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

[joneshousehold]

Thanks for the response.

 

The document I have attached is not a witness statement. That was submitted a couple of weeks back in line with the court directions. The document is a sort of speaking note or brief for talking through in the hearing.

 

The witness statement is at post #7

[AndyOrch]

You wont get chance to talk through several pages......do a Skeleton with bullet points.

[joneshousehold]

I think that was what I was looking for, a sort of skeleton arguments

I am not sure how I get the arguments across if there is not enough time. The documents only came to the defendant when the the claimant provided their witness statement and so it is only now that I have been able to pull this together. Do I need to send in a supplemental witness statement?

[AndyOrch]

Its your choice......looking through your notes....and what has come to light since the claimants disclosures.

 

You state that the debt was paid off...if you have proof of this that is all you need...the rest is irrelevant.

 

Keep it simple.....if paid off prove it.....if the reconstituted agreement is invalid state it and reasons.

 

Forget the Notice of Assignment..its not a strong argument.....dates can be an oversight and the court will run with the claimant.....as long as they have proof by way of the Deed of Assignment..the debt is theirs to legally try to collect.

 

But only if its owing ...if it is then attack the agreement.

 

Andy

[joneshousehold]

Third attempt

 

I have reordered the points in order of importance.

 

A slow read should take 15 minutes plus a bit extra for the judge to look at documents. I have left all the arguments in for now but can take some out if that is still too long

 

Any other advice, suggestions, hints or tips gratefully received.

 

Thanks for your help

case outline v3.PDF

[AndyOrch]

So you have no proof that you have paid this off before the claim was issued?

[joneshousehold]

The defendant does not have any paperwork. Can give verbal testimony and use claimant's document

[AndyOrch]

No statements form the Bank account which it was paid from ?

[joneshousehold]

That would only confirm what is shown on the schedule from Shop Direct

[AndyOrch]

True...so their statements are fictitious as you state the debt was paid off...you have no proof it was paid off...tricky...why would a Cat Company not show all your payments and the true balance?

[Old Cogger]

makes you wonder they also issue receipts for payments then refuse to credit accounts??? wonder why they do not like it when you stop paying them then the gold diggers of DCAs chase until complaints to shop direct it all suddenly goes quiet>>??>

[joneshousehold]

Fictitious or not accurate - not necessarily the same thing.

 

More likely admin errors I expect.

I am told the account was paid off and when I looked at the figures, the numbers just do not add up.

 

There are no charges on the transaction list which would be expected if the account was in arrears after the final payment.

 

However payments are made regularly until they stop.

Also the amounts paid exceed the amount of goods purchased by a significant amount for the period where all transactions are thought to be known (ie 2011 onwards).

 

The excess would have to be for goods purchased prior to 2011 .

Based on the level of payments at the time (c £100pm

)

the balance at the start of the period could be no more than £1200 given that the type of account allowed for 20 or 52 week payment periods only.

 

In reality it is probably less and the surplus payments of £1000 confirm that.

 

For the claimant's argument to hold up, the opening balance would have to be nearer £3000 and even at 52 week payment periods, that would be a minimum payment of £250-300 per month, much more than the actual payments

 

If the defendant's statement is correct, it would seem wrong to make that a secondary argument.

 

It should be the primary one and if the judge does not think he is a credible witness then the secondary arguments on validity of the agreement and lack of evidence of default notice should be considered.

 

That was my thoughts but if you have any other ideas or suggestions give me a heads up and I will have a look at how it can be incorporated

[joneshousehold]

10. Supplementary Witness Statement (redacted version).doc

The hearing that took place a month ago was very short. The Judge noted that he claimant produced evidence only at a very late stage leaving the defendsnt unable to respond. The judge therefore ruled that each party should make a 2nd witness statement. Here is the one sent by the defendant

 

The claimant has now responded with the same Witness Statement as before with the following alterations

 

The defence is made up of 5 elements and responds as follows

1. the claimants particulars were insufficient - defendant admits to dealings with the original creditor and so debt is real

2. the account was repaid in full - claimant put to strict burden of proof of payments (even though defendant has said all payments are outlined in claimants documents and it is the errors in those documents that demonstrates the account was cleared)

