Other Party Changing Number of Witnesses & Unsigned Witness Statements

[Eversir]

I'm currently helping a relative defend a case that was brought against her from a plumber who carried out sub-standard and unsafe works at her property. The Claimant is being represented by a Solicitor, The Defendant is litigant in person.

 

The court proceedings are well on their way - hearing is scheduled later this month and both parties have now submitted their court bundles to the county court.

 

To be fair things are fairly straight forward - the Claimant has openly admitted to failing to provide a notice of right to cancel (cooling off period) which should make the contract unenforceable anyway as per The Cancellation of Contracts made in a Consumer's Home or Place of Work etc. Regulations 2008, plus they are in serious breach of The Gas Safety (Installation and Use) Regulations 1998 which has been confirmed in writing from the local Building Control Department (they didn't inform the Gas Safe Register either!)

 

Anyway, what I'm stuck with. In the Directions Questionnaire completed by the Claimant, it states they intend to rely on only one witness (himself) in court. However, upon receiving the Claimant's court bundle there are also an additional TWO unsigned witness statements (aka: a feeble character assassination attempt).

 

Is the Claimant allowed to a) change the number of witnesses at this short notice and b) provide unsigned witness statements (with a view to getting them signed and sent to the court a few days before the hearing)?

Edited December 4, 2013 by Eversir

[Ganymede]

Hi,

 

Is this case on the small claims track? You've not mentioned if any Listing Questionnaire (Pre Trial Checklist) has been filed?

 

The statements should be signed yes and if the Claimant files signed copies it will be for the trial judge on the day to decide if he uses his discretion to allow them in. You can object on the day if so but if the judge allows them there is nothing you can do.

[Eversir]

Small claims track.

 

As far as I'm aware, no Listing Questionnaire has been filed - at least nothing like the form listed here: http://hmctsformfinder.justice.gov.uk/courtfinder/forms/n170-eng.pdf

 

The only questionnaire on file (for both parties) appears to be the directions questionnaire.

[Ganymede]

Ah ok that's because it's a small claims matter.

[mjt2013]

Ganymede is right about the statements. They should be signed but if the other side produce signed statements nearer the time, or even on the day of the hearing, it's up to you whether you want to complain about it; if the signed statements exactly mirror the copies you already have then I don't think you'll have much of an argument to make but if they're different then that's a much stronger argument for excluding them.

[Eversir]

Thanks for all the help. To be fair the witness statements in question probably do more to harm the Claimant's argument - they are both full of holes and some of the contents even contradict one another. So we probably won't kick off too much fuss!

 

Related question: The Claimant has provided phone records, part of a 14 page document however it only shows pages 12 and 14. We believe that the reason the additional pages are missing is because the phone records contained in them would actually benefit the Defence. Is there any way we can request (or demand) that the rest of this document be provided, or not?

[mjt2013]

In small claims the parties are only obliged to file and serve the documents that they rely upon. I suppose you could ask for disclosure of the remainder and, ultimately, make an application to the court but I can't remember if the rules on disclosure apply to the small claims track so hold tight for now and I'm sure someone with time to read the CPR can give you more information

[Eversir]

The only thing I could find is this, so yeah, probably can't force them too sadly! Not to say that the fact it's been omitted can't be mentioned on the day though.

 

Conduct of the hearing

 

27.8

(1) The court may adopt any method of proceeding at a hearing that it considers to be fair.

(2) Hearings will be informal.

(3) The strict rules of evidence do not apply.

(4) The court need not take evidence on oath.

(5) The court may limit cross-examination(GL).

(6) The court must give reasons for its decision.

[steampowered]

Many litigants in person are tempted to go for tit for tat about every single point. This is not smart. You need to focus on the things which are crucial to winning your case and not get too distracted by other things.

 

If you are defending the claim on the basis of the regulations mentioned in your opening post, I do not understand why phone records etc. are at all relevant. Is this stuff actually in dispute?

 

If the phone records are relevant, then yes you should request the missing pages if they might make a difference. If they do not provide the missing pages you can then point this out to the judge at the hearing and invite him to draw appropriate conclusions.

