This is a revised Defence, if you could take a look I would be extremely grateful?:-
1. TheDefendant was a customer of the Claimant.
2. On23 February 2007 the Defendant entered into a Lease Agreement (“the Agreement”)with the Claimant in relation to a Dennison Tri-Axle Air Suspension Cat 1Dropframe Machinery Carrier (“the Goods”).
3. Underthe terms of the Agreement the Defendant was to pay an initial rent of £3450plus VAT followed by 59 monthly rentals each of £700 plus VAT and then 12annual rentals of £700 plus VAT. Alsounder the Terms of the Agreement the Defendant agreed to pay an administrationfee of £250 plus VAT. Ownership of theGoods was to remain with the Claimant at all times.
4. TheDefendant paid all monthly rentals until experiencing financial difficulty inFebruary 2008. The rental due on 23February 2008 was paid on 13 March 2008. The Defendant wrote to the Claimant on 3 February 2008 stating thatfinancial difficulties were being experienced and had to cancel the directdebit as the Defendant was aware that, due to cash flow problems, there wouldnot be enough funds to cover the February payment. The Defendant thought it prudent to attemptto avoid bank charges. The Defendantalso requested that the Claimant supply the Defendant with bank details so theDefendant could make payments by BACS when funds would be available.
5. TheDefendant ceased trading on 8 April 2008. The Defendant telephoned the Claimant on 8 April 2008 to inform theClaimant of the Defendant’s position and to ask for advice with regard to theGoods.
6. Followingtermination of the Agreement the Claimant states that the Defendant is liableto the Claimant for the sum of £12,505 in accordance with the Terms andConditions of the Agreement. The totaloutstanding amount of the Agreement was £33,145. The sum of £23,500 was used to reduce thisoutstanding amount after the Defendant made arrangements to sell theGoods. This left an outstanding amountof £9645.00. As at 19 January 2013 theDefendant calculates that £9005.00 is outstanding.
7. TheClaimant has failed to mention that the Defendant has been making regularpayments to the Claimant. The payments thathave been made since the Defendant ceased trading and/or the Agreement wasterminated are as follows:-
8. TheDefendant is not in receipt of a letter dated 27 July 2011 sent by the Claimantmaking a formal demand for payment of the sum of £12,505.00.
9. TheDefendant is aware that the Claimant is within its rights to claim interest onthe outstanding amount but has tirelessly endeavoured to avoid court action andbring a resolution to this matter with the Claimant and the Claimant’ssolicitors without success. The additionof the interest onto the debt will only increase the financial burden on theDefendant when the Defendant is already making efforts to repay the debt.
10. Afterthe Defendant ceased trading on 8 April 2008. The Defendant made every effort to secure a Purchaser for the Goodsdespite a complete lack of assistance from the Claimant. In fact the Claimant attempted to sabotagethe sale of the Goods by failing to provide a settlement figure. The Claimant also originally refused to allowthe sale to proceed as they considered the sale price to be too low despite thetrailer being sold back to the actual manufacturers of the trailer, DennisonTrailers Ltd.
11. Afterthe Defendant ceased trading and/or the Agreement was terminated the Defendantmade numerous efforts to communicate with the Claimant The Claimant failed to respond to any lettersor contact the Defendant. The issueswhich required resolution with the Claimant and the Defendant were with regard to the settlement figure(which was required by any prospective purchaser). The Defendant also required outstanding VATdocumentation which the Claimant had informed the Defendant that “it was in thepost”, “there was a delay due to numerous repossessions” and otherexcuses. The Defendant also requiredconfirmation of the outstanding amount and to agree a repayment plan with theClaimant:-
08.04.08 Telephone call to Claimant
09.04.08 Telephone call to Claimant
12.04.08 Letter to Claimant
16.04.08 Letter to Claimant
22.04.08 Letter to Claimant
24.04.08 Letter received from Claimant
26.04.08 Letter sent to Claimant
02.05.08 Telephone call to Claimant
09.05.08 Notice of Termination sent to Defendantby the Claimant
27.05.08 Settlement figure received from theClaimant
27.05.08 Letter to Dennisons Trailers Ltd(Purchaser of the Goods)
29.05.08 Telephone call to Claimant
25.06.08 Letter to Claimant
27.06.08 Telephone call to Claimant
30.06.08 Telephone call to Claimant
01.07.08 Telephone call to Claimant
03.07.08 Telephone call to Claimant
06.07.08 Letter to Claimant
11.07.08 Letter to Claimant
17.07.08 Letter to Claimant
25.07.08 Telephone call to Claimant
25.07.08 Letter to Claimant
25.07.08 E-mail to Claimant
28.07.08 Letter from Claimant
08.08.08 Letter to Claimant
12.08.08 Letter to Claimant
16.08.08 Letter to Claimant
20.08.08 Letter from Claimant
26.08.08 Letter to Claimant
26.08.08 E-mail to Claimant
01.09.08 Letter from Claimant
01.09.08 E-mail to Claimant
02.09.08 Letter from Claimant
02.09.08 E-mail to Claimant
09.09.08 E-mail from Claimant
09.09.08 E-mail to Claimant
12.09.08 E-mail to Claimant
15.09.08 E-mail to claimant
15.09.08 E-mail to Claimant
17.09.08 E-mail from Dennison Trailersconfirming the delay caused by the Claimant
20.09.08 Letter to Claimant
28.10.08 Letter to Claimant
17.11.08 Letter to Claimant
05.12.08 Letter to Claimant
06.12.08 Letter to Claimant
07.12.08 Letter to Claimant
22.01.09 Letter to Claimant
29.01.09 Letter to Claimant
07.11.09 Letter to Claimant – made offer ofpayment
18.11.09 Received letter from Claimant
25.05.11 Letter to Claimant
26.05.11 Letter to Claimant
28.07.11 Letter to Claimant
12. TheDefendant can clearly show that he has made numerous efforts to attempt toresolve any outstanding matters but without the co-operation of the Claimantwas unable to do so.
