False 5k claim through Small Claims Court

[c14r3]

Just trying to get some helpful advice regarding a false claim against my friend through Small Claims Court for money a former so called friend says she owes him.

 

Basically he's a convicted fraudster and found out my friend had sold her house and came into a little bit of money so he kept asking to borrow 5k (I believe by email) she told him no on several occasions and stopped communicating with him. Then one day she received a claim against her for 5k that he claims he lent her and says he has a witness which is all a pack of lies.

 

I know you shouldn't judge someone on their past but in this case this is his normal M.O he's just using the Small Claims Court to falsely claim money he has never given to my friend, trying to scare her into paying him the money, repeatedly telling her his Solicitor and Barrister have looked at the case and believes he will win because he has a witness and she doesn't. I wouldn't be surprised if he has withdrawn 5k at some point to corroborate his story.

 

My friend has sent the form off to defend herself and has now received another form, should this not be a police matter?? blackmail, fraud, perjury??? How can she prove that he did not give her 5k? Is it just his word against hers?

 

Any help will be much appreciated

Edited January 18, 2014 by c14r3

[Bazooka Boo]

TBH I'm not too sure whether this would be a matter for the police, as it is a he said she said matter.

 

A civil matter for all intents and purposes, I'm struggling what to advise really?

Apart from obviously defending in full, AND counter claim for damages.

 

IMO she shouldn't have anything to worry about really, she has all of her bank statements showing what goes in and out, so any notion of him claiming he lent her 5k would be easy to see, plus she came into some money so why would she need to borrow 5k??

 

This wrong un sounds unbalanced to me, well the onus of proof will be on him, it can't just be his word and that of a 'friend', he will need hard evidence.

[c14r3]

He's claiming he lent her the money prior to the sale of her house. He thinks he's clever but his story doesn't add up, surely if you lent someone 5k, you wouldn't ask them to borrow 5k if they haven't paid you back, you would just ask for your money back. She was scared and never told me about the claim when she first received it but she told me that he had asked about borrowing 5k months prior to form arriving. I'm not too sure if she even put in a good defence other than denying his claims that he ever lent her 5k. Is she still able at this stage to counter claim and claim damages, tbh I think all she wants is for it to be over and for him to disappear to a planet far far away.

[andydd]

I'm afraid anyone can start a court claim but the onus will be upon the claimant to prove his case, normally this would be contractual (i.e You borrow x amount and signed a contract), which we assume you didnt do.

 

A verbal contract can be legally binding but very hard to prove and a judge would need a lot of persueding that if this was the case.

 

I assume he hasnt sent any warning letters that the money was owing and didnt send a NBA (Notice Before Action), this is something to mention in your defence, also mention that he made not attempt to follow the CPR Pre-Action Protocols to try and settle the isue out of court, you can mention that you believe the attempt to claim the 'debt' is a fraud but wouldnt bother mentioning his previous dubious past.

 

As mentioned above he will need 'hard' evidence.

 

A possible option for you is to follow the Summary Judgement process, this is a way of getting hopeless cases thown out, for example if he hasnt provided no proof or evidence than you can put in a SJ application, this has advantages such as you can claim costs (as technicaly it wont be allocated to a track, we assume 'small'), and it will dismiss his case quite quickly, unfortunately it does carry risks, such as if the SJ is rejected and the case go forward to a full trial then you could be liable for his costs.

 

We dont know if she can counterclaim,. at what stage is the case at ?

 

Generally you can only counterclaim for something contractual, for example does he actually owe you money, you can claim for damages but youd have to prove an actuall loss or at least harrassment, distress, etc and that is quite a complex area.

 

The best that can happen is that there is no proof and the case is thrown out and you get some limited costs, travel, fees, time off work, etc

[mjt2013]

There's no apparent basis to counterclaim here, what would it be for?

 

Just defend the claim on the bias that it's not true. He'll have to prove otherwise.

[Lookingforjustice]

I would report this to the police in any event. This individual is trying to exhort money from your friend. It is highly likely he has done it before and will do it again if not stopped. The fact he has a conviction for fraud should make the police take your allegation seriously. If your friend is to claim in the civil court that this is a fraud, it would be useful to have a police report number. Maybe the friend might not be so willing to corroborate a lie if it is relation to a criminal matter.

 

The police quite often say they do not like to get drawn in on civil matters and believe people use them to get an upper hand in civil matters. It is likely fraudsters will know this and think they can get away with intimidating others with fraudulent court action knowing the police are less likely to be interested. Get your friend to stick to her guns, give them the evidence. If they do not follow it up especially with the previous history of the individual then write to the Chief Constable of the area.

