Lowell Portfolio I Ltd v dasher13

[dasher13]

Re: Lowell Portfolio I Ltd v dasher13

Ok will do & thanks again for all your help so far. It's such a relief to get your help and advice.

[dasher13]

Re: Lowell Portfolio I Ltd v dasher13

Hi,

I am yet to receive anything from Lowell other than confrontation of receipt of my data protection letter (where I enclosed £10 postal order) despite all of my letters having been received by Lowell and Lowell Solicitors on the same day (proof - signed for).

What should I do? The letters went out 11th August. How long do they have to respond? I'm beginning to panic a little as I only have until 7th Sept to file my defence. What do I do if Lowell don't respond at all?

Thank you again for all your help.

[dasher13]

Re: Lowell Portfolio I Ltd v dasher13

I am going to put together the 'no documents' defence as you suggested previously and post them. Will you still be OK to check them over? Thanks again.

[charitynjw]

Re: Lowell Portfolio I Ltd v dasher13

I am going to put together the 'no documents' defence as you suggested previously and post them. Will you still be OK to check them over? Thanks again.

Should be no problem; don't forget to remove personal identifiers.

[dasher13]

Re: Lowell Portfolio I Ltd v dasher13

Brilliant and will do. Thank you!

[dasher13]

Re: Lowell Portfolio I Ltd v dasher13

Hi,

I have put together my defence form and pasted it below. I would really, really appreciate it if you could look over it and let me know if I have made any mistakes or need to make any changes. I have some questions/clarifications and have put them in bold in the relevant lines. Thank you again - you really are a life-saver.

Sorry just to confirm I have still had absolutely nothing from Lowell Portfolio I Ltd in response to my letters. The only response was from 'Lowell Financial' about my section 7 Data Protection request - this was on the 18th August.

My letters have definitely been received as they were signed for on the 13th and 15th August.


My defence form:


1: I received the claim C2HKXXXX from the Northampton County Court on 10^th August 2016.

2: Each and every allegation in the Claimants statement of case is denied unless specifically admitted in this Defence.

3: This claim appears to be for a Credit Card agreement regulated under the Consumer Credit Act 1974.

4: [It is admitted/denied] that the Defendant has [previously] entered into [an agreement/agreements] with [Original Creditor /Claimant] for provision of credit. - What should I put here as I did and have written to Lowell in the past or do I not need to put this in?

4: The Claimants statement of case fails to give adequate information to enable me to properly assess my position with regards the claim.

5. The particulars of claim fail to state when the agreement was entered into.

6. The Claimants statement of case states that the account was assigned from Capital One to Lowell Portfolio I Ltd on 24/06/2015. The Defendant does not recall receiving notice of this assignment.

7. 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. – do I take this out as I have the Default Notice?

8: On the 11^th August 2016 I sent a request for inspection of documents mentioned in the claimant’s statement of case under Civil Procedure Rule 31.14 to Lowell Solicitors Limited. I requested the Claimant provide copies of the Agreement, Default Notice and Notice of Assignment.

9. Lowell Solicitors Limited has not sent any of these documents to me.

10. On the 11^th August 2016 I sent a formal request for a copy of the original agreement to Lowell Portfolio I Ltd pursuant to section [77 or 78] (?? - not sure which one) of the Consumer Credit Act 1974 along with the statutory £1 fee.

11. The Claimant has failed to comply with [s77 (1) / s 78 (1)] (?? again not sure what to put here) Consumer Credit Act 1974 and by virtue of [s77 (4) / s 78 (6)] (again not sure what to put here ??) Consumer Credit Act 1974 cannot enforce the agreement.

12: I have asked the Claimant if we may agree to extend the time period allowed for filing of my defence pending receipt of documents (as allowed under CPR 15.5), but they have not responded. – is this right? Can I put that they have not responded as they have not refused as they've not contacted me at all.

13. 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 (because I have written to Lowell in the past can I put this?). Therefore it is expected that the Claimant be required to prove the allegation that the money is owed as claimed.

14. I request the court orders the Claimants to provide the necessary documentation in order for me to fully plead my case else the Claim should stand struck out.

15. In the event that the relevant documents are received from the Claimants I will then be in a position to amend my defence, and would ask that the Claimants bear the costs of the amendment.

16. 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 .......................5^th September 2016........................... ....


I will then submit on the 5^th September as this should be two days before the deadline.

Also can I ask if this is the right kind of defence as I have written to Lowell in the past (on a without prejudice basis if that matters?). In that letter I basically said that I was alarmed to receive correspondence from them given that I had written to Capital One in the past and also Lowell about settling on a full and final basis, but that I had received no response at all.

