Court Order Query....

[erinbrooke]

Yep, that flexibility can look like an indulgence to the one party at the expense of the other. It's a difficult thing for the courts though as too strict an approach would defeat the point of the accessible SCT.

 

They asked for an extension of time to file their defence - the court gave them one week more than they asked for and they STILL missed the deadline.....

[erinbrooke]

By the way, if you've not yet had the case allocated how do you know it is a small claim?

 

Very good point - I don't.... Is it common for it be 'upgraded' to full court?

[gezwee]

As asokn notes, its not always the best tactic to show your hand too soon.

 

If your witness isnt prepared to attend for oral examination you risk having the statement declared inadmissable or pulled to shreds by the other side [ treated as hearsay evidence]

 

Gez

[erinbrooke]

As asokn notes, its not always the best tactic to show your hand too soon.

 

If your witness isnt prepared to attend for oral examination you risk having the statement declared inadmissable or pulled to shreds by the other side [ treated as hearsay evidence]

 

Gez

 

Could a written signed witness statement STILL be treated as hearsay?

 

I have one of the witnesses classed as an expert witness and prepared to attend court, but the others are merely confirming my whereabouts and that they loaned me vehicles - surely they wouldn't have to attend? Only the court is some 450miles away from where I and they live...

[gezwee]

You have to think what you'd do if the boot was on the other foot........ if it was me and I knew it would make life very difficult for the other side I'd be seeking an order to attend for examination. No attendance no admissable w/s.

 

Tbh, I'd wait for directions before doing anything in the way of w/s or serving any data on the other side.

 

Gez

[erinbrooke]

You have to think what you'd do if the boot was on the other foot........ if it was me and I knew it would make life very difficult for the other side I'd be seeking an order to attend for examination. No attendance no admissable w/s.

 

Tbh, I'd wait for directions before doing anything in the way of w/s or serving any data on the other side.

 

Gez

 

I think you're right Gez and that is exactly what I will do.

 

Bearing in mind the distance to the court for my witnesses, is it possible to ask the court to take this into account and possibly do video link or conference telephone calls?

[gezwee]

Anythings possible, really depends on the track, location, availability of facilities, associated costs etc etc.

 

PD for VCF is here if you want to take a squint ..... http://www.justice.gov.uk/courts/procedure-rules/civil/rules/pd_part32

 

Gez

[Guest]

........... No attendance no admissable w/s.

 

 

 

Gez

 

a WS can poss be admitted without attendance. by order of the court or as hearsay. obviously maybe not as weighty as attendance though.

[gezwee]

Hi Ford

 

I considered the application to order attendance served as an 'unless'.

 

Gez

[Guest]

hi

ok. i assume witnesses are claimants'. so, would be in claimants (OP) interests to call them and for them to attend voluntarily. otherwise, if attendance is difficult, could be admitted as hearsay/order. but, there is the poss issue of weight, depending on what the witness has to say on the case.

if an 'expert' as defined then expert could get their costs up to the small claims limit.

Edited March 9, 2012 by Ford

[erinbrooke]

Hi all,

 

OK, I originally had been given a hearing date of mid June and also managed to get the case transferred to my local court.

 

The defendant's solicitor 'then' went back again to the court saying that he did not feel the 30mins allowed for the hearing was sufficient and that there had been an 'oversight' by him when he was filling in the Allocation Questionnaire and he was in fact out of the country for three weeks over June and could not make the hearing....(very convenient for him as it had been moved away from his local court!!) I get the impression he is dragging this out as long as he can in an attempt to sicken me...

 

Anyway, the judge has now brought the case forward by one month and has ordered a telephone hearing....I'm really not quite sure what to make of the judges decision - has he/she done it as the defendant is messing around?

 

Also, how will my witness statements be handled in relation to a telephone hearing, as obviously the witnesses cannot attend court?

 

Any advice greatly appreciated as always..;-)

[erinbrooke]

Hi all,

 

OK, I originally had been given a hearing date of mid June and also managed to get the case transferred to my local court.

 

The defendant's solicitor 'then' went back again to the court saying that he did not feel the 30mins allowed for the hearing was sufficient and that there had been an 'oversight' by him when he was filling in the allocation questionnaire and he was in fact out of the country for three weeks over June and could not make the hearing....(very convenient for him as it had been moved away from his local court!!) I get the impression he is dragging this out as long as he can in an attempt to sicken me...

