Acknowledge of Service without a Particulars of Claim - CCMCC

[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]

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]

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.

[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]

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 ?

[GBExile]

Hi GBExile, There are two joints which allow you to move the top shower up and down and the lower shower up and down. We have the paperwork from the manufacturer as to how they should be working and fitted. The question really is how to deal with the issued experts report in that regard.

Well all that matters is were the 15mm hot & cold feeds in the correct position & was it there job to relocate the pipes. I am pretty sure he either cut corners or he never priced for the job.*

[Ssssssssss]

What valve are you talking about? are you talking about where the shower hose joins the mixing bar?

If you are then this would be fitted either straight across or reversed in line with the cold & hot water pipes so they can be fitted either way depending on the position of the pipes.

Or are you talking about the isolation valve which shuts of the water? If they are full bore isolation valves they can be fitted either way around but if they are cheap inline isolaters then they must be fitted in the flow direction shown by the arrows on the side.?

Hi GBExile,* There are two joints which allow you to move the top shower up and down and the lower shower up and down.* We have the paperwork from the manufacturer as to how they should be working and fitted.* The question really is how to deal with the issued experts report in that regard.

[GBExile]

What valve are you talking about? are you talking about where the shower hose joins the mixing bar?

If you are then this would be fitted either straight across or reversed in line with the cold & hot water pipes so they can be fitted either way depending on the position of the pipes.*

Or are you talking about the isolation valve which shuts of the water? If they are full bore isolation valves they can be fitted either way around but if they are cheap inline isolaters then they must be fitted in the flow direction shown by the arrows on the side.?

*

[Ssssssssss]

I have another question about how much of a question to ask if at all :-
Re shower head - We complained that the bottom valve was the wrong way around and the vertical adjustment was not moving when it should.
The expert wrote about the shower not being fitted well generally. *The expert also then wrote * "The vertical adjustment to the shower does not operate, and it appears to be intended to be adjustable by the handle to suit different people. *I am happy to consider the claimant comments that the shower is not intended to have vertical adjustment once the installation is complete, together with the defendants comment about the orientation of the valve if i am forwarded a copy of the manufacturers product literature. *At present, however, i consider that the shower rail requires remedial works or replacement."

Should we be sending the expert further manufacturers information at this stage given disclosure has not occurred as yet ? *There are a few questions like this which i am not sure whether to ask or send the information. *I know once i send it, it opens the door for the other side to make up something about it to suit their purpose.

Is it best to leave it or to send the info ? *We have the manufacturing info which states the vertical adjustment should work and the valve is the wrong way around therefore it does require replacement rather than just labour.

I could ask "If the manufacturing literature states that the vertical bar is meant to be adjustable and the valve is fitted the wrong way around, how will this change your report ?" * And then hope the judge will look at the manufacturing info in the trail ?

*

[Ssssssssss]

Thanks Jaguarsuk.

I agree, they probably won't settle . *Thanks for the other info. *The question looks like a good option.

So the experts report was due on the 20th December. *We submitted it on the 18th Dec - 2 days before the deadline. *However on the 21st Dec, they sent the report back with a note as follows :-

*"the documents returned have been rejected by the Judge and his comments are : *This is in loose pages, which is not acceptable. *It will fall apart and it has already started to fall apart. *Return it and ask them to re-submit it in a ring binder with indexed tabs."

So I put everything in a binder and put dividers in for each appendices ( which i assume is the indexed tabs he wants). *I went and re-submitted it today (23rd Dec) via the urgent desk. *The clerk took it back and said it will go back to judge after xmas now.

My question is, - *does them rejecting it because it wasn't in *a ring binder mean it wasn't technically filed on time and will the judge reject it now even though we have rectified the situation and re-submitted it immediately - its still past the deadline. *We couldn't have rectified it any earlier as the 21st was saturday.

The other question i had is whether the judge, in his next set of directions will give us enough time to ask question to the expert and/or persue the further investigation that might be needed ?


*

[jaguarsuk]

Hello Jaguarsuk,
We finally have our experts report. It is generally in our favour which is good and certainly proves to the court that the issues are indeed there. Should we now wait and see if the other side will finally try to settle ?

