Disclosure - failure?

[yellowplum]

I have received a document from the Defendant after the judge ordered that they must disclose. They have sent the Disclosure by List form and stated that the list is attached, the attached list is one page, doesn't have a statement of truth and is obvious that they haven't sent the entire document.

I emailed back saying pages are missing, I called spoke to the secretary and said the same, then the solicitor called me back and I told him this and he said I would get it in the post. The next day it arrived, again the same document that was emailed with pieces missing etc etc.

The order stated that they have to file by 10 Sept or I can ask for judgement - so my question is do I go back to the court? Can I ask for judgement?

[Hurricane Puffrose]

Re: Disclosure - failure?

BUMP

[bluebottle]

Re: Disclosure - failure?

Hi Yellowplum,

The answer to your question is that if the other side does not comply with what the judge has ordered them to do by the date stated, you go back to the court, advise the court the order has not been complied with and ask for judgement to be entered against the other side.

Let the other side kick their solicitor's backside round their office a few times for playing silly buggers and landing them with a court judgement against them.

BB

[yellowplum]

Re: Disclosure - failure?

Hi Yellowplum,

The answer to your question is that if the other side does not comply with what the judge has ordered them to do by the date stated, you go back to the court, advise the court the order has not been complied with and ask for judgement to be entered against the other side.

Let the other side kick their solicitor's backside round their office a few times for playing silly buggers and landing them with a court judgement against them.

BB

Thanks, that much I got - but does giving me a list by disclosure form and stating there is attachments to that form, which they only have provided one page and no statement of truth signed on that page amount to not complying with the judges order?

[teaboy2]

Re: Disclosure - failure?

Well it depends on what the court had ordered them to disclose. Did the other side disclose everything that they were ordered to disclose? If not then your entitled to go back to court to seek judgement for their non complience with a court order.

[Celestine]

Re: Disclosure - failure?

Just a note of caution here:

What do you mean it is missing a Statement of Truth? Do you mean that the attached document is say, a Witness Statement, that has not got the very end of the document attached? Perhaps if you could list what you were expecting to receive and exactly what is missing.

I say this because, I wouldn't go racing back to court seeking Judgment because of a 'perception' of having failed to comply with the Judges Order.
To decide to strike out their Defence, the Judge would almost certainly have to call an Application Hearing and if you are incorrect in your assumption, you would be liable for the costs element of that Hearing if you were incorrect.

A Judge and a Court want to see a Case heard fairly and in full, minor 'breaches' or differences of interpretation can be picked up at the next planned Hearing.

[yellowplum]

Re: Disclosure - failure?

Just a note of caution here:

What do you mean it is missing a Statement of Truth? Do you mean that the attached document is say, a Witness Statement, that has not got the very end of the document attached? Perhaps if you could list what you were expecting to receive and exactly what is missing.

I say this because, I wouldn't go racing back to court seeking Judgment because of a 'perception' of having failed to comply with the Judges Order.
To decide to strike out their Defence, the Judge would almost certainly have to call an Application Hearing and if you are incorrect in your assumption, you would be liable for the costs element of that Hearing if you were incorrect.

A Judge and a Court want to see a Case heard fairly and in full, minor 'breaches' or differences of interpretation can be picked up at the next planned Hearing.

Ok

Directions where given by the judge in the form of an order and one of those directions where that each side should comply with Standard Disclosure by the 15 August 2012, I complied the other side didn't. I wrote to them advising that they failed to comply, they didn't reply within the 7 days I gave them before referring the matter back to the court. When I wrote to the court the court then ordered the Defendant comply with disclosure by 4pm on Monday, 10 Sept 2012 or I could have the defence struck out and judgement entered without a hearing or anything further.

On Tuesday 4 September I was sent by email the standard disclosure form N265, and a single page from a document list which clearly has pieces missing from it and it should have been more pages.

I immediately emailed back to them and stated the fact that pages where missing, they told me that I would get the copy in the post.

Two days later it arrived, I had another phone call with the solicitor and pointed this out to him, he was more interested in getting me off the phone.

So this is why I am questioning if it is non compliance here, even though I have notified them also. I note what you state about the Judge and I don't really want to have to go back to the court and waste it's time if I have no hope of getting judgement.

Just to also give a bit of background the judge also ordered on the original directions order that mediation was be attempted. If a party requested mediation from the other side then that party must within 21 days accept or decline and give reasons why it was declining (they didn't respond to this letter either and have select to ignore my request for mediation).

So this is the predicament I am in. What would you do in this instance?

[yellowplum]

Re: Disclosure - failure?

Here is a copy of the Original order and the subsequent one and what I received by the from the Defendants Solicitors

[bluebottle]

Re: Disclosure - failure?

From what I can see, Yellowplum, you have done everything the court has asked of you, including attempting to resolve the matter by mediation, which the other side has refused. I am wondering if you should seek direction from the court, making them aware of the other side's non-compliance.

[yellowplum]

Re: Disclosure - failure?

From what I can see, Yellowplum, you have done everything the court has asked of you, including attempting to resolve the matter by mediation, which the other side has refused. I am wondering if you should seek direction from the court, making them aware of the other side's non-compliance.

I did that previously with my two letters, and the court gave the order about complying with clause 3.1.

At this moment the judge isn't particularly pleased with the other side, but I don't want to change that and annoy her by seemingly being petty and writing another letter saying that I don't believe they have complied with any of her orders.

I was wondering if you consider that the defendant has complied with disclosure in what they sent to me? It seems pieces are missing? Should a statement of truth be on that schedule?

[Celestine]

Re: Disclosure - failure?

Hiya

Just to be clear, the document you have received, is effectively just the 'Disclosure List' Title Page Appendix.

You have not received any of the listed documents?

[yellowplum]

Re: Disclosure - failure?

Hiya

Just to be clear, the document you have received, is effectively just the 'Disclosure List' Title Page Appendix.

You have not received any of the listed documents?

The document I received was it - the last page seems to be all that was attached as things are missing from it, if you look at the end of the last page they haven't completed that part even though they have placed a heading in it. Also, when I have looked at templates for the attachment it always had a statement of truth at the end of it. This doesn't hence my questions

[Celestine]

Re: Disclosure - failure?

OK, I can see whats going on now.

1. They are admitting ownership of certain documents but object to you seeing them as they are privileged. (CPR 31.19)

2. They are claiming that they have sent hard copies of originals to you directly. (which they clearly haven't)

Not knowing the nature and circumstances makes it hard to comment on whether this Point 1 acceptable.

In terms of point 2, they are clearly breaching the Order. Why on earth could copies not have just been attached to the Disclosure List. Seems like they are making it as hard as possible for you.

Well, without these documents, presumably you can't fight your case properly. I'd certainly be inclined to go for Judgment.

[yellowplum]

Re: Disclosure - failure?

I understand that you don't have to put a statement of truth on the Schedule, however two things perturb me and I am inclined to write to the DJ and request directions or judgement.

Firstly they have failed as a company to declare who signed and in what capacity they signed the disclosure list.

Secondly they list Party to Party correspondence which they have not detailed which means I do not know what they claim to have sent to me.

However, the first being the most important in my view that they have failed to sign and declare correctly means non compliance in my view. The question is whether I give them a chance to correct or just write to the court and ask for directions/judgement.

[daddy2cool]

Re: Disclosure - failure?

i hate getting all the way to the bottom of these threads and they just end with no outcome!