N164 appeal - small claims track

[wildcolonialboy]

Greetings. I filed an N164 asking for permission to appeal about a month ago. I haven't heard anything back yet.

 

I was wondering... is the N164 form, where you tick "I ask for permission to appeal", essentially a request to the district judge who has the case for permission? Or is the N164 with that option ticked essentially an appeal notice that will go to the circuit judge where they will decide on permission to appeal?

 

I would like to proceed by filing an appellant's notice and ticking "No" in answer to "Has permission been granted?". Any thoughts?

[Ganymede]

Were you given permission to appeal at the trial?

 

Did you ask?

[wildcolonialboy]

Were you given permission to appeal at the trial?

 

Did you ask?

 

What happened was the court listed a small claim I had made against a company for an hour.

The original directions order said that both parties should file and serve witness statements.

 

A couple of weeks before the hearing, the defendant's solicitor (I am proceeding as a litigant in person)

emailed me to say that they would not be filing any witness statement,that they would not be calling any witnesses

and that they would be relying on documents they had disclosed.

My case was also based on documents they had disclosed (there was no dispute of fact between us),

 

I assumed that as I also had no witnesses to call I would do the same and that I did not need to file a witness statement.

The day of the hearing arrived, and the judge asked me where my witness statement was.

I had believed that, between my particulars and my oral arguments I would make out my case.

 

I was tremendously nervous and I didn't think to point out that the defendant also hadn't complied with the order to provide a witness statement.

The judge said that based on the lack of witness statement we were not ready to proceed, and also that the listing for an hour was insufficient

in any case and it would have to be relisted for a three hour hearing. He also ordered me to pay £750 of the defendant's solicitors costs, and that if I didn't pay within two weeks my claim might be struck out.

 

It was all over within five minutes, and I was out the door. I didn't think to ask for permission to appeal.

 

That was on September 8th, and the judge ordered (aside from requiring me to pay £750 by 22 September) that

"Parties to file and serve witness statements by 22 September" (and also relisted for a 3 hour hearing next February).

 

I have complied with that aspect of the order. Remarkably, even to this day (19 October), the defendant still hasn't complied and

has not filed any witness statement.

 

On 22 September, I filed my witness statement and also wrote to the judge explaining that the defendant had also not complied

and asking him to set aside the order on his own motion. On 24 September, I filed the N164 and fee remission app.

 

On 23 September, the defendant made an application for an unless order requiring me to pay the costs (and asked for it to be dealt with without a hearing). Apparently the county court staff lost my permission to appeal application and so the file went up to the judge to decide only with the defendant's application.

 

The file has now come back down with an order for a hearing on the defendant's application in late November

(and also requiring me to file documents relating to my ability to pay), there has been no mention of my permission to appeal app.

The court staff say the file is now in the "hearing box" so I understand my permission to appeal application may not even be seen by the judge.

 

I would just add... I am a university student on benefits, with an income of £73 per week. There is no way I can afford to pay that costs order.

I had conscientiously complied with every previous requirement, whereas the represented defendant failed to comply with the pre-action protocol,

filed their defence late and to this day is in non-compliance with the order to serve a witness statement.

 

I thought they were either entitled to fixed costs (£90 etc) for the adjournment, or more if I had behaved unreasonably but in every sense it seems like its the defendant who has behaved in a dilatory and unreasonable fashion. They also refused to consider any form of mediation, have repeatedly ignored offers to settle. I'd add that my claim is not in any sense quixotic, it's a data protection / breach of confidence claim the defendant, an internet company, leaked my data to a third party without my consent to retaliate against me for things I'd done in a trade union capacity in a commercial dispute between my university and this company.

 

I have asked a barrister friend of mine and he said my case seems good on its face, the defendant hasn't sought to have it struck out.

There is a genuine and triable case here, and if the costs order stands my claim will probably be struck out which seems incredibly unfair

Edited October 19, 2015 by wildcolonialboy

[wildcolonialboy]

Were you given permission to appeal at the trial?

 

Did you ask?

 

Cool username by the way. Off topic but I thought you may appreciate (if your interest is as a classicist rather than astronomer) this Thorvaldsen sculpture on the classical motif of the rape of Ganymede. I think it's really quite moving, the way the lad is dealing with the eagle almost resembles tenderness.

 

http://blogs.denmark.dk/mariavittoria/files/2012/08/ThorvaldsenZeusGanymede1817-29Minneapolis1-web.jpg

Edited October 19, 2015 by wildcolonialboy

[AndyOrch]

CPR 52 covers procedure on Appeals......

