*** STRUCK OUT ** Claim for Deceased Mother's alleged owed money

[Amethyst]

You can do a witness statement in response to the original claim and this application. First deal with the application and previous order, and failute to comply, then the original particulars of claim.

Presumably he is trying to say that the original claim being struck out was a breach of his human rights ... that would be a matter for the court, and a claim against the court. He hasn't submitted particulars as per the original order, just the same particulars again. Looking at that order again there isn't a time limit for applying to set aside or vary the order, although he hasn't submitted this application until after the deadline for the properly formed Particulars to be filed/served.

[jaguarsuk]

looks like you might get your wish lol

I'm assuming this guy must get fee remission as if not he's got more money than sense filing this clap trap. I'm surprised the court didn't throw his application back at him for not dating it when signing.

Obviously you'll need to submit a witness statement in response to the application, point out that the Claimant failed to submit a compliant Particulars of Claim as ordered by the court thus the claim was struck out, to date you have yet to receive a compliant Particulars of Claim and that despite the Claimant advising in his application form dated 04/01/2018 he would be relying on his statement of case you do not consider the photocopy of the original claim to be compliant with CPR Part 16, thus the Claimant should not be allowed to rely upon it during this application.

Play reasonable too, state that you are sorry that the Claimant didn't have a fair chance in life and understand that it must be frustrating for him, but that you are not the cause of this and as such you deny liability to the Claimant for the sum claimed or at all under the Human Rights Act 1998 or any other statute.

In the dealing with his claims set out in the non complaint format in the original claim I would say that your mother died intestate and did not express verbally to you as her only surviving child before her death to pass any items, photographic or otherwise to this individual and that as such when dealing with her estate no photographs were passed to him.

On dealing with the clearance of your mothers home state you came across items only belonging to her, had any items belonging to the claimant or any other person have been found that you would have retained them in storage at your own home until such time as someone identified themselves as owner due to the time limit required for Clearance. No such items were found and the Claim of the Claimant is incorrect that he lost any of his possessions. In fact the Claimant benefited from the clearance by gaining possessions given by you as a gesture of goodwill and those were all the white goods (cooker, fridge, kettle, microwave, toaster, blender) and food in cupboards.

In regard the money claimed acknowledge that the claimant and your mother had many varying social arrangements, but that your mother explained the relationship to you as "a mutual friendship understanding without affection meeting each others individuals needs." Those arrangements of your mother and the claimant were such that the "IOU" if legitimately signed by your mother was not an intention to create legal relations as in Balfour v Balfour (1919), so as such the "IOU" is unenforceable as a contract.

I would also state you believe the signature on the "IOU" not to have been written by your mother and make the point you made in post #28 "the signature looks like an attempt to replicate. I am comparing with her signed bank card and it has vague resemblances. Plus as you guys state it's not dated." If you still have a genuine example (the bank card) this can be used as your example and make your points where you view the signature to be inconsistent from the one of the card. Photo front and back of the card to go in as an exhibit.

After all that add this at the end:

I have the opinion that based on the information in this Witness Statement that the Claimant has no real prospect of success in this claim and as such I would respectfully request that his application to re-instate it be dismissed.

Finally include a paragraph asking for wasted costs.

I respectfully request that if this application is ordered dismissed, due to the unreasonable behaviour throughout this process of the Claimant as per CPR 27.14(2)(g) he be made to pay my reasonable cost of and occasioned in dealing with this matter. My costs have been calculated as per CPR 46.5 (4)(b) and the relevant Practice Direction.

Don't be too quick about sending the witness statement in to the court, the order should have a deadline and so file it close to the deadline with them, because you never know what might happen between now and then to be useful in your witness statement. Also, you don't want him to have any information until he needs it. You don't have to send the copy of the statement to him by recorded delivery, but I would to ensure you can definitively prove he's been served.

On the day if the matter is dismissed you'll have to ask for costs after the judge has ordered it dismissed, you can ask for £19 per hour for time spent researching this, composing your witness statement and can ask for the cost of the postage paid to serve him your documents. If you have had to take an unpaid time of work ask for a letter from employer and ask for that to be included, plus any cost you have incurred in travel to attend the hearing.

Once you have figured out what your costs are, put together like an invoice detailing them so a line for each expense incurred and then post a copy to the court and him to arrive 24 hours before the hearing.

Asking for costs doesn't mean you'll get them, but the fact he's ignored court directions and depending on how he comes across in the hearing or if he doesn't show up for it you may get a costs order.

I'm not saying ask for costs to be nasty to him, but it seems it doesn't cost him anything to file at court and as such I don't think if he keeps getting away with filing for free he'll ever go away. When it hits him in his own pocket he might just think twice about filing an application in future. Otherwise you're just going to have to deal with these applications over and over I think.

