Court claim (goods not delivered - taken supplier to court)

[R0b]

Costs are not included in your witness statement. You can file a costs schedule at least 48 hours before the hearing and also serve it on the defendant, though I would probably give it a bit more time if you are emailing and make sure the subject line includes the date and time of the hearing so the court actually deals with it.

The judge will decide which evidence he or she prefers based on what's submitted, so there is no back and forth burden of proof. The burden starts with one party, then shifts to the other to prove their case and a judge decides who had the better argument.

If he has made an offer of settlement then you should consider it, particularly if it is close to what you were asking for in your claim and at least respond to it. The without prejudice discussions are part of the rule of privilege, that is communications between parties that are a genuine attempt to reach settlement cannot be submitted as evidence as to liability. It can only be used as a means when a judgment has been given and there is the issue of costs. It is not necessary to have the letter or email with the 'without prejudice' heading, so long as the contents of the email are a genuine attempt to settle then it will be covered.

If you are worried about him using this in court as evidence, then you may want to write as part of you response that these communications are protected by privilege and should not be submitted as evidence to the court. If he intends to use them then you will object and ask the court to adjourn the hearing and set a new hearing with a different judge, as well as seeking wasted costs from him.

[gio70]

Thanks again R0b, all is noted - very helpful response, appreciate it!

I will write to them again and propose a settlement that includes my recent (extra) costs (the hearing fee of £55, as well as the extra postal charges - around £50) that I've had to incur throughout this - that will be in addition to what I've proposed to them before (£180). I will also remind them about the privilege, as you suggested.

I am going to attach the whole "without prejudice" correspondence in two pdf files: one is their side, the other is what I have offered/responded. A brief chronology:

2021-01-06 - Defendant making an offer to settle for £100 (covering £50 court/case fee + £50 on top);
2021-05-02 - My response, not accepting their offer, but offering to settle for £180 that covers £130 extra that I've had to pay for the printer + £50 for court/case fee;
2021-05-07 - Defendant response accepting this offer and asking me for my bank details for payment;
2021-05-11 - My response, saying that I am unable to give them my banking details, indicating that I'd accept payment to my credit card, cheque or postal order;
2021-05-24 - Defendant response, saying they cannot pay to my credit card, they cannot issue a cheque due to COVID-19 and again asking for my bank details;
2021-05-29 - My response, saying that if they cannot pay to my credit card or issue a cheque (very strange that one - see next!), they can always go to the nearest post office and issue a postal order. Also warning them that if I do not get payment that is cleared by 13 June 2021 (two weeks from the date of this letter), it is unlikely for me to accept that offer of £130 as my costs are going to go up after that date (I was due to pay £55 hearing fee 3 days after that date);
2021-06-09 - Defendant response, stating that, apparently, their finance department can now issue a cheque and whether I am still accepting this offer to settle. A few things to be noted in that letter:
1. There is no "without prejudice" heading;
2. They quote a few selected statements from my previous "without prejudice" letter (this is why I think they are sliding towards showing this in court - I hope I am wrong on that);
3. They are asking me whether to accept their offer 3 days before I was due to pay my hearing fee (if I've missed that date, the court would have been free to struck down my case without further order!), making it impossible for me to accept this at this point without losing at least £55.

As I did not respond to that (nothing new to say, as I already pointed out what my position is), they then send me their last letter dated 2021-06-25 (again, no "without prejudice" heading!), which was just before the deadline from the court to submit/use any documents for the hearing, hence why I think they are angling to use the last two letters in court - I intend to do what you've suggested above: ask the court to adjourn the hearing and set a new one with a different judge, as well as seeking wasted costs form the defendant.

Again, though, I am going to respond to them today and offer them to settle for £285 (that is £180, which was my previous offer, £55 extra I've had to pay for the hearing fee and £50 for my expenses - mainly postage).

Any thoughts?

[gio70]

R0b (and anybody else): given the above, if the supplier presents the letter dated 2021-06-09 (from above) as evidence and/or rely on it before the issue of costs arises, am I right in assuming that is a breach of the rule of privilege and therefore I can ask the judge to adjourn the hearing and set a new one with a different judge? What if he says "no"? What then?

Also, I just realised that the hearing won't be in court, but by video.

That presents me with a few challenges: Normally, I was going to bring all the "without prejudice" correspondence with me at the court and present it when the time comes (after the hearing, when we come to discuss costs), but since this isn't going to happen, how do I get these to the judge - I can't just send them to the court as this will be a violation of the same rule of privilege, so what do I do then?

Finally, to send my costs to the judge (and the other party), do I have to fill in N260 form? If so, I am not sure what to put in there: my fees are, generally, in 3 groups: the court fees (court and hearing fee), additional charges for these (I issued postal order for each court fee, so there is an additional charge for each) and postage (around 60 odd quid).

Thanks a lot in advance.

[R0b]

You should intervene and explain to the judge the contents of that letter is privileged and should not have been revealed to the judge. It ought to be worth mentioning that they were warned by letter in advance of the warning but have nevertheless ignored that warning. The judge at that point should adjourn the hearing and withdraw from the case. To give you an example, you can read about a case where a litigant in person did exactly this in the High Court and then had to pay costs of £10,000 as a result of the hearing having to be adjourned. He appealed to the Court of Appeal but they were having none of it, short answer being there are no special privileges for litigants in person (link here). If this happens, you should also ask for costs.

