Tarmac Driveway done by Tom Diggins Stockport Driveways, judgment plus costs - ***WON***

[BankFodder]

I suggest that you send your own email to the court and point out that although you have attempted to engage him in the choice of expert that he would not co-operate.  Point out also so that he has given different reasons for not coping to you and to the court.

[smithy49]

Thank you. I will update in the week if anything occurs

[smithy49]

Update: Nothing received from the Defendant today so he has missed the deadline for the witness statement. 

 

 

[BankFodder]

I suggest that you inform the court on Friday.

Maybe give the court a ring before that and check that you can inform the court simply by letter.

[smithy49]

Thank you, I will do that.

 

 

[smithy49]

Update: Spoke to the Court today to check if they had received a WS from the Defendant but they haven't.

 

The WS and evidence I sent to the Defendant by recorded delivery was unable to be delivered and hasnt been collected from the sorting office yet. The guy I spoke to at Court suggested I email it to the Defendant and CC the Court.

 

The survey of the drive took place today so I should have the report by the end of next week.

 

I plan to write to the Court and let them know that the Defendant has missed the deadline and request that anything submitted from now on is disregarded.

 

Is it a good idea to email the WS and evidence to the Defendant or should I email him and prompt him to collect the original from the sorting office? 

 

 

[BankFodder]

Do everything you can which makes you look completely cooperative and as if you have gone the distance to involve him

[BazzaS]

Recorded delivery isn’t required, and can be refused / left uncollected, and then you know it hasn’t been received

 

send a copy ordinary first class post (which is all that is required!). Get a (free!) certificate of posting.

 

You (and the court!) are then entitled to rely on the Interpretation Act, which will presume it had been delivered on the second working day after posting ……,

 

if he is trying to play silly side by refusing recorded delivery, more lookout for him when he says he never received it, and you tell the judge “I sent it by both recorded delivery, and in case he declined such a delivery, ordinary 1st class, too…….”

[smithy49]

Thanks to both of you for your advice.

 

Watch this space!

[smithy49]

Update: CPR Part 35 report arrived today. Condemns the work carried out, backs up everything I have put in my claim and subsequent witness statement/evidence. States that the whole job should be removed and re-done and the costings are pretty much bang on with the estimates I put forward.

 

I have sent it to the court as the deadline is tomorrow by 4pm.

 

I am guessing there is little to no chance of the defendant getting a judgment in his favour

[AndyOrch]

[BankFodder]

Yes clearly it is almost inconceivable that you won't get your judgement.

 

I think you should probably start preparing for the enforcement stage although do be aware that further non-cooperation could possibly result in delays as a judge might feel moved to act in the interests of Justice and to be extra cautious and maybe give him extra chances to get involved in to put inside of the the story.

 

 This is pretty unlikely but it does happen because he is a litigant in person after all.

 

I seem to remember that you ascertained that he was in fact the owner of a property and if I were you I would double-check this at some point to make sure that there hasn't been some change of ownership.

 

Please could you tell us what the next deadline is and what it is for.

 

If the hearing date is round the corner then fair enough but if there are further procedures to go through then I'm wondering whether a suitable next step might be to apply for a summary judgement.

 

Summary judgement is where you make an application to the court on the basis that there is no no reasonable defence and no prospect of success of trial and so you should therefore be given judgement immediately.

 

It would be the cost of the application notice to make this application but it might be a very sensible move. 

It seems to me that you have very strong chance of obtaining a summary judgement and I think that if you decided to make the application that you should ask the judge that if  the court was not inclined to grant the summary judgement then as a condition of not doing so and given the defendant's lack of engagement in the process, that they should order the defendant to pay money into court.

 

If the defendant did not pay the money into court then summary judgement would be granted.

 

I'm making the suggestion partly because I think that you have very good chance of success but also because I'm very worried about this defendant's lack of cooperation and  whether  there might be some surprise around the corner when you come to enforcing the judgement.

 

By the way, on the question of judgement we need to be clear right now but the moment you do get a judgement that you instruct sheriff's full stop not County Court bailiffs.

 

 

 You do not want to make the mistake that another person on this forum made. They followed our advice , received their judgement but then went off on their own andinstead of bringing the sheriffs, they instructed County Court bailiffs and I believe that it took 3 months before the  judgement was eventually enforced.

 

 

[BankFodder]

I've gone through the entire thread from the very beginning.

 

I now see the the next deadline is set for 4th of November when it is the court hearing.

I suppose that this is the trial of the issue.

 

The defendant has not cooperated at all even to the extent of failing to comply with the court order which requires statements etc to be provided by the 31st of August.

 I'm concerned about the possibility of enforcement and I think that the 4th of November is too long to wait.

 

I think the situation warrants an application notice to be made inviting the charge to strike eyes defence and to give you a summary judgement plus litigant in person costs.   And that if the judge is not inclined to grant the judgement that the judge should order that the sum claimed should be paid into court as a condition of continuing.

 

I think that the cost of an application notice to do this would be about £255. Clearly you will get this back so long as you are able to enforce the judgement for the entire sum.

 

PART 24 - SUMMARY JUDGMENT - Civil Procedure Rules

WWW.JUSTICE.GOV.UK

How do you feel about this suggestion?

 

 

Unfortunately with the courts stretched the way they are this won't be an instant solution and I could imagine it would probably take two to three weeks for the matter to be dealt with. 

 

However it will be far more satisfactory than waiting until the 4th of November.

Especially when you have no idea whether on the 4th of November there won't be some further delay or some excuse by the defendant which then pushes the date even later.

 

[BazzaS]

Summary judgment isn’t “an option for an early trial”. It is for when there aren’t any triable issues.

 

So the report being clearly in favour of C can’t be used to say “trial not needed”. The trial is where the judge considers the report.

