Small Claims Court Strategy Advice

[Recently_Bereaved]

Good mornings peeps. I would be grateful for advice on my Small Claims case. Here is a summary to date:

1. I had some building work undertaken
2. The work was completely uneventfully
3. The work took several months and the builder invoiced multiple times during the course of the work
4. I paid all of his invoices promptly
5. Many months after the works were finished he started pre-action saying I had failed to pay all of the money
6. I checked and double checked and contrary to his assertion I believe I had actually overpaid
7. Both sides maintained their positions
8. The builder put in a small claim
9. I responded with a counterclaim
10. I submitted my witness statement (and supporting bank evidence)
11. The Court deadline for submissions came and went and he initially did not submit any witness statement or evidence
12.He finally submitted his evidence about 3 weeks after the deadline and in essence manipulated everything around my disclosed evidence to try and make things 'fit' from his perspective
13. His solicitor has contacted me this morning, without prejudice, offering to withdraw their claim on the condition I drop the counterclaim
14. They want a response by 5pm today as the hearing fee is payable by tomorrow.


I feel my case is strong but I am representing myself whilst he has legal counsel. My plan was to attend Court (and on the advice on this forum from previously) ask for his witness statement to be struck out given the late submission. This offer of discontinuance is unsurprising although I am unsure what to do. I feel if I go back with a counter offer and ask him to pay some of the overpayment they will decline and just chance their arm in Court. I am tempted to respond strategically as follows: 'Without prejudice response. Thank you for offering to withdraw your claim conditional to my withdrawing of the counterclaim. I agree in principle in the interests of avoiding a formal hearing.' I am trying to choose my wording carefully, as my understanding is that firstly this is a without prejudice response to his without prejudice offer in turn and so is not meant for the disclosure of the Court. Further by only agreeing 'in principle' it seems to me that, from a legal perspective, I am perfectly entitled to change my mind / continue with the counterclaim if I so choose. Frankly I feel really messed about by the builder and I think he has realised that I was right all along and he just failed to reconcile the invoices correctly! I want to employ some 'tactics' as it seems he has been doing all along

What do you astute people think? Much obliged

[atticus]

Don't play silly games. Either accept the offer or don't (don't includes making a counter-offer).

[Pezza54]

I agree with Atticus, you should make your mind up now
When paying court fees the solicitor has the advantage. They can send the court an email confirming the fee should be deducted from their account.
You will have to make a telephone call to the court to pay your fee

[JK2054]

Good mornings peeps. I would be grateful for advice on my Small Claims case. Here is a summary to date:

1. I had some building work undertaken
2. The work was completely uneventfully
3. The work took several months and the builder invoiced multiple times during the course of the work
4. I paid all of his invoices promptly
5. Many months after the works were finished he started pre-action saying I had failed to pay all of the money
6. I checked and double checked and contrary to his assertion I believe I had actually overpaid
7. Both sides maintained their positions
8. The builder put in a small claim
9. I responded with a counterclaim
10. I submitted my witness statement (and supporting bank evidence)
11. The Court deadline for submissions came and went and he initially did not submit any witness statement or evidence
12.He finally submitted his evidence about 3 weeks after the deadline and in essence manipulated everything around my disclosed evidence to try and make things 'fit' from his perspective
13. His solicitor has contacted me this morning, without prejudice, offering to withdraw their claim on the condition I drop the counterclaim
14. They want a response by 5pm today as the hearing fee is payable by tomorrow.


I feel my case is strong but I am representing myself whilst he has legal counsel. My plan was to attend Court (and on the advice on this forum from previously) ask for his witness statement to be struck out given the late submission. This offer of discontinuance is unsurprising although I am unsure what to do. I feel if I go back with a counter offer and ask him to pay some of the overpayment they will decline and just chance their arm in Court. I am tempted to respond strategically as follows: 'Without prejudice response. Thank you for offering to withdraw your claim conditional to my withdrawing of the counterclaim. I agree in principle in the interests of avoiding a formal hearing.' I am trying to choose my wording carefully, as my understanding is that firstly this is a without prejudice response to his without prejudice offer in turn and so is not meant for the disclosure of the Court. Further by only agreeing 'in principle' it seems to me that, from a legal perspective, I am perfectly entitled to change my mind / continue with the counterclaim if I so choose. Frankly I feel really messed about by the builder and I think he has realised that I was right all along and he just failed to reconcile the invoices correctly! I want to employ some 'tactics' as it seems he has been doing all along

What do you astute people think? Much obliged

no dont accept their offer. Counsel do nothing in court. I've beaten barristers representing myself. The court will only care about the amounts you were supposed to pay v the amount you paid. WS late is a reason to apply to have it struck out at the hearing IMHO (you can strike out the WS and then only oral evidnece will be allowed - see CPR 3.4)

Also please name the solicitor firm he has instructed so we can see if they are good or not. Without prejudice means it doesn't prejudice your position. However, someone that has instructed solicitors wouldnt normally do drop hands, because he'll be losing lots in fees. To me this sounds more like his solicitors have reviewed the case and realised he won't succeed, and don't want to look bad in front of a judge.

No agreeing in principle doens't mean you can just continue your counterclaim, that is wrong.

However, if you believe you have overpaid, you should reject their offer and continue to the hearing. He will probably drop hands. You could also respond with something like this

"WITHOUT PREJUDICE SAVE AS TO COSTS & SUBJECT TO CONTRACT

Dear X,

I write further to the below offer. In the circumstances, the Defendant believes they have overpaid the invoices. As such, it follows that whilst the Defendant is willing to settle the claim without the need for further costs to be involved at a hearing, this would only be on the basis that the Claimant pays the Defendant the sum of X, comprising of the overpayment of the invoices [If you have reference numbers for the invoice, you should put the ones you believe you overpaid on here].

Should this matter proceed to trial, I will be asking the court to disallow your client's witness statement because it has been filed far after the deadline.

I look forward to your response.

[Pezza54]

CPR 3.4 relates to striking out a statement of case
Under CPR 32.10 if a witness statement is not served by the specified time, the judge may refuse to let the witness be called to give oral evidence
However, on the small claims track (CPR 27), all of CPR 32 is omitted apart from 32.1
CPR 32.1 (2) allows the judge to control evidence and he or she may decide to exclude evidence at the trial.
OP should ask the judge to exclude the claimant's evidence (witness statement) as it was served about 3 weeks too late (which is the same as the penultimate para in JK2054's suggested email in the previous post)

[JK2054]

Yes true its not a SOC its a WS but you can still ask the court to make an order because hte court can make any order it deemds appropriate. The matter of fact is that the exclusion of the WS is the court excercising its case management powers, to manage what witness evidence is allowed at the trial. THat is what I was getting at.

However, CPR 31.1 (2) doesn't apply because the evidence wouldn't normally be admissable because to be "normally admissable" it would have to be filed as per the directions. Evidence filed after the deadline is not admissable, and is only admissable if a relief of sanctions is given (See HHJ Clarke ecw para 9).

Therefore, the court wouuldn't be disallowing the evidnece under CPR 31.1 (2) because the normal position is that the evidnece would not be admitted. It would only be admitted if a relief of sanctions was granted, whcih is unlikely in this situation.

[atticus]

Before you guys get too hung up on the finer detail of the CPR, one thing that the proposed settlement gives the OP is certainty and finality. That may be worth something.

[Pezza54]

Yes and OP will be relieved of further worry and stress of a court hearing
OP stated that the builder made a small claim, so cpr 32.10 does not apply