What is likely to happen after I submit my defence? Will I have to go to court? Will Lowell turn up? Will they withdraw the County Court Claim? Surely they cannot simply ignore my letters and not comply and the Court let them get away with doing that?

Thank you so, so much again. I'd be lost without your help.

[dasher13]

Re: Lowell Portfolio I Ltd v dasher13

Hi charity,

Sorry one more thing...I know that I now only have until the 7th September to submit my defence and given that I have not had any documents from Lowell it is probably pointless, but should I chase them at all? Via email maybe? I have read other threads where people have been advised only to chase the CPR? Should I do that or not?

Thanks again.

[dasher13]

Re: Lowell Portfolio I Ltd v dasher13

Hi charity,

I have just found the defence form below on another thread from a few years ago. Can I use any of it as it seems really good?


Defence (borrowed heavily and amended)

1. Except where otherwise mentioned in this defence, I neither admit nor deny any allegation made in the claimants Particulars of Claim and put the claimant to strict proof thereof.

2. The Defendant is embarrassed in pleading to the Particulars of Claim as it stands at present, inter alia: -

3. The claimants' particulars of claims disclose no legal cause of action and they are embarrassing to the defendant as the claimant's statement of case is insufficiently particularised and does not comply or even attempt to comply with CPR part 16. In this regard I wish to draw the courts attention to the following matters;

a) The Particulars of Claim are vague and insufficient and do not disclose an adequate statement of facts relating to or proceeding the alleged cause of action. No particulars are offered in relation to the nature of the written agreement referred to, the method the claimant calculated any outstanding sums due, or any default notices issued or any Notice of Assignment required for the claimant to have a legitimate right of action for the purported debt or any other matters necessary to substantiate the claimant's claim.

b) A copy of the purported written agreement that the claimant cites in the Particulars of Claim, and which appears to form the basis upon which these proceedings have been brought, has not been served attached to the claim form.

c) A copy of any evidence of both the scope and nature of any default, and proof of any amount outstanding on the alleged account, has not been served attached to the claim form.

4. Consequently, I deny all allegations on the particulars of claim and do not know what case I have to meet as I have repeatedly told Lowell and their associates that this debt does not belong to me, and have asked, but been denied documentation to prove this.

5. In respect of that which is denied, (initially in 2010) I requested that a true copy of the executed credit agreement, which the claimant claim exists between parties pursuant to section 78(1) Consumer Credit Act 1974. The Consumer Credit (Prescribed Periods for Giving Information) Regulations 1983 (SI 1983/1569) sets out that the claimant must comply with such request in 12 working days of receipt of such request. On 14/1/14 I pointed this out to Red Debt Collection Services (Instructed by Lowells. Copies of the letter included marked Exhibit 1) and was told that the issue had forwarded on to BW Legal. I forwarded this on to BW Legal and received confirmation dated 10/2/14 (Exhibit 2)
5a. Futhermore in the aforementioned letter (Exhibit 1) I formally requested that proof of any acknowledgement of the debt by myself making a payment or in writing within the relevant six year statute barred limitation period for the case.

6. 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.

7. It is drawn to the courts attention that the claimant has failed to comply with my 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.

8. Therefore since the documents have not been supplied as requested pursuant to the Consumer Credit Act 1974 I deny that I am liable to the claimant and put the claimant to strict proof that such enforceable agreement between parties exists

9. Further more, the Civil Procedure Rules in particular practice direct 32 requires that access is granted to the original documents, therefore I require 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

10. The courts attention is drawn to the fact that the without disclosure of the requested documentation pursuant to the Consumer Credit Act 1974 I have 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

11. 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

12. 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."

13. 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

14. 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

15. Notwithstanding point 13, I put the claimant to strict proof that any default notice sent to me was valid. I note 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)

16. 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 give me a counter claim for damages Kpohraror v Woolwich Building Society [1996] 4 All ER 119

17. Without Disclosure of the relevant requested documentation I am unable to asses if I am indeed liable to the claimant, nor am I able to asses if the alleged agreement is properly executed, contain the required prescribed terms, or correct figures to make such an agreement enforceable by virtue of s127 Consumer Credit Act 1974

18. In view of the matters pleaded above, I respectfully request 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.

19. 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.

20. The Claimant contends that the Claimant's claim so issued is a claim in contract and is statute barred pursuant to the provisions of section 5 of the limitation act 1980. If, which is denied, the claimant contends that the Defendant is in breach of the alleged contract, in excess of 6 years have elapsed since the date on which any cause of action for breach accrued for the benefit of the Claimant.

