the principal sum of £1,070.02, plus interest and costs, being the balance of monies due under an agreement (Agreement) made between the Defendant and Madison CF UK Ltd t/a 118 118 Money (Originating Creditor).

6. The Agreement at pages [1-3] is regulated under the Consumer Credit Act 1974 (Act). It provides the following information:

Agreement date 19 September 2019

Agreement number 2467754

Duration of agreement 24 months

Type of loan FIXED-SUM LOAN AGREEMENT

Total amount loaned £1,000.00

Total repayable £1,778.88

Interest rate 60.2% per annum

7. The Defendant's principal repayment obligations were to make monthly instalments of £74.12 commencing 1 November 2019.

ACCEPTANCE OF THE AGREEMENT

8. The Agreement records that the loan sum was to be paid into an account with HSBC nominated by the Defendant (HSBC).

9. Page [3] of the Agreement states the following: "This is a loan agreement regulated by the Consumer Credit Act 1974. Sign it only if you want to be legally bound by its terms."

10. The necessary consent to be bound by the Agreement with the Originating Creditor would have been given by the Defendant by typing his name and the date on the online application form on 19 September 2019.

STATEMENT OF ACCOUNT

11. The Defendant's statement of account dated 25 November 2020 with the Originating Creditor at pages [4-6] (Statement of Account) shows:

Date of last payment to Originating Creditor

1 June 2020

Amount of last payment to Originating Creditor

£74.12

Total amount outstanding at termination

£1,185.92

12. The Statement of Account also shows:

12.1 The remittance of the loan amount to HSBC;
12.2 That 8 payments of £74.12 were received;
12.3 The payment received on 1 July 2020 was returned to the payer as a failed payment, as will have been confirmed by the sending bank; and
12.4 No payments were subsequently received by the Originating Creditor thereafter.

13. The Defendant failed to maintain his contractual payments, and therefore was in default of the repayment obligations under the Agreement.

14. Following termination (and prior to the issue of the claim), the Claimant was advised by the Originating Creditor that there had been a remedial adjustment to the balance of £115.90, reducing the principal sum to £1,070.02 as per the claim.

DEFAULT NOTICE

15. Due to the Defendant's breach of the Agreement, the default notice at pages [7-8] was sent to the Defendant on 5 September 2020 (Default Notice). The Default Notice provides for the following information:

i. That the Defendant was served with a Default Notice in accordance with section 87(1) of the Consumer Credit Act 1974;
ii. That the Defendant was required to make payment of £222.36 (being the arrears accrued under the Agreement), before 26 September 2020;
iii That the Defendant was warned that failure to remedy the breach under the Default Notice would result in the termination of the Agreement, rendering the full sum under the Agreement to be due and owing immediately.

16. Despite the above, the Defendant failed to make payment of the arrears accrued under the Default Notice.

ASSIGNMENT OF DEBT

17. As per the House of Lords decision in Linden Gardens Trust Ltd v Lenesta Sludge Disposals Ltd [1993] UKHL 4, any burden, such as any dispute between the Defendant and the Originating Creditor, is not assigned and remains an issue between those parties. Therefore, only the rights and benefits of the Agreement were assigned from the Originating Creditor to the Claimant by way of a debt sale agreement.

18. The Notice of Assignment at page [9] was served upon the Defendant by the Originating Creditor on or around the 23 October 2020, in accordance with the provisions of section 136 of the Law of Property Act 1925.

19. For there to be a valid assignment of a legal debt, there must be compliance with s136(1) of the Law of Property Act 1925. This provides:

Any absolute assignment by writing under the hand of the assignor (not purporting to be by way of charge only) of any debt or other legal thing in action, of which express notice in writing has been given to the debtor, trustee or other person from whom the assignor would have been entitled to claim such debt or thing in action, is effectual in law (subject to equities having priority over the right of the assignee) to pass and transfer from the date of such notice-

(a) the legal right to such debt or thing in action;

(b) all legal and other remedies for the same; and

(c) the power to give a good discharge for the same without the concurrence of the assignor:

Provided that, if the debtor, trustee or other person liable in respect of such debt or thing in action has notice-

(a) that the assignment is disputed by the assignor or any person claiming under him; or (b) of any other opposing or conflicting claims to such debt or thing in action; he may, if he thinks fit, either call upon the persons making claim thereto to interplead concerning the same, or pay the debt or other thing in action into court tinder the provisions of the Trustee Act, 1925.

