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I need help to Serve a writ to recover a loan


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If he has no documents on which he wishes to rely then there is no need to file anything.

 

However, I find it strange that he has no disclosure but that's up to him. He denies any loan existed and the burden of proof is on you to show that it did.

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Dear Ganymede

Thank you for your fast reply. Surely he should notify the court that he is not filing any docs for disclosure - or is that not relevant at all?

The way i see it, as it is, he failed to comply with the order and hence he should be penalised

am i wrong?

thank you

BF

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No disclosure no evidence to rely on....verbal submission only.

 

Best of luck for today Burma...please update as soon as convenient.

 

Regards

 

Andy

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hi Andy and Ganymede

it was a partial success. its still not over

1. Judge gave Defendant a serious rollocking

2. branded him serial non-compliant

3. Judge commented that my request to strike out defence was understood but premature at the moment and adjourned for next hearing

as Defendant claimed to have served DQ and DD ... even though Judge said they were not in court files

and i hv not received them -

4.judge asked Defendant directly if he served these docs. Defendant said yes.

When asked when.what date they were served.... Defendant said he was not sure.

when asked where copies of these docs were, Defendant said he has to find them He said he has copies at home.!!

5. Judge asked why he did not bring these docs. Defendant said he thought the court has copies.

6. As I said before, Judge said they were not in court files on this case.

7. judge ordered that the Defendant produce proof of serving these documents at the next hearing.

Judge wanted to see copies of papers as well as proof of postage/dispatch.

8. Failure to produce these documents will enable me to repeat my application for defence to be struck out.

9. Defendant came to court without copies of the DQ nor disclosure docs. he claimed to have filed. He brought no papers at all.

10. Defendant was barred from relying on anything other than that filed together with his witness statement of xxx date

11. I now have to prepare a bundle of evidence for the next hearing

a. serve Index on Defendant no less than 3 days before hearing date... the include the following

b. Applications ...what do i say here?

c. Pleadings.... what do i say here?

d. orders (I take it this is draft order?)

e. statement (I take it - this is my witness statement?)

 

Of course, i will give details of the order on receipt

I will hv to prepare the "bundle" and i really will need help with this - so pls guide me

the sort of issues i have to address in the above documents.

 

thank you again so much for all your help. You guys were really there for me.

I really tried to convince the judge but she wanted to give the Defendant benefit of doubt....

even after branding him Serial non-compliant. Our system really protects the guilty.

 

all the best

Burmafriday

 

 

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Excellent Burma....a very lenient DJ you had there...role on point 8 above.......hope you are totaling up all your costs.

 

Regards

 

Andy

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  • 4 weeks later...

Hi Andy and Hi Ganymede

i have received the order from the last hearing - its extremely disturbing really, as it took nearly a month for me to receive this. It was dated 10 Sept. The contents of the order are as listed in my my post #224 dated 04 Sept. above

 

The issue of major concern to me is that It stated that as Claimant, i am to produce a bundle for the hearing and then a copy for the index on the Defendant.

i am really not clear on this and so would really appreciate your help. No further information or requirements were mentioned in the order. I listed the requirements

in my earlier post (#224 again as above) as follows:

 

11. I now have to prepare a bundle of evidence for the next hearing

a. serve Index on Defendant no less than 3 days before hearing date... include the following

b. Applications ...what do i say here?

c. Pleadings.... what do i say here?

d. orders (I take it this is draft order?)

e. statement (I take it - this is my witness statement?)

 

I have been thinking about these requirements since the hearing . I seemed to have hit a brain freeze as I really cannot think what to say here.

Will you please give me some explanation and Guidance on whats required in each of these sections.?

 

Application - My application was that the defense should be struck out due to non compliant of orders

Pleading - is this where i try and substantiate that the Defendant is irrefutably at fault/guilty??

order - do i prepare yet another draft order? same as before?

statements - do i submit another witness statement?

 

look forward to hearing from you

all the best/BF

 

 

Edited by burmafriday
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  • 3 months later...

Dear Andy and Ganymede

Happy New Year. lets hope we all win the lottery this year.......... after a few rollovers of course. I mean - who wants to win a mere £ 2 million?

Anyway....

 

I am preparing for the next hearing late next month and going through the past orders and in particular the two orders to which the Judge in the last hearing referred.

I like to post these for your comments. How do i attach these with the post? should i send them via a PM?

 

best/BF

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And the same to you BF hope you had a good holiday.

 

Simply type out the orders here or scan them and attach them your post.

 

Regards

 

Andy

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Hi Andy

 

thank you for your message - sorry i cannot see how to make an attachment

below are the three orders issued since March 2014.

Please let me have have your comments

 

first order. March14

On March 2014

District Judge XXX sitting at London NW considered the papers in the case and

ordered that:

1) The Claim is allocated to the Multi-Track.

