Lowell/Shop Direct Claim***Claim Discontinued***

[Sidewinder]

After a bit of guidance...

 

Mrs S has an old Shop Direct account long since defaulted. Lowell have had it since 2010 and issued a claim a couple of months ago. Account was opened well before 2007

 

Did the usual CPR and CCA and nothing received. Defence filed, mediation offered and advised that we could not mediate as the Claimant had failed to supply paperwork - no agreement, no statement, DN, assignment etc. Mediator has advised that this cannot proceed and the claim will go back to the Court for directions and hearing date.

 

We have now received a statement of sorts plus copy of assignment letter. Questions are:-

 

1. Statement shows that the last payment was six years and two months prior to the claim being issued. Nothing since whatsoever. Would this seem to be sufficient to amend the defence to a SB with any degree of confidence? The account was not officially defaulted until about six months after the last payment

2. Is the lack of a CCA still fatal to their case - even with a catalogue account? I seem to recall that catalogue account claims are less reliant on a CCA being produced

3. Likewise the lack of a DN? A more minor point, but still relevant to the defence

4. At what point should we amend the defence - never got this far with a claim before and not certain of the procedure

5. Would it be wise to contact the claimant and point out the weakness of their case and invite them to discontinue? Or let the claim run it's course? Mrs S would be most unlikely to be able to attend court if it got that far

 

For the record:-

 

What is the claim for – the reason they have issued the claim? Please type out their particulars of claim (verbatim) less any identifiable data and round the amounts up/down.

 

The Claimant's Claim is for the sum of £****.** being monies due from the Defendant under a Home Shopping agreement regulated by CCA 1974 between the Defendant and Shop Direct and assigned to the Claimant on **/**/** notice of which has been given to the Defendant. The Defendant failed to maintain the contractual payment under the terms of the agreement and a default notice has been served and not complied with. The claim also includes statutory interest pursuant to S.69 County Courts Act at a rate of 8% pa etc

What is the value of the claim? £2000 ish

 

Is the claim for a current account (Overdraft) or credit/loan account or mobile phone account? Catalogue

 

When did you enter into the original agreement before or after 2007? Before

 

Has the claim been issued by the original creditor or was the account assigned and it is the Debt purchaser who has issued the claim. Debt Purchaser

 

Were you aware the account had been assigned – did you receive a Notice of Assignment? Yes

 

Did you receive a Default Notice from the original creditor? Uncertain, possibly not

 

Have you been receiving statutory notices headed “Notice of Default sums” – at least once a year ? No - just begging letters

 

Why did you cease payments? Change in circumstances

 

What was the date of your last payment? early 2010

Was there a dispute with the original creditor that remains unresolved? Not aware of any dispute being raised

 

Did you communicate any financial problems to the original creditor and make any attempt to enter into a debt management plan? No

 

Thanks

[martin2006]

There is no connection between SB date and defaulted date, although a dca will think otherwise. It has always been the case that the "cause" of any action, is the first missed payment. Now there are caggers who disagree, but that is the way it is viewed by the site team and has been a successful approach for 1000's of like claims.

 

There is also BMW v Hart which will no doubt pop up in this thread, but it is not relevant to this type of claim.

 

The CCA is pivotal as to whether a claim can proceed, it cannot be enforced if it cannot be produced and as this account is pre April 2007, any agreement produced must be a "True Copy" of the original and not a reconstituted copy.

 

i will leave it for the other site team with more knowledge to confirm whether or not you could look at a SB defence, given that it is 6yrs and 2 months since last payment but i suspect that as you have already filed a defence its probably unwise to attempt to change that now, you should have run with a no paperwotk/holding defence in the absence of any supporting documents from the claimant.

[dx100uk]

if it gets to the WS stage

when doing the WS

 

 

in addition to supporting your defence etc as you would normally do

you add a line that by their own admission the claimant has

in reply to your CCA/CPR request

included a statement that clearly shows the last payment/use [use as an exhibit]

is outside of 6yrs from the date of the claimform

and thus the claim is statute barred

[Sidewinder]

Thanks both. Just to clarify, the no paperwork/holding defence was filed when the claimant had not responded to the CCA or CPR requests. They have since - at the mediation stage -sent a statement showing the last payment date to possibly render the claim to be SB.

[shamrocker]

"2. Is the lack of a CCA still fatal to their case - even with a catalogue account? I seem to recall that catalogue account claims are less reliant on a CCA being produced"

 

They supply the rope for you.....just create the noose ;-)

 

The Claimant's Claim is for the sum of £****.** being monies due from the Defendant under a Home Shopping agreement regulated by CCA 1974

[martin2006]

I would think now SW, that you will very soon have them by the short and curly's, oooooooooh, suits you sir!!

[Sidewinder]

Thanks all for the clarification. Will wait for directions and will bring up the SB in the witness statement if it gets that far, which I am guessing it probably will. Jut wanted to make sure that I wouldn't be falling foul of procedure

[Sidewinder]

Quick update and a question....

