Acknowledge of Service without a Particulars of Claim - CCMCC

[Ssssssssss]

So about 2 weeks ago we sent our questions to the expert. *He failed to respond and today we chased our email up.
He responded as follows " *I have been holding off pending a reply from the other side and once i have this then i can confirm any fee for responding to questions raised "

We have told him our questions are as per CPR protocol and there is no need to wait for the other side.

Is that correct ?

[Ssssssssss]

So about 2 weeks ago we sent our questions to the expert. He failed to respond and today we chased our email up.
He responded as follows " I have been holding off pending a reply from the other side and once i have this then i can confirm any fee for responding to questions raised "

We have told him our questions are as per CPR protocol and there is no need to wait for the other side.

Is that correct ?

Any idea what we can do ? *The expert hasn't responded to our message from yesterday telling him to get on with it. *We can give him a few more days but if he doesn't respond (assuming he is insistent on waiting for a response from the other side) what can we do ?

The other side haven't responded to anything and its been radio silence for about a month so i doubt they are going to respond to the expert to give him any response whatsoever so effectively he would be waiting forever for them which isn't really feasible to continue on that basis.

How can we get our questions answered if the expert is waiting for the other side to respond to our questions / pose their own BUT the other side are not replying to anything ?

[Ssssssssss]

Any idea what we can do ? The expert hasn't responded to our message from yesterday telling him to get on with it. We can give him a few more days but if he doesn't respond (assuming he is insistent on waiting for a response from the other side) what can we do ?

The other side haven't responded to anything and its been radio silence for about a month so i doubt they are going to respond to the expert to give him any response whatsoever so effectively he would be waiting forever for them which isn't really feasible to continue on that basis.

How can we get our questions answered if the expert is waiting for the other side to respond to our questions / pose their own BUT the other side are not replying to anything ?

Hi
jaguarsuk*

As expected the other side have now kicked off. *
They have sent the expert a letter (which they didn't copy us in on but forward a copy of letter to us afterwards). *They have then sent us a letter telling us we don't have a right to ask questions or something along those lines - like we need court permission or something which is not correct. *Although I could have interpreted what they are saying wrongly.

Any idea what we can do. *
I've copied letters here. *I don't want to enter into a debate with them.
I've also posted a copy of the questions we asked of the expert here just for clarity.

[jaguarsuk]

This solicitor has always got some excuse for why they don't respond to requests.

You do not need the permission of the court to ask questions as long as they are to clarify the report, whether what you have asked is clarification is dependant on the opinion of the judge.

There might have been better ways to ask the questions, so as not to be appearing to lead or cross examine the expert, but what is done can't be changed.

As for informing the court, CPR 35.6(3) means that the answers would have to filed in the court, which would then serve as notice they have been asked and prevent you from asking further questions.

Nor does CPR 35 say you need the permission of the other party to ask them either, if asked and you lost then they could claim their half of the fee as part of their costs. I'd be inclined to offer to pay the expert the further fee fully and get the answers as it seems they're trying to prevent the expert answering.

[Ssssssssss]

This solicitor has always got some excuse for why they don't respond to requests.

You do not need the permission of the court to ask questions as long as they are to clarify the report, whether what you have asked is clarification is dependant on the opinion of the judge.

There might have been better ways to ask the questions, so as not to be appearing to lead or cross examine the expert, but what is done can't be changed.

As for informing the court, CPR 35.6(3) means that the answers would have to filed in the court, which would then serve as notice they have been asked and prevent you from asking further questions.

Nor does CPR 35 say you need the permission of the other party to ask them either, if asked and you lost then they could claim their half of the fee as part of their costs. I'd be inclined to offer to pay the expert the further fee fully and get the answers as it seems they're trying to prevent the expert answering.

Thanks Jaguarsuk
Shall i bother to reply to the solicitor with anything then as it seems like they are just fishing for whether we have asked anything of the court.

Am i right in interpreting that they are effectively asking the expert to decide if the questions are cross examination or not and to provide a cost and timescale for answering the questions that he/expert thinks are valid ? *

*

[jaguarsuk]

Thanks Jaguarsuk
Shall i bother to reply to the solicitor with anything then as it seems like they are just fishing for whether we have asked anything of the court.

Am i right in interpreting that they are effectively asking the expert to decide if the questions are cross examination or not and to provide a cost and timescale for answering the questions that he/expert thinks are valid ?

