Fast Track Trial – Claimant's Witness not attending.

[Lost Cause]

Have been asked my advice on a matter dealing with a County Court Claim that has been allocated to the Fast Track (don't now why as I lost my Fast Track Trial - told them I'm probably not best person to ask).

 

Anyway here's the issue:

 

Witness statements have been exchanged, Listing questionnaires filed and trial listed.

 

Defendant has received Trial Bundle, attached to this is letter from claimant's solictor's in which they have indicated their clients witness will not be in attendance at the hearing and will rely on written evidence at the trial.

 

Proposed timetable for trial has allowed for examination of Claimant's witness statement and evidence and then cross-examination of Defendant.

 

Is this right?

 

Can defendant object to this and request they attend for cross-examination?

 

I've look at CPR Part 28 which deals with Fast Track Trials and it makes no reference to witnesses.

 

Surely Defendant can cross-exam Claimant's Witness if they choose, not being able to do so would put defendant at a disadvantage .

 

Defendant has not been contacted by Claimant's Solicitor prior to trial to see if they wish to cross-exam their client's witness.

 

Defendant served on an claimant N268 - Notice to prove documents at trial in respect of agreement as confirmed original destroyed.

Edited August 16, 2009 by Lost Cause

[Lost Cause]

Bump

[Lost Cause]

Anyone got any ideas on this?

[Lost Cause]

OK, been ready CPR in particular parts 32 and 33 as follows:

 

32.5 Use at trial of witness statements which have been served

(1) If –

(a) a party has served a witness statement; and

(b) he wishes to rely at trial on the evidence of the witness who made the statement,

he must call the witness to give oral evidence unless the court orders otherwise or he puts the

statement in as hearsay evidence.

(Part 33 contains provisions about hearsay evidence)

(2) Where a witness is called to give oral evidence under paragraph (1), his witness statement shall

stand as his evidence in chief(GL) unless the court orders otherwise.

(3) A witness giving oral evidence at trial may with the permission of the court –

(a) amplify his witness statement; and

(b) give evidence in relation to new matters which have arisen since the witness statement was

served on the other parties.

(4) The court will give permission under paragraph (3) only if it considers that there is good

reason not to confine the evidence of the witness to the contents of his witness statement.

(5) If a party who has served a witness statement does not –

(a) call the witness to give evidence at trial; or

(b) put the witness statement in as hearsay evidence, any other party may put the witness

statement in as hearsay evidence.

 

 

33.4 Power to call witness for cross-examination on hearsay evidence

(1) Where a party –

(a) proposes to rely on hearsay evidence; and

(b) does not propose to call the person who made the original statement to give oral evidence,

the court may, on the application of any other party, permit that party to call the maker of the

statement to be cross-examined on the contents of the statement.

(2) An application for permission to cross-examine under this rule must be made not more than

14 days after the day on which a notice of intention to rely on the hearsay evidence was served

on the applicant.

33.5 Credibility

(1) Where a party –

(a) proposes to rely on hearsay evidence; but

(b) does not propose to call the person who made the original statement to give oral evidence; and

© another party wishes to call evidence to attack the credibility of the person who made the

statement,

the party who so wishes must give notice of his intention to the party who proposes to give the

hearsay statement in evidence.

(2) A party must give notice under paragraph (1) not more than 14 days after the day on which a

hearsay notice relating to the hearsay evidence was served on him.

[Lost Cause]

So, my understanding is:

 

If claimant intends to rely on witness statement, but not call the witness to give evidence at trial they must submit the evidence as hearsay evidence (32.5(1)(b)).

 

If they don't they call the witness or submit as hearsay evidence, defendant can put claimant's witness statement in as hearsay evidence (32.5(5)(b)).

 

Defendant can make an application to call witness to be cross-examined (33.4(1)(b)).

 

If claimant does not submit a notice of intention to relay on hearsay evidence where does this leave the defendant.

