My error in Particulars of Claim

[jessiesom]

This was my particulars of claim submitted via MCOL if that's any help with the above JAGUARSUK and 2222:

I,the Claimant contracted the Defendant to supply building services which he attended my flat to do on xx-xx-2019.The Defendant was required to carry out these services with the reasonable care & skill required by the Consumer Rights Act 2015.He breached this by damaging my newly installed wood floor by carving into it with a blade when he cut into the protective floor covering I had laid down in his presence and as he also did not complete with reasonable care & skill many of the other services he had been contracted to provide.The Defendant also breached my right to privacy in my home by filming a friend and I there without our consent.Following this he has neither responded to email contact or the letter before claim.I claim the sum of £xxx to repair & replace the damaged floor.
The claimant claims interest under section 69 of the County Courts Act 1984 at the rate of 8% a year from xx-xx-2019 to xx-xx-2019 on £xxx and also interest at the same rate up to the date of judgment or earlier payment at a daily rate of £0.x.

Thanks again all.

[jaguarsuk]

It doesn't matter that you did mention any documents in your PoC, it demonstrates that you know the procedure and are following it by mentioning CPR 31.

Not disclosing documentation is not grounds for strike out unless the court has ordered it, they are trying to scare you into handing it over now to allow them to argue against it in their Witness Statement. As you'll send your Witness Statement as close to the deadline when the court orders disclosure they wouldn't get that opportunity if they can't trick you.

[jessiesom]

It doesn't matter that you did mention any documents in your PoC, it demonstrates that you know the procedure and are following it by mentioning CPR 31.

Not disclosing documentation is not grounds for strike out unless the court has ordered it, they are trying to scare you into handing it over now to allow them to argue against it in their Witness Statement. As you'll send your Witness Statement as close to the deadline when the court orders disclosure they wouldn't get that opportunity if they can't trick you.

Thanks Jaguaruk. I need to find something more superlative than that to say, as you and the other people on legalbeagles have really helped me and for that I’m hugely appreciative. Is it an issue in your opinion that I only provided the builder with a breakdown of the elements of his work which were carried out in breach of the CRA in an email and the LBA, both of which he denies receiving despite my having the sent message in my email sent box and a receipt for postage for the LBA, and not the particulars of claim as he has also stated that this has prevented him from providing a defence to the claim? Thanks again

[R0b]

A pleading in the defence cannot oblige you to disclose all documents relied upon as part of your claim, it is statement which sets out the defendant's position on whether he accepts or denies the claim. There's nothing in the Civil Proecure Rules that I know about, which says that you must comply with a disclosure request in the defence. In other words, it's just bluff.

There is however, Part 31 of the CPR as alluded to by JaguarsUK, where the Defendant can make a request under that Part for disclosure. Part 31 doesn't apply to cases allocated to the small claims track but I am always of the view that up until the case has been allocated to that track, Part 31 remains applicable and it is open to either side to make a formal request for disclosure. This is because 27.1(a) states that Part 27 applies to cases that have been allocated to the small claims track.

That said, they could make a formal request and if you refused to comply and the defendant subsequently made an application for disclosure with costs, then it is possible that there's a risk you might receive an adverse costs order.

If I was in your position, I would ignore completely the point about having to disclose the documents for reasons I mentioned above. However, if a formal request is made, then I don't see any reason why you shouldn't provide the documents in accordance with CPR 31.

It's difficult to try and assist without seeing the defence/counterclaim - are you able to post up a redacted copy?

[jessiesom]

A pleading in the defence cannot oblige you to disclose all documents relied upon as part of your claim, it is statement which sets out the defendant's position on whether he accepts or denies the claim. There's nothing in the Civil Proecure Rules that I know about, which says that you must comply with a disclosure request in the defence. In other words, it's just bluff.

There is however, Part 31 of the CPR as alluded to by JaguarsUK, where the Defendant can make a request under that Part for disclosure. Part 31 doesn't apply to cases allocated to the small claims track but I am always of the view that up until the case has been allocated to that track, Part 31 remains applicable and it is open to either side to make a formal request for disclosure. This is because 27.1(a) states that Part 27 applies to cases that have been allocated to the small claims track.

That said, they could make a formal request and if you refused to comply and the defendant subsequently made an application for disclosure with costs, then it is possible that there's a risk you might receive an adverse costs order.

If I was in your position, I would ignore completely the point about having to disclose the documents for reasons I mentioned above. However, if a formal request is made, then I don't see any reason why you shouldn't provide the documents in accordance with CPR 31.

It's difficult to try and assist without seeing the defence/counterclaim - are you able to post up a redacted copy?

Thanks Rob. I’ll post the redacted defence/counterclaim and my redacted reply to defence and defence to counterclaim this evening. I have to post it in the morning, so time is not on my side, although I hope I’ve written decent responses with the help of yourself, JaguarsUk and everyone else here who has posted. My main worry at this point is that the builder is staying that I didn’t provide enough information about which specific jobs were in breach of the CRA, as I simply said his work had been in breach of the CRA as it was not carried out with the required care and skill, although I had informed him of these in the LBA.

