If you are going to court to recover money from a debtor, you need to produce sufficiently strong evidence that will be at least enough to convince the court that the debt is probably owed to you.
When considering your claim, the court will consider whether, based upon your evidence, it is more likely than not that the sum claimed is due.In a typical debt recovery claim, the following evidence will be needed to succeed in the claim:
Evidence as to the amount claimed
Depending on the circumstances in which the debt arose, the court will expect to see copies of invoices claimed (and an up-to-date statement of account showing which invoices remain unpaid); or other documentation (such as a contract) showing how the debt arose. For instance, the other party may argue that the debt you are claiming is a gift – in which case, you will need evidence to support your claim that the money is owed back to you.
It’s advisable to produce copies of any letters chasing payment of unpaid invoices, together with any correspondence in which the debtor admits the debt or asks for additional 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 you are claiming remains outstanding, ideally from someone who has first-hand knowledge of the matter. For example, if it is a business debt,the witness statement could be given by someone who dealt with the debtor on a daily basis, or perhaps the person responsible for chasing payment of the unpaid invoices.
Evidence showing how the debt arose
Ordinarily, an invoice is raised if the money is owed in the course of business: 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. If possible, that contract should be produced in evidence – or if there is no formal, signed contract, evidence of the contract that was reached, for instance, emails and records of telephone conversations.
If standard terms and conditions are relied upon in your claim, a copy of those terms should be produced together with evidence showing how they were incorporated into the contract with the debtor, for instance, copy of a letter enclosing the standard terms and conditions; or an order form referring to them.
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 them before the contract was made.
In the absence of a formal written contract, copies of emails, letters or texts may, for example, show what terms were agreed. Copies of such communications should be included in your 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 to clarify the intention of both the parties.
If the contract was made orally, it may be harder to prove your claim. It will normally be necessary to produce a witness statement by the person who agreed the contract, setting out the manner in which the contract was formed, when and where the conversations/ took place, and the terms agreed. If the money was intended as a loan and not a gift, again, you will need evidence in support.
Performance of the contract
It will also 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, this may include delivery notes showing that the goods were delivered to the other party.
Attendance of witnesses
A court may well attach greater 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 rule 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 debtor’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 you have no witnesses in court to give evidence to the contrary.
In practice, the parties normally submit copies of the original documents as their evidence. However, it is important to ensure that the originals are available at the hearing, if at all possible, in case there is any doubt as to the authenticity of the documents, or to demonstrate, for example, that any standard terms and conditions relied upon are actually included on the reverse of an evidential document.