Application to the court on the day of the hearing?? Is that ok?

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We’re currently going through the small claims court (defending and counterclaiming) and have the hearing scheduled for next week.

We’re using a solicitor so we’re having to be guided by them but they’ve not been great and I’ve lost a lot of trust with them so was hoping to get some guidance from law-savvy MN members.

The claimant filed his evidence last week and included confidential mediation information in it. I notified the court and a judge sent me a letter at the weekend to say I should notify the Claimant that I plan to object and I may submit an application to have the evidence struck out.

The time left to the hearing is fairly short and we don’t want further delays (Claimant caused a 3 month delay previously) so the solicitor has said he’ll submit the application to the court at the hearing. He says this will give us the best chance of no further delays.

If I was representing myself I’d submit it now. Can you do this and is this OK?

You can issue an Application at any time. If the hearing is next week (SCT?) it would only be heard as a preliminary issue on the day regardless due to lack of Court time. I’d be more concerned about the judge seeing the evidence beforehand, deciding it is confidential, and vacating the Trial as their impartiality had been compromised. A letter to the Court identifying the offending documents and asking them not to be placed in front of the judge may help. Does your builder agree he has made a mistake including those documents? Can you both write to the Court asking for those documents to be removed?

@CarInsuranceIssue thanks for responding!
So, I wrote to the court, copying the builder in, to say the information was confidential so the builder's aware but he's stayed silent on the matter.

The confidential information actually goes in our favour, we hope, because it shows how reasonable we've been, but we are concerned, as you've said, that they'll see it and vacate the hearing.

My solicitor finally got in touch today after speaking to his line manager and our Advocate and they've all recommended that we leave it in, don't make the application to the court but raise it in the hearing as a breach of confidentiality and explain we're happy for it to stay in and the reason.

I really hope, as we're all in court at that point, they won't vacate the hearing and we can just get this over and done with.

You are paying your solicitor for advice so why would you not accept it.
If you really have no confidence then you should de instruct him and find some one new. I would not want to represent a person who had no confidence in my advice, in fact I would refuse to as a break down in the professional relationship has occurred.

It is not unusual to raise matters in court at the hearing in this way. He knows all the details if your case which no one on here does. Good luck with it

@Welshphoenix you’re lovely!

Hi OP. Usually, in cases like this, I would make what is called an oral application on the day of the hearing. Its too close to submit a written one and it probably won't even get checked in time.
Good luck 👍🏼

I agree thank you. May have sounded harsh but whilst I don't expect client to do what I say I do honestly believe that if they have lost faith in their legal advisors then they need to find someone else . I would not be happy helping someone who didn't have faith in my professional opinion. Would you?

@Vanessashanessajenkins2 thank you, that’s really helpful.

@Welshphoenix we tried to change solicitors a few months ago but were blocked from doing it. We’re going through our insurance and if we find someone else we’ll likely have to pay all the fees incurred so far. It’s also now less than a week to the hearing so it’s too late. This is likely the last issue the solicitor will be involved in and given their track record and their own admission that they’ve made multiple mistakes, I don’t think it unreasonable, I think it’s quite sensible, that I question the advice at this stage.