Small claim process issue?

[sam1888]

Hi,

 

Can anyone help with this issue re a small claim application. I have a hearing date for Fri 15th July, bundles to be submitted within the 3 days before.

 

The defendant have refused to disclose some documents which I believe are key. 24th April I submitted the N244 form plus information and paid the fee to get this disclosed and forcing two witnesses to attend. I have chased and chased often you can't get through to their offfice (central london court).

 

Finally about two weeks ago I did, they say they are shortstaffed and asked me to forward it again in!!! It has been before the judge, obviously I was aware of the bank holidays causing more delays, and the just has just come back today saying he cant process the application, as it's by email and should be by post!!! So for the last 6 weeks, the court staff did not tell me that, quite the opposite in fact.

 

What are my options please? Do I, can I request a postponement? How do I do this, I'm sure there is a fee, even though it's their fault, how is this even fair to me the individual layperson.

 

Or do I just turn up and say I can't do this process because of the lack of documents and witnesses whom I needed for my case?

 

Please help???? Why is the court so slow, to have taken 6 weeks.

[AndyOrch]

Hi Sam

 

In view of the Courts delay in processing and informing you, simply agree an adjournment with the Defendant, inform the Court and vacate the date.Whether there will be a charge/repercussion depends how you plead its their fault.

 

Regards

 

Andy

[sam1888]

Hi Andy

 

I was ready for the 15th July but need that information disclosed, otherwise cant have a fair case.

What happens if the other side don't agree, as so far they have done endless things to not co-operate, e.g. refusing to disclose the documents in the first place, causing this situation too.

 

Thanx

[AndyOrch]

Ask them to disclose the relevant document then there will be no need to adjourn.Inform them that you have made application to force disclosure anyway.If they wont respond or wont agree then remind them of CPR1 and costs then inform the Court.

 

Andy

[sam1888]

Hi Andy, I did ask them in March and April, they have refused several times, I informed the court, and I copied the other side in to my request to force disclosure, and kept thme informed of it being the cause here, i.e. their obstruction.

 

I also had a request for two witnesses to be forced to attend, they had formally informed that they were available on the 15th June, but as the court is messing up in terms of delays, etc., I seem to be stuck there unless I adjourn or the judge can act in a few days, if I post a letter, which realistically he will only get on Monday. The witnesses presumably can easily then say they can't now attend.

 

Not sure what is best to do, as can't fully prepare and bundles are meant to be lodged "within the 3 days prior to the hearing date", i.e. Tues-Thurs. So there is little time.

 

What is CPR1?

 

Should I copy in the court to that request?

[AndyOrch]

CPR 1 http://www.justice.gov.uk/courts/procedure-rules/civil/rules/part01

 

I can only advise that you try to adjourn without their consent as they are the reason for this request.The Court are also at fault in processing your application.Is it not possible to get the application before the DJ at the hearing?

[sam1888]

Hi, Isnt that a waste of the judge's time and my own in turning up for a hearing only to say we dont have the witnesses and disclosed documents and ask for the application to be approved? Though they may be inclined to deal with it all on the day if I go ahead, but I am in a disadvantaged position at present.

[AndyOrch]

The alternative is for you not to attend they do and your claim is thrown out.Attend the hearing state your case, state your disadvantage, state the defendants behaviour and also the Courts lack of due diligence in the matter.Let the DJ decide and issue further direction.

 

Andy

[sam1888]

That's a most odd method of tactic! I wouldn't do something so irresponsible as that. I have a very valid claim that I want to win and have addressed fairly.

[AndyOrch]

Not really, I have given you every alternative scenario.You state its an hearing .... a directions hearing or the Trial?

I didnt say not to attend I stated if you did not attend.

[sam1888]

Hi Andy, its the full hearing.

[AndyOrch]

The full trial takes place on the 15th July 2012 they have failed to disclose documents that are key to your claim.You have made application N244 by email the Court as refused to process said application.

 

Do you intend to make application for specific disclosure CPR 31.12? http://www.justice.gov.uk/courts/procedure-rules/civil/rules/part31#IDAUT0HC

 

Are you aware of CPR 32 http://www.justice.gov.uk/courts/procedure-rules/civil/rules/part32.

 

All I can advise is to make the application again ASAP and request it is fast tracked.In the absence of agreement to adjourn.

