lowells/Drysden claimform - old o2 debt - ** Settled via Mediation **

[kp278]

hi, i had an 18month o2 contract for which i was receiving a £15 loyalty discount to half the standard £30 tariff. i upgraded at the end of february and it seems the loyalty discount has been taken away. i understood the loyalty discount would stay but it appears not. where would i stand on this?

 

thanks, kris

[buzby]

Everything hinges on your original agreement. You would need proof that the discount would apply for X months. A favourite is a 12 month discount (when the contract is for 18 months, meaning the last 6 months cost more. But to prove that they have made a mistake, you need proof of your original deal, as without this you'll be stuffed.

[kp278]

hi, my wife has a sony ericsson xperia X8 phone which i bought her in october. the camera became faulty back in march (black screen) so we returned it to O2 who repaired it and it was fine for a month. now the camera is faulty again with the same problem.

 

i spoke to O2 repairs who advised i can return it for another repair. they said what usually happens is if the phone is faulty for a 3rd time they replace with a reconditioned handset.

 

obviously i'm not keen on this (or i wouldn't be here!). i don't even want it repaired a second time, i'd rather just have a refund or partial refund and return the handset.

 

what's the legal position on this? can O2 request another go at repair or am i within my rights to demand a return and refund?

 

thanks, kristian

[locutus]

Here is the Which! guide to the Sale of goods act. That has the information you need.

[kp278]

thanks. i came across that site while searching for the answer, but nothing i've read seems to give any advice on what i'm entitled to if a repaired product fails again.

[kp278]

Hi all,

 

I've started this thread to a) help others (although I'm sure there are many other threads like this) and b) in case it gets a bit messy and I need to ask for advice.

 

I received a NCC claim form raised by Drysden Fairfax on behalf of Lowell Financial regarding an O2 mobile contract.

 

04/03/13

Claim Issued

 

06/03/13

Received claim, N1CPC showing POC attached [ATTACH=CONFIG]42482[/ATTACH]

 

06/03/13

I filed my acknowledgement of service online.

 

07/03/13

I sent them a CPR 31.14 Request by recorded delivery in second post

 

13/03/13

I had a text from them asking to call.

 

15/03/13

I called, out of curiosity, they asked if I had responded to the claim and I advised I had filed the AOS and had sent a request for documents. They said ok thanks and ended the call.

 

---

And that's it up until now. I noticed the POC mentions a CCA, but I didn't think a mobile phone contract was covered under the CCA?

 

Once the 7 days notice in the CPR are up, is the next step to send an N244?

 

Thanks, Kristian

Edited March 15, 2013 by kp278

[kp278]

cpr 31.14

 

drydens fairfax solicitors

fairfax house

merrion street

leeds

ls2 8bx

 

 

dear sir,

 

re: Lowell financial ltd v me case no:

 

Cpr 31.14 request

 

on 6th march 2013 i received the claim form in this case issued by you out of the nottingham county court.

 

I confirm having returned my acknowledgement of service to the court in which i indicate my intention to contest all of your claim.

 

Please treat this letter as my request made under cpr 31.14 for the disclosure and the production of a verified and legible copy of each of the following document(s) mentioned in your particulars of claim:

 

1 the agreement. You will appreciate that in an ordinary case and by reason of the provisions of cpr pd 16 para 7.3, where a claim is based upon a written agreement, a copy of the contract or documents constituting the agreement should be attached to or served with the particulars of claim and the original(s) should be available at the hearing. Further, that any general conditions incorporated in the contract should also be attached.

 

2 the assignment.

 

3 the default notice.

 

Although your claim is for a sum which is not more than £5,000.00 and will in all likelihood be allocated to the small claims track for determination upon my delivering a defence, at this moment in time i have not delivered my defence and the case has not been allocated to a track. In consequence the provisions of cpr 27(2) are of no effect and you should not seek to avoid compliance with your cpr 31 duties by claiming otherwise.

 

You should ensure compliance with your cpr 31 duties and ensure that the document(s) i have requested are copied to and received by me within 7 days of receiving this letter. Your cpr 31 duties extend to making a reasonable and proportionate search for the originals of the documents i have requested, the better for you to be able to verify the document's authenticity and to provide me with a legible copy. Further, where i have requested a copy of a document, the original of which is now in the possession of another person, you will have a right to possession of that document if you have mentioned it in your case. You must take immediate steps to recover and preserve it for the purpose of this case.

