Lowell/BW legal claimform - old o2 mobile 'debt'

[fkofilee]

Hi Multay

 

CAG is a self help site, but we are able to guide you in the right direction.

As you have been shown, there are large holes in their defence about it being regulated etc

You can use this to your advantage.

Also aswell they have only supplied a statement etc.

 

Dont fall foul because of these. I suspect one of the team will be along shortly on this one. I can understand the urgency but please understand that we are all volunteers and we try to dedicate our time where we can,

[Multay]

I do understand and wouldn't ask unless I had to. I'm just keen not to give Lowell a win as it doesn't help anyone, it just encourages them to issue more court actions. Any help is massively appreciated and I've tried to put things together the best I can but as you rightly point out, I could easily get things wrong on this one.

Thanks. M

[fkofilee]

I know what you mean

I can reassure you that one of team will have a look at this later

[Multay]

Hi again, could someone cast their eye over my skeleton argument.

I really do need to send it off tomorrow. Thanks. M

[AndyOrch]

Hi Multay

 

The skeleton is really just a list a of bullet points that you wish to use and to prompt you for the hearing...its not a witness statement or supplemental witness statement or defence.

 

So the above is fine if thats all the points you wish to raise.......stick tot 24 month contact argument...you want proof and disclosure...as their ETF is based on the 24 month......without it there charge collapses.

 

Andy

[Multay]

Thank you. I do need to send it to bw and the court don't I?

 

I'll probably expand it a little as the 2012 agreement they refer to would clearly be out of time by now, .

 

 

I'm unsure how to address the bill though,

other than telling them I haven't seen it before.

 

 

I did everything on line.

Maybe I'm being naive but I don't see how they can claim they don't need a copy of the agreement they claim was in force.

One from 2012 would have run out by 2014.

[Multay]

Hi Again,

 

 

Please have a look at my amended Skeleton Argument if you have time. I think it might be a bit repetitive but I'm trying to cover a lot of points.

 

 

If you could let me know if I should take anything out etc. I would be eternally grateful as I plan to drop it into the court tomorrow if I can, if not it will be on the day.

 

 

In the XXXX county court

 

Claim number xxxxxxxx

 

Claimant V Defendant

 

Defendants Skeleton Argument

 

Hearing Date:

 

Introduction

 

1.This skeleton argument is filed in support of my defence dated xxxx and witness statement dated xxxxxx in this claim

1. The Claimant has been extremely vague and somewhat confusing when outlining the basis of their claim. Their Particulars of Claim refers to “a mobile telecoms agreement regulated by the Consumer Credit Act 1974', whereas their Witness Statement claims “the balance of monies due against an unregulated telecommunications agreement”. This was also confirmed to be the case in a letter from the claimant in response the Defendants request for a copy of the alleged agreement as entitled by law under the Consumer Credit Act 1974.

The claimants Particulars of Claim state “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” but does not provide a date on which the alleged Default Notice was served.

This being the case, I respectfully refer the Court to CPR 16.4 (1a) -

"(1) Particulars of claim must include -

(a) a concise statement of the facts on which the claimant relies."

The Claimant has clearly not complied with this rule and the Defendant is unable to determine the type of agreement to which the Claimant refers.

2. In their Witness Statement, the Claimant refers to an agreement taken out by the defendant on xxxxxxx 2012 as a “O2 Unlimited 24 Month 8GB 4G Tariff” reference number xxxxxxx. In this case the Claimant is unable to produce evidence of the agreement under which they hold the Defendant liable and specify the following in their witness statement “Although the claimant is unable to produce a copy of the agreement, there is no statutory requirement to do so” and that “the non-production of the agreement, in the claimant’s opinion, is not fatal to its case”.

The specific date the alleged agreement was entered into have a direct bearing on the value of the alleged arrears and the value of the early termination charge as, at the time of the alleged default, a 24-month agreement entered into in 2012 would have been fulfilled.

2. The Particulars of Claim refer to issuance of a default notice. The Defendant requested a copy of the document to which the Particulars of Claim refer. The claimant did not comply with the Defendants CPR 31.14 request to provide a copy and stated in their witness statement “Although the claimant is unable to produce a copy of the Default Notice, there is no statutory requirement to do so" and “the non-production of the Default Notice, in the claimant’s opinion, is not fatal to its case”. The Default Notice and date of the termination of the alleged contract have a direct bearing on the value of the Early Termination fee charged and the value of alleged arrears. The claimant does not detail the date on which the termination of the alleged contract occurred, only the assertion that it was terminated, without supporting evidence.

