Help with N244

[R0b]

I've attached a word version of the N244, most of the details completed you will need to finalise Q3 and any other highlighted information in square brackets.

Both your witness statement and defence are not in any particularly good shape to give you the best opportunity of getting this set aside. I'm attaching an example WS that you can use as a starting point I suggest you keep the headings and edit the rest to suit the facts of your case. You will probably need to add in or mention that Lowell were aware of your recent address, but decided to issue the claim at your old address without explanation.

As a sidenote, I suggest you make a subject access request to Lowell for all information they hold about you in relation to these accounts. It should contain any notes/comments, account history and summary of account details if applicable. There's a template on the right hand side of the page at the top if you are using a laptop or computer.

I'll have a look at the defence tomorrow, I think there's enough here for you to be getting on with. In the meantime, post up any new drafts you have when your ready if you want feedback.

[Johndenver]

Thanks rob the attached files are really helpful. I have attached the N244 form and my draft Witness statement for feedback if thats ok.

I need some guidance on how the evidence needs to be set out. I have numbered pages for each piece of evidence but I am unfamiliar with the Exhibit labelling system. I will type out what I intend to provide, if you can advise whether this is enough or it is insufficient and I should remove the corresponding bit of the witness statement. With particular attention to point 5 of the witness statement as its central to whether I am going for CPR 13.2 or the CPR 13.3(a) and (b) reasons!

Witness Statement New.pdf
N244 Word Version.pdf

Page 1 is a screenshot from clearscore showing the CCJ on my file

Page 2 is an email from CCBC with the particulars of claim

Page 3 is the tenancy agreement at my current property.

Page 4 is the emails I sent to Lowell and Overdale requesting they set aside the judgements

Page 5 - Unsure what to include here, I can type up the transcript of the recording of the call and sign it, then take a copy of the call to the hearing. I no longer have the letters that they sent last year prior to the claim. They definitely contacted me regarding a separate British Gas account and wrote to my current address. But their emails are patchy, I received no emails from Lowell at all in 2020, after communicating with them a lot in 2018/19, then the emails started back up in January this year, where I have emails including my current address, but that's obviously after the judgement date. Either way I have a recording of a Lowell agent, when I called them regarding the British Gas account, stating that the address they had on file for me last year was my current address, and that their system had reverted this back to my previous address only on 26/07/21 (for some unknown reason!).

Page 6 Is a screenshot of my credit file with my current address

Pages 7-9 are an email exchange of a complaint I made to Lowell back in 2018 regarding them registering unrecognized defaults on my credit file (for the debts they are claiming for incidentally) the complaint was unresolved and we went back and forth until 2019 when Lowell sent a final response that didnt include any further information as to why I owed the money, no agreements, bills or anything, just a statement from their "information received at point of sale". I am unsure whether to include this, as it means I am aware they are claiming for the debts, but at the same time it was me who initiated contact to dispute that I owed them. My argument here is that they were communicating with me regarding these debts over emails for a period of 6 months, then I have had no further contact until this action. They could have let me know with my up to date contact information that they had started proceedings, I never once didn't reply to their emails!

[R0b]

Looking at your WS, a couple of comments:

1. In paragraph 1, you might want to simply say "Lowell" instead of "Lowell Portfolio" as it rolls off the tongue a bit better but that's just my preference.

2. Also in para. 1, you should expand on the last sentence. Suggest you say something like The claim is in relation to two separate debts under two different contracts purchased by Lowell, which they allege are owed by the Applicant.

3. Para. 3 the exhibit reference is usually your initials + 1, for example AB1. Reason why you do this is if you have to submit additional witness statements you then number your exhibits sequentially e.g. AB1, AB2, AB3 etc.

4. Para 5. under the Grounds for set aside default judgment, I would probably make a couple of tweaks along the lines below.

It is my reasonable belief that Lowell Portfolio did not act in accordance with the Civil Procedure Rules when serving the claim form.

Rule 9.6(3) states that:

"Where a claimant has reason to believe that the address of the defendant ... is an address at which the defendant no longer resides ... the claimant must take reasonable steps to ascertain the address of the defendant's current residence."