13. TheDefendant ceased making payments to the Claimant in the hope that the Claimantwould make contact with the Defendant with a view to resolving the outstandingmatters and agreeing a re-payment plan but this was not so.
14. TheClaimant sent the matter to a Debt Collection Agency whilst the matter was indispute. The Defendant informed the DebtCollection Agency of this and the matter was referred back to theClaimant. The Claimant later explainedthat they had expected the matter to have been sorted and prematurely sent thematter to the Debt Collection Agency without checking matters.
15. TheDefendant has been extremely confused by the amount outstanding and for manymonths after Termination of the Agreement and Sale of the Goods the Claimantrefused to communicate with the Defendant in any form.
16. TheClaimant issued a Notice of Termination on 9 May 2008 which stated theoutstanding amount was £33,145. On 22January 2009 the Claimant wrote to the Defendant stating the outstanding amountto be £9585.00. On 22 July 2011 the Claimant’s solicitors formally demanded£13,025. They further demanded theamount of £13,025 on 19 June 2012. An e-mail from the Claimant dated 4 December2012 stated that the outstanding amount was £12,595 as at 12 October 2012. TheDefendant has endeavoured to agree an outstanding amount with the Claimant andthe Claimant’s solicitors but whenever this issue is raised the Claimant’ssolicitors threaten issuing court proceedings.
17. TheClaimant made an offer of a reduced outstanding balance to the Defendant’s wifeby telephone due to the delays and mis-management of the matter from theoutset. The matter was left that theClaimant would telephone the Defendant directly to agree the outstanding amountand a repayment plan. The Claimant nevertelephoned but passed the matter directly onto Solicitors.
18. TheClaimant instructed Solicitors and communication commenced between the Claimantand the Defendant as from 26 July 2011.
19. TheClaimant acknowledged that the Defendant had made an offer of repayment of £10per month. The Claimant’s solicitorsadvised that for this offer to be considered the Defendant had to complete anIncome and Expenditure Form. This letterfrom the Claimant also referred to a telephone call the Claimant made to the Defendantand the Claimant alleged that a “male” answered and hung up but a voicemailmessage was left. The Defendant does notrecall a voice mail message and the only male at the Defendant’s property wouldhave been the Defendant’s son who would have been 14 years old at the time. The Claimant’s Solicitors also allege thatthe Defendant was not working outside of the UK. It should be noted that the Defendant wasemployed as an HGV Driver working in Europe leaving the UK on a Sunday eveningand returning on Friday afternoon.
20. On22 July 2011 the Claimant’s Solicitors requested payment of £13,025.00 and theDefendant’s realistic proposals for repayment.
21. Onthe 18 August 2011 the Claimant’s solicitors threatened the Defendant withCourt proceedings.
22. Ina letter dated 22 August 2011 from the Claimant’s Solicitors the Claimantrequests a response by 22 July 2001 or court proceedings will be instituted.
23. On22 August 2011 the Defendant informed the Claimant’s Solicitors that he wasunable to respond as the Defendant was currently working in Invergordon inScotland and communication was extremely difficult. The Defendant explained he would endeavour todeal with matter as soon as he possibly could. The Claimant’s Solicitor was happy with this.
24. On29 August 2011 the Defendant made an offer of £20 per month to be reviewed inJanuary 2012 when the Defendant expected to able to increase his offer to £80per month.
25. On30 August 2011 the Claimant’s Solicitors again threatened court proceedings butstated that these would be delayed given the fact that the Defendant had madean offer to settle in principle. TheDefendant was asked to advise of the amount the debt was in dispute by and tocomplete a financial statement.
