wife making claim for unpaid working hours - defendant Affidavit Statement of truth?? **SUCCESSFUL OUTCOME**

[Cuthbun]

Hello all

 

I’ll keep this as brief as I can

 

my wife is making a small claim through the County Court for unpaid working hours.

The court hearing is set for Wed March 7 and today we received a copy of an “Affidavit of Statement of Facts” sworn by the defendant and countersigned by their solicitor.

 

The letter starts with a paragraph of bullet points under the heading "Maxims of Law" saying that an unrebutted affidavit stands as truth in commerce, equity, admiralty, Lex Mercatoria and public policy.

 

There is a solemn declaration by the defendant consisting of 4 bullet pointed statements (none of which are true and the defendant has no evidence to suggest that they are) with a 5th bullet point stating “Mrs X has 5 days in which to rebut this affidavit and prove it incorrect. Failure to do so will be taken that Mrs X is conspiring to obtain monies from a XXXX that she has not paid for”.

 

This, along with all the other threats and intimidation, has been timed at the last minute to cause unease and distress and an attempt to influence today’s mediation session.

 

On first impression I dismissed this as rubbish but I do have worries that this is a dirty trick at the last minute and that an unrebutted affidavit will stand in court as truth.

 

Can anyone comment on the legality of this and whether or not this can be submitted in the county court as truth if unrebutted?

 

I should add that under the court’s instructions, each party shall deliver to every other party and to the court, copies of all documents on which he intends to rely on at the hearing no later than 14 days before the hearing. The affidavit is dated 24 Feb (12 days before hearing) and we received it today (9 days).

 

Any advice greatly appreciated.

 

Thanks,

 

C

[rebel11]

Hi cuth

 

Welcome to CAG

 

The guys will be happy to advise as soon as they are available.

 

Thread has been moved to the correct forum.

[citizenB]

What date was this affidavit filed in court ? I would say that you could still rebut it if you act swiftly, keep the envelope that it came in as well.

 

You should bring the date of the affidavit to the courts attention and the date of posting as well.

 

I will try and find someone who has more knowledge of this for you.

[Ganymede]

Hi,

 

I can't see a Court not allowing the statement just because it is a few days late so you need to counter it.

 

The statement is signed with a statement of truth so will be taken as the Defendant's true version of events. After all it is contempt of Court to sign a statement of truth knowing that the information is false. Contempt carries a maximum sentence of two years in prison.

[andydd]

Never heard of it..I thought in a small claims track all that is required is a signed statement of truth,

 

Yes, it is for the Claimant to prove the facts, (I dont think its true to say that tyhe Claimant must prove that the Defendants points are untrue and if they dont prove this they must be true).

 

Was it handed into the court on time ?. Im always tempted to check with the court and visit on the day after it was due, if the court hasnt got it on time then apply for default judgement.

 

 

A quick Google doesnt show many resuilts, I found this > http://www.whatdotheyknow.com/request/legal_maxims_2 cant say i fully understand it !

 

And the following > http://forum.davidicke.com/archive/index.php/t-127582.html (but from a david Icke forum and he's as mad as a badger )

 

 

"Judicial Proceedings

 

Affidavits serve as evidence in civil actions and criminal prosecutions in certain instances. They are considered a very weak type of evidence because they are not taken in court, and the affiant is not subject to cross-examination. Their use is usually restricted to times when no better evidence can be offered. If a witness who has made an affidavit is not available to testify at a trial, his or her affidavit may be admitted as evidence. If the witness is present, his or her affidavit is inadmissible except when used to impeach the witness's testimony, or to help the witness with past recollection of facts."

 

Although they seem rather odd, It would appear there is some legality to the Affidavit, so maybe best to quickly reply, send a copy to Defendant and Court. You could always visit your local court if its near and ask, Ive found them to be quite helpful.

 

Andy

Edited February 27, 2012 by andydd

[asokn]

Obviously I have no idea who the solicitor was that drafted that document but it is ludicrous and totally inappropriate for a small claim.

 

It will, as Ganymede says, be taken as a witness statement but nothing more. Since the introduction of the CPR affidavits have all but disappeared and been replaced by witness statements in most proceedings.

 

Now, let's have a look at the document itself;

 

1) Countersigned by the solicitor is unnecessary and inappropriate. It needs to be signed by the witness and, if the solicitor has no knowledge of the facts within should not be trying to bolster the gravity of the statement by countersigning it. If the statement contains evidence of the solicitor s/he should do a separate witness statement rather than piggy back onto another. I must admit I would be tempted to report the solicitor to the SRA unless there's a good reason for countersigning.

 

2) the bizarre bulletpoint giving you five days to rebut the contents of the statement is meaningless and you will not be taken to admit the contents. Again, a totally inappropriate thing for a professionally drafted document to say.

