Small Claims remote hearing and eBundle

[pyrocluster]

I have a SCT hearing as the claimant coming up in August.

The timing is not great but my case has dragged on for years with intermittent stress and actions. The court has now set trial and given instructions for a 2 hour remote hearing over Skype.

They have asked parties to prepare an e-bundle to submit.
It is a bit tedious as I prepared to submit documents with an arched lever bundle. But also convenient as documents can be edited without printing.

The other side is a company but have not engaged solicitors. Does it mean each has to prepare their own?

I have collected all my docs in PDFs to build up an eBundle with index, statements, WS, evidence etc.

Looking at it again my WS has became a little lengthy and there is voluminous communication with the other side. Mainly because they stalled as far as they could. But rather than leave something out, I decided to include bookmarked exhibits and highlight points in my WS to make easier to read.

How much material is a judge really expected to read in SCT?

I also intend to ask costs on unreasonable behaviour from the other side. However there are privileged communications - save as to costs. How can I present these now?

Can they be added at the end of the ebundle marked as "without prejudice SAC"

Any advice about preparation, evidence etc for remote hearings would be much appreciated.

[pyrocluster]

I would really appreciate some urgent help on this.


I paid the trial fee and directions required parties to send bundles at least 48 hours before trial day to all parties email addresses.

After submitting my bundle the Defendant suddenly replied attaching an email to court from 2 weeks ago. They are asking to adjourn the hearing for a face to face hearing because they "feel more fair face to face and not comfortable with computers".

Somehow they did not deem necessary to CC me!

I had to arrange time off work and go through significant hustle and loss of time to prepare the paginated PDF bundle and bookmarks.

I find it extremely unfair they now have my evidence and WS without submitting anything new.

There is not new directions from Court on this matter yet. What are my options and can they really adjurn the hearing like this?

Also what about fees or penalties.

[R0b]

When is the trial supposed to be?

[pyrocluster]

It will be this coming Friday

[R0b]

You might be best emailing the Court and putting your side of events ahead of Friday and still prepare just in case the hearing does indeed go ahead. I assume that a local court is dealing with your case and therefore you should be able to find an email address on the Court Finder (https://courttribunalfinder.service....search/address). In the subject line you should mark it as urgent, something like the following format below where the square brackets is the information you need to complete.

Subject line: Urgent - Hearing date Friday 14 August at [time] [Claimant name] v [defendant name] (Claim No. [insert])

In terms of the contents of the email, you should think about covering the following:

1. You have only just received an email from the defendant on X date (which the claimant sent two weeks ago to the court) requesting an adjournment on the basis that the defendant is not comfortable with computers. You should think about reasons why you object to the adjournment.

2. I think you should definitely make reference to CPR 39.8 which states that any communications made to the court by one party, must also copy in the other party. The fact that the defendant sent these communications by email two weeks ago and failed to copy you in, is not acceptable and is unfashionably late and too close to the hearing. You can see the provisions of CPR 39.8 here

3. You could also object to the adjournment on the basis that any adjournment must be made by application with supporting evidence and not by informal means, such as email. Also, you may want to reiterate that you have been made aware of this request less than 48 hours before the hearing is due to take place. The court will normally give advance notice of any hearing and that can sometimes be at least a month or two. If this was the case for you, it might be worth mentioning that because then you can question why the defendant has left it so late when she was given more than adequate notice.

4. Maybe think about covering the point around your submission of the ebundle meaning an adjournment is likely to prejudice you because you have already filed your bundle, but the defendant has not or at least you have not received it. This puts the defendant at an advantage since they have a copy of your bundle and will therefore have more time to prepare whereas you having nothing from her.

5. Round off by saying you object to the adjournment for reasons mentioned in your email and would ask that the court proceed with the hearing on Friday, or alternatively, if the Court thinks fit that the hearing should be adjourned, then request that a costs order be made against the defendant (maybe file a costs schedule for prepartion time etc.) and possibly further directions such as an unless order that the defendant file the ebundle within 7 days otherwise she cannot rely on any evidence.

If you want to draft something and post it up for comment, happy to have a look at it.

P.s. make sure you copy the defendant in your email!

