Suspicious witnesses attendance to a Small claims hearing

[JennyHope]

Hi,

 

I'm currently helping a relative defend a case that was filed against her from an estate agent who carried out unsafe works in her property at the beginning of the tenancy.

 

The Claimant is represented by a solicitor, and my relative (Defendant) is litigant in person.

 

Both parts provided written evidences and witness statements to the court but the Defendant received two weeks ago the court letter ordering:

 

- The case be listed for 06 June 2014 with a time estimate of 1 and half hour

- The Claimant to file and serve a reply to the defence at least 3 days before the hearing

- Claimant witnesses to attend to give evidence

 

Also, can the Defendant ask to the court :

 

a) the Claimant to file and serve a reply to the defence at least 14 days before the hearing?

 

b) A further 1 hour for each claimant witness in order to allow the Defendant to question them accordingly [as we believe the Claimant is going to provide fake witnesses and also commit perjury (the Claimant has never talked about any witness in his statements)]?

 

Thanks

[citizenB]

I will try and find someone who can advise.

 

I have relocated your thread to the Legal Issues forum - purely an administrative move, you need do nothing

[raydetinu]

You should receive all the documents including the witness statements, then you can respond accordingly.

The witness cannot just attend without submitting a statement first. so you will know what they are testifying to. and can rebut or put your answer before it goes to court.

The claimant and witnesses can be questioned in court by the defendant.

It will take however long it takes, but judge can adjourn or reschedule as he wishes.

[JennyHope]

You should receive all the documents including the witness statements, then you can respond accordingly.

The witness cannot just attend without submitting a statement first. so you will know what they are testifying to. and can rebut or put your answer before it goes to court.

 

We received the Claimant documents including the witness statements but there was not any witness statements from claimant witnesses : also, can the Defendant ask the judge to reschedule or adjourn the hearing?

[raydetinu]

The witness statements ( your defendant ) have been lodged with the court then, but litigants has not submitted any? well they cant call them as witnesses, without judge's permission. ( which is rare ).

Yes you can ask for hearing to be rescheduled by applying to the court, but you would have to have a very good reason.

[JennyHope]

The witness statements ( your defendant ) have been lodged with the court then, but litigants has not submitted any? well they cant call them as witnesses, without judge's permission. ( which is rare ).

It may have a misunderstanding : The Defendant (me/my relative) witness statment has been sent to the court with his defence and the Claimant provided firstly his claim with own witness statement.

 

Yes you can ask for hearing to be rescheduled by applying to the court, but you would have to have a very good reason.

 

Not having received a witness statement from the Claimant witness should normally be enough.

 

Maybe the claimant witness in this case is the Claimant's contractor who truthfully made the work in the property on the estate agent behalf.

Edited May 21, 2014 by JennyHope

[AndyOrch]

Hi Jenny

 

Did the claimant serve a copy of their Directions Questionnaire on you ? If so check to see if they have stated witnesses.If you have not been served request a copy from their Solicitor.

 

If they have not listed any within the DQ then they cant call them to give oral evidence.

 

With regards to Witness Statements (Claimants and Defendants ) they should be exchanged simultaneously just before standard disclosure...usually a week before the trial date.

 

If you are referring to expert witness statements well as above if they are not on the DQ then they cant be entered as evidence.If they are listed on the DQ then they should be disclosed with your standard disclosure.

 

Lastly as this is Small Claims Track you will be lucky to get an hour for the whole trial.

 

Regards

 

Andy

[JennyHope]

Hi Jenny

 

Did the claimant serve a copy of their Directions Questionnaire on you ? If so check to see if they have stated witnesses.If you have not been served request a copy from their Solicitor.

 

If they have not listed any within the DQ then they cant call them to give oral evidence.

 

No, the claimant did not serve a copy of their Directions Questionnaire on me (relative) : In fact, originally the Claimant filed a claim A under section 8 and 21 because we deducted the gas engineer and plumber works we paid by our own from the rent. In the first/original claim A there was a Directions Questionnaire that we (Defendant) served to the court and Claimant since we made a counterclaim. Presently, the Claimant filed another claim using as evidence the notice of claim A with a new witness statement on which he put "Claim No TBC".

 

With regards to Witness Statements (Claimants and Defendants ) they should be exchanged simultaneously just before standard disclosure...usually a week before the trial date.

Also, the Defendant can also ask the court that the Claimant file and serve a reply to the defence at least 7 days before the hearing (instead of 3 days)?

 

If they are listed on the DQ then they should be disclosed with your standard disclosure.

 

Do you instead mean "If they are listed on the DQ then they should be disclosed with the Claimant standard disclosure." ?

