Acknowledge of Service without a Particulars of Claim - CCMCC

[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]

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.

[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.

[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]

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]

URGENT.

So what i thought would happen, has exactly happened. They were buying time i think to get this other quote. However, the quote is not a named person. It doesn't contain any detail other than a number cost of around £479. No idea if its a chartered surveyor or who except the company is legit. Plus - we know that he knows people who are inspectors.

In our letter - we simply said that if any exploratory works are required then they need to let us know the process of deciding on this.

Please see their letter back today. Attached.

This is the paragraph in our letter he is objecting to too
"The Defendants/Part20 Claimants note that opening up and exploratory works may be necessary in order to investigate alleged defects. Please provide an outline of the process you would follow to determine this and any estimated fees."

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,

It seems to me the othersides lawyer is pulling your leg here and you have to put a stop to that pdq or it will give you issues later in the case. After all if your expert report is rubbish, how do you prove your case at trial?

[Ssssssssss]

Just read it, his schedule isn't your problem

If the purpose isn't to go through the schedule why provide it to the expert, of course it's for him to go through.

I'll draft a response letter.

I know - he keeps saying that but in his actual draft instruction letter - it says ( he wrote that himself)...

"Your instructions are to prepare a single joint Expert Report as to the quality of the works and the standard of the workmanship in those renovation works. You are in that process asked to give consideration to boththe Defendants/Part20 Claimants’ Schedule of Issues in respect of the alleged defects and the Claimant/Part20 Defendant’s response. Your report should in that process consider the industry standards required for the workmanship involved in this renovation."

[jaguarsuk]

URGENT.

So what i thought would happen, has exactly happened. They were buying time i think to get this other quote. However, the quote is not a named person. It doesn't contain any detail other than a number cost of around £479. No idea if its a chartered surveyor or who except the company is legit. Plus - we know that he knows people who are inspectors.

In our letter - we simply said that if any exploratory works are required then they need to let us know the process of deciding on this.

Please see their letter back today. Attached.

This is the paragraph in our letter he is objecting to too
"The Defendants/Part20 Claimants note that opening up and exploratory works may be necessary in order to investigate alleged defects. Please provide an outline of the process you would follow to determine this and any estimated fees."

Just read it, his schedule isn't your problem

If the purpose isn't to go through the schedule why provide it to the expert, of course it's for him to go through.

I'll draft a response letter.

[Ssssssssss]

There's not much more you can do than to wait on the reply, they are always going to claim you delayed the process by not providing the CV's sooner and so it's pointless pushing it to much.

URGENT.

So what i thought would happen, has exactly happened. They were buying time i think to get this other quote. However, the quote is not a named person. It doesn't contain any detail other than a number cost of around £479. No idea if its a chartered surveyor or who except the company is legit. Plus - we know that he knows people who are inspectors.

In our letter - we simply said that if any exploratory works are required then they need to let us know the process of deciding on this.

Please see their letter back today. Attached.

This is the paragraph in our letter he is objecting to too
"The Defendants/Part20 Claimants note that opening up and exploratory works may be necessary in order to investigate alleged defects. Please provide an outline of the process you would follow to determine this and any estimated fees."

[Ssssssssss]

There's not much more you can do than to wait on the reply, they are always going to claim you delayed the process by not providing the CV's sooner and so it's pointless pushing it to much.

Thanks Jaguarsuk. So the last we heard from them was on Wednesday 24th ( the deadline) of last week when they sent their draft letter of instruction and told us which CV they wanted to use.

We sent a message back on Thursday lunchtime saying if they can send back the word document of the draft instructions we can make some minor updates and then get it agreed and sent out.

We haven't heard a peep out of them since. Bear in mind they normally get back to us within a few hours.

So today (Tuesday 30th july), i extracted the text of the draft instructions from the PDF and then made the edits and sent it to them. I said that we don't see any reason in further delaying the instruction of the expert and that we want to send it out by 2pm Wednesday 31st July (tomorrow) and could they get back to us before then. But given the instruction is based on their draft anyway, we didn't see there was much issue.
I sent that around mid morning today (tuesday 30th).

We still haven't heard anything back from them at all.

I guess I'll wait till 2pm tomorrow. I said if we didn't hear anything then we would send our own instructions. Not sure what else we can do or whether we should let the court know if we don't get anything from them tomorrow ? Or whether we should indeed give them more time....the report needs to be submitted to court by 21st August - so all inspections and everything need to be done well before that.

[jaguarsuk]

Thanks Jaguarsuk.

OK - thats good as we aren't adding anything extra and i wrote the schedule to outline all the information we wanted to give an expert so i think we will be ok with it and as you suggested, removing our questions from the letter of instruction and going with their letter predominantly.

So we sent the other side a letter yesterday lunchtime saying we are pretty much happy with their letter but we just need to make some minor amendments - nothing major. Just to remove the start date of works (as this is in dispute) and tidy up some confusing inconsistencies in how they refer to us and them. We asked them to send the word document to us which we would mark up and make clear the changes we made and that we saw no reason why we couldn't get it sent out by Friday ( today) or Monday at the very latest (as it was almost ready) but if they could get the word document to us ASAP that would be great. We haven't heard anything back from them yet which means it won't be likely to go out today now.

