Acknowledge of Service without a Particulars of Claim - CCMCC

[Ssssssssss]

I would just go back with this out of the letter.



Is there a reason you don't want to disclose the quotes from the builders until the trail?

Just like not all letters marked without prejudice are, equally not all letter unmarked with it aren't subject to it's privilege. I wouldn't dwell too much on it, but after this letter you really ought to stand by the last two paragraphs.

There's nothing to be gained by arguing back and forth in letters, make sure you abide by the court deadlines and orders. Seems this trainee solicitor thinks they're something special, just let it wash over you and don't bite.

Thanks Jaguarsuk, Ok will do that.

We don't want to disclose the quotes because the quotes are general quotes because all the builders we engaged said they won't quote to patch up someone elses work when they will then be held liable for it e.g. fix one tile, there is a leak,, who's fault is it.

We only had one builder a bit later give us a more detail letter but his estimate was so high level we couldn't use it at the time.

But none of them wanted to get involved. We told them all the issues but they said they would only give us a general quote because it was clear it all needed to be redone from the state of the tiling. Nothing in writing except that one builder though.

The claimant wants the quotes so he can then dispute what we are claiming to be true. Despite the fact its for the expert to see what the faults are now. He doesn't want them for any other reason than to bypass due process and tell the court we don't have a valid counterclaim...but the counterclaim is based on his poor workmanship regardless of the amounts we are claiming surely ? We could just have easily claimed for a full refund without any quotes for example ?

Also the other side have refused point blank to give us any of the receipts and information we have asked for that are material to the claim and that we asked to have sight of since even before this all began. He bought different tiles to the ones we asked for for example but refused to give us the receipt so we could validate what he had done. And many other things like that.

The quotes we have now also are a year old - so can't be relied upon a year later.

We do have a recent quote we got from the one builder we said gave us a report before. That was to help us try and put remedial costs into the schedule of issues.

The claimant has always just tried to attack our information rather than follow process and that is why he wants them now. It isn't for anything else. And as soon as he has them, he would attack them and their validity. The judge told him all the documents were for disclosure and we would much prefer to defend ourselves before a judge than have an open email battle with him at this point.

I hope that makes sense ? Is it going to cause us issues. We do have the remedial cost estimates from the one helpful builder and we recently got the online prices of goods which is what we based the schedule of issues on.

[jaguarsuk]

Hi Jaguarsuk. So, We sent elitist trainee an open letter with some general queries on the case.

In his reply, he then referred to the contents of the without prejudice letter as part of his reply to our open letter. He said "I would like to remind you of the comments in my without prejudice letter to you that the duty of disclosure does not just take place at the disclosure stage in proceedings but is an ongoing duty and your entire counterclaim is based on quotation that our clients have not had the ability to even see and / or review"

I know what to write in the without prejudice letter to this as you've already told me but however in terms of replying to the open letter, I don't want to be told later on that my replies are not open after all because of his discrepency disclosing this in what is meant to be an open exchange.

should i ask him to remove the comments and resend for the avoidance of any doubt?


He has also banged on about the experts openly this time but that is fine as i have your response from the other letter which i can write openly now but just want to make sure it's open reply to an open letter.

Let me know.

I would just go back with this out of the letter.

Him vs You - Claim number XXXXXXXX

Without Prejudice Except As to Costs

Dear Elitist Solicitor

I write in response to your letter of XX/XX/2019 regarding the above matter in the <<PLACE>> County Court.

You ought to know that CPR Part 20 makes no provision for disclosure of documents on filing a Counter Claim and as such we are not obliged to make such disclosure at the time of filing or subsequently of our own volition.

Your client had every opportunity on receipt of the Defence and Counterclaim to request inspection of documents in our statement of case pursuant to CPR 31.14 with agreement to cover our reasonable costs of copying them. He chose not to make any request.

Your client made numerous requests for a copy of the quotations of work on 26^th June 2019 coinciding with the service of the schedule of costs he was required to complete and we felt disclosure prior to their completion would adversely prejudice the claim, so withheld the document at that time pursuant to CPR 31.3(1)(b) to further the overriding objective pursuant to CPR 1.

We are under no obligation at this stage of proceedings to make any disclosure and believe the cost of doing such to be excessive giving disclosure in any event will be ordered at a later stage by the court at our cost.

