Setting aside salford a ccj - defence sent to wrong court

[SuperVillain]

On 10/11/2019 at 09:43, keek said:

Morning BazzaS, 

I was just going off the advice in a previous comment #61. 

 

Thanks for your reply , much appreciated .

 

I am going to sort a list of experts today and forward them on to the claimant for her to decide which expert she wants to use.

What do I do if she doesn’t want to cooperate? 

 

Do I need to send the list of experts to court also ? 

 

 

 

 

Send the list to her. In your covering letter/email, emphasise that the experts are independent, and  give her 7 days to agree one of the experts, and have a draft of the instructions to the expert to you by 22 November for you to approve.

 

 If she instead kicks off then ask her to send you a proposal for who she wants to use as expert - you can then check them out and see if you’re happy with them.

 

 

Edited November 11, 2019 by SuperVillain
More info

[SuperVillain]

OP have you heard anything from her yet re the expert? She has until next Wednesday to sort this...

[SuperVillain]

Oh wow ok.  Well no she doesn’t need to choose an expert on the list you sent but she needs to agree the expert with you. And with regards to sending you instructions, you need to agree those too (otherwise it’s not a joint instruction). I would write back briefly along the lines of:

 

”Thank you for your letter.

You will note that paragraph 1 of the court order indicates that the court has given permission to rely on a jointly instructed expert.

 

Therefore I look forward to receiving your proposals for the independent electrical/CCTV expert.

 

In accordance with the Court order, as this is a joint instruction I will also require sight of the instruction letter and the opportunity to propose any changes to the instructions before instructions are sent.

 

I look forward to hearing from you shortly.”

Interesting to know why she’s phoning the court. If she wants to vary directions the court will tell her to make an application. 

 

As Andyorch says, she has to apply for further directions if no expert is going to be instructed by that date, so the ball will be in her court.

 

Let’s see what happens.

Edited November 26, 2019 by SuperVillain

[SuperVillain]

10 minutes ago, keek said:

She says asking her to choose the expert and send me instructions is not what was ordered by the judge or in the directions.

She says I should send her a list , she then sends me a list and then we agree if we don’t she will phone court. 

She’s not thinking clearly. 
 

She hasn’t sent you a list of experts (which is something she thinks she has to do).  And you invited her to send her proposals for an expert if she didn’t want one of your suggestions. So basically she’s suggesting no different to what you’ve already asked.
 

If you both agree an expert, what does she think will happen next. One of you is going to have to write to the expert to formally instruct them, but the content of the letter should be agreed as it’s a joint instruction. As it’s her claim it should be her doing the legwork.

 

 If you don’t see the instruction before it goes, there’s nothing to stop her steering the expert in her favour in the letter, putting in things that aren’t true, or sending the expert documents that you’ve never seen before which could be irrelevant or misleading. 

[SuperVillain]

Do you know them, or can you look them up to see if they're appropriately qualified to produce the report? 

[SuperVillain]

6 minutes ago, keek said:

She’s not picked any from the list I sent but Yes i know of them and I’ve looked them up and they are qualified. 

 
Ok so this part is up to you then. If you’re comfortable with her proposed experts pick one (that you think will be best/fairest/impartial) and tell her that you agree to that one. 
 

She then needs to send you a copy of the letter of instruction for you to agree before she sends it to the expert - tell her this too. 
 

EDIT - if you’re not happy with any of the experts you’ll need to tell her that, and ask her to propose some more or pick one from your list.  Ideally you should explain why you’re not happy with them. 

Edited November 27, 2019 by SuperVillain

[SuperVillain]

I would give her until Monday to send you instructions and then you’ll have a day to tinker with them if required.

 

She should do it (she started the claim) but if you haven’t received anything from her by Monday afternoon I would do one yourself and send to her.  
 

Or if you’re happy to do it then feel free (she may well disregard anything you send and she’ll probably kick off again about having to agree the instructions with you, but it is what it is, the court ordered a joint expert so she’s stuck with it).

 

In case this expert isn’t used to writing reports for court cases it might be worthwhile reminding them of the appropriate part of the Civil Procedure Rules - Part 35 and Practice Direction 35 - in the instructions. This is from Practice Direction 35:

 

Form and Content of an Expert’s Report

3.1 An expert's report should be addressed to the court and not to the party from whom the expert has received instructions.