 

4. In their Witness Statement, the Claimant refers to an agreement taken out by the defendant on xxxxxx 2012 as a “O2 Unlimited 24 Month 8GB 4G Tariff” the termination of which resulted in an early cancellation fee of £xxx.xx. The claimant is unable to produce evidence of any such agreement or the terms and condition relating to an agreement entered into during 2012.

3. In their Witness Statement, the Claimant refers to an agreement taken out by the defendant on xxxxxx 2012 as a “O2 Unlimited 24 Month 8GB 4G Tariff”.

Were this the case, the defendant’s obligations under this agreement would have been discharged at the point of termination of contract based on the date specified within exhibit xxx page 14 and dated 18th. xxxxx 2015 to 18th. xxxxxx 2016.

5. The claimant states “the claimant believes the defendant will have nevertheless been charged Fees in accordance with these terms and conditions” The terms and conditions to which the claimant refers, and has entered into evidence, are a printed copy taken from the O2 website and are dated 21.5.15. These terms and conditions were not in force when the alleged agreement was taken out and as such, the claimant cannot be certain of the exact nature of any alleged breach.

The claimant states in their witness statement:

“

In the Terms and conditions supplied as evidence and quoted above from the Claimants Witness Statement, clause 8.3 refers to a “Minimum Period”. In the same Terms and conditions, clause 23.1 paragraph 15 (exhibit XXX page 35) the Minimum Period is described as “…the minimum period for the service selected by you and on which your charges are based. This runs from the day on which the Service is first supplied ( or the day on which you take an upgrade) and may be 30 days, 12, 18 or 24 months depending on the tariff that you sign up for”.

In line with the terms and conditions quoted by the Claimant, for an agreement entered into on the xxxxxx 2012 as a “O2 Unlimited 24 Month 8GB 4G Tariff” the minimum period would have been satisfied by 16th. November 2014 and no early cancellation fee would be due, as stated in the excerpt above.

6. The claimant failed to comply with the defendants legal information request under CPR 31.14 prejudicing the defendant’s ability form a suitable defence and preventing any form of mediation.

Thanks in advance. M

[AndyOrch]

I thought this was being posted on the 12th June ?

[Multay]

Hi,

 

I was planning to send it but I ran out of time as I had to travel to Europe for work on the 12th.and only got back yesterday afternoon.

 

Do the ammendments make any sense or would you simplify it? I'm not sure about their assertion that there is no legislative requirement to provide the agreement as evidence of the debt...

 

Thanks. M.

[AndyOrch]

Im concerned you are turning it into a further witness statement......a skeleton is bullet points for your benefit really..usually 1 - 8 points normally..brief points you wish to raise.

 

Over complicate it and the judge will ignore it.

[Multay]

Hi, OK I understand...so would this be better?

 

 

In the XXXX county court

 

Claim number xxxxxxxx

 

Claimant V Defendant

 

Defendants Skeleton Argument

 

Hearing Date:

 

Introduction

 

1.This skeleton argument is filed in support of my defence dated xxxx and witness statement dated xxxxxx in this claim.

 

2. The Claimant has been extremely vague and somewhat confusing when outlining the basis of their claim. Their Particulars of Claim refers to “a mobile telecoms agreement regulated by the consumer crediticon Act 1974', whereas their Witness Statement claims “the balance of monies due against an unregulated telecommunications agreement”. This was also confirmed to be the case in a letter from the claimant in response the Defendants request for a copy of the alleged agreement as entitled by law under the Consumer Credit Act 1974.

The claimants Particulars of Claim state “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” but does not provide a date on which the alleged Default Notice was served.

This being the case, I respectfully refer the Court to CPR 16.4 (1a) -

"(1) Particulars of claim must include -

(a) a concise statement of the facts on which the claimant relies."

The Claimant has clearly not complied with this rule and the Defendant is unable to determine the type of agreement to which the Claimant refers.

