Document in court of dubious authenticity

[Smarterchick]

Edited and solved

Edited September 29, 2009 by Smarterchick
Solved

[surfaceagentx20]

I know precious little about your case and the background leading up to the hearing for which the witness statement was produced but nevertheless and as a general rule, a document having been exhibited to a witness statement constitutes the disclosure of it and will in my opinion, be treated as having been disclosed for the purpose of CPR 31. CPR 32.19 deals with the issue of challenging the authenticity of documents in the following way:

 

32.19

 

(1) A party shall be deemed to admit the authenticity of a document disclosed to him under Part 31 (disclosure and inspection of documents) unless he serves notice that he wishes the document to be proved at trial.

 

(2) A notice to prove a document must be served –

 

(a) by the latest date for serving witness statements; or

 

(b) within 7 days of disclosure of the document, whichever is later.

 

The notice to prove is N268.

 

When and for what purpose was the witness statement disclosed to you? What was the hearing all about? What in terms of 'the bigger picture' do you hope to achieve by chalenging the authenticity of the email?

 

x20

[pt2537]

there is a right of inspection of the original docs at the offices of the other sides solicitors or other offices that you may be able to rely upon

 

while it is often accepted that disclosure of copies is sufficient, there is an entitlement to view the actual document

[Smarterchick]

I know precious little about your case and the background leading up to the hearing for which the witness statement was produced but nevertheless and as a general rule, a document having been exhibited to a witness statement constitutes the disclosure of it and will in my opinion, be treated as having been disclosed for the purpose of CPR 31. CPR 32.19 deals with the issue of challenging the authenticity of documents in the following way:

 

32.19

 

(1) A party shall be deemed to admit the authenticity of a document disclosed to him under Part 31 (disclosure and inspection of documents) unless he serves notice that he wishes the document to be proved at trial.

 

(2) A notice to prove a document must be served –

 

(a) by the latest date for serving witness statements; or

 

(b) within 7 days of disclosure of the document, whichever is later.

 

The notice to prove is N268.

 

When and for what purpose was the witness statement disclosed to you? What was the hearing all about? What in terms of 'the bigger picture' do you hope to achieve by chalenging the authenticity of the email?

 

x20

 

I'll try and keep this short.

 

I was issued a repossession notice by a finance company due to arrears.

The arrears were cleared, but the next months payment became due and they continued with their repo.

I counterclaimed with a s.11 & s.18 Multiple agreement claim making their claim unenforceable and asked them to respond..they didn't. I stopped paying informing them I'd continue when they did respond.

 

11 times I wrote within 7 months, 11 times they ignored me. I was convinced my s.18 was correct and wanted to draw them out so issued a Strike Out application-foolhardy maybe, but it drew them out which was the intention and the hearing was listed. I received a bundle and noticed the alleged email. I knew I never received this. I contacted Microsoft and a couple of Microsoft Computer technicians who said the details on the top of the email which lacked the normal audit trails, would be highly unlikely to look like they did if they just printed this out for a file. They said it would have to have been put through various procedures before it could be printed as presented in the bundle. The Finance co sent in a barrister to the s/o hearing who used this email which had been included as a 'Witness Exhibit' one of three, and the email content showed they had indeed contacted me mid way through the 7 months and I was talking poppycock which the Judge bought into. Despite the address being wrong and it never could have arrived at my pc and would have been returned to the sender, the barrister continued to labour the contents of that email to discredit me. My case was dismissed and costs awarded against me. The Judge used the hearing as a case management hearing and dispatched the case to a Circuit Judge. I probably would have lost the Strike out anyway as this was no way to settle the issue I had, but that's not the issue here.

 

The issue is that a solicitor, in my opinion, sent an email (allegedly) and produced a document in court which could /may have been a false instrument to gain advantage. All I have asked for is an audit trail of proof that this qualified person has not created this document in 'Word' - which is exactly what I did, creating an identical copy which was then used to dupe the judge and me into believing I was wrong and they had complied by responding to me.

 

What do I wish to acheive? - If he has done this, I want him struck off.

 

The Chief executive refuses to provide this proof too and insists he's satisfied my questions have been answered...my questions have been referred to as 'irrelevant' and never answered so he is an accessory to the fact if that's the case and I am right.

 

I am not paranoid, I am not prepared to sit back and be lied to leaving these people unaccountable..I want the next stage to prove this audit trail whether I get the Police or whoever to get the evidence I care not, they won't give it to me, so someone else has to get it. If they are right why go to such lengths to hide it? As far as they are concerned, I have seen the original.

[Alphageek]

I would assume they are legally obliged to retain email records for a number of years.

 

There will be much more of an audit trail than the headers you would see on an email if they had printed it from Microsoft Outlook, for example.

 

If they are using Outlook, there is a good chance they are using Microsoft Exchange Server. There are utilities provided with Exchange called "message tracking" and they provide pretty irrefutable proof of who/when/where an to whom and email was sent.

 

They do this by interrogating the Exchange Server's database. Nearly every action the server takes with the sending or receipt of an email causes numerous "events" to be logged.

 

I cannot offer advice on how you can force disclosure, but if you can think of a tactic, I can certainly help with what to ask for.

[diddydicky]

I would assume they are legally obliged to retain email records for a number of years.

 

There will be much more of an audit trail than the headers you would see on an email if they had printed it from Microsoft Outlook, for example.

 

If they are using Outlook, there is a good chance they are using Microsoft Exchange Server. There are utilities provided with Exchange called "message tracking" and they provide pretty irrefutable proof of who/when/where an to whom and email was sent.

 

They do this by interrogating the Exchange Server's database. Nearly every action the server takes with the sending or receipt of an email causes numerous "events" to be logged.

