Lowell Portfolio I Ltd v dasher13

[Diana M]

Re: Lowell Portfolio I Ltd v dasher13

I have had to attach the Lowell defence to my counterclaim as photos.

I've hesitated to comment on your counterclaim because it's not something I would have done on a claim of this size.

In the Defence to your counterclaim Lowell make the point (Para 13) that you have not suffered any loss which is something the DJ will have in his mind when considering your claim for £250 in damages. How did you get to that figure? What have you actually lost (or suffered)? That's what he'll be thinking.

If he wants to punish the Claimant for not having the correct paperwork then he can dismiss their claim. Ordering them to pay you money as well is a longshot.

In court recently a DJ told the Defendant that they had received a "windfall" by not having to pay a debt after he dismissed the claim against them. It was his way of expressing his reluctance to follow s.78 CCA but knew he ought to.

In my experience you walk into court as a LIP with the uphill struggle of being perceived as a 'debt avoider'. Many DJs say "you've borrowed the money so you should pay it back". They're wrong to raise a moral argument, but sadly that's the mindset you're facing.

If you then ask them to award you money on top of not paying what they believe you owe (albeit not enforceable in court) then you run the risk of putting their back up.

This is a personal view (because that's what forums are for ) and I wish you well with your counterclaim in the hope that you'll get a DJ who is against lawyers 'trying it on' without the relevant court documents.

Di

[R0b]

Re: Lowell Portfolio I Ltd v dasher13

Regarding @Diana M's comments

I guess the purpose of course is to deter claimant's fro simply bringing claims where they have no reason to bring it in the first place. Loss of course does not need to be physical, economic loss ofr example could be recoverable, as is out of pocket expenses or distress, time spent on defending the claim, a default marker on a credit file is also loss and injury.

Authority as per the Supreme Court in Willers v Gubay makes it clear that a person who has no reasonable or justifiable cause is liable to a claim for malicious prosecution. The Privy Council case of Crawford Adjusters v Sagicor (which I must add all judges were also part of the Willers case) have suggested that both malicious prosecution and tort of abuse of process arises, then economic loss could be recoverable.

Nomura v Granada makes it very clear again that claimants should not be bringing claims when they have no basis, although the facts were different, the principle remains the same. A debt purchaser who chooses to purchase a debt should ensure that they have the relevant documents at the start of the claim and not at some point during the course of proceedings or issues the claim hoping that something arrives/turns up in the process - Cooke clearly stated that was clearly an abuse of process, an it is up to claimants to carry out some kind of pre-proceedings investigations so that they can determine if there is a valid claim. If no investigations took place, how do they know there is a valid claim?

We all seem to know on here that the poor pleadings and lack of documentation from claimants that they issue claims in bulk without carrying out any due diligence hence the high number of discontinuances for one reason or another. The fact that their witness statement and other documents have a huge number of anomalies along with the SAR evidence indicates that they had nothing at the time and they are now perhaps scrambling.

As Lord Toulson puts it in Willers:

It seems instinctively unjust for a person to suffer injury as a result of the malicious prosecution of legal proceedings for which there is no reasonable ground, and yet not be entitled to compensation for the injury intentionally caused by the person responsible for instigating it. It was that consideration which led the judges to create the tort of malicious prosecution, as can be seen in the case law.

If you have no documents at the time of issuing a claim to prove your case, then there is no reasonable grounds.

[Diana M]

Re: Lowell Portfolio I Ltd v dasher13

I know I know, but the reality is that this is a £800 claim so I was putting things into perspective.

On that basis every single Defendant who receives a County Court summons from MCOL (which issues thousands daily) where the Claimant can't provide documents by the time they need to file their Defence (33 days later) could raise a counterclaim for "malicious prosecution" expecting a DJ to award them damages if the Claimant subsequently loses.

How many LB members have counterclaimed under similar circumstances, and how many have won damages?

In their Defence to the OP's counterclaim Lowell states that they sent 14 letters to the Defendant which went unanswered. Their point being that it takes two to communicate.