Therefore, statute simply requires the assignor to ensure that:

a. "express notice in writing" is given by the assignor, ie the Originating Creditor; and b. Notice needs to be "given" in accordance with s.196, which pursuant to s.196(3) and case law, can be by post.

20. The Notice of Assignment clearly states that the Defendant's account is owned by the Claimant, and provides the Defendant with sufficient notice pursuant to s136(1) of the Law of Property Act 1925.

21. The Notice of Assignment was sent to the Defendant's last known address at the time. The Claimant has no reason to believe that the Defendant did not receive the Notice of Assignment, and it is noted that the address used matches that in the Defence confirmed by the Defendant as his current address for service.

FURTHER CORRESPONDENCE

22. The Claimant's solicitors have sent numerous letters to the Defendant regarding the claim from 23 October 2020, with the Defendant's responses largely reflecting his Defence. The sheer volume of correspondence and telephone conversations (over 100) renders it impractical to exhibit all correspondence and telephone notes to this statement, and indeed much of it is largely repetitive and not relevant to this claim.

23. However, insofar as it is relevant to the claim:

23.1 There have been several Subject Access Requests and multiple repetitive complaints made to and responded by the Claimant's solicitors, BW Legal, an example of which was dated 8 February 2021 shown at pages [14-17];

23.2 A formal complaint was made to the Financial Ombudsman Service, which was not upheld in May 2021 as shown at pages [18-20];

23.3 Multiple requests for information from the Defendant under CPR 18 and otherwise, the latest of which are exhibited to confirm that these have been fully, and repeatedly, responded to since 26 November 2020 (pages [12-30]); and

23.4 A response to the Defence dated 7 September 2021 as shown at pages [31-33], which was sent in the hope that issues could be narrowed. Instead, the Defendant has simply chosen to repeat himself yet again.

DEFENCE - CLAIMANT'S RESPONSE

24. It is believed that the Defendant has used a proforma internet defence, with the Defendant submitting multiple technical arguments. As this statement is a statement of fact, the responses below will be limited to the facts referred to by the Defendant only, with technical submissions the remit of the advocates at any final hearing.

25. It is however submitted that where the Defendant has chosen to "sit on the fence", neither admitting nor denying a part of the claim, he cannot now change his statement of case without the permission of the Court.

It is disputed that the Defendant is entitled or has any Legal Standing to Claim the sum of £1070.02 being monies allegedly due in respect of a loan agreement regulated by the Consumer Credit Act 1974 between the Defendant and Madison CF UK Ltd t/a 118 118 Money (the 'Alleged Assignor) under account reference 2467754 ('the Alleged Agreement)

26. It is noted that the Defendant has not denied entering into the Agreement with the Originating Creditor within this paragraph, or at any point in the Defence.

27. He subsequently impliedly admits his contractual obligations when stating "It is disputed that the Defendant has failed to make contractual payments under the terms of the Alleged Agreement".

28. The Originating Creditor also claims to have paid funds to his HSBC Account and the Defendant is put to strict proof the account was not his (which is not currently alleged).

29. This is supported by the independent findings of the Financial Ombudsman Service, who were also satisfied that this debt was genuinely owned by the Defendant (pages [19-20]).

The Claimant is put to strict proof to provide a copy of the Contract upon which they rely as per the Consumer Credit Act 1974

30. Paragraphs 5-9 are repeated.

It is disputed that the Defendant has failed to make contractual payments under the terms of the Alleged Agreement

31. It would seem nonsensical to refer to the Agreement as the Alleged Agreement in earlier submissions, then argue (if not specifically, by implication) that the Defendant has made contractual payments. In any event, the claim pleaded that the Defendant failed to "maintain" contractual payments, which clearly correlates with the evidence referred to at paragraphs 11-13.

The Claimant is put to strict proof to provide a copy of all statements, invoices, Default notice and termination notice issued in relation to the Alleged Agreement. It is disputed that a Default Notice has been served on the Defendant. The Claimant is also put to strict proof to show that a compliant Default Notice was served in relation to the alleged agreement pursuant to the Consumer Credit Act 1974 s. 87 & 88 (1)

32. The Claimant relies on the evidence set out above.

33. Again, other than the Default Notice, it is neither admitted nor denied by the Defendant that any particular document has or has not been provided, or how that provides him with a defence to the claim.

