Witness Statement

[NOCAB]

Hi, I hope someone with in depth knowledge of the law can help.

I have a hearing in early January (as the claimant), and in the most recently received courts directions, there is no provision for the defendant to provide a witness statement.

Both parties obviously previously submitted DQs, and the defendant has put 1, as have I, although the defendant is represented by his solicitor, which I presume is his count of 1.

The defendant's solicitor has written to the court to ask for the defendant's written witness statement to be allowed at the hearing, despite no provision for this being allowed for in the courts directions. Obviously the witness i.e. the actual defendant (he is represented by his solicitor) won't actually be there, or indeed won't be allowed to be there given his DQ submission and witness count is 1.

Despite the solicitor writing to the court to ask for this witness statement to be allowed, nothing further from the court to advise either way has been received, and the hearing is on the 02/01/2020.

Can I assume therefore that the witness statement will not be allowed, despite still being included in the defendants bundle, effectively against the directions of the court because the actual person i.e. the defendant won't be there or be allowed to be there to physically be addressed in relation to his statement?

Please note other aspects of the courts directions have also not been followed by the defendants solicitor, and I have combined each of these points in an N244 application which is now being heard on the same day as the small claim hearing and I have asked for the defence to be struck out due to the failure to follow the courts directions including this issue of the witness statement.

Any legal advise much appreciated.

[Manxman]

I presume this is not in relation to your back injury in the gym as I thought you had legal representation for that. Is this a different claim?

[NOCAB]

Yes different claim

[des8]

As it is allocated to small claims track it would be foolish to assume anything!
Judges have complete discretion as to what allow or disallow

[NOCAB]

I agree, but it seems the judge is (a) allowing my N244 and has cancelled the small claims hearing for nw but (b) in his new directions which are now retrospective to the reasons I raised my N244, he seems to be back tracking on the defendants solicitors failings and overriding the points which they failed to address. It very much seems like the judge has already made up his mind about my N244 before we have even had the hearing otherwise why raise overriding court directions that effectively supersede my N244 hearing content.

The Manchester Civil Justice service is shambolic and the judges are useless, this is the third time the judge has had to correct his orders, and they are still wrong!!!!!

[des8]

The solicitor will not be the defendant's witness.

If the witness is not present to provide oral evidence his written statement may be included as hearsay evidence (CPR 32 (5)

[NOCAB]

I understand that but there are 2 other elements of the previous directions that the defendant failed to address so aside from issues re provision of a witness statement he assumed at the time that his request to change the directions would be honoured. Nothing was received from the court prior to or post dates set in those directions until very recently so my N244 was raised on the basis that the directions were failed. The judge has now agreed to hear my application and has cancelled the small claim but at the same time issued overriding directions to those that were previously failed by the defendant which seems to already contradict my N244. The judge seems to be once again making it up as he goes along. Surely he should have heard the N244 and if successful there would be no need for the small claim hearing or if it failed then issue directions in regard to the small claim. By issuing both in the same court order the judge has apparently already made his decision without ever hearing the N244!!

[des8]

In these strange times the courts are always playing catch up, so it is not really all that surprising that both will be heard at the same time and the judge hopefully will deal with each as necessary.

Regarding keeping to directions I was recently involved in a case where both parties requested an extension of 5 weeks to comply with directions three weeks before deadline. The court's amendment agreeing to the request was received 10 days after the requested extension had expired!

[NOCAB]

Hi, The judge has cancelled the small claims hearing for now, and instead has agreed to hear the N244 application on the date that was set for the Small Claim, so we don't now have a date for the small claims hearing, assuming it is still required after my N244 hearing. I have asked for the defence and counter claim to be struck out as the defendant failed to follow the courts orders/directions, so despite their request to the court for those orders to be changed, my advise to the solicitor was not to assume anything would be changed and to act according to those directions until we were told otherwise. I appreciate the court maybe playing catch up in these unusual times, but making assumptions is surely unwise. My position is further confused by the fact that my N244 hearing has been agreed to be heard and was based on the defendant failing to follow court directions which nearly 2 months later a judge has now apparently addressed. It's not my fault that the judge messed up the orders in the first place, and that they are behind in their own processes, and facts are facts, so I am still confused as to the likely outcome of my N244 hearing and to why the court would hear this case if they did not believe it would have any chance of success. I have had to pay for this hearing which was based on the facts at the time, but because the court seems to be almost using Covid as an excuse these days, the situation for a simple case is becoming very confusing. Equally the court has not provided any court directions for any supporting bundle required for the N244 application, so I am not sure what to do or by when in this regard.