Kalozo
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Sorry for any confusion - here is a quick recap: 1) In March there was a preliminary Small Claims hearing and we were ordered to appoint a joint expert 2) We appointed a joint expert and agreed joint instructions 3) The joint instructions stated stated the expert would have full disclosure and referenced the evidence bundle I supplied for the preliminary hearing 4) I sent the evidence bundle to the expert witness 5) The Defendant then kicked up a big fuss stating that some of the content should have been removed - a previous report on the patio 6) The expert got fed up with the Defendant and pulled out 7) We have agreed a new expert witness 8) The Defandant is now asking that all references to the previous report be removed from my evidence bundle that is shared with the expert witness, including: A) All references to the report be removed - this would require me redacting my Witness Statement and letter before actionicon. Is the Defendant entitled to ask for this? B) The evidence bundle to be renumbered so the expert would not know they had been removed. My Witness Statement references page numbers. This would mean I would need to rewrite my Witness Statement. Is the Defendant entitled to ask for this?
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Yes it was agreed to use this expert witness. The issue is the Defendant is requesting that some of the content of my evidence be removed and not disclosed to the expert.
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Thanks Andyorch - I had previously read 35.4. It doesn't seem to address the issue of full disclosure to the expert and what the Defendant can ask me to remove from my bundle?
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We have now selected a second expert witness after the first witness pulled out after the Defendant frustrated the process for 5 months. I have previously had an independent report completed on the issues with the patio. The Defendant has now explicity asked that this be removed from my evidence bundle and not to be disclosed to the expert. I am comfortable with this now it has been explicitly asked for. In addition, the Defendant has also asked: 1) All references to the report be removed - this would require me redacting my Witness Statement and Letter Before Action. Is the Defendant entitled to ask for this? 2) The evidence bundle to be renumbered so the expert would not know they had been removed. My Witness Statement references page numbers. This would mean I would need to rewrite my Witness Statement. Is the Defendant entitled to ask for this? Many thanks...
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Interesting - I told the Defendant I was writing to the Judge and he acknowledged stating "Agreed as you clearly cannot be trusted to act appropriately". He didn't ask for a copy Now that the Judge has ruled, this is just another blatant attempt by his lawyer to frustrate the process.... Happy to share the correspondence with the Defendant as it is all completely true and factual. I guess let the Defendant get any objections out of the way now before we get to the hearing...
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Hi, I have an ongoing small claims where the Defendant is frustrating the court orders. I wrote to the Judge who has made a ruling to appoint a particular expert witness. The Defendant is now stating that he wants copies of the correspondence I sent to the Judge. Do I need to share this correspondence with the Defendant? Many thanks in advance...
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It was interesting that the Defendant waited until I had posted the evidence bundle before he objected. The Defendant didn't ask for this to be removed during the 6 weeks we spent agreeing the instructions which clearly stated the evidence bundle would be shared. He was copied on all the email exchanges with the expert witness where I asked for the postal address to send the bundle to - again no concerns were raised. He has a lawyer friend advising him as a McKenzie Friend so he can't claim ignorance - I get 16 page letters of Latin, precedents and procedure each time we correspond. The expert has confirmed that he has not looked at and will not look at the report. However, the Defendant has now rejected the expert witness. It is another calculated attempt to continue to frustrate the process having done so for 3 months already.
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Patio installation expert witness. Evidence bundle contained my witness statement, contract information, photographs, manufacturers' specs and installation instructions and a previous independent assessment report on the state of the patio. The Defendant is objecting to the previous report (which the expert witness has confirmed he has not looked at and will not look at). Both the Judge and the Defendant were aware of this report at the preliminary hearing. Indeed at one stage the Judge was going to accept it as expert evidence until the Defendant objected and asked for a jointly instructed expert.
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We have agreed instructions - took 2 months to agree. I followed the instructions and sent my evidence bundle I had disclosed at the preliminary hearing to the expert. The Defendant claims the evidence bundle shouldn't have been shared with the expert even though that's what the jointly agreed instructions state. During the 2 months it took to agree the joint instructions the Defendant never once raised concerns about the content of the evidence bundle. At the preliminary hearing the judge even asked the Defendant if he had any issues with the evidence bundle being shared with the expert witness. The response was "this has not been considered and I will advise the Claimant" The Defendant is now saying the the expert is compromised because the evidence bundle shouldn't have been sent to them. Just another attempt to frustrate the process...
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I have written to the judge detailing the Defendant's attempts to frustrate the process and asking the Court to appoint one of the 3 expert witnesses I have nominated. Thanks for your advice...
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Value of claim is £10k. The order was: "The parties may jointly instruct an expert as the Claimant shall supply the Defendant with 3 suggested experts from which he must select one, if he does not agree any he will suggest 3 from which the Claimant will select one. In default of agreement the Court will nominate one." The builder rejected 2 out of the 3 experts originally and has now rejected the 3rd - claiming I have compromised their independence. So it looks like the builder must now propose 3 expert witnesses? My concern is this could take another 3 months as he drags out the process? Andyorch - are you suggesting I write to the judge?
