IN THE County Court at Northampton
CLAIM NO: *********
BETWEEN:
Cabot Financial (UK) Limited
Claimant
-and
[DEFENDANTS NAME]
Defendant
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WITNESS STATEMENT
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I, [THEIR WITNESS NAME], am employed by Cabot Financial (Europe) Limited (“Cabot Financial(Europe)”), 16-22 Grafton Road, Worthing, West Sussex, BN11 1QP, will say as follows:
1. I am employed by Cabot Financial (Europe) as a Senior Operations Manager. Cabot Financial (UK) Limited, the Claimant, in these proceedings and Cabot Financial (Europe) are companies within the Cabot Group of Companies. The Claimant has appointed Cabot Financial (Europe) as the primary managing agent and servicer of the account held by the Defendant and Cabot Financial (Europe)continues to manage and service that account in that capacity.
2. Unless it is indicated to the contrary, all the facts and matters in this statement are true and to the best of my knowledge and belief, and have come to my attention as I have had conduct of this case on behalf of the Claimant. I confirm that I am authorised to sign this statement of truth on behalf of the Claimant. Where I make legal arguments, refer to statutes or case law, I do so with the advice of the Claimant’s solicitor Mortimer Clarke Solicitors (“MCS”).
3. In this statement I will refer to various documents, true copies of which are contained in the paginated bundle exhibited to this statement marked “JK1”.
Background of the Claim
4. On 08/02/2016 the Defendant entered into a Unsecured Loan Agreement, with Oakbrook Finance LTD trading as Likely Loans (“Oakbrook”)(the “Agreement”). A copy of the Agreement is contained in the paginated bundle at pages 1 to 13. The Agreement commenced on 08/02/2016 following an electronic application made by the Defendant on 05/02/2016. The Agreement was for a loan of £4,500.00 over a period of 36 months, with a total of £8937.36 to be repaid.
5. The Defendant initially maintained his repayments but missed a number of them. Enclosed at pages 14 to 19 is a statement of account showing the history of payments.
6. The Defendant was served with a Default Notice by Oakbrook on 24/10/2017. A copy is enclosed at pages 20 to 23. He did not rectify the default and at the conclusion of the agreed contract term on 08/02/2019, there were arrears outstanding in the sum of £4,716.94 which the Defendant remains contractually bound to repay. The Defendant has not done so.
7. On 11/01/2019 Oakbrook assigned to the Claimant, absolutely, all amounts due from the Defendant to Oakbrook pursuant to the Agreement. The Defendant was provided with notice of the said assignment on 05/02/2019. A copy of the Notice of Assignment is contained in the paginated bundle at pages 24 to 27.
8. The Claimant wrote to the Defendant to ask him to address the outstanding balance. On 21/02/2019, 12/03/2019, 25/04/2019, and 26/09/2019, the Defendant sent to the Claimant templated letters that appeared to be from the internet, disputing the debt and requesting documentation. As the Claimant had to request the documents from Oakbrook there was a delay. On 11/06/2019 and 09/01/2020, the Claimant sent to the Defendant their dispute resolution letter. A copy of the letters are attached in the paginated bundle at pages 28 to 52.
9. The Defendant then ceased further contact. The Claimant wrote to him to ask him to address the matter. Copies of its letters are enclosed at pages 53 to 57.10. On 29/06/2020 and 08/07/2020, MCS wrote to the Defendant asking him to address the balance. Copies of the letters are attached in the paginated bundle at pages 58 to 62.
11. The Defendant contacted MCS disputing the balance and MCS responded accordingly. Copies of MCS and the Defendant’s correspondence can be found at pages 63 to 72.
12. The Claimant instructed MCS to commence legal proceedings against the Defendant. The Claimant understands that MCS wrote to the Defendant on 04/09/2020 to give notice of its instructions to issue a Claim. A copy of this letter can be found in the attached bundle at pages 73 to 84.
13. On 26/10/2020, the Defendant contacted MCS and spoke with a Litigation Customer Consultant. He informed them that he was still awaiting the Deed of Assignment. He was informed that he was sent all documentation in relation to the Claimant’s claim. The Defendant informed them that he still disputes the debt.
14. On 10/12/2020, MCS sent to the Defendant a further letter informing him of their instructions to issue a Claim. A copy of this letter can be found in the attached bundle at pages 85 to 96
15. On 14/01/2021 County Court proceedings were issued against the Defendant at County Court Business Centre. Enclosed at page 97 is a copy of MCS’ file copy of the claim form containing the details which were provided to the Court.
