** DISCONTINUED ** Received Court Claim Form from Lowell - T Mobile / EE

[R0b]

(c)entirely without prejudice to the foregoing and except where it is expressly admitted in this Defence, the Defendant denies each and every allegation in the Particulars of Claim.

Slight amendment to the wording above in red. The Civil Procedure Rules dictate that where you have not addressed an allegation that is pleaded in the Particulars of Claim, then it is deemed to be admitted. So the purpose of the wording is a catch all in the event that you forget to address any allegation in your defence. You tend to see this at the beginning or end of the defence and is useful to have in especially where the Particulars of Claim is very long or it is not properly set out where you can't address the allegations paragraph by paragraph. In this case Lowell have set it out in paragraphs and the particulars of claim are short, but it is still good practice just for any avoidance of doubt.

[Claireb5]

Perfect thanks for that Rob. I'm learning so much here, thanks again!!

[Claireb5]

rob



I actually received a letter from Lowell solicitors today basically saying that they cannot request the original agreement from Tmobile due to this not being under the CCA. They have requested statements from EE (Tmobile) but are awaiting a response. They have requested a copy of the notice of assignment from their client. Also, they have said the agreement started on 5 June 2012 and final payment was £134 received on 20 August 2012. I can't recall but seems roughly about a correct time frame from starting contract, disputing the signal issue and then making my last payment. I just wondered if this letter from Lowell would be seen by a court as satisfying my original request for detailed particulars which is part of my defence, for example, I had this section as the opening to defence:

Contrary to CPR 16.4(1)(a), the Claimant has not properly pleaded its case in that there is not a concise statement of facts upon which the Claimant relies. In particular, the Particulars of Claim does not identify:
(a) the nature of the agreement with T Mobile UK Ltd (“T-Mobile”);
(b) the date in which the Defendant was said to have entered into the agreement;
(c) on which date(s) the Defendant had allegedly failed to maintain the repayments; and
(d) the exact date when T-Mobile terminated the agreement and gave notice of the same.

[Claireb5]

rob

Any advice for my final defence (pasted below). Since Lowell wrote to me (post above) and provided some details such as date the contract was taken out, and the nature of the agreement (mobile services), I'm wondering if this still counts as them not complying with CPR rules? They haven't provided any documents however. I have a week to submit my defence. I'm wondering about how to change or remove the bits in blue below? Any advice would be appreciated.

Many thanks
Claire







1. In this Defence:

(a) any allegation which is not admitted by the Defendant, the Claimant is required to prove;
(b) all allegations that are not specifically pleaded to by the Defendant are denied
(c) entirely without prejudice to the foregoing and except where it is expressly admitted in this Defence, the Defendant denies each and every allegation in the Particulars of Claim.

Non-compliance with the Civil Procedure Rules

2. Contrary to CPR 16.4(1)(a), the Claimant has not properly pleaded its case in that there is not a concise statement of facts upon which the Claimant relies. In particular, the Particulars of Claim does not identify:

(a) the nature of the agreement with T Mobile UK Ltd (“T-Mobile”);
(b) the date in which the Defendant was said to have entered into the agreement;
(c) on which date(s) the Defendant had allegedly failed to maintain the repayments; and
(d) the exact date when T-Mobile terminated the agreement and gave notice of the same.

3. The Defendant requested inspection of documents mentioned in the Claimant’s Particulars of Claim under Civil Procedure Rule 31.14. Request was sent to the Claimants solicitors on 30.01.2018 and signed received by them on 31.01.2018. The Claimants solicitors responded by letter dated 06.02.2018, received on 10.02.2018 notifying the Defendant that they are unable to request the original agreement from the original creditor, they have requested statements from the original creditor and are awaiting a response. To date the Defendant has not received required documentation to effectively plead his case.

4. Accordingly, the Defendant invites the Claimant to provide required documentation of its claim by way of reply or alternatively, the court is invited to exercise its case management powers and make an order that, unless the Claimant provides the Defendant with sufficient particulars in accordance with CPR 16.5, the claim shall be struck out. If the Claimant complies, the Defendant shall be entitled to amend and file his Defence accordingly with those costs borne by the Claimant.

5. Without prejudice to the foregoing, the Defendant responds to the entirety of the Particulars of Claim as follows:

The parties
6. At all material times:
(a) Lowell is a debt portfolio purchasing business, which includes, amongst other things, the purchase of bad debts from telecommunications companies.
(b) The Defendant is a private individual acting as a consumer.

The agreement
7. It is accepted that the Defendant entered into an agreement with T-Mobile on 05.06.2012 for the provision of mobile telephone airtime and the purchase of a handset.

8. The Defendant is unaware of what debt the Claimant refers to. For the reasons set out in this Defence, denies that he is liable to pay the Claimant as alleged or at all.

The notice of assignment
9. The Defendant denies having ever received a notice of assignment as alleged or at all. Without prejudice to the foregoing denial, the Claimant has not stipulated in its Particulars of Claim the date when the notice of assignment was purportedly given to the Defendant. The Defendant requires the Claimant to prove by way of evidence that the said notice of assignment was validly served upon the Defendant.

