'Expert evidence' admissibility issue in Small Claims

[lovethelaw]

I'm seeking some tactical advice for dealing with evidence in the Small Claims Track for a building dispute in England.

Background
I employed a builder to remove fixtures and fittings in my house, which was the first stage of a large house renovation. The builder asked for a large deposit at the outset to start the project. I asked for costing for each stage, including the removal work, but he refused to give this to me and claimed it wasn't possible to estimate fees (a big red flag, in hindsight).

Once he had done the few days of removal work, he said the whole deposit was spent. This took me by surprise given it was only a few days work, and I told him I didn't want him to do anything further. He issued another large invoice in retaliation, sent lots of threatening messages demanding payment and then issued a Money Claim against me a week later.

Pre-action protocol
Before he sued me, I got a quantity surveyor to assess the work he had done because I had no idea what the work should have cost. The surveyor provided a part 35 compliant report which considered that he had charged me 400% more than the work was worth. I wrote to the builder in accordance with the pre-action protocol before i filed my defence and counterclaim to disclose the surveyor report and offered settlement. He didn't respond. I then filed my defence and counterclaim alongside the surveyor report and a bundle of evidence.

Directions
In the directions questionnaire, I sought for expert evidence to be admitted, not knowing whether the surveyor report I had would be classed as such. The builder also sought for expert evidence to be admitted. The directions notice setting down the hearing allocated it to the small claims track and declined to allow expert evidence.

Witness statement
I filed a witness statement on my behalf and that included a chronology of what happened, including that I had contacted the surveyor to assess the value of my counterclaim. I attached the surveyor report as a exhibit to my witness statement. At the preliminary hearing, the builder's Counsel alleged that the surveyor report was inadmissible because the Court had not ordered expert evidence.

New evidence
I have since obtained more objective evidence on the value of the work which all aligns with the surveyor report, including demolition pricing from the SPONS construction book, pricing for demolition laborers and multiple independent quotes for the work (provided based a desktop analysis given there is no way to actually see what work is required now when the removal work is already done).

Options?
A new hearing has just been set down for a few months time. I'm struggling to understand what to do from here and how to support my defense in this situation when no expert reports are permitted. I'm a litigant in person and have no understanding of how the CPR operates. I'd be most grateful for views on how I should proceed as I feel quite lost and confused.

- Do I make an application to seek permission to adduce expert evidence in the form of the surveyor report?
- Do I make an application to seek permission to rely on the surveyor report as a witness of fact (rather than an expert), and file a witness statement from the surveyor?
- Do I file an application to adduce my new evidence?
- Can I even file new evidence if the deadline for filing witness statements was in late 2025, months before the preliminary hearing was set down?
- Do i need to make a formal application to do any of this in the small claims jurisdiction, or am I better to just write to the Court?

Any advice would be greatly appreciated!

[atticus]

Taking the last question first, if you are going to do any of these things, you will need to make an application and pay the fee.

What evidence of fact can this surveyor give? Surely the evidence you need is his expert opinion.

[lovethelaw]

Thank you - really appreciate the confirmation that a formal application will be needed.

If expert evidence isn’t permitted, I was thinking I could rely on the surveyor as a witness of fact as to what work was undertaken (based on the fact that he assessed the site), and then rely on the other objective evidence to price that work based on the construction industry standards.

[lovethelaw]

Thank you - really appreciate the confirmation that a formal application will be needed.

If expert evidence isn’t permitted, I was thinking I could rely on the surveyor as a witness of fact as to what work was undertaken (based on the fact that he assessed the site), and then rely on the other objective evidence to price that work based on the construction industry standards.

[atticus]

Then make your application for permission to use the surveyor's report as expert evidence or, failing that, as further factual evidence.

[Frank1]

For this type of major renovation job you should have agreed a priced itemised schedule of work before incorporating this schedule into the signed contract. Stage payments could have been agreed if the builder was not prepared to wait for payment at the finish of the job.
You need to understand why the judge has refused both the builder and your request for permission to file expert reports.
If the judge considered an expert report useful to make a decision he or she could have set a preliminary hearing to agree on the appointment of a joint expert. Paying for a court application may turn out to be a waste of time and money if your application is refused.
You are right to gather all evidence available and attaching it to your witness statement.

Is the next hearing the final hearing?
How much is the whole job worth and how much have you paid the builder?
Is the builder's claim for breach of contract including loss of profit?

[Frank1]

When you filed your defence and made your counterclaim at the same time, you should not have filed your expert report and evidence.
You have now filed these documents a second time when you included them with your witness statement.

[lovethelaw]

Then make your application for permission to use the surveyor's report as expert evidence or, failing that, as further factual evidence.

Thank you, I'll make that application and seek permission to rely on the other factual evidence i've collated, given it is being filed after the deadline.