The Defendant’s defence
16. The Defendant’s defence is long and is a commonly seen template, rather than a document from his own words or experience. He requests documentation and seeks to put the Claimant to strict proof of all aspects of the debt and claim. A copy of the Defendant’s defence is attached in the paginated bundle at pages 98 to 101.
The Claimant’s position
17. The Claimant’s position is that the defence does not constitute a valid defence to this claim. This matter is a simple debt claim and the Claimant has provided the Defendant with all of the same evidence exhibited alongside this witness statement on multiple occasions.
Agreement
18. This Agreement was entered electronically by the Defendant – a copy of the executed Agreement has been exhibited at pages 1 to 13 and has been provided to the Defendant on multiple occasions. This documentation clearly evidences the Agreement.
19. The Claimant would rely on the Court’s findings in the High Court matter of
Bassano v Toft and others [2014] EWHC 377 (QB) (26 February 2014). In this case Popplewell J held that:
“There is therefore nothing in the CCA to suggest that regulated agreements should not be capable of electronic signature; and I can see no reasons of policy why a signature should not be capable of being affixed and communicated electronically to an agreement regulated by the Act.”
20. The Court further found that “Providing it is the space in the document indicated for the purpose, "I Accept" can therefore constitute a valid signature because the word "I" can be treated as unambiguous of the person agreeing to be bound by the terms of the document.
Default Notice
21.A copy of the Default Notice sent by Oakbrook to the Defendant in accordance with section 87 CCA is enclosed at pages 20 to 23. The statement of account at pages 14 to 19 clearly evidences that the Agreement ended with the claimed sum of £4,716.94 outstanding and shows which payments were missed. As with the Agreement, copies of these documents were provided to the Defendant on multiple occasions prior to the issuing of proceedings.
Assignment
22.Section 136 Law of Property Act 1925 states: “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…”.
23. The Claimant has complied with its statutory obligations by sending the Defendant notice of assignment. Notice of the assignment was sent to the Defendant on 05/02/2019 by both the assignor, Oakbrook, and the assignee, the Claimant, by first class post (pages 24 to 27).
24. There is no statutory obligation for the Claimant to provide a copy of the Deed of Assignment, requested by the Defendant. The Deed of Assignment is a confidential agreement between the Claimant and Oakbrook, relating to a number of different agreements with different individuals. It is commercially sensitive, and disclosure would be disproportionate to these proceedings. The Deed itself does not contain any personal data relating to these individuals, but references electronic data transferred from the assignor to the assignee; this data is the data from which the Defendant’s ‘account’ is created.
25. The Defendant has misquoted the Van Lynn case (which did not take place in the ‘Supreme Court’), and disregarded other more recent cases which have clarified the matter; for example the case of Mitchell McFarlane and Partners Ltd –v Foremans Ltd [2002] in which it was said that “Van Lynn suggests that ... (a debtor) … may be entitled to ask reasonable questions to ensure that he can safely pay the assignee. This would be particularly so where the Notice comes from the assignee… in such circumstances… some kind of confirmation from the assignor/original creditor may be necessary in order to achieve the requisite degree of certainty”. In this case the Defendant has been notified of the assignment by both Oakbrook and the Claimant and is able to ensure the validity of the assignment by verifying this with Oakbrook at any time.
26. The Defendant’s reference to section 196 of the Law of Property Act is misconceived; he has not explained his reference, but this section of the act refers to how notice should be given; section 196(1) states: “Any notice required or authorised to be served or given by this Act shall be in writing.”
27. It is noteworthy that section 136 requires that notice of the assignment be given, not that it be served – the two are clearly distinguished from each other in section 196. The remainder of section 196 relates only to notices which must be served and is thus not relevant to a notice of assignment.
28. The Defendant alleges that he is entitled to a copy of the Deed of Assignment and if sensitive, the document can be redacted; the Defendant refers to case of Henry Webster and others v The Governors of the Ridgeway Foundation School [2009] EWHC 1140 (QB). The Claimant would say that this case merely discusses whether it is proportionate to disclose an unredacted copy of a document; it does not state that a party must disclose a redacted copy of the document merely because the other side has demanded it.
29.Similarly, the Defendant’s references to other statutes and cases are unexplained and misconceived. The Claimant has complied with all relevant requirements in the assignment process and has appropriately notified the Defendant of this. A debtor is not entitled to challenge an assignment between two other parties merely because they are unhappy that it has occurred.
Particulars of Claim/Pre-Action Protocol
30. The Claimant acknowledges that its particulars of claim are brief. However, it is unclear on what basis the Defendant believes they are not clear or concise. This is a simple debt claim, the Claimant has written to the Defendant on numerous occasions to provide him with opportunities to respond or to address the debt, but he has ignored all attempts to resolve the matter. In these circumstances the Claimant considers that the simple particulars sufficiently describe the debt in question.