10. 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 of the Law of Property Act 1925.

Frustration or breach of contract by T-Mobile
11. From the start of the contract, the Defendant had been unable to receive reasonable service from T-Mobile, namely there was no signal being received at the Defendant’s premises. It was explained to the Defendant by T-Mobile that there were no signal issues at the time the contract was entered into.

12. The Defendant first contacted T-Mobile during the first few days of the start of contract to address the issue of no signal. The Defendant was told by T-Mobile that she did not have the right to cancel the contract. The Defendant was advised to enter into various troubleshooting tasks, which were carried out by both T-Mobile and the Defendant. The Defendant contacted T-Mobile on numerous occasions over several weeks to address the issue of no signal but T-Mobile were unable to diagnose and/or resolve the no signal issue.

13. T-Mobile were in fundamental breach of the contract in that they were unable to provide any service at the Defendant’s premises and performance of the contract became impossible on the part of T-Mobile thus the Defendant was discharged from further performance of the contract. Accordingly, the Defendant accepted T-Mobile’s fundamental breach, notified them of this and no further payments were made.

14. The Defendant is unaware of any debt owed to T-Mobile or any subsequent assignee. The Claimant has failed to sufficiently identify how the amount Claimed has been calculated.

15. Notwithstanding the above, should the alleged amount claimed include an early termination charge(s) amounting to the entire balance of the remaining contract, OFCOM guidance states that any Early Termination Charge that is made up of the entire balance of the remaining contract is unlikely to be fair as it fails to take into account the fact that the provider no longer has to provide and pay for their service.

Damages sought by Lowell
16. For the reasons already mentioned above, the Defendant denies that the Claimant is entitled to the sums as alleged or at all. If, (which is denied), the Claimant is entitled to the said monies whether in part or in whole, the Defendant puts the Claimant to strict proof that it is entitled to such sums.

17. In the circumstances, the Defendant denies that the Claimant is entitled to the relief claimed or to any relief.

Statement of Truth

I believe that the facts stated in this form are true.



Signed by the Defendant ………………………………………..

Date ………………………………………..

[R0b]

If they have replied with the date of the agreement and you think they have covered the nature of it then you simply remove the relevant points e.g. (a) and (b). Have you received a response from EE yet and did you make sure to send it to the correct address and for the attention of the data controller? I believe the correct address is below

Information Disclosure Manager
EE Ltd
1 Trident Place
Building 2
Hatfield Business Park
Hatfield
Hertfordshire
AL10 9BW

YOu will need that information as soon as possible to assist you with your defence.

[Claireb5]

rob

Hi
Thanks so much for that, I will edit out those - oh dear I have sent it to the wrong address, I used:

EE LIMITED
EE Customer Services
6 Camberwell Way
Sunderland
Tyne and Wear
SR3 3XN

I sent that on the 5th Feb I believe - Is it possible they may pass it on?

[Claireb5]

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[Claireb5]

R0b

Just wanted to update you - have filed the defence via email and it's showing on MCOL already as received. Sent another SAR to EE to the address you provided above, so hopefully will receive a response before WS stage etc where I hope I could add any relevant details from the SAR if anything comes back. Just wanted to thank you again for all the help and advice and will keep updated.

Claire

[Claireb5]

Hi Guys

I just wondered if anyone could help me understand this - I retuned my DQ by email to the court (as they confirmed this was fine) and a copy to Lowell. I haven't however heard anything and it's around 3 weeks now since I submitted it (a couple of days before deadline). I've emailed the court twice now to ask for confirmation it was received and again no reply which is odd as they've always been really helpful and quick to advise me before (about email submission of defence etc). Also MCOL hasn't been updated saying that my DQ has been filed, but is showing Lowell's DQ as filed. Should I typically have heard something from the court by post by now?

Thanks guys

Claire

[R0b]

Have you tried contacting MCOL?

[Claireb5]

I've just been emailing ccbcaq@hmcts.gsi.gov.uk but will email MCOL and phone tomorrow. Many thanks

[Claireb5]

@R0b DISCONTINUED!!!
I just wanted to let you know that the court date was set for mid August. I decided not to enter into mediation with Lowell. Lowell paid the hearing fee. Lowell tried to contact me by phone a few times and by letter to negotiate a settlement out of court. I actually decided to completely ignore all contact from them and didn't enter into any negotiation as I felt my case was strong. They then sent a letter notifying me that they were discontinuing proceedings!! Thank you so much for all of your help and support!!!!

[R0b]

Well done on getting it discontinued, I would double check with the Court that Lowell have issued a discontinuance just to be on the safe side. It sounds like Lowell weren't prepared to take the risk after reading your defence. This usually happens particularly where their claim is not as straight forward and the debtor puts in a reasonable defence, it's likely going to eat into their profits so they would rather discontinue (after attempts to settle are unsuccessful) than waste further money.