Claim Form - Mistaken Identity - Law Firm not done proper due-dillegence

[T7W]

A couple months ago my sister received a letter from a law firm asking for damages for a car she allegedly crashed and was at fault. However, my sister doesn't even drive and it has nothing to do with her. The law firm have my sisters name and address correct, but not her title.

I called them immediately to tell them of their mistake and gave all my contact details to assist in any further enquires, which they seemed to accept. However, they have now gone ahead and filled the claim in CCMCC, which is beyond my belief and extremly stressful, as I'm now having to spend time trying to understand what to do.

I did chat with the same solicitor again to ask what was going on and they said that they were on holiday and someone else filled it by accident. They also said they are going to look up the real person through the motor insurance database, which really annoys me that they have gone ahead and filled this without doing the proper due-dillegence, now they are causing undue stress to myself and my sister (who is already extremly depressed and has a disability) for their lack of due dillegence.

I asked them what next and they said don't respond and they got a massive note on their file to say they won't take the next step to get a judegement.

But I have little trust in them and will be responding with a defence to basically say nothing to do with us. But I need your help to understand how to do this, as I don't want to make a mistake and miss something out or say something wrong whilst doing so.

Can someone guide me through the process of how I should write up the defence? I did try to contact a couple law firms but neither were interested in helping. There are things I don't know whether to mention in the defence, for example they only tell us the date this accident happened but they don't tell us the time, if they tell us the time then we may be able to prove where my sister was at the time of this accident.

The solicitor who is doing all this is causing us extreme stress and anxiety, as well as wasting a lot of my time, I was hardly able to do much work last week as I was reading up on what this is and what we need to do. I shouldn't have to be put in this situation, especially when we informed them early on that they have the wrong person and they had all the opportunity in the world to go ahead and try to find the right person (but instead they are trying to do that now - after "mistakenly" filling the money claim).

[islandgirl]

You mistake was calling not writing. I would write to the firm explaining all the above without delay

[T7W]

You mistake was calling not writing. I would write to the firm explaining all the above without delay

Indeed, that was my mistake. Now that they have escalated I've sent an e-mail detailing everything and included an SAR too in the interim.

[atticus]

Write. In writing. Repeat what you have said and insist that they discontinue the claim immediately.

[R0b]

I don't understand why you are acting on behalf of your sister, this is a claim against your sister and so she needs to handle this. I should point out that under the Legal Services Act 2007, it is a criminal offence for a person to perform or carry out what is known as 'reserved legal activities' unless you are authorised i.e. a qualified lawyer or being supervised by one. One of those reserved activities is conducting litigation and this includes commencing, prosecuting and defending proceedings as well as ancillary functions within those three categories.

Acting on your sister's behalf and representing her is likely to fall within the conduct of litigation activity. Of course you can help her draft the defence and write email responses, but that should ultimately come from her, not yourself. It is unlikely you will be prosecuted but I thought you should know the legal status of what you are doing and the law firm is entitled to refuse to correspond with you if they so wished.

Anyway, that being said if I was in your sister's position, the easiest and quickest way to avoid further stress and anxiety I would do the following:

1. Acknowledge the claim so you get an additional 14 days to file a response or take some other action.

2. Email the law firm, repeat the fact that they have issued a claim against the wrong person, namely that your sister does not drive and that they have accepted that they have issued against the wrong person.

3. The law firm has 7 days to discontinue the claim otherwise your sister will make an application to the court for summary judgment along with costs of the application and costs at the litigant in person rate of £19 per hour.

4. Your sister may also want to tag on the end of it that if the matter is not dealt with promptly, you will also report the solicitor and the law firm to the SRA for breach of the SRA Standards and Regulations, specifically:

a. Principle 1 (upholding the constitutional principle of the rule of law, and the proper administration of justice)
b. Principle 2 (honesty)
c. Principle 3 (integrity)
Breach of Code of conduct 1.4 by misleading persisting in the action and misleading the court and others that this is a valid claim when it is not.