 

I cannot offer advice on how you can force disclosure, but if you can think of a tactic, I can certainly help with what to ask for.

 

how about an Anton Piller order- or would that be too extreme?

[surfaceagentx20]

So the email was produced to resist your application for the striking out of the possession claim against you. Your application failed and the claim continues. If the value of the email related to the strike out application and in some way and from your point of view, with it being declared a forgery, in the context of the strike out application the value of the email vanished on the decision to refuse the strike out application. I say this on the basis that the issues which remain to be decided at trial are not dependent upon the content of or anything else concerning the email.

 

If I am right, whereas you continue to have a right to inspect (and that includes a right to a physical inspection as pt most importantly mentions), the right is limited to documents which have been disclosed. If the opponent does not disclose the back ups or whatever electronic documents may be in existence surrounding the creation and delivery (or non-delivery) of this email, it will be necessary for you to obtain an order for specific disclosure of back ups etc in order to obtain a right of inspection.

 

Any application for specific disclosure will be decided in terms of fairness, proportionality etc after having paid regard to the issues in the case - to the big picture. Having your opponent's lawyer struck off does not assist in the deciding of the big picture. Your opponent may instruct somebody ele. In which case the big picture changes not one jot.

 

This case's big picture is concerned with whether or not your opponent's security should be enforced or not. It is to that fundamental issue that I suggest you concentrate your efforts. I would pull back from seeking to establish fraud on the part of an officer of the court who represented my opponent, especially if deciding that point had very little to do with the fundamental issue in the case.

 

I could go on, but I hope I am making plain that what I am talking about is scoring proper goals. It's not about winning a soppy throw in.

 

x20

[Smarterchick]

So the email was produced to resist your application for the striking out of the possession claim against you. Your application failed and the claim continues. If the value of the email related to the strike out application and in some way and from your point of view, with it being declared a forgery, in the context of the strike out application the value of the email vanished on the decision to refuse the strike out application. I say this on the basis that the issues which remain to be decided at trial are not dependent upon the content of or anything else concerning the email.

 

If I am right, whereas you continue to have a right to inspect (and that includes a right to a physical inspection as pt most importantly mentions), the right is limited to documents which have been disclosed. If the opponent does not disclose the back ups or whatever electronic documents may be in existence surrounding the creation and delivery (or non-delivery) of this email, it will be necessary for you to obtain an order for specific disclosure of back ups etc in order to obtain a right of inspection.

 

Any application for specific disclosure will be decided in terms of fairness, proportionality etc after having paid regard to the issues in the case - to the big picture. Having your opponent's lawyer struck off does not assist in the deciding of the big picture. Your opponent may instruct somebody ele. In which case the big picture changes not one jot.

 

This case's big picture is concerned with whether or not your opponent's security should be enforced or not. It is to that fundamental issue that I suggest you concentrate your efforts. I would pull back from seeking to establish fraud on the part of an officer of the court who represented my opponent, especially if deciding that point had very little to do with the fundamental issue in the case.

 

I could go on, but I hope I am making plain that what I am talking about is scoring proper goals. It's not about winning a soppy throw in.

 

x20

 

Okay,

 

The case went on to a 2 day hearing in front of the Circuit Judge/Recorder actually, the barrister advised me to leave the hearing to the core issues of s.11 & s.18 cca and leave the email issue I had out. It was in the bundle but not raised. The judge was bound by the decision of an appealed case Heath vs Southern Pacific and found for the Finance Company subject to the result of a further appeal of the aforesaid case and put a stay on repo until the Heath case is appealed in October. He stated that if Heath is overturned on appeal mine should also succeed as he found my agreement unenforceable as a 3 part multiple agreement according to his interpretation of the CCA '74(and he took 2 days out before giving judgement to consider this), so the core issues are and have been dealt with. He gave me leave to appeal and I have. The goals have already been scored x20.

 

However, soppy though it may be seen, I do not feel that a qualified solicitor has the right to get away with producing a document as a witness exhibit in court at a hearing in the run-up to this present hearing which may have been fraudulently created by him to get the Judge to believe I was lying in my core argument. He effectively stated the company, his client (all be it they were the in-house solicitors) had responded to my 11 letters in 7 months when in fact they hadn't and they used this alleged email to do that. The neccessity to 'inspect' is not there, I have the document, it was produced as an exhibit, if I visit to inspect it they will show me the same thing - I need the audit trails, nothing else.

 

I believe this to be fraud, perjury, call it what you like, but they lied in a court of law if I am right, to a judge, to gain a pecuniary advantage over me, discrediting my reasons for bringing the Strike Out action in the first place and they were awarded costs.. ...I am not looking for monetary compensation for this, that will come if Heath is overturned and my appeal goes through, they'll be paying all my costs for the year and a half this has been going on, I am looking to confirm how this man who has a qualification of respectibility can account for possibly committing a fraud (and at this stage it is just an allegation until he proves otherwise) to win a case through deceipt. I don't think that is 'soppy' - it's criminal if he has. I want them to prove he sent it because everyone with any technical Computer qualification or experience I have spoken to including a Microsoft employee who builds Outlook Platforms says it couldn't happen and I want to use whatever mechanism there is, be it the Police, the Solicitors complaints procedure or whatever to make this happen and extract this from them.

 

As far as the case is concerned, it is now subject to the Heath case and out of my hands until October.

 

I just need to know all the mechansims and tools available to me to extract this information from the Company, because I am not letting him away with this, I know he's lied - I want him to prove he hasn't.

 

Alphageek thanks, they do indeed use Outlook Exchange. I'll get back to you as and when. Much appreciated.

 

SC

Edited July 31, 2009 by Smarterchick
clarity