Bifolds fitted at incorrect floor level *** Judgment plus Costs***

[conflyer]

I have two questions below,

 

1. I have just received a letter from the court with instructions re: expert report permission request,
"If the claimant wishes to rely on expert evidence, he must make formal application on form N244 supported by evidence, to be filed and served by XX April"

 

I don't fully understand the response or process here. It was my understanding N244 is for specific orders, is this is standard procedure?

Does it mean the report needs to be submitted with full evidence and a witness statement, for potentially a separate hearing to be arranged before the main hearing?

And what order/information should be included  in the form in this case? (more fees...)

 

2. CPR Part 18 for further information

Can I make a request Part 18 for further information with regards to "missing" documents disclosed as attached under the other party's defence and counterclaim?I have also read this request is used for asking questions for clarification to another party.

[conflyer]

On 19/03/2019 at 22:25, conflyer said:

I have two questions below,

 

1. I have just received a letter from the court with instructions re: expert report permission request,
"If the claimant wishes to rely on expert evidence, he must make formal application on form N244 supported by evidence, to be filed and served by XX April"

 

I would appreciate some help with this. Since time is fairly limited by the court letter and I am not certain of the volume to be submitted.

 

I am not entirely sure if this is standard procedure for small claims but appears the way court wants the request to be made. What I gather,

• I need to  complete N244 and attach draft order and witness statement
• does this require a hearing?
• draft order pursuant to CPR 35.4? This is not exactly an order, what else should be included?
• witness statement - outline the same reasons as in my previous letter for the scope and requirement of expert report
• evidence - this is the most ambiguous part, is the report to be submitted with evidence or ONLY evidence to support the reasons why the report is necessary?
• fees £255??

 

Many thanks

Edited March 22, 2019 by conflyer

[AndyOrch]

https://www.judiciary.uk/wp-content/uploads/2014/08/experts-guidance-cjc-aug-2014-amended-dec-8.pdf

 

https://www.anthonygold.co.uk/latest/blog/amendment-to-cpr-35-4-costs-budgeting-by-the-back-door/

[conflyer]

Thank you for the links, both very useful and I have come across the PDF in the past which I keep as a general expert guidance.

 

I believe I got the gist of the points in the link and overall CRP 35 directions, within the context of a small  case as mine or perhaps I missed something you are trying to point out.

But I am also looking to understand the practical side i.e how to put through an application for permission on N244 and relevant material. 

 

Since I am only looking for permission to adduce the existing report it makes it somewhat of a chicken and egg situation. Of course the case is not exclusively relying on the report but it makes it stronger and I would like to include it.

 

Would it be possible to break this down a little as I may be assuming more work than necessary?

[AndyOrch]

• I need to  complete N244 and attach draft order and witness statement 
• does this require a hearing? No
• draft order pursuant to CPR 35.4? This is not exactly an order, what else should be included? Nothing simply state pursuant to CPR 35.4 (you do know how to draft an order? )
• witness statement - outline the same reasons as in my previous letter for the scope and requirement of expert report Correct
• evidence - this is the most ambiguous part, is the report to be submitted with evidence or ONLY evidence to support the reasons why the report is necessary? The Experts statement
• fees £255?? No..... £100 without hearing

Andy

[conflyer]

23 hours ago, Andyorch said:

• I need to  complete N244 and attach draft order and witness statement 
• draft order pursuant to CPR 35.4? This is not exactly an order, what else should be included? Nothing simply state pursuant to CPR 35.4 (you do know how to draft an order? )
• evidence - this is the most ambiguous part, is the report to be submitted with evidence or ONLY evidence to support the reasons why the report is necessary? The Experts statement
• fees £255?? No..... £100 without hearing

Andy

 

Thank you, this is extremely helpful.

 

I am certainly not in position to say I know how to draft an order, only a guess,

"The applicant seeks permission to adduce expert report into evidence pursuant to CPR 35.4 "

Is it appropriate to add this line on N224 'Section 3' without a separate Draft Order page or should  it be explicitly attached?