Rule 6.9(4) confirms that:

"Where, having taken reasonable steps required by paragraph (3), the clamant -

(a) ascertains the defendant's current address, the claim form must be served at that address"

Prior to the default judgment, I was already in communications with Lowell disputing the BT and Vodafone debts and so they were aware that I was no longer living at my old address. Furthermore, I contacted Lowell on 29/07/2021 and they confirmed that my current address had been amended on 26/07/2021 to my old address. Lowell gave no explanation why they had decided to amend my address but I can only surmise that they did this so that they could obtain a default judgment as opposed to pursuing a contested claim. Nevertheless, by issuing the claim form to my old address despite having knowledge of my current residence, it is clear that Lowell failed to comply with rules 6.9(3) and (4)(a).

5. Under the same heading, you may want to swap paras. 6 and 7 around so that para 5. flows better onto para. 7 though some of the stuff in para.7 may overlap with what I've suggested above, so make sure you don't duplicate yourself.

Re page 5 of your exhibit, it would make sense for you to provide a transcript of the conversation. If you make the audio available you have to comply with those rules around audio/video and you have to send to the court a secure USB drive containing the file. Bit overkill I think for a set aside judgment but you can share the file and transcript with Lowell and mention that in your WS. The alternative, is that you could try to embed the sound file into the word document itself and hopefully when you come to convert, the file will still be accessible.

[Johndenver]

Thanks again R0b I will get this amended. I hope to get the forms sent off either Monday or Tuesday. I've typed up the transcript of the call, I will make the recordings available to Overdales and Lowell too. And will post my latest copy to the forum tomorrow. But I think I am ok with the Witness Statement now. Again I really appreciate your advice. I would have sent something wholly inadequate without the advice of this forum. Its been an absolute god send so far.

I don't suppose we can look at the draft defense next? When you have the time. And review the draft order, I have the template from the N244 section of the site. I will upload a copy when I have filled it in later.

[R0b]

Your defence is not particularly good and liable to be struck out. All you have done is given bare denials (by just saying you deny the allegations) and they are not allowed, because if you deny something, you must explain why it is denied.

As these are two claims, I would recommend you set out sub-headings dealing with the BT claim and then the Vodafone claim.

[Johndenver]

Hi again R0b, apologies if my previous message was a bit vague. I appreciate your advice, this is all new to me so I was unaware even that the bare denials where not enough for the document.

Draft Defence New LB.pdf

I have now included the reasons for my denial. I have attached an updated Draft Defense. I am really crap at putting all this together using, you know, words. but hopefully you can garner what my defense is (else how would a judge!?). Namely it is that the only BT agreement I ever had was previously settled in full, and that the Vodafone agreement was not taken out by me.

Do I need to provide all the evidence for my draft defense in the N244 application or would that be for the subsequent hearing? The reason I ask is that I need to order some bank statements from 2018 to prove that the BT debt was already paid if I do.

Cheers

[R0b]

I'm a little busy today so I may not be able to properly look at it until later this evening or tomorrow.

Evidence does not go in your defence, it goes into your witness statement further down the line. You only need to supply the defence in draft form, it's purpose is there to show you have a reasonable prospect of success.

I will try to look at the defence as soon as I can but can't promise anything.

[Johndenver]

No worries R0b I understand. Thanks for all the help so far. I will wait to hear from you until Wednesday before I send it off.

If not I will post back here when I hear back from the court. I will try and google other peoples defenses in the meantime to see how they are worded.

[Celestine]

Reading your very first post, you could have decent grounds for defence. Have you sent Subject access Requests off to those two original creditors for full details of those accounts. Once sent, you could add a line into your draft defence saying something like, 'The Defendant has sent SARS to the two original creditors for full details of these accounts as the Defendant has no recollection of receiving equipment etc...."

[Johndenver]

Hi Celestine, as yet I have not sent off a SAR. But I will do and I can add it to my defense. My defense at the moment is that I had a BT account and that is was paid in full. The particulars of claim don't even have dates on so for all I know they could be trying to claim for the one I had already paid. During my complaint with them they mentioned this additional debt they claim to be for broadband equipment.

So I could add something like

"The Defendant had settled the BT agreement in full in 2018, the Claimant subsequently contacted the Defendant to allege that further monies were owed for "Broadband Equipment Charges", the Defendant never entered into an agreement with the original creditor for Broadband Equipment and has no recollection of receiving this equipment. The Defendant has sent a Subject Access Request to the original creditor for full details of the information they hold regarding this account". or something like that.