 

3. In their Witness Statement, the Claimant refers to an agreement taken out by the defendant on xxxxxxx 2012 as a “O2 Unlimited 24 Month 8GB 4G Tariff” reference number xxxxxxx. In this case the Claimant is unable to produce a copy of the agreement under which they claim to hold the Defendant liable.

 

4. The Particulars of Claim refer to issuance of a default notice. The Defendant requested a copy of the document to which the Particulars of Claim refer. The claimant did not comply with the Defendants CPR 31.14 request to provide a copy.The claimant cannot provide a copy of the default notice and does not detail the date on which the termination of the alleged contract occurred, only the assertion that it was terminated, without supporting evidence.

 

5. In their Witness Statement, the Claimant refers to an agreement taken out by the defendant on xxxxxx 2012 as a “O2 Unlimited 24 Month 8GB 4G Tariff” the termination of which resulted in an early cancellation fee of £xxx.xx. The claimant is unable to produce evidence of any such agreement or the terms and condition relating to an agreement entered into during 2012.

 

6. In their Witness Statement, the Claimant refers to an agreement taken out by the defendant on xxxxxx 2012 as a “O2 Unlimited 24 Month 8GB 4G Tariff”.

Were this the case, the defendant’s obligations under this agreement would have been discharged at the point of termination of contract based on the date specified within exhibit xxx page 14 and dated 18th. xxxxx 2015 to 18th. xxxxxx 2016.

 

7. The claimant states “the claimant believes the defendant will have nevertheless been charged Fees in accordance with these terms and conditions” The terms and conditions to which the claimant refers, and has entered into evidence, are a printed copy taken from the O2 website and are dated 21.5.15. These terms and conditions were not in force when the alleged agreement was taken out and as such, the claimant cannot be certain of the exact nature of any alleged breach.

 

8. The claimant failed to comply with the defendants legal information request under CPR 31.14 prejudicing the defendant’s ability form a suitable defence and preventing any form of Mediation.

[AndyOrch]

Excellent

[Multay]

Thanks Andy, I'll hand it over on the day as I won't have time to get it to them otherwise. I was worried before that it had to be in before the court date but have since read that it's perfectly fine to hand it in on the day. I may be able to get to the court later today but I think I'll be cutting a bit fine.

 

 

Thank you for all of your help and I'll let you know what happens.

 

 

Cheers. M

[AndyOrch]

You could email a copy to the claimants solicitor in advance...then you cover yourself to any argument of it being late or ambushed.

 

Keep pushing the service contract and ask for clarification and evidence of the 24 month contract...as you seen in Uncle Pete's thread.

[Multay]

Ok, will it be ok to leave it a bit though... Maybe until 4pm.. will that be OK? Can I email a copy to the court or do I need to drop it in?

 

 

I'll try my best with the Service agreement - Surely the fact they put the wrong the thing in POC must carry some weight? I still can't get over the fact that they say they don't need to show the agreement when the breach of the agreement is what they are suing me over... It astonishes me.. I might risk 70 quid and try it on them... I could say they agreed to pay me £4999 but I don't have any proof other than a document I wrote myself and a record on my computer blah blah...

 

 

I suspect It will turn out the same as uncle Pete's if I'm lucky... I won't be happy with that but it will be better than the £900 they are claiming at the moment.

[AndyOrch]

Sure you can email the Court a copy also...mark it for the attention of the Court Manager and ask that it be placed it the file pre hearing.

 

Of course you are correct...if you cant prove anything by way of evidence (document) it may as well be 36 months...who would know.

[Multay]

The only thing they have is a bill that says it from 2015 but they refer to an agreement from 2012.... You'd think the court would just throw it out... I really don't understand the legal system. ...

[fkofilee]

Well if you had a signed contract in 2012 - The agreement stated 24 months. Takes you to a maximum of Dec 2014...

They pull a bill from 2015 with ETFs... Of which 2015 there would be no ETFs...

 

Holes in defence argument....

[Multay]

It genuinely surprises me it's got this far... Especially when it was clear I was going to defend...

[fkofilee]

Remember they have investors to please, and are overworked to try and get claims.

I am surprised it has gone this far, but now that you have seen through the veil - How do you feel?

 

I remember earlier in the thread you were just going to possibly pay them etc? (Something along those lines)

[Multay]

I know... it's hard though as it feels like the legal system is constantly in their favor. It feels like the burden of proof is on me rather than them.

