The National Bank of Ras Al Khaimah/IDRWW Courtclaim - old UAE Loan/CC

[AndyOrch]

Then you must counter and refute that evidence in your opposing statement as to why their application should be denied.

 

Interesting little bit of info with regards to expert testimony in SJ applications....you should use it in your statement.

 

 

https://heinonline.org/HOL/LandingPage?handle=hein.journals/davlr22&div=9&id=&page=

[AndyOrch]

There is no need to attend as its a telephone hearing to discuss the claimants application for SJ...as I said above and now confirmed  the DJ is dealing with their application and allocation at the same time.

[AndyOrch]

Yes and in particular why a expert witness testimony should not be required in an application for summary judgment.

 

Post your draft here nearer to the time.

[AndyOrch]

Its a little wordy.....but you have covered all the main points. If I may suggest that you move all re their application for SJ and expert witness testimony to the intro of the statement IE 4 before point 2...then run into the background.

 

The statement would be ideal if it was a statement submitted as part of the normal process IE after allocation...but this statement is simply to defeat their application for SJ and the use of a expert witness in said application...you must get the Judges attention within your first opening paragraphs.

 

Andy 

[AndyOrch]

I normally draft a statement in response to SJ with the following intro and conclusion.

 

I Mr ******, being the Defendant in this case will state as follows; I make this Witness Statement in objection and to oppose the claimant application for Strike Out/Summary Judgment in view of my defence submitted to the claim dated xxxxxx pursuant to CPR 24.5 (1) a/b.

 

I will respond to each paragraph of the same numbered as in the claimant’s statement.

 

Intro

 

 

Summary

 

17. Therefore paragraphs 19 – 20 I respectfully request the court dismiss this application for Strike Out of my defence /Summary judgment, that there are compelling reasons as to why this claim should be disposed at trail and put the claimant to further strict proof to disclose the requested documents on which their claim relies upon.

 

Should the claimant fail to comply their claim be struck out under CPR 3.4 as having no basis.

 

 

Also you will be required to finish it with the updated statement of truth.

 

 “I believe that the facts stated in this witness statement are true. I understand that proceedings for contempt of court may be brought against anyone who makes, or causes to be made, a false statement in a document verified by a statement of truth without an honest belief in its truth.”

 

 

 

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[AndyOrch]

Supplemental witness statements can be served not less than 3 days pre hearing......and usually its agreed between parties that they will add further statements.

[AndyOrch]

I will give you my opinion and advice when I've read the content 

[AndyOrch]

That's not a Supplemental statement in addition....its the main statement.....have they not already summitted their statement in support of their application ? 

[AndyOrch]

So not a supplemental...more a re draft after having received yours.....its not headed " Supplemental Statement "

 

Does it vary much to the original application statement ?

[AndyOrch]

Yes please upload the original then I can have a quick scan.

[AndyOrch]

Struggling to see much difference...but the first is dated 28th Aug 2020 made with application and the date of this second ?

[AndyOrch]

You recall I stated that your statement was a little wordy...well this is a direct result of what happens...your feeding information for them to use against you. A statement in response and objection to a SJ application should really only deal with the points based on their application and why you need to inform the court that this application is not suitable for the claim and it must proceed to a hearing.

 

Summary judgment applications must meet the stringent requirements of CPR 24 to qualify and be suitable to dispense with the need for the claim to proceed to full trial.

 

Are you following this topic ?  Their application been dismissed.

 

 

[AndyOrch]

I'm afraid it does constitute...but its not really a response...nor is it a supplemental.....simply and updated statement having the benefit of seeing your response.

This must be brought to the judges attention ....verbally...ask the judge to confirm which statement the claimant wishes to relay on ...Aug of last years or this weeks ?

 

That way you bring it to the judges attention.....if they have not filed with the court in time...but simply served you...then that second statement is inadmissible.

