Application Hearings - preparation, evidence questions

[Amethyst]

This is a hearing to decide on the applications and issue directions for the case moving forward. It is possible, from what you have said, that a jointly instructed independent expert survey will be ordered. The Judge may also order the defendant / counterclaimant produce the requested documents, and that you then file/serve a defence to the counterclaim. Of course the judge may just decide on the day.

Take absolutely everything related to the case with you to the hearing - 3 copies if possible ( one for you, one for the judge and one for the other side ) - don't be surprised if your documents and witness statement haven't reached the judge sitting on the day, one hopes he will have everything and have reviewed it before the hearing but far too often the documents aren't where they are meant to be.

Their documents being sent a couple of days late will be ignored... you can raise it ( particularly if it comes to a Costs issue ) but I wouldn't expect their documents to be disallowed because of it.

Their counterclaim sounds like it is solely for costs regarding your claim ? A counterclaim isn't the right way to go about that and presumably your strike out application says that. Part 18 isn't strictly applicable in small claims hearings however, your application isn't strictly for compliance with the request, and it shows you have given them opportunity to back up their claim. If the judge doesn't deem the counterclaim invalid as being solely for costs in the case and strike it out, he may order the documents you requested.

The surveyors drawings that you haven't previously seen - are the measurements correct on those compared to the product , if not to the original spec ? Are they claiming you signed off on those before manafacture /installation ? Or is this the surveyor drawings from after the initial complaint was made ?

Basically don't expect too much, be prepared for the court admin being useless and expect to come out with directions for the next stage.

[DeMycroft]

duplicate posts because I refreshed twice, apologies pls delete

[DeMycroft]

1. The dated Nov 2018 letter appearing as numbered Defence statement (addressed to court manager) and "Counterclaim" A4 page with list of figures claimed - not dated. These docs were referenced as "enclosed" in their "Defence and Counterclaim" forms I received from Northampton in Nov 2018. But all the "enclosed" were not included. At that time I called Northampton requesting these and the Court were very clear that no further documents were filed with them by the Defendant other than the Def & Counterclaim form. Hence my defence to the Counterclaim at the time to avoid judgement in default, see end of this earlier post,

https://legalbeagles.info/forums/for...24#post1491524

This is serious, the whole point of my 2nd Application (Part 18 alternatively with regard to CPR Rule 27.2(3))was to receive these docs from the Defendant. I wrote a recorded delivery request to the Defendant last year, April 2019, asking for them and they ignored my letter. Hence the application for an Order to get them. So now what is the point if they are sending these for the Application Hearing? And why should I bear costs for hearing.

2. There is a letter to Court (dated Nov 2018 again) and in one paragraph they use the words "borderline blackmail" about our email communication to settle. i.e the Defendant wanted to return to my* house 4 months after disputing the issue, cause unquantified damage to the property fabric to refit his product as "goodwill" and expected me to cover all the making good for the damage. I rejected that proposal as not reasonable and suggested we settle for very small amount. They now say my "intentions are not genuine" and* was "just looking to make money from the company". I am presently struggling to understand where the defendants are going with this but doesn't suggesting blackmail in a letter to court amount to criminal allegation?

3. Their material was served late and at least 3 days within the period set by the court before hearing. It would require hours to read in court or even present without any Witness Statements. How can they bring this in? How should I prepare e.g make a new Supplemental Witness Statement? I would need to disclose material before the Case Hearing which is not even set yet.

4. Surprisingly the drawings of their surveyor show a dimension figure* that I brought up many times in our communications. They never accepted it or comment on it. Their Defence wording is omitting emails, twisting the course of factsit never addresses the heights agreed for the bifold system which reinforces my view that the expert report is absolutely necessary. Last there is no single mention of the expert report that I served them over a year ago.


COSTS

Can I present costs at this Application Hearing?

Expert costs
My costs for the day
Application costs e.g £200 for unnecessarily having to file the application because they did not reply to my request letter.


Time is very limited and I would not be able to prep all the case to have along just for the application hearing. Any help is much appreciated!

[DeMycroft]

sorry duplicate post

[DeMycroft]

Take absolutely everything related to the case with you to the hearing - 3 copies if possible ( one for you, one for the judge and one for the other side ) - don't be surprised if your documents and witness statement haven't reached the judge sitting on the day, one hopes he will have everything and have reviewed it before the hearing but far too often the documents aren't where they are meant to be.

So basically should I expect a mess?
I can't see how a judge would be able to look at all this detail, it would be hours of hearing. What can happen in this case?

I am getting stressed because I expected the hearings to be narrowed down to the applications.

Also wanted to understand if I have to file anything asap, of course now I have to print voluminous material that I planned doing with my final Witness Statement for the Case hearing.

Their documents being sent a couple of days late will be ignored... you can raise it ( particularly if it comes to a Costs issue ) but I wouldn't expect their documents to be disallowed because of it.

