Witness statement set out

[oz07]

I am currently trying to set out a witness statement for a case which will be being heard soon.

Little bit of background I am the claimant who got Judgement in default against the defendant in a recent MCOL. The defendant has applied for the judgement to be set aside and so the court will next be in touch with details of the hearing. I was not contacted prior by the defendant to oppose or not to this application.

I am aware this would only be a hearing to establish whether the original case would be heard, which I am not opposed to in principle. However I have created a 4 page witness statement which I hope will demonstrate to the court the disregard to follow pre action protocol by defence or adhere to court deadlines. Also I hope to have demonstrated that they have no 'reasonable' chance of defence. The amount is for a relatively small sum so my thoughts were to prepare a good witness statement in the hope of drawing a line under the matter at this stage.

Anyway... I am trying to set out this witness statement as various websites advise but it's not overly clear to me and im not sure how strict the courts are with validating these things. My statement starts off as below...

WITNESS STATEMENT

IN THE XXX COUNTY COURT CASE NO. XXX

PARTIES

ME CLAIMANT

BAD GUY DEFENDANT

1. I XXX, a XXX of XXX, XXX am the claimant in this case. The facts set out in this statement are within my own knowledge save where I state otherwise. Where I refer to facts that are not within my own knowledge I will give the source of my knowledge of those facts.

2. I am the director of the companyXXX, who is the claimant in this case.

3. This witness statement is being made in response to the application from the defendant to set judgement aside. The statement will contain evidence which should help the court in deciding whether the defendants have a realistic chance of defending the judgment.

4. Exhibits

5.My intention with this witness statement is to set out facts which may be relevant to the court specifically with regards to the application by the defendant to have judgement set aside. At this stage I have not thought it necessary to present the whole of my case for which judgement in default was issued, rather I will address the points raised by the defendant in the application to set the judgement aside.

So I am not sure about the exhibits. I will have a lot of pages of these probably numbering between 25-50. I am unsure if I should list them all under this number 4 point or whether to say something like a list/contents of the exhibit can be found on the 5th page of this witness statement? I will also have multiple pages of various things, such as 3 pages of SMS messages, probably ten pages of emails. If this witness statement totals something like 50 pages including all statement (4 pages) & exhibits (25-50 pages) should every single page have a number such as "witness statement 11.3.2020 page 01" and so forth till the end? I could perhaps have a 'sub page' if that is a thing for the exhibits like "witness statement 11.3.2020 page 06 - SMS messages sheet 1"

Also I have included a brief timeline in the witness statement for the court. Obviously there are a lot of seperate lines to the timeline and putting a number besides each one seems daft when they are all one part of the statement. Would I be best to do something such as below?

6. A timeline of events is listed below. As mentioned above in the interest of not wasting the courts time I have tried to summarise and keep to the relevant facts. However if required more context can be gained from the extensive exhibits attached to this statement.

i) on X day X happened
ii) on Y day Y happened

and so on and so on until the timeline finishes then I could do?

7. bla bla bla

I have tried to condense the witness statement as much as I can but as I am trying to show the court the defendant has no realistic prospect of defence it does go on a bit. I would hope whoever is presiding over appreciates the effort rather than despises the length!

Thanks in advance for any soul kind enough to read and reply to all this garbage. Its a shame that so much effort goes in to chasing a relatively small amount. I never thought i'd be the kind of person to not bother chasing a debt but I can see why people do this now...still doesn't make it right.

 

[smallclaimsassistance]

See my PM.

 

[Paul Norman]

Only legal people will be able to help here.

 

[Gyumri]

Hi - it is an application to set aside a default judgment so if you are having to throw a lot of documents at the ocurt to decide on the issues then it means generally the matter should be decided on a trial of the issues. Default judgments are commonly set aside. Look up "CPR default judgment" on the internet and read the section on the court's grounds for setting aside a default judgment.

If there really is no case to answer then your witness statement need only be vey short bur the court is guided by what the CPR states - so read it!

 

[paulears]

My friend who is a legal beagle told me more people get into trouble trying to write in legalese based on stuff from the internet. He said that courts understand perfectly that normal people don't speak like this, so they're really good at reading normal language as long as it clearly explains the facts and details the evidence and what took place. The usual who, where, when, why and how - cover these and you have bases covered.