[jessiesom]

I've attached the redacted Defendant's Defence to my Particulars of Claim (above) and his Counterclaim.
Thanks again to everyone for reading and assisting me.
I have to print and send my documents proper tomorrow so any sage advice received this evening will be gladly received and acted upon. I couldn't have got this far without the help provided on this forum. I remain worried about Paragraph 1 of his defence which references my Particulars of Claim which are posted above, despite the fact I provided the builder with an emailed breakdown of the jobs he had not carried out with the required care and skill. I also provided this list in the LBA.
I've added a link to my (lengthy) Reply to Defence and Defence to Counterclaim. It's a long document, but any suggestions would be helpful. Thanks
https://send.firefox.com/download/d1...x_DPR8n033q9Bg

[jessiesom]

Is there a consensus opinion on opting for mediation when I return the documents to the court please? I want to be reasonable, however given how dishonest the builder has been I don't hold out any hope of mediation being successful.

[R0b]

If you are struggling to upload the docs on here why do t you upload them to a site and prove a link? You can use Forefox send for this - link below.

https://send.firefox.com/

[jessiesom]

If you are struggling to upload the docs on here why do t you upload them to a site and prove a link? You can use Forefox send for this - link below.

https://send.firefox.com/

Rob, thank you, I've been struggling for the last hour or so with this. I've posted the link now.

[R0b]

So this is a very quick job but I've attached a word version of your Reply and Defence to Counterclaim.

The Reply and Defence to Counterclaim can actually be done on the same document, it doesn't need to be separate nor do you need to refer to the defendant as the Part 20 Claimant - You refer yourself as the Claimant and the Defendant.

What I suggest is you finish off the document where I've made some highlights in the Reply and then copy across your paragraphs for the Defence to Counterclaim. note the paragraphs between your Reply and Defence should be continuous.

A couple of stylistic points to tell you about:

1. I've set the document up so it automatically formats the numbering. You'll see in the toolbar section:

Level 1 Paragraph corresponds to 1, 2, 3, 4 etc.
Level 2 Paragraph is 1.1, 1.2, 1.3, 1.4 etc.
Level 3 Paragraph is (a), (b) (c) etc.


If you want to switch between the levels, just click on the one you need to use and Word will do it for you.

2. Some of the paragraphs in your Defence to Counterclaim could be condensed into the same paragraph. I wold suggest splitting them out into numbered levels, like have done for example in paragraph 2 of your Reply.

As an example, let's take paragraphs 3-12 of your Defence seem to relate to paragraph 3 of the counterclaim (I'm not sure that's correct as you going to refer to emailing which suggests paragraph 5 but you need to decide whether that's correct or not). If you feel like your paragraph is going to be quite long, you could say something like:

"3. The Claimant admits calling the Defendant on said date but denies saying to the Defendant that he knowingly caused the damage. Without prejudice to the foregoing denial:

3.1 The purpose of the call was to discuss ...

3.2 It was explained to the Defendant that she was currently travelling and would not ...

3.3 <add further points>."

Now that might not always work but it just looks a bit better to read when trying to understand what paragraph you are referring to.

If you have a stab at that and post the revised version back up I'll take a look - I will be around for the next couple of hours.

P.s. you'll notice I've made some tweaks to your original, and also added a new paragraph 6 to counter the Defendant's paragraph 8.

[jessiesom]

So this is a very quick job but I've attached a word version of your Reply and Defence to Counterclaim.

The Reply and Defence to Counterclaim can actually be done on the same document, it doesn't need to be separate nor do you need to refer to the defendant as the Part 20 Claimant - You refer yourself as the Claimant and the Defendant.

What I suggest is you finish off the document where I've made some highlights in the Reply and then copy across your paragraphs for the Defence to Counterclaim. note the paragraphs between your Reply and Defence should be continuous.

A couple of stylistic points to tell you about:

1. I've set the document up so it automatically formats the numbering. You'll see in the toolbar section:

Level 1 Paragraph corresponds to 1, 2, 3, 4 etc.
Level 2 Paragraph is 1.1, 1.2, 1.3, 1.4 etc.
Level 3 Paragraph is (a), (b) (c) etc.


If you want to switch between the levels, just click on the one you need to use and Word will do it for you.

2. Some of the paragraphs in your Defence to Counterclaim could be condensed into the same paragraph. I wold suggest splitting them out into numbered levels, like have done for example in paragraph 2 of your Reply.

As an example, let's take paragraphs 3-12 of your Defence seem to relate to paragraph 3 of the counterclaim (I'm not sure that's correct as you going to refer to emailing which suggests paragraph 5 but you need to decide whether that's correct or not). If you feel like your paragraph is going to be quite long, you could say something like:



Now that might not always work but it just looks a bit better to read when trying to understand what paragraph you are referring to.

If you have a stab at that and post the revised version back up I'll take a look - I will be around for the next couple of hours.

P.s. you'll notice I've made some tweaks to your original, and also added a new paragraph 6 to counter the Defendant's paragraph 8.

