Small Claims hearing as defendant against former accountant , PLEASE HELP!!

[KennyOye]

A deputy district judge has allocated a case FILED by my former accountant for hearing by July 30. I think its time I write and submit a statement of case with documents as evidence. What do you think?

Thanks for your quick response

[steampowered]

We need more information. What has happened so far - have you filed a Defence? Have you received directions from the court stating what you must do next?

[KennyOye]

Thanks Steampowered,

In the claim form of Dec. 6 2012. The particulars of ciam signed by the Claimant read: Defendant (myself) activated a client-service agreement between myself and Company B to review, certify his close accounts etc.

I promptly filed a defence asking the Claimant to provide evidence that indeed an agreement existed. By Feb. 18 the District judge gave the Claimant a 14 day notice to file at court and serve upon the Defendant, a Reply to Defence.

The Claimant then went ahead and served me his defence with 27 points detailing what transpired. Almost all the points were lies and even in an appendix attached, the documents weren't signed.

I have the real facts at hand even with evidence of payment extracted from my bank statements and also the email detailing the agreed amount.

The hearing has been fixed for July 29 and I have 7 days before this day to reply to the 27 points raised by the claimant. My problem is how do I go about this or is it possible to get a template to help with the response. Moreover, since the Claimant did not provide any agreement to proof the existence of an agreement, should I just base my defence on that only?

Thanks

[steampowered]

Please elaborate on why you think you must produce a reply to the 27 points. An order that you must do this would be unusual in small claims track. Am I correct in thinking that you have been ordered to serve copies of the documents on which you intend to rely 7 days before the hearing?

 

Normally, you just have the three basic court documents: Particulars of Claim, Defence and Reply. The idea is that each party should have the opportunity to respond to the other party once. You do not normally produce further documents and letters arguing about the case - the judge is unlikely to read them. It is usually best to save it for the courtroom.

 

Now in this case, obviously they did not comply with procedure by not making their case properly first time around. What you can do is file a witness statement. The purpose of this document is just to explain to the judge in your own words what happened. It is generally unnecessary to turn your witness statement into something which directly argues with the Particulars of Claim or Reply. You are welcome to go through the 27 points one-by-one in a clear manner, with separate paragraphs for each point, but make sure you do not lose sight of the very simple nature of your case. I have seen it so many times where a litigant in person runs huge, long paragraphs addressing every point made by the other side in minute detail ... with the result that it becomes almost impossible to work out what the case is about or what their point is. Keep it simple and to- the-point.

 

Now, you should be careful about simply relying on the fact that the Claimant has not provided a copy of the agreement. Unlike most threads on CAG this is not a Consumer Credit Act case, so it is not necessary for the Claimant to produce the agreement or even have an agreement in the first place. They only need to prove the existence of a contract requiring payment of the amount they are claiming, and it is possible to enter into contracts verbally or by conduct. In this case there can be no dispute about whether a contract existed since you already paid the Claimant. The dispute is about whether you are required to pay the sum they are claiming. If you already paid an agreed amount then point that out in your witness statement.

 

You can see what a witness statement looks like by searching "witness statement template" on google. The exact nature/format is not important as long as the statement is nicely presented, clearly sets out what happened and has a statement of truth at the end.

[KennyOye]

Thanks a Billion Steampowered. You're indeed "fuel Powered"

Please can I get a template of any Witness Statement that will suit my situation. I'm really going to file a witness statement explaining to the judge in my own words what actually happened.

Cheers

[steampowered]

No worries. This is what a witness statement looks like. Keep your sentences short and your paragraphs short, and don't waffle or get bogged down in excessive argument. Just concisely tell your story and tell the judge why you disagree with their claim.

 

 

IN THE [LOCATION]COUNTY COURT

 

 

CLAIM NO X OF2012

 

 

BETWEEN:

 

 

 

 

X

 

 

 

Claimant

 

 

 

-and-

 

 

 

 

 

X

 

 

Defendant

 

 

 

 

 

______________________________________

 

 

 

 

 

WITNESSSTATEMENT OF X

 

 

 

_______________________________________

 

 

 

 

I NAME of ADDRESS, STATEAS FOLLOWS:

 

 

 

 

 

Introduction

 

 

 

1. I am the [Claimant/Defendant] in this action. I make this witness statement in [support/opposition] to the Claimant’s claim.
   

1. Attached is a bundle of documents to which I shall refer to in this witness statement.
   

Background

 

 

 

1. Blah
   

I believe that the facts stated in this witness statementare true.

 

 

 

Signed…………………………………….

 

 

 

Dated………………………………………

[KennyOye]

Thanks so very much. I'll give you an update after drafting the Witness statement.

