VCS/BW Legal - writing defence

Loadsofchildren123 · 28 June 2017 at 9:41AM

There is no provision in your order for a SA.
The small claims directions order never provide for them.
However, SAs are standard in all other types of cases. The normal order is for them to be filed and exchanged 3-4 days before the hearing.
If you turn up with it on the day the judge is more likely to ignore it.
The judge may ignore it anyway, saying that there is no provision for SAs. You would respond by saying it simply summarises your case in brief terms, cross referencing it to the pleadings and documents and it is designed to save time, not add to it. Most judges will be happy to have a SA. If you get a grumpy one, don't be phased, just use it as your crib sheet.

But definitely don't turn up with it on the day, send it to the court and to the C 3-4 days before. Email it to the court and put in the title of your email: urgent: document for hearing on x date. When you get to court check it has reached the judge and if it hasn't give it to the court clerk (he basically manages the cases for the judge, he sits inside the court room but he comes outside to find the parties, find out their names, if they are represented etc - he usually has a clip board - find him/her and ask if the judge has it and give him a copy if the judge doesn't).

You need to take to court:
your bundle (and if you have not lost the will to live, take a spare in case the court denies receiving it or it's got mislaid)
the other side's bundle
your skeleton x3 copies
the legal authorities you rely on x3 copies
The Rights of Audience documents if you want to argue RoA

Loadsofchildren123 · 28 June 2017 at 10:04AM

"Your bundle" is your file with the WS and documents in it that you served/filed last week.

Normally there's provision for the C to make a composite bundle for the final hearing, which would have everything in it (claim, defence, directions order, WSs and docs), but this is missing in your case. So there will be no such bundle (and I doubt BW Legal will volunteer one).

Is your WS/docs bundle paginated? If so, I think take a spare copy of your defence with hole punches and hand it up to the judge and suggest it is put into the front of your bundle for convenience. If your Defence isn't already paginated, paginate it so you can refer to it.

I think perhaps email BW today and ask for the name of the person they have instructed to attend the hearing. They probably will ignore this but do it anyway.

MadHatter752 · 28 June 2017 at 10:08AM

Here's where I think I should have put everything in a hole punched file and I didnt.

My defence was paginated but my WS didnt follow on from this... it started afresh. I will have to refer to page XX of Defence and page XX of WS i guess!

I need to find somewhere to photocopy lots of stuff as it is costing a bomb on our home printer!

The legal authorities I am guessing are the statues/laws I am relying on? or would these be cases i am referring to in my Defence/WS/SA?

Loadsofchildren123 · 28 June 2017 at 10:09AM

Authorities:
These are the cases you rely on that are in your defence and your WS.

I forgot to add the law/statutes to the list of what to take - take copies of the relevant parts with you.

Hopefully my post 243 answers the other questions. We refer to "bundles" - these are just files, but lawyers and courts call them bundles. It is doubly confusing because your court directions order probably makes no reference to any bundle, but we use this term on the forum! When we say "your bundle" we mean the one you filed with your WS and documents - ie the evidence and documents you are relying on to prove your defence.

MadHatter752 · 28 June 2017 at 10:12AM

re my SA... do i have to email to court and send a hard copy or will email suffice?

Edit: I have just emailed BW Legal to ask who they are sending but don't hold out much hope. Cannot wait until this is all over!!

Loadsofchildren123 · 28 June 2017 at 10:25AM

I think email is fine, but you have to make it clear in the heading that it's for a hearing (so it doesn't remain in an unopened queue). I think some courts have a different address to use for upcoming cases - call them and ask.

Loadsofchildren123 · 28 June 2017 at 10:33AM

Once your SA is off, you need to:

1. prep your RoA arguments - print off the articles, bar council guidance, CiLEX guidance that are all referenced in other threads. Also the Lay Rep Order - my understanding of the bar council guidance is that unregistered barristers (ie those not regulated by the bar council) can only appear if they are treated as Lay Reps (and under the Lay Rep Order a lay rep can only appear WITH a client, so no client no RoA as a Lay Rep).
Take the BMPA link and use it on the day - you put in the name of the person and they search it for you to see if they are registered solicitor, barrister or CiLEX. If unregistered, they are unregulated and NO RoA.
If they are a proper regulated solicitor then they have RoA as they are instructed as solicitor's agent.
If they are a proper regulated barrister then they have RoA.
Not sure about CiLEX but I think the same as above - if regulated they are OK.
If unregulated (ie no solicitor's practising certificate, not registered with bar council or CiLEX) then they have no RoA unless they can say they are a Lay Rep, but then they need the client with them (and the client almost never turns up unless the court is their local court or if there's a lot of money at stake).

2. Do your costs schedule (must be served/filed at least 24 hours in advance).

On the day:
Ask who the advocate is: their name and their qualification.
Contact BMPA to check who they are.
If RoA argument applies, run it. The DJ may be unimpressed and may just say "oh Mr/Ms X appears in front of this court all the time, of course s/he has RoA". Press the point for a bit - say that just because nobody has thought to challenge RoA before it doesn't mean the other person has RoA and it is a valid point. The DJ may say "that doesn't apply in the small claims court" and you say that there is no provision anywhere which says the rules/legislation on RoA don't apply to small claims.
Press your points for a bit, judges do sometimes change their minds. If you can see you are flogging a dead horse, drop it and move on.

Address the judge as Sir or Madam.

Like I said above, practice making your oral submissions in your bedroom or with a family member or friend so that on the day you've already done it and know you can do it again.

MadHatter752 · 28 June 2017 at 10:42AM

thanks LoC123... I just don't think I can do this. I don't mind the paperwork side but I petrified of being in court and speaking... might just contact the BMPA to see if anyone is available... it's a bit last minute but i've got to try.