3.2 An expert's report must:

(1) give details of the expert's qualifications;

(2) give details of any literature or other material which has been relied on in making the report;

(3) contain a statement setting out the substance of all facts and instructions which are material to the opinions expressed in the report or upon which those opinions are based;

(4) make clear which of the facts stated in the report are within the expert's own knowledge;

(5) say who carried out any examination, measurement, test or experiment which the expert has used for the report, give the qualifications of that person, and say whether or not the test or experiment has been carried out under the expert's supervision;

(6) where there is a range of opinion on the matters dealt with in the report –

(a) summarise the range of opinions; and

(b) give reasons for the expert's own opinion;

(7) contain a summary of the conclusions reached;

(8) if the expert is not able to give an opinion without qualification, state the qualification; and

(9) contain a statement that the expert –

(a) understands their duty to the court, and has complied with that duty; and

(b) is aware of the requirements of Part 35, this practice direction and the Guidance for the Instruction of Experts in Civil Claims 2014.

3.3  An expert's report must be verified by a statement of truth in the following form –

I confirm that I have made clear which facts and matters referred to in this report are within my own knowledge and which are not. Those that are within my own knowledge I confirm to be true. The opinions I have expressed represent my true and complete professional opinions on the matters to which they refer.

 

[SuperVillain]

Hi. The issue here is that she insists that you send everything via post and this all needs to be sorted by Wednesday. 

Her moan about the timescales is neither here nor there. You’re having to instruct a joint expert because the last report she went and got herself was substandard.

 

Shes shot herself in the foot with the comments about not involving you in the instruction of the expert. 
 

I would write back to her and agree the expert you want from her list, and that you wish to see a copy of the instruction letter to ensure that it is appropriate. Tell her that If you do not see the letter before the expert is instructed, this will not constitute a ‘joint instruction’, and you will raise this with the Judge at the hearing.

[Going by some of the earlier comments in this thread the expert at least needs to be directed to consider whether the equipment currently remains in place as installed or if it has been moved/altered/disconnected].

 

Someone else may come along and say otherwise but I’d be reluctant to hand deliver after she’s told you not to... just send it by post and see if she comes back to you.

[SuperVillain]

this is how I read it:

 

“I explained to you fully in my letter dated 18.11.2019 that the Judge gave instructions for you to pick some experts and that you send them for me to look at.  He did not instruct you to ask me to write you a draft of instructions for you to ask the expert.  If I could not choose a name that you sent then I was asked to pick some names and to send them to you if you cannot pick one from my list.  I had to call the court back on 5 Nov.

 

You took 19 days to choose and from you posting your list through my letterbox you only gave me 4 days.  To be correct it was three days as I could not reply on the same day, that being 18 November.  This is why I called the Court for further advice.  I let you know that I was due to call the Court back this I have done twice.

 

I then took ill so I have not been able to get out of bed.  I have called the Court back today.  I have explained fully that I have requested that you do not come near my home again and to do the things the correct way as I have done all through, via the Postal Service.  I do not use Outlook.com as you suggested.  

 

I have picked 4 experts for you to look at, the Judge did not say you must instruct an expert with a draft from myself. 

 

I would like you to choose a name from these 4 experts. I will then instruct them to visit my home, using only the Judge’s orders in Num 1.  If you do not agree to any of the experts by 4 December I must phone the Court by 4pm the next day.”

 

First class, should get there Monday. 
 

I don’t think she’ll send you any instructions to review anyway. 

[SuperVillain]

Re posting vs leaving at her address see Civil Procedure Rule 6.23, which I take to mean you can leave documents at her address BUT, given that she’s told you not to enter her property it could possibly be trespassing:

 

(4) Subject to the provisions of Section IV of this Part (where applicable), any document to be served in proceedings must be sent or transmitted to, or left at, the party’s address for service under paragraph (2) or (3) unless it is to be served personally or the court orders otherwise.

[SuperVillain]

The order says the Claimant has to make an application for further directions (calling the court won’t do she needs to fill out the court form and pay the fee etc).

 

Ball’s in her court, you’ve done as much as you can do and covered yourself in writing.

[SuperVillain]

Ok I can see where you’re coming from. Maybe write to her and ask her if she has instructed an expert (if so you need to see the instruction letter) or made an application to court for further directions. 
 

If she doesn’t respond within a week then we’ll have a think.

 

I’m torn between you instructing an expert or just leaving it be. If no expert gets instructed so we get to May and there’s no report, then you risk the judge being critical of both of you (but you have all the stuff you’ve put in writing on your side). So I’m inclined to just leave it and do nothing, but keep writing to her to ask what is happening. 

[SuperVillain]

Sorry I’ve been away. Do as Bazza says. 
 

Ultimately she’s being uncooperative with the joint expert process, and all the correspondence clearly shows that. 

