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Bifolds fitted at incorrect floor level *** Judgment plus Costs***


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I am working on the reply to defence for the DQ submission which is 1 week away.

 

I wouldnt make a response....save it for statement stage (After allocation)

 

On the previous question, what is the best approach to points where 3rd party is mentioned?

I witnessed events that statements attempt to distort i.e "dimensions were provided by your builder", this is simply untrue. The company brought in their own surveyor.

The builder just provided a finished floor guideline but I cannot know what they discussed between them beyond the site survey.

 

 

 

 

Some questions regarding the DQ,

It says parties are expected to contact each other and agree track and possible settlement before submission. Its SCT given the court as sent you N180 and you have the option of selecting Mediation on the DQ which is facilitated by the court...not your self

I wonder how is that possible when they refused everything for 10 months and now try to counterclaim an excessive amount?

 

Particulars of claim:

When sending in N215 to CCBC I attached the particulars of claim. Is the court going to have my detailed particulars of claim during DQ/track consideration?

 

Not used to determine track...just the value of the claim

 

 

Expert Witness:

The box asks "what is the likely cost if appointed". Am I required to submit a rate in this case? Yes I was considering to add a summary description of the report and reasons to be submitted.

Not required...its done at disclosure

 

 

Andy

 

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I wouldnt make a response....save it for statement stage (After allocation)

 

Thanks for addressing my questions. Sorry to ask all this detail, I find the CPR a little perplexed on some matters and the court's directions are not really helpful.

So the "reply" to Defence is optional and can be omitted (CPR 16.7) regardless of having filed the mandatory "defence to counterclaim" (CPR 20.3)?

I only ask to make sure I am not caught on any technicalities by the court. Most matters raised in their poor defence have been addressed in the Particulars of Claim but some matters could be denied.

Its SCT given the court as sent you N180 and you have the option of selecting Mediation on the DQ which is facilitated by the court...not your self

 

The proposed allocation was sent by CCBC I presume due to the value of the claim. But it says parties need to communicate before DQ submission to agree these matters, if joint expert etc. I just don't want to be seen ignoring any instruction that could impact later. If anything I would expect the Defendant to make steps to settle since receiving the report at the beginning but instead filed a CC.

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" But it says parties need to communicate before DQ submission to agree these matters, if joint expert etc. I just don't want to be seen ignoring any instruction that could impact later. "

 

Where does it state that on the DQ N180 ?

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[quote=Andyorch;5163299

Where does it state that on the DQ N180 ?

 

I was actually reading the small claims guidance EX306, it does not state this on N180

 

"The judge will expect you and the other side involved in the case (or your legal representative) to co-operate with each other when filling in the form. Both sides should make sure that they have contacted each other to discuss filling in the directions questionnaire."

 

(I may have picked up the joint expert note form ex305 which was higher tracks, apologies.)

 

Attached notices of transfer and propose allocation. Note that Defence and CC were not enclosed, probably because they were served previously.

 

Notice-of-Proposed-Allocation_CAG.pdf

 

So technically I could go ahead and file my DQ without a reply to Defence?

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I have already stated numerous times...there is no requirement to submit a response to the defence...counterclaim yes.

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I have already stated numerous times...there is no requirement to submit a response to the defence...counterclaim yes.

 

You have indeed, sorry. I was only making sure as articles seem to infer reply and defence to CC somehow are meant to go in tandem. I could picture myself under your avatar's hammer :roll:

 

DQ N180 - I only have one witness from the director's site visit.

Do experts need to be included in the numbers (D3)? I doubt their presence will be required (especially at the charge rate), other than the written report permission.

 

I am not sure if a witness can be called after disclosure and without their will. For example a person present during the initial system survey in case the defence makes false statements that need to be verified.

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Gavel :wink:

 

How many witnesses ...including yourself ?

 

Witnesses

 

Witnesses may be asked to give evidence by either party. The court needs to have notice that you intend to call a witness.

 

Witness expenses for travel accommodation and loss of earning should be met by the party requesting their attendance.

 

You can getmore information by reading EX342 ‘Coming to acourt hearing’. You can get this leaflet online from

hmctformfinder.justice.gov.uk

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Only 2 witnesses, excluding the expert.

 

It helps reading EX342 about summons but still not entirely clear if someone can be added after disclosure (if deemed necessary).

 

It is possible the company may bring someone from the business as an "expert" and possibly have support/costs through the association.

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After directions questionnaire submitted...if they are not listed and have not submitted a statement...it would not be appropriate to be called as a witness and the party would have to seek permission of the court.

 

The court would direct and deem what evidence is required to determine judgment.This is small claims track not Fast Track.....witness and evidence is greatly reduced and kept simple.

 

https://www.justice.gov.uk/courts/procedure-rules/civil/rules/part32

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Thank you, this is clear about witnesses.

 

The only other witness to add something beyond existing factual information is the building contractor. It is very unlikely they will accept to be involved or make a statement. They would only be needed to verify communications I was not present between themselves and the other side.

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Not unless you make application to request it.....and have legal reasons to base it on.

 

You can request Summary Judgment or Strike out...or both

 

There is a wide range of possible orders open to the judge on these applications, including:

 

• if the court finds wholly in favor of the applicant then the applicant will be awarded judgment and the case will be disposed of that way (subject to any appeal)

• the court may make a conditional order that the respondent must take a particular step (for example to pay some money into court) in the action

• summary judgment can also be granted in relation to a part of a claim or a particular issue only. If this happens, that aspect of the claim is resolved and the remainder of the claim proceeds to trial in the usual way

 

If the application is unsuccessful, it will be dismissed and it is likely that the applicant will be ordered to pay costs to the respondent as well as bearing its own costs. These costs can be significant

 

Each case will be judged on its merits in terms of the costs order made, and the court has the power to make further directions about the future management of the case at these hearings

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Not unless you make application to request it.....and have legal reasons to base it on.

