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


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Notice of Hearing of Application

 

Claim No.

Date

1st Claimant Ref

1st Defendant Ref

 

The hearing of the Claimant's application dated XX April 2019 will taken place at XX:YY AM on XX January 2020, with a time estimate of 45 minutes, at the XXXXXX County Court  <Address>.

 

Cases are listed in accordance with local hearing arrangement determined by the Judiciary and implemented by court staff.....blah. Please contact court for further information on the listing arrangements that may apply to your hearing.

 

 

There is no information on preparations or parties unfortunately. Perhaps the same letter was sent to the defence.

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Please contact court for further information  the listing arrangements that may apply to your hearing.

 

Well you must attend and also take all your paperwork in support

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  • 4 weeks later...

 I received a response within a very reasonable time, which considering previous correspondence with the court came back quite promptly,

 

- Both parties are informed of the hearing of the application and are invited to attend before the District Judge

 

- Any evidence should be filed with the court and on the Defendant no later than 14 days before the hearing

 

(the case hearing is not yet set, they are now asking for availability dates in the next 9 months!)

 

Suffice to say that the Application Hearing letter is poorly worded and does not outline any of the above. I am sceptical about what evidence needs to be filed on the Defendant for the expert report.

i.e I should not have to disclose all the case docs  used to create the content of the report, rather it should be evidence supporting "why" the report is critical to be admitted?

 

Also, the  report itself was served to the Def via signed post 1 year ago. Does evidence/documents need to be re-sent if already served on the Defendant in the past?

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No...its simply to allow and check the validity of your expert and his report and that both parties are happy for him to give evidence.

 

https://www.justice.gov.uk/courts/procedure-rules/civil/standard-directions/general/experts

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Thanks Andy,

 

If I understand correctly, there is  no need to submit further evidence to court or the Defendants for this application hearing, but would be good to bring communications that demonstrate my efforts and the  issues.

 

Also, to date I have done all the legwork with communications and submitting evidence. This was never reciprocated from the other side and in this case I would like to refrain from spending time and costs binding/posting material that is not necessary.

 

preparing in advance,

 

  • in what way can the other party dispute/reject the report?
  • can they bring a solicitor or other expert in the application hearing?
  • the court requested  formal application for the report, subsequently decided to hold a hearing. What would be the case on costs for the hearing in this case?
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As you are claimant the only costs are your application fee and the experts fee......

 

With regards to the above points I really cant say..you are in control of all the facts and evidence.

Yes they can bring counsel if represented...but there shouldn't be any other experts if you have both agreed on the same report/evidence.? 

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7 hours ago, Andyorch said:

Yes they can bring counsel if represented...but there shouldn't be any other experts if you have both agreed on the same report/evidence.? 

 

I appreciate the case has been going for a while due to court delays and  would not expect anyone to remember details.

 

This is SCT and we are in court because the Defendant disputes installation error of factual measurements against a signed contract.

 

We had conciliation for months last year, they asked I cover all making good damages in order to agree to a goodwill fix, and, finally rejected my very last offer for compensation.

After contacting 6 glazing specialists, nobody accepted to document the error and finally contacted 3 surveyors for quotes. I  invited the Defendants by Final Notice to agree to an independent survey - with quoted figures of course. All of this was rejected in writing.

 

So the report was instructed after grace period expired and it was served with the particulars to the Defendants. 

 

I understood costs would be discussed at the end of trial? Also I understand that report cost may not be recoverable, but does that affect admission anyway?

https://www.consumeractiongroup.co.uk/topic/409862-bifolds-fitted-at-incorrect-floor-level/?do=findComment&comment=4981648

 

All in all, I am just trying to put into context what I should be expecting at this hearing i.e discuss with the judge about key issues, why report can offer resolution etc

 

If the defendants want to dispute the report wouldn't they have to submit evidence prior to the hearing or their own "report"? Judging from previous experience with these people, they may not even turn up...

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I understood costs would be discussed at the end of trial? Correct Also I understand that report cost may not be recoverable,Correct but does that affect admission anyway?No

 

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  • 3 weeks later...

Thanks again!

 

With regards to evidence raised above, since the application is now scheduled for a hearing, what if I wanted to submit further evidence to support my case for the hearing.

 

How would that affect the already submitted Witness Statement with the application? (It was not originally meant for a hearing)

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The hearing is to decide whether the expert evidence/witness be allowed......its not a trial or to decide the outcome of the claim.DId the Notice of Hearing ask you support anything further ?...sorry if its already been asked but I cant recall and this seems to be trundelling on forever.

