Help with N244

[Johndenver]

Edit: I have now used the Legal Beagles templates for filling the N244 in.

I would be grateful if anyone experienced in these matters could review my draft defense and witness statement before I post them tomorrow with the completed form.

I have attached the draft defense and witness statement to the bottom of this thread.

Thanks.
Back Story

I received a back door CCJ from Lowell to an old address in November 2020. Lowell were aware that I was disputing this debt and we had been communicating by email since I complained to them regarding this in 2019. I then heard nothing until the CCJ. Lowell has my current address on file as they are emailing me regarding a separate debt with my current address. The crux of the original claim is I paid them for a BT account back in 2018 and then they pulled out of their behinds another BT account for "Broadband Equipment Charges", I never had any equipment from BT, I had no account for equipment from BT, they failed to provide me with any bills from BT for "Broadband Equipment Charges".

They are also claiming for a Vodafone account, which they have not provided me adequate information for. Both these claims are under the same CCJ but I am defending mainly on the BT one, although I had a complaint with Lowell that went nowhere for both of them.

[R0b]

Hello

Are you saying that Lowell issued a single claim for both the BT and Vodafone contract and then obtained a single CCJ?

[Johndenver]

Hi Rob,

Yes its one CCJ for 2 separate accounts with different companies.

I have now read the sidebar link on N244 so am a bit more clued up as to how to fill the form in.

Now I have the reference number for the claim I have seen an email from Overdales Solicitors. I send them an email today regarding a set aside by consent to just try and get this nipped in the bud. Had no response by 4.30pm so called them. They said they can't agree to a consent order over the phone but will put the account on hold for 14 days.

I asked if they were withholding consent, he said no I would need to seek legal advice before it is considered from them.

[R0b]

I have to say that's a bit strange. It's common for claims to be consolidated if they are of similar issues under the same contract but I've never seen a claim where the contracts are entirely different and also related to different products or services. The issue for you (and possibly the court) is that how do you separate a single CCJ for two entirely different contracts? If you are only challenging the BT contract but not the Vodafone, does the CCJ still sit on your record even if you're successful on the BT one?

You should be able to set aside the CCJ altogether if as you say, that Lowell had knowledge of your current address prior to them issuing a claim and obtaining a default judgment. That would be a mandatory set aside and the court has no discretion. I would also be asking the court to strike out either BT or Vodafone claims (you pick) on the basis that the claims are not related in any way, they are two separate contracts for different products and services which would entail two different sets of evidence. The court would tend to consolidate claims where they are of similar issues, but aside from them both being debt claims, it would mean the court would effectively be running two hearings rolled up into one and that can be dangerous.

If you want any feedback before you submit, post up the docs and we can comment.

[Johndenver]

Hi again rob ,

Is this actually against any sort of procedures though? I'm not sure how I would go about asking the judge to strike off one of the accounts. At the N244 hearing or at when submitting my actual defense at a further hearing? Although if this somehow invalidates the CCJ on a procedural issue I would want to pursue that.

Also, the solicitor on behalf of Lowell is withholding consent and refusing to give an explanation as to why they are withholding, to be honest the people on the phone seemed like they didn't know what a consent order was. They just kept putting me on hold for 5 minutes at a time then coming back and saying we are not able to give any sort of consent. When I asked for their reason they just kept repeating that they can't give legal advice. They also won't confirm that they have approached Lowell to obtain consent. They just keep repeating that everything has been noted.

Unsure whether to try speaking to Lowell directly to obtain consent (I've sent them an email but they've not responded, although it was only yesterday), with them being the claimant, or to just press ahead with the N244 including that the claimants representatives withheld consent

I'm confident in my actual defense of the case, its just the set aside that I'm wary about. The earliest emails I have from them with my current address on are from January 2021, I have had letters before that, although I no longer physically have them . Although nothing changed with regards my address between November 20 and January 21 the latter is obviously after the former.

I updated the rest of my creditors to my new address. I didn't specifically update Lowell, I dispute that I owe them money. My credit record at the time of the judgement would have shown my current address. I moved in March 2020. The address that the original debt was alleged to be from was from 2 addresses ago. I'm not sure how to word this in my N244 form. I am confident they had my current address on file but I don't know if I have documentary evidence to prove it apart from the January emails. What is the bar for evidence in a situation like this?

I don't know if I'm better going down the route of this is the first I've heard of it and here's my defense. Also, with regards to evidence of my defense going forward, do I need to provide evidence of my case at the set aside hearing or just set out what my case will be?

Edit to add: I called Lowell today regarding the separate account and they confirmed that they were sending letters and emails to the correct address. This has since reverted to the previous address in July this year. I have recorded this call. I can type up a transcript of the call to submit as evidence that they had the correct address. Can I include this evidence in my Witness Statement.

[Johndenver]

Lowell also refused consent

[Johndenver]

Edit: See attachments for witness statement and draft defense.

[Johndenver]

Edit: See attachments for witness statement and draft defense.

[Johndenver]

Edit: See attachments for witness statement and draft defense

[Celestine]

Merged posts/threads - please keep to one thread otherwise it causes confusion to helpers. Thanks

[R0b]

I will try and take a look later today, but those Particulars of Claim are poor.

