Small Claim - Without Prejudice and Witness Statement Issues

[nitch]

Hi All,

I've filed a small claim against a firm.
In their response, they referred to the content of a without prejudice correspondence while also omitting key parts from the same correspondence.
Also, they send the relevant documents for the claim, but did not file a witness statement.

Are these two infractions something I can act on, or is the CPR not enforced for small claims?

Thanks,
Nitch

[echat11]

Hi Nitch

Welcome to LB

When is the Hearing? Witness Statements have to be sent to the other side and Court 14 days before the Hearing. You will receive a Court Order stating what the Judge's orders are.

If the document has 'Without Prejudice' written on it, it can't be used in the case / Hearing, but can be referred to after the case / Hearing has finished and Judgement given.

If they have used sections of the 'Without Prejudice' document in the case, then you can put that into your 'Witness Statement' / evidence 'bundle', the Judge should ignore the 'reference' completely.

[R0b]

I should clarify echat's comment on the without prejudice point because it is not quite accurate. The 'without prejudice' rule means that provided there is a genuine attempt to engage in settlement discussions, that correspondence is protected from being used as evidence at the trial. There are two versions of the without prejudice rule.

The first version is 'without prejudice' which means that the correspondence (or any form of communication such s telephon calls, discussions at a meeting etc.) cannot be used or referred to at trial as evidence or even after trial when it comes to the question of who should pay costs. the second version is 'Without prejudice save as to costs' means that the correspondence cannot be used during the trial but may be used as evidence after judgment has been handed down and the court is considering whether either party should pay costs and if anyone has acted unreasonably.

Marking correspondence as WP or WPSAC does not automatically attract the protected rights under these rules, the contents of the correspondence must indicate a genuine attempt to settle the claim. The consequence of one party referring to WP or WPSAC evidence as part of their trial bundle of documents, is that it opens the right for the judge to decide to recuse themselves from the hearing or at your request, adjourn the case to a later date with a new judge and then award wasted cost against the party who failed to comply with the rules. However, if this is a small claim then the judge might refuse to do any of that despite looking at the correspondence in which case there would be grounds for appeal or an application to request recusal of the judge but the onus would be on you to raise these issues - it depends on how damaging the contents of that correspondence is and whether you think you could be affected if a judge read it and come to a certain view about you pre-trial.

As for witness statements, if they haven't filed or served a statement then they have no evidence to support their defence and at the trial you should seek an immediate judgment in favour because the witness statement is the evidence they seek to rely on. If they do file a statement but it is later than the court required it to be filed by, then it cannot be used without the court's permission.

[echat11]

Can you summarize the 'without prejudice correspondence' giving it a context.

[R0b]

Can you summarize the 'without prejudice correspondence' giving it a context.

Not sure if this was a question for me or the OP but I'm not sure what sort of context you are looking for. The whole purpose of the without prejudice rule is that it allows the parties to have frank and open discussions. An advantage of using without prejudice correspondence is that the contents of the correspondence may give an admission or amount to an admission of something related to the dispute without fear that the letter will be provided in front of a judge to read in order to decide the case or award costs. By marking it as without prejudice, it cannot be used as evidence at all at any point in proceedings.

A without prejudice save as to costs might simply contain an offer to settle and give nothing more, so when the judgment is given and there is a question of who should be awarded costs, the parties can then refer to WPSAC correspondence to increase an award of costs or deduct costs depending on who won or lost based on previous offers made to settle and their (un)reasonable to continue the dispute.

[echat11]

Not sure if this was a question for me or the OP but I'm not sure what sort of context you are looking for. The whole purpose of the without prejudice rule is that it allows the parties to have frank and open discussions. An advantage of using without prejudice correspondence is that the contents of the correspondence may give an admission or amount to an admission of something related to the dispute without fear that the letter will be provided in front of a judge to read in order to decide the case or award costs. By marking it as without prejudice, it cannot be used as evidence at all at any point in proceedings.

A without prejudice save as to costs might simply contain an offer to settle and give nothing more, so when the judgment is given and there is a question of who should be awarded costs, the parties can then refer to WPSAC correspondence to increase an award of costs or deduct costs depending on who won or lost based on previous offers made to settle and their (un)reasonable to continue the dispute.

I'm asking the OP. Context as in how the section in the document relates to the case, is it something that has relevance to the case.

[MaryS57]

Hi we have a v. similar issue regarding "without prejudice" and what a small claims-track judge should take note of (or not, as the case may be)?

I am happy to start a new thread if this is better, but the same principle as to what a small claims court judge can (or cannot) take account of seems to apply here.

I am a claimant with a faulty caravan. The Defendant caravan dealer in our case filed form N9B but filed all his defence arguments on a piece of paper headed entirely (at the top) "without prejudice." He further failed to sign this piece of paper with statement of truth at the bottom.

Would (or should) a judge disregard this extra piece of paper? If so, the Defendant does not seem to have a proper defence.

Do I need to point out the "without prejudice" error to the judge at the hearing for the judge to react to it? . Or would the judge just tolerate this lack of proper form (in the smc)?

Advice in these circumstances most welcome.

As background:
- I am claimant with a seriously faulty caravan
- Defendant is the dealer who sold it to me new and is now flatly refusing to correct the abnormally constructed interior frame which caused the exterior plastic panels to crack under stress from the faulty frame and thereby allowing in damaging water
-we have ample evidence:, photos, expert report, repair will cost £9K. Case is currently awaiting transfer to local county court (small claim track)
- mediation alas failed to get anywhere as the defendant wants me to pay for the repair.
-The Defendant dealer does not seem to know what he is doing and has not followed CPR in a number of other respects.

[echat11]

Hi we have a v. similar issue regarding "without prejudice" and what a small claims-track judge should take note of (or not, as the case may be)?

I am happy to start a new thread if this is better, but the same principle as to what a small claims court judge can (or cannot) take account of seems to apply here.

I am a claimant with a faulty caravan. The Defendant caravan dealer in our case filed form N9B but filed all his defence arguments on a piece of paper headed entirely (at the top) "without prejudice." He further failed to sign this piece of paper with statement of truth at the bottom.

Would (or should) a judge disregard this extra piece of paper? If so, the Defendant does not seem to have a proper defence.

Do I need to point out the "without prejudice" error to the judge at the hearing for the judge to react to it? . Or would the judge just tolerate this lack of proper form (in the smc)?

Advice in these circumstances most welcome.

As background:
- I am claimant with a seriously faulty caravan
- Defendant is the dealer who sold it to me new and is now flatly refusing to correct the abnormally constructed interior frame which caused the exterior plastic panels to crack under stress from the faulty frame and thereby allowing in damaging water
-we have ample evidence:, photos, expert report, repair will cost £9K. Case is currently awaiting transfer to local county court (small claim track)
- mediation alas failed to get anywhere as the defendant wants me to pay for the repair.
-The Defendant dealer does not seem to know what he is doing and has not followed CPR in a number of other respects.

Can you please start a new thread.

[MaryS57]

Have done as requested - many thanks.