[AndyOrch]

Well CPR 24.5 states...but what you have been served is neither...not a response or a SWS....so In my view it should be disregarded ...not that there is anything new or threat to your response....but get the fact over to the court...its not process.

 

2) If the applicant wishes to rely on written evidence in reply, he must –

(a) file the written evidence; and

(b) serve a copy on the respondent,

at least 3 days before the summary judgment hearing.

 

 

[AndyOrch]

Apologies I wasn't able to get on to the forum yesterday...well done on beating their application....if you could expand as to why the judge dismissed their application ?

[AndyOrch]

Sounds promising and as should be.....the laws are completely incompatible.....totally unsuitable for summary judgment as I advised....hence why all the claims made they always file for SJ because they don't want the claim to proceed to full hearing.

[AndyOrch]

Good.....so now if you could refresh your topic and upload a copy of the particulars...your initial defence and a copy of their statement in support of their failed application...all redacted...so we have all the information in one post for easy reference.

 

Andy

[AndyOrch]

And the date you must comply with the order......you blanked it out not sure why .

[AndyOrch]

Eeeek...not much time then...so have a go at afresh particularised draft...a bit like a statement but not if you get me. Dont divulge too much detail you must keep to their particulars of claim on point.

 

I would have their particulars in front of me along with their application statement although it failed it does give you insight to their argument and what they are relying on.

 

Have a copy of the Order and look closely at the judges directions...why has he requested a/b/c/ etc read between the lines......he obviously wasn't impressed with their application ...so join the dots up for him.

 

Have a go post it here and I will give it the once over before you have to submit. You cant rely on English law but you can utilise the CPR and what a court expects from a claimant to prove its case and also be CPR compliant.

 

[AndyOrch]

Quote

So there is no point to argue that application of English Law to Foreign Law contracts are fundamentally incompatible? And that it is not reasonable to try to apply one to the other?

 

Correct because of the none exclusive jurisdiction clause....there are downsides to this type of clause also in that there is a risk of parallel proceedings and therefore you could argue that the UK Courts are not the preferred venue when a claim really should be heard in its own jurisdiction.

 

No further applications is a good sign the judge will not tolerate any further applications and the claim will proceed to a full hearing.

 

Costs are subject to CPR 44.

 

PART 44 - GENERAL RULES ABOUT COSTS

WWW.JUSTICE.GOV.UK

 

[AndyOrch]

But how do you determine if the agreement is valid or invalid under foreign law ?  As long as they can disclose an agreement in English with your signature/date...that is all that is requires to support their claim.

[AndyOrch]

Then that should be a fundamental argument to your defence.

[AndyOrch]

Okay thanks.....

 

Your particulrised defence you cant have a separate intro sheet it must all be incorporated into the main body of the defence.

Looking again at the judges orders its rather strange that a defendant should have to prove points to deny liability rather than the claimant having to prove its claim..I'm sure you have heard the saying  " innocent until proved guilty " it would appear the judge is leaning on you more to prove that innocence  rather than the other way around and the claimant having to prove its claim.....under UK law its for the claimant to prove its claim.

 

There is also an illegibility issue with the documents even with or without a signature...that would be straight forward under UK law and CCA1974...basically if you cant read it its not enforceable. I note you have referred to this but it wont harm to mention the UK equivalent to UAE and state that it therefore renders the the reconstituted version unenforceable as it would pursuant to CCA1974  sec 61 (1c)

 

I cant really advise further bar the points above.....it will be easier to attack if and when you get to allocation stage and then you can counter their witness statement.......anyway a claim cant really be decided on particulars vs defence....lets hope the defence is accepted and proceeds to allocation.

 

Andy

 

 

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[AndyOrch]

Scratch that..its the experts report CV

[AndyOrch]

Disclosure of documents will expand once you draft your witness statement because if you refer to any documents within your statement they become your disclosure...you cant refer to a document unless you disclose it. So you may use the claimants documents or anything of your own that you wish to rely on.

 

N.B you have only submitted a defence so far this is your first witness statement.

 

Andy