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Being charged for unusable crooked sliding gate track/ broken contract


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OK I will contact the claimant.

 

I didn't actually intend that any of these witnesses attend court, only that I be allowed to present the (written) witness statement. Ditto the experts.

 

The court document asked specifically about how many written witness statements I wanted to use.

 

I didn't realise you have to let the other side see and dispute witness statements. I almost certainly wont get to see theirs.

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It's not a question of whether the you intend that the witnesses give evidence in court. If you are proposing to present expert testimony in written form to the court, then the other side must be given an opportunity to challenge that testimony. If the other side feels that it is in their interest to challenge the testimony by means of an oral cross-examination, then that is their right.

 

I'm afraid that you can't just go waving statements around and make decisions as to how the target of those statements is allowed to respond

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Okay, it's not too urgent but on the other hand you can't afford to hang around. Have these experts agreed to go to court if necessary? You had better check that out first.

 

Make sure that when you're finally ready to go, you send all of your statements et cetera to the other side by recorded delivery and asked for their response within seven days. As I understand it, the other side are fairly unresponsive and they may not come back to you at all. In that case, attend the directions hearing and tell the judge what steps you have taken and how the defendants have appeared to be uncooperative

 

Are these witness statements properly set out?

 

Case name, claim reference number, identity of County Court

 

 

Statement of XXX who will say as follows: –

 

 

  1. My name is XXX, and I occupy XXX position in XX company
  2. I have been involved in the XX industry for XX years
  3. I hold a XX certificate in XX trade
  4. I have been approached by Disillusioned who has asked me to inspect a set of gates at XXX address
  5. On XXX date I visited Dissolutioned's address and spent XX hours examining the gates
  6. I also took photographs which I refer to in this statement and which are attached to the statement
  7. description of the gates
  8. description of the problem
  9. description of the cause of the problem
  10. description of proposed remedy
  11. I'm prepared to attend court and give evidence is necessary
  12. statement of truth
  13. signed, dated

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Crumbs, no. they don't look like that. They are simply written out on their letterhead in their own words, and with a statement of truth at the end. Does one have to do all this for a Small Claims case?

 

I have also got a few quotes from companies that are endorsed by the industry body. In these, they have stated why they won't use the track that is in place. Can these be presented in the court? I can of course send these to the claimant as well

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It would be better if they were properly set out in the way that I have suggested - although you can use the ones that you have if you want. If you are tendering the evidence as statements then they will certainly need to identify themselves, their qualifications, their experience and anything else which makes them fit to be accepted as an expert in the field in which they are testifying.

-

 

In terms of the quotes, yes they can be presented to the court, but it will be very good practice if you let the other side see them first so that they can agree them or dispute them and if they dispute them then explain why.

 

The point is to get to the court with as much of the dispute settled as possible so that it is only the unresolvable issues which have to be examined by the judge.

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  • 3 weeks later...

Hello,

 

Can you clarify something for me please?

 

My letter from the Court (County Court/Small Claims) says:

"Upon considering the Court File...

1. This matter be listed for a directions hearing to deal with whether expert evidence is required."

 

 

1. I have made an assumption that this hearing is not the actual hearing of the case.

 

2. What exactly do I have to send to the Court for this hearing?

 

3. What must I take with me to the Court for this hearing?

 

4. As I am not an expert, does my own presentation to the Court (as the defendant/counterclaimant) have to be sent to the claimant, or is this something I still have time to work on and present to the court later?

4a) If I do have to send my statement to the claimant can it just be a brief factual point-based statement or must it be the fully fleshed out one I will read out to the Court?

 

5. If there is any document I haven't sent to the claimant will I not be allowed to use it in the hearing of the case?

 

Thanks for your help

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presumably you have given the other side sight of your expert opinions – yes? And if so, have they made any comment in response to them?

 

You're quite right, that the proposed hearing is not the trial of the issue, it's simply a case management meeting and in particular to arrange for experts to attend or not to attend. I would suggest that you attend the hearing with all of your expert opinions and also that you are able to tell the court that the other side has seen them all and that either they have commented and agreed or else they have commented and disputed the opinions which you have.

 

If you still want to get experts along then you will have to tell the court that you think it is important that these people testify in person. Otherwise, you can simply say that if the court will receive the statements as expert testimony then as far as you're concerned there is no need for your experts to appear. But of course it will also depend on what the other side has to say about them.

 

If I were you, I will take your entire file. Make sure it is properly arranged in a highly organised fashion so that you can access any document quickly without having to waste anybody's time trying to find and saying you thought it was here, that's funny maybe it was there et cetera. This will only make you embarrassed and flustered and also you will test the patience of the court.

 

The best thing to do is to have an index sheet with every document in your file numbered and listed on your index sheet so that all you have to do to find a document is to run your finger down the list until you find the document that you want, see what number it is in your file and then you can go to it directly in your file. If you show that the level of organisation and complete familiarity with the file, the court will be impressed by your level of preparation and also you will feel much more confident and relaxed in the hearing.

 

It will be a good idea to take three copies of everything so that if the judge was to see a document, you have a copy for him/her and at the same time you can pass a copy over to the other side so that they can see what is being talked about – and of course you retain a copy for yourself. Three copies of everything is a good rule – even if you have already given a copy to the other side ahead of the trial.

 

You do not have to send your own statement to the other side that if you have got a list of bullet pointed arguments then you might like to provide that to the other side it's not necessary. You really shouldn't be reading anything to the court. You should be familiar enough to be able to speak to the court without referring to a script. You could refer to some bullet pointed notes if you like.

 

When you speak to the court, you will see that the judge is making notes what you say. Follow the judge's pen. If the judges writing then you pause. When the judge stops writing then you continue. If the judge Asks you to continue – then of course you do.. be lead by the speed of the judge's pen.

