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Max Lowry
Max Lowry, Advocate
Category: UK Law
Satisfied Customers: 1457
Experience:  LLB, 10 years post qualification experience
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I had to exchange my mutual exchange my witness statements

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I had to exchange my mutual exchange my witness statements last Friday. i wrote to the Defendant's solicitor to ask if they had received them; I received no reply.

The Defendant's solicitor in his opinion that I am now debarred from relying on my statements - is this correct?

Max Lowry : Hi, welcome to Just Answer. I will help you with your question.
Max Lowry : Did you send your witness statement to the other side's solicitor by the date set out in the order?
Customer: The Defendant was also outside the time. We agreed that the statements be exchanged by last Friday (10 May). I sent them in the post but they don't seem to have arrived.
Max Lowry : Okay, you're both out of the limits, which means you're both debarred from relying upon your own evidence technically.
Max Lowry : The reality, however, is that so long as they're sent to each other quickly, and no undue prejudice is caused to the other side by the delay, the Court should allow you to rely on the statements. I've produced witness statements during a trial, and the Court still is willing to use them, so it's not likely to be an absolute bar to relying on the evidence.
Customer: Can the Defendant technically say that they sent them first and they didn't received mine. My statements have gone astray - have you any advice?
Max Lowry : Also, if you sent them, then this is service. They do not have to be received. The act of posting constitutes service, not the act of receiving that post.
Max Lowry : It doesn't matter who sends them first.
Customer: What should I do?
Max Lowry : Send them again - and contact them to check receipt.
Customer: I wrote to the Defendant's solicitor asking for acknowledgement my e-mail was ignored until later this afternoon.
Max Lowry : Leave arguments about whether they should be used etc. to the court.
Max Lowry : And now, does he acknowledge receipt?
Max Lowry : If you sent them so they would arrive by the required time, then you've validly served them, and you're not in the wrong = even if they didn't arrive.
Customer: I have tried to stay very courteous with the Defendant who doesn't seem always to be responsive, and in this case, by returning an e-mail confirming receipt. Could I kindly ask you to tell me what it is that I could write in reply to their e-mail claiming that "in his opinion, I am debarred in using them!"
Max Lowry : You could say something like:
Customer: I didn't keep a receipt of posting!!
Max Lowry : "I sent the statements by first class post on [date], and thus there are deemed served on [2 days later]. Thus, they are deemed served on [the second date] and it matters not that they were not received. As such, they were served in time, and as such, I am not debarred from relying upon them. If needed, I will do a short witness statement to confirm this. however, I would rather focus on the issues in dispute, and attach further copies of the statements which you say never arrived. Are we able now to move on and focus on the real issues between us?"
Max Lowry : See what he says to something like that?
Customer: Thank you very much for your help. It's crazy the Defendant has ignored two court orders to exchange statements and in a unforeseen circumstance they are really heavy. I am a litigant-in-person!Is there any where I can go to keep our exchange? Thank you very much for a speedy and very help advice.
Customer: * helpful
Max Lowry : :) You're welcome - good luck with this.
Max Lowry : If you want more info later, or any other time, just let me know, and mark your question FOR MAX and I'll help you.
Max Lowry : I hope this answers your question. If you need further information, just let me know. Please do remember to rate my answer as highly as you can.
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