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

[Emz0305]

Thanks. So maybe better just pointing out on the day that permission was not given by the court for the report and also that the qualifications of the person writing the report are questionable and that there could also be a conflict of interest as this person is in the same business as the claimant?

[Emz0305]

Sorry to keep going on about this, but just read this about small claims disclosure.

 

Preparation for the hearing

27.4

(1) After allocation the court will –

(a) give standard directions and fix a date for the final hearing;

(b) give special directions and fix a date for the final hearing;

© give special directions and direct that the court will consider what further directions are to be given no later than 28 days after the date the special directions were given;

(d) fix a date for a preliminary hearing under rule 27.6; or

(e) give notice that it proposes to deal with the claim without a hearing under rule 27.10 and invite the parties to notify the court by a specified date if they agree the proposal.

(2) The court will –

(a) give the parties at least 21 days’ notice of the date fixed for the final hearing, unless the parties agree to accept less notice; and

(b) inform them of the amount of time allowed for the final hearing.

(3) In this rule –

(a) ‘standard directions’ means –

(i) a direction that each party shall, at least 14 days before the date fixed for the final hearing, file and serve on every other party copies of all documents (including any expert’s report) on which he intends to rely at the hearing; and

(ii) any other standard directions set out in Practice Direction 27; and

(b) ‘special directions’ means directions given in addition to or instead of the standard directions.

 

All we got was an order giving a date for the trial and a date by when the claimant had to pay his fee. No directions regarding disclosure. If the court doesn't follow its own procedures how do they expect other to?

[Emz0305]

Then it states in the next Practice Direction

 

27.5 No expert may give evidence, whether written or oral, at a hearing without the permission of the court.

[wonkeydonkey]

Did he send his report recorded/signed for? what a shame you never received it and will have to tell the court he is using documents you have not been able to respond to????

[BazzaS]

Did he send his report recorded/signed for? what a shame you never received it and will have to tell the court he is using documents you have not been able to respond to????

 

Potentially unwise to claim non-receipt of an item you've posted on the Internet - get caught in that lie and how is the rest of your given evidence believable?

 

"It is your sworn evidence you haven't received the report.... So how do you account for this post on CAG..... ?"

 

Since it may well come down to who is the more credible witness, why risk ruining your credibility, even if it is unlikely the claimant is smart enough to be reading this thread?

[Emz0305]

Potentially unwise to claim non-receipt of an item you've posted on the Internet - get caught in that lie and how is the rest of your given evidence believable?

 

"It is your sworn evidence you haven't received the report.... So how do you account for this post on CAG..... ?"

 

Since it may well come down to who is the more credible witness, why risk ruining your credibility, even if it is unlikely the claimant is smart enough to be reading this thread?

 

No we won't be denying recipt of it, but do you think the court will accept this report with it not giving permission for it, turning up so late and looking like it could well have been wrote by a friend of the claimant? Don't the court have to firstly approve the chosen expert? This report is practically a re wrote mimic of the claimants explanation.

[Emz0305]

Would it be wise to answer re the report? Also get any extra docs in that I've not disclosed? Late I know but as we haven't had any directions from the court regarding standard disclosure can they really say anything if docs turn up late?

[wonkeydonkey]

Did he send his report recorded/signed for? what a shame you never received it and will have to tell the court he is using documents you have not been able to respond to????

 

Was said tongue in cheek ...I have seen a few expert witness reports in my time and never have I seen one so badly written as this, in those I have seen the experts always introduce themselves by giving a full CV to show competence in their field of 'expertise' along with all the technical jargon to tests carried out to establish probable cause to the 'fault'. Never have I seen a report that is based solely on 'opinion' as this one clearly is.

[andydd]

I think you are complicating issues...there is no real 'disclosure' in small claims cases, only for fast/multi track (Ive been on fast track once and the disclosure part is lot more complex and confusing, for example you must sign and say that youve been through ALL the relevant documents whether on paper, computers, storage, etc....for big companies/complex trials this can be an imense task !).

 

If youve received no directions (which is quite common) then the 'Standard' directions from 27.4 apply, you must make sure you comply with them ?. I hope that you have served all your paperowrk by now ?, as the 14 day limit has now passed.

 

I would assume that the 'expert' report also found outside this deadline.

 

As it doesnt look like you are going down ythe route of applying to strike out any of the applicants SoC or experts report, then bring these issues up on the day straight away, point to breaches of CPR, I would of thought that if the applicants cases relies heavily upon the report then the whole thing could be struck out.

