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Kathleen Goddard

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Everything posted by Kathleen Goddard

  1. ]I agree. Every case is individual and is won or lost based on the MERITS of the case. The merits are assessed on the strength of the evidence available, which includes witness evidence. It is the claimant's burden to prove his or her cases on a balance of probabilities. (The claimant is the Debtors in this scenario) It is the obligation of the judge to make a decision on whether or not the claimant has proved and met his burden. Judges do this by taking a view on the law and all the available evidence. A good example is where a claimant tries to reclaim interest on a credit card because the defendant has not provided him with a copy of the executed agreement, when a new credit card has been reissued (pursuant to section 85 of the Consumer Credit Act 1974). In this case it is helpful to have independent evidence in support of the claimant’s assertions that no executed agreement was provided or received. The defendants defence will of course be that an executed agreement is always provided and the claimant was sent a copy. In this scenario the witness will probably not be able to say the claimant did not receive a copy of the agreement, unless the witness is a wife or partner or was there at the time of receiving the new card, (although relatives are not considered independent). What the independent witness is likely to confirm is that they too never received an executed agreement with their reissued credit card. Independent witness evidence is generally given more weighting in trying to find the elusive balance of probabilities. The reasoning behind this is that independent witnesses have no interest in the outcome of the trial. So having 1 witness is great but having 5 is far better. You are correct in stating that this does not prove the claimant's case outright as in this scenario no one piece of evidence will. However what the evidence does is suggest that the defendant has a tendency to not always send the executed agreement. If the matter ever goes to trail and the judge is presented with a plethora of witness evidence along with the usual disclosure evidence. It is easier for that judge to conclude that the defendant does not always do what it says it does. Whilst It cannot categorically be siad that with witness evidence you will always will your case, as a general rule witness evidence is used to strengthen your arguments.
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