 

Is claimant's solicitors letter saying their clients witness will not be in attendance in effect notice they intend to rely on hearsay evidence?

[Lost Cause]

Also found the following:

 

1996 No. 3218 (L.17)

COUNTY COURTS

PROCEDURE

The County Court (Amendment No. 3) Rules 1996

 

 

Hearsay evidence

2. For Order 20, rules 14 to 24[2], there shall be substituted the following

—

"Application and interpretation

14.—(1) In this Part of this Order the "1995 Act" means the

Civil Evidence Act 1995[3] and any expressions used in this Part

of this Order and in the 1995 Act have the same meanings in this

Part of this Order as they have in the Act.

(2) In this Part of this Order:

"hearsay evidence" means evidence consisting of hearsay within

the meaning of section 1(2) of the 1995 Act;

"hearsay notice" means a notice under section 2 of the 1995 Act.

(3) This Part of this Order applies in relation to the trial or

hearing of an issue arising in an action or matter and to a

reference under section 65 of the Act (Power of judge to refer to

district judge or referee) as it applies to the hearing of an action

or matter.

(4) Nothing in this Part of this Order shall apply in relation to

proceedings which have been referred to arbitration under section

64 of the Act.

Hearsay notices

15.—(1) A hearsay notice must

(a) state that it is a hearsay notice;

(b) identify the hearsay evidence;

© identify the person who made the statement which is to

be given in evidence;

(d) state why that person will (or may) not be called to give

oral evidence, and

(e) if the hearsay evidence is contained in a witness

statement, refer to the part of the witness statement where it

is set out.

(2) A single hearsay notice may deal with the hearsay evidence

of more than one witness.

(3) The requirement to give a hearsay notice does not apply to

(a) evidence which is authorised to be given by or in an

affidavit; or

(b) a statement which a party to a probate action desires to

give in evidence and which is alleged to have been made by

the person whose estate is the subject of the action.

(4) Subject to paragraphs (5) and (6), a party who desires to

give in evidence at the trial or hearing of an action or matter

hearsay evidence shall, not less than 28 days before the day fixed

for the trial or hearing, serve a hearsay notice on every party and

file a copy in the court.

(5) Unless the court otherwise directs, paragraph (4) shall not

apply to an action or matter in which no defence or answer has

been filed and, where a defence or answer is filed less than 28

days before the day fixed for the trial or hearing, any party who is

required to give a hearsay notice shall apply to the court for an

adjournment or for such other directions as may be appropriate.

(6) Where witness statements are served under rule 12A of this

Order (or under that rule as it is applied by Order 17, rule 11), any

hearsay notice served under this rule shall be served at the same

time as the witness statements.

Power to call witness for cross-examination on hearsay

evidence

16.—(1) Where a party tenders as hearsay evidence a

statement made by a person but does not propose to call the

person who made the statement to give evidence, the court may,

on application, allow another party to call and cross-examine the

person who made the statement on its contents.

(2) An application under paragraph (1) shall be made on notice

to all other parties not later than 28 days after service of the

hearsay notice.

(3) Where the court allows another party to call and crossexamine

the person who made the statement, it may give such

directions as it thinks fit to secure the attendance of that person

and as to the procedure to be followed.

Credibility

17.—(1) If

(a) a party tenders as hearsay evidence a statement made by

a person but does not call the person who made the

statement to give oral evidence, and

(b) another party wishes to attack the credibility of the

person who made the statement;

that other party shall notify the party tendering the hearsay

evidence of his intention.

(2) A notice under paragraph (1) shall be given not later than

28 days after service of the hearsay notice." .

3. Nothing in rule 2 shall apply to proceedings

(a) in which directions have been given, or orders have been made, as

to the evidence to be given at the trial or hearing, or

(b) where the trial or hearing has begun

before 31st January 1997.

[Lost Cause]

Would 1996 No. 3218 (L.17) COUNTY COURTS PROCEDURE The County Court (Amendment No. 3) Rules 1996 still be applicable or have the Civil Procedure Rules replaced it?

