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  1. Hi all. Someone suggested I post the outcome of my small claims defence/counterclaim, so here goes:

     

    Not great. Judge was 'good at managing the case' = really good at steering course of day the way she wanted, with no chance to divert from her purpose. Which was to ignore most of the evidence and to go on verbal accounts. Judge hadn't read any of the statements, or report, or any part of the paperwork. Thought paperwork excessive. Did not realise claimant was source of all the paper - thought it was me. Perhaps because mine was neatly tabbed with easy-to-find tabs.

     

    That thing with '90% of a case is in the preparation'? Not here. She wanted verbal accounts and allowed almost no reference to documents. This case hinged on a joint expert report. Claimant goes first: they ramped up the 'poor honest workmen, been wronged!'. Judge bought that version of events. She called them 'charming witnesses'. Yes, really.

     

    A joint expert report had been completely damning of claimant's work - so damning that they managed to persuade the judge it must be 'bent'. Which was interesting, as it was full of photos that told the story all by themselves, even if the text had been ignored.

     

    However... the judge then steered me through a very narrow corridor of facts about the time of the installation, which on their own did not help my case at all - especially as she ignored a lot of facts about that which were in front of her as well (like the use of a massive hammer that is typically used by stone masons to smash out the window frames - when I tried to mention that, she just brushed it off as irrelevant, although it had caused excessive external damage, and there were photos of that).

     

    And then she said that was the end - no chance to point out anything else. She did not accept that people who don't know about windows - like me - would only find out certain problems after other people have pointed them out. In fact, according to the CAB consumer line you're supposed to have six! years to complain about any product or service, on the grounds that problems often emerge long after.

     

    So all I was awarded was a small sum for a few points that the claimant conceded 'could have been done better' - and all the serious stuff that he insisted was excellent quality, was ignored in the judgement. In toto about a fifth of my total claim. Makes me feel pretty crummy, not for the money but because the judge believed these nasty men who had made my life misery for so long.

     

    Reason I went to court in the first place was not so much the money but the principle - these guys refused to put things in writing as soon as problems emerged, bullied and harangued me on the phone - when I started saying No to this technique and insisting on e-mails - that's when I got a small claims summons! So it was about not letting bullies get away with it.

     

    To have the judge buy all their bull and treat me like an over-demanding customer who upped the claim beyond all reason - that hurts even more than being left with horrible windows to fix and almost no money to fix them with.

     

    So the claimant and his son first huffed and puffed about injustice when giving evidence, then snorted and huffed by way of commenting my evidence, and then they literally sniggered as she handed down the judgement. And she let them do all of that. While telling me off for trying to contradict what they had said.

     

    Guess how I feel? But hey, it was an 'interesting' experience, and at least I did stand up to them. Several people with small claims experience had told me beforehand that I had a really good case. Including the expert - his report was so damning because the windows were so bad, and he said it would be a 'walk' - he had plenty of small claims experience. He said normally it's much harder to be an expert witness because it's rarely very clear cut. For once it was - but the judge didn't believe it. So there we are.

     

    Not sure what wisdom people can take from this. Don't go to court? Don't appear over-prepared - but you have to be over-prepared anyway? I certainly still wouldn't recommend paying a nasty builder who wronged you just to avoid a legal case. But - 'principles cost money'. And time, lots and lots of time...

     

    I sure hope this is the last time I experience a court room. It was fascinating in a way to see the 'legal system' at work. I could even see how a judge might feel it was necessary to act as this one did, and I don't really blame her - there was only one day, there was too much paper... but she didn't give me a chance to throw a different light on the case. And I do think she was too 'charmed' by ye olde good old country tradesmen folks with ye olde twinkerly eye. Ho hum.

     

    Judge had fair hair. I guess... Justice is bl...ond.

     

    Thanks for all the help and advice I had on here. It really boosted my confidence when I had no idea where to turn.

     

    Suse

  2. Good evening, anyone who's got time to read this: another question, please.

     

    Included in the bundle is now a 'witness statement' from one a supplier who sold the claimant a product we think was completely unsuitable for the job. This same person told me on the phone (rough transscript made during call) and in two separate e-mails that the product was not suitable as used, and I appended this as part of my statement. This supplier's signed statement is dated two days after document exchange. It contradicts what the man told me directly. While I can probably argue that he's tweaked his view to oblige a customer, having it disallowed completely would be better - can I do that, given it was provided to them two days after document exchange and supplied to me only today?

