For day 5 of the International Fraud Awareness Week I thought I would highlight 5 suggestions for improving the prospects of a successful fraud possession action. There will be many others of course but this is a start!
- Use court processes effectively – for example, the Part 18 Request for Further Information. Defences are frequently (and perhaps understandably) brief and leaving many important questions unanswered. Raise these unanswered questions in a Part 18 letter – if still not answered or answered sufficiently an unless order can be applied potentially leading to a strike out of the defence/debarring of the defendant from defending the claim. I wrote about this in March 2022.
- Prepare a detailed pre-action protocol letter – remember, this is not only a procedural requirement but also gives the landlord a final chance to properly understand the prospective defendant’s response to the allegations made against them. If it is not responded to, or done so only in a very cursory manner, then there is plenty of opportunity to raise a poor and insufficient response in submissions and by way of cross examination.
- Understand and ‘use’ hearsay – there is at times very little direct evidence available to the claimant and even where there potentially is, such as where a client officer visits a property and finds sub-tenants there, those sub-tenants frequently decline to attend court such that their statement or evidence of their presence and status is entirely hearsay. Direct evidence is inherently best but litigants should not be put off by its absence, remembering in particular the question of weight addressed in section 4 of the Civil Evidence Act 1995 and the inherent hearsay nature of much crucial evidence such as credit reference records and bank statements.
- Identify inconsistencies in the defendant’s case – not every case has a ‘knock-out blow’ and some require a proper weighing up of the evidence. To that end it is often helpful, if only to seek to undermine the defendant’s overall credibility, to identify the number of inconsistencies in their account. It may be in respect of comparatively insignificant or non-determinative matters but it can assist to demonstrate the likely greater force of the claimant’s case. I recall a succession case where the Council’s position was that the tenant had moved back (as opposed to merely visited) to his country of birth before he died such that he was no longer a secure tenant and there was no longer any statutory succession right. His death was only in fact reported many years after it happened and there was limited evidence of his activities in his country of birth. There were though 13 instances where the would-be successor’s evidence was inconsistent either with their own testimony or previous position, or with that of their family witness. The court allowed the possession order and determined that there was no succession right extant at the time of the tenant’s death.
- Understand the judicial approach to the determination of facts – in 2021 I wrote about this following the judgment of Warby J in R (Dutta) v General Medical Council [2020] EWHC 1974 (Admin), especially at paragraph 39. The case is worth a read.
What are your top tips?
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