Steps between Allocation and the Hearing; Preparation for the Hearing
| Author | Patricia Pearl/Tim Parker |
| Pages | 167-187 |
Part 3
Hearings
Chapter 8
Steps between Allocation and the Hearing; Preparation for the Hearing
8.1 INTRODUCTION
This chapter assumes that the parties have not managed to settle their dispute, whether through mediation or otherwise.
The judge will set out the exact steps each side must take to prepare the case for a hearing. The objective is to get there with the minimum of fuss and expense, and to ensure that both sides know the details of the other side’s case so there are no surprises at that hearing.
The court will give the parties at least 21 days’ notice of the date of the hearing unless they agree to accept shorter notice (CPR 27.4(2)(a)).
Basics
• The judge will give standard directions in a range of different types of cases but may give special directions
• In some cases there will be a preliminary appointment
• Both parties must send copies of their documents to the other side and the court, usually 14 days before the hearing
• The judge may require a party to provide further information at any time
8.2 STANDARD DIRECTIONS
Every case is reviewed by the judge at the time of allocation. Where appropriate, directions will be tailored to the needs of the particular case, but usually they will be the basic standard directions set out in CPR PD 27A, Appendix B (see
170 Small Claims Procedure in the County Court
Appendix 9 of this book). If a claim is for personal injuries and began under the Road Traffic Accident Small Claims Protocol, the judge will consider using the standard directions in CPR PD 27B, Appendix B (see Chapter 13).
The standard directions in CPR PD 27A, Appendix B provide that:
• Fourteen days before the hearing (or by such other date as the court directs), each party must send copies of documents that are to be relied on to the other side.
• Original documents must be brought to the hearing.
• The court must be informed immediately if the case is settled by agreement before the hearing date.
• The parties are told the date of the hearing and the time allowed by the court.
8.3 THE HEARING VENUE
See paragraphs 2.3.17 and 4.10 for the rules about cases being sent from one court to another on the filing of a defence
8.3.1 Transfer by court order
Sometimes, the hearing venue which comes about by the usual procedures is not suitable. The parties can try to agree a different venue. If they do agree, they should write to the court and request the change. The court may then ask them to issue an application for a consent order, which in most cases will not require any hearing.
The judge may feel able to make the order on paper by consent, but is likely to require a hearing if the transfer is disputed.
See paragraph 5.4 about applications.
8.4 WHAT DOCUMENTS ARE NEEDED FOR THE CASE?
The outcome of cases often turns on the documents which the parties put before the judge. Many disputes boil down to an argument about events which happened years ago. What was said when the contract was made? Did the customer pay in cash? Where exactly did the vehicles collide? Memory is not always reliable, and witnesses are not always honest. Documents created at the time (‘contemporaneous documents’) can shed useful light on what really happened.
The definition of ‘documents’ in a small claims case is not limited to pieces of paper. It includes photographs, audio and video recordings, and electronic communications or data of any kind. CPR PD 27A, Appendix A lists the information and documents which the court will usually need in particular types of case. These form the basis of Table 8.1, to which we have added some further notes about holiday and wedding cases.
Table 8.1 Suggested documents for use in particular types of small claims cases (largely taken from CPR PD 27A, Appendix A)
Documents
All cases Will include any:
– letters
– contracts
– notes
– photographs
– witness statements
Road traffic May include:
– experts’ reports
– medical evidence
– witness statements
– invoices and estimates for repairs
– documents which relate to other losses, such as loss of earnings – sketch plans (agreed in advance if possible) and photographs
Building disputes, vehicle repairs and similar contractual claims
May include:
– experts’ reports
– the contract
– witness statements
– experts’ reports
– invoices for work done or goods – photographs
– estimates of work to be done
Disputes between landlords and tenants about damage caused and deposits
May include:
– tenancy agreement and any inventory
– rent book/evidence of rent payments
– photographs
– witness statements
– invoices or estimates for work or goods
Holiday and wedding claims
May include:
– any written contract, brochure or booking form – photographs
– documents showing payments made
– witness statements
– letters
172 Small Claims Procedure in the County Court
In fast and multi-track cases, the parties must usually give formal ‘disclosure’ by revealing to each other the documents they hold, following the formal rules about disclosure in CPR Part 31.
CPR Part 31 does not apply to the small claims track – no list of documents is required (CPR 27.2(1)(b)). The standard direction is that copies of documents must be sent to the other side at least 14 days before the hearing, although a different time may be specified. The parties do not have to prepare a list of all the relevant documents they have, but are required to send to the opposite party copies of documents they intend to rely upon at the hearing.
There is no point in withholding documents and producing them for the first time at the hearing. The element of surprise will not impress the judge. Litigants who are ambushed by the other side producing documents at the final hearing should consider asking for an adjournment (see paragraph 10.9.2).
Documents which should be excluded from the papers sent to the court are:
• those which are not relevant to the dispute; and
• without prejudice correspondence: essentially, that is, offers to settle or admissions made with view to settlement.
8.4.1 Bundles
In court terminology, documents and/or any witness statements which have been collected and then stapled or otherwise bound together are known as the ‘bundle’.
There will be two bundles – one prepared by each side. This may result in duplication, but that does not matter. The most important things are that all the documents should have been seen by both sides before the hearing, and that they are all available for the judge.
It always helps to present a case clearly. A usable bundle is important. You need to be free to concentrate on what is said at the hearing, not hunting for mislaid documents, and the same goes for the judge:
• If there are more than 20 or so pages, put everything together in a ring binder or lever arch file.
• Number the pages at the bottom right-hand corner. If you add something later, and it needs to go in the middle of the bundle rather than at the end,
don’t renumber everything – just add letters. For example, if you insert two pages after page 26, label them as pages 26A and 26B.
• If there are lots of different documents, an index is helpful.
• Make sure that each page can be read without needing to take the ring binder apart, or to extract sheaves of paper from plastic wallets.
• Check that copies are legible and that you have copied both sides.
• If there are emails or text messages, print out the whole chain of correspondence, making sure that dates and times are clear. Do not expect the judge to look at the messages on your mobile phone.
• Put documents in date order as far as possible.
If you want to rely on an audio or video recording, you should assume that the court will not have any way of playing it, and bring your own equipment. This should ideally be loud enough, and have a big enough screen, for everyone to see and hear it in one go. Unless the audio is very short, a transcript may be helpful. If so, include that in the bundle – and not less than 14 days before the hearing (and preferably much sooner) provide a copy of the transcript and the recording to the other side, inviting them to agree that the transcript is accurate.
It makes sense to keep a record of the documents sent, preferably by drawing up an index as suggested above. The other side can use the index or schedule to check that their copies are complete...
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