They don't seem like the settling type, but you can make them an offer to settle again if you like and see what happens?

Some other questions that have arisen are :
1. We have found out that in the original email that the claimants sent to the expert which they failed to copy us in on, they did indeed send the photographs of the before and after etc to the expert but did not disclose that they had done it over and above what we sent the expert. The experts report refers to the photos. Should we be doing anything about this? I currently have it in my long list of unreasonable behaviour on their part.

Again this is something you'll need to highlight to the court that they tried to lead the expert.

2. The expert has included some remedial costs and he must have done this by instruction of the other side. He has however not explained what is included in some of them. For example, he has said £80 to remove / refit a shower tray but our builder said that won't even cover materials and its way more than that. Should we quiz him ? How do we deal with that if we have our own quote anyway ?

In court I would highlight that the expert was not asked to provide his opinion of costs of the work and given you have had quotes from three working tradesman that is the real cost of the works.

CPR Part 35.6 if you want to ask questions.

Written questions to experts

35.6
(1) A party may put written questions about an expert's report (which must be proportionate) to –

(a) an expert instructed by another party; or

(b) a single joint expert appointed under rule 35.7.


(2) Written questions under paragraph (1) –
(a) may be put once only;

(b) must be put within 28 days of service of the expert’s report; and

(c) must be for the purpose only of clarification of the report,
unless in any case –

(i) the court gives permission; or
(ii) the other party agrees.


(3) An expert’s answers to questions put in accordance with paragraph (1) shall be treated as part of the expert’s report.


(4) Where –

(a) a party has put a written question to an expert instructed by another party; and

(b) the expert does not answer that question,
the court may make one or both of the following orders in relation to the party who instructed the expert –

(i) that the party may not rely on the evidence of that expert; or
(ii) that the party may not recover the fees and expenses of that expert from any other party.

3. The expert has said that one of the issues can be rectified without retiling the whole bathroom but only if we choose a completely different contrasting tile to patch up that area. I believe this is because if we use the exact same tile, the whole bathroom will need retiling to adjust for the re-alignment issues. He has therefore said this in his document and then put a price for the patch up and a price for a full re-tile too. Are we obliged to agree to a different contrasting tile which will change the look of the bathroom quite a lot ? The patch up is £1212 and the full retile is more like £4000 according to the expert.

No, you don't have to accept a patch up and would reiterate in court that you paid for a tile that would have a certain look, expected them to take reasonable skill and care to achieve that look. Now accepting a different tile and altering the look of the room would be contrary to the CRA 2015, you should get what you paid for not a bodge job.

4. In terms of the method of fixing tiles, the expert has said that although he can hear sound changes and also that he can see some missing adhesive behind some of the ungrouted tiles, without removing some of the tiles he cannot verify this and he has therefore concluded that in the absence of such evidence and also in the absence of any tiles being loose, he cannot conclude a remedy is required. He hasn't out and out said he is advising that the tiles be removed but he is saying without doing it he won't have the evidence on the issue. Can we / are we within our rights to ask him to remove the tiles and see how they are fixed based on this and if we were to do so, i know the other side would disagree so would we need to do some sort of application ? It's definitive proof that the whole bathroom needs re-tiling.

I would write to the court to ask for directions on whether he should remove tiles and report fully, he doesn't need to remove the lot and just a couple where it's not grouted. Otherwise the matter cannot be definitively decided. If they then tell you to file an application you may have to, but if you can get it for free then why not try?

5. Contractually, the claimants have bought different tiles to the ones we asked for anyway but the expert cannot really report on this because he wasn't asked to look at what tiles were contractually agreed anyway. Is this enough to warrant not needing to do item 4 above ? This would be decided by the judge and the remedy we have put down is a complete re-tile anyway.

Well yes, this adds to your argument, but there's no such thing as too many legal arguments in law. If you can get more reason via point 4 to be right then all the better.

We know the above points may become irrelevant if the other side does offer and we really do hope they do.
Should we consider anything else at this stage ? Ive just posted the report over to the court so it gets there in time.
Once again Jaguarsuk, thank you for the last 1.5 years of getting to this point and thank you for everything you have helped us with to get to this. We want to wish you the best of christmases and new years

Right now you have done all you can really other than potentially send them a part 36 offer to settle, but I wouldn't hold my breath on that if I were you.