 

I dont believe the applicant is being cunning at all, his case is a mess, but what you should of done early on is made official applications to strike out anything which doesnt comply with the CPR, yes this is a hassle and extra expense but if successfull that cost could of been claimed back.

 

I peronally cant make head or tail of the aplicants claim and the export report (even if allowed which appears unlikely) doesnt clarify matters, Im not convinced it would be any clearer to a Judge, after all..its the applicants case to prove.

[Emz0305]

Andy I don't think there was anything else that I needed to send to the judge looking through my docs only I think one document which was a print out from an internet forum. I'll take this with me and try our luck lol

 

Can we refer to documents that have been served on my dad by the claimant post claim? I'm assuming the court will already have a copy of these? Isn't it only documents that the judge or claimant might not already have a copy of that needs disclosing to other parties?

 

I've now sorted all the documents into an A4 binder and indexed them.

 

I've also wrote a numbered list of what my dad will bring up in court and first on the list is how he has had difficulty in defending this claim due to the sheer volume of documents and that he struggled to make any sense of it. Point 2 is to bring up the report and the fact that permission was not granted as per CPR 27.5 and that the expert is a local mechanic and has even lived in the same village as the claimant. Hardly independent, and also that the report was received after the 14 day deadline.

 

Can you think of anything else he could mention at the beginning of the hearing?

[andydd]

Not sure how much use an internet forum print out would be, but in theory if your SoC didnt make reference to it then it should really be allowed you suddenly refer to it at the hearing.

 

Again, the phrase 'disclose' has a slightly different meaning that doesnt really apply to small claims hearing but yes, you are right that you dont have to send to the other side a document they clearly already have, for example in my dispute with my freeholder, we both have a copy of the lease as thats the main contract so I dont photocopy 20 pages and send it to him all the time, but the Judge clearly doesnt have a copy so as Im the applicant I send a copy to court.

 

The aim is that there is one SoC and this refers to other docs, i.e see Photo 3 or Exhibit 1, although what often happens is that parties send bits at a time and it gets aright mess (as in this case).

 

You are begining to understand what a sneaky business it can be, someone might have a cast iron case but if the other side can somehow get thios cast-iron evidence struck out or dismissed then the case may collapse, no doubt you have seen high profile criminal cases collapse for this reason.

 

Yes, I believe you can refer to docs sent to you before the claim started, normally a party would mark these Without Prejudice (which means they cant be mentioned) but i dont believe the applicant has in this case.

[Emz0305]

Not sure how much use an internet forum print out would be, but in theory if your SoC didnt make reference to it then it should really be allowed you suddenly refer to it at the hearing.

 

Again, the phrase 'disclose' has a slightly different meaning that doesnt really apply to small claims hearing but yes, you are right that you dont have to send to the other side a document they clearly already have, for example in my dispute with my freeholder, we both have a copy of the lease as thats the main contract so I dont photocopy 20 pages and send it to him all the time, but the Judge clearly doesnt have a copy so as Im the applicant I send a copy to court.

 

The aim is that there is one SoC and this refers to other docs, i.e see Photo 3 or Exhibit 1, although what often happens is that parties send bits at a time and it gets aright mess (as in this case).

 

You are begining to understand what a sneaky business it can be, someone might have a cast iron case but if the other side can somehow get thios cast-iron evidence struck out or dismissed then the case may collapse, no doubt you have seen high profile criminal cases collapse for this reason.

 

Yes, I believe you can refer to docs sent to you before the claim started, normally a party would mark these Without Prejudice (which means they cant be mentioned) but i dont believe the applicant has in this case.

 

Andy sorry to be a pain but regarding 'without prejudice', the expert reporter has wrote this in the first paragraph of his report. Does this mean the report can't be brought up in court? Sorry if I'm being thick.

[Mike_hawk]

Means nothing in the context of a report, it offers no remedy so cannot be afforded the legal priviledge of non disclosure at trial.

 

Have you contacted the other side or the mechanic yet to confirm his credentials and whether he will be available to attend trial..... not that you want anyone else there filling the room, its more a question of forcing his hand to bug out and retract his statement. It bears little or no weight anyway as its a one sided unqualified opinion based on presumed facts, unless the judge has had a bad day at his local garage he won't give it much time (if any). All it does is serve to frustrate and overcomplicate the basic points at the crux of the case.

[andydd]

Without Prejudice has no relevance to the report, it would be a bit odd if someone got a report but didnt want it used in court.