 

[Gyumri]

The "stuff from the internet" is the civil procedure rules and litigants in person are expected to know the basics. The poster is responding to an application to set aside a default judgment. He needs to read the section on setting aside a default judgment. Part 13.
https://www.justice.gov.uk/courts/procedure-rules/civil/rules/part13

 

[Paul Kelly ICHYB]

He needs to read the section

No, he probably needs a solicitor/proper legal advice!

 

[oz07]

Thanks for the replies i'd not logged in for awhile.

The defendant had until yesterday to file with the court and serve the claimant with their proposed defence. I didn't receive anything so rang the court to ask what the next step is. Turns out the court have received a proposed defence. Seems crazy that in all my correspondence I have either sent recorded delivery or kept receipts from the post office with address to show I have correctly served and others can get away with failing to serve!

I get what people are saying when they say that I should not need to throw too much at this however I believe I can show the defendant has no reasonable prospect of defence. I have also asked in my witness statement why no actual reason for failure to respond to the court was given by defendant, just an apology. This further lack of failure to serve documents on me should surely act in my favour?

I am getting very disheartened with the process when I am trying my utmost as a layman to comply with all the court rules and the defendant can act in this way. I have today sent the court this email but not optimistic of any reply!

Dear Sirs,
I telephoned the court today to inform that I had not been served with a proposed defence by the defendant and with a couple of queries about the court process. I would appreciate it if these queries could be clarified.

• In relation to the hearing on 11 August 2021 It is my understanding that this is simply a hearing to determine if the judgement can be set aside while the original case will proceed to a proper hearing? Is this the case or is the hearing which is scheduled for 11 August 2021 also set to determine the final outcome of the judgement?

• I submitted an application for an interim third party debt order on 19 February 2021 to XXX Court and the payment for this has been taken. I have since had notification that this application has been forwarded to XXX County Court. It is my understanding that a defendant submitting an application for judgement to be set aside does not stop any enforcement action being taken. Could the court please provide an update on my application for an interim third party debt order? I have heard nothing since the letter dated 19 April 2021 informing me that this was being sent to XXX County Court.

Thankyou for your help.

 

[oz07]

Thanks @Gyumri I am hoping to show with a decent witness statement that in 13.3 (1) a and b that there is no realistic prospect of defence. Whereas if I just submit a statement which opposes the setting aside the judge could still assume the defendant has a realistic prospect of defence.

 

[Gyumri]

Hi - the relevant CPR is of course Part 13 13.3. If you can show that D has no real prospect of successfully defending the claim see 13.3 (1) then you're home and dry. You made a request for a default judgment and he served his defence late - so he is on the back foot and must persuade the judge that he has a viable defence and should not be shut out simply because he had a good reason to serve late.

Your witness statement must only contain bare facts and not opinion. So "The statement will contain evidence which should help the court in deciding whether the defendants have a realistic chance of defending the judgment" is your opinion and not a fact. The judge is not interested in reading your opinion.

The time to give your opinion and arguments based on the evidence is when you get to speak to the judge. If you want to show that somebody is nothing but a scoundrel and thief, you have to set out your case with FACTS. On this day he said that and on that day he did that. This your evidence.

You persuade the judge that D is a scoundrel not by saying that D is a scoundrel, but by presenting evidence, emails etc. The judge will decide for himself that D is either a scoundrel or a saint.

So also your preamble saying: " My intention with this witness statement is to set out facts which may be relevant to the court specifically with regards to the application by the defendant to have judgement set aside. At this stage I have not thought it necessary to present the whole of my case for which judgement in default was issued, rather I will address the points raised by the defendant in the application to set the judgement aside." is going to go in one ear and out the other of the judge.

All this pre-amble is not FACTS.

One court story is that a barrister started by saying to the judge "Good morning" and the judge replied that he was not there to talk about the weather.

 

[oz07]

Cheers for the advice. I will refine the statement before submitting and potentially use the services of someone here to provide a guide with how it should be laid out / formatted. I presume it is ok for me after laying out a timeline of events to demonstrate the hopelessness of the defence and not just leave the judge to spot any inconsistencies in the timeline? I would like to connect the dots so to speak. Below is a few copy and pastes from witness statement. I think the first 2 are maybe okay? The last one probably is too much opinion.