 

I probably cannot answer this entirely on my own. The basis would be the contract and hard evidence that the end result does not meet the terms of that contract.

 

From what I can understand summary judgement takes place before allocation and costs are included, solicitors are more likely involved. It appears that expert evidence is not restricted though. On the other hand the process may suit higher cost cases and not potentially SCT which is cost limited?

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Its expected that both parties will exchange DQs as a civil requirement...but its not a legal requirement...only encouraged, not required.

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Thank you. I guess I took the allocation notice in a bit more strict tone,

 

3. You must by 10 December 2018 complete the Small Claims Directions Questionnaire (Form Nl80) and file it with

the court office and serve copies on all other parties.

 

I guess the court may send a copy or we'll never know.

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Not always....but its of little use to you apart from informing you if they intend attending and how many witnesses/expert witness and if they intend making any further applications.

 

Still it might arrive tomorrow or before the end of the week.

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  • 5 weeks later...

Small update, I have not received anything new on allocation.

 

I made a brief call before Christmas and clerk explained they are overwhelmed with only one DJ, allocation could take up to 8 weeks. Adding that we may be looking towards the end of the year for the hearing! not ideal...

 

They offered to forward the defence DQ but I have not received anything so far. I am preparing statements and evidence since there is a risk to miss details after months.

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  • 2 weeks later...

I have received allocation to the SCT followed by a set of instructions/orders.

 

The information appears a little generic but there are a few points raised below.

 

The first thing on the notice is that a hearing date is not yet set, "The hearing of the claim will take place on a date to be fixed by the court."

 

This is followed by a statement that the case is suitable for mediation and service needs to be contacted within 7 days of receiving the order.

 

Statements make reference to Part 27 CPR and an estimate of the hearing.

 

"From the available papers, it is estimated that the hearing will take two hours. If a party is aware of a reason why this estimate might be substantially inaccurate, that party must notify the court immediately."

 

I am not sure this is adequate time if evidence and statements are all going to be examined during the hearing, but I anticipated the hearing would last somewhere between 3-4 hours. If the documentation has been reviewed in advance then 2 hours may be sufficient.

 

 

The next part is a number of "Directions" about documents and witness statements, when they should be sent etc.

 

The part I have focused on is the expert evidence.

It is not clear whether this is just a generic order or further instruction to provide information about the expert at this stage. It does not make reference to the DQ.

 

14) Neither party may rely at the hearing on any report from an expert unless permission has been granted by

the court beforehand. Anyone wishing to rely on an expert must write to the court immediately on receipt of

this Order and seek permission, giving an explanation why the assistance of an expert is necessary.

 

I plan to send a letter stating the reasons outlined earlier in the thread. What information can be included in your view?

 

 

15) Because this Order has been made without a hearing, the parties have the right to apply to have the order set

aside, varied or stayed. A party making such an application must send or deliver the application to the court

(together with any appropriate fee) to arrive within seven days of service of this Order.

 

Lastly it states the hearing fee and that it "must be paid by the claimant at least 28 days prior to the hearing date, unless an

application for a fee concession is made".

 

The trial fee is non refundable but if parties settle before the trial fee is due, the trial fee will not be payable.

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Standard Small Claim Directions....just seek permission to use Expert witness statement and your reasons.

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Standard Small Claim Directions....just seek permission to use Expert witness statement and your reasons.

 

Thank you.

 

Since the report is crucial to the case to determine issue, liability and damages, I want to ensure enough information is detailed for proper consideration. On the other end courts review hundreds of cases with limited time so information has to be succinct to avoid being overlooked.

 

Other than obvious reasons would it be appropriate to include in the letter information of steps taken before acquiring a report? i.e contacting approved glazing experts, contacting expert surveyors and finally notifications to the defence about providing evidence and agree to independent assessment, all of which they refused.

 

Regards

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Not in your request for permission...you simply request permission....once you have it you can include whatever you wish

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Not in your request for permission...you simply request permission....once you have it you can include whatever you wish

 

Thanks again.

 

CPR 35.4 (2) When parties apply for permission they must provide an estimate of the costs of the proposed expert evidence and identify...

 

The quoted rate of the expert was included under DQ. However I don't understand if this implies the final cost of the report itself which of course exceeds the allowable cost (any report would). I presume the allowable recoverable cost is a limit and not necessarily defining the admissibility.

 

I came across an interesting read on "evidence of fact" that does not require permission,

 

https://www.dentons.com/en/insights/newsletters/2017/april/6/uk-construction-briefing/uk-construction-briefing-spring-2017/experts-review

 

It may be a very loose interpretation but factual measurements from an expert is not something that would require permission? Their opinion or conclusions would be.

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With respect .....construction claims and expert evidence is a million miles apart from your Small Claims Track dispute.

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  • 2 weeks later...

Well of course, I was not suggesting any comparison. As with previous links on more serious cases discussed, there was an interesting reference to CPR35. Perhaps the interpretation was a long shot:)

 

Further I received communication from mediation that both parties agreed to proceed. But upon contacting them I was informed the case will proceed to a hearing as the other party did not meet the criteria for mediation i.e compromise or negotiate, and that mediation is closed. Clearly the other party has been acting out of spite, ticking boxes to satisfy court requirement but with absolutely no intention to settle. It is unfortunate that this information cannot be used in court and the fact the party did not actually entered mediation at all.

 

I am awaiting a hearing date to be set and the court response to the expert evidence admission.

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