Disputing the relevance of written expert evidence (Small claims)

[Marstu]

Hello all, I'm the claimant in a small claims contract dispute. The defendant has requested to use written evidence from two therapists (psychologists) in support of her defence of duress/coercion & mental instability. As mediation as failed, and this will now be going to a hearing, I'm wondering if I could argue to have their expert evidence statements set-aside, as they overly complicate the case and I'm concerned they will not be impartial statements; both of these therapists have never met me nor were present at the time of the agreement in dispute. Is there a way to formally challenge their inclusion?

On a side note, I of course oppose any suggestion of duress. There is no record of any threats etc., and the initial email which stated the reasons as to why they would not pay me back did not include any mention of duress or coercion.

[JK2054]

can you give more details about what the money is owed for please?

[Marstu]

can you give more details about what the money is owed for please?

Sure, the money all is to do with an ex-partner.
It comprises three main areas, and all relates to a time when I was abroad last year (Feb - Jun 2023) The majority of the money relates to an emergency vet bill for their dog. They agreed in writing that this would be repaid in the summer of 2023, before any money had even been exchanged. The second of the monies relates to a rent-down payment. I was intending to move in with them, and was in the process of completing a draft tenancy agreement to add myself to the contract. As they were the lead-tenant, I transferred my first payment for July 2023 to them. Finally, whilst I was abroad, they used my debit card repeatedly without my permission or prior request. Around a week after I had transferred the rent down payment and the emergency vet bill, they ended the relationship suddenly whilst I was still abroad, and refused any right for me to stay in the property in question.

All of these monies were agreed to be repaid verbally whilst still together, and again in writing over messages after the relationship broke apart. This was inclusive of amounts, timeframes, and they even stipulated a date it would all be cleared by. They also requested an itemised spreadsheet documenting all relevant transactions, to which i provided and was accepted.

Initially, payments stalled, and I was very patient and accommodating. In September 2023 I received an outright refusal to pay: the email stated a family emergency had caused them to fly abroad and thus spend the money they had been saving. They indicated they would not be saving again for other reasons, and instead indicated that I owed them money. This email came with the threat of counterclaims should I pursue them, which have so far not been followed on through.

Now their formal defence centres on duress and coercion. It also includes arguments of: 'no formal agreement', 'shared ownership of the dog', 'being on painkillers whilst spending money so was not in control/ being mentally unstable'.

Apologies if this is all a lot!

[efpom]

expert witness on small claims track is unusual - the permission of the court is required beforehand.

See http://www.justice.gov.uk/courts/pro...l/rules/part27 at Appendix B

[MaryS57]

Our experiences in this regard may be helpful to the OP:-

I (as claimant) have a small-claims-track case at present and was ordered recently to attend a preliminary hearing to consider admission of my expert report to court by the district judge. She accepted it on the basis that the case was of a technical nature (faulty caravan frame) and that a report was needed. At the time the judge asked if the Defendants wanted to provide a second report also - but they fluffed their response (they didn't have an expert in mind to name and didn't want to pay in any event) .

As a result my report was admitted as the sole expert report and the Defendant's are now only given the opportunity to ask questions of this expert.

One thing that did catch me out at that Preliminary Hearing was that the district judge then (without warning) tried a further mediation attempt - I resisted settling as the terms were unfair, but I felt somewhat underprepared for this topic against the Defendants who are both sly and don't mind lying. The district judge has recused herself from the case.

If the OP has a preliminary hearing maybe they will find this info helpful when preparing.

[Marstu]

Our experiences in this regard may be helpful to the OP:-

I (as claimant) have a small-claims-track case at present and was ordered recently to attend a preliminary hearing to consider admission of my expert report to court by the district judge. She accepted it on the basis that the case was of a technical nature (faulty caravan frame) and that a report was needed..

Thanks, I'm under the impression that there will also be a preliminary hearing in my case then too. I would hope their attempt to use said experts is dismissed. I can't see their evidence being useful at all other than to talk about the contents of their meetings i.e. what was their state of mind - but what relevance does this have for a contract dispute?

[JK2054]

just let it run

[Marstu]

just let it run

Do you think it is not worth filing some sort of objection then?