 

https://www.justice.gov.uk/courts/procedure-rules/civil/rules/part52

 

As the case is yet to be concluded....I think you should have challenged their application for the unless order...rather than make appeal.Costs appeals are, generally speaking, difficult to sustain; Judges have a wide discretion when determining both the incidence and quantum of costs.

 

CPR 52.11(3) provides that the appeal will be allowed where the decision of the lower court is (a) wrong, or (b) unjust because of some serious procedural or other irregularity in the proceedings.I really cant see the basis of your appeal (if granted ) being successful...as you failed to comply with directions and therefore the judge imposed sanctions....costs thrown away.

 

This is another version of costs in the application, but reflects the fact that one side has caused unnecessary costs to be incurred and should therefore pay them.

 

Regards

 

Andy

[Ganymede]

Cool username by the way. Off topic but I thought you may appreciate (if your interest is as a classicist rather than astronomer) this Thorvaldsen sculpture on the classical motif of the rape of Ganymede. I think it's really quite moving, the way the lad is dealing with the eagle almost resembles tenderness.

 

http://blogs.denmark.dk/mariavittoria/files/2012/08/ThorvaldsenZeusGanymede1817-29Minneapolis1-web.jpg

 

Yes, my interest is as a classicist.

 

Thank you for the link, that is a beautiful sculpture.

[wildcolonialboy]

.I really cant see the basis of your appeal (if granted ) being successful...as you failed to comply with directions and therefore the judge imposed sanctions....costs thrown away.

 

This is another version of costs in the application, but reflects the fact that one side has caused unnecessary costs to be incurred and should therefore pay them.

 

Regards

 

Andy

 

My issue with the order is that one side hasn't caused unneccessary costs to be incurred.

Even if I had served the witness statement, the defendant would not be ready to proceed as they had not served theirs either.

And even if the defendant had served theirs,

the court wouldn't be ready to proceed according to the judge due to insufficient amount of time listed.

Therefore you could say I am perhaps 33% responsible for the adjournment, but held 100% responsible for them.

 

It seems extremely odd that I would have a costs order against me upheld

and an unless order made against me for failing to comply with an order for which I am now in compliance

and with which the defendant is still non-compliant.

 

 

Your comment about challenging the unless order doesn't seem entirely logical.

On what basis would I oppose it and how would it help me?

 

 

In any case, I have run the circumstances and my intention to appeal by both a barrister friend

and a solicitor at a law centre; they said the original order appears procedurally irregular and an appeal is, at least on its face, justifiable.

 

 

The small claims track only allows fixed costs except where there is unreasonable behaviour,

and having read through all 53 cases on Westlaw that have both "Unreasonable conduct" and "small claims track" as keywords,

it seems entirely clear that the behaviour contemplated is not what occurred in my case.

 

 

To the extent that unreasonable behaviour has occurred has been very much on the defendant's side

(failure to consider mediation, ignoring offers to settle, etc). And there is authority for the proposition that non-compliance

, in and of itself, is not unreasonable behaviour ( an EAT case which reasoned by analogy to CPR 27.14(g) )

 

It's also clear the judge didn't take into account CPR 44.2 (4) and (5).

 

 

Anywho... my question is about the N164, and whether the form is essentially an application for permission to appeal to the instant judge

, or whether ticking "I ask for permission to appeal" is an application for permission to appeal to the circuit judge

[wildcolonialboy]

As the case is yet to be concluded....I think you should have challenged their application for the unless order...

 

Can you elaborate on that. I'm not sure why the fact the case has yet to be concluded would make opposing their application for an unless order the correct course of action. If by challenge you mean oppose, then of course I will be opposing their application at the hearing in November, in addition to my appeal. But in terms of the order itself, the only way to overturn it is to appeal. Where the sanction imposed is a costs order then the only way to challenge it is by way of appeal, you can't apply for relief from sanctions. Given all the circumstances and the advice I've received from legal professionals, the appeal is not only the best way but the only way to actually challenge the imposition of the costs themselves. I am reasonably sure that if the judge had realised the defendant had not served their witness statement he would not have made the order he did (which is why I'm concerned to determine whether the N164 with "I ask for.. etc" ticked will go to the instant judge; I believe he will look favourably on it.. i.e. set aside his own order)

[Ganymede]

You are the Claimant and you must prove your case by serving a witness statement which is your evidence in chief.

