Case management/witness testimony help sought please.

[Maketa79]

I would be grateful for some support and help from the CAG community of friends, please.

Issue
(a) I'm seeking help with breaking down a verbal agreement into it's component elements which align to the legal framework,

and also what I need to demonstrate in a court of law. I am finding this very difficult to articulate in support of a money claim which I have recently filed.

(b) How can I call witnesses who in fact are siblings of the debtor because I want to cross-examine them in front of the Judge.

Background
A once trusted relative borrowed various sums of money over a 2-year period.

To date, they have paid back 2 thirds of the debt, leaving still a substantial balance unpaid, despite exhaustive attempts to engage with them.

I filed a money claim and in their defence, they are counterclaiming alleging harassment.

This has left me gobsmacked as no harassment has occurred or even an exchange of bad words except seeking clarification from them as to when the loan is to be paid.

 

The agreed date for settling the loan has been and gone,

almost a year has gone past with the balance remaining unpaid.

 

The borrower is in paid employment working as a contractor in the health service.

I estimate their take home pay is around £2000 per week.

Constraints
(i) The borrower is alleging harassment & intimidation but has not cited a single harassment or intimidation incident;

(ii) They are claiming that the money was a gift, despite that they have repaid 2 thirds of the amount owing;

(iii) they're counterclaiming the same amount that is owing.

(iv) They are claiming that they did not receive the 'letter before action' which I had sent them several months earlier;

(v) In a separate development not linked to this issue, the individual has been suspended on full pay for theft from their work place.

(vi) They have substantially amended their defence and counterclaim only a week before the case management deadline to submit the 'Allocation Questionnaire' and my defence against the 'counterclaim' - do they need the Court's permission to do this?

(vii) They are saying that there was no witness to the verbal agreement, but I did ask them to speak to their siblings to confirm the loan at the relevant time when I was present

Legal framework
I would be grateful for an outline of the legal framework I need to work with please so that I can do the necessary research.

Please do let me know if you need me to clarify any aspect. In the meanwhile, I would greatly value your advice and steer.

I look forward to hearing from you.
Regards
Mack65

[BankFodder]

Well it sounds like a very complicated and upsetting's situation.

I think you will be helpful if you started off by posting a copy of the claim form in scanned PDF format – redacted for identifiers and also a copy of the defence and counterclaim, similarly redacted.

Also what is the value of the claim please?

[Maketa79]

Particulars-of-Claim.pdf

 

Thank you BankFodder for taking the time and trouble to read my post and for responding.  I attach a copy of the claim form. Unfortunately, the defence is a convoluted composition which is some 7 pages long.  The Defendant is disregarding the fact that they have already partly performed on the verbal contract.  The value of the claim is £9300. I have documentary evidence of the £17600 they have repaid to date. 

 

If you feel that a copy of the defence is essential then I can make arrangements for this to be scanned and posted for your perusal.

 

With many thanks once again.  Kind regards. Maketa79

 

[AndyOrch]

Quote

(b) How can I call witnesses who in fact are siblings of the debtor because I want to cross-examine them in front of the Judge.

 

You subpoena them .....[Latin, Under penalty.] A formal document that orders a named individual to appear before court as a witness to give verbal evidence.

 

Andy

[Maketa79]

Thank you very much Andyorch for taking the time and trouble to read my post, and for the assistance offered.  How does the 'Subpoena' process work please? Are there any criteria I have to meet and / or do I need the Court's permission to call witnesses who are in the Defendant's camp, as it were. I would value your help and assistance. Kind regards. Maketa79

[AndyOrch]

The better known name is simply a Witness Summons....

 

http://www.justice.gov.uk/courts/procedure-rules/civil/rules/part34#I

[Maketa79]

Thank you profusely, you have enlightened a pure beginner on a matter that is of huge importance to the point that I am losing sleep. Little by little with help from people like you, I will get there.  Thank you profusely. I appreciate your help more than you might care to believe.

 

Maketa79

 

 

[Maketa79]

Hello CAG members! I was wondering if you could help me please, this is a question I have asked before but I'm still not clear on process and protocol for calling witnesses from the Defendant's side.  I was directed to: http://www.justice.gov.uk/courts/procedure-rules/civil/rules/part34#I

 

This link takes me to the Court's Procedure Rules which in turn mentions form N20. 

But when I look at the form N20, it seems it is the actual Summons document rather than an application form to be completed and submitted into Court.  So I'm lost as to what to do. 

 

I would be grateful for some guidance please as the hearing dates for my case as the claimant should be announced by the Court soon. 

I hope you can help.

With many thanks.

I would be grateful for your help.

Maketa79

[dx100uk]

threads merged.

please keep to one thread 

 

 

[Maketa79]

 

32 minutes ago, dx100uk said:

threads merged.

please keep to one thread 

 

 

 

Thank you dx100uk, please kindly excuse my ignorance.

[BazzaS]

On 31/01/2020 at 16:54, Maketa79 said:

(b) How can I call witnesses who in fact are siblings of the debtor because I want to cross-examine them in front of the Judge.

 

Do you really need to “cross-examine them in front of the judge?” - this isn’t Perry Mason.

 

If they are likely to be supportive to your case and are willing to give witness statements: just get witness statements.

 

If they would prefer not to be involved, you CAN force them to court, if the court agrees. You may not be allowed to “cross examine them”; the judge may ask them questions, and MIGHT allow you to raise questions that go to their credibility - but unlike a full on “A few good men” moments of high drama.

 

You make an N244 application for a witness summons (or summonses) citing CPR 34. You’ll be liable for their costs, though, and they may not cooperate fully if they feel you have badgered them into becoming involved.

