Particulars of Defence
Key: Notes in the form E1, E2 etc within brackets denote copies of communications between ITC and myself that will be presented in court. Copies have already been provided to the claimant.
1. The chargeback was issued by the credit card company (
lloydstsb
) after receiving and considering my written and photographic evidence to support a Section 75 Consumer Credit Act “equal liability” claim rather than as detailed in the ‘Brief Details of Claim’. Does this mean the credit card company should have been named as the defendant? Aren’t they equally and severally liable? ITC’s claim (if any) should have been directed at LloydsTSB.
2. In ‘Brief details of claim’ ITC say they see the goods as stolen. Why didn’t they inform the police? Were they obliged to do so before going to court?
3. Again in ‘Brief details of claim’ they say that I refused to return the goods. Apart from the fact that they never directly demanded that I return the goods (they just proposed offers by an unaccepted method), I considered the matter resolved as I had received the refund from the credit card company in response to the S.75 CCA claim.
4. ITC asked if I wanted to return the non-English and damaged items and claimed that the units had been ‘booked in wrong’ (E3) on their system ie they were booked in and sold as new English units when in fact they were non-English, second-hand, damaged, scratched, faulty, non functional and some were not the correct model. In short, many of the items were pretty much junk, especially in the UK market.
5. 24/11/05 - I provided provisional details of condition/status of the shipment and asked for a partial refund (E6,E6A)
6. 28/11/05 – I asked for an update (E7)
7. 29/11/05 – I proposed a settlement and threatened a S.75 CCA claim (E8)
8. 30/11/05 – After having had no response (to E6, E6A, E7, E8) from ITC I sent email (E9) to inform them that I was had started an S.75 CCA claim.
9. 20/01/06 - Two months later ITC confirm receipt (E10) of my previous emails (E1, E2, E4) so emails were getting through to them. ITC then claimed that all the following emails (E6, E6A, E7, E8, E9) were not received by them which seems unlikely as previous emails were acknowledged and I had received no “failure to deliver” messages.
10. 20/01/06 – I provide copies of ‘failed’ emails to ITC (E11).
11. 20/01/06 – ITC deny originally receiving the ‘failed’ emails (E12).
12. 20/01/06 – ITC ask if I tried to contact them by phone.
13. 21/01/06 – I confirmed that I’d tried to contact them by phone but had been
fobbed off. As they’d claimed that there were numerous failures to deliver while communicating via email I requested that any further communication be by recorded delivery (E14).
14. 23/01/06 – Email communication received (and disregarded) from ITC. Email is now considered unreliable + the situation is being dealt with by my credit card company. Too little too late from ITC.
15. 02/03/06 – Just over a month later, I email ITC (E16) and include a copy (E16A) of the document I provided to the credit card company in support of my S.75 CCA claim. This was a courtesy/backup copy. The main copy was sent by post direct from the credit card company. It amounted to a final invitation to settle.
16. 02/03/06 – Nearly 4 months since I first reported a problem and after I have rejected email as an accepted method of communication, I receive the first firm offer of a refund (E17). As far as I’m concerned it’s too little too late again. By this stage I have already purchased items to make most of these units functional and other items to include in a package of sale in an attempt to mitigate my losses. Returning them is no longer an option as I would also have to return the other items that make up each package to the respective suppliers. I’m under a duty to mitigate my losses so selling the units was a reasonable step. Also, I have already received a partial refund from the credit card company so at this date I consider the matter closed.
17. 02/03/06 – I emailed back (E18), explaining once again that email was unacceptable/unreliable according to ITC and now to myself as well. Mentioned that the boxes had ‘REUNS’ and ‘FOR’ written on them which indicated ‘Foreign’ and ‘Returns’. I reminded them that I’d received no communication at all (through the post) from them despite my requests and once again invited them to respond.
18. 02/03/06 – ITC confirm email is working and ask for a figure on items sold (E19).
19. 02/03/06 – I reply (E20, E20A) with details of items sold and query why my emails to ITC become marked as “{Definately Spam?}” (unsolicited, unwanted junk email).
20. 03/03/06 – They claim (E21) that emails from me had previously been automatically marked as Spam. So my emails to them either disappear or are marked as rubbish. If that is the case then why/how did my original and acknowledged (see point 9 above) emails get through to them? Something doesn’t seem right.
21. 07/03/06 – They offer (by a rejected method) to give a full refund (E23) for some items and a partial refund for others. The offer is not detailed but does include an offer of £20+VAT for each unit I wish to retain. This offer is ignored and I resolve to continue to ignore any further communication from them by email.
22. 02/06/06 – To date, no written communication (outwith email and court papers) has been received from ITC since I told them of the problems. Were they not obliged to try and settle the dispute rather than ignoring emails, claiming non-receipt of communications, refusing to discuss matters on the telephone and then taking me to court?
23. I have made no explicit response to ITC’s “Statement of Truth” following their “Particulars of Claim” as it is not a statement of truth.
24. There is no statement of truth on the attached documents to the claim which would seem to be in contravention of rule 22.1. Therefore I make an application (under 22.4) to the court for an order that unless within such period as the court may specify the statement of case is verified by the service of a statement of truth, the statement of case will be struck out.
25. Three separate pages (the first titled “Particulars of Claim”) were included with the claim form but these pages do not contain any “Details of Claim”. Only one of the three pages is court stamped. I find no claim to answer in these attached pages. The only information under “Particulars of Claim” on the attached pages concerns contact information.
26. I do find an allegation (of theft) on the N1 claim form itself which I deny on the basis of the points raised in this defence. Does the
county court (Small Claims Track) deal with theft allegations? I made every effort to contact ITC. They ignored me and made up excuses about email problems so I refused email as an appropriate method of communication, invited ITC to make an offer by conventional mail and took the matter to the credit card company who eventually settled it to my satisfaction according to the provisions of the Consumer Credit Act 1974.
27. Striking out/Summary Judgement: I make an application (under 3.4) to strike out the whole Statement of Case which discloses no reasonable grounds for bringing a claim (rule 3.4(2)(a)) and also under Rule 24.2 and 1.4(2)(c) for summary judgment against the claimant where that party has no real prospect of succeeding on his claim. Further, the claim sets out no facts indicating what the claim is about, is incoherent and make no sense, if found to be coherent then those facts, even if true, do not disclose any legally recognisable claim against me.
28. I have provided photographic evidence to ITC and the credit card company regarding the condition of the items sold that I also intend to bring to the hearing. Please see attached evidence from Dell UK re the age and specification of each of the units sold by them to ITC. They were all supposed to be new English Dell Axim X50v handheld computers.
Statement of Truth
I believe that the facts stated in these particulars of defence are true.
obvious v itcsales.co.uk *** I WON ***
) and am starting to prepare my defence.
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