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Re: Lowell Portfolio I Ltd v dasher13
This is my draft new defence after the last feedback. I will make whatever changes you suggest regarding putting in the counterclaim.
My draft defence form:
1: I received the claim C2HKXXXX from the Northampton County Court on 10th August 2016.
2: Each and every allegation in the Claimants’ statement of case is denied unless specifically admitted in this Defence.
3: The Claimants’ statement of case does not comply with CPR 16.4 in that it gives inadequate information to enable the Defendant to properly assess his position with regards the claim. In particular, it does not:
(a) identify the nature of the agreement under the Consumer Credit Act 1974 (the "Act");
(b) confirm the date of when the agreement was entered into;
(c) under what term(s) of the agreement the Defendant was alleged to have breached;
(d) on what date the agreement was terminated, if it was in fact terminated; and
(e) state on which date the Default Notice was served on the Defendant and the party who served it.
4. Accordingly, the Claimants’ statement of case does provide a concise statement of facts and is therefore not in compliance rule 16.4 of the CPR.
5: The Claimants’ statement of case fails to give adequate information to enable me to properly assess my position with regards the claim.
6. The particulars of claim fail to state when the agreement was entered into.
7. Notwithstanding the anomalies set out in paragraph 4 above, the Defendant does not recall ever receiving either a Default Notice or a Notice of Assignment as the Claimant suggests, and the Defendant requires proof thereof.
8. It is denied that Capital One served any Default notice on the Defendant pursuant to s87 Consumer Credit Act 1974. The Claimant is required to prove that a compliant Default Notice was served upon the Defendant.
9: On the 11th August 2016 (pre-allocation), the defendant requested from the Claimant, the documents referred to in the statements of case pursuant to CPR 31.14 however, the Claimant has so far failed to comply with the Defendant’s request. The Defendant will also seek to rely upon Expandable v Rubin [2008] EWCA Civ 59 (as per Rix LJ at paragraph 24):
“The general ethos of the CPR is for a more cards on the table approach to litigation. If a party thinks it worthwhile to mention a document in his pleadings, witness statements or affidavits, I do not see why, subject as I say to the question of privilege, the court should put difficulties in the way of inspection. I look upon the mention of a document in pleadings etc as a form of disclosure. The document in question has not been disclosed by list, or at any rate not yet, but it has been disclosed by mention in what, for the purposes of litigation, is another important and formal category of documents. If so, then the party deploying that document by its mention should in principle be prepared to be required to permit its inspection, and the other party should be entitled to its inspection.”
10. Consequently, the Claimant is not only in breach of CPR 31.14 but has also failed to take into account the overriding objective insofar as dealing with the case justly and proportionately and saving expense.
11. On the 11th August 2016, the Defendant requested from the Claimant a copy of the original agreement pursuant to section 78 of the Act. The Claimant is legally required to provide a copy of the said agreement within 12 working days in accordance with sections 77/78/79 of the Act, however the Claimant has failed to comply and so the agreement cannot be enforced.
12. Further, the Defendant can only assume that the Claimant does not have in possession the documents it seeks to rely upon given the lack of response, the result of which amounts to an abuse of process. The Defendant will refer to the dicta of Cooke J in Nomura International Plc v Granada Group 2007 in which he determined that a Claimant who fails to carry out pre-commencement investigations and does not have the requisite information to bring a claim or hopes that something ‘may turn up’ during proceedings, amounts to an abuse of process.
13. Section 78 (6) Consumer Credit Act 1974 sets out the consequences of failure to comply with such request and states:
s78 (6) If the creditor under an agreement fails to comply with subsection (1)-
(a) he is not entitled, while the default continues, to enforce the agreement; and
(b) if the default continues for one month he commits an offence.
14: The Defendant has asked the Claimant if they may agree to extend the time period allowed for filing of the Defendant’s defence pending receipt of documents (as allowed under CPR 15.5), but the Claimant has so far failed to comply with the Defendant’s request.
15. Under Civil Procedure Rule 16.5 (4) Where the claim includes a money claim, a defendant shall be taken to require that any allegation relating to the amount of money claimed be proved unless he expressly admits the allegation. Therefore it is expected that the Claimant be required to prove the allegation that the money is owed as claimed.
16. It is drawn to the courts attention that the Claimant has failed to comply with the Defendant’s request to provide any documentation and is in clear default of its obligations under s78 (1) Consumer Credit Act 1974 and it is averred that the Claimant has no right of action until such time as the default is remedied and the true copy of the executed agreement is produced before the Defendant containing the prescribed terms under Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) and signed in the prescribed manner by the debtor and creditor.
17. Therefore since the documents have not been supplied as requested pursuant to the Consumer Credit Act 1974 the Defendant denies that he is liable to the Claimant and puts the Claimant to strict proof that such enforceable agreement between parties exists.