31. The Defendant’s reference to the ‘Pre-action Conduct protocol’ is similarly unclear. As a simple debt claim the Claimant has followed the Pre-Action Protocol for Debt Claims; a specific letter before claim containing all of the wording and information set out by this protocol was sent to the Defendant by MCS on 04/09/2020 and 10/12/2020. Copies can be found at pages 73 to 84 and 85 to 96.
Summary
32. It is clear that the Defendant has no real dispute or defence to this debt; his repeated template requests for documentation, whilst ignoring the Claimant’s responses, serve no purpose but to delay these proceedings and enforcement of this simple debt claim. The Defence is a template and contains numerous inaccurate references to cases and legislation, specifically for the purpose of overcomplicating what is a simple matter.
33. The Defendant entered into the Agreement with Oakbrook, failed to make all of the agreed payments, and the outstanding debt has been assigned to the Claimant.
34. The Claimant has acted in good faith throughout these proceedings and has offered the Defendant ample opportunities to engage and to address this matter on an amicable basis and without Court action.
Conclusion
35. For the reasons set out above I invite this Court to strike out the Defence and grant the Claimant Judgment in the sum claimed of £4,716.94 together with fixed costs and disbursements equating to £828.00 (Court issue fee £185.00, Solicitors costs
£80.00, Hearing fee £335.00 and Advocacy fees of £228.00 (inclusive of VAT)).
36. Despite this matter being heard in the Small Claims Track where costs would usually be limited to fixed costs, the Claimant is entitled to recovery of its advocacy costs in this matter under the terms of the Agreement – I refer to term 4.2 of the Agreement (pages 4 and 10). These proceedings and costs would have been avoided had the Defendant engaged with the Claimant in good faith.
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
Dated 04/05/2021
[THEIR "WITNESS" NAME]
IN THE County Court at Northampton
CLAIM NUMBER: ***********
BETWEEN:
[DEFENDANTS NAME]
DEFENDANT
and
Cabot Financial (UK) Limited
CLAIMANT
______________________
WITNESS STATEMENT
OF [DEFENDANTS NAME]
______________________
I, [DEFENDANTS NAME], of [DEFENDANTS ADDRESS], will say as follows:
INTRODUCTION
1. I am the defendant in this case. The contents of this statement are true to the best of my knowledge, information and belief. I make this witness statement in response to the filing of a Witness Statement by Julian Kent (the ‘Alleged Witness’) on 4th May 2021 and as instructed by the court.
The Alleged Witness states in his statement that his is employed by Cabot Financial (Europe) as a Senior Operations Manager. Cabot Financial (UK) Limited, the Claimant, in these proceedings and Cabot Financial (Europe) are companies within the Cabot Group of Companies. The
Claimant has appointed Cabot Financial (Europe) as the primary managing agent and servicer of the account held by the Defendant and Cabot Financial (Europe) continues to manage and service that account in that capacity.
The Defendant draws the Courts attention to the fact that the Claimant is not registered with the Financial Conduct Authority. The Defendant avers that the Claimant is in breach of Financial Services and Markets Act 2000, as a general principle of law that the Claimant, a debt purchaser, is not able to rely on the FCA authorisation of an affiliated 3rd party ( paragraph 55 of the Schedule to the Financial Services and Markets Act 2000 (Exemption) Order 2001) for the purpose of bringing a claim.
2. Unless it is indicated to the contrary, all the facts and matters in this statement are true and to the best of my knowledge and belief.
It is disputed that the Alleged Witness bases any of her statement on actual fact witnesses and the Defendant avers that her entire statement is based on hearsay evidence from the computer system of the Claimant and the computer system of Oakbrook Finance LTD trading as Likely Loans (the ‘Alleged Assignor’).
The failure of such systems have been brought to light by the recent case where sub- postmasters were acquitted of Fraud after false convictions based solely on the data from a computer system that generated erroneous data:
https://www.computerweekly.com/news/252475611/Subpostmasters-proved-right-on-IT-system-failures-as-calls-for-full-public-inquiry-mount
It is my understanding that the Claimant must serve notice to any hearsay evidence pursuant to CPR 33.2(1)(B) (notice of intention to rely on hearsay evidence) and Section 2 (1) (A) of the Civil Evidence Act. The Defendant avers that no such notice has been served and respectfully asks the court to dismiss the Claimants claim which is entirely based on hearsay evidence.
