Claimant Concealing Evidence. Misleading the Court. Factually incomplete Statement of Claim

[Robert Marks]

Joining a party as Defendant to an action

 

I am a litigant in person with very limited resource and not enough disposable income to pay for legal counsel.

 

I am being sued in the High Court by an unscrupulous multi-national for whom I used to work and I find myself at a disadvantage due to my lack of knowledge pertaining to proper High Court procedures.

 

The claim relates to a loss ocassioned by one part of the multi-national group (A) ocassioned by a breach of contractual undertaking to a client by another part of the multi-national group (B).

 

(A) is now suing me for acts that occured long after the breach by (B). In an attempt to recover its losses from an external source, rather than from its sister company (B), the claim disingenuously alleges that my subsequent acts caused the loss.

 

Moreover, (A) has dishonestly attempted to conceal the contractual undertaking of (B) and has not referred to it in its Statement of Claim against me. I have subsequently discovered the existence of the undertaking, the breach of which was the true cause of the loss sustained by (A).

 

I would now like to apply to the Court for an order under CPR 19.4 to have (B) added as a Defendant to the proceedings on the basis that clear evidence exists that (B) was the true cause of the loss for which I am now being sued.

 

In the alternative, I would like to apply to the Court for the case to be struck out on the basis that it is an abuse of the Court's process.

 

However, I have no idea how to make a proper application to the High Court for such an Order and I am afraid that, notwithstanding the merits of the application, that it may fail for improper adherence to the proper process.

 

Any advice would be gratefully received.

[AndyOrch]

Hi Robert ( I assume thats not your real surname?)

 

19.2

(1) This rule applies where a party is to be added or substituted except where the case falls within rule 19.5 (special provisions about changing parties after the end of a relevant limitation period(GL)).

(2) The court may order a person to be added as a new party if –

(a) it is desirable to add the new party so that the court can resolve all the matters in dispute in the proceedings; or

(b) there is an issue involving the new party and an existing party which is connected to the matters in dispute in the proceedings, and it is desirable to add the new party so that the court can resolve that issue.

 

Regards

 

Andy

[Robert Marks]

Dear Andy

 

Thank you for your prompt reply

 

Your assumption is correct about the surname

 

I can confirm that CPR 19.5 does not apply. The matter occured in 2008/2009 and so within limitations.

 

We are at early stages of litigation with Claim and Defence having been filed, but prior to the Court Managment Conference.

 

I am aware of the CPR 19.2 conditions for addition of a party and believe that I have grounds to apply for (B) to be added to the proceedings on this basis.

 

My question pertains to CPR 19.4 which relates to procedure for such an application but is a little thin on detail.

 

For example:

(1) do I make the application ex-parte or do I need to serve the Claimant with the application?

(2) do I need to serve company (B), the company that I seek to have added as a Defendant, with the application when it is made to the court or is (B) only served with the Court Order after it has been made?

(3) what evidence do I need to serve with my application?

(4) are there any fees associated with such an application?

(5) are there any legal precedents that I ought to read prior to making an application so that I may avoid any pitfalls?

 

I need to give myself the best chance of success in making this application and I want to avoid having the application turned down on a technicality.

 

As a litigant in person I find myself at a distinct disadvantage and the system seems not to cater very well for people like me. Justice can only be done if there exists a level playing field. However, I feel very much as though I am groping around in the dark while the Claimant has a team of experts with night vision goggles!

 

Any pointers would be gratefully received. Is there a website or are there Court leaflets available with more detail about how to make such applications?

 

Best regards

 

Robert

[AndyOrch]

Ok this is the part which relates:-

 

19.4

(1) The court’s permission is required to remove, add or substitute a party, unless the claim form has not been served.Claim is served so no permission required

(2) An application for permission under paragraph (1) may be made by –

(a) an existing party;

 

So you would make application N244 with a draft Direction pursuant to CPR19.2 with an hearing so fee is £80

 

(2) The court may order a person to be added as a new party if –

(a) it is desirable to add the new party so that the court can resolve all the matters in dispute in the proceedings; or

(b) there is an issue involving the new party and an existing party which is connected to the matters in dispute in the proceedings, and it is desirable to add the new party so that the court can resolve that issue.

 

Submit relevant evidence which you rely upon and is tantamount to your reasons.

 

5) An order for the removal, addition or substitution of a party must be served on –

(a) all parties to the proceedings; and

(b) any other person affected by the order.

