Alice H : My name is ***** ***** I'm happy to help with your question today.
Alice H : Did you attend a hearing when the application to set aside was made?
Alice H : Did you tell the Judge about the forgery?
yes - he said he could not judge that. he then instructed the defendant to provide detailed statement on how the letter came about. the defendant didnt do that and instead filed a more generic defence.
Alice H : Are you saying the letter is also a forgery?
yes - both the letter and the signature
Alice H : Understood. And is the case in the High Court?
county court - assigned to multitrack
Alice H : I see. Rule 81.18 relates to High Court, Divisional Court or Court of Appeal.
got it - what is the equivalent to county court?
Alice H : You have to apply to a High Court Judge.
Alice H : I will get the process shortly.
Alice H : OK so an application has to be made to a Single Judge at the High Court for permission to make a committal application. The rules also say it can be referred to the Attorney General but the practice direction is that the AG prefers these matters to be dealt with by the Court which accords with my experience of these matters. An application has to be made in line with the Practice Direction.
Alice H : Do you have a link to the Practice Direction?
is it simply enough for me to say it is a forgery? or do i first need proof through eg handwriting experts
or does the burden of proof lie on the defendent to prove it is real
Alice H : Contempt is a criminal offence. Will you be able to prove "beyond a reasonable doubt" that the signature is a forgery?
that is hard - how to prove that i didnt sign? IF he were forced to describe the time/place etc of where i supposedly signed, it would be trivial to prove that he is lying.
Alice H : I understand the point you're making. But although you are in civil proceedings the contempt is a criminal matter and the burden is on the person alleging an offence to prove it to the criminal standard. It is not enough to say something is a forgery and expect the other party to disprove it: after all the consequence like many criminal offences include fine and prison.
got it. Can I apply to the county court to direct him to make a statement regarding the details etc of this letter?
Alice H : I'm looking at the law. The County Court has no power to deal with this type of contempt which is why the application has to be made to the High Court. You have to swear an affidavit explaining why you belief contempt has occurred and I expect the Judge, before granting permission, will want some evidence in support of your allegation.
Alice H : If the CC directed the Defendant to make a statement then you should push for compliance there first.
Ok - i can do that by asking the judge at the case management conference?
Alice H : You said the Judge ordered a detailed statement on how the letter came about. At your CMC you should push for that to be done. Also write to the D asking for that detailed statement. If you believe the Defence is generic you should think about making an application to strike out.
OK - many thanks
Alice H : In your letter to D state that you believe the signature is a forgery and you want to know in detail how they came into possession of that letter and signature. Keep pressing them for that. That should flush out more information.