Small court claim preparation - lay representative, late evidence filing

bobbstar21

Hi all,

Based in England.

I have been helping my auntie file a court claim against an eviction specialist company.

I was also involved with the service they provided - initiating the service and the complaint that followed.

We have the court hearing on 1st April.

My auntie has been quite poorly and I have been assisting her heavily for the most part.

We received the court hearing order around 23rd Jan directing us to pay the court fee and submit evidence to the court by 20th Feb. I know it's ultimately my aunt's responsibility but I totally missed that deadline and I was away when my aunt received the order. It's also not a lot of time to gather all the evidence (maybe it is) and usually you just have to file it 14 days before the hearing, or so I thought. I only realised this on 28th Feb.

I quickly gathered everything including doing the witness statements with my aunt and eventually submitted by 4th march (delay in royal mail also) to both the court and defendant.

We are now 14 days away from the hearing. I am not sure if we are meant to receive a confirmation or acceptance of the evidence. I did attached a letter of apology and request to accept late evidence.

We have also not received anything from the defendant. The defendant also did not turn up to the mediation that they ticked they would in their defense.

1) What will happen here? I'm not sure we are in a much greater position given we submitted late
2) I plan to be the lay representative for my aunt. I did submit a request in writing. Is there anything further I need to do? Since I have personally been involved in the claim, does that make any difference to how I will be treated in terms of handling the case? 

A_Geordie

Hi, 

First and foremost, couple of points.

1. Did the court order specify any consequences if the witness statements were not served by the date required by the court?

2. This is not a direct attack on you and more of a general comment, but the suggestion that it is not a lot of time to prepare and serve a witness statement and associated evidence is 99% a nonsense, and is merely an excuse for lack of preparation. Everyone (including legal and non-legal professionals) have a habit of waiting until the court order comes in before they start doing something about it, and more often than not, means the statement and evidence is rushed or worst case, not filed on time. There is nothing within the rules that prevents you from preparing the witness statement and gathering that evidence as soon as you file the claim. Court timelines are strict and short and it is key to ensure good time management.

So, to the rest of your post: 

1. It wasn't necessary for you to send a letter of apology and is unlikely to do anything. The Civil Procedure Rules govern what happens if you don't follow the rules or court orders. Specifically, Part 32 of the CPR is all about evidence and according to rule 32.10, if a party fails to serve the witness statement within the time specified by the court then that party cannot rely on the evidence without the court's permission. When you are required to 'serve' something, it means on the other side. Any reference to 'file' means with the court. Normally, the court order will say you have to file and serve the witness statement.

Strictly speaking, this is a sanction and the rules for sanctions is that you need to obtain relief by the court from those sanctions. Suggest you do some research on the Denton criteria and relief from sanctions, there is a 3 stage process that the court should apply. However, for small claims cases most judges will typically disregard this though I have seen claims/defences struck out entirely by judges for not serving witness statements and evidence on time.

Suggest this is flagged at the beginning of the hearing if the judge doesn't notice and seek permission then, but also point out that the claimant hasn't bothered to serve theirs on time. If nothing is filed/served by the claimant you could ask the court to give judgment in your aunty's favour since there is no evidence put forward to support the claim. The judge is not obliged and may still test your aunty's defence. 

2. If the Claimant agreed to mediation but failed to turn up, that could be used as evidence when it comes to costs/compensation. Typical unreasonable behaviour like this without good reason might justify the court making a 25% reduction on costs sought. 

3. You don't need to do anything other than making sure your aunty turns up at court with you. The rules for lay representatives to act on behalf of the party to a claim is only allowed if that party also shows up as well. You would be wise to explain you are acting as a lay rep to the judge who should be aware but it would also be sensible to take a copy of the relevant part of the legislation, which is the Lay Representatives (Rights of Audience) Order 1999. Some judges can be funny with this or at least question your right to speak on their behalf.

There is a trend for lay reps and litigants in person to be disadvantaged against those who are legally represented i.e. the judge fails to involve you on points of law or procedure and would rather speak to the lawyer only, but you shouldn't be (in theory). 