I strongly suggest you call the CCBC and ask for a copy of the claim form. The document forms part of the court file so if they're suggesting they don't hold it or no longer hold a copy then you need to be asking questions as to why don't they and who does. The claim form is issued by the CCBC and you have a right under the CPR to request documents on the court file such as the claim form, so if they are suggesting they don't have a copy or it is no longer on the file then that is a serious procedural issue and I would suggest you ask to speak to the court manager for an explanation, politely of course.

Really, you need that as part of your evidence in setting aside the default judgment if you are going to argue that the address on the form was wrong and/or the particulars are poor or should be struck out or whether separate hearings should be made for each claim.

[Johndenver]

Hi rob and anyone else knowledgeable on these matters.

I have spoken to the court regarding a copy of the claim form. I spoke to two different advisors who advised it is the policy of the court that they do not keep a copy of the claim form itself, only the details that are kept on the claim form. Those being:

The particulars of claim:

1)THE CLAIM COMPRISES THE FOLLOWING AGREEMENTS THE DEFENDANT ENTERED INTO: A. BT PLC WITH REFERENCE 0215703760 AND CURRENT BALANCE OF £299.51 B. VODAFONE FINANCE UK LIMITED WITH REFERENCE 7022521145 AND CURRENT BALANCE OF £135.92 THE AGREEMENTS WERE TERMINATED AS PAYMENTS WERE NOT MAINTAINED AND SUBSEQUENTLY ASSIGNED TO THE CLAIMANT. AND THE CLAIMANT CLAIMS: A) THE TOTAL OF THE SAID SUMS BEING £435.43 B) INTEREST PURSUANT TO S69 COUNTY COURTS ACT1984 AT THE RATE OF 8% PER ANNUM FROM THE DATE OF ASSIGNMENT TO THE DATE OF ISSUE, BUT LIMITED TO ONE YEAR, BEING £34.83 C) COSTS


The claimants name: Lowell Portfolio
The claimants solicitor: Overdales
Date of issue: 29/09/2020
Date of service: 03/10/2020
Date of judgement: 05/11/2020

The only documents that they hold on file relating to the case is a copy of the judgement. Which I have requested at a cost of £10. I am just waiting for this to be emailed to me.

Would really appreciate some advise on the attached documents to check they are all ok to send off. Rather than all the stuff above. There is the witness statement and the draft defense, I am just in the process of drafting the draft order.

I could really do with some advice on paragraph 5 and 6 of the witness statement.

The evidence I have for paragraph 5 is a recorded phone call with a Lowell agent confirming that they had my current address on file last year but that it had recently reverted back to my previous address on 26/07/2021.

This is same day I found out about the claim and spoke to Overdales regarding it informing them it had gone to the wrong address.

How can I include this information as an attachment. I assume I am sending in evidence at the same time as the forms? So for Exhibit C I intend to include a transcript of a recorded call or just state that I have one and can play it to the judge?

For Paragraph 6 is this ok?

If there was any uncertainty over the address and we have had two way communication over email for the past 3 and a half years, much of it regarding the disputed accounts then fair warning of legal action and due diligence would have involved them informing me that they were commencing legal action on our primary means of communication.

I wasn't hiding or ignoring Lowell regarding this debt. It was in dispute, and I have emails from 2018 and early 2019 where I make this clear and went through their complaints process. Lowell then stopped contacting me for over a year, and the first I heard about it was a CCJ on my credit file.

[Johndenver]

Has my last post posted?

[R0b]

Right, I'm going to post in chunks so it is not such a massive post, but for starters you need to sort out the N244 application.

Q3. Example wording below, but note that it simply is an example and you can add or delete however much you want. It's your application, so you decide how far you want to go.

(1) An order (draft attached) that the judgment dated [insert date] be set aside because pursuant to CPR 13: and

(i) The claim should be set aside as right on the basis that service of the claim form was irregular (CPR 13.2);

(ii) The defendant has a real prospect of successfully defending the claim for the reasons set out in the draft defence annexed to this application (CPR 13.2(a)); or alternatively

(iii) There is some other good reason why the judgment should be set aside (CPR 13.2(b)).

(2) An order that the BT Plc and Vodafone claims are each to be dealt under separate proceedings. Alternatively, an order that the Claimant provide detailed Particulars for each of the claims including at least the following information in the form of an Unless Order:

(i) The date and/or version of the terms and conditions the Claimant relies upon for each claim
(ii) How the Defendant has breached said terms and conditions including: (x) the clause(s) the Defendant is alleged to have breached and (y) the clause(s) the Claimant relies upon allowing termination of the contract; and
(iii) an explanation of how the damages sought have been calculated.

Q4. Yes
Q5. At a hearing
Q6. 30 minutes / No
Q8. District Judge
Q9. Claimant
Q10. Attached Witness Statement

[Johndenver]

Hi rob, firstly I really appreciate you taking the time to come back to this thread and give me advice.

Apologies if this is a stupid question but I take I am able to continue on a separate sheet for Question 3? the box is quite small to fit much in. I intend to include pretty much everything.

The N244 that I had filled in just had "An order that the Judgement in Default be Set Aside pursuant to CPR 13.3 and the Defendant be allowed to file a Defense in the case. The Defendant only discovered the Judgement when reviewing their credit file and has acted promptly in making this application."