**DISCONTINUED**Witness Statement not received - Court Date 14/07/17

[jon34]

Re: Witness Statement not received - Court Date 14/07/17

I don'tknow if that is a put down from you.

But I will say this. If the defendant in this claim, should they win at Hearing, should be entitled to a costs award even on the small claims track, if the claimant has shown that they have not followed the correct CPR rules. and I am sure that I have read somwhere on here that is possible and there is a specific cpr rule that covers this.

I am sure that a speculative claim that has no merit should be covered under this.

[Head_Burried]

Re: Witness Statement not received - Court Date 14/07/17

Has this claim at any point been stayed ?.

I only ask because para 18 of the witness statement refers to your defence dated 15th Oct 2016. I know the court system can at times run slowly but it appears that 9 months have elapsed form your defence upto the witness statement. Or am I missing something here ?

- - - Updated - - -

One further question. How close is this to becoming statute barred ?

From my understanding this was 'stayed' for a while. My defence dated 15/10/16 refers to my original defence that I filed online on MCOL. They had 30 days to respond to this which they didn't do so was automatically stayed. Then a few months down the line I received notification it was being transferred to Small Claims.

It is not close to being Statute Barred. According to Noodle the default date is July 2013.

[Diana M]

Re: Witness Statement not received - Court Date 14/07/17

this was 'stayed' for a while. My defence dated 15/10/16 refers to my original defence that I filed online on MCOL. They had 30 days to respond to this which they didn't do so was automatically stayed. Then a few months down the line I received notification it was being transferred to Small Claims.

In which case if the Claimant has produced further documents (late disclosure by way of a WS) since you filed your Defence, you should consider whether it may make sense to file an Amended Defence.

After all they are asking the court to allow them to adjourn the hearing and seek permission to file Amended Particulars of Claim.

I can't say any more on this situation since I have no idea what you pleaded in your Defence or whether you referred to any potential need to amend it and any costs consequences.

I hate the way solicitors take advantage of Litigants in Person not knowing the legal procedure

Di

[Head_Burried]

Re: Witness Statement not received - Court Date 14/07/17

Hi Diana M,

If it is the latter would the judge automatically allow it to be adjourned?

I feel they have had enough time to find any documents they need. When I attend on the 14th will I get chance to highlight the incorrect information in their Witness Statement and Exhibits?

Does anybody know the answer to this please?

[Amethyst]

Re: Witness Statement not received - Court Date 14/07/17

Can you post up your defence pls xx

[Head_Burried]

Re: Witness Statement not received - Court Date 14/07/17

1. I am the Defendant in this case and I the Defendant denies monies are owed to the Claimant as alleged in the Particulars of Claim and does not recognise the assertion that any debt has been Legally Assigned to the Claimant and as such the Claimant is put to the strictest of proof, including but not limited to:
I. Pursuant to s.77-79 of the Consumer Credit Act 1974 (CCA1974) the Original Signed Consumer Credit Agreement, along with a copy of the original Terms & Conditions and any subsequent changes in said Terms & Conditions (referred to as the ‘Regulated Agreement’ within the Particulars of Claim) and show how the Defendant has entered into an agreement.
II. Show how the Claimant has reached the amount claimed by proving a full Statement of the Account referred to, including details of all payments made and calculation of how interest was charged against each item listed, leading to the Alleged Debt of £8942.77
III. Also, as this is an Alleged Debt, I believe Penalty Charges may have been applied to the Account and as such may be unlawful under the Unfair Consumer Contract Terms Regulations 1999. Therefore, I would request details of each and every Penalty Charge applied to the Account along with details of their lawfulness (i.e. if the charge is stated as being for ‘Administration’ what Administration was undertaken to support the Penalty Charge being applied) along with details of any Interest imposed against each Penalty Charge applied.
IV. Show how and when the agreement was breached and provide notice by way of Notice of Sums in Arrears served by the Original Owners along with a copy of the Default Notice from the original owners of the Alleged Debt and Certified Copies of how this was served upon the Defendant.
V. Show how the Claimant has the legal right, either under statute or equity to issue a claim by providing the following:
a) A copy of the Default Notice referred to in the Particulars of Claim and Certified Copies of how this was served upon the Defendant, again as referred to in the Particulars of Claim.
b) As claimant has stated the debt was ‘assigned to the claimant’ a copy of the Legal Assignment, including, but not limited to a copy of the Deed of Assignment and / or Deed of Tripartite Novation.
c) A copy of how the Defendant was served with the aforementioned Legal Assignment.
d) A copy of the Alleged Notice of Assignment sent by the original creditor to the Defendant and details of how this was Served upon the Defendant.
e) Details of the costs paid by the Claimant to the Original Owner for the Alleged Assignment of the Agreement (as referenced in Section 1 of the Particulars of Claim).
VI. As per Civil Procedure rules 16.5(4), it is expected that the Claimant prove the allegation (as set out in the Particulars of Claim) that the money is owed.
VII. Also, should any amount be inclusive of interest, the Defendant denies interest is payable in accordance with Section 69 of County Courts Act 1984 and again the Claimant is put to the Strictest of Proof.
VIII. Also, in my defence, I am not a Solicitor and after having read the Particular of Claim I cannot see any legislation has been quoted in support of the Claimants claim against me, which leaves me unsure under which Statutory Instrument this Claim has been brought. Therefore, again to be able to properly defend this claim I would request full details of the actual legislation the Claimant believes gives them a right to make this claim, as surely no claim can succeed without this being quoted in the Particulars of Claim?

