** discontinued ** anarchist v Lowell

[anarchist]

Hello everyone,

I have found this site very helpful and would be grateful for your advice.

I've drafted a CPR 31.14 letter, which I will post tomorrow. But i'm not sure whether to include 'Formal Demand' and have left out 'Default notice' as it is not in their Particulars of Claim.

If someone could have a look and see if anything is missing that would be great.

The Particulars of Claim are as follows:

1 The defendant entered into an agreement with Vodafone under account reference XXX ('the Agreement').
2 The defendant failed to maintain the required payments and the service was terminated.
3 The Agreement was later assigned to the Claimant on XX/07/2014 and notice given to the Defendant.
4 Despite repeated requests for payment, the sum of £XX.XX remains due and outstanding.
And the Claimant claims
a) The said sum of £XXX
b) Interest pursuant to s69 County Courts Act 1984 at the rate of 8% per annum from the date of assignment to the date of issue, accruing at a daily rate of £0.0X0, but limited to one year, being £XX.XX
c) Costs


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

Here is the letter I have drafted:

address

22^nd May 2017

Lowell Solicitors Limited
PO Box 1419
Northampton
NN2 1BU


Dear Sirs,

Claim Number: X

Request for documents mentioned in a statement of case under CPR 31.14

On 19/05/2017 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 documents you mention in your statement of case ahead of filing my defence on 29/05/2017.

1. Agreement
2. Assignment

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 document(s) 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 your client with the statutory fee of £1 today, 22/05/2017.

I look forward to hearing from you.

Yours sincerely




anarchist

[pt2537]

Re: anarchist v Lowell

You could include the formal demand in your request, the worst they can say is no. Or in the alternative you could make a part 18 request under part 18 of the civil procedure rules, if they mention a written document in their reply then they are duty bound to provide a copy per cpr 31.14 as a part 18 reply becomes part of the claim

[anarchist]

Re: anarchist v Lowell

Thank you! I will include the formal demand in the request.

Should I send a part 18 request to them too on a separate letter?

[pt2537]

Re: anarchist v Lowell

Thank you! I will include the formal demand in the request.

Should I send a part 18 request to them too on a separate letter?

you could make a part 18 request, have you read part 18 of the rules? and do you know how to make a part 18 request? Part 18 does explain it quite well, you can make a part 18 request in a letter if you wish as long as you make it clear that what it is.

You would probably ask them to confirm how the formal demands were made, and if in writing then can they provide a copy of each demand,

if you need a hand shout

[anarchist]

Re: anarchist v Lowell

Thanks, where are the rules for part 18 please, I found a template letter online, is there a template for it?

[MIKE770]

Re: anarchist v Lowell


https://www.justice.gov.uk/courts/procedure-rules/civil/rules/part18/pd_part18



Jump to Applications for Orders under Part 18 - (1) If a Request under paragraph 1 for the ... 5.7 An order made under Part 18 must be served on all parties ...









https://www.justice.gov.uk/courts/procedure-rules/civil/rules/part18/pd_part18



Jump to Applications for Orders under Part 18 - (1) If a Request under paragraph 1 for the ... 5.7 An order made under Part 18 must be served on all parties ...

[anarchist]

Re: anarchist v Lowell

Hi everyone. Thanks for the help so far.

I have sent the Lowell solicitors at Northampton BC the CPR 31.14 letter by recorded delivery.
I understand that Lowell are unlikely to respond or provide the documents requested. I'm going to look at the defence now.

This is for a mobile phone contract. Is the below template suitable for the defence?
I saw that this template is generally for catalogue accounts and credit cards etc.



-------

EXAMPLE DEFENCE


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

1: I received the claim [Claim Number] from the [Name of Court - often Northampton or Salford] County Court on [Date you received the claim]

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

3: This claim [is for/ appears to be for] a [Mobile Phone ? Credit Card / Loan / Catalogue Account] 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 [Original Creditor] to [Claimant] on [Date]. The Defendant does not recall receiving notice of this assignment.

