HSBC missed the deadline of witness statement

[sharburrys]

Dear all

 

I took 3 court actions against hsbc based on BCOBS unfair treatment and breach of data protection act as well as breach of contract

 

The deadline of the witness statements was on 17th July which I (claimant) provided them within the deadline

 

I received a letter on 19th July dated on 17th asking me by CPR 3.8 extension of this deadline

 

I gathered some information on the internet and this website and responded to them the following (as I did not want to be seen who is not co-operating but at the same time I don't want to allow them to get away with their mistake as thee is no valid reason given)

 

"The claimant may wish to not oppose your request of extension however at the time that claimant received your request (19th July) the deadline had already expired. According to the claimant's interpretation of CPR; 3.8 (as you mentioned in your letter) might have not been effective in our current position unless the court were persuaded therefore any extension is a matter for the court at this stage"

 

So they ignored this part of the letter and they provided their statements and last one I received yesterday, the court is on 31st July

 

So far they have not filed any application to the court

 

What do you recommend? Shall I provide these correspondence to the court?

 

Regards

[citizenB]

I will ask andyorch what he would suggest.

[citizenB]

Here you go.

 

 

CPR 3.8 (4) Sanctions have effect unless defaulting party obtains relief

 

the time for doing the act in question may not be extended by agreement between the parties except as provided in paragraph (4).

 

(4) In the circumstances referred to in paragraph (3) and unless the court orders otherwise, the time for doing the act in question may be extended by prior written agreement of the parties for up to a maximum of 28 days, provided always that any such extension does not put at risk any hearing date.

 

Irrespective they were late and only requested after the date...they are therefore in default of the courts directions which is sanctionable.

 

The correct approach would be to vary the directions (dates) on receipt of the Notice of Allocation with the court on application.

[sharburrys]

To be honest Citizen I have the same interpretation of this particular part of CPR 3.8

 

There is a case referenced below

 

MA A Lloyd & Sons Ltd v PPC International Ltd [2014] EWHC 41 (QB)

 

Had a similar problem and even though parties agreed to extend the time the court overruled and even the DJ's words were:

 

The Judge in Lloyd said that one possible interpretation of CPR r.32.10 is that the party in default is not permitted to call the intended witness to give oral evidence on any matter unless the court gives permission – even if the witness statement not served in time only relates to a distinct part of the evidence relied upon. The Judge left the point open for a future decision (para 17).

 

So what is next? Can I request the councillor (their barrister) to be asked to leave the court room on the day?

 

Regards

[Andyorch]

No but you can stress that sanction should be applied and their WS is inadmissible.You cant stop them giving oral evidence.

 

Regards

 

Andy

[sharburrys]

Thanks Andy I will, if the DJ accepts their WS, can I request the case to be adjourned with the defendant covering the daily cost of us being off from work?

 

Also these cases are so vital and in the event of us winning, it will open the doors to so many consumers

 

Would you be interested in the details of the case?

Kind regards

[Andyorch]

By all means sharburrys...please PM me when you have time.

[sharburrys]

Thanks Andy

 

I PMed you with the details but what would you recommend

 

Shall I provide the latest correspondence between us and HSBC to the court with a covering letter as an update or wait for HSBC to do?

 

So far no documents showing the application to the court given to me by the defendant? Do you think they will try their luck with ignoring or am I not supposed to be given a copy if they applied for an extension?

 

I am a bit worried about the court may not be able to see?

 

Regards

[Andyorch]

I have not had chance to read your PM yet ...give me time to consider and ill get back to you over the weekend.

 

Regards

 

Andy

[sharburrys]

Hi Andy any chance to have a look at the case

 

Regards

[Andyorch]

It will be tomorrow Sharb....chaotic weekend.

[Andyorch]

Hi Sharb

 

Without really going through the details of your claims...purely on the court process and civil procedure rules......you simply inform the court on the day that the defendant has failed to adhere to the directions...approached you rather than the court to seek permission to extend...all after the relevant date stipulated and therefore you request the court to either apply sanctions or at the very least order their written evidence be in admissible and disregarded.

