flooring company & my small claims case.

[Honorsmum]

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.

 

We've stated on the DQ that we have already had a report from an independent expert, and stated why, his name and qualifications and the cost of the inspection and report.

I assume it's now a case of waiting to see whether the court grants permission to either party?

[Ganymede]

What's the value of this claim again sorry?

 

You don't actually have a compliant report yet though and if this is a small claims matter then there is no way that the Court will let you both get experts reports as the costs won't be proportionate.

 

If permission is granted for experts reports then it'll probably be for a jointly instructed expert with the other side.

[AndyOrch]

I tend to find that Small Claims Track do not go that deep into civil claims...so he may dispense with experts.....the DJ will decide on the balance of probabilities and CPR 1 the Overriding objective...if your claim carries merit and their defence is weak...he will find in your favour

[Honorsmum]

The claim in total is just shy of £2200. The cost of the expert inspection and report was £380.

We approached the defendant before the inspection, asking to jointly appoint an expert in order to establish cause but he refused. We commissioned the expert anyway, because we needed to establish the cause of the issues before deciding whether we had a case for court action - the defendant has always refuted it was caused by incorrect fitting, but the report found it absolutely was. The expert contacted the defendant, informing him why, and the defendant answered questions and gave technical information that proved what the inspection showed - this is detailed in the report.

 

If we are not allowed to use the report as written evidence, are we able to use the information contained in it in court, verbally?

[AndyOrch]

You should be allowed to use it...you can refer to it within a Witness Statement and Standard Disclosure...I assume you have already referred to within your Particulars?

[Honorsmum]

We put down the cost of the expert report in the POC, and detailed why we have had it done etc in the DQ.

[AndyOrch]

[Honorsmum]

So, mediation is booked for Thursday.

I've read the sticky post, and Patricia Pearl' s book, and got a "script" prepared for the mediator.

Can anyone make suggestions as to possible settlements we should consider?

In a nutshell, the cost of supplying and fitting the floor was £1375. In our claim, we requested this, plus court costs, interest and the cost of the independent inspection report.

The defendant has offered to replace the floor, but we have rejected that because it was his lack of expertise and knowledge that led to the problems with the floor in the first place.

Would it be reasonable to suggest he supplies a replacement floor and pays for the fitting by a fitter of our choice? Or should we expect that he will only offer to supply a floor and refund the fitting charges we paid originally?

If he offers to refund the cost of the floor, would it be reasonable of him to take of a percentage of the cost, in line with the usage of the floor he may say we have had?

Should we forget any idea of asking for half of the cost of the report?

 

Our suspicion, from what he has previously said, is that he doesn't want to have to pay anything to us, but is happy to replace the floor because he would get it at cost/free from the manufacturers. (He has claimed that the manufacturers offered to replace it - an offer that was not made to us at the time he claims the issues became apparent.)

 

In short, how much should we consider giving up?

[AndyOrch]

Mediation is not a case of having to settle for less or compromising your claim...you want the full claim and costs or a new floor plus your costs.

[Honorsmum]

Really? Wow. I understood we should expect to concede some part of our claim, in return for not having to go through the stress and expense of a court case (although, obviously, I know we don't have to agree to settle at all in mediation).

[AndyOrch]

Its more a case of the participation...and the opportunity to narrow any differences.....allowing either party to avoid further progress to trial.

[Honorsmum]

Thanks for all your help and input in this, andyorch.

Mediation happened this morning, which involved my husband and myself on one side, and the defendant and his wife on the . I think it's fair to say it was pretty fierce - the mediator was very hard-core, initially, and her position was that we had come to mediation through choice and should be prepared to concede at least part of our claim.

There was a lot of toing and froing, and the session actually over-ran the allocated time because the defendant had to make a phone call to the manufacturer in order to establish that he was in a position to make an offer he wanted to - so the final negotiation was rather rushed and not entirely satisfactory; we agreed that a new floor would be supplied, and our request was that the fitting should be paid by the defendant, at a maximum cost of £500 (since we know it will cost us more now to have it fitted properly, than it would have originally, given that there may be more prep involved and the fitter we will use isn't an add-on man, as seems to have been the case with the original fitters) - the defendant's agreement was that he knew the cost of fitting and he would only pay up to £300, and only if he received a receipt for the cost of fitting; if less than £300, that's what he'll pay, if more, he'll only pay £300.

