Pre-Action Disclosure

[reallymadwoman]

This thread is all about pre-action disclosure under CPR 31.16. As usual, I needed to find out how to go about it for my own purposes, and I made notes as I went along so what follows is a tidied up version.

 

The threads I’ve read on this forum involving pre-action disclosure have all been to do with getting a copy of an agreement (or an admission that it’s been destroyed). I personally wouldn’t use CPR 31.16 for this purpose except in very exceptional circumstances. In fact, CPR 31.16 is only ever to be used in exceptional circumstances. Go on BAILII (British and Irish Legal Information Institute), click ‘case law search’ and put in ‘pre-action disclosure’ in the exact phrase box, and see how many cases come up. If you’re seriously considering going down this route, then it wouldn’t hurt to read all of them, or at least the judge’s summing up.

 

You will also need to read CPR 31.16 for the rules relating to pre-action disclosure and CPR 48.1 regarding costs for a pre-action application (CPR - Rules and Directions - Ministry of Justice).

 

The First Warning:- To save you reading even that much, an application under CPR 31.16 is not treated as small claims and therefore costs are recoverable. The costs of an application (for both sides) are usually borne by the applicant - that’s you - whether or not the application succeeds. If it’s complicated and involves barristers, costs could very easily run to four figures. It is possible to argue about costs if necessary, and if your case is strong enough it shouldn’t put you off (it hasn’t put me off) but you do need to keep in mind that all your application might achieve is a big bill. If of course your application is followed by a claim in which you are successful, so far as I know you could include the costs of the application in your overall costs. I don’t think that would extend to a small claim though.

 

The costs issue is only one reason why you should consider very carefully if you really need or want to go down this route. Before even writing your first letter, you need to be sure that your chances of an application succeeding are reasonably good since you should never threaten anything you’re not actually willing to do. Apart from making your position with the other side weaker, it also makes everyone else’s chances of getting disclosure without having to go through the courts that much less. Finally, embarking on court action should never be taken lightly. It will involve huge amounts of effort on your part to make sure you don’t accidentally break one of the civil procedure rules, keep all your paperwork in order and get it to the right people at the right time, loads of research and reading and, unless you’re an extremely confident and laid back person, huge amounts of stress. By all means hope that the other side will co-operate and send copies of everything you ask for, but approach the whole process with the expectation that you will at some point end up in front of a judge.

 

First the credits:-

 

This thread owes a lot to this one:- http://www.consumeractiongroup.co.uk/forum/legal-issues/173201-why-you-shouldnt-use.html by pt2537, which I would recommend reading as part of your own research.

 

Now the disclaimer:-

 

I am not an ‘expert’ in anything beyond filling the dishwasher and fitting too much stuff in the freezer. This is based on my own reading and research and can in no way be guaranteed to be anything other than correct to the best of my knowledge.

[reallymadwoman]

Preparation

 

As always, is the key. This is going to sound backwards, but all will become clear. Your first job is to put in words, in the form of “particulars of claim’ if you can, exactly what you would want to claim against the other side. If they’re potentially claiming against you, have a stab at what their particulars of claim might be. Once you’ve done that, assess what the chances of success would be assuming that all the evidence supported the claim. Is it a valid claim under English law? Does the amount involved justify the costs of pre-action disclosure? Read very carefully the the general Pre-Action Protocol (especially Annex A) and any other protocol that might apply to your claim. Proportionality of cost to the claim is one of the key principles underlying Civil Procedure Rules. Given that an application for pre-action disclosure could easily cost £1000+, is that cost really worthwhile?

 

Assuming you still think there’s a good case, what specific evidence do you really need to prove or disprove the potential claim? How likely is it that the other side will have that evidence? Or, in the case of a credit agreement, is the potential claim sufficiently large to justify trying to save the other side their issue fee by applying for disclosure now? The usual order of proceedings is that a claim is issued, a defence is entered, the claim is allocated to a track and disclosure is ordered. What benefit would you have from getting the documents you want now, instead of at the usual time for disclosure?

 

The answers to all those questions will become very relevant at the next stage.