3. Within this statement I refer to various documents, these are now produced in bundle marked (‘NF1’), (‘NF2’), (‘NF3’) and (‘NF4).
BACKGROUND OF CLAIM
4. It is not disputed that on 08/02/2016 the Defendant entered into a Unsecured Loan Agreement, with Oakbrook Finance LTD trading as Likely Loans (the ‘Alleged Assignor’).
It is disputed that the Claimant is entitled or has any Legal Standing to issue a Claim for the benefit of an a Unsecured Loan Agreement (the ‘Agreement’) taken out with the Alleged Assignor.
It is not disputed that the Agreement commenced on 08/02/2016 following an electronic application made by the Defendant on 05/02/2016. It is not disputed that the Agreement was for a loan of £4,500.00 over a period of 36 months, with a total of £8937.36 to be repaid.
The Defendant avers that the Agreement was entered into as a result of irresponsible lending practices and in breach of the Consumer Credit Act 1974 Section 25(2B).
The Claimant is put to strict proof to provide a signed copy of the Contract upon which they rely as per the Consumer Credit Act 1974 detailing the full terms and conditions upon which the Claimant relies.
It is disputed that the Claimant has any Legal right to conduct matters in relation to Consumer Credit Agreements without proper authorisation from the Financial Conduct Authority. The Defendant draws the Courts attention to exhibit (‘NF1’) which is a printout of the Financial Conduct Authorities list of registered companies with the title ‘CABOT’. The Defendant draws the Courts attention to the Fact that the Claimant’s company is not listed.
The Defendant avers that the Claimant is in breach of Financial Services and Markets Act 2000, as a general principle of law that the Claimant, a debt purchaser, is not able to rely on the FCA authorisation of an affiliated 3rd party ( paragraph 55 of the Schedule to the Financial Services and Markets Act 2000 (Exemption) Order 2001) for the purpose of bringing a claim.
5. It is not disputed that due to the irresponsible lending practices of the Alleged Assignor, that the Defendant initially maintained his repayments but missed a number of them.
6. It is not disputed that the Defendant was served with a Default Notice by the Alleged Assignor on 24/10/2017. It is not disputed that the Defendant did not rectify the default and at the conclusion of the agreed contract term on 08/02/2019, there were arrears outstanding in the sum of £4,716.94. It is disputed that the Defendant remains contractually bound to repay. The Defendant has made a complaint of irresponsible lending to the Alleged Assignor which is the subject a formal investigation by the Financial Ombudsman.
7. It is disputed that on 11/01/2019 Oakbrook assigned to the Claimant, absolutely, all amounts due from the Defendant to the Alleged Assignor pursuant to the Agreement due to the constraints of:
l (i) Section 44 of the Companies Act 2006;
l (ii) The Regulatory Reform (Execution of Deeds and Documents) Order 2005
(S.I.2005/1906), arts. 1(1),3;
l (iii) Section 136 of the Law of Property Act 1925; and;
l (iv) Section 196 of the Law of Property Act 1925.
The Claimant is put to strict proof to provide a copy of the Sale Agreement (the 'Deed of Assignment') they rely on to establish Legal assignment from the Alleged Assignor
to the Claimant. The Claimant is put to strict PROOF to show that all three elements of Legal Assignment are satisfied:
l a. that the assignment is absolute and not by way of a charge;
l b. that it is in writing under the hand of the assignor (the 'Deed of Assignment');
l c. and that express notice in writing has been given to the debtor
It is disputed that any Notice of Assignment was sent to the current residence of the Defendant. The Claimant is put to strict proof to show that Notice of Assignment has been served in compliance with Section 196 of the Law of Property Act 1925, by registered mail.
It is disputed that the Defendant was provided with notice of the said assignment on 05/02/2019. It is disputed that the document exhibited by the Claimant at pages 24 to 27 was given to the Defendant as one of the THREE conditions required under Section 136 of the Law of Property Act 1925.
8. It is not disputed that the Claimant, using template letters, wrote to the Defendant to ask him to address the outstanding balance on 21/02/2019, 12/03/2019, 25/04/2019, and 26/09/2019. It is not disputed that the Defendant sent to the Claimant letters, the origin of which are irrelevant, disputing the debt and requesting documentation.
It is noted that as the Claimant had to request documents from the Alleged Assignor there was a delay. It is not disputed that on 11/06/2019 and 09/01/2020, the Claimant sent to the Defendant their dispute resolution letter. A copy of the letters are attached in the paginated bundle at pages 28 to 52.