     

    Thank you!

    Sue

  3. Thank you, Steampowered! So many unknowns... Here's another: going through the bundle, I found a copy of the claimant's defence to counterclaim, unsigned. He sent that in the spring, in response to my counterclaim, by e-mail, also unsigned. He never sent me a hard copy. He may have sent a signed hard copy to the court, but I don't know. If he hasn't done so, does that invalidate his defence to the counterclaim? And if that were so, what would be the implications for the hearing?

     

    As ever, any tips and advice more than welcome. Now back to the bundle...

    Cheers!

    Sue

  4. Thank you, Steampowered, that's sound advice. I'm struggling to get away from trying to present myself as 'the reasonable one' and the other side as unreasonable; I can see it's important to focus on the contents of statements etc - will try to practice that.

     

    The bundle has just materialised, will require a lot of work to file all the loose leaves supplied in document pouches. It does not include items I asked to be included - e.g. an annotated drawing to illustrate a typical sash window and post-report correspondence with the expert. Can I provide information like this at the hearing as a 'supplement', on the grounds that we asked for this to be included and the claimant had not said 'no' (and he hasn't provided a 'summary of documents not agreed on').

     

    Re 'without prejudice'/privileged information: in addition to privileged e-mails included with one of the witness statements, I've just found my Calderbank offer (without prejudice save as to costs) has been added to the bundle. I still don't understand how to handle this with the judge and how it can affect proceedings. I think my offers are reasonable, so I don't mind them being seen that much - but I still don't understand the legal aspect of one side revealing the other's privileged information. And I don't understand how it might affect the case. I know I've asked before but it still hasn't clicked - more advice on this would be wonderful.

     

    One other question, if anyone knows, please: the joint expert report (almost completely damning of the windows and the fitting, also provides costings for repairs/replacement) is the clearest and best evidence available, no matter what either side says. How and when do I actually refer to it, how do I ask for the Judge to make this the main focus of the assessment of the situation (i.e. whether the window are 'fit for purpose')?

     

    I'm assuming the hearing is now more likely to go ahead than not, and the mountain of work to get through before Tuesday feels really daunting.

    All tips, experiences, advice would be most welcome!

    Thank you everyone.

    Sue

  5. Good morning! Another question, as I prepare for the hearing: how would I address the question of privileged information with the Judge?

     

    I would be quite happy to have all the settlement negotiations with the claimant out in the open, as they indulged in a series of, shall we say, 'creative' calculations in offering settlement, telling me that I'm only after money etc. The offers, while far too low compared to what it would cost to fix their mess, did effectively include 'dropping the claim' (that was verbatim in the privileged letter they included in their evidence pack) and offering a small amount on top which they thought reasonable. They have revealed one letter, but there are several more which illustrate the same thing.

     

    I think, but might be wrong, that their disclosure of this letter means they are in court on a wrong premise - as they are still there as claimants looking to get their money, as per their original claim. How will a Judge actually see this?

     

    So how would I best bring this to the Judge's attention? And should I? Can I bring the complete set of negotiation e-mails and show them, on the grounds that the other side has 'waived privilege' and that I am happy to do so too? Would the Judge read this, in the circumstances?

     

    As ever, very grateful for any advice!

    Sue

  6. Thank you! Update: the claimant's son, who is as involved in the litigation as his father, has just informed me the father is in hospital 'for tests' after 'a suspected mini stroke'. So the case may be delayed anyway... but I have to carry on regardless. Can't help feling sorry for the man either, even though he's putting me through all this so needlessly.

    Thank you for all the advice - it is helping me focus on what matters.

    Cheers!

    Sue

  7. Thank you, Sadie, Steampowered and SabreSheep - this is all very helpful.

     

    Writing to the Court with request to pass communcation with claimant about the bundle has helped concentrate the claimant's mind - he is now trying to get a bundle in the post today.