18. Furthermore, the Civil Procedure Rules in particular practice direct 32 requires that access is granted to the original documents, therefore the Defendant requires the Claimant to provide the Defendant sight of the original credit agreement and any terms and conditions that they seek to rely upon in this action pursuant to PD 32.
19. The courts attention is drawn to the fact that the without disclosure of the requested documentation pursuant to the Consumer Credit Act 1974 the Defendant has not yet had the opportunity to asses if the documentation the Claimant claims to be relying upon to bring this action even contains the prescribed terms required in Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) which was amended by Consumer Credit (Agreements) (Amendment) Regulations 2004 (SI2004/1482). The prescribed terms referred to are contained in schedule 6 column 2 of the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) and are inter alia: - A term stating the credit limit or the manner in which it will be determined or that there is no credit limit, A term stating the rate of any interest on the credit to be provided under the agreement and A term stating how the debtor is to discharge his obligations under the agreement to make the repayments, which may be expressed by reference to a combination of any of the following —
1. Number of repayments;
2. Amount of repayments;
3. Frequency and timing of repayments;
4. Dates of repayments;
5. The manner in which any of the above may be determined; or in any other way, and any power of the creditor to vary what is payable.
20. The courts attention is also drawn to the fact that where an agreement does not have the prescribed terms as stated in point 10 it is not compliant with section 60(1) Consumer Credit Act 1974 and therefore not enforceable by s127 (3). The courts attention is also drawn to the authority of the House of Lords in Wilson-v- FCT [2003] All ER (D) 187 (Jul) which confirms that where a document does not contain the required terms under the consumer credit act 1974 and the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) and Consumer Credit (Agreements) (Amendment) Regulations 2004 (SI2004/1482) the agreement cannot be enforced
21. I refer to Lord Nicholls of Birkenhead in the House of Lords Wilson v First County Trust Ltd - [2003] All ER (D) 187 (Jul) paragraph 29:
"The court's powers under section 127(1) are subject to significant qualification in two types of cases. The first type is where section 61(1)(a), regarding signing of agreements, is not complied with. In such cases the court 'shall not make' an enforcement order unless a document, whether or not in the prescribed form, containing all the prescribed terms, was signed by the debtor: section 127(3). Thus, signature of a document containing all the prescribed terms is an essential prerequisite to the court's power to make an enforcement order."
22. Notwithstanding the above, it is also drawn to the courts attention that no Default Notice required by s87 (1) Consumer Credit act 1974 has been attached to the particulars of claim
23. It is neither admitted nor denied that any Default Notice in the prescribed format was ever received and the Defendant puts the Claimant to strict proof that said document in the prescribed format was delivered to the defendant
24. Notwithstanding point 13, the Defendant put the Claimant to strict proof that any default notice sent to the Defendant was valid. The Defendant notes that to be valid, a Default Notice needs to be accurate in terms of both the scope and nature of breach and include an accurate figure required to remedy any such breach. The prescribed format for such document is laid down in Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) and Amendment regulations the Consumer Credit (Enforcement, Default and Termination Notices) (Amendment) Regulations 2004 (SI 2004/3237).
25. Failure of a Default Notice to be accurate not only invalidates the Default Notice (Woodchester Lease Management Services Ltd v Swain and Co - [2001] GCCR 2255) but is a unlawful rescission of contract which would not only prevent the court enforcing any alleged debt, but gives the Defendant a counter claim for damages (Kpohraror v Woolwich Building Society [1996] 4 All ER 119).
26. Without Disclosure of the relevant requested documentation the Defendant is unable to asses if the Defendant is liable to the Claimant, nor am is the Defendant able to asses if the alleged agreement is properly executed, contains the required prescribed terms, or correct figures to make such an agreement enforceable by virtue of s127 Consumer Credit Act 1974.
27. In view of the matters pleaded above, the Defendant respectfully requests that the court gives consideration to whether the Claimant's statement of case should be struck out as disclosing no reasonable grounds for bringing the claim, and/or that it fails to comply with CPR Part 16 and Practice Direction 16.
28. Alternatively if the court decides not to strike out the claimant’s case, it is requested that the court orders full disclosure of the requested documents pursuant to the Civil Procedure Rules.
29. In the event that the relevant documents are received from the Claimant the Defendant will then be in a position to amend his defence, and would ask that the Claimant bears the costs of the amendment.
30. The Defendant respectfully asks the permission of the court to amend this defence when the Claimant provides full disclosure of the requested documents.
31. It is denied that the Claimant is entitled to the relief as claimed or at all.
Statement of Truth
The Defendant believes that the facts stated in this Defence are true.
Signed ………………xxxxxxxx…………………………
Dated .......................5th September 2016........................... ....
