A recent remote small claims hearing highlighted issues with witness evidence. The Defendant company, our member, sent a different representative to the hearing than he who had signed the witness statement, due to illness. As a result, the only evidence was the witness statement and no testimony was given.
At the same remote hearing, the Claimant was being coached off-screen by a third party, which was so obvious that the judge had to explain his duty to him. Part 32 of the Civil Procedure Rules governs evidence in civil proceedings, in particular, part 32.4(1) which states:
“A witness statement is a written statement signed by a person which contains the evidence which that person would be allowed to give orally.”
The Claimant in the case issued proceedings after he was refused a full refund for his vehicle, despite our member having offered a repair, which was the only remedy available after 30 days of ownership.
The judge found that:
- The Claimant was not entitled to a full refund.
- The claim was inflated.
- The second diagnosis was confirmation of the first and could not be claimed.
- The Claimant had not provided adequate opportunity, as required under the CRA 2015, for the Defendant to diagnose the fault.
The Claimant was awarded £600 of a £5000 claim. However, the judge awarded £800 in costs, the submission cost, and the hearing fee. Given the submission cost is proportionate to the sum of the claim, and only 10% of the claim was awarded, permission to appeal the point was sought. Permission to appeal was refused on the grounds that as part of the claim had been granted, costs should follow.
Despite the issue about costs, our member was happy with the outcome having successfully argued the Claimant had not given them the opportunity to avoid litigation by appropriate pre-action conduct.
We always advise our members that, even though the Defendant may be a limited company in the majority of cases, the person attending the hearing to give evidence must be the same person who gave and signed the witness statement. In this case, our member was happy with the outcome, but the consequences of not having the opportunity to speak and ask questions of the other party at a hearing can be detrimental.
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