Final point: Relying on the law firm to not request a judgment against your sister is a very bad idea because it does not get rid of the claim, the claim will merely be stayed after a period of time but it can be reopened at any time. Also, what it some noggin in the law firm decides not to read the file note and request judgment if a defence is not filed?

Your sister really needs to nip this in the bud quick and an application for summary judgment is the way to go.

[T7W]

I don't understand why you are acting on behalf of your sister, this is a claim against your sister and so she needs to handle this. I should point out that under the Legal Services Act 2007, it is a criminal offence for a person to perform or carry out what is known as 'reserved legal activities' unless you are authorised i.e. a qualified lawyer or being supervised by one. One of those reserved activities is conducting litigation and this includes commencing, prosecuting and defending proceedings as well as ancillary functions within those three categories.

Acting on your sister's behalf and representing her is likely to fall within the conduct of litigation activity. Of course you can help her draft the defence and write email responses, but that should ultimately come from her, not yourself. It is unlikely you will be prosecuted but I thought you should know the legal status of what you are doing and the law firm is entitled to refuse to correspond with you if they so wished.

Anyway, that being said if I was in your sister's position, the easiest and quickest way to avoid further stress and anxiety I would do the following:

1. Acknowledge the claim so you get an additional 14 days to file a response or take some other action.

2. Email the law firm, repeat the fact that they have issued a claim against the wrong person, namely that your sister does not drive and that they have accepted that they have issued against the wrong person.

3. The law firm has 7 days to discontinue the claim otherwise your sister will make an application to the court for summary judgment along with costs of the application and costs at the litigant in person rate of £19 per hour.

4. Your sister may also want to tag on the end of it that if the matter is not dealt with promptly, you will also report the solicitor and the law firm to the SRA for breach of the SRA Standards and Regulations, specifically:

a. Principle 1 (upholding the constitutional principle of the rule of law, and the proper administration of justice)
b. Principle 2 (honesty)
c. Principle 3 (integrity)
Breach of Code of conduct 1.4 by misleading persisting in the action and misleading the court and others that this is a valid claim when it is not.

Final point: Relying on the law firm to not request a judgment against your sister is a very bad idea because it does not get rid of the claim, the claim will merely be stayed after a period of time but it can be reopened at any time. Also, what it some noggin in the law firm decides not to read the file note and request judgment if a defence is not filed?

Your sister really needs to nip this in the bud quick and an application for summary judgment is the way to go.

Hello, thank you for this, I did not know that. The reason I am responding and dealing with this and not my sister is because she doesn't have the mental capacity to do it herself, she has a learning disability. Which is why this is the all more stressful.

My understanding was I could fill out the forms (like Ack of Service, N9.., etc) for her and attach a letter signed by her to say she is authorising me to do so. Is this not the case? Or what should I do?

[islandgirl]

Filling in a form with your sister I would not see as representing her. Nor would I see helping to write a defence or writing to a solicitor. Most people get help from others in these situations. Obviously you could not stand up in court on her behalf but otherwise I think "the wisdom of crowds" is often used in court claims (I was one of 4 people recently helping with a MCOL defence!)

[T7W]

Filling in a form with your sister I would not see as representing her. Nor would I see helping to write a defence or writing to a solicitor. Most people get help from others in these situations. Obviously you could not stand up in court on her behalf but otherwise I think "the wisdom of crowds" is often used in court claims (I was one of 4 people recently helping with a MCOL defence!)

That's understandable, however if it was to get to that stage I don't think she would be capable of standing in court on her own. In that scenario I guess our only option would be to appoint a solicitor to do it on her behalf if I couldn't do it for her?

[R0b]

As already mentioned, drafting documents and writing letters is not going to cross the line so long as they are in your sister's name. Sending them by email from your email account could suggest you are representing her in these proceedings. Filing documents on her behalf should also be fine but again, best to try doing it from her email account where possible.

On the assumption the claim will be heard on the small claims track, you can also represent her under the The Lay Representatives (Right of Audience) Order 1999 as long as she turns up in court as well. If she doesn't attend the hearing, you are not allowed to represent without permission of the court.