     

    Claimant has not responded to several enquiries regarding witness statement filed after exchange. I know from asking a court official that he did file such a statement with the Court. From the comments here I gather that I can at the very least expect the Judge to disallow this, and possibly it may lead to the case being struck out?

     

    I will go to court taking a separate bundle of the 'privileged' communications so I can refer to them if privilege is considered to no longer apply.

     

    As Steampowerd suggested, I think I will try to focus on the expert witness report - it's useful to hear as I tend to get caught up in the accusations from claimant about tiny things.

     

    I have yet to read the Mitchell MP case but very grateful, Sadie - looks interesting, and the other info you posted likewise - very thorough. I have been warned not to 'try and play the lawyer' with the judge but will see how I can bring this in as indicated.

     

    I may well be back with more questions, as the preparation is progressing.

     

    Thank You, all of you - very grateful for the input - helps me keep a cooler head in this anxiety-inducing process.

  8. Update: Claimant now says he is 'currently' working on the bundle (was due today) and claiming ignorance of court process (but was well able to get instant response from court about filing a new witness statement - so I hope that won't wash). Reply came only after I wrote to the Court asking the matter to be referred to the Judge.

     

    New question: claimant has now asked for additional documents that he wants to be included in the bundle. I think he wants those in the hope of incriminating me in some way (e.g. quotes that I used to ask for increase in counterclaim - but that part of the process was superseded by the expert report and the quotes in the end didn't flow into any counterclaim). Will the claimant be allowed to (try to) make a argument one way or another based on such documents, given this did not form part of the evidence exchange?

     

    I'm not bothered by inclusion of the documents - but I'd rather the claimant didn't find another route to deflecting focus away from the 'main course', which is the Joint Expert Witness Report. I gather from reading around the subject of small claims that use of an expert witness is really unusual - but it was a judge who told us in no uncertain terms that this was the only route to clarity. The claimant kicked and screamed before agreeing, but he did co-appoint someone in the end. Now he thinks he can 'prove' the report invalid, and that, in his words after the last hearing "it's a stitch-up".

     

    Ho hum. I'd be really grateful for more comments on any of the subjects that have come up in these posts. Especially any more tips for how things work in court - BankFodder's advice about keeping it simple etc was very welcome, but it's still a huge dark cloud of uncertainty.

     

    Good night.

    Sue

  9. Thanks for the comment, Steampowered.

     

    Yes, I had thought of bringing a bundle myself - but to do all that extra work and have all the expense is very upsetting. It would probably take a day to do this - which takes time away from preparing for the hearing on Tuesday: even just going to buy more printer cartridges, folders, paper etc, let alone all the systematic work required - quite different from the papers I need to prepare just for myself. It's all complex and a vast amount of cross-referencing to correspondence is needed to show discrepancies, lies etc.

     

    This case has dragged on for two years and there are pages enough to fill a large lever arch file - that's without all the correspondence and without the joint expert report. Handing the Claimant, who has specifically been ordered by the court to provide this, a neatly-assembled bundle... I'm sure you can imagine how galling that is.

     

    While the judge would doubtlessly be pleased if I provided a bundle, the case would still be judged on the merits of the claim and counterclaim, not on whether I'm 'being the good girl'. So... I feel really stuck between the two options.

     

    Is it an alternative to just provide a 'supplementary' bundle of what I think would help my case, leaving out all the doubling up like the claim forms, orders etc, or is that worse than nothing at all?

     

    Any other points of information would be very welcome - about the non-compliant claimant/bundle question, and also about the question of what constitutes unreasonable actions/behaviour by the other party, with regard to a cost claim beyond travel etc.

     

    (n.b. a joint expert report from a jointly-appointed RICS surveyor has roundly condemned the work in question but the claimant has continuously refused settlement around the 50% mark of the value of our counterclaim and is still going to court on the premise of claiming against us...).

     

    Thank you so much for all the advice on here - it helps!

    Cheers,

    Suse

  10. Hi Sabresheep, that's such a fun idea - 'enjoy the chaos'. Wish I could - instead I rang the court again yesterday: they say it is quite possible the judge will adjourn the case if there is no proper bundle and tell the claimant to go 'do his homework'. At our local court here, adjournment means about three months before the next hearing.

