How to get evidence to start an MCOL claim for monies owed?

[*RainbowTears*]

Morning all!

 

I wonder if someone could point me in the right direction as my son needs help with a MCOL.

 

Story so far:

 

My son did a private scrap job with his friend, my son actually got the job himself but brought his friend into it as he needed help. They agreed to split it 50/50.

 

They spent 3 days doing the job & the friend got the items scrapped for approx £1600.

 

As the money is paid by bacs, it went into the friends bank account & he then would give my son his £800 share.

 

It's been nearly 2 weeks & the friend hasn't paid my son. All my son hears is excuses or no response to his calls & texts.

 

So he finally had enough & went to the scrap yard & asked if the friend had scrapped all the items, they answered yes & as to how much £ he got.

 

However they won't release any proof to my son as they said he needs a court order due to DPA.

 

As my son's now going to do a MCOL how does he go about getting this please?

 

Many thanks for any help!!

[BankFodder]

Spend a bit of time reading up on this forum about bringing a small claim in the County Court. We got all the information here although if you want to see in one place then you could buy are Consumer Survival Handbook where you will find it expressed the bit more concisely along with a lot of other information which you might find useful.

 

He should send the friend a letter before action giving him 14 days to pay him his half or else he will start a County Court claim and without any further notice. It's very easy but it's worth knowing the steps in advance.

 

In his case, the claim form will be roughly: –

 

The defendant agreed with the claimant to share in the job of collecting a load of scrap metal and disposing of it.

 

The agreement was that once the job had been done and the scrap metal had been sold, that the proceeds would be divided equally between the two parties

 

The defendant sold the scrap metal for £1600 but has refused to give the claimant is 50% share

 

The claimant claims £800 plus interest pursuant to section 69 County Courts Act 1984

 

It's as easy as that. Of course, he will need to make sure that he knows where the defendant is and also be satisfied that the defendant has got the means to pay for the judgement debt once it is obtained. There will be a fee to start the action which might be as much as £120 plus a hearing fee – and you will have to look up on the court services website to find out how much that currently is. Your son will get all of this money back and see winds. His chances of success are extremely high but the problem of enforcement could be tricky.

 

Frankly in the circumstances you describe, I would be thinking of informing the police that his friend has committed theft of the money. On the basis of what you say, it clearly is theft. There is also the issue of the tax authorities.

 

Maybe your son wants to get a few messages out saying that not only will he sue him but also he will be making a complaint theft of the money to the police and also informing the tax authorities. Of course, he should be informing the tax authorities anyway saying that the money has been earned – but that is another matter for you.

[BazzaS]

For it to be theft it would have to be proven that the friend never intended to pay at the time the money became due.

All the friend has to do is say is "I intended to pay him. I've run into unforeseen financial problems. I intend to pay as soon as I can", and there would be reasonable doubt preventing a criminal conviction.

 

 

For this reason expect the police to say "this is civil, not criminal, matter". I'm sure they sometimes say this when it could be criminal, too, but in this case they'd probably be right!

[*RainbowTears*]

Many many thanks indeed to you BankFodder & Bazza for your responses.

 

We now have written out the LBA letter as per your suggestion BF, it's being sent tomorrow by recorded delivery.

 

I've got my son to read your response re going to court as he fully expects this to go down this route. Once the 14 days are up he will do a MCOL.

 

But he has 1 question atm, how does he get the scrap yard to release the paperwork relating to the 3 loads of scrap that his mate was paid for?

 

When my son visited the scrap yard he was told by them that his mate did bring in a 3rd load & that he was paid £603 for it. They stated that my son would need a court order for them to be able to give my son the proof he requires due to DPA.

 

As for going to the police, my son doesn't want to go down that route, for reasons as Bazza suggested above.

 

Thanks once again...xXx

[SuperVillain]

Many many thanks indeed to you BankFodder & Bazza for your responses.

 

We now have written out the LBA letter as per your suggestion BF, it's being sent tomorrow by recorded delivery.

 

I've got my son to read your response re going to court as he fully expects this to go down this route. Once the 14 days are up he will do a MCOL.

 

But he has 1 question atm, how does he get the scrap yard to release the paperwork relating to the 3 loads of scrap that his mate was paid for?

 

When my son visited the scrap yard he was told by them that his mate did bring in a 3rd load & that he was paid £603 for it. They stated that my son would need a court order for them to be able to give my son the proof he requires due to DPA.

 

As for going to the police, my son doesn't want to go down that route, for reasons as Bazza suggested above.

 

Thanks once again...xXx

 

 

The starting point for a response for the scrap yard -

 

Section 35(2)(a) of the Data Protection Act:

 

35 Disclosures required by law or made in connection with legal proceedings etc.

 

(1)Personal data are exempt from the non-disclosure provisions where the disclosure is required by or under any enactment, by any rule of law or by the order of a court.

(2)Personal data are exempt from the non-disclosure provisions where the disclosure is necessary—

(a)for the purpose of, or in connection with, any legal proceedings (including prospective legal proceedings), or

(b)for the purpose of obtaining legal advice,or is otherwise necessary for the purposes of establishing, exercising or defending legal rights.

 

The disclosure your son is requesting from the scrap yard is for the purpose of prospective legal proceedings.

 

When writing to them your son will probably want to also tell them that the Court Order they are asking for - presumably a non-party disclosure order - is disproportionate for an £800.00-ish claim and that if your son is forced to make an application, he will seek the costs from them (the scrap yard) at any hearing.

[*RainbowTears*]

Thanks Supervillain,

 

My son sent the scrapyard a letter nearly exactly as you stated, they didnt reply*.

 

Due to the Christmas holidays this was put on the side for a little while.

 

After the holidays with no response from the LBA, my son issued a MCOL.

 

The other party finally responded to this, with a tale of lies. (texts he sent my son contradict to what he now says in the court papers).

 

As the MCOL was issued as also was the letter* to the scrapyard as stated above they did not reply.

 

So today my son called the scrapyard & enquired as to why noone responded to his letter. Noone took responsibility. So then my son asked for the relevant paperwork (evidence) to help assist in his claim & stated the above that Supervillain says in his post.

 

The lady on the phone refused to help unless my son has a solicitor write in asking or a court letter.

 

As my son needs this evidence for his claim & cannot afford solicitors what can he now do to get the scrapyard to disclose the evidence he requires?

 

My son has until 11th Feb 17 to get his court forms back in with his defence etc.

 

If anyone can pleas help....

 

Many thanks indeed xXx

[AndyOrch]

Specific disclosure or inspection

CPR 31.12

 

(1) The court may make an order for specific disclosure or specific inspection.

(2) An order for specific disclosure is an order that a party must do one or more of the following things –

(a) disclose documents or classes of documents specified in the order;

(b) carry out a search to the extent stated in the order;

© disclose any documents located as a result of that search.

(3) An order for specific inspection is an order that a party permit inspection of a document referred to in rule 31.3(2).

(Rule 31.3(2) allows a party to state in his disclosure statement that he will not permit inspection of a document on the grounds that it would be disproportionate to do so)

(Rule 78.26 contains rules in relation to the disclosure and inspection of evidence arising out of mediation of certain cross-border disputes.)

 

https://www.justice.gov.uk/courts/procedure-rules/civil/rules/part31