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strike outs galore with pre-trial questionnaire non-compliance

21 April 2015

In Waterman Transport Services Ltd v Torchwood Properties Ltd, Akenhead J in the Technology and Construction Court has ruled that the respondent’s failure to substantially complete the pre-trial questionnaire was not just a minor failure to comply but was substantive non-compliance. The judge held that it therefore followed that the respondent’s defence should be struck out.

The respondent (T) had been largely unrepresented in the claim that had been brought against it for failure to pay invoices for services that the applicant (W) had provided. W applied for summary judgment.

T submitted a vague and unparticularised counterclaim for professional negligence that the judge also struck out. T had failed to clarify at an early juncture how many witnesses would be called at trial and what expert evidence was going to be relied upon. There was very little useful information contained in the pre-trial questionnaire and T did not attend the pre-trial review. The day before the application hearing a witness statement of T gave information on witnesses and expert evidence that was substantially different to that it had previously given and made a great difference to the amount of time needed for trial.

The message from the judge in this case is clear; do not try to mislead the court with vague and haphazard attempts at complying with court orders and directions. A pre-trial questionnaire is important not only for the parties but also for the court diary and freeing up the court for other users. The case follows a harsh path of Mitchell and Denton et al in respect of sanctions, more so than you would expect for a litigant in person.

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