3. the claimant has only produced a reconstituted agreement - the defendant has confirmed the original cannot be produced but is instructed by claimant that the reconstituted documents etc are correct

4. no default notice was received - defendant is unable to provide evidence but no reason to believe not received. Statement of account clearly demonstrates the default date was as stated

5. no notice of assignment was received - documents sent and no reason to believe not received

 

There is no comment on S61(1)(a) CCA74 re lack of signed agreement

There is no comment on doubt cast on reconstituted agreement re name of original creditor, date etc

Defendant calculations showing account must have been cleared dismissed as irrelevant as the claimant asserts the document it provided is clear and is stated to be a summary of the account not a statement

 

Other points I have to think about are

1. the 2nd witness statement by defendant states incorrectly that he is trained in law and omits the (crucial) word not. My typo error and "over reading" purely to blame I think. My immediate reaction is the write to the court to rectify this and copy to claimant

2. the dates of the first payment on the account does not accord with the alleged T&Cs which refer to payment due 21 days after statement of account which is issued every 28 days. The first payment should therefore be due no earlier than 49 days after the account was opened but was in fact shown as only 10 days after the account was opened. This is a new argument and I am not sure how the courts will react if it is was to be brought up at this late stage

3. The claimant has made a comment about the witness statement sent to it not being signed. The copy to the courts was signed but the claimant was only given an unsigned copy. The claimant goes on to say that the witness statement should be inadmissible and this was raised at the earlier hearing. In fact this was not raised as there was no discussion on the case at all and the claimant's witness statement which was prepared by a Litigation Executive who was not present is incorrect. Not sure how useful or otherwise this point is as yet.

 

Any thoughts?

 

If I write to the court and the claimant I am wondering if I should say their statement is an admission the claim is fatally flawed and the defendant is willing to accept their withdrawal. The court was asked to agree costs could be considered if unreasonable action and so maybe I could ask for a token amount to cover small costs of unrepresented party in exchange for agreement to withdrawal.

 

Alternatively if the defendant's case is strong enough would it be worth appointed a professional as the costs could be recovered

[dx100uk]

Waste of typing it out

We need to see it please

[joneshousehold]

My apologies, here it is

Thanks

attachment (1).pdf

[joneshousehold]

The exhibits are the same as the first witness statement posted at #5 above. There are no changes or extra items attached to the second statement

[shamrocker]

Hi guys... glad to see you're still working hard as ever DX and Andy!

 

Just posting here as the OP PM'd me and we discussed a few things, but I think it's better to take it back onto the main forum for the benefit of others.

 

joneshousehold - could you confirm the amounts of the four payments that are stated on the account summary, but have a ? against them instead of the actual item name. The scan you posted is too pixelated to read when zoomed in correctly.

 

Sham

[joneshousehold]

Hi Andy, thanks for that

 

Hi Sham, thanks for taking the time to look

There are actually 5 purchases listed with a ? against them. They are

20/07/12 £419

03/10/13 £349

11/11/13 £139

19/05/14 £449

06/09/14 £649

 

I asked the defendant about each of them and he said he did not recall purchases at this sort of price and they are all a lot more than all the other items listed.

 

 

The exception is the £139 on 11/11/13 which interestingly is duplicated in the next entry dated 26/11/13.

 

The one dated 6/9/14 is particularly high and is seemingly dated after the defendant considered he paid off the account

 

It was this situation that led me to look at the transactions in more detail and I do wonder if there have been some admin errors in the account that has led to this situation

 

JHH

[shamrocker]

I just wondered if those mysterious items amounted to similar or exactly the amount they're claiming. There's loads of scope for you to attack their WS, but you really need to be clear and concise. We can come back to that though.

 

Can you confirm the dates for the last 3 payments made to the account? It's really difficult to read them due to the resolution on the scan.

[joneshousehold]

I had wondered the same but the total of the mysterious items is too high at £2005 and I couldn't find any way to link this cleanly to the balance of £1840.05

 

The last 3 payments are as follows

6/6/14 £108

23/6/14 £150

7/8/14 £150

All show as bank payments in the schedule

 

I have tried to make another pdf document of just the account transactions extract which is attached. Not sure if this is any clearer

Account transactions.pdf

[shamrocker]

Ok, thanks.

