Hoist-Defended Claim. Unable to provide evidence+have substituted another card debt.

[Sparechange]

Hi I wonder if anyone could advise.
Hoist purchased a previous DCA’s credit card debt which was statute barred. Due to postal issues with the delivery of my defence a judgement was obtained by default. I paid to have it set aside. At the telephone hearing the judge gave a 7 day deadline for Hoist to serve their bundle of evidence for the alleged debt which they referred to in their Witness statement. They failed to do this. However a week before the next hearing, which is this Friday, they have now sent a 2nd Witness Statement containing another credit card payment details claiming this was the one but in fact was my Halifax card and not LloydsTSB one referred to in the particulars of claim. I am now serving a second Witness statement to point out that this account has no bearing on the current claim. (They could literally use any outstanding card debt to substitute as they did not produce evidence before it went to court, and I had 3 different cards at that time)
I received another email from Hoist today stating their costs which they hadn’t done at the original hearing.
How do I evidence that these documents are not the actual Claim? Their reference No. in the Particulars of Claim is not a credit card number. I supplied this in my Defence and details of the last payment etc. This new evidence that they are trying to substitute is a different number entirely from another credit card and that card had a higher limit. So even the balances don’t match. What’s my best course of action? Should I adjourn or stand my ground? Thanks

[echat11]

R0b Celestine des8 Can you take a look and advise OP, many thanks.

[R0b]

Hello,

Is this the final hearing or is it still related to the set aside application?

You could simply prepare your witness statement and cross refer to Hoist's second statement and all the anomalies suggesting they have issued a claim for the wrong account, different balance etc. and also mention that they failed to comply with the judge's order to provide that evidence within 7 days of the date of the order.

You can push for the judge to dismiss the claim on the basis that Hoist are now trying to substitute its initial claim with a brand new set of particulars that you have had no opportunity to consider your position and is also an infringement of your right to a fair trial under Article 6 of the Human Rights Act 1998. You should nudge the judge in agreeing that the only logical conclusion is for the judge to set aside the judgment and dismiss the claim in its entirety, and if Hoist want to bring a claim for an entirely different account number and balance, then they must start again and comply with the pre-action protocols before issuing a claim.

As for costs, well you should be able to argue that fairly easily in saying they never asked for costs initially, that they failed to comply with the order and they have now accepted (via their witness statement) that the claim they issued is actually a dud. For all of these reasons they should not be awarded costs. I would suggest you consider asking for costs yourself based on the fact the claim was issued without any merit or real prospect of success and has wasted both yours and the courts resources unnecessarily - submit your own costs of preparing your own witness statement and application etc.

On a separate note, I see you mentioned that you had a default judgment because of postal issues, but postal issues don't really come into it. If you sent the defence by post then the CPR deems that defence filed at the court on the second business day that it was posted i.e. when you handed it over to the post office. So regardless of whether or not there were postal issues if you filed it in time then you would have had a mandatory right to have the default judgment set aside rather than relying on the court's discretion.

[Sparechange]

It was set aside fortunately. I now have to issue a 2nd Defence. I know they do not have the evidence.

[Sparechange]

Hello,

Is this the final hearing or is it still related to the set aside application?

You could simply prepare your witness statement and cross refer to Hoist's second statement and all the anomalies suggesting they have issued a claim for the wrong account, different balance etc. and also mention that they failed to comply with the judge's order to provide that evidence within 7 days of the date of the order.

You can push for the judge to dismiss the claim on the basis that Hoist are now trying to substitute its initial claim with a brand new set of particulars that you have had no opportunity to consider your position and is also an infringement of your right to a fair trial under Article 6 of the Human Rights Act 1998. You should nudge the judge in agreeing that the only logical conclusion is for the judge to set aside the judgment and dismiss the claim in its entirety, and if Hoist want to bring a claim for an entirely different account number and balance, then they must start again and comply with the pre-action protocols before issuing a claim.

As for costs, well you should be able to argue that fairly easily in saying they never asked for costs initially, that they failed to comply with the order and they have now accepted (via their witness statement) that the claim they issued is actually a dud. For all of these reasons they should not be awarded costs. I would suggest you consider asking for costs yourself based on the fact the claim was issued without any merit or real prospect of success and has wasted both yours and the courts resources unnecessarily - submit your own costs of preparing your own witness statement and application etc.

On a separate note, I see you mentioned that you had a default judgment because of postal issues, but postal issues don't really come into it. If you sent the defence by post then the CPR deems that defence filed at the court on the second business day that it was posted i.e. when you handed it over to the post office. So regardless of whether or not there were postal issues if you filed it in time then you would have had a mandatory right to have the default judgment set aside rather than relying on the court's discretion.

Hi Rob, Sorry for late response and many thanks for your comprehensive reply. It was about the setting aside of the judgement but Hoist’s paralegal produced 2 conflicting witness statements and I think prematurely.
All documents cited a zero balance that he produced..obtained from idem not the original creditor too. It was set aside but I need to produce another Defence. In view of the inadequate bundle which Defence is most appropriate?
Many thanks again.

[echat11]

R0b Can you please take a look.

[R0b]

Think you're going to need to give more of an explanation.

What did the judge decide and what was the order, have you received that yet ? If so, what does it say word for word?

How long have you got to file a defence?

[Sparechange]

Hi Rob

The N24 form only came through yesterday and the deadline is tomorrow. It says:
1. The judgement is set aside on condition the defendant files a Defence by 4pm on 19 November 2021
2. No order as to costs.

I’ve been working on it since the hearing of 5 November 2021
The Particulars of Claim did not cite any 16 digit card ref. or state that it was indeed a credit card agreement as they had no further info. Other than buying a presumed debt from Idem.
Now I’ve seen the information they obtained from Idem without my permission (as Idem confirmed they had sold on the account and that they wouldn’t knowingly release my personal info to them now) It is clear they had no contract or indeed any documentation that showed a balance due when they issued proceedings.

Thanks