County Court action by ex friend

[cymruambyth]

:wink:You have mail

[steven4064]

... really could do with knowing how to order her to produce the documents requested as i know they wont be in the documents she declares.

What documents do you want?

 

The problem you will have is that this will almost certainly be allocated to the small claims track and none of the mechanisms provided by the civil procedure rules for getting docuemnts apply in the SCT.

 

The best way would be to put in a draft order for directions with the AQ. The directions should make it clear that the documents are needed for a fair and timely resolution of the case and that their absence mitigates against the overriding objective.

[cymruambyth]

If it is SC can something be done over the intimidation of threatening cost of £5k?

[debbbbsy]

Unless Order Needs to be applied for via the court and set out;

 

IN THE XXXXXXXXXXXXXXXXX county courtClaim No. X

 

BETWEEN:

XXXXXXXXXX

Claimant

- and –

XXXXXXXXXX

Defendant

_________________________ ________

DRAFT ORDER FOR DIRECTIONS

_________________________ ________

 

I XXXX request that an Unless Order be granted in respect of.................

 

This means that "UNLESS" they provide it within, say 7/14/21/28 days (reasonable timescale) that you want the claim Struck Out (or dismissed) as they have not evidenced an enforecable claim.

[Bigdebtor]

If it is SC can something be done over the intimidation of threatening cost of £5k?

 

Cym

 

From memory the remaining debt sued for is about £9k (including interest) - so too big for SC. However without the £1214 and interest claimed it would be much less - so I suppose one could argue they have deliberately inflated the sum to get out of SC - and thus frighten Indiana into conceding.

 

BD

[steven4064]

IF it is in Fast Track you can use CPR PArt 18 (Further information) or Part 31.14. Other side (and you) will have to give a list of documents relied on at disclosure

[debbbbsy]

IF it is in Fast Track you can use CPR part 18

 

she's done that.

[debbbbsy]

CPR are useless if they refuse to comply. Thats why I suggest an 'Unless Order' via the courts.

[steven4064]

she's done that.

 

CPR are useless if they refuse to comply. Thats why I suggest an 'Unless Order' via the courts.

There may be some confusion here. You use part 18 by making an application to the court for an order under part 18 for further information. I have seen posts on here where people think they can just write to the other side and say it's under part 18 and expect something to happen. It won't. I haven't read the whole of this thread to know what the OP did but using part 18 and an 'unles order' are essentially the same thing.

Obtaining further information

18.1

(1) The court may at any time order a party to –

(a) clarify any matter which is in dispute in the proceedings; or

(b) give additional information in relation to any such matter,

whether or not the matter is contained or referred to in a statement of case.

[debbbbsy]

she did a part 18 request to the claimants solicitor, but did not get the documents she requested. it was not done via the court.

[steven4064]

In that case, it was not a part 18 request. The solicitor will have looked at it for 15 second and binned it

[diddydicky]

you are getting some good advice here

 

i was catching up and saw a conflicting story that your ex was not prepared to make a statement- then you said he would attend court and give a statemtn

 

which is it?

 

if he is saying that she approached him and asked him to give a false statement then you should consider a subpeona for his attendance- how would he feel about this?

#

get your evidence together (there is not much on your part) and then you must as the order says :-

 

 

5. each party shall serve any request for clarification or further information based on any documents disclosed or statement served by another party no later than 14 days after disclosure or service. any such request shall be dealt within 14 days of service.

 

 

get your application off to the court to force compliance with your request for proof of the £23,000 paid into your account and the other £1214.

 

your witness statement is just a story of the events told in person- what YOU perceived with all of your senses.

 

keep it simple and to the point and avoid any temptation to "slag her off"

 

go back and doubly doubly doubly check your bank accounts - if necessary go to your bank personally and ask them to check again

 

i admit to having a continuing uneasy feeling about your version of how much money she paid into your account

 

her sols should have realised by now that there is a £2000 discrepancy (or they are very very stupid) so that makes me wonder

 

you MUST personally visit the bank and sort this out in your own mind and not just rely on phone calls

[indianamachno]

you are getting some good advice here

 

i was catching up and saw a conflicting story that your ex was not prepared to make a statement- then you said he would attend court and give a statemtn

 

which is it? He is willing to do a statement he is very worried that if he includes that she approached him there will be repocussions. As i have said before this person is a real piece of work amazing what you can buy if you have money...if you get my drift.

 

if he is saying that she approached him and asked him to give a false statement then you should consider a subpeona for his attendance- how would he feel about this?

#

get your evidence together (there is not much on your part) and then you must as the order says :-

 

 

5. each party shall serve any request for clarification or further information based on any documents disclosed or statement served by another party no later than 14 days after disclosure or service. any such request shall be dealt within 14 days of service.

 

 

get your application off to the court to force compliance with your request for proof of the £23,000 paid into your account and the other £1214.

 

your witness statement is just a story of the events told in person- what YOU perceived with all of your senses.