 

The First Letter

 

Always keep in mind that everything you say and do from now on in connection with the application could come under scrutiny by a judge. Make sure you include everything you should, go out of your way to be reasonable at all times, and of course be polite. It shouldn’t arise in connection with a pre-action disclosure application, but judges do not seem to like ‘tit for tat’ tactics - i.e., if you don’t do this I’ll increase my claim and the like. Also do not even consider withholding information on the grounds that it might give you a tactical advantage later on. You are asking the other side to be open and honest, so you absolutely have to do it yourself. If you have a copy of a default notice that is defective, for example, the ‘cards on the table’ approach would be to tell them that and tell them why it’s defective, not wait for them to send you something different and then accuse them of ‘manufacturing’ evidence. Pre-action disclosure should not be used to ‘catch them out’. If you don’t want to disclose your default notice at this stage, don’t mention default notices at all. If you know it’s defective, you don’t need them to disclose it to know you have a good defence.

 

I’m not going to provide a template letter since I believe that all letters should be written in your own words so that you know you understand what you’ve written, and anyway template letters are usually obvious to the recipient and generally taken less seriously. If you want a guide as to where to start, there are templates on pt’s thread (link above) which you can use, but you will need to rewrite it to match your circumstances.

 

The letter should set out clearly what you want, why you want it and why you think it meets the requirements for pre-action disclosure.

 

You do need to include:-

1. That your request is made under CPR 31.16, not s7 of the Data Protection Act 1998, therefore the statutory time limits and fee do not apply.

2. What cause of action (claim) you believe you have against them, or they have against you. I actually included a draft particulars of claim, but you don’t have to do that. The nature of your claim must be absolutely clear though - you couldn’t just say ‘I’m going to sue you’ - and you must have some grounds for believing you have a claim, and say what they are. If your application is in connection with their potential claim against you, you have to have evidence that they are ‘more likely than not’ to start proceedings against you, e.g., a letter before action (but I wouldn’t rely on one of the usual threatograms from a DCA).

3. That you believe that it is ‘more likely than not’ that both you and they will be parties to the proceedings.

4. That if proceedings had been issued, their duty by way of standard disclosure would include the documents you’re asking for. Check what they would have to disclose in CPR 31.6 if you’re not sure.

5. A list of the documents you want. This should be as specific as you can make it, e.g., it’s OK to ask for ‘copies of any correspondence between X and Y regarding ....’ but it’s not OK to ask for ‘anything you have’

For each document you’re asking for, say why you think it is needed now, e.g., the copy of the default notice is required because I have reason to believe it is invalid because .... and if my belief is correct, proceedings will not need to be issued at all. More on reasons below.

6. A reminder (polite) that they should tell you if they no longer have any of the documents requested, and, only if it’s likely to be crucial to your case, what has happened to any documents they no longer have.

7. A request that your letter be acknowledged within a certain time. I gave 7 days since that’s long enough for anyone to write ‘your letter is acknowledged and is receiving attention’, but the exact time you give is up to you.

8. When you expect a full reply. Factors to take into account might include how much stuff you’re asking for, if there is any urgency (if they’ve already issued or issue shortly afterwards, you can ask for disclosure anyway), how complicated or unusual your potential claim is, etc. Only you can say what’s reasonable. I gave them 28 days.

9. An offer to pay their reasonable costs for complying with your request. This is a very good reason to be very specific about what you want (and being specific makes it far more likely that any application would succeed anyway) so you’re not asked to pay for photocopying hundreds of irrelevant documents. If you’ve only asked for copies of two or three documents, any charges could well be waived, and if they’re not you’ve got the ‘reasonable costs’ as a potential get out if they try to charge silly amounts of money. Bear in mind that costs includes staff time in searching for documents as well as photocopying and postage. If the application ends up in court, this is more evidence of your reasonableness, and the general rule is that the applicant pays the costs of complying with an order. As they haven’t yet been unreasonable, you have no grounds to argue against this.

 

Have a copy of CPR 31.16 available whilst you’re writing. When you’ve finished, check that you’ve covered all the requirements, and especially bear in mind (3) (d) which gives the three grounds for disclosure before proceedings start - avoiding proceedings altogether, saving costs, and perhaps most relevant where there’s a litigant in person up against a big financial institution, to dispose fairly of the proceedings. They have all the resources and evidence, you have nothing but what they choose to give you. To put both parties on an ‘equal footing’, they need to share what they have.

[reallymadwoman]

The Next Step

 

If they’ve sent everything you asked for, your next step is not a subject for this thread.

 

If they’ve refused all or part of your request, it depends upon what reason they give. If you’re not sure whether to continue or not, go back to the beginning and re-assess. If their reason sounds even remotely good, then maybe you ought to have a re-think. If a judge decides it was a good reason, you’re definitely stuffed on costs.

