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

[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]

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]

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

[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.

[Amethyst]

Just an example from another case earlier in the month, second part isn't relevant.

FAO:

Court Manager

Claim Ref: XXXXXX Hearing Date: xxxxxxxxxx 10.30am xxxxxxxxxxxx County Court

I am writing to inform the court that my Husband, Mr xxxxxxxxxxx, will be speaking on my behalf at the forthcoming hearing on xxxxxxxxxxxxxxxxxx 2018 at 4pm. I suffer from anxiety and I would appreciate it if he could attend the hearing with me and act as my Lay Representative pursuant to Section 3 of The Lay Representatives (Rights of Audience) Order 1999.

In addition, I would like to bring it to the court's attention that the claimant has failed to comply with the order dated xxxxxxxxxx that stated Witness Statements should be exchanged by 4pm on xxxxxxxxxx / 14 days before the hearing. I filed and served my Witness Statement on 4th April 2018 as directed. I have, as at the date of this letter, received no Witness Statement or supporting documentation from the Claimant. The failure to supply the witness statement and documents within the relevant timeframe has caused, and continues to cause, prejudice to myself in that I am unable to properly prepare for the upcoming hearing. I therefore request that this matter is put before the Judge to consider further directions.

Kind regards

xxxxxxxxxxxxxxxx
Defendant

Lay rep 1999 can be seen http://www.legislation.gov.uk/uksi/1...article/3/made

[Diana M]

Lay Rep rather than McKenzie friend in this case Di.

It's the same thing.

There is no automatic right of audience in court for a non qualified lawyer (except a Litigant in Person representing themselves). It's up to the court/DJ's discretion.

Another LB member was refused permission for her husband to speak for her at the Hearing >

I went to the hearing with my wife today. As my wife has a weak english so I requested the judge if I could speak on her behalf? the was straight NO!

and here >

I dont understand why he didnt allow me to represent her in court? He kept telling me I am not allowed to speak.

Di

[des8]

Doesn't The Lay Representatives (rights of Audience) order 1999 remove the courts discretion?

If the judge refused permission I wouldn't want to argue it with him, but I have never been refused permission when mentioning the order

[Amethyst]

Maybe he didn't inform the court in advance, not that you have to but it's polite. Last weeks case was fine - can be a bit hit or miss I suppose dependent on case and Judge.... actually I wonder if that case where the Judge refused was anything to do with the issue of the unsigned witness statement ( ie. did the defendant understand what was in the WS and what was being said on her behalf et) But anyway McKenzie friends are different to Lay Reps, a McKenzie friend can only sit and whisper in your ear whereas a Lay Rep can speak on your behalf ( as long as you are present )

[Diana M]

a McKenzie friend can only sit and whisper in your ear whereas a Lay Rep can speak on your behalf

I disagree.

A McKenzie Friend can address the court (at the DJ's discretion).

[Amethyst]

Okay

[Stopbox]

The directions questionnaire has arrived from the claimant and you were right jaguarsuk the claimant will not agree to mediation.

[MIKE770]

they would be sanctioned if it went to court?

[Stopbox]

I don’t know if they would be sanctioned but it makes them look uncooperative

[jaguarsuk]

I don’t know if they would be sanctioned but it makes them look uncooperative

The good thing for your Counterclaim it would seem that they have entered no Defence to it.

Either the solicitor is really incompetent or was only used initially to try to frighten you into paying and now the Claimant is conducting the claim themselves.

[Stopbox]

do they have to send in their defence to my counterclaim at the same time as the directions questionnaire?