Customer issued court proceedings against us (small family run garage)

[Emz0305]

So what would be his original statement of case? The one post claim or the one dated the closest after the claim was served? His documentation confused the life out of me as it's been titled various things over the course. His particulars of claim are so vague it's unbelievable that the court even accepted them.

[Emz0305]

I meant before claim not post claim doh!

[andydd]

Well..there cant be a statement of case BEFORE the claim, anything before the claim is just pre-action protocol stuff. Anything sent before the claim is irrelvant with the exception that either side could refer to it to show theyve tried to make an attempt to settle.

 

So it would be the first one after the claim has started. Point out to the Judge that its a right mess and you cant really make head or tail of it, hopefully they will agree.

 

Also dont forget to put in your full claim for costs (using LiP £18 per hour rate), even though in theory small claims costs are none/low. The Court form to use is called Summary Assement of Costs.

[wonkeydonkey]

My mistake..Ignore the bit about his 'defence'.

 

Hi original statement of case (or whatever he likes to call it) should be it, see CPR 17, he CANT go changing it.

 

If I were you I'd go to court with just his first/original one in your hands and only be prepared to refer to this, if he starts bring up stuff mentioned in later ones then bring this to the attention of the Judge.

 

I dont believe that a Judge is go9ng to be too happy with his documentation, its alll over the place and I dont think anyone here who has read it can make head nor tail of it and hopefully the Judge will be the same.

I had to smile when I read this and thought the below could lighten the mood while still getting your message across.....

 

About 2 years ago I had a lady who was taken to court (over a cat!!!) I helped her do the usual preparations etc and suggested she kept everything together in a paginated file ready for the hearing, she did just that and found it very easy to access those documents that came up for questioning....the claimant however, when asked for various documents in evidence, produced an Asda carrier bag jammed full of various paperwork, a not very amused Judge adjourned the hearing with an instruction to the claimant to 'get your paperwork in order'.

 

The case resumed and once again the Judge asked the claimant for a true copy of an invoice....lo and behold the claimant produced two carrier bags albeit they were smaller than the original bulging carrier, she gave them to the Judge saying 'it's in one of these' .......Case dismissed.

[Emz0305]

I had to smile when I read this and thought the below could lighten the mood while still getting your message across.....

 

About 2 years ago I had a lady who was taken to court (over a cat!!!) I helped her do the usual preparations etc and suggested she kept everything together in a paginated file ready for the hearing, she did just that and found it very easy to access those documents that came up for questioning....the claimant however, when asked for various documents in evidence, produced an Asda carrier bag jammed full of various paperwork, a not very amused Judge adjourned the hearing with an instruction to the claimant to 'get your paperwork in order'.

 

The case resumed and once again the Judge asked the claimant for a true copy of an invoice....lo and behold the claimant produce two carrier bags albeit they were smaller than the original bulging carrier, she gave them to the Judge saying 'it's in one of these' .......Case dismissed.

[/color]

 

LOL I think he might need an asda delivery van to carry all his paperwork

 

I'm planning on using a file and and index. As it will be my dad having to do the speaking I'm going to have to make it as simple as possible in court. He's very nervous about having to speak in court and is dreading it. I've told him I won't be allowed to speak only to help him with his documents etc. I really hope the claimant is as badly prepared for this hearing as he was the application hearing.

[andydd]

In most of the cases Ive been involved in (against my Freeholder and his solicitor), Ive known in advance that Ive had the upper hand and Ive mostly just sat in silence and watched my opponent make a complete cock up of proceedings and have a hard time answering the Judge's questions.

 

Ive normally only had to say a few words or point the Judge to some very important documents, in my case, some caselaw or point to various statute laws that my Freeholder hasnt complied with..and thats it..I've won.

 

Ive been helped as my Freeholders solicitor has been incompetant and at times appearing to have some sort of breakdown (they have since parted ways !).

 

In your case, I would expect the Judge to start with the Applicant and ask him to explain himself and explain his losses, I expect he will end up tying himself in knots, even in damages cases, you cant just say..I want £xxx, you must point to clear contractual or legal provisions, I dont believe the applicant has at all, and he then appears to have added on all sorts of consequential losses which are very remote from the actual claim.

