Acknowledge of Service without a Particulars of Claim - CCMCC

[Ssssssssss]

21 e should be Claimant/Part 20 Defendant

OK great - I will make those updates. It's likely to take me over the weekend.

I was thinking to add also something about the following ? :-

1. They are accusing us of not meeting the order regarding our schedule but 7 days after they sent us their schedule, they sent us a letter saying they had added photos to their schedule and sent them to the court. They can hardly complain at us when we haven't updated our schedule at all

2. That they are expecting one sided disclosure of information while having refused (before the court case got that far) to give us any of the receipts and other information we have asked for. Disclosure should be mutual, not one sided so that one side holds all the cards.

3. We didn't bring litigation as like you said, we are not litigious. We had already contacted an ADR scheme ( the furniture ombudsman) when out of the blue we received the claim form from the other side. (who hadn't responded to our request to use an ADR scheme and didn't write a letter before action - I do note though that this might give them a chance to doctor some more documents as they already lied to the judge to say they hadn't stopped talking to us)

4. I could write that they also refused an extension to the deadline for the expert forcing us to write to the court instead ? ( i think you might have said this already too )

5. sent instructions to the expert without copying us in and took 15 days and 3 requests for them to send their letter of instruction which had amendments to all the agreed sections and they did not account for/specify which other documents had been sent.

[jaguarsuk]

21 e should be Claimant/Part 20 Defendant

[jaguarsuk]

What you have instructed the expert is fine.

[jaguarsuk]

Also in 20 c make the following point d

The Defendant/Part 20 Claimant finds it troubling that the Claimant/Part 20 Defendant has written to the expert witness to instruct them to cease work on their report in without the court making a further order. It appears to me that they or their counsel believe they supersede the court and can vary it’s orders at their whim. Enclosed and marked X is communication that the expert will not start their report until this application is resolved and why?

Lets drop them in the shit with the judge

[Ssssssssss]

Here you go....

21. Paragraph 23 is neither admitted nor denied, but the Defendant/Part 20 Claimant oppose such an order as follow:
a. The Claimant/Part 20 Defendant has not applied in their application dated 02/092019 for any interim order in part 3.
b. The Claimant/Part 20 Defendant consequently has supplied the attached order they actually seek.
c. The Defendant/Part 20 Claimant respectfully requests that the Claimant/Part 20 Defendants request for an interim order be refused and should he wish to pursue such an order he make the appropriate application with fee.
d. The expert has already been paid and completed the inspection, the report being stopped at this stage seems in the opinion of the Defendant/Part 20 Claimant counterproductive to expeditious justice.
e. This whole application appears to the Defendant/Part 20 Claimants attempt at preventing the expert report as he suspects the outcome will not be favourable to him.

And reword 22

The Defendant/Part 20 Claimant has instructed the expert to continue to produce their report to the deadline as ordered by the court on XX/XX/2019 and only to cease should the court so order.


We can't ask for an interim order after asking for them to be told to make a proper application.

Thanks so much Jaguarsuk - I'll make these amendments today.

I originally wrote to the expert the following (should i still go back to them again ? They haven't replied but i have given them a deadline to let us know by :-

Thank you for attending our property last Thursday and also the time you have already expended on this matter.
We write in response to your email of 10^thSeptember. We inform you that we have no prior knowledge of the information in the letter sent to you and copied to us on the 10^thSeptember by xx Solicitors.
We would advise that the only court direction and order that is active and in place is the one giving the deadline of 18^thSeptember for the filing of a report. No further court orders/directions exist and none have been issued by the court.
Due to that deadline and court order, and payment already having been made to you, we would ask that work on the report continue in order to meet that deadline until such time as the court itself informs otherwise.
If you believe the deadline won’t be met then let us and the court know by Friday or Monday as this will give us time to review the situation.

[jaguarsuk]

Here you go....

21. Paragraph 23 is neither admitted nor denied, but the Defendant/Part 20 Claimant oppose such an order as follow:
a. The Claimant/Part 20 Defendant has not applied in their application dated 02/092019 for any interim order in part 3.
b. The Claimant/Part 20 Defendant consequently has supplied the attached order they actually seek.
c. The Defendant/Part 20 Claimant respectfully requests that the Claimant/Part 20 Defendants request for an interim order be refused and should he wish to pursue such an order he make the appropriate application with fee.
d. The expert has already been paid and completed the inspection, the report being stopped at this stage seems in the opinion of the Defendant/Part 20 Claimant counterproductive to expeditious justice.
e. This whole application appears to the Defendant/Part 20 Claimants attempt at preventing the expert report as he suspects the outcome will not be favourable to him.