 

If they’ve asked for more time, again it depends. It’s up to you whether you allow it or carry on regardless.

 

If you decided to continue or if they’ve ignored you, then the next step should suit either case. You could go straight for an application, but CPR isn’t entirely clear on whether your initial request would count as a ‘letter before action’ or even if an LBA is needed, so to be on the safe side, I sent one. At worst it delays things at bit, at best it shows just how reasonable you’re prepared to be, and they might even start to take you seriously.

 

Again no template, just a list of things to include.

 

1. Head the letter ‘Letter Before Action’.

2. Include a statement to the effect that your correspondence has been ignored so they’re taken to have refused, or refer to their letter actually refusing or asking for more time.

3. I included a draft application, draft order and draft witness statement (more later).

4. Again, time limits for acknowledgement and reply, and a warning that failure to respond will result in an application to [your local] county court without further notice.

 

Giving them a draft of the application, order and witness statement should convince them that you’re serious and you know what you’re doing, which is a good enough reason for sending them, but putting them together should underline just how good your case is likely to be and give you a chance to include anything you might have missed or exclude anything that’s difficult to back up. A final benefit is that you’ll have a few weeks to work on your documents some more and get them ready to go if the time limit expires with no response. I’m a great believer in preparing for the next step well in advance since it avoids last minute panics and delays.

 

The draft witness statement especially allows them to make a reasonable judgment on your chances of success and hopefully come to the conclusion that they ought to comply without waiting for an order, or even try to negotiate a settlement for the whole claim. The other documents are, to be honest, window dressing. Submitting them now won’t harm your case in the slightest since they’re all drafts so details can be changed (but you couldn’t, for example, making a completely different sort of application) and again it’s evidence for the court of just how reasonable, open and honest you are being.

There’s a template for an application on pt’s thread (link above) as well as for a draft order. He knows what he’s doing so I see no reason to mess with the general contents or layout, just adjust the specifics. In the draft application I omitted mention of ‘assist the dispute to be resolved without proceedings’ since it was patently obvious from my witness statement that the chances of that happening were remote to say the least. In my draft order I didn’t list the documents I wanted but referred to an attached schedule since, though there weren’t that many, there were quite a lot of details of exactly which documents I needed.

[reallymadwoman]

The Draft Witness Statement

 

Again, there is a template in pt’s thread which you should use for the layout, but the contents are going to be so specific to your case that I think you should write it from scratch, with the possible exception of the opening section.

 

My potential claim is rather unusual and definitely complicated, so you may not need to include everything I included, but this is my list. I used one of the cases on BAILII (Black and others v Sumitomo and others [2001] EWCA Civ 1819 (and in particular paragraph 88 of the judgment) Black & Ors v Sumitomo Corporation & Ors [2001] EWCA Civ 1819 (03 December 2001)) to try to take the judge step by step over each of the hurdles you need to cross to persuade him to make an order for disclosure by first giving an overview of what all those hurdles are then showing how I’ve overcome each one in turn. I would suggest you need a very good reason to depart from from the order in which you present your evidence.

 

After you do the ‘full name etc’ section:-

 

The claim against the respondent

1. State you have reasonable grounds for a cause of action against the respondent

2. State that if proceedings are commenced, the applicant and respondent are likely to be parties

3. State that the respondent’s duty by way of standard disclosure in those proceedings would extend to the documents or classes of documents of which the applicant seeks disclosure

4. State that disclosure at this stage is desirable in order to dispose fairly of the anticipated proceedings, or assist the dispute to be resolved without proceedings, and save costs.

5. Respectfully request the court to exercise it’s discretion in ordering pre-action disclosure since such an order is merited because of :-

a) the nature of the claim, and

b) the clarity of the issues raised, and

c) the nature of the documents requested, and

d) the difficulty in the applicant fully particularising a claim without pre-action disclosure

 

The causes of action

This is where you detail exactly what claim you believe you have, or what claim the respondent is going to pursue against you. You must be specific. ‘The agreement is unenforceable’ is not good enough, you must say why it’s unenforceable.

Include any causes of action which you may have, but for which you need documents from the other side to decide properly (this is one instance where the court is likely to order disclosure, provided you have some reason to believe the evidence exists - you cannot engage on a fishing trip).

 

Say again that the applicant and respondent will be parties to the proceedings. If there is any possibility of anyone else being a party and you need one or more of the documents to decide, say so here.

 

Duty by way of standard disclosure.