 

Andy

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11 hours ago, Andyorch said:

The hearing is to decide whether the expert evidence/witness be allowed......its not a trial or to decide the outcome of the claim.DId the Notice of Hearing ask you support anything further ?...sorry if its already been asked but I cant recall and this seems to be trundling on forever.

 

Andy

 

Sorry if not clear above, the questions are still about the Application Hearing.

 

Because this is to be decided by a hearing now, I want to add supplementary information with my original Witness Statement submitted with the application to the court. I want to add the other party's response/refusal to cooperate to the independent survey.

 

Can I do this and add an extra paragraph to my WS to submit before-hearing ? (court's asked for evidence to be submitted 14 days before the hearing in my letter to them for clarification #153)

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Yes you can ...head it " Supplemental Statement " and intro that this evidence is submitted in addition to my statement dated xxxx xxxx 2019...then state your evidence.

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  • 2 weeks later...
On 21/10/2019 at 23:42, Andyorch said:

Yes you can ...head it " Supplemental Statement " and intro that this evidence is submitted in addition to my statement dated xxxx xxxx 2019...then state your evidence.

 

Thank you.

 

Would this require to seek any permission from the other party or the court?

 

The application was originally served to court "without hearing". So it has not been served to the other party yet, but will be for the hearing requirement.

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It is normal practice to inform the other party that you intend to file a further statement.

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8 hours ago, Andyorch said:

It is normal practice to inform the other party that you intend to file a further statement.

 

Is this just to "inform" and not seek "permission" then?

 

In practical terms, I will have to send the application/Witness Statement to the other party anyway (no later than 14 days to hearing). Do I then, also need to "inform" of the further statement prior to that submission?

 

 

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We could do with some help from you.

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Thank you,

 

This?

 

(3) A witness giving oral evidence at trial may with the permission of the court –

(a) amplify his witness statement; and

(b) give evidence in relation to new matters which have arisen since the witness statement was served on the other parties.

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The report has been served to the other party with the PoC. I did not expect the court to take so long, would I need to serve it again for the Application Hearing or not?

 

Also, Part 35.6, questions were not raised by the other party

 

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

35.6

(1) A party may put written questions about an expert's report (which must be proportionate) to –

(a) an expert instructed by another party; or

(b) a single joint expert appointed under rule 35.7.

(2) Written questions under paragraph (1) –

(a) may be put once only;

(b) must be put within 28 days of service of the expert’s report;

 

What is considered the "service" date?

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  • 1 month later...

Hi,

 

We are just over a week away from the Application Hearing and I would very much appreciate your help.

 

I filed and served Witness Statements to court and defendant respectively on the same date, "deemed" served 2 days before the 14 day period in the court's letter.

 

It appears that they were closed until 2nd January and then immediately posted back an entire pack of documents on the same day,  3 days late into the 14 day period. Special delivery next day, posted 2nd Jan, hearing is on 14th Jan 2020.

 

The pack seems to contain the entire case, i.e all sorts of documents but there are no Witness Statements or even a letter introducing the material. Just an ordered bundle. It either appears they do not understand the purpose of the hearing or they plan to bring up the entire case at the application hearing?

  • Court docs - e.g claim and their defence/CC
  • Numbered Defence statements apparently addressing the PoC?
  • Letters addressing the court manager
  • All communications
  • Counter Claim, just A4 paper listing day rates in "£" for sales staff, e.g director day rate, site visit time, court attendance/day, emails and "loss of sales time" figure of £10k
  • Drawings of measurements they never shared before** (see 4. below)

I need to read through the material a bit more but at first glance there are some serious issues,

 

1. There is a letter dated Nov 2018 that appears as a numbered Defence statement (addressed to the court manager). The is also a Counterclaim, just a list of day rate figures per staff,  not numbered or dated or signed. The Northampton County court did not serve these documents to me. I rang them (Nov 2018) upon receiving the Counterclaim and they were adamant that no further documents were filed by the Defendants. Hence my Counterclaim defence at the time,

https://www.consumeractiongroup.co.uk/topic/409862-bifolds-fitted-at-incorrect-floor-level/?do=findComment&comment=4951987

 

I have to raise serious concerns if the County Court for the hearing has these documents but they were never served to me. Also I wrote to the Defendant last year, in April 2019, asking for for these documents clearly  (confirmed recorded delivery) and they ignored my letter. So it is questionable that these documents are now presented as filed.

