Multi Track - Help with Statement of Evidence

[pauli]

Can anyone explain or better still illustrate by example, just what's involved in producing a "Statement of Evidence".

 

I'm struggling to get my head round the difference between a witness statement/statement of evidence and the defence itself. Both in terms of form and content. I'm stuck with the one being an abbreviated form of the other. Is this right?

 

Background:

 

The claim is in respect of combined credit and charge card debts. 20K plus.

 

The key issues are the usual ones regarding enforceability ie. Copy Application Forms and Terms for which originals no longer exist - having been scanned into a computer d'base.

 

No apparent link between the two documents in either case and a clear admission in one that they don't have a copy of the original terms.

 

No copy of the executed agreement and no Notice of Cancellation Rights, but an assertion that both would have been included with the card carrier.

 

Reconstructed copies of Default Notices (incorrect with regard to referenced contractual term)

 

Claimant is relying on the "true copy" argument currently in vogue and clear evidence that the debt exists. Choosing to ignore the fact that it is an unenforceable one, but hoping the judge on the day may be persuaded otherwise.

 

I would prefer not to divulge specific details of my case at this stage but appreciate I may have to if I am to get the help I need. (Perhaps PM)

 

I am in uncharted waters and looking for someone with a routemap and some practical experience. I'm sure its out there somewhere?

[surfaceagentx20]

The statement of evidence or witness statement is a narrative written in the first person about what the witness can say to the court from his or her first hand knowledge about one or more of the issues in the case. The statement concludes with the witness verifying the truth of the statement.

 

Once upon a time the witness gave his evidence to the court from the witness box on being lead by his party's counsel, after which he faced cross-examination by his opponent. Today, in order to save court time and in pursuit of the 'cards on the table' approach, rules of court now require the 'lead evidence' to be written down in witness statement form and provided to the oposition before trial. At trial the lead evidence will be short and sweet with the witness simply confirming that what is said remains as his evidence after which the trial is straight on to the cross-examination.

 

The witness statement should avoid setting out prolix legal interpretation and so forth. That area is reserved for legal submissions, and are likely to first appear in any chronology or skeleton argument which the court is likely to direct be delivered shortly before the trial opens.

 

When starting out to draw up one or more witness statements it is necessary to define in your mind

 

[1] what is in issue in the case. What is in issue includes what you take issue with about your opponent's case and what your oponent takes issue with about your case, and

[2] which of your witnesses will cover which of the points in issue.

 

Since in a case of this kind you are relying on technical shortcomings on the part of your opponent, each statement (there may be need for just one per party) will have limited narrative commentary (certainly I would have thought from your side) since the real question to be decided by the court is concerned with issues of law and compliance with regulations and interpretation of documents, rather than issues of fact and versions of events (eg who said what and when).

 

With this in mind I suspect (not having seen a list of issues as defined by the statements of case) your witness statement might be very brief as well. Essentially the statement introduces the documents. Where documents are referred to in a witness statement they should be exhibited to the statement and pageinated.

 

The statement might look like / say something like this:

 

IN THE (NAME) COUNTY COURT

Case Number

BETWEEN

(Name)

Claimant

and

(Name)

Defendant

STATEMENT OF (FULL NAME)

 

I, (FULL NAME) OF (ADDRESS)

 

STATE AS FOLLOWS

1 I am (the Defendant / for other witnesses state occuption and relationship of any to the party on whose behalf the witness gives evidence).

 

2 In the course of this witness statement I shall refer to the existence of documents, true copies of which are exhibited hereto at exhibit (witnes initials 1)

 

3 On (date) the Claimant commenced this case in which the Claimant seeks to enforce certain provisions of an agreement by (here set out all the relief claimed by the Claimant. The agreement is an agreement regulated by THe Consumer Credit Act 1974 (The Act).

 

4 On (date) I delivered to the Claimant a request made pursuant to the provisions of section 77/8 of Te Act. A copy of my request is now shown and produced to me at page (page number) of my exhibit (witness initials 1).

 

5 On (date) and in purported compliance with my request, the Claimant delivered the documents appearing at page (page number) of my exhibit (witness initials 1). These are the documents upon which the Claimant relies for the purpose of satisfying the court that the agreement upon which its case is based is an enforceable agreement.