 

I will try to find some Precedents Robert but in the meantime you may find The White Book http://www.infolaw.co.uk/pod/sm-whitebook.htm or Goode invaluable.

 

Regards

 

Andy

[Robert Marks]

Andy

 

Thank you very much, this is very helpful

 

I note that in form N244 at question 9 it asks to whom I wish for the Court to send my application. You state in your last response to my post, inter alia:

 

5) An order for the removal, addition or substitution of a party

must be served on

–

(a) all parties to the proceedings; and

(b) any other person affected by the order.

I am guessing that the answer to Question 9 on the N244 is therefore the Claimant and the third party that I wish to be added as a party to the proceedings?

 

Will that party have the opportunity to make representations at the hearing?

 

Surely not? It is not yet a party to the proceedings and I was certainly afforded no opportunity to make representations before proceedings were served upon me.

 

Additionally, question 8 on the N244 asks what level of judge should be allocated to the hearing (a Master, a District Judge or a Judge). The proceedings are High Court proceedings but as a litigant in person I have no idea what level of judge is required.

 

Kind regards

 

Robert

[The Mould]

Excellent advice there Robert from Andy, as always.

 

Your above post mentions that you are in possession of evidence which affirmatively proves that you are not legally responsible for the cause of action complained of by the Claimant, rather it is in fact the case that another party, (B), is the wrongdoer in this dispute, therefore, B is legally responsible for the same and the Claimant has no argument against you.

 

In these circumstances, before making an application to the Court pursuant to CPR Part 19 against B, it might perhaps be a good idea to put the evidence that you speak of to A, request that in the light of such, you are not liable for his claim and invite him to withdraw the same and take his issue to B, whom, based on the irrefutable evidence is the real cause of his complaint. Request the Claimant's full response to these said facts within 7 days, failing which, you will make the application under the Part 19 procedures which will then bring his conscious suppression and concealement oas to the facts and reality of this matter to the attention of the Court and that it will then be for him (the Claimant) to explain his reason(s) as to why he has misled the Court.

 

I hope that helps somewhat.

 

Kind regards

 

The Mould

[andydd]

A good source of advice is to just google CPR 19 and visit the justice.gov.uk CPR site and read the various rules, there will normally be a link at the top taking you to the PD (Practise Direction) 19 which will be a list of pracitical steps in order to implement the relevant CPR.

 

Heres CPR 19 > http://www.justice.gov.uk/courts/procedure-rules/civil/rules/part19

 

and

 

PD 19 > (Three PD's are linked at top of CPR page)

 

Nearly all apllications/evidence need to be served upon both the court and other party (or solicitor) so serve it on both, even if your not sure. (In order to stop other side claiming they didnt get it, I always fax/email it as well).

 

Andy

[Robert Marks]

Dear The Mould

 

Thank you for this very valuable advice.

 

I shall do as you suggest.

 

Yours sincerely

 

Robert

[Robert Marks]

Thank you kindly for this advice Andy

[The Mould]

Andy

 

Thank you very much, this is very helpful

 

I note that in form N244 at question 9 it asks to whom I wish for the Court to send my application. You state in your last response to my post, inter alia:

 

5) An order for the removal, addition or substitution of a party

must be served on

–

(a) all parties to the proceedings; and

(b) any other person affected by the order.

I am guessing that the answer to Question 9 on the N244 is therefore the Claimant and the third party that I wish to be added as a party to the proceedings?

 

Will that party have the opportunity to make representations at the hearing?

 

Surely not? It is not yet a party to the proceedings and I was certainly afforded no opportunity to make representations before proceedings were served upon me.

 

Additionally, question 8 on the N244 asks what level of judge should be allocated to the hearing (a Master, a District Judge or a Judge). The proceedings are High Court proceedings but as a litigant in person I have no idea what level of judge is required.

 

Kind regards

 

Robert

 

Robert

 

What division of the High Court are these proceedings in?

 

The third party, B, may well be granted an opportunity to make respresentations in respect of your application before the Court directs that he is or is not to be mad party to the case.

 

If you do make the app, serve a copy of B's full name and address details therewith.

 

High Court Judge or Chief Master for Q8.

 

With regards to Q9, the Claimant's sols acting and B should be served a sealed copy of your Application notice.

 

Kind regards

 

The Mould

[Robert Marks]

In answer to the question asked by The Mould, this is in the Chancery Division of the High Court.

