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tdlawyer
tdlawyer, Lawyer
Category: Law
Satisfied Customers: 1096
Experience:  11 years experience of general practice.
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I attended a small claims trial today where my defence and

Customer Question

I attended a small claims trial today where my defence and statement of evidence had been submitted correctly to court but not provided to the judge. At the beginning of the trial the submissions were found in the court office and provided to the Judge. The Judge did not adjourn the case and instead heard it. I believed the lack of the Judges review of my submission (but she had read the claimants) and the time it took to establish the facts prevented a fair trial. The verdict was made on a balance of probabilities after a verbal agreement had added terms to the contract. The Court ran out of time and did not allow me a chance to respond to the claimant representation (a denial of a verbal clause in the agreement which I believe was a lie). I had numerous supporting facts and evidence that I believe added to the balance of probabilities that the agreement was made - but the Judge denied the hearing of these and went to verdict due to time restraints. The time would not have been restrained had my submissions been read and the Judge understood the background and facts to the case.
Does this provide me with Grounds of appeal or should I accept the judgement and move on?
Many thanks
Submitted: 2 years ago.
Category: Law
Expert:  tdlawyer replied 2 years ago.

tdlawyer :

Hello, welcome to the website. My name is Tony, I can assist you with this.

tdlawyer :

I know you disagree with the judge's findings, but why do you say the way he dealt with the hearing was unfair or prevented a fair hearing?

JACUSTOMER-pn1gwy68- :

The Court failed to provide my statement of facts for the judge (court error) the judge therefore had pre read the claimants and not mine (the defendants). The failure of the judge to understand the facts of the case meant the majority of the time allocated was to the Claimants claim. I was then provided an opportunity to respond at which point the Judge established the critical issue - a verbal agreement at a meeting between the parties. The claimant was given the opportunity to deny this oral agreement and as time ran out the Judge would not allow me an opportunity to provide my evidence as to why I believed this was a lie (this was all in my statement of evidence) which the Judge had not read

tdlawyer :

If you can likely show that a judge has misunderstood your evidence, that's a good reason to appeal.

tdlawyer :

I doubt the absence of reading your statement of facts would be considered a good reason, as the court would have had the chance to get your version during the hearing.

JACUSTOMER-pn1gwy68- :

And should I not have been able to respond to the Claimants claim or to cross examine it if I believed it to be false and had evidence to support this - rather than the Judge end the trial as the time limit was approaching

tdlawyer :

You should always have the chance to cross examine their evidence that they give - yes. If you were prevented from doing that, this would be a ground to appeal.

JACUSTOMER-pn1gwy68- :

And does it matter whether it was in their first statement of claim or later in the trial - should I be given an opportunity to cross examine at each stage?

tdlawyer :

You should be given the chance at trial only - this is the only place you get to cross examine usually.

JACUSTOMER-pn1gwy68- :

Sorry I think I explained poorly.

JACUSTOMER-pn1gwy68- :

I was given the opportunity to cross examine his first statement of case in the trial, I wasn't given the opportunity to respond to the subsequent evidence he gave later in the trial

tdlawyer :

You should have the chance to cross examine on any evidence he gave at trial. Obviously, if you asked a question about something he said and he gave an answer, that's his answer, and you can't keep questioning him on the same thing. It's about fairness - you need a fair shot at questioning him on his evidence, but not beating up him over it - there is a line.

JACUSTOMER-pn1gwy68- :

I appreciate that - the judge asked him the question - he answered the judge and I was not given the opportunity to cross examine at all to his response to the judge

tdlawyer :

Do you think that affected the evidence that would have been given if you had cross examined, or that you were treated unfairly?

JACUSTOMER-pn1gwy68- :

I think I was treated unfairly in not being able to cross examine and different evidence would have been heard had the cross examination taken place

tdlawyer :

Then it sounds like you might have grounds to seek permission to appeal from the appeal court.

tdlawyer :

You need to put your points on paper to the appeal court first, where you ask for permission to appeal.

JACUSTOMER-pn1gwy68- :

Ok thanks - will do

tdlawyer :

Is there anything else you wish to ask?

JACUSTOMER-pn1gwy68- :

are there any negative consequences for me seeking permission to appeal

tdlawyer :

No, not in seeking permission. If you were in small claims, you remain subject to the same costs rules in the appeal court.

tdlawyer :

This applies only when you appeal to a circuit judge in the county court through. If you go to the next stage afterwards, to the Court of Appeal, that's a very different game and you should never do that without professional advice.

JACUSTOMER-pn1gwy68- :

Agreed, so your recommended action (which I'm not specifically relying on) is that given my experiences and my assessment of those I should seek permission to appeal (Form N164) to see if the Court will grant me permission to appeal?

tdlawyer :

I can't say whether you should do it or not, but I can't see that you stand to lose a lot by seeking permission to appeal.

JACUSTOMER-pn1gwy68- :

ok thanks - and finally - should I make payment for the judgement thats awarded against me and await the outcome of the appeal - or should that be withheld pending the outcome of the appeal process

tdlawyer :

You might consider including an application in the appeal notice for the order to be stayed pending the outcome of the appeal. If the appeal court doesn't grant your application (it will usually when it thinks you might win the appeal) then you still have to pay.

JACUSTOMER-pn1gwy68- :

OK thanks - I think that's it - very helpful

tdlawyer :

You're welcome. Good luck!

tdlawyer :

Is this okay, do you want to ask me anything else? If not, I'm going to logoff?

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