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

[wrecked]

hi Mike,

thanks for your fast reply and link. greatly appreciated. yes i'll post it on line for u to have a scrutiny. yes I agree with you - any reasonable person would hv employment contract. he was not employed by me - i did not employ him as he refused my offer of employment. i paid for jobs he did on a daily rate basis. i told him that i wanted him to have an employment contract and that I wanted to put him through the books in my company. he refused. He said that he used to work for his uncle and that was terrible. He preferred to be self employed and did not want to work for anyone ever again. He gave me a daily rate and the agreement was that he gets paid as and when he worked. and he always wanted to be paid in cash. The thing was Mike, he did to a good job and i could leave it to him. He always cleaned up after himself. it was only after he borrowed the money from me that things went bad. But as i said he got paid for when he worked and so to a large extent I did have control. and it was not a big deal when i stopped using his services. however, my health deteriorated in the last two years and i was out of work and i needed the loan back.

 

the irony is - his defense is based on my suggestion some time shortly after he borrowed the money. I proposed to him that i deduct some money out of the payment he was due for the work done so the loan could be repaid over time - he declined on the basis that he needed every penny he can earn - he said needed the money really badly and that he would repay me when he got paid for jobs he had done for his mother in law or his uncle.

 

thanks again

Wrecked.

[Mike_hawk]

I believe it's going to be very difficult for you to prove anything absent documentation, hence the reason for putting the other sides statement under the spotlight.

[wrecked]

hi Mike,

 

thanks for your message - i have done as you suggested. pl see the draft below

All the best/Wrecked.

 

Dear Sir,

 

Re: (My name) v (Defendants name) Case No:

CPR 31.14 Request

 

 

Please treat this letter as my request made under CPR 31.14 for the disclosure and the production of a verified and legible copy of any documents or other evidence you intend to produce at court to substantiate your claim that

 

1) you have paid the debt you owe me(£ XXXX.00)

2) I owe you £ YYYY.00 as per your counter claim

3) you were under my employ (P45, P60 and self assessment)

 

You should ensure compliance with your CPR 31 duties and ensure that the document(s) I have requested are copied to and received by me within 7 days of receiving this letter. Your CPR 31 duties extend to making a reasonable and proportionate search for the originals of the documents I have requested, the better for you to be able to verify the document's authenticity and to provide me with a legible copy. Further, where I have requested a copy of a document, the original of which is now in the possession of another person, you will have a right to possession of that document if you have mentioned it in your case. You must take immediate steps to recover and preserve it for the purpose of this case.

 

Where I have mentioned a document and there is in your possession more than one version of that same document owing to a modification, obliteration or other marking or feature, each version will be a separate document and you must provide a copy of each version of it to me. Your obligations extend to making a reasonable and proportionate search for any version(s) to include an obligation to recover and preserve such version(s) which are now in the possession of a third party.

 

In accordance with CPR 31.15© I undertake to be responsible for your reasonable copying costs incurred in complying with this CPR 31.14 request.

 

If you require more time in which to comply with this request you must tell me in writing. You must tell me before the time for compliance with this request has expired. In telling me you require more time you must tell me what steps you have taken and propose to take in order to comply with this request and also state a date by when you will comply with this request. In addition your statement must be accompanied with a statement that you agree to an extension of the time for me to file my case. Your extension of time must be not less than 14 days from the date when you say you will have complied with my request.

 

If you are unable to comply with this request and believe that you will never be able to comply with this request you must tell me in writing.

 

Please note that if you should fail to comply with this request, fail to request more time or fail to agree to an extension of time for the filing of my defence, I will make an application to the court for an order that the proceedings be struck out or stayed for non-compliance and a summary costs order.

 

I do hope this will not be necessary and look forward to hearing from you.

[wrecked]

Hi Mike,

i guess as per CPR 31 - he is obliged to produce any and all documentation. And, i guess he is entitled to make the same request to me.

document wise - i have already submitted the loan agreement, and a couple of witness statements I shall be submitting additional witness statements from a couple of other witnesses.

 

Am I correct in thinking that it is not necessary for me to disclose these witness statements till 7 days prior to the hearing ?

also, I believe I am entitled to make a fresh witness statement - supplementary to the one I have already submitted. is that correct?