[SuperVillain]

57 minutes ago, Andyorch said:

Standard process.....make sure you have all your correspondence with regards to trying  to agree an Expert...and copies of hers.

Agree, and OP I suggest you order everything chronologically in a folder, and have a page at the front which lists the date of each correspondence and a 1 or 2 line summary for quick reference.  Never hurts to be prepared. 
 

Would anyone here suggest a short set of draft directions? e.g.

 

1. Claimant to prepare instructions to [Expert Name] and submit to Defendant by [Date].

 

2. Parties to agree content of instructions and send to expert by [Date].

 

3. Expert to report to be received by [Date].

 

Also if you’ll lose any earnings or anything by being at court keep the evidence of that. This is an extra hearing that you had to attend purely as a result of her being difficult (as your correspondence will show).

[SuperVillain]

6 minutes ago, Andyorch said:

Court sets Directions in SCT SuperV

Standard directions yes, and I assumed they would in this situation too, but I wasn’t sure  if it might be worth sending something given this is an additional directions hearing for the expert issue.  
 

Admittedly, I’ve never had a case with a directions hearing in SCT (about 4 years since I’ve dealt with an SCT case!).

[SuperVillain]

Ask the expert’s permission.

 

However, given that filming the expert will require you to film inside the Claimant’s home I think you will need her permission too. I don’t think it’s a stretch to say she’ll refuse.

 

As for her lying at Court, it happens. Now isn’t the time to deal with all that. Save the ammo for the final hearing. Has a date been set? And when is the expert going to assess? 

[SuperVillain]

Has the expert given a date for the site visit?  
 

Maybe someone else can help but I’m not sure what the protocol is for a site visit like this where the parties are in attendance e.g. can you speak with the expert, ask him questions, point him towards things etc. 

[SuperVillain]

31 minutes ago, keek said:

Thanks for the quick reply ,

she’s trying her best to get out of having this expert report done . The judge has told her he can’t make a judgment without it so it’s in her interest to get it done , she’s off her head accusing me of harassing her.

The police officer who rang was even apologetic. 

Thanks again for putting my mind at rest. 

Appreciate it’s easy for us to say, but just don’t let her get to you. As has been pointed out she’s digging a hole for herself and at the final hearing the Judge will only tolerate her behaviour so far. 
 

So just keep doing what you need to do, as you have been doing so far. 

[SuperVillain]

2 minutes ago, keek said:

Hi, 

I have uploaded the general form of judgment or order I received this morning. It came in 2 parts but I’ve scanned the together. 

Thank you for reading. 

2020-02-29_mags.pdf 1.47 MB · 2 downloads

Wow, I’ve never seen that before. 
 

So the hearing is at her house, now all you can do is prepare for it. 
 

I think now is the time to consider starting to draft your witness statement (I think this will need to be filed and served 2 weeks before the hearing date, unless any of the Court Orders say otherwise).  

[SuperVillain]

1 minute ago, keek said:

BazzaS thanks , didn’t look at it that way. 

I served a witness statement before the last hearing but it doesn’t include the photos of the camera she has interfered with as she did this after the hearing when the judge asked for an expert report. 

Shes sneaky. That’s why she had an issue of me hand delivering letters and phoned the police saying I was harassing her. 

Should I send an updated one including the things that have happened since? 

I would do an updated witness statement in this situation.

 

I think it’s an opportunity to explain your position with the expert/instructions, sending/hand delivering her letters, the photos you took of the cameras etc etc.

[SuperVillain]

If it’s unclear generally go with the earlier date (so as you point out 11 September).

Just bear in mind that courts are running huge backlogs of correspondence at the moment (some as much as 3 or 4 weeks behind).

 

Does the Court order say what will happen if there is no response by the deadline? 

[SuperVillain]

11 minutes ago, Andyorch said:

Could she not check if it had been re listed...you would have received notification if it had......I dont expect that she has informed the court.

Andy

 Agree she hasn’t written to Court. 
 

If Keek writes to her she’ll probably pull her finger out and write to court and the hearing will he relisted (or she might even call the police again and spout more rubbish about being harassed).
 

If he does nothing I expect the court and the claimant will do nothing and the claim will just be stayed until someone at court gets round to doing something (and they’ll probably issue an unless order). This could be months.
 

If he writes to the Court asking for the claim to be struck out due to lack of response from the claimant, the court will tell him to make an application which will cost money and delay things even more (and if an application does get listed and heard the end result will likely be the claim being listed for another hearing).

I’m not sure what to do. 

Edited September 15, 2020 by SuperVillain