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Thomas Judge
Thomas Judge, solicitor Advocate
Category: UK Property Law
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Experience:  award winning lawyer with over 15 years experience
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If I receive a letter of claim from an opponent in relation

Customer Question

If I receive a letter of claim from an opponent in relation to say a neighbour dispute in a shared driveway and the neighbour just states quote:- "Our client has entered into a funding agreement within the meaning of CPR r43.2(1)k x(c)" and nothing else,
and then months after the letter of claim starts to add further allegations, for example damage to his vehicle supported by "estimates" only, i.e. no written insurance policies or photos of the damage to his vehicle or even any proof of the date or time of
the damage and yet further still even sends me a N251 "Notice of Funding" certificate (see screen shot attached) BUT months after the original letter of claim (not at the same time or within 7 days of the policy starting) and worst still, only ticking the
box to state he is now funded by a Conditional Fee Agreement (again see the attachment) and not bothering to include the details of the insurance company, policy number and so on in this N251 form, can all of these actions give suspicion to perhaps a fraudulent
claim or even a sign that there is no real CFA agreement and perhaps the claimant is simply paying a solicitor out of his own pocket to write these letters? If so could any further action be taken,for example via a barrister who specializes in false and fraudulent
litigation? The least I would have expected for example in a genuine letter of claim would be to have all the information up front backed up by evidence, photos, accident investigation and/or insurance reports, as well as serving the N251 Notice of Funding
Form at the same time as the letter of claim, completed with all the insurance policy details, but it appears as if the Claimant is making up his litigation as he goes along, otherwise taking into account what I have just stated, I would have expected a clause
like the following to have been included in his letter of claim for starters:- "We are acting under a Conditional Fee Agreement with a 100% success fee. The insurer is First Assist Legal Assistance with a policy dated 09/AUG/2009 under policy 16/1232-382B5
. We are instructed by the above named to seek damages and losses from you in relation to an accident which occurred on 30 June 2011, the incident date when around 2.05 PM in the afternoon our client was driving through the shared driveway when his vehicle
collided with your wheelie bin left placed at an interval in the shared driveway causing substantial interference with our client's right of way. The damage sustained is approximately £622.00 and you will find attached an estimate of this damage together with
photos showing the damage to our client's vehicle." something which obviously wasn't included if you cross-check with what I wrote above, i.e.:- "Our client has entered into a funding agreement within the meaning of CPR r43.2(1)k x(c)" and which makes me wonder
if the claim may be false or fraudulent. Any advice would be appreciated.
Submitted: 1 year ago.
Category: UK Property Law
Customer: replied 1 year ago.
I forgot to mention the opponent's solicitor also a year later stated the opponent was being funded by a CCFA, Collective Conditional Fee Agreement. Would this be because say the opponent was say a member of a union or other body and perhaps the CFA was then between the solicitor and the insurance company direct and possibly a reason why they didn't bother to include the insurance policy details OR could there still be a fraudulent aspect to the claim?
Customer: replied 1 year ago.
Hi I note the above question is still outstanding since 05 Nov 2015 (4 days now).If it is too complicated to answer... could someone just answer this question instead..I have an alleyway that separates my house from the house next door but I'm not sure who actually owns it as this is a new build estate and their is some contention on the part of the builders if it should belong to us or the next door neighbour.The neighbour however said he owns it because he deed states "full and free right of way at all times along the land coloured in green" where I note from our title plans this is the strip of land adjacent to my property! So does "full and free right of way" mean the other party has exclusive ownership of the green land OR can I still walk over on this side? Any assistance would be appreciated and we can forgot the previous question.
Expert:  Thomas Judge replied 1 year ago.

I will try and help you. Full and free right of way does not mean ownership. It simply means a right of access or right of way over the land. The fact that it states this expressly states that they do not have ownership. What exactly does your plans state? Happy to discuss. Please rate positive

Customer: replied 1 year ago.
that's fine. The letter of claim stated an incident date of 30th August 2015 however I have plenty of emails from the previous year with the council stating there are ongoing issues with this neighbour and the shared driveway. One final question... if I pass my evidence to my solicitor, can this be construed as if the claimant then is concocting an insurance claim against me perhaps since he hasn't disclosed past as well as ongoing disputes to his insurance company.
Expert:  Thomas Judge replied 1 year ago.

