'Expert evidence' admissibility issue in Small Claims

[Frank1]

It is unusual for an expert to be a witness in the small claims track

[lovethelaw]

Okay, thank you, that is helpful - so I think that means I must keep the surveyor report as an exhibit in my witness statement?

[Frank1]

Definitely not The expert report must remain independent and be cpr compliant.

[atticus]

The proposed new evidence does not appear to require any existing statement to be amended. If need be, put in a further statement introducing the additional material.

[Frank1]

You could title it
"Addendum to Witness Statement of ... ....."

[lovethelaw]

Great, thank you so much - that makes more sense. I'll draft a supplementary witness statement to introduce my evidence from SPON's on construction data pricing etc.

Sorry to ask more procedural questions: i see that you are meant to file a supporting witness statement with a N244 application, but I assume I would just file one supplementary witness statement, which will address both (a) my new evidence and (b) the evidence to support the grounds in the N244 application?

On an unrelated note - the builder's barrister tried to claim at the first hearing that I can't rely on s 51 CRA 2015 because it wasn't specifically pleaded in my defence document. My defence broadly argued that the payments made grossly exceed the value of work performed, were unreasonable and disproportionate, but didn't identify case law/legislation at that point. When i filed my submissions prior to the first hearing, I went into case law and legislation on that point including relying on s 51 in relation to the unreasonableness argument.

I just wanted to check whether his barrister was just trying to scare me or if this is a valid point?

[atticus]

The witness statement filed with the application explains the reasons for the application. You can combine it with the further statement of evidence in the case, making it clear that this is what you are doing, or you can deal with the further evidence in a separate statement.

I doubt that a judge hearing a claim in the Small Claims Track will accept that argument by the builder's barrister. From what you say, your defence has clearly raised the argument that s51 of the Consumer Rights Act 2015 gives, even if it does not expressly reference it.

[Frank1]

Don't forget in box 3 you are also seeking permission to rely on an expert report at the hearing.
The application is without consent, with notice so £319 court fee.

[lovethelaw]

Thank you both so much for your support, I'm honestly very grateful for your time and willingness to provide guidance.

I really just want this to all be over. I've tried to offer that we both drop hands and walk away as this litigation is benefiting no one, but the builder is refusing to settle without £5k payment. Hopefully it won't get adjourned again.

Thanks again to you both.

[lovethelaw]

I’m back with another question sorry- having now filed my application earlier this week.

I’m wondering how long the Court take to consider these types of N244 application and if they are likely to determine it without a hearing?

I’ve asked them to make a decision on the papers; I don’t think a hearing is proportionate for a minor procedural issue in a small claim, but just wondered what the likelihood of that is.

I’m concerned that they will determine it at the start of the substantive hearing as that will make preparing for the hearing quite hard, not knowing if the application is going to be granted or not.

[atticus]

So much depends on which court - some have horrendous backlogs - and the district judge who first looks at your application.

If necessary, you should prepare on 2 bases, allowing for the different outcomes to the application.

[Frank1]

If the judge decides on your application without giving the builder a chance to reply, then under cpr 23.8 (3)(a) the builder may apply to have the order set aside or varied.

It seems unlikely the builder will just consent to your application without filing his witness statement opposing it. Be mindful that the builder had his own request in his DQ to rely on an expert report refused.

The builder may now want to make his own application for permission to rely on an expert. If this happens the judge may direct another preliminary hearing to decide on a SJE

[lovethelaw]

Many thanks to you both, appreciate the guidance.

I’ll wait and see what happens I guess given there are so many variables.

If expert evidence isn’t permitted, hopefully I’ll be granted permission / relief from sanctions for filing the SPONs pricing data which will give the court at least some evidence that addresses quantum.

If the builder hasn’t filed a witness statement (which he hasn’t to date), is he precluded from giving evidence at the hearing?

[lovethelaw]

I have a follow up question that I’d be most grateful for advice on.

The hearing is set down for four days away. It’s already been adjourned before. The claimant has now filed a last minute adjournment n244 application (which his counsel provided) alleging bereavement, family visiting for a funeral, that he will be out of town when he hearing is.

He hasn’t provided a witness statement, hasn’t said when the death was, when the funeral is or any particulars. He is alleging that he hasn’t had time to prepare for the hearing, but it’s been set down for four months and he has a barrister acting for him. He also hasn’t paid any fee for the application.

Is it acceptable for me to oppose this, and suggest that it be moved to a remote hearing if he is out of town? Or, he could simply attend remotely?

[atticus]

You could oppose by (a) making the points in your post above, and (b) explaining in what ways you would be prejudiced by an adjournment.