The court order dated XX/XX/2019 does not order the Defendant to avail the Claimant of three experts witness CV's for him to decide which he might prefer, it orders the parties to act placing equal burden on your client to comply with it. Given he is a contractor it should be much easier and quick for him to provide his choices to consider, curious that he has not?

It is not our intention to litigate by correspondence and as such we will not address any points raised by you or your client in the manner we have previously in any future correspondence.

If you or they wish to make serious offers in the matter put them forward, if you or your client want information make the proper requests in the proper manner and all other exchanges regards documents etcetera will be dictated by order of the court.

Is there a reason you don't want to disclose the quotes from the builders until the trail?

Just like not all letters marked without prejudice are, equally not all letter unmarked with it aren't subject to it's privilege. I wouldn't dwell too much on it, but after this letter you really ought to stand by the last two paragraphs.

There's nothing to be gained by arguing back and forth in letters, make sure you abide by the court deadlines and orders. Seems this trainee solicitor thinks they're something special, just let it wash over you and don't bite.

[Ssssssssss]

Jaguarsuk, just to be clear. We sent him an open letter with some general queries on the case. He then referred to the contents of the without prejudice letter as part of his reply to our open letter.

[Ssssssssss]

Thanks Des8, that's what I was worried about. That this guy's mention of the contents will render it without prejudice too.

It's too complicated for words...

Should I mention the misdemeanor or should I not...:-(. I don't want my reply to be without prejudice by default.


This trainee has also said, we should give him our
Our 3 expert cv's and he'll decide if they are good enough... That we should draft the letter of instruction and he'll amend it how he wants and
That we are responsible for doing this because we are claimant. But then in brackets, part 20 claimants. What happened to his client being the
Claimant then!!! I'm about to tell him to do one but I want to make sure if I do, then it's not without privalege by default because of his discrepancy using the contents of the WP letter openly.

[des8]

Whilst waiting for Jag to reappear in the morning do be aware that the "without prejudice" might apply to the totality of communications subsequent to the original even if not marked as such. There are pages of discussion, and cases galore on this subject

[Ssssssssss]

You can't have both, you can have one or the other. I have included it in the letter and tried to focus them in the last few paragraphs as to where they stand and that we're not playing games here.

Hi Jaguarsuk. So, We sent elitist trainee an open letter with some general queries on the case.

In his reply, he then referred to the contents of the without prejudice letter as part of his reply to our open letter. He said "I would like to remind you of the comments in my without prejudice letter to you that the duty of disclosure does not just take place at the disclosure stage in proceedings but is an ongoing duty and your entire counterclaim is based on quotation that our clients have not had the ability to even see and / or review"

I know what to write in the without prejudice letter to this as you've already told me but however in terms of replying to the open letter, I don't want to be told later on that my replies are not open after all because of his discrepency disclosing this in what is meant to be an open exchange.

should i ask him to remove the comments and resend for the avoidance of any doubt?


He has also banged on about the experts openly this time but that is fine as i have your response from the other letter which i can write openly now but just want to make sure it's open reply to an open letter.

Let me know.

[Ssssssssss]

I have another quick question. So our dispute is with a bathroom fitting and the dispute spans tiling and other issues like the shower tray creaking and the sink and vanity not matching. However the bulk of the issues are tiling and a debate is raging between us and them about the british standards.

However because the dispute spans over things like the shower tray, they have objected to using the tile association to do an inspection. - I suspect they know they will be found out. The judge has asked to find a surveyor or architect but the ones we have spoken to dont know the british and tile association standards. They can do a general report though but they wouldnt probably go down to the detail of the standards. Can i argue that the single biggest issue is tiling and if it needs to be ripped out then everything else needs to be ripped out - therefore can we please have the tile association do the report? They have given us CV's we could submit.

This would mean the other issues dont have any experts report such as the shower tray but given the tray would need to be ripped out to do the tiling again, can we say that its a mute point if the tiling comes back as a write off anyway ?

Just trying to formulate something to say to the judge...

[Ssssssssss]

You can't have both, you can have one or the other. I have included it in the letter and tried to focus them in the last few paragraphs as to where they stand and that we're not playing games here.

Oh my gosh that letter packs a punch ! Yes - I like those paragraphs and it basically says stop all this nonsense - this is meant to be about settling. I've printed it out and am just digesting it fully but the points youve made about them already being in breach are perfect too.

I cant thank you enough.

