Defence failure to comply with court Order

[atticus]

Directions Questionnaire.

CPR 15.8: https://www.justice.gov.uk/courts/pr...rules/part15#7

[prophet01]

In which case I think highlighting in our witness statement the inconsistencies and self incriminating comments in his DQ defense was appropriate.

[atticus]

That may well be appropriate. Equally, this may be for your oral argument in court at the hearing.

Have you downloaded and read the handbook for litigants in person? See my signature (below).

[prophet01]

No, but I shall do so today, thanks.

[prophet01]

My friend, the claimant, rang the court yesterday to ascertain whether they'd received a witness statement from Mr. Crappy Roofer.
They confirmed they hadn't and told her to write to the judge informing that she'd not received a witness statement.

Did the 2nd roofer take photos of the 1st roofer's shoddy work?
You could send an email to the court a few days before the trial writing URGENT in the subject line and giving the date and time of the hearing
State the claimant received the defendant's witness statement late/did not receive it. Also say the claimant contacted the defendant on xxxxxxx(date) to inform him they had not received his WS. Take a copy of the email to the court and the email/letter to defendant on the trial date
The email could also state how the claimant gas been disadvantaged: Insufficient time to digest it and prepare questions

It is up to the judge whether the party who serves their WS late is allowed to present it at the trial. Cpr frequently states the "court may" not the "court will"

Pezza54 suggested notifying the court a few days before the trial. Is there any reason for not doing it now?

[atticus]

No, but remember that your friend still has to prove her case.

[prophet01]

In which case I think it's worth writing to the court now along the lines suggested by Pezza54.

I'd like to think that our witness statement and exhibits do prove her case.

Potentially, if he agrees, he mught just follow through on the warning:

If you do not follow these Instructions within the time llmits, the judge may decide
that your case should be struck out, which means that you will not be able to continue
to bring or defend this claim, and the other side may be able to ask the court to make
a judgment against you.

[prophet01]

That may well be appropriate. Equally, this may be for your oral argument in court at the hearing.

Have you downloaded and read the handbook for litigants in person? See my signature (below).

atticus
As I said I would, I've read the handbook and particularly note:

15.9 If the other party or parties to the case have failed to follow an important
direction of the court and you consider your case has been or may be
prejudiced as a result, you may wish to make an urgent application to the court
either to order the other party to comply with the direction, or impose a
sanction on the other party for failing to comply with the direction.

Presuming that the order to deliver witness statements to the court, and to the other side, to be an important direction of the court, which he's failed to do, I'm now conflicted over whether to make an application or simply inform the court of said failure.

Yours and others' view would be very much appreciated.

[atticus]

It's a tactical decision to be taken having weighed up many things. I would need to see the full details of the case to offer an opinion. Might it be better to go into the hearing with the defendant not having produced evidence? When is the hearing of the case scheduled to take place?

[prophet01]

I've drafted a fully anonymised verson of the statement and can provide a link for anyone to read if you have time.

It would be preferable not to have to go to court and, as I said earlier, if there's an opprotunity to win the case without having to go to court I think it should be considered.

The hearing is 18 March.

[Pezza54]

Please read the article "What is a summary judgement and how does it work?" at www.harperjames.co.uk
It is a high bar for the claimant to prove that the defence should be dismissed without a trial
There is a risk of costs being awarded against the losing party and the summary judgement hearing delaying proceedings
The judge can ask questions at the hearing but witnesses will not be required to present statements

You should read cpr Part 24 - Summary Judgement if you haven't already done so

IMO with the trial now under 2 months away you should wait and concentrate on the claimant's witness statement and evidence

[atticus]

The OP is thinking of applying to strike out the defence or some other sanction such as not being able to rely on anything not so far served, not for summary judgement, which is a very different thing.

[Pezza54]

Please read the article "Applications for summary judgement and strike out" at www.nechambers.co.uk

Under "APPLICATION"
nechambers recommend an application notice should seek summary judgement with an order for strike out in the alternative (or vice versa)

Applications to strike out should be made asap preferably before or with the party's DQ

[prophet01]

With the information and advice you've both helpfully provided so far I'm settled on not applying for summary judgement. Further, as I'm pretty confident that our case is rock solid and that he has nothing he might conjure up which would scupper us I'm quite comfortable with not formally applying for any sactions.

As matters stand, what I think we should do is to simply follow the suggestion of the court officer, to write to the court notifying of Mr. Crappy Roofer's failure to comply with the court Order to deliver his witness statement to us and to the court.

Also to notify that he used the information we properly delivered to him to gain an advantage through contacting the second roofer who provided a report for us setting out the substandard work he'd found done by Mr. Crappy Roofer.

Any thoughts on this proposed tack gents?

[atticus]

When is the hearing of the case scheduled to take place? I don't think you have answered that question.