**DISCONTINUED!!!!!!!!** - Cabot / ME IV Limited / Mortimer Clarke claim

[MOLLYLOLLY]

Re: URGENT ASSISTANT REQUIRED PLEASE - Cabot / ME IV Limited / Mortimer Clarke claim

Have you contacted Sky direct to see if they can offer you any further information about it? such as when the account was set up and the contract started / terminated? This would be helpful for your own knowledge

The particulars are a bit naff too as they don't give much information on what the subscription costs were on a monthly basis, what the subscriptions were, when the agreement started and ended etc. all of which you can add to your defence.

Are you able to provide evidence you weren't residing at your ex's address at the time, something like a council tax letter or utility bill?

I haven't contacted Sky yet but have been advised to send a SAR request which I will do.

Indeed, the particulars are very patchy but the onus is on them to provide the evidence so let's see what they come up with.

Yes, I can provide evidence that I never resided there at that time, or any time at all.

[MOLLYLOLLY]

Re: URGENT ASSISTANT REQUIRED PLEASE - Cabot / ME IV Limited / Mortimer Clarke claim

Hello all

My time is now drawing near to file my Defence (by Monday, 13.03.17!) and I have fallen a little behind as we have suffered a recent bereavement in the family so I have been distracted.

Nevertheless, on revisiting the matter, I didn't get round to sending off the CPR request because at first glance on reading the CPR thread info, it said that you cannot ask for any documents that are not stated in the PoC.

There are no documents whatsoever mentioned in the PoC, it simply reads;

"By a verbal Agreement between Sky UK Ltd & the Defendant commencing on or around 24/02/2011 ('the Agreement') Sky UK Ltd agreed to provide the Defendant with subscription service(s). The Defendant failed to make the required payments due & the Agreement was terminated. The Agreement was assigned to the Claimant. The Claimant therefore claims 252.83"

They have cleverly said it was a verbal agreement but I have no doubt that some form of paperwork would/should have followed and been sent to the address at which the Sky equipment was installed, to which I do not have access.

How do I proceed under these circumstances please?

[MOLLYLOLLY]

Re: URGENT ASSISTANT REQUIRED PLEASE - Cabot / ME IV Limited / Mortimer Clarke claim

Good morning - is anyone able to offer any direction please?

Many thanks.

[nemesis45]

Re: URGENT ASSISTANT REQUIRED PLEASE - Cabot / ME IV Limited / Mortimer Clarke claim

Good morning - is anyone able to offer any direction please?

Many thanks.

Good morning Molly,

Sorry to hear of your loss!

First take a look at the defence template (s) in the green box above to give you an idea of content and format.

From personal experience Sky send out confirmation of any " verbal" agreement for provision of service and I think the installer also provides some documentation.

I would be inclined to contact Sky to find out what was or wasn't sent out.

nem

[R0b]

Re: URGENT ASSISTANT REQUIRED PLEASE - Cabot / ME IV Limited / Mortimer Clarke claim

It would appear that the basis of your defence is that the account was fraudulently set up in your name and at an address which you have never resided at. If you and your ex-partner had split up by that point it may be helpful to provide some background on this to prove that you were no longer together and went your separate ways.

It doesn't sound like you have sent a SAR request have you? I would suggest that you do it immediately as it can take up to 40 days to have the information sent to you. The information from Sky may have also been crucial to putting in a robust defence against the claim but since you won't have that information in time, you can only do your best now and then turn up in court if need be, with the necessary evidence.

alternatively you can contact Sky and try to get them to give some information over the phone, information like what the previous email address was and confirm whether the sort code / account number reflects any of your bank accounts you own. All of this builds up a picture for you to say that you had no knowledge that a contract existed, though you will have to explain how you became aware of it (not necessarily in the defence but perhaps at trial) and what steps you took and that you had the account password changed and assuming Sky would close the account down.

Regardless of the above, Lowell have said an assignment took place but failed to mention what date and the date of the notice given. If no notice was given, then the assignment was not legal and in any event they have no right to bring a claim.

[MOLLYLOLLY]

Re: URGENT ASSISTANT REQUIRED PLEASE - Cabot / ME IV Limited / Mortimer Clarke claim

Thank you both so much @nemesis45 and [MENTION=71570]R0b[/MENTION], I'm very grateful for your responses, and also your condolences @nemesis45. It's a very sad time and taxing too.