Otherwise, costs are fixed on small claims track and they should be awarded provided you are successful and you ask for costs otherwise the rule will be no order for costs.

The other way of getting costs is if they have behaved unreasonably and the bar for that is generally high. The fact they refused to accept an offer is not itself a reason to say there is unreasonable behaviour. If you cannot provide the evidence to show this then a separate costs hearing might be ordered.. though it's possible if you lose that then you could end up paying for costs based on a costs hearing. Be careful what you wish for and don't try to bite off more than you can chew.

[gio70]

Awesome, thanks again R0b - I've made my notes re: "without prejudice" breaches (or the possibility of them).

One thing I am still unsure of: the entire "without prejudice" correspondence - how do I send it to the judge (or do I have to)? This is straight-forward if it was face-to-face hearing - I just hand over that correspondence when costs are discussed (after the case has been determined), but since this will be via video (not going to go to the court because of COVID), what should I do then?

One thing to mention (I am yet to test this): in theory, the program/app that I will be using for the hearing allows files to be shared, so do I rely on that and basically share the files with all other parties (judge+defendant) when the time comes?

I don't want to be in a situation where I find myself with my pants down (so to speak), where I could not present that correspondence to the judge when costs are discussed.

On the costs themselves: from what I understand, for the small claims track there are fixed costs (£80), court fees (£50 for the claim and another £55 for the hearing) and I could also claim loss of earnings costs for the actual hearing attendance (£95, I think), but what I am not sure of is do I have to prove any of these?

In other words, do I have to present receipts for the "fixed" costs (they are roughly of that amount, I have to say) or do I just leave this?

Same for the loss of earnings - what evidence, if any, do I need to include that I "lost" earnings due to having to attend a court hearing?

As always, I appreciate the help and assistance with the above, many thanks!

[ostell]

For earnings a pay slip

[gio70]

Thanks Ostell, I was thinking the same thing, though, do I "blank out" the private details from that slip (i.e. my NINO, etc)? I am not very keen on sharing these (particularly with the other party) if I can help it.

[ostell]

Take a blanked out copy but have the unredacted available in case the judge asks for it

[gio70]

Good thinking, will do. Thanks again Ostell.

The problem with "sharing" remains though - I am not liking the idea of depending on something else (technology in this case) - not sure I can do it using it either.

It was easier if I was attending the court hearing face to face - I just bring what's needed and take it with me in the courtroom, but now I have to depend on something else and hope that it works - I'll be stuffed if it doesn't.

[R0b]

Why do you want to share the without prejudice correspondence, what are you trying to achieve?

As costs on small claims are fixed, the judges generally assess those costs summarily rather than a detailed assessment. There is generally no requirement for you to prove the loss of earnings (which is reserved for self-employed people).

My experience pre-covid was that unless there was a real dispute about costs in the rare instance a court would order detailed assessment. My understanding is that nothing has changed since covid and costs are still being summarily assessed.

Generally I have simply given my salary and hourly rate but never needed to prove that is the case - bear in mind documents are public record once they are on the court file and can be requested by third parties. If you feel like you need to provide something, you can do a costs schedule and submit evidence usually 48 hours in advance of the hearing. It needs to be served on the other side as well as the court.

[gio70]

Thanks R0b. I always assumed that in order to determine costs, I have to provide the relevant correspondence/evidence (whether explicitly asked or not) that I have made an effort to settle the case, hence my question how do I do that, given that I won't be attending the court?

Noted your comments about the documents being public - good to know (I wasn't aware of this).

[gio70]

So, I am assuming that I will only share the "without prejudice" correspondence if asked by the judge (possibly when costs are discussed) and that I do not have to provide it in advance of the hearing. Is that correct?

Obviously, if the video app won't allow me to share anything (for whatever reason) I'll have to tell the judge and let him/her deal with it (it is not my fault if the app the court asked me to use can't/won't provide these facilities, given that I have also been asked not to attend the court in person).

As for evidence of costs (like receipts and payslips) I'll have these scanned and ready (with 2 versions of my payslip - one real and one with the sensitive data removed) - just in case the judge asks me to provide them. Again, that will be dependent on me being able to share these via the app.

Finally, I am attaching my witness statement that I have submitted after I've had to redo it as a result of your very good suggestions R0b - could you please have a look at it, if you have a chance, and let me know your comments?

Thanks in advance.

[gio70]

Quick update on this: the hearing was stood down due to lack of judges and will be rescheduled for a later date (I am waiting for the court to let me know when).

In the meaintime I have a question: how do I request to see a copy of the documents (all of them!) submitted by the defendant to the court?

I've seen PD 5 (5.4B) and PD 5A (4.2) sort of deal with that, but it is not clear to me whether I can request these documents and how do I go about it? Again, I am after all the documents (including any correspondence) that has been submitted by the defendant to the court.

Any help?

Thanks in advance.

[gio70]

Any help with this? Anyone?

[R0b]

You need to read PD 5.4D(1)(b)

Prescribed fees can be found in EX50 here on page 11.

You may need to be persistent because a lot of court staff are not familiar with this since it's not a routine request. I would suggest you make specific references to the relevant PD paragraphs and also EX50.