Accused of verbal abuse in set aside application

[man123]

I am the claimant in an upcoming hearing for an application for judgement to be set aside. The claim is on a business to business basis, however, I am a litigant in person. Judgment was gained by default when the defendant failed to file a defence. In the defendant's application they claim that, during a business meeting we had, I verbally abused them to the point where they felt unsafe to be around me. They don't provide any supporting evidence to this claim, despite having another member of their team with them at the time. I recorded the meeting without their knowledge and can categorically prove that their claim is untrue and that they have lied on the application. They have also included many mistakes within the application, which I can prove (with evidence) are false.

What I would like to know is:

1. Have they committed a criminal offence by (a) lying on a court document? (b) accusing me of abusing them?

2. Is the fact that they are lying on the application and the mistakes they have made enough for the judge to decline their application?

3. What options do I have for pursuing them for accusing me of abusing them? Can I log this with the police?

4. Am I at risk in any way for recording them without their knowledge? Is it a breach of their human rights? Are they able to sue me if I use that recording in court?

Thanks.

[R0b]

Hello

If a person has lied in a witness statement in a civil claim then it is considered a contempt of court. Whilst it is not a criminal offence, it can be punishable by a fine or even imprisonment depending on the seriousness of the contempt.

There are strict rules about setting aside a default judgment and I would recommend you have a read of the guide I made which should give you the grounds on which the judgment can be set aside: http://legalbeagles.info/forums/foru...tailed-version. If the defendant is solely relying on the verbal abuse, which is not relevant to the claim, I cant' see why a Judge would set aside the default judgment.

As for pursuing them in relation to accusations of verbal abuse, I don't think you can do much about it and I certainly don't think it is a criminal offence nor do I think it is worth pursuing. If the Judge refuses to set aside the CCJ then you could ask for your costs as a result. This would be in the form of a costs schedule which is sent to the court and the defendant usually 24 hours before the hearing, and as an LIP you can claim £19 per hour.

There might be a risk in that the recording may not be admissible as evidence. Secret recordings are usually common in employment or family law cases but the court will have to consider whether the recording is relevant to the case at hand. The courts have accepted secret recordings as evidence as in the case of Singh v Singh and Ors [2016] EWHC 1432. The Judge in that case said the following:

"It is true to say that these must be approached with some caution, as there is always a risk that where one party knows a conversation is being recorded but the other does not the content may be manipulated with a view to drawing the party who is unaware into some statement that can be taken out of context. But there can be great value in what is said in such circumstances, where the parties plainly know the truth of the matters they are discussing and are talking (at least on one side) freely about them."

On the other hand, in the employment case of Vaughan v The London Borough Council of Lewisham, the Appeal Tribunal refused to admit the claimant's evidence as admissible. It decided that the 30 plus hours' worth of recordings were not in the interests of justice but did admit that were the recordings relevant to support her claim, they would have admitted it as evidence.

Other risks in this case might be a breach of the individual's human rights, there could be a breach of confidentiality depending on what was discussed in the meeting and perhaps a breach of data protection. On the point of data protection, section 36 of the Data Protection Act 1998 provides an exemption on the processing on someone's personal data if such processing is in the interests of that individual's personal, family or household affairs.

As you mentioned that the meeting seemed to be in a B2B setting, there could be a risk that the covert recording may not fall within the exemption of being personal affairs and so you could open yourself up to the possibility of a claim by the individuals in the meeting (potentially). On the other hand, you might be able to argue to the judge that covert recordings have been previously admitted before provided they are relevant and in the interests of justice. In your case, if the recording is able to disprove any claim that you were verbally abusive in that meeting (again if this is not relevant to your claim then your starting point would be to argue that this is of no relevance) then the court ought to take a pragmatic view and admit this as evidence for relevance and interests of justice reasons confirming the defendant is not telling the truth.

If you are reliant on the recording I would suggest you make a transcript of it too though I appreciate the issue is about whether or not you were aggressive in the meeting. Just remember, the purpose of setting aside a CCJ is not to conduct a mini-trial of the issues but to decide if there are sufficient grounds that the defendant has a reasonable prospect of success or there is some other reason why it should be set aside.

If your evidence is well organised and the court is willing to admit the covert recording as evidence, it would appear that you might have good chances of resisting the set aside application. Do bear in mind that what you regard as conclusive evidence might not be viewed in the same way by a Judge.

If the Judge refuses to set aside the CCJ, you should consider asking the judge to make as part of his/her order that the defendant pays you within 14 days plus any costs as the court thinks fit.

[man123]

Thanks very much, that's really helpful.

[jaguarsuk]

In making the application you should have been sent the application form, plus possibly the Defendants draft defence? It is sometimes useful to post them here (with personal details obscured) as there may be other things mentioned that people here can help add to your side of the arguments and help you defeat the application.