 

3) the maxims of law bit is quite fun and can basically be boiled down to "this is my evidence for the case". It means nothing more than that.

 

4) as for the late filing, it's a fairly minor omission and I would not waste too much time on it.

[andydd]

Yes thats what a thought, seems rather odd a solicitor would follow this route instead of the 'normal' defence with signed statement of case.

 

Just found another CAG thread (partially) dealing with this > http://www.consumeractiongroup.co.uk/forum/showthread.php?175107-What-s-the-difference-between-a-Statutory-Declaration-and-an-Affidavit

 

A site on affidivat's > http://www.inbrief.co.uk/civil-court/affidavits.htm I too dont believe they really have any relevance for a claim like thisa on the small track and unmder the new CPR rules.

 

Andy

[asokn]

If you've been given directions for the final hearing then a defence has presumably already been filed. What they should have produced is a witness statement.

[Cuthbun]

Thanks all for your input and having done some research myself, this affidavit would appear to be meaningless twaddle and designed to intimidate my wife into withdrawing the claim. I cannot think for one minute any solicitor would put their name on this document, in particular the statement that implies that “failure to respond will be taken as proof of conspiracy to defraud”. Those bullet pointed statements have already been refuted in her own statement of facts already submitted to the court.

 

The letter was addressed in a shabby handwritten scrawl and it's possible this affidavit has been concocted by the defendant and embossed with a made up solicitors stamp. I'm contacting the senior partner tomorrow asking for a reasonable explanation over this or I'll refer the matter to the Legal Ombudsman.

 

Cheers all

[andydd]

Dont forget to draw the courts attention to it and include a copy in your court bundle...a judge may have something to say about it.

 

Keep us informed how it turns out..sounds intruiging. I too have been at the sharp end of similar pratices from a solicitor.

 

Andy

[The Mould]

Good morning Cuthbun

 

As to Affidavits, see Civil Procedure Rule Part 32 (CPR 32) and the Part 32 Practice Direction (PD32), in particular 32PD rr.4, 5 & 25.

 

Study the above Rules, if the said Affidavit does not comply with the requirements of Practice Direction 32, then under CPR Part 3 r.3.4 & PD 32 r.25 the said Affidavit is liable to be struck out and ought to be struck out, if this is the case, file an Application notice (form N244) requesting strike out of said Affidavit under the said CPR (without hearing) and serve a copy of the Application upon the other party (his/her solicitor).

 

Kind regards

 

The Mould

[Cuthbun]

As requested by Andy,

I'm letting you all know how the case turned out.

 

Firstly not only did my wife win the case but the defendant got slaughtered and humiliated.

He thought his ace card was this nonsensical “Affidavit Statement of Truth” that he got a solicitor to endorse.

 

The idiot thought it would trump any evidence we gave because we didn’t rebut it. Apart from Affidavits not being allowed  in a civil court, it was complete and utter rubbish and had been lifted from the Internet. It comes from US law and the judge completely derided it.

 

I actually handed it to the Usher on arrival at court and asked her to pass it on to the judge. It was a good job we did as he'd apparently submitted it to the court as evidence but because he didn't put the case claim number with it, it never went through. The whole thing spectacularly back fired on him so if anyone should receive something similar then do the same as us, make sure the judge sees it.

 

As an aside, one of the many things he did wrong throughout the hearing was twice he interrupted evidence I was giving by putting his hand up and saying “I object”. He didn’t learn the first time when the judge said “You do not object, you sit there and listen”. I've never seen such an oaf.

 

Cheers,

C

[asokn]

Any costs?

[Cuthbun]

Not against us. On top of the original claim, the defendant has been ordered to pay our travelling and parking expenses, £25 fee to submit the claim and £25 hearing fee, all to be paid within 14 days.

[asokn]

Well, a very good result then!

[Cuthbun]

Yes a good result indeed but now comes the hard part, getting the defendant to pay up. Knowing him he will not comply with the courts's instructions to pay. It then comes down to which option to use to enforce and I don't think any of them will force him to pay. Remember the claim is against a company and not an indivudual. Bailiffs might not be good for his business but I doubt very much if they could take anything of any real value.

[andydd]

Excellent news.

 

My first court experience was similar, I was suing my landlord for overcharged rent and went back a long way past the usual 6 years thanks to the S32 clause of limitation act, anyway my landlord has a solicitor but represented himself in court and made a fool of himself...My original claim was only £450 but thanks to 8% interest came away with over a grand.

 

"I Object" indeed, it sounds as your wifes employer has been watching too many US Court shows !....In cases like this its a pity its a small claim and you cant get costs, although you'd be limited to £18 an hour. Did you ask for costs ?. Its always worth a try, especially if the other sides acts like yours !

[citizenB]

Excellent news - I will amend your title to reflect your success. What a hoot.. lifted from a US website.. you couldnt make it up, could you ?

 

Well done