Acknowledge of Service without a Particulars of Claim - CCMCC

[Ssssssssss]

Why on earth are you letting the litigation run in such a way, the CPR deals with experts, it deals with Single Joint Experts and how each party can if required send their own instructions.

First, go back to the Court order, if its a chartered surveyor you have been ordered to go with then get on the RCIS website and find one, speak to them confirm they have expertise in the field and can provide a CPR 35 compliant report. Send their CV to the other side, if they wont agree on an expert then apply to the Court for further directions.

At the end of the day if you instruct an idiot, whose fault is it? The answer willl be jointly yours and the other sides, so make sure you do what you have to do to protect your position, if as it seems from your posts above the other side have suggested someone who doesnt appear to have the expertise to do the works needed you need to take charge of the reigns here and get the case back on track.

Look at CPR 35 it should guide you as to what is required,

Hi pt2537, They agreed our expert last wednesday (which was the deadline). They then stalled and then only when we pushed them this week to agree the instruction letter, did they give us a new quote. We already told them we wouldn't review anything else they send but they have purposefully tried to lay the groundwork for going back on their decision of the agreed expert. We have been trying to follow the CPR's etc.

[pt2537]

Hi pt2537, They agreed our expert last wednesday (which was the deadline). They then stalled and then only when we pushed them this week to agree the instruction letter, did they give us a new quote. We already told them we wouldn't review anything else they send but they have purposefully tried to lay the groundwork for going back on their decision of the agreed expert. We have been trying to follow the CPR's etc.

Hi there

Ok well CPR 35 states

35.8

(1) Where the court gives a direction under rule 35.7 for a single joint expert to be used, any relevant party may give instructions to the expert.



(2) When a party gives instructions to the expert that party must, at the same time, send a copy to the other relevant parties.



(3) The court may give directions about –


(a) the payment of the expert’s fees and expenses; and



(b) any inspection, examination or experiments which the expert wishes to carry out.



(4) The court may, before an expert is instructed –


(a) limit the amount that can be paid by way of fees and expenses to the expert; and



(b) direct that some or all of the relevant parties pay that amount into court.



(5) Unless the court otherwise directs, the relevant parties are jointly and severally liable^(GL)for the payment of the expert’s fees and expenses.

So if you cannot agree the letter of instruction you are allowed to send your own, as long as you notify the other side first. I fail to see why they are being ostructive but i think you need to make sure you have complied with the Rules even if they havent.

[Ssssssssss]

Hi there

Ok well CPR 35 states

So if you cannot agree the letter of instruction you are allowed to send your own, as long as you notify the other side first. I fail to see why they are being ostructive but i think you need to make sure you have complied with the Rules even if they havent.

Yes - i think they are being obstructive because they knew an authentic expert will see the faults. And opening up will show that dot and dab tiling was used which is against industry standards. They are trying to prolong this all for that reason.

[jaguarsuk]

Hi there

Ok well CPR 35 states

So if you cannot agree the letter of instruction you are allowed to send your own, as long as you notify the other side first. I fail to see why they are being ostructive but i think you need to make sure you have complied with the Rules even if they havent.

The expert was proposed by the OP and agreed with by the solicitor not the other way around, but now post that they are trying to get their expert considered and they can go whistle.

I don't see a problem with a joint instruction per se, but it's become a farce and enough is enough. Here's a draft...

Him vs You - Claim number XXXXXXXX

Dear ES

I write in response to your letter of XX/XX/2019 regarding the above matter and I would remind you that your case load is neither of relevance nor concern to me along with their deadlines. My only concern is with this matter.

Thank you for the clarification regarding the CPR 15 reference, we are aware that we did not make reference to exploratory works in our first draft, that's the point of a draft, it is a preliminary version of a piece of writing not a final version.

The constant back and forth regards this letter is neither helpful or expeditious with a deadline in the court order now 21 days away.

As such I refer you to CPR 35.8(1), it is now our intention to issue our instruction letter to the expert as the court order did not order joint instruction in the matter, merely agreement on the expert to be used.

The quotation enclosed by you is irrelevant to us and this matter, your client had ample time to source a proposed expert and put them forward to us for consideration as per the court order, he chose not to and retrospectively doing so now serves no purpose. Had he been so concerned with the potential cost of the expert's report he ought to have made the effort to supply his preferred experts.