 

keep it simple and to the point and avoid any temptation to "slag her off"

 

go back and doubly doubly doubly check your bank accounts - if necessary go to your bank personally and ask them to check again

 

i admit to having a continuing uneasy feeling about your version of how much money she paid into your account

 

her sols should have realised by now that there is a £2000 discrepancy (or they are very very stupid) so that makes me wonder

 

you MUST personally visit the bank and sort this out in your own mind and not just rely on phone calls

 

I will check again. how to ask the court for her to comply? what order? should I not wait untill the disclosure of documents has happened as they should be in there?

[debbbbsy]

how to ask the court for her to comply?

 

An 'Unless Order'.

 

Laid out in the same format as a Draft Order Directions. And giving the claimant a specified amount of time to respond. It is done through the courts.

[diddydicky]

yes, do it as per 5/ in the order if not disclosed

 

what hold has the claimant got on your ex?

[indianamachno]

Been advised i should have made a part 36 offer because now I am unlikely to be awarded costs at all because of admitting that i owe part of the money. so I am going to get stung for my costs and hers if she part wins which is highly likely.

[Bigdebtor]

Indiana

 

Where/when did you admit still owing anything? Who told you this about costs? Why do you think she can "part win"?

 

Is someone getting to you?

 

BD

[Cardiff Devil]

You have never denied owing her money, it's just her claimed costs seem to vary massively from the true amounts owed.

 

I can't see how she is likely to win when she hasn't even submitted any evidence yet.

[indianamachno]

No BD

But basically my defence and denial of owing any money what so ever was not the best move because I clearly have

[Cardiff Devil]

Even so, she will still need to produce documentary evidence that she paid you £23,000 plus £1214 for "misc items".

[indianamachno]

No but there has been some bad advise given and the fact is by denying everything that is owed even though there is money owing the court will not award me costs because the claim will be part won by the claiment. My defence should have been that i did recieve 21,000 and there is 2,500 owing but deny the amount claimed and then if i had of won that part i denied imight have been awarded costs but as it stands now even if she can not produce evidence of 23,000 being paid in it will still show a balance owing to her which i will most probable get stung for her and my costs because the claim has been totally denied. and defended as such.

 

Indi

[pt2537]

The general rule on costs is costs follow the event,

 

the party who wins has his costs paid by the loser.

 

Fleming v Chief Constable of Sussex p1204 White Book confirms that where a party succeeds with part of its pleaded case (in Fleming it was 2/3) then costs follow the event, and there is no reason to depart from the basic rule.

 

Furthermore there is no automatic rule that requiring reduction of a successful party's costs if he lost on one or more issues – Kidsons v Lloyds Underwriter

 

There are many other costs authorities which say that where a claimant succeeds with part of its case it is entitled to costs of those parts

 

In Harrison vs Link the Claimant succeeded on many parts of his claim and failed on 2 and was awarded a percentage of his costs taking into account the parts which suffered defeat

 

The point is that the Claimant will succeed here on the £2000 part as this is money due and owing, therefore even if it fails on the other parts, it will still be entitled to those costs of that part it seems looking at the costs authorities.

 

If the £2k had been admitted then it is a different story as the only fight here would be over the difference and therefore if the Claimant failed it would be liable in costs

 

That is what all the case reference materials seem to say

[Bigdebtor]

Indiana

 

From memory I thought you had "neither admitted nor denied" any debt. Surely what you were denying was the specific charge of owing £23k plus £1214 - not denying you owed ANYTHING at all? Also you said much earlier that you were to be given the opportunity to "work off" much of the remaining debt - and had in fact done so to a large extent before getting sacked? Arguably getting sacked took away from you the opportunity to work it off - and you never clarified any regular payments (I believe you said you could just "pay when you can"?) before the claimant got stroppy and went legal after a much inflated amount?

 

For the record I think all of us who are not lawyers made clear you should seek qualified legal advice - especially in appearing in court.

 

I don't like the accustation that the risk of at least partial costs is any fault of me or any fellow CAGGER. I think you should engage a lawyer - and have thought so for a long time which reference to earlier threads will show. I havealso said this in pm's to you as I think if you go to Court on your own then you will panic and screw things up -even although IMHO you have a very strong case if properly and coolly presented.

 

Good luck!

 

BD

[Bigdebtor]

Been advised i should have made a part 36 offer because now I am unlikely to be awarded costs at all because of admitting that i owe part of the money. so I am going to get stung for my costs and hers if she part wins which is highly likely.

 

Is it too late to make this offer based on what you DO OWE - and can you afford to pay it now?

[indianamachno]

What I am trying to point out here BD is not accusing anyone of anything but to make a point that people seeking advise on here or any other forum should be very aware of the advise that they are being given even if it is with real convicition. Is to take it at face value and not as i have done which has resulted in big errors with regards to my responces and defence that was sent to court which in turn will probably ... not for definate i might add lose me what chance i might have had of defended it without running into huge costs.

 

Regards Indi