And reword 22

The Defendant/Part 20 Claimant has instructed the expert to continue to produce their report to the deadline as ordered by the court on XX/XX/2019 and only to cease should the court so order.


We can't ask for an interim order after asking for them to be told to make a proper application.

[jaguarsuk]

Hold fire actually, we need to reword para 21 because they haven’t actually applied for the interim order and should have on the N244, so we’ll attack it from that angle and ask the judge order them to apply for an order if they want one.

Just need to come up with the correct wording.

Go back to the expert and point out that now you are in possession of their application you can see they have asked for an order to stop their work in their Witness Statement, but haven’t actually applied for one.

That you believe the request will fail and indeed will be opposing the request on the grounds they have not applied for one, so the expert should please continue in their work until such point as any order is made as if they do not THEY not the Claimant/Part 20 Defendant would be in breach of the last order of the court and may be found in contempt of the court if they breach it.

And if they need a further extension to the deadline please write to the court to inform them.

Hopefully that’ll keep the expert working as this could be listed for a hearing weeks away and if we can stave off that interim order the application might be a mute point by then.

[Ssssssssss]

Sorry if this loses formatting as it's posted.


I <<YOU>> am the Defendant/Part 20 Claimant in this matter and the will make this statement as follows;

1. .....

oh my gosh thank you so much Jaguarsuk. I can't thank you enough for this.

I will print this out this evening and go through it and then draft something. Should i draft it as a general letter or a "response to witness statement" or my own witness statement ?

One other thing I noticed, in their covering letter, they mentioned an application notice for the interim order too but that wasn't contained in our bundle of documents. Should we be asking for this now directly to the other side ? OR do they mean that its all in one application notice ?

[jaguarsuk]

Sorry if this loses formatting as it's posted.


I <<YOU>> am the Defendant/Part 20 Claimant in this matter and the will make this statement as follows;