Hopefully I covered part of this in my numbered post no.1 , sorry there was a delay it was supposed to follow the post you replied to. I made a request for the docs and we now end up at a hearing and they send the docs for the hearing. It is a bit pointless but I don't know how the court works in this case. I just want my application cost and obviously why should we wasted time for hearing on this application if the material is now disclosed.

I need to figure out what is going on with the courts and if these documents were filed or not in reality. If they were not filed and it forms a Defence, my understanding is that the defendants cannot use it because it was not filed with their Defence in Nov 2018.

Their counterclaim sounds like it is solely for costs regarding your claim ? A counterclaim isn't the right way to go about that and presumably your strike out application says that. Part 18 isn't strictly applicable in small claims hearings however, your application isn't strictly for compliance with the request, and it shows you have given them opportunity to back up their claim. If the judge doesn't deem the counterclaim invalid as being solely for costs in the case and strike it out, he may order the documents you requested.

Yes, this is why I applied with regard to CPR Rule 27.2(3) to the court's discretion. This was without hearing but court arrange the hearing. The CC is for costs of "business time loss". I don't want to open all my cards at the app. Hearing but may have to if I have to. The key is, can the business claim loss of time in communicating with me while I made every effort to resolve? It sounds ludicrous and bogus.

Also they are saying that I am after money, when the settlement figure was 25% of the cost of the remedial works and now, they are asking for 12k loss of time. Sound to me like they are after the money.

The surveyors drawings that you haven't previously seen - are the measurements correct on those compared to the product , if not to the original spec ? Are they claiming you signed off on those before manafacture /installation ? Or is this the surveyor drawings from after the initial complaint was made ?

edit:the drawings are from their surveyor, hand writing (allegedly from when on site or before placing the order)
The measurements in the drawings are NOT matching the actual product height, but they are matching what is written in the contract - whic he wrote. Which is the basis of my claim. Every time I asked the defendants to provide explanation for the error, or write down figures for these dimensionz, they refrained going into detail or deferred the issue about their product.

[DeMycroft]

Their counterclaim sounds like it is solely for costs regarding your claim ? A counterclaim isn't the right way to go about that and presumably your strike out application says that. Part 18 isn't strictly applicable in small claims hearings however, your application isn't strictly for compliance with the request, and it shows you have given them opportunity to back up their claim. If the judge doesn't deem the counterclaim invalid as being solely for costs in the case and strike it out, he may order the documents you requested.

Can you please elaborate on this part, so if the company is trying to counterclaim for costs then the judge may strike out? The CC is clearly shows as loss of business time but it is ridiculous.

They attempt to show my email comms for chasing them up for months to explain the error and come out to check the work as loss of their tome. But also claim their time to prepare for Defence to collate the documents. I cannot see how a company can claim this, as we got to that point after I exhausted pre-action to death.

[DeMycroft]

Amethyst*

Thank you for all the points above. Could you please help a little more as the hearing is a week away. Just in case I need to file something before then.

Can you help with Post #21 and also,

COSTS, now that Defendant suddnely served a bundle the application for the request of documents could have been avoided. Can I flag to the judge for the cost of application. I have recorded delivery for the letter request and clearly mentions I will apply for Order. They ignored me and it has been 8 months since. Plenty of time, now they make the hearing redundant.

*

[Amethyst]

The product built and installed does not meet the specification (measurements) given in the contract or surveyors report which gave rise to the contract.

You have an expert report which states the actual measurements of the fitted product.

If the product was manufactured to the measurements given in the surveyors report and contract it would have been correct.

I can't see that they have much of a case. The incorrectly manafactured doors should have been replaced with the correct spec doors at the companies cost.

They never offered to do that - just do a bit of a bodge job to try make them fit - and then only after 4 months during which time you simply lost all faith in the company to do the work correctly and therefore were within your rights to ask for a refund.

Any loss of time the company are claiming is due to their error. So long as you haven't acted unreasonably ( and expecting the product and service you agreed to and paid for is not unreasonable ) there shouldn't be an

Don't let the company's behaviour and lack of compliance with court directions distract you - it should be a simple case - concentrate on making your case and let them dig their own holes. We see often one party to a case try to complicate matters and bury the other in paperwork and procedural issues - mainly hoping to scare you off proceeding with the case - Judges have seen it all before.

[DeMycroft]

Thank you so much for all the points Amethyst , you are bang on the issue.

It is the procedure I am concerned about, I don't have court experience. So just to file anything with court in good time before hearing if necessary.

How do I go about the fact they now served a bundle with documents I was trying to obtain from one of the applications?

The product built and installed does not meet the specification (measurements) given in the contract or surveyors report which gave rise to the contract.

You have an expert report which states the actual measurements of the fitted product.