     

    I can't stand the thought of turning up next Tues, having spent over a week swatting up on all the details, working out what matters and how to focus on it - only to be sent home again. And having to do it all over again a few months down the line.

     

    I'm now wondering whether I should write to the judge and show them the e-mails from the claimant saying 'why should we'. If I did that, would it help?

     

    Cheers.

    Sue

  11. Thank you very much, BankFodder (I trust you were an indigestible meal for that bank?)

     

    The tips about asking questions are really useful - more homework!

     

    Meantime, another thing: we came to realise the claimant didn't know the significance of a bundle. Because of the implication (no bundle before hearing = judge won't be able to form such a clear picture of the case/during hearing chaos as sheaves of unsorted paper are shuffled) we sent the claimant some online info about how to prepare a bundle.

     

    They have just written back (bundle should be with the Court tomorrow) saying they don't think they need to do more than what they have done (sent unsorted, unreferenced exchange documents to the Court last week).

     

    Does anyone know what happens if the claimant doesn't provide a bundle at all? I can't stand the thought that the case might be adjourned to a later hearing.

     

    Re cost award, again, very helpful comments re how to ask the judge and preparing something in advance.

     

    If anyone can refer me to any actual small claims case examples where costs were awarded beyond the standard allowable costs, I would be very grateful.

     

    Cheers!

    Sue

  12. Good morning,

     

    Can someone please help me understand:

     

    The claimant wrote to the court late last week saying that in the light of my witness statement, he wants to change HIS witness statement - that is, after exchange of documents.

     

    The Court admin has told me today that the Court sent a letter to the claimant saying that they "do not need the Judge's permission to file statements" - which apparently means they can file another statement as they please.

     

    I thought that exchange of documents is on the same day so that one party's evidence can't be used to influence the way the other side presents evidence.

     

    What the lady at the Court didn't tell me ("we can't advise on that") is whether the old statement will count or whether it will be overridden by anything else the claimant files.

     

    The hearing is early next week. I have done work on the claimant's witness statement, referencing each point I contest with quotes from e-mails and documents - this is to use in cross examination. Will their original statement still stand or will I have to start again if and when we get a new statement? What are the implications of all this?

     

    Yikes... preparing for the hearing is like a full-time job!

     

    Which reminds me: is anyone aware of cases where, as well as costs for expenses and hearing attendance, costs for time spent on the desk work can be claimed for by a litigant in person in small claims? I know that this is highly unusual but does happen - but I can't find any example cases online. I've spent so long on all this, and the other side have been so unwilling to negotiate or mediate, that I feel it is reasonable to at least as for some of those costs, so it would be great to be able to back up such a request with a 'precedent case'.

     

    Thank you very much to anyone who can advise on these questions!

    Sue

  13. Thank you very much for the comments, BankFodder. Strategic thinking doesn't come naturally for me, so these tips about keeping things up my sleeve are great.

     

    To clarify - I wasn't all that courageous - until the MCOL claim landed on the doormat, legal action didn't feature on my horizon. Those joiners sued ME, and it was then I decided to counterclaim because I had of course started to look in more detail at their work: by then I could see the repairs would amount to more than the outstanding amount they were suing for. The investigations while trying to fight the case brought out more and more and yet more evidence of poor workmanship so that my counterclaim went from 2.5k to the full 10k small claims limit.

     

    As per your suggestion, I will definitely post a summary of the whole sorry saga when it's over :-(

    Thanks.

    Sue

  14. Good evening.

     

    In a two-year small claims case (yes - two years!) it looks like things are finally heading to trial*. I am the defendant/counter-claimant and litigant-in-person. Other party also representing themselves. I have just exchanged documents with the other side. On reading their witness statements, I find that one of the statements makes explicit reference to previous settlement offers from us that were clearly marked 'without prejudice'. The figures cited are figures that were presented, but are used to misrepresent the actual offers/counteroffers dialogue (to make me sound unreasonable), without copies of the actual letters included.

     

    Question: can I ask the judge to dismiss this witness statement as inadmissible? Alternatively, can I choose to agree to having the 'without prejudice' letters admitted - but ALL of them including the other side's (although none have been included in the exchange documents)? This latter option would make it quite easy to show that the other side is unreasonable.