1. I oppose the application of the Claimant/Part 20 Defendant to strike out the Counterclaim on the basis that it is an abuse of process designed to frustrate the expert witness reporting, that I have real prospect of succeeding on the counter claim and have complied with all orders of the court contrary to the accusations of the Claimant/Part 20 Defendant.
2. I will now address points made in the Witness Statement by the Claimant/Part 20 Defendant referring to them by their numbered paragraph.
3. For the avoidance of doubt where a paragraph is not addressed in this statement it is denied.
4. Paragraph 5 is admitted, clearly our position is of the opposite and this is why we are engaged in litigation and the court has ordered evidence of an expert witness to settle the dispute.
5. Paragraph 6 is admitted and is the reason the court has ordered an independent expert witness report to resolve the dispute.
6. Paragraph 7 is neither admitted or denied, the Defendant/Part 20 Claimant had cause for concern over the standard of work and consulted tradesmen as persons with more knowledge than them who confirmed their fears. Subsequently they sought redress from the Claimant/Part 20 Defendant who denied liability and filed his claim.
7. Paragraph 8 is neither admitted of denied,
   1. CPR Part 20 places no obligation on the Defendant/Part 20 Claimant for disclosure at the time of filing a counter claim.
   2. the Claimant/Part 20 Defendant did not seek disclosure before filing his reply via CPR Part 31.
   3. The court gave directions that it will order disclosure in the hearing of XX/XX/2019.
   4. There if no obligation upon the Defendant/Part 20 Claimant to disclose documents until the court now orders.
8. Paragraph 9 is neither admitted nor denied, all the tradesmen were quoting for the same amount of work to be done and therefore the quotes are similar. It strike the Defendant/Part 20 Claimant that the Claimant is being disingenuous in pretending not to grasp such a concept.
9. Paragraph 10 is denied,
   1. I refer the Claimant/Part 20 Defendant to paragraph 7 of this witness statement. He had opportunity for disclosure which passed when he filed his reply to the counter claim and will receive it when the court orders.
   2. The reasonable grounds upon which the claim is defended and the counter claim is brought are that the Claimant/Part 20 Defendant entered into a contract with the Defendant/Part 20 Claimant and failed to fulfil the terms of it resulting in a loss to the Defendant/Part 20 Claimant.
10. Paragraphs 11 and 12 are neither admitted nor denied, I refer the Claimant/Part20 Defendant to paragraphs 7 and 9a of this witness statement.
11. Paragraph 13 is neither admitted nor denied, the Defendant/Part 20 Claimant filed and served a schedule as ordered.
12. Paragraph 13 is neither admitted nor denied, it is not the place of <<NAME>> Trainee Solicitor to try to interpret the courts thinking based on a hearing for which they were not even in attendance as admitted in Paragraph 15 of their statement.
13. Paragraph 15 is neither admitted nor denied, <<NAME>> Trainee Solicitor is advised as they were not in attendance at the hearing nor were the Defendant/Part 20 Claimant.
14. Paragraph 16 is neither admitted nor denied,
    1. At no point has the Defendant/Part 20 Claimant purported that three quotes obtained prior to the hearing of XX/XX/2019 had been itemised, merely they were three quotes of those figure. Complying with the order of the court meant engaging the tradesmen a second time causing delay in being able to fully comply with the order.
    2. The Defendant/Part 20 Claimant were not made aware due to an oversight on the part of their lay representative in communicating the requirements, but as Litigants in Person struggling to comply with the order of the court communicated such in good faith. They respectfully apologise to the District Judge XX and the court for this oversight.
15. Paragraph 17 is denied,
    1. The court saw the schedules filed and served by both parties sufficient in nature as to order an extension to the time allowed for the expert witness to file their report. As the expert is not reporting on the cost of remedy only the quality of the work this does not prejudice their ability to report accordingly.
    2. It was the intention of the Defendant/Part 20 Claimant to disclose a finalised schedule when disclosure is ordered by the court or earlier should the court have so directed. In any event the court can only rule on amounts in the schedule where the expert finds issue with the works and I would have thought that to be an advantageous position to the Claimant/Part 20 Defendant.
    3. I refer the Claimant/Part 20 Defendant to paragraph 9b regards the reasonable grounds for bringing the counterclaim.
16. Paragraph 18 is denied,
    1. The Defendant/Part 20 Claimant is not litigious by nature and sought to remedy this issue without need of court proceedings. The counter claim was raised as a last resort to recover their loss after the Claimant/Part 20 Defendant has refused to resolve the matter choosing instead to drag it through the court.
    2. It is noted that despite the verbose protestations of the Claimant/Part 20 Defendants Trainee Solicitor that they appear to be trying to base the claim and counter claim on any other aspect they can other than expert witness who has not yet reported as ordered by the court.
17. Paragraph 19 is neither admitted nor denied, but the Claimant/Part 20 Defendants concern with the Overriding Objective in our view should be directed more closely at his counsel who have be lethargic in agreeing the instruction letter to the expert due to their "case load" and then again in paying the experts invoice due to "staff sickness." One might suggest the last thing the Claimant/Part 20 Defendants counsel wants is expeditious justice by their actions and that this application is a cynical ploy to slow proceedings further.
18. Paragraph 20 is denied,
    1. I refer the Claimant/Part 20 Claimant to paragraph 9b of this witness statement again for the reasonable basis of the claim.
    2. The photographs provided in MS/3 are of poor quality and are clear of nothing.
    3. The experts report will definitively measure the level of care and skill taken by the Claimant/Part 20 Defendant
    4. CPR Part 20 makes no provision for disclosure and the Claimant made no part 31 request, the Defendant/Part 20 Claimant has complied with all of their obligations under the Civil Procedure Rules.
19. Paragraph 21 is denied,
    1. The Defendant/Part 20 Claimant refers the Claimant/Part 20 Defendant to paragraphs 7 and 9b of this Witness Statement.
    2. The Defendant/Part 20 Claimant clearly provided the issue in the schedule as ordered by the court.
    3. The Defendant/Part 20 Claimant is confident the expert witness evidence will support those issues.
    4. The Defendant/Part 20 Claimant had to instruct the expert witness due to the Claimant/Part 20 Defendant refusing to agree a single instruction letter and the deadline closing for the report. The Defendant/Part 20 Claimant had to request an extension for the report as a result of that delay. The expert has had to "chase" the Claimant/Part 20 Defendant for payment of their fees to commence the inspections of works and report. Hardly cooperative in the opinion of the Defendant/Part 20 Claimant.
20. Paragraph 22 is neither admitted nor denied,
    1. The Defendant/Part 20 Claimant refers the Claimant/Part 20 Defendant to paragraph 7 of this Witness Statement.
    2. The Defendant/Part 20 Claimant respectfully draws the attention of the court to paragraph 19d of this witness statement with regards the delay in the expert being able to meet the deadline ordered by the court
    3. It is averred the delay in filing this application is designed to ensure the expert cannot file their report in time for the deadline and will not file a report that will definitively prove the position of the Defendant/Part 20 Claimant. Enclosed and marked X is communication that the expert will not start their report until this application is resolved.
21. Paragraph 23 is neither admitted nor denied, the Defendant/Part 20 Claimant respectfully request that no interim order preventing the report being filed is granted as this will ensure the most expeditious justice should this application be defeated. The expert has been paid already and completed the inspection, the report being stopped at this stage seems in the opinion of the Defendant/Part 20 Claimant counterproductive to expeditious justice.
22. The Defendant/Part 20 Claimant respectfully request that this application be dismissed on the grounds that it is an abuse of process categorised by its timing, lack of substance and intention to halt expert evidence which would expedite justice as well as further the Overriding Objective.
23. The Defendant/Part 20 Claimant respectfully request that ahead of any hearing of this application that an interim order be made to the expert witness to continue to produce their report and provide a date the court sees fit it should be filed.