21. Having instigated these proceedings without any legal basis for doing so, having failed to provide sufficient information required under the pre-trial protocols in order to investigate this claim, or indeed to provide a reasonable time period to investigate this matter, and having failed to investigate a dispute as required by the OFT debt collection Guidelines I believe the Claimant's conduct amounts to unlawful harassment under section 40 of The Administration of Justice Act1970. Furthermore, the Claimant's behaviour is entirely vexatious, and wholly unreasonable.

22. I respectfully ask the permission of the court to amend this defence when the claimant provides full disclosure of the requested documents

[MIKE770]

Re: Lowell Portfolio I Ltd v dasher13

These defenses are long drawn out to my mind, I have seen DJs faces when they look at them and be honest as proceedings have gone they have not obviously read all or too much gobbly gook within and major points missed,


Be straight to the point without waffle ( I use to over state in the past) ,,

This is just my observation, probably Paul etc might not agree?

[dasher13]

Re: Lowell Portfolio I Ltd v dasher13

Hi Mike770,

Many thanks for your reply. Can I ask what you would suggest? I am lost with all of this.

[R0b]

Re: Lowell Portfolio I Ltd v dasher13

Not that I have read your thread fully but commenting on the point Mike has made, I wouldn't say that it is an overly long defence probably spanning 2-3 pages on a word document? Each case is fact specific so you can't just lift one defence and use it as your own because there may be issues in that defence which are of no concern to yours. The other problem is that if you don't address the points made in the particulars of claim you are deemed to have admitted them, so careful drafting is usually required. Most debt purchaser put the bare minimum in the particulars of claim so it probably doesn't affect you but something to be aware of.

Personally, I don't like the word embarrassed in a defence. It implies that the case is doomed to fail from the start or is so vague and ambiguous that you cannot possibly form a defence around it. It doesn't seem to be the case here and I know some judges don't like the use of the word as they see it as discourteous and there are better choices of words to use to address the lack of particularisation.

Your initial defence seems to be a good starting point although could be expanded upon such as the notice of assignment for example. If you did not receive a notice of assignment then Lowell has no right to bring a claim in their own name as it is an equitable assignment and not a legal one, meaning the legal owner must bring a claim with Lowell as an interested party.

When is the defence due by?

[dasher13]

Re: Lowell Portfolio I Ltd v dasher13

Hi R0b,

Thanks for your reply too. The defence is due by the 7th September. It was issued on the 5th August and I received the paperwork on the 10th August. I then went online to acknowledge receipt.

I definitely have not had a notice of assignment from Lowell and they have still not replied to my letters which they signed for on the 13th and 15th of August (15th was a Data Protection request letter for everything they have on me with a £10 postal order - which they have actually acknowledged).

Can they simply not respond and get away with it? Surely I have the right to see all of the 'evidence' against me - isn't that one of the central threads of our legal system??

I am going to post another draft of my defence forms and if you could take a look at it that would be brilliant.

Thanks again.

- - - Updated - - -

sorry forgot to ask is anyone able to answer some of the questions I put in bold in my first draft defence form? I am just not sure about some of the parts. Thank you all again.

[dasher13]

Re: Lowell Portfolio I Ltd v dasher13

Second draft/go at a defence form. I know I have been told to keep it short but this is long - my thinking is that if anyone on here can tell me which bits to drop I can take them out. I just don't want to miss anything. Thank you all again - i'd be on my knees without this support.


My draft defence form:

1: I received the claim C2HKXXXX from the Northampton County Court on 10^th August 2016.

2: Each and every allegation in the Claimants statement of case is denied unless specifically admitted in this Defence.

3: This claim appears to be for a Credit Card agreement regulated under the Consumer Credit Act 1974.

4: The Claimants statement of case fails to give adequate information to enable me to properly assess my position with regards the claim.

5. The particulars of claim fail to state when the agreement was entered into.

6. The Claimants statement of case states that the account was assigned from Capital One to Lowell Portfolio I Ltd on 24/06/2015. The Defendant does not recall receiving notice of this assignment nor has it been provided to the Defendant by the Claimant after a request was made.

7. 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.

8: On the 11^th August 2016 I sent a request for inspection of documents mentioned in the claimant’s statement of case under Civil Procedure Rule 31.14 to Lowell Solicitors Limited. I requested the Claimant provide copies of the Agreement, Default Notice and Notice of Assignment.

9. Lowell Solicitors Limited has not sent any of these documents to me.

10. On the 11^th August 2016 I sent a formal request for a copy of the original agreement to Lowell Portfolio I Ltd pursuant to section [77 or 78] (?? - not sure which one) of the Consumer Credit Act 1974 along with the statutory £1 fee.