WHY THE DEFENDANT IS LIABLE

34. It is therefore submitted that:

34.1 The Defendant entered into an Agreement with the Originating Creditor which is not denied;
34.2 The Defendant breached the terms of the Agreement by not maintaining the payments due, leading to the termination of the Agreement by the Originating Creditor;
34.3 The Originating Creditor subsequently assigned all rights and benefits under the Agreement to the Claimant;
34.4 The Defendant has failed to settle their liability to the Claimant under the Agreement.

CONCLUSION

35. The Claimant requests that Judgment be entered against the Defendant for the full amount claimed, plus interest and costs at the hearing.

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.

SIGNED

CORRIN BROWN

Date: 09/02/2022

Filed On behalf of the Defendant Name of Witness: [DEFENDANT NAME]Witness Statement: `I Exhibits: BB1

IN THE COUNTY COURT AT HASTINGS

CLAIM NUMBER: [CLAIM NO]

[DEFENDANT NAME]

DEFENDANT

-V-

PRAC FINANCIAL LIMITED

CLAIMANT

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WITNESS STATEMENT OF [DEFENDANT NAME]

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I, [DEFENDANT 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 to the claimants filing of a alleged witness statement of Corrin Brown (the ‘Alleged Witness’) dated 09/02/2022 who's statement is based on her employment of a company called BW Legal Services Limited.

The Alleged Witness bases his entire statement on hearsay evidence from the computer system of the Claimant and the computer system of Madison CF UK Ltd t/a 118 118 Money (the ‘Alleged Assignor’).

The failure of such systems have been brought to light by the recent case where sub-postmasters were acquitted of Fraud after false convictions based solely on the data from a computer system that generated erroneous data:

computerweekly.com/news/252475611/Subpostmasters-proved-right-on-IT-system-failures-as-calls-for-full-public-inquiry-mount

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.

2. I make this witness statement for the hearing listed for the 24 February 2022 at 12:00 and in support of the Defendant's defence. 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.

3. Within this statement. I make reference to various documents now produced by me at the end of this Witness Statement marked 'BB1'. Any reference to a page number within this witness statement is a reference to the pages of exhibit `BB1' unless expressed to the contrary.

PARTICULARS OF DEBT / THE AGREEMENT

4. It is not disputed that the Claimant is a private limited company whose business is focussed on the acquisition of debt portfolios from other businesses. The Defendant avers that the Claimant as a bulk purchaser of lists of names and numbers who purchases lists of alleged accounts on an EQUITABLE basis and as such the Claimant has not Legal Standing ('Locus Standi') to bring an action at law without attaching the Alleged Assignor.

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

5. It is disputed that the Claimant is entitled or has any Locus Standi to claim against the Defendant for the principal sum of £1,070.02, plus interest and costs, being what the Claimant claims is the balance of monies due under an agreement (the 'Void Agreement') made between the Defendant and the Alleged Assignor.

The Claimant is put to strict proof to prove an exemption to the Doctrine of Privity and demonstrate their Locus Standi to bring an action at Law.

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.

6. It is not disputed that the document exhibited by the Claimant pages [1-3] of their Witness Statement a copy of the Void Agreement which is regulated under the Consumer Credit Act 1974 (Act) and it provides the following information:

Agreement date 19 September 2019

Agreement number 2467754

Duration of agreement 24 months

Type of loan FIXED-SUM LOAN AGREEMENT

Total amount loaned £1,000.00

Total repayable £1,778.88

Interest rate 60.2% per annum

The Defendant avers that the Void Agreement was entered into as a result of irresponsible lending practices and in breach of the Consumer Credit Act 1974 Section 25(2B). This is subject to a complaint with the Alleged Assignor pending a formal investigation by the Financial Ombudsman.

www.bechbruun.com/en/news/2020/danish-consumer-ombudsman-finds-66-loan-agreements-to-be-unfair-and-void

The Defendant avers that as the Void Agreement was in breach of the Consumer Credit Act, the Alleged Assignor could not assign a benefit that was not owed - Nemo dat quod non habet - 'no one gives what they do not have'

7. It is disputed that the Defendant's principal repayment obligations were to make monthly instalments of £74.12 commencing 1 November 2019. The Defendant avers that the Void Agreement was void from the outset due to the irresponsible lending practices of the Alleged Assignor therefore no obligation existed under the Void Agreement.