It is worth noting the report was served to the Def with the PoC after the Claim. For over a year the Def make no mention of the report or findings that the system is shorter. Of course the report would not be necessary if they accepted a survey. I understand* until court admits it into evidence at the hearing, it is not official evidence. But sitll forms a basis for my claim.

They still argue it was my fault to notify them months later. As if I had to survey their work for them.
The project was ongoing and they knew, I dealt with a heavy load of issues. When this became apparent from the tiling contractor it was* too late to stop the works or fix it. Eitherway it was the company's surveyor job to evaluate when installed. The exterior finishes around the doors were complete and decorated.

Unless someone had a laser level (as the tiler did) or the expertise, it was not possible to anticipate. So whether I notified them 2 weeks after installation or 3 months later, the damage required to put this right is exactly the same. I have tons of photographic evidence to show stages of work days after they completed installation.

I am not sure how to present "dated" photo evidence metadata though. Does this fall under what they call "balance of probabilities" a DJ relies on to make decisions?

Don't let the company's behaviour and lack of compliance with court directions distract you - it should be a simple case - concentrate on making your case and let them dig their own holes. We see often one party to a case try to complicate matters and bury the other in paperwork and procedural issues - mainly hoping to scare you off proceeding with the case - Judges have seen it all before.

It seems my local court is an exception and it has taken a year to even arrange an application hearing. On average it takes 2 months to get a reply on a letter. All the stalling and delay has been a blessing for the Defendant.

[Amethyst]

Can you send me your application and their counterclaim pls - admin@legalbeagles.info - be far easier if I know what the application subject of the hearing is..,

Applications were made via N244,

1. the*first*one is asking permission to admit a survey we carried out as a last resort, an independent assessment to which the company did not agree or participate. I was advised to seek permission as it forms expert evidence in SCT (CPR 35.4). The court require that it was done through N244.

2. The*second*application came about due to a counterclaim made by the company. There is absolutely no legal basis for the CC but it was not even supported by any documents. At the time I had a phone consultation and was advised by solicitor to file request for information, CPR P18 subject to discretion from the court. I filed an Order to request the documents that substantiate the CC or strike out. I followed some example on this forum.

They're claiming you lost the right to reject as it was over 30 days and refused their offer to rectify/repair or replace I assume? ( consumer rights act )

[DeMycroft]

I will prepare and send as soon as I get back. I can send PoC, CC and Apps with WS, redacted info if it helps?

EDIT: emailed

They're claiming you lost the right to reject as it was over 30 days and refused their offer to rectify/repair or replace I assume? ( consumer rights act )

We have not involved the consumer Act in the dispute comms or during legal. I have not rejected the product. The claim is for breach of contract. The contract has a section with express "position" dimensions for the installation. The height fitted is higher than agreed and possibly door is shorter in height too.

[Amethyst]

okay.

The applications which are the subject of the hearing.

1) to allow an expert report to be adduced into evidence. * I can't see any issue with that.* The other side may argue it wasn't a mutually agreed expert and ask the court to order the parties agree a jointly instructed expert report. *

2)The application is for the counterclaim documents to be ordered - the documents were mentioned in the counterclaim and you requested them under CPR 18 ( should really have been CPR 31.14 for documents mentioned in a statement of case, Part 18 is for 'questions' rather than copies of documents ) but the court should overlook that as minor procedural.* Anyway, the documents requested have now been produced prior to the application hearing.* When you attend the hearing you can inform the court the documents were provided on XX date, however there is still the matter of the costs of the application. * It is likely these will be reserved for the outcome of the final hearing. *

You will now have to file a defence to the counterclaim - I'd draft this and take it to the hearing. *

At the hearing I think* I'd argue for the counterclaim to be struck out as it solely deals with the defendants alleged costs in the case and there is no basis for their claim for loss of profit.

[DeMycroft]

Firstly a big thanks for reading the docs!

1. I want to demonstrate the other party refused to support their position with evidence as their self-survey visit blew back to their face. They then refused to take part in an impartial survey. As they are a mid-size company with tools and expertise my only reliable source was an expert to bring the claim. I may lose the hefty fee paid if the judge instructs another, mutually, agreed expert.

Question is, how are we ever going to agree and how will the DJ decide who to instruct?

Could I challenge the other party to clarify which aspect of the report they disagree with at the hearing? Just to narrow down what they disagree with and ask to be added in the report, rather than commission an entirely new report with further costs.


2. I admit that I had to figure out several CPR after the case moved forward. I did not imagine the company would double down with such a clear margin error.

I understood CPR 31 does not apply after the case is allocated to SCT. I realised in hindsight I should have served the request before allocation took place. So I went with CPR18 subject to court's discretion, as a broader tool to ask for the docs but also a "question" to disclose their measurements from the site visit (which they have not to date). As you said, I hope they can overlook the procedural and see through the bogus counterclaim.

however there is still the matter of the costs of the application. It is likely these will be reserved for the outcome of the final hearing.