They've also produced documents (albeit iffy ones from what's been said) so the DJ may take the view "better late than never".

The only predictable unpredictability is the DJ. It's a lottery. You don't know until you walk into the room which way things are going to go. So my approach is never to do anything which could annoy the DJ before he gets down to business.

I've always thought a lawyer is better off doing a degree in psychology than law if they want to succeed

Most people/clients would be content and relieved to simply escape the sum claimed if they mange to get the claim dismissed, without expectations of anything more than that.

Di

[Diana M]

Re: Lowell Portfolio I Ltd v dasher13

a default marker on a credit file is also loss and injury.

That's a different argument (from malicious prosecution) and one my firm has success with

Di

[dasher13]

Re: Lowell Portfolio I Ltd v dasher13

Hi Di. I did notice their claim they sent 12 letters. Utter rubbish which is perhaps proven by what they sent me after my SAR request as they sent me copies of two letters. The two I've always said I was sent. If there were 12 why did they not include them with the other documents they sent after my SAR request?! If they included 2 why not all 12!?! Perhaps the same reason there was no NOA or default notice etc in there - they don't exist/have them!

Also how can they get away with saying they didn't get my CPR letters and emails?! I have the proof they were received and signed for and an auto-response acknowledging receipt for the emails!! Surely they really can't do that and be taken seriously!?

[Diana M]

Re: Lowell Portfolio I Ltd v dasher13

I guess the purpose of course is to deter claimant's fro simply bringing claims where they have no reason to bring it in the first place.

. . . It seems instinctively unjust for a person to suffer injury as a result of the malicious prosecution of legal proceedings for which there is no reasonable ground

I see that as a crusade not a counterclaim on a £800 debt in the Small Claims Court put forward by a LIP without legal representation.

Di

[Diana M]

Re: Lowell Portfolio I Ltd v dasher13

Hi Di. I did notice their claim they sent 12 letters. Utter rubbish which is perhaps proven by what they sent me after my SAR request as they sent me copies of two letters. The two I've always said I was sent. If there were 12 why did they not include them with the other documents they sent after my SAR request?! If they included 2 why not all 12!?! Perhaps the same reason there was no NOA or default notice etc in there - they don't exist/have them!

Also how can they get away with saying they didn't get my CPR letters and emails?! I have the proof they were received and signed for and an auto-response acknowledging receipt for the emails!! Surely they really can't do that and be taken seriously!?

I agree, and on the basis of that you have good arguments to make to the DJ.

And Lowell has a lot of explaining to do.

You can cross examine them in court on these points. Tear their WS to shreds to ruin their credibility

Di

[R0b]

Re: Lowell Portfolio I Ltd v dasher13

On that basis every single Defendant who receives a County Court summons from MCOL (which issues thousands daily) where the Claimant can't provide documents by the time they need to file their Defence (33 days later) could raise a counterclaim for "malicious prosecution" expecting a DJ to award them damages if the Claimant subsequently loses.

My answer to the above is yes, why not? If a claimant wants to bring a claim and knows that there are documents available yet doesn't have them in their possession and doesn't bother to request them to verify the claim is a valid one, and still decides to proceed on that basis then I think the claimant must take the risk that the claim is without proper reasonable and probable cause. The malicious aspect would be satisfied given that the Claimant knew of the documents/evidence but deliberately chose not to do anything about it.

Sure Lowell my argue good faith, but they have acknowledged in their claim form that a written agreement exists, yet upon requesting those documents they have ignored the requests which evidence can be produced to show it was signed for (in this case). I just can't see how you can have a reasonable and probable cause of action if all you have to go off is a person's word but you don't (a) use them as a witness to verify an agreement existed and/or (b) you know the agreement is the evidence to prove the debt is owed but you can't produce it.

The simple answer is if you don't have something then you wait until you do have it before issuing a claim. Carrying out due dil will eat into the debt purchasers profits but just because it's rife in this particular industry, doesn't mean to say that debtors or the county courts should accept it when there is higher authority to the contrary.