[Multay]

Hi,

 

I just got back from court having lost.

 

The basics are:

 

Was all looking good for the first 10 minutes

- Lots of excuses from the advocate about the evidence and lots of head shaking from the judge then it all went downhill.

 

Didn't matter that the POC was incorrect.

Didn't matter there was no default or letter of termination.

Didn't matter there was no agreement as the bill they produced showed I must have had one.

 

I did manage to get the ETF thrown out but the judge felt "on the balance of probability" I was liable for arrears.

 

Didn't matter they had not complied with my CPR 31.14.

 

Nor did it matter that I couldn't go through mediation because they didn't supply any info as per CPR 31.14, so their costs of £220 were upheld.

 

 

She wasn't prepared to listen to my argument about the costs, even though they amount to more than the arrears they claimed.

 

So the long and short is that,

even though I got the ETF thrown out,

I have to pay them £350 which when added to the money I lost by not working today, the time and effort put into researching and the sleepless nights ,means I'm worse off by around 50 quid than if I had just paid them, sadly. And I have to pay it within 28 days.

 

A good day for Lowell and encouragement to continue I suspect.

 

I think I need to seriously consider ever going down this road again as the experience has really just reinforced what I already thought about the legal system.

 

 

Sadly, companies like Lowell can and do win simply because they have resource and can take advantage of untrained people like me.

 

I have no doubt if I had a solicitor in with me I would have won, but I had no real idea what I was doing, what I could and couldn't say or how the process works despite lots and lots of research.

 

I think it was folly on my part to believe that I could go up against an experienced legal professional and win.

 

For what it's worth, the judge did take time at the end to compliment me on the presentation of my case, the ease with which she could read it and said it was better than most solicitors.

Presentation does matter, I'd have probably lost my house if I'd not presented well....

 

Thanks for your help everyone.

 

Cheers. M

[AndyOrch]

Sorry to hear this Multay....

 

But lets place it in perspective when defending a claim......8 out of 10 dont even get to trial once a defence is submitted.If you hadn't defended at all they would have got Judgment automatically.

 

You have cost them further expense to enforce the claim...the more you cost them the less profit they make on your debt.

 

I am blue in the face explaining that CPR requests are civil they dont have to comply until after allocation.

Mediation is an exercise to narrow differences and possibly agreeing a settlement...nothing to do with any documents disclosed or not.

 

I would state that £50 is well worth the exercise to put them to work and make them work for their profit...rather than buying defunct debts and attaining default judgments which they then go on to secure against your property for an initial debt they purchased for 10/15p in the £.

 

If ever you get another claim will you just admit and accept ?

 

Andy

[fkofilee]

HI Multay

 

Sorry to hear this - it's terrible that they won, but put it this way - They lost the ETFs part and that's the main thing as it cut the debt by some amount!

[Multay]

Sorry to hear this Multay....

 

But lets place it in perspective when defending a claim......8 out of 10 dont even get to trial once a defence is submitted.If you hadn't defended at all they would have got Judgment automatically.

 

You have cost them further expense to enforce the claim...the more you cost them the less profit they make on your debt.

 

I am blue in the face explaining that CPR requests are civil they dont have to comply until after allocation.

Mediation is an exercise to narrow differences and possibly agreeing a settlement...nothing to do with any documents disclosed or not.

 

I would state that £50 is well worth the exercise to put them to work and make them work for their profit...rather than buying defunct debts and attaining default judgments which they then go on to secure against your property for an initial debt they purchased for 10/15p in the £.

 

If ever you get another claim will you just admit and accept ?

 

Andy

 

I don't know..

. As it stands now,

I've 28 days to pay all of it or I get a ccj.

 

 

It's just amazing that things are so heavily skewed in their favour.

When their advocate asked for a chat beforehand she was almost laughing at the points I'd made in my defence and also said I couldn't submit my skeleton argument, I just said I'd leave it to the judge.

.. I now know why.

 

 

They really didn't have to prove anything,

just make vague statements that I couldn't disprove.

 

 

They used the words "likely" "could" and "believe" to great effect.

I was mistakenly under the impression they had to prove the debt,

they didn't need to today,

they just simply needed to show that I had paid some money to o2 at a point in the past and that was good enough.

 

Never mind, it's an interesting lesson to learn....