I need help to Serve a writ to recover a loan

[steampowered]

The six year time limit starts running from the date on which the Defendant was obliged to pay back the money, not from the original date of payment.

 

I have seen an argument used which runs like this. The Defendant was not obliged to pay back the money the same moment it was paid, since there would be no point paying the money only to demand it back 10 seconds later. The obligation to repay only arose once the Claimant demanded repayment. Therefore, the six year time limit only began to run from the date of the Claimant's demand, even if that demand was only made several years later. There is case law to support this kind of reasoning.

 

Of course, payments made less than six years ago will not be SB on any interpretation.

 

Let me explain the Defendant's reference to an indemnity. Unless you are in small claims track, the general rule is that the winner of legal proceedings is ordered to pay the loser's legal costs. Most of the time costs are awarded on the "standard basis" which means the winning party must show the costs were reasonable. On average this results in recovery of around 60-70% of legal costs. However, if the court disapproves of the paying party's conduct, it can order costs to be paid on the "indemnity" basis. This switches the burden of proof and it will be assumed that costs were reasonable unless the paying party can prove otherwise. On average this results in recovery of around 90% of legal costs.

 

However .... a claim for less than 10k will be small claims track. It is very rare for costs to be awarded on this track. They only get awarded if one party has behaved very badly.

 

Regarding legal aid, there is information here: http://www.adviceguide.org.uk/england/law_e/law_legal_system_e/law_taking_legal_action_e/help_with_legal_costs.htm. You can also approach solicitors who accept legal aid and they can apply for it on your behalf. However bear in mind that the legal aid budget is extremely limited ... my instinct is that you will find it very difficult to get legal aid for this kind of case. It sounds like you are capable of making the claim yourself in small claims track if necessary.

[steampowered]

Hi steam. I get the impression that the defendant's solicitors are referring to security for costs under CPR 25. What do you think?

 

Hi Ganymede,

 

Yes I think you are right. Their threat of asking for an indemnity is a bit ambiguous but this is certainly one way of understanding it.

 

However the provisions of Part 25 concerning security for costs do not apply to the small claims track ... so as long as the Op is claiming less than 10k they won't be able to get security for costs.

[steampowered]

Steam - you said "...the six year time limit only began to run from the date of the Claimant's demand, even if that demand was only made several years later. There is case law to support this kind of reasoning..."

 

Will you please send me a link to this case law as that will be really, really useful. If not then how can I check this - pl give me any clues.

 

Sure. Have a read of section 6 Limitation Act 1980: http://www.legislation.gov.uk/ukpga/1980/58. This seems to say that, where you have a 'contract of loan' without a fixed repayment date, the limitation period only begins to run when a written repayment demand is made.

 

A transcript of a leasing case on this is available here: http://www.bailii.org/cgi-bin/markup.cgi?doc=/ew/cases/EWCA/Civ/1996/1352.html. The facts are pretty simple: a loan was made in January 1984, a repayment demand was issued more than six years later in September 1990 and proceedings were started in 1993. The Court of Appeal held time began to run in September 1990 thus the loan was not statute barred.

 

Do remember that an email or text message asking him to repay the money could count as a written repayment demand. If he can find an email you sent him in 2005/06 asking about the money that will cause a problem.

 

Regarding Indemnity... in the past, I have won a couple of cases where I represented myself and the loser always pay all the costs.

So i am confused by your comments Steam.

 

The normal procedure is that the judge will award costs to be paid without specifying the amount. If the parties cannot agree the amount, then the paying party will need to have the court decide what he can recover at an assessment hearing.

 

The classic rule of thumb is that 60-70% recovery for standard basis and 90% for indemnity basis is typically awarded at an assessment. Of course this is very fact specific ... if the costs claimed are very reasonable you might get 100% recovery on standard basis.

 

Sometimes the judge will set an amount for the costs at the hearing. This is known as summary assessment. Judges normally do this where the amounts are quite small and thus an assessment would be disproportionate. If you are a litigant in person claiming costs at £18 an hour the judge will probably set the amount there and then without too much scrutiny ... but if you are a solicitor claiming £400 an hour then the amount is going to attract a lot more scrutiny.

 

The value of the claim is over 10K I am afraid.

 

As you are claiming more than 10k they could, in theory, apply for security for costs. As Ganymede pointed out this might be what the solicitors were threatening.

 

Realistically, I think this is unlikely. The grounds for getting security for costs are quite limited and doubtful whether you fall into any of the categories ... see CPR 25.13 http://www.justice.gov.uk/courts/procedure-rules/civil/rules/part25.

 

The OP says the claim is over 10k. If it is not significantly over would it be possible or even wise to reduce the sum claimed to below that limit or could that be abuse of process.

Oops, missed that post!

 

It would be perfectly in order for Op to claim only part of what he feels he is entitled to. This would be a sensible move if it is only just over 10k.

 

It would only become an abuse of process if the Op tried to split the claim. For example, the Op could not claim 9k now and another 9k in two years time.

[steampowered]

That is the most common ground ... but only applicable for companies so not relevant to individuals such as yourself.

[steampowered]

Civil cases are decided on a balance of probabilities. The judge will decide whether it is more likely than not that this person owes you money. The burden of proof will be on you to convince the judge that this is the case, based on the evidence you produce.