 

2. In their letter to court they use the words "borderline blackmail" about my email communication to settle, instead of accepting their proposal. i.e to agree to damage my new built extension to refit the system as "goodwill" and myself cover all the remedial damages to the building. They also say my "intentions are not genuine and just looking to make money from companies". If you could read these arguments you would be shocked at what they are attempting to suggest. I am not sure what to make of all this, the emails are also included so I am presently struggling to understand where the defendants believe they are going with this.

 

3. Their material is served late to my understanding? It would require hours to read in court or even present without Witness Statements, so how can they bring this in?

 

4. **To my surprise the hand drawings of their surveyor contain a figure of dimension that I brought up many many times in our communications and they never accepted i.e justifying my case. Again, their wording in the letter is twisting, it never addresses the heights agreed for the bifold system which reinforces my view that the expert report is absolutely necessary.

 

Last there is no single mention of the expert report that I served them.

 

Would I need to prepare a supplemental Witness Statement to cover for all this now? I could but time is very limited and I can't see how they can bring up all the case at the hearing.

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The more I look into the documentation the more dependencies I am finding.

 

The Defence is just numbered but ignores the PoC statements, they have left some emails out in communications (intentionally it appears) and they are presenting a completely different story and order to the facts of how matters progressed. It is rather appalling...

 

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I would make a note of all the discrepancies and most importantly the lack of Witness Statement and put them down as bullet points within a Skeleton Argument Draft. As already advised you could draft a SWS which should be served not less than 3 days pre hearing....so either Skeleton or SWS.

 

Andy

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Thank you Andy (and Happy New Year!)

 

Hearing is 14 Jan Tuesday, to comply filing/serving 3 days pre hearing the latest to put into post is on Wed 8 Jan by Special Next Day delivery to be deemed filed/served on 9 Jan (please correct if wrong on time - I deem 3 business days excluding the hearing date).

 

As material is voluminous and time is limited, I want to narrow down what is reasonable to address or leave out, what evidence to include...

  • Last Dec 2019 I rang the Court and asked permission for a SWS. This was about my earlier posts to add the LBA and Def reply disagreeing to an independent survey or evidence. The operator probably asked a judge and then came back saying they will accept as long as it is before 14 days from hearing and served to Defendants at the same time. So this SWS was served. Can I now add a further SWS or draft skeleton to address the new information about the Def served material?
  • If yes, what points would be reasonable to address in the SWS? Does it amount to early disclosure on my part  a botched up WS pre Case Hearing?
  • It is unclear why docs "enclosed" in Def & CC were never served by Northampton, they said to me these were never filed by the Def. So it transpires the local Court should not have them either. If that is the case really, then the numbered Defence should not be accepted. If not, how can I find out or prove they were not filed?
  • Do I have to address the Defence points and CC for this hearing now? Note I sent a letter to the Def last April 2019 asking for these docs which was ignored #169 no.1
  • Is it good practice to take the entire case docs with me (3 copies of everything), evidence, photos etc along at the Hearing? Could the judge decide to open up the entire case at the Application Hearing?
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Can I present my costs at the end of the Application Hearing? And what sort of costs can I prepare to show or is it too late?

 

e.g

-income loss for attendance - (I am a contractor on fixed rate)

-travel expenses

-expert report cost(may be asked to show invoice anyway?)

-legal advice fees (if any ever, I know at the judge's discretion)

 

For the Counterclaim there isn't really a structured statement to argue , it is merely a list for costs and projected income loss. From what I gather this is  not normally done with a CC as no money is owed to the Defendant. It forms part of the same Claim matter, so if I understand correctly they ought to present "costs" at the end of the Case trial and not as a CC. As they now submitted this bundle I want to bring it up at the hearing, hopefully the judge may consider and dismiss.

 

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For the Draft Skeleton Argument, it is  difficult to bring up a point e.g in the Defence statements and only rely on the Defendant's bundle, which so happens to have 0 photographic evidence (I wonder why🙄)

 

Can I present any evidence or best to simply stick Skeleton Args highlighting my Application points and only the bundle issues. I want to prevent this from turning into a mini-trial with a premature draft WS.

 

Sorry to pester with post, just very limited time to write in two days.

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On 21/10/2019 at 10:53, Andyorch said:

The hearing is to decide whether the expert evidence/witness be allowed......its not a trial or to decide the outcome of the claim.DId the Notice of Hearing ask you support anything further ?...sorry if its already been asked but I cant recall and this seems to be trundelling on forever.

 

Andy

 

As above...anything not connected to the decision of an expert evidence  witness/report will not be required. 

 

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