I agree, DJ's can be a lottery but again, I don't see why that should put someone off. I believe this may be the first LB member as I did previously suggest this could be an option to deter them from bringing claims without any proof in this case that they have standing and the evidence to show the debt is actually owed. The choice was up to dasher whether a counterclaim should be made, and I have since stopped suggesting this on the request of Amethyst until further discussions on this is made (though none of us have got round to having a proper discussion on it yet).

Obviously I can't comment on the 14 letters they may have sent but I think the real question is why didn't they have the documents in their possession at the time of issue? If they knew that they existed, why not request copies of them? Applying the judgment of Cooke, this is a clear case of the claimants essentially hoping that something turns up during the course of proceedings and until those documents turn up (if any), Lowell have no cause of action/evidence to prove they are entitled to the debt. When the documents can't be produced, there seems to be a general position in that the case gets discontinued, presumably knowing that there is a high chance of being unsuccessful without them.

Whether its £100 or £800 or £7,000 I don't think it matters, there is no excuse for issuing a claim without having the necessary evidence you seek to rely on. If you do, then it should be at your own peril. Claimants got away with it previously because no cause of action existed, now one does exist, it should be used.

Bit of a long post.. sorry

[charitynjw]

Re: Lowell Portfolio I Ltd v dasher13

@Diana M & @R0b

I'm inclined to agree with R0b on this one.
On another thread, & according to the info posted, the OP went to their hearing with clear evidence that, when documents were eventually received from the Claimant, they were not CCA s78 compliant.
Despite this, the Claimant's sol persuaded the judge that the compliant documents probably did exist & that it simply would be a waste of the court's time & money by delaying the inevitable.
Apparently the judge swallowed this & found for the Claimant, Lowells.
From the OP's account of the hearing, it seems that reference was discussed (between the judge & the sol) to Carey.
If they had bothered checking properly, at 231

...and not merely unenforceable for the duration of a s78 breach as s78 (6) provides

....for so long as the breach persists. If it does, the agreement remains unenforceable

Dasher's counterclaim has so far been acceptable & will highlight the lack of documentation & possibly succeed in demonstrating that which, to my mind anyway, should be obvious; a prospective Claimant should not proceed without having first carefully examined the evidence on which the claim is based.
To initiate a claim on the 'media' supplied in the purchased debt portfolio is, imho, little better than hearsay.

[charitynjw]

Re: Lowell Portfolio I Ltd v dasher13

I see that as a crusade not a counterclaim on a £800 debt in the Small Claims Court put forward by a LIP without legal representation.

Di

I have seen other brave people taking on big institutions.

& winning! :rockon:

[Diana M]

Re: Lowell Portfolio I Ltd v dasher13

I'm inclined to agree with R0b on this one.

Dasher's counterclaim has so far been acceptable & will highlight the lack of documentation & possibly succeed in demonstrating that which, to my mind anyway, should be obvious; a prospective Claimant should not proceed without having first carefully examined the evidence on which the claim is based.

I agree with that and everything Rob has said in principle too. However the change needed has to come from the top.

DJ's need to stop adjourning Trials (part heard) to give the Claimant more time to get their paperwork together or amend their (wrongly pleaded) POC to suit their arguments months after they issued a summons.

DJs need to make more 'unless orders' which sanction the Claimant with a strike out if they don't produce necessary documents within 7 days not just orders which give them 28 days and no sanction so the Defendant has to fork out £255 on an application to strike out the Claim due to the Claimant's non compliance with the order.

My personal view was a counterclaim for £250 damages on a £800 claim was not necessarily the best way to go about things. Different lawyers run their cases in different ways. Neither is right or wrong, it's about personal tactics and strategy.

My dear old mother used to say "you catch more bees with honey" and she was not wrong. In court you need to persuade a Judge that you are right, preferably putting them in a position where it looks like it was their idea not yours. You need to get the DJ onside.

In a debt situation you are starting on the back foot with prejudice usually against you, so you will need to do all you can to persuade the DJ that your Defence is about upholding the law not about avoiding paying what you've borrowed which is rarely in dispute (albeit on quantum). Asking for compensation on top is (in my personal view) pushing your luck.