 

I'm not sure there is anything be gained by citing law here. The dispute seems to be about a factual issue (whether you lent money) rather than any technical legal issue. SB is more of a legal issue, but I am reluctant to comment further without knowing what was said about this in the Defence.

 

Lying in a formal document verified by a statement of truth (e.g. a Defence) is treated as criminal contempt of court. In reality, it is very unlikely anyone will be too bothered. The best way to punish unreasonable conduct such as lying in a statement of case is through asking for legal costs on the basis of unreasonable conduct (in small claims) or costs on an indemnity basis (in fast track/multi track).

[steampowered]

he denied borrowing any money and said i should prove my claim. .... Thats it. There was no mention of SB.

It is surprising that this is not in his Defence. If it is not in his Defence I am not sure whether the judge would entertain that argument at trial.

 

Best not to mention it until he does. If he does, you can suggest it would be appropriate for the hearing to be adjourned in order to allow him to submit an amended Defence, with an order for costs of the adjournment. If that doesn't fly, you need to be prepared with reasons why you think it is not SB. Loans are SB 6-years from when repayment was due.

On what basis can I ask him to indemnify my legal costs when I am representing myself?

As you are in fast track the default rule is that the loser will pay the winner's legal costs. Have a read of the sticky about Litigant in Person costs - bring a schedule of costs setting out time spent on the case at 18 an hour to the hearing.

 

 

I personally would not bother with a Reply, since the Defence does not raise any new legal matters and nothing which is not already covered by your Particulars of Claim.

[steampowered]

I was under the impression that the OP only demanded the money very recently? Hence it was not "due and owing" prior to that and is therefore well within the limitation period?

 

Apologies if I am mistaken.

 

If the defendant is being advised by a solicitor behind the scenes, who actually claimed limitation in without prejudice correspondence beforehand, it is probably that they know the argument won't wash in court? Just speculating here of course.

 

That is certainly the position the op should take. I have some doubts about whether the judge would accept that in practice if limitation is contested ... you wouldn't normally wait 8 years before demanding repayment of a loan. I think it is a contestable argument so would have expected at least a mention in the Defence, also because the solicitors mentioned limitation in their 'without prejudice' letter.

[steampowered]

CPR 31.14 can only be used to ask for documents mentioned in a statement of case, i.e. his Defence. Unless he actually referred to credit card statements you cannot use a CPR 31.14 request to ask for them. You also cannot use CPR 31.14 to ask for a breakdown.

 

You can ask for further information (not documents) by using a CPR 18 request but no obligation on the Defendant to respond. There is a sticky about this here: http://www.consumeractiongroup.co.uk/forum/showthread.php?255329-CPR-part-18-vs-CPR-31.14-Confused-well-read-here.

 

I would leave the intent to defraud thing alone. Whether or not he has paid the correct amount of tax is not relevant to the case at hand. His tax liability depends on the actual legal nature of the payments, not what he thinks the legal position is or says the legal position is in his Defence. He cannot have "defrauded" HMRC if this is a loan since there would be no tax liability to defraud, you cannot defraud HMRC out of nothing. If you lose the case you can report him to HMRC but I think this is not something to get excited about.

 

I would be inclined to wait until the case reaches the disclosure stage before seeking further documents. This comes later. In any event if you already have proof of what payments were made and when from your own statements, I am not sure his statements would add anything.

[steampowered]

Hi,

 

Yes, when I said I was surprised he did not mention it in his Defence I was referring to the Statute Barred issue. I suspect that the judge will not entertain this line of attack if he rasies it for the time at trial, though it is ultimately up to the judge so you should be prepared.

 

My opinion on the Reply is unchanged. You say he borrowed money. He says he did not borrow money. This is not an issue which will be resolved by sending documents to each other. It can only be resolved by a judge and the appropriate place for it to be resolved is at a hearing. As you say you feel you have already proved your claim in the POC, so I am not sure what your Reply would say other than just repeating the Particulars of Claim. Of course if you feel there is some new information to add in response to his Defence then feel free to serve a Reply with this new information.

 

If you feel you can prove based on the documents that the Defendant has no real prospect of successfully defending your claim, then you can apply for summary judgment. There will be additional paperwork and court fees for this. I personally would be inclined to wait until the hearing, which will be decided on a balance of probabilities.

[steampowered]

Yes, its a good idea to have everything on paper. Just make sure it is clearly structured so that the judge can follow it. Do not bombard the judge with pages and pages of excessive detail.

 

There will actually be another chance to submit things: the next stage will be directions questionnaire and then disclosure. You will likely be ordered to disclose the documents you are intending to rely on at the hearing a certain number of days before the hearing, and this can include a witness statement. It is not necessary to attach all your documents to the Reply.

[steampowered]

Documents would usually be provided later. The idea of Particulars of Claim/Defence/Reply is to set out your case. To be honest I don't think it matters either way, if you want to attach this list to your Reply then go ahead.

[steampowered]

Regarding your question in post #60, I am fine with your proposed approach. Just remember to keep the Relpy concise, and bear in mind that the burden of proof is on you to prove that he owes you money, on a balance of probabilities (burden of proof is not on him to disprove it).

[steampowered]

D3 is multi-track only, I assume you are going for fast track and so not relevant here?

 

Yes, for D4 put standard disclosure. The two boxes only apply to multi-track so leave blank.

[steampowered]

Objecting to the extension would be pointless. The courts do not strike-out people's claims or defences because they are a couple of days late completing the DQ. I think you just have to sit tight.