Advice required - interim non-mol - application to vacate final hearing date

[TheBereaved1]

Hello

I am the respondent and I received a court order back in January made in the interim on the basis of no finding of facts. I requested in directions hearing that I may wish to bring witnesses in my defence and this is noted in Facts and Reasons from the court. However, the original order and the subsequent amendment made no mention that I could file any statement other than my own. It was clear that whilst the barrister for my brother drafted the court orders, the court either did not check or think it important that I should be allowed witnesses.

They ordered applicant statement and witness statement and evidence to be filed no later than 4pm 12/05/2022. As I hadn't received anything at 4pm, I emailed the court stating there had been a breach of a court order or contempt. I then received two statement at 4:55pm on 12/05/2022 after, I believe, the court contacted the applicant's solicitors to tell them the documents were late. I received another statement the following day some 23 hours later.

I had until yesterday to file my response but emailed the court requesting additional time which they, as yet, have not confirmed.

They order that I can only file a witness statement (mine) and any evidence.

I have a hour of video evidence which will disprove one allegation outright, and probably an hour of covert audio evidence too which disproves certain points and certainly illustrates my brother is not quite right in the head and not as angelic as other relatives believe him to be.

Getting down to the nub of the request, can anyone advise me which exact form I would need to use to apply for the court to consider and accept evidence into court? Section 49 of the Family Law Act 1996 suggests a respondent can ask for a court order to be varied so does this mean I need Form FL403?

I am also trying to find out if there is a fee attendant upon application. EX50AHMCTS states either £53 without notice / by consent or £167 for an application on notice! Seems a vast difference.

I have instructed a direct access barrister and he says that that is no way that the contested final hearing will take 5 hours as listed. He says realistically it will be a 2 day affair. I have 4 witnesses in addition to myself that I would wish to rely upon and my brother has 2 witnesses in addition to himself. He says I should be applying to the court for them to consider allowing me additional witness statements and also to vacate the hearing because there is no way it can be dealt with in the time estimate on the court order.

My other thought is whether I get a transcription of the directions hearing. I recall explicitly saying I may intend to call witnesses and that it would depend on the actual allegations. I did actually ask for an interim hearing but his barrister basically poo-poo'ed that idea saying it would be a waste of court time. In my humble opinion, it would have saved court time because at an interim hearing I would have had time to instruct solicitors to support me and look through the evidence I have.

Also, whilst skimming through FPR, 22.10 jumped out at me:-

Consequence of failure to serve witness statement
22.10
If a witness statement for use at the final hearing 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."

Does this mean that technically all his witness statements can be disregarded or does the applicant now have to apply to the court for permission?

Thanks in advance.

[dslippy]

You seem also to have failed to serve evidence that you wish to present, so the rule applies to you as well.

Best of luck, but it looks like a stickly mess is in prospect.

[TheBereaved1]

You seem also to have failed to serve evidence that you wish to present, so the rule applies to you as well.

Best of luck, but it looks like a stickly mess is in prospect.

Oh. It's definitely a sticky mess.

I did notify the court via email before the deadline and asked for an extension. I have until 15/06 now.

Since then, I have learned that the orders made on a court order in the Family Court are very lax in terms of timings which I find preposterous really because if they were not, it would have made my defence much easier as the statements files by the applicant could have been discounted and I would have saved a lot of time and money.

I learned this only on Friday when the applicant's legal team sent me an amended copy of his statement where they corrected some typos on the fact that my Mum was due to die this November coming instead of last year (which I had already accepted was a typo and dealt with it in my response) but they also changed some wording on another paragraph.

I am actually minded to ignore this latest amended applicant's statement because I have based my rebuttal of that on the information that was provided to me at the time and it is date critical. The paragraph changed from "Since the making of the order," to "Since beginning the process to get the order,". Just how vague is that? How on earth I am supposed to know when that process started?

I spoke with a solicitor late Friday afternoon and I was shocked when she told me that the rules surrounding family are seemingly lax. That probably explains why they have not filed a copy of the answerphone message I left my brother on which he bases his whole case. The fact that I have video evidence on the following day which clearly shows he was not as petrified as he claims about the message and he is actually grinning at me through the door glazing stands testament to what kind of a human I am dealing with. He is manipulative and got our mother to change her will in his favour 18 days before she died.

So yes it's a very sticky mess but I think the court case will provide me with some decent evidence for the will challenge as to his actual behaviour in the whole sorry affair.

The form required should anyone be reading this post in future is the FL403 and there is no cost to file it. I marked the email as "URGENT" with the case number in the subject title and mentioned application to vacate hearing in the title.

The court were incredibly quick to respond and a district judge ordered that I can file all my video and audio evidence. Interestingly, I asked why the applicant had not submitted evidence and whether they would be allowed to. The response came back that the applicant had filed witness statements and this is the evidence on which they wish to rely upon. I got a sense from that that the judge would not allow them to now file any further evidence but I won't hold my breath having regards to what the solicitor said on Friday.

Unfortunately, I think I have left it too late to get representation by a solicitor so I went direct access barrister. The solicitor I spoke to on Friday is hopefully getting back to me today with whether she can offer advice on an ad-hoc basis to support me with any questions I may have.