I would contact the expert and ask them to provide a cost, the copy them in to that communication. Other than that I wouldn't give them the satisfaction.

[Ssssssssss]

I would contact the expert and ask them to provide a cost, the copy them in to that communication. Other than that I wouldn't give them the satisfaction.

Thanks Jaguarsuk. *that's exactly what we have done and are now awaiting the expert to decide whatever he is going to decide. *Hopefully no more fuss and he will answer us.

We have today also received the following notice from the court.

"Before x judge sitting at the *xx *court of x, it is ordered that :-

1. *by 24th February 2020 the parties shall send to the Court and to each other the statements of any witnesses (including the parties) who are to give evidence at Trial.

2. *The case is listed for Trial on 25th March 2020 at xxx at the xxx court with a time estimate of *2 hours.


Does this mean that we have to get our witness statements and all our evidence in its entirety over to the court and other side by the 24th feb ? *Or just the witness statement by itself ? *I wasn't sure as *i have always read that it all gets swapped 14 days before the trial. *

In the witness statement should i concentrate on what actually happened rather than including the issues we had with the other sides lawyer about instructing the expert and their lethargic nature. *They might make us run out of time for the expert to do the extra tests for example. *Should we also be making arguments about costs etc in the witness statement or is that for later too ?

Any advice on how to organise our paperwork ? *We have
our witness statements,
court correspondence
court related correspondence with the other side. *
Inter-party Correspondence from before we went to court. *
Evidence we have gotten from third parties like tile association and manufacturers.
The contracts. *
Our quotes for rectification.
Manufacturer costs for new goods.
Our Photographs,
The schedules of issues.
The expert witness report itself which also contains our schedules and the experts reports within it.
Our costs to date that we have incurred by having to go to court.

Lastly, the court has allocated 2 hours - does this mean they now think its fairly straightforward ? *I guess they might do after reading the experts report but i guess i still should concentrate on telling the judge that the wrong tiles were used and we shouldn't have to accept different contrasting tiles as a semi-fix for all this.

Is the witness statement just statements of facts about what happened or do we have to elaborate a bit more e.g. we found our that what they said e.g. about their qualifications was not true after calling/emailing the accreditations agencies. *Or that they lied about *contacting a named person ( we have an email from that person stating they were not contacted).

*

[jaguarsuk]

Thanks Jaguarsuk. that's exactly what we have done and are now awaiting the expert to decide whatever he is going to decide. Hopefully no more fuss and he will answer us.

We have today also received the following notice from the court.

"Before x judge sitting at the xx court of x, it is ordered that :-

1. by 24th February 2020 the parties shall send to the Court and to each other the statements of any witnesses (including the parties) who are to give evidence at Trial.

2. The case is listed for Trial on 25th March 2020 at xxx at the xxx court with a time estimate of 2 hours.


Does this mean that we have to get our witness statements and all our evidence in its entirety over to the court and other side by the 24th feb ? Or just the witness statement by itself ? I wasn't sure as i have always read that it all gets swapped 14 days before the trial.

Yes.

In the witness statement should i concentrate on what actually happened rather than including the issues we had with the other sides lawyer about instructing the expert and their lethargic nature. They might make us run out of time for the expert to do the extra tests for example. Should we also be making arguments about costs etc in the witness statement or is that for later too ?

Any advice on how to organise our paperwork ? We have
our witness statements,
court correspondence
court related correspondence with the other side.
Inter-party Correspondence from before we went to court.
Evidence we have gotten from third parties like tile association and manufacturers.
The contracts.
Our quotes for rectification.
Manufacturer costs for new goods.
Our Photographs,
The schedules of issues.
The expert witness report itself which also contains our schedules and the experts reports within it.
Our costs to date that we have incurred by having to go to court.

Lastly, the court has allocated 2 hours - does this mean they now think its fairly straightforward ? I guess they might do after reading the experts report but i guess i still should concentrate on telling the judge that the wrong tiles were used and we shouldn't have to accept different contrasting tiles as a semi-fix for all this.

Is the witness statement just statements of facts about what happened or do we have to elaborate a bit more e.g. we found our that what they said e.g. about their qualifications was not true after calling/emailing the accreditations agencies. Or that they lied about contacting a named person ( we have an email from that person stating they were not contacted).

This is your chance to get everything out and you include everything that is wrong.

