Application Hearings - preparation, evidence questions

[DeMycroft]

Hi,

I have an ongoing SCT claim against a Ltd for getting bespoke product dimensions wrong at my house. I will skip painful details as we exhausted all means to settle for months.

I recently received a court letter for two "Application Hearings" that will take place on the same day next year. The hearing of the case is not set yet, court has been extremely slow.

Applications were made via N244,

1. the first one is asking permission to admit a survey we carried out as a last resort, an independent assessment to which the company did not agree or participate. I was advised to seek permission as it forms expert evidence in SCT (CPR 35.4). The court require that it was done through N244.

2. The second application came about due to a counterclaim made by the company. There is absolutely no legal basis for the CC but it was not even supported by any documents. At the time I had a phone consultation and was advised by solicitor to file request for information, CPR P18 subject to discretion from the court. I filed an Order to request the documents that substantiate the CC or strike out. I followed some example on this forum.

To add, I did not apply for a hearing in the first place for either application, it appears the DJ deems it was necessary?

I am not entirely sure about the process, the court wrote to say both claimant and defendant are invited to the Application Hearing and evidence to be submitted at latest 14 days before.

At this point I am trying to decide what evidence is needed to be served the defendant before the hearing. All documents were served to them in the past, is there a requirement to resend if longer than 6months ago?

Any advice for above hearings would be most welcome.

[DeMycroft]

The witness statements were made in a succinct and meaningful way to support the application to the Judge reviewing them.
However due to the court setting up a hearing, it is my understanding that I would have to submit Witness Statements to the defendants at latest 14 days prior to the hearing?

In this case, I would be inclined to add further information e.g that the Defendant did not cooperate when proposing an independent survey. But this would be complimented by my Particulars Of Claim which has also been served.

I read before that evidence needs to be resubmitted after a period of time has lapsed since it was last submitted? Is this correct?

I want to avoid being caught with any technicalities for evidence served prior to a hearing, but also, not to send large volumes of evidence out again.

[jaguarsuk]

The witness statements were made in a succinct and meaningful way to support the application to the Judge reviewing them.
However due to the court setting up a hearing, it is my understanding that I would have to submit Witness Statements to the defendants at latest 14 days prior to the hearing?

In this case, I would be inclined to add further information e.g that the Defendant did not cooperate when proposing an independent survey. But this would be complimented by my Particulars Of Claim which has also been served.

I read before that evidence needs to be resubmitted after a period of time has lapsed since it was last submitted? Is this correct?

I want to avoid being caught with any technicalities for evidence served prior to a hearing, but also, not to send large volumes of evidence out again.

These are not hearings for the claim, so the only evidence to submit would be in support of the application. You'll need to submit a copy of the report and the other party refusing to agree to an expert witness report along with a witness statement in support of your first application.

In support of the second you simply need to submit a witness statement.

What did you put in the reply to defence and counterclaim without any evidence?

[DeMycroft]

These are not hearings for the claim, so the only evidence to submit would be in support of the application.

Thank you, this is my understanding as well. I just find it confusing that the case revolves around the applications, in a way that a judge could move further into evidence, e.g the report is based on the evidence, communications etc. Is it reasonable to say that we only need to discuss the admissibility of the report, how the scope and conclusions will assist the court to resolve proceedings sooner?

You'll need to submit a copy of the report and the other party refusing to agree to an expert witness report along with a witness statement in support of your first application.

The report and Witness statement were submitted to court together with the application. They asked for N244 but not a hearing in the letter. In which case my Witness Statement focuses on the scope of the report, rather than pre-action issues, better detailed in my Particulars.

How can I add these details for the hearing now? Could I just simply submit my Particulars of Claim and the LBA with the Defendant's reply as part of the "evidence" for the hearing?

In support of the second you simply need to submit a witness statement.

This is also submitted with a Draft Order to oblige the Defendant to served the disclosed documents in their Defence and CC.

What did you put in the reply to defence and counterclaim without any evidence?

I only filed a response to the Counterclaim (reply to Defence left to be done at disclosure). The case was still at MCOL and the CC fee box was pending when served. I gathered this was a tactic to intimidate for withdrawing the claim, they then paid the fee the case was transferred. Since Part 20 applied, I responded within 14 days to avoid risk of judgement in default,

"The sum counterclaimed by the Defendant/Part 20 Claimant is denied. The figure of £XX,XXX is unsubstantiated and vexatious and the Claimant/Part 20 Defendant challenges the Defendant/Part 20 Claimant to detail the costs claimed for 'loss of business time and correspondence'. Further the counterclaim enclosed no statements of case or a schedule of costs quantifying the losses claimed by the Defendant/Part 20 Claimant. As such they are required to be put to strict proof to disclose and evidence their losses. The Defendant is unable to plead a response in the absence of any particulars of the allegation. It is denied that the Defendant has suffered any loss/costs at all."