 

6 Further, on (date) the Claimant produced a document which it purports to be a default notice and which it claims was delivered to me in order to meet the obligations owing to me under sections 87 and 88 of The Act. A copy of the default notice is now shown and produced to me at page (page number) of my exhibit (witness initials 1).

 

7 [Here carry on in like manner where there are other essential documents in regard to which issue is taken].

 

8 At trial I will assert by reference to the documents and by submissions to the court as to fact and law, that the documents relied upon by the Claimant are inadequate for the purpose of demonstrating that at the date of the commencement of this case. the Claimant was entitled to any of the relief sought.

 

I BELIEVE THAT THE CONTENTS OF THIS STATEMENT ARE TRUE.

 

(Signed)

 

(Dated)

 

I can not emphasis enough that what I have written above is for guidance purposes only and must be altered to suit the specific issues which exist in your case, albeit, those issues turn on legal rather than factual matters.

 

I hope this helps you some way. If clarification is required, just yell.

 

x20

[pauli]

Many thanks X20..clarifies most of the issues. I will digest overnight and get back to you if I have any questions.

 

I am still having problems with disclosure at the moment. Sols acting have done nothing but prevaricate since the allocation order and directions,

 

Currently way beyond period allowed by the court and still awaiting documents..I have refused to consider simultaneous exchange of statements until I have all the docs I have requested.

 

Contemplated application to order delivery but not sure this would serve any useful purpose?

 

They seem to be having problems with audit trail for copy documents they seek to rely on in the abscence of any originals !

[surfaceagentx20]

If the opponent is in breach of an order for disclosure I would definitely make an application for an unless order. Don't given them any more time to comply.

 

Your application will be made on Form N244. You should indicate you do not want a hearing. That way the court will deal with it on paper and speed up the process. The application will be for an order as follows:

 

That unless the Claimant shall give standard disclosure of documents by lists (follow the wording of the actual order) within 7 days of the date of the making of an order upon this application, the Claimant's claim shall stand struck out and the Defendant shall be at liberty without further order of the court to enter judgment against the Claimant and for the costs of this case to be paid by the Claimant to the Defendant to be assessed by the court on the standard basis if not agreed.

 

That the costs of this aplication be paid by the Claimant to the Defendant in any event, alternatively be summarily assessed at such sum as to the court appears just and fair).

 

In the supporting evidence at Part C put:

 

1 On (date) Disitrct Judge (name) gave directions for the disclosure of documents. The Claimant was ordered to give standard disclosure by list by [(usually 4:00pm) on (date)].

 

2 The Claimant has failed to comply with this order, has failed to apply to the court for further time or for relief from any sanction which might be applied for that failure or otherwise seek to be excused from complying with its disclosure obligations.

 

3 In the circumstances I seek an order that unless the Claimant shall give standard disclosure of documents by lists (follow the wording of the actual order) within 7 days of the date of the making of an order upon this application, the Claimant's claim shall stand struck out and the Defendant shall be at liberty without further order of the court to enter judgment against the Claimant and for the costs of this case to be paid by the Claimant to the Defendant to be assessed by the court on the standard basis if not agreed.

 

4 I also seek the costs of this application. The fee on presenting the application was £75.00. Further, in presenting this application I have spent (x) hours in preparation and research time in regard to which I invite the court to summarily assess the costs of this application at £y (my time being charged at £9.25 per hour pursuant to the provisions of The Litigants in Person (Costs and Expenses ) Act 1975 (where £y equals x hours at £9.25/ hr plus the court fee) and direct the Claimant to pay to me the sum of £y for costs such sum to be paid within 14 days.

 

Try that and see what happens.

 

x20

[pauli]

Thanks again X20..

 

I perhaps did not make it clear but I do have the disclosure list. (albeit a week late) The delay now is in providing the copy documents I requested from the list. I have also asked them to confirm which are not original documents, why the originals no longer exist and what has happened to them.

 

I have also served a N268 Notice.

 

In truth I think I probably have some of the documents on the list following earlier S.A.R - (Subject Access Request) and CCA requests. However there is no way of being certain that the copies they rely on are the same other than in name. Better safe than sorry.

 

Does this affect at all your recommendation re the Application?

 

On an unrelated matter...The copy terms I have are barely legible and are undated so it is difficult to prove they are contemporaneous. Hence seeking to establish the date they were scanned into their database.

 

Bearing in mind the prescribed terms must be in the signature document the words reconstructed and conjectured spring to mind, but I could use more ammunition if you have any thoughts?