Lowell claimform - Shop Direct cat debt - need supplementary WS/skeleton argument examples

[joneshousehold]

I am helping a relative with a claim that has come through MCOL.

 

After requesting documents,

we have finally been sent the Claimant's Witness Statement which includes a schedule with some further information.

 

I want to get a supplementary witness statement prepared plus a skeleton argument.

I saw one thread that seems to cover the situation

 

http://www.consumeractiongroup.co.uk/forum/showthread.php?443519-Lowell-claim-form-old-shop-direct-CAT-debt-***Claim-Dismissed***

 

However the links to the relevant documents are not working and I have seen some mention of the documents being lost following a hack.

Post #149 onwards seems relevant

 

http://www.consumeractiongroup.co.uk/forum/showthread.php?443519-Lowell-claim-form-old-shop-direct-CAT-debt-***Claim-Dismissed***/page8

 

Can anyone help me find these or similar documents that I can use as a guide?

 

Thanks

[dx100uk]

ok thanks

 

can we have the background please

 

fill the below link out

http://www.consumeractiongroup.co.uk/forum/forumdisplay.php?170-Financial-Legal-Issues

 

and post up the defence you used as well please

and your WS

[joneshousehold]

Thanks for the response. Not sure the link is quite right. Do you want to whole nine yards from here

 

http://www.consumeractiongroup.co.uk/forum/showthread.php?419198-You-have-received-a-Claim-What-you-need-to-do.-**UPDATED-2016**

[dx100uk]

yes sorry that's strange the autolink failed

thanks!

[AndyOrch]

You could PM Shamrocker and ask he look in on your thread and if he could re upload the Supplemental/Skeleton Documents.

 

http://www.consumeractiongroup.co.uk/forum/member.php?71004-shamrocker

 

Regards

 

Andy

[joneshousehold]

Name of the Claimant Lowell Portfolio 1 Ltd

 

Date of issue – 26/10/16

What is the claim for –

1.The Claimant's Claim is for the sum of £18xx.xx being monies due from the Defendant to the Claimant under a Home Shopping agreement regulated by the Consumer Credit Act 1974 between the Claimant and Shop Direct Finance Company Ltd under account Wxxxxxxx and assigned to the Claimant on 6/3/2015 notice of which has been given to the Defendant,

 

2.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,

 

3.The claim also includes statutory interest pursuant to section 69 of the County Courts Act 1984 at a rate of 8.00% per annum (a daily rate of £0.40 from the date of assignment of the agreement to 05/03/2016 being an amount of £146.40.

(Note the closing bracket is missing on the claim particulars and presumably should be after the £0.40)

 

What is the value of the claim? £2171 in total

 

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

 

When did you enter into the original agreement before or after 2007? Recently been advised it was November 2008

 

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. Assigned

 

Were you aware the account had been assigned – did you receive a Notice of Assignment? No & no

Did you receive a Default Notice from the original creditor? No

 

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

 

Why did you cease payments? Defendant says the account was cleared and all amounts paid up

 

What was the date of your last payment?7/8/14

 

Was there a dispute with the original creditor that remains unresolved? No

 

Did you communicate any financial problems to the original creditor

and make any attempt to enter into a debt management planicon? Not relevant. The claim was the first indication of an issue

 

Defence

 

1. The Defendant contends that the particulars of claim are vague and generic in nature. The Defendant accordingly sets out its case below and relies on CPR r 16.5 (3) in relation to any particular allegation to which a specific response has not been made.

 

2. The Defendant notes the opening sentence referring to an agreement between him and Shop Direct Finance Company Ltd of an uncertain date. The Defendant has in the past had financial dealings with Shop Direct Finance Ltd. The Defendant is unaware of what alleged debt the claimant refers to having failed to adequately particularise its claim.

 

3. The Claimant alleges that the Defendant failed to make minimum payments due. This is denied.

 

4.The Defendant is unaware of what account or contract the claimant refers to nor ever recall receiving any Default Notice as alleged pursuant to the CCA1974.