 

thank you/Wrecked.

[wrecked]

Hi Mike

having submitted the posts as above, i went to the library and checked on CPR Rules and Practice Directions. Under admissions in CPR 14, he had admitted to the debt, and there are practice directions for this on repayment. However, he claimed to have repaid this debt and there are no practice directions as to whether or not he should substantiate this claim and what evidence he is to provide. Do you know of any practice directions in relation to the defence and relevant evidence?

thanks/Wrecked

[Mike_hawk]

Hi Wrecked

 

Any sign of the order from the court yet?

 

Your part 31 request should be for specific documents mentioned either in their defence, counter claim or witness evidence. Whilst [in your case] pretty much if not all the other sides position is one of hearsay [hence no docs] that doesn't stop you asking and using same to build a case against.

 

Please provide the following documents:

1. Copy P45 for the period xx date to xx date

2. Copy P60 for the period xx date to xx date

3. Copy self assessment return for the period xx date to xx date

4. Copies of all receipts of payment in crediting of loan xx

5. Copy contract of employment for the period xx date to xx date

...... anything else you can think of to request.

 

There is no requirement for the other side to supply any of the above but...... if you've asked and they deny relief you have to ask yourself what the judge will make of their statement and why they are unwilling or unable to provide any evidence in support.

 

 

Additional witnesses...... were they disclosed at AQ? If not you'll need to apply for relief to bring additional witnesses in the case.

 

You can draft a witness statement for the hearing, copies to be filed with the court and served 7 days prior to hearing date.

[wrecked]

Hi Mike

thanks for such a fast response. i note your point and contribution and will action accordingly.

Regarding additional witnesses, none were disclosed at AQ, however two witness statements were submitted in support of the application for Summary judgement.

 

At the hearing for the application for Summary judgement the judge did ask how many witnesses i shall be calling on and I said 3. But since then, i think i will have 5 to 6 witness statements. So should I apply to include these? is there a direction for this?

 

what would be helpful also will be if i can find some directions relating to the evidence which defence should submit with his defence and any old cases similar to mine. Can you offer any advice on how I can research these?

 

thanks again Mike - you've been extremely helpful and i really appreciate your help.

 

Regards/Wrecked.

[Mike_hawk]

Perhaps a call to the court may assist with the inclusion of additional witness evidence. Really depends on whether the judge recorded the number and included within the order subsequent to the s/j hearing. You'd like to think they'd got the thing typed up for service by now.

 

The other sides case will be much the same of yours, he'll need to show on the balance of probability that his statement has greater veracity than yours.

 

Its always difficult when there's little or no documentary evidence, just falls to a question of who's case has the greater substance and what the court decides is a satisfactory outcome.

[wrecked]

HI Mike - Theres one thing that just transpired. I found a letter from the other party with his witness statement dated 17 September. It is marked by hand and post. There was no stamp on the envelope so it appeared that he hand delivered it to my house. I was away from home on the days 13 - 19 September and I returned for the hearing - which was 20 September. I assume he must have delivered this both to me and the the court on the same day. My question is would the court consider his witness statement - as it was submitted three days before the hearing date - most definitely less than the required seven days.

 

(just to explain to you I did not get this particular letter until my daughter gave it to me today as she took it with her by mistake - she had been on holiday two weeks before and there were a pile of post waiting for her.. and of course, this letter got mixed up with her mail.... then she meant to give it to me but forgot .... and i just got it today)

 

His witness statement did not come up at the hearing - certainly not from my side as i did not know it existed. The judge also did not mention anything at the hearing other than he could not accept my application for Summary Judgement.

 

Would this witness statement be considered for the next hearing - which is 25 Oct.?

 

How do I deal with it -

 

a. Do I comment on it - if so it would appear to the court that I am accepting it ?

b. Do I apply to the court to dismiss it?

c. If I make such an application he only has to re-submit for the next hearing.

d. Should i just ignore it, note what he had commented and cover the issues he raised in my new witness statement?

 

I am preparing the part 13 request and making relevant adjustments.