Summary:
1. On 21st September 2016 the Claimant submitted a claim to Northampton County Court stating their particulars of claim.
2. I returned the Acknowledgement of Service on 28th September 2016.
3. On 28th September 2016 I wrote to the Claimants Solicitor requesting further information and verification of the alleged debt and of their alleged assignment, as well as request the original documents upon which the claimant intends to rely are brought to any subsequent hearing for examination by reason of the provisions of CPR 39.a (3.3).
4. On 28th September 2016 I wrote to the Claimant to request a copy of the agreement under section 77-79 of the Consumer Credit Act.
5. To date I have not received any of the requested documents have been forthcoming.
6. On 10th October I received a letter dated 30th September stating a Deed of Assignment would not be sent to me. I have had no other contact with the claimant at any time.
7. The Defendant denies the claim and I have tried to ascertain the validity of the alleged claim. However, the Claimant has failed to answer any of my questions or respond in a reasonable time frame.
I respectfully request the Claimant's claim be Struck Out due to their lack of evidence, or Struck Out with prejudice as the agreement is unenforceable due to a lack of an agreement or production of requested original documents.

Statement of Truth
I believe the facts stated within this Defence to be true comprising of two pages.

This was my original defence back in October 2016.

[Amethyst]

Re: Witness Statement not received - Court Date 14/07/17

Thanks. GOODF originally? Anyway, Di was checking if you have included anything in your defence about the potential need to amend once documents have been received and related costs consequences - but I can't see that there is. The Defence may have some other bits you can be taking forward [MENTION=87380]Diana M[/MENTION];

You can reply to their Witness Statement in a way, by filing and serving a further WS replying to the receipt of documents. Saying that they have had 10 months to provide docs and have only just provided x,y and z and they are incomplete. That your defence asks for a,b,c ( you have asked for a lot of docs in the defence ) and they haven't been provided, and replying to their inaccuracies in the WS and their request to adjourn .... I'd not bother mentioning the deed of tripartate novation again though.

Even if not accepted as a further WS it will be very useful for you to use and refer to at the hearing, and help you get your arguments in order. Normally supplementary WS's are accepted and considered though.

[Head_Burried]

Re: Witness Statement not received - Court Date 14/07/17

Thank you.

Yes a lot of my original advice came from GOODF. I wish I had found this forum earlier though.

I will draft together an amended Witness Statement this morning with the intention of sending it this afternoon or in the morning.

[Diana M]

Re: Witness Statement not received - Court Date 14/07/17

I'm not in a position to give you advice on how to defend your case when the Particulars of Claim are unknown.

The Caimant's WS seeks permission from the court to amend the POC so ask yourself why would they want/need to do that at this late stage? What have they got wrong or not got right? I would think that this issue is crucial to your case.

Other unknowns are whether this was a loan or credit card since I can't read the only page you've posted in relation to the credit agreement. It's blurry but that may be because it's a photo taken by you (?) but the copy exhibited and provided to the court could be in better shape. Is it a recon? Is that all they've produced, just one page but no Ts & Cs?

Is the Default Notice compliant? Have they produced a recon? Did you receive a DN?

What about the Notice of Assignment? Did you receive one?

Have you received annual Notice of Sums in Arrears (s. 86)?

Was there PPI on this account?

Does the sum claimed by Lowells reflect the outstanding balance of the account as you know it or did you have other Lloyds products (overdraft?) which were amalgamated before being assigned?

And so on.

They appear to be seeking an adjournment but they have not asked you to consent to an adjournment in advance.

As it stands there is a hearing which you must attend. The Claimant's legal representative will attend.

I can't really offer any advice on tactics because I'm not in possession of the facts (I have to respect my firm's insurance!) but I can wish you the best of luck with this.

