urgent - simultaneous exchange of witness statements - no response form the other side,

[CharlesBrandon]

I am a defendant in a fast track case.

 

I have the other parties documents I requested copies of from their disclosure by list.

 

There are other docs I know of the existence of and want the other party to disclose them as I think they have left them out because they will hurt their case.

 

I have written to them requesting these be disclosed but have not heard back or received supplemental disclosure of these docs. I don't expect to hear back as they refuse to communicate with me regarding this litigation.

 

I am planning to apply for a Specific Disclosure order and cannot find much guidance online on how to go about this.

 

I want them to disclose specific documents, rather than to do an additional search as I think these should have been found and disclosed within the search they already carried out.

 

There are 11 docs in total I want them to disclose.

 

Some of the docs are mentioned by them in emails they disclosed, some are police records they can get through a subject access request, they have disclosed the Crime Ref numbers of these incidents and referred to them in letters they disclosed.

 

My questions are:

 

1. What do I put in the draft order?

2. What do I put in my supporting evidence/information to support the application?

3. How do I refer to the places that bought these documents existence to light?

 

Many thanks

[BazzaS]

Fast track means that there may be significant costs implications of losing. Are you legally represented or self-represented?. Are they legally represented?

 

Disclosure is governed by any specific order made by the court (although 'standard disclosure' is often utilised).

CPR 31 covers disclosure, 31.6 and 31.10 standard disclosure and 31.6(b)(i) their obligation to disclose documents even if they harm their case.

"Document" is construed widely, and documents are disclosable not only if in their possession but also if they are OR have been in their control (CPR 31.8).

Getting 'caught' deliberately not disclosing documents is a dangerous game, and one solicitors caution clients against, no matter how tempting it is for the client!

 

A document they have a right to have a copy of by an SAR may well fall under CPR 31.8(2)©, although you'd be expected to give them time to seek it under an SAR.

The application you may make is covered by CPR 31.12, with its associated PD (PD 31A, specifically at (5))

 

You have an obligation to ask them to disclose relevant documents (& you say you have!) before seeking an order for specific disclosure.

Have they disclosed the document(s) at all? (Even to say they are exempt from disclosure or no longer in their control / available)?

[CharlesBrandon]

I am self represented, as are the other party.

 

The order was for standard disclosure. I requested everything barr a few items on their list. They haven’t supplied them all however, several are missing, something I have also written to them about, with no response.

 

I think it’s only the SAR that will take any significant amount of time to arrive. I did one to request Police records for this case, which I have disclosed and 40 days was the quoted time it takes. The other stuff I think they’ll have, or will be able to get copies of quite fast if they tried.

 

They have not disclosed them at all. They have nothing in their no longer in my control or privileged section.

 

I only sent the request 14/11/16 requesting them. I did not state in the letter that I am planning to apply for an order to get them disclosed.

 

They have not replied to one letter I have sent them during this case, so I highly doubt that they will reply to this. In fact, they have complained to the court about me writing to them regarding the case.

[BazzaS]

I am self represented, as are the other party.

...........

 

They have not replied to one letter I have sent them during this case, so I highly doubt that they will reply to this. In fact, they have complained to the court about me writing to them regarding the case.

 

As long as your letters are civil and factual, what do they expect you to do instead of writing to them?

 

Have you considered retaining a solicitor on a "no win, no fee" basis?

They will assess the strength of your case before agreeing to act for you.

If they accept you'll be no worse off .... if you win they'll get the majority of their fees from the other side. If you loose you'll still be liable for the other side's costs (which is the current situation!), but not for your solicitor's fees.

 

What has the court said about Alternative Dispute Resolution (ADR) e.g. Mediation?

[CharlesBrandon]

I agree it's unreasonable that they think i shouldn't write to them.

 

We're at quite a late stage now, witness statements are ordered for simultaneous exchange next week, the hearing date is end of Jan. I've done pretty well so far on my own, I've done a load of research and have complied with CPR and PD all the way.

 

They didn't follow any pre litigation protocol, so no pre legal notice, no ADR, I just got served one evening out of the blue! I have attempted to engage in mediation in the past before this came to court, but it was rejected by them. The judge mentioned it at the directions hearing but not much was really said about it.

[Ganymede]

The Directions order will say when inspection of documents should take place. You cannot make your application for disclosure until this time has gone.

 

As for records held by the Police, do the other side already have them as it isn't clear. If they don't already have them, why haven't you requested them from the Police directly? You can't make an application to disclose a document held by the Police which is not in the possession or control of the other side.