26. On13 September 2011 the Defendant again requested confirmation of the Claimant’sbank details and sent a payment of £20 to bank details already held by theDefendant in the hope that they were correct and stated that further paymentsof £20 would be sent on a monthly basis.
27. On18 September 2011 the Defendant’s wife responded to the Claimant’s Solicitorsunder the instructions of the Defendant. In this communication the Defendant was keen to get over to the Claimant’ssolicitor that he should not be responsible for the amount that the Claimantwas requesting and the Defendant felt he was being “bullied” into accepting theamount the Claimant was stating was due.
28. On22 September 2011 the Claimant’s solicitor stated that if proposals forrepayment were not received within 7 days court proceedings would beinstigated. This was received despite theDefendant already making payments. TheDefendant’s wife responded as the Defendant was working away in Invergordon andstated that the Defendant required additional time due to working away butwould continue to make payments.
29. TheClaimant’s Solicitors wrote on 23 September 2011 to state that unless proposalswere made by the Defendant for what they considered to be the full outstandingamount then court proceedings would be instigated. The Claimant’s solicitors requested aresponse by 29 September 2011.
30. TheDefendant’s wife responded to the Claimant’s solicitors on 29 September 2011stating that the Defendant would not be home until the 6 October 2011 andrequested that the Claimant’s Solicitors allow the Defendant time to deal withthe matter when he returned home.
31. On19 October 2011 the Claimant’s solicitors sent an e-mail to the Defendant. The Defendant’s wife had been instructed toread all e-mails. The Defendant’s wiferequested that the Claimant’s solicitors relay the contents of the letter inlayman’s terms so that the explanation regarding the VAT element which theDefendant was disputing so the Defendant’s wife could relay an understanding ofwhat was being said to the Defendant. The Claimant’s solicitors said they were unable to assist any further.
32. Againthere was a gap in communication between the Defendant, the Claimant and theClaimant’s solicitors. The Defendant wasstill endeavouring to make contact with the Claimant but without success. In an attempt to force the Claimant to resumecommunication the Defendant ceased to make payments but this did not encouragethe Claimant to communicate.
33. On20 June 2012 the Defendant requested that the Claimant agree to the outstandingamount of £9585.00 which was the figure sent to the Defendant by the Claimanton 22 January 2009. The Defendant alsopointed out that it was ludicrious that negotiation only appear to commencewhen the Defendant ceases to make payments so outstanding matters are neverresolved. Further communications weresent on 20 June 2012 whereby the Defendant requested that the figure of £9585less any payments made after January 2009 be agreed and then the matter can beconcluded with an agreed payment plan. The Claimant’s solicitor advised that the original proceeds of sale werewrongly credited to the account and were corrected at a later date andtherefore the outstanding amount was not £9585.
34. TheDefendant requested that the Claimant’s solicitors take instructions on ashortfall settlement proposal of £5,000 with payments of £20 per week beingmade. The Claimant’s solicitor advisedthat he would put the offer forward but doubted that it would be accepted. The Defendant was somewhat surprised that theClaimant’s solicitor was making such predictions without even submitting theoffer to their Client.
35. On26 June 2012 the Claimant’s solicitor advised that the Defendant’s offer wasrejected. It was also advised that therewas no counter offer forthcoming and court proceedings would now beinstigated. The Defendant advised thathe would continue to make payments. TheDefendant also suggested that if an Income and Expenditure Form would avoidcourt proceedings then the Defendant would be prepared to submit one. The Defendant further requested that theamount outstanding be reduced by 17.5% (being the VAT element), an Income andExpenditure Form be submitted, payments of £20 per week will continue and therebe 6 monthly reviews of the repayment plan. The claimant’s solicitor requested that the Income and Expenditure Formbe returned so the Claimant could consider the offer.
36. On1 July 2012 the Defendant submitted an Income and Expenditure Form to theClaimant’s Solicitors.
37. Aftersubmitting the Income and Expenditure Form the Claimant’s Solicitors questioneda number of the Defendant’s expenses. The main expense being the Defendant’s grocery bill and the Defendant’smobile phone bill. It was pointed out tothe Claimant’s solicitors that the Defendant’s grocery bill was higher thanwhat would be considered “normal” due to the Defendant and his son sufferingfrom Coeliac Disease. This is anauto-immune disease which prevents the sufferer from absorbing nutrients. Thesufferer is unable to eat wheat or gluten and many of the special dietary foodscost a great deal more than normal foods. In addition, if the sufferer does not maintain a healthy diet they areat risk from complications to their health. Complications can arise even when a good diet is maintained. Currently the Defendant suffers from a FolateDeficiency and the Defendant’s son currently has an Iron and a Phosphate deficiency.