Others might have a better suggestion of how to deal with it, so wait to see their input and as I have said to you I'm not legally trained, so someone whom is might have a better take on things.

[jaguarsuk]

Here's a starting point based on what I have said above, amend the Red bits to add the information and then change the colour of all writing to black.

As other advise or assist, just amend it where necessary.

[jaguarsuk]

Also, in post #10 in photo 1 your name is visible (xxxx) and if your mother was xxx that's visible in this pic too, multiple mentions of your first name in photo 2 and in photo 3 there's the name xxxx too (if that was perhaps your mothers name?)

Amethyst or Kati could you perhaps cover the names and then edit them out of this post, but leave the pics up as they are important to the continuity of the thread.

[Amethyst]

I'll sort it, thanks Jags xxx

[jaguarsuk]

Anything further from the Claimant or the Court modder ?

We still have a long way to go, but thought I'd ask.

[modder]

Anything further from the Claimant or the Court modder ?

We still have a long way to go, but thought I'd ask.

Hi All,

Thank you for your input and apologies for my silence...

I literally put this on hold until now to avoid unduly stressing myself out over it (hands up I am a stress head this would had consumed me).

@jaguarsuk thank you so much for your continued interest and advise which I will be reviewing and looking into the witness statement template you have kindly provided within the next few days.

In anticipation I have contacted the pensions company, who now advise this is an annuity pension and it turns out there is no money value or sum available to withdraw! I have requested this in writing for the case and further information on this as something does not add up to me (this is another story).

[modder]

Hi All, just reviewing my options here with only 2-days to go for court hearing, I have clearly missed the appeal time frame which is my own doing.

I am ever so grateful for all your input, with special thanks to Amethyst and jaguarsuk

As I have never had the privilege of going to court, do I simply use the witness statement as my defense against the claimant keeping to the points outlined. I will need to add something on the pension font, for which the claimant was clutching at, incidentally turns out to be an annuity type with a measly £72 annual payout!

[ostell]

You did send your witness statement to the court and the claimant didn't you?

Write out what you are going to say in court as bullet points to make sure you do not miss anything. Use this as an aide memoire when you are speaking so that you don't miss anything out that you wanted to say.

Forget what you have seen about court on TV. Small claims is noting like that, it's you, the judge and the claimant in a room. You know who the judge is because he has the bigger desk to sit at. Call him sir. Check in with the usher to let him know you are there then sit down. Don't accept any more paperwork from the claimant. Don't argue with the judge, though you can politely correct if a seriously wrong statement is made. Nothing to fear but fear itself. Take a pay slip with you to show that you can claim up to £95 for lost pay, note the mileage so you can claim at 45p per mile (don't forget the return!) and take a note of the parking charge. When you win don't forget to ask for your costs. If you don't ask then you won't get.

[modder]

Hi ostell No sadly I left this alone until recently so I have not sent the witness statement off as such, but feel it summarises the case against him well. When you state pay slip should I take along a normal monthly pay slip? I have a feeling this will be throw out against him (at least I hope so). But he has experience in these matters and fear being unstuck by some other bs that he may bring up. You are right I'm fearing the unknown at this moment and saner heads should prevail.

[ostell]

That's why you should have submitted a witness statement some 14 days before the hearing, as the court documents require you to, and a copy to the claimant. !!! How can it summarise the case if the judge has not seen it, nor the claimant. You cannot introduce it on the day, this is not Perry Mason, or you can try and upset the judge. How are you going to introduce the documents he sent you and the documents you have and intend to use?

If you have a witness statement ready then hand carry it to the court and get a receipt and get it to the claimant as fast as you can, even hand deliver. You might get it accepted but don't hold you breath.

Best of Luck

[modder]

Thanks for the reality check ostell I will hand deliver the statement to court and send off signed for tomorrow and see what happens.

[modder]

One more if I could just get some feedback on... say hypothetically speaking my mother documented payments against the alleged loan should I bring this up? I found a diary showing some exchanges including the claimant that may relate but not sure. Just going through everything I have again to collate any input appreciated may find something more lots to check.

[ostell]

Let the claimant prove the debt.

If the court date is in 2 days then posting to the claimant will be too late as it will be received on the day of the hearing, after the claimant has left home. Take it round.

[modder]

ostell thanks he lives some 2 hours drive away! I think it would be pointless at this stage for post like you say. I will make notes using the points in the statement as guide adding more notes to discuss at the hearing. She died interstate, left no will or estate. How could I be liable for any of this. There's no money to clear anything. It's all rather pointless and unduly stressful.