Recently requested (sent by Recorder so know they received it) confirmation from claimant's solicitor regarding making payments. Also followed up with a phone call - someone will get back to you - they didn't. Have had no reply - I indicated I wanted to pay by Standing Order as I felt this most practical way. 1st payment due on 05 Sept 09. What the best thing to do, send a cheque payable to their client? Any ideas.

Hi LetItBeMe Not sure how much more I can post, will have to see what claimant's next step is. DJ seemed to give them plenty leeway. Have you got a thread on your case, if so I'll read through it.

Well, I'm not really sure whether this is going to help the Defendant or not. Trial adjourned by DJ due to claimant's witness not being available for cross examination which the defendant wished to do. DJ (reluctantly the Defendant felt) agreed with the Defendant that not allowing them to do so would put them at a disadvantage and prejudice the defence. DJ said in the interest of dealing with the case justly the court order an adjournment. At this point Defendant said they may as well have left as DJ only spoke to claimant's Counsel. The DJ then went on to tell Counsel what the claimant should have done if their witness did not intended appearing and mentioning specific parts of CPR (surely these people know this already). Unable to go into the specific detail but having been told what the DJ said to Counsel both Defendant and myself feel the DJ was allowing the claimant a second chance to get it right before the trial. No date was set for trial as DJ suggested Counsel would possibly need to advise their client further. Both parties to inform court of any dates they would be unable to attend (Defendant says they'll find out when this DJ is on holiday and ensure only dates they are available are the same dates). Now if Defendant had messed up this much would they have been given a second chance to get it right – I DON”T THINK SO!

Update: Don't know much detail - but trial adjourned. Meeting defendant for a drink later will post whatever I can.

x20 Sorry, forgot to say, thanks for you advice - much appreciated.

That makes three of us then. …lets hope they don't get a DJ who immediately sides with the claimant.

Sorry I can't go into anymore detail, case is not mine, so don't feel it would be appropriate. Defendant was posting but stopped after seeing posts in which people had said that the Solicitors, who are acting on behalf of the claimants in this claim, had been quoting from threads on this site. I think receiving letter from solicitors saying their clients witness would not be attending the trial threw them of course as they had been putting together questions for cross examination.

Also Defendant has submitted Skeleton Argument in accordance with DJ instructions (to file and serve three working days prior to trial). Defendant sent to Solicitors and Court by Guaranteed Next Day both signed for this morning. No Skeleton Argument from claimant (but no surprise there).

The only thing that I have thought of, and I have said this to defendant, is that claimant's solicitor has said this in some way to put him off guard and that when they arrive at court witness will be in attendance.

Yes - trail bundle received last Friday with letter from Claimant's Solicitors saying "Our client's Witness will not be attending the hearing and will therefore be relying on their written evidence"

Yes claimant's one and only witness

Don't have a copy of claimant's witness statement, however having read it the points that I personally picked up on are the following: The witness statement has been someone employed by the Bank within the Bank's Debt Recovery Section since XX/XX/XXXX – (the account was opened 6 years before this date). “The contents of this statement are true to best of my information, knowledge and belief and the facts stated are known to me personally. Where they are not known to me personally I have stated the source of my information.” “The defendant applied for a XXXXXX Credit Card on XX/XX/XXXX for the purpose of acquiring goods and/or service on credit. On receiving the Defendants application form, the agreement would have been scanned and stored electronically on the banks computer system, the original agreement subsequently being destroyed.” Defendant submitted an N268 – Notice to prove documents at trial with their Witness Statement – claimant under standard disclosure stated original agreement destroyed. Following receipt of Witness Statement, defendant requested confirmation of a number of points regarding the production of the Default Notice (of which there are a number of problems) as Bank had stated they did not keep a copy of the DN – they did however reproduce a template of the Banks DN. Claimant responded by way of a second witness statement in which the process by which the Bank creates it's Default Notice was explained – all automated – on the Bank's premises, the address given being a different location from the location in which the Witness has stated they are employed at. Now I may have got this wrong but as the individual making the Witness Statement did not work for the Bank how could they make the statement about the application form being scanned at the time the application was received. Also regarding production of the DN – again he does not work at the location the DN was produced. Would these statement's be hearsay? Or has the witness protect himself by saying “Where they are not known to me personally I have stated the source of my information”. Yet he does not state a source for his information.

Trial is in respect of credit card.

Hi Supasnooper, Many thanks LC

Anybody?