[CharlesBrandon]

Hello Ganymead, thank you for your response.

 

Disclosure and inspection has already taken place. That is how I have found out that these documents exist, from the documents I requested copies of from their 'Disclosure by List'.

 

I requested all information from the police within date parameters using a SUR and received all the records of the reports I made. I could not get any information on the reports made ABOUT me under the DPA. The opposing party would have to put in a SAR for that.

 

The opposing party has not disclosed the police records, only documents containing the Crime ref numbers for each report.

 

They listed the search area 'Metropolitan Police' in their N265. Should these police records not have been found under that search criteria?

[CharlesBrandon]

I am due to simultaneously exchange witness statements in a fast track case on 25/11/16.

 

I wrote to the other party to ask if they were ready to exchange, and have had no reply. They refuse to communicate with me.

 

They applied for an extension for disclosure on the date it was due without notifying me, so I am wary of unilaterally exchanging my witness statement without their response to confirm they too are ready to exchange.

 

I read that I could file it with the court with a covering letter explaining why it was not served.

 

What is my best course of action here?

 

Many thanks

[BankFodder]

Presumably this simultaneous exchange is as the result of a court order.

 

They have now asked for an extension – have you consented to it? Are you dealing with a litigant in person or a firm of solicitors? Are you the claimant or are you the defendant?

 

I think that you should show that you are being cooperative as possible. You should certainly hold off the simultaneous exchange until they are ready to do the exchange. I think that you need to make sure that the court is fully informed of your intentions so I would suggest that you write to the court immediately, point out that you were on the verge of embarking on the simultaneous exchange when you received a last moment notification of the request for an extension by the other side. Explain to the court that as this is their first request for an extension, you have no objection to it but because of their request, you are delaying your simultaneous exchange until a new date has been set.

 

We respectfully ask the court to make it clear in the new order that if the extension deadline is not complied with, that their case will be struck out.

 

Of course, are making the suggestions to you without knowing any of the answers to the above questions

[CharlesBrandon]

Hi BankFodder, thank you for your reply!

 

Yes, the court ordered simultaneous exchange for that date by 4pm.

 

I am a joint defendant (with my partner), the other parties are joint claimants, and are my neighbours, a married couple. We are all litigants in person.

 

The application they applied for was for an extension for standard disclosure at an earlier date, but it was last minute and the other party did not inform me which is what has made me concerned.

 

Lat week I went into the court to enquire if any applications had been made by the Claimants and was told that they have applied for something.

 

The Court staff could not tell me what the application was for. I do not know if this is an application for extension for witness evidence or something else, but I am worried that it is and the other party haven't informed me and wont exchange on the date ordered.

[BankFodder]

Well in that case I would cover myself by writing to the court as suggested, but also I would write to the neighbours – recorded delivery and put it formally in writing that you have not received any notification as to the simultaneous exchange and that furthermore you have heard from the court that they have made an application for something although you have not been told what it is yet.

 

Invite them in writing to give you a copy of the application they have made and also to clarify if they are proposing to make the exchange now – because you are ready to do so – or if not, when are they proposing to make the exchange.

 

Tell them in the letter, that you are writing to them for the avoidance of doubt and to make sure that everything is clear and open and that the letter will also be provided to the court.

 

The best thing in these kind of circumstances is always to put everything in writing so you got a clear paper trail. This is particularly so as you have now revealed that actually you're not quite sure whether they have applied for an extension or not. If you make assumptions that they have – and it turns out they haven't, you may find yourself on the back foot as they will then turn round and say that they were waiting for you – why you say that you were waiting for them et cetera.

 

I'm sure that you get the picture. The best thing to do is act openly, transparently, be proactive rather than reactive.

[CharlesBrandon]

Fantastic, thank you very much for the advice, it's much appreciated!

 

When writing to the Court, who should I be addressing the letter to please? The Court Manager, District Judge or some other person?

 

Thanks again

[BankFodder]

I'm not sure who the best person to address it to – but it will all end up in the same place. Make sure that reference numbers et cetera appear at the top of every page.

 

If you are local to the court then it might be best to take it round there – and get them to give you a receipt for the documents. They are normally very good about that kind of thing. The easiest thing to do is to take a copy of the letter and get that stamped

[Ganymede]

Fantastic, thank you very much for the advice, it's much appreciated!

 

When writing to the Court, who should I be addressing the letter to please? The Court Manager, District Judge or some other person?

