Letter before claim

Loadsofchildren123

IamEmanresu helpfully posted on dramaking's thread Rule 33 which is about witnesses attending court.


The PPCs regularly send along an advocate without the client being there. This is perfectly proper - if you use a lay rep the client must be there but if you have a lawyer the client doesn't have to be there. However, the witness DOES have to come - and the witness very often is the client (there is a subtle difference - they don't have to come as the client, but as the witness).


If you submit a statement from someone who has no intention of coming to court the proper process is to serve a Civil Evidence Act Notice saying they aren't coming and why. "they are too busy pursuing multiple claims" is not good enough.


Write to Gladstones and quote from Rule 33 and ask why Mr G was not at court last week and ask for confirmation that he will be attending the adjourned hearing - because the court rules require his attendance and you are entitled and want to cross examine him about matters contained in his witness statement. If they don't reply, chase them and point out the requirement for a Civil Evidence Act Notice as per the relevant part of Rule 33.


You are then setting yourself up for a nice complaint at the start of the hearing about his absence.

Kind_Of_Irritated

Hmm. Sound sensible, Loadsof... BUT... if he MUST attend and he doesn't (he didn't the last time) wouldn't the judge find against him by default? If they stick to the "rules", they should, surely?

But it seems judges are at times over liberal when it comes to the legal necessities.

Since the judge at my first hearing swatted aside my questions re RoA what's to say he won't do the same if I raise this? Hate to say it but I don't necessarily trust the judiciary on these "Rules".

Notice of intention to rely on hearsay evidence 33.2
(1) Where a party intends to rely on hearsay evidence at trial and either –
(a) that evidence is to be given by a witness giving oral evidence; or
(b) that evidence is contained in a witness statement of a person who is not being called to give oral evidence;
that party complies with section 2(1)(a) of the Civil Evidence Act 19951 serving a witness statement on the other parties in accordance with the court’s order.
(2) Where paragraph (1)(b) applies, the party intending to rely on the hearsay evidence must, when he serves the witness statement –
(a) inform the other parties that the witness is not being called to give oral evidence; and
(b) give the reason why the witness will not be called.
(3) In all other cases where a party intends to rely on hearsay evidence at trial, that party complies with section 2(1)(a) of the Civil Evidence Act 1995 by serving a notice on the other parties which –
(a) identifies the hearsay evidence;
(b) states that the party serving the notice proposes to rely on the hearsay evidence at trial; and
(c) gives the reason why the witness will not be called.
(4) The party proposing to rely on the hearsay evidence must –
(a) serve the notice no later than the latest date for serving witness statements; and
(b) if the hearsay evidence is to be in a document, supply a copy to any party who requests him to do so.

Loadsofchildren123

But it seems judges are at times over liberal when it comes to the legal necessities.

Since the judge at my first hearing swatted aside my questions re RoA what's to say he won't do the same if I raise this? Hate to say it but I don't necessarily trust the judiciary on these "Rules".


Yes and Yes. Judges have an overriding discretion to say breaches don't matter and R33 provides that they have a discretion as to what weight to attach to an absent witness's evidence. Ask as many questions of the advocate as you would have asked Gardner if he was there - the judge may start getting cross that he's not turned up. But make sure there are genuine questions otherwise this won't do you any favours.


The quality of the judge you get and his robustness is a lottery, I'm afraid

Kind_Of_Irritated

Thanks as always, Loadsof... will start making a list of questions, ready for the new hearing.

Have now emailed Sadstones regarding the Civil Evidence Act Notice, Rule 33. Not expecting them to email back (they seldom do) but at least they will know I am still up for fighting the so-and-so.

henrik777

Loadsofchildren123 wrote: »

IamEmanresu helpfully posted on dramaking's thread Rule 33 which is about witnesses attending court.


The PPCs regularly send along an advocate without the client being there. This is perfectly proper - if you use a lay rep the client must be there but if you have a lawyer the client doesn't have to be there. However, the witness DOES have to come - and the witness very often is the client (there is a subtle difference - they don't have to come as the client, but as the witness).


If you submit a statement from someone who has no intention of coming to court the proper process is to serve a Civil Evidence Act Notice saying they aren't coming and why. "they are too busy pursuing multiple claims" is not good enough.


Write to Gladstones and quote from Rule 33 and ask why Mr G was not at court last week and ask for confirmation that he will be attending the adjourned hearing - because the court rules require his attendance and you are entitled and want to cross examine him about matters contained in his witness statement. If they don't reply, chase them and point out the requirement for a Civil Evidence Act Notice as per the relevant part of Rule 33.


You are then setting yourself up for a nice complaint at the start of the hearing about his absence.

Rule 33 doesn't apply to small claims track.


CPR 27.2

https://www.justice.gov.uk/courts/procedure-rules/civil/rules/part27

Loadsofchildren123

Are there any rules about witnesses in small claims? So they. An out n statements saying anything and not have to produce the witness for challenge? I'll have steam coming out of my ears soon.....

Kind_Of_Irritated

Small claims courts seem to be set up specifically to serve PPCs.

Thanks for the pointer on this henrik777. Loadsof... is used to dealing with proper courts. Y'know, the criminal courts where criminals don't usually get away with it.

henrik777

Loadsofchildren123 wrote: »

Are there any rules about witnesses in small claims? So they. An out n statements saying anything and not have to produce the witness for challenge? I'll have steam coming out of my ears soon.....

Not especially. They do not need to be sworn in either.

The weight which a court should place on the evidence of someone who cannot be cross examined will not (or should not is probably more accurate) be particularly heavy especially when there are opposing views.

Small claims were designed for minor disputes but the money grabbing governments kept raising the limits and thus more and more complicated cases are being heard on the SCT.

Of course, a crappy wee parking claim was always thus.

Loadsofchildren123

sorry about my unintelligible typos, using my phone last night! I think I meant "put in" statements.....
I don't do criminal law, but yes I'm used to the full procedure in other courts (but same judges who often have no clue)

Kind_Of_Irritated

How many sorts of courts are there, FGS!?