 

Do you know what the 'Adjustments (in last 3 years)' column refers to?

 

They have they provided two agreements...right? Any idea why?

[joneshousehold]

Not sure about the adjustments as I can't match the amounts to anything in the summary above. Many of the entries refer to commission or PROM PRICE ADJ which I took to be a promotion price. This is a catalogue account where the idea is that the account holder can earn commission on sales to other people.

 

Also despite the wording saying 'in last 3 years' the dates show clearly it relates to a longer period with the first entry dated 24/11/08 and the last 25/1/13.

 

Yes you are right there are two agreements provided. Both agreements are reconstituted but only the first one actually has any name/address etc inserted. Perhaps the claimant is not sure which version was actually issued at the time. The defendant says he never signed and returned any document, nor did he think it was an online application.

 

The first document seems to be in the name of Littlewoods and the second in the name of Shop Direct. This seems to be linked to a change of company name which I have identified from Companies House actually took place on 5 January 2009 ie after the opening date of 12 November 2008 according to the documents supplied by the claimant. I have no idea why they supplied two and no explanation has ever been given. I used the layout of them both to indicate the first one showed this was not online based application so could not be deemed to have be electronically signed

[shamrocker]

The adjustments are additions to the balance. If you subtract the credits figure from the debits figure and add the adjustments, the total matches the default amount - i.e. £1840.05. They're not very clear though, are they?

 

Yes, they always seem to have "3 years" figures, when it actually amounts to many more.

 

Regards the agreements - I think it might not score any points with the judge if you were to deny entering into an agreement, or try to raise a defence based on it's CCA compliance. If it was your last line of defence then fair enough, but you have stronger points to use.

 

I would personally attack two points - 1. the amount claimed 2. the default notice.

 

Your relative tells you that they paid the account off. Who's to say this is correct? If you could prove it, then it would be game over and you would not need to draw on the DN, but as you can't prove it then I would have the DN as a backup. I don't know the defendant, and for all I know, the debt could be owed and a DN could have been issued. As it happens, I don't care - but as Lowell have left these elements of the claim open to be attacked, all you can do it challenge them and it'll be up to them to provide adequate evidence to defeat you. Let's hope they can't.

 

Don't go off on tangents with the WS - a few succinct paragraphs should be plenty. Anything that includes waffle will only dilute the effectiveness of the points you make and the judge might see it as unnatural and without conviction.

[joneshousehold]

Ok, thanks for this.

 

The current position is that the court asked for each side to send a second witness statement and the defendant sent his in (see #38) followed by the claimant's which is the one you have been looking at. We are now waiting to hear from the court presumably with a new date so at the moment I am trying to put together some notes for the court hearing.

 

On the DN, the advocate for the claimant said the DN was not relevant as the claim related to sums due rather than the early repayment of a debt. I made a note of what she referred to and I will have a look at it again and see if I can put together an outline of what she said.

 

You suggest the lack of signed agreement does not warrant attention. Is the CCA compliance argument one that judges tend to disregard? My understanding of the Act was that Parliament introduced this legislation to protect the debtor from the creditor who was perceived as a stronger party in the agreement. I know the legislation has been watered down a bit but the signed agreement part is still in place.

 

Thanks again

[shamrocker]

Just play your strongest hand for the WS, and hit them with the points they can't overcome without producing the necessary paperwork. With regards the total of the claim, simply dispute that anything is owed and challenge the account summary as an unreliable source of evidence, for reasons X, Y, Z, etc. Press them into producing itemised statements that provide a running account balance.

 

Regards the DN - you simply state that there was no default and, therefore, there was no default notice served. CCA s.87 applies. 'Sums due' assumes that the agreement had ended, but it cannot be terminated without first serving a compliant DN.

 

Use the above points to throw confusion on their claim. It will force them to produce the correct paperwork. In the case of the DN, the comms log is probably all they can realistically produce (why haven't they included it already tho???) - but this will likely be sufficient proof in the eyes of the court if they did.

 

Sorry, I'm really struggling for time at the moment, so can't come up with much else until I do get more time. I think it would be good to see your attempt at a WS. Andy will have some valuable guidance for you, I have no doubt.