Expert Evidence for Small Claims

[atticus]

Think of it that he who asserts something generally has the burden of proving it.

Let us say the claimant is pursuing an unpaid invoice. He needs to prove that his invoice has not been paid.

Let us now say that the Defendant admits he has not paid, but says the claimant did not work to an acceptable standard and therefore that the claimant is not entitled to be paid. He has the burden of proving what he has asserted.

(This is my guess what your case is all about).

[dslippy]

The burden of proof generally shifts according to who is asserting the proposition at issue.

[LegalBiggles]

That all makes sense, thanks for explaining.

I really don't mean this pedantically, but what I am now confused about is this... If the burden of proof shifts according to who is asserting the proposition at issue and there are many issues, both parties have a number of issues on which the burden of truth lies with them. In which case, I'm struggling to make sense of:

And if each side is unable to prove its case, the party with the burden of proof loses.

[atticus]

Different issues, different burdens of proof.

Think very carefully and clearly about who is asserting what, and what each party needs to do to prove what he asserts.

[LegalBiggles]

Good morning.

I think what I was meant to ask yesterday RE expert evidence is...

If I were to send/hand deliver an application for directions, and not hear from the court by Wednesday (deadline day), what should I do then?

It seems ludicrous to me to spend £1,800 on a report, when the amount in dispute is around £2,000 (£3,500 including late fees), and when the court has imposed a limit of £750. Isn't the general ethos to reduce costs where ever possible? I can't afford it and do not want to pay that much. Plus, from my point of view the experts have said they can do the inspection remotely/desktop; and they are the ones who can make that decision aren't they?

The counter argument from the claimant is that only with a visit can a true inspection take place. But isn't the expert better placed to decide that?

Thanks a million for the help

[atticus]

Perhaps now is the time to try to compromise the claim, given the further amounts each party is otherwise going to be spending. Try to see it as a cost/benefit exercise, and to get the other party also to see it that way.

[LegalBiggles]

We've tried quite a few times to reach settlement but have got nowhere near an agreement. The problem is this... The work in dispute is around £2,000. He is adding late fees - which were not contracted - at 5% per month (with compound interest). As such the running total is now at over £3,500. He is convinced that because the late fees are on his invoice (only) that they are applicable. And that even if they are not, the judge will award them anyway

So his compromise / settlement offers are based on the full figure £3,500+ as a starting point..

My compromise / settlement offers are based on the disputed work figure of £2,000 as a starting point.

As such, we're miles apart!

So it's back to the questions and position of my post #20 unfortunately.

[atticus]

Has a hearing date been set?

[LegalBiggles]

Yes, November 9th.

[atticus]

That is 4 weeks away. You will have a problem with the Judge not wanting to allow anything that will mean that the case cannot be heard on that date. The judge may well say that this should have been raised earlier.

What evidence do you presently have to support your complaints about the standard of the work?

[LegalBiggles]

I didn't receive the court directions until 24/09. Since then, I have been liaising continuously with the claimant to agree on an expert, collate the relevant information to submit for an inspection quote, liaising with the Tile Association, and trying to decide between the desktop inspection and site survey. It's only been two weeks and I've been going as quick as I can... As soon as the claimant voiced disagreement with the desktop inspection, I contacted the court for their guidance.

As for evidence, I have:

- photos of completed work and during
- various manufacturer's and supplier's opinions (referencing use of materials and British Standards where relevant)
- feedback from professional tilers on an internet forum

Thanks so much for all your help