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Claimant has included "without prejudice" information in witness statement


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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.

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You can object to the without prejudice material but if strategically it is better to have everything admitted, then make an application to the judge asking that as the claimant has selectively included WP correspondence, you now want leave to disclose the whole of the exchange even though it is WP on the grounds that the claimant's disclosure is deliberately prejudicial. Use a form N244. Do not ask the other party for consent on this as it will be better for you to bring the claimant's cheating to the notice of the judge

 

As for the statements, if you believe them to be copied or created by the same person, then best to let it go until the trial - and then raise the matter when it is too late for the claimant to do anything about it. In other words, keep this up your sleeve for the mo.

 

You q.3 - it is up to you to point this out to the judge at trial when you produce evidence or arguments which disparage the statements.

 

Once again keep this up your sleeve until trial

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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?

 

 

 

I don't really understand why you didn't come here first. You've been with us since 2012. We would have saved you a lot of time.

 

Congrats on starting a small claim. Most people fight shy of it and put up with a lot of poor treatment as a result.

 

Maybe when it is over you can come back and tell people about your litigation experience - and hopefully encourage them to be more confident about it.

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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

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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

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There is no rule that exchange of documents occurs on the same day. The only rule is that documents are disclosed before a certain deadline.

 

It sounds to me as if your opponent is now breaching the deadline and disclosing the documents late. In practice this will be allowed and at least you have some time to deal with it. Very often when you are dealing with debt collection agencies etc., they end up giving you documents about five minutes before the hearing. It is very unfair but the judge almost always allows the documents in.

 

The documents which has been disclosed so far can't be undisclosed so you include those in your calculations of what to do. If your opponent now produces further documents which contradict the earlier documents then you can refer to this to the judge and point out that your opponent seems to be tailoring his evidence to suit the circumstances.

 

Whatever you do, don't start overloading the judge with information. Keep it as short as possible. Keep your statements as short as possible. Keep your questioning as brief as possible. Make a point and then move on. Don't ask a question in cross-examination if you don't know what the answer is in advance. The cross examination is not for you to find out new information, it is used to bring the information to the attention of the judge. If you are cross-examining in order to find out the answers to questions that you have, then you are going on very dangerous ground and it shows that you are not fully ready. If you don't know the answer – then don't ask the question. This is a cardinal rule.

 

This is a small claim, the judge will want to get it over with fairly quickly and he will want to see the case moving along. You could have an excellent case but end up losing simply because you are taking too long to establish the right of the matter.

 

On the question of costs – yes if the other side is not litigated reasonably then there is a discretion to award costs.

 

If the judge finds in your favour, then you can ask the judge very gently if you could address him on the subject of costs. Then point out how you have bent over backwards to avoid this litigation and that how the litigation has been driven by the attitude of the other side who by their unreasonable behaviour and refusal to follow protocols or to hold dialogue have forced the matter into court to the inconvenience of both yourself and of the court.

 

If you're going to do this, then you ought to have a simple cost schedule already worked out. Make sure it is modest. Make sure it is fully detailed in terms of the number of hours you have spent, your actual expenses in phone calls, travel, postage etc. etc. Have it all very clearly express so the judge can look at it and within less than a minute understand what he's being asked to award and whether or not it is reasonable. If it gets more complicated than this and the judge will refuse to hear you. The judge may refuse to hear you on the question of costs anyway

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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

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I would imagine that if their bundle is unreferenced and chaoric the judge will be looking at them with more disdain expecially as they are a commercial entity and you are a single litigant in person. Enjoy the chaos I would say

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The SabreSheep, All information is offered on good faith and based on mine and others experiences. I am not a qualified legal professional and you should always seek legal advice if you are unsure of your position.

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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

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The judge won't want to make an adjournment on the day because it is a waste of court time. However the judge can't make a decision if he doesn't have the key documents in front of him. I doubt an adjournment would be made just because the documents are bundled up unless there are so many documents that things become impossible (very unlikely in a small claim).

 

 

If the documents are that badly organised, I would just prepare your own bundle containing all relevant documents with an index listing the documents in a logical order, and bring that to the hearing (one copy for you, one for judge, one for other side).

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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

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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

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http://www.bailii.org/ew/cases/EWCA/Civ/2013/1537.html

 

Mitchell MP v News Group Newspapers Ltd [2013] EWCA Civ 1537 (27 November 2013)

 

As the Claimant has not complied with the court order, you should refer the judge to the above authority which affirms that non-compliance with a rule, practice direction or court order is no longer tolerated and request that Claimants’ case is struck out.

 

In the above Mitchell MP case, Mitchell was professionally represented and his solicitors’ failure to comply with a CPR rule caused him the loss of over £500k which he had incurred in legal costs!

 

Sadie

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If the Claimant files & serves a 2nd WS, then you should file & serve your 2nd WS in response to the same. If Claimants' 2nd WS allowed in evidence then your WS in response to that is also allowed.

 

Print off that Mitchell MP Court of Appeal authority x 3 and bring to hearing.

 

Sadie

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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

In relation to the Claimant filing & serving a 2nd & late WS, you are entitled to object to this type of tactic being used by him so late in the day and especially if the court order directed that WSs be exchanged simultaneously and request that this new late WS be disallowed as he must obtain permission from the court (see last para below).