[jaguarsuk]

OK - cool and no worries about working on multiple cases. I am so relieved to have someone to look at it - we have been trying so hard but its hard when we have no experience so i really do appreciate everything you have done. I think B - they are scared as they know an expert will pick their work apart. i think this is the main driver for them wanting to settle. When they heard that the judge will pick an expert i think that is what might have got them thinking about settling. OK - i should then say that all service of documents should be by post. General communication is fine by email ?

You can't have both, you can have one or the other. I have included it in the letter and tried to focus them in the last few paragraphs as to where they stand and that we're not playing games here.

[jaguarsuk]

Okay, have a look at this and see how you feel about it...

I've approached it from the Solicitor having clearly been told a pack of lies, been a little inexperienced getting on their high horse and with a view to actually just trying to bloody settle this things.

Him vs You - Claim number XXXXXXXX

Without Prejudice Except As to Costs

Dear Elitist Solicitor

We write further to your letter of XX/XX/2019 headed 'Without Prejudice As to Costs,' by virtue of its contents the letter would fall outside such privilege.

Thank you for confirming on XX/XX/2019 that you are now acting for the Claimant/Part 20 Defendant in respect of this matter, however we would be obliged that all service be to the postal address as stated on all court correspondence by us.

We would advise that it is not our intention to litigate by correspondence, we will answer the points you have raised in the letter in this instance in an attempt to settle the matter without need of a hearing, but certainly will not do so in perpetuity.

We would aver that your clients inspection and subsequent offer to remedy the works is an admission of their liability pursuant to the Consumer Rights Act 2015 s.49 that he failed to take reasonable care or skill in the work and having conducted sub-standard work in the first instance we had completely lost faith in his ability to remedy the mistake.

Having obtained three quotes from contractors they may seem high compared to the estimate your client is giving you, however each has stated that they cannot remedy your client's poor work and in fact will have to remove it to be able to do a satisfactory job such is the poor standard of your clients work.

You clients estimates are low by comparison because they propose continuing with their sub-standard work and trying to bodge the job cheaply until a point they can get paid for it. This is not acceptable to us.

The similarity in price is due to the nature of the job being required to be done, much the same as your fees are likely similar to that of a competitor of the same standing and grade. We'd suggest that you're attempting to pick technicalities in our defence and no amount of pontificating from your high horse will change the facts as they stand.

We're glad that you are concerned about CPR Part 1 and furthering the overriding objective, but to clarify we are seeking to have our bathroom renovation completed to the standard requested when your client was asked to quote for the job and have had quotes to that effect.

Further we refer you to paragraph 28 of the defence, your client is in breach of the Consumer Rights Act section 50 in that information that is spoken or written is binding where the consumer relies on it, the admission of the requirement of remedy after declaration of the completion of works demonstrates a breach.

In addition the Consumer Rights Act 2015 section 49 states the trader must perform the service with reasonable care and skill, therefore by admission that remedy is required after the job had been declared complete your client admits he did not complete the job with reasonable care or skill and is in breach here too.

We find your allegations at the end of paragraph 5 of your letter defamatory and will be considering a complaint to the Solicitors Regulatory Authority without further reference to you.

On the subject of quotes, what is preposterous is that a solicitor ought to know that CPR Part 20 makes no provision for disclosure on filing a Counter Claim and as such we are not obliged to make such disclosure. Your client had every opportunity on receipt of the Defence and Counterclaim to request inspection of documents in our statement of case pursuant to CPR 31.14 with agreement to cover our reasonable costs of copying them. He chose not to make any request.

Your client has not made numerous requests for disclosure, he has made one on 26^th June 2019 after receipt of the schedule of costs and we are under no obligation at this stage of proceedings to make any disclosure.

Further we refer you to Paragraph 6 of the Defence, that your client failed to comply with CPR 7C 5.2 in conducting himself in that manner and has never served supporting documentation with the claim. You can assure your client that pursuant to CPR 27.14 for this we will be asking the judge at the final hearing to award us costs due to his unreasonable conduct on the claim.

Should you move to strike out the Counter Claim we will vigorously defend such an application and seek a wasted costs order against your client.

We note that the order of court states 'the parties by 4pm on 24th july identify and agree a single joint expert and instruct that expert to prepare a report at their joint expense.' However your client has neglected to inform you that in the hearing it was decided that if the parties cannot agree then they should write to the court with a list of three named experts each and the judge would decide one out of the six.