Would 1996 No. 3218 (L.17) COUNTY COURTS PROCEDURE The County Court (Amendment No. 3) Rules 1996 still be applicable or have the Civil Procedure Rules replaced it? Any advice would be appreciated. Trial is on Friday 21/08/09

Also found the following: 1996 No. 3218 (L.17) COUNTY COURTS PROCEDURE The County Court (Amendment No. 3) Rules 1996 Hearsay evidence 2. For Order 20, rules 14 to 24[2], there shall be substituted the following — "Application and interpretation 14.—(1) In this Part of this Order the "1995 Act" means the Civil Evidence Act 1995[3] and any expressions used in this Part of this Order and in the 1995 Act have the same meanings in this Part of this Order as they have in the Act. (2) In this Part of this Order: "hearsay evidence" means evidence consisting of hearsay within the meaning of section 1(2) of the 1995 Act; "hearsay notice" means a notice under section 2 of the 1995 Act. (3) This Part of this Order applies in relation to the trial or hearing of an issue arising in an action or matter and to a reference under section 65 of the Act (Power of judge to refer to district judge or referee) as it applies to the hearing of an action or matter. (4) Nothing in this Part of this Order shall apply in relation to proceedings which have been referred to arbitration under section 64 of the Act. Hearsay notices 15.—(1) A hearsay notice must (a) state that it is a hearsay notice; (b) identify the hearsay evidence; © identify the person who made the statement which is to be given in evidence; (d) state why that person will (or may) not be called to give oral evidence, and (e) if the hearsay evidence is contained in a witness statement, refer to the part of the witness statement where it is set out. (2) A single hearsay notice may deal with the hearsay evidence of more than one witness. (3) The requirement to give a hearsay notice does not apply to (a) evidence which is authorised to be given by or in an affidavit; or (b) a statement which a party to a probate action desires to give in evidence and which is alleged to have been made by the person whose estate is the subject of the action. (4) Subject to paragraphs (5) and (6), a party who desires to give in evidence at the trial or hearing of an action or matter hearsay evidence shall, not less than 28 days before the day fixed for the trial or hearing, serve a hearsay notice on every party and file a copy in the court. (5) Unless the court otherwise directs, paragraph (4) shall not apply to an action or matter in which no defence or answer has been filed and, where a defence or answer is filed less than 28 days before the day fixed for the trial or hearing, any party who is required to give a hearsay notice shall apply to the court for an adjournment or for such other directions as may be appropriate. (6) Where witness statements are served under rule 12A of this Order (or under that rule as it is applied by Order 17, rule 11), any hearsay notice served under this rule shall be served at the same time as the witness statements. Power to call witness for cross-examination on hearsay evidence 16.—(1) Where a party tenders as hearsay evidence a statement made by a person but does not propose to call the person who made the statement to give evidence, the court may, on application, allow another party to call and cross-examine the person who made the statement on its contents. (2) An application under paragraph (1) shall be made on notice to all other parties not later than 28 days after service of the hearsay notice. (3) Where the court allows another party to call and crossexamine the person who made the statement, it may give such directions as it thinks fit to secure the attendance of that person and as to the procedure to be followed. Credibility 17.—(1) If (a) a party tenders as hearsay evidence a statement made by a person but does not call the person who made the statement to give oral evidence, and (b) another party wishes to attack the credibility of the person who made the statement; that other party shall notify the party tendering the hearsay evidence of his intention. (2) A notice under paragraph (1) shall be given not later than 28 days after service of the hearsay notice." . 3. Nothing in rule 2 shall apply to proceedings (a) in which directions have been given, or orders have been made, as to the evidence to be given at the trial or hearing, or (b) where the trial or hearing has begun before 31st January 1997.

So, my understanding is: If claimant intends to rely on witness statement, but not call the witness to give evidence at trial they must submit the evidence as hearsay evidence (32.5(1)(b)). If they don't they call the witness or submit as hearsay evidence, defendant can put claimant's witness statement in as hearsay evidence (32.5(5)(b)). Defendant can make an application to call witness to be cross-examined (33.4(1)(b)). If claimant does not submit a notice of intention to relay on hearsay evidence where does this leave the defendant. Is claimant's solicitors letter saying their clients witness will not be in attendance in effect notice they intend to rely on hearsay evidence?