 

Any advice would be appreciated. Trial is on Friday 21/08/09

[Lost Cause]

Anybody?

[supasnooper]

Hi Lost Cause,

 

I'm sorry I can't help you here but I have flagged this for the attention for the rest of the Site Team.

[Lost Cause]

Hi Supasnooper,

 

Many thanks

 

LC

[ukaviator]

Lost Cause

 

What is the trial about exactly, credit card claim, PPI, Bank charges?

[Lost Cause]

Trial is in respect of credit card.

[I've got no money]

What does their witness statement actually say - is there anything in it that your friend would want to cross examine

 

It might be an idea to post a redacted copy of the WS

 

There is nothing, for example, to prevent your friend serving a Witness Summons on the other sides' witness - it depends if it is worth calling them

[surfaceagentx20]

So the witness evidence relates to a case to be tried on the fast track this coming Friday, just a few days away. Am I right in thinking this is the Claimant's one and only witness? Yet the Claimant has decided not to call this witness to give evidence. As you have rightly concluded, the evidence the claimant proposes to adduce is hearsay evidence. Hearsay evidence is covered by statute and rules of court.

 

Civil Evidence Act 1995 section 2 says:

 

Notice of proposal to adduce hearsay evidence.

(1) A party proposing to adduce hearsay evidence in civil proceedings shall, subject to the following provisions of this section, give to the other party or parties to the proceedings

(a) such notice (if any) of that fact, and

(b) on request, such particulars of or relating to the evidence,

as is reasonable and practicable in the circumstances for the purpose of enabling him or them to deal with any matters arising from its being hearsay.

 

(2) Provision may be made by rules of court

(a) specifying classes of proceedings or evidence in relation to which subsection (1) does not apply, and

(b) as to the manner in which (including the time within which) the duties imposed by that subsection are to be complied with in the cases where it does apply.

 

CPR 33.2 says:

 

(1) Where a party intends to rely on hearsay evidence at trial and either

(a) that evidence is to be given by a witness giving oral evidence; or

(b) that evidence is contained in a witness statement of a person who is not being called to give oral evidence;

 

that party complies with section 2(1)(a) of the Civil Evidence Act 1995 by serving a witness statement on the other parties in accordance with the court’s order.

 

(2) Where paragraph (1)(b) applies, the party intending to rely on the hearsay evidence must, when he serves the witness statement

(a) inform the other parties that the witness is not being called to give oral evidence; and

(b) give the reason why the witness will not be called.

 

(3) In all other cases where a party intends to rely on hearsay evidence at trial, that party complies with section 2(1)(a) of the Civil Evidence Act 1995 by serving a notice on the other parties which

(a) identifies the hearsay evidence;

(b) states that the party serving the notice proposes to rely on the hearsay evidence at trial; and

© gives the reason why the witness will not be called.

 

(4) The party proposing to rely on the hearsay evidence must

(a) serve the notice no later than the latest date for serving witness statements; and

(b) if the hearsay evidence is to be in a document, supply a copy to any party who requests him to do so.

 

By all accounts the earliest the claimant gave notice that the witness named in the witness statement would not attend court to give evidence was the day the trial bundle was served. That would be quite recently. I assume the witness statement itself was served weeks or months earlier. If so, the claimant failed to comply with CPR 33.2(2). The claimant may still have failed to comply with CPR 33.2(2) if the letter does not specify the reason why the witness will not be called. With such little time remaining you are prejudiced in making arrangements to have the witness brought to court for the purpose of cross examination.