Enclosed is a final draft of the letter of instruction, we will be dispatching this to the expert first class post on 2nd August 2019 and will file a Certificate of Service to the court to put this on record along with a copies of the letter of instruction and this letter.

[pt2537]

Personally, having read the instruction letter, i dont think its appropriate for this matter. For starters, while there is no exact science for expert instructions i always include a basic paragraph such as this

CPR 35
We require you to act as an expert witness in the course of these proceedings. You will be aware that in accordance with the Civil Procedure Rules your report must:

1. Give details of your qualifications.
2. Give details of any literature or other material which has been relied upon in the making of your report.
3. Contain a statement setting out the substance of all facts and instructions which are material to the opinions expressed in the report or upon which those opinions are based.
4. Make clear which of the facts stated in the report are within your own knowledge.
5. Say who carried out any examination, measurement, test or experiment which you have used for the report, give qualifications of that person and say whether or not the test or experiment has been carried out under your supervision.
6. Where there is a range of opinion on matters dealt with within the report:
   1. Summarise the range of opinions; and
   2. Give reasons for your own opinion.
7. Contain a summary of the conclusions reached.
8. If you are not able to give an opinion without qualification, state the qualification.
9. Contain a statement that you:
   1. Understand your duty to the court and have complied with that duty, and;
   2. Are aware of the requirements of part 35 practice direction 35 of the Civil Procedure Rules and the protocol for instructions of experts to give evidence in civil claims.

Your report must also contain a statement of truth stating, “I confirm that I have made clear which facts and matters referred to in this report are within my own knowledge and which are not. Those that are within my own knowledge I confirm to be true. The opinions I have expressed represent my true and complete professional opinions on the matters on which they refer.”

We should be grateful if you would contact us within a reasonable time if there are any difficulties in complying with the date for the report.

Finally, we would ask that you forward a copy of the report to instructing solicitors at your earliest opportunity. The defendants will be responsible for your reasonable fees. Please do not hesitate to contact us if we can be of any further assistance.

We look forward to hearing from you in due course.

Also i think the instruction letter directs the expert as to what he has to consider , it says you should not conclude X etc and that really isnt for the instruction letter, the expert should be given details of what the builder did, its for him to inspect those works and conclude whether it was to a reasonable standard. Personally i think the instruction letter is likely to cause a problem or two.

[jaguarsuk]

So Ssssssssss take the draft PT has provided in #170 and amend it as per your court order, as you are jointly liable for the fees.

Add in if you think anything from that doesn't cover your situation, post here and that'll allow review before sending a copy of it with that letter to the solicitor and then the expert themselves.

[Ssssssssss]

Personally, having read the instruction letter, i dont think its appropriate for this matter. For starters, while there is no exact science for expert instructions i always include a basic paragraph such as this



Also i think the instruction letter directs the expert as to what he has to consider , it says you should not conclude X etc and that really isnt for the instruction letter, the expert should be given details of what the builder did, its for him to inspect those works and conclude whether it was to a reasonable standard. Personally i think the instruction letter is likely to cause a problem or two.

I could add that in i guess. And just send it as a none joint instruction. What problems do you think might come up ?
I did originally put a section in about what the builder did but they took it out...

The schedule of issues itself is very detailed though.

[Ssssssssss]

So Ssssssssss take the draft PT has provided in #170 and amend it as per your court order, as you are jointly liable for the fees.

Add in if you think anything from that doesn't cover your situation, post here and that'll allow review before sending a copy of it with that letter to the solicitor and then the expert themselves.

jaguarsuk pt2537

OK - so in terms of the draft letter - I've attached an amended copy here.....

This is a paragraph they told me to remove before - should i put it back in ?

" xxxxx currently has 3 occupants. Mr and Mrs Shah, requested a new bathroom due to their reducing mobility. The bathroom is approximately 3.2m length x 1.4m width and has high sloped ceilings. It is on the upstairs floor. The remit was to remove the old bath and shower that ran along the wall under the big window (lengthwise) and replace it with a differently positioned large shower cubicle. Please see before and after plans.
Additionally, the job included ripping out tiling and new tiling installed, replacing/adding all the fixtures and fittings, building some enclosures, painting, replacing extractor fan, new flooring and electrical installations including relevant Part P certificates.
Work on the bathroom was undertaken from 16^thMay 2018 to 30^thMay 2018.
The quote received from the builders was for the sum of Łxxxx. "

Im just drafting the cover letter now - will post in a moment.

