Just a quick question about a County Court claim by Lowell Solicitors

[Treebadger]

This is great news, if they cannot prove a default notice compliant with the CCA 1974 was served the claimant can't win their case. It would seem also they can't provide a legible copy of the credit agreement which also oursuant to CCA 1974 makes the debt unenforceable.

Thanks for the reply :-)

[Treebadger]

jaguarsuk Another update:

Just received a letter from Lowell, telling me that they have sent a 'Directions Questionnaire' to the court. They have 'agreed to mediation in our Directions Questionnaire which may result in settlement'.

They also say that if I agree to mediation, I should tick 'yes' box in part 1 of my own Directions Questionnaire. (I have not received a Directions Questionnaire from the court).

It then goes on to discuss settlement offers etc.

I'm guessing I will need to wait for my own DQ to arrive before doing anything else, so will update again when/if that arrives.

[jaguarsuk]

jaguarsuk Another update:

Just received a letter from Lowell, telling me that they have sent a 'Directions Questionnaire' to the court. They have 'agreed to mediation in our Directions Questionnaire which may result in settlement'.

They also say that if I agree to mediation, I should tick 'yes' box in part 1 of my own Directions Questionnaire. (I have not received a Directions Questionnaire from the court).

It then goes on to discuss settlement offers etc.

I'm guessing I will need to wait for my own DQ to arrive before doing anything else, so will update again when/if that arrives.

Yes, the court will send you one once theirs is back as theirs includes whether they wish to proceed now they have seen your defence. There is a guide linked in my signature of how to complete it.

[Treebadger]

Yes, the court will send you one once theirs is back as theirs includes whether they wish to proceed now they have seen your defence. There is a guide linked in my signature of how to complete it.

Forgive me if this is a silly question, but if the lack of credit agreement and default notice make this unenforceable in court, why are they continuing to pursue this through the court? Could I not just say they are wasting the court's time as they had no business bringing this claim without the correct documents in the first place?

[MIKE770]

NO --- - they can or will supply at a later date, last resort is the court can order the documents prior to the case day . not a new tactic by those companies, try and un nerve you, so concentrate on all court instructions

[jaguarsuk]

Forgive me if this is a silly question, but if the lack of credit agreement and default notice make this unenforceable in court, why are they continuing to pursue this through the court? Could I not just say they are wasting the court's time as they had no business bringing this claim without the correct documents in the first place?

You could apply to strike out the claim, but that will cost you £255 and is not a guarantee because if they produce the documents then it's a costly way of getting disclosure.

[pt2537]

Having read this thread, i do wonder why an application to strike out has not been made, or summary judgment, or indeed both.

It seems a trick has been missed.

The Claimants claim, as it stands, is incapable of proof.

First i refer to Loveridge v Healey [2004] EWCA Civ 173, Lord Phillips MR said the following:
“It is on the basis of the pleadings that the parties decide what evidence they will need to place before the court and what preparations are necessary before the trial…. Where … departure from a pleading will cause prejudice, it is in the interests of justice that the other party should be entitled to insist that this is not permitted unless the pleading is appropriately amended. That then introduces, in its proper context, the issue of whether or not the party in question should be permitted to advance a case which has not hitherto been pleaded.”

Second, the absense of a default notice is FATAL, it cannot be overcome, it cannot be overlooked.

This is my standard application n244 box 10 which sets out the position relating to lack of pleaded defaults

The Claimants pleaded case states " the Defendant failed to maintain the required repayments and arrears began to accrue" . This is not a sufficient pleading, there is no mention of a Default notice served under s87(1) Consumer Credit Act 1974. The Claimants claim clearly relates to a breach of contract ie the failure to maintain required payments therefore to succeed on this claim the Claimant requires a Default notice to have been served. This notice is not merely a procedural formality, it is submitted that service of a default notice is a statutory requirement which bars enforcement including termination of the agreement unless complied with, and furthermore, forms part of the cause of action in a claim for breach of contract.

As noted by HHJ Chambers QC sitting as a judge of the High Court in Harrison v Link Financial Limited at para 75 "The notice of enforcement was a statutory pre-condition of enforcement" It follows that a default notice must be served before the Claimant can attempt enforcement.

Section 87(1) Consumer Credit Act 1974 states that


Service of a notice on the debtor or hirer in accordance with section 88 (a “default notice ”) is necessary before the creditor or owner can become entitled, by reason of any breach by the debtor or hirer of a regulated agreement,—
(a)to terminate the agreement, or
(b)to demand earlier payment of any sum, or
(c)to recover possession of any goods or land, or
(d)to treat any right conferred on the debtor or hirer by the agreement as terminated, restricted or deferred, or
(e)to enforce any security
{Emphasis added}

The editors of Goode Consumer Credit Law and Practice at 46.48 state

Pleading facts essential to the cause of action
[46.48]
The creditor should be careful to ensure that in his particulars of claim he pleads all the facts necessary to establish the cause of action relied on. If he fails to do this, the action is liable either to be struck out before trial or to be dismissed at the trial as disclosing no cause of action. The creditor should plead that any necessary default or other notice was served and not complied with and should also plead the date and mode of termination of the agreement.