[raydetinu]

I am not understanding this!!

[JennyHope]

I am not understanding this!!

 

Which part of the above (please note myself I am confused with the court last order)?

[raydetinu]

The witness statement parts????

If no witness statements submitted ( you imply the Contractor ), then they cant call them as a witness, simple!!

[JennyHope]

The witness statement parts????

If no witness statements submitted ( you imply the Contractor ), then they cant call them as a witness, simple!!

 

Thanks, I will inform the court by email today and equally ask that the Claimant file and serve a reply to the defence at least 7 days before the hearing (instead of 3 days).

[Ganymede]

Thanks, I will inform the court by email today and equally ask that the Claimant file and serve a reply to the defence at least 7 days before the hearing (instead of 3 days).

 

 

 

 

On what basis do you want it served 7 days before instead?

 

Really you need to make an application to vary the Court Order but is it really worth it??

[raydetinu]

I would just let it continue, and let the judge decide on the day if statements submitted in time, if not then they will not be allowed. All the better for you, possibly?

[AndyOrch]

Witness Statements can be submitted 3 days prior if the court directs...I personally wouldn't challenge the DJ directions...3 days is ample to consider.

[JennyHope]

Witness Statements can be submitted 3 days prior if the court directs...I personally wouldn't challenge the DJ directions...3 days is ample to consider.

 

My worry mainly being the case that I do not receive the mail on time.

 

If they have not listed any within the DQ then they cant call them to give oral evidence.

There are not listed in the Directions Questionnaire [of claim A from which the present claim B is based (using documents as evidence)] so normally according to above these alleged witnesses should not be call at the court.

Edited May 23, 2014 by JennyHope

[Ganymede]

My worry mainly being the case that I do not receive the mail on time.

 

 

There are not listed in the Directions Questionnaire [of claim A from which the present claim B is based (using documents as evidence)] so normally according to above these alleged witnesses should not be call at the court.

 

 

 

 

From your original post it looks like the Court has already given the Claimant permission to rely on his witnesses. All he needs to do now is submit the statements in time and the witnesses can give evidence at the hearing.

[JennyHope]

From your original post it looks like the Court has already given the Claimant permission to rely on his witnesses. All he needs to do now is submit the statements in time and the witnesses can give evidence at the hearing.

 

The problem is this doesn't seem legitimate/fair. In fact, I even suspect a conflict of interest between the court service and the claimant solicitor.

Edited May 24, 2014 by JennyHope

[Ganymede]

The problem is this doesn't seem legitimate/fair. In fact, I even suspect a conflict of interest between the court service and the claimant solicitor.

 

 

Why do you feel it is unfair?

 

On what basis do you believe there is a conflict?

[JennyHope]

Why do you feel it is unfair?

 

On what basis do you believe there is a conflict?

 

It is obvious reading my posts from the first to the last.Otherwise it may be that we do not understand the law the same way...

[Ganymede]

It is obvious reading my posts from the first to the last.Otherwise it may be that we do not understand the law the same way...

 

 

Clearly we do.

 

You mentioned a conflict of interest without giving any reasons why you believe this.

 

As for the Defendant's witness, wait and see if you get a written statement before the hearing and if you don't object to the witness giving evidence on they day.

 

You can't accuse somebody of perjury though with no proof to back it up. You'll just have to deal with the witness on the day in cross examination (if he's allowed to give evidence).

[raydetinu]

As G says wait and see what happens in court and let Judge deal with it on the day. ( you will be entitled to challenge the validity of any witness if you have not received any statements ); but in the end the judge will rule on that.

There is nothing else you can do.

To suggest that there is a conspiracy or conflict is not right and incorrect.

[JennyHope]

Clearly we do.

As for the Defendant's witness, wait and see if you get a written statement before the hearing and if you don't object to the witness giving evidence on they day.

I read that all I have to say to the judge for this purpose 'I object' but there is a risk that the claimant does not send his witnesses witness statements and claim to have done it.

[Ganymede]

No don't simply say "I object", you're not Rumpole of the Bailey!

 

You object on the grounds that no witness statement has been served on you or filed with the Court.

 

Make reference to CPR 32.10 and if the Defendant attempts to submit a statement on the day of the trial also object on the basis that he shouldn't be allowed relief from sanctions under CPR 3.9.

 

Good luck!

[JennyHope]

You object on the grounds that no witness statement has been served on you or filed with the Court.

 

I think I can legitimately object even in the case the witness statement would have been filed with the Court but NOT on me since they are supposed to serve it to me at least 3 days before the court hearing.