OK, been ready CPR in particular parts 32 and 33 as follows: 32.5 Use at trial of witness statements which have been served (1) If – (a) a party has served a witness statement; and (b) he wishes to rely at trial on the evidence of the witness who made the statement, he must call the witness to give oral evidence unless the court orders otherwise or he puts the statement in as hearsay evidence. (Part 33 contains provisions about hearsay evidence) (2) Where a witness is called to give oral evidence under paragraph (1), his witness statement shall stand as his evidence in chief(GL) unless the court orders otherwise. (3) A witness giving oral evidence at trial may with the permission of the court – (a) amplify his witness statement; and (b) give evidence in relation to new matters which have arisen since the witness statement was served on the other parties. (4) The court will give permission under paragraph (3) only if it considers that there is good reason not to confine the evidence of the witness to the contents of his witness statement. (5) If a party who has served a witness statement does not – (a) call the witness to give evidence at trial; or (b) put the witness statement in as hearsay evidence, any other party may put the witness statement in as hearsay evidence. 33.4 Power to call witness for cross-examination on hearsay evidence (1) Where a party – (a) proposes to rely on hearsay evidence; and (b) does not propose to call the person who made the original statement to give oral evidence, the court may, on the application of any other party, permit that party to call the maker of the statement to be cross-examined on the contents of the statement. (2) An application for permission to cross-examine under this rule must be made not more than 14 days after the day on which a notice of intention to rely on the hearsay evidence was served on the applicant. 33.5 Credibility (1) Where a party – (a) proposes to rely on hearsay evidence; but (b) does not propose to call the person who made the original statement to give oral evidence; and © another party wishes to call evidence to attack the credibility of the person who made the statement, the party who so wishes must give notice of his intention to the party who proposes to give the hearsay statement in evidence. (2) A party must give notice under paragraph (1) not more than 14 days after the day on which a hearsay notice relating to the hearsay evidence was served on him.

Didn't think of it from that point. Your quite right.

Anyone got any ideas on this?

Supasnooper Many thanks, especially for the **WON** (but think it's only be default). I have to say I'm pleased with the outcome so far, but expect this to come up again. DJ did say ensure every single payment is made on time, as the claimant will be waiting for the first opportunity to get me back in front of him. DJ very helpful, asked me what date of month I was paid and suggested payments made 4 days after this so I can ensure funds would be in my account to cover payment. Weekend has been very good, apart from the weather!!! Thanks once again. LC

Bump

Just a quick update: Managed to escape the redundancy axe - phew!! My application for variation of order was accepted by the court - no objection from claimant. Claimant's application for Charging order DISMISSED!!!!!!!! THEY DID NOT SHOW UP. My hearing was first one listed (along with 9 others all 15 mins apart) of the 10 listed 7 where all from same Creditor. As no one had arrived to represent Claimant by time of hearing Usher moved my hearing to third place. First one out in 10 mins. Second one out in 15 mins That was longest 25 mins in my life, every time door opened I held my breath thinking this would be someone for the Claimant. Eventually taken in by Usher, DJ thank me for waiting, looked at Usher and asked. No one for Claimant. Usher just said "No Sir". DJ was not very happy. Not sure what will happened next, can they object to their application being dismissed. Have to admit as soon as hearing finished I got out fast, did not want to hang around in case they turned up. I think this one was just LUCK… …and the ironic thing about all this. The amount I said I could pay per month is exactly the same amount I offered to creditor when I first got into financial difficulties and which they refused "as not an acceptable level of payment".

Have been asked my advice on a matter dealing with a County Court Claim that has been allocated to the Fast Track (don't now why as I lost my Fast Track Trial - told them I'm probably not best person to ask). Anyway here's the issue: Witness statements have been exchanged, Listing questionnaires filed and trial listed. Defendant has received Trial Bundle, attached to this is letter from claimant's solictor's in which they have indicated their clients witness will not be in attendance at the hearing and will rely on written evidence at the trial. Proposed timetable for trial has allowed for examination of Claimant's witness statement and evidence and then cross-examination of Defendant. Is this right? Can defendant object to this and request they attend for cross-examination? I've look at CPR Part 28 which deals with Fast Track Trials and it makes no reference to witnesses. Surely Defendant can cross-exam Claimant's Witness if they choose, not being able to do so would put defendant at a disadvantage . Defendant has not been contacted by Claimant's Solicitor prior to trial to see if they wish to cross-exam their client's witness. Defendant served on an claimant N268 - Notice to prove documents at trial in respect of agreement as confirmed original destroyed.