Not if it's a Fast Track case you can't.

You need to list all of your evidence in the form N265 Standard disclosure. Depending on where your case is up to you would have been told by the Court when to send this form to the other side.

Also, the Claimant prepares the trial bundle for the final hearing, not you. You give your evidence to the Claimant and they put it in the bundle.

But we don't know where your claim is up to so it's all just speculation.

Well I will set it all out next week and send it to the claimant if I have not responded correctly. I have kept the claimant informed in recorded writing of the nature of the new evidence, they can not say they were unaware of it. I have never received any orders from the Court to submit any more evidence to the claimant.

Regards. --tibar

Ok, come back when you have everything you have received from the Court.

Will do Ganymede, I dont know how to keep thanking you but I am so grateful.

Regards again. -- tibar

Good news, the hearing is definitely not the actual case.

I have been on to the court and they have told me that it will be meeting to try and determine if it a solution can be achieved without a full case going to court.

I had submitted the N181 and am now about to send off an up-dated evidence bundle.

One point, I would appreciate views on whether it would be considered relevant:

-- When I first took on the occupancy, 12 years ago, the shop was in a poor condition.

I undertook the necessary work to bring it up to scratch.

Many substandard fittings had been left behind, shelving, racks, floor tiles Etc.

I undertook the removal and restoration work and completely re-decorated the shop at my own expense.

I had help from a contractor who also helped me when I vacated it this time.

He has made a statement to this effect and is prepared to attest in court.

The shop was in far better condition when I vacated.

As the Surveyor is claiming in the Schedule that the work is remedial, I would ask if he did an inspection of the shop 12 years ago.

I am almost certain he did not therefore how could he judge what my requirements were?

The lease is rather ambiguous, to me anyway.

The point is the LL is claiming that I left the shop in a similar condition than it actually was when I took it over.

ould my evidence plus the Contractor be considered by the Judge?

Many thanks, as ever.

tibar

Sorry, I think my post is a little misleading. When I said that the LL is claiming that I left the shop in similar condition I mean that his claim, that i left behind fittings Etc. is similar to the what was the actual condition when I first occupied. Hope that makes more sense.

tibar

" Good news, the hearing is definitely not the actual case. I have been on to the court and they have told me that it will be meeting to try and determine if it a solution can be achieved without a full case going to court "

What did I tell you

Yes, Spot On Andy! Well done.

I have been on to the court and they have told me that it will be meeting to try and determine if it a solution can be achieved without a full case going to court.

This might be because I've had 4hrs sleep but I'm still confused! Is this a case management conference? (is that what the Order you had from Court said - the one which tells you the hearing date)

The description above sounds like mediation...

If it's a case management conference it will be primarily to set a timetable for how the case will progress.

However the Judge might take the opportunity to look at the documents filed so far and see if he can focus the parties to narrow down some of the issues in dispute, and then make a timetable according to that...

When is the hearing?

Thanks SuperVillain,

The lady at the court said that it was a meeting for The Judge to give direction.

She also stated that the letter was unclear and said she would try and send another with more detail, nothing so far.

The claimant has very belatedly offered to hold a round the table discussion at the Solicitor offices.

I have agreed to a meeting but stated that I would not agree to the venue.

I might have been a little bit bolshie by refusing but I was civil.

I do not think this meeting is relevant to me not agreeing to their terms as I do not think they could approach the court regarding mediation without conferring with me.

I do not know for certain though.

The hearing is 14 September.

OK that sounds like a case management conference and it's quite a way away yet.

I think they probably proposed the meeting at their place to save the costs of hiring an independent venue for the meeting to take place.

Thanks again SuperVillain, Yes hopefully it will not be a problem. I feel that they are wavering as if it does go to court, I have no real assets and I have recently informed them of this fact, it will cost the LL a huge amount even if he wins a portion of the claim, which hopefully is a big IF. He must have paid a lot already.

Kind regards. -- tibar

Just an update, I went to the court hearing last Thursday and it was quite a surprise. One of the partners from the claimant solicitor was there instead of the solicitor I had been dealing with.

I had complained, in the evidence submissions that I was of the opinion that she had misled the court in her statement of truth.

This seems to have rattled them somewhat.

The Judge was helpful and the partner was very pleasant.

They both advised me to engage a solicitor.

The Judge was very critical of the claimants for not offering negotiation prior to proceedings and almost demanded that they do so now.

It was agreed that I could re-submit my evidence as it was long winded and repetitive, he did however say that from what he had read my case had merit but would need to be correctly formulated.

The Judge also allowed the venue to be switched to my preferred venue.

After the hearing the partner asked to speak informally and he is very keen to settle, he almost begged me to offer something so that he could could talk the client into accepting.

The lack of assets is playing a big part and I feel I now have the upper hand.

If I engage a solicitor I am fairly sure that he would advise me to compromise so I feel there no point, also I can not afford it.

