flooring company & my small claims case.

[AndyOrch]

Only 2 Bank Holidays effect the court timetable process......Christmas Day and Good Friday.

[Honorsmum]

Only 2 Bank Holidays effect the court timetable process......Christmas Day and Good Friday.

 

Thanks for this info, andyorch.

So, time limit for defence to be submitted is tomorrow - the clock is ticking...

[Honorsmum]

As suspected, the defendant in our case submitted his defence online at the eleventh hour.

 

A brief background to our case:

We had a wood floor fitted that went wrong very soon after fitting. Over the course of a year, the supplier/fitter had to come out and attempt to remedy problems on 5 separate occasions, but after the final attempt, we were still left with a faulty floor.

We sent letters before action, and then requested an independent expert inspection and report, with the suggestion that we share the cost with the floor company. They declined, saying that an inspection at that point would not fairly reflect the state of the floor at the time the problems arose.

We had the inspection done and the report states that the reason the floor failed was down to inadequate preparation and incorrect fitting.

 

In his defence, the supplier/fitter has claimed that he refused our offer of an independent inspection because one had previously been done by the floor manufacturer. In actual fact, what he is talking about is a rep coming out and having a look because a number of floors of the same make had gone wrong at the same time - fitted by the same people.

 

The whole defence is a slewing of what actually happened; the timeline isn't accurate at all.

We have a report that clearly shows the failing of the floor was due to the original fitting. Subsequent attempts to remedy didn't work because the cause wasn't identified until 9 months later, by which time, it was too late to save the floor.

However, the defendant is trying to claim we were obstructive in not making ourselves available to allow him to remedy it (after the third attempt, we went on a pre-booked holiday).

How do we argue this, when it comes down to "he said, she said"?

Obviously, our report is concrete evidence but we suspect that the defendant is going to argue around timescales, assert that he said and did things that he actually didn't etc.

What can we do now to best prepare and present our case?

[honeybee13]

Hello there.

 

I've merged your threads, as it makes things easier for the advisers.

 

HB

[Honorsmum]

Thanks Honeybee.

[AndyOrch]

You need consider the defence point by point and accept/ reject and consider if your claim is still viable.......and if so then you have to decide whether to proceed and inform the court same.

[Honorsmum]

Are we able to request info from the defendant, ie copies of correspondence between them and the independent expert they claim they requested, since this is the first time this has been mentioned andwe don't believe that this happened (the "independent expert" was a sales rep from the floor manufacturer, who briefly looked at the floor to rule out manufacturing issue).?

 

Is there any point us digging out records and proof of every phone call we made to the defendant, in order to show a timeline and prove that we did not ignore communication from them, but were actively persuing it?

[AndyOrch]

Not particularly that deep...there will be standard disclosure by both parties...what your claim relies upon and what the defendants defence relies upon.The District Judge will apply CPR 1 in most SCT claims...that being the overriding objectives and the bases of probability...let the court direct.

[Honorsmum]

Ok.

So we've received the DQ this morning.

It says we have to serve copies to all parties. Does this simply mean sending a copy to the defendant, in addition to returning a copy to the court? Do we send it registered post? We made the claim against a business originally, at a business address, but the proprietor has put his name and home address for serving notices on his defence, so presumably we use that?

 

We have already had an independent expert inspection and report done (we wrote to the defendant, prior to starting court action, offering him to be party to the inspection in order to establish cause without having to resort to court action - he refused), so do we state all the details in the space given for requesting permission? Are we at fault for already having an inspection?

[AndyOrch]

Ok.

So we've received the DQ this morning.

It says we have to serve copies to all parties. Does this simply mean sending a copy to the defendant, in addition to returning a copy to the court? Yes Do we send it registered post? Your choice We made the claim against a business originally, at a business address, but the proprietor has put his name and home address for serving notices on his defence, so presumably we use that? I would send to both...in case they deny receipt

We have already had an independent expert inspection and report done (we wrote to the defendant, prior to starting court action, offering him to be party to the inspection in order to establish cause without having to resort to court action - he refused), so do we state all the details in the space given for requesting permission? Are we at fault for already having an inspection?

 

Small claims track requires court permission for expert witness evidence......just explain that you have already had it done and request permission to use this.

 

Regards

 

Andy

[Honorsmum]

Thanks, andyorch - really appreciate your advice.

[Honorsmum]

We've returned the DQ, but I've had a sudden panic that we should have paid a court fee - and haven't.

Cant see anything in the form that says we should have done, but I remember reading somewhere about a £40 fee.

Can anyone advise, please?

[SabreSheep]

There used to be aa fee at DQ stage. This has now gone. The next fee to pay is at hearing stage

[Honorsmum]

Phew!

Thank you so much for your quick response, SabreSheep.

[AndyOrch]

Notice of Allocation will state within the directions when you are to pay the fee by......

 

Andy

[Honorsmum]

Am I correct in thinking that the defendant has to serve a copy of the DQ to us?

If the cut off date is 15/06 and it doesn't arrive in the post that day, can we request judgement?

[AndyOrch]

Dont have to...but its advised within the DQ and considered civil for parties to exchange...no you cant request judgment.If they fail to submit it to the court by that date you can request sanctions and that the court considers striking out the defendants defence.

 

Regards

 

Andy

[Honorsmum]

Thanks, Andy.

The defendant's DQ arrived in today's post.

He has asked for permission to use an expert report that until now, we have had no knowledge of. Not sure how an independent expert report has been written, since the claim is concerning flooring fitted in our house - the only person who visited briefly to look at the floor was a sales rep from the manufacturer, in order to establish that it wasn't a manufacturing issue.

We obviously have copies of all pre-action correspondence between us and the defendant and there has never been mention of a report anywhere (whereas, we asked the defendant whether he would share the cost of an independent expert inspection, and he declined).

[AndyOrch]

Dont worry about that...in all the cases I have been involved experts witness/reports dont carry much clout with DJs.

[Honorsmum]

That's not great news for us, since we DID get an expert inspection report done before starting action, because we were unhappy with the reasons the defendant gave for the floor failing.

The report we have (and have requested to use) makes it clear it was a preparation and fitting problem - we wrote to the defendant, with the findings, in the hope of not having to go to court. It seems that he has sprung his "expert" report at the eleventh hour in the hope of over-riding ours.

[Ganymede]

Are both reports CPR part 35 compliant?

[Honorsmum]

Ours can be made CPR compliant for a further charge. Pretty much the only thing it is missing is the statement of truth in the format the court requires.

At a guess, I would say the defendant' s is no more than a basic statement from a sales rep.

[Ganymede]

Then both reports are currently worthless.

[Honorsmum]

So would you advise having ours made compliant? If allowed, the evidence it contains proves our case fairly definitively, but if the judge is going to ignore it anyway, might it be throwing good .money after bad?

The point of the inspection was to establish whether we had a claim, in the hope that the defendant would settle without the need to go to court.

We contacted several independent industry experts and all offered 2 levels of report - standard and part 35 compliant - for the same reason.

[AndyOrch]

CPR 35.4

 

(1) No party may call an expert or put in evidence an expert’s report without the court’s permission.

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

(a) the field in which expert evidence is required and the issues which the expert evidence will address; and

(b) where practicable, the name of the proposed expert.

(3) If permission is granted it shall be in relation only to the expert named or the field identified under paragraph (2). The order granting permission may specify the issues which the expert evidence should address.

(3A) Where a claim has been allocated to the small claims track or the fast track, if permission is given for expert evidence, it will normally be given for evidence from only one expert on a particular issue.