 

Ultimately trial management is for the trial judge who exercies his discretion on what he determines to be just considerations. It seems to me however that the claimant will have to explain its failure to comply with CPR 33. If the claimant can make a good explanation the trial may be adjourned at their expense in order that the case might be dealt with justly at some later date. Frankly though I can't think of a good reason unless we're talking about a situation where the witness died recently and unexpectedly.In which case an adjournment wouldn't achieve much. If the claimant cannot offer a good reason it seems to me the claimant could not complain if the court refused to admit the witness statement, in which event and with no evidence from the claimant, I would have thought the likelihood is the claim will decided in your favour.

 

x20

[Lost Cause]

What does their witness statement actually say - is there anything in it that your friend would want to cross examine

 

It might be an idea to post a redacted copy of the WS

 

There is nothing, for example, to prevent your friend serving a Witness Summons on the other sides' witness - it depends if it is worth calling them

 

Don't have a copy of claimant's witness statement, however having read it the points that I personally picked up on are the following:

 

The witness statement has been someone employed by the Bank within the Bank's Debt Recovery Section since XX/XX/XXXX – (the account was opened 6 years before this date).

 

“The contents of this statement are true to best of my information, knowledge and belief and the facts stated are known to me personally. Where they are not known to me personally I have stated the source of my information.”

 

“The defendant applied for a XXXXXX Credit Card on XX/XX/XXXX for the purpose of acquiring goods and/or service on credit. On receiving the Defendants application form, the agreement would have been scanned and stored electronically on the banks computer system, the original agreement subsequently being destroyed.”

 

Defendant submitted an N268 – Notice to prove documents at trial with their Witness Statement – claimant under standard disclosure stated original agreement destroyed.

 

Following receipt of Witness Statement, defendant requested confirmation of a number of points regarding the production of the Default Notice (of which there are a number of problems) as Bank had stated they did not keep a copy of the DN – they did however reproduce a template of the Banks DN.

 

Claimant responded by way of a second witness statement in which the process by which the Bank creates it's Default Notice was explained – all automated – on the Bank's premises, the address given being a different location from the location in which the Witness has stated they are employed at.

 

Now I may have got this wrong but as the individual making the Witness Statement did not work for the Bank how could they make the statement about the application form being scanned at the time the application was received.

 

Also regarding production of the DN – again he does not work at the location the DN was produced.

 

Would these statement's be hearsay?

 

Or has the witness protect himself by saying “Where they are not known to me personally I have stated the source of my information”.

 

Yet he does not state a source for his information.

[Lost Cause]

So the witness evidence relates to a case to be tried on the fast track this coming Friday, just a few days away. Am I right in thinking this is the Claimant's one and only witness?

x20

 

 

Yes claimant's one and only witness

[Lost Cause]

By all accounts the earliest the claimant gave notice that the witness named in the witness statement would not attend court to give evidence was the day the trial bundle was served. That would be quite recently. I assume the witness statement itself was served weeks or months earlier.

x20

 

Yes - trail bundle received last Friday with letter from Claimant's Solicitors saying "Our client's Witness will not be attending the hearing and will therefore be relying on their written evidence"

[Lost Cause]

The only thing that I have thought of, and I have said this to defendant, is that claimant's solicitor has said this in some way to put him off guard and that when they arrive at court witness will be in attendance.

[Lost Cause]

Also Defendant has submitted Skeleton Argument in accordance with DJ instructions (to file and serve three working days prior to trial). Defendant sent to Solicitors and Court by Guaranteed Next Day both signed for this morning.

 

No Skeleton Argument from claimant (but no surprise there).

[surfaceagentx20]

I don't know enough about the case, the background and most likely many other important features. However, I would draw your attention to Civil Evidence Act 1995 section 9 and all its oddity which says:

 

Proof of records of business or public authority.

(1) A document which is shown to form part of the records of a business or public authority may be received in evidence in civil proceedings without further proof.

 

(2) A document shall be taken to form part of the records of a business or public authority if there is produced to the court a certificate to that effect signed by an officer of the business or authority to which the records belong.

 

For this purpose

 

(a) a document purporting to be a certificate signed by an officer of a business or public authority shall be deemed to have been duly given by such an officer and signed by him; and

(b) a certificate shall be treated as signed by a person if it purports to bear a facsimile of his signature.