[JK2054]

nope

[efpom]

I can see what the defendant is trying here. Duress and coercion or undue influence essentially means that a person or party has been forced into a contract. The contract cannot be considered to be a valid agreement under these circumstances.

I would be pointing out to the court at trial that coercive or controlling behavior is an offense under the Domestic Abuse Act 2021. I would not be giving a hint of that any time before trial lest the defendant decides to allege to the police that he/she is a victim of domestic abuse.

That means that you do not give any hint of what you are going to say at trial at any pretrial case management hearing

If I was in your shoes, I would be pointing out to the court at trial, not before, that the defendant has already partly performed his/her obligation to pay the debt and the allegation(s) of duress and coercion are no more than a puerile attempt to avoid paying the remainder.

I would also be asking the court for my costs - CPR 27.14(2)(g)

I would also be serving and filing my Form N260 a few day before the hearing.

[MaryS57]

I can see what the defendant is trying here. Duress and coercion or undue influence essentially means that a person or party has been forced into a contract. The contract cannot be considered to be a valid agreement under these circumstances.

I would be pointing out to the court at trial that coercive or controlling behavior is an offense under the Domestic Abuse Act 2021. I would not be giving a hint of that any time before trial lest the defendant decides to allege to the police that he/she is a victim of domestic abuse.

That means that you do not give any hint of what you are going to say at trial at any pretrial case management hearing

If I was in your shoes, I would be pointing out to the court at trial, not before, that the defendant has already partly performed his/her obligation to pay the debt and the allegation(s) of duress and coercion are no more than a puerile attempt to avoid paying the remainder.

I would also be asking the court for my costs - CPR 27.14(2)(g)

I would also be serving and filing my Form N260 a few day before the hearing.

I'm not wishing to comment further, but please bear in mind this important Supreme Court ruling in Nov 2023 (below) regarding uncontroverted expert evidence. :-

TUI UK Ltd (Respondent) v Griffiths (Appellant): [2023] UKSC 48

https://caselaw.nationalarchives.gov.uk/uksc/2023/48

[JK2054]

ok i didnt realise that they're game plan was to try and say forced into contract.

that makes it different but they need to satisfy the test to be able to win that argument and I think they'd struggle, particularly as they have paid part of the debt.

[Marstu]

that makes it different but they need to satisfy the test to be able to win that argument and I think they'd struggle, particularly as they have paid part of the debt.

If I was in your shoes, I would be pointing out to the court at trial, not before, that the defendant has already partly performed his/her obligation to pay the debt and the allegation(s) of duress and coercion are no more than a puerile attempt to avoid paying the remainder.

Apologies if I was not clear, the defendant in this case has not paid me a penny of what we agreed upon. Due to their stubbornness, I'm in two minds as to whether to continue the proceedings and pay the hearing fee when it comes to that.

I do have evidence of repeated discussions about the money in depth, and can show the initial email refusal cited completely different reasons and even admitted to having saved up the money. I can also show they have lied in part of their defence relating to the cost of the dog bill. Though I just don’t know if a judge would buy into this duress nonsense, or worse get me to pay said expert fees should I lose.

[efpom]

I don't know either.

What I do know is that need to prove to the court that a contract exists That is a matter of evidence.

Be aware that familial arrangements are not contractually enforceable. For example, if a one of a couple, married or unmarried promises to take the other to Greece for a holiday, but does not do so, that promise is unenforceable because it is not a contract, as a matter of contract law

Having said, that the promise to repay here is strong grounds for contending that the promise to repay is a contract and is enforceable.

This is where it gets complicated as the majority of the money has been spent on the dog. To get that dog money, you may need to prove that it was not a familial dog. If ownership of the dog has not been raised in the defence, then you do not raise it.

[JK2054]

Apologies if I was not clear, the defendant in this case has not paid me a penny of what we agreed upon. Due to their stubbornness, I'm in two minds as to whether to continue the proceedings and pay the hearing fee when it comes to that.

I do have evidence of repeated discussions about the money in depth, and can show the initial email refusal cited completely different reasons and even admitted to having saved up the money. I can also show they have lied in part of their defence relating to the cost of the dog bill. Though I just don’t know if a judge would buy into this duress nonsense, or worse get me to pay said expert fees should I lose.

take it to trial for sure