7. It is denied that [Original Creditor] 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 [Date] I sent a request for inspection of documents mentioned in the claimants statement of case under Civil Procedure Rule 31.14 to [Claimant's Solicitor]. I requested the Claimant provide copies of the [Agreement, Default Notice and Notice of Assignment] .

9. [Claimant's Solicitor] has not sent any of these documents to me.

10. On the [Date] I sent a formal request for a copy of the original agreement to [Claimant] pursuant to section [77 or 78] 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)] Consumer Credit Act 1974 and by virtue of [s77 (4) / s 78 (6)] 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 declined.] or [The Parties agreed to an extension to the time period allowed for filing of my defence under CPR 15.5 to allow the Claimants additional time to produce the relevant documentation to evidence their claim, however they have failed to do so.]

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. 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 …………………………………………

Dated .................................................. ....

[charitynjw]

Re: anarchist v Lowell

Hi anarchist

I've always viewed the defence example as exactly that, an example.
To my mind it would be impossible to give a one-size-fits-all template; it seems obvious to me that, apart from the differing laws that are applicable to different types of agreements, the facts of each case are virtually always going to be unique as well, so almost all templates will not be boilerplate.
If it was as simple as always copying & pasting one document to cover any/all bases, everyone would be doing it, & lawyers wouldn't be earning the big bucks.

Was your agreement with the original mobile phone service provider a split-tariff agreement?
If so, the Consumer Credit Act sections quoted above may well be applicable.
If it wasn't, you probably will have to scrub those references.

[anarchist]

Re: anarchist v Lowell

Hi charitynjw

Thanks for this. Yes, I am taking it as an example and have tweaked it to fit the case!

I am helping a friend with this. I've just checked with them and it is a standard mobile phone contract for 24 months, including a phone and airtime for one monthly amount. So not a split-tariff agreement.


Hopefully the following defence is suitable? I will amend it if Lowell do respond before submitting it.


IN THE NORTHAMPTON COUNTY COURT (CCBC)


CASE No: X

BETWEEN:

Lowell Solicitors Limited CLAIMANT

-and-

XX XX DEFENDANT




Defence




1: I received the claim XX from the Northampton County Court on 19/05/2017

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

3: This claim is for a Mobile Phone agreement.

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 Vodafone to Lowell Portfolio I Ltd on 31/07/2014. The Defendant does not recall receiving notice of this assignment.

7: On the 24/05/2017 I sent a request for inspection of documents mentioned in the claimants statement of case under Civil Procedure Rule 31.14 to Lowell Solicitors Limited. I requested the Claimant provide copies of the Agreement, Formal Demand and Notice of Assignment.

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

9. On the 24/05/2017 I sent a formal request for a copy of the original agreement to Lowell Solicitors Limited along with the statutory £1 fee.

10. 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.

11. 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.

12. 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.

13. 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

Dated

[charitynjw]

Re: anarchist v Lowell

That looks fine.

Except for #9.

[anarchist]

Re: anarchist v Lowell

Hi

I have submitted the above defence on 25th May.

I received a letter from Lowell with a copy of their Directions Questionnaire (Small Claims Track) enclosed

I have not received the same form for me to complete from the court. Should I contact the court to ask if this has been sent yet. Any advice on what to do with this form/how to complete it would be appreciated

[anarchist]

Re: anarchist v Lowell

Hi

I have received the notice of proposed allocation to the small claims track letter from the CCBC

Attached is the N180 questionnaire for me to complete and return.

Mediation has been proposed but im not sure whether to accept this as they have not returned a copy of the agreement.

Please could someone advise how to proceed with completing the N180 form

A1 - do you agree to this case being referred to the small claims mediation service

C1 - do you agree that the small claims track is the appropriate track for this case - this should be YES I believe due to the amount


[url=https://imgbb.com/]uploaded

[charitynjw]

Re: anarchist v Lowell

I would virtually always tick 'yes' (mediation).

Although it is unlikely that Mediation will consider taking it on due to non-disclosure, the court does expect at least an attempt at settlement outside of court.

[matthewmc]

Re: anarchist v Lowell

Posting on behalf of the OP


Notice of discontinuation received from Lowell - another Lowell bites the dust. Thanks everyone.

[MIKE770]

Re: anarchist v Lowell

well done