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


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Some last thoughts/questions,

 

I am planning on serving detailed particulars to include all the points of the case.

The expert has delayed my plans on filing due to availability.

 

Since the notice expired, I have/will have an expert report and a witness statement.

Do these need to be served to the other party before the claim?

And if so would that require to follow pre-action protocols and allow time for them again to review?

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The completed report has been finally delivered.

 

I was not particularly happy with the expert witness service, including a prolonged delay in delivering the first draft and a cost overrun from the original estimated figures.

 

Without going into too many details the report concludes that the doors are by design shorter and also fitted higher against the agreed contract. It does not fully clarify all the points to my satisfaction but it is supposed to be based on all the evidence and communications involved in the case.

 

Coming back to my previous points the case is now ready to submit and serve detailed particulars to the other side. Am I required by protocol to present the report to the other party before starting proceedings? And any evidence that might have not been avwilable at the time of the notice?

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Do you intend serving separate particulars...or just a short synopsis of the claim ?

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Do you intend serving separate particulars...or just a short synopsis of the claim ?

 

l intend to serve a list of particulars in a few paragraphs stating the facts of the case. I am filing this through MCOL so I have also prepared a small synopsis. If I understand correctly the particulars have to be sent separately.

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Once again, thanks for the links. Great information.

 

From what I gather an expert report can be attached to the claim particulars when serving the claim,

 

https://www.justice.gov.uk/courts/pr...eneral/experts

When starting the claim, the Claimant may attach an expert’s report to his Particulars of Claim.

 

The Magrath link:

It should be noted that it is unlikely that the fees for an expert asked to advise during the pre-action stage will be recoverable. That is, unless the Court subsequently gives permission for that expert to give evidence during the proceedings. On this basis, it is important to warn the client ahead of time of the chances of recovering such fees to avoid any issues later on.

 

 

Where it becomes a little confusing is further down the proceedings.

I understand the court will decide to give permission for the report to include in the hearing at DQ. But in Part 35 rules read a bit contradicting...

 

What happens if the other party knowingly rejects the existing expert report and disagree to instruct to appoint the same expert as i.e a joint expert. I would then not be able to use the report in court.

 

35.7

 

(2) Where the parties who wish to submit the evidence (‘the relevant parties’) cannot agree who should be the single joint expert, the court may –

(a) select the expert from a list prepared or identified by the relevant parties; or

 

(b) direct that the expert be selected in such other manner as the court may direct.

 

 

 

and

 

 

Consequence of failure to disclose expert’s report

 

35.13

 

A party who fails to disclose an expert’s report may not use the report at the trial or call the expert to give evidence orally unless the court gives permission.

 

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I assume you will be using Pre Action Protocol and serving notice on the pending claim...you should introduce the Report at an early stage so the defendant is aware that you will be relying on it and it will also allow chance for them to voice any objections?

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I assume you will be using Pre Action Protocol and serving notice on the pending claim...you should introduce the Report at an early stage so the defendant is aware that you will be relying on it and it will also allow chance for them to voice any objections?

 

We are actually past that point, the notice has been served and expired in July, see my earlier post 17th July 2018.

 

The notice provided options, 1. asking them to share their measurement evidence to support their dispute of the error, if not in agreement 2. appoint a common expert witness sharing the cost and, even better 3. choose an expert witness of their own liking.

 

The notice made clear that after expiry I would be instructing an expert witness on my own accord to produce a report.

 

I gave another 7 days by email and the response received was "We do not agree with any of your positions or costs"

 

The report has been delivered, with unforeseen delay, but concludes they have cocked it up.

 

I want to rely on the report to serve the claim and introduce at DQ as discussed earlier in the thread.

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Here is a summary of case:

 

 

  • 4 Jan 2018 - company contacted about issue & invited on site / denies all responsibility
  • Feb 2018 - company became unresponsive and never visited / case submitted to GGF with all evidence
  • April 2018 - long trail of communications / company reply with goodwill to reposition system but all damages/insurance to be covered by client / still refuse to accept liability. Company provides drawings of the doors but height mismatches contract
  • May 2018 - company finally accepts to visit site / while on site they do not measure the doors but the floors / keep deflecting from issues against contract. Receive warning of imminent small claims action.
  • June 2018 -Communication hits a wall / evidence, remedial quotes and expert witness information is collated - Notice Served with remedial costs and request to provide their evidence.
  • July 2018 - Notice expires without reply / notice extended by 7 days on email, company responds they accept none of the positions, costs or course and stand by goodwill offer. Expert witness is instructed pre-action.
  • Sep 2018 - Report concludes doors are shorter and also fitted higher than agreed on contract. Preparing claim and list of particulars ...

