Non Compliance With Court Rules and Orders Regarding Evidence For Trial
Non compliance with the court rules applying to civil claims can happen as the rules can be overwhelming. There are found here. How does someone unfamiliar with them know where to start?
The rules for small claims are more relaxed but it does not mean they should be ignored or court orders disregarded.
Court Orders For Evidence
The courts in small claims will usually set deadlines for when the parties must comply with, in the same order in which it notifies of the trial date. The usual order is that at least 14 days before the date fixed for the final hearing, the parties shall file and serve on every other party copies of all documents on which the party intends to rely at the hearing. Signed statements setting out the evidence of all witnesses on whom each party intends to rely must be prepared and copies included in the documents. This includes the evidence of the parties themselves and of any other witness, whether or not he is going to come to court to give evidence.
It is possible however, that your opponent will fail to comply with the deadline set and may either provide information late or try to present it at the trial itself.
The courts do not like people springing evidence on the court and their opponent. The reason a deadline is set is to make sure that:
- There is an exchange of written evidence and documents. It should not be sequential with one party providing theirs first and then the other. It is not fair that one party gets the other party’s evidence in advance and can then tailor their evidence to respond to it.
- Both sides should have a fair amount of time to review the evidence so as to be able to prepare for trial.
- The Judge will hopefully have time before the trial starts to read the documents and evidence. Having to read fresh evidence after the hearing has started may create delay and jeopardise the hearing going ahead.
So What If Someone Is Late With Evidence?
Generally, if the other party wants to rely upon evidence in breach of the terms of the order, you may want to oppose it being allowed on the basis that it has put you at a disadvantage for the reasons above. If necessary, it might be best to ask the Judge to adjourn the hearing to a later date to allow the evidence to be properly considered.
It it is you that has missed a deadline, you should be expected to have to explain to the Judge why you missed the deadline. Expect criticism from the Judge.
How Will The Judge Decide Whether To Allow It?
It is up to the Judge’s discretion whether to allow evidence relied upon in breach of the terms of an order or where there has been non compliance with the court rules. Some Judges will stick to the court rules whereas others may be much more forgiving and flexible. It is likely the Judge will balance whether the evidence will help him decide the claim, against the harm it causes to the party who has received the evidence late.
In making such a decision the court should apply court rule 27.8 which states:
(1) The court may adopt any method of proceeding at a hearing that it considers to be fair.
(2) Hearings will be informal.
(3) The strict rules of evidence do not apply.
(4) The court need not take evidence on oath.
(5) The court may limit cross-examination.
(6) The court must give reasons for its decision.