Can't say I'm thrilled with the outcome, as t has already cost us £500 to get to this point, plus time and stress, BUT at least a settlement has been reached and we can get on with our lives without a court case hanging over our heads.

[citizenB]

It is a shame you didn't get what you have already invested in this claim, however, you have compromised in order to move forward and that has to be a plus.

 

I will amend your thread title to reflect an outcome.

[Honorsmum]

Thanks, andy.

Yes, it was ultimately somewhat disappointing, because it feels like the defendant got pretty much what he wanted and called the shots - we perhaps gave away things, in the hope of getting leverage in other areas, but then he refused to move on those areas (eg we said we would remove the original floor at our cost, as a quid pro quo for him paying the exact cost involved in having the floor properly fitted, but he agreed to only £300 fitting costs, which will probably cost more AND he doesn't have to pay a penny of our court costs or the expert report cost - a total of about £500 ).

It has been a steep learning curve, and not one I'd like to repeat.

[AndyOrch]

Well at least its resolved and you now no longer have this hanging over you...dont forget to advise the court that this have now been settled.

 

Well done.

 

Regards

 

Andy

[Honorsmum]

http://www.consumeractiongroup.co.uk/forum/showthread.php?445928-What-does-it-mean-if-the-AOS-says-the-defendant-is-only-defending-part-of-the-claim-**-RESOLVED-**

 

Original thread above.

 

The defendant agreed to pay fitting costs of up to £300, on receipt of the invoice from the fitter. We sent copies of the invoice, along with a covering letter, by Royal Mail and by hand but haven't received any response from the defendant.

 

How long should we allow before we take further action, and what should that action be?

[BankFodder]

Wasn't the period for payment agreed through the mediation service?

 

As you haven't even received a response, I think that about 10 days would be more than adequate. Phone the mediation service for advice but generally I think that you should probably make an N244 application asking for judgment along the lines agreed through the mediation - failing which, the action is to be restored and a date set for hearing - costs of the N244 application to be borne by the defendant in any event. Write to the defendant now and warn him about the action you are proposing to take if he does not respond in 10 days.

 

Phone the mediation service first - on Monday. They may have better advice.

[Honorsmum]

Thanks, Bank Fodder.

So, to clarify, should we now write again to the defendant and give him a further 10 days? Would the letter need to take the form of a LAB?

Mediation doesn't appear to have set a more specific timescale than that he would lay us on receipt of the invoice. It does mention that the timescale of the whole case is 3 months, and if the court hadn't heard from either party during this time, the case would be closed. (that's the gist of it, as I understand it).

I will ring the mediation service on Monday, as suggested.

I wondered if payment in this case was subject to the same terms as paying an invoice, e.g. 28 days, 90 days etc?

[BankFodder]

The payment period should have been raised as an issue during the mediation and agreed between you. I think that the mediator was remiss in not bringing it up.

[Honorsmum]

Thank you. I will go back and look over the mediation agreement again - I'm wondering whether she set down "on receipt of the invoice" as the payment period, ie immediate payment.

[Honorsmum]

We contacted the mediation service, who simply suggested we go down the N244 route. By complete coincidence, the floor fitter who had issued the invoice contacted us to say that he was having all sorts of hassle from the defendant, demanding a more detailed invoice and explanation of the cost etc - clearly a ploy to try to get out of paying us.

We sent him another letter, informing him we had spoken to the courts and would be issuing a N244 if we were not paid immediately. The defendant texted us, trying to claim it was the fitter delaying things by not issuing a more detailed invoice, so we simply repeated that we would be issuing N244 - a cheque arrived the next day.

 

Thanks for all your help, Bankfodder.

[AndyOrch]

So this is now resolved Honorsmum ?

[dx100uk]

Three threads merged for complete history

 

Dx