 

Anyway, the judge has now brought the case forward by one month and has ordered a telephone hearing....I'm really not quite sure what to make of the judges decision - has he/she done it as the defendant is messing around?

 

Also, how will my witness statements be handled in relation to a telephone hearing, as obviously the witnesses cannot attend court?

 

Any advice greatly appreciated as always..;-)

[erinbrooke]

Anybody got any thoughts on this one?

 

The solicitor wrote to me today to say I had to agree to his court directions in organising another independent inspection of the case history??? Surely he cant do that at this stage in the game - stalling tactics perhaps?

 

Hi all,

 

OK, I originally had been given a hearing date of mid June and also managed to get the case transferred to my local court.

 

The defendant's solicitor 'then' went back again to the court saying that he did not feel the 30mins allowed for the hearing was sufficient and that there had been an 'oversight' by him when he was filling in the allocation questionnaire and he was in fact out of the country for three weeks over June and could not make the hearing....(very convenient for him as it had been moved away from his local court!!) I get the impression he is dragging this out as long as he can in an attempt to sicken me...

 

Anyway, the judge has now brought the case forward by one month and has ordered a telephone hearing....I'm really not quite sure what to make of the judges decision - has he/she done it as the defendant is messing around?

 

Also, how will my witness statements be handled in relation to a telephone hearing, as obviously the witnesses cannot attend court?

 

Any advice greatly appreciated as always..;-)

[erinbrooke]

Hi all,

 

I hope someone could offer some experience on this matter.

 

I am pursuing a motor dealer through the small claims now and the case has been going on since last June. The defendants solicitor has repeatedly missed deadlines and delibrately delayed matters - I assume a tactic used to try to make me get fed up and go away...

 

Anyway, we had a telephone hearing in May when the other side requested the courts to allow him extra time to produce a report on the vehicle from the exisiting case documentation. He was granted this time and the judge issued relevant deadlines for 1. exchanging documentation to be relied on in court 2. Him producing the report and 3. the actual hearing date.

 

The deadline to exchange documents was yesterday, which is when I received an email from their solicitor telling me not to send my documents to him (I already had!) as his client had been on holiday and had not had time to attend to the matter. He went on to tell me to agree to an extra week and that the courts would agree anyway...

 

I subsequently contacted the court in a fax expressing my concern at the other side's obvious disrespect for court deadlines.

 

The court has now issued an Order to say that the other sides explanation of holidays was not acceptable and as they had missed the deadline, would not be able to rely on any documentation filed late at the hearing....

 

My question is this: How can a hearing go ahead when the defendant has had this restriction imposed on them? Also, is there a way around this for the defendant?

[AndyOrch]

Hi Erin

 

Without knowing all the finer details of your claim or the last orders, they have missed the unless order and the Court can strike out their defence. Alternatively you can make application to strike out their defence and request judgment.

 

Subject to what stage you are at IE Pre or post AQ,s http://www.justice.gov.uk/courts/procedure-rules/civil/rules/part03#IDAMLWS

 

Regards

 

Andy

[erinbrooke]

Hi Erin

 

Without knowing all the finer details of your claim or the last orders, they have missed the unless order and the Court can strike out their defence. Alternatively you can make application to strike out their defence and request judgment.

 

Subject to what stage you are at IE Pre or post AQ,s http://www.justice.gov.uk/courts/procedure-rules/civil/rules/pd_part03a.

 

Regards

 

Andy

 

Thanks very much Andy. I don't want to get carried away just yet, as I'm a mere layman against a qualified solicitor, so am sure he'll have something up his sleeve,...(or maybe his luck has ran out now, I don't know!)

 

To summarise, they have exceeded nearly all of the deadlines, which I have brought to the courts attention each time. This included being late to return their AQ. Each time they have shown what can only be described as arrogance, in that they seem to think they can get away with it and we've been foolish to highlight it to the courts...

 

This occasion, however we sent a detailed letter to the court and a copy of their email which said the court would not do anything about them being late at such short notice. But it seems the court 'has' done something, which they won't know yet until they get their post early next week. The deadline they have just missed was a date set by a judge in a telephone hearing, both parties were asked directly if they accepted the dates before he wrote them into his order and both parties gave a positive response.

 

We also have a confirmed court hearing date set for mid August, which I feel they will now try to get adjourned as well....