You need to expand upon exactly why the documents you have requested would be disclosed under standard disclosure. (ii) © documents which support another party’s case is most likely to be relevant.

 

For each document that you’ve asked for, you also need to specify exactly what evidence you expect it to show (e.g., the default notice will show that it does not meet the requirements of ....) and why you can’t progress your case without it (If my belief that the default notice is invalid is confirmed ...)

 

Finally, you need to show that retrieving the documents requested shouldn’t present any great difficulty for the respondent - in jargon, involve them in disproportionate effort. If your request is very specific, this will be much easier, and in the case of most documents you’re likely to need, they’re going to be stuff you would expect to be disclosed under a s7 DPA request, so they should already have procedures in place to easily retrieve the documents.

 

Pre-action disclosure is desirable

 

Detail how disclosure will help to dispose fairly of the proceedings (both parties on an equal footing), how it will help resolve the dispute without proceedings and how it will help to save costs. Remember on the costs issue that making the application could actually be adding to any costs, so you have to justify it.

 

Discretion

 

This is where you quote the Black & Ors case, and draw the judges attention to p88. Say that you’ve shown that the jurisdictional thresholds are met (you’ve proved all the requirements of CPR 31.16 are met) so the court is able to exercise it’s discretion and grant the order. All you have to do now is prove that the court should grant the order because you’ve met all the grounds put forward in the Black case.

 

First, you need something to justify the nature of your claim being sufficiently exceptional, and I think this is where most applications might fall down. If you’re asking for agreements, default notices etc, there is generally absolutely no reason why disclosure after proceedings have started wouldn’t be just as effective as disclosure before, and it’s actually unlikely to have saved any significant costs. I would strongly suggest that, unless you have a very, very good reason, it would be unwise to go against the general forum advice and indicate an intention to start proceedings yourself to have an agreement declared unenforceable. However, if you’re alleging e.g., breaches of the Data Protection Act, you might have an argument since only the other party can know exactly what they’ve done with your data. It will help if there is some relatively long standing dispute which you can show you’ve been trying to resolve for a while, and the respondent absolutely has to be aware of exactly what your case is, whether that’s a claim or a defence.

 

Next, show that you’ve confined your request to the minimum you need and kept the effort required by the respondent proportionate.

 

Respondent’s conduct

 

If you’re making an application, it’s almost a given that you’re alleging the respondent has been unreasonable. If they’ve ignored you completely, it’s going to be easier to show it than if they’ve given an explanation of why they won’t comply with your request. If you have anything relevant in the history of your relationship with the respondent (failing to disclose when there is a statutory duty, e.g., a DPA or CCA request, would be very relevant) mention it, but keep it brief and factual. Let the judge draw his own inferences. Detail your previous letters (and refer to them in your bundle) and the respondent’s response or lack of it.

 

The respondent’s failure to comply with pre-action protocols should be mentioned if relevant. I haven’t read all of them, but the ones I have read all require disclosure of documents as early as possible. Make it clear that you’ve been left with no choice but to make the application.

 

Costs

 

This is why the respondent’s conduct is relevant, since you’re now going to argue that the court has grounds to depart from the usual rule and make a different order in respect of costs. Read CPR 48.1 again, then read SES Contracting Limited and others v UK Coal Plc and others [2007] EWCA Civ 791 (http://www.bailii.org/cgi-bin/markup.cgidoc=/ew/cases/EWCA/Civ/2007/791.html&query=title+(+ses+)+and+title+(+contracting+)&method=boolean).

 

This is a draft, so it’s reasonable to assume that the respondent will ignore your LBA and oppose the application, but of course it would need to be amended to reflect actual events if you do make the application.

 

You need to state that since the respondent ignored your correspondence, it is unreasonable for them to then oppose the application. The proper time to raise objections to disclosing any or all of the documents would have been following your initial and follow up letters. Also point out once again that the respondent has failed to comply with pre-action protocols (specify which paragraphs) and if they had, the application would not have been necessary at all.

 

In the SES case, the order made was that the parties should bear their own costs, but they were both large commercial organisations and in this case you are a litigant in person seeking disclosure from a large financial institution. Additionally, in that case there was no breach of a pre-action protocol though the respondent was held to have been unreasonable in opposing the application. In your case, the respondent has been unreasonable throughout.

