Email & signature

[Ganymede]

I don't want to say too much on an open Forum, suffice to say the differences are as follows;

 

First column “Numbers” the same

 

Second column “Document description” the same

 

Third column “Where it may be found” the same

 

The fourth column copy number 1, looks like this A copy at XXXXXXXX ( the name of the solicitors)

 

The fourth column copy number 2, looks like this Attached to the bundle

 

 

 

The 1st disclosure document the signed one

 

The fourth column number looks like this “A copy at XXXXXXXX” (the name of the solicitors)

 

The 2nd disclosure documentthe unsigned one

 

The fourth column number looks like this “Attached to the bundle”.

 

I hope my interpretation makes sense, basically the only difference is the signature

 

Believe me, if I could put this on an open Forum I would.

 

 

 

That makes no sense to me sorry.

 

Regardless of the layout, in the top box on the third page of the form titled "I have control of the documents numbered and listed here. I do not object to you

inspecting them/producing copies" are the actual documents you have listed identical in both forms? I.e. you haven't added any additional documents in the second form?

[scubatony]

Here is the example

 

 

Click the link: http://snk.to/f-ctuio8mu

Edited July 8, 2014 by scubatony
made an error

[steampowered]

Is there a reason why you can't just re-serve the second form but this time with a signature?

[Ganymede]

Is there a reason why you can't just re-serve the second form but this time with a signature?

 

He's in the murkey world of relief from sanctions.

 

However, since the Court of Appeal decision in 'The Mitchell Three' last Friday this is a bit easier than it was.

[AndyOrch]

http://lexisweb.co.uk/blog/dr/court-of-appeal-endorses-the-mitchell-message-but-with-an-unusual-outcome-chartwell-v-fergies/

[scubatony]

To Ganymede and Steampowered

Thanks for your input

Heres the thing, they are not exactly the same ! ! !

Please see my example http://snk.to/f-ctuio8mu

My trial date is set for 2, 3, 4 & 5 Sept as it is this close can I still resubmit my “signed disclosure form”

What will a defending Solicitor say to the late arrival of my new submission ?

Is there a CPR / Practice Direction that will allow me to do this ?

Do I need to fill out another application form etc. etc. ?

[Ganymede]

I see that is more useful thanks.

 

So you only have two documents on which you wish to rely? And they are referred to in each disclosure list.

 

Why did you not use the standard Court form N265 for your disclosure?

 

I think we need to know exactly what the Judge and the Defendant's Solicitors have said about the unsigned disclosure statement.

 

You might have to make another N244 application yes.

[scubatony]

My Disclosure documentation runs to 7 pages numbers 1 - 134 which I intend to rely on.

One document within this disclosure is over 300 pages in length.

The above link is an example as stated above ! ! !

All the documentation runs to over 3,000 pages, the disclosure documentation is but one very small part that will lead me into the rest of my claim presentation.

By the time I am finished at the end of day four, “on the balance of probabilities”, I firmly believe the judge will be in no doubt where to find

Your quote of "I think we need to know exactly what the Judge and the Defendant's Solicitors have said about the unsigned disclosure statement".

This definitely cannot be shared in an open Forum which I think you will agree.

Your quote of ;

“Why did you not use the standard Court form N265 for your disclosure”

If I’m honest, I was naïve, all I had to go on was the internet and my determination, so you can shout at me if you wish, but to me it was a means to an end.

What will a defending Solicitor say to the late arrival of my new submission ?

 

Is there a CPR / Practice Direction that will allow me to do this ?

[Ganymede]

Nobody is shouting just wondering. You're doing well for as a LiP for a 4 day multi track claim.

 

Why have you not hired solicitors?

 

I think you can tell us what the judge has said about the unsigned documents without prejudicing yourself.

 

As Andy said, I think you just rely on your original list as long as all 134 documents are identical.

[scubatony]

Line One >>>Thanks for the compliment.

Line Two >>>PM sent.

Line Three >>>The judge would not accept it because it was not signed.

Line Four >>>If I start to tell you about line four, I would not feel comfortable till after the trial begins, then I will be to busy.

[Ganymede]

Just as a general point, the disclosure list is only for documents you or your own solicitors have in your possession or control, not the other side or their solicitors.

[scubatony]

Just as a general point, the disclosure list is only for documents you or your own solicitors have in your possession or control, not the other side or their solicitors.

 

This is the second go at this claim.

