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F E Smith
F E Smith, Advocate
Category: Law
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Experience:  I have been practising for 30 years.
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You helped me brilliantly with a question about my case in

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Hi there, you helped me brilliantly with a question about my case in the small claims court on the 27/9 at 7.10. I have an update and am progressing things so would like your help again please.The old question is marked as closed so can you still read it to re-familiarise yourself with my case without me re-typing it all again?Please let me know.Kind regardsDenise

I don’t have a thread on the on the 20 seventh of September at that time only at 449 p.m.

I also don’t have a thread which is closed.

Can you refresh my memory what it’s about please an/or send a link or cut and paste here? Thank you

Customer: replied 15 days ago.
Hi there, it is me again!

I mentioned to you previously (and you have helped brilliantly with) a court case ongoing with my brother in law after he paid for my Mum’s wake with what is very likely to be illicit cash. As there is evidence of money laundering through Mum’s account and a probable offshore account we said we needed proof the money was his.

He said at the wake he had withdrawn the cash that morning. We have been asking for a year for a copy of this statement so we can pay the money back but he just ignores every mention of it or anything we ask about it.

So, we have just had court date come through for 28th feb 2020. Which considering he filed claim on 29th may, I feel is a hell of a long time to wait.

Anyway, in the court papers it mentions trying further to sort this out before trial. Obviously as the police say we cannot pay it without proof of source, can we now:

A. Write to my sister (as that is who we asked to pay, thus party to the contract) and ask informally a final time for a copy of statement and we will pay original sum within 7 days, and say if they fail to do this we will,

B. Make an application for disclosure to the court for this doc to be supplied as it is this the case hinges on. In my defence I did state I would put him to proof on this and ask court to request doc.

Hope you can help again.

Kind regards

Denise

27/09/2019 01:19
Hi, can you see the final part of my question? Half of it seems missing from the above review page.

27/09/2019 02:59
F E Smith
F E Smith Solicitor

Hello again.

I’m afraid that legal wheels turn extremely slowly. Sometimes they turn slower than others.

I’m afraid that whilst you feel this is urgent, it is important rather than urgent in the court size.

I am not certain what the police are saying about not paying without proof of source. I think you are saying that as a potential Proceeds of crime/money-laundering issue and if any of the money is spent, it is possible that it would need to be recouped and hence don’t pay it “just in case”.

I can see no reason why you cannot make exactly the threat you have made for “pre-action disclosure and legal costs” of all this information because there is absolutely no reason why they should not disclose it now unless of course there is something dodgy they simply cannot prove source of funds.

Can I clarify anything else for you?

I am happy to answer any specific points arising from this.

Please take a moment to look at the top right-hand corner of the page and rate my service by clicking one of the stars at the top of the screen.

You may need to login again to use the rating service. Although it says "rate to finish" it doesn't close the thread and we can still exchange emails.

It's important that you use the rating service because that gives me credit.

It doesn't just give me a pat on the head! It's what gets me paid!!

There is also an experts incentive scheme whereby the more 5 star ratings I get I do actually get a pat on the head!

All you need to do is press Submit.

Thank you.

If you still need any points clarifying, I will still reply because the thread does not close.

Best wishes.

FES

27/09/2019 03:51
Hi there

Thanks for the great reply once again!

So just to confirm, write nicely to my sister offerring yet another chance for them to provide the doc and i will pay within 7 days - to show i am not withholding the money for any other reason other than the suspicion of ML. But also say that if we don't get it we will apply for disclosure and they will have to pay for the costs?

The reason i ask again is that on the internet, it seems that for the small claims court, there is no option to apply for disclosure (or threaten costs) - it appears to just be generally expected both sides swap docs before the trial - so i don't want to say in letter i will apply if i can't... does that make sense?

So if you could just explain (for dummies!) how i would do this (assuming they refuse/don't bother to send me the statement in the requested time period), i would be very grateful.

Kind regards

Denise

27/09/2019 04:05
F E Smith
F E Smith Solicitor

I am glad to help.

An application for pre-action disclosure is a Civil Procedure Rules part 8 application not smoke which is why you can ask the court to award costs against the other side.

You are correct but it’s generally accepted that both sides will swap documents before the trial but sometimes it’s necessary to get documents prior to issue proceedings to find out what’s actually gone wrong and sometimes during proceedings, although there is a court order to exchange documents, they may not disclose them in which case it’s a further order application for specific disclosure.

An application for pre-action disclosure is on form N244 (some court staff will want N208) and there is a fee of GBP255. You will also need a witness statement in this format: https://www.justice.gov.uk/courts/procedure-rules/civil/standard-directions/general/witness-
Customer: replied 15 days ago.
Hope this re-freshes you. When you are ready, i will let you know what has happened since!
Customer: replied 15 days ago.
Hi, not sure if you are now waiting for me or vice versa - but i will carry on anyway.

So, i have written to my brother in law and said - full and final settlement offer of payment of original sum within 7 days if they supply redacted copy of bank statement - showing only his name on the account and the actual alledged withdrawal itself. Then he can drop his case and so will I. Both cases, in the wider corcumstances hinge of the truthrfulness of his statement to me directly about withdrawing the cash on the day on Mum's funeral - which it is beleived was specifically said to legitimise the paying of such a large sum in cash - and that as probate holder, i would be giving him cheque back.