 

Received the N24 with the Judge's orders and there is a clear mistake in the Order. Judge has ordered that the claimant produce

 

1. Copy of Assignment

2. Copy Notice of Assignment

 

etc - or the claim will be struck out

 

1. Should read 'Copy of Agreement'

 

What is the best way to challenge this? Visit the Court to ask for the order to be re-issued correctly, or make an application to vary the order?

 

Thanks

[martin2006]

I woukd query it with the court admin, looks more like an admin typo than a judge's error

[AndyOrch]

Requires correction Sidwinder...allows the claimant leeway

 

Andy

[Sidewinder]

Thanks both - will contact the court tomorrow

[Sidewinder]

It's been a while, but to update:-

 

The Judge issued revised Oders requiring that the Agreemnent be produced

 

The claimant's response to the Orders was so supply a statement, NoA and a screenshot of their own customer screen by way of 'further details of the agreement'. No CCA or DN produced. No T&Cs or attempt at a recon agreement The statement and customer screen confirm the last payment date as March 2010 with the claim being filed 6 years, 1 month and 28 days after the date of last payment

 

The Judge has now issued an Order requiring a fully pleaded defence so has clearly accepted the claimant's document as some form of 'agreement'. Defence to be filed by Tuesday

 

Our defence will be primarily the failure to provide a compliant CCA and that as a pre-2007 agreement this is a bar to enforcement, but also that the claim may be SB

 

Any help with the relevant sections of the CCA would be appreciated S.78(1) - S.78(6) - S.127(3) - S.61A - S.87 - S.5 Limitation Act?? Any or all?

 

Thanks

[AndyOrch]

Have a go at drafting your fully particularised defence Sidewinder then post it here for checking and any tweaks.

 

Andy

[Sidewinder]

Not sure quite how particularised it needs to be, however:-

 

 

Particulars of Claim (for reference)

 

The Claimant's Claim is for the sum of £****.** being monies due from the Defendant under a Home Shopping agreement regulated by CCA 1974 between the Defendant and Shop Direct.

And assigned to the Claimant on **/**/** notice of which has been given to the Defendant.

 

The Defendant failed to maintain the contractual payment under the terms of the agreement and a default notice has been served and not complied with.

 

The claim also includes statutory interest pursuant to S.69 County Courts Act at a rate of 8% pa etc

 

 

Defence

 

 

1. This claim relates to a credit agreement regulated by the Consumer Credit Act 1974 (“CCA 1974”)

 

2. It is admitted that the Defendant previously held an account with Shop Direct and that the account fell into arrears

 

3. The Claimant’s solicitor sent the Defendant a Letter Before Claim dated 18th April 2016 requiring the Defendant to make payment or to respond to the Claimant prior to 5th May 2016 or that a Claim would be made through the County Court to recover an amount stated to be £XXXX.XX

 

4. On receipt of the Letter Before Claim received from the Claimant’s solicitor dated April 18th 2016, the defendant made a formal request under Section 78 of the CCA 1974 to the Claimant. This was sent by Recorded delivery and was signed for by the Claimant on 29th April 2016.

 

5. Despite responding to the Letter Before Claim in accordance with the deadline provided, the Claimant’s solicitor issued proceedings regardless

 

6. On receipt of the Claim on 15th May 2016, the Defendant wrote to the Claimant’s solicitor in a letter dated 18th May 2016 and confirmed that a formal request had been made to the Claimant in accordance with the provisions under Sections 78 of the CCA 1974 but that no response had been received. The Defendant also made a request under Civil Procedure Rule 31.14 for the Claimant’s solicitor to provide documents referred to in the Particulars of Claim, namely:

 

a. A true executed copy of the original Credit Agreement

b. The Default Notice issued to the Defendant by the Original Creditor

c. The Notice of Assignment issued to the Defendant by the Original Creditor

d. A statement of account to include details of charges and payments and also any default charges and interest applied to the account prior to, and since the account was assigned to the Claimant

 

7. Subsequent to the Orders of the Court for the disclosure of documents by the Claimant, the Claimant’s solicitor sent certain documents, namely:

 

a. A barely legible screenshot of the Claimant’s Customer Maintenance programme relating to the account

b. Letter of Assignment

c. Statement of Account

 

8. The Claimant has failed to provide a true executed copy of the Credit Agreement in accordance with the Claimant’s rights under Sections 61(1)(a) and 78(1) of CCA 1974. The Claimant has also failed to provide a copy of the Default Notice allegedly issued to the Defendant by the Original Creditor and required by Section 87(1) of the CCA 1974

 

9. The screenshot of the Claimant’s customer maintenance screen cannot by any definition be construed as compliant with Section 78(1) of the CCA 1974 in that it does not contain the prescribed terms required by Section 60 of CCA 1974. Furthermore the customer management document evidenced by the Claimant as NA-01 states a ‘Default Balance’ of £XXXX.XX declared by the Original Creditor, whereas the Claimant states that the Original Balance is in fact £XXXX.XX, a difference of more than £300. The Claimant has not provided details of how this difference is arrived at and in the absence of the documents required to be produced under CCA 1974 the Defendant is not in possession of sufficient information to assess the accuracy of any information provided. The statement of account provided by the Claimant is also insufficiently detailed or itemised in order for the Claimant to establish the accuracy of any balances being claimed

