DISCONTINUED Lowell Court Strike out application

**lebaronboogy** · 10th February 2017, 20:07:PM

Re: Lowell Court Strike out application

Please, any advice? Much appreciated

**lebaronboogy** · 12th February 2017, 14:03:PM

Re: Lowell Court Strike out application

Hi,

Have I posted in the wrong place? I really need some help if possible, many thanks

**lebaronboogy** · 16th February 2017, 11:17:AM

Re: Lowell Court Strike out application

Please help me...I really need it...

**R0b** · 16th February 2017, 11:25:AM

Re: Lowell Court Strike out application

Hello, it sounds as if you have got yourself into a bit of a mess with all f this. A few things to understand:

1. Assuming the debt is under £10k, CPR 18 won't be applicable
2. You cannot make an Unless Order yourself, only a court can order this. Are you saying the court made an Unless Order and if so, are you able to provide a copy of the order?
3. You can't strike out their claim because your defence is wrong, you have to make an application to amend your defence.

Strike outs can only happen if there are certain grounds: Abuse of process, no reasonable grounds for bringing a claim, obstructing the disposal of proceedings or a failure to comply with a court order or practice direction or rule.

What are your reasons for striking out the claim and did you provide any witness statement in support of this? It would be useful to see your application that you have made.

Based on what you have uploaded, there does appear to be reasonable grounds for bringing the claim. Are you able to post up the original particulars of claim by Lowell?

**lebaronboogy** · 16th February 2017, 11:33:AM

Re: Lowell Court Strike out application

Yes, the Court approved my Strike Out application, I will upload copies here, they have dated my Unless Order on 19th of Jan, I had the response above from Lowell to my court unless order, I am currently waiting for the Court to set a hearing date for the Strike Out application , they notified me in writing about this, many thanks for the response Rob.

**lebaronboogy** · 16th February 2017, 12:07:PM

Re: Lowell Court Strike out application

This is first page of my N244 form and the Witness Statement attached, I am counting on Lowell not showing up at Court or is their evidence enough? As I said after I sent this form and the Witness Statement, the Court is going to set a hearing date, many thanks

Attached Files

**lebaronboogy** · 16th February 2017, 12:24:PM

Re: Lowell Court Strike out application

The court Unless Order is like this (I used this sample) :

Before District Judge Sitting at the [name and address of court ............. day of .............. year

The Claimant remains in breach of the Civil Procedure Rules Pre Action Protocol Practice Direction and CPR Rule CPR 18

Unless:

1: The Claimant, by 4pm on .................................... Date (7 days from the date of this order) provide the Defendant copies of the following documents mentioned in the Claim Form pursuant to CPR Rule CPR18.

a) The Credit Agreement.
b) The Default Notice.
c) The Termination Notice.
d) The Notice of Assignment.
e) The Deed of Assignment.

2: If the Claimant fails to comply with paragraph 1 the Defendant shall apply to have the Claimant’s claim Struck Out using Form N244.

4: The Claimant do pay the Defendant’s costs in this application to be assessed if not agreed.

**R0b** · 16th February 2017, 14:14:PM

Re: Lowell Court Strike out application

I can't seem to open the Order you have provided but even still, if its an unless order then it should be used with a strike out application, you would normally attach it with an application for disclosure and as said previously, CPR 18 doesn't apply to claims below £10k. Is the claim under this amount?

**lebaronboogy** · 16th February 2017, 14:41:PM

Re: Lowell Court Strike out application

Yes, it is under 10k, it is just under £500 more exactly

**lebaronboogy** · 16th February 2017, 15:16:PM

Re: Lowell Court Strike out application

Hi,

I've uploaded Lowell's particulars of claim, I was paying monthly direct debit for the contract, I'am not sure if it makes any difference, many thanks

Attached Files

3.jpg (71.4 KB, 1 view)

**lebaronboogy** · 22nd February 2017, 02:50:AM

Re: Lowell Court Strike out application

Hi,

The Court set the hearing date for the strike out application on 7th of April, do I have any chance to win if Lowell doesn't show up? Many Thanks

Attached Files

1.jpg (82.2 KB, 1 view)

**lebaronboogy** · 26th February 2017, 14:42:PM

Re: Lowell Court Strike out application

R0b any thoughts on my next step? I'm running out of time...what can I send to the Court to stand a minimum chance of winning? Many thanks

**R0b** · 26th February 2017, 15:25:PM

Re: Lowell Court Strike out application

Sorry I have missed this, what are you running out of time on? The hearing is 7 April so you have a couple of months to go yet?