Rob, thank you so, so much. Apologies for posting this so late. I didn't see your reply until around midnight, I worked on the amendment until 2am and I've been up since 5.30am completing it. Here's the link to the amended document, I did my best which i hope is good enough. Your formatting was massively helpful and made the document much clearer for me, so I hope that the Judge will find the same. I'll print and post around lunchtime, hoping that you might be able to take a look.
I have 2 questions which I hope you might be able to help me with:
1. I changed myself from the Claimant to the Defendant in the Reply and Defence to the Counterclaim respectively. Is that correct as it seems rather confusing?
2.Would you recommend choosing the mediation option on the directions? I believe given what has unfolded so far that it won't be effective, equally I don't want to be seen to be unreasonable.
https://send.firefox.com/download/32...ryR9D4ONhdvOqA

I'm enormously grateful to you for taking the time to help, thank you again.

[R0b]

Obviously I can't comment on the specifics of what you've written but I think presentation-wise, that looks better and easier on the eye. I did see that in some of the paragraphs you say "Paragraph 22.(b) is admitted/denied". You don't need to actually put a full stop after the number but if you do, then you should repeat it throughout - In the paragraph examples I had written, I didn't add the full stop so you might just want to read through and double check.

In answer to you questions:

1. Maybe I didn't make myself clear in my last post, what I meant was remove the Part 20 bit as it was not necessary so throughout both the Reply and the Defence to the Counterclaim, you are always going to be referred to as the Claimant and the Defendant as the Defendant. So in Paragraph 8, you should have kept it like I did originally and say "The Claimant repeats the Particulars of Claim..."

I think therefore in the Defence to the Counterclaim, you need to refer to yourself as the Claimant and the Defendant being the Defendant.

Does that make sense?

2. Whether you agree to mediation is up to you, if you don't and a judge asks why, you need to have a reasonable explanation. The courts expect parties to use litigation as a last resort and so using the small claims mediation service ticks that box. However, I find the service to be useless. Nothng stops either party from sending a letter to the other inviting them to make an offer of settlement or even make an offer themselves, that would still tick the box of making attempts to avoid litigation (this is what I tend to do in small claims cases and tick no on the questionnaire). If you agree to the mediation service, then a hearing date will not be given until after that mediation has taken place which could delay a date to be given by several weeks.

[jessiesom]

Obviously I can't comment on the specifics of what you've written but I think presentation-wise, that looks better and easier on the eye. I did see that in some of the paragraphs you say "Paragraph 22.(b) is admitted/denied". You don't need to actually put a full stop after the number but if you do, then you should repeat it throughout - In the paragraph examples I had written, I didn't add the full stop so you might just want to read through and double check.

In answer to you questions:

1. Maybe I didn't make myself clear in my last post, what I meant was remove the Part 20 bit as it was not necessary so throughout both the Reply and the Defence to the Counterclaim, you are always going to be referred to as the Claimant and the Defendant as the Defendant. So in Paragraph 8, you should have kept it like I did originally and say "The Claimant repeats the Particulars of Claim..."

I think therefore in the Defence to the Counterclaim, you need to refer to yourself as the Claimant and the Defendant being the Defendant.

Does that make sense?

2. Whether you agree to mediation is up to you, if you don't and a judge asks why, you need to have a reasonable explanation. The courts expect parties to use litigation as a last resort and so using the small claims mediation service ticks that box. However, I find the service to be useless. Nothng stops either party from sending a letter to the other inviting them to make an offer of settlement or even make an offer themselves, that would still tick the box of making attempts to avoid litigation (this is what I tend to do in small claims cases and tick no on the questionnaire). If you agree to the mediation service, then a hearing date will not be given until after that mediation has taken place which could delay a date to be given by several weeks.

Rob, thank you for all of your advice again here, your answer to my first question helped me to not accidentally make myself the 'defendant' in the Defence to Counterclaim which was useful! JaguarsUK and everyone else who has helped me, thank you too.
I believe that using your suggestions I have submitted a cogent reply and defence.

I'm struggling to I establish what date the Counterclaim was deemed served on me, how would I discover this please? I ask as I know that I had 14 days to file my defence to Counterclaim and I might have to serve the documents by hand this weekend, as the date on the transfer of proceedings document from the Court with which I received the Counterclaim was the 16th September. I posted my Defence to Counterclaim by first class mail to the defendant today and filed the documents directly with the court. Once I have this sorted out, I can catch my breath I hope.

[R0b]

If you received on the 16th then I would take it as 14 days from that date to be certain which means you have until 30th. Even if you serve personally, it won't be deemed served until Monday, or you can send first class tomorrow which means deemed service is also Monday.

[jessiesom]

That is very reassuring Rob, thank you. I’ve not missed the deadline then as I sent a copy to the builder yesterday via first class post and I also filed 1 copy directly with the Court.Do you know if I should have filed 3 copies with the court, as some people have mentioned that you need to do this for all 3 parties (including the court)? I can always return on Monday to do this if needed.