Small Claims County Court process: General Form of Judgment or Order

[pampampam]

Small Claims Court Hearing 15th Feb. Judge has ordered that 'the parties shall send to the court and each other not later than 14 days prior to the hearing a - written statements of the evidence of themselves and any other witness whose evidence is relied on in the support of the claim or the defect and b-copies of any documents they propose to rely on at the hearing.

I have searched everywhere but it doesn't say by what time, i.e. by 1700 hours or 2359 hours, nor does it state which date - I don't want to fall foul of the process so on the basis it's 15th Feb, I make it I have to file the paperwork by 1st Feb- so the question is can I file it at any time on 1st Feb, i.e. up to 2359 hours or is it by close of business hours?

Also if there is more than one claimant and we lose do we have to pay for their loss of earnings that day to attend the hearing as well as any experts they call?
The document does say the claimants will will not be permitted to rely on expert evidence at the hearing without the prior permission of the court but how will I know if claimants have applied for and been granted this permission and therefore I will be responsible for their costs too if we lose?

Many thanks to anyone who can assist/point me in the right direction.

[R0b]

Re: Small Claims County Court process: General Form of Judgment or Order

Filing documents at court is usually by 4pm. As for costs, yes if you are unsuccessful then the claimants could request a small payment of fixed costs up to £100 depending on the value of the claim, and possibly experts also which is fixed cost too (circa £750 if i recall). The judge will however determine what costs should be paid.

Experts should usually be agreed between the parties to reduce costs and if they have not then you could challenge it or the court could appoint an expert if it so wishes. They will need to make an application for expert witness and you should be given notice of that.

[nemesis45]

Re: Small Claims County Court process: General Form of Judgment or Order

I suggest the court closing time of 1600 hours is what you need.
The order is not later than 14 days prior to 15/2/16 you can file
at any time prior to that date but not after.

Not knowing the back ground I can't comment on the costs R0b.
This is a standard order any witnesses will be on the claimant witness
statement.

nem

- - - Updated - - -

I suggest the court closing time of 1600 hours is what you need.
The order is not later than 14 days prior to 15/2/16 you can file
at any time prior to that date but not after.

Not knowing the back ground I can't comment on the costs R0b.
This is a standard order any witnesses will be on the claimant witness
statement.

nem

[pampampam]

Re: Small Claims County Court process: General Form of Judgment or Order

Hi Rob - Thanks for your quick response - I did look but couldn't see a time limit anywhere. I think the court should put the time frame on the documents for the avoidance of doubt.

Can the claimants, when filing their statements of evidence on 1st Feb - at the same time request prior permission for expert witnesses to attend the hearing [complying with need to request prior permission?] - therefore that would be the first I would hear of it? Again the order doesn't set a time by which the claimants must apply for witnesses to attend. The claimants indicated earlier they wanted to bring 6 witnesses [to increase my costs no doubt!]
Thanks

[pampampam]

Re: Small Claims County Court process: General Form of Judgment or Order

Thanks also for your quick response. That's my point - that when they file their written statements, it seems they could then apply to the court for their expert witnesses to attend the hearing - thereby I would be liable for their costs if we lose - so technically - they could apply on the 1st Feb and the the Judge has to decide whether or not to grant permission in the two week period before the hearing itself. The claimants have solicitors and wanted the case to be heard in the Fast Track as they want to claim the costs of the legal fees they've incurred thus far. Just a thought could they ask for their solicitor to appear as an expert witness? Is that possible?
Thanks

[R0b]

Re: Small Claims County Court process: General Form of Judgment or Order

A witness is different from an expert witness and an expert witness would need to be independent from the parties to avoid a conflict.

was the claim already issued with intention that the amount claimed for would likely be small claims and it is now the solicitors who want to bump it into fast track to recover legal fees? If so this will amount to an abuse of process and could potentially be struck out by the court.

As I said before, you could challenge the permission of an expert witness on grounds that the other side did not consult or notify you at any time and could then argue that you might to call an expert witness of your own. The judge will then decide on this point and likely adjourn to a later date.

You may also wish to correspond with the solicitors and clarify whether they intend on using an expert witness and if so, the witness should be agreed between both parties otherwise the court should appoint one.

Witnesses and/or the party can claim up to £95 per day for travelling and expenses.

[pampampam]

Re: Small Claims County Court process: General Form of Judgment or Order

Thanks Rob - and for pointing out the distinction between a witness and expert witness - apologies - brain is frazzled - this has been rumbling on for over a year - so I can rule out their solicitor appearing as a witness then!

