I need help to Serve a writ to recover a loan

[fletch70]

I am not sure if this has been asked, but you say you didn't employ him but that he did work for you. Obviously if he worked for you there should be PAYE records, if he was self employed there should be his NI and tax returns.

Can he produce a payslip or contract of employment

Did he provide invoices or were these verbal agreements

 

One final thing, if we assume he did work for you at £x per week for the time he said, that gives you a total figure. Is the amount that you can prove to have paid him more or less than that

 

Assuming you are squeaky clean you may be able to discredit this evidence

[burmafriday]

hi Fletch70

He is self employed and does his own PAYE and NIC.

no he never gave me invoices but i kept a detailed and comprehensive record of all my payments

so on this occasion, i am relieved to say that i am squeaky.

BF

[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.

[burmafriday]

Hi Steamowered

thank you for your comment.

So you dont think i need to show the list of payments made with my reply - only to say that i have a list and will disclose at the hearing?

In other words, i can just submit a short reply, complete the Directions Questionnaire and then go into detail with supporting documents for the hearing?

look forward to hearing from you

all the best/BF

 

hi Steampowered,

I have structured my reply detailing a bit of background and some explanation to our relationship, then listing out every payment covering his various services substantiating that he had been fully paid, then submit this with Directions Questionnaire as Details of the loan payments have already been submitted. It thought this would be the best route to take. then at hearing ... if it goes to that, if he continues to deny , he would have to submit evidence to support his denial. My question is , do you think it too early/premature for me to submit these documents now? and if i submit them later, would the judge not take exception ... on the basis that i should have lead with submitting these first? look forward to hearing from you

thank you very much/ BF

[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.

[burmafriday]

Hi Steampowered,

Thank you very much for your comments. I have been rattling my brains through the case over this weekend with a view to submitting my documents on Monday and I have now decided to change tact. Instead of submitting further documents from my side, I am going to follow your suggestion and leave that for later. But i am submitting a reply and in it I simply ask him to prove his claims in his defense that he was under my employ and if he can account for the loan i made if it were part of his monthly salary and of course, the Direction Questionnaire. He stated the following in his defence :

 

...QUOTE

It is denied that I borrowed money from the Claimant between the dates pleaded. Therefore I did not promise to repay any such money nor did I fail to do so.

I did not borrow xxxx from the Claimant as alleged or pleaded.

I do not consequently owe the Claimant interest as pleaded

 

The Claimant employed me from the years 2002 to 2010. I was paid xxx per week

 

The Claimant paid me on different dates my salary by cash, cheque bank transfer and finally payments of my credit card bills

 

All payments made by the Claimant to any of my credit card bills was part of the payments due to me as my salary

The claimant is put to proof of all aspects of his claim.

 

...UNQUOTE

 

what do you think?

 

look forward to your reply.

thank you again

BF.

 

Hi Riz0

I was completing the N181 form and would appreciate your help with the following

D3 - do I ignore all of D3 totally, .... as there are no electronic documents

For D4 - In reply to What directions are proposed for disclosure, do I "Standard disclosure" in the box

and then tick "No" to each of the two statements

and finally, regarding Draft Directions order - just so i have the dates correct, as the date for submission of N181 is 30 Sept. so for disclosure statement date would be 10 weeks from 30 Sept and exchange of witness statements, will be 14 weeks from 30Sept.

 

I look forward to hearing from you.

thank you

BF

 

Hi Riz0

i checked the Practice Direction CPR part 28 and see that disclosure is 4 weeks and exchange of statements is 10 weeks.

all the best/BF

[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).

[burmafriday]

hi Steampowered,

thanks very much. Yes i understand that clearly. I have put him to strict proof regarding his statements on employment and alleged wage in the reply. Thats all. I have proof and i think it was best to hold these till later date rather than showing everything in the reply.

I am ready to submit the documents today. i am just waiting to hear from Riz0 on a couple of questions i asked earlier.

Once again, thank you very much

BF

[burmafriday]

Hi

 

Please may i have a clarification on the N181 form completion.

 

Regarding para D3 - I am going to select "NO" as there are no electronic documents

 

For D4 - In reply to "What directions are proposed for disclosure", do I insert "Standard disclosure" in the box

and then tick "No" to each of the two statements?

 

I shall be most grateful if some one could advise me on this as i want to send off the forms today.

 

thanks very much

BF

[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.

[burmafriday]

HI Schteam....

Many thanks for getting back. .. Will do and have it sent today.

All the best/BF

 

Hi all

have sent reply to defence and completed Direction Questionnaire,

Draft Directions by special delivery to court and copied to Defendant.

i will keep you updated as soon as theres any developments.

I cannot thank you enough, Thank you all once again.

All the best/BurmaFriday

[Riz0]

Apologies Burma. I have been busy for the last week.

