petebeds
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Finally it is all over bar what will undoubtedly be an argument over costs. In this morning's post was the Order from the Appeal Court. I'm not going to post the whole thing, but the Appeal Judge stated that "the appeal is dismissed summarily" as "there is no real prospect of success and no other reason why the appeal should be heard." The Judge also stated that the District Judge was not wrong in law not to allow the claimant to rely on the evidence because they had failed to give notice that the witness was not attending to give oral evidence in breach [of his earlier order saying "oral evidence only"], it was within his discretion. The appeal was described as "wholly without merit" and the appellant does not have the right to seek an oral reconsideration of the decision. No order as to costs - which I take to mean the original order stands.
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Thanks citizenb - I have also PM'd andyorch
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Further update - approved transcript was reissued by the transcribers to IND in late May; after numerous phone calls to the Court I am told that they (the Appeal Court) have heard nothing further in respect of a Request for Directions... Is it worth my putting in an Application to the Court to have the Appeal dismissed or struck out due to IND's tardiness in expediting their own appeal?
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Now nearly 9 months down the line, latest is that the approved transcript was sent back to the transcribers in May; I have still heard nothing other than being told on calls to the Courts' Contact Centre that this is the case.
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An update on the situation 4-1/2 months down the line: Claimants/Appelant were ordered to produce a transcript of the Judgement, which they did at the end of January. This was then sent off to the original DJ to be approved, then a copy of the approved transcript was sent back to Hegartys last week. So still no firm news as to what is going on.
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Rather interesting article here which may or may not be relevant: http://incelaw.com/en/knowledge-bank/publications/court-of-appeal-revised-guidance-on-courts-approach-to-non-compliance-with-civil-procedure-rules
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Letter arrived from Hegartys saying "Please note that the Claimant has filed an appeal at Court and have asked for a stay on the Order to pay your costs". Phoned Hegartys to point out that I am filing a Respondent's Notice and that they really don't have a leg to stand on due to the 15th July Order, but they are adamant that they're not appealing against that, they're just appealing against the DJ's Final Decision. Sounds to me like they're trying to ignore that Order and are possibly somewhat desperate?
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Draft Respondent's Notice attached.
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Thanks Andy, obviously it has now been transferred to the relevant Court for the Appeal - I have found the paperwork for filing a Respondent's Notice and am preparing that on the grounds of "... wish the appeal court to uphold the order on different or additional grounds" namely that the Order was made requiring oral evidence, within the provisions of CPR32.1(1)©, 32.2(1)(a), 32.2(2(b) and 32.5; that Order was not complied with, there was no application to vary the Order and the Witness was not called to give oral evidence at the Trial; therefore the DJ was correct in not allowing the evidence and refusing the Application for Relief from Sanctions as the Claimant had failed to comply with the Order and couldn't produce any evidence to support the Application for Relief as per CPR3.9(2) (Application for Relief from Sanctions must be supported by evidence - must being the operative word, meaning a "mandatory requirement" to quote the DJ.) Is it worth me posting a redacted copy of the draft Respondent's Notice?
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Andy - that's what they're arguing. However, footnote 7 at the bottom of the page - it doesn't say anywhere that they weren't going to call the Witness and why not. But obviously the DJ saw that and made the order - this was made after both WS had been filed and served.
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Hi Andy I can only guess that point 2 in the Order was directed as the DJ had read their Witness Statements (which were filed and served in February and June) and saw that there was no clear statement that they wished to rely only on the witness statements, therefore would not be calling the witness, but they did not say why in line with the rules. Their argument being that by saying "I wish to rely on CPR33.2(1)(b) and Section 2(1)(a) of the Civil Evidence Act 1995)" plus what they said in the rest of the paragraph about having nothing further to say about the account they complied with the rule. My only guess being that the DJ who made the July Order after filing of Pre-Trial Checklists saw that and put in point 2 into the Order to make sure there was no doubt.
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Delightful envelope arrived in the post this morning: IND are appealing the DJ's Decision on the grounds that they reckon they did comply with CPR33 and therefore their hearsay evidence should have been allowed. However also attached is a copy of the Order made by the DJ back in July where it was stated that "The parties have permission to rely at the trial only on the oral evidence of the witnesses of fact whose statements have already been served." What do I do from here?
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WS was submitted (2 of them) but they ignored/forgot about CPR33....
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Andy - replying by PM.
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Just back from Court where to cut a long story short IND's claim was dismissed. They had failed to provide some rather important documentation to the Court which meant that their evidence was inadmissible, therefore without that evidence the DJ said that the case was "doomed to dismissal" due to the Claimant's "self-inflicted injuries". I have been awarded Costs - would appreciate some guidance as to what I can claim and what would is reasonable under the circumstances.