To be frank, my head's in a spin as it is and now frantically trying to catch up and deal with this thorn in my side is nothing short of depressing - I just want to curl up let it pass, which I know I cannot and should not do, and it will not :'(

I'm just reading over your responses to make sure I cover all bases; I have partly adapted the template Defence but there is the sticking point of the CPR request which I mentioned yesterday, as they have failed to mention in their statement of claim any of the documents that can be requested on which they intend to rely/to draft my defence - so how do/can I approach this if according to the Rule, one can only request documents that are mentioned in the claim? It wouldn't surprise me if they they have worded it like this on purpose.

I was thinking of rewording the CPR request as follows, as a get around (if allowed) - please advise:

--------------------------------

Request for documents both mentioned and omitted from mention in a statement of case under CPR 31.14 on which it is intended to rely upon

I received a County Court claim from yourselves of which I have acknowledged receipt indicating my intention to defend in full.

To enable me to file my defence and/or counterclaim, I require inspection of the documents you have both failed to mention and mentioned in your Particulars of Claim but no doubt intend to rely upon in your case, ahead of filing my defence on 11.03.2017.

1. Agreement
2. Default Notice
3. Assignment
4. Formal Demand

In accordance with CPR 31.15(c) I undertake to be responsible for your reasonable copying costs incurred in complying with this CPR 31.14 request.

You should note that this claim has not yet been allocated to a specific track and the provisions of CPR 27(2) are of no effect. Had your claim not been issued through CCBC the Claimant would have been obliged to attach copies of the documentation upon which it relies to the Particulars of Claim. I, as Defendant, am entitled to see the documents on which the Claimant relies and which you will have to produce at trial. Disclosure at this stage will enable me to fully plead my case and further the Overriding Objective.

You should ensure compliance with your CPR 31 duties and ensure that the documents I have requested are copied to and received by me within 7 days of receiving this letter.

If you require more time in which to comply with this request you must tell me in writing and confirm your agreement to an extension of the time allowed for me to file my defence as allowed under CPR 15.5 so I may notify the court.

For your information and records I enclose a copy of the formal request for a copy of the credit agreement relating to this claim, pursuant to the Consumer Credit Act 1974, which has been posted to you/your client with the statutory fee of £1.

--------------------------------

As I am the one submitting the request at this later than usual stage before defence expiry, I was thinking of toning down the para re if they need time to comply, as I also need time too, to be honest?

I have part drafted a SAR and trying to find old texts, emails, etc to support this but I am not sure of what specific information I should be asking for, I basically want any and everything they may hold - any guidance on this aspect please?

[MOLLYLOLLY]

Re: URGENT ASSISTANT REQUIRED PLEASE - Cabot / ME IV Limited / Mortimer Clarke claim

It would appear that the basis of your defence is that the account was fraudulently set up in your name and at an address which you have never resided at. If you and your ex-partner had split up by that point it may be helpful to provide some background on this to prove that you were no longer together and went your separate ways.

We were just dating, nothing terribly formal and it was short-lived! (lucky escape me thinks). We didn't even part time cohabit at the same address; the address at which the Sky services were installed were at his home. Do you suggest that I mention this in my defence, as I didn't intend giving that type of disclosure at this juncture but placing the onus on the claimant to show evidence the debt is mine and that they have a right to make a claim against me for it?

It doesn't sound like you have sent a SAR request have you? I would suggest that you do it immediately as it can take up to 40 days to have the information sent to you. The information from Sky may have also been crucial to putting in a robust defence against the claim but since you won't have that information in time, you can only do your best now and then turn up in court if need be, with the necessary evidence.

No, I hadn't, but part drafted now.

alternatively you can contact Sky and try to get them to give some information over the phone, information like what the previous email address was and confirm whether the sort code / account number reflects any of your bank accounts you own. All of this builds up a picture for you to say that you had no knowledge that a contract existed, though you will have to explain how you became aware of it (not necessarily in the defence but perhaps at trial) and what steps you took and that you had the account password changed and assuming Sky would close the account down.

Noted. I will attempt to contact Sky by phone.

