Court Date - Lowell Witness Statement 2 days before (URGENT)

[sj1988]

Hi All,

Will cut a long story short. Lowell issued a CCJ against myself (April 2017) to an old address (2009 I last lived there) which obviously I never saw and was unable to defend. I found this out as I received a Warrant of Control to my current address (been on the electrol roll for 2 years) which prompted me to check my credit file.

I put in an application to set aside and received a date for hearing (27th June) 3 days time.

Yesterday, via email I received Lowell's witness statement. (2 day prior to the hearing). I noticed that in the first part of it, it states:

"The Assignor is now unable to provide the Claimant with a written copy of the Agreement" (I have attached full paragraph to this post).

On that basis, am I correct in thinking when I turn up to court on Wednesday and request to see the credit agreement and Lowell are unable to provide it, that this will get dismissed?


Many Thanks,

S

[sj1988]

Hi All,

The hearing was today and the judge stated he would set the judgement aside.

He mentioned something about the claimant having to file within 7 days and the defendant (me) to file a defence within 21 days (I kind of didn't hear as there was traffic outside the window). Does this mean I still need file another defence within 21 days for the judgement to be removed?

FYI - Lowell did have a representative turn up for this, and it's not a particularly big amount, he pulled me into a room prior to the hearing to attempt to settle but was poorly conducted.

Best,

S

[Setmefree3]

jaguarsuk can you help.

[jaguarsuk]

Hi All,

The hearing was today and the judge stated he would set the judgement aside.

He mentioned something about the claimant having to file within 7 days and the defendant (me) to file a defence within 21 days (I kind of didn't hear as there was traffic outside the window). Does this mean I still need file another defence within 21 days for the judgement to be removed?

FYI - Lowell did have a representative turn up for this, and it's not a particularly big amount, he pulled me into a room prior to the hearing to attempt to settle but was poorly conducted.

Best,

S

Hi S

Yes you will have to file a defence if they file. If they don't then the court should order the claim struck out.

The pulling you aside is pretty standard fayre, it's informally known as a "Without Prejudice Chat" and usually would be the sides outlining what their position is to try to settle before going into court.

The fact they have informed you "The Assignor is now unable to provide the Claimant with a written copy of the Agreement" means there is absolutely no way you should settle as this is unenforceable without that agreement. If they claim based on an agreement then the court has to see it or else how can they determine what terms the parties agreed to?

EE could have allowed you to leave when you felt like owing nothing within their terms, but how would they know without seeing them?

In reality they would be fools to do anything other than file a Notice of discontinuance, but they probably will file in the hope they can scare you into settling.

If they do not serve you with copies of what they file then you will file a defence based on the Example Defence, but we'll be including that little nugget of gold from their witness statement in it therefore post it here before filing to enable a read through.

In the meantime send CPR 31.14 Request to turn the screws a little. You want a copy of the “24 month fixed term agreement (“the Agreement”) entered into on 6 June 2012” relating to the assignors account number 103097829.


Deadline for filing defence is 18th July 2018 at 4pm

[sj1988]

Hi JaguarsUK,

Firstly, many thanks for taking the time to explain that.

I received in the post today "General Form of Judgement or Order" (Attached are the orders).

A couple of points are, if Lowell do not file by 4th July, do I still need to file a defence or does it simply get thrown out?

My original defence to defend the judgement was it being statute barred, however the judge stated I wouldn't be able to use that as a defence (as it's not over 6 years). I don't even acknowledge this debt, I can prove I've never made a payment on the account through bank statements (Lowell claim I made a payment in April 2013).

Happy to pay for a solicitor to assist, does anyone know of any Brighton/Sussex way?

Best,

S

[davenewbergr]

Hi JaguarsUK,

My original defence to defend the judgement was it being statute barred, however the judge stated I wouldn't be able to use that as a defence (as it's not over 6 years). I don't even acknowledge this debt, I can prove I've never made a payment on the account through bank statements (Lowell claim I made a payment in April 2013).

Happy to pay for a solicitor to assist, does anyone know of any Brighton/Sussex way?

Best,

S

You (or the judge) aren't clear why he says the Limitation Act doesn't apply. Prima facie it would appear to offer a complete defence.
As for proving: your bank statements can't really prove that you haven't made a payment in the last six years, and even if they did it could be alleged that you acknowledged the debt in some other way. But you can certainly require the other side to disclose any evidence of the alleged 2013 payment. Such an allegation, if unsupported by documentary evidence, is unlikely to persuade a court. If that is the case you can point to the fact that s.5 Limitation Act 1980 says that an action in simple contract cannot be commenced more than six years after the cause of action arose.
The Court's directions are not a drafting triumph. Since the Claimant only has to serve on you the documents it has failed to serve until now, the Court didn't expect that it would fail to do that. I would have asked for an 'unless' qualification ('unless the Claimant do... by 4 July the claim is struck out without further order') but clearly you can't file and serve a Defence to the claim form if it is not served on you as directed. If you don't have one by 4 July then write to the Court and ask it to strike out the claim of its own motion.

[jaguarsuk]

Hi JaguarsUK,

Firstly, many thanks for taking the time to explain that.

I received in the post today "General Form of Judgement or Order" (Attached are the orders).

A couple of points are, if Lowell do not file by 4th July, do I still need to file a defence or does it simply get thrown out?

My original defence to defend the judgement was it being statute barred, however the judge stated I wouldn't be able to use that as a defence (as it's not over 6 years). I don't even acknowledge this debt, I can prove I've never made a payment on the account through bank statements (Lowell claim I made a payment in April 2013).

Happy to pay for a solicitor to assist, does anyone know of any Brighton/Sussex way?

Best,

S

The order doesn't state that it will be struck out, so you would probably have to apply for it to be struck out if they don't file.

I think they will file if they sent a solicitor to the hearing, so once you have their Particulars of Claim then you'll prepare and file a defence. Also, you'll need to file dates as instructed in Para 4 of the order.

pt2537 may be able to assist if you wanted to instruct a solicitor or have a look here: https://justbeagle.com/

[Amethyst]

Did you hear back from the Claimant?

[sj1988]

Good Morning All,

Sorry for the slow update, I have been snowed under with work.

So, Lowell failed to send the original claim form to my updated address as agreed in the first hearing. They did however, manage to send it via email?

Am I correct in saying that I can file a defence based on their failure to produce these documents as agreed by the judge?

FYI - the CCJ has been removed from my credit report.

[Amethyst]

Did you agree to service by email ? Have you been communicating with them by email up to now ?

Did they provide evidence of the agreement as ordered by the judge or just a copy of the original claim ? And what date did you get that email ? They were meant to it by the 4th july ???

You do need to put your defence in by the 25th, get your defence prepared and give court a call to say you haven't received anything from the claimant ( it might have been sent to the court )

[sj1988]

Hi Amethyst,

No I did not agree to service via email and I have never communicated via email. (Lowell have sent me original witness statement via email & now this "claim form and witness statement again)

Lowell sent the original claim form witness statement and a copy of the bill (copy of bill was included in original witness statement).

The timestamp on the email is:

date:

5 July 2018 at 17:04

No evidence of agreement purely just a copy of a bill from EE (again to note this was in original witness statement)


--- A silly question here but how do I file this with the courts? Do I send to Northampton or my local court where the hearing took place? (If so can I hand deliver).

Many Thanks,

S