I have agreed to mediation at their premises and I am quite looking forward to it as I am now of the view that I can make my points, that I have complied with the lease, and therefore I shall be claiming costs from the claimant.

It should be fiery if the claimant is there as he will have to pay for the mediation as well, I have already stated that I can not afford to pay towards it.

Thanks as ever for all your thoughts. -- tibar

Interesting. When is your meditation at their offices?

You made a previous offer asking them for £1,000.00 for your costs and to pay nothing to them, is that correct?

Did they actually respond to that offer (i.e. reject it or make a counter-offer?)

Yes I did make that offer and the solicitor misread it as an offer to pay them £1k, she is very efficient, which they declined and stated that the £5k for me to pay the LL remains on the table.

However when I met the partner at the court hearing, last week, he strongly hinted that if I offer something he will try to talk the LL into accepting.

I think he has taken the case over although he stated that the initial solicitor was on holiday, she has made so many cock-ups it is almost unbelievable.

I also feel that he is probably not billing as he had read the whole case and that must have clocked up a huge bill as I had used the scatter gun defence and there were more than forty lengthy letters.

Knowing the LL as I do I can not see him paying partner rates and the extra fees for him to read up.

The cost alone of him turning up at the hearing (it is quite a large firm) would have been substantial to say the least.

All in all I feel that the Law Firm is on the ropes and they are desperately trying to smooth it all over.

I have not disclosed, to the partner, that I have no intention of offering any payment at the mediation but that is what I shall do.

I do not have a date for the mediation but I think that they are almost obliged to do so as the Judge was very critical that they had not done so earlier.

The Judge said that he did not expect this case to go to trial and that every effort should be made to resolve it.

I strongly felt that the Judge was far from happy with the Law Firm for not following pre-action procedure.

When the Judge was strongly advising me to engage a solicitor he estimated that a trial could cost me upwards of £75k if I were to lose the whole case, although he stated that it was unlikely as my case had merit. I replied "with respect Sir, I do not have the funds to pay anything, and the solicitor is well aware of this fact"

The Judge stated that it is a civil matter and it is not a crime to be without money.

He was, in my opinion, flabbergasted that this had gone so far.

I have been thinking it over some more and I think there is a chance that they might talk the LL into withdrawing the case.

This might be fanciful thinking on my part but if it did happen would I be bound to accept?

I have made the allegation that the solicitor deliberately misled the court in her Statement of Truth submission.

I would like her to be brought before the court to answer so I do not want to agree to the case being withdrawn.

Also if they did wish to withdraw am I likely to receive my costs?

Many thanks SuperVillain and everyone. -- tibar

Maybe you may wish to repeat your previous offer to pay them nothing and accept £1,000.00 from them for your costs. You could then go from there in terms of negotiation either by letter or at the mediation.

I don't think there's any harm in writing to them and saying as much before the Mediation (as you don't have a date for this yet).

Thanks SuperVillain, Yes, good point, no date as yet for mediation, I think I will do as you suggest although I will up it to £1,500 as I have spent some more since the earlier offer.

Do you know if I have to accept it if the case is withdrawn? I know I can apply for costs but because of the issue with the solicitor apparently misleading the court, can I insist that the case goes ahead? It probably will not be an issue but I would like to know of the procedure if it is withdrawn.

Kind regards. -- tibar

I don't get what you mean by this.

Are you asking - if the case is withdrawn do you have to accept the £1,500?

Or are you asking that if they take steps to withdraw the case, do you have to accept that withdrawal?

To be honest if you come out of this with them paying you £1,500.00 and you paying them nothing that would be a good result in my opinion.

Do you know if I have to accept it if the case is withdrawn? I know I can apply for costs but because of the issue with the solicitor apparently misleading the court, can I insist that the case goes ahead? It probably will not be an issue but I would like to know of the procedure if it is withdrawn.

I don't get what you mean by this.

 

Are you asking - if the case is withdrawn do you have to accept the £1,500?

 

Or are you asking that if they take steps to withdraw the case, do you have to accept that withdrawal?

 

To be honest if you come out of this with them paying you £1,500.00 and you paying them nothing that would be a good result in my opinion.

I think the OP is asking about insisting on a hearing if the claimant withdraws?.

You don’t get a hearing to decide “who is right, who is wrong”, as the claimant accepts they are no longer pursuing you for money.

You can ask for costs (since this has been ‘allocated’ to a track other than the small claims track), and if it comes to it there may be a hearing on costs, or an order for an assessment of costs (a.k.a. [in the past] as‘Taxing’, now known as “detailed assessment” if the 2 sides are still arguing about costs.

Many thanks SuperVillain and BazzaS.

Yes I was inquiring if I had to accept it if the claimant withdraws. I do not think that will happen just yet but it is looking as if he wants to settle on a small settlement from me. I feel that I am in a strong position as his fees keep mounting and he is way past being able to break even.

If it goes to trial it would escalate to a huge amount, the Judge at the hearing estimated £75,000. His case is weak plus the fact that I could not possibly pay it so the claimant would be extremely reckless to pursue it.