Next steps to follow...?

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forgot to add (unable to edit post - if mods allow please add below):

 

May 2018 - company finally accepts to visit site / while on site they do not measure the doors but the floors / keep deflecting from issues against contract.

Imade final settlement offer to company, far below remedial cost - offer rejected vehemently. Sent warning of imminent small claimslink3.gif action.

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The only parameter left to specify is the amount of the claim.

The report valuation is adding contingency allowances on top of the original remedial claim served in the notice, bringing the amount higher. It is also missing the VAT which is a question pending to be answered.

 

I suppose the claim has to follow the report it is relied upon, with the potential that the court may bring it down.

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  • 3 weeks later...

Claim and particulars served.

 

I have a few questions regarding the expert evidence, some bits are unclear from CPR35

 

Firstly can the other side ask questions to the expert before DQ or a formal appointment by the court?

 

The expert fee for answering questions may have to be covered by the party who "instructed". However it is not clear if that is before Directions. They have just informed me they raised their fees to double and I am not happy to use their service further unless court appoints. If the court appoints I imagine it would be only to make the report admissible and questions, but this would be jointly shared I presume.

 

The second matter is, I read that expert evidence is consodered more rare in small claims and case may be reallocated to fast track.

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Thank you, the second link raises most of my concerns.

 

1. I was not successful with local trades e.g 5 glazing professionals did not accept to evaluate someone else's work and,

2. the allowable fee cap is very tricky as there is no expert quoting within that margin.

 

In our experience the courts do allow the use of expert evidence in small claims where causation, liability and / or quantum are in issue in property damage claims. Without such evidence, the court is limited to evidence from each of the parties in order to try and determine the issues.

 

I am not sure if the expert justification can be entered in DQ. I will demonstrate the necessity based on the above reasons and the other party's persistence to rejecting evidence during a complex precision dispute.

 

The only issue is the cost but I could at least argue the report should be admitted at the capped cost and cover the rest on my own?

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  • 4 weeks later...

The company acknowledged with 'full defence' and subsequently filed defence one day before expiry of 28 days from claim service.

 

I received a 2 page letter from MCOL, a court letter followed by a counterclaim form N9B with 20 lines of hand written defence. The company is making a defence based on the summary of same previous arguments and ...counterclaiming over £10,000 for "Loss of business time by sales staff and correspondence"!

 

The handwritten defence suggests there are "cover letters" and "correspondence". I have not received any of these documents with the letter or any statement supporting the counterclaim. They may arrive in post but my understanding was that defence is served together, i.e documents after this point would require court permission CPR 20.4(a) and CPR 20.8(1)(a)? or the court somehow failed to send the documents??

 

Further the counterclaim is missing the fee, the court letter states,

 

"The enclosed response is deemed to be a counterclaim. The Defendant has a total of 10 days from the date of this letter to pay the requested fee or the court will take steps to remove the counterclaim and the claim will proceed as defended only. If no counterclaim fee is received, and the counterclaim struck out, then a Defence or Part Admission will be filed as per the defendant's original response, and Notices and/or Directions

Questionnaires will be issued."

 

Company claims they are "not in breach of contract" and stand by being "correct", make no mention to the report sent with my particulars.

 

I believe at this point they have involved solicitors. However if they have, I don't understand how a solicitor avoids settlement and instead take a vengeful appoach.

 

1. The counterclaim is ridiculous and outside small claims whilst somehow they forgot(?) to pay the fee. Or a solicitor making a tactical move testing the water, if claim is withdrawn or then push the case to fast track and bring costs into play?

 

2. The defence is based on the same points, I don't have any other details or letters so struggling to understand how they plan to defend with such arguments. There is also no mention of the report.

 

3. I am thinking to contact the county court to ask why I have not received all the documents.

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Hi

 

Your understanding is correct on point 1......and Im not surprised they have not paid the fee.....5% of the value of the claim.

 

Point 2 you have 14 days to respond to CC

 

Point 3 you dont receive supporting documents until after allocation then you can submit a particularised full witness statement in support of your claim and in response to their

CC

 

 

As for the basis of the CC "Loss of business time by sales staff and correspondence" :wink: let them try to quantify that amount.....court should dismiss.

 

 

Andy

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Hi

 

Your understanding is correct on point 1......and Im not surprised they have not paid the fee.....5% of the value of the claim.

 

So defendants can just push the allocation to fast track with a stupid CC amount? I presume the allocation will be decided by a judge but in case the CC moves I would probably appoint a solicitor.