Regardless of the above, Lowell have said an assignment took place but failed to mention what date and the date of the notice given. If no notice was given, then the assignment was not legal and in any event they have no right to bring a claim.

Yes, it's the only document they make mention of in the Poc. As there is a request for a copy in the SAR (should I be able to send it), would you suggest me making mention of this omission in my defence also?

[nemesis45]

Re: URGENT ASSISTANT REQUIRED PLEASE - Cabot / ME IV Limited / Mortimer Clarke claim

Thank you both so much @nemesis45 and @R0b, I'm very grateful for your responses, and also your condolences @nemesis45. It's a very sad time and taxing too.

To be frank, my head's in a spin as it is and now frantically trying to catch up and deal with this thorn in my side is nothing short of depressing - I just want to curl up let it pass, which I know I cannot and should not do, and it will not :'(

I'm just reading over your responses to make sure I cover all bases; I have partly adapted the template Defence but there is the sticking point of the CPR request which I mentioned yesterday, as they have failed to mention in their statement of claim any of the documents that can be requested on which they intend to rely/to draft my defence - so how do/can I approach this if according to the Rule, one can only request documents that are mentioned in the claim? It wouldn't surprise me if they they have worded it like this on purpose.

I was thinking of rewording the CPR request as follows, as a get around (if allowed) - please advise:

--------------------------------

Request for documents both mentioned and omitted from mention in a statement of case under CPR 31.14 on which it is intended to rely upon

I received a County Court claim from yourselves of which I have acknowledged receipt indicating my intention to defend in full.

To enable me to file my defence and/or counterclaim, I require inspection of the documents you have both failed to mention and mentioned in your Particulars of Claim but no doubt intend to rely upon in your case, ahead of filing my defence on 11.03.2017.

1. Agreement
2. Default Notice
3. Assignment
4. Formal Demand

In accordance with CPR 31.15(c) I undertake to be responsible for your reasonable copying costs incurred in complying with this CPR 31.14 request.

You should note that this claim has not yet been allocated to a specific track and the provisions of CPR 27(2) are of no effect. Had your claim not been issued through CCBC the Claimant would have been obliged to attach copies of the documentation upon which it relies to the Particulars of Claim. I, as Defendant, am entitled to see the documents on which the Claimant relies and which you will have to produce at trial. Disclosure at this stage will enable me to fully plead my case and further the Overriding Objective.

You should ensure compliance with your CPR 31 duties and ensure that the documents I have requested are copied to and received by me within 7 days of receiving this letter.

If you require more time in which to comply with this request you must tell me in writing and confirm your agreement to an extension of the time allowed for me to file my defence as allowed under CPR 15.5 so I may notify the court.

For your information and records I enclose a copy of the formal request for a copy of the credit agreement relating to this claim, pursuant to the Consumer Credit Act 1974, which has been posted to you/your client with the statutory fee of £1.

--------------------------------

As I am the one submitting the request at this later than usual stage before defence expiry, I was thinking of toning down the para re if they need time to comply, as I also need time too, to be honest?

I have part drafted a SAR and trying to find old texts, emails, etc to support this but I am not sure of what specific information I should be asking for, I basically want any and everything they may hold - any guidance on this aspect please?

CPR 31.14 applies to a claim on the small claims track until it is allocated to that track.

You can expect some convoluted explanation from Mortimer Clarke along the lines of " documents if any will be disclosed at the appropriate stage of the claim or if ordered by the court.

As [MENTION=71570]R0b[/MENTION] has suggested get a call into Sky they might just be able to clarify what has happened.
A friend of mine who works of Sky say if a verbal order is accepted the call is recorded and confirmation is usually sent out by post.

nem

[R0b]

Re: URGENT ASSISTANT REQUIRED PLEASE - Cabot / ME IV Limited / Mortimer Clarke claim

We were just dating, nothing terribly formal and it was short-lived! (lucky escape me thinks). We didn't even part time cohabit at the same address; the address at which the Sky services were installed were at his home. Do you suggest that I mention this in my defence, as I didn't intend giving that type of disclosure at this juncture but placing the onus on the claimant to show evidence the debt is mine and that they have a right to make a claim against me for it?