ACCEPTANCE OF THE AGREEMENT

8. It is not disputed that the Void Agreement records that the loan sum was to be paid into an account with HSBC nominated by the Defendant (HSBC).

9. It is not disputed that Page [3] of the Void Agreement states the following: "This is a loan agreement regulated by the Consumer Credit Act 1974. Sign it only if you want to be legally bound by its terms."

10. It is disputed that the necessary consent to be bound by the Void Agreement with the Alleged Assignor would have been given by the Defendant by typing his name and the date on the online application form on 19 September 2019. The Defendant avers that the Claimant is reliant on a document with no signature or any actual evidence of a signature which is entirely hearsay in nature. However, as the Claimant is reliant upon this document to establish terms and conditions entered into, the Defendant draws the Courts attention to the fact that it does not contain any Term or Condition that would allow the sale of the benefit of the account to the Claimant.

The Defendant avers that the terms and conditions relied on by the Claimant do not permit the assignment of the benefit of the agreement as no exception to the Common Law Doctrine of Privity of Contract is within those terms. The Defendant avers for the Claimant to rely on Section 1 of the Contracts (Rights of Third Parties) Act 1999, the Assignee must be expressly identified in the contract by name or class within those terms:

Contracts (Rights of Third Parties) Act 1999

1 Right of third party to enforce contractual term.

(1) Subject to the provisions of this Act, a person who is not a party to a contract (a “third party”) may in his own right enforce a term of the contract if—

(a) the contract expressly provides that he may, or
(b) subject to subsection (2), the term purports to confer a benefit on him.
(2) Subsection (1)(b) does not apply if on a proper construction of the contract it appears that the parties did not intend the term to be enforceable by the third party.
(3) The third party must be expressly identified in the contract by name, as a member of a class or as answering a particular description but need not be in existence when the contract is entered into.

STATEMENT OF ACCOUNT

11. It is disputed that the document(s) exhibited by the Claimant at pages [4-6] of their Witness Statement are, in any way, an accurate statement of account dated 25 November 2020:

Date of last payment to Alleged Assignor

1 June 2020 is disputed

Amount of last payment to Alleged Assignor

£74.12 is disputed

Total amount outstanding at termination

£1,185.92 is disputed

12. It is disputed that the Alleged Statement of Account shows:

12.1 The remittance of the loan amount to HSBC;
12.2 That 8 payments of £74.12 were received;
12.3 The payment received on 1 July 2020 was returned to the payer as a failed payment, as will have been confirmed by the sending bank; and
12.4 No payments were subsequently received by the Originating Creditor thereafter.

13. It is disputed that the Defendant failed to maintain his contractual payments, and therefore was in default of the repayment obligations under the Void Agreement.

14. It is disputed that following termination (and prior to the issue of the claim), the Claimant was advised by the Alleged Assignor that there had been a remedial adjustment to the balance of £115.90, reducing the principal sum to £1,070.02 as per the claim.

The Defendant avers that to be compliant with Section 136 of the Law of Property Act 1925, any Assignment must be ABSOLUTE and not by way of a CHARGE.

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 any 'remedial adjustment' was a refund issued to the Defendant as the Alleged Assignor admitted that they had breached the Consumer Credit Act 1974 in relation to the Void Agreement and agreed that Interest and Charges should not be applied to the account.

DEFAULT NOTICE

15. It is disputed that due to the Defendant's breach of the Void Agreement that a default notice was sent to the Defendant on 5 September 2020 ('Alleged Default Notice'), It is disputed that the Document exhibited by the Claimant at pages [7-8] of their Witness Statement is a valid Default Notice as required under the Consumer Credit Act 1974:

i. It is disputed that the Defendant was served with a Default Notice in accordance with section 87(1) of the Consumer Credit Act 1974;
ii. It is disputed that the Defendant was required to make payment of £222.36. It is disputed that this was arrears accrued under the Void Agreement, before 26 September 2020;
iii It is disputed that the Defendant was warned that failure to remedy the breach under the Default Notice would result in the termination of the Void Agreement, rendering the full sum under the Void Agreement to be due and owing immediately.

16. It is disputed that the Defendant failed to make payment of the arrears accrued under the Alleged Default Notice. The Defendant avers that no such notice was sent and the Alleged Assignor remains in breach of Section 87(1) of the Consumer Credit Act 1974 in relation to the Void Agreement.