 

The first claim was for three items;

 

1. F.............
   
2. M........
   
3. B.........
   

With that I submitted accompanying documentation in a bundle that I intended to rely on.

 

Now the claim has been amended to;

 

1. T . . . . . . . . .
   

So it goes without saying that the time lapse between claims was a matter of hours, not days weeks or months, they will have the first set of documentation.

 

The above text will become clear reading together with my example as seen above.

 

Finally the Court has allowed my amended particulars of claim.

[Ganymede]

Just to clarify how it works.

 

You list all of your own documentary evidence you wish to rely on in your own list of disclosure.

 

The Defendant lists all of their own documents that they wish to rely on in their own list of disclosure.

 

Each party then reviews each others disclosure lists and they can then request copies of the listed documents from each other.

 

You do not list documents in your form that you suspect the other side has possession or control of. You only list documents in your own possession or control.

 

Does that make sense?

[scubatony]

Yes, to first paragraph.

 

Please re-read my earier missive at 09:14

[Ganymede]

If any requests are made for copies of your documents, regardless of what you think you may or may not have sent, you must comply and send copies to the Defendant. If there are a lot of pages for example you can charge a copying fee.

 

Back to your original question regarding a second disclosure list, as Andy said if the documents that you wish to rely on remain the same then I don't see why a further signed form is needed. (Regardless of location of the documents).

[scubatony]

If any requests are made for copies of your documents, regardless of what you think you may or may not have sent, you must comply and send copies to the Defendant. If there are a lot of pages for example you can charge a copying fee.

 

Back to your original question regarding a second disclosure list, as Andy said if the documents that you wish to rely on remain the same then I don't see why a further signed form is needed. (Regardless of location of the documents).

 

I will take the first paragraph in context

1. So I send a lever arch file of documentation weighing 2.456kgs and the defence say that they only received a certain amount of documents, which in reality amounts to some 35 pages of A4

2. So I send another lever arch file of documentation weighing a similar amount and the defence say that they only received a certain amount of documents.

3. So I send another lever arch file of documentation weighing a similar amount and the defence say that they only received a certain amount of documents

This can go on and on till somebody gets tired of not telling the truth.

Let’s look at things a different way, something that is there in black and white

Lever Arch file 380 grms

35 pages of documentation 172 grams

Now we will say that I don’t have a good quality Lever Arch file so I will make that up to 500grams

My A4 paper needs to be better quality instead I get better paper and that becomes double 172 = 400 grams yes I know I can’t add up

 

So we now have a brand new Lever Arch file at 500grams

Better heavier paper 35 pages 400 grams

Total 900 grams

Packing lets say 100grams

 

Lever Arch file 500

New paper 400

Packing 100

Total weight 1 kilogram

 

So I would say that the lady who works at the Post Office is either lying or mistaken with the Post Office receipt that she gave me, it was a receipt for 2.465kgs cost £12.98

The above weight and price is taken from the receipt of the Lever Arch file that the defendants solicitor say they they received, then went on to say they only received 35 pages.

I sincerely hope that the above makes sense

P.S I can't upload the Post Office receipt for personal reasons

+++++++++++++++++++++++++++++++++++++++++++++++++++++++++

Second paragraph

The difference between the two lists is seen below

http://snk.to/f-ctuio8mu

I am now going resubmit this second disclosure list only this time it will be signed

[scubatony]

To give you an idea of the what 1.465 kilograms weigh like

 

Jodie Henry 28 weeks Twin 1 was 1.292 kgs and Twin 2 1.465 kgs. They were born at 32 weeks

taken from https://www.facebook.com/AustralianMultipleBirthAssociation/posts/10151274643474983?stream_ref=5

Or

Notebook: Toshiba Satellite U920t-100 (Satellite U920t Series)

Processor: Intel Core i5 3317U

Graphics Adapter: Intel HD Graphics 4000

Display: 12.5 inch, 16:9, 1366x768 pixels, glossy: yes

Weight: 1.465kg

Taken from

http://www.notebookcheck.net/Toshiba-Satellite-U920t-100.85661.0.html

[Ganymede]

If you wish to resubmit your second disclosure form but this time signed then you should file with the court and serve the defendant.

 

Just bear in mind that the court may not allow it as you are out of time for doing so and you may have to consider making an application for relief from sanctions under CPR 3.9. Read up on the 'Mitchell Three' Court of Appeal judgment handed down last Friday. This is only a trivial breach and won't prejudice the Defendant so you may have a good chance, but you may also end up having to pay the Defendant's costs of the application so if you are in any doubt seek professional legal advice from a fully qualified and insured solicitor.