 

Where i have mentioned a document and there is in your possession more than one version of that same document owing to a modification, obliteration or other marking or feature, each version will be a separate document and you must provide a copy of each version of it to me. Your obligations extend to making a reasonable and proportionate search for any version(s) to include an obligation to recover and preserve such version(s) which are now in the possession of a third party.

 

In accordance with cpr 31.15© i undertake to be responsible for your reasonable copying costs incurred in complying with this cpr 31.14 request.

 

If you require more time in which to comply with this request you must tell me in writing. You must tell me before the time for compliance with this request has expired. In telling me you require more time you must tell me what steps you have taken and propose to take in order to comply with this request and also state a date by when you will comply with this request. In addition your statement must be accompanied with a statement that you agree to an extension of the time for me to file my defence. Your extension of time must be not less than 14 days from the date when you say you will have complied with my request and you must state the new date for filing my defence.

 

If you are unable to comply with this request and believe that you will never be able to comply with this request you must tell me in writing.

 

Please note that if you should fail to comply with this request, fail to request more time or fail to agree to an extension of time for the filing of my defence, i will make an application to the court for an order that the proceedings be struck out or stayed for non-compliance and a summary costs order.

 

I do hope this will not be necessary and look forward to hearing from you.

 

Yours faithfully

[kp278]

16/03/13

Response from Drysden [ATTACH=CONFIG]42546[/ATTACH]

The letter advises they have requested the documents from their client. Unfortunately there is no mention of timeframe and the initial 7 days mentioned in the cpr request have already expired. What would be my next step?

[kp278]

update:

 

16/3

letter from drysden acknowledging my cpr letter

 

21/3

called requesting extension- ok'd

 

25/3

received letter confirming extension

 

28/3

spoke to ncc to confirm they received a copy of the extension

 

4/4

called to chase cpr request

 

11/4

called again. they confirmed they wouldnt enter for judgment until two weeks after i received file

 

12/4

received letter confirming above

 

i'm currently filling out an N244 giving them two weeks to comply with cpr request or order is struck out. could really do with some help writing it though. ive had a look around and this is what i have so far:

 

1 Unless by 4:00pm on 29 April 2013 the Claimant complies with a request made by the Defendant on 7 March 2013 pursuant to CPR 31.14 by the provision to the Defendant of documents mentioned in the Particulars of Claim, namely, [1] the agreement [2] the default notice [3] the assignment

 

the claim shall be struck out without further order of the court, and

 

[ii] the Claimant shall pay the Defendant his costs of this case to be assessed on the standard basis and pursuant to the provisions of The Litigants in Person (Costs and Expenses) Act 1975.

 

2 In the event that the Claimant shall comply with this order,

 

the Defendant shall file and serve an amended Defence by 4:00pm on 20 May 2013

and

[ii] the Claimant shall pay the Defendant his costs of this application in any event

is this ok?

[kp278]

I also need to think about filing a holding or embarrassed defence. I'm guessing i shouldnt rely on the solicitor saying they wont seek a judgement

[kp278]

hi guys, i could really do with some help on a holding defence and thoughts on the n244. with the deadline approaching it's starting to get to me

[citizenB]

Responding to S.O.S.

 

I had a moment of panic.. I thought you had missed your defence due date, but I see you agreed and extension. Your original submitting date was 6th April. What time did you agree for the extension. There should have been an actual Date !

 

I have marked your S.O.S for the attention of andyorch. He will look in on you ASAP and certainly in time for you to submit your defence.

[citizenB]

You can only defend to the pleadings, so can you please let us know EXACTLY what the Claim form says.. the reason they have issued the claim

[kp278]

Hi thanks for quick response

No actual date despite specifically requesting it.

The letter stated "28 days from today".

 

The NCC form is http://www.consumeractiongroup.co.uk/forum/attachment.php?attachmentid=42482&d=1363349308

 

Thanks, Kris

[AndyOrch]

Hi kp

 

CB has requested I look in on you.Ok obviously the claimant is unaware of of how mobile telecom agreements work and have made errors within their particulars (intentionally or not to assist with their pleadings)

None response to a CPR 31 request is not grounds to strike out or carries any sanctions....the Claimant is only liable to disclose at Standard Disclosure which is further into the process (which they hoped would not happen and you would not defend)

 

Apart from the the above errors what other reasons are you intending to plead with your defence....disputed account/not your debt? If you could provide a little history of the debt.

 

Regards

 

Andy

[kp278]

Hi, thanks for replying.

 

A disputed account. I don't recall racking up a £500 debt with O2! I have previously been with O2 but I cancelled the contract at the end. I ignored the following DCA letters (lesson learned). I don't recall receiving any default or assignment, just letters asking for £500.