 

The Defendant doesn't necessarily have to serve a witness statement.

 

You need to ask for permission to appeal and actually appeal at the same time, however if the trial was on 8th September then you are out of time now.

[andydd]

I think this should act as a warning, dont contemplate court action without first having a good understanding of court procedures and CPR.

 

In this case, the claimant should of served a Witness Statement from himself, it appears he has got this confused with calling witnesses.

 

Its not really acceptable to rely soley upon oral argument, for starters the other side would have no idea what you are going to say or what points you would raise.

 

It appears that the OP assumed that his particulars of claim would be sufficient enough, but generally this is only used to spell out the basics of the claim.

 

It appears here that the Judge reached the decision (perhaps unfairly) that by failing to file even the most basic WS, the claimant had wasted the courts and the defendants time and made the unusual step of awarding costs.

 

The issue of costs would be worth appealing but it appears it may now be too late.

 

It appears that you must pay the £750 to avoid it being struck out and you losing any chance of continuing with your claim, Im not sure if there is anyway around this.

[wildcolonialboy]

You are the Claimant and you must prove your case by serving a witness statement which is your evidence in chief.

 

The Defendant doesn't necessarily have to serve a witness statement.

 

Actually, in the small claims track there is no requirement to serve a witness statement, although the CPR provides for the judge to require parties to serve witness statements.

 

The defendant doesn't necessarily have to serve a witness statement, except of course where the judge has made an order that they do serve a witness statement, which is the case here.

 

You need to ask for permission to appeal and actually appeal at the same time, however if the trial was on 8th September then you are out of time now.

 

I don't mean to be rude, but you guys might read my posts before offering advice. I have already filed my N164 and grounds of appeal on the 24th September. So.. not out of time.

 

In any case, I'm not entirely sure you understand the question or know the answer.

[wildcolonialboy]

I think this should act as a warning, dont contemplate court action without first having a good understanding of court procedures and CPR.

 

In this case, the claimant should of served a Witness Statement from himself, it appears he has got this confused with calling witnesses.

 

Its not really acceptable to rely soley upon oral argument, for starters the other side would have no idea what you are going to say or what points you would raise.

 

It appears that the OP assumed that his particulars of claim would be sufficient enough, but generally this is only used to spell out the basics of the claim.

 

You seem to be confused. Witness statements are not required on the small claims track, except where the judge orders that they be served. In this case, the judge ordered both parties to serve them.

 

As for "Its not really acceptable to rely soley upon oral argument". Except, of course, where it is; many small claims proceed without witness statements. My further particulars of claim fully outlined the legal basis of my claim, there are no additional issues being raised. Both the defendant and I essentially agree on the facts and the legal question; the only issue is our differing interpretation of the data protection act definition of personal data and whether consent to disclose could be inferred from my conduct.

 

It appears here that the Judge reached the decision (perhaps unfairly) that by failing to file even the most basic WS, the claimant had wasted the courts and the defendants time and made the unusual step of awarding costs.

 

The issue of costs would be worth appealing but it appears it may now be too late.

 

It appears that you must pay the £750 to avoid it being struck out and you losing any chance of continuing with your claim, Im not sure if there is anyway around this.

 

I'm sorry but your comment has basically just recited what I already said. I'm not sure how that helps me. Out of curiosity, are you a lawyer? As I said before, I've already spoken to a barrister friend and taken advice from a solicitor at a law centre about appealing the costs order, both of them said in the circumstances it sounds justifiable. What I was asking was particularly related to the question of whether the N164 with the the "permission" box ticked counts as an application for permnission to appeal to the lower court judge who is seised of the matter.

 

As it is, I'm not entirely sure you understand the question or know the answer.

Edited October 20, 2015 by wildcolonialboy

[Ganymede]

Greetings. I filed an N164 asking for permission to appeal about a month ago. I haven't heard anything back yet.

 

I was wondering... is the N164 form, where you tick "I ask for permission to appeal", essentially a request to the district judge who has the case for permission? Or is the N164 with that option ticked essentially an appeal notice that will go to the circuit judge where they will decide on permission to appeal?

 

I would like to proceed by filing an appellant's notice and ticking "No" in answer to "Has permission been granted?". Any thoughts?

 

Your OP is rather contradictory as why ask these questions if you have already sent off your application?

 

In any event, you clearly already know all the answers so not sure we can help you so I'm out.

 

I'm sure your barrister friend will be more than happy to run your case for you.