From this timeline of events it can be seen that at no time has the defendant attempted to fully comply with Pre-Action Protocol or Court deadlines. I have received no Letter of Response to either of my Letters Before Action. I believe that proof of service is shown for both of these letters by exhibits XXX & XXX. The defendant has stated in their application notice that “We unfortunately missed our deadline to respond to the claim made against us and do humbly apologise for any inconvenience caused”. No reason is given for not adhering to this deadline.

The timeline disputes the defendants version of events. The last payment was made to my company on 12 December 2020. The defendants spurious queries or allegations have only been raised on 14 December 2020 after in XXX words (see exhibit XXX) on 5th December 2020 “final payment” has been issued. I would ask the court why any of these queries or allegations were not raised prior to this “final payment” on 12 December 2020?

The above are the three issues the defendant appears to be relying on for defence of this claim. Two of them have no reference to the invoice XXX7 and have shown to be untrue. The first item whereby the defendant claims the correct hours or ‘day rate’ haven't been fulfilled have, I believe, be shown to be untrue.

 

[bwglaw]

I do not know the full facts of the claim or the matter itself. The value of the claim will determine in some respects how strict the Civil Procedure Rules will be followed, as well as the original track that the claim was allocated.

There is real danger in complicating matters unnecessarily (to the annoyance of judges) - as has been said, District Judges are very experienced of dealing with lay parties and will use his/her discretion in how the claim/defence will be dealt. That said, District Judges have seen so many spurious applications to set aside judgment and will look at the applicant's grounds for setting aside perhaps more stringently than your reasons for why the application should be dismissed.

In my experience, District Judges take different approaches - some more relaxed than others - I have had one claim where the defendant did not turn up and the judge wasted no time dismissing the application.

 

[oz07]

Thanks for your reply. The claim is not for a massive value in itself its more principal for me. 500 odd, couple of days labour. Although I do know a couple of guys who are owed thousands by this person. Problem is labour gets given out very easily on credit and in this case payment terms were extended beyond what was originally agreed. Luckily I smelt a rat early on and got out.

There is real danger in complicating matters unnecessarily (to the annoyance of judges) - as has been said, District Judges are very experienced of dealing with lay parties and will use his/her discretion in how the claim/defence will be dealt. That said, District Judges have seen so many spurious applications to set aside judgment and will look at the applicant's grounds for setting aside perhaps more stringently than your reasons for why the application should be dismissed.

In my experience, District Judges take different approaches - some more relaxed than others - I have had one claim where the defendant did not turn up and the judge wasted no time dismissing the application.

That is why I feel the need to connect the dots sometimes. I don't want to patronise a judge but by the same token I would like to show the effort I have put into presenting my case, versus the disregard for the process the defendant has shown. While it is my opinion that the defendant has disregarded process, I believe I can then show it by linking to my exhibits and pointing out the facts; no replies to L.B.A (twice), no response/missing deadline to court with the claim, not serving defence on me, not having an actual reason for missing court deadline rather just an apology.

 

[oz07]

This is my closing paragraph and it is probably also too heavily opinion! (contempt of court as can prove statements which have been made by defence are untrue)

In summary as a layman I have researched and at all times done my best to comply with the law in regards to pursuing this debt. I am not opposed in principle to the matter of the judgment being set aside as I believe I have a strong case which may even show the defendant to be in contempt of court. From another perspective though I have already devoted a great deal of time to this matter for a debt which is a relativity small amount. The debt is for the equivalent of 2 days labour plus some sundry fixings supplied. I have spent the time at least equal to one day just in composing, formatting and preparing this specific Witness Statement. The defendant conversely has ignored pre action protocol, ignored the courts deadlines and only chosen to act once a Judgment has been lodged against them with the consequences that entails. The defendant has not served any proposed defence to my by the courts deadline (19th May 2021) and the evidence on the application to set aside appears to be a ‘copy and paste’ of the email received by myself 14th December 2020. I believe I have proved with my evidence that the defendant has misled the court with the untrue allegations contained in their statement. The defendant has not made any attempt to settle the judgment and as above, I have applied to the court for the debt to be enforced incurring further cost. For this reason I would gratefully request that if the court decided it appropriate to dismiss the defendants claim to set aside and uphold the judgement in my favour that due to the defendants unreasonableness costs be awarded in my favour.

