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Legal procedure

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  • Legal procedure

    I have a couple of questions concerning preparing my case. I have just been to a pre-trial review, and am due to prepare the Bundle soon. The other side have objected that I intend to include three documents which were not declared during the Disclosure procedure three years ago. In fact they were generally included under the heading of other correspondence, but because they were not relevant at the time, they were not separately identified.

    Subsequently - months later - the Defence made new allegations which were not included in their defence, which I therefore needed to rebut. I produced an email from their client in support of my rebuttal. They are now saying that I cannot include it in the Bundle because it was not specifically identified at Disclosure. However, as I have said, at that time it was not relevant.

    In essence, their client sent me a letter (confirmation of contract) enclosing about 7 important attachments. Their solicitor denies that one of the documents was attached, despite the fact that the actual document is listed in the original letter as an attachment. Following this denial, I remembered that I had scanned the letter and the contents on receipt, so that I could store them on my computer as I always do. My Brother scanner automatically records a copy of every document that I scan, and numbers and dates it. I therefore looked in the Brother records, and of course found the scanned letter in question with the scanned copies of all the attachments, including the one in dispute. The record has all my scanned documents in date and number order going back to 2014 at least. I sent a copy of the Brother record to prove what had been sent to me, but the solicitor is now saying that I should have declared the the Record at the time of disclosure, when I did not even know that this would be disputed. The solicitor has not asked his client what was included by way of attachments, but I have no doubt that if he did, the client would be straightforward and acknowledge that the disputed document was of course attached.

    The trial window has now today been set by the Court for 7th June. Is it too late therefore really to include the SCAN record (which includes an image of this letter and attachments) in my Bundle as their solicitor is insisting ? I could, if necessary, make an application to the Court, but it seems unnecessary and expensive. So what are the rules about this ? The copy of the scan record was sent to the solicitor at least six months ago.

    Secondly, during correspondence over the last three years, there have been several other letters from my very large files which I have sent to the solicitor in my correspondence, which he also says that I should have disclosed originally. As far as I am concerned, I did disclose all of them under the heading of "other correspondence", but there was no way I was going to attempt to list each and every one of them - probably more than 1,000 pieces of paper. The solicitor never asked to inspect anything, and he certainly has been aware of each of these letters, documents and emails last September as I produced an electronic "Bundle" of everything I intended to include in the paper Bundle when it is eventually prepared. This was actually done for briefing an expert witness and copied to the solicitor. It seems a little unfair that I should not be allowed to produce them therefore now. I did not appreciate the significance of them three years ago, and frankly did not even remember what they contained because there were so many other documents. But there is no doubt the solicitor has had them since last September as they were sent by email.

    The pre-trial review has just resulted in an Order which expressly says "For the avoidance of doubt, the trial bundle must contain only those documents which have already been disclosed." I would understand from the wording that it means that anything that has been sent to the solicitor in the last three years would count as having "already been disclosed". I fully understand that the bundle should not include anything that is disclosed new from this date (without permission of the Court).

    So I would be very grateful if anyone could tell me whether I can include documents sent to the solicitor since Disclosure three years ago, or whether it is too late to include any documents from exchange of emails with the solicitor during the last three years. It is only as I have developed my case that I have even discovered them.

    I do remember being present at a trial in the Royal Courts of Justice about ten years ago, when the judge started a folder in Court which he called the "X File", into which he added a number of newly disclosed documents as evidence, and which he allowed to be on the record. I distinctly remember it because it caused a laugh when he called it the "X File" for obvious reasons. So I am actually a little puzzled by the stance now being taken by the other side's solicitor in this case - although obviously the rules may have changed in the last ten years.
    Last edited by Thirlestaine; 17th March 2021, 23:33:PM.
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  • #2
    You raise some interesting points. Unfortunately I canít help but I would be interested in the opinion of others. Des-8 islandgirl


    • #3
      If one looks at CPR 31, this may help with part of the query

      Meaning of disclosure

      31.2 A party discloses a document by stating that the document exists or has existed.
      I work for Wannops LLP . I give my free time available to helping other on the forum and would be happy to try and assist informally where needed. Any posts I make on LegalBeagles are for information and discussion purposes only and shouldn't be seen as legal advice. Any advice I provide is without liability.

