Used car purchase problems

[Switch]

You're welcome.

 

Let us know the outcome!

 

After submitting my Application asking to have the defence struck out and the Claimant be allowed to apply for Judgement I recieved the Order yesterday.

 

IT IS ORDERED WITHOUT A HEARING THAT

 

1. The Defendant do file at Court and serve on all other parties the expert Report of Mr XXXXX by 4pm on 17th May.

 

AND IN DEFAULT the Defendant be debarred from relying on any expert evidence at trial.

 

2. The Defendant do pay the Claimant's costs of the Application by 4pm on 24th May summarily assessed at £44.25

 

3. Take notice that pursuant to Part 3.3(5) and (6) of the Civil Procedure Rules a party affected by this Order may apply to have it set aside, varied or stayed; such application to be made within seven days after the date on which it is served on the party making the application.

 

My Thoughts

 

Not really what I was hoping for from the application, but I suppose to have the whole defence struck out was a little disproportionate, although little fed up that the defendants have been allowed until the 17th May given that the defendants expert report was originally ordered to be served to all parties by the 28th April, heres hoping it's late.

 

Got my costs which is good.

 

I now wait for the defendants application to have the Order set aside which I am certain they will apply for, who would'nt. I am going to ask that there request to have the Order set aside is denied. I will be relying on

 

Baron v Lovell [1999] CPLR630: Summary: Failure to exchange an expert’s report in time is a good ground for disallowing it altogether.

 

and CPR35.13 – Consequence of failure to disclose expert’s report.

 

‘A party who fails to disclose an expert’s report may not use the report at the trial or call the expert to give evidence orally unless the court gives permission’.

 

Plus a sentence something along the lines of: ‘The conduct of the Defendant and the Defendant’s Expert Witness was not in the spirit of the CPR’.

 

Does anyone think my argument is not strong enough for me to make such an application, thoughts and suggestions would be very much appreciated as I am now getting in to the world of the unknown.

 

Regards

 

Switch

[BotB]

They'd need a very good reason for applying to set aside the order. The Court made it as a consequence of their previous failure to adhere to the original time for service of the expert's report, and they failed to advise either the Court or yourself in advance that they needed more time. I suspect it will appear by next Wednesday - if it doesn't, object to it being used or the expert being called and they'll have to get the Court's permission.

 

Unfortunately, you are seeing the frustrating side of litigation. The Courts seem to have excessive tolerance of defendants who don't do what they are supposed to do. However, Judges don't want appeals going in against their decisions if they can help it, especially on procedural points - doesn't look good on their record!

 

Wait and see what happens first and run it past us again.

[Switch]

They'd need a very good reason for applying to set aside the order. The Court made it as a consequence of their previous failure to adhere to the original time for service of the expert's report, and they failed to advise either the Court or yourself in advance that they needed more time. I suspect it will appear by next Wednesday - if it doesn't, object to it being used or the expert being called and they'll have to get the Court's permission.

 

Unfortunately, you are seeing the frustrating side of litigation. The Courts seem to have excessive tolerance of defendants who don't do what they are supposed to do. However, Judges don't want appeals going in against their decisions if they can help it, especially on procedural points - doesn't look good on their record!

 

Wait and see what happens first and run it past us again.

 

Unbelievable the defendants expert witness report arrived in the post this morning. The real infuriating part is that the report is dated 11th March and the Order was for them to submit by 24th April, and my guess is that the defendant’s solicitors have had possession of the report all along.

 

We have a Case Management Conference on 2nd June so I think the defendants solicitors were withholding the report despite the Orders given until the last moment so that my expert witness did not have sufficient time to respond. However, they have been forced to serve the report now as the Orders given yesterday gave them no option.

 

All seems a bit fishy to me though the Order arrives in post yesterday and the experts report arrives the day after and dated 11 March.

 

The defendants solicitor I have learnt is also a Deputy District Judge which makes me wonder at times, he has written the Orders for this case on behalf of the judge and he knows every time which judge will be sitting in on our hearings before we are even in the room, maybe I’m just paranoid that he appears to have that unfair advantage.

[BotB]

he has written the Orders for this case on behalf of the judge and he knows every time which judge will be sitting in on our hearings before we are even in the room, maybe I’m just paranoid that he appears to have that unfair advantage.

 

It is usually the way things are done that one or other of the legal representatives in a case will draft out an order for the Judge. Usually it will be the Claimant's legal rep but as you are self-repping, it's fallen to the Defendant's solicitor to do it. Provided you are shown the draft before its presented to the Judge and are happy it says what you expected it to say, there's no need to be unduly concerned about it.

 

There's nothing untoward about him knowing which judge is dealing with the case. You can easily acquire the same info. All you need do is phone up the Court and ask. In my area (not sure if its a local practice or generally the case around the country) the County Court sends out by email the case numbers and names (except confidential cases like family matters where they just use initials) in the Court list for the following day and which judge will be dealing with it.

 

Check with your expert that he now has enough time to do what he needs to do as regards this late report. I would probably be more inclined to believe that its the solicitor's poor office systems and procedures that caused the delay if the report has been around since 11 March especially as they appear to have been galvanised as soon as the order hit their desk. That's no excuse of course.

To deliberately withhold an expert report in breach of a Court order and thereby risk putting the client's entire case in jeopardy by being disbarred from relying on the report (assuming it supported his case) would be asking for a professional negligence claim against them. Rather than have misgivings, if I were you, I'd be taking comfort in the fact that that their case preparation is so shoddy.

[Switch]

 

I would probably be more inclined to believe that its the solicitor's poor office systems and procedures that caused the delay if the report has been around since 11 March especially as they appear to have been galvanised as soon as the order hit their desk. That's no excuse of course.

To deliberately withhold an expert report in breach of a Court order and thereby risk putting the client's entire case in jeopardy by being disbarred from relying on the report (assuming it supported his case) would be asking for a professional negligence claim against them. Rather than have misgivings, if I were you, I'd be taking comfort in the fact that that their case preparation is so shoddy.

 

Many thanks for your post BotB, that does give me some confidence that I am being treated as an equal.

 

With regards to the late submission of the report, i'm not so sure it's down to the solicitors poor office systems. The defendants solicitors wrote to me after the last Bank Holiday to advise me that the defendants expert witness has been further delayed and an additional 7 seven days was required to complete the report and that the 1st may Bank Holiday has further delayed him.

 

I really do not see how a report signed and dated on the 11th March can be affected by a Bank Holiday which fell on 1st May.

 

I will as you suggest contact my expert witness to see if he has sufficent time to address the defendants report. Although my experts response does not form part of an Order yet I will write to the Court before the Case Management Hearing on 2nd June with a short explanation as to why there will be no response from my side in time for the 2nd June.

[BotB]

I will write to the Court before the Case Management Hearing on 2nd June with a short explanation as to why there will be no response from my side in time for the 2nd June.

 

Yes that's exactly the right thing to do.

The discrepancy with the dates is odd. Unless the report has been wrongly dated 11 March when it should have been 11 May?

[Switch]

 

Yes that's exactly the right thing to do.

The discrepancy with the dates is odd. Unless the report has been wrongly dated 11 March when it should have been 11 May?

 

 

Thanks BotB, I will keep this thread updated as things progress.

 

Regards

 

Switch

[Switch]

This topic was closed on 09 March 2019.

If you have a problem which is similar to the issues raised in this topic, then please start a new thread and you will get help and support there.

If you would like to post up some information which is relevant to this particular topic then please flag the issue up to the site team and the thread will be reopened.

- Consumer Action Group