 

strictly speaking if you haven't provided documents to the other side then you shouldn't be allowed to produce them in court. In practice, people produce the documents very late and apologise to the court and give a good reason for it

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Thank you very much Bankfodder, that has made everything much clearer for me and I will be better prepared than I am now.

 

In answer to your question, no I haven't sent the witness statements to him yet as I asked them to rewrite according to your instructions. I have received them now and will send them tomorrow. The date of the directions hearing is 4 April so that is 18 days away.

 

I haven't received any documents yet from the claimant.

 

I will prepare a letter to go with my witness statements according to the guidelines you gave me a while ago.

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  • 1 month later...

Hello

I have attended Court for the Directions hearing for expert witnesses. The other side turned up with nothing, having sent me nothing either, and they did not reply to my pack with witness statements and other evidence.

 

The judge instructed The Claimant to prepare a defence to my counterclaim. He told me too that I could have entered a judgment against the Claimant as he had not filed a Defence to my Counterclaim. I didn't know this and now we have to go through with the whole court case.

 

The judge told me I have to present my own witness statement.

 

On the last date allowed by the judge, the Claimant sent me a pack with his witness statement and his Defence to my Counterclaim. As his original Claim submitted online had no details, only the figures he was claiming, this is the first time I have seen the detail of his claim against me. He has had an opportunity to respond to my Counterclaim. Can I respond to his with a defence to his Defence? If so, can you give me any guidance on how this may be presented? Is this something I should write down or do I just speak to it in court?

 

The case is quite complicated, with lots of small detail and accusations going back and forth. He has consulted a lawyer who has written things in the Claimants name in a very plausible way so that he looks very reasonable on first reading. I have to be able to counter this in some way without the whole case becoming a muddle.

 

I am concerned that after first reading of the Claimant's lawyerly and reasonable document, the judge will have it is his mind that the other side is Mr Reasonable and we are not. I was almost convinced myself!

 

I have to get the pack in to Court and the Claimant by deadline 9 May.

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On the issue of the defence to the counterclaim and the application for judgement, – yes, that's quite right.

 

I'm sorry because I probably overlooked that piece of advice. It is extremely unusual for people to apply for default judgements to counterclaims and also it is not straightforward (unlike an ordinary default judgement) because it would require a form N244 application notice and a fee of about £155. At this kind of level an application for a default judgement on a counterclaim would very rarely be granted without fairly close scrutiny of the whole case.

 

Still, I think this is something that was overlooked in the advice and I'm sorry.

 

You can certainly file a reply to the defence. It is not hundred percent necessary and it really depends on what you have to say.

 

You could either file a reply to the defence now but in that case that gives the other side advance notice of what you propose to say later, or you could save that for your arguments during trial.

 

I think it would be helpful if you post up the defence here so that we can have a look.

 

If you do decide to file a reply to defence then it would be in the following format

 

Usual headings

 

In the XXX County Court

claim number

 

between

 

XXX claimant

 

 

and

 

 

XXX defendant

 

 

Reply to Defence

 

Of paragraph 1 of the defence – the claimant admits blah blah blah but blah blah blah

 

Of paragraph 2 of the defence – the claimant denies blah blah blah and furthermore it was agreed that blah blah blah

et cetera

 

 

Statement of truth

 

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Hello Bankfodder,

 

Please don't apologise, it is my fault.

I should have found out myself that I should file for a judgement.

I researched in the wrong place, and got wrong information that the Claimant is not obliged to file a response to a Counterclaim.

 

As you suggested I have attached the Counterclaim. It sounds vey plausible until you know the facts.

 

Incidentally,

I approached the County Court in Brighton asking to attend a Small Claims hearing to understand how the Court will conduct a Small Claims hearing.

 

 

The clerk told me it's not allowed.

I sent a letter to them with copies of documents which show that Small Claims hearings are public.

 

 

I received a response saying I have to wait until I get a hearing date,

then I have to write again requesting permission to attend Court,

they will arrange a suitable date if permission is granted.

 

 

The Judge was talking about 2 weeks after my pack submission date for a hearing.

I likely wont get a chance to sit in, and if I do I wont have enough time to change my material and arguments if I need to.

 

Can you give me any pointers:

eg Do I just talk to the judge,

do I cross question the other party,

does he cross question me,

on whom is the burden of proof,

how much material will be tolerated by the judge for such a small case (I may I have too much).

 

If I don't send in an answer to the Counterclaim Defence,

which is riddled with misinformation,

straight untruths and inaccuracies,

will I get to go through it in Court to answer it?

 

 

I'm not sure how much is really decided by the Judge just on reading the documents or does he just give them a quick once-over before the case so he has a basic understanding before everyone speaks?

 

As you have said, I don't want to give all my information to the other side beforehand.

 

I also have to prepare my own witness statement.

I was a bit startled at that as I thought I would just be speaking in Court.

 

 

A witness statement will probably fully prepare him before the case.

He has a bit more to lose than we do:

we've already paid out the sums,

so those are in our minds a net loss already.

 

 

Should I just do a timeline or should I put my arguments forward in the witness statement?

 

Any pointers you can give me so I get the docs right without giving away my case to the other side would be very helpful.

As you can see, I have no idea what is expected of me/waiting for me in Court.

M ltd Counterclaim defence by S. (anonymous) converted to Word.doc

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hello,

 

I am looking for a legal precedent to quote in court:

 

Someone hold themselves out as an expert and

their advice causes a consumer high costs and

their advice turns out to be highly questionable (ie wrong and with no evidence leading to their advice)

 

Example: Expert advises customer to remove a perfectly sound structure and 'expert' gets the contract to replace it

 

Is there a legal precedent for the consumer to recover costs?

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