 

Does that make a difference?

[Robert Marks]

An out of court settlement was made by company (A) to its client in relation to a breach of contract issue.

 

As an express term of the settlement agreement company (A) required its client to give evidence in a prescribed from in anticipated proceedings against a third party (me).

 

The client executed the settlement agreement and the settlement amount was paid by company (A).

 

If company (A) subsequently seeks to introduce witness testimony from its client in the form prescribed in the settlement agreement, is that evidence rendered unreliable?

 

Can it be excluded on these grounds?

 

What is the basis of law for such an exclusion and are there any leading precedents on the matter?

[The Mould]

In answer to the question asked by The Mould, this is in the Chancery Division of the High Court.

 

Does that make a difference?

 

Robert

 

It would be a good idea if you download a copy of The Chancery Guide (type that in on Google) and peruse the same, you will need to become acquainted with the same in these proceedings.

 

What stage are proceedings at?

 

Kind regards

 

The Mould

[Robert Marks]

Dear The Mould

 

Proceedings are at an early stage

 

• Claim and Defence have both been filed
  
• Allocation Questionnaire has been submitted
  
• Awaiting a date for a CMC
  

Regards

 

Robert

[rebel11]

Threads merged, please keep to this thread.

[The Mould]

An out of court settlement was made by company (A) to its client in relation to a breach of contract issue.

 

As an express term of the settlement agreement company (A) required its client to give evidence in a prescribed from in anticipated proceedings against a third party (me).

 

The client executed the settlement agreement and the settlement amount was paid by company (A).

 

If company (A) subsequently seeks to introduce witness testimony from its client in the form prescribed in the settlement agreement, is that evidence rendered unreliable?

 

Can it be excluded on these grounds?

 

What is the basis of law for such an exclusion and are there any leading precedents on the matter?

 

Well Robert

 

You might argue that the 'witness' was paid for his testimony as it was in his financial interests to do so, therefore, you challenge the credibility of the witness.

 

This is clearly related to your case posted on your other thread. Did you not say that you have evidence that proves that you are not at fault for the breach and that another party (B) is the cause of the breach by failing to perform the undertaking he agreed to with A?

 

Kind regards

 

The Mould

[The Mould]

Dear The Mould

 

Proceedings are at an early stage

 

• Claim and Defence have both been filed
  
• Allocation Questionnaire has been submitted
  
• Awaiting a date for a CMC
  

Regards

 

Robert

 

Thank you Robert, and thank you Rebel for the merger.

 

Robert, can you post up the Claimant's Particulars of Claim ("POC"), what is the nature of the case, exactly and what matters did you set out in your Defence to this action?

 

Kind regards

 

The Mould

[AndyOrch]

I don't think it would be appropriate to post the P.o.C in this instance being a Chancery Case.

 

Regards

 

Andy

[Robert Marks]

I also have another related post under the head "Admissability of Witness Evidence" if any of you would like to take a look: post: 3876633

[AndyOrch]

Your threads have now been merged Robert.

[Robert Marks]

I cannot post P.o.C. being related to existing proceedings

 

If you are interested in becoming involved in this case then please let me know and we can share more information privately.

 

I could use all of the help that I can get although as stated earlier, I do not have the disposable income to fund legal counsel.

[Robert Marks]

Well Robert

 

You might argue that the 'witness' was paid for his testimony as it was in his financial interests to do so, therefore, you challenge the credibility of the witness.

 

This is clearly related to your case posted on your other thread. Did you not say that you have evidence that proves that you are not at fault for the breach and that another party (B) is the cause of the breach by failing to perform the undertaking he agreed to with A?

 

Kind regards

 

The Mould

 

I have evidence that is strong relating to company (B) being the cause of the loss, although company (A) will attempt to rebut that evidence with evidence of its own, i.e. this witness testimony

 

As such, I need to be properly prepared

[ims21]

Please note site rules about the use of Private Message facilities.

 

Please keep discussion of this matter on open forum.

 

Thanks

 

ims

[MARTIN3030]

As pointed out in post 23,which appears to have not been digested,the site is a free help site,and there is an expectation of dealings to be done openly,for the benefit of those helping,those learning,and future reference for new members.

Maybe in the past there have been some information exchanges by pm,but these have been in exeptional cases,and certainly not from the onset of new issues being posted.Insofar as email exchanges,the site has never encouraged nor endorsed this.