[DeMycroft]

Thank you, this is my understanding as well. I just find it confusing that the case revolves around the applications, in a way that a judge could move further into evidence, e.g the report is based on the evidence, communications etc. Is it reasonable to say that we only need to discuss the admissibility of the report, how the scope and conclusions will assist the court to resolve proceedings sooner?



The report and Witness statement were submitted to court together with the application. They asked for N244 but not a hearing in the letter. In which case my Witness Statement focuses on the scope of the report, rather than pre-action issues, better detailed in my Particulars.

How can I add these details for the hearing now? Could I just simply submit my Particulars of Claim and the LBA with the Defendant's reply as part of the "evidence" for the hearing?



This is also submitted with a Draft Order to oblige the Defendant to served the disclosed documents in their Defence and CC.

I would really appreciate some help on the highlighted. Witness statements were submitted with the applications but they were not hearing applications.

Also, can the defendant bring a solicitor or expert during the application hearing? I imagine this would have somehow be preceded by evidence before the hearing.

[jaguarsuk]

You could submit a supplementary Witness Statement, but your PoC are already part of the claim, so submitting them again would be pointless. The LBA would only need to be evidenced if the other party were asking for costs because you haven't followed procedure.

Yes the defendant can be represented by a solicitor and if he files an expert report prior to the hearing he could potentially call that expert to give evidence.

You may also question his expert pursuant to CPR 35

[DeMycroft]

You could submit a supplementary Witness Statement, but your PoC are already part of the claim, so submitting them again would be pointless. The LBA would only need to be evidenced if the other party were asking for costs because you haven't followed procedure.

Ok, so the PoC can be brought up during the hearing. It is actually the Defendant's response to the LBA that I want to present, entirely refusing to cooperate with evidence or an independent survey. I want to connect this with the report now that we have a hearing.
Would it suffice adding another paragraph to existing WS and submit to court and Def before hearing, or does it have to be added as separate WS?

Yes the defendant can be represented by a solicitor and if he files an expert report prior to the hearing he could potentially call that expert to give evidence.

You may also question his expert pursuant to CPR 35

It seems the application hearings do not follow the case hearings where witness lists are required prior to the hearing? At least I was not asked for one.

I always found CPR35 a bit confusing, like a chicken and egg situation. I understand the Small Claims track restricts evidence and experts and permission from the DJ is required for admission. From what I gather, experts are rarely allowed as witnesses to a hearing due to the costs limitation. Wouldn't the court first need to approve such experts in order to be able to come to a hearing or receive questions under CPR35?

[jaguarsuk]

Ok, so the PoC can be brought up during the hearing. It is actually the Defendant's response to the LBA that I want to present, entirely refusing to cooperate with evidence or an independent survey. I want to connect this with the report now that we have a hearing.
Would it suffice adding another paragraph to existing WS and submit to court and Def before hearing, or does it have to be added as separate WS?

Only if you make it clear you are submitting an Amended Witness Statement and you should seek the permission of the other side to do so first, but I hardly think they'll agree. You would then have to ask the court if they'll allow you to amend your Witness Statement.

In future you should file a full Witness Statement to begin with, especially if you wish the matter to be without a hearing as what is written is all a judge will see. You're actually lucky it's gone to a hearing to be able to add this and not just been decided on paper.

The other option is to just argue the point in court and raise that the other party refused, then when they deny refusing say you have evidence if the court will allow it.

It seems the application hearings do not follow the case hearings where witness lists are required prior to the hearing? At least I was not asked for one.

No hearing will list witnesses unless the parties make it clear they intend to call them. Usually a written statement is sufficient in civil proceedings.

I always found CPR35 a bit confusing, like a chicken and egg situation. I understand the Small Claims track restricts evidence and experts and permission from the DJ is required for admission. From what I gather, experts are rarely allowed as witnesses to a hearing due to the costs limitation. Wouldn't the court first need to approve such experts in order to be able to come to a hearing or receive questions under CPR35?

No, he's not submitting a jointly agreed and therefore independent report, he's submitting his own to support his position. You may challenge the report in the same way you would challenge any other expert with questions under CPR 35, but should focus on the impartiality of the report he has submitted, much in the way his solicitor is going to focus on the impartiality of your report.

[DeMycroft]

Thanks for all the points!

I wanted to add the Defendant made no communications since the counterclaim was filed about a year ago.

but I hardly think they'll agree. You would then have to ask the court if they'll allow you to amend your Witness Statement.