 

Steam answered in any case thankfully

 

Feel free to post any questions you may have...

[burmafriday]

Hi Riz0

Thank you - its ok.

will let u know when i have more news.

BF

[burmafriday]

Hi All,

I received a notice from court that the Defendant failed to file the Directions Questionnaire by the date specified

and he has now been ordered to file it on or before 24 Oct.

This order was issued without hearing on 14 Oct.

So he's been given a 10 day extension even though he failed to reply or file the DQ by a set date.

is there anything i can do at this stage - can i object to this extension ?

I know i can just sit and wait - but that does not seem fair to me. Afterall he has been given ample opportunity to file the DQ - as I did.

Any comments PL?

thanks very much

BF

[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.

[burmafriday]

Hi Steam-

thanks for getting back so fast!!

yes i guess so. Roll on 24th. he might just fail again.... we hope.

BF

[Riz0]

Have you had a chance to ring the court to check whether the DQ has now been filed? If it has, ask for a copy because he hasn't sent you a courtesy copy. You should send him one of yours too, just as good practice, but only if he's filed a copy otherwise you don't want to send him another reminder.

 

If he hasn't filed it, send a very brief email (but mark it urgent) to the court highlighting the fact that a second deadline set by the court has been ignored by the defendant and that you would like further directions from the court, namely, the Defendant's statement of case being struck out in its entirety pursuant to CPR 3.2 and judgment being entered in your favour with costs.

 

Some judges can be difficult and if you were represented they may ask you to make an application, on the other hand he/she may just accept your letter and make an order of their own accord (as they should do to manage costs!).

 

Alternatively, you can go straight to making an application and ask for it to be dealt with on paper to avoid the chance of a judge taking time to consider your letter/email and then asking you to make an application. If you want to go down this route, just say and I will be happy to direct you.

 

There are two possible and likely substantive outcomes from an email/application. Either the judge orders a final "unless order" that allows you to apply for judgment if the order isn't complied with in 7 days, or he may strike it out immediately for non-compliance, award you judgment and costs.

[burmafriday]

Hi Riz0 and everyone,

i phoned the court on Friday last week and they told me that they had not heard anything from the Defencdants and for me to call back this morning which i have done.

They told me that they "struck out" the defense yesterday as the Defendant failed to file an allocation Questionnaire. I was told I may write and ask for Judgement. Should I wait for an official letter from the court or should i send my application for Judgement now?

 

can you help me with this application please? What do I say? All i can think of is writing something short like, "....i am writing to apply for Judgement as the defense has been struck out..."

i think may be thats too succinct!!

 

I don't know whether to laugh or cry at the moment!!!

I cannot thank every one at CAG enough. This would not be possible at all with out your help. So Thank you.

I feel a Gwyneth Paltrow moment coming on so i better go.

 

all the best/BF

[Andyorch]

I would be laughing you are alomost there but they may have option to set a side within a given period.

 

Regards

 

Andy

[burmafriday]

Hi Andy

yes i guess that could be their next move, but on what grounds?. They were granted ample time to make a submission, The court even extended the deadline.

i guess we have to deal with it should the occasion arise.

 

All the best/BF

[Andyorch]

It depends if the option is available within the General Order to the defendant...but the claim has only been struck out therefore as advised above you must request judgment and costs by way of an application/draft order.

[burmafriday]

Hi Andy,

Yes. Thank you for your message.

would it be possible for you to point me to a link or let me have an appropriate Draft order.

Many thanks

BF

[Andyorch]

You should be able to request judgment through the MCOL claim screen...try selecting the judgment start option as the defence has been struck out then it should become a default judgment failing that by using the N225 (request for judgment) but that is for a part admission not default judgment.

[burmafriday]

Hi Andy

Thank you for your fast reply. I did not submit my claim through MCOL. I put it through MC Northampton "Manually" But i will check it out and give it a go.

thanks Again

BF

[Andyorch]

You wont be able to use MCOL in that case.....try using the N225...otherwise it will have to be an N244 and draft order.

 

Odd one this because even though they have submitted a defence the defence has now been struck out so in effect a default judgment could apply.

 

Strike out order by the court that either all or parts of the defendant's statement of case are deleted. The deleted material can then no longer be relied upon. A court would need to find that either the statement of case discloses no reasonable grounds for defending the claim or that it is an abuse of process or it is likely to obstruct the court's just disposal of the proceedings or that the defendant has failed to comply with the CPR or a court order. A court, on its own initiative, can make an order for strike out.This provides the court with the power to dispose summarily of claims in furtherance of CPR 1.4(2)© of the Overriding objective. The court has a discretion to give an affected party an opportunity to make representations.

 

Read here :-

http://www.justice.gov.uk/courts/procedure-rules/civil/rules/part12 PD 11