Claimant failed to send witness statement by Court Deadline

[Recently_Bereaved]

Hi guys
I could do with some advise. Please forgive me but I am not especially legally minded. In short I am a defendant. A builder has submitted particulars of claim against me alleging I did not pay him (which is not the case). We had reached the stage whereby the Court have given us a deadline by which time we needed to exchange witness statements / other documents we would rely upon in Court. I have sent across my witness statement / bank statements etc but he has failed to send me anything and the deadline has just elapsed. Whilst I am a litigant in person he is using a legal representative. My concern is that they will use the weekend to pour over my statements and conject their own statement to best suit their needs. From what I can glean from a quick google search, I need to submit an N244 to the Court but it looks like an imposing form and i am concerned that a) I will fill it out incorrectly and b) it doesn't look cheap (there are different forms but I think the one i need costs £275).......I can t help but feel I have done nothing wrong but this whole system seems biased in the favour of the claimant. I would really appreciate any advise as to if there are any other options or indeed if not what I should be writing (eg Q3 What order are you asking Court to make and why? , Q4. Have you attached a draft order, Q5 How do want this appl dealt with Q6 How long do you think hearing will last Q7 What level of judge etc etc!!

[JK2054]

Hello,

You do not need to file any application.

You should await your final hearing date and do nothing in the meantime.

At your final hearing you should bring to the courts attention that the Claimant did not send their documents by the required time and so you object to them being allowed.

You should also check the date on the statement and ask for proof that they were sent in the required timeframe. If they cannot provide this you can ask the judge to take this into account when considering whether or not to allow the statement.

It may be that they were sent by post and simply have not arrived yet, however that is quite hard to tell.

Have you had any contact with their solicitors? Which solicitors are they using?

[echat11]

I would do as advised, but have it written in a statement, A4, 2 copies, one for the Judge and one for the other party, hand it to the Clerk and other party as soon as you get to the Court. If you just raise it with the Judge, there will likely be no 'sanctions' against the other party as they will be under the impression that they have followed Court directions.

If you don't do this, I guarantee the first question from the Judge to you will be, 'Have you made the other party aware of this?' You will say 'No' etc.

'At your final hearing you should bring to the courts attention that the Claimant did not send their documents by the required time and so you object to them being allowed.'

[Pezza54]

I agree with JK2054, no need to make an application.
If and when you receive the claimant's witness statement you should make notes of discrepancies in the statement. Have your questions ready to cross-examine the defendant's solicitor at the hearing.
If the claim is on the small claims track and the deadline for filing and exchanging witness statements has passed, the hearing must be soon
Are you posting or emailing documents?

If the claim is on the small claims track, the claimant would have had to pay the court fee 4 weeks before the hearing date. There is a chance the claimant failed to pay this fee. If you don't hear anything from the court (they may telephone you if you provided your phone number), you should ring the court on the number provided within 24 hours of the hearing time to find out if the hearing is still going ahead

[Recently_Bereaved]

Thanks all for your replies - most helpful. In answer to some of the points you raise (and in the hope of your ongoing help please)

1. I heard from their 'solicitor' last week. He referenced the fact that the deadline date was approaching. He made an offer that we get an independent builder in to evaluate the costings of the works undertaken which would then be binding to both parties. I respectfully declined this, as my position is that I have paid his invoice and he has simply failed to reconcile his accounts. As such I said that a costings exercise was immaterial to the particulars of his claim and I would be submitting my witness statement and supporting docs in line with the Court deadlines. ......I say his 'solicitor' as the builder is using a company that offers a legal service but the individual providing that service has been struck off as a solicitor (he actually went to jail for rather unbelievably stealing money from terminally ill clients!). The builder and this person are apparently friends and I really don't trust either.
2. I have since emailed this 'solicitor' last night to advise that he has missed the Court deadline. Not sure if this was the right thing to do judging by the comments but I advised that it would be my opinion that he would now need to approach the Court and apply for a relief from sanctions using the Denton principles (CPR 32.10) in order for the builders witness statement to be allowed. I further informed him I would strongly oppose such an application as allowing his witness statement after he has all my disclosures to peruse at his leisure would prejudice me. I rounded off by saying that he was clearly aware of the approaching deadline but that he had made no mention of a potential delay in returning his party's witness statement etc in this recent email communication. Finally I pointed out that I am merely a litigant in person whilst with all his legal experience he should know better about due process.

Given that I have now acted I would ask you guys if I can just sit back and do nothing - (I really don't want to be doing the N244!) or otherwise ?! Many thanks in anticipation !!