Should you make an application as detailed in your letter we will be forced to obtain a transcript of the hearing, you will look rather silly applying for what has already been determined to be the position of the court at a previous hearing and we will vigorously defend such an application as well as seek a wasted costs order against your client.

Further the court order does not order the Defendant to avail the Claimant of three experts witness CV's for him to decide which he might prefer, it orders the parties to act placing equal burden on your client to comply with it. Given he is a contractor it should be much easier and quick for him to provide is choices to consider, curious that he has not?

The time scales of the process are dictated by the court and completely outside our remit, but given your client has filed a claim that you know now that you cannot win having by virtue of offering to remedy the issues admitted liability and have received a Counter Claim that you will lose as a consequence, I'm sure you would like to settle by consent pursuant to CPR 36 without having to pay a penny
.
If only life worked like that, there's a pattern emerging here as that offer is sub-standard as well and for the avoidance of doubt we decline it.

Should your client wish to avoid further costs of your services and in proceedings including pursuant to CPR 36.17 and the previously stated CPR 27.14, which may include the attendance of a solicitor at a final hearing, then the following is acceptable to us:

1. Part 20 Claimants to pay £0 (zero pounds) to the Part 20 Defendant.
2. Part 20 Defendant to pay £6,571.59 to the Part 20 Claimants forthwith.
3. Parties bear their own costs.
4. The Claim is discontinued.
5. The Counter Claim is stayed.
6. Leave to apply.

If acceptable to your client you should draft a consent order, your client should sign it and send it to us. Please note that unlike a County Court Judgement such an order would not appear on any credit report to cause any harm to your client's credit file where our success in the Counter Claim will.

Pursuant to CPR 36 this offer is valid for 21 days from the date of this letter, we will require you to respond to this offer before that time and this offer is made pursuant to CPR 36.17 in respect of costs.

The figure in point 2 above comprises the lowest quotation value of £6,471.59 and £100 the cost of the court sealing a consent order.

We have Counter Claimed for the lowest quotation on the basis of attempting to settle this matter without need for a hearing, but you should make your client aware that if asked at a hearing why we have not claimed for the middle amount when we are successful in the Counter Claim we will inform the judge. Further if asked which quote we feel will deliver the contractor to complete the best standard of work we will be informing the court that the highest quotation represents the best standard of work.

On the balance of probabilities your client has no real prospect of succeeding on this claim by virtue of the Consumer Right Act 2015 breaches detailed above, we will substantiate the alleged defects via the photographs detailed in the defence and while we appreciate your attempt to mitigate your clients loss is all you can do, the actual best outcome for him would be to agree to this settlement.

Given his conduct on the claim, the period we have been without a bathroom constructed to the acceptable standard of the reasonable man and some of the tone of your letter we believe our position to be more than fair.

We would like to take this opportunity to confirm a point made above, it is not our intention to litigate by correspondence and as such we will not address any points raised by you or your client in the manner we have in this one letter in future.

If you or they wish to make serious offers in the manner put them forward, if you or they want information make the proper requests in the proper manner and all other exchanges regards documents etcetera will be dictated by order of the court.

[Ssssssssss]

A. Okay if you have a Notice of Acting we can respond directly to the Solicitor

B. Thanks for this, they're trying to shift the onus on to you when in reality they haven't suggest their three either. In other words they hope one will suit them of yours, so that he doesn't have to do anything.

C. Apologies I'm involved in multiple cases and sometimes these can be on the same subject, so leads to cross wires. I'll need to substantially redraft this letter I think. I mean it'll be along the lines of you've got cheek having ignored a request for disclosure to be moaning about non-disclosure, you should have made a part 31 request and disclosure will take place when ordered by the court. now do one!

D. When you are emailing them it's difficult to moan about service by email. Nothing will come of trying to include this is a witness statement in court and only would be relevant if they were to produce something they claim to have served by email knowing they should have served by post. In this letter we'll clarify service by post only.

OK - cool and no worries about working on multiple cases. I am so relieved to have someone to look at it - we have been trying so hard but its hard when we have no experience so i really do appreciate everything you have done. I think B - they are scared as they know an expert will pick their work apart. i think this is the main driver for them wanting to settle. When they heard that the judge will pick an expert i think that is what might have got them thinking about settling. OK - i should then say that all service of documents should be by post. General communication is fine by email ?