 

Its really difficult to call the court as its always engaged. I will write to them but keep trying to call.

 

Finally - i still hv not received any directions from the S/J hearing

 

Best/Wrecked.

[wrecked]

HI Mike

 

Theres one thing that just transpired. I found a letter from the other party with his witness statement dated 17 September. It is marked by hand and post. There was no stamp on the envelope so it appeared that he hand delivered it to my house. I was away from home on the days 13 - 19 September and I returned for the hearing - which was 20 September. I assume he must have delivered a copy to me and another to the court on the same day.

 

My question is would the court consider/accept his late witness statement - as it was submitted three days before the hearing date - most definitely less than the required seven days.

 

(just to explain to you I did not get this particular letter until my daughter gave it to me today as she took it with her by mistake - she had been on holiday two weeks before and there were a pile of post waiting for her.. and of course, this letter got mixed up with her mail.... then she meant to give it to me but forgot .... and i just got it today)

 

His witness statement did not come up at the hearing - certainly not from my side as i did not know it existed. The judge also did not mention anything at the hearing other than he could not accept my application for Summary Judgement.

 

Would this witness statement be considered for the next hearing - which is 25 Oct.?

 

How do I deal with it ....?

 

a. Do I comment on it - if so it would appear to the court that I am accepting it ?

b. Do I apply to the court to dismiss it?

c. If I make such an application he only has to re-submit for the next hearing.

d. Should i just ignore it, note what he had commented and cover the issues he raised in my new witness statement?

 

I am preparing the part 13 request and making relevant adjustments.

 

Its really difficult to call the court as its always engaged. I will write to them but keep trying to call.

 

Finally - i still hv not received any directions from the S/J hearing

 

Best/Wrecked.

[Mike_hawk]

Hi Wrecked

 

The time for the w/s has passed, it wouldn't have been admissable anyway due to late service.

 

I'm sure he'll refer to the content at trial and within a revised w/s

 

I'd keep trying, they can read the content of the order to you over the phone if necessary...... where is the case being heard?

[wrecked]

Hi Mike

 

Thanks for yr fast reply - its at Willesden County Court. Its really difficult to get through to them on the phone. Practically impossible. but i'll give it a go on Monday anyway.

 

And to make it worse, i cannot go and ask them personally as they hv shut down the reception/enquiry desk - so theres no one we can ask.

The only thing they have is a "drop off box" - where you can drop your letters and statements - I'll write to them over the weekend and go deliver it on Monday.

 

Mike, I want you to know that I really do appreciate your comments and fast reaction as this is really helping me. I hv been very ill over the last couple of years but in the last few months, my condition has been really terrible as I have had to take this action. If i had waited any longer, i would have been completely out of time. (Its now clear that he never had any intention of repaying my loan). The judge actually raised this at the hearing - he said it was a matter for consideration by the next judge who considers this case as to why it had taken me so long to take this question due to the amount of interest it has now raised.

 

So,its really important now to see the Judge's "written directions" I guess it must arrive pretty soon. I'll let you know when it arrives and send u the content.

 

Thanks/Wrecked.

[Mike_hawk]

Hi Wrecked

 

Where you mention 'interest' above, are you saying this was an interest bearing facility?

 

What was the principal sum, what rate of interest did you agree on, what is the total value you are claiming? No need to be exact with the figures as it could identify you to anyone looking in with an interest in the case.

[wrecked]

Hi Mike

 

Thanks for yr message. In the original loan agreement, no interest was mentioned as he said he was going to repay it in a couple of months. I applied an interest of 8% p.a on the loan amount at the time of issuing the writ, from the date of the loan. i.e. 8% p.a. from 2006. I believe we can serve a writ for an issue within 7 years from the date of the event. Once its over 7 years - theres nothing more we can do. So i am well within the scope of time.

 

Say Principal sum = £ 2000, rate of interest = 8% p.a., applied cumulative from 2006.

I hope this answers yr question.

Many thanks/Wrecked.

[Mike_hawk]

Ok, started to think you'd lumped in an interest term that the court could/would never enforce.

 

6 years from last acknowledgment of the debt before limitations kick in, not sure the court would grant a full 6 years s.69 interest but no harm in asking.

