Below is counsels note of the judgment in the MKDP Case
I have before me a claim brought by MKDP LLP against Mr A in respect of an assigned debt under a CC agreement originally with Barclaycard. However, the position is that this is not just an ordinary assignment of a debt, but an assignment of a debt with a statutory framework for the CC Agreement. There is no evidence before me of the actual assignment from Barclaycard to the C, it is merely asserted that is the case. Without the original assignment being before me, I cannot reasonably start an adjudication of that assigned debt because of the very full nature of the defence, which was filed by the D in this claim, and which raised numerous points under the CCA which are relevant to the claimed benefit of the assigned Chose-in-Action, the debt from Barclaycard.
I have had a very helpful skeleton argument from Mr Brennan of Counsel which submits that the assigned chose in action is unenforceable. However, in my view, this claim does not get that far. There was in existence created and dated 26 January 2015 a W/S of Taylor Atkins who is a litigation assistance of the Claimants. I am told that this was served today the 17th of January 2015, because this witness statement was delayed because of long term sickness of a case handler. And that relief was sought that it be submitted. My view is that under the principles of Mitchell & Denton, although there is no formal written application before me, I should deal with this on an informal basis. In my judgement, it is disingenuous of the C to file a W/S late and in breach of the order, raising issues which are relevant to the Claim, when it failed to include in that W/S an explanation of why the claimant has failed to comply with existing court orders. However, as I have earlier observed, this claim fails principally before me on the balance of probabilities that where issues as to proof of the statutory framework for CCA has not been satisfied – and I find as a fact that the W/S of Taylor Atkins does not deal with these issues at all, or if so, only tangentially – from which it is not possible to tease out the required compliance. I do find as a fact, that a form of indebtedness was assigned subject to the production of the deed of assignment.
That assignment of the benefit of the debt only falls to be enforceable provided that the statutory framework has been complied with. I find as a matter of fact that it has not been complied with. The documents that have been provided are illegible, and the originals should have been provided, or an explanation as to why they are no longer in existence. It appears to me that the documents at the material time were in control of Barclaycard, and it is for these reasons that I dismiss the claim.
Judge: This is an assigned debt, there is no prescribed protocol so we look at the general protocol. Reading from the White Book C1.008 Annex A – Claimant’s letter before claim at 2.2 – Claimant should give full details, basis of claim, a clear summary of the facts, what the C wants from the D, and how the amount has been calculated.
2.2 The letter should also: 1) list the essential documents on which the claimant seeks to rely. 2) set out the form of ADR if any that the claimant agrees to, and the date for a full response.
Just reading from the last case under 27.14(2)(g) in the White Book:
“The court must be aware that a company may be taking action for reasons other than pursuing a trial.”
• There has been no compliance with the pre-action protocol.
• There has been no engagement with the Defendant or his solicitors.
• There has been no acceptance of the offer and/or order for mediation.
• There has been a complete failure to comply with court orders.
• There has been (literally) last minute production of evidence which has been wholly insufficient for the purposes of this case.
• There has been none of the requisite evidence to support their case.”
Judge: A claim was made supported by a statement of truth and all that is proved is that an assertion is made by the Claimant that they were assigned a debt. That’s all I can find as a fact. It is disingenuous to say that they have proved their case…commercial men may agree whatever they want, but to come to court when there is no evidence or no real evidence that the claim is enforceable, begs the question of how truthful this claim ever was.
The statement of truth was made – at best – lightly. It must be true all the way through the witness statement.
It is a founding principle that a costs order should not be punitive in nature. And that any message it being a punitive order is entirely wrong in my view. Any judgement I make in respect of a Certificate of Unreasonable Conduct, is based on the conduct of the parties, and not as a punitive element of the jurisdiction.
The application for certification – that the C conduct in bringing this claim which has failed – is entirely reasonable. The principle matter of this claim is that the best that the claimant’s case is that on the evidence of Taylor Atkins that there was an assignment of a chose-in-action from Barclaycard on 17th December 2012. This is the best part of the claimant’s case. In reality, there was nothing further provided because the claimant knew full well that the type of claim that this is. It is one which is accompanied by a detailed statutory framework of which there was simply no evidence that it was even considered, let alone addressed. Such peripheral matters that were brought to my attention by Taylor Atkins could and should have been made available at the time of the pre-action letter, which is so deficient that it could not be properly be said to comply with pre-action protocol, conduct for which there is no compliance in such circumstances, in that even this basic information was not put before the defendant.
In my view, the Claimant has fallen very far short of conducting this case in a reasonable manner, in the specialised area which they choose to trade.
I find that the Claimant’s conduct, including that of late service of a W/S and documents on the day of the hearing, and in breach of the Order of the Court, is grounds for the certificate of unreasonable conduct. Certificate of Unreasonableness granted.
Issues of quantum of costs:
MKDP challenged the length of time spent on the papers given that they had submitted no evidence.
CLAIM DISMISSED WITH COSTS