This is my draft new defence after the last feedback. I will make whatever changes you suggest regarding putting in the counterclaim.
My draft defence form:
1: I received the claim C2HKXXXX from the Northampton County Court on 10th August 2016.
2: Each and every allegation in the Claimants’ statement of case is denied unless specifically admitted in this Defence.
3: The Claimants’ statement of case does not comply with CPR 16.4 in that it gives inadequate information to enable the Defendant to properly assess his position with regards the claim. In particular, it does not:
(a) identify the nature of the agreement under the Consumer Credit Act 1974 (the "Act");
(b) confirm the date of when the agreement was entered into;
(c) under what term(s) of the agreement the Defendant was alleged to have breached;
(d) on what date the agreement was terminated, if it was in fact terminated; and
(e) state on which date the Default Notice was served on the Defendant and the party who served it.
4. Accordingly, the Claimants’ statement of case does provide a concise statement of facts and is therefore not in compliance rule 16.4 of the CPR.
5: The Claimants’ statement of case fails to give adequate information to enable me to properly assess my position with regards the claim.
6. The particulars of claim fail to state when the agreement was entered into.
7. Notwithstanding the anomalies set out in paragraph 4 above, the Defendant does not recall ever receiving either a Default Notice or a Notice of Assignment as the Claimant suggests, and the Defendant requires proof thereof.
8. It is denied that Capital One served any Default notice on the Defendant pursuant to s87 Consumer Credit Act 1974. The Claimant is required to prove that a compliant Default Notice was served upon the Defendant.
9: On the 11th August 2016 (pre-allocation), the defendant requested from the Claimant, the documents referred to in the statements of case pursuant to CPR 31.14 however, the Claimant has so far failed to comply with the Defendant’s request. The Defendant will also seek to rely upon Expandable v Rubin [2008] EWCA Civ 59 (as per Rix LJ at paragraph 24):
“The general ethos of the CPR is for a more cards on the table approach to litigation. If a party thinks it worthwhile to mention a document in his pleadings, witness statements or affidavits, I do not see why, subject as I say to the question of privilege, the court should put difficulties in the way of inspection. I look upon the mention of a document in pleadings etc as a form of disclosure. The document in question has not been disclosed by list, or at any rate not yet, but it has been disclosed by mention in what, for the purposes of litigation, is another important and formal category of documents. If so, then the party deploying that document by its mention should in principle be prepared to be required to permit its inspection, and the other party should be entitled to its inspection.”
10. Consequently, the Claimant is not only in breach of CPR 31.14 but has also failed to take into account the overriding objective insofar as dealing with the case justly and proportionately and saving expense.
11. On the 11th August 2016, the Defendant requested from the Claimant a copy of the original agreement pursuant to section 78 of the Act. The Claimant is legally required to provide a copy of the said agreement within 12 working days in accordance with sections 77/78/79 of the Act, however the Claimant has failed to comply and so the agreement cannot be enforced.
12. Further, the Defendant can only assume that the Claimant does not have in possession the documents it seeks to rely upon given the lack of response, the result of which amounts to an abuse of process. The Defendant will refer to the dicta of Cooke J in Nomura International Plc v Granada Group 2007 in which he determined that a Claimant who fails to carry out pre-commencement investigations and does not have the requisite information to bring a claim or hopes that something ‘may turn up’ during proceedings, amounts to an abuse of process.
13. Section 78 (6) Consumer Credit Act 1974 sets out the consequences of failure to comply with such request and states:
s78 (6) If the creditor under an agreement fails to comply with subsection (1)-
(a) he is not entitled, while the default continues, to enforce the agreement; and
(b) if the default continues for one month he commits an offence.
14: The Defendant has asked the Claimant if they may agree to extend the time period allowed for filing of the Defendant’s defence pending receipt of documents (as allowed under CPR 15.5), but the Claimant has so far failed to comply with the Defendant’s request.
15. Under Civil Procedure Rule 16.5 (4) Where the claim includes a money claim, a defendant shall be taken to require that any allegation relating to the amount of money claimed be proved unless he expressly admits the allegation. Therefore it is expected that the Claimant be required to prove the allegation that the money is owed as claimed.
16. It is drawn to the courts attention that the Claimant has failed to comply with the Defendant’s request to provide any documentation and is in clear default of its obligations under s78 (1) Consumer Credit Act 1974 and it is averred that the Claimant has no right of action until such time as the default is remedied and the true copy of the executed agreement is produced before the Defendant containing the prescribed terms under Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) and signed in the prescribed manner by the debtor and creditor.
17. Therefore since the documents have not been supplied as requested pursuant to the Consumer Credit Act 1974 the Defendant denies that he is liable to the Claimant and puts the Claimant to strict proof that such enforceable agreement between parties exists.