 

This really does seem to fall to who's case appears the more believable to the judge on the day

[wrecked]

Hi Mike

 

ah I see. Thats a very good point Mike.

 

I am still within six years and I am happy to amend my claim and leave the amount of interest payable to a value which the court seems fit.

please let me know what the appropriate wording would be. I am not particularly interested in the interest although it would be really useful for me and satisfying considering what i have had to go through.

 

best/Wrecked.

[Mike_hawk]

Hi Wrecked

 

No need to amend quantum, the court will decide the amount if you are successful in the case. I assume you calculated at simple not compound rates, for a principal of £2,000.00 the daily rate would be £00.44

[wrecked]

hi Mike,

 

Thank you for your fast reply. I calculated the interest on Cumulative basis, so i guess that corresponds with "Compound rates" - I charged interest of 50p per day.

So if that is incorrect i should make a statement to the court and amend the amount.

 

with regards the CPR 31.14 request - i need to get the last para correct as i am the claimant.

 

at the moment it states

 

"...Please note that if you should fail to comply with this request, fail to request more time or fail to agree to an extension of time for the filing of my defence, I will make an application to the court for an order that the proceedings be struck out or stayed for non-compliance and a summary costs order..."

 

I should change this to

 

"...Please note that if you should fail to comply with this request, fail to request more time or fail to agree to an extension of time for the filing of my CLAIM, I will make an application to the court for an order that the proceedings be DECIDED IN MY FAVOUR FOR YOUR NON COMPLIANCE AND INABILITY TO SUBSTANTIATE AND PROVE YOUR DEFENSE...."

 

What do you think Mike?

 

All the best/Wrecked.

 

 

 

[Mike_hawk]

Hi Wrecked

 

Don't make any amendments, its a bit of a perversity of CPR that by reducing the quantum absent an order and applying to amend you could be liable to the other sides costs up to that point in the case.

 

CPR request, I think you could be a little more forceful considering the circumstances:

 

"...Please note that if you should fail to comply with this request, I will make an application to the court for an order that your counter claim be struck out for non-compliance and a summary costs order..."

[wrecked]

Hi Mike

 

again thanks for fast reply. I got you. Regarding the request should I not include the defense as well

 

".. an order that your defense and counter claim be struck out.."

 

best/wrecked

[Mike_hawk]

Yep, was waiting for you to spot my mistake.... as if I noticed before you mentioned it, lol

 

If he relies upon the employment angle in both defence and counter refer to both

 

Best of luck

[wrecked]

Hi Mike

 

well he is relying on employment angle ... and listed out some of the jobs he had done for me (and what a nasty, dishonest and horrible person i am ... how he helped me by continuing to work for me even though i paid him irregularly) and owed him his "wages" for so long. I cannot understand how a person can rely on the wages from a non paying employer and continue to work for him, when the more he worked the less he is paid!!. (thats basically a summary of the late witness statement he served)

 

Thought i'd let u know that

 

1. i hv served the CPR 31.14 request and copied the court.

2. I wrote to court advising them that to date, the Judge's directions from the hearing of 20/09 hv not been received.

3. I have also applied to the court to move the next hearing date as one of my witnesses will not be able to attend and wrote to the other side giving them notice and asking them if they will agree.

 

Finally, i really think that he is getting legal help from somewhere -but i dont think he is getting legal aid. How an i find out if he is on legal aid?

 

best/wrecked

[Mike_hawk]

If he was getting legal aid you should have been served costs at the previous hearing, I would imagine he's either found his way onto a forum somewhere or found a friendly solicitor.

[wrecked]

Hi Mike

 

the judge never commented on costs. But - i definitely had the feeling that he really did not like me much. Anyway - yes - i agree with you - i think the other side has a friendly solicitor.

 

Best/Wrecked.

[Mike_hawk]

Hi Wrecked

 

Judges dislike cases such as yours, much of the evidence will be by witness and effectively a 'he said, she said' argument....... it's a little akin to family disputes in some respects and the courts just don't like them.

 

I'll have a think about your PM later this evening and reply to the best of my knowledge, you may need to post some of the info on here to get a fuller response from others.