Claimant has included "without prejudice" information in witness statement

[steampowered]

I would just write to the other side requesting that privileged material is removed from the bundle. If it doesn't happen, bring the judge's attention to that at the start of the hearing - just gently tell the judge that there is clearly prejudiced material in there that the claimant has refused to remove.

 

Most likely the judge will just ignore the privileged information. The judge will know full well he can't take it into account when making his decision. It is all totally irrelevant anyway - as previously advised, it doesn't matter who is reasonable or whatever. The courts are not ruling on that because there is no law against being unreasonable. They only rule on whether or not there is liability.

 

 

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')?

Just draw his attention to the report in the hearing. Draw his attention to the particular paragraphs which support what you are saying.

[Good Question]

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

[Good Question]

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

[Guest]

re #27

could check with the court whether they have received any defence you mention

have a look at civil procedure rule part 6 and associated Practice Direction 6A re service

steampowered will no doubt clarify for you on that just now.

[Good Question]

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

[AndyOrch]

Many thanks for your update Suse ...It nice to see a conclusion to threads...even if it was not quite what you had envisaged or hoped for.

 

Well done for holding your own and taking them on.

 

Regards

 

Andy