 

[bwglaw]

I appreciate your position and that this matter is of principle to you but you may be over-complicating matters. A District Judge will not expect a witness statement as you have partly presented above, for a low value seemingly straightforward claim. Judges do dismiss a large number of applications to set aside simply because the defendant has no real prospect of success. If you make long-winded submissions, citing fresh grounds, you risk the Judge setting the judgment aside and re-listing for hearing on the basis of complexity, numerous claims etc, which is not what you need. The fact that you are aware the defendant has failed to pay others is irrelevant in a breach of contract claim.

Given that the deadline for filing defence was only yesterday (19 May 2021) the Judge *may* show the defendant some leniency given the small values, defendant a small business, you have cited new grounds etc. Then, as I mentioned previously, the Judge will look at whether the defence has real prospect of success i.e. whether the defendant has a valid defence to your claim for the monies owed. You say the defendant "copy pasted" an email of 14 December 2020 that was sent to you - I am not privy to the contents of this but there may be a defence in that email as to why the defendant does not believe he is liable for the sums claimed.

Make light work for the Judge by doing a 1-page standard letter saying that the defendant owes £X for 2 days work (or whatever your claim specified) and the application should not be set aside because the defendant has failed to comply with Court directions and has had more than ample opportunity to file a defence in time. The Judge will be aware of non-compliance issues as this will be the first thing they look at when determining an application to set aside.

 

[Sheila Harris]

I am currently trying to set out a witness statement for a case which will be being heard soon.

Little bit of background I am the claimant who got Judgement in default against the defendant in a recent MCOL. The defendant has applied for the judgement to be set aside and so the court will next be in touch with details of the hearing. I was not contacted prior by the defendant to oppose or not to this application.

I am aware this would only be a hearing to establish whether the original case would be heard, which I am not opposed to in principle. However I have created a 4 page witness statement which I hope will demonstrate to the court the disregard to follow pre action protocol by defence or adhere to court deadlines. Also I hope to have demonstrated that they have no 'reasonable' chance of defence. The amount is for a relatively small sum so my thoughts were to prepare a good witness statement in the hope of drawing a line under the matter at this stage.

Anyway... I am trying to set out this witness statement as various websites advise but it's not overly clear to me and im not sure how strict the courts are with validating these things. My statement starts off as below...

WITNESS STATEMENT

IN THE XXX COUNTY COURT CASE NO. XXX

PARTIES

ME CLAIMANT

BAD GUY DEFENDANT

1. I XXX, a XXX of XXX, XXX am the claimant in this case. The facts set out in this statement are within my own knowledge save where I state otherwise. Where I refer to facts that are not within my own knowledge I will give the source of my knowledge of those facts.

2. I am the director of the companyXXX, who is the claimant in this case.

3. This witness statement is being made in response to the application from the defendant to set judgement aside. The statement will contain evidence which should help the court in deciding whether the defendants have a realistic chance of defending the judgment.

4. Exhibits

5.My intention with this witness statement is to set out facts which may be relevant to the court specifically with regards to the application by the defendant to have judgement set aside. At this stage I have not thought it necessary to present the whole of my case for which judgement in default was issued, rather I will address the points raised by the defendant in the application to set the judgement aside.

So I am not sure about the exhibits. I will have a lot of pages of these probably numbering between 25-50. I am unsure if I should list them all under this number 4 point or whether to say something like a list/contents of the exhibit can be found on the 5th page of this witness statement? I will also have multiple pages of various things, such as 3 pages of SMS messages, probably ten pages of emails. If this witness statement totals something like 50 pages including all statement (4 pages) & exhibits (25-50 pages) should every single page have a number such as "witness statement 11.3.2020 page 01" and so forth till the end? I could perhaps have a 'sub page' if that is a thing for the exhibits like "witness statement 11.3.2020 page 06 - SMS messages sheet 1"

Also I have included a brief timeline in the witness statement for the court. Obviously there are a lot of seperate lines to the timeline and putting a number besides each one seems daft when they are all one part of the statement. Would I be best to do something such as below?

6. A timeline of events is listed below. As mentioned above in the interest of not wasting the courts time I have tried to summarise and keep to the relevant facts. However if required more context can be gained from the extensive exhibits attached to this statement.

i) on X day X happened
ii) on Y day Y happened

and so on and so on until the timeline finishes then I could do?

7. bla bla bla

I have tried to condense the witness statement as much as I can but as I am trying to show the court the defendant has no realistic prospect of defence it does go on a bit. I would hope whoever is presiding over appreciates the effort rather than despises the length!