[Eversir]

With regards to these additional witness statements we just want to undermine their credibility so they can be seen for what they are - a petty smear campaign against the Defendant. This is pretty easy to do as there are clear conflicts with written evidence that is available from both parties, not to mention conflicting statements contained within the witness statements themselves.

 

Ultimately the plumber is trying to make out the Defendant to be a "non-payer" and "difficult to deal with", in an attempt to overshadow the fact he undertook poor, and frankly, dangerous workmanship which has resulted in financial damages for the Defendant (i.e. to put it right).

 

The phone records are only relevant if the judge somehow ignores the fact the Claimant's contract is unenforcable as per the regulations, or if they think the Defendant has somehow seen benefit from the works carried out (it cost more to put it right, so not bloody likely!). The omitted documents doubtlessly contain information that will conflict with the Claimant's witness statement - it's really just to cover all bases.

 

Would you recommend asking the judge to decide whether he wants to hear all the points within these witness statements that can be catagorically proven to be false or otherwise incorrect?

[Ganymede]

With regards to these additional witness statements we just want to undermine their credibility so they can be seen for what they are - a petty smear campaign against the Defendant. This is pretty easy to do as there are clear conflicts with written evidence that is available from both parties, not to mention conflicting statements contained within the witness statements themselves.

 

Ultimately the plumber is trying to make out the Defendant to be a "non-payer" and "difficult to deal with", in an attempt to overshadow the fact he undertook poor, and frankly, dangerous workmanship which has resulted in financial damages for the Defendant (i.e. to put it right).

 

The phone records are only relevant if the judge somehow ignores the fact the Claimant's contract is unenforcable as per the regulations, or if they think the Defendant has somehow seen benefit from the works carried out (it cost more to put it right, so not bloody likely!). The omitted documents doubtlessly contain information that will conflict with the Claimant's witness statement - it's really just to cover all bases.

 

Would you recommend asking the judge to decide whether he wants to hear all the points within these witness statements that can be catagorically proven to be false or otherwise incorrect?

 

 

 

 

The Court will either allow all of the Witness Statement or none of it. It's up to whoever is doing the the corss examination to highlight the inconsistencies etc.

[steampowered]

With regards to these additional witness statements we just want to undermine their credibility so they can be seen for what they are - a petty smear campaign against the Defendant. This is pretty easy to do as there are clear conflicts with written evidence that is available from both parties, not to mention conflicting statements contained within the witness statements themselves.

 

Ultimately the plumber is trying to make out the Defendant to be a "non-payer" and "difficult to deal with", in an attempt to overshadow the fact he undertook poor, and frankly, dangerous workmanship which has resulted in financial damages for the Defendant (i.e. to put it right).

 

The phone records are only relevant if the judge somehow ignores the fact the Claimant's contract is unenforcable as per the regulations, or if they think the Defendant has somehow seen benefit from the works carried out (it cost more to put it right, so not bloody likely!). The omitted documents doubtlessly contain information that will conflict with the Claimant's witness statement - it's really just to cover all bases.

 

Would you recommend asking the judge to decide whether he wants to hear all the points within these witness statements that can be catagorically proven to be false or otherwise incorrect?

 

You need to be a bit careful with this. The judge is not there to decide whether or not this is a petty smear campaign or whether his witness statement is accurate, he is there to decide whether the plumber acted in breach of contract and if so how the losses should be assessed. I'm not saying don't contest his statement, I am saying you need to stay focussed on what is important - each piece of shrapnel from a shotgun has less impact than a silver bullet.

 

I don't really want to comment on the unenforceable contract allegation without knowing more about the case.

[Eversir]

Thanks Steampowered - invaluable information.

 

The unforceable contract allegation is a sure-fire thing: the Claimant didn't issue the Defendant with a 7-day cooling off period (or waiver to work within the 7 day cooling off period) when the contract was agreed following a trader visit. The Claimant has admitted to this, in writing, within their "Reply to the Defence", and states that should their claim fail as a result, they wish to seek a claim on the basis the Defendant has enjoyed benefit of the works.