 

Some considerations about the process,

 

The report lists an index referencing the material it was relied upon and communication to the expert, it also contains all CPR 35 pursuant declarations by the expert.  It does contain a summary of the case albeit not adequate in my view but most importantly contains clear sections of measurements, contract and conclusions.

 

The question, does it have to be accompanied by all the material referenced for this application? Because that would amount to the entire case material.

 

Secondly by submitting the N244 application does it have to be "served" to relevant parties i.e defendant in this case?

[AndyOrch]

Yes thats all it requires...you dont necessarily have to attach a draft order....and attach a short statement as to why the experts evidence is fundamental to the claim.

 

The court have requested the application so no you do not need to serve a copy on the defendant..as its purley to request permission to use the report.

 

Andy

[conflyer]

Thank you.

 

I need to add costs as the judge is very likely to take that into consideration, but doing so in a meaningful way.

The report cost is based on a rate at the time of commission, the rate changed a few months later and new instructions will be more expensive.

 

Is it sensible to add the original quotations and the basis of mitigation, as well as the new rate in the unlikely event they are instructed again?

 

And for the 2nd part of #126 above, I have read some contradicting information on Part 18 request for documents. Some suggest that Part 18 can be used but it is my understanding Part 18 does not apply for SCT under CPR27.2 and only the court can make further info requests?

[AndyOrch]

They didn't ask for costs...costs are determined at the end of the trial.

 

CPR 18 can be used as the claim is trackless until advised by the court which track it will be. IT will cost you £100 to force disclosure if they ignore initial request....as the procedure involves an N244 application.

 

Andy

[conflyer]

 

Quote

 

CPR 18 can be used as the claim is trackless until advised by the court which track it will be. IT will cost you £100 to force disclosure if they ignore initial request....as the procedure involves an N244 application.

 

Andy

 

Thanks again Andy.

 

Unfortunately claim was already been allocated SCT (about a  month ago - a few posts back) which is why I got confused with some sources suggesting Part 18 applies. So how can I request the documents disclosed in defence as "attached" before a hearing disclosure?

[AndyOrch]

You dont need to request the documents referred to in the defendant defence....you are the claimant.The defendant will have to disclose any documents referred to either within a defence or witness statement in support of its defence.

 

If they dont disclose them they cant rely on them as evidence.....and as such when you come to prepare your witness statement you point this out to the court and state why the defence is ill founded....and cant be backed up with documents that the defendant is unable or unwilling to disclose.

 

Start thinking outside the box

 

Andy

[conflyer]

On 28/03/2019 at 10:52, Andyorch said:

Start thinking outside the box

 

I was hoping that I was

 

CPR18.3 would perhaps engage the court's overriding objective to limit case costs and at least request the defendant disclose the (non-existent) evidence for the bogus counterclaim, potentially having it struck out.

 

But the situation is at the moment extremely disappointing. Not only I have no hearing date but also been chasing up the status of the case after 3+ months. They don't answer phone calls anymore and emails go without reply for over 15 working days. Great service and then I received a basic letter stating that a hearing is "set" for (cough) the application alone on Jan 2020!!

 

I wonder if anyone actually looked at the application and if the case hearing will take place in 2030, when the company has probably ceased to exist

Edited July 11, 2019 by conflyer

[AndyOrch]

There is no CPR 18.3 conflyer...do you mean CPR 1 overriding objective ?

 

The court wont compel them to disclose anything....anything that is not disclosed cant be used a s evidence anyway.

 

Sound like a very inefficient court...which county court is this?

 

Andy

[conflyer]

1 hour ago, Andyorch said:

There is no CPR 18.3 conflyer...do you mean CPR 1 overriding objective ?

 

Apologies, I meant to type Part 18 alternative to CPR 27.2(3). This is an application for an order to the defendant to disclose documents central to their defence/counterclaim statements early in the process.

The point being that defence is rubbish and court, following CPR 1 to resolve the case promptly and limit costs, would probably consider this - if it was functioning. But if a hearing for a measurements report is scheduled for 2020....god help.

 

I won't mention the name of the court but the service has been extremely slow and  poor. I am not sure whether it's worth filing a formal complaint or moving the case to another court if possible?