It's a bit of a judgment call to you, though if your defence is based around the account being set up in your name unknowingly, I wouldn't see what advantage Lowell may have over explaining that in your defence. Or you could simply keep it brief and plead that your investigations so far has indicated that the subscription service was set up fraudulently in your name and at an address you have not resided at. You can also state that you will rely on evidence such as council tax bills, utility bills etc. to prove that at the time the service was taken out, you were living elsewhere.

Then in your Witness Statement, you can go into a bit more detail once you have the full picture and hopefully obtained more information from Sky.

Nem is right about the verbal agreements, I used to work for Sky in a call centre in my uni days and anything set up over the phone was agreed verbally but as soon as a new account was set up and processed, the system would automatically generate the welcome pack which included a number of documents such as the terms and conditions of the contract. Whenever someone accessed your account there would always be a footprint of who accessed it and at what time and what they did. Anytime a letter was sent out, it was recorded on the account and you could view a copy of it on the system and the same applied for any notes on there. Even if someone didn't put a note on the system you could always trace who the employee who accessed it.

Regarding the SAR request, if I recall, sky had a specific department that dealt with SAR requests and they would normally send out a sort of questionnaire for you to fill in (not sure if theystill do this). I always remember they weren't keen on doing SARs especially if there was an involvement of legal action and they would generally resolve the matter there and then!

So when you contact Sky and have asked the necessary questions, tell them you want to make a subject access request and ask if they can be put through to the department who deals with it. If that department doesn't exist anymore then find out where to send your letter and who it needs to be addressed to.

The contents of your SAR should mention some or all of the following:

- All notes recorded on the system
- copies of contracts during the period in question
- copies of all correspondence on the account as well as any other letters / emails which contain your personal information
- details of the sort code / account number (including any new entries) used to process any transactions for payment of the subscription services (they may not give you this but worth asking or ask for them to confirm the last details of the sort code account number over the phone, they are more likely to do it that way)

The ICO have a basic letter on their website about half way down the page https://ico.org.uk/for-the-public/personal-information/

Edit: I don't suppose you are in contact with your ex-partner at all are you? Perhaps if you are, maybe you can get him to admit that he set up the account in your name without your knowledge. That would be helpful to your case, and it can be in the form of an email which you will rely upon as evidence.

[MOLLYLOLLY]

Re: URGENT ASSISTANT REQUIRED PLEASE - Cabot / ME IV Limited / Mortimer Clarke claim

CPR 31.14 applies to a claim on the small claims track until it is allocated to that track.

Oh, ok, thank you [MENTION=55034]nemesis45[/MENTION]. I'm not familiar with the definitions of the CPR clauses, I just copied the template letter from the link supplied at the top of the page and didn't change any references to them, just changed wording so it could fit with applying for things that were NOT mentioned in the PoC. Does this mean that I can't/shouldn't make a request at all in this regard?

You can expect some convoluted explanation from Mortimer Clarke along the lines of " documents if any will be disclosed at the appropriate stage of the claim or if ordered by the court.

Noted. Do/can I challenge this on the basis that I need it to complete my defence?

As @R0b has suggested get a call into Sky they might just be able to clarify what has happened.
A friend of mine who works of Sky say if a verbal order is accepted the call is recorded and confirmation is usually sent out by post.

I'm on it!

[MOLLYLOLLY]

Re: URGENT ASSISTANT REQUIRED PLEASE - Cabot / ME IV Limited / Mortimer Clarke claim

It's a bit of a judgment call to you, though if your defence is based around the account being set up in your name unknowingly, I wouldn't see what advantage Lowell may have over explaining that in your defence. Or you could simply keep it brief and plead that your investigations so far has indicated that the subscription service was set up fraudulently in your name and at an address you have resided at. You can also state that you will rely on evidence such as council tax bills, utility bills etc. to prove that at the time the service was taken out, you were living elsewhere.

Then in your Witness Statement, you can go into a bit more detail once you have the full picture and hopefully obtained more information from Sky.

Thank you [MENTION=71570]R0b[/MENTION] - noted.

Nem is right about the verbal agreements, I used to work for Sky in a call centre in my uni days and anything set up over the phone was agreed verbally but as soon as a new account was set up and processed, the system would automatically generate the welcome pack which included a number of documents such as the terms and conditions of the contract. Whenever someone accessed your account there would always be a footprint of who accessed it and at what time and what they did. Anytime a letter was sent out, it was recorded on the account and you could view a copy of it on the system and the same applied for any notes on there. Even if someone didn't put a note on the system you could always trace who the employee who accessed it.

