OK here is my (edited) witness statement. Bit long but would appreciate any comments:
In the above matter and the defendants application dated [date] to set aside the default judgement for the claimant dated [date].
The claimant herein now submits their witness statement and evidence [document bundle attached] in opposition to the application for a set aside.
Witness Statement
I am mindful of the Overriding Objectives of the Civil Procedure Rules, and in particular the duty of the parties to help the court further them. The issues outlined below are the issues upon which this dispute rests and in identifying these issues will allow them to be assessed in advance of the hearing so that the matter may proceed justly and expeditiously.
1. The claimant’s claim was correctly stated, in that:
(a) The defendant has no valid credit agreement with the claimant
(b) The defendant has charged interest on the account with no mandate to do so.
(c) The defendant has recorded damaging information to the claimants credit file with no authority to do so.
2. Judgement was correctly entered by the court for the claimant in that the defendant failed within the specified time to either acknowledge the claim or enter a defence of the claim.
3. The defendant contends in his application that he has a real prospect of successfully defending the claim.
4. CPR 13(1) provides the court can decide a set aside as follows:
‘In any other case, the court may set aside or vary a judgment entered under Part 12 if
(a) the defendant has a real prospect of successfully defending the claim; or
(b) it appears to the court that there is some other good reason why –
(i) the judgment should be set aside or varied; or
(ii) the defendant should be allowed to defend the claim.
5. The claimant proposes that the defendant has no real prospect of successfully defending the claim in that it is admitted it has no valid credit agreement for the account under the Consumer Credit Act 1974 by which it is common ground such accounts are regulated and run. The claimant can show two letters from the defendant where it is admitted, “we are unable to locate a copy of your original signed Credit Agreement” and “I confirm that we do not hold copy of the original signed credit agreement” - [documents 1 & 2]. However it is the express contention of the claimant - without prejudice to the notion that there is no agreement - that any such agreement as does exist does not comply with the Act.
6. The original claim, and subsequent judgement entered against the defendant, was for “repayment of interest charged to the balance of the account without authority”. The defendant argues the claimant was advised of the prevailing interest rates via catalogues, mailings and statements and was thus in agreement to paying those interest rates.
7. The claimant contends the defendant cannot produce to the court any document that complies with the requirements of the Act and was signed by the claimant whereby interest (if any) on any balance of the account is or ever has been determined, varied or chargeable to the account. Whilst it is clear there has been a financial relationship between the claimant and defendant, it is also clear, that without the aforementioned valid credit agreement, it follows that there is no contractual basis in law underlying this relationship and it is thus impossible to determine any terms and conditions of the relationship for interest rates (if any) and how they may be determined and varied.
8. Various case law can show that where a regulated agreement is improperly executed the lender loses his lien on the goods supplied and is deemed to have chosen to part with them in circumstances in which it was never entitled to have them paid for.
9. No cause of action exists in law purely on the basis of ‘requests for payment’, (which may include any interest payments), whether repeated or not. It is thus argued that any interest charged to the account was incorrectly determined and levied and without explicit agreement and should be repayable to the claimant.
10. In relation to the applicant’s delay in replying to court procedures. The court documents pertaining to both the claim and judgement were correctly served to the defendant’s address where previous correspondence between the parties has been repeatedly replied to.
11. The claimant directs the court to the provisions of CPR 13.3(2), which states:
‘In considering whether to set aside or vary a judgment entered under Part 12, the matters to which the court must have regard include whether the person seeking to set aside the judgment made an application to do so promptly.’
12. It is no defence that a dedicated legal department of a large commercial organisation should omit to respond to court documents due to ‘administrative errors’. An error that appears to have been then repeated in response to the judgement, in that the defendant waited in excess of another 6 weeks to apply for the set-aside.
13. I therefore plead with the court that the defendant has no real prospect of successfully defending the claim, that there is no good reason to allow the application, there is no sound basis for a defence of the claim and that the application for a set aside should fail.
Statement of Truth
The claimant believes this witness statement to be the truth to the best of their knowledge, information and belief:
Signed:
Litigation friend for and on behalf of [claimant name]
Other business
Notwithstanding the above, the defendant then continues in his application to address two other elements of the original claim not yet adjudged.
In the original claim, due to inexperience of the claimant regarding court protocols and procedures being a litigant in person, the claim was made out incorrectly such that the court did not consider other elements of the claim aside from the interest repayment and the claimant apologises for this error. If the court would allow and pursuant to CPR 3.10:
Where there has been an error of procedure such as a failure to comply with a rule or practice direction –
(a) the error does not invalidate any step taken in the proceedings unless the court so orders; and
(b) the court may make an order to remedy the error.
I plead that the court would now consider these two further points.
The claimant has asked for a declaration that the credit agreement allegedly pertaining to this account is unenforceable.
1. The basis for this declaration is under the Consumer Credit Act 1974, the legislation it is commonly agreed is the legislation under which this account is run.
2. The document supplied by the defendant following the claimants request for any true copy of the agreement pertaining to this account (pursuant to s.78(1) of the Act) is produced as evidence at [document 3], together with the defendants letter [document 4] stating “We enclose a signed copy of your Credit Agreements with Shop Direct Group Financial services trading as Littlewoods Direct”.
3. s.172(1) of the Act states: A statement by a creditor or owner is binding on him if given under - Section 78(1) thus it must be taken that the defendant has provided in this document a signed copy of the Credit Agreement that pertains to this account.
4. The document provided by the defendant as the credit agreement for this account clearly does not comply to the requirements of s.60(1) & (2) as defined in Schedules 1 and 6 of the Consumer Credit (Agreements) Regulations 1983 in that none of the prescribed terms (schedule 6) nor required terms (schedule 1) are present and it is therefore improperly executed pursuant to s.61(1).