One final point, certain activities are considered by law to be reserved legal activities to be performed by qualified lawyers only. If you do any of these activities without the law allowing for it, then you are committing a criminal offence. I say this because you mentioned that you have done all the work and involved personally in the the claim. Might not affect you on this case but could do in the future if someone raises a concern. More about those reserved activities below.

Reserved legal activities - The Legal Services Board

bobbstar21

Thank you very much.

1) The order only says
- the judge may refuse to consider a document if it has not been sent to the other party as required by this order
- the judge may refuse to hear the evidence or consider any statement of any witness whose statement has not

been prepared and copied to the other party and the court in accordance with the paragraphs above

2) Understood

3) I have read examples of here of a claim being struck out in cases where both the claimant and defendant have not submitted witness statements, benefitting the defendant

4) I think you meant defendant here (just in case) 

5) of course my aunt will turn up

I'm going to ask my aunt to call the court and see if the evidence may have been accepted - is this ok?

Jenni_D

To clarify ... when you* sent the WS to the court (i.e. filed it), did you also send a copy to the Defendant (i.e. served it)?

I know you say you haven't received their WS, but have they received yours? (The court won't send it to them - that's your responsibility).

* your aunt; it's clear that you're doing everything for her but ultimately it's her responsibility.

A_Geordie

That seems to be standard language for a court order, which reflects CPR 32.10 so nothing of concern there.

Personally I would not get your aunt to call up and ask if the witness statement will be accepted. That's not the role of the court staff and it would come across as your aunt trying to flout the rules. I suspect the court will tell you to follow the CPR and make an application because anything you ask of the court must be done by way of application. Or the court staff might pass this on to a judge and you'll probably end up with the same answer. Anything else would be down to pure luck. Remember, court staff are not legal advisors and don't have authority to make court orders, so unless a court order has been issued the status quo remains the same.

Either make a formal application which will cost your aunt £305 (not recommended) and could then jeopardise the hearing date to be pushed back pending the application, but given the date is so close I think that is unlikely to happen and instead the application will probably be heard on the day of the hearing. In that case your aunt would have wasted £305 because she could have requested permission for free on the day itself.

bobbstar21

Thank you both.

I sent evidence packs including the witness statements (3 people) to both the court and the defendant with signature confirmation.

Ok thanks, we will not call the court.

Okell

@bobbstar21 -  don't want to risk overloading you with information, but in addition to the realy good advice above from @A_Geordie you might want to consider posting on a couple of other forums:

Legal Beagles  -  Housing, Property and Neighbours - LegalBeagles Forum    (They also have a board for general legal issues including civil procedure rules  -  General Legal Issues - LegalBeagles Forum )


Consumer Action Group  -  They ahve a board dealing with homelessness and tenancy etc issues Homelessness - National Consumer Service and another dealing with general legal issues General Legal Issues - National Consumer Service

Good luck to you and your aunt

(NB  Sometimes it is possible to be overloaded with too much - or apparently conflicting - advice, so it's entirely up to you whether you want to try those other forums out.  A little advice is better than no advice, but soemtimes too much advice is worse than a little advice)

bobbstar21

Should I apply for relief from sanctions then using the Denton criteria?

I think we have reasonable grounds though they apply to me than my aunt. Of course it's ultimately my aunt's responsibility but I told her I would handle it...

LightFlare

bobbstar21 said:

Thank you both.

I sent evidence packs including the witness statements (3 people) to both the court and the defendant with signature confirmation.

Ok thanks, we will not call the court.

Was this specifically advised ?
Have you asked for or received any confirmation of delivery+signature ?
Signed for is typically not advised - a proof of postage cert is much better as the first requires a specific action by the receiving party but the seconds assumes sucrssfulldelivery after x days (I think it’s 3)

bobbstar21

It was not suggested anywhere but seems reasonable to do? Would it not be reasonable to assume delivery if it has been signed?

Via the code, I can tracked that it has been delivered. There is a picture of the evidence pack and a signature with the delivery date and time.

GDB2222

We’re getting into Royal Mail procedures now, but I think the current system is that the postman signs the delivery confirmation when he pops the letter through the letter box. So, unless the picture shows the wrong front door, that’s good evidence of service. 

For small claims in particular,  service of witness statements 3-4 weeks before the hearing will not prejudice the defendant, and the judge will not be fussy about it being a bit late.