Charging Order? The myth

DAKOTA45

eggbox wrote: »

They will try to strike the claim as a matter of routine. But this would be doubtful unless your POC looked extremely weak.

If you have stated you have evidence of the offence occurring then it would be difficult to see how the claim could be struck out without a Judge viewing the evidence?

Thanks…. I'm just wondering what my next move is… do I need to counter defend or wait further instructions from the court?

Such a shame that the people he threatened won't get involved or provide a statement… I have their emails and texts though… I can't blame them but it would help to prove he did what he did… They told the estate agent what happened and the estate agent emailed me… this is the only evidence I have that he lied about my property and tried to make the purchasers buy his land with my septic tank on it by saying he'd pursue them for the damage the 'leaky' tank had caused to his land.. (In his defence statement, he states that it was they who approached him and offered to buy his land and that he'd refused to sell!!)… Such lies!! I guess it's who the court believes, but those sneaky lawyers can twist things around and make them stick, even when they are untrue...:(

Hopefully the court will get back with directions soon… I am entitled to request default judgement as the defendant didn't acknowledge the claim within 14 days…(OR provide a defence in that time)… But I suppose they will look at the defence, which called me a "vexatious litigant" and perhaps decide it needs a hearing…

D45

eggbox

They will try everything as they know the evidence you have is, potentially, serious.

What may be in your interest is to send a "Without Prejudice" offer offering to drop the case if they withdraw their Charging Order/Judgement?

It's make no difference to you if they accept or not; but the advice from his Solicitor, after viewing the evidence you have, may persuade them it might not worth risking the Court case? (and which may be why they are trying to strike the case?)

DAKOTA45

Good idea… (I was thinking the same thing)...although I am convinced that I am entitled to judgement by default… Just found this ;

DEFENDING A CLAIM
APRIL 30, 2014 LUCY BRITT

If a claim has been issued and served on you, you can either accept the claim against you (admitting that the claim is true, which might mean that you accept you have to compensate the person bringing it) or defend all or part of it.
If you wish to defend all or part of the claim you must file a ‘defence’. A defence is a document that sets out why you say you are not liable or not at fault when the claimant has stated that you are.

If you fail to file a defence within 14 days of receiving the claim form, or within 28 days if you have filed an acknowledgement of service, the claimant can ask the judge to accept their claim automatically, because you have not denied it within the timeframe.
That may have serious consequences for you, so you should respond as soon as you can if someone makes a claim against you.

He did not file an acknowledgement and the defence was served 31 days after the claim was served.

Hmmm… D45

eggbox

Hi Dakota

You are right about not being able to gain a Default Judgement if they are trying to strike your claim out, its under CPR 12.3.

However, they are going to struggle to strike out your claim as being vexatious with the documents you state you have. And have a look HERE as its a good outline of what has to be done to win in a civil case.

It also explains that you can force a witness to Court using a summons but says that may be risky (as they may be disgruntled.) However, you may be able to persuade the witnesses concerned who refusing to help that you will summon them anyway if they don't agree voluntarily?

Can I ask why they won't help you?

DAKOTA45

Thanks very much for the link…
I don't know why they won't help. Unless he has threatened/bribed them. He did this with the Trial… nobbled my main witness… he had something on him about the taxman… This is a very small community… everyone knows everyone else… he is a wealthy and influential man… As I probably mentioned on here before, when the land surrounding our properties came up for sale by sealed bids, he bribed the agent to reveal bidding and even had the gall to tell me to my face that he'd offered an inducement to secure the land and that my bid had been the highest… he seemed to take some kind of warped pleasure in telling me... he will stop at nothing to get his own way.
I believe he has the local police in the palm of his hand… the investigating officer into the interference didn't even interview him! When I asked for any notes she had taken down, she said she visited the estate agent, (who confirmed what our buyers had told him), then when she asked the purchasers, they told her they didn't want to be part of any investigation, after which, she didn't think it necessary to take a statement of the neighbour's version of events…(?!) but it seems a bit weird to me, as I saw the police car outside his house for ages… something smells of rotten fish.

The thing is, if he wins, he could, in theory, go after the estate agent and the purchasers for libel and slander, respectively, although I doubt he would, as he knows what they said was the truth and will want to lie low in case all his lies are exposed.

I realise I can summons people to appear, but you're right in that they might be angry, plus, I would have to pay them to go to London and for any loss of wages… I honestly don't have a bean.

My immediate worry is that the court hasn't been back yet and I am in limbo… Again. D45

eggbox

Well its no time to be coy if you are following up to Court, so I would contact the Estate agent and Buyer to explain you will "have to"summon them to Court to give evidence if they don't provide, at least, an affidavit to verify the texts/email content as genuine.

Don't be concerned about the costs of them attending Court as they probably won't realise this and, most likely, will see an affidavit as the easy way out of having to attend Court. You have nothing to lose by doing this as they aren't, currently, giving you anything to help your case.

Regarding the strike out, if the order is made at a private hearing then you will be given the opportunity to object. If you have provided evidence, however, the strike out claim should be heard with both parties represented at a hearing.

DAKOTA45

Many thanks, Eggbox… I think they know I can't summon them as I don't have their addresses… (only email and phone number… ) arrghh!! Worth trying to blag it, though! D45

eggbox

DAKOTA45 wrote: »

Many thanks, Eggbox… I think they know I can't summon them as I don't have their addresses… (only email and phone number… ) arrghh!! Worth trying to blag it, though! D45

An email address and a telephone number should be more than enough to make contact and explain about being possibly summoned.

And never assume what another person knows (or doesn't know) until you get it verified what they know! Most people who hear the word "Court appearance" break out into a sweat as its an unknown world to them.

DAKOTA45

I'm sure they do…! It was just that I'd heard that any witness statement must include the person's address to be allowed as evidence.
I think if I could afford to pay the police to disclose all information, that would go a long way… Perhaps I'll write to them.
I'm still hoping and praying that the court will allow a default judgement, but knowing how things usually go, I won't hold my breath.

Many thanks for your help… D45

eggbox

They will have to disclose their address if you convince them it will be in their interests to write a witness statement?

But I would give up on the idea of a default judgement as it is very, very unlikely to happen as they have submitted a defence. And as was explained yesterday, you can't be granted a default judgement if they have applied to strike out your claim?

You really need to concentrate your efforts on getting your evidence verified (however that is best done?) Because as was also explained, in a civil trial you only have to prove that on the the balance of probability that the defendant did what you are accusing them of.

The email and text messages should be enough to convince a Judge that there was interference in the sale that prevented it proceeding; but you must make verification of that email and text watertight in court. Any ambiguity that the evidence may not be genuine will see your claim fall at the first hurdle.