Expert Statement of Issues - Defendant and their expert are not cooperating

[NBluth]

Hi,

I had a separate thread on my ongoing claim with a house builder, https://legalbeagles.info/forums/for...-house-builder

The last court order, required a without prejudice discussion between the experts before the filing of Witness Statements, and a statement writing up of what they agreed and disagreed on. The Defendant‘s expert was unable or unwilling to provide any times until the day of the deadline (which was six weeks after the court order was issued, which they denied receiving). Whilst the experts had the meeting last Thursday, and didn’t agree on much, my expert drafted the required report under CPR 35 and sent it to the Defendant‘s expert within a couple of hours.

Both the Defendant’s solicitor and expert have refused to state when they will return the signed statement under CPR 35, which is now overdue. CPR 35 says this should be completed within 7 days.

Witness Statements and documents also need to be submitted in a weeks time, so I get the sense they are doing this on purpose to buy time.

Should I make an application, such as an unless order, so that they have to return the statement?

Thanks in advance

[pt2537]

Hi there

The most important thing to do is to make sure you comply with the deadlines , if you dont you could be in trouble.

If the otherside break the Courts order, then it depends on what the order says, if it has a sanction for non compliance then the sanction bites and they need relief from sanctions under CPR 3.9

If there is no sanction then you should apply to the Court in principle although be careful they dont ask for an extension of time as that could leave you in difficulty if you refuse in light of the current covid 19 pandemic

[NBluth]

Hi,

Thank you for responding so quickly. The order doesn’t say what happens if there is non compliance with it.

I can demonstrate that I have tried to comply with the order (as my expert went it ahead of the deadline, and I have chased their response). I have also asked them if they need more time, and by when will they return the statement, but so far they have not responded to my emails.

In terms of complying with deadlines, if it gets to next Thursday and they have not responded, should I still file my witness statement and exhibits?

[pt2537]

you must do your best to comply with the Court orders. if you cant then you must apply to the Court and tell them that you cannot comply because of the other sides failings.

[NBluth]

Thanks - I think I can comply with the court order, and deliver my witness statements and documents as stipulated in the court order as I've got a near final draft of my witness statements and exhibits.

If there is any feedback on my draft witness statements, that would be massively appreciated? (The examples on line are scarce, which I understand because each case is unique but it makes it difficult to know whether I've got it right. I'm hoping I'm not too far off, as I've seen WSs that are collectively this long for £100 parking tickets...).

[NBluth]

So the Defendants expert replied after 7 days and asked for the joint statement to be substantially rewritten. It’s all pointless as the experts disagree on pretty much everything, and it definitely feels like the Defendant and their expert are being obstructive since the Practice Direction 35 paragraph 9.6 says the joint statement should be finalised within 7 days of the discussion.

If the joint statement is still not finalised by this Tuesday, I believe I should still post my witness statements and evidence and explain in my WS that I tried my best to follow the court order. I assume it can be finalised before the actual hearing as that isn’t happening before 6 August 2020.

So far the Defendant has not asked for an extension but I’m not sure what games they are playing

For completeness, the order says,

2. By 4pm on 9th July 2020 both parties must send to the Court, and the other party copies of any evidence upon which they intend to rely, and the signed statements of themselves and all of the witnesses on whom they intend to rely

3 The Claimant and Defendant each have permission on the written evidence of an expert surveyor...
a) [Names]
b) Unless the reports are agreed, there must be a without prejudice discussion between the experts.....and that statement must be sent to the parties by 4pm on 25 June 2020.