The Court of Appeal in Doyle v PRA Group Uk Limited [2019] EWCA Civ 12 considered the issue of a Default notice and its importance in respect of a creditors cause of action for recovery of a credit balance under a credit token agreement. The Court held that

21............more particularly, CCA s.87(1) is that, absent service and expiry of a default notice compliant with CCA ss.87 and 88, there would have been both a complete defence to a claim for all outstanding sums under the Agreement and an unanswerable right to strike out the claim.

22. Critically, section 87(1) does not provide merely that a default notice is necessary before the commencement of proceedings to recover everything outstanding under the regulated agreement. It provides that there is no right to treat the agreement as at an end or to make a demand for accelerated payment of outstanding amounts. That is not a "procedural" precondition. It qualifies the substantive legal rights of the creditor.

It is therefore submitted that the failure to plead service of a default notice or any other statutory notice which gives rise to the right to terminate the agreement in the terms highlighted by Goode 46.48 , the Claimant has not pleaded a viable cause of action for this claim and as highlighted by the Court of Appeal, this gives rise to an "Unanswerable right to strike out this claim" This is clearly a claim for all monies due under the agreement, therefore service of a default notice is a mandatory step and should be pleaded.

The absence of pleading of service of a Default notice is fatal to this claim. The case of Doyle confirms this is the case. Accordingly without pleading service of a s87 notice, expiry of a section 87 notice, and termination including the date and method of termination, this claim cannot succeed and the Claimant has no real prospect of success nor is there any other reason why the case should proceed to trial with such defective pleadings.


Accordingly the Defendant invites the Court to strike out the Claim pursuant to CPR 3.4 and/or enter summary judgment for the Defendant pursuant to CPR 24.

The Court is invited to order the Claimant to pay the costs of this application.

[pt2537]

You could apply to strike out the claim, but that will cost you £255 and is not a guarantee because if they produce the documents then it's a costly way of getting disclosure.

Sorry Jags i disagree. You wouldnt be seeking disclosure of a default notice when it is not pleaded. That is like asking the government to solve Brexit, an impossible task. You would pursue a strike out on the lack of pleading of a default notice, and that would have a good prospect if done properly.

[jaguarsuk]

Sorry Jags i disagree. You wouldnt be seeking disclosure of a default notice when it is not pleaded. That is like asking the government to solve Brexit, an impossible task. You would pursue a strike out on the lack of pleading of a default notice, and that would have a good prospect if done properly.

Happy to be corrected, if the poster can pay the app fee or gets fee remission, it’s worth it.

[Treebadger]

jaguarsuk pt2537 MIKE770

Thank you all for your replies.

I have now received my own 'Notice of Proposed Allocation to the Small Claims Track' and 'Directions Questionnaire' from the court.

Having read all the responses above, I am very confused as to how to respond to these documents.

To save having to read back, I sent all of the requests (CCA to Lowell and SAR to Tesco) to both the original lender (Tesco Bank) and the Claimant (Lowell Portfolio 1 Ltd).



Among those requests was the SAR to Tesco Bank who responded:

"Please find enclosed:

Original true copy of credit agreement"

They only sent a copy of the application form, not the CA. There is no copy of the CA at all. Lowell also produced the same copy of the application form in response to the request for a true copy of the credit agreement.

Tesco Bank also say:

"Please note that we are unable to provide you with a copy of the default notice as this is not available on our records".

In the original filing, Lowell made no mention of a default notice at all.

Please could someone advise on how best to respond to the DQ? The information already supplied to me above gves a couple of possible responses and I am unclear as to which is now best. All advice gratefully received and thank you in advance.

[Amethyst]

The application form can be the agreement. Can you do a picture and redact personal details and post up pls.

[Treebadger]

The application form can be the agreement. Can you do a picture and redact personal details and post up pls.

Here you go. This is the same copy sent to me by both Tesco and Lowell.

App form tesco ccard redacted.jpg

[Amethyst]

Okay yes that is the agreement. Did they also send the accompanying terms ?

[Treebadger]

Okay yes that is the agreement. Did they also send the accompanying terms ?

Sorry if I am being slow but how does that qualify as the agreement? It doesn't have any account numbers linking it to an actual card, it has no terms and conditions and I could conceivably have filled out 1,000 of these forms without obtaining credit. I would have thought it should at least say 'approved' and have a credit card number on it? Or am I wrong? It really doesn't have much information on the card other than my choice of design on the top of the form.

They only sent that one page, nothing else at all and nothing on the back either. No terms and conditions at all.

[Amethyst]

If they only sent that one page then no, they have not complied with their obligations under s.78 CCA 1974.

It may be a crap, extremely lacking in terms agreement, but it is intended to be the agreement - see the text just above the signature bottom right?

The rectangular stamp that you can barely make out over the Data Protection Act part is the execution of the agreement.

At the moment it would be unenforceable due to the non-compliance with the s78 request and lack of any terms.

http://www.legislation.gov.uk/ukpga/1974/39/section/78