Making a claim against an ex-friend on sum of unpaid 'loan' - ** WON **

[Mike_hawk]

Hi Wrecked

 

I'd agree with UB, and it really is the type of case that dj's don't try to hide their disinterest in

 

Have you approached the defendant to sound him out on the possibility of compromising the case with a Tomlin order?

 

If he has another way out of this on agreed terms he may accept an offer.

[wrecked]

hi Uncle B - thanks i guess thats the case here.

 

Hi Mike -

no i have not made any approaches to the Defendant. I looked up the Tomlin order which you pointed out. I dont think he would be agreeable to any kind of settlement and I certainly would not enter into any agreement with him as i know he will not honour anything. The only way i can get any repayment from him is if i get judgement.

 

Now that he had personally and directly told the Judge he did not keep a record and thought that i did......... when the hearing is heard - surely this admission will be taken into account - Or am i totally incorrect?

 

All the best

Wrecked

[Mike_hawk]

Hi Wrecked

 

I wouldn't discount the effect of a Tomlin order, it creates a contract between parties which can be enforced.

 

It should fall to whoever's evidence appears the more credible, how the judge will decide what a proportionate and suitable judgment would be is anyone's guess

[wrecked]

Hi Mike

thanks for yr message.

The defendant made an admission in court - and it must be recorded somewhere - i phoned the court and they said i can apply for a transcript (but I have to pay for it).

I agree with you and of course thats clear - but surely as he made this admission, it must be pretty clear now.

 

am I wrong?

Regards

Wrecked

[Mike_hawk]

Depends on the content of the admission I guess, although I'd think if it carried any weight the judge would have picked up on it. Although it appears from your brief synopsis of the hearing he had more questions for the other side than you.

 

Transcripts, very expensive and can take a fair few weeks to come through........ I'd give some thought into how much money you are prepared to invest in this.

[wrecked]

Hi Mike

 

Thanks for your fast reply.

Yes i agree - it does depend on the content of the admission. here it is verbatum

Judge to Defendant : did you keep a record of your repayments

reply : No I did not. I thought he did. (He... being me)

 

Thats pretty clear. So whats the issue?? (I thought)

 

Thats why i was so perplexed as to why it had to be adjourned. I even pleaded that we continue, and to forget about the witnesses.

But the Judge would not have it. He then told/advised the Defendant to put a schedule of repayment together.

So... how can he put a schedule of repayment together if he has no record?

 

I know you guys are busy helping other people and this is dragging on. i want to move on and be ready for the hearing. Can you suggest how I should tackle this?

He admitted he did not keep a record. then he went on further to say that he thought I did.

 

on my side - there was no repayment and i therefore certainly did not keep a record of the repayment.

 

Did the Judge do this to cut to the chase so he can pick it up at the next hearing?

i guess the judge had no alternative but to adjourn the case as he admitted that he had not read everything.

what if a different Judge hears this case when it comes up next?

 

i believe this is my chance and it all depends on how i use this admission - and thats why i am asking if you experts can phrase/summarise my position this for me.

 

many thanks/Wrecked.

[Mike_hawk]

Hi wrecked

 

Did the judge mention any order following adjournment in connection with schedule of repayment?

[wrecked]

Hi Mike

 

No - only that the hearing will be for 3 hours and he recommended that the Defendant put together a schedule of repayment.

 

thanks/Wrecked

[Mike_hawk]

Hi Wrecked

 

You should receive something from the court, if only to confirm the new date.

 

Seems such a mess;

 

There's an admission from him that he borrowed the money so that's half your case out of the way, its not without merit and [from reading your posts] the judge appears to feel you are a credible witness........... but then the burden is on you to prove he hasn't repaid, so you're back to witness evidence rather than documentary evidence as its pretty much all cash transactions, how to prove a negative?

 

From his side he claims to have repaid the balance through employment deductions and is counter claiming for unpaid work in addition. The Judge on the other hand has proposed that he files a schedule of repayment...... did the judge have doubts regarding the defendant?

