Lowell claimform - old O2mobile debt***Claim Discontinued***

[AndyOrch]

You have submitted a statute barred defence....when you get into this case management hearing...the claimant states its not statute barred we have enough evidence to prove its not...what are you going to say ?

[Jase1982]

Something along the lines of I now believe the bill relates to early termination charges which have been deemed unfair by the OFT due to the fact they fail to take into account that the claimant would no longer have to pay for the service, and the defendant is no longer benefiting from that service.

 

The question I was raising was that if they have ordered a preliminary hearing to ascertain whether or not the defendant had no case (which you found unusual?) - Why would they think it had any chance of failure? Or am I fixating on that point too much? Isn't it normal to go straight to trial and for both sides to put their case forward?

[AndyOrch]

Yes its very unusual and not something I have ever seen on a General Order before.....its akin to guilty without trial and without hearing any evidence or reading any statements.

 

The only time I have come across this is when a claimant makes application for strike out or Summary Judgment and informs the court that your defence has no merit and a trial should be dispensed with.

 

Thats why its vital you prepare a statement with your arguments and referring legislation to back up you points above....and to explain that your initial defence was submitted in error and that you should be allowed to present your defence on evidence acquired since.

 

Have I given you the relevant legislation you will rely on ?

[AndyOrch]

Its actually clarified and stated in the Unfair Terms in Contracts for Communications and The Consumer Rights Act 2015

 

https://www.ofcom.org.uk/__data/assets/pdf_file/0012/40620/guidance.pdf

 

https://www.gov.uk/guidance/unfair-terms-explained-for-businesses-full-guide

 

Andy

 

I have.....

[Jase1982]

If the claimant did make an application to have the claim struck out, wouldn't I have had a copy? Or been sent something further.

 

The first link from the above appears to be a dead link?

 

I have been reading from this one - https://www.ofcom.org.uk/__data/assets/pdf_file/0012/40620/guidance.pdf Is this relevant?

 

Also, I'm assuming I would need to cite some case studies where this defence has been used in order to sure up the defence? Can you point me in the right direction for that, or am I best just trawling through the success part of the forum.

 

Lastly, is there no court form, or application that I can use to get the defence amended or to submit additional information?

[Jase1982]

The other question I have is that as part of the CPR request we requested Terms and conditions etc. Lowells have turned round and said she would have received a copy when she signed up to the contract, and they have pointed me towards O2's website for general terms and conditions. Is that acceptable that the claim should be raised without a signed agreement, and no presentable terms and conditions?

 

I'm still a little hazy over the difference between credit debts and mobile debts, and what a court would find acceptable.

[AndyOrch]

I dont think they have made any application...thats why the order is so unusual and presumptuous for a court to state.

 

The broken link is the following....

 

Also read....

 

Case law is irrelavant to a certain degree in lower courts...to amend a defence you would normally submit an n244 with fee requesting permission to amend your defence and with the claimants consent..you would also be liable for the cliamants costs in dealing with the amended defence.....I wouldnt bother this late into the process...try to explain the reasoning in your statement and hope the court accepts.

 

Mobile phones are a service agreement and not covered by the CCA1974 and therefore very little for the claimant to actually disclose.However some judges have requested further documents in claims and not gone with this accepted reliance.

 

Andy

oft311 (1).pdf

consumer-contracts-information-cancellation-and-additional-payments-regulations-guidance.pdf

Edited November 27, 2018 by dx100uk
links

[Jase1982]

I can't seem to read the replacement link you posted?

 

Stupid question as I assume the answer is yes, but is the other PDF still current as it's dated 2013?

 

This is more of a rhetorical point, but I just don't get why they don't have to provide a signed agreement etc. How can this be based on what basically amounts to their word.

 

I'll spend the next month or so drafting a statement and I'll post what I've got here for feedback.

[dx100uk]

try now

[AndyOrch]

" This is more of a rhetorical point, but I just don't get why they don't have to provide a signed agreement etc. How can this be based on what basically amounts to their word."

 

Because there is no signed agreement...have you ever signed an agreement when taking out a mobile phone contract...or TV Broadband service or Utilities supply come to that ?

 

Its backed up by evidential documents...your usage..your payments..your history etc etc...its important for you to understand this otherwise it will be very difficult to defend your position......however I thought you was arguing the legality of early termination charges and making you pay for a service that is no longer being provided nor costing the provider to provide it?

[Jase1982]

I am going to have to argue that point, so I guess thinking about it it's irrelevant whether there were terms and conditions and a signed agreement in place because I'm arguing the against the legality of the claim; rather than the existence of the claim. I think Still trying to get my head around this.

[AndyOrch]

Correct.....T&Cs... signed agreement.....pointless.

[Jase1982]

Just had a call from my girlfriend ... The courts have sent us a letter saying the claim has been discontinued Will read the detail when I get home later.

 

Thanks all, a donation will be on the way as soon as I get paid.

[Jase1982]

The letter doesn't say much. Just says that following reading a letter they have received from the claimant the claim is discontinued...

[AndyOrch]

Well done Jase...as expected.

 

Notice of Discontinuance is form number N279

 

Thread title updated and many thanks for your intended donation.

 

Regards

 

Andy