 

In a civil case the testimony of witnesses is given equal value and are deemed to be truthful. It is the weight of evidence that will swing the decision on the case. In a civil case what your friend has told you and when she told you can also be used in evidence. ie Joe Bloggs asked to borrow £5K yesterday and I told him no. When and where the conversation took place and everything she told you about it afterwards and the emails she showed you. This in my view would have as much weight in a civil case and the 'friend' who claims to have witnessed the loan being made. The other reason I would report this is in case these fraudsters come up with falsified documents/emails just before the case the police can investigate them where you cannot. ie Make requests of the IPS providers for details of accounts where false emails are being generated. These can only be done for criminal investigations from law enforcement agencies.

 

Get your friend to report this as a crime and submit a witness statement with details of all email accounts she holds. Do this straight away and go with her for support. I fear she may be given a number of emails said to be from her asking for a loan from an email account in her name that she never opened. Cover the bases in case this happen. If you prepare for the worse and it doesn't happen then that is much better than having something sprung upon you just before the court case. You may also be saving a number of other victims who don't have supportive friends around them. Don't underestimate the criminal trying to exhort her, for that is what this person is. Put the matter in the hands of the authorities who are designated to deal with it and chase them up if they don't.

 

You can request information from your own IPS account holder so if any emails are produced which appear to have come from your own email address then you can ask questions of them. If however emails are produced from another email account opened in your friends name without her knowledge and consent she should write to the IPS provider informing them that the account is alleged to be hers but she has no knowledge of it. She can ask details about where and when it was opened etc but once she has acknowledged she is not the owner of the account the company should not provide her with further information. A letter of that nature to the service provider would serve as evidence in the civil case in that eventuality. Don't let her be tempted to try to get information on an unknown account through subterfuge ie it's in my name so I am entitled to the information. She is not.

 

I only mention the use of false emails/documents produced because I have had personal experience of it and enough knowledge to know what to do about it. I would be surprised if this guy would risk the consequences for £5k but maybe with his next victim it might be £50K.

[steampowered]

The appropriate course of action is simply to file a Defence denying existence of the debt and explaining the circumstances. You then wait for the case to proceed through the court system.

 

I would not be surprised if the claimant doesn't pay the allocation fee and hearing fee, which would result in the case getting struck out without needing to anything else.

 

You could apply for summary judgment or a strike-out but that would mean your friend has to pay a court fee to make the application.

 

If the case does proceed to trial then prepare a schedule of costs including all time spent on the claim at the litigant in person rate of 18 an hour. Your friend can ask the judge to award these costs on the basis of the claimant's unreasonable conduct.

 

I don't think the police would be interested at this stage. I imagine they would want to wait for the judge to make a decision. It isn't really the police's job to decide who is telling the truth in civil court proceednigs.

[andydd]

A SJ application fee would be quite small this is outweighed by the costs risks (where costs are allowed unlike most small track claims), it does rachet up the pressure upon the claimant (Ive just issued one myself, my respondents summary costs are approx £900 and mine about £400, so clearly there is a risk), so you have to weigh up the pros and cons, in this case hough I'd recoomend just defending in the usual way and applying for costs as Steampowered has mention citing their lack of following the pre-action protocols and lack of evidence.

[c14r3]

Ok thanks for all the advise so far...My friend completed the Directions Questionnaire and emailed it back to CCBCAQ@hmcts.gsi.gov.uk on the day it was due 28/1, She received a standard automated reply but on 7/2 she received a 'General Form of Judgement or Order' saying she failed to file the Directions Questionnaire! Is this normal that her submitted form may not have been entered on to the system in time for the reason why she has now received that form??

 

What I'd really want to know is how best to proceed? Re- complete another form and hand it in with the £40 fee or call NCCBC and ask them to verify that they have or have not received the email with the attached N180??

[Mike_hawk]

The Claimant pays the allocation fee, are you sure your friend hasn't received a copy of notice served on the Claimant?

 

What is the full content of the notice?

[c14r3]

Sorry MH, I had her read it to me over the phone and yes you're right its a copy of notice served on the Claimant! Its dated the 1st Feb, I take it he has until the 11th to get his DQ in??

[Mike_hawk]

If that's the date the order states then yes, part 26.3 applies...... the claimant gets 2 chances, this being his second and final with no further relief usually granted.

 

http://www.justice.gov.uk/courts/procedure-rules/civil/rules/part26#26.3