Acknowledge of Service without a Particulars of Claim - CCMCC

[Ssssssssss]

21 c Defendant/Part 20 Claimants (you)

Other than that it all looks fine to me.

Thanks so much for having a read through. I'll make that update and then change all the red to black.

Just one question though - is it ok to take the part 31 stuff out and then just cross examine them about all their alleged requests in the hearing itself ? Or do you think we should just leave them in ? Still worried about their doctoring stuff.

Then should we wait for a letter giving us a hearing date before sending this all off or should we just sent it to the court and then the other side at the same time ?

And once again I really appreciate all of this. I cannot thank you enough for reading through it again.

[Ssssssssss]

Thanks so much for having a read through. I'll make that update and then change all the red to black.

Just one question though - is it ok to take the part 31 stuff out and then just cross examine them about all their alleged requests in the hearing itself ? Or do you think we should just leave them in ? Still worried about their doctoring stuff.

Then should we wait for a letter giving us a hearing date before sending this all off or should we just sent it to the court and then the other side at the same time ?

And once again I really appreciate all of this. I cannot thank you enough for reading through it again.

OK so i finally managed to get through to the court on the phone. She said the application notice was already with the judge but they hadn't heard anything back yet. She said that its likely our response would only be seen by the judge around the time of any hearing ( should one be listed ).

So i informed her of the situation with the expert and she said to write to the court urgently and put it all in the letter and send the response we wrote to them too and then hopefully the judge will see it and not leave it to the hearing.

I've therefore just written a covering letter to say the other side have halted the work of the expert and please can you look at it urgently.

Should i say anything else to them? I'm planning to walk down to the court tomorrow and hand it all in at the urgent business counter if possible or in their drop box. She said she had put a note on the file too.

Do i have to send the response to the other side at the same time ?

[jaguarsuk]

OK so i finally managed to get through to the court on the phone. She said the application notice was already with the judge but they hadn't heard anything back yet. She said that its likely our response would only be seen by the judge around the time of any hearing ( should one be listed ).

So i informed her of the situation with the expert and she said to write to the court urgently and put it all in the letter and send the response we wrote to them too and then hopefully the judge will see it and not leave it to the hearing.

I've therefore just written a covering letter to say the other side have halted the work of the expert and please can you look at it urgently.

Should i say anything else to them? I'm planning to walk down to the court tomorrow and hand it all in at the urgent business counter if possible or in their drop box. She said she had put a note on the file too.

Do i have to send the response to the other side at the same time ?

That's really unfortunate as you do not want that interim order granting and want them to direct the expert to get on with it.

Walk it in to the court and then post them a copy either tomorrow or the day after when you can be bothered.

[Ssssssssss]

That's really unfortunate as you do not want that interim order granting and want them to direct the expert to get on with it.

Walk it in to the court and then post them a copy either tomorrow or the day after when you can be bothered.

Hi Jaguarsuk,

We walked everything into the court last Thursday and they said they would make sure the judge sees it as soon as possible rather than waiting till a hearing. We then sent the other side a copy on Tuesday this week.

Not heard anything from anyone thus far so i guess its just a waiting game to see what the court says. It's been 22 days since the inspection now though

Anyway, just thought i'd post this as an update and to say thank you for helping us put everything together for this.

Have a great weekend.

[jaguarsuk]

Hi Jaguarsuk,

We walked everything into the court last Thursday and they said they would make sure the judge sees it as soon as possible rather than waiting till a hearing. We then sent the other side a copy on Tuesday this week.

Not heard anything from anyone thus far so i guess its just a waiting game to see what the court says. It's been 22 days since the inspection now though

Anyway, just thought i'd post this as an update and to say thank you for helping us put everything together for this.

Have a great weekend.

Okay, that's good and hopefully the order will be denied with directions issued for the expert to get on with it. They should be rebuked by the court for contempt as they are currently in breach of the order of the court, but I doubt they will be.

[Ssssssssss]

Okay, that's good and hopefully the order will be denied with directions issued for the expert to get on with it. They should be rebuked by the court for contempt as they are currently in breach of the order of the court, but I doubt they will be.