 

There may still be an order dropping on your doormat, unless you're party to the hearing its really hard to gauge what was on the judges mind.

 

I think it would be sensible to start from the beginning and draft yourself a witness statement including reference to any/all events and any scrap of documentary evidence you can lay your hands on. His counter claim is probably going to fail but that doesn't necessarily mean that you'll win either.

 

Perhaps if you could post your witness statement [less identifiers] we may be able to assist for the next date..... best to post as an attachment if you can as they can only be viewed by registered users on here, older version 97-03.doc format is usually fine for uploading if you use word.

[wrecked]

Hi Mike

Thanks so much for your fast response.May be its my own paranoia. I'll do as you suggest and write a fresh witness statement taking events of the recent hearing into account.

All the best/Wrecked.

[wrecked]

Hi Mike and everyone,

 

Sorry i hv been off line for a couple of months but there was really nothing new to report. The hearing date is set at 18Feb.

 

(1) The Defendant did not submit any new witness statements or provide a schedule of repayments as the Judge had instructed him to do

(2) I did not receive anything from him 2 weeks before the 18th.

(3) so does it mean that anything he submits this week would be out of time.

(4) Could he submit this schedule of payments to the court and not me? he was specifically advised by the Judge to submit his schedule of repayments and Copy me.

(5) I had done as Mike had recommended. I went through his Witness statement and then prepared a fresh statement and submitted this on 04 Feb.

(6) he made many comments in his statement some of which were irrelevant but never the less, were untrue and i listed these and proved the inaccuracies with supporting documents and statements.

(7) as it turned out, virtually every comment he made in his statement was inaccurate.

(8) The key aspect in his defense regarding his repayment was, he actually told the judge the following:

a. Prior to the loan, I paid him weekly, a set amount by bank transfer and £ 50 cash in hand.

b. During the period of his repayment, I continued to pay him this fixed amount by Bank transfer but kept the Cash in hand.

he claimed that his repayment was that I kept the cash in hand part.

c. when the Judge asked him during the hearing if he kept a record, he said No - and that he thought that i was keeping a record.

d. in any event, i was able to prove that during the loan repayment period, i did not make any bank transfers as he claimed but paid him up front in cash

as i was having to travel abroad extensively and frequently during that time and i was able to prove this with the immigration stamps on my passports and cash withdrawals.

e. his counter claim was for specific work he said he carried out in 2010 and i was able to prove that he carried out this work in 2008 and that he had been paid.

 

i believe i have been able to disprove his every comment - So i am now waiting for the 18th

 

To date - i have not received any schedules from him. If i do receive anything now, will these be considered?

 

regards

Wrecked.

[wrecked]

Hi Everyone

 

I received the followings from the other side.

 

a. He wrote to me dated 05 Feb., objecting to my submission of my additional witness statement clarifying my position and all the inaccuracies he listed in his statement

he said that I did not seek leave from the Court - I do not believe I need to seek leave from the Court to submit a witness statement before a hearing.

b. He wrote to the court requesting it to disregard my statement

c. having told the Judge at the last hearing that he never kept a record of his alleged repayments to me, and that he thought that I did, he has now submitted a witness statement confirming that he kept a record of his repayments to me. He wrote the the Court on 30 Jan but did not send me a copy.

d. I only received his letter to the court and his second witness statement today as attachments to his objection to my submission of my 2nd witness statement - which i did as per Mikes Suggestion.

 

Its my understanding that he is to submit statements 14 days prior to the hearing date and he must copy the same to me. The copy statements he sent me were not signed nor dated. But more specifically, he never sent me a copy of his letter to court dated 30Jan - until i submitted my second witness statement,.

 

I shall be grateful if you will kindly let me have your thoughts on this.

 

many thanks/Wrecked.

[wrecked]

Hi Everyone

 

I really would be interested to hear your views on the case

 

As far as i am aware, i am fully entitled to submit a second witness statement before a hearing - please correct me if i am wrong.

I went through his alleged schedule of repayments and i noticed that he got the months and the year all wrong.

