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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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Back with another question. To do with this court case, as I

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Hi. Back with another question.To do with this court case, as I am likely to be putting in app for specific disclosure, can you add a request for a judicial notice in same app? And only pay once?Or, is there a different route to apply for judicial notice?Reason is is because my counterclaim is for small personal injury and wages lost due to spending 18 months doing the numerous investigations and paperwork. As I have not got hours spent documented and am self employed and have difficulty specifying exactly wages levels. I wanted to apply for judicial notice to say that all this work did not do itself (have boxes of paperwork to prove everything) and only person doing it was me. Hoping this would be common sense and not something that could be denied.So, how/if could I go about this?Kind regardsDenise

I’m sorry, but I don’t quite understand what you are getting at.

You are making the application for specific disclosure of the money which he has alleged to have paid to ascertain its sources so I’m not certain what this “extra bit” that you are talking about is.

If you are talking about payment for your time, it would be a costs application and that could go in the same application and indeed, it would normally do so

Customer: replied 6 days ago.
Hi, thanks for the reply.

Ok, to clarify, say it gets all the way to court. I have a counterclaim in deceit as once I realised he had lied over bank statement/withdrawal, I knew everything else I had found was true. (This is why if the statement showed he had made the withdrawal, my counterclaim would be defunct) This caused major shock and meant total severing of all ties etc. My claim is part small personal injury (as got put on blood pressure tabs/3stone weight gain) and other part of claim is for all the time I didn’t work when I was dealing with 4 investigations.

Now, as self employed and not making a record of every minute lost to this, I have put in a small claim for this 18 month period.

Because I have trouble to prove every penny on this, I wanted to apply for a judicial notice to say I don’t have to prove this as all these investigations did not do themselves and there was no one else but me to do it. Can show all paperwork to prove the extent of workload.

Can I do this? Do you do this on the day of the trial? Do you apply for this notice before court or how and when is a judicial notice applied for?

Is that clearer?

It will help if I explain how claims in negligence arise.

There needs to be

1. a duty of care

2. the duty of care needs to be breached

3. as a result of the breach there needs to be loss or injury

4. the loss or injury must be as a result of the breach

5. the loss or injury resulting from the breach must be reasonably foreseeable.

In order for there to be a claim in negligence, all 5 heads have to be satisfied.

And sorry to say that the blood pressure/stress is not a reasonably foreseeable consequence of his actions and in any event it would need to be a recognised psychiatric illness, diagnosed by a psychiatrist or other mental health professional, such as PTSD.

 

You can charge your time at 19 pounds per hour and it’s always a good idea to put together a schedule of that and provided to the other side and the court, in advance of the hearing. It is a Costs Estimate. Better not pull it out of the hat on the day of the trial but forewarn them that you will be producing it.

 

It’s not a judicial notice. It’s an application for costs.

Customer: replied 5 days ago.
Hi, thanks for the explanation.

After advice on here before, I was advised I would have difficulty in claiming negligence as he didn’t really owe me a duty of care.

So, as he deliberately deceived me about the withdrawal so I would give him a cheque back (as executor) and assuming he did lie about withdrawal this created a chain reaction to tell me all other criminality I had found was true. I could put a deceit claim in. That’s why I did.

This realisation caused me loss. So that’s my counterclaim case.

I was also advised I could claim for a small amount for personal injury and for the loss of earnings whilst looking into his criminality and the aftermath of that (solicitors letters police etc.)

So, in the same way that facts that are known to be obvious, such as it’s hot in July, I wanted to argue that in order to discover their numerous counts of criminality, took an enormous amount of time, effort and stress which cannot be doubted. This is where my wish for a judicial notice came in. To help prove my case.

If this option is not relevant in my situation, perhaps you could explain a bit about the process for this so I can understand why.

Thanks very much for your patience. I am trying not to make a fool of myself or cause him a win by default.

Remember that any claim for compensation is totally different from a claim for disclosure. There doesn’t have to be a duty of care or even privity of contract for you to have the grounds for a claim for specific disclosure.

 

I’m sorry to say that I cannot see financial compensation claim here. Sorry

 

 

 

Customer: replied 5 days ago.
Hi, thanks for the message.

I understand totally what you are saying about the disclosure. That’s a separate issue and I will apply for that soon, if he doesn’t give a copy of statement in 7 days.

The other issue of my counterclaim was just a big punt on giving him something back to chew on, consequence for his actions etc, and my claim may well end in nothing but he doesn’t know that.

It is not about the money, it’s about showing something that says you cannot put people through this without losing out somewhere in the line. I have learnt so much on this journey that will help in the future I am sure, that I am seeing it all as life training.

Funny enough, some other legal person who helped me before on another issue came back today and sent me a brilliant article about judicial notices along with an article on investigating fraud written by the fraud advisory board.

They state in their intro that fraud is so complex, so intwined and time consuming to investigate, that this is why so few fraud cases get to court.

He says I could argue that my brother in laws actions, which have caused me loss, needed to be followed up, and acted upon which takes time, tenacity and stress. So why not try to claim something for that.

He said the rule of common knowledge and fraud advisory board article is authoritative on the subject on the complexity of fraud and that could go without saying - that I could not have found enough out, enough detail for cid in South Wales police to be looking into this still without significant time and effort, which I am trying to be compensated for.

So, I am guaranteed nothing but the experience and he said that I’m on the day, the judge may just rule even a little in my favour.

He also mentioned that if the statement never comes or shows no withdrawal I could ask for case to be struck out on that basis, so could win a counterclaim even if in court I would not have stood a chance. Does that make sense?

I can’t let him get off Scott free without a fight...

Never go to court on a principle. It is about the money, it’s not about showing him. Basic law which law students learn on day one.

 

The comment made by the other legal adviser in respect of fraud is absolutely correct. Unless you present a virtually ovenready case to the police or one which is so cut and dried that it would be an idiot who thought there was no fraud, they simply will not investigate because it’s easier to knit people for parking on double yellow lines, dropping letter, speeding, or to sit in the office and drink tea.

It’s not so much your brother’s actions which is the problem but his lack of action and his seeming lack of accountability because as we’ve already said, he could get rid of all this at a stroke and your concern of course is that he has paid this and wants refunding in respect of this when the money he is asking back is potentially illegal. Being blunt, it could be money-laundering.

 

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 other Law Specialists are ready to help you
Customer: replied 3 days ago.
Hi there

All rated again... Brilliant help as usual! I will be sending him a letter tomorrow re one more chance for statement and i pay back, if not ask for sepcific disclosure within 7 days. Dependent on what he does (nothing - bad for him, Statement supplied but shows no withdrawal - bad for him.

If he ignores a court order to produce - what happens to him then?

I will come back to you on rthis subject as things progress.

Kind regards

Denise