[jaguarsuk]

A. Okay if you have a Notice of Acting we can respond directly to the Solicitor

B. Thanks for this, they're trying to shift the onus on to you when in reality they haven't suggest their three either. In other words they hope one will suit them of yours, so that he doesn't have to do anything.

C. Apologies I'm involved in multiple cases and sometimes these can be on the same subject, so leads to cross wires. I'll need to substantially redraft this letter I think. I mean it'll be along the lines of you've got cheek having ignored a request for disclosure to be moaning about non-disclosure, you should have made a part 31 request and disclosure will take place when ordered by the court. now do one!

D. When you are emailing them it's difficult to moan about service by email. Nothing will come of trying to include this is a witness statement in court and only would be relevant if they were to produce something they claim to have served by email knowing they should have served by post. In this letter we'll clarify service by post only.

[Ssssssssss]

Also note that their without prejdice letter is the only letter to contain anything about agreeing an expert. they havent conversed with us about this at all on court record. We were thinking, maybe we should write them an open letter also saying that we havent heard from them regarding experts and that we are in the process of gathering cv's now etc..

[Ssssssssss]

Just got to the end of the letter... trainee solicitor, explains a lot! Well, you are about to aid their training with a lesson!

Here's what I have so far, I need what I asked for in post #124 to finish it:

Thanks so much Jaguarsuk ! I really appreciate that. I thought the same regarding the contents and it being bullying and defamatory too but didnt know if that just what happens. Thanks for confirming that this isnt what should happen at all and they have been very silly !!

In answer to information you need :-

A. I already sent them a request for a notice of acting as i googled what we should get on friday. They sent reply apologising saying they hadnt sent one by mistake and then copied one to me. I hope it put this guy in his place !

B. The order of the court was as follows :-
1 - the defendants (us), do by 4pm on 26th june file with the court and send a copy to the claimants a schedule setting out each item of alleged faulty workmanship on defective goods supplied together with the remedial cost of each giving each a number.
2 - the claimant ( the builder) do by 4pm on 10th july file with the court and send a copy to the defendants a schedule in reply to each using the same numbers by way of reference.
3 - the parties by 4pm on 24th july identify and agree a single joint expert and instruct that expert to prepare a report at their joint expense.
4 - that expert must prepare his or her report and copy to both parties by 4pm on 21st august 2019 and the parties must file a copy with the court.

Verbally the judge also said that if a joint expert cant be decided by 24th July then we should write to the court with a list of 3 named experts and the other side would do the same and then the judge would decide one out of the six.


C. In terms of the 3 quotes. We havent sent them the quotes ever and that is simply because they filed the claim without ever sending us a letter before action or responding to our requests for ADR scheme. We got their claim form before we could get that far !! We had itemised the issues in letters to them though. So when we filed our defence and counterclaim, it would have been the first time they had heard about our quotes. They did eventually file a defence to our counterclaim after we threatened to get the matter struck out if they didnt. In that defence they wrote for the first time about the quotes being remarkably similar and that they question whether we had any at all. This was about a year ago.

Then once we finally had the preliminary hearing, they mentioned the quotes to the judge and the judge said all of that will come at disclosure later on. We note they have never given us any information we have asked for either btw. When they received our schedule of issues on 26th June, we then received another email from them the next day saying that we should have attached the quotes to the schedule to which we said that judge was clear that this would come at disclosure and that they don't need to see them given the schedule should just state our estimated remedial costs.

The email from the builders said "You claim that you have not had enough time to finalise the breakdown of costs with builders, and that a “NEW BUILDER” will charge a minimum of £65.00 call out charge! This begs the question what happened to the original 3 quotations for £6471.59, £6584.59 and £6738.00 on which you have based your entire defense and counter claim. As you are aware I have previously stated my concern that they are remarkably similar in price to one another. I am now required complete a schedule and file with the court my reply by the 10th July 2019. How do you propose I do that when your defense and counterclaim are incomplete and subject to change."

To that email - i replied that the defence and counterclaim were completed a year ago and that the judge had stated the quotes would be for disclosure. We also questioned why they need our quotes to complete their reply to our schedule of issues as surely their reply has nothing to do with our quotes. The reason he wants to quotes is so that instead of following due process and writing his responses to each issue, he can instead rip us to shreds on the quotes and therefore deflect from having to answer to the issues at hand.

D. We have found also that practice direct 6a section 4 - the solicitor should have asked if we will take service of documents via email...we are hoping to ding them on the head with that too.

[Ssssssssss]

- just replying