Although I don't know if this will muddy the water a bit instead of the straight assertion that I paid them in full in 2018? What do you think?

I wanted to ask as well, if I am successful in getting the CCJ set aside, then subsequently lose the rescheduled hearing, but pay them within 1 month. Will the CCJ still be removed from the register, or will it be as if it was never set aside? Against all my principles at this point I would happily pay them just to remove the thing but they won't consent at this stage and want me to send the N244.

This is a really stressful situation for me. I struggle to string a sentence together at the best of times, under the pressure of being in court I'm likely going to be a jibbering mess. I think the best thing I can hope for at the moment is a solid application then hopefully they consent after the fact and I can avoid the hearing. Although I am not holding out much hope with how stubborn they are being. I feel like I am just being robbed blind and there is nothing I can do about it. Like a pure gamble of £250 plus whatever their costs will be. I'm not confidant if it does go to a hearing that I can articulate myself. But I have to do it because my job is at stake if they find out. Sorry for the rant.

[Celestine]

I understand John, it is a dreadfully stressful process to go through. You are doing a thorough job of researching your options and putting together arguments, so don't feel down, feel proud.
If you are successful in setting aside the judgment, it will be removed from the register and the original claim becomes live again.
After set aside, you can choose to defend and fight and even if you lost in the final hearing, you could still pay within a month and the CCJ would not appear on your file. Likewise after set aside you can choose to settle and again, no judgment will show on your file.
That extra sentence in your defence sounds good and given the circumstances, sending a SAR to 'get to the bottom of this' would seem legally a wise and sensible move. (As a judge would view it) Sending the SAR wont muddy any waters, it will show you are trying to clear them. X

[Johndenver]

Thanks Celestine I appreciate your comment. I will go ahead tomorrow with my fingers and toes crossed. I have uploaded an amended copy of my draft defense on the off chance that R0b gets a chance to have a look before the last post tomorrow.

Draft Defence New LB.pdf

I have one final question before I get this sent off, on the template for the draft order, point 2 states:

2. The Defendant shall file and serve its Defense by 4pm on [insert date].

How do I know what date I should be saying I should file my defense by if we don't have a date for the set aside hearing yet?

Also, I added a few more things for the judge to do/order on my N244 application.

The first line of the orders box on my N244 form reads, (1) An order (draft attached) that the judgment dated 15/11/20 be set aside pursuant to CPR 13; and.

So that's fine I can use the template for that part but then I have:

(2) An order that the BT PLC and Vodafone Finance UK LTD claims are each to be dealt with 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.3

I assume I don't have to draft an order for this as well? I just leave this with the judge?

[R0b]

Sorry, busy 24 hours.

I'll take a look in the next hour and let you know my thoughts

[R0b]

I've attached a markup of the Defence, particularly around the beginning and BT section. It's quick hash as I don't have time to sit down and go through it all, but you get the drift.

Your Vodafone points look fine generally but if you don;t recall entering into an agreement with them, then just go ahead and say it and if you suspect it was set up fraudulently then say so. If you took out a contract with another provider soon after moving out then you should be able to prove that.

What also strikes me is that they refer to Vodafone Finance UK Ltd. I've never seen that company used for Vodafone contracts as it's normally Vodafone Limited. The fact it refers to Vodafone finance suggests that it could be a consumer credit-related contract, but I don't know. Maybe that should be something as part of your order from the court.

Your numbering should also run sequentially, 1, 2, 3, 4, 5, etc. not two sets of numbering for each claim.

Your wording on Q3 in N244 says "An order (draft attached)" which means you would be attaching a draft order. It's always useful to do that as it helps the judge but you are not obligated to provide.a draft order. If you don't want to attach one as par tof the N244, then remove the "(draft attached)" bit.

Sorry it's not much, but what you've got should hopefully get you over the line.

[Johndenver]

Thanks a lot R0b I know I've said this about 50 times but I really appreciate you giving up your time to look at this for me. Without your advice and this site in general it would have certainly been an exercise in flushing £255 down the toilet. Hopefully with a bit of luck it the judge understands and I can form a sentence in court and may be able to get some kind of resolution to this mess.

I honestly can't tell you how grateful I am for your time.