 

As a result of that unreasonable behaviour, you have been put to considerable inconvenience in issuing an application which should not have been necessary, and the respondent’s costs have been incurred solely through that behaviour so to place the parties back on an equal footing (i.e., not land you with a big bill for their own stupidity) it would be just to make an order which departs from the normal rule and not require the applicant to meet the respondent’s costs.

 

The rest of this bit is optional - certainly put it in your draft to the other side, but consider very carefully before putting it in an actual witness statement, since the judge may view it as a ‘step too far’ and make you pay the other side’s costs after all.

 

State that the cost of issuing the application has been incurred solely due to the respondent’s failure to comply with pre-action protocols and therefore you seek an order that the respondent pay your costs. It’s up to you on what basis you do that. I just asked for the application fee of £75 on the basis that the other side know as well as I do that I’m not likely to get costs at all so keeping it ‘reasonable’ makes it more likely to be taken seriously.

 

Finally the costs of complying with the order, which would normally be down to you. This bit really is cheeky since there is no justification. If they’d agreed to disclosure after your first letter, you would still have had to pay for it. However, on the basis that it can’t really hurt, I included a request that, in view of the disparity in resources between the two parties, the respondent bear the costs of complying with the order or alternatively that they be limited to a reasonable amount determined by the court.

[reallymadwoman]

If you've already got that far, you're ahead of me. I'll post the next step if and when I come to it (and have time to type up my notes) but I imagine it will be actually issuing the application and then getting their response, if any.

 

Of course, if you've already done this and know something I've missed ...

[cymruambyth]

Thank you for your excellent research and for sharing it with everyone.

[reallymadwoman]

Just to clarify, my initial letter was sent to the registered office of the respondent and signed for. It has been ignored.

My follow up letter was signed for two weeks ago. It has been ignored so far, but they still have another two weeks to respond. Fingers crossed, since i absolutely do not want to find out just how good my case is in front of a judge, though I am of course willing to do it if I have to.

[reallymadwoman]

Right, so the letter before action has also been ignored so I'm now taking my own advice and reassessing the whole thing.

 

If I go for the disclosure application the pluses are that I should get some information I really need which will mean I definitely don't need to issue against a second (or third) defendant and I should get some evidence to support my claim. On the downside, I'm risking a substantial costs bill and at least some delay to actually starting the claim.

 

If I go straight to issuing the claim, I may have to make substantial amendments to the particulars (especially if I have to add one or more defendants) but the claim would be under way at last and I would get the information I've already asked for eventually. I'm pretty sure that the defendant's unreasonable behaviour will be taken into account regarding the costs of amending the claim and I'm pretty sure that a) I won't have to add a second defendant and b) my case is already pretty strong.

 

Basically it comes down to whether the costs risk is worth being absolutely sure instead of pretty sure.

[reallymadwoman]

I've opted for 'absolutely sure' before starting a claim where the costs may be assessed on an indemnity basis. It's still a bit of a gamble since I could end up paying for a barrister to attend an application hearing, but I think it would be a very harsh judge who ordered costs against me when I've had absolutely no response to any correspondence.

 

Anyway, after a further thorough reading of CPR, especially the bit about applications, I submitted the application notice, draft order and evidence in the form of a witness statement to the court. Any exhibits mentioned in the witness statement should not be included at this point.

 

I insisted on serving the notice myself since I wanted proof of delivery, which was yesterday. So now we wait.

[reallymadwoman]

The latest update to this is that I have still had absolutely no response from the other side. My local court is unfortunately completely snowed under so the hearing is still two months away, but I'm finding it difficult to believe that even court papers have got no response.

 

I have a feeling that either I will be the only one to turn up for the hearing, or someone will have a last minute panic with a couple of days to go in which case they will be unlucky since I will be out of the country until the day before.

[reallymadwoman]

Right, the hearing is tomorrow.

 

I've heard not a dicky bird from the other side, so I think there's a very good chance they won't turn up, but I've prepared as if I knew they would.

 

Does anyone know if the normal rule about not raising new issues during the hearing would apply? I.e. Could they turn up and argue everything even though they haven't warned me what might be in dispute? As you might imagine, preparing to argue everything hasn't been easy.

[Ganymede]

 

Does anyone know if the normal rule about not raising new issues during the hearing would apply? I.e. Could they turn up and argue everything even though they haven't warned me what might be in dispute? As you might imagine, preparing to argue everything hasn't been easy.

 

 

 

What do you think they might argue?

 

The PAD hearing is just for disclosure of documents as far as I am aware...

[reallymadwoman]

The answer to the above is everything.