The other option is to just argue the point in court and raise that the other party refused, then when they deny refusing say you have evidence if the court will allow it.

There was a lengthy pre-action followed on my side before that point, the fact being that I offered options to a survey and they turned it all down.

It is unlikely they will communicate or approve anything, they did not bother to write back after the CPR18 request.

Would you recommend lodging in a supplemental WS with the existing one before the hearing anyway, or just take their response along to present with the Judge's permission?

The applications are originally only sent to the court. The report was served with the PoC to the Defendant.

No hearing will list witnesses unless the parties make it clear they intend to call them. Usually a written statement is sufficient in civil proceedings.

So we will know prior to the hearing? Does this also apply to an expert as a witness in person in this case?

No, he's not submitting a jointly agreed and therefore independent report, he's submitting his own to support his position. You may challenge the report in the same way you would challenge any other expert with questions under CPR 35, but should focus on the impartiality of the report he has submitted, much in the way his solicitor is going to focus on the impartiality of your report.

In terms of the above CPR35 questions, is this something you submit to the court after the hearing, having prior read the report?

I need to clarify that the expert was a pre-action instruction on my side and I bear the costs. The Defendant refused and I needed a survey to rely on for the claim.

I don't imagine the court will allow experts in person during the application hearing. I thought the hearing is to decide if reports would be allowed and then allow questions.

At least for my case, this is SCT under 10k and I will be representing myself. The expert would cost a fortune per hour/travel costs and not offer anything not already on the report. It is pretty much a survey, all other facts are part of the evidence of the case that he just summarised. The report is a last resort, as the Judge would not practically be able to measure the product to assess the facts.

[DeMycroft]

Also, please let me know of your thoughts on #4, response to the Counterclaim. I was advised to file the latter CPR18 subject to CPR27.2(f) on that basis.

[DeMycroft]

Any further thoughts on the Counterclaim post and, whether to supplement additional evidence or challenge the point during hearing. Would be much appreciated!

[DeMycroft]

Assuming court will not give permission. I note that my PoC already contains as "statements of case" a clear mention to the issues I want to include above.

The question is, can I rely on my PoC to include evidence that is mentioned there or does it have to be expressly stated in a Witness Statement and referred to as 'exhibit' to present at the application hearing?

It is just that when you are a litigant in person without prior experience in court and CPR, some details are a little confusing but important.

[DeMycroft]

Hi,

Would greatly appreciate some help as timing/details might be important.

To simplify questions above,

1. Do I need to resend the survey report as evidence before the hearing to the Defendants? I sent it one year ago, with PoC and proof of service.

2. I have not heard from court, would it be prudent to take all evidence relating to the case at the hearing i.e in case judge asks to elaborate or want to see/allow evidence

3. should I expect expert report costs to be discussed at the application hearing or at the end of the case trial

any help would be much appreciated!

[DeMycroft]

I called the court regarding supplemental witness statement and they said it is permitted as long as it is filed and also served to Defendant 14 days before the hearing. I don't have this in writing however.

My application was "without hearing" for the court to serve an Order to the Defendant. If I understand correctly the court would be serving the Order.
The court decided however to arrange a hearing and in response to my letter about "what/when" they said WS to be served to the other party 14 days before the hearing at latest.

I don't know if the other party received the letter for the hearing and copies of my applications from the court. It is my understanding that I will be serving WS to them 14 days before hearing but how are they supposed to serve WS at the same time if they don't have copies of the application itself?

[DeMycroft]

Hi jaguarsuk Amethyst* I am just a week away from the Application Hearings and would really appreciate some help please!
I filed and served Witness Statements to Court and Defendant respectively on the same date, "deemed" served 2 days before the 14 day period set in the court's letter.
It appears the Defendant's company was closed until 2nd January, then they immediately posted an entire pack of documents, served to me 3 days late into the 14 day period. The hearing is on 14th Jan 2020, the documents are stamped 2nd Jan and arrived 3rd Jan.

I have very limited time now to address all this pack, which would normally be sent for the Case hearing really. I will add posts below with points and numbers for easier reading.
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The pack does not have Witness Statements just material that appears to be from their original Defence. It seems to contain the case content in a bundle. I am not sure if they understand the scope of the hearings or they plan to bring up the entire case at the application hearing. What is in there,

• Court docs - e.g claim, Defence/Counterclaim
• Defence statements but NOT addressing the PoC statements
• Letter addressing the court manager
• Email communications
• Counter Claim, an A4 listing figures e.g court attendance/day £250, time for writing emails £1400 and 'loss of sales time' £10,000k(made up)
• Drawings of their surveyor for the product they never disclosed before (see 4. below)

I need to go through material in more detail but at first glance there are issues,
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