[Ssssssssss]

Take it to court with you each hearing, just so you have something to pull out if they accuse you of poor behaviour.

Hello Jaguarsuk,

We finally have our experts report. It is generally in our favour which is good and certainly proves to the court that the issues are indeed there. Should we now wait and see if the other side will finally try to settle ?

Some other questions that have arisen are :

1. We have found out that in the original email that the claimants sent to the expert which they failed to copy us in on, they did indeed send the photographs of the before and after etc to the expert but did not disclose that they had done it over and above what we sent the expert. The experts report refers to the photos. Should we be doing anything about this? I currently have it in my long list of unreasonable behaviour on their part.

2. The expert has included some remedial costs and he must have done this by instruction of the other side. He has however not explained what is included in some of them. For example, he has said £80 to remove / refit a shower tray but our builder said that won't even cover materials and its way more than that. Should we quiz him ? How do we deal with that if we have our own quote anyway ?

3. The expert has said that one of the issues can be rectified without retiling the whole bathroom but only if we choose a completely different contrasting tile to patch up that area. I believe this is because if we use the exact same tile, the whole bathroom will need retiling to adjust for the re-alignment issues. He has therefore said this in his document and then put a price for the patch up and a price for a full re-tile too. Are we obliged to agree to a different contrasting tile which will change the look of the bathroom quite a lot ? The patch up is £1212 and the full retile is more like £4000 according to the expert.

4. In terms of the method of fixing tiles, the expert has said that although he can hear sound changes and also that he can see some missing adhesive behind some of the ungrouted tiles, without removing some of the tiles he cannot verify this and he has therefore concluded that in the absence of such evidence and also in the absence of any tiles being loose, he cannot conclude a remedy is required. He hasn't out and out said he is advising that the tiles be removed but he is saying without doing it he won't have the evidence on the issue. Can we / are we within our rights to ask him to remove the tiles and see how they are fixed based on this and if we were to do so, i know the other side would disagree so would we need to do some sort of application ? It's definitive proof that the whole bathroom needs re-tiling.

5. Contractually, the claimants have bought different tiles to the ones we asked for anyway but the expert cannot really report on this because he wasn't asked to look at what tiles were contractually agreed anyway. Is this enough to warrant not needing to do item 4 above ? This would be decided by the judge and the remedy we have put down is a complete re-tile anyway.

We know the above points may become irrelevant if the other side does offer and we really do hope they do.

Should we consider anything else at this stage ? Ive just posted the report over to the court so it gets there in time.

Once again Jaguarsuk, thank you for the last 1.5 years of getting to this point and thank you for everything you have helped us with to get to this. We want to wish you the best of christmases and new years

[jaguarsuk]

Thanks Jaguarsuk - much appreciated.

We have a copy of the letter now. Do you mean take the letter to court now or for final trial time ?
As always, thanks again for everything.

Take it to court with you each hearing, just so you have something to pull out if they accuse you of poor behaviour.

[Ssssssssss]

If you can get a copy of the letter they have written to the expert that should be taken to court in case they start to say you have influenced the expert.

I would file a copy of the fully completed schedule with the court and a covering letter that they have failed to comply with the order of the court, so you are seeking directions from the court how to proceed?

The expert will get on with it, but make it look like you don't know what to do because they aren't complying.

Thanks Jaguarsuk - much appreciated.

We have a copy of the letter now. Do you mean take the letter to court now or for final trial time ?
As always, thanks again for everything.

[jaguarsuk]

Just to let you know that all documents are now with the expert. We will see what he comes back with.
The other side haven't filled out their remedial column properly and just written lots of text again about how wrong our numbers must be. They have also written to the expert to say that our information is "exaggerated at best". I am assuming i should just not respond to those things, not report lack of compliance to the court and also just let the expert get on with it however he wants to now ?

If you can get a copy of the letter they have written to the expert that should be taken to court in case they start to say you have influenced the expert.

I would file a copy of the fully completed schedule with the court and a covering letter that they have failed to comply with the order of the court, so you are seeking directions from the court how to proceed?

The expert will get on with it, but make it look like you don't know what to do because they aren't complying.