For this type of major renovation job you should have agreed a priced itemised schedule of work before incorporating this schedule into the signed contract. Stage payments could have been agreed if the builder was not prepared to wait for payment at the finish of the job.
You need to understand why the judge has refused both the builder and your request for permission to file expert reports.
If the judge considered an expert report useful to make a decision he or she could have set a preliminary hearing to agree on the appointment of a joint expert. Paying for a court application may turn out to be a waste of time and money if your application is refused.
You are right to gather all evidence available and attaching it to your witness statement.

Is the next hearing the final hearing?
How much is the whole job worth and how much have you paid the builder?
Is the builder's claim for breach of contract including loss of profit?

Thanks for your advice, Frank.

To answer your queries:

• I asked for a itemized schedule of work/staged quote weeks before the work started - the builder said he couldn't provide this until the demolition work was done as he couldn't know what work was required yet. He agreed to provide a schedule of work after that was done, and that is the only reason i proceeded with the demo work. However, when the demo work was done, he again refused to provide a schedule of work. This was all in writing.
• The next hearing is the final hearing.
• The whole job was worth around £65k - he charged £19k for a few days of demo work. The assessed value of that work is £4k. I've paid around £13k.
• The builder's claim is seeking payment of a £6k invoice he issued when I told him I was not going to proceed.
• The builder has provided no evidence to support his case (i.e nothing to say what his costs were, what days he was on site, his material or employee costs). Outside of this report from the surveyor, there is nothing before the Court that helps them to assess quantum.

[lovethelaw]

Then make your application for permission to use the surveyor's report as expert evidence or, failing that, as further factual evidence.

From a procedure perspective, should the N244 application include a witness statement from the surveyor, or just the surveyor report?

I don't think the surveyor needs to provide oral evidence at the hearing because its a relatively brief report that speaks for itself.

[Frank1]

Under CRA 2015 if no price has been agreed for the work or part of the work, then the consumer is only legally bound to pay a reasonable amount for the work.
Without any expert report from a chartered building surveyor or engineer, and without a priced schedule, I don't know how the judge is going to assess what is a reasonable payment for work carried out.
I would have done what you did, refused to pay any more and made a court claim when the builder refused to carry on working.
From the details you have posted, in my opinion you have grounds for a strong defence and counterclaim.

[lovethelaw]

Under CRA 2015 if no price has been agreed for the work or part of the work, then the consumer is only legally bound to pay a reasonable amount for the work.
Without any expert report from a chartered building surveyor or engineer, and without a priced schedule, I don't know how the judge is going to assess what is a reasonable payment for work carried out.
I would have done what you did, refused to pay any more and made a court claim when the builder refused to carry on working.
From the details you have posted, in my opinion you have grounds for a strong defence and counterclaim.

Thank you, your help is appreciated. I have relied on the CRA 2015 in my submissions, noting the Court has to assess what is a 'reasonable' price for the work given no price was agreed (and for which the builder refused to provide a price).

This is why i'm really quite confused at why no expert evidence was permitted - i'm not sure how the Court would proceed if my surveyor report was struck out. I can file SPONS construction industry data etc, but ultimately I'm not qualified to interpret/apply that pricing data, and I wouldn't have thought a judge was either.

[Frank1]

Did you write to the contractor warning him that if he failed to restart work by a specified date you would terminate the contract and then end the contract when he didn't restart by that date.
If not and without a completion date, the judge may consider the contract to be at large, with the contractor having a reasonable amount of time to complete the work.

[lovethelaw]

Did you write to the contractor warning him that if he failed to restart work by a specified date you would terminate the contract and then end the contract when he didn't restart by that date.
If not and without a completion date, the judge may consider the contract to be at large, with the contractor having a reasonable amount of time to complete the work.

Sorry if I confused you about the sequence of events - it wasn't quite a matter of him failing to restart work.

To clarify the sequence of events:

1. After he refused to provide staged costing /schedule of works for the project, I agreed he could undertake the demolition work only - I told him in writing I do not agree to undertake any further work beyond demolition until i receive a detailed schedule of works and costings.
2. He undertook 4 or so days of demolition but did not finish it.
3. He disappeared for a month without any reason.
4. He came back for a day or so, demanded payment of another £9k in a further deposit before continuing the demolition works.
5. This is when I realized that he claimed the £13k deposit had all been spent on that initial few days of work. I was shocked and said everything needs to pause. A few hours after I said pause, he issued the £6k invoice claiming he had done "two additional weeks of work" (which was blatantly false, even by his own messages that day).
6. The next day, I told him I did not want him to do any further work. Then he started harassing me for payment of the invoice.
7. A week later he issued a Money Claim against me.

[lovethelaw]

As I was researching the basis to make an application, I noted that the Court's own guidance for small claims involving building disputes, contained in Practice Direction 27A, Appendix A, identifies 'a valuation of work done to date' as documentation the Court 'usually needs' in order to resolve such disputes.

PRACTICE DIRECTION 27A – SMALL CLAIMS TRACK – Civil Procedure Rules – Justice UK

Does this indicate that a valuation from a surveyor is not an 'expert report'?

[Frank1]

Did the contractor's claim consist solely of his invoice without any receipts or valuation of work done?