[steampowered]

See http://www.justice.gov.uk/courts/procedure-rules/civil/rules/part52#52.3 and http://www.justice.gov.uk/courts/procedure-rules/civil/rules/part52/practice-direction-52b-appeals-in-the-county-courts-and-high-court.

 

Note in particular PD 52 paragraph 2.1, the appeal should be lodged with the relevant appeal centre (it sounds like you may not have filed your N164 in the correct place)

 

To answer your question, my understanding is that the request for permission to appeal (which I understand was not requested or granted at the initial hearing) should go to a circuit judge

 

Regardless of the appeal process I wonder whether, in response to the request for an unless order, it is worth filing a witness statement giving the full background and opposing that request? Even better, perhaps you should file your own separate application accompanied by a detailed witness statement asking the judge to (1) set aside the previous costs order as the defendants have not complied with the September 8 order and (2) an unless order that the defendants do comply with the September 8 order by filing their witness statement by a certain date, else their defence is struck out. This will be a good way of drawing attention to the defendant's non-compliance. Your application and their application may be heard together at the same hearing.

[wildcolonialboy]

An update on my case. I received permission to appeal, the original DJ has transferred the case to Central London County Court, vacated the hearing of November 18th and ordered that the defendant's application for an unless order be heard only after my appeal has been determined.

[wildcolonialboy]

See http://www.justice.gov.uk/courts/procedure-rules/civil/rules/part52#52.3 and http://www.justice.gov.uk/courts/procedure-rules/civil/rules/part52/practice-direction-52b-appeals-in-the-county-courts-and-high-court.

 

Note in particular PD 52 paragraph 2.1, the appeal should be lodged with the relevant appeal centre (it sounds like you may not have filed your N164 in the correct place)

 

It was definitely filed at the right centre (my case was in Lambeth County Court which is the designated appeal centre, at least for the receipt of appellant's notices.. they then go to a circuit judge at the RCJ). I filed my appeal notice before the deadline (hearing was on September 8th, thus a deadline of 29th September). Apparently they lost the documents, even though I resent them (both physical and electronically) and they just sat on someone's desk for weeks.

 

I called up about a week ago, absolutely livid (the same day I filed my appeal bundle), that nothing was happening. Spoke to a really helpful manager and he sent over my docs to RCJ the same day and also put the file in front of the original DJ who made new orders (vacating the hearing for the defendant's application for an unless order to pay the costs order, transferring the claim to the Central London County Court and ordering their application for an unless order only be heard once my appeal had been determined). I also received a letter the same day from the Central London County Court confirming the appellant's notice has been served on the respondent (though of course I also did that myself in the correct timeframes) and that it is in front of a circuit judge who will imminently issue an order with regard to directions.

 

To answer your question, my understanding is that the request for permission to appeal (which I understand was not requested or granted at the initial hearing) should go to a circuit judge

 

Cheers, that was my confusion. It's because the N164 has a box saying "I ask for permission to appeal", I almost thought like this might be a second opportunity to ask the DJ who was seised of the mater for permission (similar to when you ask for permission at the original hearing.. I know that sometimes people do write to the DJ a day or two after to ask directly for permission so I thought it might be that).

 

Regardless of the appeal process I wonder whether, in response to the request for an unless order, it is worth filing a witness statement giving the full background and opposing that request? Even better, perhaps you should file your own separate application accompanied by a detailed witness statement asking the judge to (1) set aside the previous costs order as the defendants have not complied with the September 8 order and (2) an unless order that the defendants do comply with the September 8 order by filing their witness statement by a certain date, else their defence is struck out. This will be a good way of drawing attention to the defendant's non-compliance. Your application and their application may be heard together at the same hearing.

 

That is definitely a sensible idea, I did think of doing that but I thought the judge would simply order they be dealt with at the November 18th hearing. But thinking about it now, with your suggestion of it, it actually does sound like a sensible way to underline their non-compliance as otherwise I'm kind of relying on the circuit judge to make such an application on his own motion. Thanks for the advice, it sounds like a good idea.

[wildcolonialboy]

Your OP is rather contradictory as why ask these questions if you have already sent off your application?

 

In any event, you clearly already know all the answers so not sure we can help you so I'm out.

 

I'm sure your barrister friend will be more than happy to run your case for you.