[pyrocluster]

Thank you for all the points!

I actually sent out a brief communication to the Court before your post but along those lines.

I attached the notice of Trial Date from April on the email and pointed out the Defendant had plenty of time to raise matters.
I didn't know CPR 39.8 specifically (god the endless CPR) but I did mention they did not CC me in to this communication and now turn up 48hrs before trial, after my bundle submission.

I also wrote that I have not received an application from the court. I hope it doesn't turn in post a day before trial. I had to put a lot of mental effort to prepare and slept late for days to complete the pdf bundle.

The Defendant is a company and certainly has resources to get help for a web link to business skype. They say trial will not be fair if not face to face. I'm not sure risking Covid for SCT is a good argument on their end.

The case is SCT for breach of contract in building works that turned into fast-track style in my head. They have a vexatious counterclaim and it has dragged on for 2 years with interim Part 18 hearing from my end. So I am wary of having to do more applications as court takes ages to respond and send orders. All the better for them to keep kicking the can.

A side question I have, we had WPSAC communications and obviously I did not include in the bundle. I have no idea if I can read out at costs or email instantly to the judge during costs. Also I want to claim on unreasonable conduct any thoughts on how it should be done in remote hearing?

I will certainly draft something formal with your points to send objections to court tomorrow and flag my costs. It is extremely unfair if they can get away serving nothing and take advantage.

[pyrocluster]

Just realised I forgot to copy in the other side by mistake, can I reply again and CC them to mention it is for their records?

edit: I think it's not an issue as I'm asking the court to clarify what is happening with the hearing date.

Tomorrow I will respond with more formal points and set out reasons for objecting CC'ing all parties. But it may be worth seeing what court says first as the hearing may well go ahead.

[R0b]

Yes, suggest you read CPR 39.9 it says what you should do.

You can't include WPSAC comms in your bundle, that would prejudice the case and the judge would need to excuse themself and order a new judge to hear the case, costs likely at your expense. I would leave unreasonable conduct til last, because if you lose and costs are awarded you can ask the court to make no order for costs or reduce the costs order based on their conduct. At the end of the hearing, you can say something like "Sir/Madam, there is one final point to be addressed and that is the issue of costs"

Simply saying that a trial other than in person is not fair will need to be justified and evidenced. Come to think of it, I believe the courts are adding to the order that if either party does not think a remote hearing is necessary then they can make an application to request alternative means or something to that effect.

[pyrocluster]

Yes, suggest you read CPR 39.9 it says what you should do.

Is this a "yes" as in I must CC the other side asap?
I'm only asking because the email is more procedural and does not address the adjourning objection details properly.

Come to think of it, I believe the courts are adding to the order that if either party does not think a remote hearing is necessary then they can make an application to request alternative means or something to that effect.

I couldn't comprehend the last part well. By necessary do you mean it would be in writing but not necessarily in person?

[R0b]

I can't answer because I don't know the contents of your email, but CPR 39.8 says this

(1) Any communication between a party to proceedings and the court must be disclosed to, and if in writing (whether in paper or electronic format), copied to, the other party or parties or their representatives.

(2) Paragraph (1) applies to any communication in which any representation is made to the court on a matter of substance or procedure but does not apply to communications that are purely routine, uncontentious and administrative.

Sorry I didn't mean to say necessary, I meant appropriate. So in a recent dispute I was involved in, the court said the parties have to write submissions on whether a remote hearing via Skype or telephone or in person is appropriate and reasons for their preferred choice over the other. There has been some recent decisions around remote hearings and asking for in person hearings instead. The courts have said that the onus is on the party wanting an alternative method should make an application and supporting evidence.

IF you go back through your recent orders from the court, you might find something similarly worded.

[pyrocluster]

Here is a quick draft based on your points above, (quick feedback would be greatly appreciated)



Dear Court Manager

Further to my trial bundle submission, I would like to raise my objection with regards to the Defendant's email to adjourn the trial.