2) Disclosure of documents will be dealt with as follows:

b) By 4pm on 1st May 2014 both parties must serve on each other copies of all documentsII upon that party wishes to rely.

~~

b) By 4pm on 15th May 2014 any request must be made to inspect the original of a

disclosed document.

c) Any such request unless objected to must be complied with within fourteen days of the request.

3) Evidence of fact will be dealt with as follows:

a) By 4pm on 19th June 2014 both parties must serve on each other copies of the signed statements of the~selves and of all witnesses on whom they intend to rely and all notices relating to evidence, including Civil Evidence Act notices.

b) Oral evidence will not be permitted at trial from a witness whose statement has not been served in accordance with this order or has been served late; except with permission from the Court.

4) Witness statements must:

a) Start with the name of the case and the claim number;

b) State the full name and address of the witness;

c) Set out the witness's evidence clearly in numbered paragraphs on numbered pages;

 

second Order Nov 14

 

Before Deputy District Judge sitting at the County Court at, London,

Upon hearing the Claimant and the Defendant in person

IT IS ORDERED THAT

1. Witness statement of fact with documents relied upon to be attached and explained t be filed and served by XX November2014

2. Oral evidence will not be permitted at trial from a witnesss whose statement has not been served in accordance with this order or has been served late except with permission from the Court see order March 2014 for the requirement of the witness statement.

3.Trial is listed May 2015 at 10:00 Pre Trial check lists to be filed April 2015 .

4. Defendant is not disputing that Claimant paid the Credit card bills set out in

 

on the date XX November 2014, the Defendant submitted a witness statement.

should this statement be struck out as he still has not submitted his DQ or Dislcosure docs.

this second order refers to the first order of march 2014

"... see order March 2014 for the requirement of the witness statement. ..."

 

 

third order SEP 15

 

Before Deputy District Judge sitting at the County Court at London,

Upon hearing the Claimant and the Defendant in person

IT IS ORDERED THAT

Upon reading the papers filed herein together with the small bundle provided by the claimant and serve on the defendant for this case management hearing. And upon the claimants application to strike out the defendants defence due to apparent non compliance with the order ( March 2014) And upon the court noting that an order Nov 2014 by DDJ appears to suspend the order in MAR 14. But does not give extension of time for directions questionnaires or lists for disclosure. And upon the defendant assuring the court that he has filed and served both the documents and can produce recorded delivery slips to this effect

on the next occasion. '

----------~ --------.-~

1. The claimants application to set aside the defence is adjourned to the next hearing.

2. Defendant is barred from relying on any evidence other than that filed together with his witness statement.

3. The defendant must produce at the hearing listed in paragraph 4 evidence that he has complied with the directions of hearing of Nov 2014 in respect of the directions questionnaire and the list of documents for disclosure in the event he is not able to do so the claimant is permitted to repeat his application to strike out the defence.

4. Matter is listed for Feb 2016 at l0am with a time estimate of 4 hours.

5. Claimant is to produce a bundle for the hearing, then a copy of the index on the defendant. This is to be filed with the court no later than 3 days before the hearing listed in paragraph 4.

6. Both parties are to attend the hearing in paragraph 4 ready to proceed with the trial.

 

+++

 

In the last (SEP 2015) order, the Judge said that the second order appears to Suspend the first.

do you agree with this comment?

The Defendant has NOT filed his DQ since the beginning, and did NOT submit Disclosure docs. as ordered in the first order.

but I do not understand why the Defendant was allowed to submit a witness statement. perhaps you can comment on this.

 

at the third hearing -you see from the third order that the Defendant has to show proof that he submitted the DQ and disclosure docs.

he claimed in court that he had submitted these. (a) by recorded delivery and (b) hand delivered them.

BUT Neither the Court, Nor I ever received them.

(Defendant lives close to the Court and my house)

 

FYI :

During the hearing the Judge asked him how far he lived from the court and if the hearing were adjourned for an hour, would he be able to return home and fetch the documents?

(as he did not bring them to court.) The Defendant told the Judge that "he may not be able to find them so quickly but he again assured the judge that he submitted them...

The judge expressed her astonishment that the Defendant came to court with no documents what so ever.

(The Judge asked the Defendant "what documents dd you bring to this hearing? "

he replied that he did not bring any documents.

 

 

Does the order require him to produce just proof of postage or the actual documents ... or both. I am not clear.?

 

My concern is that the Defendant will fabricate the DQ and Disclosure docs and the proof of postage.

if he does produce these documents, I am concern that i will not have sufficient time to go through them to assess if they were genuinely produced back in 2013 !!

 

 

sorry for the long post

i look forward to your comments.