This negative attitude towards 'debtors' held by DJs (not all) is supported by the two LB members who yesterday posted what happened when they lost their cases in court. From everything I've read they deserved to win in legal terms - but sadly didn't when the DJ may have used his discretion to work with the "on the balance of probabilities" argument.

Di

[dasher13]

Re: Lowell Portfolio I Ltd v dasher13

Hello all...

Just a quick one really - what would be the punishment for deliberately submitting false/fake documents to the court?

If for example, Lowell had forged documents and submitted them to the court with their WS, and I could prove this what should I do and when? Wait until the court date and expose it on the day? Would such action by Lowell not give rise to potential criminal charges? Also the WS have signed statements of truth so would those who signed them not be open/liable to the consequences if they have lied? Could anyone else at the company potentially be open to criminal charges? Perhaps people at the top?

I am guessing that the court would take a rather dim view of a party submitting false documents - if as I say it can be catergorically proven.

There is no way (surely) that if in court documents that have been submitted are shown to be deliberately forged (sorry if there is a more technical term) that the party that has submitted them can simply get away with it? I know this is a civil case but wouldn't this kind of action be perverting the course of justice?

Would appreciate people's thoughts. Thanks in advance as always.

dasher

[dasher13]

Re: Lowell Portfolio I Ltd v dasher13

Hello all...

Just a quick one really - what would be the punishment for deliberately submitting false/fake documents to the court?

If for example, Lowell had forged documents and submitted them to the court with their WS, and I could prove this what should I do and when? Wait until the court date and expose it on the day? Would such action by Lowell not give rise to potential criminal charges? Also the WS have signed statements of truth so would those who signed them not be open/liable to the consequences if they have lied? Could anyone else at the company potentially be open to criminal charges? Perhaps people at the top?

I am guessing that the court would take a rather dim view of a party submitting false documents - if as I say it can be catergorically proven.

There is no way (surely) that if in court documents that have been submitted are shown to be deliberately forged (sorry if there is a more technical term) that the party that has submitted them can simply get away with it? I know this is a civil case but wouldn't this kind of action be perverting the course of justice?

Would appreciate people's thoughts. Thanks in advance as always.

Oh and Di/R0b I think I forgot to mention a few posts ago that Lowell sent me stamped (received and dated) copies of my CPR letters in the bundle of documents they sent after my SAR request. However, in their defence to my counterclaim they deny receiving any CPR requests (plus I have proof they were signed for anyway)...ludicrous.

dasher

[nemesis45]

Re: Lowell Portfolio I Ltd v dasher13

Hello all...

Just a quick one really - what would be the punishment for deliberately submitting false/fake documents to the court?

If for example, Lowell had forged documents and submitted them to the court with their WS, and I could prove this what should I do and when? Wait until the court date and expose it on the day? Would such action by Lowell not give rise to potential criminal charges? Also the WS have signed statements of truth so would those who signed them not be open/liable to the consequences if they have lied? Could anyone else at the company potentially be open to criminal charges? Perhaps people at the top?

I am guessing that the court would take a rather dim view of a party submitting false documents - if as I say it can be catergorically proven.

There is no way (surely) that if in court documents that have been submitted are shown to be deliberately forged (sorry if there is a more technical term) that the party that has submitted them can simply get away with it? I know this is a civil case but wouldn't this kind of action be perverting the course of justice?

Would appreciate people's thoughts. Thanks in advance as always.

Oh and Di/R0b I think I forgot to mention a few posts ago that Lowell sent me stamped (received and dated) copies of my CPR letters in the bundle of documents they sent after my SAR request. However, in their defence to my counterclaim they deny receiving any CPR requests (plus I have proof they were signed for anyway)...ludicrous.

dasher

Keep all those items safe it's damning evidence of Lowell's incompetence.

nem

[dasher13]

Re: Lowell Portfolio I Ltd v dasher13

Thanks nem. So there are no procedures I need to follow pre-trial or anything like that? It's beyond damning.