     

    Also, given that the claimant has effectively disclosed in a witness statement that they have offered to settle by paying me, does this imply they have 'dropped their claim'? Can they still go to court on their original premise, namely that I should pay them the outstanding part of their bill?

     

    Two other questions:

     

    Two of the statements share about 60% of the wording - word for word. As witnesses are meant to write statements 'in their own words', is this grounds for dismissing the statements?

     

    Also the witness statements provided by the other side are unreferenced (i.e. allegations without referring directly to related documents, such as quotes, e-mails, product data sheets, etc - although these, with the exception of the 'without prejudice' letters, are included in the exchanged documents, connection to the witness statement is not shown). How would a judge treat a statement that isn't referencing the relevant information?

     

    I have looked everywhere online for information specific to the main query, but I can't find anything that explains what I need to know. Can anyone advise me, ideally with reference to relevant law info that I could cite if necessary?

     

    Thank you so much.

    Sue

     

    *Details, in case anyone wants to know: the case concerns withholding final 10% of a bill - for faulty windows/fitting. Then being sued by joinery company, and counterclaiming. JOINT Expert report, commissioned a year into the case after pressure on claimants by a judge, found that the company owes me money, not the other way around, due to the nature of the defects - 6-10 times the amount they sued for. Judge at the last hearing pointedly advised parties to find a way to settle out of court. Claimants refused any reasonable offers of settlement (under 50% of max total expert estimate) and made what I consider silly offers (roughly 10% of joint expert's estimate). So far no joinery company I asked has been willing to take on the mess I have been left with, so I think the windows will need replacing - which will cost more than small claims maximum.

  15. Thanks, Steampowered. I agree that it can't be a good defence - but was hoping to be able to add in some definite regulation about this, just in case the judge who finally looks at this (not till August... but have to submit now) doesn't know the rules himself/to make even the obvious as crystal clear as possible.

     

    Although we raised several concerns before they left, the claimant is simply denying this, so no proof on that one. Sigh... amazing how difficult it can get to prove something when the other side is happy to tell straight lies.

     

    Cheers,

    Suse

  16. Hello again! The saga continues... after some legal contortions, we now do have permission to submit a draft for amending our original counterclaim. So I'd love a bit more advice, please:

     

    Question: the joiner says our dispute with him is not valid because we did not raise our concerns with him before he left the premises (this is untrue anyway - we raised several concerns while the work was going on).

     

    Is there legal chapter and verse I can quote about consumer rights in relation to this? Where can I find official guidance about time limits for complaints in the building trade, and legalese paragraphs etc? I have tried looking for something like 'time limit' in the consumer rights act but can't find anything that seems to fit. We originally raised our concerns within three weeks, in an official letter following a Citizens Advice template, after a builder confirmed the work was really poor standard.

     

    I'd be grateful for suitable links. Cheers!

    Sue

  17. Hi everyone - another update, another yelp for help...

     

    So far: cowboy window people made MCOL claim against us as we withheld (a small amount of) money from their final bill. Recently filed request to vary the counterclaim (form N244) as further problems with the windows had emerged since original counterclaim.

     

    Then - two days before going on holiday 10 days ago, received an order that we must attend a hearing for this request: but on the day after our holiday, and provide evidence re change of claim. Rang court in panic: advice was to send e-mail showing holiday bookings evidence and ask for deferral (implication was this would be granted). Hearing would have been today.

     

    So now: got an order in the post today stating that the request to adjour is dismissed and that we must attend the hearing with draft of counterclaim. Which we could not do, because we didn't get the letter till today. Also says I can request to vary/set aside this order within 7 days - but the hearing is already done and there will be a separate order resulting from the hearing. So I could apply to vary the order I just got (to say compliance wasn't possible and please can we have a different hearing date?) - and this would overlap with another order being issued as a result of the hearing we did not attend today.

     

    Arrrrgh... how is a normal bod meant to deal with this sort of thing without legal advice? I thought this whole thing was already too much for my small brain - now it seems to be getting worse and worse!

     

    Wish I'd just paid those nasty men, even though they have ripped us off so badly - it's cost me so much in time, nerves, misery!