[Emz0305]

We've received the so called 'Engineers Report' LOL anyone want to see it? This was done by a guy who lives down the road from me. He's just a local mechanic and supposedly doesn't know the claimant, but low and behold he's in the entertainment business and is a member of a local band and gigs at the local pubs. The Claimant is a DJ and does the local pubs too, so who's betting they know each other and I'd go as far as to say that this man is the claimants 'mechanic friend' who helped repair his car.

 

Anyway, I've attached a copy of the report after removing all the sensitive info.

 

Oh and the court hasn't granted permission for a report.

[Emz0305]

Oh and enclosed with the report was a hand written cover note saying that the cost would be to follow once known lol Makes me laugh because it looks as though its been printed on the same printer as it's almost the same format as his other documents.

[Mike_hawk]

It appears to be written by the same person or has one cribbed from the other?

 

Joking aside, perhaps you should write to the other side and ask what qualifications the 'witness' has and his contact details in case you require his attendance for trial.

[Emz0305]

His contact details were on the back of the report, well his name and address were anyway.

 

He states at the bottom of his name and address that he's a Motor Engineer lol I think the Claimant misses the point of what an independent engineers report is.

 

I've got exactly 10 days until the hearing. Still not a clue what I should be now sending to court. I'm going to be taking along most of the claimants correspondence so do I need to send copies of all that? I don't think my printer has enough ink to cope.

 

Could someone please give me a run down of what will happen in court on the day? What will be expected of my dad? Will he have to stand up and tell his story or will the judge just ask him questions? He's worried that he will go completely blank and start mumbling and stuttering if he has to give the whole story.

 

I'm going to take 2 files, One with all the claimants correspondence and indexed, and another file with all our documments, defence, my dads witness statement and another letter with points that my dad needs to get across in court.

 

How can we get this report disregarded as it can't be proved that it's not independent and hardly evidence when the opinion comes from a box of mechanical bits and photographs that give no proof that they were even from the said car.

 

Sorry too many questions.

[Emz0305]

Just read this

 

 

Court’s power to restrict expert evidence

35.4

(1) No party may call an expert or put in evidence an expert’s report without the court’s permission.

(2) When parties apply for permission they must provide an estimate of the costs of the proposed expert evidence and identify –

(a) the field in which expert evidence is required and the issues which the expert evidence will address; and

(b) where practicable, the name of the proposed expert.

(3) If permission is granted it shall be in relation only to the expert named or the field identified under paragraph (2). The order granting permission may specify the issues which the expert evidence should address.

(3A) Where a claim has been allocated to the small claims track or the fast track, if permission is given for expert evidence, it will normally be given for evidence from only one expert on a particular issue.

(Paragraph 7 of Practice Direction 35 sets out some of the circumstances the court will consider when deciding whether expert evidence should be given by a single joint expert.)

(4) The court may limit the amount of a party’s expert’s fees and expenses that may be recovered from any other party.

[raydetinu]

It is reasonably informal as compared to a criminal court and usually in the judges chambers. All are seated, with a chair in front of judge to give evidence.

All can refer to the documents as required. ( but only ones that the court has )

The complainant goes first and outlines the claim, then can be questioned by the defendant, the judge also asks questions.

claimants witness next to be questioned.

then defendant and their witnesses.

Judge then makes a decision or may defer to a later date.

You can move to strike out at the start, but be sure of the facts, judge will not be amused.

[andydd]

I couldnt follow head nor tail of that report and I doubt a Judge would either (assuming the report is allowed), it seems to have lots of Summarys and Conclusions and then a Finally..but none of them do actuallly summrize it into anything a reasonable human could understand.

 

Im pretty certain that you could get that report struck out, let me look into it.

 

Was it signed with a statement of truth ?

[andydd]

Interestly, Panarama last night had a programme on 'corrupt' experts.

[andydd]

This is from Practise Direction 27.

 

THE COURT DIRECTS:

 

1 Each party must deliver to every other party and to the court office copies of all documents on which he intends to rely at the hearing no later than [ ] [14 days before the hearing]. (These should include the letter making the claim and the reply.)

 

2 The original documents must be brought to the hearing.

 

3 [Notice of hearing date and time allowed.]

 

4 The parties are encouraged to contact each other with a view to trying to settle the case or narrow the issues. However the court must be informed immediately if the case is settled by agreement before the hearing date.