 

10. The Defendant relies on Section 78(1) and 78(6) of CCA 1974:

 

S.78(1) “The creditor under a regulated agreement for running-account credit, within the prescribed period after receiving a request in writing to that effect from the debtor and payment of a fee of £1, shall give the debtor a copy of the executed agreement (if any) and of any other document referred to in it, together with a statement signed by or on behalf of the creditor showing, according to the information to which it is practicable for him to refer

S.78(6) “If the creditor under an agreement fails to comply with subsection (1) -

(a) he is not entitled, while the default continues, to enforce the agreement”

 

11. The Claimant's document NA-01, namely the Claimant’s customer maintenance details also confirm that the last payment on the account was made on 13th March 2010. The Defendant contends that based on the Claimant’s evidence, the Claimant is barred from recovery of any amount claimed subject to Section 5 of the Limitation Act 1980 in that any action founded on simple contract shall not be brought after six years from the date on which the cause of action accrued. The Claimant maintains, since no payment or written acknowledgement has been made of this account since 13th March 2010, that the Claimant is barred from taking action in this case since more than six years had passed at the time the action was brought

 

12. For the reasons set out above it is denied that the Claimant is entitled to recover the amount claimed or any amount

[Sidewinder]

Opinions on the above anyone?

[AndyOrch]

Just a few changes...only refer to section you rely on rather than 77-79.I would rethink your point 2 particularly the point marked blue.

 

Andy

[Sidewinder]

Thanks Andy

 

So do I take out the point marked in blue or the whole of Point 2 altogether?

 

And I assume that the issue of no DN is not relevant?

 

Appreciate the amends

[AndyOrch]

I would go with something along the lines of....

 

2 It is accepted that the Defendant has previously held an account with Shop Direct in the past.I do not recall the exact details of the account and have sought clarity from the claimant.

 

Yes retain any reference to the lack of default notice....it is a prerequisite to requesting any relief.

 

Andy

[Sidewinder]

Thanks

[Sidewinder]

Update to this - the Court have now ordered a Preliminary Hearing which will be in a couple of weeks time

 

Still no CCA, Default Notice or itemised Statement provided by the Claimant yet the Judge wants to discuss the issues in the case..

[martin2006]

So you will be requesting the claimant is put to strict proof of any alleged debt by means of supplying of an enforceable agreement and correctly executed default notice.

If they cant, they cant enforce it, end of.

[Sidewinder]

Of course

 

I am sure that they are hoping we don't turn up to the hearing as they have still not sent anything which they have even called an 'agreement'

[AndyOrch]

The hearing (CMC Case Management Conference) will be to set the Agenda and directions SW...not usual on SCT so your court must be aware the antics that Lowell use to bring claims.

[Sidewinder]

UPDATE

 

Hadn't put chapter and verse up on the thread, but the Preliminary Hearing was set for tomorrow. Heard nothing further from the Claimant or Solicitor since we filed our pleaded defence

 

Arrived home to an email today confirming that they have filed a Notice of Discontinuance

 

Will confirm with the Court tomorrow morning but should be a formality. I am almost disappointed not to have had the hearing considering the work put in in preparation and the fact that I believe we had a very winnable case

 

Thanks to all for the help and support, and to the many who are in similar circumstances:-

 

Stand your ground
Make good use of the experiences of others and the wisdom of the experts on CAG
Do your own research too - both on the Forum with similar cases and by reading and understanding the points that you are pleading
Be prepared for a game of Poker - BW and Lowell will leave it to the last minute before they blink first

 

In this particular case (a pre-2007 agreement - and each will have different circumstances), Lowell left it right up to the 6 year limitation date (in fact 6 years and 2 months since last payment). BWL's Letter of Claim gave a period in which to respond, which we did with a CCA request, but they issued the claim anyway. They did not produce a CCA, but simply a screenshot of Lowell's customer screen showing basic details and claimed this was further 'evidence' of the agreement. In response to a CPR 31.14 request they produced only a Notice of Assignment and a statement which listed a balance and payments made, but no breakdown of charges for goods received or default charges or interest applied to the account. No Default Notice was supplied, nor the T&Cs relevant to the account.

 

Our pleadings would have been:-

 

Barred from enforcement under the Limitation Act. They would no doubt argue that as the default date was October 2009 this was not the case - but where is the DN to prove that? Shop Direct's current T&Cs state that they would seek enforcement after the first missed payment so we would argue that to be a cause of action, and if they claimed differently, then where are the T&Cs in force when our agreement was taken out?

 

Failure to produce a DN is a breach of S87 CCA - not in itself fatal, but a pre-requisite to enforcement

 

Breach of S78 CCA - no agreement produced, not even a recon, and the 'evidence' of an agreement would not comply due to a lack of prescribed terms

 

Who knows what might have happened?

[AndyOrch]

Thread title amended to reflect the outcome.

 

Well done SW

 

Regards

 

Andy