*** DISMISSED *** Small claims for stabling fees

[Amethyst]

Lay Rep rather than McKenzie friend in this case Di I believe. It's small claims still isn't it?

CPR

Representation at a hearing


3.1 In this paragraph:

(1) a lawyer means a barrister, a solicitor or a legal executive employed by a solicitor, and

(2) a lay representative means any other person.

3.2

(1) A party may present his own case at a hearing or a lawyer or lay representative may present it for him.

(2) The Lay Representatives (Right of Audience) Order 1999 provides that a lay representative may not exercise any right of audience:–

(a) where his client does not attend the hearing;

(b) at any stage after judgment; or

(c) on any appeal brought against any decision made by the district judge in the proceedings.

(3) However the court, exercising its general discretion to hear anybody, may hear a lay representative even in circumstances excluded by the Order.

(4) Any of its officers or employees may represent a corporate party.

[Diana M]

if this does end up in court, I would like my husband to speak for me, where or can I make the relevant request for this?

Here is the Guidance on when/whether a Litigant In Person can have a lay person (aka McKenzie Friend) assist them in court and what they can/can't do inside the courtroom > https://www.judiciary.gov.uk/wp-cont...-july-2010.pdf

You'll see from Point No 6 that they (i.e. your husband) should provide the court with a short CV or statement setting out relevant experience, and confirming that they have no interest in the case.

The last paragraph in post # 67 mentions your husband's involvement in this matter but not to what extent.

It's up to the Judge's discretion whether a MF can address the court, and the Claimant will have the right to state their objection (if they have any).

He will not be allowed to cross examine the Claimant or any of her witnesses. Only you can do that.

You will be cross examined on your Witness Statement by the Claimant or their Legal Representative if they instruct a solicitor.

Since a large part of the evidence so far is based on an "oral agreement" then cross examination will be central to the case.

This looks like one of those 'he said, she said' situations unless documentation is produced..

Di

[Diana M]

I just need some help in how to do the defence and counterclaim.

Do you have Legal Expenses cover included in your buildings/household insurance or any other insurance policies (car etc)?

If so this policy provision may fund the cost of your legal expenses if you choose to instruct a solicitor. The insurer may expect you to use one of their panel solicitors unless you have need of a specialist.

It may be worth checking this out.

Di

[Diana M]

That they are puzzled by the 'record or arrangement' and 'loan agreement', both of which are stated on the POC. However, there is no loan agreement and never has been, but that they did not check on the particulars of claim & loss before replying (a copy of the POC is in Post 8)

In legal proceedings the burden of proof rests with the Claimant. They have to evidence their claim including everything they’ve stated in their POC.

Paragraph 3 of the POC says it was “an oral agreement” (verbal contract) and that a record of this was made subsequently.

Personally I would be asking Part 18 Questions at this point.

If the solicitor has not served you with a Notice of Acting then what he says in correspondence may not be relevant anyway regardless of it being erroneous or not.

There seems to have been a presumption early on in this thread that the solicitor is on record which according to the court is not the case.

Di

[Diana M]

but clearly they just don't want to give it over or it doesn't in fact exist and refused the 31.14 request.

The solicitor’s letter simply says that disclosure of evidential documents will take place in due course (albeit he’s apparently not on record as acting at this stage).

Di

[jaguarsuk]

From what you say you’ve sent a CPR 31.14 Request to the Claimant. They have not replied. That’s their choice and something you may wish to refer to in your Witness Statement.

You've received a letter from a solicitor which says the matter of disclosure will be dealt with by Directions in due course.

What’s the mistake?

Di

In the statement of case the claimant claims for a loan agreement. This is a dispute over fees for a stable not a loan.

The record of agreement is also mentioned, but clearly they just don't want to give it over or it doesn't in fact exist and refused the 31.14 request.

[Stopbox]

That they are puzzled by the 'record or arrangement' and 'loan agreement', both of which are stated on the POC. However, there is no loan agreement and never has been, but that they did not check on the particulars of claim & loss before replying (a copy of the POC is in Post 8)

[Diana M]

I had asked for evidence showing me the 'record of arrangement' and 'loan agreement' as per the CPR rules, and that these items were stated in the particulars of claim. the claimant had given the letter to the solicitor and he replied as below.

5658E6B8-929A-4DC6-9F3C-9AA4874D79C8.jpeg

From what you say you’ve sent a CPR 31.14 Request to the Claimant. They have not replied. That’s their choice and something you may wish to refer to in your Witness Statement.

You've received a letter from a solicitor which says the matter of disclosure will be dealt with by Directions in due course.

What’s the mistake?

Di

[Diana M]

I'll also make sure the claimant has a copy of my defence as well, considering I sent it to her solicitor.

The court will have served your Defence on the Claimant as per the Order in post #13 which clearly states a copy was enclosed with the DQs.

I see no harm in you sending a copy to the Claimant too for belts and braces purposes (since the solicitor is apparently not on record).

Di

[jaguarsuk]

I see no no need for Paragraph 3 in that suggested letter.

The court has confirmed that they are using the Claimant’s address for service (as per the claim form presumably) so that’s your clarification isn’t it?

Di

Post #124. That's the point, there is no address for service on the claim form.

But you don't need para 3 now the court has confirmed. Until the court notifies you otherwise all to the woman at her address Stopbox

[Stopbox]

The letter below is the mistake that jaguarsuk was referring to, I had asked for evidence showing me the 'record of arrangement' and 'loan agreement' as per the CPR rules, and that these items were stated in the particulars of claim. the claimant had given the letter to the solicitor and he replied as below.

5658E6B8-929A-4DC6-9F3C-9AA4874D79C8.jpeg

[Diana M]

As per the letter I am going to send, I was just going with the template that jaguarsuk had posted in post 120 and it will be to the claimant and basically asking clarification.

I see no no need for Paragraph 3 in that suggested letter.

The court has confirmed that they are using the Claimant’s address for service (as per the claim form presumably) so that’s your clarification isn’t it?

Di

[Stopbox]

As per the letter I am going to send, I was just going with the template that jaguarsuk had posted in post 120 and it will be to the claimant and basically asking clarification.

[Diana M]

there is no Notice of Acting, and the courts are sending everything to the Claimant.

Then you should do the same.

Everything goes to the Claimant.

Di

[Diana M]

I'll send letters to both the claimant and the solicitor asking them to clarify, and hopefully not piss anyone off

A simple oneliner letter seeking clarification is fine.

I feel confrontation where it’s not needed can backfire. Cases are won or lost on points of law and facts, not mudslinging.

All letters have the potential to end up in front of the Judge who will have been a solicitor earlier in his career so may not be impressed by letters which he reads sent by a perceived ‘smart alec’. You want the Judge onside.

If the solicitor has made any mistakes then use them to your advantage (if appropriate) not correct them. I don’t know what these errors are, but if they’re relevant then consider whether these points belong in your Witness Statement further down the line.

If there are procedural errors (CPR errors) then seek legal advice in case you can make an Application to the court which could result in the Claimant being sanctioned such as the claim being struck out.

However if the solicitor is not on Notice as acting then his mistakes may not be relevant to these proceedings until or unless he is on Notice.

Lawyers take the view “we don’t litigate through correspondence” so think carefully about the content of any letter you send.

Di