Noted. I know it would be very strange for any business not to re-confirm any agreement in writing, either by post or at the very least email.

Regarding the SAR request, if I recall, sky had a specific department that dealt with SAR requests and they would normally send out a sort of questionnaire for you to fill in (not sure if theystill do this). I always remember they weren't keen on doing SARs especially if there was an involvement of legal action and they would generally resolve the matter there and then!

So when you contact Sky and have asked the necessary questions, tell them you want to make a subject access request and ask if they can be put through to the department who deals with it. If that department doesn't exist anymore then find out where to send your letter and who it needs to be addressed to.

The contents of your SAR should mention some or all of the following:

- All notes recorded on the system
- copies of contracts during the period in question
- copies of all correspondence on the account as well as any other letters / emails which contain your personal information
- details of the sort code / account number (including any new entries) used to process any transactions for payment of the subscription services (they may not give you this but worth asking or ask for them to confirm the last details of the sort code account number over the phone, they are more likely to do it that way)

Noted - very helpful. Thank you. If, as you say, footprints/notes/records are indeed kept each time the account is accessed, then that has made me feel so much better as I called almost instantly I discovered what had gone awry and they will be able to see I refuted having made the order and requested it's cancellation,along with the cancellation confirmation email they sent me which I still have.

The ICO have a basic letter on their website about half way down the page https://ico.org.uk/for-the-public/personal-information/

Thank you for this link.

Edit: I don't suppose you are in contact with your ex-partner at all are you? Perhaps if you are, maybe you can get him to admit that he set up the account in your name without your knowledge. That would be helpful to your case, and it can be in the form of an email which you will rely upon as evidence.

No, I'm not in contact with him and haven't been since around that time (nor do I have any desire to be either, if I can help it!) He would never admit to having done it as he wouldn't want to have to be liable for it. That route is pretty much a lost cause.

[MOLLYLOLLY]

Re: URGENT ASSISTANT REQUIRED PLEASE - Cabot / ME IV Limited / Mortimer Clarke claim

[MENTION=71570]R0b[/MENTION] and/or [MENTION=55034]nemesis45[/MENTION], can I ask for your guidance as to whether I should still submit a CPR in view of the lack of mention of documents in their PoC - if so, how should I word it?

I am also thinking of sending this by email - is that acceptable?

Thank you.

[R0b]

Re: URGENT ASSISTANT REQUIRED PLEASE - Cabot / ME IV Limited / Mortimer Clarke claim

Noted - very helpful. Thank you. If, as you say, footprints/notes/records are indeed kept each time the account is accessed, then that has made me feel so much better as I called almost instantly I discovered what had gone awry and they will be able to see I refuted having made the order and requested it's cancellation,along with the cancellation confirmation email they sent me which I still have.

Whenever an account is accessed, the footprint left would be the employee's user ID so even if no note was recorded, there would always be one footprint because before the employee can see anything on your account they would need to confirm verification, and once confirmed that would automatically leave a footprint whether you failed or passed it. Obviously not everyone records notes on systems and that's just life (as well as annoying) but if you were sent a cancellation confirmation from Sky, that should be recorded on your account and you should rely on that to back up your defence.

[MOLLYLOLLY]

Re: URGENT ASSISTANT REQUIRED PLEASE - Cabot / ME IV Limited / Mortimer Clarke claim

No, I'm not in contact with him and haven't been since around that time (nor do I have any desire to be either, if I can help it!) He would never admit to having done it as he wouldn't want to have to be liable for it. That route is pretty much a lost cause.

Further to the above, I have managed to find an couple of emails confirming installation that show HIS telephone number as the contact number! I had never noticed these before but I think they are gold.

I am still sifting...

[nemesis45]

Re: URGENT ASSISTANT REQUIRED PLEASE - Cabot / ME IV Limited / Mortimer Clarke claim

Further to the above, I have managed to find an couple of emails confirming installation that show HIS telephone number as the contact number! I had never noticed these before but I think they are gold.

I am still sifting...

That's a good find Molly!!

nem