 

Thanks, Kris

[AndyOrch]

A simple defence refuting the amount claimed....and the claimant put to strict proof to quantify the amount claimed.It does not require a holding defence.

 

 

Regards

 

Andy

[kp278]

how is this defence? borrowed from other threads. questions in red.

 

any benefit to filing now or last minute, in case something turns up in the post...?

 

I've said admitted or denied. I don't want to flat deny because I have had O2 contract in the past (the one I'm confident was cancelled).

 

IN THE XXXXXX COUNTY COURT

 

CLAIM NUMBER XXXXX

 

BETWEEN

THEM

CLAIMANT

 

V

 

ME

DEFENDANT

 

DEFENCE

 

1. This claim is neither admitted nor denied with regards to the Defendant entering in to an Agreement or contract referred to in the Particulars of Claim ('the Agreement' or contract) the Claimant has yet to disclose any Agreement or contract as to the defendants CPR 31.14 Request. [ANY MENTION OF CCA AGREEMENT BEING USED / DATES OF CPR 31.14 REQUEST / SUBSEQUENT FOLLOW UP CHASING CPR?]

 

2. The defendant has absolutely no knowledge of any debt, and despite asking for proof a debt exists nothing has been forthcoming. [sHOULD I TAKE THIS OUT, SEEING AS I'VE PREVIOUSLY RECEIVED DCA LETTERS?]

 

3. No documents supporting this claim in the particulars have been attached despite a request under CPR 31.14, and as a result of this, the defendant is unable to plead in defence to this claim.

 

4. Without clarification of the claimants claim, the defendant is extremely disadvantaged and the claimants claim appers to be without merit. The defendant asks to to be allowed to submit a complete defence should the claimant provide copies of the original document he will rely on.

 

5. The particulars of claim are denied with regards to the Defendant owing any monies to the Claimant and the Claimant is put to strict proof to:

 

(a) show how the Defendant has entered into an agreement or contract with the Claimant; and

(b) show how the Defendant has reached the amount claimed for; and

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

 

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

 

7. Furthermore, if 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 and 196 of the Law of Property Act 1925 and Section 82 (a) of the Consumer Credit Act 1974.

 

8. The claimant has failed to comply with sections 111 AND 1V of the pre action conduct "practice directions".

 

9. 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.

 

10. For advoidance of doubt, the defendant is unable to plead effectively or at all to the particulars of claim.

 

 

Statement of Truth

 

I believe that the facts stated in this Defence of claim to be true.

 

Dated this day 15th April 2013.

[AndyOrch]

Neither admitted or denied is a sure way to get up the DJ nose and put you on the lower ground.

 

Try" It is admitted that I the defendant have held accounts with the original creditor in the past but will contend that all balances have been cleared."

 

Then question the particulars...that way its not a denial but you put the claimant on notice to disclose and verify its proof.Amend para 2 : - The defendant has absolutely no knowledge of any debt residue and on the xxth xxxx xxxx requested information pertaining to this claim by way of a CPR 31.14 request...the Claimant has declined to respond......get the idea?

 

Most of the above is taken from my previous drafts with the exception of :-3 they are not required to attach evidence MCOL

 

Regards

 

Andy

[kp278]

ok, I've rewritten paragraphs 1-3 as:

 

1. It is admitted that I the defendant have held accounts with the original creditor in the past but will contend that all balances have been cleared.

 

2. The defendant has absolutely no knowledge of any debt residue and on the 7th March 2013 requested information pertaining to this claim by way of a CPR 31.14 request. The claimant has declined to respond despite additional requests on the 4th April 2013 and 11th April 2013.

 

the additional requests were phone calls to the claims handler.

[kp278]

i believe paragraphs 5,6 & 7 cover the argument of a contract existing, assignment notice and default notice.

 

trying to get my head around paragraph 5 - how would i argue a contract doesnt exist, when it does because i have been a customer before..

[AndyOrch]

i believe paragraphs 5,6 & 7 cover the argument of a contract existing, assignment notice and default notice.

 

trying to get my head around paragraph 5 - how would i argue a contract doesnt exist, when it does because i have been a customer before..

 

 

5. The particulars of claim are vague and unsubstantiated with regards to the Defendant owing monies to the Claimant and the Claimant is put to strict proof to:

 

[kp278]

Great thanks. I'm travelling with work from 28th april - 10th may, I guess I should tell the courts and claimant, but will they care?

[AndyOrch]

They have 28 days to respond to any defence so you should be back I assume by the time any Directions Questionnaire is/may be processed.

[kp278]

thanks Andy, thats good to know.