 

(3) The absence of an entry in the records of a business or public authority may be proved in civil proceedings by affidavit of an officer of the business or authority to which the records belong.

 

(4) In this section

“records” means records in whatever form;

“business” includes any activity regularly carried on over a period of time, whether for profit or not, by any body (whether corporate or not) or by an individual;

“officer” includes any person occupying a responsible position in relation to the relevant activities of the business or public authority or in relation to its records; and

“public authority” includes any public or statutory undertaking, any government department and any person holding office under Her Majesty.

 

(5) The court may, having regard to the circumstances of the case, direct that all or any of the above provisions of this section do not apply in relation to a particular document or record, or description of documents or records.

 

The Claimant may be intending to rely on this section (though if so why not a simple certificate as opposed to a witness statement when CPR 33 requirements may have been overcome?). Whether the documents may be admitted under section 9 depends upon the responsibility of the person making the certificate (or witness statement if the statement is to double as a certificate which I suppose it might). Of course, the certificate / witness statement only relates to the discovery of the record. That is not the same as evidence of the truth of the record or that it is a faithful and true replica of the orginal document of which the record is said to be a copy. Nor the truth of the circumstances leading to the destruction of the original. Did the claimants explain why the witness would not be called?

 

In Subramaniam v Public Prosecutor (1956) (PC) The Privy Council explained hearsay as follows:

 

Evidence of a statement made to a witness by a person who is not himself called as a witness may or may not be hearsay. It is hearsay and inadmissable when the object of the evidence is to establish the truth of what is contained in the statement. It is not hearsay and is admissable* when it is proposed to establish by the evidence, not the truth of the statement but the fact it was made.

* Subject to compliance with CPR 33 I suggest and the considerations set out in Civil Evidence Act 1995 section 2(4).

 

Without more I am in difficulty in guessing the claimant's intentions. All the same, saying the claimant's one and only witness will not attend trial late in the day and then turning up with that witness is sharp practice and most likely will be condemned, especially if the claimant gave no explanation for the fact the witness would not be attending. Turning up without a single witness is dangerous in the extreme regardles of what steps have been taken to comply with the CPR and the Civil Evidence Act. The creditor can not be sure the trial judge will attach sufficient weight to the witness statement and any weight is likely to diminish as the defendant has his say.

 

x20

[Lost Cause]

I don't know enough about the case, the background and most likely many other important features.

x20

 

Sorry I can't go into anymore detail, case is not mine, so don't feel it would be appropriate. Defendant was posting but stopped after seeing posts in which people had said that the Solicitors, who are acting on behalf of the claimants in this claim, had been quoting from threads on this site.

 

I think receiving letter from solicitors saying their clients witness would not be attending the trial threw them of course as they had been putting together questions for cross examination.

[Lost Cause]

Without more I am in difficulty in guessing the claimant's intentions. x20

 

That makes three of us then.

 

All the same, saying the claimant's one and only witness will not attend trial late in the day and then turning up with that witness is sharp practice and most likely will be condemned, especially if the claimant gave no explanation for the fact the witness would not be attending. Turning up without a single witness is dangerous in the extreme regardles of what steps have been taken to comply with the CPR and the Civil Evidence Act. The creditor can not be sure the trial judge will attach sufficient weight to the witness statement and any weight is likely to diminish as the defendant has his say.

 

x20

 

…lets hope they don't get a DJ who immediately sides with the claimant.

[Lost Cause]

x20

 

Sorry, forgot to say, thanks for you advice - much appreciated.

[Lost Cause]

Update:

 

Don't know much detail - but trial adjourned.

 

Meeting defendant for a drink later will post whatever I can.

[citizenB]

Update:

 

Don't know much detail - but trial adjourned.

 

Meeting defendant for a drink later will post whatever I can.

 

Look forward to update.