Just received a notice of hearing on 28th October for our case. 1.5 hours in the court. Nothing else mentioned.
As nothing else was mentioned, i phoned the court only to find out that the urgent desk had left my response document with the judges usher and it hadn't come back down which means they may well not have seen it. They asked me to send them an email copy and they said they will print it out and put it directly in front of the judge this time rather than leave it with the usher. I asked if i can double check tomorrow that its been done and they said yes that was fine or Friday possibly.

He did say that either way there would be a hearing though as its a strike out application.

Is there anything we can do to prepare for it ? Should we be concerned about anything as in , can the judge really kick it out ?!

[jaguarsuk]

Just received a notice of hearing on 28th October for our case. 1.5 hours in the court. Nothing else mentioned.
As nothing else was mentioned, i phoned the court only to find out that the urgent desk had left my response document with the judges usher and it hadn't come back down which means they may well not have seen it. They asked me to send them an email copy and they said they will print it out and put it directly in front of the judge this time rather than leave it with the usher. I asked if i can double check tomorrow that its been done and they said yes that was fine or Friday possibly.

He did say that either way there would be a hearing though as its a strike out application.

Is there anything we can do to prepare for it ? Should we be concerned about anything as in , can the judge really kick it out ?!

Oh there was always going to be a hearing that was never a question.

There's nothing more you can do for it and can only put forward the arguments made in your WS and make heavy emphasis of the hearing where the judge stated they would order disclosure and that you believe as such you are complying with the order of the court as such.

Assert that the tactics employed towards instructing the expert by the claimant, which resulted in late instruction and caused the court to have to order extension of their filing of the report combined with the lateness of this application in the process which seeks an interim order not applied for speak volumes about the true motive of the application.

Assert the application is an abuse of process, that it has meant the expert in breach of a court order under instruction of the claimant has ceased reporting and as a consequence is going to require a further extension to the deadline for them to file a report.

Ask that it be noted this be noted with respect to unreasonable conduct on the claim pursuant to CPR 27.14 and it flying in the face of furthering the overriding objective.

I actually wish I could come to the hearing as lay representative for you.

[Ssssssssss]

Oh there was always going to be a hearing that was never a question.

There's nothing more you can do for it and can only put forward the arguments made in your WS and make heavy emphasis of the hearing where the judge stated they would order disclosure and that you believe as such you are complying with the order of the court as such.

Assert that the tactics employed towards instructing the expert by the claimant, which resulted in late instruction and caused the court to have to order extension of their filing of the report combined with the lateness of this application in the process which seeks an interim order not applied for speak volumes about the true motive of the application.

Assert the application is an abuse of process, that it has meant the expert in breach of a court order under instruction of the claimant has ceased reporting and as a consequence is going to require a further extension to the deadline for them to file a report.

Ask that it be noted this be noted with respect to unreasonable conduct on the claim pursuant to CPR 27.14 and it flying in the face of furthering the overriding objective.

I actually wish I could come to the hearing as lay representative for you.

Thanks Jaguarsuk. I actually wish you were coming to the hearing too. Nerves are kicking in now we are getting closer to the date.

I just wanted to check you are around next week in case there are any last minute questions that come up as i'm reviewing everything again one final time.

Let me know and thanks in advance and also for the above message and everything really !

[jaguarsuk]

No holiday plans, just won’t be around in the evenings or weekends as normal

[Ssssssssss]

No holiday plans, just won’t be around in the evenings or weekends as normal

Thanks for letting me know.

I've just been reviewing the question of disclosure and i thought i would run this by you.

Firstly I've attached the email exchange that was the first time the other side asked for the quotes. This was two weeks after the preliminary hearing where the judge had already said what would happen in terms of exchange of information being done at a later date. Is there anything that might cause issues in these attached emails or that we should prepare for over what you have already told us ? I'm conscious i never posted these up at the time and i am assuming the judge might ask to see it.

Secondly, the other times that the disclosure was mentioned after that and that I already posted here before :-

1. In their first without prejudice letter.
2. In letter dated 16th July which said "Our client will, at the relevant stage, disclose all documentation necessary. It is you that have made claims in the past of quotes etc. existing that have not been disclosed. I would 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 counterclaims is based on quotations that our clients have not had the ability to even see and/or review.
3. In letter dated 1st August which said "Turning to matters more generally, we note that our clients request for the quotations upon which your counterclaim have been based, has once again been ignored. The existence of these quotations within your counterclaim are professed with the statement of truth. That statement of truth would put you in contempt of court if you have knowingly or willingly signed that statement of truth containing information that you know not to be correct. We would therefore make a further request for those quotes to be provided as a matter of urgency to allow our clients to properly and better understand the nature of the case they are facing. Clearly, these quotations will also be relevant as to whether your latest offer will be considered a 'genuine attempt to settle' should the issue of costs under part 36 of the cpr arise. We accordingly look forward to receiving these by return." If you recall, we sent a short a sweet without prejudice letter back telling them we would disclose when the court ordered it.