5. Whilst it is accepted that the creditor (the defendant) is not seeking enforcement of this agreement, it is clear such a request would fail pursuant to section 127(3) of the Act. The claimant, as an interested party, therefore seeks a declaration under s.142(1)(b) that the agreement is not enforceable (pursuant to s.127(3)) and thereafter no application for an enforcement order in respect of it shall be entertained.
6. The defendant has argued in his application that s.142 cannot apply where a creditor has not complied with s.78(1) (supplied a copy of an agreement) and quotes Rankine v Amex & others (HHJ Brown, Birmingham High Court, 16/05/08).
7. The defendants argument fails since: the creditor did in fact supply a document it states is a credit agreement for the account [document 4] and thus satisfied s.78(1) and it follows that the judgement quoted does not constitute a precedent for this argument.
8. The claimant pleads therefore that the claim succeed and the agreement be declared unenforceable.
The second element of the original claim asked to be adjudged concerns the recording of damaging data on the claimants files with credit reference agencies.
The claimant has asked for the removal of damaging data from the claimants credit file.
1. The defendant issued to the claimant the default notice shown in [document 5].
2. The notice refers explicitly to “the above agreement you entered into” and “The Payment Clause of the agreement”. The notice also refers to the Consumer Act 1974 (sic).
3. It is common ground there is no agreement, or the agreement is not valid and specifically there is no payment clause contained in any agreement known to the claimant. Additionally there is no known legislation “Consumer Act 1974”. It follows in consequence that the default notice is not valid.
4. In defence of this element of the claim the defendant has argued that the processing complied with Schedules 1 & 2 of the Data Protection Act.
5. Schedule 1 asks that all the conditions in Part 1 of the schedule be met. These include:
1(a): at least one of the conditions in Schedule 2 is met,
4: Personal data shall be accurate and, where necessary, kept up to date.
6. In response to para 1(a) above; Schedule 2 asks that at least one of the conditions is met. Those conditions are:
1 The data subject has given his consent to the processing.
2 The processing is necessary—
(a) for the performance of a contract to which the data subject is a party, or
(b) for the taking of steps at the request of the data subject with a view to entering into a contract.
3 The processing is necessary for compliance with any legal obligation to which the data controller is subject, other than an obligation imposed by contract.
4 The processing is necessary in order to protect the vital interests of the data subject.
5 The processing is necessary—
(c) for the administration of justice,
(d) for the exercise of any functions conferred on any person by or under any enactment,
(e) for the exercise of any functions of the Crown, a Minister of the Crown or a government department, or
(f) for the exercise of any other functions of a public nature exercised in the public interest by any person.
6 (1) The processing is necessary for the purposes of legitimate interests pursued by the data controller or by the third party or parties to whom the data are disclosed, except where the processing is unwarranted in any particular case by reason of prejudice to the rights and freedoms or legitimate interests of the data subject.
7. The claimant argues with regard to these paragraphs of schedule 2 as follows:
1 The claimant has not given consent, there being no document containing a signature to this effect. Simply transacting with a supplier does not automatically confer a right to process subject data to third parties.
2 The claimant is not party to a contract nor has a view to entering one.
3 There is no legal obligation on the defendant to process data.
4 The processing is not necessary to protect the claimants vital interests.
5 There are no functions to which this paragraph applies.
6 The processing is unwarranted and prejudicial, in that with no contractual agreement to terms of payment there is no liability to make any payments or at any specified time and thus the processing of late payment markers or a default is unwarranted. The markers and defaults will prejudice the rights and freedoms of the claimant, i.e. the claimants ability to obtain future credit.
8. In response to para 4 of Part 1 Schedule 1 (above): Personal data shall be accurate…..
9. The claimant contends that where there is no contractual liability or obligation to repay amounts or when to repay those amounts, then it follows failure to pay or to pay in a particular timeframe cannot be recorded on a file as an accurate record of the account. There is no basis in law that confers a duty to pay amounts based on simple ‘requests for payment’, whether repeated or not.
10. The claimant thus asserts that the defendant has failed to demonstrate complicity with the Act on all material counts.
11. The defendant further argues that the claimant was advised of a ‘fair processing’ policy by way of catalogues and when opening the account.
12. The defendants ‘fair processing’ policy is contained in their own website under the section entitled “Safety of Your Details” which I have copied and is reproduced as document [document 6].
13. The document talks variously about using the subjects data within the defendants own Group of Companies for administering the subjects account (a policy with which the claimant has no argument or interest) and also to third parties for ‘debtor tracing and debt recovery purposes’, neither of which are relevant here. But under the heading ‘Credit Applications’ it says:
If SDFC enters into a credit agreement with you they will also add details of your agreement as well as ongoing details of your account and how you manage it to credit reference agency records…….etc.
14. This is the only policy document the claimant is aware of which talks of data processing to credit reference agencies. It is established the claimant never has entered into a credit agreement with the defendant and it is therefore also established the defendant has no mandate, by virtue of its own policy, to process data with credit reference agencies.
15. The claimant pleads therefore that the claim succeed and that all inaccurate and damaging subject data be ordered to be removed from the claimants credit files held by credit reference agencies with immediate effect pursuant to paragraph 14 Part II of the Data Protection Act 1998.
Statement of Truth
The claimant believes this witness statement to be the truth to the best of their knowledge, information and belief:
Signed:
Litigation friend for and on behalf of [claimant name]
Document Bundle
List of documents
Document 1. Letter 1 from SDFC to claimant dated 15 April 2009
Document 2. Letter 2 from SDFC to claimant dated 18 May 2009
Document 3. Copy of agreement
Document 4. Letter from SDFC with agreement
Document 5. Default Notice
Document 6. Copy of Fair Processing policy from SDFC website