N244 because a tardy witness statement was sent too late to respond to

[pc52straw]

Hi, first time poster.

This is a case where (let's call them the tardy party) waited until minutes before the court deadline, before hitting the Send button to email it to the other party.

Even if the recipient hit the print button immediately after the email arrived, the witness statement would still be printing when the court deadline passed.

The court order does appear to tell both parties to send hard copies; one side followed that instruction and the other did not. So... Is it worth sending in an N244 option adding another £275 to the costs, and what separates "it's definitely not worth the effort" from "you can't afford not to do it" ?

Based on the sage advice of Doctor Google, as far as I can tell...

1. the court will see right through this tactic and will take a very dim view of it, so there's no benefit in paying the money even if the timing is not the only problem.

2. if the late arriving witness statement also contains refutable statements, or includes a thorough unpicking of the other party's witness statement, then it's not just the timing that's the problem; it's vital that they pay the money and send in their corrections/rebuttals.

3. Even if (2) feels like the only way to get fair treatment, if you whack a 50 page teardown on the table then you risk damaging your own case, or worse giving them an excuse to file their own N244 because they'll then argue they need to reply to your takedown, and so on.

I'd love it if the folks here can add to that, or explain if these are wrong! Thanks in advance.

[R0b]

Hi

The problem is that the courts at varying levels are not consistent. In one case you will find that a court throws out a witness statement for being late by only 1 minute and in other cases another court will allow late statements to be filed.

Under CPR 32.10:

If a witness statement or a witness summary for use at trial is not served in respect of an intended witness within the time specified by the court, then the witness may not be called to give oral evidence unless the court gives permission.

The result is that the party needs to apply for permission to use the statement. Although CPR 32.10 is silent on sanctions, the general rule is that the party in breach would need to make an application for relief from sanctions in line with the Denton/Mitchell criteria (suggest you look this up to understand).

One example of a court case is Wolf Rock (Cornwall) Limited v Raila Langhelle [2020] EWHC 2500 Ch in which the court refused to allow a late witness statement to be relied on. In other cases, the courts have allowed the witness statement because not doing so would greatly prejudice that party. Sometimes the court has allowed the witness statement to be used but excluding any evidence in the statement to be relied upon.

Really, its up to you as to how aggrieved you are by this and whether you are wanting to play a tactical game. Some judges do not appreciate that and will come down hard if you try. So, you may have several options:

1. Make an application to the court although I am not sure what the application is based on since there is an automatic sanction under CPR 32.10. Potentially lose #275 plus a costs order if not successful (my least favourable option).

2. Put them on notice they have (i) submitted the witness statement late and (ii) not complied with the requirement of a providing a hard copy per the order of the court. The result is that they are in breach, CPR 32.10 applies and now requires permission of the court and relief from sanctions under the Denton principles. Failure of which you will raise the matter as a preliminary point at the hearing. This to some extent affords you protection as although you are not required to say anything, they are on notice due to non-compliance and if they do nothing, then a judge may be more inclined to rejected the witness statement because they were aware of the breach but did nothing.

Equally, they might make the application but ask you to consent to the relief. If you oppose unreasonably, you may be landed with a costs order if a hearing takes place but if this is a matter subject to the small claims rules, one might argue that there is no order to costs other than the application fee because the small claims rules apply.

3. Do nothing and then raise it at the hearing, but bear in mind my points about 2 above. A judge may simply allow it to be relied upon anyway and that's that because they cannot be bothered with the faff.

4. Accept it was late and crack on with your dispute since you presumably have time to review and read, though if you have to print it off, you might want to argue for printing costs because they failed to comply with the order.

[atticus]

I would favour option 2.

[pc52straw]

Thanks - but as I said, they didn't submit their statement "late" to the court OR to the recipient - it's just that they emailed it to the other party with only a couple of minutes to go. It's very obvious that they didn't do that with their statement to the Court, as the recipient has visibility of when the Court received its copy.

So

(i) wouldn't stand up to scrutiny, and
(ii) assumes the tardy party:
- hasn't posted a printed copy out to the Court, special delivery, so it arrived well ahead of the deadline
- won't simply say, they posted a printed copy to the recipient and if it arrives late it's not their fault
- won't also say, "the recipient received an email with a digital copy before the deadline"

And therein lies the problem!

Edit: So, under THESE conditions, what's the right way to put them on notice given that you cannot assert (i) and (ii) will only stack up if the Court explicitly said ALL parties had to send ALL artefacts to it AND to the other parties, ALL in hard copy?

There are no grounds to say CPR 32.10 applies as far as I can see (because 32.10 leaves a loophole so wide you could drive an aircraft carrier through it).

Nothing these days stops either side sending a digital copy to the Court and to the other party (within court guidelines e.g. page limits) with only 15 seconds to go before the deadline, and satisfying the "it arrived before the deadline" aspect.

If you want to be the game player these days, you can post your evidence pack to the court a week before the technical deadline, but run the clock down before EMAILING the evidence pack to the other party. And the prevailing logic of the Denton Principles and CPR is, it's not the person doing THAT who's playing tactical games, it's the person protesting them doing it who is.

[R0b]

What makes you think there are no grounds for relying on CPR 32.10? If the court order says you are required to file a hard copy of your bundle by 4pm on X date and you haven't done that, you are by definition, late. It is irrelevant as to whether or not the witness statement has been served using another method, it is still late because they did not comply with the order.

