N244 notice of application

[PractNB]

Hello. New member here.
We (our business) have received a notice of application (N244) for a court order mandating disclosure of documents. This form, together with a witness statement and draft order, has been sent to us, by email, by the applicant's solicitor.
We are told it has been filed at the County Court.
This is an application under CPR 31.17 - non-party disclosure (although legal proceedings have not begun at all....); we're not a party to the claim.
There is no claim number on the form provided to us.
So, my questions, if anyone can help:
1. Do we need to do anything now, or should we wait until we hear from the court?
2. *Can* we do anything now, or *must* we wait until we hear from the court?
3. We do wish to put our side to the court - we believe that we have already disclosed the requested information to the applicant and that, for a variety of reasons, this application is completely unnecessary and without merit. I also think that 31.17 isn't applicable (pre-action) here.
4. Their witness statement did not include *any* correspondence between us, the applicant, and their solicitor, just one or two select quotes. We wish to provide the court with all the correspondence, which demonstrates our fulfilment of our obligations as regards the disclosure.

When can/do/should we write to the court with our statement? And, exactly how do we do that - is there a specific form to use? Or should I just use one of the excellent witness statement templates here. Do we simply post it to the relevant court?
Many Thanks.

[R0b]

Are you absolutely certain that proceedings have not yet started i.e. a claim form has not been issued? If they haven't commenced legal proceedings then my initial thoughts are that they should have made an application for a Norwich Pharmacal Order instead and so they have made the wrong application (there is different criteria for disclosure made under CPR 31.17 and under an NPO for example, a duty of full and frank disclosure meaning if they fail to disclose all material facts, their application could be refused).

Witness statement is probably the way forward, but where you would normally have the heading where it says "WITNESS STATEMENT ON BEHALF OF THE DEFENDANT" I would alter that slightly to say "WITNESS STATEMENT ON BEHALF OF THE DEFENDANT OPPOSING DISCLOSURE UNDER CPR 31.17"

It's probbaly not necessary but that way you are making it clear from the offset what the witness statement is going to be about.

You should probably look to attend if you are sending in a witness statement, and even if disclosure is granted, the general rule is that they should pay your costs - make sure to raise that otherwise you will get zilch.

If you want any feedback on the statement, post up a draft and one of us will take a look.

[PractNB]

Many thanks. Yes, almost certain that legal proceedings have not begun. They can't really, they need the documents (that we have actually disclosed) to begin to assess the claim.....

My plan is to compose a detailed witness statement, including all correspondence, and stating that we believe that CPR 31.17 is an incorrect application, but, notwithstanding this, why we believe that the order as proposed is without merit and wholly unnecessary, and that such actions are unreasonable.

Can I ask - am I able to send the court a witness statment now? That is, after receiving a copy of the N244 from the applicant.
Or is protocol to wait until we are formally notified by the court?

I would really like to send the court our evidence ASAP, as I am hopeful that they will simply strike out the order request.

The N244 form has stated that the applicant seeks a 30minute telephone hearing. Can we state that our belief is that the witness statement provides all possible information that we could provide and that we do not believe a hearing is needed (i.e. we are happy for the court to determine based on all written evidence supplied)?

[R0b]

The next steps will be for the court to arrange a telephone hearing, unless you make an application objecting to that (you might get away with it as a cover letter when sending your witness statement). If I were in your position, I would be inclined at first to write to the solicitors and point out that they have made the wrong application, explaining the reasons why i.e. proceeding have not actually commenced and (if applicable) service of the claim form by email was no valid service (unless you agreed to accept service by email). They should therefore withdraw their application and accordingly make the correct application which is a Norwich Pharmacal Order, which of course has a different set out criteria.

Normally witness statements are sent 14 days before the hearing takes place. Be very careful what you wish for because I have seen it many times where parties to a claim have rushed out and submitted their witness statement and evidence only to find that there's further evidence which they can no longer rely on because its too late, or that they have to pay the £255 fee to amend it. My advice is to take your time and don't rush - get started on the drafts, add to it, tweak it, take a break and then come back to it again and see if you can improve on it.

In terms of the format of the witness statement, it is identical to the template one's on here. However, somewhere in the first few paragraphs of the statement you want to say something like:

This statement is made in opposition to the Claimant's application for disclosure of certain documents pursuant to CPR 31.17

If the statement is going to be a relatively detailed one, then it's always useful to provide the judge with a summary of the contents of the statement. For example, following the above line you could say the following:

Summary of this statement

It is the Defendant's case that the court should not grant the Claimant's application for the following reasons:
(1)
(2)

However, you should note that the criteria for graning disclosure under CPR 31.17 is laid down in pargraph 3 of that rule. You should look to align your reasons as to why it should not be granted with those criteria. However, as they have issued under CPR 31.17 your primary argument should be that they have issued the wrong application and the criteria application should be a Norwich Pharmacal Order, which has different criteria. The secondary argument is that even if CPR 31.17 did apply, it shouldn't be granted.

As for the main body of your statement, sub-headings is likely to be of help here. A starting point would be to have a sub-heading for background, why CPR 31.17 is not the appropriate application, the criteria in CPR 31.17 and how you have complied already.

These are sort of generic points and you don't have to use them, but the easier you make it for a judge, the likely he or she will side with you.

[PractNB]

Thank you so much Rob, that's tremendously useful. I will start on the witness statement and tweak it day by day, but not send anything for the time being.

I'm a bit concerned as I am on holiday from mid-August. What happens if the telephone hearing is listed when I am due to be away? Can I request an alternative time/date?