Thanks in advance for any soul kind enough to read and reply to all this garbage. Its a shame that so much effort goes in to chasing a relatively small amount. I never thought i'd be the kind of person to not bother chasing a debt but I can see why people do this now...still doesn't make it right.

What you MUST do is to validate your Witness Statement with a Statement of Truth. Place this at the end of the Witness Statement using the words " I XX, confirm that this Witness Statement is a true reflection of the facts of this case to the best of my knowledge". Make sure you sign and date it, send one copy to the Court with your Application, another to the Defendant and keep one for yourself. Without a Witness Statement being properly verified by a Statement of Truth, it cannot be used in Court.

 

[oz07]

Thanks

 

[MBE2017]

oz07, if you wish to succeed in this matter, do as suggested many times, forget the fancy wording, your belief you have proved your case, and stick to the facts. Send in a defence like you have shown, and the judge is just as likely to rule against you, they do not like being told what is potentially obvious, you do not prove anything, THEY DECIDE on procedures, proofs etc.

Keep it short and factual. I would go as far as to say you are likely to lose a good case since you are approaching this incorrectly, get help if possible.

 

[Sheila Harris]

oz07. In my experience, once you have a CCJ by default i.e. the Defendant has failed to respond within the given time, then the judge WILL NOT set it aside the Judgement. It was clearly stated on the N1 Claim Form that he had 14 Days to respond, so his feeble excuse will not succeed. I have been involved in cases where this tactic has been tried and the judge simply said to the defendant,
"you had your chance to put in a Defence, but as you failed to to do within the time limits, it is too late to do so now". The judge may also point out to the Defendant that he could be held in contempt of court for failing to comply with CPR Rules, but is unlikely to enforce that in a low value case. Best of luck and hope you get a good result and a good judge at the hearing

 

[Newchodge]

What you MUST do is to validate your Witness Statement with a Statement of Truth. Place this at the end of the Witness Statement using the words " I XX, confirm that this Witness Statement is a true reflection of the facts of this case to the best of my knowledge". Make sure you sign and date it, send one copy to the Court with your Application, another to the Defendant and keep one for yourself. Without a Witness Statement being properly verified by a Statement of Truth, it cannot be used in Court.

Unless the witness is physically present to validate it.

 

[oz07]

I am not trying to be clever or tell the judge what to do. The hearing is mid August so I will finalise and format my statement in a couple of weeks and send it in. Anyone would think I am in the wrong here!

I know the defendant has at least one other judgement by default against them for around 5k. Is it worth me paying the 4 quid or so to get the official record of ccjs against this company to "prove" they have a record of failing to comply with court directions?

 

[MBE2017]

I am not trying to be clever or tell the judge what to do. The hearing is mid August so I will finalise and format my statement in a couple of weeks and send it in. Anyone would think I am in the wrong here!

I know the defendant has at least one other judgement by default against them for around 5k. Is it worth me paying the 4 quid or so to get the official record of ccjs against this company to "prove" they have a record of failing to comply with court directions?

No, it has nothing to do with you, stop trying to act like Perry Mason, this is a small claims court, nothing else. Your job is to present your evidence regarding your complaint, the judge will do his job.

 

[Sheila Harris]

Unless the witness is physically present to validate it.

Even if the witness is physically present, the judge will want to see a fully validated Witness Statement, signed with a Statement of Truth and this should be in the "bundle" of documents filed with the court prior to the hearing and copied to the Defendant. This instruction - Court Directions - would have been sent to the Claimant, referring to the applicable CPR Rules.

 

[Sheila Harris]

No, it has nothing to do with you, stop trying to act like Perry Mason, this is a small claims court, nothing else. Your job is to present your evidence regarding your complaint, the judge will do his job.

Don't rely on the judge doing his or her job - they don't always!

 

[Michael Loveridge]

oz07. In my experience, once you have a CCJ by default i.e. the Defendant has failed to respond within the given time, then the judge WILL NOT set it aside the Judgement. It was clearly stated on the N1 Claim Form that he had 14 Days to respond, so his feeble excuse will not succeed. I have been involved in cases where this tactic has been tried and the judge simply said to the defendant,
"you had your chance to put in a Defence, but as you failed to to do within the time limits, it is too late to do so now". The judge may also point out to the Defendant that he could be held in contempt of court for failing to comply with CPR Rules, but is unlikely to enforce that in a low value case.