 

5 No party may rely at the hearing on any report from an expert unless express permission has been granted by the court beforehand. Anyone wishing to rely on an expert must write to the court immediately on receipt of this Order and seek permission, giving an explanation why the assistance of an expert is necessary.

 

NOTE: Failure to comply with the directions may result in the case being adjourned and in the party at fault having to pay costs. The parties are encouraged always to try to settle the case by negotiating with each other. The court must be informed immediately if the case is settled before the hearing.

 

As you can see the part about Experts report is very clear (it is also repeated elsewhere in the CPR), he simply should not be allowed to refer to it during the hearing. Now its not clear whether you should make an appliaction to strike it out (all the strike out CPRs refer to startement of case, its not clear whether an experts report is a statement of case or whether if the SOC refers to the experts report tyerefore the SOC can be struck out).

 

Id give serious thought to having the report being struck out completely (as clearly it backs up the applicants claim, even if as we believe its not independant !).

 

Note the above are General Directions that both sides must comply with even if they havnt been given any other directions.

[raydetinu]

report appears incomplete!

[andydd]

report appears incomplete!

 

I doubt whether it would be any more understandable !

[Emz0305]

Yes it's incomplete because I left off the last page that only contained the 'experts' name and address and his signature and supposed profession 'motor engineer'.

 

Andy I haven't sent all the stuff to court and the case is next Friday. I've not got any witness statements to go in, but would have liked to write to court and claimant about this report highlighting that no permission had been requested or granted and that the report doesn't comply with CPR.

 

I also wanted to send the court documents printed for Internet forums that show how this same fault can be virtually impossible to just diagnose without stripping down or eliminating the most common causes.

 

Have I made a boo boo?? First time really that I've not followed CPR to the letter unlike the claimant.

[andydd]

Well..The above Practise Direction does say that all docs should be in court 14 days before the hearing, how come you havnt handed them in ? (You have already handed in your main Defence/Statement of Case ?).

 

You prob should of made an application to the court before now, highlighting the abuse of process and non-compliance with CPR and asking that any references to the experts report be removed/struck out.

 

It maybe ok on the day to ask that the experts report is ignored, Im not sure as I've no experience of using an experts report.

[Emz0305]

We only received the report today Andy.

 

Do you mean the defence that we sent a copy of to the court a while ago Andy that you all helped us with?

[Emz0305]

Could someone please advise whether it's worth doing an application regarding this report?

 

Would the judge honestly take any notice whatsoever of the contents? It's hardly a professional report done by a proper 'expert'.

[andydd]

There can only be one defence so yes, the one youve already sent to court I assume.

 

There is no need to reply to the so called expert report, it appears to me it should be struck out as its less than 14 days to hearing and also there is no permission.

 

He really should of referred to the report in his original statement of case, he (and you) shouldnt be sending bits and bobs piecemeal to the court, there should be one statement of case from each side, which refers to all the facts and docs which will be relied upon.

 

Its rather messy, Im not sure but I believe you should make an official application (with fee) to strike out all sorts of the applicants documents (and parts of his SOC) for non-compliance with CPR, maybe with luck this hearing could be combined with the main one.

[andydd]

Personally I'd rsk the application fee to ask that the report and bits of SOC that refer to it be struck and you could also point to other breaches of CPR and see if there is other stuff you could get struck out.

 

The fee for this would be £40 or so I believe.

[Emz0305]

I think the claimants lateness for everyhing has distracted me. The fact that there was no allocation questionnaire filed by the claimant yet it was in the order made by a judge, the fact that his allocation fee wasn't paid too, all distracted me. I think he's played a very cunning game.

 

The way it's gone so far I'm not feeling very confident lol

 

Not sure of the best way forwards now. Would it look bad to the judge if we again complain about the claimants conduct as I feel so far that it has fell on deaf ears.

[raydetinu]

I would tend to rely on the judge on the day, they may not be experts in all matters but usually fair in due process and determining the facts, however they can be unpredictable.

 

 

I would not worry about the expert witness report ( although usually allowed in due process as they add a lot of weight to any claim or defence ).

 

 

It would be the qualifications and competence of the report writer that gives it that prominence. without that, any body could write one! and therefore carry little weight, it would just be an opinion.

 

 

In making an application it may well open the door for the claimant to in fact introduce the report and other documents officially.

 

 

Good luck anyway.