It is disputed that the letter sent by the Claimant addressed the points raised in the Defendant’s letter. Notably the Claimant failed to provide any proof of Legal ownership of the Agreement as requested in the Defendant’s letters exhibited at (‘NF2’). The first letter sent by the Defendant was a ‘CONDITONAL ACCEPTANCE’ that if the Claimant provided PROOF of ownership of the account the Defendant would provide remedy to any outstanding balance. This offer was not taken up by the Claimant who steadfastly refuses to provide any evidence of their LEGAL standing in this matter.
9. It is not disputed that following THREE letters requesting the necessary documents from the the Claimant, the Defendant issued a Notice of Irrevocable Estoppel and then ceased further contact.
It is not disputed that he Claimant ignored all THREE letters including an Irrevocable Estoppel and Cease and Desist notice and continued to write to him to ask him to address the matter. The Defendant avers that the Claimant purchases what is know as ‘junk’ or ‘zombie’ debt on an Equitable basis and does not meet the THREE requirements for a Legal Assignment as required under Section 136 of the Law of Property Act 1925. The Defendant avers that the Claimant is purchasing accounts by way of a charge, they do not have a sale agreement under the hand of the Alleged Assignor and they have not given notice of Assignment by registered mail as required under Section 196 of the Law of Property Act 1925.
11. It is not disputed that the Defendant contacted MCS disputing the balance. It is disputed that MCS responded accordingly. Copies of MCS and the Defendant’s correspondence can be found at pages 63 to 72.
12. It is not disputed that MCS wrote to the Defendant on 04/09/2020 to give notice of its instructions to issue a Claim.
13. It is not disputed that on 26/10/2020, the Defendant contacted MCS and spoke with a Litigation Customer Consultant. He informed them that he was still awaiting the Deed of Assignment.
It is not disputed that the Defendant was informed that he was sent all documentation that the Claimant was prepared to send in relation to the Claimant’s claim. The Defendant disputes that the Claimant has any right or Legal standing to issue a claim and has consistently refused t provide the Deed of Assignment as required under the Law o Property Act 1925.
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."
14. It is not disputed that on 10/12/2020, MCS sent to the Defendant a further letter informing him of their instructions to issue a Claim.
15.It is a matter of record that on 14/01/2021 County Court proceedings were issued against the Defendant at County Court Business Centre. The Defendant avers that the Claim was issued despite the Claimant having no Legal Standing to issue such a claim.
THE DEFENDANT’S DEFENCE
16. It is disputed that the Defendant’s defence is long and is a commonly seen template, rather than a document from his own words or experience. It is the Claimant’s Particulars of Claim which are a template and if the Claimant is going to use the same template for every claim, they should expect similar responses when individuals draft responses to their template.
It is not denied that the Defendant requests documentation and seeks to put the Claimant to strict proof of all aspects of the debt and claim. It is not disputed that a copy of the Defendant’s defence is attached in the paginated bundle at pages 98 to 101 of the Claimant’s bundle.
THE CLAIMANT’S POSITION
17. It is disputed that that the defence does not constitute a valid defence to this claim. The Claimant would like to view this matter is a simple debt claim and seeks to brush important LEGAL points under the carpet.
It is not disputed that the Claimant has provided the Defendant with all of the same evidence exhibited alongside this witness statement on multiple occasions. The Defendant avers that the Claimant’s refusal to provide the Deed of Assignment is because the Claimant does not have a valid legal assignment. Even when drafting their witness statement the Claimant did not see to include eve a redacted copy of te Deed of Assignment they are relying on in this matter to demonstrate their Legal Standing to issue a claim.
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;
Agreement
18. It is not disputed that the Agreement was entered electronically by the Defendant It is disputed that this documentation clearly evidences the Agreement. The Defendant avers that the Agreement was entered into as a result of irresponsible lending practices and in breach of the Consumer Credit Act 1974 Section 25(2B).
19. It is disputed that the Claimant can rely on the Court’s findings in the High Court matter of Bassano v Toft and others [2014] EWHC 377 (QB) (26 February 2014). In
this case Popplewell J held that: “There is therefore nothing in the CCA to suggest that regulated agreements should not be capable of electronic signature; and I can see no reasons of policy why a signature should not be capable of being affixed and communicated electronically to an agreement regulated by the Act.”
A signature can be attached with a Digital Signature if the document is digitally signed but a simple electronic signature such as a tap on a mouse is not sufficient to identify the person signing. For example a cat could accidentally tap a mouse button but would be unable to for a proper Digital signature.