 

Andy

[sam1888]

I have made a request for specific disclosure and two witnesses to attend, but judge said today that he cant have the application by email, must be posted in, despite the court staff for the last 6 weeks telling me to email it in!!!

 

Not aware of CPR 32. How is a layperson supposed to know all these rules, they dont send you the booklet. :?

[AndyOrch]

Welcome to the world of Litigation Sam, LiPs are not expected to know but I advise you to study up on the CPR it will serve you well.Study CPR1 Overriding Objectives.

 

Notify the other party in the case that you intend to request an adjournment. It does not matter what method you use to send the notification; it only matters that the party was notified.

 

Review why you are requesting an adjournment. Make sure you have all of your facts straight, and try to predict any questions the judge may ask you. The judge will heavily scrutinize your request, and the better prepared you are to answer questions, the more likely the adjournment may be granted.

 

Regards

 

Andy

[sam1888]

ok & thanks for your pointers. I'd rather it go ahead, but I cant proceed in a fair and balanced way without those disclosures in particular.

 

Where am I supposed to find that document, if they dont send it out? About the practise direction, plus it's huge!!!

[AndyOrch]

Disclosure is a process that continues throughout the process you may raise and request at the hearing.

 

Andy

[sam1888]

Hi, I see what you are saying but I also see that it is a waste of the courts time doing it this way. The legal process itself is very onerous and cumbersome on the individual. The court admin staff have not yet called me back as they said, so yet again I will have to call in to see what is happening and what I can do realistically. Thanks again, appreciate the input you have given.

 

Their lawyer replied back this morning to my suggestion of asking again for disclosure otherwise we may have to postpone in which case does she agree, she replied:

 

"

Madam

 

There is no question of any agreement over a postponement of theHearing because of disclosure which a) is wholly irrelevant and b) hasnot been ordered by the Judge.

 

Yours faithfully"

[AndyOrch]

Its your only option if the court cant be bothered to inform you re application and the Defendant wont agree or disclose.They wasted 6 weeks of your time.!!!!

 

Andy

[sam1888]

Plus the amount of times I have had to call to find out and chase it is unbelievable, and you often have to hang on the line for ages to get it answered too. I will write with the application by post as required, and suggest to the judge given the delays as to whether a postponement may be better.

[Gaston Grimsdyke]

Hate to rain on your parade, but the other side's lawyer is correct. Parts 31 and 32 of the CPR don't apply to small claims. They only have to disclose what they intend to rely on (resd the directions order you received). As the claimant its up to you to prove your case, if they happen to have documents helpful to your case they are entitled to suppress them. You won't get an order for specific disclosure. If I were you I would crack on for the trial as best you can.

[AndyOrch]

Except rule 32.1 (power of court to control evidence);

 

Also consider 27.2.3 3) The court of its own initiative may order a party to provide further information if it considers it appropriate to do so.

[sam1888]

Not sure what you mean, so where there are documents I know are in existence, they are clearly withholding, how is that allowed to be done by the court? So much for justice!

 

How long do you have to submit a claim, the other way I could get the data is a subject access request, but that requires 40 days I believe. I only found that out recently.

 

I have posted in my N244 application for disclosure, witness attendance, and adjournment request at the discretion of the judge to determine.

[AndyOrch]

Keep your thread updated Sam let us know what transpires.

 

 

Andy

[sam1888]

Will do, I just rang the court and managed to speak to someone. They said they will pick up the letter on Monday (sent 1st class recorded) and "walk it down to the judge", when I asked what the manager had said, apparently different judges do things different ways was the response. I didnt ask why they didnt call back as they had suggested.

 

It will be an interesting week next week!

 

Can't believe how slow, ill equiped and short staffed the court admin office is especially for a main London court.

[andydd]

Hi Sam.

 

As you are finding out the world of CPR is such fun !. The best thing I ever did was get a huge CPR book (cheap from Ebay), and researched the CPR Rules, once you know what number you are interested in (i.e CPR 24, etc) a quick google will help, alaso note that for most CPR's there is an accompanying Practise Direction which lists practical steps.

 

I would of thought CPR 18 could be used in your situation, CPR 18 is to request further information, you can make a request informally first of all and if no response, they can be enforced by the court.

 

See here > http://www.justice.gov.uk/courts/procedure-rules/civil/rules/part18 and here > http://www.justice.gov.uk/courts/procedure-rules/civil/rules/pd_part18#id3585785

 

Andy