     

    Any advice on this would be ever so welcome - I'm finding the situation really scary.

    Cheers.

    Sue

  18. Happy just-after-Easter everyone. Here is yet another question from the small claims minefield: filed a form N244 to vary the counterclaim a couple of weeks ago, and obviously still waiting to hear (courts seem to take a couple of months for any sorts of responses). This overlapped with dates for delivering documents given in the court order we had received.

     

    So the other side have now sent an envelope with papers. I haven't opened it yet, because I am wondering the following: if I open this, then I could be 'ahead' of the other side because I haven't reciprocated (pending permission to vary the counterclaim, which will change our evidence). I tried to ask at the court, but as before they just told me they are not allowed to tell me anything that relates to procedure.

     

    Is there some rule regarding viewing the documents they have sent in these circumstances? Only asking because I assume knowing what evidence the other side hope to rely on could give me some advantage in putting together my own evidence - and so I imagine there might be a rule that says one musn't view such information. Can anyone shed any light on this?

     

    Grateful for any advice.

    Sue

  19. Hi again - update. I had been given to understand that an Order has to be complied with even if it is about to be superseded by something else. At the weekend I got talking to a lawyer at a social event and expressed my surprise at this. He told me I don't have to comply with the Order if there is a request to vary my counterclaim pending and the request was made within the 7 day limit given in the order. He really seemed to know his stuff, so I'm going with that. Phew.

     

    Cheers.

    Sue

  20. Hi everyone - no questions this time, just an update, bascially for anyone who ever browses here in search of info: Filed Form N244. Now I've got a week to comply with the original order because it arrived at the weekend and I could only find out about how to vary the counterclaim on Monday (and all the questions about that form over the days since). I thought this was worth a mention because I was so surprised to learn (doing some very careful reading between the lines from the court enquiries person, who would not give a straight answer about this) that I definitely have to comply with the original deadline, instead of being allowed to wait for the judge's decision. So ... I'll probably have to be back with more hapless questions about how to fully comply with the Order. Do my best not to bother y'all too much.

     

    Thank you very much for all the help so far.

    Sue

  21. Oh... that's interesting. Do the courts go by when the first claim was made, then? Because the adjusted counterclaim, assuming this Form N244 is accepted, could certainly not go in before 1st April. I wouldn't want to file a separate, fresh claim against the other side, even if I thought they might pay up. We only filed the counterclaim because, having been forced into defending ourselves, we felt this would give us a better chance of showing how bad the workmanship is - and also to have a compromise to offer - you drop yours, we'll drop ours, sort of thing.

     

    In an ideal world, I'd rather have the whole thing dropped; still find it hard to believe these joiners are still pursuing their claim, when they must know how the evidence stacks up. I'd rather lose out on having the windows repaired professionally (we'd have to do it ourselves, basically) but better than all this stress.

  22. Cheers, Andy. They claimed £1100, the money we withheld from them once we realised there were real problems - about 10% of the total. We have claimed £2500 to cover raking out the unsuitable caulk they used to fit the windows, repair damage to plaster from smashing out windows, and re-painting - not enough even for that, but we didn't have proper quotes in yet nor the results from the Dulux paint check when we initially had to respond.

     

    What the extra work might cost I have no idea. Going to try and get some actual window makers in to take a look now, although as I've noticed before where there is a legal case people can work out quickly they may well not get the job and so don't want to quote. I'm now guessing the windows may need to be taken out entirely, repaired, and the fitting re-done, so we could be talking thousands more. Arrrgh.

     

    Thanks for your help.

    Sue

  23. Thank you so much - almost ready to send off the form now, and it feels great to have a bit of confidence.

     

    But I've got another question: if the new quotes, once we've got them, take the thing over the £5000 cut-off, what happens? I'm asking because I think it is very likely, given the problems we're now uncovering. I'd be grateful for some indication of the various options.

     

    Cheers!

    Sue

  24. Thank you so much, Andy! Almost all clear, and incredibly helpful. Just to be sure: do I fill in Box 3. as I wrote it in previous mail + also use that text, just as you have formatted it in your reply, to draw up a Draft Order myself, which I would attach to the form?

     

    Really grateful and cautiously sighing relief,

    Suse

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