I need help to Serve a writ to recover a loan

[Ganymede]

Unfortunately you can forget legal aid. You will not get it for this type of money claim.

[Ganymede]

The six year time limit starts running from the date on which the Defendant was obliged to pay back the money, not from the original date of payment.

 

I have seen an argument used which runs like this. The Defendant was not obliged to pay back the money the same moment it was paid, since there would be no point paying the money only to demand it back 10 seconds later. The obligation to repay only arose once the Claimant demanded repayment. Therefore, the six year time limit only began to run from the date of the Claimant's demand, even if that demand was only made several years later. There is case law to support this kind of reasoning.

 

Of course, payments made less than six years ago will not be SB on any interpretation.

 

Let me explain the Defendant's reference to an indemnity. Unless you are in small claims track, the general rule is that the winner of legal proceedings is ordered to pay the loser's legal costs. Most of the time costs are awarded on the "standard basis" which means the winning party must show the costs were reasonable. On average this results in recovery of around 60-70% of legal costs. However, if the court disapproves of the paying party's conduct, it can order costs to be paid on the "indemnity" basis. This switches the burden of proof and it will be assumed that costs were reasonable unless the paying party can prove otherwise. On average this results in recovery of around 90% of legal costs.

 

However .... a claim for less than 10k will be small claims track. It is very rare for costs to be awarded on this track. They only get awarded if one party has behaved very badly.

 

Regarding legal aid, there is information here: http://www.adviceguide.org.uk/england/law_e/law_legal_system_e/law_taking_legal_action_e/help_with_legal_costs.htm. You can also approach solicitors who accept legal aid and they can apply for it on your behalf. However bear in mind that the legal aid budget is extremely limited ... my instinct is that you will find it very difficult to get legal aid for this kind of case. It sounds like you are capable of making the claim yourself in small claims track if necessary.

 

 

 

Hi steam. I get the impression that the defendant's solicitors are referring to security for costs under CPR 25. What do you think?

[Ganymede]

Riz0 offers some great guidance for completing the Directions Questionnaire, however he/she is wrong about the witnesses.

 

There is no property in a witness and you cannot hide who they are. The other side are entitled to contact the witnesses to obtain statements as well.

[Ganymede]

31.14 is just for documents such as the credit card statements.

 

If this is fast track then disclosure will be dealt with in full later.

[Ganymede]

The Court have allocated the claim to the Multi Track and have set down Directions.

 

It is very unlikely that the Court will set aside the Order now.

 

It seems like the Defendant's Application was made ex parte but that still doesn't explain what happened to your Application.

[Ganymede]

The Court is concerned that you may not have the capacity to run this claim yourself due to your breakdown and mental health problems which is why it has been referred to the Official Solicitor to see if they will act for you.

[Ganymede]

Mitchell is slightly out of date now since the judgement in Denton, but only that obtaining relief from sanctions is much easier now.

[Ganymede]

The other side may still be able to get away with breaching the Court direction/order etc by relying on the more recent judgment in Denton v TH White (2014).

[Ganymede]

Checked out ? Unless you have received a General Order directing you to submit documents...normally CMCs are very informal.

 

Regards

 

Andy

 

At least 3 clear days before the case management conference the Claimant must file and send to the other party or parties preferably agreed and by email:

1. draft directions

2. a chronology

3. a statement of the issues

4. a case summary.

 

This is the Court Order burmafriday has to comply with as the Claimant.

 

It wouldn't look great to the Judge if burma was asking for the sanctions to be imposed on the Defendant for failing to comply with Orders/Directions and then do the exact same thing.

[Ganymede]

If he has no documents on which he wishes to rely then there is no need to file anything.

 

However, I find it strange that he has no disclosure but that's up to him. He denies any loan existed and the burden of proof is on you to show that it did.

[Ganymede]

You don't say anything. You just reproduce copies of all the paperwork from you and the defendant and put it all in a bundle with an index and number the pages.

[Ganymede]

Dear Ganymede

thank you for your fast reply -

Is this then like a "trial bundle"?

thanks so much

all the best/BF

 

 

Yes, pretty much.

[Ganymede]

I would say that the second order amended the first, not suspended it. It's not really relevant anyway.

 

The Defendant was allowed to submit a witness statement as he did it in time in accordance with the second Order. The Directions are independent of each other so just because, for example, you say he missed disclosure lists does not mean that he can't file a witness statement provided it was in line with the second Order. He could have his Defence struck out for missing disclosure but that's a separate issue.

 

As for the DQ and disclosure lists, he'd have trouble forging the proof of postage receipt from the Post Office so I wouldn't worry about that. He could fabricate the documents and cover letters and backdate them but he'd have to lie and convince the Judge that they're genuine. If he does convince the Judge then there's not a lot you can do about it.

[Ganymede]

Hi Ganymede and Andy

in the trial bundle, can i introduce other evidence and document which has come to light?

ie those documents which were not included in my previous witness statements or disclosure documents

thank you

BF

 

Not really, the other side could object if you did. But you could just include it and hope he doesn't know.

 

What new evidence anyway? Why has it only just come to light?

[Ganymede]

Hi Andy

thank you for yr msg.

one more question - at the hearing, the first thing would be for him to present evidence as required

so - shall i wait until this is done before i present my Skeleton Argument to D and judge?

 

or hand give the SA to D ? what is the correct form ? -

do i just give it to the D and then hand a copy to Clerk of court

to pass onto Judge?

do i do this before the hearing itself?

 

thanks Andy

all the best/BF

 

You should post it to the Court so it arrives before the hearing. A post it to the other side too.

 

Take spare copies with you in case the judge hasn't been passed a copy.

[Ganymede]

Can you email/fax?

 

At this point I would take spares to give out on the day as you're too late to post now.

[Ganymede]

Hi Andy and Ganymede

how are you both? I hope you are both well.

A couple of months have passed and i like to give you an update.

I have of course submitted the form 6.37 and spoken with the IP

 

Firstly it appears that i am the major creditor. other creditors are

three credit card companies

 

I advised the IP regarding his witness statements. They tell me to contact

the PAYE people as a result. In my conversation with the IP an issue arose.

It has become really clear that he has mislead the court and lied to the court

to drag this case as long as possible with a clear plan to declare himself bankrupt.

 

My question to you is would it be possible for me to present this case to the

Crown Prosecution to take matters further regarding his wilful negligence of

court procedures and contempt of court.

look forward to your comments.

thank you

BurmaFriday

 

The short answer is no.