18. Furthermore, the Civil Procedure Rules in particular practice direct 32 requires that access is granted to the original documents, therefore the Defendant requires the Claimant to provide the Defendant sight of the original credit agreement and any terms and conditions that they seek to rely upon in this action pursuant to PD 32.
19. The courts attention is drawn to the fact that the without disclosure of the requested documentation pursuant to the Consumer Credit Act 1974 the Defendant has not yet had the opportunity to asses if the documentation the Claimant claims to be relying upon to bring this action even contains the prescribed terms required in Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) which was amended by Consumer Credit (Agreements) (Amendment) Regulations 2004 (SI2004/1482). The prescribed terms referred to are contained in schedule 6 column 2 of the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) and are inter alia: - A term stating the credit limit or the manner in which it will be determined or that there is no credit limit, A term stating the rate of any interest on the credit to be provided under the agreement and A term stating how the debtor is to discharge his obligations under the agreement to make the repayments, which may be expressed by reference to a combination of any of the following —
1. Number of repayments;
2. Amount of repayments;
3. Frequency and timing of repayments;
4. Dates of repayments;
5. The manner in which any of the above may be determined; or in any other way, and any power of the creditor to vary what is payable.
20. The courts attention is also drawn to the fact that where an agreement does not have the prescribed terms as stated in point 10 it is not compliant with section 60(1) Consumer Credit Act 1974 and therefore not enforceable by s127 (3). The courts attention is also drawn to the authority of the House of Lords in Wilson-v- FCT [2003] All ER (D) 187 (Jul) which confirms that where a document does not contain the required terms under the consumer credit act 1974 and the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) and Consumer Credit (Agreements) (Amendment) Regulations 2004 (SI2004/1482) the agreement cannot be enforced
21. I refer to Lord Nicholls of Birkenhead in the House of Lords Wilson v First County Trust Ltd - [2003] All ER (D) 187 (Jul) paragraph 29:
"The court's powers under section 127(1) are subject to significant qualification in two types of cases. The first type is where section 61(1)(a), regarding signing of agreements, is not complied with. In such cases the court 'shall not make' an enforcement order unless a document, whether or not in the prescribed form, containing all the prescribed terms, was signed by the debtor: section 127(3). Thus, signature of a document containing all the prescribed terms is an essential prerequisite to the court's power to make an enforcement order."
22. Notwithstanding the above, it is also drawn to the courts attention that no Default Notice required by s87 (1) Consumer Credit act 1974 has been attached to the particulars of claim
23. It is neither admitted nor denied that any Default Notice in the prescribed format was ever received and the Defendant puts the Claimant to strict proof that said document in the prescribed format was delivered to the defendant
24. Notwithstanding point 13, the Defendant put the Claimant to strict proof that any default notice sent to the Defendant was valid. The Defendant notes that to be valid, a Default Notice needs to be accurate in terms of both the scope and nature of breach and include an accurate figure required to remedy any such breach. The prescribed format for such document is laid down in Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) and Amendment regulations the Consumer Credit (Enforcement, Default and Termination Notices) (Amendment) Regulations 2004 (SI 2004/3237).
25. Failure of a Default Notice to be accurate not only invalidates the Default Notice (Woodchester Lease Management Services Ltd v Swain and Co - [2001] GCCR 2255) but is a unlawful rescission of contract which would not only prevent the court enforcing any alleged debt, but gives the Defendant a counter claim for damages (Kpohraror v Woolwich Building Society [1996] 4 All ER 119).
26. Without Disclosure of the relevant requested documentation the Defendant is unable to asses if the Defendant is liable to the Claimant, nor am is the Defendant able to asses if the alleged agreement is properly executed, contains the required prescribed terms, or correct figures to make such an agreement enforceable by virtue of s127 Consumer Credit Act 1974.
27. In view of the matters pleaded above, the Defendant respectfully requests that the court gives consideration to whether the Claimant's statement of case should be struck out as disclosing no reasonable grounds for bringing the claim, and/or that it fails to comply with CPR Part 16 and Practice Direction 16.
28. Alternatively if the court decides not to strike out the claimant’s case, it is requested that the court orders full disclosure of the requested documents pursuant to the Civil Procedure Rules.
29. In the event that the relevant documents are received from the Claimant the Defendant will then be in a position to amend his defence, and would ask that the Claimant bears the costs of the amendment.
30. The Defendant respectfully asks the permission of the court to amend this defence when the Claimant provides full disclosure of the requested documents.
31. It is denied that the Claimant is entitled to the relief as claimed or at all.
Statement of Truth
The Defendant believes that the facts stated in this Defence are true.
Signed ………………xxxxxxxx…………………………
Dated .......................5th September 2016........................... ....
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