 

I have no criticism of the judge - he was as helpful as could be expected in the circumstances - however we were last on a very long list, it was well after the usual closing time when we went in, and the time estimate of 30 minutes was grossly inadequate. Add to that the dreaded first words out of the judges mouth - I haven't had time to read the papers - and I knew I'd lost before we even started.

 

It is one thing to have done the research and put all the papers together, it is quite another to get your points across succinctly in such unfamiliar circumstances and when everyone in the room just wants to go home - including me.

 

Judges in the County Court are extremely unlikely to be familiar with applications for pre-action disclosure and to have any chance I would have had to be able to summarise a 7 page witness statement and 6 pages of case law in 10 minutes.

 

Basically, having ignored me completely, the other side sent a barrister who argued absolutely everything. According to him, I had no cause of action (though he did concede that if I did, the other side would be a party), the documents I asked for were too unspecific and would not be disclosable anyway, and even if they were disclosed they wouldn't help to resolve the issue or save costs.

 

On a more positive note, I've learnt a very valuable lesson. I'm simply not cut out to play with the big boys in court, so if I want to pursue my claim further I'd better find someone to do it for me.

[bladeboy]

I understand completely how you feel on this and it shows that the skill in advocacy is to be able to think on your feet and get your point across in as little time as is necessary.

 

'Applications' can also be tricky things too and Judges vary enormously!

 

I made an application for 'Summary Judgment' against a bailiff firm whose solicitors submitted a hopeless defence to a claim I made.

 

They responded to the application, outside the time limits, with a completely new defence, rather than an amended one and asked me if I wanted to adjourn? For what? I asked myself. The application was made on the basis of the first defence and they were out of time with the submission of the second completely new one!

 

On the day, as in your case, the Judge opened with: "I haven't had time to go through this yet...." Needless to say, I wasn't filled with confidence at that point.

 

The Judge criticised me for not asking for an adjournment even though I had pointed out that the very basis of the application was the first defence and that their new defence had been submitted out of time!

 

"Well, they're entitled to amend their defence...." was the Judge's reply -well thanks very much! I asked for costs on the basis of it being out of time and the Judge again criticised me for not agreeing to an adjournment and asked the other side if they had a schedule of their costs prepared!!

 

Luckily, they hadn't prepared any and when asked why not they said that they didn't think they'd get them awarded!? Judge said: "...well that doesn't help."

 

Case was then referred to the 'small claims track', the Judge reserved the case to himself, after saying that he didn't usually do small claims and he further stated that he would decide on costs for the application later on - at least that gives me time to prepare and argument for that, when it arises!

 

If I had submitted the allocation form before I had applied for summary judgment then the no costs rule would have applied to the application too - you live and learn!

 

The book by Particia Pearl on small claims is an excellent read and well worth the money, it has loads of stuff on the CPT too.

[Ganymede]

Sorry to hear that.

Pre-action disclosure hearing under CPR 31.16 are routine and procedural and the courts hear a LOT of them, especially in PI claims. They are not really a time for witness statements and arguing liability etc. 30 minutes is possibly on the long side for PAD in my experience.

 

All you should have been saying what the claim is for and that it was an application for pre-action disclosure under CPR 31.16 and pointing out the dates of letters/calls and pointing out the steps you took to obtain the documents and the responses received from the other party and requesting the other party disclose said documents within 14 days and your costs be payable in the same time.

[reallymadwoman]

Maybe I was unlucky with the judge - he even had to ask which bit of CPR I was using and he was definitely of the opinion that the bank couldn't possibly be lying therefore I owe them money therefore they can do what they like.

 

I had no intention of any argument on liability, but the judge insisted and it took over 40 minutes at which point he refused the application. If we'd managed to get on to the case law I could have pointed him to plenty of authorities that for the purpose of a PAD hearing, it can usually be assumed that there is a valid cause of action.

[reallymadwoman]

Having thought about this overnight, it was blatantly unfair for me to be ambushed on arrival by a barrister telling me he was going to oppose the application when I had no idea on what grounds or with what evidence. It was also blatantly unfair for the judge to rule on the application when by his own admission he hadn't been able to consider any of the evidence or hear argument on most of the points raised.

I think if I appealed, I'd have a good chance of getting a rehearing which I may or may not win. However I don't actually think it's worthwhile. The one bonus from this is that I now have a good idea that the other side basically don't have anything to back up their claims, and even the judge thought their conduct had been, in his words, 'peculiar to say the least'.