I've already identified the reasons for grounds of striking out and I wouldn't be certain that the claim would definitely be struck out. You could argue that the claim discloses no reasonable grounds because it fails to identify a number of things such as:

- The date of the agreement entered into
- the default notice in the Particulars of Claim assumes it is a regulated agreement under the CCA 1974
- there is no reference to the date of the default notice, the date it was served and who served it
- the notice of assignment does not state who served it and on what date it was served

Due to the above, the claim is incoherent and/or the particulars are insufficient to disclose any recognisable claim against you. You have requested a number of times for the relevant documents to no avail which means you are prejudiced in defending the claim.

Alternatively, there is the argument that the claim is an abuse of process in that Lowell issued the claim and were not in a position to properly particularise the claim. The fact that they have failed to respond to your reasonable requests for information, shows an inference that they are not in possession of the documents referred to in the Particulars of Claim. Nomura International Plc v Granada Group 2007 is a case you could potentially rely upon (http://www.bailii.org/ew/cases/EWHC/Comm/2007/642.html) paragraphs 38 & 41:

Paragraph 37:
"In my judgment, when regard is had to these authorities the key question must always be whether or not, at the time of issuing a Writ, the claimant was in a position properly to identify the essence of the tort or breach of contract complained of and if given appropriate time to marshall what it knew, to formulate Particulars of Claim. If the claimant was not in a position to do so, then the claimant could have no present intention of prosecuting proceedings, since it had no known basis for doing so ... If a claimant cannot do that which is necessary to prosecute the claim by setting out the basis of it, even in a rudimentary way, a claimant has no business to issue a Claim Form at all in the hope that something may turn up"

Paragraph 40:
"If Nomura was not in a position to do this, it was not in a position properly to issue a claim, since it could not have proceeded properly to plead Particulars of Claim without the off chance occurring that something would turn up. In such circumstances it could have no present intention to pursue a claim since it had no sufficient idea of the claim it wished to pursue."

I think the abuse of process argument could be a bit wishy washy because they have identified the agreement and the alleged breach, but arguably they don't have the documents in their possession (again by reference to their refusal of providing you with documents you ask for). If they had the documents in their possession why haven't they turned them over to you already? On balance, it is more likely than not that they don't have anything in possession and at a later stage are perhaps hoping that something "may turn up" in order to support their claim, which, according to the Judge, is an abuse of process.

Lowell may argue that the claim is not regulated by the CCA but you simply state that they have put in the Particulars that a default notice was sent, which is only used for regulated agreements under the CCA. They may say that mobile phone contracts are not regulated, but that is not strictly true. O2 have previously offered regulated agreements and so have vodaphone (https://www.vodafone.co.uk/terms-and...-1-april-2015/)

So it is entirely possible that it could be regulated, and since Lowell have asserted that in their POC as a fact, it must be deemed true and they cannot simply backtrack - Again, this would show an abuse of process as per Nomura above.

Then there is the question of costs, you could be liable for costs if Lowell turn up and you lose. It is the court's discretion as to awarding costs so it's not definite and you could argue that no costs should be awarded because of their conduct in refusing to comply with your reasonable requests for information. Equally, if you win you could ask for your costs of the application.

Finally, strike out applications is classed as an interim hearing so they court will not treat the hearing as a full trial and listen to all arguments. You have to be succinct and get the main important points across and show that there is no reasonable grounds / abuse of process and by allowing the claim to continue would incur further costs to you, particularly that Lowell have a habit of discontinuing many cases at the last minute.

Will Lowell turn up? I don't know, perhaps they will or they won't. Have they responded to you on your application of their intention to attend? You could ask the judge if he is not going to strike out the claim, then at the very least an unless order should be made for the release of documents referred to in the particulars within 14 days or the claim shall stand as struck out.

Overall, whether you want to continue with the hearing is up to you, but there is always a risk that the court may be reluctant to strike out the claim.

**lebaronboogy** · 26th February 2017, 15:33:PM

Re: Lowell Court Strike out application

Thank you very much Rob! You're the best! It doesn't matter the outcome, I am really keen in winning this, at least you've given me a lot of information to put together, I will
start writing the letters today and send it to the Court and Lowells as soon as possible, all the best, keep up the great work!

DISCONTINUED Lowell Court Strike out application