 

The loan was made in Nov 2006 and in his first statement he claimed to have repaid it over the following year, with the final repayment on 03/09/2007.

But, his witness statement and schedule of repayments showed that he was repaying through 2006 with the final repayment on 02/09/2006.

 

This really shows the fictional side of his claims. However. would/could this be accepted by the Judge as an honest mistake on the year? furthermore,

should he not provide proof of his repayments?

 

look forward to yr comments/Wrecked

[wrecked]

HI

 

I did some research last night into the small hours and it would appear that i was correct. i can submit a second witness statement to a hearing providing i submit it in good time (which i think is normally 14 days from hearing date) I can even submit an amended statement.. but i have to title it "Supplemental Witness Statement"

 

see CAG link http://www.consumeractiongroup.co.uk/forum/showthread.php?254386-Amending-a-Witness-Statement

 

I titled mine "Supplementary Witness Statement" and i think thats ok as I had done it in the past and in any event both words are adjectives and mean the same.

 

but i would welcome your comments

 

Best/Wrecked.

[Mike_hawk]

Hi wrecked, broke another laptop.... Pain in the b*m posting on a mobile! You'll do fine, you're in the SCT and acting as your own witness. Can't pretend to know how the case will pan out but any additional first party witness evidence is OK to file pre trial.

[wrecked]

Hey Mike

 

Great to hear from you. Phone or not, glad you are still around. If you need help with yr PC/Laptop, let me know i can help as there are some basic things you should do unless its a hardware fault.

 

Regarding my case things seemed to be going well but a couple of my witnesses have dropped out as they cannot attend due to their work commitments. I only found out tonight

and theres not a lot I can do in that regard now.

 

Whats SCT?

 

Can i ask questions to the Defendant at the hearing? - he is not represented and neither am I.

I just want to clarify regarding his very latest witness statement

 

a. he did not send me a copy at the same time as he sent the court. he held back sending to me.

b. i noticed that there was a stamp on the envelope but the envelope had been re-opened and a sellotape had been put on it to close it.

c. it seems that originally, he inserted the a copy of his statement for Court dated 30Jan,in that envelope to send to me and put a stamp on the envelope but he did not post it to me.

d. on receipt of my supplementary statement on 04feb, he then wrote his objections to the court and opened the envelope, inserted his

letter dated 05 Feb to court, sellotaped the envelope shut and then hand delivered it to my house on 14 Feb.

e. that can be the only explanation why there was no post mark on the stamp, and the letters dated 30Jan and 05 Feb were together in the same envelope.

f. Again, I only received these docs on 14 feb which is significantly less than the 14 days required.

 

Should I deal with this and bring it to the judge's attention? I feel I should. But whats the best way of putting it? had he sent it to me on 30Jan, I could have submitted my response to his second statement.

He acted with specific intention - to prevent me from submitting a reply to his second statement.

 

g. My last question is - he submitted a schedule of repayments without attaching any proof. Surely he must provide proof. I must be within my rights to ask for proof.

 

 

All the best/Wrecked.

[Mike_hawk]

Hey Mike

 

Great to hear from you. Phone or not, glad you are still around. If you need help with yr PC/Laptop, let me know i can help as there are some basic things you should do unless its a hardware fault.

 

Regarding my case things seemed to be going well but a couple of my witnesses have dropped out as they cannot attend due to their work commitments. I only found out tonight

and theres not a lot I can do in that regard now.

 

Whats SCT?

 

Can i ask questions to the Defendant at the hearing? - he is not represented and neither am I.

I just want to clarify regarding his very latest witness statement

 

a. he did not send me a copy at the same time as he sent the court. he held back sending to me.

b. i noticed that there was a stamp on the envelope but the envelope had been re-opened and a sellotape had been put on it to close it.

c. it seems that originally, he inserted the a copy of his statement for Court dated 30Jan,in that envelope to send to me and put a stamp on the envelope but he did not post it to me.

d. on receipt of my supplementary statement on 04feb, he then wrote his objections to the court and opened the envelope, inserted his

letter dated 05 Feb to court, sellotaped the envelope shut and then hand delivered it to my house on 14 Feb.

e. that can be the only explanation why there was no post mark on the stamp, and the letters dated 30Jan and 05 Feb were together in the same envelope.

f. Again, I only received these docs on 14 feb which is significantly less than the 14 days required.