The Defendant avers that the Claimant is debt purchase company that is not registered with the Financial Conduct Authority and takes no effort to ensure that accounts that it purchases are compliant in any way with the Consumer Credit Act 1974. The Defendant avers that by attempting to rely on a simple electronic signature the Claimant is attempting to claim compliance with the Consumer Credit Act that the Alleged Assignor was simply not compliant with.
See; [PRA Group (UK) Limited v Mayhew] at Central London County Court on 22nd March 2017 - Where Recorder Bellamy held that even dispite PRA providing a Reconsituted Agreement, it was viewed as "irredeemably unenforceable" and despite providing unredacted Deeds of Assignment "no assignment was proved".
20. It is disputed that the Court was giving mind to an simple electronic signature when they further found that “Providing it is the space in the document indicated for the purpose, "I Accept" can therefore constitute a valid signature because the word "I" can be treated as unambiguous of the person agreeing to be bound by the terms of the document.
DEFAULT NOTICE
21.It is not disputed that a copy of the Default Notice sent by the Alleged Assignor to the Defendant in accordance with section 87 CCA is exhibited by the Claimant at pages 20 to 23 of their bundle. It is disputed that the statement of account at pages 14 to 19 clearly evidences that the Agreement ended with the claimed sum of £4,716.94 outstanding and shows which payments were missed. It is not disputed that copies of these documents were provided to the Defendant on multiple occasions prior to the issuing of proceedings but it is disputed that these documents are any evidence of the Legal Standing of the Claimant to issue a claim. The Claimant has refused to provide simple documents that would have resolved any controversy and would have settled the matter before the issuing of any claim. The Defendant avers that the Claimant’s refusal to provide the Deed of Assignment is because the Claimant is not compliant with the Law of Property Act 1925 and has no Legal standing to issue a claim.
ASSIGNMENT
22.Section 136 Law of Property Act 1925 states: “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…”.
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 all three elements of Legal Assignment are satisfied:
a. that the assignment is absolute and not by way of a charge;
b. that it is in writing under the hand of the assignor (the 'Deed of Assignment');
c. and that express notice in writing has been given to the debtor, as required under Section 196 of the Law of Property Act 1925, by registered mail.
23. It is disputed that the Claimant has complied with its statutory obligations by sending the Defendant notice of assignment. It is disputed that Notice of the assignment was sent to the Defendant on 05/02/2019 by both the Alleged Assignor and the alleged assignee, the Claimant, by first class post (pages 24 to 27). The Defendant avers that notice alone does not demonstrate compliance with Section 136 of the Law of Property Act 1925. The Notice should be sent by registered mail to be complaint with Section 196 of the Law of Property Act 1925 an would only satisfy one of the THREE requirements of Section 136. The Claimant makes no attempt to show that the assignment is not by way of a charge and has failed to demonstrate any sale agreement under the hand of the Alleged Assignor.
24. It I disputed that there is no statutory obligation for the Claimant to provide a copy of the Deed of Assignment, requested on numerous occasions by the Defendant. It is disputed that the Deed of Assignment is a confidential agreement between the Claimant and the Alleged Assignor, relating to a number of different agreements with different individuals. It is disputed that the Deed of Assignment is commercially sensitive, and disclosure would be disproportionate to these proceedings. The Defendant stated in letters sent to the Claimant exhibited at (‘NF2’) that the Claimant could redact any sensitive information contained within documents as long as reference the Defendant’s account was clearly visible:
See: [PRA Group (UK) Limited v Mayhew (2017)] at Central London County Court on 22nd March 2017 - Where Recorder Bellamy held that even dispite PRA providing a Reconsituted Agreement, it was viewed as "irredeemably unenforceable" and despite providing unredacted Deeds of Assignment "no assignment was proved".
It is disputed that he Deed itself does not contain any personal data relating to these individuals, but references electronic data transferred from the assignor to the assignee; this data is the data from which the Defendant’s ‘account’ is created.
If the Claimant has a valid Deed of Assignment, they could have redacted out any sensitive information and provided the document when first asked. The Defendant avers that the Claimant has no valid Deed of Assignment and showing the document upon which they rely would demonstrate they have no valid Legal Assignment and no standing to issue this Claim.