[scubatony]

If you wish to resubmit your second disclosure form but this time signed then you should file with the court and serve the defendant.

 

Just bear in mind that the court may not allow it as you are out of time for doing so and you may have to consider making an application for relief from sanctions under CPR 3.9. Read up on the 'Mitchell Three' Court of Appeal judgment handed down last Friday. This is only a trivial breach and won't prejudice the Defendant so you may have a good chance, but you may also end up having to pay the Defendant's costs of the application so if you are in any doubt seek professional legal advice from a fully qualified and insured solicitor.

Right having read your post and I have now read CPR 3.9 a,b,c,d,e,f,g,h and i.

I can also adhere to (2) as will be seen in Court.

So I will submit a double application in August

1 “Relief from sanctions” quoting one or more of the relevant a,b,c ,d,e, etc.

2 Re-submission of my disclosure number 2 , now signed.

I think the Mitchell case only bears a little resemblance, to my claim and I really don’t want to muddy the waters

[scubatony]

Edited July 11, 2014 by scubatony
please remove doubled up

[Ganymede]

Where are you reading the CPR from?

 

CPR 3.9 only has (1)(a) and (b) these days.

 

Mitchell is binding and applies across the board to all civil litigation where Directions have either been missed or not complied with.

[scubatony]

1. Where are you reading the CPR from?

 

CPR 3.9 only has (1)(a) and (b) these days.

 

Mitchell is binding and applies across the board to all civil litigation where Directions have either been missed or not complied with.

 

 

http://www.justice.gov.uk/courts/procedure-rules/civil/rules/part03#3.9

Relief from sanctions

3.9

(1) On an application for relief from any sanction imposed for a failure to comply with any rule, practice direction or court order, the court will consider all the circumstances of the case, so as to enable it to deal justly with the application, including the need –

(a) for litigation to be conducted efficiently and at proportionate cost; and

(b) to enforce compliance with rules, practice directions and orders.

(2) An application for relief must be supported by evidence.

Taken from the White Book 2013

Right having read your post and I have now read CPR 3.9 a,b,c,d,e,f,g,h and i.

I can also adhere to (2) as will be seen in Court.

So I will submit a double application in August

1 “Relief from sanctions” quoting one or more of the relevant a,b,c ,d,e, etc.

2 Re-submission of my disclosure number 2 , now signed.

CPR 3.9

a, no long in force (a) for litigation to be conducted efficiently and at proportionate cost; and

b,no longer in force (b) to enforce compliance with rules, practice directions and orders.

c,d,e,f,g,h,i. no longer in force

(2) An application for relief must be supported by evidence, which is still in the White Book 2013

 

 

Now I know

I used The White Book 2013 as a reference, what I will do before I go to Court anything that am going to use I will check to see the justice website and my copy are the same if not I will print it out.

The following is taken from the Mitchell Judgement and the salient points applicable to my claim are highlighted in bold and underlined

The Court of Appeal has upheld a first instance decision granting relief from sanctions despite the non-compliance being neither trivial nor for a good reason. (Chartwell v Fergies [2014] EWCA Civ 506)

Although this seems, at first glance, to be a departure from the tough post-Jackson case management regime, it remains in line with the principles set down in Mitchell. This decision shows that, although the two factors specified in CRP Part 3.9 will ‘usually’ prevail, there will be occasions where, given all the other circumstances involved, those factors carry less weight.

While the Court of Appeal endorsed the Mitchell message, it emphasised that in considering applications for relief from sanctions, the courts should also not see their sole objective as ‘a display of judicial musculature’—the aim of CPR 3.9 was to achieve a just result.

Practical implications

The tougher regime implemented by the April 2013 Jackson Reforms will inevitably require fine-tuning as it evolves to ensure the (amended) overriding objective is met. Although mandatory time limits in court orders may be too draconian, the laxity of recent years needed to be addressed.

The key, in this case, to the granting of relief was the accumulation of the circumstances, including: both parties were in default; the trial date would not need to be changed; there were no significant costs implications; and, crucially, a refusal would effectively have meant the end of the claim (note, however, this was not the sole reason for granting relief). Practitioners should therefore not see this as the courts’ resolve on Mitchell weakening. Rather, it may be seen as a logical progression of the CPR amendments with the overall message from the court remaining: parties and their solicitors must adhere to timetables and orders to avoid sanctions that will not be reversed lightly.