Sorry, but this is simply not the case. If the Defendant can demonstrate that there was a reasonable excuse for not having filed their Defence in time and that they have a reasonable prospect of defending the claim the judge will set the judgment aside.

It's not helpful to make incorrect assertions like this that may make oz07 – or other readers in a similar situation - think he's home and dry and doesn’t need to do anything.

It's also not true that anyone is going to be held in contempt of court for not complying with CPR rules. Contempt of court proceedings are only used in the most serious breaches of court orders, and would never be relevant to this sort of conduct.

oz07 - you've received some conflicting advice here, as is often the case. That from bwglaw is probably the most sensible. You need to keep things in perspective. The claim is for a relatively trivial sum of money, and District Judges are overwhelmed with morons like the guy you're suing making baseless applications. So as has been said, just keep it simple. Your evidence should not consist of more than a witness statement consisting of a page or two and no more than half a dozen pages of exhibits that are key documents.

Incidentally, although costs orders are not normally made in small claims cases the court does have the power to award costs under CPR rule 27.14(2)(g) where a party has behaved unreasonably. Although you're a litigant in person you can still claim costs in respect of your time at the princely rate of £19 per hour - see CPR rule 46.5. You should therefore include in your witness statement a request to the court that they order the Defendant to pay your costs under this provision - say 10 hours' work at £19 = £190.

 

[Sheila Harris]

Sorry, but this is simply not the case. If the Defendant can demonstrate that there was a reasonable excuse for not having filed their Defence in time and that they have a reasonable prospect of defending the claim the judge will set the judgment aside.

It's not helpful to make incorrect assertions like this that may make oz07 – or other readers in a similar situation - think he's home and dry and doesn’t need to do anything.

It's also not true that anyone is going to be held in contempt of court for not complying with CPR rules. Contempt of court proceedings are only used in the most serious breaches of court orders, and would never be relevant to this sort of conduct.

oz07 - you've received some conflicting advice here, as is often the case. That from bwglaw is probably the most sensible. You need to keep things in perspective. The claim is for a relatively trivial sum of money, and District Judges are overwhelmed with morons like the guy you're suing making baseless applications. So as has been said, just keep it simple. Your evidence should not consist of more than a witness statement consisting of a page or two and no more than half a dozen pages of exhibits that are key documents.

Incidentally, although costs orders are not normally made in small claims cases the court does have the power to award costs under CPR rule 27.14(2)(g) where a party has behaved unreasonably. Although you're a litigant in person you can still claim costs in respect of your time at the princely rate of £19 per hour - see CPR rule 46.5. You should therefore include in your witness statement a request to the court that they order the Defendant to pay your costs under this provision - say 10 hours' work at £19 = £190.

Hi Michael,
Although I appreciate that you may not concur with my post, that post was based on first hand experience gained in County Court Litigation on behalf of myself and my clients. In all the many cases that I've been involved in and obviously I can't speak for those that I've not been involved in, where there has been a scenario whereby the defendant has failed to enter a Defence within the prescribed time limit, and the Claimant has obtained Judgement by Default, not once has the Judge agree to set aside the Judgement, and I have had 2 such cases in the last 6 months. Similarly, although the Judge can and quite often will, at a Small Claims Hearing, point out that the law states that the Defendant can be at risk of Contempt of Court, I've never found that they've carried out that threat.

 

[smallclaimsassistance]

Sorry, but this is simply not the case. If the Defendant can demonstrate that there was a reasonable excuse for not having filed their Defence in time and that they have a reasonable prospect of defending the claim the judge will set the judgment aside.

It's not helpful to make incorrect assertions like this that may make oz07 – or other readers in a similar situation - think he's home and dry and doesn’t need to do anything.

It's also not true that anyone is going to be held in contempt of court for not complying with CPR rules. Contempt of court proceedings are only used in the most serious breaches of court orders, and would never be relevant to this sort of conduct.

oz07 - you've received some conflicting advice here, as is often the case. That from bwglaw is probably the most sensible. You need to keep things in perspective. The claim is for a relatively trivial sum of money, and District Judges are overwhelmed with morons like the guy you're suing making baseless applications. So as has been said, just keep it simple. Your evidence should not consist of more than a witness statement consisting of a page or two and no more than half a dozen pages of exhibits that are key documents.