 

5. The Claimant states this alleged contract was assigned to it on 06/03/2015 and that notice has been given to the Defendant. This is denied. The Defendant does not recall receiving any Notice of Assignment from either assignor or assignee pursuant to the LoP1924

 

6. It is therefore denied with regards to the Defendant owing any monies to the Claimant, the Claimant has failed to provide any evidence of assignment/balance/breach requested by CPR 31. 14, therefore the Claimant is put to strict proof to:

(a) show how the Defendant has entered into an agreement 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;

 

7. On receipt of this claim The Defendant requested by way of a CPR 31.14 request and a section 77 request for copies of any documents referred to within the Claimants particulars to establish what the claim is for. To date they have failed to comply to the section 77 request and remain in default and with regards to my CPR 31.14 request.

 

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

 

9. On the alternative, as 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 of the Law of Property Act and Section 82A of the Consume Credit Act 1974.

 

10. By reasons of the facts and matters set out above, it is denied that the Claimant is entitled to the relief claimed or any relief.

[joneshousehold]

Witness statement

1. The claimant is an Assignee a buyer of defunct or bad debts which are bought on mass portfolios of debt at a much reduced cost to the amount claimed and which the original creditors have already wrote off as a capital loss and claimed against taxable income.

 

As an assignee or creditor as defined in section 189 of the CCA this applies to this new requirement on assignment of rights. This means that when an assignee purchases debts (or otherwise acquires rights under a credit agreement) it also acquires certain obligations to the borrower including the duty to comply with CCA requirements (such as the rules on statements and notices and other post-contractual information). The assignee becomes the creditor under the agreement. This ensures that essential consumer protections under the CCA cannot be circumvented by assigning the debt to a third party.

 

2. On or around the 30 October 2016, I received a claim form from the County Court Business Centre, Northampton, for the amount of £2171.45.The claimant contends that the claim is for the sum of £1840.45 in respect of monies owing under an alleged agreement with the account reference W0148663 pursuant to The Consumer Credit Act 1974 (CCA).The particulars of claim fail to state when the alleged agreement was entered into.

 

3. Contained within the claimants particulars the claimant pleads that The Defendant has failed to maintain contractual payments under the terms of the agreement and that a default notice has been served upon the defendant (not stated but assumed to be pursuant to S.87(1) CCA). There are no details contained within its particulars about when the alleged default occurred or date of any alleged Default Notice or the degree of default or details as to how the sums claimed have accrued. The claimant is put to strict proof to evidence details of the default and service of any Default Notice.

 

4. The particulars of claim state the debt was legally assigned by Shop Direct Finance Co Ltd (which I was later advised relates to the Trading name of Littlewoods) to the Claimant and that Notice was provided by way of a Notice of Assignment. The claimant is put to strict proof to evidence the details of assignment.

 

5. On 12 November 2016 I made a formal written request to the Claimant solicitors requesting that the Claimant provides copies of all documents mentioned in the statement of case [EXHIBIT A].

 

6. On 12 November 2016 I made a formal written request to the Claimant for them to provide me with a copy of my Consumer Credit Agreement as entitled to do so under sections 78 of the Consumer Credit Act 1974 [EXHIBIT B].

 

7. I have not received any of the documents mentioned in the claimants claim form.

 

 

8. The Claimant's solicitor replied to my request on 17 and 22 November 2016 [EXHIBIT C & D] and failed to supply any documents that I requested.

 

9. The Claimants pleaded case is that the Defendant entered into an agreement with Shop Direct Finance Co Ltd under account reference Wxxxxxxx. I am uncertain as to which account this refers to. It is accepted that I have had finance products with Littlewoods in the past however I have no recollection the alleged account number the claimant refers to. Therefore the claimant is put to strict proof to disclose this agreement on which its claim relies upon.

 

Until such time the claimant can comply and disclose the agreement they refer to within the particulars of this claim they are not entitled while the default continues, to enforce the agreement pursuant to section 78.6 (a) of the Credit Consumer Act 1974.

[joneshousehold]

Witness statement from Lowells attaches a reconstituted version of the alleged agreement and a summary of transactions.

 

I have started to look at the latter but it has some odd items for significant items said to be purchased that the defendant does not recognise.

 

Also despite the alleged agreement including charges for late payments in the t&cs these do not appear on the summary of transactions which suggests there were no arrears and no late payments. I am thinking that the best way to tackle this is to challenge the evidence supplied as the defendant does not have any records or documents.

