Part 8 Claim: Can It Be Heard On The Papers/Without Claimant's presence?

[samsmoot]

Hiya Beagles.

A Part 8 Claim is being contemplated, but the potential Claimant may not be able to attend court due to ill health. As such a claim should be decided on indisputable facts, would the court still expect the Claimant's attendance? The Defendant will likely ask for a Strike Out, and the judge might order a Directions Hearing, so attendance at one or two hearings may be required anyway.

The claim is pretty watertight, it's just that the defendant will be all-out to win it by hook or by crook, and won't back down at any stage.

I do know that the court has a lot of discretion - is it worth asking for a papers hearing to start with? Or make the Claim and hope for the best? A loss would result in costs against the Claimant, but those costs would probably not be pursued.

The Letter before Action is being sent shortly, and a decision will have to be made about where to go next - my advice would be to make the Claim and play it by ear - perhaps going in with all intentions might be best, and then if the Claimant really can't attend any hearings, then nothing ventured etc.

The choice is not mine to make - I just need to state what the options are.

Grateful for any advice on this please.

[Amethyst]

Re: Part 8 Claim: Can It Be Heard On The Papers/Without Claimant's presence?

Some hearings can be conducted by telephone if that's possible for the Claimant. Or the claimant can send a representative but that needs sorting out with the court well in advance of the hearing. The best thing to do is have a chat down at your local court and see what their usual procedure is.

[ItWasn'tMe]

Re: Part 8 Claim: Can It Be Heard On The Papers/Without Claimant's presence?

There are a number of watchouts for part 8 claims and claims in general once the claim has been issued:

1.) The defendant may contest the hearing by a witness statement in reply to yours stating there is a dispute of facts and hence going to a CMC and changed to part 7.
2.) The defendant may give oral evidence if allowed to by the Court and they may dispute certain facts you have admitted into trial hence causing this case go to CMC.
3.) By not attending, the Claimant runs the risk of having sanctions imposed on them by virtue of CPR 39.3 and in addition, the Court may require the attendance of a witness (the Claimant in this instance) for cross examination.
4.) Take note that a part 8 claim is considered as multitrack CPR 8.9(c) so watch the costs.
5.) The good news is that if the paperwork is in order from both Claimant and the Defendant or even in some instances, where the Defendant did not ack the service or did but refused to submit a witness statement, the Court may by it's own direction, not require any oral hearing, but will be able to deal with the matter on paper by making a final order.

In the first instance, I would outline all the possible repercussions of each stage in the claim and try to circumvent or mitigate them. If this person is going to cause you a hard time anyway, the best way for them to do so is to cause a dispute of facts, have this listed as a part 7 claim, etc so strategy for these points needs to be formed. I would ensure either there is legal representation with someone who is familiar with all the facets of the case or the Claimant must be there for the trial. Just my 2 pence worth.

[samsmoot]

Re: Part 8 Claim: Can It Be Heard On The Papers/Without Claimant's presence?

Some hearings can be conducted by telephone if that's possible for the Claimant. Or the claimant can send a representative but that needs sorting out with the court well in advance of the hearing. The best thing to do is have a chat down at your local court and see what their usual procedure is.

Thanks, Amethyst, I have mentioned the possibility of a telephone hearing to the complainee and had a look at what the civil procedure says about it - looks poss, but not ideal.

[samsmoot]

Re: Part 8 Claim: Can It Be Heard On The Papers/Without Claimant's presence?

There are a number of watchouts for part 8 claims and claims in general once the claim has been issued:

1.) The defendant may contest the hearing by a witness statement in reply to yours stating there is a dispute of facts and hence going to a CMC and changed to part 7.
2.) The defendant may give oral evidence if allowed to by the Court and they may dispute certain facts you have admitted into trial hence causing this case go to CMC.
3.) By not attending, the Claimant runs the risk of having sanctions imposed on them by virtue of CPR 39.3 and in addition, the Court may require the attendance of a witness (the Claimant in this instance) for cross examination.
4.) Take note that a part 8 claim is considered as multitrack CPR 8.9(c) so watch the costs.
5.) The good news is that if the paperwork is in order from both Claimant and the Defendant or even in some instances, where the Defendant did not ack the service or did but refused to submit a witness statement, the Court may by it's own direction, not require any oral hearing, but will be able to deal with the matter on paper by making a final order.