Incidentally, although costs orders are not normally made in small claims cases the court does have the power to award costs under CPR rule 27.14(2)(g) where a party has behaved unreasonably. Although you're a litigant in person you can still claim costs in respect of your time at the princely rate of £19 per hour - see CPR rule 46.5. You should therefore include in your witness statement a request to the court that they order the Defendant to pay your costs under this provision - say 10 hours' work at £19 = £190.

All correct. I agree completely with this.

I have some 30 years of litigation, both as fee earner and partner, under my belt, and over the years I have been repeatedly dismayed, but not surprised, at the ease with which judges will set aside judgements. BUT, that is completely within the rules, and as a litigator, it’s something one has to accept.

As far as the contempt point is concerned, as Michael says, whilst the principle is enshrined in the CPR, the bar is very high. I used to be a partner in a claimant PI firm. The government changes from 2013, and insurer conduct (anyone involved in PI over here will understand what I mean by insurer conduct, I won’t expand) led me to decide to make my living elsewhere. The point is, I have attended numerous trials over the year, nearly all of them successful for my clients. In a small number of these, the judge has actually made findings of fact that the defendant’s witnesses have lied, both in their statements, and even in the witness box. For those not familiar with Fast or Multi Track litigation, that’s both rare and serious.

The witnesses in those cases varied from business owners, to council employees, to soldiers, and even, in one case, to 7 teachers, and their head teacher, all lying in their (unsuccessful) attempt to defeat my 16 yr old girl client’s claim for injury. In several of those cases, my counsel made representations to the court regarding contempt of court proceedings against the same witnesses which the judge had found to be lying, and in not one of them did the judges take any action.

Contempt of court is a tool much more common in theory than in practice, and while there’s no problem in throwing it out as a threat, don’t expect a judge to back you up.

Dean

 

[cjd]

I know the defendant has at least one other judgement by default against them for around 5k. Is it worth me paying the 4 quid or so to get the official record of ccjs against this company to "prove" they have a record of failing to comply with court directions?

Spend the £4. If he has other recent CCJs it goes to his character and propensity. If anything is in the balance that might tip it.

But whatever you do, keep it short, objective, emotion free and factual and any claims that you make, back up with evidence.

 

[Sheila Harris]

Spend the £4. If he has other recent CCJs it goes to his character and propensity. If anything is in the balance that might tip it.

But whatever you do, keep it short, objective, emotion free and factual and any claims that you make, back up with evidence.

oz07; Dean; The current fee for a check for CCJ's at Registry Trust is £6 and the result comes back instantly. It appears that the experience of judges setting aside judgements varies with the types of cases involved and indeed with the luck, or otherwise that litigants experience from their allocated judges. Anyway, good luck and I really hope that you succeed.

 

[Sheila Harris]

oz07; Dean; The current fee for a check for CCJ's at Registry Trust is £6 and the result comes back instantly. It appears that the experience of judges setting aside judgements varies with the types of cases involved and indeed with the luck, or otherwise that litigants experience from their allocated judges. Anyway, good luck and I really hope that you succeed.

One more thought - there can be any number of reasons why somebody has a CCJ(s) against them and that does not necessarily indicate that they have failed to comply with court procedure.

 

[oz07]

Right thanks for all the helpful advice. I have sent the witness statement in so it's a done deal now. I didn't go into the defendants other CCJs in light of what was said by @MBE2017 above. I know the implication was I was trying to be some legal eagle but I genuinely thought it would help. Kind of regret not doing that now.

Anyway I spent the 4 quid for a guide to setting out the statement from someone here who PM'd me. It was pretty similar to how I had it but did help and 4 quid is hardly breaking the bank.

Unfortunately the statement and exhibits did end up quite long, although I cut as much out as poss. I think it was 40 odd pages, but only 4 of them were the statement and the first page was more or less half header, the contents took up half a page (unsurprisingly) and the timeline was a biggie as I tried to give a complete picture of events from original engagement up to current day. Whats the point in giving half a story? The actual body of the statement is 600 odd words, around 2 pages I'd of thought and that is with using the template so a bit of jargon such as

2. My intention with this witness statement is to set out facts which may be relevant to the court specifically with regards to the application by the defendant to have judgement set aside. To preserve the courts time I have not thought it necessary to present the whole of my case for which judgement in default was issued. Should we proceed to a full hearing of the case I would make a further witness statement addressing any defence made of the claim.