 

An application for the judgment sum to be paid into court because D hasn't been complying could be useful, and could add pressure on D. Whether it’d be heard before the main hearing on the 4th November is another matter, though!

 

Adding in a request for summary judgment that can be successfully opposed by the one line response of “the issues remain to be determined, the trial is where that should happen, including where the report should be considered” risks losing that application fee, though.

 

 

[BankFodder]

I had suggested that the hearing was so far ahead that it would be worth applying for a summary judgement but then I realised that this itself would require some kind of hearing and so so it wouldn't make any sense to make the application .

 

 

 

 

 

 

 

[smithy49]

Thank you.

 

There are no more deadlines at the moment apart from payment of hearing fee by 7th October.

 

The DF eventually made his half of the payment for the expert witness so he complied with that at least. He has had a copy of the report so this may trigger a reaction or he could bury his head in the sand, I will have to wait and see.

 

He has a tendency to leave things then all of a sudden either complains about something or makes an offer. I am happy to sit back and wait for the hearing now unless things take a turn.

[smithy49]

Evening,

 

Just an update:

 

I rang the Court today to find out if they had received anything from the defendant. Apparently, he submitted some documents on 23rd and 24th August in the form of invoices and screenshots. He missed the deadline of 16th August for submission and he also hasn't sent me copies of the documents.

 

The Court advised me to write to the Judge to ask that he disregards this evidence and to also say this on the day if the Defendant tries to rely on this during the hearing.

 

I have written to the Court today.

 

The defendant has basically been late on all the Court deadlines and has failed to comply with the directions so I am hoping the Judge will take this into account

 

 

[BankFodder]

At the very least, when it comes to the issue of whether or not to award discretionary costs, I'm sure that the judge will take this into account.

I hope you are keeping a good spreadsheet tally of all the time and expense you are being put to as a result of this

[smithy49]

Yes I am...and thank you

[smithy49]

Hi,

 

Is there anyone available to offer advice before I contact the Court please?

 

I wrote the Court on 14.9.21 to let them know I had not received a witness statement or any evidence from the defendant by the court deadline and to ask that anything submitted prior to the hearing or on the day is disregarded.

 

Last night, I received a string of emails from the DF which are copies of emails he sent to the court between 20th - 23rd August, in which he made comments and attached photos of some letters/email exchanges, some receipts for disposal of waste and a scrawled handwritten witness statement by his colleague. 

 

The WS I have been sent does not show a date and does not have a statement of truth on it. It also contains a blatant lie where his colleague says he was present during an on-site conversation when he wasnt.

 

The DF has removed all dates from the emails I sent and has written times/dates on himself. More worrying though, is that one of the submissions is a copy of an email I sent to the DF but when he has sent it to the court, he has removed a crucial sentence to sway the truth. I have also submitted the original and true copy of this email in my evidence so I can prove it is incorrect.

 

The 3 copy invoices he has provided for the disposal of waste... The first one is for 2 x disposals on a date before he even started the job and the 3rd one is a duplicate pdf copy of the 2nd invoice.

 

I am going to write to the court again to let them know the date I received this evidence and would like to point out the errors and the misleading information he has provided.

 

Before I do this, I wanted to ask advice on the seriousness of what he has done and whether I just simply point this out to the Court or if there is any action I can take?

 

Thank you in advance

[BankFodder]

This needs some thought and some planning.

No super urgency but get ready to send the court something on Monday.

Standby for a further response later or response from my site team colleague @Andyorch

[smithy49]

Thank you very much

[BankFodder]

Start off by making a numbered list of the misleading representations.

 

Short sentence to describe each.

 

Identify what you take to be the three most serious.

 

Post the list here numbered

[smithy49]

Will do

[smithy49]

Here are my points...difficult to choose my top 3 most serious but I would the top 3 as point 6, point 7 and point 2, in that order?

 

 

1.       Witness statement by Defendant’s colleague does not show a date or address of the witness and it does not contain a statement of truth.

 

2.       Above WS contains two blatant lies. The first one being, the witness states he was present during a conversation between the claimant’s partner and the DF on the day when it was pointed out to the DF that there was a fault with the work. He was not present. The second being, he states a conversation took place between myself, my partner the DF and the witness about waiting a week before the tarmac was laid to let the concrete set and that we both said we were very happy with their hard work. This conversation did not take place.

 

3.       Above WS states that all waste removed on the first day and a delivery of supplies was delivered the following day. This is inconsistent with the DF’s statement and also does not match the waste disposal receipts that the DF has submitted as evidence.

 

4.       The DF submitted numerous emails to the Court containing evidence but after the deadline of 16.8.21. He made comments in his emails but didn’t not include a statement of truth.

 

5.       The DF has submitted 5 x copy emails as evidence, all of which do not show the dates the emails took place and the DF has hand written times/dates on the evidence.

 

6.       The DF has submitted a copy of an email I sent to him. The original says “It is clear we cant agree on this matter and, until we have had some independent assessments, there is little point in discussing it any further at this point”. The DF has removed “Until we have had some independent assessments”. This is an attempt to mislead the Judge into thinking I dealt with things differently than I actually did.

 

7.       The DF submitted 3 x waste disposal invoices to show how much waste he had removed from site. The 1^st invoice has four entries on it, 2 on 16.2.21 and 2 on 19.2.21. The job did not start until 19.2.21. The 3^rd invoice is a duplicate pdf of the 2^nd invoice. These submissions are misleading and give a false representation of the actual amounts of waste removed from site.

 

8.       The DF has named a 2^nd witness who he says can verify that the brickwork was laid correctly. This is the Mother of his colleague who he says dropped off some lunch one day and had a look at what they were doing. The DF has told the court he will submit a statement. I have not been given a copy of any such statement.