[Robert Marks]

Further to my posts last week I would be grateful for your further advice.

 

FACTS:

1. Company A contracts with its client to buy a commodity on behalf of the client and to use that commodity in a prescribed manner within a defined time frame
   
2. The client pays the sum agreed in the contract to Company A
   
3. Company A buys the commodity but, due to extraneous circumstances, is unable to use that commodity in the way intended and so is unable to discharge its contractual obligation within the prescribed time frame
   
4. Time is not explicitly stated to be of the essence in the contract but the contract clearly defines the time frame in which the contractual obligations are to be discharged
   
5. The contract is silent on what should happen in the given circumstances if Company A is unable to discharge its obligations. These particular circumstances were not within the contemplation of the Company A and its client at the time of contracting
   
6. Company B is a sister company to Company A. (Company B is much larger and far more solvent than Company A.)
   
7. In order to resolve the problem that would otherwse frustrate the contract, the client accepts an undertaking from Company B. It is important to stress that Company A and Company B were under common ownership and that they do not operate at arms length from one another. Company B accepted no fee for providing the undertaking to the client of Company A. The undertaking was given purely to underpin a valuable contract of Company A.
   
8. In that undertaking Company B undertook to ensure that the commodity would be used in the manner prescribed in the original contract on behalf of the client of Company A. The undertaking states that Company B will perform its obligations within 10 days of the date upon which it first became possible to use the commodity in the manner prescribed in the orignial contract with Company A. Moreover, Company B undertook to notify the client immediately upon discharge of its obligations.
   
9. In the event, Company B failed to discharge its obligation under the terms of the undertaking.
   
10. Company A subsequently winds down its business activity, terminates all of its staff and notwithstanding the fact it is not dissolved, de-facto stops doing any business. Company A was kept alive by its owners purely for the purpose of extracting value from its existing contracts. It has no assets.
    
11. Almost one year after the obligations of Company B had fallen due I became inadvertantly involved in this matter. I was employed by Company C, sister company to both Company A and Company B. Without prior knowledge of the aforementioned facts, I discovered the commodity that had originally been bought by Company A under the terms of its contract with its client two years earlier. I subsequently initiated the sale of the commodity and the proceeds of sale were returned to the the group comprising Companies A, B and C.
    
12. The client subsequently claimed the return of the contractual sum paid to Company A (I am guessing for a total failure of consideration on the part of Company A and subsequently of the undertaking of Company B).
    
13. The value of the commodity in question had fallen and Company A would have been in a position to buy replacement units of the commodity with the proceeds of sale if it had wished to do so without suffering any financial loss (in fact it would have turned a profit due to the drop in price of the commodity).
    
14. Company A claims that time was not of the essence in its contract with its client. However, if time had not been of the essence in its contract with its client then it could have acquired replacement commodity and used it in the manner prescribed in its contract with its client. However, it failed to do so.
    
15. The client was subsequently reimbursed. The settlement with the client was a tri-party agreement between Company A, Company B and the client.
    
16. I believe that the settlement between Company A, Company B and client was based primarily on the breach of undertaking between Company B and the client. The client pursued Company B since Company A was no more than a straw man at this time.
    
17. Company A together with my employer Company C issued proceedings against me alleging that I caused the loss. I am now being sued for the sum returned to the client.
    
18. In the statement of claim it is noteworthy that: (a) Company B was not a party; and (b) no mention was made about the undertaking between the client and Company B.
    
19. The statement of claim only refers to the original contract between the client and Company A. It completely omits all detail relating to Company B.
    
20. I have subsequently discovered the existence of the undertaking given by Company B to the client. I also have in my possession an email that refers to that undertaking.
    
21. I have requested the disclosure of that undertaking together with proof of payment being made to the client (my purpose is to discover which entity made the payment to the client).
    
22. So far my requests for this disclosure have been completely ignored. Not even an acknowlegement of the request.
    

My questions:

• how can I exert pressure on the Claimant to disclose the said information?
  
• if a corporate in house lawyer acting on behalf of the Claimant knows of the existence of the said undertaking and drafts his statement of claim deliberately ommitting these critical facts in order to disguise the true cause of his clients losses so that a claim may be brought against me, is that a breach of his professional legal oath? Is there some way that I may pursue this matter with the Law Society? Can he have his license to practice revoked for such behaviour?
  

Thanking you in anticipation for your help