Tips on witness statement needed

[Zimmie]

Hi,

Can anyone offer me some advice on making a witness statement.

I received the court papers about a year ago, entered an embarrased defence as the P.O.C. were incomplete and they ignored my CPR31.14 letter. The sols bringing about the court action (on behalf of Equidebt) have for a year been applying for stays, but they still haven't responded to my CPR31.14.

Where do I start in the witness statement? At the point of the sols making contact or before that?

Hope someone can give me some hints.

Many thanks.

[The Mould]

Hi,

Can anyone offer me some advice on making a witness statement.

I received the court papers about a year ago, entered an embarrased defence as the P.O.C. were incomplete and they ignored my CPR31.14 letter. The sols bringing about the court action (on behalf of Equidebt) have for a year been applying for stays, but they still haven't responded to my CPR31.14.

Where do I start in the witness statement? At the point of the sols making contact or before that?

Hope someone can give me some hints.

Many thanks.

 

Good afternoon Zimmie

 

When you filed your embarrassed defence, was the claim allocated to track or was the claim automatically stayed as a result of no notification from the claimant back into court?

 

Have you telephoned the court to ask when this claim was stayed?

 

Kind Regards

 

The Mould

[Zimmie]

Hi,

It was back in Jan 2010 when my defence was entered. Had a letter from the court Jan 2010 saying they were serving a copy of my defence on claimant's sols. Had a letter from Sols end of Jan 2010 saying they do not accept my defence and that they have written to court to request matter be transferred to my local court and proceed as a defended matter.

I received notice of the transfer in early Feb 2010, I completed the AQ (small claims track) and returned it to the court late Feb 2010. From then the claim has been stayed several times March 2010, May 2010, June 2010, July 2010, Aug 2010 & Oct 2010. I then received a Notice of Allocation to the Small Claims Track (hearing) mid Jan 2011.

I have received an offer to settle out of court (Calderbank offer I think its called), but I still haven't received the info requested in the CPR31.14. The sols have quoted Waksman at me when I pointed out no CCA. They have sent a barely readable application form with no T & C, the sent a set o0f freshly printed T & Cs which do not tarry up with date on application form due to amounts of penalty charges shown on the T & C.

Does this make any sense to you, I hope so 'cos it doesn't to me

Many thanks.

[Zimmie]

Sorry, it was Carey they quoted not Waksman.

[The Mould]

What are the contents of their offer to settle (Calderbank)?

 

Kind Regards

 

The Mould

[Zimmie]

Hi,

The letter is headed Without Prejudice Save as To Costs, and they are prepared to accept an amount which they consider is approx £1000 less than their client is entitled to. The amount would be in F & F settlement inc interest & costs. However, I don't have it, and I don't consider I have the necessary documentation to prove its due.

The offer will be open for 2 weeks from date of their letter. If I accept they will draw up a Consent Order...not sure what that is.

Thanks.

[The Mould]

Hi,

The letter is headed Without Prejudice Save as To Costs, and they are prepared to accept an amount which they consider is approx £1000 less than their client is entitled to. The amount would be in F & F settlement inc interest & costs. However, I don't have it, and I don't consider I have the necessary documentation to prove its due.

The offer will be open for 2 weeks from date of their letter. If I accept they will draw up a Consent Order...not sure what that is.

Thanks.

 

Firstly, if they are making a genuine offer and putting it on your table to consider, if you accept, then there is no need for a consent order, so, is their offer a genuine one?

 

How much is the claim and what amount do you genuinely believe is owing to the claimant?

 

Always be aware of consent orders, do not sign them!

 

So, still no compliance with said CPR request, the claim is stayed and the claimant puts an offer on your table on the condition that if you accept, he will draft a consent order for you to sign.

 

Let them withdraw their offer (it expires in 2 weeks anyway), then they will need to make an application to lift the stay and proceed with the claim, you will receive a notification of this, then you can make an application for disclosure and inform the court of the claimant's non-compliance with your said request.

 

Do not sign any consent order!

 

Let the claimant make the next move on the board, then you can deliver check mate.

 

Post back here when you hear of any developements in the proceedings, without delay Zimmie.

 

Kind Regards

 

The Mould

[Zimmie]

Hi,

Thanks very much for help.

I did reply to their offer...just saying I was seeking advice on it...so they couldn't say I'd ignored them. I have no intention of accepting it, or signing anything.

 

I'm still unsure of the starting point for my witness statement, I have another week to get it done and handed in.

 

They have until 17th (today) to pay the hearing fee, I shall phone tomorrow to see if its been paid...mind you from what I can see its only the lay person who has to abide by the rules!

[Zimmie]

Hi, Sorry to go on about this but I'm getting myself in a real state over it. The more I read the Notice of Allocation to the Small Claims Track (hearing) forms the more confused I get. I have to send a bundle along with the witness statement...what do I put in a bundle? Would it be copies of letters/documents that are referred to in the WS?

Many thanks.

[The Mould]

Hi, Sorry to go on about this but I'm getting myself in a real state over it. The more I read the Notice of Allocation to the Small Claims Track (hearing) forms the more confused I get. I have to send a bundle along with the witness statement...what do I put in a bundle? Would it be copies of letters/documents that are referred to in the WS?

Many thanks.

 

Hello Zimmie

 

Any documents that you have refered to or intend to rely upon should be disclosed, so make copies thereof and enclose with your AQ.