 

If they court disagrees then request an adjournment to consider...adjournments effect both parties costs wise so yours would be considered should your claims succeed ie costs in the case.

 

The bottom line is how would this WS impact on your claim should it be allowed ? If irrelevant then no need to adjourn...if devastating then push for an adjournment to consider and respond and tighten any argument.

 

Regards

 

Andy

[sharburrys]

Thanks Andy you are great, I will definitely update you guys after Thursday

 

Can I also please invite you to my other thread called

 

"A classic admiral ploy"

Regards

[sharburrys]

What a SHAMBOLIC case!!!!! Unbelievable....

 

Today we have been to the court, bearing in mind we have not received the defendants WS so far, apart from their request for time extension on 17th July....

 

1- DJ accepted the defendants WS, based on "the case being in small claims tracking" (woooooww no valid reason was provided by the defendant why they would like to request this extension)

2- all 3 witness statements for 3 cases which were sent on 10th, 11th and 12th July separately (by special delivery) SOMEHOW(?) have been taken out of the file and the DJ was given an empty file and he asked where was our WS? (However hsbc's statements which we provided according to them on 21st July- 10 days after ours were in front of the DJ) -!!!!!!! Magic.... Sometimes we must believe in the Gods magical power, nothing is impossible !!!!!!!

3- we have just managed to adjourn the case...... However barrister who was sent by our big HSBC (sorry HSBC the GREAT) was not happy and asked the judge "if we can finalise these 3 cases today if we provide a copy of the WS to the claimant and the claimant can have a 15mins break" wooooooooowww wooowwww wooooowww again..... What a lot of b....cks he was talking...

 

only 1 word that I can use.... UNBELIEVABLE!!!!!!!

 

As being the financial analyst here is the probability of all 3 above being "coincidence "

 

According to the royal mails statistics the rate of success in delivering special deliveries is 99%

So 1% chance of the claimants WS failure of delivery to the court and they are all sent separately and none of them was in front of the judge

So 1% x 1% x1% = 0.0001% chance of not being delivered(knowing that they are all delivered as the tracking number shows)

 

Human error: 50-50 chance they were put into the file or not put into the file

50% x 0.0001% = 0.0000005 chance of these whole scenario happening

 

Like I said nothing is impossible in this world,

 

I hope no one gets me wrong, I am not speculating or creating conspiracy theories.... This is how it is calculated mathematically....

 

What do you think Andy shall I have a lottery ticket today? I have similar chance to win with above?

 

Regards

[sharburrys]

Which was provided***** number 2 above

[sharburrys]

Michelle you can make a comment if you wish to you might be familiar witness case??

[sharburrys]

With the case**

[sharburrys]

Hi Andy

 

 

The case is now adjourned to October 2014

 

 

Also I still don't understand how can

 

 

1- DJ accept HSBC's defence eventhough it was late and the claimant even has not been given a copy until the court day

according to the DJ it is a small claims so it is acceptable; are the rules different between small claims and fast track??

2- how come our WS were not in the folder??

 

 

Do you think whether these are only co-incident?

[citizenB]

I agree, it does seem rather unfair that they are being given so much leeway - had the positions been reversed of course and it had been you then I doubt there would have been so much tolerance !

[sharburrys]

I know

 

 

the barrister that HSBC sent to the court was very agitated and wanted to finalise the case without adjournment and he seemed that he knew what would happen and his words were

 

 

"I believe that we can still carry on the cases based on the T&Cs and the claimants allegations"

 

 

Now I repeatedly asked the Judge what was his decision of accepting the extension based on and what part of the CPR? I gave him 3 example case with breaching of CPR32, cpr 3.8 and cpr3.9

and I also asked

the defendant (HSBC) has not given any valid reason why the court or the claimant to be persuaded with the extension and I carried on the claimant can not see any merit of accepting this request?

 

 

Regards