Di

[Head_Burried]

Re: Witness Statement not received - Court Date 14/07/17

Hi Diana,

Thank you again for your continuing support.

The POC includes the agreement number which does not match what is on the agreement. I presume this is what they would like to change?

The POC also mentions the default notice but they have not provided me a copy of this.

To answer some of your other questions:

It was for a credit card.

They have only produced the one page of the agreement of which my name and address is not clear. So much so you can definitely not make out my house number.

They have provided 2 NOA's. They are both dated the same. One is on Lowell's headed paper and the other has not on letter headed paper and is not clear at all who sent it. They have provided it as an exhibit as the Assignor's NOA but I would argue that this is not the case.

I have not received a Notice of Sums in Arrears.

There was not PPI on the account.

I have drafted up my Supplement Witness Statement - is it worthwhile me posting on here or is it not something you could advise me on?

[Head_Burried]

Re: Witness Statement not received - Court Date 14/07/17

UPDATE:

So today I received a letter from the court that read:

Upon reading an application from the Claimant

IT IS ORDERED THAT

1. The Hearing of the 14 July 2017 is vacated.
2. The matter be re-listed to the first available date after 11 August 2017.

On a separate page I have a new court date in September.

It also says:

Any party affected by this order may apply to the court to have it set aside, varied, or stayed. Such application must be made in accordance with CPR Part 23 within 7 days of service of this order by 4.00p.m on the 7th day.

I have a couple of questions if you don't mind answering:

1) Should I take this as good news or bad news that the court has sided with Lowell to adjourn the case.

2) Should I respond and if so how? What is the difference between set aside, varied, or stayed?

[Diana M]

Re: Witness Statement not received - Court Date 14/07/17

So no mention of the Claimant's wish to amend their Particulars of Claim/Statement of Case?

Di

[Head_Burried]

Re: Witness Statement not received - Court Date 14/07/17

No, nothing at all. Just that it has been adjourned.

[pt2537]

Re: Witness Statement not received - Court Date 14/07/17

I'm not in a position to give you advice on how to defend your case when the Particulars of Claim are unknown.

The Caimant's WS seeks permission from the court to amend the POC so ask yourself why would they want/need to do that at this late stage? What have they got wrong or not got right? I would think that this issue is crucial to your case.

Other unknowns are whether this was a loan or credit card since I can't read the only page you've posted in relation to the credit agreement. It's blurry but that may be because it's a photo taken by you (?) but the copy exhibited and provided to the court could be in better shape. Is it a recon? Is that all they've produced, just one page but no Ts & Cs?

Is the Default Notice compliant? Have they produced a recon? Did you receive a DN?

What about the Notice of Assignment? Did you receive one?

Have you received annual Notice of Sums in Arrears (s. 86)?

Was there PPI on this account?

Does the sum claimed by Lowells reflect the outstanding balance of the account as you know it or did you have other Lloyds products (overdraft?) which were amalgamated before being assigned?

And so on.

They appear to be seeking an adjournment but they have not asked you to consent to an adjournment in advance.

As it stands there is a hearing which you must attend. The Claimant's legal representative will attend.

I can't really offer any advice on tactics because I'm not in possession of the facts (I have to respect my firm's insurance!) but I can wish you the best of luck with this.

Di

May i ask, has the Claimant invited you to consent to the amended pleadings? They really ought to have, indeed the Law Society guidance for practitioners seems to suggest they ought to treat you fairly and launching an application to amend without inviting consent first seems unreasonable indeed theres case law which suggests the oppo may well face costs sanctions if they are unreasonable in their conduct.

The cost sanctions may well apply in the small claims track too per CPR 27.14(2)(g)

Can you please let us know on the question of whether they asked for you to agree the amendments?

On the question of an adjourment, there is case law on this point when a party asks for a late adjournment, that is Fitzroy robinson v mentmore towers, a helpful case indeed on opposing an application to adjourn

[Diana M]

Re: Witness Statement not received - Court Date 14/07/17

No, nothing at all. Just that it has been adjourned.

Because if they want to amend their POC they should have made an Application to the court not just added a short paragraph at the end of their Witness Statement

From what you have said the account number on the POC is different from the account number on the documents which they have produced and rely on to prove their case.

They may have a problem.

I previously flagged this up when I asked you this question earlier >

The Caimant's WS seeks permission from the court to amend the POC so ask yourself why would they want/need to do that at this late stage? What have they got wrong or not got right? I would think that this issue is crucial to your case.

. . . . . They appear to be seeking an adjournment but they have not asked you to consent to an adjournment in advance.

Di