[jaguarsuk]

jaguarsuk pt2537

OK - so in terms of the draft letter - I've attached an amended copy here.....

This is a paragraph they told me to remove before - should i put it back in ?

" xxxxx currently has 3 occupants. Mr and Mrs Shah, requested a new bathroom due to their reducing mobility. The bathroom is approximately 3.2m length x 1.4m width and has high sloped ceilings. It is on the upstairs floor. The remit was to remove the old bath and shower that ran along the wall under the big window (lengthwise) and replace it with a differently positioned large shower cubicle. Please see before and after plans.
Additionally, the job included ripping out tiling and new tiling installed, replacing/adding all the fixtures and fittings, building some enclosures, painting, replacing extractor fan, new flooring and electrical installations including relevant Part P certificates.
Work on the bathroom was undertaken from 16^thMay 2018 to 30^thMay 2018.
The quote received from the builders was for the sum of Łxxxx. "

Im just drafting the cover letter now - will post in a moment.

I wouldn't as it could be seen as leading the expert, you could say "Plans of the proposed work are enclosed along with the builder's quotation for works as an outline of the job specifications." or something similar.

It's obviously useful for the expert to know what they are looking at and what might have changed.

[Ssssssssss]

I wouldn't as it could be seen as leading the expert, you could say "Plans of the proposed work are enclosed along with the builder's quotation for works as an outline of the job specifications." or something similar.

It's obviously useful for the expert to know what they are looking at and what might have changed.

OK - i did put in that a plan would be given but they took that out too. OK - the schedule is pretty detailed though anyway. It does show an after plan.

In terms of the rest of the letter - does it look ok ? The red is what they don't like. And they probably won't like the added CPR section but there is nothing contentious in there...


In terms of cover letter - I've taken yours and drafted it like this ? Does that sound ok ?
--------
I write in response to your letter dated 31^stJuly 2019 regarding the above matter.

We were not aware that any one was on annual leave and no one informed us of such. The letters were copied to two people. In any case, case loads are not relevantto the deadlines set on this matter.

Thank you for clarifying your points regarding CPR 15. We are happy to make the change to the letter to refer to CPR 35 instead.

With regard to exploratory works, opening up works mentioned in the experts covering email which was sent to you and which your client had full access to.Your client would also be aware that,it is for the expert and he shouldbe free to do this if it is requiredbased on the alleged defects.

We also note that our first draft instruction letter was exactly that – a draft.

A named expert was agreed by both parties on 24^thJuly 2019, the deadline for agreement (as ordered by the court) and your client was given the cover letter outlining potential costs and considerations. We made it clear our position regarding experts in our previous lettersand this has not changed. The quotation you have enclose is therefore irrelevant and retrospectively supplying it now serves no purpose.

The back and forth regarding this letter is now threatening the deadlines for the court order to be met by21^stAugust 2019. As such, I refer you to CPR 35.8 (1) and (2) as described in our previous letter to you which outlines thatseparate instruction can be given where agreement cannot be made.

Enclosed is our final draft letter of instruction. We will dispatch it to the expert via first class post on XXX. We will outline the paragraphs that you have already agreed jointly (and have not changed). Any other paragraphs will be clearly marked as additional information we are providing separately.

Should we ask them to sign it ?
--------

[jaguarsuk]

No they shouldn't sign it, you are basically telling them you have had enough of their shite and you are going to instruct the agreed expert on your own. Your just serving them a copy. The letter itself looks fine and I would leave in the red paragraph, but after the first paragraph and before documents add:

On XX District Judge X sitting in the X County Court order the parties in this matter to agree a single joint expert and instruct them to report on the works, pursuant to CPR Part 35.8 (1) and (2) please take this letter as instruction on behalf of both the parties as ordered for you to act in that capacity.

After that you don't need to refer to "The Parties" as you do in the first few words of the documents you can you I or we. You are instructing not the other party.

I would put back in about filing a certificate of service and the copies of this letter plus the instruction letter with the court. They can't threaten you with informing the court of your actions if you are filing with the court your actions and so that puts them back in their box.

[Ssssssssss]

No they shouldn't sign it, you are basically telling them you have had enough of their shite and you are going to instruct the agreed expert on your own. Your just serving them a copy. The letter itself looks fine and I would leave in the red paragraph, but after the first paragraph and before documents add:



After that you don't need to refer to "The Parties" as you do in the first few words of the documents you can you I or we. You are instructing not the other party.