25. It is disputed that he Defendant has misquoted the Van Lynn case (which did not take place in the ‘Supreme Court’). The case was heard in the Supreme Court and details are as follows:
[1968] EWCA Civ J1009-1
In The Supreme Court of Judicature
Court of Appeal
Between
Van Lynn Developments Limited - Plaintiffs Respondents
and
Pelias Construction Company Limited (formerly Jason Construction Company Limited) - Defendants Appellants
Royal Courts of Justice
Wednesday, 9th October 1968
Before
The Master of the Rolls (Lord Denning)
Lord Justice Davies and
Lord Justice Widgery
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';
It is disputed that the Defendant has disregarded other more recent cases which have clarified the matter; for example the case of Mitchell McFarlane and Partners Ltd –vForemans Ltd [2002] in which it was said that “Van Lynn suggests that ... (a debtor) … may be entitled to ask reasonable questions to ensure that he can safely pay the assignee. This would be particularly so where the Notice comes from the assignee… in such circumstances… some kind of confirmation from the
assignor/original creditor may be necessary in order to achieve the requisite degree of certainty”. It is disputed that in this case the Defendant has been notified of the assignment by both the Alleged Assignor and the Claimant and is able to ensure the validity of the assignment by verifying this with the Alleged Assignor at any time.
The Defendant cites the same case that the Claimant seeks to rely to show that as an Equitable Assignor, the Claimat cannot bring and action at law: [Mitchell Mcfarlane & Partners Ltd v Foremans Ltd (2002)] - "Even If I had held that notice of assignment had not been given, I do not think that this would have made any difference. As an equitable assignee Foremans could not have brought an action at law without joining the assignor, old Foremans."
The Defendant avers that the Claimant has failed to provide any evidence of their Legal Standing to issue this Claim and respectfully requests the Court strike out the Claimant’s claim.
26. It is disputed that the Defendant’s reference to section 196 of the Law of Property Act is misconceived; he has not explained his reference, but this section of the act refers to how notice should be given; section 196(1) states: “Any notice required or authorised to be served or given by this Act shall be in writing.”
Section 196 Section 4 states:
(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
27. It is noted that the Claimant distinguishes between the wording of Section 136 of the Law of Property Act 1925. It is noteworthy that section 136 requires that notice of the assignment be given, not that it be served – the two are clearly distinguished from each other in section 196. The remainder of section 196 relates only to notices which must be served and is thus not relevant to a notice of assignment. The Defendant avers that the intent of the act is for the document to be handed directly to the debtor and not sent by standard mail. The Defendant avers that given is a form of service and the Claimant is not compliant with this or any of the other TWO requirements of Section 136 of the Law of Property Act 1925.
28. It is agreed that the Defendant alleges that he is entitled to a copy of the Deed of Assignment and if sensitive, the document can be redacted; the Defendant refers to case of Henry Webster and others v The Governors of the Ridgeway Foundation School [2009] EWHC 1140 (QB). It is disputed that this case merely discusses whether it is proportionate to disclose an unredacted copy of a document. This case demonstrates that a Claimant can redact sensitive information from a document if they are concerned about disclosing sensitive information. The Defendant avers that the Claimant is refusing to disclose the document because they have no valid Legal Assignment and no Legal Standing to bring this claim.
See; (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;
The Claimant has not seen fit to provide even a redacted copy of the Deed of Assignment and has failed to demonstrate their Legal Standing to bring this claim.
29.It is disputed that the Defendant’s references to other statutes and cases are unexplained and misconceived. It is denied that the Claimant has complied with all relevant requirements in the assignment process and has appropriately notified the Defendant of this. It is disputed that a debtor is not entitled to challenge an assignment between two other parties merely because they are unhappy that it has occurred.
The Defendant avers that the Claimant is a ‘junk’ or ‘zombie’ debt purchase company that purchases accounts on one sale agreement by way of a Charge specifically against Section 136 of the Law of Property Act 1925. The Claimant is put to strict proof to show that all THREE elements of Legal Assignment are met:
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.
Particulars of Claim/Pre-Action Protocol.
30. It is noted that the Claimant acknowledges that its particulars of claim are brief. It is disputed that it is unclear on what basis the Defendant believes they are not clear or concise.
The Claimant repeats his claim that this is a simple debt claim, this is disputed. A simple matter would be if no assignment had been claimed and the Claimant had lent money to the Defendant. This is not the case and if the Claimant is going to conduct debt purchase activities within the UK they should comply with relevant statutes in regards to those activities. The Claimant suffers no loss due to the actions of the Defendant and only has itself to blame for non compliance with statutes.
It is not disputed that the Claimant has written to the Defendant on numerous occasions to provide him with opportunities to respond or to address the debt.,It is denied that the Defendant has ignored all attempts to resolve the matter.
It is disputed that that the simple particulars sufficiently describe the debt in question.
The Defendant avers that the Claimant would like to view this matte as simple and routine to avoid scrutiny on the Legal points that the Defendant has raised.