 

I rang MCOL and they said everything was sent out, they have not received additional documents mentioned under "defence" form N9B. They confirmed they are not allowed to forward any new documents after defence was filed. In this case, how is the defendant going to defend the case without a letter or particularised response?

 

Point 2 you have 14 days to respond to CC

 

I presume this is if the fee is paid and the CC proceeds?

 

Point 3 you dont receive supporting documents until after allocation then you can submit a particularised full witness statement in support of your claim and in response to their

CC

 

A little confused with the order of things,

 

1. If CC fee is paid by 10th day,

Case is allocated to a country court (?)

CC supporting documents sent out?

Directions Questionnaire sent out

 

2. CC fee is not paid,

Case proceeds with defence only

Directions Questionnaire sent out ...

 

Regarding court allocation, I thought with companies this was to be at the claimant's country court. Is this moving to the defendant's court if CC proceeds?

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So defendants can just push the allocation to fast track with a stupid CC amount? I presume the allocation will be decided by a judge but in case the CC moves I would probably appoint a solicitor. It can if the CC has merit...which in this case it hasn't

I rang MCOL and they said everything was sent out, they have not received additional documents mentioned under "defence" form N9B. They confirmed they are not allowed to forward any new documents after defence was filed. In this case, how is the defendant going to defend the case without a letter or particularised response?

 

I dont think you understand the process.....in any claim.. no evidence is sent out with either particulars or defence or counter claim....evidence follows allocation at the appropriate stage.You then respond after disclosure stage.

 

 

 

I presume this is if the fee is paid and the CC proceeds? Correct...or struck out

 

 

A little confused with the order of things,

 

1. If CC fee is paid by 10th day,

Case is allocated to a country court (?)
Correct

CC supporting documents sent out?
Not until after Directions issued

Directions Questionnaire sent out
DQ sent out after you inform Court you wish to proceed...then the above applies after allocation

 

2. CC fee is not paid,

Case proceeds with defence only
Possibly or even struck out

Directions Questionnaire sent out ...
Correct...then allocation then witness statement and disclosure (evidence)

 

Regarding court allocation, I thought with companies this was to be at the claimant's country court. Is this moving to the defendant's court if CC proceeds? No it remains at the Litigant Claimants County Court

 

 

Andy

 

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Thanks again for your time.

 

I understand that evidence is not submitted until disclosure, I wrote about a "particularised" defence with the defence case statement.

 

They were sent numbered particulars addressing specific facts and I expected a response along the same format i.e agree/disagree on the numbered points raised.

What I don't understand is why a defence statement says they "attach" letters to the document (N9B) but these were not sent to MCOL or myself? Aren't this case statements and not evidence?

 

 

1. If CC fee is paid by 10th day,

Case is allocated to a country court (?)
Correct

CC supporting documents sent out?
Not until after Directions issued

Directions Questionnaire sent out
DQ sent out after you inform Court you wish to proceed...then the above applies after allocation

 

I am not sure I follow this part. CC fee payment can be made by the "defendant" (company) at a later stage?

The MCOL letter states a time limit of 10 days from defence filing before the CC is struck out or paid. Are there any steps to be made from my end at this point?

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Apologies...yes if CC fee paid by the 10th Day

 

DQs

Allocation

Notice of allocation with directions

File and serve statements with disclosures (evidence)

Trial

 

 

For you in the meantime...you must inform the court you wish to proceed

 

have a read of the following CPR with regards to striking out for none payment of fees

 

You will have to pay a hearing fee at the directions stage as will the defendant if the CC is accepted and progressed.

 

https://www.justice.gov.uk/courts/procedure-rules/civil/rules/part03#3.7

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For you in the meantime...you must inform the court you wish to proceed

 

Thank you. What is the formal way to do this?

 

I expected the paperwork to be a bit more clear on steps but the letter implies two options without my action. Which is either wait for CC fee to be paid and move case to a local court or struck out and move on with defence followed by DQ.

 

 

You will have to pay a hearing fee at the directions stage as will the defendant if the CC is accepted and progressed.

 

https://www.justice.gov.uk/courts/procedure-rules/civil/rules/part03#3.7

 

reading on...

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Yes of course do not do anything until they pay their CC fee...if they fail as per my last link the court will strike the CC out and the claim progresses normally as already discussed.

 

But still be aware that you have a time limit to respond the defendant CC...14 days as you become the part 20 defendant.

 

Have a read of the following which explains the process in detail

 

https://www.justice.gov.uk/courts/procedure-rules/civil/rules/part20

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