 

Did the claimant pay the fee then? For the Hearing.

 

Kind Regards

 

The Mould

[Zimmie]

Hi The Mould,

Yes the claimant paid the hearing fee I was really hoping they wouldn't so I wouldn't have to do this WS as I don't have a clue what to do.

I think once I can get started I might be O.K., I just don't know where to start!

Should the WS be sort of a response to the Particulars of claim?

Many thanks

[The Mould]

Hi The Mould,

Yes the claimant paid the hearing fee I was really hoping they wouldn't so I wouldn't have to do this WS as I don't have a clue what to do.

I think once I can get started I might be O.K., I just don't know where to start!

Should the WS be sort of a response to the Particulars of claim?

Many thanks

 

What directions did the court give you Zimmie?

 

If you would like to know how to draft/format a WS, then go to the bilious thread - 'urgent on this please please help' in this legal issues forum and you will see an example of WS there.

 

Kind Regards

 

The Mould

[Zimmie]

Hi, I'm guessing that by directions you mean this bit.....

 

By 14 days before the hearing the Claimant must send to the court and to the Defendant copies of all documents he intends to rely upon at the final hearing. These must be in a bundle with each page clearly numbered. The Claimant MUST bring the originals of those documents to the final hearing.

 

Then a paragraph saying same but stating Defendent must send to court and to the Claimant.

 

On the next page it says...

By 14 days before the hearing the Claimant and the Defendant must send to the court and to each other copies of the witness statements of all the witnesses they intend to rely upon at the final hearing.

 

Post Allocation: The judge considers your case is suitable for mediation and you are therefore encouraged to use the Small Claims Mediation Service.

I have contacted the number given for this and am awaiting a call back with a date and time for the mediator to ring me.

 

 

I'll have a read of the thread you mentioned. With many thanks.

[postggj]

just speaking out loud

 

as this has been going on for over a year and no reply to your cpr 31.14 request

 

why dont you apply to have the claim struck out??

[The Mould]

just speaking out loud

 

as this has been going on for over a year and no reply to your cpr 31.14 request

 

why dont you apply to have the claim struck out??

 

Very good point indeed.

 

Zimmie, have you considered that option, you know the claimant wants a consent order signed (I know you are not signing it), but that would give you a clue as to the strength of his claim.

 

Kind Regards

 

The Mould

[Zimmie]

Can I do that at this stage?

Also I think that the sols consider that they have responded to my CPR31.14 as they sent another copy of of the application form, they added to this a set of T & C which bear no relation to the application form, when I pointed this out they quoted Carey and said they had enough to win in court. The T & C they sent were just word docs with my name and address added, they are not signed, and they show some charges on them which no way would have applied at the time of the application form. The letter that came with these did not refer to my CPR31.14 just says we enclose copies of original documents which will help form the basis of our claim. (The judge states that originals MUST be produced...that could be interesting) They have not supplied the default notice that is mentioned in the P.O.C.

In the P.O.C. the date of assignment of the alleged debt is incorrect by over 2 years, and in the last paragraph about the default notice, the final sentence says...The notice informed the.

 

I really wish I'd got to grips with this before, but while they kept applying for stays it was easy to bury my head.

[Zimmie]

Hi, well I've managed to make a start on the WS, and its much easier now I've got going on it...trouble is it might end up longer than War & Peace!

I put all the correspondence I've got in order and I've found quite an interesting little gem in one of the letters from the DCA. The letter is from August 2007 and is a response to my complaint that they had not complied with my CCA request.

 

You state that you do not acknowledge this debt and yet the statements of the account (which were sent to your home address) cofirm that balance transfers totalling xxxx.xx on xx/xx/xx were made and repayments were made on the following dates:-

 

A list of 5 dates and amounts follow.....however, the date given for the last payment is in September 2003. They have never sent me copies of any statements so I can't check it.

 

Is it worth bringing this up in my WS or just hope that the judge notices it in my bundle?

 

Many thanks.

[The Mould]

Hi, well I've managed to make a start on the WS, and its much easier now I've got going on it...trouble is it might end up longer than War & Peace!

I put all the correspondence I've got in order and I've found quite an interesting little gem in one of the letters from the DCA. The letter is from August 2007 and is a response to my complaint that they had not complied with my CCA request.

 

You state that you do not acknowledge this debt and yet the statements of the account (which were sent to your home address) cofirm that balance transfers totalling xxxx.xx on xx/xx/xx were made and repayments were made on the following dates:-

 

A list of 5 dates and amounts follow.....however, the date given for the last payment is in September 2003. They have never sent me copies of any statements so I can't check it.

 

Is it worth bringing this up in my WS or just hope that the judge notices it in my bundle?

 

Many thanks.

 

Good evening Zimmie

 

Yes absolutely state those facts in your WS.

 

If 2003 is the last date that you made a payment towards these monies claimed and thereby acknowledged the debt, then your defence is one of Statute Barred.

 

What date did the cause of action ocurr? When did the claimant issue a default notice?

 

Every fact of the circumstances must be stated in your Statement, your defence to this action, you cannot rely upon the courts to read through your documents/exhibits and make a decision on the case, you must put your arguments forward in your statement(s) and substantiate them with your evidence (exhibits)

 

Kind Regards

 

The Mould