When a Court is asked to consider a debt recovery claim it will consider whether, based upon the evidence before it, it is more likely than not that the sum claimed is due.
In a typical debt recovery case the following evidence will be needed in order to succeed in the claim:
Evidence as to the amount claimed
Ordinarily a Court will expect to see copies of the invoices claimed together with an up to date statement of account showing that the invoices remain unpaid. It is a good idea also to produce copies of any letters chasing payment of the invoices claimed together with any correspondence in which the other party admits the debt or asks for time to pay.
In practice it is quite unusual for a claim to be won on the basis of written evidence alone. For this reason it is a good idea to submit as evidence a witness statement from someone who can confirm that the sum claimed remains outstanding. The witness statement should ideally be made by someone who has first hand knowledge of the matter. For example it could be made by the person who dealt with the other party on a day to day basis or perhaps the person responsible for chasing payment of the invoices claimed.
Evidence showing how the debt arose
Ordinarily an invoice is raised because the party raising the invoice asserts that they are entitled to the sum invoiced by virtue of a contract it had with the other party.
Evidence should, therefore, be produced showing the existence of the contract and its terms.
If there is a formal written contract a copy of it should be produced as evidence.
If standard terms and conditions are relied upon a copy of those terms should be produced together with evidence showing how they were incorporated into the contract with the other party. Such evidence may include a copy of a letter enclosing the standard terms and conditions, an order form referring to the standard terms and conditions or evidence from a witness confirming that they handed a copy of the standard terms and conditions to the other party.
It is important to note that if standard terms and conditions are relied upon it is necessary to show that the other party had notice of the standard terms and conditions before the contract was made.
In the absence of a formal written contract copies of emails and letters may, for example, show what terms were agreed and any such correspondence should be produced as evidence. Even where there is a formal written contract it may be helpful to include any correspondence leading up to the formation of the contract in case there is any ambiguity as to the terms of the contract or in order to clarify the intention of the parties.
If the contract was made orally it will normally be necessary to produce as evidence a witness statement of the person who made the contract setting out the manner in which the contract was formed and the terms agreed.
Having produced evidence as to the existence of the contract it will normally be necessary to produce evidence to show how the contract was performed. In the case of a debt arising out of the sale of goods such evidence may include delivery notes showing that the goods were delivered to the other party.
In most cases, given that cases are rarely won on the basis of written evidence alone, witness statements will need to be produced, ideally from someone who has first hand knowledge, confirming the existence and terms of the contract and how it was performed.
Attendance of witnesses
A Court will attach more weight to the evidence contained in a witness statement if the witness is present at the hearing and, therefore, able to confirm first hand to the Court that they believe that the facts stated in their witness statement are true.
Since the Court will decide the case on the basis as to whether it is more likely than not that the sum claimed is due, it is particularly important to ensure that witnesses attend Court if there is a likelihood that the other party’s witnesses will attend. The reason for this is that if one of the other party’s witnesses makes an assertion that is false or untrue it will be very difficult to rebut that assertion if there are no witnesses present to give evidence to the contrary.
In practice parties normally submit copy documents as their evidence. However, it is important to ensure that the originals are available at the hearing in case there is any doubt as to the authenticity of the documents or in order to demonstrate, for example, that any standard terms and conditions relied upon actually appeared on the reverse of a document.