So today we were back in Court facing our old muckers MKDP LLP.
So we arrived in Eastbourne this morning ready to appear before the DJ, we had no bundle for the trial as MKDP had not served it in time, but as far as we knew they had lodged a copy with the Court, how wrong we were.
Its perhaps worth pointing out the failings of MKDP, so firstly they were ordered to agree the trial bundle with us before it was due to be lodged with the Court. They clearly tried their best, they sent me the trial bundle index on Tuesday for the trial that we had dealt with the day before. Bravo MKDP, stupidity of the week award is yours.
So we pointed out their failings, and asked for the bundle to be sent to us urgently as they were nearly out of time. So instead of sending the bundle to us with the correct postage, they sent it special delivery and paid no postage for it. As a result the postie gave them the bird and refused to deliver the bundle, good old postie. Thus we didnt get the hard copy bundle.
So we prepared for the hearing based on an electronic copy of the bundle.
Anyway, we walked into Court this morning, and everything seemed ok, we asked the DJ to deal with a preliminary point first but he decided that he wanted to hear the whole case rather than deal with it piecemeal. I cant fault the DJ on this point.
Tom Brennan (our counsel) calls our client to the stand, the client is sworn in, and Tom asks the client to turn to page 125 of the bundle in front of him which should be his witness statement. The client pauses and looks at Tom and comments “where do i find the page numbers”. Tom stops and asks the client to look at the first page of the bundle in front of him and low and behold MKDP have supplied an authorities bundle of cases rather than a trial bundle.
Queue the panic on the Claimants part.
The DJ made his view perfectly clear, the failure to supply trial bundles was serious and significant, it was a serious breach of the Courts order. The judge indicated that his view was the Claim was to be struck out and that it was for the Claimant to try and change his view.
Now i felt sorry for the Claimants advocate, talk about having your butt kicked hard without any way of defending yourself and through things that clearly werent his fault. However my sympathy was pretty short lived im afraid.
The Claimants advocate sought relief from sanctions applying the Denton criteria, the submissions were that while the breach was serious, the Claimant should be granted an adjournment to allow them to put right their errors, or in the alternative the Court could allow the case to proceed on the basis that the Claimant could try and bodge together a bundle from spare docs.
Sooo at that point i had already primed Tom with a case called Fitzroy Robinson v Mentmore Towers, para 9 of Justice Coulsons ruling made it clear that eleventh hour adjournments should be subject to certain criteria. The Claimants submissions were that the Defendant could be compensated in costs for an adjournment and that they should be granted an adjournment, however it showed they hadnt read the papers, if they had they would have seen the Defendant actually resides in Australia, the otherside of the world which made it slightly complicated for the Defendant to simply pop back to the Court as a result of MKDPs incompetence.
So the end result, Claim struck out. But that wasnt the end, haha. After the Defence was put in, i made a part 36 offer, the offer was to accept their discontinuance on the basis they paid the costs to date on the standard basis. The offer expired, and MKDP ignored the part 36 totally ( im betting they wish they hadnt now) but the DJ accepted that the offer was valid thus we were entitled to indemnity costs and a 10% uplift too.