 

So, it is quite a high risk tactic (where it might be useful is if they want to help but are afraid of upsetting the relative : you get them to agree they’ll help on proviso it looks like they are being forced: they get to say “we didn’t want to be involved but the summonses forced us to be involved. Once involved, we had to tell the truth”)

[Maketa79]

Thank you so much BazzaS for taking the time to read my post and respond with some helpful advice. I am sorry I am a novice - the Perry Mason analogy made me chuckle. Far from it but I have a set of key questions which I would expect the witnesses (who are the Defendant's siblings) would answer in the negative i.e. they will defend the Defendant's position.  But in so doing, they will be lying and I am hoping that their demeanor will be telling.  Also the fact that I will be putting certain specific questions to them will unnerve them to my advantage.  That is the rationale that I'm using.  You are quite right to point out that they may, in fact, will be against being involved.  So your point about the fact that I CAN force them to court, is a pertinent and helpful one. 

 

I have only recently returned the completed Allocation Questionnaire and I would like to submit my N244 application early.

 

Many thanks BazzaS, your steer has been helpful and you have made a difference and saved me time.

[Maketa79]

Hello CAG colleagues.  I hope you can help me with the following questions please.

 

(i) In completing form N244, can I request more than one Order in the same N244 form?  For example (a) I wish to seek an Order to summons two witnesses and (b) an Order for the Defendant to disclose the Allocation Questionnaire as she has not sent one to me despite polite requests.

 

I hope you can help.

[AndyOrch]

Yes you can...although i'm unsure why you need to see a copy of the defendants DQ...it wont tell you anything...same questions as yours.DQs are expected to be served on each party...purley civil compliance...but not a court procedure.

[Maketa79]

Thank you Andyorch for this prompt and helpful assistance.  I'm a novice so my questions may come across as naive - I do not know, nor have I ever come across 'civil compliance' and 'court procedure' being distinguished.  To the 'ignorant me' it seems one and the same e.g. a 'court procedure' within the context of a civil matter?   In any event, you have answered my question so I'm truly grateful.

[AndyOrch]

The only useful point in seeing the other parties DQ is to see if they have made any applications...and if they have the court would have informed you and served a copy anyway...apart from that there is very little to be gleaned from viewing their DQ.

[Maketa79]

Sure, thank you for the learning point Andyorch.  But I wanted to see if the other party is fielding any witnesses also.  Thank you all the same Andyorch 

[AndyOrch]

Fair point.....see if the court will provide you a copy...or simply ask the question to the staff.

[Maketa79]

Hello fellow CAG members - please can you help me with a advice concerning summoning witnesses to Court.  My case is going through case management and I have a hearing date for the end of June 2020.  The 'Notice of Allocation to the Small Claims Track' says the following about witnesses: "Witness statements shall be included in the documents served and filed.  This includes the evidence of the parties themselves, and any other person whose evidence is to be relied upon, whether or not it is intended to call them at the hearing".

 

The Defendant has implicated her siblings in her defence. I have the idea of calling the Defendant's siblings so that I can have the opportunity to defend and nullify the Defendant's allegations.  But to do so, the case management protocol requires me to provide the Court with witness statements of those witnesses I intend to call in evidence.  Without such witness statement, the Court will not allow me to call the witnesses. 

 

• How can I get round this problem please or what can I do to compel the Defendant's siblings to attend Court?

 

I would be grateful for any steer or ideas please.  Maketa79

Edited March 27, 2020 by Maketa79
typo

[AndyOrch]

Topics merged ...I have already advised on your previous topic...please do not start new topics on the same issue.

 

Andy

[Maketa79]

Hello Andy, I am sorry if I duplicated topics.  This is a genuine misunderstanding on my part.  My understanding is that these are different technical issues with separate headings highlighting the nature of the specific enquiry.  But I will do as you say and stick to one thread.  I am sorry for any inconveniences caused. Maketa79

[AndyOrch]

Not to worry.....but they are all connected to the same issue....hence all the history must be in one topic...otherwise we get users duplicating information which you have already been provided.

 

Andy

[Maketa79]

I get it now Andy, thank you. Please kindly accept my genuine apologies.  Maketa79

[SuperVillain]

Hi Maketa - I don’t think anyone has answered your question here. 

 

My understanding is that if you can’t serve a witness statement you still need to serve a witness summary and accompany with an application. See Civil Proceure Rule 32:

 

Witness summaries

32.9

(1) A party who –

(a) is required to serve a witness statement for use at trial; but

(b) is unable to obtain one, may apply, without notice, for permission to serve a witness summary instead.

(2) A witness summary is a summary of –

(a) the evidence, if known, which would otherwise be included in a witness statement; or

(b) if the evidence is not known, the matters about which the party serving the witness summary proposes to question the witness.

(3) Unless the court orders otherwise, a witness summary must include the name and address of the intended witness.

(4) Unless the court orders otherwise, a witness summary must be served within the period in which a witness statement would have had to be served.

(5) Where a party serves a witness summary, so far as practicable rules 32.4 (requirement to serve witness statements for use at trial), 32.5(3) (amplifying witness statements), and 32.8 (form of witness statement) shall apply to the summary.

[SuperVillain]

To add, not sure how far away your small claims hearing is (or if it will even take place at all in the current climate) but I would suggest as follows:

 

1. Contact the people you want to get statements from and see if they will do a witness statement. (Bear in mind they may be making statements for the Defendant).

 

2. If they’re not prepared to do a witness statement for you, and they’re not already doing one for the Defendant, then start preparing a witness summary.
 

3. File and serve the witness summary and application for permission to rely when you’re supposed to file the witness statements, together with a witness summons (the N20 court form)