[Ssssssssss]

Yes.



This is your chance to get everything out and you include everything that is wrong.

Thanks Jaguarsuk.

I'm getting a little confused about exhibits and Chronological ordering of documents. *
Is an Exhibit one of the documents in the chronologically ordered documents or do i have to separate out the exhibits into their own separate documents ?

Sorry its probably a stupid question but i don't quite understand it in terms of organising my papers. *

[jaguarsuk]

The exhibits are attachments to the witness statement, so order them in the order you present them in the witness statement.

[Ssssssssss]

Thanks Jaguarsuk. I'm just going through it all at the moment.

I am a bit worried about when the expert has until to answer our questions and do any exploratory works. *If we have to swap witness statements by 24th Feb, Does that mean that that is his deadline too for anything we can get from him.

He still has not responded as to whether he will answer our questions or indeed how much it will cost. *I guess we are running out of time if its the 24th he has to have done this by.

Also, *its looking highly unlikely that he will do the exploratory works we want of taking a few tiles off. *Basically as the hearing has been set and I suspect that if we told him to do it, the other side would once again delay and try to stop him. * *Is there anything we can do or is it a lost cause now ?

We has asked our builder if he'd be willing to take a few tiles off and have us film him so we can submit the video to the court as part of my witness statement as he said he would be fine to do that if that is what we wanted him to do. *Should we do this if the expert doesn't come back in a reasonable time to enable him to do that work himself ? * * I know the court wouldn't class what we submit as expert but it would show that the tiles haven't been put on properly.

Hard to know what to do with the expert now given the court deadlines and hearing being set. *

Any advice greatly appreciated. *

[Ssssssssss]

The exhibits are attachments to the witness statement, so order them in the order you present them in the witness statement.

Well it looks like the expert is not going to reply to our question and he hasn't replied to the letters the other side have sent either really. *
Given that our deadline for exchange witness statements is the 24th Feb, it now seems inevitable that our questions won't be answered including how much it would cost to do exploratory works. *And doing the exploratory works to take some tiles off.

I just wanted your opinion on whether we are likely to run into any trouble by removing some tiles at this stage and submitting photos of the back of the tiles ? *Is this likely to cause us any problems in court with the judge or anything like that ?

Please let me know as I'm really not sure whether to take the tiles off but then this is the final hearing so if I don't then the judge is likely to never see it. *Not sure what to do.

Main question though is will it cause us problems with the judge or court ?

[jaguarsuk]

You can remove tiles and submit them as evidence, they are your tiles and you can submit anything you think is relevant as evidence with your witness statement.

[Ssssssssss]

You can remove tiles and submit them as evidence, they are your tiles and you can submit anything you think is relevant as evidence with your witness statement.

OK great- *we have removed tiles and taken photos and without doubt the clients used dot and dab. *One wall of tiles nearly came off in its entirety when we removed one tile !!! *

Aside from this, we got the following letter today from the other side. *I am not letting it distract me from the work ahead but I am presuming they are worried and trying to downplay the report now ? *Its offering £500 which doesn't even cover the experts fees.

*I don't actually understand the first half much though so any thoughts please let me know

[jaguarsuk]

The first page is all bluster about how much effort they are putting in, it's designed to make you think there's a large team working on the claim. They're trying to scare you, if you win the claim then CPR 36 will be irrelevant, why would you agree an offer less than what you have won? You wouldn't and no judge is going to think that is unreasonable. And in any event costs are limited in the small claims track and unless they can evidence unreasonable conduct in the claim pursuant to CPR 27.14 all they'll get is witness expenses usually limited to £100.

It's why the bloke is an idiot instructing a solicitor because he could find himself on the end of a judgement and a very expensive legal bill.

Write back and tell them that you do not accept their offer, that you do not owe their client a penny for his work that is contrary to the Consumer Rights Act 2015 s.49 and £500 is nowhere near the sum required to rectify the works. As for wasted costs, you do not consider there to be any and neither does the court or else they'd have been awarded them at the hearing of their failed application.

Don't let them know you have removed and photographed the tiles, that little bombshell is best dropped with the exchange of Witness Statements after they have lied saying he did not use that method in theirs, you'll serve them with your Witness Statement at the latest opportunity and accompanied with an offer to settle for the full amount counter claimed.

Post a draft of your witness statement when it's ready with identifying info removed.