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I have an ongoing small claims with a builder. At a preliminary hearing at the beginning of March we were ordered to jointly instruct an expert witness. We are now 3 months on and the builder continues to frustrate the appointment of the expert witness – taking weeks to reply to emails, stating emails have gone missing, changing his mind on things that we have previously agreed – e.g. evidence disclosure for the expert. The latest attempt is to say that I have compromised the expert’s independence during the appointment process and so the builder is now rejecting the expert witness we had jointly agreed to instruct. Any advice on how I can make progress and stop the builder from frustrating the process would be much appreciated. Thanks in advance…
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My small claim is progressing slowly and a key element of the builder's defence is that the paving slabs I provided were inferior. They are actually a CE certified slab from one of the top 3 suppliers in the UK. I sent an email to the builder with a link to the slabs I intended to buy before accepting his quote. He never raised any concerns at that point. When he did the job he never raised any concerns about the quality of the slabs. Is there any case law that effectively states by accepting the materials provided by the customer and continuing with the job, the builder deemed them to be fit for purpose and of acceptable quality? I can find lots of discussion from the motor trade but haven't been able to find any specific examples of case law. Thanks...
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There is a lot of history here. The installer laid the patio and slabs became loose. Remedial work was carried out. The slabs became loose and further remedial work to completely lift and relay the patio was undertaken. The Defence acknowledges that there have been two attempts at remedial work but denies there are now any issues. This did not resolve situation and there are still lots of issues with the patio: • Slabs are loose and rock and jointing has failed • Patio is at damp proof course level in places • Air bricks are half covered • Falls are not correct so there is water ponding All these things are documented in the report I already have by a reputable company that is accredited by all the appropriate trade bodies. But obviously it isn’t a court instructed expert witness report. The defendant denies any issues: • Claims slabs are not loose and goes to great length to explain the work they did • Claims that pre-contractual discussions agreed the height of the patio against the property (nothing in writing). I did not agree to breach the damp proof course and block air bricks • Blames any ponding on the slabs I provided in that they are inferior and riven surfaces. The slabs are from one of the three leading providers of slabs in the UK • Rejects the report due to CPR If the court rejects the report, it will be very difficult for me to prove the issues. It feels like I have a few options: 1. Risk submitting the report as evidence and hope it is allowed 2. Fill in the N180 and request another expert report (but it will be difficult to fid anyone more qualified) 3. Fill in the N180 and state that I already have the report 4. Fill in the N180 and put the same person down effectively promoting them from an expert advisor to an expert witness. This surely runs the risk that the defendant says the person is no longer independent? Any advice would be great. Thanks
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Thanks BazzaS... I haven't submitted the N180 yet and so it looks like I have two options: 1) I submit the report I have as evidence and hope that the court doesn't disallow it. If the court does disallow it can I at this stage then ask for an expert witness to be instructed or is my case basically blown apart? 2) I fill in the N180 and request an expert witness is instructed. Are there any other options e.g. State the report I have already obtained on the N180? Thanks
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Hi, I am in a dispute with a builder about a patio installation. To confirm whether I had a case, I obtained and paid for an independent assessment by a reputable company that was accredited by all the relevant trade bodies. I also chose someone out of the local area to carry out the assessment. I used the assessment report as part of the evidence with the letter before action. I filed a small claim which the builder has defended. The defence states that the “report does not comply with the Practice Direction at 3.2 of CPR Part 35 on expert testimony and as such, carries no legal weight.” Will this report be inadmissible in court or can it still be used as evidence? Thanks in advance…
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June 2016 - Patio laid July 2016 - a number of slabs become loose and are re-laid Aug 2016 - more slabs become loose including ones that had been re-laid Sept 2016 - complete patio lifted and re-laid Apr 2017 - patio used for first time after winter. Slabs are loose and contractor acknowledges there is an issue July 2017 - contractor offers to repoint and relay the two slabs he lifted to inspect the bed. But now does not acknowledge issues with loose slabs July 2017 - visit to site with aggressive behaviour July 2017 - start to formalise process with letters to contractor July 2017 - contractor makes a number of false, unsubstantiated accusations such as walking and riding bikes on patio while it was being installed I am now struggling to progress the situation with a contractor who lies, we have no confidence in and has become aggressive.
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He did not threaten physical harm or damage to property. But he wouldn't leave the property when asked. We are about to start a small claims against him at which point he has offered further remedial work. We are uncomfortable having him back on site given his behaviour. Not to mention lack of confidence - this will be the 4th attempt to lay some of the patio. Given his behaviour and lack of confidence, do we have to accept his offer of remedial work before progressing the small claims?
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I am currently in dispute with a builder over a patio - there have been several attempts to remedy the situation over the past 12 months the patio has been re-laid but there are still significant issues. Last time the builder was on site I unfortunately swore about the situation not directed at the builder. The builder became very aggressive and intimidating - shouting and swearing at me. I asked him to leave the house and he continued. Fortunately, at this point my wife came home with my daughters and she could hear the builder shouting from outside the house. I managed to get the builder into the front garden where he continued to shout and swear at me in front of my wife and 5 and 3 year old daughters. My wife asked him to stop multiple times. We got the children in the house and then he eventually left after a final tirade. In the evening the contractor sent a text to my wife rather than me acknowledging his behaviour had been inappropriate. He is offering to carry out further remedial work but we are obviously reluctant to have him back on site after this situation - he is a big guy. Where do we stand legally if we don't feel comfortable having him back on site?
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