So letter 2 and 3 above were not formally headed without prejudice but they clearly refer to the contents of their and our previous without prejudice letters. For the purposes of the court, should they attempt to submit them at the last minute, should i assert that these are without prejudice and therefore for the purposes of the court, the other side cannot admit them and also that i, myself should not mention their existence in anything i say? OR should i treat them as open comms ? It's the difference of saying we only received one request versus the "numerous" they say they made.

I just noticed their letter 2 is a bit ironic - saying they will only disclose their documents at the relevant stage!!!

[jaguarsuk]

Thanks for letting me know.

I've just been reviewing the question of disclosure and i thought i would run this by you.

Firstly I've attached the email exchange that was the first time the other side asked for the quotes. This was two weeks after the preliminary hearing where the judge had already said what would happen in terms of exchange of information being done at a later date. Is there anything that might cause issues in these attached emails or that we should prepare for over what you have already told us ? I'm conscious i never posted these up at the time and i am assuming the judge might ask to see it.

Secondly, the other times that the disclosure was mentioned after that and that I already posted here before :-

1. In their first without prejudice letter.
2. In letter dated 16th July which said "Our client will, at the relevant stage, disclose all documentation necessary. It is you that have made claims in the past of quotes etc. existing that have not been disclosed. I would 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 counterclaims is based on quotations that our clients have not had the ability to even see and/or review.
3. In letter dated 1st August which said "Turning to matters more generally, we note that our clients request for the quotations upon which your counterclaim have been based, has once again been ignored. The existence of these quotations within your counterclaim are professed with the statement of truth. That statement of truth would put you in contempt of court if you have knowingly or willingly signed that statement of truth containing information that you know not to be correct. We would therefore make a further request for those quotes to be provided as a matter of urgency to allow our clients to properly and better understand the nature of the case they are facing. Clearly, these quotations will also be relevant as to whether your latest offer will be considered a 'genuine attempt to settle' should the issue of costs under part 36 of the cpr arise. We accordingly look forward to receiving these by return." If you recall, we sent a short a sweet without prejudice letter back telling them we would disclose when the court ordered it.

So letter 2 and 3 above were not formally headed without prejudice but they clearly refer to the contents of their and our previous without prejudice letters. For the purposes of the court, should they attempt to submit them at the last minute, should i assert that these are without prejudice and therefore for the purposes of the court, the other side cannot admit them and also that i, myself should not mention their existence in anything i say? OR should i treat them as open comms ? It's the difference of saying we only received one request versus the "numerous" they say they made.

I just noticed their letter 2 is a bit ironic - saying they will only disclose their documents at the relevant stage!!!

Admit them or not the court had already given directions about disclosure and therefore their subsequent letters are utter rubbish.

Your argument needs to remain focused on that point and that you are comply with the direction of the judge at the preliminary hearing whilst they have instructed the expert to breach the order of the court.

Your first opportunity to speak needs to set in stone that the court issued directions at the prelim hearing, that them requesting them disclosure after the hearing is an attempt to circumvent the authority of the court, that they could have applied to the court to order disclosure if they wished the court to change it's mind, that they have applied for no such order because this application by it's timing and coupled with them instructing the expert to breach a court order is designed only to frustrate the court process and prevent the expert from reporting.

As and when the court orders disclosure you will comply with that order and that this application should be dismissed with directions given to the expert witness to report ASAP.

You need to set the scene from the off.

[Ssssssssss]

Admit them or not the court had already given directions about disclosure and therefore their subsequent letters are utter rubbish.

Your argument needs to remain focused on that point and that you are comply with the direction of the judge at the preliminary hearing whilst they have instructed the expert to breach the order of the court.