 

See commentary below on this point of law reproduced from:-

 

The White book vol.1

 

(in particular to your case posted here see para.2 & last para)

 

Amplification of evidence (r.32.5(3) and (4))

32.5.2 Former RSC Ord.38 r.2A(7) and CCR Ord.20 r.12A(7) restricted the evidence which could be adduced from a party other than that disclosed in their witness statement. Paragraphs (3) and (4) adopt and implement generally the Chancery approach to what was called "supplementary examination in chief". For explanation, see Interim Report, pp.177–178. Obvious circumstances in which witnesses may wish to amplify their witness statement and give evidence as to new matters are where events occur, or matters are discovered, after their statements were served, or where responses to matters dealt with in witness statements of witnesses of other parties are required.

 

If amplification of witness statements at trial is too strictly limited there is a risk that statements will become over-elaborate and that costs of the preparation will be accordingly increased. If, on the other hand, amplification is too readily allowed there is a risk that statements will fail to deal with important issues. Where a party's witness is allowed to amplify, prejudice to the opponent should not be regarded routinely as remediable simply by an order for costs. A late, unjustified change of tack may be regarded as an injustice to the opponent which, in the light of the overriding objective (r.1.1) should not be permitted (Final Report, p.129).

 

See also Mander v Evans [2001] 1 W.L.R. 2378 (Ferris J.) (judge not willing to allow party to elaborate in evidence-in-chief on witness statement to remedy deficiencies, but agreeing to try question of law involved as a preliminary issue, thereby not putting party to trouble and expense of preparing supplemental witness statement).

 

In the Admiralty and Commercial Courts Guide it is said that a "supplemental witness statement" should normally be served where the witness proposes materially to add to, alter, correct or retract from what is in their original witness statement (ibid. Section H, para.H1.6, see Vol.2, para.2A–103). Permission will be required for the service of a supplemental witness statement. The guidance formerly given in the Chancery Guide as to supplemental witness statements has been deleted.

In some particular procedural contexts, quite prescriptive requirements concerning the filing and exchange of written evidence are to be found, together with provisions expressly permitting the filing of a further witness statement (or affidavit) supplementing previous statements; e.g. Practice Direction 52D (Statutory appeals and appeals subject to special provision) para.26.1(9) (Applications for permission to appeal under the Town and Country Planning Act 1990 s.289 etc).

 

 

Sadie

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I think we have to accept that the claimant is not going to be fully compliant with the process. You need to get clear in your mind what you want to happen next.

 

I think you have to decide between pushing ahead with the hearing, or trying to get the claimant to act properly which will likely result in an adjournment. You could for example seek an 'unless order' requiring him to produce a proper bundle else the claim is struck out, but I'm not sure there is realistically enough time to resolve this before the hearing.

 

One large lever arch file does not sound like a huge amount to be honest. Complex cases can have very many lever arch lanes. Maybe the file is disorganised but I imagine a particular document that a party wants to refer to can still be found. To be perfectly honest I'd be tempted to just push ahead with the hearing.

 

If the papers are disorganised I don't think it will distract the judge. Quite the opposite in fact - he will be more inclined to focus on the documents specifically brought to his attention by the parties and I imagine will be more inclined to focus on the joint expert report.

 

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?

He can try to make any argument he wants, whether the judge will accept that argument is another matter. I wouldn't get too distracted by this kind of stuff which it seems to me is not core to the case.

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im thinking the OP may want to investigate a cost hearing once this is over

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The SabreSheep, All information is offered on good faith and based on mine and others experiences. I am not a qualified legal professional and you should always seek legal advice if you are unsure of your position.

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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.

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If you arrive at the hearing without having seen a copy of the witness statement, then ask the judge to disallow it.

 

I suspect it might not matter in the grand scheme of things. Inexperienced litigants sometimes like to play games of 'tit for tat' and feel the need to respond to everything. This is ultimately pointless - the crux of the case is presumably whether or not the windows were properly fitted, so mud slinging and endless attempts by the other side to have an answer will ultimately achieve nothing.

 

It is a good idea to take the communications about settlement etc. This is privileged for the purposes of the main hearing, but is admissible on the issue of costs.

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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

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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

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It sounds like the other side might ask for an adjournment. Or, worse, they might just not turn up at court - if this happens and if the judge is minded to grant an adjournment you might want to ask for costs for the time spent travelling to/from court at the litigant in person rate.

 

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?

A judge would see it as not relevant. English law takes the clear view that people should be encouraged to try to settle cases outside of court and that statements made during settlement discussions should not be held against them. This is why the concept of 'without prejudice' exists. Ultimately, the judge's job is decide whether or not the defendant is legally liable to the claimant, not how reasonable each side has been.

 

I don't think there is anything wrong with the claimants offering to withdraw their claim and settle the counterclaim. A judge would not see this as being relevant to the real issues in this case, which are (1) whether you owe the claimants money and (2) whether the claimants are liable for repairing your windows.

 

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?

The claimant has only waived privilege over the specific documents referred to in the witness statement and not everything. This information will only become relevant/admissible if you intend to seek a costs order after a decision has been made on liability.

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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

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