 

Thanks again

 

Call the Court to find out precisely what their application is for.

 

If you do not exchange on time without prior written agreement to extend then you will all be in breach of the Order and may be disbarred from giving oral evidence at trial unless you apply to Court for relief from sanctions.

 

It's much easier to apply for an extension before the deadline has passed, than apply for relief after a breach.

 

An alternative is to serve the witness statements in a sealed envelope with instructions not to open it until they've served theirs, buy it depends on how much you trust them to not open it.

[CharlesBrandon]

I am local, and will file a letter today with the courts. I will also send one to the Claimants as you suggested.

 

If we do not hear back (which is what I expect) would you suggest we serve copies of our witness statements anyway, or not serve it and file with the court with a cover letter explaing why we have not served it?

 

Thank you

[CharlesBrandon]

Apologies, I had not seen your response. Thank you again.

[dx100uk]

old and new threads merged

 

 

please keep to one thread

 

 

dx

[CharlesBrandon]

I am a defendant in a fast track case.

 

I have made an application in for strike out/Summary Judgement, the hearing date for this is 19/01/17.

 

I would like to amend my Statement in Support of this application as new documents have come to light that I think will allow some of the points in the Claim to be disposed with before trial.

 

I have made my amendments in red in a proposed amended Statement that I will send when applying, do I:

 

Write to the Judge to request permission to amend?

Use a Court form and pay a fee?

 

 

Many thanks

[BankFodder]

A summary judgement is a very particular kind of process and I'm not sure it's available to defendants – only to claimants. Have you checked the rules on this? Could you tell me which will you are looking at. For some reason rather CPR 9.14

strikes a bell – but it may not be this at all.

 

Furthermore, a strike out is also very different to a summary judgement.

 

It might be helpful if you tell us a bit about the case and also posted up the claim and the defence in PDF format and told us what your basis for your application is.

 

As the hearing date is so close, why do you want to go through these applications rather than wait for the hearing and produce evidence there?

[BazzaS]

"Strike out of claim" = "summary judgment for the defendant."

[CharlesBrandon]

Hi, thanks for your replies.

 

Yes, strike out and summary judgement is available to me as a defendant.

 

I am attempting to have their particulars of claim struck out as it does not comply with various CPR's, but I would also like to include the new evidence in support of summary judgement of certain aspects of their claim.

 

I did an awful lot of research on it before I put in the application and I think it's been done to an acceptable level for a litigant in person and complies with CPR.

 

I put the application in October, before disclosure. We have now gone through disclosure and inspection of documents. Some of the documents I have copies of from the Claimants will support my case enough to have parts of their claim disposed of before trial.

 

I am not sure if I will be able to use this new evidence at the hearing unless I include it in my statement in support of my application, hence my wanting to amend it.

 

I know it is possible to amend, but I just want to find out the correct process.

[honeybee13]

CB, is this linked to your other case on here?

 

http://www.consumeractiongroup.co.uk/forum/showthread.php?472053-urgent-simultaneous-exchange-of-witness-statements-no-response-form-the-other-side&p=4971468#post4971468

 

HB

[Ganymede]

Just draft a supplementary witness statement and attach the new evidence.

 

Send a copy to the Court and the Claimant.

[ThedaBara]

Hi, thanks for your replies.

 

Yes, strike out and summary judgement is available to me as a defendant.

 

I am attempting to have their particulars of claim struck out as it does not comply with various CPR's, but I would also like to include the new evidence in support of summary judgement of certain aspects of their claim.

 

I did an awful lot of research on it before I put in the application and I think it's been done to an acceptable level for a litigant in person and complies with CPR.

 

I put the application in October, before disclosure. We have now gone through disclosure and inspection of documents. Some of the documents I have copies of from the Claimants will support my case enough to have parts of their claim disposed of before trial.

 

I am not sure if I will be able to use this new evidence at the hearing unless I include it in my statement in support of my application, hence my wanting to amend it.

I know it is possible to amend, but I just want to find out the correct process.

 

I'm pretty sure you can't use evidence at a hearing which hasn't already been disclosed... TB

[BazzaS]

I'm pretty sure you can't use evidence at a hearing which hasn't already been disclosed... TB

 

If it is new evidence : it should be disclosed.

So, 2 reasons to disclose it!:

a) the obligation to disclose by the date ordered by the court (or when the new evidence is found, if later)

b) the wish to rely on the evidence ....