ASSIGNMENT OF DEBT

17. It is not disputed as per the House of Lords decision in Linden Gardens Trust Ltd v Lenesta Sludge Disposals Ltd [1993] UKHL 4, any burden, such as any dispute between the Defendant and the Alleged Assignor, is not assigned and remains an issue between those parties. Therefore, only the rights and benefits of the Void Agreement were assigned from the Alleged Assignor to the Claimant by way of a debt sale agreement.

The Defendant avers that the Claimant has, at most, an Equitable Assignment, of the Void Agreement has has no Locus Standi to bring this claim and as a matter of Common Law (the Common Law Doctrine of Privity of Contract), has no right to issue this claim:

18. It is disputed that the document exhibited by the Claimant at page [9] of their Witness Statement is a valid Notice of Assignment and was served upon the Defendant by the Alleged Assignor on or around the 23 October 2020, in accordance with the provisions of section 136 of the Law of Property Act 1925.

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.

19. It is agreed that for there to be a valid assignment of a legal debt, there must be compliance with s136(1) of the Law of Property Act 1925. This provides:

(a) the legal right to such debt or thing in action;

(b) all legal and other remedies for the same; and

(c) the power to give a good discharge for the same without the concurrence of the assignor:

Provided that, if the debtor, trustee or other person liable in respect of such debt or thing in action has notice-

It is disputed, therefore, statute simply requires the assignor to ensure that:

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.

20. It is disputed that the Notice of Assignment clearly states that the Defendant's account is owned by the Claimant, and provides the Defendant with sufficient notice pursuant to s136(1) of the Law of Property Act 1925. The Defendant avers that no such notice was GIVEN to the Defendant and notice is 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 Claimant is put to strict proof to show that the assignment is not by way of a charge and that there is a valid Sale Agreement ('Deed of Assignment') between the Claimant and the Alleged Assignor.

21. It is disputed that Notice of Assignment was sent to the Defendant's last known address at the time. It is disputed that the Claimant has no reason to believe that the Defendant did not receive the Notice of Assignment. The Defendant avers that the Alleged Witness is solely reliant on HEARSAY computer records and has not actual knowledge that the address, they assume, was used matches the Defendant's current address.

FURTHER CORRESPONDENCE

22. It is not disputed that the Claimant's solicitors have sent numerous letters to the Defendant regarding the claim from 23 October 2020, with the Defendant's responses largely reflecting his Defence. It is disputed that the sheer volume of correspondence and telephone conversations (over 100) renders it impractical to exhibit all correspondence and telephone notes to this statement, and indeed much of it is largely repetitive and not relevant to this claim. The Defendant avers that the Claimant does not wish to exhibit the amount of instances where the Defendant has asked for the simple proof of ownership of the account in question. The Defendant draws the Courts attention to Exhibit 'BB1' at the end of this witness statement that details the requests made from the Claimant.

The Defendant avers that the Claimant could have saved the Courts' and both the Defendant's and Claimant's time by simply providing the Deed of Assignment relied on in this matter.

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';

23. The Claimant claims to exhibit document they claim are relevant to the claim:

23.1 It is agreed that there have been several Subject Access Requests and multiple complaints made to and responded by the Claimant's solicitors, BW Legal, an example of which was dated 8 February 2021 shown at pages [14-17];

The Defendant avers that the Claimant's solicitors have steadfastly refused to provide evidence of assignment and have dismissed the Defendant's complaint under what appears to be a standard Corporate complaints procedure that fails to deal with the valid requests for proof made by the Defendant.

23.2 It is agreed that formal complaint of harassment was made to the Financial Ombudsman Service, which was not upheld in May 2021 as shown at pages [18-20];

The Defendant avers that the Claimant has refused despite numerous requests to provide any evidence of legal assignment and has engaged in harassment in an attempt to intimidate the Defendant into paying them without providing proof as requested.

23.3 It is disputed that multiple requests for information from the Defendant under CPR 18 and otherwise, the latest of which are exhibited to confirm that these have been fully, and repeatedly, responded to since 26 November 2020 (pages [12-30]);

The Defendant avers that CPR-18 requests made be the Defendant have not been complied with and the Claimant refuses to provide the Deed of Assignment that is required under Section 136 of the Law of Property Act 1925 and is mentioned by the Claimant in their Witness Statement and Particulars of Claim when they claim to have an assignment.

