Example Mobile Defence

The Defendant contends that the particulars of claim are vague and generic in nature. The Defendant accordingly sets out its case below and relies on CPR r 16.5 (3) in relation to any particular allegation to which a specific response has not been made.

1. The Defendant entered into an agreement with vodafone. The defendant was promised that they would receive 4G coverage at there home address which vodafone failed to provide and as such were in breach of contract. Because of this said service was not fit for purpose. The contract was therefore disputed and terminated.

2. Paragraph 2 is denied. The Defendant denies failing to maintain the required payments to vodafone . It is not admitted that any valid Default Notice was ever served. It is denied that I have failed to respond to demands for payment sent by the claimant and/or its agents. The Claimant is put to strict proof that any such demands have been sent to me by the claimant.

3. Paragraph 3 is denied with regards to the Defendant being informed the Agreement was assigned to the Claimant. Claimant has yet to disclose any such documentation as requested by CPR 31.14

4. Paragraph 4 is denied in regards that the claimant is misleading the court in its pleadings and has never made contact or made requests prior to issuing this claim. Its sole purpose in purchasing this debt was to litigate and secure a county court Judgment and therefore Pre Action Protocol was never attempted and should be considered in deciding the outcome of their claim

Therefore the claimant is put to strict proof to:

(a) show how the Defendant has entered into an agreement/contract; and

(b) show proof the Defendant was sent default notice and termination notice/demand notices; and

© show how the Claimant has the legal right, either under statute or equity to issue a claim; and

(d) show how the Defendant has reached the amount claimed for.

5. As per Civil Procedure Rule 16.5(4), it is expected that the Claimant prove the allegation that the money is owed.

6. On the alternative, as the Claimant is an assignee of a debt, it is denied that the Claimant has the right to lay a claim due to contraventions of Section 136 of the Law of Property Act and Section 82A of the consumer credit Act 1974.

7. Notwithstanding the above should the alleged amount claimed include an early termination charge(s) amounting to the entire balance of the remaining contract. OFCOM guidance states that any Early Termination Charge that is made up of the entire balance if the remaining contract is unlikely to be fair as it fails to take into account the fact that the provider no longer has to provide and pay for their service.

8. By reason of the facts and matters set out above, it is denied that the Claimant is entitled to the relief claimed or any relief.

Hi - bit of an update. Lowell has written to me informing me that they want to go to mediation and the court will contact me in due course. They have included a copy of the document they have sent to the court stating they want to try mediation. So just awaiting the actual doc from the court and I guess the phone call from mediators.

You mean they scared you by sending a copy of their N180 to you

You await yours from the court

If Lowell's DID file to the court

Go read other like threads

Ok bit of of an update:

Mediation (As expected) did not amount to anything.

Trial date has been set for Start of September. - Just received the witness statement which is....interesting

Main points - they want the defence struck out (which is not surprising) as:

I have admitted to having a contract with 02 (Which is twisting a bit what I wrote - I stated I remember getting a contract with 02 but did not recall the details.)

The assignor has confirmed I upgraded to an Iphone 4 in 2011 (Which has no evidence to support that)

and that the defence is without merit.

The evidence supplied is a screen shot from an account with no details (no name, account number just a list of payments with the final entry an write off payment) and copies of the letters sent to me. The name on all the documents are misspelt (including the court docs) and the name appears misspelt on my Credit Report.

I am putting together my witness statement which will respond to this - any ideas of what should 100% be added? Is is worth bringing up the name being wrong (only by one letter but it does change the name completely?)

The only direction the court has made is that Lowell has to provide the deed of assignment or sales agreement. Both missing from the witness statement (There is a letter from Lowell stating they are taking over the debt but nothing included from 02)

Basically any advice would be gratefully appreciated

Best to scan (redacted) and post up their witness statement and exhibits..then we can see what it states

Andy

follow the upload

ONE multipage PDF please !!

Sorry for the delay = PC issues! however attached is the PDF with their Witness Statement.

Also to add

- having checked my credit report

- their entry on my credit file is under the wrong name and all the letters the surname is spelt wrong across the board (not sure if that actually makes a difference)

thank you again for all your help

lowell WS .pdf

So on their exhibit marked as Sj12 (page 7) 10th Jan 2013 ...assigning £941.46..the letter states " details of what that amount is for are on the other side of this letter "

So you need to see that ..unless you have retained the original

Ahhh did not notice that! So when I send the Witness Statement to them at the end of the week also request this at the same time or hit them with the request tomorrow? (Have been given the date of 3rd August to supply court and other side all documents I want to rely on. Interestingly the court have requested the original documents to be brought)

Thinking about it - probably better to do it asap!

This is what I am thinking of writing to them:

RE: xxxxxxxxxxxxxxxxxxxxxxxxxxxxxx

I am writing in connection to the above case and in relation to Claim xxxxxxx

I acknowledge the receipt of your Witness Statement in regards to the above case.

