Lowell Portfolio I Ltd v dasher13

[charitynjw]

Re: Lowell Portfolio I Ltd v dasher13

Hi dasher

The main problem (as I see it) with alleging falsification is that the judge should not conduct a mini-trial within the main case.
The very serious issues involved in the allegation need to be addressed in a separate hearing at a higher level, with appropriate opportunity for the 'accused' to have a fair trial.
Alpha Rocks Solicitors v Alade [2015], for instance, is about whether it is appropriate to strike out a statement of case which involved 'exaggerated or misstated evidence'.
However, in your case the disputed evidence is central to the whole shebang; without a valid NoA, the Claimant has no legal standing to issue a claim in their own name. Without the NoA, the assignment would be an 'equitable' assignment, which would need the original creditor (or previous assignor) to be a party to the claim.

[Diana M]

Re: Lowell Portfolio I Ltd v dasher13

not sure they can/will discontinue as I have a counterclaim in....

If the Claimant discontinues their claim your counterclaim would still stand - unless you discontinued it.

Di

[dasher13]

Re: Lowell Portfolio I Ltd v dasher13

Hello all...

Can I just ask how important it is to have a default notice in cases such as this? Is one not required (supposedly) before legal/court action can be embarked upon? Just want to check.

Thanks.

dasher

[dasher13]

Re: Lowell Portfolio I Ltd v dasher13

Sorry one more thing...I did not receive Lowell's defence to my counterclaim until 71 days after it was submitted. It was apparently submitted 22nd September and I received it from the court after two emails and a phone call on 2nd Dec.

Can anyone tell me if this significant at all?

[dasher13]

Re: Lowell Portfolio I Ltd v dasher13

Sorry nem - just going back through everything on here and making notes and do not think I came back to you on this. In Lowell's WS they simply refer to "the Credit Agreement".

There is no section in this document that is entitled "Theft, loss or misuse of card" - should that be present? There is also no section/line for "Missing payments".

Also I have read that agreements should, after the "About your rights" section refer people to either Trading Standards or the CAB if they want to know more about their rights. This is not in this document either.

Is any of this important?? And thank you.

Referring back to post 132!

[dasher13]

Re: Lowell Portfolio I Ltd v dasher13

I suspect that it is a bit late to try & do this for your hearing. (Mon 5th?)

Hi charity - not sure if I went back to you on this but Capital One have told me that I need to request the Deed of Assignment from Lowell.....

[dasher13]

Re: Lowell Portfolio I Ltd v dasher13

Hi charity/R0b,

They have said that they are waiting for documents from Cap1 to back up their story - can they do that? I thought they had to be in possession of them to bring a claim in the first place? Also they state they never received my CPR 31.14 requests even though I have the proof that the letters were signed for by both Lowell and Lowell solicitors and the emails I then sent as chasers had auto-responses confirming receipt! They go on to say that it doesn't matter anyway as CPR 31.1 (2) confirms that the rules under this part do not apply to the small claims track. Is this right? Just to confirm I received a letter from the court dated 22nd November to state this case had been allocated to the small claims track. Way after my defence and counterclaim was submitted and this Lowell defence to my counterclaim was submitted to the court.

Can anyone come back to me on the bit in bold above please? I would really appreciate the help.

[dasher13]

Re: Lowell Portfolio I Ltd v dasher13

Sorry for the flurry of posts and hope people can come back to me on them but was it not possible for me to apply for an Unless Order as Lowell did not comply with CCA and CPR requests in the allotted time? Is all that too late now or could I still bring it to the attention of the court again and specifically ask for an Unless Order?

[dasher13]

Re: Lowell Portfolio I Ltd v dasher13

Final post - sorry for so many -

Can anyone help with the Schedule of Costs form that I need to complete? Is it the N260 one? Any guidance on how to fill it in would be greatly appreciated.

[R0b]

Re: Lowell Portfolio I Ltd v dasher13

Lowell are right that CPR 31.14 doesn't apply to small claims but at the time of requesting the documents, the claim was not allocated and because they made the claim via MCOL the documents referred to in the POC were not disclosed. In those circumstances, CPR 31.14 would be applicable - bit of a wishy washy argument but you could also follow it up with the below.

The ruling of Rix LJ in Expandable v Rubin [2008] EWCA Civ 59 (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.”

So even if CPR 31.14 then Lowell should have complied with your request for the documents anyway so you could ascertain what the claim was about and consider your position, in accordance with the overriding objective. Refusing to co-operate would be grounds for unreasonable behaviour which causes further unnecessary costs and possible delays.

What costs are you seeking to claim?

[dasher13]

Re: Lowell Portfolio I Ltd v dasher13

Hi R0b,

Ok thank you. Basically the cost to my time dealing with this, all of the postage costs, travel to court etc.

Is that the right thing to do?

Am I right that I will need to quantify the counterclaim in terms of a monetary figure also?

dasher

[R0b]

Re: Lowell Portfolio I Ltd v dasher13

Yes, that is correct. You should lay out your expenses incurred in defending the claim.
I would also suggest you quantify your costs in defending the case which you you could argue forms part of your losses suffered (£19 per hour) e.g. drafting defence, witness statement, legal research etc.


Have you got a default marker against your credit file at the moment as a result of this? As that may also be grounds to argue the damages for counterclaim.

[charitynjw]

Re: Lowell Portfolio I Ltd v dasher13

Hi charity - not sure if I went back to you on this but Capital One have told me that I need to request the Deed of Assignment from Lowell.....

You could just write to Lowell,& ask for it.
Mention their continuing obligation for disclosure.
As time is of the essence, ask for reply by return.
It will probably be ignored, but you can then honestly say in court that you've requested the info.

[dasher13]

Re: Lowell Portfolio I Ltd v dasher13

Hi Charity,

I did so on 2nd Dec whilst also reminding them that they had still not complied with my CPR and s77-79 requests (not the first reminders I had sent them on the latter).

Have still never seen a Default Notice at any time.

Also no evidence that i received the NOA they claim Cap1 sent - not that Cap1 did send it of course as it is not authentic (which will be proven in court).

dasher

It has been ignored!

[charitynjw]

Re: Lowell Portfolio I Ltd v dasher13

[MENTION=71570]R0b[/MENTION]

At a recent SCT hearing which I attended (Claimant lost), the issue of costs was brought up but, apart from any application costs, the judge refused costs to the defendant as the other party (Claimant) had not been notified of the Defendant's intention to claim before the hearing.