 

Should I deal with this and bring it to the judge's attention? I feel I should. But whats the best way of putting it? had he sent it to me on 30Jan, I could have submitted my response to his second statement.

He acted with specific intention - to prevent me from submitting a reply to his second statement.

 

g. My last question is - he submitted a schedule of repayments without attaching any proof. Surely he must provide proof. I must be within my rights to ask for proof.

 

 

All the best/Wrecked.

Hi wrecked, laptop got launched up the garden, think its beyond saving, lol.

 

Sct small claims track, limited disclosure and evidence. A case like yours it will fall to the judge to decide on the credibility of the witnesses and a fair remedy.

 

You can ask to question the witness but the judge would normally identify any questionable statements and direct the hearing accordingly.

 

If you believe the other side filed or served evidence out of time you could draft a note to the court for filing. If nothing else it'll at the top of the case notes when the dj reads through the file.

[wrecked]

Hi Mike

 

thanks for your fast reply.

 

i am preparing stuff to ask the defendant as, well, basically everything he said had been lies.

I will try and do it in such a way so its not confrontational but more for clarification.

And regarding the intentional delayed service of statement, i will do exactly as u suggested

but the hearing is Monday so i got to get in early and submit the letter - or should I just hand the letter over to the judge in court.??

(and copy the Defendant at the same time of course)

 

thanks so much

all the best/Wrecked.

[Mike_hawk]

Hi wrecked

 

You can hand a brief w/s to the usher on the day outlining your concerns re service of docs. If it transpires he was late filing as well it may be useful to consider asking the dj to strike out his evidence at the hearing. Only you will know whether to ask, you'll have to weigh up the judges comments and the atmosphere in the room on the day.

 

I'd suggest not diving straight in, some dj's have been known to view it as an lip attempting to direct them and they don't like it.

[wrecked]

Hi Mike

 

thank you so much for your message. The Defendant was not late in filing his latest W/S to the court. only he did not send me the copy at the same time. He only sent me the copy of his latest W/S after he received my latest W/S. his latest statement which he submitted to the court, containing his schedule of repayments was dated 30/01/2013. His letter objecting to my submission of my W/S was dated 05/02/2013 and I received both documents in the same envelope on 14/02/2013.

 

I will just write a letter to the court and bring this to their attention but i dont think anything will come of it.

 

Finally - having admitted to the judge at the last hearing that he had no record of his repayments, the Defendant, in his latest witness statement claimed to have kept a record of his repayments and produced a schedule of repayments and signed a statement of truth. However, every date of his schedule of alleged repayments were dated one year earlier!!!!.

 

So it would appear that he has committed perjury.

 

I dont really know how the DJ will view this

 

will let you know tmrw.

 

all the best/Wrecked.

[stu007]

Hi Wrecked

 

Just read your thread with interest and the excellent advice given.

 

Good Luck and hope you get a good outcome.

[wrecked]

Hi Mike and everyone

 

Thanks for all the advice and sticking with me. i am really glad to let you all know that i won the case.

For the benefit of others - i want to advise that you cannot submit a second witness statement unless it was directed by a judge at a previous hearing or you made a request and its accepted.

my supplementary witness statement was not accepted. Similarly this particular judge would not accept the W/S submitted by the other side. this was a mystery to me as he was directed by the judge at the previous hearing to submit a further witness statement.

 

Thanks Stu007 and in particular, thanks very much Mike_Hawk and Andyorch for your advise.

 

All the best/Wrecked.

[honeybee13]

Hello and thank you for letting us know. Well done to you and everyone who's helped.

 

I'll amend your thread title.

 

My best, HB

[Mike_hawk]

Hi wrecked

 

Well done on a good result.

[AndyOrch]

Delighted Wrecked.

 

Excellent result.

 

Regards

 

Andy