Potentially - if that is the way he is presenting things. Happy to discuss but please rate positive

Customer: replied 1 year ago.
I suppose I can put in a new claim for perhaps false representation, failure to disclose material facts and start new litigation against him for any losses I have incurred due to his failure to disclose past incidents and taking unfair advantage through a fraudulent insurance policy against me. I also assume if I have the facts to prove it, I won't need to see his insurance claim form to confirm this since he will plead it is a privileged document and only between him and his insurer, i.e. as long as my evidence holds good in a court of law and backed up by my solicitor, this should be good to counter-sue the claimant for false and fraudulent representations.
Customer: replied 1 year ago.
with regards ***** ***** false representation, I just checked the current v archived deeds.. the current states rights of way in common with our property and the archive states rights of way reserved in favour of the other party. Would the wording "in common" be less important than "in favour" . the latter meaning the neighbour has more rights to the shared driveway! That's the end of my questions and I'll be happy to rate once you can conclude with any final remarks.
Expert:  Thomas Judge replied 1 year ago.

Sorry but I have been away - do you still need help with the last questions?

Customer: replied 1 year ago.
just a final point... if the claimant put in a fraudulent claim, e.g. quoting an old conveyance which may have been in place and pre-dates my conveyance, i.e. thereby convincing his insurer say the shared driveway is his own driveway and perhaps we are putting bins on his land, can a Norwich Pharmacal Order (NPO) be requested in Court to disclose his nonsense and fraudulent litigation.. I think he duped his insurance company with an old conveyance and they gave him the funding. If he stated it was a SHARED driveway which is the case, no insurer would fund him as the likelihood of success would only be 50% (50/50 shared) and since it fails the 51% threshold, the insurance claim would fail! Any thoughts would be welcome.
Expert:  Thomas Judge replied 1 year ago.

The key is that you would need proof and you would need to show that the fraud was on you. The insurance policy will from experience be a privileged document and not something to which an NPO would apply. From what you have written if there is a fraud (how he got his funding) then that would be against the insurance company rather than against you.I know that you have a complaint because you think that he has mislead the court/you. Happy to discuss. Please rate positive

Customer: replied 1 year ago.
I agree from the point of funding the NPO may not apply if I am just trying to establish if any funding is in place OR how much the funding is worth however if the insurance company (the innocent party) has been caught up in the fraud, i.e. by unwittingly funding a claim based on an out of date title deed, I think the NPO would apply. Several links on Google suggest this too including some from Wikipedia which I pasted in below. Any thoughts?
Expert:  Thomas Judge replied 1 year ago.

I am aware of the law on NP orders (not the biggest fan of wiki type law). I have to say that I have concerns with regard to it applying and if it fails you would be exposed to the costs of making such an application.

Customer: replied 1 year ago.
Also proof exists since the claimant stated an alleged incident date around 2011, 31st July with regards ***** ***** bin in the shared driveway however he as well I know bins have been left in the shared driveway for not just ours, but the entire street for the past 60 odd years! I'm sure if this goes to trial he won't be pulling the wool of the eyes of the court!
Customer: replied 1 year ago.
I suppose if my solicitor can make a claim for an ATE insurance policy and the policy is accepted, this may be the best approach forward as costs will be covered.
Customer: replied 1 year ago.
Also I counter-claimed because the claimant decided to leave his bin in the shared driveway. The counter-claim failed because my home insurer said it was a 50/50 driveway and he was surprised how any insurer would fund the claimant's case for a bin in the shared driveway without any quantifiable damages or losses. I did get an invoice once year later for damages which even then was abandoned... you can see the fraud through and through. My home insurer said the only way the other party could have been funded is if didn't mention to his insurance company it was a shared driveway, otherwise the original claim would have failed! I hope you can see the point I am making!
Expert:  Thomas Judge replied 1 year ago.

The key on any such application is to get costs protection for yourself. I very much see the point which you are making - that he you presume mislead his insurers so that he could get funding. This is based on the advice that your insurer gave to you. I can also see how frustrating this whole thing has and continues to be with your neighbour. Happy to discuss but please rate positive for the original question.Thanks

Customer: replied 1 year ago.
Thank you and wish me luck. Kind regards.
Expert:  Thomas Judge replied 1 year ago.

I will do. Please do not hesitate to come back to me as necessary and please rate positive. Thanks

Customer: replied 1 year ago.
Just final point if you don't mind. If in a letter of claim the claimant states he is relying on my title deeds dated 11th August 1932 but then in his particulars of claim he puts down a conveyance dated 7th August 1932, i.e. he switched the dates, and I think because in reality his old conveyance favours him, does that mean the particulars of claim is now null and void since it runs counter to the letter of claim! If so, can I have the whole claim chucked out by a judge and an adverse costs order made against them?

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