The current authority on that is Barton v Wright Hassall which went all the way to the Supreme Court. Barton was a litigant in person and tried to serve the particulars of claim by email but the defendant solicitors did not accept service by email. His claim was struck on for non-compliance because service by email was not a valid method unless the defendant consented (which they did not). In short, the court said there are no two sets of rules, one for the litigant in persona and the other for legally represented people and everyone should read the rules or risk sanctions.

In your case, hard copies were the permitted method of service ordered by the court, not by email. Per the Barton case, the Supreme Court also said it was not good enough to show that the contents of the particulars of claim were brought to the attention of the other side, rules and orders are there to be complied with otherwise it is a free for all.

The problem is the county court is a free for all because judges quite often do what they want, knowing that in particular litigants in person are not likely to appeal any decision they make, so you should bear that in mind.

I don't have anything further to add than what I said in my previous post since nothing has changed. Option 2 in my view would be your most appropriate solution because if the other party decided to ignore you pointing out the non-compliance, they cannot have any excuse later down the line.

[pc52straw]

Thanks Rob and I don't mean to be argumentative. But good point, this is a County Court, where mileages may vary!

The instructions for sending to the court said the ORIGINAL had to be sent to the Court by the deadline, but said a COPY has to be sent to the other party by the deadline. Elsewhere it indicates that email is perfectly fine for sending to court or to each other, although there is a page limit when sending emails to the Court.

The Handbook for Litigants kindly provided by Atticus above does indicate the right way to do it - exchange documents at the same time.

That's why I said that CPR 32.10 (and in fact Denton/Mitchell principles) doesn't help - the tardy party can literally just say, the court instructions were to post them the hardcopy signed originals to them, but send the other copy to the other party by any means so long as it arrived before the deadline.

So I guess the only thing I really need to know is, for a Litigant in Person, what does "put them on notice" actually mean? The tardy party bluntly refuses to even receive any direct correspondence from the other party without prior agreement.

[R0b]

The LiP Handbook on exchange of witness statements is best practice, but in reality I never see a simultaneous exchange. The handbook does acknowledge you can serve unilaterally and there is no restriction from doing that unless the court orders otherwise.

Most opponents will serve as late as possible on the basis that if you serve too early, you may give the other side a leg up in preparing their statement and therefore having the ability to tailor the statement to directly counter the other side's (a point also made in the handbook).

Unless you supply the exact court wording of the order, we can only speculate as to whether CPR 32.10 applies or not, only you can decide if the other side has complied with the wording of the order unless you share the language with us.

As a point to note, the LiP Handbook last update was in 2012 so it is over 10 years old. The CPR has been developed over time which means some parts of the handbook may be out of date. By way of example, if the claim in question was assigned to the small claims track, then the standard directions for small claims on exchange of documents would say:

Each party must deliver to every other party and to the court office copies of all documents on which he intends to rely at the hearing no later than 14 days before the hearing.

As you can see, there is no reference to an 'exchange' by the parties so there is no obligation to discuss with the other side a simultaneous exchange as envisaged by the handbook. Service of those documents can be done unilaterally no later than the date given. Of course, if the direction was for the parties to exchange all documents relied on at the hearing, then I would agree the advice given in the handbook would be relevant.

Putting someone 'on notice' is simply a legal phrase to make someone aware or warning them of something. You might see in correspondence that someone is putting you on notice that unless you agree to do or refrain from doing something, then certain actions or consequences will follow. Equally, you might put someone on notice that you are investigating a matter that is likely to result in legal proceedings and as such they should preserve all documents and evidence pertaining to dispute which they may be required to disclose.

The purpose of putting someone on notice is that they then have actual knowledge and cannot use the excuse of 'I didn't know' or 'I wasn't aware' and therefore seeking some leniency from the court, which the court may indulge. They are less likely to indulge where someone is made aware and they have consciously decided to do diddly squat, only to then seek the court's leniency at a later stage.

[atticus]

If you think the other party complied with directions, what is the purpose of this thread?

If you do not, option 2.

[pc52straw]

Thanks rob, I think you've nailed it - this is Small Claims case using the beta service for initial filing.

atticus - the purpose of the thread is quite simply to understand (from a layperson's point of view, not a lawyer's one), what to do if they find themselves in this boat especially if they're using a track that's only partially digitised.

As the new online service matures (bearing in mind the service currently in Beta has a roadmap with a lot more features and flexibility yet to be developed), more and more cases will be fully digital from end to end with considerable advantages and disadvantages over the paper-based system.

Practical gains - paperless storage, instantaneous deliveries, readability and accessibility.

Policy & Procedure gain - enables forensic timestamping and version control of document submissions, document categories linked to workflows and policy enforcement.

Data protection win - documents can simply be tagged PUBLIC, OFFICIAL, OFFICIAL-SENSITIVE, CONFIDENTIAL etc. as needed, and the system will do the rest. If there is a document that only the judge is allowed to see, that can be enforced as simply as adding another tag to that document.

Big Disadvantage: the Principles, the CPRs, and even the Jackson Reforms do not reflect this transformation and the transformation is already in progress.

Example: If email or webform submissions become the de-facto standard way of submitting evidence, the governance in the digital system is quite capable of setting up one deadline for the initial "facts only" witness statement from each party, then have policies and workflow to govern the submission of further witness evidence, or manage requests/approvals on extensions and additions. In theory, the whole fiddle of being able to sit on th fence until the other party's given up waiting and sent its own witness statement in first could be engineered out of the system.

Right now, because the governance hasn't caught up, none of this is doable but the instantaneous delivery element is already here if the court says you can use email.