23.4 It is not disputed that a response to the Defence dated 7 September 2021 as shown at pages [31-33] was sent. It is disputed that it was sent in the hope that issues could be narrowed. The Claimant's claim that the Defendant has simply chosen to repeat himself yet again, is denied. The Defendant avers that the Claimant is well aware of their lack of Locus Standi to bring this claim.

DEFENCE - CLAIMANT'S RESPONSE

24. It is denied that the Defendant has used a proforma internet defence. It is not disputed that the Defendant submitted multiple technical arguments. It is disputed that the Claimant's Alleged Witness Statement is a statement of fact, the Defendant avers that the entire Alleged Witness Statement is hearsay. It is disputed that the responses are limited to the facts referred to by the Defendant only, with technical submissions the remit of the advocates at any final hearing.

25. It is disputed that the Defendant has chosen to "sit on the fence", neither admitting nor denying any part of the claim. It is disputed that he cannot now change his statement of case without the permission of the Court. The Defendant avers that his Defence and position has not changed and remains the case that the Claimant has no Locus Standi to bring this claim.

26. It is disputed that the Defendant has not denied entering into the Void Agreement with the Alleged Assignor within this paragraph, or at any point in the Defence. The Defendant first line of the defence is: 'Each and every allegation in the Claimants statement of case is denied unless specifically admitted in this Defence. '

27. It is disputed that the Defendant subsequently impliedly admits contractual obligations when stating "It is disputed that the Defendant has failed to make contractual payments under the terms of the Alleged Agreement". The Defendant avers that disputing this point does not imply any contractual obligation.

28. It is not disputed that the Alleged Assignor claims to have paid funds to the Defendant's HSBC Account. The Defendant avers that the Defendant entered into a Void Agreement with the Alleged Assignor in breach of the Consumer Credit Act 1974 Section 25(2B).

29. It is disputed that this is supported by the independent findings of the Financial Ombudsman Service, who were also satisfied that this debt was genuinely owned by the Defendant (pages [19-20]). The Financial Ombudsman, in dealing with the matter of harassment, stated 'only a court can look at if a debt is legally enforceable or not, it is not something I have the power to determine or not'.

The Claimant is put to strict proof to provide a copy of the Contract upon which they rely as per the Consumer Credit Act 1974

30. As the Claimant repeats paragraphs 5-9 of their Witness Statement, the Defendant repeats paragraph 5-9 of this Witness Statement.

It is disputed that the Defendant has failed to make contractual payments under the terms of the Alleged Agreement

31. It is disputed that it would seem nonsensical to refer to the Void Agreement as the Alleged Agreement in earlier submissions, then argue (if not specifically, by implication) that the Defendant has made contractual payments. It is not disputed that the claim pleaded that the Defendant failed to "maintain" contractual payments but it is disputed that the Void Agreement is legally enforceable due to a breach of Consumer Credit Act 1974 Section 25(2B).

32. The Defendant relies on the evidence set out above.

33. It is disputed that, other than the Default Notice, it is neither admitted nor denied by the Defendant that any particular document has or has not been provided, or how that provides him with a defence to the claim. The Defendant avers that the Claimant has a duty to prove their claim an Locus Standi to bring such claim, something that the Claimant has failed to provide.

WHY THE DEFENDANT IS LIABLE

34. It is therefore submitted that:

34.1 The Defendant entered into a Void Agreement with the Alleged Assignor in breach of the Consumer Credit Act 1974 Section 25;
34.2 It is disputed that the Defendant breached the terms of the Agreement by not maintaining the payments due, leading to the termination of the Void Agreement by the Alleged Assignor. The Defendant avers that the Void Agreement was void from the outset by the actions of the Alleged Assignor;
34.3 It is disputed that the Alleged Assignor subsequently assigned all rights and benefits under the Agreement to the Claimant. The Defendant avers that for any assignment to be legal it must be under the hand of the assignor (Deed of Assignment), something that the Claimant has been unable or unwilling to provide;
34.4 It is disputed that the Defendant has failed to settle their liability to the Claimant under the Void Agreement. The Defendant avers that the Claimant cannot claim any liability is due under a Void Agreement that they were not a party to.

CONCLUSION

35. The defendant respectfully invites the court to dismiss this claim and to allow such defendants costs as are permissible under civil procedure rule 27.14.

STATEMENT OF TRUTH

SIGNED

[DEFENDANT NAME]

Date: 11/02/2022

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