Small Claims – Evidence vs Expert Witness Reports I am currently in dispute with a builder over a patio

[Ganymede]

I think the Defendant has a point about your previous report to be fair.

 

The rest of the documents seem reasonable enough though.

[Kalozo]

It was interesting that the Defendant waited until I had posted the evidence bundle before he objected. The Defendant didn't ask for this to be removed during the 6 weeks we spent agreeing the instructions which clearly stated the evidence bundle would be shared.

 

He was copied on all the email exchanges with the expert witness where I asked for the postal address to send the bundle to - again no concerns were raised.

 

He has a lawyer friend advising him as a McKenzie Friend so he can't claim ignorance - I get 16 page letters of Latin, precedents and procedure each time we correspond.

 

The expert has confirmed that he has not looked at and will not look at the report.

 

However, the Defendant has now rejected the expert witness. It is another calculated attempt to continue to frustrate the process having done so for 3 months already.

[Kalozo]

Hi,

 

I have an ongoing small claims where the Defendant is frustrating the court orders.

 

I wrote to the Judge who has made a ruling to appoint a particular expert witness.

 

The Defendant is now stating that he wants copies of the correspondence I sent to the Judge.

 

Do I need to share this correspondence with the Defendant?

 

Many thanks in advance...

[dx100uk]

Threads merged again 5 th time

Please keep to one thread for history of advice already given

[BazzaS]

Ideally you should have copied it to the Defendant at the time.

If you don’t provide it (& you then win!) expect them to claim a grounds of appeal that the judge may have been unfairly influenced by them, in that they may have been given information that the defendant was not party to, and thus couldn’t challenge / refute.

[Kalozo]

Interesting - I told the Defendant I was writing to the Judge and he acknowledged stating "Agreed as you clearly cannot be trusted to act appropriately". He didn't ask for a copy

 

Now that the Judge has ruled, this is just another blatant attempt by his lawyer to frustrate the process.... Happy to share the correspondence with the Defendant as it is all completely true and factual.

 

I guess let the Defendant get any objections out of the way now before we get to the hearing...

[Kalozo]

We have now selected a second expert witness after the first witness pulled out after the Defendant frustrated the process for 5 months.

 

I have previously had an independent report completed on the issues with the patio. The Defendant has now explicity asked that this be removed from my evidence bundle and not to be disclosed to the expert. I am comfortable with this now it has been explicitly asked for.

 

In addition, the Defendant has also asked:

 

1) All references to the report be removed - this would require me redacting my Witness Statement and Letter Before Action. Is the Defendant entitled to ask for this?

2) The evidence bundle to be renumbered so the expert would not know they had been removed. My Witness Statement references page numbers. This would mean I would need to rewrite my Witness Statement. Is the Defendant entitled to ask for this?

 

Many thanks...

[AndyOrch]

https://www.justice.gov.uk/courts/procedure-rules/civil/rules/part35

 

See CPR 35.4

[Kalozo]

Thanks Andyorch - I had previously read 35.4. It doesn't seem to address the issue of full disclosure to the expert and what the Defendant can ask me to remove from my bundle?

[AndyOrch]

I understand that Expert witness must be agreed between all parties...was it agreed to use this one ?

[Kalozo]

Yes it was agreed to use this expert witness.

 

The issue is the Defendant is requesting that some of the content of my evidence be removed and not disclosed to the expert.

[AndyOrch]

What does the court directions state within your Notice of Allocation...who has responsibility to prepare the bundle...assuming the court has requested a bundle and not just standard disclosure.

 

I assume this is Small Claims Track ?

[Kalozo]

Sorry for any confusion - here is a quick recap:

 

1) In March there was a preliminary Small Claims hearing and we were ordered to appoint a joint expert

2) We appointed a joint expert and agreed joint instructions

3) The joint instructions stated stated the expert would have full disclosure and referenced the evidence bundle I supplied for the preliminary hearing

4) I sent the evidence bundle to the expert witness

5) The Defendant then kicked up a big fuss stating that some of the content should have been removed - a previous report on the patio

6) The expert got fed up with the Defendant and pulled out

7) We have agreed a new expert witness

8) The Defandant is now asking that all references to the previous report be removed from my evidence bundle that is shared with the expert witness, including:

 

A) All references to the report be removed - this would require me redacting my Witness Statement and letter before actionicon. Is the Defendant entitled to ask for this?

B) The evidence bundle to be renumbered so the expert would not know they had been removed. My Witness Statement references page numbers. This would mean I would need to rewrite my Witness Statement. Is the Defendant entitled to ask for this?

[AndyOrch]

Well you have to agree disclosure and evidence and if the previous expert is no longer acting then that evidence is now irrelevant and as such cant be relied upon...

 

Only the new current witness....so yes the bundle will have to be amended.