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I have a hearing due in a few weeks in relation to an application I have made to set aside a claimant's notice of discontinuance under CPR 38.4, for the purpose of claimaing costs under CPR27.14(g) (i.e. costs in the small claims tract for unreasonable behaviour).
One of the arguments I have made in my witness statement is that the claimant was aware from the start that they had a weak case and never had any intention of going to a hearing, yet waited until the last minute to pull out. The claimant's legal representatives provided their own witness statement in response which set out the circumstances in which they decided to withdraw the claim. In their witness statement, the legal representitive stated that they had a strong case against me and discontinued purely to minimise both parties costs.
Fast forward to now (a few weeks before the hearing) and the claimant's legal reps have served some additonal documents on me. As part of these documents, they have (intentionally) included the case history from their side, with privilidged content redacted. However, they have failed to redact a line which is a summary of the discussion they had with their client (the claimant) on the date the notice of discontinuance was served - the line is crossed out with black ink but the writing is clearly legible underneath. The line states that they (the claimant's legal representitive) has advised the claimant that they have a weak case and the judge is likely to side in my (i.e. the defendant's favour) and therefore they are advising the claimant to settle or withdraw.
Essentially it appears the claimant's legal reps have filed a witness statement containing a statement they either knew or ought to have known was false. However, I presume such communication is privilidged and I therefore couldn't normally rely on it. CPR 31.20 does say however that you can request permission to rely upon/use privilidged documents.
I am therefore looking for some advice on what I can do in this situation. It's highly relevant because a lot of stuff in mine and the legal rep's witness statements is he said / she said, so a lot comes down to who is more credible. But can I bring this to the attention of the judge and ask for permission to rely upon it? If so, how would I go about this - would I file a witness statement referencing it and requesting permission, or would I have to wait until the hearing to ask the judge?
High level summary - claimant's solicitor appears (as far as I can see) to have slam dunk lied under oath, but the evidence is legally privilidged so I am not sure if I can attempt to rely on it. I am not sure what to do.
One of the arguments I have made in my witness statement is that the claimant was aware from the start that they had a weak case and never had any intention of going to a hearing, yet waited until the last minute to pull out. The claimant's legal representatives provided their own witness statement in response which set out the circumstances in which they decided to withdraw the claim. In their witness statement, the legal representitive stated that they had a strong case against me and discontinued purely to minimise both parties costs.
Fast forward to now (a few weeks before the hearing) and the claimant's legal reps have served some additonal documents on me. As part of these documents, they have (intentionally) included the case history from their side, with privilidged content redacted. However, they have failed to redact a line which is a summary of the discussion they had with their client (the claimant) on the date the notice of discontinuance was served - the line is crossed out with black ink but the writing is clearly legible underneath. The line states that they (the claimant's legal representitive) has advised the claimant that they have a weak case and the judge is likely to side in my (i.e. the defendant's favour) and therefore they are advising the claimant to settle or withdraw.
Essentially it appears the claimant's legal reps have filed a witness statement containing a statement they either knew or ought to have known was false. However, I presume such communication is privilidged and I therefore couldn't normally rely on it. CPR 31.20 does say however that you can request permission to rely upon/use privilidged documents.
I am therefore looking for some advice on what I can do in this situation. It's highly relevant because a lot of stuff in mine and the legal rep's witness statements is he said / she said, so a lot comes down to who is more credible. But can I bring this to the attention of the judge and ask for permission to rely upon it? If so, how would I go about this - would I file a witness statement referencing it and requesting permission, or would I have to wait until the hearing to ask the judge?
High level summary - claimant's solicitor appears (as far as I can see) to have slam dunk lied under oath, but the evidence is legally privilidged so I am not sure if I can attempt to rely on it. I am not sure what to do.
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