[AndyOrch]

CPR 18 is not applicable to SCT

[conflyer]

8 hours ago, Andyorch said:

CPR 18 is not applicable to SCT

 

Yes, no disagreeing in that which is why it subjects to CPR27.2(f), so it would be up to the court to make the order but worth a shot as the defence is groundless and it would save hearing time.

 

On the second matter, is it worth considering a transfer to another court or formal complaint?

[AndyOrch]

What is this disclosure your intent on discovering and why would it make the defence/CC groundless?

 

https://www.justice.gov.uk/courts/procedure-rules/civil/rules/part18/pd_part18

 

I doubt you could transfer it if its your local county court for yourself and defendant.

[conflyer]

10 hours ago, Andyorch said:

What is this disclosure your intent on discovering and why would it make the defence/CC groundless?

 

https://www.justice.gov.uk/courts/procedure-rules/civil/rules/part18/pd_part18

 

I doubt you could transfer it if its your local county court for yourself and defendant.

 

Ok , the groundless bit was on the CC.

 

The point is for  the court to consider reviewing whether Defence/CC has any merit and order to review the technically already disclosed documents. The basis is that CC for  'loss of business time' has no legal grounds. Similarly the hand written defence goes along the lines of "we did nothing wrong and everything is done right ". These statements do not form substantiated defence nor reply to any Particulars of claim.

 

Unless the "disclosed" documents demonstrate compelling evidence to support such poor statements, it would benefit everyone to review that now rather than later.

 

Of course this would have some value if it didn't take 4 months to have a reply from the court...

 

[AndyOrch]

Any claim.....defence.....counterclaim must be supported by documented evidence to support its pleadings.....if they cant or wont disclose documents that prove  'loss of business time'  then they cant quantify it..the court will dismiss it.

 

Disclosure comes after allocation 14 days before the hearing..the court wont be reviewing anything until the day of trial.

[conflyer]

Regarding the hearing for the expert report application next Jan, the  court letter does not elaborate on any process apart from the estimated 45 minute time allocation.

 

I anticipate instructions may be forthcoming but with the present history of delays, should I  be writing to ask for further information?

For example, the "case" hearing is yet to be set. It is also not clear if the defendant is to attend this application hearing (which the court somehow decided is necessary).

 

In any case, I treat this as a proper hearing where all evidence backing the report would have to be presented.

[AndyOrch]

You should receive if not already a Notice of Allocation N157 which gives the date of trial and the courts directions on how to prepare for the hearing.

Is this hearing a separate hearing to discuss the expert witness/report ?

[conflyer]

16 hours ago, Andyorch said:

Is this hearing a separate hearing to discuss the expert witness/report ?

 

Yes, the above hearing question marks are regarding the expert report application, letter was marked "Notice of Hearing of Application"

 

I received a Notice of Allocation to SCT for the entire case back in Jan but the court had not set a date, which is yet to be set. It may be time to send a letter to themas all previous emails received no response.

[AndyOrch]

The court has nothing further to advise.....its a standard application hearing and the only preparation you need is to support your application with all the necessary documents/evidence as to why his report and evidence should be allowed.

 

Once that is concluded you will be then given a trial date.

[conflyer]

On 29/08/2019 at 10:11, Andyorch said:

The court has nothing further to advise.....its a standard application hearing and the only preparation you need is to support your application with all the necessary documents/evidence as to why his report and evidence should be allowed.

 

Once that is concluded you will be then given a trial date.

 

Thank you.

 

Is the application hearing just for the claimant or the defendant is also expected to be present?

In this case does any evidence for this hearing need to be sent to court in advance or just brought in on the hearing day?

 

To my understanding the evidence necessary is mainly to demonstrate why the report will help the court conclude on the case.. Not necessarily the bulk of the report evidence. Correct me if wrong.

 

From your post I note that the application hearing is reason for "case" hearing date to be delayed? I didn't understand this part well,  shouldn't a case hearing date be set anyway?

 

 

 

[AndyOrch]

What does it advise in the Notice of Hearing ?   who is to attend what preparation is required ?