I would put back in about filing a certificate of service and the copies of this letter plus the instruction letter with the court. They can't threaten you with informing the court of your actions if you are filing with the court your actions and so that puts them back in their box.

Very true. Yes - I will do that then. And put back the certificate of service and letter to court. The court should know anyway i guess as its highly likely the expert will overrun.

[Ssssssssss]

Personally, having read the instruction letter, i dont think its appropriate for this matter. For starters, while there is no exact science for expert instructions i always include a basic paragraph such as this


Also i think the instruction letter directs the expert as to what he has to consider , it says you should not conclude X etc and that really isnt for the instruction letter, the expert should be given details of what the builder did, its for him to inspect those works and conclude whether it was to a reasonable standard. Personally i think the instruction letter is likely to cause a problem or two.

Hi pt2537, do you have anything else you refer to that might cause of problem or two (as you mentioned in your post), before i send it ? I've redrafted all based on Jaguarsuk's and your input, so ready to go. Just wondered if you are referring to anything else specifically that might cause an issue - bearing in mind that i suspect these builders are going to use anything and everything to delay this and try and switch experts.

Let me know anyway. I'll send it later tonight or tomorrow AM first thing.

[Ssssssssss]

OK i;ve sent the letter of instruction to the expert via email just now (just about to post it too) as haven't received any response from the other side ( i said i'd send it BY 4pm today. )

I wrote on the email to the expert the following (is there anything else i should say or shouldn't ?) :-

---------
Thank you for your email of 16th July.
RE xxxxx

On 24th July 2019, as ordered by the court, both parties agreed to appoint you as the single joint expert in this matter regarding the bathroom dispute at xxxxx.

We were hoping to get the letter of instruction out to you with supporting documents by Monday this week but there were a few issues.

However, given the timescales in the court order, we cannot delay instructing you any longer. By way of CPR35.8(1) and (2), either party can send you instructions as long as both parties are copied in and therefore the attached letter of instruction is from xxxxxxx and we have copied in the other party.

After discussion with the other party, we would note the following sections and wording in the attached letter of instruction was agreed between both parties (Any remaining wording has been submitted by xxxxxx) :-

-Background
-Documents
-Your Instruction - all but the last paragraph
-CPR35 - this is the standard practice direction for CPR35
-Contact Details
-Timescales
-Fees
-Filing of Report

No final hearing has currently been scheduled and the disclosure of documents between the parties has not taken place as yet.

I would suggest that the other party send you confirmation of this by Monday next week but if issues arise, we may need to consult the court. We will file the letter of instruction sent to you with the court in the meantime.

We will be sending the attached letter and documentation to you via first class post also. If you have any queries or require any further information, please do not hesitate to contact us and the other party.
-----------

[Ssssssssss]

OK - now that everything has been sent to the expert, the other side are kicking off again...

Here is there latest. Any thoughts ?

Just background here in case you don't understand what he is going on about.

- Last thursday we asked them to send us the word doc for draft instructions they wrote so we could amend it and get it agreed and sent out by Monday latest.
- We received nothing back from then at all.
- Tuesday this week - we sent them a note saying we had extracted the text from the PDF and amended it how we wanted and that they needed to tell us what they do and don't agree with and if we don't hear from them we will instruct the expert separately by 2pm on Wednesday. Bear in mind it was exactly the same pretty much except for the paragraph i wrote asking what the process was for exploratory works to be undertaken.
- Wednesday at around 12 we receive a letter from them saying that exploratory works are not needed etc (the letter i posted here redacted before that you helped me respond to Jaguarsuk).
- Wednesday night at around 9pm - I sent the draft letter of instruction and letter saying we are going ahead with instructing the expert and will let the expert know what paragraphs are agreed and which are not.

- Today - at around 3 ish - we sent letter of instruction and documents to the expert.
- Today 4pm - we receive the letter attached here and redacted...

Bear in mind - that its over a week since the expert should have been instructed and he only had 4 weeks in total anyway to do his report. He has also started going on about the quotes again and including without prej settlement stuff in an open letter - AGAIN !


Bear in mind that exploratory works would involve taking off one or two tiles to see if they have used dot and dab tiling and fixed the tiles properly as per industry standards... (we haven't actually asked for it to be done yet - but we would expect it to be done given its the tile fixing that the biggest issue in the case)