11. The Claimant has failed to comply with [s77 (1) / s 78 (1)] (?? again not sure what to put here) Consumer Credit Act 1974 and by virtue of [s77 (4) / s 78 (6)] (again not sure what to put here ??) Consumer Credit Act 1974 cannot enforce the agreement.

12. 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.

13: I have asked the Claimant if we may agree to extend the time period allowed for filing of my defence pending receipt of documents (as allowed under CPR 15.5), but they have not responded. – is this right? Can I put that they have not responded as they have not refused as they've not contacted me at all.

14. 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.

15. It is drawn to the courts attention that the claimant has failed to comply with my 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.

16. Therefore since the documents have not been supplied as requested pursuant to the Consumer Credit Act 1974 I deny that I am liable to the claimant and put the claimant to strict proof that such enforceable agreement between parties exists.

17. Furthermore, the Civil Procedure Rules in particular practice direct 32 requires that access is granted to the original documents, therefore I require 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.

18. The courts attention is drawn to the fact that the without disclosure of the requested documentation pursuant to the Consumer Credit Act 1974 I have 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.

19. 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

20. 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."

21. 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

22. 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

23. Notwithstanding point 13, I put the claimant to strict proof that any default notice sent to me was valid. I note 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).

24. 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 give me a counter claim for damages Kpohraror v Woolwich Building Society [1996] 4 All ER 119.

25. Without Disclosure of the relevant requested documentation I am unable to asses if I am indeed liable to the claimant, nor am I able to asses if the alleged agreement is properly executed, contain the required prescribed terms, or correct figures to make such an agreement enforceable by virtue of s127 Consumer Credit Act 1974.

26. In view of the matters pleaded above, I respectfully request 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.

27. 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.

28. In the event that the relevant documents are received from the Claimants I will then be in a position to amend my defence, and would ask that the Claimants bear the costs of the amendment.

29. I respectfully ask the permission of the court to amend this defence when the claimant provides full disclosure of the requested documents.

30. 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 .......................5^th September 2016........................... ....

- - - Updated - - -

The bits in bold and underlined I am unsure of so if anyone can clarify those bits I would really appreciate it.

[R0b]

Re: Lowell Portfolio I Ltd v dasher13

[MENTION=89617]dasher13[/MENTION], A few things to note and you might wish to look over in your statement is that it should be in third person not first. Secondly there is a couple of missing apostrophe's after Claimants.

3: This claim appears to be for a Credit Card agreement regulated under the Consumer Credit Act 1974.

I would scrub 3. for the reasons below

4: 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.

5. Accordingly, the Claimant's statement of case does provide a concise statement of facts and is therefore not in compliance rule 16.4 of the CPR.

You could plead ignorant on the point of it being a credit card agreement, without the information above you could simply argue that there is insufficient information to identify you are the party to the so called agreement and the onus is on Lowell to prove this is the case.

6. 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: On the 11^th 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.”

9. 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.

10. On the 11 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 [@Nemesis45 might know what section the 12 working days falls under], however the Claimant has failed to comply and so the agreement cannot be enforced.

11. 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 Normura International Plc v Granada Group 2007 (at XX) 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.

The above mentions all of their current failings and it might be wise to put in a counterclaim against them. It will cost you some money (£25 for damages up to £300) but the advantage of it will be that Lowell can't stay the claim if they don't respond to the court within 28 days from your defence being submitted, and they will have to file a defence to your counterclaim - if they fail to do so then you are given default judgment, and strike out if you also plead that too, so a possible easy win given their failures to comply with a number of things.

If you decide not to counterclaim, then the claim could may be stayed and either party will have to apply to have the stay lifted. In your case it would mean making an application to strike out which would set you back £255, far more than the £25 counterclaim initially, but also prevents them from having as much time to get the required information and documents to continue with proceedings. The decision is ultimately yours however.


I've only given the first 10 paragraphs and, depending on whether you just want to defend or counterclaim, will depend on how the rest of it is worded - but i'll get onto it throughout the day and provide my initial comments.

[dasher13]

Re: Lowell Portfolio I Ltd v dasher13

Hi R0b,

I am so, so very grateful to you for your comments. I have amended the defence as you have suggested and corrected the errors in terms of some parts being in the first not third person and adding apostrophes.

I will put in for a counter claim so if you could let me know what I need to do this I would be eternally grateful?

Does anyone know the details for your changes to no 12 in my defence? i.e. what section the 12 days refers to?

Thanks again and I'm really sorry I could not reply sooner - I have only just been able to get to a computer and my phone very helpfully stopped working at the end of last week so I couldn't even use that to look online.

I have only got until to tomorrow to get my defence in so your help is crucial. Thanks again.