 

thank you very much

all the best/BF

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I would say that the second order amended the first, not suspended it. It's not really relevant anyway.

 

The Defendant was allowed to submit a witness statement as he did it in time in accordance with the second Order. The Directions are independent of each other so just because, for example, you say he missed disclosure lists does not mean that he can't file a witness statement provided it was in line with the second Order. He could have his Defence struck out for missing disclosure but that's a separate issue.

 

As for the DQ and disclosure lists, he'd have trouble forging the proof of postage receipt from the Post Office so I wouldn't worry about that. He could fabricate the documents and cover letters and backdate them but he'd have to lie and convince the Judge that they're genuine. If he does convince the Judge then there's not a lot you can do about it.

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  • 1 month later...
Hi Ganymede and Andy

in the trial bundle, can i introduce other evidence and document which has come to light?

ie those documents which were not included in my previous witness statements or disclosure documents

thank you

BF

 

Not really, the other side could object if you did. But you could just include it and hope he doesn't know.

 

What new evidence anyway? Why has it only just come to light?

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Hi Ganymede

i found the copy of the record of payments made to Defendant whilst was looking for original papers for trial bundle. They were stuck behind a letter from his solicitor.

my bank statements enabled me to prepare my case. These docs however showed a list of all payments - including the cash payments. i was going to include them any way as i included

most parts of these in my disclosure documents

Also, should i mention the Limitation Act of 1980?

thank you

BF

 

Hi Ganymede

or.... should i apply to the court and ask for these documents to be included as a separate issue ?

thanks

BF

 

Hi Ganymede,

well the Defendant is supposed to bring proof of his submission of DQ and Disclosure docs. if he cannot prove this, then i am allowed to apply for judgment by default for non compliant.

The only way he could substantiate is to bring proof of recorded delivery postage receipts and also surely he must bring copies of the actual documentation??

 

so at the hearing should i wait for the out come of this or., should I apply to the court to consider this evidence as a separate matter.? if so, how should i do it? By submitting a N244 application form there and then and making an application?

thanks

BF

 

H Ganymede and Andy

I was thinking.. at the CMC I applied for Judgment by default due to non compliant as he did not submit DQ and Disclosure

The Judge asked the Defendant to see copies of these docs.

Defendant was unable to show as he brought no paperwork.

so judge even asked him - if she delayed the hearing by an hour, would he be able to go back home and fetch them as he only lived 5 mins away from court.

The Defendant told the Judge that it would take him more than an hour to find the paperwork as he was not sure where he had put them.

The Judge then asked if he definitely submitted DQ and Disclosure as neither the Court nor the Claimant has copies.

he assured the judge that he sent them by recorded delivery

so the Judge gave him benefit of doubt and allowed him to produce the receipts at this next hearing.

 

My idea is to submit a N244 application for this evidence to be accepted by the court - just as the court gave the Defendant benefit of doubt, they should offer me the same benefit of doubt.

 

What do you think and how can i achieve this? i like to have the N244 application ready and submit it at the next hearing on 26th

please help me and let me have a draft text i can put n my N244.

 

Thank you

All the best/

BF

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I personally wouldn't bother BF save your cash ...looks like the Judge already has them in a position of no return

 

Andy

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Hi Andy

i am sorry - i do not understand what you mean.

Are you saying that the Judge is pretty much ready to give me judgment in default due to the Defendants non compliance?

what if we get a different judge ?

I really appreciate your help and comments.

please get back to me ASAP. I got to burn the midnight oil and have the docs ready for tmrw

Thank you

BF

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Hi Andy

i am sorry - i do not understand what you mean.

Are you saying that the Judge is pretty much ready to give me judgment in default due to the Defendants non compliance? Yes..I assume that continuation notes will have been made by the DJ for the D to produce the receipts at this next hearing.

what if we get a different judge ? See above

I really appreciate your help and comments.

please get back to me ASAP. I got to burn the midnight oil and have the docs ready for tmrw

Thank you

BF

 

What exactly will this proposed application ask and achieve?

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Hi Andy

thanks for getting back so fast.

I found the cash payment records whilst looking for original documents

thats the thing.

Best/BF

 

Sorry Andy - yes i wanted to be able to submit these documents

i could not find them prior to Disclosure

thanks BF

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You can either just pop them onto your disclosure and hope the D does not pick up on it or you can issue a supplement disclosure...don't leave it to late if you go for the latter.

We could do with some help from you.

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H Andy

thanks for this - thats a great relief

so whats the form to attach a supplement disclosure?

do i submit via form N265? and include in trial bundle?

if not, do i need to use N244 form

will this be acceptable to Judge

i know you are probably real busy with other cases so i am real grateful for your help

hearing is 26 Feb so i got to get the trial bundle in tmrw

thank you so much Andy

BF

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