In the first instance, I would outline all the possible repercussions of each stage in the claim and try to circumvent or mitigate them. If this person is going to cause you a hard time anyway, the best way for them to do so is to cause a dispute of facts, have this listed as a part 7 claim, etc so strategy for these points needs to be formed. I would ensure either there is legal representation with someone who is familiar with all the facets of the case or the Claimant must be there for the trial. Just my 2 pence worth.

A bit more than tuppence worth there, ItWasn'tMe!

1) They surely will!
2) Ditto.
3) My CPR book says a party can elect not to attend a hearing upon 7 days notice (r.27.9(1)) - is that right?
4) The Defendant would probably not chase the costs, but I have pointed out the possibility.
5) That's what the Claimant would like to hear, as illness may prevent his appearance.

Legal rep would be great, but it's not going to happen in this case. I am urging attendance but know it may not be possible. I have said I'd like to attend instead but the judge would never let that happen, would he? I can't see him allowing a Lay Rep alone to be there.

Anyway, your point 5 makes me optimistic, but can you please correct the bit where it says "ack", as I can't quite figure out the exact meaning of the sentence? Sorry to be picky, but I think I need to get what you are saying here.

Thanks so much for your comments - I'll be sure to pass them on.

Cheers.

[ItWasn'tMe]

Re: Part 8 Claim: Can It Be Heard On The Papers/Without Claimant's presence?

A bit more than tuppence worth there, ItWasn'tMe!

1) They surely will!
2) Ditto.
3) My CPR book says a party can elect not to attend a hearing upon 7 days notice (r.27.9(1)) - is that right?
4) The Defendant would probably not chase the costs, but I have pointed out the possibility.
5) That's what the Claimant would like to hear, as illness may prevent his appearance.

Legal rep would be great, but it's not going to happen in this case. I am urging attendance but know it may not be possible. I have said I'd like to attend instead but the judge would never let that happen, would he? I can't see him allowing a Lay Rep alone to be there.

Anyway, your point 5 makes me optimistic, but can you please correct the bit where it says "ack", as I can't quite figure out the exact meaning of the sentence? Sorry to be picky, but I think I need to get what you are saying here.

Thanks so much for your comments - I'll be sure to pass them on.

Cheers.

I was bored at home so you might have got a fivers worth for 2 pence... a bargain!

3.) That is for the small claims track... for a part 8 claim, it is considered multitrack. Not saying that the Court is not understanding if you were to write them a letter explaining the situation, it is just that the Judge might not read it before or during the trial, so it could go against the Claimant. In addition, it is better to be there to present or defend the case, regardless of the situation.
4.) Regardless of not chasing, a costs order is normally made against the losing party so they are liable.
5.) Yes, but it all depends on the court admin, the judge if the case is referred to him/her and the documentation lodged but there is no harm in asking the Court to consider it. A good time to ask would be after the Defendant has filed or not filed all he needed to file. Ps. Don't forget to file a certificate of service if the Defendant does not file an acknowledgement within the time frame so there is no argument that they have not been served.

Check CPR PD 8:

PRACTICE DIRECTION 8A ALTERNATIVE PROCEDURE FOR CLAIMS - Ministry of Justice

Apologies for the use of abbreviations, ack = acknowledgement.

The problem with part 8 claims is that if the Defendant disputes the use of the part 8 method, most of the time it falls down to a point of law hence why a legal rep is advisable but I take on board your comment that it is not possible in this situation.

[samsmoot]

Re: Part 8 Claim: Can It Be Heard On The Papers/Without Claimant's presence?

Thanks for the added info.

I'd like to be there as Mackenzie Friend - we'll have to see. Hopefully a well done claim form will do the job, regardless of an attendance - I can at least write out a compelling legal argument.