Next steps after non-compliance with instructions?

[Leaglet]

Hello,

Apologies in advance if I'm in the incorrect subforum, I'm new to LegalBeagles and this seemed the most fitting.

Background:
I submitted a claim (as a LiP) against a large, national building contractor for having breached the contract (did not undertake work expressly written in the contract) and for substandard work after they threatened legal action for withholding ~10% of the contract value. The defendant then submitted a counterclaim stating that I owed them the 10% and statutory interest (per the contract for failure to pay, despite having never met material completion).

The defence is essentially that they did not complete the work as contracted because we asked the onsite team not to do it and that the work is acceptable, which is nonsensical because (1) the contract value was never decreased despite them having to do less work, (2) the written contract was never varied, (3) their initial correspondence when the dispute began states they did not undertake the work as a decision was made on site that it wasn't necessary and (4) I have emails from them stating that they think that the work was substandard, took far too long and that the people they subcontracted to do the work misrepresented their skills (i.e. were not specialised to undertake the work that they did).

The case has been allocated to small claims track, and despite me referencing the aforementioned emails, the court instructed that expert testimony was required to comment on the standard of the work.

Issue:
The court instructions stated that both parties had to identify an expert by 18 April 2022 and instruct them by 25 April 2022. I sent my list of experts to the defendant but they failed to do the same, and ignored my list of experts - meaning that neither party could agree upon nor identify an expert to instruct.

I informed the court of this by post & email, and they have responded with:

1. An application must be made by issuing the appropriate application notice (“expert evidence”), e, of the order of 4 April 2022.
2. The application fee paid, (or remission in full or in part sought).
3. Evidence in support must be filed which complies with Civil Procedure Rules 1998 Part 32 Rule 32.8 and its Practice Directions 17, 18, 19 and 20. Being a written statement which must include the maker’s full name and address, occupation, be signed and dated and have a statement of truth namely “I believe that the facts stated in this witness statement are true”, and specify in the evidence in support precisely what order is sought.

Question:

My previous letter asked the court to instruct us on how to proceed as we could not comply with the order as the defendant has been non-compliant in jointly instructing an expert. From their response, I can gather that they would like us to submit an N244... but I'm not sure what for? My thoughts right now are that I should apply for an application to strike out / unless order for non-compliance - does that sound reasonable?

My concern is that, based on prior research, there are risks involved in an application for strike out? I had considered it previously due to the nonsensical defence and counterclaim (as well as their attempts to use pre-action protocol as a tactical device, refusing to provide an itemised bill and other issues) but thought better of it after further reading. However, in this circumstance, it seems to be my only option?

Any advice or suggestions for further reading would be much appreciated, thanks for taking the time to read!

[atticus]

The usual course in this type of situation is that each party submits its proposed expert, with details of qualifications, fees etc. the Judge will then decide.

So you will need to apply for an order of the court nominating the expert, with a supporting statement explaining the reasons and providing details of your proposed experts as above.

[Leaglet]

The usual course in this type of situation is that each party submits its proposed expert, with details of qualifications, fees etc. the Judge will then decide.

So you will need to apply for an order of the court nominating the expert, with a supporting statement explaining the reasons and providing details of your proposed experts as above.

Thanks for your reply.

The issue is that the instructions from the court state that '...evidence be given by a single expert who is to be instructed jointly by the parties...' and that '...if the parties cannot agree about who to instruct the parties must apply immediately to the Court for further directions.'

I did procure a list of experts, and provided them to the defendant, but they did not do the same and they refused to comment or agree to any of the experts I provided.

I sent a letter explaining this to the Court, as well as the fact that of the 50 or so experts I called, none said that they would be willing to accept instruction if they did not receive it prior to the 12 April 2022 (due to the deadline for producing the report by 16 May 2022).

So I'm not sure whether I'm supposed to be applying for strike out now or not, since the Court's response was to submit an application notice despite me explaining that the defendant had been non-complaint with the court order? Hope that makes some sense, I'm a bit lost as you can tell

[atticus]

The timetable may need to be updated.

[Leaglet]

The timetable may need to be updated.

Now it does, yes, I agree.

However, both parties did have ample time to procure a list to identify experts and come to an agreement for joint instruction... but now that the defendant hasn't complied with the court order to provide a list and to agree upon an expert, I would still have to pay a fee to submit an N244 for an extension?

That doesn't seem particularly fair considering I complied with the court order, since as I understand it, the person submitting the application notice is liable for the fee and I'm not even sure I could claim that fee as costs.

Hence my confusion over whether I should apply for strike out or not?

p.s. thanks again for your swift reply.

[atticus]

You have been told that that '...if the parties cannot agree about who to instruct the parties must apply immediately to the Court for further directions.'

That is what you must do. You may be able to obtain an order for payment of your costs of making the application.

[Leaglet]

You have been told that that '...if the parties cannot agree about who to instruct the parties must apply immediately to the Court for further directions.'

That is what you must do. You may be able to obtain an order for payment of your costs of making the application.

That makes sense but my understanding was that application notices had to rely upon CPR but I can't find much on that except for Practice Direction 18, which mostly seems to relate to the handling of documents and evidence between parties than for specific directions from the court. Do you happen to know under what CPR I would apply, or where I could research this further?

Sorry for burdening you with repeated replies!

[atticus]

Part 35 contains the rules in relation to expert evidence. Part 23 deals with applications for Court orders. Your application would be for further directions as per the order from which you have quoted. If you need a rule, try rule 3.1.

[Leaglet]

Part 35 contains the rules in relation to expert evidence. Part 23 deals with applications for Court orders. Your application would be for further directions as per the order from which you have quoted. If you need a rule, try rule 3.1.

Thank you for all your help, looks like I have some further reading to do - much appreciated!