I refer you to exhibit SJI2 and draw your attention to the letter dated 10th January 2013, which is unbranded, which states on paragraph 1 “Details of what that amount is for are on the other side of this letter”

I would like to request the missing page from this document, namely the break down on the back of that document.

Yours Sincerely

Possibly but it is forewarning them of your attack...we can surmise it is connected to the airtime charge and early termination fees......both which are impossible for the claimant or the OC to justify..thats why their WS quickly brushes past them without much detail....then they have the nerve to charge you a further 8% interest on this which you must counter...the court will be aware that these charge types and the recoverability thereof have been judicially declared to be susceptible to assessments of fairness under the Unfair Terms in Consumer Contracts Regulations 1999 and later CRA 2015

I personally would attack it in your witness statement and put them to strict proof to quantify and justify a breakdown of how this figure is arrived at.

After all CPR Rule 16.5(4), it is expected that the Claimant prove the allegation that the money is owed.......so let them prove it to the court thats its a valid justifiable debt.

Andy

Thats brilliant thanks Will (attempt) to draft a witness statement tomorrow and will put it up on here for feedback if thats ok

Sure no problem.....draft yours to the same layout as the claimants and attack each paragraph.

Ok this is what I have so far......(it is skin and bones at the moment!)

I, xxxxx of xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx will say the following:

Introduction:

1. I am a litigant in person.

2. The facts contained in this statement are known to me based on the information held and are true to the best of my belief.

Response to the claimants statement:

3. In regards to the request under CPR31.14 this was to confirm the debt was the defendants as all correspondence received so far has been under the name of xx and not xxxx which is the defendants name as seen by a copy of the defendants driving license attached as CS1.

4 The evidence supplied in SJI1 is not sufficient to show ownership of the debt. It has no identifying details (Name, address, Account Number).

5. In regards to evidence SJI2 the letter (unbranded) allegedly from O2 states that a full breakdown of costs is included on the reverse of the letter. Page 2 of this document is missing and therefore to date no breakdown has been supplied.

6. The Claimant suggests that the defendant has admitted entering into a contract. While the defendant has acknowledged that he has, in the past, had an account with O2, at no time has the defendant admitted entering into this particular contact, as the surnames are not correct.

7. In regards to the alleged upgrade on 7th October 2011 there has been no documentation supplied in regards to this in the claim as there should be a signed form for example if conducted in store. This, if supplied, would prove one way or another the debt as the signature on the contract would be the same as the driving license supplied (CS1).

8. Notwithstanding the above, should the alleged amount claimed include an early termination charge(s) amounting to the entire balance of the remaining contract. OFCOM guidance states that any Early Termination Charge that is made up of the entire balance if the remaining contract is unlikely to be fair as it fails to take into account the fact that the provider no longer has to provide and pay for their service.

9. As such the claimant has not provided an accurate break down of how the amount alleged to be owed has been calculated. Nor has the claimant supplied evidence that the debt is the defendants.

10. The defendant respectfully submits that the claim has not proven ownership and therefore the claim should be struck out.

Any feedback would be appreciated

Thanks again in advance

Requires a few tweaks venomex ...what date do you have to file and serve by ?

Andy

Documents need to be served by 3rd August (Was going to send special delivery to Lowell and hand deliver to court as it is 10 mins away from home), Hearing fee is due 18th August and the trial date is the 15th September. So hoping to send this on 1st via guaranteed next day delivery to Lowell.

Fine I will make a few suggestions by Monday

That would be brilliant thank you

I will watch this with interest.

whys that?

Thinking about it - probably better to do it asap!

 

This is what I am thinking of writing to them:

 

RE: xxxxxxxxxxxxxxxxxxxxxxxxxxxxxx

 

I am writing in connection to the above case and in relation to Claim xxxxxxx

I acknowledge the receipt of your Witness Statement in regards to the above case.

I refer you to exhibit SJI2 and draw your attention to the letter dated 10th January 2013, which is unbranded, which states on paragraph 1 “Details of what that amount is for are on the other side of this letter”

I would like to request the missing page from this document, namely the break down on the back of that document.

 

Yours Sincerely

Did you put this on hold venomex ?

I think in this instance it may be worth sending an email to request sight of this document...as they are relying on it as evidence then it must be disclosed.

Andy

I did hold off it in the end but happy to send an email over to them if you think it will help

Also is it worth mentioning in the email, in passing, that they have the wrong name?

Yes I think in this instance it would be advantageous to prove you have requested the missing page.Its your choice re the name.....thats the claimants responsibility when tracing and issuing the claim.

Ok - going to give them a ring for the email address (as seems to be missing) and then email them in a moment

Ok so have rung them - did drop in that the name was wrong (came up during "security check") - they wanted to deal with it over the phone but insisted on email addy and now have sent an email (as above) to request the missing page. Will update when I hear back