1. I received an email from the Defendant on 12/8 just 48hrs before the hearing (sent to Court on 30 July 2020) requesting an adjournment on the basis it does not feel a remote trial is fair and is not happy to use electronic equipment. I believe these are not valid reasons to adjourn the hearing. The Defendant should justify why they believe a remote trial is not fair with evidence. Also due to Covid-19 I am not comfortable attending a personal hearing and this would delay resolving proceedings further since the claim was filed 2 years ago to seek remedy.

2. The Defendant communications made to the Court must copy in the other party as per CPR39.8. The Defendant sent an important communication by email two weeks ago but failed to copy myself in, it is not acceptable and too close to the hearing.

3. Adjournment should be made by application with supporting evidence and not by informal means such as email. I wish to reiterate that I have been made aware of this request less than 48 hours before the hearing. The Notice of Trial was issued on 4 April 2020 explaining the scope of a remote hearing taking place due to covid19 (attached). There was sufficient time for the Defendant to prepare or give notice to the Court and other parties.

4. Further I have now submitted my PDF Bundle and Witness Statements to the Defendant as per the Court directions in Trial Notice dated 21 July 2020. An adjournment would place the Defendant at an advantage since they have a copy of my Bundle and have not submitted a Bundle or Witness Statements to my knowledge.

5. For all the above reasons I object to the adjournment and would ask that the Court proceed with the hearing on Friday 14/8. Alternatively, if the Court believes the hearing should be adjourned, I request that a costs order be made against the Defendant for my trial fee and preparation time. Also the Court should order the Defendant to file their Bundle within 7 days otherwise they should not be able rely on any additional evidence not disclosed at this point.

edit: I have now sent this out due to the proximity to the trial, just to make sure my position is registered.

Hopefully I haven't said anything that would put me in disadvantage.

And it is CC'd to the other party!

[R0b]

Looks ok, but you should explicitly mention that you are copying in the defendant at the end of the email. If you can, you should provide a costs estimate in paragraph 5. You can use the wording below as guidance.

... I request that a costs order be made against the Defendant summarily assessed at £XXX.XX. These costs are based on £XXX.XX for trial fee and £XXX.XX relating to the time spent preparing for the forthcoming hearing, at a rate of £19 per hour pursuant to the The Litigants in Person (Costs and Expenses) Act 1975 (as amended) and CPR 46.5 and PD 46.3.4.

Don't think you'll get the trial fee back because if adjourned, there will be another trial anyway, but if you want to include it then your choice.

[pyrocluster]

Looks ok, but you should explicitly mention that you are copying in the defendant at the end of the email.

Thank you. I should have but it's a bit late. It was a response directly to the Defendant's email trail with the Court thread. Hopefully Court is not too pedantic with a LiP ...

I just hope it's not adjourned. I want this over with because it has lasted too long and takes time away from important things. The other side did not want to settle for any amount.

[pyrocluster]

I received no communications back from the Court or the Defendant.

Also nothing in the post, so I must assume the Hearing is going ahead.

I have had to book time off work for the Hearing tomorrow, so it will not be acceptable if they adjourn tomorrow as this will be a lost day for me.

[pyrocluster]

This is getting out of hand.

The Def has now sent a reply to each paragraph stating they want to adjourn for health reasons and what not.

Then say court directions state they should "email" court if the can't attend remote hearing and they don't know anything about applications.

Last they say the bundle is too big, 100 pages, but of course the bundle contains their statements of case and voluminous emails they created over 5 months. They already submitted these at an interim hearing 7 months ago. Also contains expert report they have had in their hands for 2 years! (with my PoC)

Of course it is just there to reference if needed in court, you do not need to read every single one but I would not go at a hearing and tell the judge the evidence to back my WS is not there.

The only extra docs in bundle are my WS 10 pages and 22 photos on A4 pages. The rest is pretty much documents they already have in their possession.

I worked my socks off to paginate and index with digital bookmarks and links to every exhibit. They now argue they don't have time to read it and want to adjourn 12 months and will be counterclaiming for the time. This is SCT for £3.5k and is getting ridiculous, the Defendant filed a vexatious CC for £13k loss of business time. Even the judge who allocated the case had probably realised it and put it under SCT.

The court directions were to submit ebundles at least 48hrs before. The Def made no contact whatsoever since March. Can they really adjourn a hearing with such arguments?