Is there anything more we can do ? Obviously we have passed the court deadline now to instruct someone so should we force the issue in any way or just wait and see if they send anything ?

There's not much more you can do than to wait on the reply, they are always going to claim you delayed the process by not providing the CV's sooner and so it's pointless pushing it to much.

[Ssssssssss]

The schedule are the issues and that should be enough to guide the expert.

The schedule is what you have claimed, you can’t retrospectively add anything now, so if what is in the schedule isn’t enough unfortunately that’s it.

The solicitor is not angling at you for an extension, they are instructing the expert that if he can’t report in time they need to let you both know to allow you to apply to true court for an extension so he can report.

Thanks Jaguarsuk.

OK - thats good as we aren't adding anything extra and i wrote the schedule to outline all the information we wanted to give an expert so i think we will be ok with it and as you suggested, removing our questions from the letter of instruction and going with their letter predominantly.

So we sent the other side a letter yesterday lunchtime saying we are pretty much happy with their letter but we just need to make some minor amendments - nothing major. Just to remove the start date of works (as this is in dispute) and tidy up some confusing inconsistencies in how they refer to us and them. We asked them to send the word document to us which we would mark up and make clear the changes we made and that we saw no reason why we couldn't get it sent out by Friday ( today) or Monday at the very latest (as it was almost ready) but if they could get the word document to us ASAP that would be great. We haven't heard anything back from them yet which means it won't be likely to go out today now.

Is there anything more we can do ? Obviously we have passed the court deadline now to instruct someone so should we force the issue in any way or just wait and see if they send anything ?

[jaguarsuk]

The schedule are the issues and that should be enough to guide the expert.

The schedule is what you have claimed, you can’t retrospectively add anything now, so if what is in the schedule isn’t enough unfortunately that’s it.

The solicitor is not angling at you for an extension, they are instructing the expert that if he can’t report in time they need to let you both know to allow you to apply to true court for an extension so he can report.

[Ssssssssss]

OK - just to confirm, our schedule of issues says the following on tiling - do you think that is enough to replace our questions that we wanted to ask ? :-

1. Our complaint is not only about defective workmanship but also about goods and tiles being different to those contractually agreed and some paperwork not being supplied. We have included these items in the schedule.
2. In terms of workmanship, the most fundamental issue is tiling which all needs to be re-done. We have itemised specific defects with the tiling but it should, if possible, be treated as one whole issue rather than individual separate issues.

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Many tiling issues that need to be resolved are largely apparent due to poor setting out and fixing of tiles. In order to truly rectify these, a complete re-tiling of the bathroom is required. If the fundamental problems are not rectified and fixes are applied over the top on a piecemeal basis, it is likely to result in a patchwork quilt finish. Suitable matching tiles may not be found and repair of walls will be necessary. Additionally, other builders will not accept a piecemeal approach resulting in their taking on liability for someone else’s work.
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Dot and Dab tiling method has been used throughout, resulting in many voids behind the tiles and the tiles not being solidly bedded (voids can be heard). This type of tiling is never an approved method and does not conform to industry standards set out by the Tile Association (the trade association for the tiling industry) or British Standards. To bring tiling to industry standards and avoid premature failure of tiles, remove voids and solidly bed the tiles, the bathroom needs to be re-tiled. Please see Appendix A for further information.

Note: This method of fixing results in premature failure of tiles, is especially detrimental on large tiles and in wet and damp areas. It can cause tiles to become loose, fall out, cause moisture damage to the underlying wall and tile and tiling is generally weaker and more prone to cracking under pressure.
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The mosaic has been applied poorly and using dot and dab (see 3.1 above and Appendix A). This has resulted in unevenness and small peaks and troughs (lippage and trueness) throughout in addition to major problems with the grouting. It needs to be completely removed and re-tiled.

Before grouting, the mosaic had areas of adhesive missing behind it and tesserae were moving up and down and not secured by adhesive. We were told by claimants father that the grout would seep through behind the tiles and fill the significant voids and lift the tesserae into position. We have now been informed by the Tile Association that dot and dab is not acceptable and that it is not the job of grout to go behind tiles to secure them, wall adhesive should be behind all the tesserae and tiles should not be moving before grouting.

There are cracks and holes throughout the grout, excessive grout in some areas and not enough in others. Particularly bad at the top and bottom of the mosaic strip and the lower edges of many tesserae. We have been told that it appears a very wet grout slurry has been used and that if the grout is too wet, then it will be friable and likely to cause further failure and cracks in the future.

[Ssssssssss]

True. Oh i thought i'd put the schedules in ? I'd just stated that their schedule should remove all pictures (they submitted those falsified pictures later in to their schedule that i told you about).

We have said the expert needs to look at our schedule which outlines the issues at fault but their solicitor has tried to remove that if i'm not mistaken...or rather, be less specific. ?? Can i tell him i want to explicitly state that the schedule outlines the allegations of faults and the expert should look at specific issues and report on them ? Their solicitor i think is trying to say that the expert won't report on each allegation and will instead do his own report on whatever he finds regardless of what we say the problems are ??

Basically, I think what we are trying to ensure if that not only visible defects and investigated, but also defects that are hidden behind tiles should also be investigated. It does itemise those in our schedule though.

Also, i was just wondering if you think he might be trying to ask us for a 4 weeks extension given he has mentioned it in his letter randomly ? Reading between the lines that is.