 

Sorry if I was a little bit salty in my reply, I felt some of the responses were slightly patronising though in fairness yours was not. Excepting the witness statement requirement I had been absolutely diligent in complying with all the deadlines. And in hindsight it looks like my intuition on the course of action, that I shouldn't just accept the 750 quid costs order, was correct. The DJ was not capable of having regard to the conduct of both parties (as the CPR requires) because he was not fully aware of the defendants non-compliance.

 

I also think the case is somewhat complex legally, it touches on issues that haven't been litigated before, and I do feel like I will have better prospects with the case being heard at the County Court in central London at the RCJ

[wildcolonialboy]

Regardless of the appeal process I wonder whether, in response to the request for an unless order, it is worth filing a witness statement giving the full background and opposing that request?

 

Oh and on that aspect, when I filed my appellant's notice on the 22nd September (the due date for me to pay the 750, but also the due date for DJ's order that parties file and serve witness statements.. I filed mine on that day.. as you know, the defendant still has not complied to this day), in addition to filing the appellant's notice I also wrote a letter to the DJ (asked the court staff to pass it on to him... and sent a copy to the defendant) outlining the full circumstances and asking him to set it aside on his own motion.

 

I think part of the he vacated the hearing for November 18th and ordered the defendant's application not be heard until after my appeal was determined was that the documents I've written since (the appeal grounds, and the skeleton argument in the bundle) would outline the important details (the defendant's similar non-compliance, and importantly their ongoing non-compliance to this day). I suspect the reason he may have transferred the whole claim was he may have read my witness statement and seen that it does get down into quite granular elements of data protection law and the law of confidences. I do think the case may be going in front of a more specialist DJ for the hearing of the claim

[wildcolonialboy]

I'm sure your barrister friend will be more than happy to run your case for you.

 

Oh and just regarding my friend, I won't ask him for four reasons. The first is that the data that was disclosed by the defendant relates to my personal life and things I would rather he (and in fact anyone) didn't see. The second is that I'm not sure how much time he could actually devote to it given he's at a top three set and he has plenty of his own work to do. He has given me some pointers and advice when we catch up for dinner or a drink, and that is helpful, but it would be a considerably greater imposition on him to ask him to represent me and I don't think friends ask for freebies like that. I don't want to put him in the position of saying no, or it creating friction if we disagreed on something.

 

Third, nobody knows the granular details of my case better than I do, and I suspect my grasp of data protection law is probably greater than his given he does no work of that kind while I've spent the last year obsessively reading cases and material on Westlaw. Finally, at the moment I think it is somewhat advantageous to me for the judge to see the mismatch in the resources of the two parties, particularly when you match the considerable resources of the defendant and the seniority of their solicitor with their repeated non-compliance and the poverty of legal argument in their defence. If suddenly I'm being represented by a barrister from a top set, it upsets that sense of the parties positions.

 

I think he has been very helpful in giving me advice from time to time, and he was 100% right in his advice that I should appeal the costs order. He has given me some decent practical advice about litigating a case and he's given moral support. To ask him to actually take on the case would almost seem vulgar, and grasping. He's done a lot for me, he helped me get a mini-pupillage at his set and it would be wrong for me to hold out my hand for even more

[Ganymede]

Sorry if I was a little bit salty in my reply, I felt some of the responses were slightly patronising though in fairness yours was not. Excepting the witness statement requirement I had been absolutely diligent in complying with all the deadlines. And in hindsight it looks like my intuition on the course of action, that I shouldn't just accept the 750 quid costs order, was correct. The DJ was not capable of having regard to the conduct of both parties (as the CPR requires) because he was not fully aware of the defendants non-compliance.

 

I also think the case is somewhat complex legally, it touches on issues that haven't been litigated before, and I do feel like I will have better prospects with the case being heard at the County Court in central London at the RCJ

 

No problem.

 

I note Steam's suggestion to apply to strike out the case due to non service of the Defendant's witness statement, however I would caution against this.

 

The Defendant has gone on record as not intending to file a witness statement and that will be sufficient, regardless of what the Order says. The Court will decide their claim on the papers already filed, it just means the Defendant will be at a disadvantage but ultimately that's up to them.

[Ganymede]

Oh and just regarding my friend, I won't ask him for four reasons. The first is that the data that was disclosed by the defendant relates to my personal life and things I would rather he (and in fact anyone) didn't see. The second is that I'm not sure how much time he could actually devote to it given he's at a top three set and he has plenty of his own work to do. He has given me some pointers and advice when we catch up for dinner or a drink, and that is helpful, but it would be a considerably greater imposition on him to ask him to represent me and I don't think friends ask for freebies like that. I don't want to put him in the position of saying no, or it creating friction if we disagreed on something.