[Pezza54]

On DQ N180 did the claimant ask the court's permission to use the written evidence of an expert?

Have you considered that the claimant's solicitor may have sent their witness statement to the court on time and it is just your copy that has failed to arrive?

You should follow Echat's advice and let the claimant know by email that you have not received their witness statement

[Recently_Bereaved]

On DQ N180 did the claimant ask the court's permission to use the written evidence of an expert?

Have you considered that the claimant's solicitor may have sent their witness statement to the court on time and it is just your copy that has failed to arrive?

You should follow Echat's advice and let the claimant know by email that you have not received their witness statement

Thanks I appreciate your response. No claimant did not submit N180. ......The Court order stated that each party must send the documentation by such and such a date. Surely that means I should receive the documentation by that date? I sent my documentation by next day signed for delivery so I can receipt it as evidence if required. There has been no missed postal delivery notices in my letter box......Yes I have emailed them to say I have not received, no response as of yet......

[Pezza54]

Has the claim been allocated to the small claims track and if so, is it your local county court?

The court uses DQ N180 or N181 to allocate the claim.

Did you agree to small claims track mediation and if you did, did it take place?

[Recently_Bereaved]

Has the claim been allocated to the small claims track and if so, is it your local county court?

The court uses DQ N180 or N181 to allocate the claim.

Did you agree to small claims track mediation and if you did, did it take place?

Yes it has been allocated to the small claims track and it is in the local county court. I declined mediation (as I felt we were going around in circles in the pre-action discourse)

[Pezza54]

If the claim was issued using MCOL you should be able to see on the portal if the claimant filed his DQ
Without a copy of the claimant's DQ you don't know whether he agreed to mediation or sought the court's permission to obtain an expert report
The judge may decide that an independent expert report from a qualified building surveyor is required to assess how much money, if any, is outstanding to the builder.
Without this report, the judge will have difficulty assessing the claim

[Recently_Bereaved]

If the claim was issued using MCOL you should be able to see on the portal if the claimant filed his DQ
Without a copy of the claimant's DQ you don't know whether he agreed to mediation or sought the court's permission to obtain an expert report
The judge may decide that an independent expert report from a qualified building surveyor is required to assess how much money, if any, is outstanding to the builder.
Without this report, the judge will have difficulty assessing the claim

We are passed the stage of DQs. He agreed to mediation in his DQ but I did not in mine as we had a long drawn out pre-action in which neither side gave any concessions. With regards the need for an independent expert report it seems to me to be immaterial as I have never disputed his invoice. Even during pre-action his totalled invoice remained the same - he never alleged that he undercharged me. As such a costings exercise seems immaterial to the dispute. He argued that i had not paid it but I knew I had. During pre action once I evidenced the payments he then argued that some of the monies were retention monies for another job but again thats not true as i can show i paid his original invoice in full as well.
We have a final hearing date set and he has not sent out his docs in line with the Court deadline. The claim is on MCOL but his DQ is not showing on MCOL but I did recieve a hard copy of it in the post and he has not asked the Court for an independent Expert's evidence.

It seems to me that now I have sent an email flagging the fact that I have not received a copy of the documentation in line with the Court deadline to his 'solicitor' then I don't need to do anything else?!?

[JK2054]

Hello,

Thank you and I'm sorry for the delay in my reply.

You will simplt need to inform the court at the start of your final hearing. I do agree that having this written down would be helpful and you should hand this to the court usher when you arrive and ask that they pass it to the judge in advance of the hearing.

You don't need to enter into or entertain emai/letter tennis with their solicitors. You don't need to have sent an email in the first place, in fact I wouldn't have. I would have waited until the court hearing as your just giving them an opportunity to correct their mistakes.

Anyway its done now. I would recommend produing a short written document that has the claim info (such as number and parties) that states you didn't receive any documents from the claimant and pass it to the usher before your hearing.

[echat11]

Hello,

Thank you and I'm sorry for the delay in my reply.

You will simplt need to inform the court at the start of your final hearing. I do agree that having this written down would be helpful and you should hand this to the court usher when you arrive and ask that they pass it to the judge in advance of the hearing.

You don't need to enter into or entertain emai/letter tennis with their solicitors. You don't need to have sent an email in the first place, in fact I wouldn't have. I would have waited until the court hearing as your just giving them an opportunity to correct their mistakes.

Anyway its done now. I would recommend produing a short written document that has the claim info (such as number and parties) that states you didn't receive any documents from the claimant and pass it to the usher before your hearing.

You need to hand a copy to the other party (their solicitor) at the same as you hand a copy to the 'usher'.