 

It is often used in offers to settle, talking of which, it may be a good idea to write and try and settle this, write and show all your strong point that youve mentioned in previous posts, you could also point to the experts report and say you will ask it be struck out as there was no permission given (or alternatively don't tip him off about this error), you could offer a few quid to drop it or say you will allow him to drop it if he pays you £xx, many (maybe the majority) of cases are settled before the hearing and it is an important part of the process, so its worth giving it some thought.

 

In my case, its due for mediation next week, I have a figure Im willing to accept to drop the case otherwise it goes to hearing but its far easier if you can avoid a hearing.

[Emz0305]

I'd love to not have to attend the hearing but I really cannot see the claimant dropping the case now. Plus I'm not confident that I could write a good enough letter to make him think twice about it. I just hope I'm feeling better for the trial next Friday as I'm down with a bad bout of tonsillitis at the moment and on a high dose of anti b's

[andydd]

Well..not unless you offer him a sum of money, which no doubt you are not inclined to do.

 

Or persuede him to drop it as he's bound to fail, this letter doesnt have to be strictly accurate, you could say 'I have every confidence that your evidence will be struck out and your claim unsuccesful, I shall be asking the court for my costs summarily assessed as £xx" (and include the Summary Assessment of Costs form using £18 ph LiP rate).

 

If the applicant had a solicitor he may of well been advised tyat he has no chance and to try and settle but alas as he doesnt he may well blunder on !

[Emz0305]

What is the number of that form Andy? Does that have to be sent to the court prior or is it something that you can take along on the day?

[Emz0305]

What I was wondering is, the claimant on his list of costs sent to us last week has stated that everything is receipted but has failed to send us a copy of any receipts or invoices.

 

In our defence sent to him we asked for him to prove his cost of repairs with garage invoices but to date we have not seen one invoice.

 

What I'm worried about is that the person that did this report works for a local garage and could probably quite easily generate an invoice. If he turns up in court with in next week it doesn't really give us any time to investigate whether its a genuine invoice or not.

 

Also had no receipts for any of the other stupid amounts he's claiming for including £50 for photocopying :jaw:and other really stupid amounts for things like ink and typing etc

[raydetinu]

you do not have to comment on any of his expense claims or question them, the judge will make short shrift of anything that does not appear to be accurate or unjustified!

[Emz0305]

It's just that the garage invoices surely would be a big part of the case because without them, how could he possibly expect to take someone to court? When we attended the application hearing the judge even asked him if he had garage receipts because I'd brought up that he'd fixed the car himself with the help and guidance of his mechanic friends (his words from pre court correspondence which he later changed and said he got his mechanic friends to repair it). Surely if he didn't get the car repaired by a garage and have proper garage receipts he doesn't have a case? This is why we had asked for them in the defence.

[andydd]

Heres the form > http://www.justice.gov.uk/courts/procedure-rules/civil/contents/form_section_images/pre-action_protocol/housing_disrepair_pdf_eps/prot_house_anx_f.pdf

 

Although technically this doesnt apply to small claims cases, its always worth filing in and sending, a Judge can allow these costs under certain circumstances.

 

It needs to be at court 24 hours before hearing. If not allowed be sure to ask for costs of any court fees, travel and time off work (max £90).

[Emz0305]

Heres the form > http://www.justice.gov.uk/courts/procedure-rules/civil/contents/form_section_images/pre-action_protocol/housing_disrepair_pdf_eps/prot_house_anx_f.pdf

 

Although technically this doesnt apply to small claims cases, its always worth filing in and sending, a Judge can allow these costs under certain circumstances.

 

It needs to be at court 24 hours before hearing. If not allowed be sure to ask for costs of any court fees, travel and time off work (max £90).

 

Thanks Andy.

[raydetinu]

sure the repairs are his claim and will have to be submitted for the judge to consider, if the case is not thrown out first!

it is the expenses and incidentals that I was particularly referring to.

 

 

Have you lodged a counter claim? I doubt very much you would get costs for defending the claim.

[Emz0305]

No we haven't filed a counter claim.

 

So even though we asked in the defence for him to provide proof of repairs for the engine failure in the form of invoices, he doesn't have to?

 

Just need to be sure ready for next week.

 

Surely, if he had an Official Garage invoice, he would have gladly forwarded it to us?

[raydetinu]

yes of course he would have to ask for you to settle his bill for the repairs and sent you an invoice or summary of costs! Did he not do that before starting the court action ( LBA )? have I missed that?

If not, then judge will not be amused! ( CPR protocol again ).

The court can only consider costs which have to be substantiated by invoices/bills etc. they just cant make things up!