Can I argue that the Def made no contact at all, they knew about the hearing set since July 2019 and they should now cover the cost for the application?

You will now have to file a defence to the counterclaim - I'd draft this and take it to the hearing.

What happens with the Defence I filed within the 14 day window back at the time to avoid judgement in default? See end of post #4

Should I draft an improved version and follow your points above to take at the hearing?

Also the bundle they* served is without any Witness Statements, letter or index explaining anything.*I want to complain to the judge it would be unfair if they can bring up whatever they want at the hearing.

[DeMycroft]

Amethyst*
sorry to pester you, it is just that the hearing is only 2 days away and I wanted to clarify this last part about Drafting a new Defence to Counterclaim (see post above please).

Any tips for the application hearing? I am quite nervous...

Many thanks, all the help here is greatly appreciated!

*

[DeMycroft]

Hi Amethyst*

I had the applications hearing today and that was almost fine but the judge instructed parties start negotiations again!

This has confused matters for me and I am not sure how to handle. Please see my second post below, next part is just the hearing from today.

Hearing

The judge was fairly uptight and strict but possibly trying to appear as striking a balance. It appears the judge had gone through the material and noticed parts to flag.

The Defendant (glazing co.) was represented by one of the Directors. They did not appear to understand a lot about procedure when the judge started asking about the applications, he even told them off that being non-legally trained is not excuse.

1. The first app for admission of the report went fast, the judge asked the Defendant if they objected admitting it into evidence. The Director had copy in front of him (they have had it for year without commenting). They said they did not object! They later told me personally they would contest it at trial and have no problem with it.


2. The second application for documents. It was flagged that Def had not "enclosed" documents referenced when filing their Def & CC form. The judge added that documents were filed for the application hearing, but had no Witness Statement and admonished the Director about material presented like this. The judge addressed me and asked if I wanted to amend my Counterclaim. We agreed 14 days to file an amended CC, I refrained filing my Draft Defence to CC as I lost confidence for the reason below.

I raised the point by virtue of the hearing, that CC was based solely on costs and there was no basis for projected loss of profits. I went on asking for an order to strike out. The judge argued they noted my points but were the ones to decide on the order and decision was they "will not make such order today". This was very disappointing. I don't feel I got much latitude by the judge on this, I believe they had a plan to make the parties negotiate. See below.



3. The judge addressed both parties and in short proposed a recess so that we have another attempt to negotiate* a solution in view to save trial. He went on lecturing a bit, supported that we may both have set out our cases and feel confident about the grounds but he is the one to ultimately decide. If this proceeds to trial either one of us could lose the case and/or suffer costs. I am not sure why the judge instructed this but I had not planned to discuss with the other party after 1.5 years, following months of ridiculous exchange of emails. However I did not want to take a risk appearing as a party not cooperating in front of the judge, it would most likely work to my detriment.

4. A room was provided for half an hour, we sat down on friendly tones with the Def and agreed that we disagreed. The Def proposed that if I withdraw the claim they will withdraw the Counterclaim. I said that leaves us where we were 2 years ago, now with costs incurred for court and the expert on my end. They tried to say that I dragged them in court but of course because they refused to cover their cock up.

They also made the same old offer, to return on site and reposition the system as "goodwill". They proposed minimum damage, also bring their builders to quantify the making good work allegedly with lower costs than we have been quoted. But made clear again they will not cover the cost of the making good. I explained this was very difficult to accept as we could end up in another dispute and it sounds insane to allow them back after 1 year in court.

*Something I gather, their key argument is that our builders should observe the doors were at wrong height while overseeing the project and notify them before the finishes were applied around the doors. To some extend I could see this having some gravity with the judge but hard to say how much. They will also argue I accepted the product and it works fine.

**The door is still in the wrong position no matter what they say. It can be proved by their survey and evident from multiple points of reference. The report does not go into glazing specialist matters, it just interprets the contract and shows system measurement being shorter than agreed - for the record. In person outside the court they implied they will contest the contents of the report at trial anyway.


5. The judge invited us back in the courtroom before we conclude, I explained that we needed more time to negotiate. The judge ordered 8 weeks, I am not sure what Orders the court will send out but I still have to do my Defence to Counterclaim in two weeks.

The judge mentioned costs, I asked for just the application fee. He set the decision if we proceed to trial they will add £100 of my "application to the documents" cost. I regret not adding my day rate loss as we are trying to work something out.

They asked ETA for the trial and noted 2 hours, although, I flagged 3 hours may be better due to voluminous communications to be read with the Defendant. The judge was not particularly happy to allow and asked that material is limited to absolutely necessary (rightly so), but when the Def references a tone of emails I would have to address it in my WS too.

All in all mixed feelings.