The exhibits included 7 invoices, 6 pages of bank statements - 2 pages per month covering 3 months - just to prove what has been paid and what is outstanding. The page count soon adds up...

I think some have misunderstood where I am coming from with the contempt of court thing. It is not because of the defendants lack of adherence to the rules/process. It is statements they have made in their 'defence' on the set aside form I can prove to be false with documentary evidence. Anyway I was never under any illusion that the defendant would be in any kind of trouble for this, I just thought it helped my case!

All in all i'd definitely consider time and effort for chasing a debt of this size in future. I can see why the chap has a reputation for ripping people off for this kind of amount.

Ill let you all know how it goes - bring on August!

 

[oz07]

Just had the hearing. Permission to set aside denied. Judge didn't even want to hear from me after tying the defendant up in knots with his failure to comply with court directions. Result. I now hope my third party debt order will automatically be next in line to be heard? I submitted this not long after receiving judgement but assume the court put it on the back burner while this was dealt with?

 

[Michael Loveridge]

Congratulations, though it's depressing how often this happens - you do a vast amount of work in preparing documentation to prove your case and it's never even looked at because either (as here) your opponent cocks up or the case is settled at the last minute.

The amount of time wasted in this sort of litigation is huge, and completely disproportionate where only small amounts of money are involved.

The real problem is that small claims cases are still dealt with in the same basic way as higher value cases. There needs to be a far simpler and quicker system where in suitable cases the judge (and does it even need to be a judge?) simply looks at the paperwork and gives a provisional decision, and only if either party challenged it would there be a hearing.

In the vast majority of cases I suspect the parties would accept the decision, if only to avoid the hassle and waste of time that a full hearing involves. It would be rough and ready justice, but that's exactly what small claims are anyway.

 

[IanSuth]

The real problem is that small claims cases are still dealt with in the same basic way as higher value cases. There needs to be a far simpler and quicker system where in suitable cases the judge (and does it even need to be a judge?) simply looks at the paperwork and gives a provisional decision, and only if either party challenged it would there be a hearing.

In the vast majority of cases I suspect the parties would accept the decision, if only to avoid the hassle and waste of time that a full hearing involves. It would be rough and ready justice, but that's exactly what small claims are anyway.

Not sure about this part

In my experience there are a significant minority who know the processes and rules of the courts and see it as a game to delay payments as long as possible - if you put in your suggestion they would just game that as well

 

[Michael Loveridge]

There will always be people who game any system. However, the more complicated a system is the easier it is to game it, and the small claims process is absurdly complicated and time-consuming for even an intelligent and well-educated person.

As has been demonstrated in this case, the court process is far too forgiving to people who are basically crooks. There should never have been a hearing in this case, and the Defendant's application to set aside should have been rejected simply on the paperwork, without putting the OP through all the waste of time and stress that preparing for the hearing has involved.

It's only a small minority who game any system, and it's no reason not to reform a process that's simply not fit for purpose any more.

 

[oz07]

Thanks all. I'm not so sure all my paperwork was to waste. I assume the judge would of had an hour or maybe 30mins to familiarise herself before the hearing? The defendant explained they should of sought legal advice and the judge explained that is no excuse Mr.... has prepared his own case. It was honestly comical listening the the defendant um and argh when asked probing questions by the judge. Why was it you managed to submit this application but not comply with court directions before the judgement etc. I'd love a recording.

 

[oz07]

I agree with the sentiment of How over complicated it is but it's probably better the devil you know? It has stressed me and took a bit of time. On the whole not worth the 500 quid but it's principal and I've treated it as a bit of sport!

 

[oz07]

Would there be any way to retrospectively claim costs for defendants failure to get application set aside. Kicking myself I didn't ask the judge on Wednesday. I did ask in my witness statement.

 

[smallclaimsassistance]

No. In default of an order by the judge that costs are to be reserved to a later time, costs are dealt with at the time. If they weren’t, there is no costs order. As a litigant in person, you would only be able to claim expenses and limited earnings/costs anyway.

Dean

 

[oz07]

Ahwell lesson learned. I think of the judge had asked me any questions it would have prompted me to ask the question of costs. Just waiting for paperwork to come through now and this bloody third party order to get a move on