He has replied and said - my offer is not an offer to settle. It is just the same as i have been saying for almost 18 months. He said he has supplied the original till receipts and that is sufficient. He said the bank statement is irrelivant. And if i don't pay the full amount of his case (inc interest and costs etc) he will pay the court fee and off we go to our Feb 2020 date.

When i asked about getting the court to ask him to produce this doc, you mentioned pre-action disclosure. On looking into this more, it seems to looks as if an application for specific disclousure (31.12) as proceedings already started would be more relevant. Is this right? I did see an article where they defendents applied for pre-action disclosure only to be told that as the case had already progressed, the court had no powere to awared this and that it should have been specific disclosure. I want to be able to go back to him once more and say, supply within 7 days or i will make the application and ask for the costs to we awarded against him.

Does this make sense?

Kind regards

Denise

That rings a very faint bell now but clearly, it was me and we did exchange numerous emails. I am glad I help.

It seems absolutely bizarre that he paid this money over in cash which he says he got out of the bank. You have said that you will pay him the money if he will show you the bank statement showing the money coming out because there is an allegation under suspicion that the proceeds are proceeds of crime or money-laundering or whatever.

If all he needs to do is produce the bank statement, you would pay him and that would be the end of it.

Is that it, or am I missing something pretty fundamental?

If that’s the case, and this gets to court, it’s highly likely that the court would make the same point.

The court should not enforce something which is illegal and if this money is indeed proceeds of crime or money-laundering or whatever, the court will not enforce repayment of illegal monies.

You could have course have made an application for specific disclosure of the bank statement which should support him or not as the case may be. I can see no reason why you couldn’t make that now.

 

The point you are making, and I agree with you is that it’s remarkably suspicious as to why he is being so adamant that the bank statement is irrelevant bearing in mind that he could block out anything that he doesn’t want you to see.

 

More?

Customer: replied 15 days ago.
Hi

Thanks for the reply. Yes, you certainly did help!

In terms of your understanding of the case - you have got it spot on... Nothing fundamental missed at all which is why the suspcions are so huge. Further, when in late 2018 i had to distrubte phase 1 (savings) of mum's inheritnce to my sister Tina and her two sons who got a small legacy, she wouldn't even supply her bank details for the transfer. It cost her £25 plus the risk on my sending a banker's draft through the post for many thousands of pounds. The bank were horrified at this. Further to this, my sister's solictor (who has tried in writing to trick us into breaking the law already) have alluded in writing they have seen the statement. If true - which we really know it is not - they are happy to show it to them but not us! As protector of the estate, i am just doing my job.

Ok, so, i will write to him and say if we do not get the statment in the next 7 days we will make application for the specific disclosure. When is comes to this point, can i get more help from you? As this case is very complicated (Police dealing with the case are still making a list of all crimes that could have been committed and getting mind blown in the process) i can do with all the brilliant help like yours i can get. Would i reply to this question or just ask for you again?

Thanks so much for your assistance. What a great service this is!

Excellent. Thank you.

I think it’s an application for specific disclosure. I don’t whether you have already threatened that in a snotty solicitors letter but I would do that now.

I remember the refusal to give bank details although it may have been another question. Absolutely stupid because if anyone pays by cheque, bank details are on the cheque. I would not have done a bank draft, I would have sent her a cheque and let her worry about presenting it. I hope you deducted the 25 quid.

You could have always sent the money to her solicitor and he would have charged her for processing it!

If anyone is not open honest and transparent, I smell a rat. A smelly rat.

Customer: replied 14 days ago.
Hi

I am going to write to him again and give him 7 more days to provide doc otherwise i will put in the application. That's two chances to get his money back and end this. I hope any judge would really wonder why he was rufusing these chances. I laughed when you put about a rat as the probate man who helped me with the probate said "if you smell as rat, there is always a rat!" I have a boat load of rats... Especially the two, two-legged ones i am wrangling with!

Our last question on this got closed for some reason which is why i had to cut and paste this background ifo again for you. Can we leave this one open so you can read what we have already done and when i get to next bit, i will ask another question to you seperately?

Kind regards

Denise

Of course we can leave it open. It only normally gets closed if you or I it and I don’t normally close anything because things crop up weeks or even months later.

If you want me to deal with any other question personally, put my name at the top of the thread, “For FES only” and I will get told you are waiting.

 

I am glad to help. Please don’t forget to use the rating service because it means that I can continue to provide affordable and timely legal advice to people with similar problems.

Although it says "rate to finish" it doesn't close the thread and we can still exchange emails.

You may need to login again to use the rating service.

Thank you.

Best wishes

F E Smith and 2 other Law Specialists are ready to help you
Customer: replied 14 days ago.
Hi, will do the rating and review now but am going to also ask you another question ratio do with this all so keep your eye out.

Thanks once again!

Kind regards

Denise
Customer: replied 14 days ago.
First class service every time! Many thanks indeed.

Will do. Thank you.