[jaguarsuk]

Absolute rubbish and a clear attempt at wasting time.

The whole point of the court ordering the expert is to determine those issues, a waste of £255 and I'll comer back with something after lunch.

[Ssssssssss]

Yes they can and they're supposed to serve a copy on yo, which they will in time and then the court will set a hearing and you'll have opportunity to file a Witness Statement to oppose the application. It's all designed to delay, if the expert report is in your favour that'll blow their application out of the water hence needing them to continue with it.

OK - so we received the following attached documents in the letter box post today.

The first is their witness statement and the last four are the exhibits that i've separated out due to file size issues.

The exhibits they have submitted are nothing new. The first is our defence and counterclaim document, the second is our schedule of issues and the third and fourth are their doctored and low res pictures.

[jaguarsuk]

Thanks Jaguarsuk, I'll send a letter to the expert now and fingers crossed he carries on.

Can the other side file an application without telling us or us knowing its contents ? Seems crazy that they can file something that might be looked at by the court and yet we can't answer it because we don't know what it is

Yes they can and they're supposed to serve a copy on yo, which they will in time and then the court will set a hearing and you'll have opportunity to file a Witness Statement to oppose the application. It's all designed to delay, if the expert report is in your favour that'll blow their application out of the water hence needing them to continue with it.

[Ssssssssss]

Thanks Jaguarsuk, I'll send a letter to the expert now and fingers crossed he carries on.

Can the other side file an application without telling us or us knowing its contents ? Seems crazy that they can file something that might be looked at by the court and yet we can't answer it because we don't know what it is

OK, I've just sent a polite but firm letter to the expert.

[Ssssssssss]

Don't worry until you have seen the application, given that the expert has not reported it'll be interesting to see exactly what the grounds they think they can strike the counter claim out are.

It strikes me as more game playing from them and i would advise the expert that they have been paid for their services already and the report should be filed as ordered by the date of the court. Regardless of the application they have been paid to produce the report and one is expected by that date.

Seems to me they are trying to prevent that report getting filed knowing the expert would pause writing it. You just need to stand firm that regardless of what happens in the claim the expert has been paid for a service already and should deliver that service in the timescales agreed. Politely remind them firstly, but if they do continue to say they won't write it warn them that you will consider pursuing them for any loss as a result their failure to deliver their service on time as agreed.

I'd hazard a guess that they'll withdraw their application if the report is filed timely.

Litigation is a game until the hearing, it's about out manoeuvring your opponent to advance your position and if they can somehow stop that report being filed on time your defence and counterclaim isn't as strong.

Thanks Jaguarsuk, I'll send a letter to the expert now and fingers crossed he carries on.

Can the other side file an application without telling us or us knowing its contents ? Seems crazy that they can file something that might be looked at by the court and yet we can't answer it because we don't know what it is

[jaguarsuk]

Don't worry until you have seen the application, given that the expert has not reported it'll be interesting to see exactly what the grounds they think they can strike the counter claim out are.

It strikes me as more game playing from them and i would advise the expert that they have been paid for their services already and the report should be filed as ordered by the date of the court. Regardless of the application they have been paid to produce the report and one is expected by that date.

Seems to me they are trying to prevent that report getting filed knowing the expert would pause writing it. You just need to stand firm that regardless of what happens in the claim the expert has been paid for a service already and should deliver that service in the timescales agreed. Politely remind them firstly, but if they do continue to say they won't write it warn them that you will consider pursuing them for any loss as a result their failure to deliver their service on time as agreed.

I'd hazard a guess that they'll withdraw their application if the report is filed timely.

Litigation is a game until the hearing, it's about out manoeuvring your opponent to advance your position and if they can somehow stop that report being filed on time your defence and counterclaim isn't as strong.