Facts

The claimant issued proceedings for commission allegedly owing following the sale of a property owned by the defendant. A court order was made that the parties should serve the statements of all witnesses of fact by simultaneous exchange on 22 November 2013. The order also indicated a trial window between March–May 2014.

The parties could not agree on disclosure, as reflected in much correspondence between them. The claimant contended that it required further disclosure from the defendant in order to finalise its witness statements. The defendant refused on the basis that the additional information was irrelevant. As it turned out, neither party served witness statements on the ordered date (and neither sought an extension from court).

Following further futile correspondence, the claimant issued an application for, amongst other things:

1. relief for the parties from sanction under CPR 3.9 for failure to exchange witness statements on time

2. alternatively that the parties have permission under CPR 32.10 to rely upon the evidence of those witnesses whose statements will have been served by a new proposed date

Consequence of failure to serve witness statement or summary

 

32.10 If a witness statement or a witness summary for use at trial is not served in respect of an intended witness within the time specified by the court, then the witness may not be called to give oral evidence unless the court gives permission.

 

 

The defendant opposed the applications. The first instance judge considered the breach was not trivial and nor was there good reason for it. However, he attached weight to the following facts in granting relief:

1. both parties were in default

2. the trial date could remain and there were no significant costs implications

3. if relief were not granted, it would certainly be fatal for the claim as the order related to all witness statements of fact (and CPR 32.10 provides that if there is breach of the time for serving a statement, the witness may not give oral evidence)

The defendant was granted permission to appeal.

Sanction under CPR 32.10

Davis LJ refused the appeal, finding the first instance judge had been entitled to decide the matter as he did.

A clear sanction is set down for failure to serve a witness statement in CPR 32.10, namely that the witness may not be called to give oral evidence (unless the court gives permission). This would effectively deny the claimant the opportunity of proving its case.

As the rules specify the sanction, there can be no argument that it is unjust or disproportionate. The sole question is therefore whether it should be disapplied on the facts of a particular case. The giving of permission by the court, notwithstanding the breach, is not open-ended but should be considered in the context of CPR 3.9.

The application of CPR 3.9 (relief from sanction)

The amended CPR 3.9 is one of the April 2013 Jackson Reforms designed to require greater observance by litigating parties (and their solicitors) of rules, practice directions and court orders. It is now the subject of the decision of the Court of Appeal in Mitchell, which is hugely important in adding flesh to the rule’s bones:

1. the court must consider whether the non-compliance was trivial

2. if it was not trivial, it must decide whether there was good reason

3. the promptness of any application for relief will be material

4. where non-compliance is not considered trivial, the expectation is that the factors mentioned in CPR 3.9(a) and CPR 3.9(b) will ‘usually trump other circumstances’ (and relief refused as a result)

5. the court ‘will not lightly interfere with a previous case management decision’

The cases of Durrant and Thevarajah also endorse this approach.

However, CPR 3.9 requires the court to consider ‘all the circumstances’ of a case. Mitchell enshrines the paramount importance of the two specific considerations in that rule, but does not make them exclusive to other factors. The fact the claimant’s claim would effectively be brought to an end were relief not granted could not be taken, on its own, as reason enough to grant the relief. However, it was, nevertheless, a compelling point of too severe a consequence when weighed up with all the circumstances and the procedural history of the matter.

This case is an unusual example of the two specific factors in CPR 3.9(a) and CPR 3.9(b) being trumped by all the other circumstances of the case. In relation to the Mitchell principles: even though the non-compliance was thought not to be trivial, nor to have good reason, the first instance judge was entitled to attribute importance to several other key factors which, combined, meant relief ought to be granted.

On a more general note, the case of Mitchell should not be viewed by the courts as a blunt tool with which they solely flex their judicial muscle in considering, and refusing, applications under CPR 3.9. The courts are there to protect the interests of litigants and the wider interests of justice and the outcomes of these applications should reflect that.

I am sorry for the "bold type face" and underling there is no facility to highlight

Edited July 11, 2014 by scubatony
altered

[Ganymede]

Please stop using the old version of the White Book as it is woefully out of date. Bin it and only use the online version of the CPR.

[Ganymede]

Also, if you intend on applying for relief then don't focus on Mitchell itelf, look at the "Mitchell Three" decision from last week...

 

http://lexisweb.co.uk/blog/dr/court-of-appeal-mitchell-appeals-allowed-and-welcome-guidance-provided-denton-decadent-and-utilise/

[scubatony]

What do I use when in Court !