[dx100uk]

can you scan their WS And all exhibits please

to ONE multipage PDF

follow the upload

 

 

doing ok so far

[joneshousehold]

I think this is the pdf

lowell WS.pdf

Edited May 15, 2017 by dx100uk
27Mb file reduced to <2Mb - dx

[dx100uk]

the agreement is unsigned

no proof this was an online agreement either?

 

 

dx

[AndyOrch]

Its a reconstituted version DX no need for signatures and there is a tick box to accept the agreement (on Line application)

 

Andy

[dx100uk]

I was just suspicious that as it was well after the date whereby tickbox agreements came in

why not produce it??

 

why has a recon come around ..the original should be easy to get...

 

and to use one where the op's name and address has been [latterly?] added to a blank copy ??

by whom shop direct or the DCA?

 

who's filing cabinet did that come out of....

[joneshousehold]

I think it was online agreement but then I believe all Littlewoods was online by 2008 wasn't it?

[joneshousehold]

No response to the dm to Shamrocker so I am looking for some help with a supplementary witness statement and a skeleton argument/script that the defendant can use on the day

Can anyone help?

[AndyOrch]

Can I ask why you feel you need a supplemental witness statement and skeleton ?

 

Andy

[joneshousehold]

Two reasons mainly

 

The thread linked in the opening post seemed to reflect a similar situation.

Documents have now been received and the court is now more likely to accept claimants position on the balance of probability.

I thought the strict burden of proof position in court had been watered down by later legislation.

 

 

I can't see why the claimant has taken it this far in the knowledge they do not have all the documents if the legislation was unchanged.

 

 

They are sending a litigant to appear on the day apparently which is costly so presumably they consider they have a reasonable chance of success

 

The exhibits gave rise to a new argument on the veracity of the statement of the account and if the defendant was to challenge this on the day it may be ruled inadmissible if it was not given to the claimant beforehand (i.e. no surprises in court)

 

The defendant is entirely unversed in this sort of thing and I will not be able to present his case for him so he will need lots of help to get through this

 

Your question Andy suggests I may be mistaken in some of this.

If you can give me a few pointers then I will be ok to get something sorted out

[AndyOrch]

In reality once witness statements and disclosure are submitted...that really should be an end to written arguments......and you should challenge anything found that is incorrect at trial.

 

Courts are not that fond of Supplemental Witness Statements...tit for tat can go on for ever...there has to be a line in the sand....a cut off.

 

However you can draft a skeleton argument with the points you wish to raise for your benefit at trail...normally you prepare 3 copies and serve it at least 3 days prior.

 

Here is a link that includes all threads with reference to supplemental WS for information.

 

http://www.consumeractiongroup.co.uk/forum/search.php?searchid=8032265

 

Regards

 

Andy

[joneshousehold]

Thanks for the reply. I can't get the link to work. Can you point me in the right direction please

[AndyOrch]

In the search box top right in grey tool bar under the CAG Logo..type ...supplemental.... hit search...all the threads referring will come up.

[dx100uk]

search CAG box in top redtoolbar

[joneshousehold]

OK thanks for that.

 

Am I on the right track in terms of CCA legislation and the need for actual documents. I need to carry on researching the CCA to see what the claimant has to be able to demonstrate either in absolute terms or on the balance of probabilities

[joneshousehold]

Currently working on this for the hearing next week

Not everything is in here but here is my first rough draft.

Still looking at whether the reconstituted agreements are valid or could be challenged

 

I have tried to make the language simple as my relative will have to deliver it and I think it needs to seem at least genuine for him

 

Any thoughts or suggestions

case outline v1.PDF

[joneshousehold]

More work done and all points covered I think

 

Any advice would be gratefully received

 

Can anyone check my wording is ok for the Default Notice (bottom of page 7). I was concerned that S87 says the Default Notice is necessary before the creditor/owner can demand 'earlier payment of any sum'. This suggests it can still demand payment, just not before the original due date. It is a mute point as the main argument is there is nothing due but I wanted to check if possible

 

Thanks

case outline v2.PDF

[AndyOrch]

Hi

 

Take a look at post #128 of the following thread.

 

http://www.consumeractiongroup.co.uk/forum/showthread.php?469013-Arrows-Reston-claimform-old-egg-loan/page7

 

You attempt at a witness statement is very unconventional ...you have most of the posts but its layout and format require work.

 

Andy