 

So very appreciated.

 

Another satisfied CAGer

[KennyOye]

Hi Steam powered,

 

I have drafted a chronological order of events in my witness statements. The Claimant replied and the hearing is fixed for August 7. Please what documents do I need to take along to the hearing? The appendix attached to my witness statements include email printed out, bank statements, HMRC documents etc. Do the bank statements need to be signed by my bank manager? Do I need a guest to follow me and what role will they play? Thanks

[steampowered]

Hi KennyOye,

 

What did the court order? In small claims track you are usually ordered to file (with the court) and serve (on the other side) a copy of the documents you intend to rely on at the hearing. Usually this should be done a certain period of time before the hearing. Ideally the documents should be nicely presented in a bundle with page numbers (the convention is to write page numbers on the bottom right of each page).

 

The only document which comes to mind apart from the ones you mentioned is a copy of your engagement letter with the accountant, if you still have it (although I guess this is probably something they would want to rely on rather than something you would want to rely on).

 

Bank statements do not need to be signed by the bank manager. You do not need a friend with you. You are welcome to bring a friend for moral support but they are not permitted to play any part in the proceedings.

[KennyOye]

Practice of Directions: Paragraphs 3.1 & 3.2[/b]

 

The Claimant has requested the court that I should deposit with the court the sums stipulated on the above section. What am I supposed to do?

 

THANK

[steampowered]

Can you give a few more details about what exactly you have received and what exactly it says?

[KennyOye]

Hi,

 

On the hearing date the judge ordered that Mrs A is a key witness in the case so the Claimant must get a written witness statement from her and I can also write to the court that she be summoned to give spoken evidence.

 

When the stipulated time lapsed and she failed to give an acceptable statement I wrote to the court that she be summoned. The Claimant agreed but that I should deposit with the court the sums stipulated on Paragraphs 3.1 & 3.2 of the Practice Direction 34 A. I want to know my next line of action i.e 1) Should I write the court? 2) Wait for court to write. Thanks

[Mike_hawk]

How was the claimant notified? Its not clear from your post whether the court intends to serve or if you agreed to serve. If the former, you would be required to deposit funds prior to service.... If the latter, the only requirement is for you to offer expenses at prevailing crown rates. Do you know what the witnesses profession is as it will affect the prescribed rates. Posting from my phone and can't work out how to provide you with links for info. Try googling CPD 34 , blackstones should also assist with your understanding.

[steampowered]

OK, so you want to call this person as a hostile witness. Do think twice about whether this is really a good idea. One would assume that this witness will simply repeat and support what is in the statement. What do you hope to achieve by cross-examining them, that you will not achieve through your witness statement or through producing other evidence?

 

You can review PD34A here: http://www.justice.gov.uk/courts/procedure-rules/civil/rules/part34/pd_part34a#IDASSE2. It provides that when you serve a witness summons the witness must be offered a sum to cover his travelling expenses and compensatino for loss of time. If you are the person who wants to summon the witness you will be expected to cover this.

[KennyOye]

Thanks again powerful Steam, but since I had already wrote to the court that she should be summoned then how am I going to pay for the traveling expenses? The Claimant has written to the court that I should deposit with the court the sums stipulated in the Practice Direction. I want to know my next line of action i.e 1) Should I write the court that I'll pay the expenses or 2) Wait for court to write. Thanks

[steampowered]

You don't have to go ahead with calling the witness. You can always withdraw your request. The reality of the situation is that people rarely get any sort of admission out of hostile witnesses. You can certainly damage their credibility on cross-examination but not likely to get anything more than that. You could take the position that you will be inviting the court to attach little weight to the witness statement if the witness is not there to be cross-examined.

 

If you want to go ahead it is best to get in touch with the court to figure out the administrative arrangements. I don't think the court would take responsibility for driving this forward, you need to do it.

[KennyOye]

Thanks again. I will write to withdraw my request that she be summoned. Please do you have a template for a withdrawal letter? Also can I insist that the witness give a witness statement otherwise backed up with evidence or should I write questions I want the witness to answer in her statement?

 

Thanks

[steampowered]

I don't have a template. I would just write to the other side CC the court confirming that you no longer require this person to be summonsed as a witness for financial reasons. If appropriate, mention that you will be contesting the veracity of his/her statement and will draw the court's attention to his/her non-attendance.

 

You cannot insist that the witness gives a statement. You cannot insist that the witness answers questions. It is difficult to comment further as I do not really know what the case is about, but if this is a hostile witness I am not sure why you would want them to give a statement if the statement is not likely to support your case. You are trying to convince the judge not the witness.