 

Do you still think we have a case to have their defence struck out and judgment entered?

[AndyOrch]

Hi Erin

 

If you have a copy of the last order received, were the court does not accept their excuses, what are the sanctions (look at the small print) they may well be able to set a side this order within 7 days.

Or it may state that the court will strike out the defence of its own accord.

 

IF you let me know the wording (verbatim).(less any identifiable data)

 

Regards

 

Andy

[erinbrooke]

Thanks again Andy, it' such a relief to get informed advice (especially on a Friday when we have the whole weekend to worry about it!)

 

Unfortunately we don't actually have a copy of the latest Order yet as it was only issued today, so probably has only just been posted this evening.

 

What the clerk told my wife on the phone was that the judge had read my letter along with the defendants solicitors email and drafted the order which he briefly confirmed as saying the judge did not feel the excuse of 'holidays' as an acceptable excuse for failing to forward their docs to me and that anything issued now could not be relied upon at the hearing. Not sure if there is any sanctions

 

I wouldn't be surprised at all if he could have it set aside as this solicitor seems to have got his own way so far in the proceedings.....

 

 

Hi Erin

 

If you have a copy of the last order received, were the court does not accept their excuses, what are the sanctions (look at the small print) they may well be able to set a side this order within 7 days.

Or it may state that the court will strike out the defence of its own accord.

 

IF you let me know the wording (verbatim).(less any identifiable data)

 

Regards

 

Andy

[AndyOrch]

I shouldn't think he will be allowed any further leniency in this matter.Reading between the lines if they cant submit any evidence then their defence fails.,or is judged upon as it stands.

I wouldn't be surprised if there are sanctions.

 

Until your receive the order and check the detail research the above link CPR and get ready to either push the DJ to strike out or consider your own application, with costs.

 

Regards

 

Andy

[erinbrooke]

So if it is set in stone that they cannot offer any defence, what can they rely on? Can they use what they have already submitted to the courts in there Original Defence or Case Summary, etc.

 

Do you mind awfully if I get back to you when I receive the Order Andy?

 

 

 

I shouldn't think he will be allowed any further leniency in this matter.Reading between the lines if they cant submit any evidence then their defence fails.,or is judged upon as it stands.

I wouldn't be surprised if there are sanctions.

 

Until your receive the order and check the detail research the above link CPR and get ready to either push the DJ to strike out or consider your own application, with costs.

 

Regards

 

Andy

[AndyOrch]

Without knowing all the details as said in post one, I cant comment on any defence submitted or how strong it is, but you certainly have the edge, the Defendant has pushed their luck to the limit.

 

Post up details once the General Order is received.

 

Regards

 

Andy

[erinbrooke]

Thanks VERY much Andy!

 

Will let you know as soon as the Order lands.

 

Without knowing all the details as said in post one, I cant comment on any defence submitted or how strong it is, but you certainly have the edge as the Defendant has pushed their luck to the limit.

Post up details once the General Order is received.

 

Regards

 

Andy

[erinbrooke]

Hi Andy,

OK, I have received the court order doc.

 

It has four points to it.

 

1. That the court has been shown a copy of the solicitors email stating that they did not intend to comply with the court deadlines given in a previous order.

 

2. That this was not acceptable to the court and that both parties shall comply with the dates given in the previous order subject to the date of 4th July 2012 being substituted for the 28th June.

 

3. In default, the offending party will not be permitted to rely on any witness evidence which has not been served by the date specified without leave of the Trial Judge. If this results in adjournment of the hearing on the **th *****2012, the costs of that hearing will be at large.

 

4. As this order has been made by the Court without considering representations from the parties, the parties have the right to have the order set aside, varied or stayed. A party wishing to make an application must send, or deliver, the application to the Court to arrive seven days of service of the order.

 

 

I pretty much guess this means that the order is not worth the paper it is written on????

[AndyOrch]

Either party has the option to set a side but I personally would not, let it ride they are digging the hole far deeper for themselves without you lifting a finger.

 

Andy

[erinbrooke]

Either party has the option to set a side but I personally would not, let it ride they are digging the hole far deeper for themselves without you lifting a finger.

 

Andy

 

Thanks again Andy.

 

It's absolutely soul destroying...

 

It's like the court is saying what they are doing is simply not acceptable but we'll let you do it anyway...!