 

Third, nobody knows the granular details of my case better than I do, and I suspect my grasp of data protection law is probably greater than his given he does no work of that kind while I've spent the last year obsessively reading cases and material on Westlaw. Finally, at the moment I think it is somewhat advantageous to me for the judge to see the mismatch in the resources of the two parties, particularly when you match the considerable resources of the defendant and the seniority of their solicitor with their repeated non-compliance and the poverty of legal argument in their defence. If suddenly I'm being represented by a barrister from a top set, it upsets that sense of the parties positions.

 

I think he has been very helpful in giving me advice from time to time, and he was 100% right in his advice that I should appeal the costs order. He has given me some decent practical advice about litigating a case and he's given moral support. To ask him to actually take on the case would almost seem vulgar, and grasping. He's done a lot for me, he helped me get a mini-pupillage at his set and it would be wrong for me to hold out my hand for even more

 

I suspected that you may be a BVC or LPC student.

[wildcolonialboy]

No problem.

 

I note Steam's suggestion to apply to strike out the case due to non service of the Defendant's witness statement, however I would caution against this.

 

The Defendant has gone on record as not intending to file a witness statement and that will be sufficient, regardless of what the Order says. The Court will decide their claim on the papers already filed, it just means the Defendant will be at a disadvantage but ultimately that's up to them.

 

That makes sense too, and that's what I concluded the first time around when I considered making an application. I don't want to litigate it too aggressively, and as you say, the judge will see that the defendant has still not complied when the appeal hearing occurs.

 

Frankly, I think it's bizarre that they haven't made any effort to do so. Given they also didn't comply with the pre-action protocol, they filed their defence late (they made a successful application for disclosure of a document they pleaded was *vital* for their defence so they could have an extension of the deadline, but of course once disclosed it was never heard of again) and even now, I simply cannot understand why they haven't complied.

 

I suppose at this point, they are in a bind; if they suddenly file a witness statement it is an effective admission that they had done wrong. Then again, it will look so much worse, surely, if they turn up at the appeal hearing and 5 or 6 months after the original directions order (and 3 or 4 months after the DJ's september order) requiring the service of witness statements, they still haven't done so.

Edited November 6, 2015 by wildcolonialboy

[wildcolonialboy]

I suspected that you may be a BVC or LPC student.

 

Just a normal LLB student at the moment. Thank goodness for that though, having access to these resources is a lifesaver.

 

I would be absolutely stuffed if I didn't have access to Westlaw. I am trying to hold down my inherent studenty tendencies to treat every hearing like it's at the High Court. Then again, my case is one where there really is no dispute of fact and where the question of whether the particular type of data disclosed constitutes personal data or sensitive personal data, whether there is an overlying duty of confidence and an underlying protection from misuse of private information that provide a fallback, whether consent could be inferred from conduct... I don't think they're straightforward issues.

 

I do think that surely, though, the judge will appreciate both parties making proper submissions about what they perceive the law to be in that area and why they are right. I have gone through chapter and verse in my witness statement every aspect of why they are liable, with reference to legal authority. The defendant's defence was basically a bare assertion that the information is not personal data and that consent could be inferred from conduct, without providing anything resembling an explanation for why that is the case or legal authority that their position is at all justifiable in law.

 

I've tried to mitigate my tendency to overdo it by generally keeping my language staightforward, writing with clarity and not being too flowery, that kind of thing.

[Ganymede]

That makes sense too, and that's what I concluded the first time around when I considered making an application. I don't want to litigate it too aggressively, and as you say, the judge will see that the defendant has still not complied when the appeal hearing occurs.

 

Frankly, I think it's bizarre that they haven't made any effort to do so. Given they also didn't comply with the pre-action protocol, they filed their defence late (they made a successful application for disclosure of a document they pleaded was *vital* for their defence so they could have an extension of the deadline, but of course once disclosed it was never heard of again) and even now, I simply cannot understand why they haven't complied.

 

I suppose at this point, they are in a bind; if they suddenly file a witness statement it is an effective admission that they had done wrong. Then again, it will look so much worse, surely, if they turn up at the appeal hearing and 5 or 6 months after the original directions order (and 3 or 4 months after the DJ's september order) requiring the service of witness statements, they still haven't done so.

 

It doesn't sound like they will be filing a statement.