38. On28 August 2012 the Defendant informed the Claimant’s Solicitors that theDefendant had been forced to change employment as working away from home washaving a detrimental effect on the Defendant’s health due to the fact that theDefendant was finding it extremely difficult to maintain a healthy diet whilstworking away in Europe and living out of a wagon. The Defendant advised that this change in employmentforced a reduction in wages and therefore further payments would have to bereduce to £10 per week.
39. TheClaimant’s Solicitors advised that the offer of £10 per week was unacceptablewithout a charge over the Defendant’s property and if the Defendant was notwilling to agree then court proceedings would be submitted.
40. TheDefendant responded stating that he could not offer any increase and couldtherefore not stop the Claimant issuing proceedings. The Defendant did suggest that if a chargeover the property was only put in place for “security purposes” and this wouldnot result in a sale of the Defendant’s property then this would be agreeableif a final amount could be agreed together with weekly payments of £10.
41. On17 September 2012 the Defendant informed the Claimant’s solicitor that he hadchanged employment again and the new salary should allow for payments to beincreased to £20 per week but would keep the Claimant’s solicitor informed ifthis was possible.
42. TheClaimant’s solicitor responded on 18 September 2012 and took the Defendant’scorrespondence as an increased offer. Again the Defendant was asked to agree to a charge over the property inorder that the Claimant’s solicitor could take further instructions. Clearly the Claimant’s solicitor was notprepared to take instructions unless the Defendant pre-agreed to a charge.
43. TheDefendant responded that the £20 per week was purely dependent on the Defendant’swages but if a weekly amount had to be agreed and set in stone then it wouldhave to be £10 per week. The Defendantalso requested that a final amount be agreed.
44. On29 November 2012 the Claimant’s solicitor advised that £10 per month was notacceptable as the debt would take over 100 years to repay. The Defendant never made an offer of £10 permonth it was £10 per week, therefore, the Claimant’s solicitor tookinstructions on an offer that did not exist. The Defendant responded to the effect that payments of £10 per weekwould continue.
45. On4 December 2012 the Claimant’s solicitor advised that court proceedings wouldbe commenced.
46. TheClaimant has made many errors from the time the Defendant informed the Claimantof his financial difficulty and then his decision to cease trading. The Claimant provided no advice or guidancewith regard to disposing of the Goods and it was left to the Defendant despite theGoods not being owned by the Defendant. The Claimant delayed the sale of the trailer by failing to provide asettlement figure and initially refused to allow Dennison Trailers Ltd topurchase the trailer, yet the Claimant’s solicitor advised that if the Claimanthad taken possession of the trailer they would have sold the trailer for muchless.
47. TheClaimant failed to communicate with the Defendant for many months after theAgreement was terminated and failed to provide documentation and information.
48. MatthewElliot who was/is employed by the Claimant advised the Defendant on 22 January2009, in writing, that their final position was that the balance of £9585.00requires repayment. The Claimant’ssolicitors now advised that this was incorrect due to the proceeds of sale notbeing allocated properly. This figurewas given to the Defendant some 8 months after the sale of the Goods had takenplace.
49. TheDefendant has wished to avoid court proceedings mainly due to the interestwhich could be added onto the debt which would make the debt impossible torepay.
50. TheDefendant has settled a number of outstanding debts solely due to his selfemployment and has had to work extremely hard to make the payments in additionto his normal household expenses. TheDefendant was a sole trader and during his self employment 3 separate limitedcompanies declared bankruptcy/liquidation owing the Defendant vast sums ofmoney. The Defendant had carried outwork for these companies for over 3 months without payment. The Defendant had no option but to ceasetrading as the financial worries were having a detrimental effect on his healthand the Defendant feared he would have to declare himself bankrupt if thesituation was allowed to continue. TheDefendant made the decision to mitigate his loss and cease trading in order tomaintain some control over the debts which were accruing. The debt owed to the Claimant is the finaldebt to be repaid. There were numerousother debts which have been repaid in full over the past 5 years.
51. TheDefendant has never denied that there is an outstanding amount due to theClaimant and has endeavoured to keep the matter from the Courts but has feltthat the Claimant has used the threat of Court proceedings regularly toendeavour to force the Defendant into accepting a final outstanding amountunder their terms.
52. TheDefendant has kept the Claimant and/or its solicitors informed of theDefendant’s financial position since February 2008.
53. TheDefendant was contacted by the Claimant in 2011 and the Claimant admitted tothe Defendant that the Claimant had no interest in resolving any outstandingissues their interest laid solely in recovering the debt and ensuring the debtwould not be statute barred.
54. TheClaimant, Claimant’s solicitor and the Court should now be aware that theDefendant has recently been diagnosed with Rheumatoid Arthritis. The Defendant has been in considerable painfor many months and this will continue until the correct medication has beenestablished. This condition has forcedthe Defendant to change employment again. It should also be noted that despite the pain and suffering theDefendant has only taken time off work to attend medical appointments.