The partner solicitor who arrived at the hearing has all but admitted that the claimant will not go to trial.

I do not accept that I owe the claimant as much as one penny so I am not prepared to pay anything now.

I was considering making an offer earlier as it has been so stressful however I am now very confident.

The reason I wished to know if I could refuse to accept a withdrawal is because the initial solicitor has made a blatantly misleading statement in her Statement of Truth submission, and subsequently contradicted herself, I feel she should be accountable, it could have cost me the whole case if she had succeeded.

I was hoping that I could refuse to settle and therefore the court would look into it without me having to take action against her.

The offer to accept £1,500 for my costs has gone today and I shall await events. I do accept that if I receive this amount without going to trial I would consider myself fortunate but the fact that a solicitor can mislead the court and no action taken it is a bit galling.

Much appreciate your replies, regards. -- tibar

Just another question, if i may, regarding costs. It is my hope that the Judge, if it goes to trial, will award costs against the claimant.

The reason being that the solicitor has disregarded pre-action protocol in many ways. I know that this can go two ways but IF the Judge did find against the claimant would this leave the door open for the claimant to sue the solicitor as it would be the solicitor at fault?

I am trying to gauge how concerned the Law Firm is and therefore how keen they will be to resolve.

Many thanks. -- tibar

Just to clarify, I mean IF the Judge awards costs against the claimant on the grounds that his solicitor failed to follow pre-action protocol could the claimant then sue the sol for negligence?

There are a few outcomes that could happen if you proceed all the way to trial.

The consequence of failing to follow the pre-action protocol is likely to be costs related and Judges have a fairly wide discretion.

So hypothetically speaking if you won, you may be awarded your full costs, or some of your costs (that "some" could be more that you might have got if they followed the protocol correctly). If they win, the starting position is that they are entitled to their costs as assessed by the Judge. The Judge could award them less costs, or even no costs, as a result of their failure to follow the protocol.

As for any professional negligence issues, it is unlikely they'll be sued by the Claimant (do you really think he's likely to pay a second solicitor to do this?). What's more likely is that they will strike a deal with him in terms of billing.

However - none of that is for you to worry about yet, in my view. Don't get distracted with if's buts and maybes.

Have they responded to your offer yet? Did you give them a time period to respond in your letter?

Thanks SuperVillain, Yes I understand that it is all ifs, buts and maybes. I have not received a reply to my offer as yet, I gave them fourteen days to respond so the deadline is still more than one week away (11 Oct). I can not see them accepting but they might agree to withdraw the claim and leave it at that, again I obviously do not know.

What is somewhat guiding me is the fact that it was a partner from the Law Firm who showed up, he is obviously troubled, he was very much pointing me try and end it. He almost begged me to offer something and he would strongly advise the claimant to accept. If the partner is so keen for it to end I feel he is very concerned regarding the pre-action protocol, the initial solicitor has really screwed up.

Thanks for the info.

I will just have to be patient.

Kind regards. -- tibar

Agreed, I appreciate it's difficult to be patient, especially when you're a Defendant, as the ball is often in the Claimant's court when it comes to actually taking action on the claim.

For what it's worth, looking at the thread and what's been posted I don't think the solicitors will be overly concerned with the fact that they haven't strictly complied with the pre-action protocol. You knew about the allegations made against you, and the threat of proceedings before they were issued - enough so that you were able to send a denial letter to the Claimant's Solicitors. For all intents and purposes that is the idea of the protocol, whether or not it was strictly complied with.

This is a complete guess, but it's probably the denial and a weakness in their client's case itself that causes them more concern, particularly if the landlord is digging his heels in regards making a lower offer to settle (in all likelihood against their advice) - hence inviting you to make an offer.

Just wait and see where you stand after the 14 days are up.

Yes, good points. I will do as you suggest, you never know, the offer might be accepted!

Another potential problem has now arisen. I have received the Court papers which are allowing me to amend my defence .

The Judge at the hearing strongly advised me to seek a solicitor and he agreed to the amendment as he considered my defence as fragmented.

I would like to amend but I am now concerned that if I do so will the claimant be allowed to amend his claim?

I would rather just let things stand if it meant that the claimant would be unable to amend the claim.

The Judge never stated that claimant could amend however I do not want to allow him a chance.

I need to submit reply by this Friday so time is short.

As the trial is estimated to take at least two days and possibly three the costs would be huge, as I can not pay they are very keen to settle.

If I just say that the defence remains the same, the fact that it is fragmented would matter little as they surely will not go to trial.

That is my rather optimistic view anyway.

I have still not received a reply to my offer to accept money from the claimant, time is up on Wednesday. Are they duty bound to reply?

Thanks as ever. -- tibar

Once you file a Defence the Claimant is entitled to file a Reply to Defence countering each and every paragraph of your Defence, so I would just get on with filing your Defence and not worry about the Claimant.