Your first opportunity to speak needs to set in stone that the court issued directions at the prelim hearing, that them requesting them disclosure after the hearing is an attempt to circumvent the authority of the court, that they could have applied to the court to order disclosure if they wished the court to change it's mind, that they have applied for no such order because this application by it's timing and coupled with them instructing the expert to breach a court order is designed only to frustrate the court process and prevent the expert from reporting.

As and when the court orders disclosure you will comply with that order and that this application should be dismissed with directions given to the expert witness to report ASAP.

You need to set the scene from the off.

Thanks Jaguarsuk so much. OK i will stick to this at every point. I just wanted to run by the other complaint of theirs. The schedule of issues. This is what i was planning to say out loud to supplement what is already in the document. Do you think that will be ok to say ?

"With regards to the schedule of issues.

1. The schedule was filed on time. No further schedule was intended to be submitted and none has been. The claimant seems to be complaining about something they believe might happen but hasn't actually happened.

2. In terms of the schedule of issues itself, the note we added to our schedule was made in good faith to inform the court we had completed the task to the best of our ability. It was in reference to only one and a half TBC’s in the schedule. All the other items have listed remedial costs.

Our note was simply added to provide more explanation than was probably needed.

3. If the claimant wish to bring our schedule under review in this way then we respectfully ask the court to extended the same level of scrutiny to the claimants own schedule in response.

Firstly, we were still being served updates to it 7 days after the claimants court ordered deadline had expired.

Secondly, they have not listed remedial costs for anything. Even when they have admitted things. One of many examples we can put to the court is that of Electrical works where they have admitted the work was not complete. However instead of writing their own estimated remedial cost for the work left to do, they have instead simply written a paragraph about how much our stated remedial cost cant possibly be right.

We must however repeat that the schedule is to the best of our ability and clearly lists the issues in the case."

Also they have obviously asked for a strike out but also said if the don't get a strike out they want an order for disclosure of the quotes and for us to complete the schedule of issues. IF that happens will the judge put costs onto us of their application ? What should we do if that happens ?

One other thing. Should we say something about the 2 months that the expert has now had to wait and that he will most likely now need refamiliarisation time or anything. Just wondering what we ask the judge to further do re the expert other than of course getting on with it.

[Ssssssssss]

Admit them or not the court had already given directions about disclosure and therefore their subsequent letters are utter rubbish.

Your argument needs to remain focused on that point and that you are comply with the direction of the judge at the preliminary hearing whilst they have instructed the expert to breach the order of the court.

Your first opportunity to speak needs to set in stone that the court issued directions at the prelim hearing, that them requesting them disclosure after the hearing is an attempt to circumvent the authority of the court, that they could have applied to the court to order disclosure if they wished the court to change it's mind, that they have applied for no such order because this application by it's timing and coupled with them instructing the expert to breach a court order is designed only to frustrate the court process and prevent the expert from reporting.

As and when the court orders disclosure you will comply with that order and that this application should be dismissed with directions given to the expert witness to report ASAP.

You need to set the scene from the off.

So we were going to start with the things you said we should start with.

Then add a few more points about disclosure (i've italics them just below)

Then say the stuff about the schedule and then conclude and say about costs under cpr 27.14.


These are the other bits i was planning to verbalise about disclosure (seem ok ?)

"We would also make the following further points regarding disclosure.

1.As this is a small claims matter, CPR 31 is not applicable. We believe there is no formal disclosure and inspection process and that theusual directions are for all documents to be filed and served at least 14 days before final hearing. Regardless, the judge has already made clear what will happen in relation to this process.

2.We cannot find anything in CPR 20 (counterclaims) or 16 (statements of case) which says that we should have filed the quotes with our counterclaim.

We do note that they have not looked into their own failings in regard to this where they should have filed a copy contract with their claim under practice direction 16 7.3(1).

3.We believe that to state they have been waiting for 10 months for something is somewhat mis-leading. The claimant did not seek any disclosure before filing his defence. From then on, we did not speak to or hear from the claimant until the preliminary hearing of June 2019. A hearing where the judge made clear what was going to happen."

[Ssssssssss]

I'm just only writing all what i want to verbalise because i'm really not good at thinking on my feet so i'm just trying to write myself a script i can read off .

[jaguarsuk]

All of this is good and make sure that you mention when you talk about acting on the directions of the court that the other side at that point was not represented, has clearly not informed his rep of the directions of the court and that the rep has had it communicated to them on more than one occasion prior to this application what the court directed.