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      I have been involved in leading consumer credit and data protection cases including Harrison v Link Financial Limited (High Court), Grace v Blackhorse (Court of Appeal) and also Kotecha v Phoenix Recoveries (Court of Appeal) along with a number of other reported cases and often blog about all things consumer law orientated.

      You can also follow my blog on consumer credit here.


      • #4
        Thanks for that. I have now carefully read CPR 31.2 and the other relevant paragraphs, from which I cannot see any reason to justify the opposing solicitor's objection.

        I am a L.I.P. Claimant up against a major travel organisation who abandoned a very expensive tour AFTER the tour had started, due to circumstances of which they were fully aware PRIOR to the start of the tour. Frankly, they thought that they could bluff their way out of the whole thing and get away with it. Their own witness statement admits that they knew perfectly well a week before the start of the tour that the itinerary was no longer possible, and that they should have cancelled it and given a refund under the 1992 PTHT Regulations - the price of a very good car ! Force majeure was not an excuse because the reasons for the cancellation were neither unusual nor unforeseeable - they were just winging it !

        The case has been going on for three years now, and the trial window at last starts on June 7th. Needless to say, there is a lot at stake for the travel industry, and they are throwing everything at it. It would be fair to say it is David v. Goliath. My case is very strong, supported by an expert witness appointed by the Court. The document over which there is currently an argument is the actual Itinerary which was emailed to me two weeks after I had paid the initial deposit, along with Ts & Cs, ATOL certificates, and various other contractual documents, all of which I scanned on receipt. The company accepts that it was not acting as a travel agent but as the organiser with primary liability - there is no issue about that. But their solicitor is claiming that the (same) Itinerary was not provided until 7 months later by a third party supplier, and therefore it was not a contractual document. This therefore goes to the root of the case, and there is absolutely no question that the Itinerary was sent to me by email shortly after I paid the deposit. The email clearly lists all the attachments one by one by name, including the Itinerary. They are insisting that I should have disclosed the record of the scan and image when Disclosure was originally ordered, but at that time I did not know that it would be needed, or that the solicitor would dispute its existence.

        But I have also more recently obtained exactly the same letter and attachments from 4 other fellow passengers, all dated from two years prior to mine as they booked the same tour and dates as me, but well in advance of me. Copies of their correspondence has also been provided to the solicitor back in September to be included in the Bundle, but he is insisting that they should have been disclosed at the time of Disclosure two years ago and are therefore inadmissible now. The contractual Itinerary is of course fundamental to the case, and disclosure last September of all of the letters and the scanned record was made as part of the formal joint briefing document to the Expert Witness, and was the subject of a "Further and Better Particulars" request by me as to the grounds for the objection. So frankly this goes to heart of the dispute.

        I think that my only course of action is to include the scan record in the Bundle and fight that issue out in Court, although the Judge will presumably be displeased.

        Thanks for the help.


        • #5
          Firstly I have no experience in this area but have read with interest. Clearly the itinerary and when it was received is key. I think my argument would be that the company knew they sent it and you could not have envisaged that they would deny the truth of this so saw no reason to include it originally. If you mentioned anywhere in your documents that it was sent ie "because of the itinerary sent to me before the trip" then it would seem that the rule quoted by PT2537 would apply ie you have stated that it existed. I would certainly include it. I would also note that the other side have been trying to stop you doing so but that you are justified because of the above. This is only my personal view and I have no experience to help with - apologies!


          • #6
            I believe you can make application to have these documents included, and at the same time request relief from sanctions.
            Here's an article which will explain the reasoning in more detail

            Perhaps pt2537 can confirm if this is a way to go


            • #7
              Those are encouraging thoughts and good arguments to remember. Thanks.


              • #8
                Originally posted by des8 View Post
                I believe you can make application to have these documents included, and at the same time request relief from sanctions.
                Here's an article which will explain the reasoning in more detail

                Perhaps pt2537 can confirm if this is a way to go
                I will raise it at the Pre-Trial Review with the eventual judge which will be 7 days before the trial.


                • #9
                  Originally posted by des8 View Post
                  I believe you can make application to have these documents included, and at the same time request relief from sanctions.
                  Here's an article which will explain the reasoning in more detail

                  Perhaps pt2537 can confirm if this is a way to go
                  where is the article please


                  • #10
                    Originally posted by hra47 View Post

                    where is the article please
                    OOps sorry



                    • #11
                      Many thanks - the law is an ass still seems to apply


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