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 account number in relation to the Alleged Agreement
b. on which date(s) the Defendant had allegedly failed to maintain payments in relation to the Alleged Agreement;
c. the exact date when Alleged Assignor terminated the Alleged Agreement and gave notice of the same;
d. if the Claimant intends to rely on hearsay evidence;
e. the date that the Claimant claims a Default Notice was served in relation to the Alleged Agreement pursuant to CCA s. 87 & 88 (1);
f. the date(s), if any, that the Claimant served Notice of Assignment for the alleged Assignment of the Alleged Agreement.
g. the method of service of any Notice of Assignment and if compliant with Section 196 of the Law of Property Act 1925, sent by registered mail;
h. whether the Claimant is relying on an Equitable Assignment or a Legal Assignment; and;
i. That the Pre-action Conduct protocol has been 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.
31. It is denied that the Defendant’s reference to the ‘Pre-action Conduct protocol’ is similarly unclear. It is denied that the Claimant has followed the Pre-Action Protocol for Debt Claims; a specific letter before claim containing all of the wording and information set out by this protocol was sent to the Defendant by MCS on 04/09/2020 and 10/12/2020. Copies can be found at pages 73 to 84 and 85 to 96.
That the Pre-action Conduct protocol has ben complied with 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.
SUMMARY
32. It is denied that the Defendant has no real dispute or defence to this debt.
It is denied that repeated requests for documentation, serve no purpose but to delay these proceedings and enforcement of this not so simple debt claim. It is denied that the Defence is a template and contains numerous inaccurate references to cases and legislation, specifically for the purpose of overcomplicating what is a simple matter. The Defendant avers that this matter could have been resolved when the Defendant sent a letter asking for the relevant documents, including but not limited to the Deed of Assignment. The Claimant’s refusal to provide such basic proof of ownership of the account has lead the Defendant to question other aspects of the Claimant’ legal standing.
The Defendant avers that the Claimant is in breach of Financial Services and Markets Act 2000, as a general principle of law that the Claimant, a debt purchaser, is not able to rely on the FCA authorisation of an affiliated 3rd party ( paragraph 55 of the Schedule to the Financial Services and Markets Act 2000 (Exemption) Order 2001) for the purpose of bringing a claim.
33. It is not disputed that the Defendant entered into the Agreement with the Alleged Assignor and failed to make all of the agreed payments. It is disputed that the outstanding debt has been assigned to the Claimant. The Claimant has provided no evidence despite numerous requests of a valid Legal Assignment.
34. It is disputed that the Claimant has acted in good faith throughout these proceedings and has offered the Defendant ample opportunities to engage and to address this matter on an amicable basis and without Court action. The Claimant could have resolved this matter long before any court action and has brought a case without even showing he basic Legal requirements to do so.
Conclusion
35. For all of the above reasons, the Defendant respectfully submits that the Claimant Claim is without merit and should never have been issued in Court of Law.
See (Mitchell Mcfarlane & Partners Ltd v Foremans Ltd 2002) - "Even If I had held that notice of assignment had not been given, I do not think that this would have made any difference. As an equitable assignee Foremans could not have brought an action at law without joining the assignor, old Foremans."
The sum claimed of £4,716.94 together with fixed costs is disputed.
Disbursements equating to £828.00 (Court issue fee £185.00, Solicitors costs
£80.00, Hearing fee £335.00 and Advocacy fees of £228.00 (inclusive of VAT)) are disputed both whole and in part.
36. It is disputed that the Claimant is entitled to recovery of its advocacy costs in this matter under the terms of the Agreement. The Claimant is not the Alleged Assignor and cannot rely on the terms of any Agreement. It is denied that these proceedings and costs would have been avoided had the Defendant engaged with the Claimant in good faith. The Defendant avers that the Claimant could have avoided any court action by supplying documents such as the Deed of Assignment when requested to do so on numerous occasions. See exhibit (‘NF2’).
The Defendant avers that the Claimant has no Legal standing to bring this claim and seeks betterment by bringing a claim for the benefit of an account they purchased on an Equitable basis and the Claimant’s case is entirely bases on
hearsay evidence. 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.
The Defendant has also made repeated requests to the Claimant’s solicitors for a copy of the Deed of Assignment relied on by the Claimant in this case. The Defendant cites exhibit (‘NF5’) which is a CPR-18 request for the Deed which was not complied with . The Defendant respectfully asks that the Claimants Claim be struck out for failure to comply with CPR-18.
The Defendant reserved the right to cross examine any Alleged Witness relied on by the Claimant in the case in relation to what they claim to have witnessed first hand.
I would also like to take this opportunity to remind the Claimant that 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.
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.
Signed
Dated 05/05/2021
[DEFENDANTS NAME]