Could the claimants still ask their solicitor to represent them at the hearing [even though my understanding is that I wouldn't be liable for their attendance fees at the small claims court hearing?]. They may think it is a worth while paying this fee themselves, even though they wouldn't be able to charge his fees on the day to us if we lose - as their claim includes the other legal costs they have incurred thus far over this whole petty saga.
Thanks

Also I presume that the claimant's party wall surveyor would also not fall into the 'independent' category?

[pampampam]

Re: Small Claims County Court process: General Form of Judgment or Order

Sorry didn't answer your question. Yes the claim was originally issued as a Small Claims but then in the direction questionnaire the solicitors stated this was a complicated legal case and they wanted to call six witnesses and that they thought the case was more suitable for Fast Track. They had previously asked me to settle [scaffolding license fee - almost £2k and claimant's legal fees of £3k] otherwise they would take me to court and I would be liable for buy out damages for a case which had resulted in £125k ruling. I looked at the case [commercial companies] and didn't think it applied to domestic situation and not least because ours was a technical trespass [we had to erect scaffolding in their alleyway over which we have a legal RoW] for four weeks to attend to damp in our loft. We had spoken to neighbours before and mentioned we could apply through ATNLA but we agreed that we would incorporate this into the PWA which when it arrived didn't contain any reference/addendum and instead they wanted us to pay for a scaffolding license agreement with their same PW surveyor - making more money for him and for them. Had we known they would renege on this agreement we would have applied to the court for ATNLA to address the damp in our loft. Hindsight is a wonderful thing. Neighbours peeved as they objected to earlier planning permission which was granted and since then relations have deteriorated. Lived here for 20 years with no problem - can't understand it but there you go. Thanks again.

[R0b]

Re: Small Claims County Court process: General Form of Judgment or Order

If the claimant is relying upon the surveyor in the capacity of carrying out his job then he would not be deemed an expert witness, but as he may have technical expertise he could possibly answer or explain technical questions that are within his own expert knowledge.

I'm afraid you have abbreviations in there that I have no idea what they mean. What exactly is the claimants claiming that you have done or breached?

A good concise summary of the problem and what they are claiming would be helpful to understand your position.

[pampampam]

Re: Small Claims County Court process: General Form of Judgment or Order

Sorry. Will try to be concise!

Neighbour peeved as our planning permission granted despite their objections. Had meeting with them. Agreed that we would do the party wall act paperwork ourselves and I served papers from the internet suggesting local PW [party wall] surveyor. They rejected offer of our local party wall surveyor and chose their own [fair enough they are entitled even though that meant we would have to pay our own PW surveyor and their PW surveyor's fee]. They then chose a PW surveyor over 150 miles away [to add to our costs as we would have to pay travel, petrol etc.]. At meeting we also mentioned we would at the same time need to erect scaffolding down their side alley over which we have Right of Way - neighbour wanted us to use scaffolding that could be wheeled away at end of each day [to where I do not know] and I suggested for health and safety reasons this would not be possible but I would look into it. I said if we had to have full scaffolding and they objected then I would apply for access under the Access to Neighbouring Land Act which allows householders to go on to neighbours' land if repairs were required [in this instance our loft built 20 years earlier had a severe damp problem] but it was agreed that as we were now formalising the PW arrangements [which we could have done ourselves independently but they chose the expensive route - as they are entitled] then we could also include this as an addendum so everyone had peace of mind.
PW surveyor carried out site survey. We pointed out damp that needed to be addressed in our loft and we would therefore need to erect scaffolding to address this. He went back and spoke to the neighbour and came out and said the scaffolding would all be addressed in the award. We arranged scaffolding etc on this basis and of course when the award delivered - no mention of the need for scaffolding. Neighbour then said same PW surveyor would be approached [next week - so more delaying tactics] to draw up a scaffolding license agreement £700 and they wanted £500 p.w.

We had no option to press ahead with planned scaffolding to address the damp - this was last January! All done and dusted in 4 weeks - damp issue resolved. Neighbours sought an injunction to get us to remove but it was removed before their paperwork was complete. Hence they are now claiming the £500 pw [which we didn't sign up to and cost of recovering their legal fees].
Initially small claims but at Questionnaire Direction time their solicitors asked for it to be heard under Fast Track process. Judge said no - small claims.

So they want £2k as we put scaffolding up on their alleyway [had we applied for access through the Access to Neighbouring Land Act have been told we would have been granted but as time was not on our side we had to go down this route] the neighbour has been deliberately awkward and as their objection to pp rejected they have sought to disrupt our build from the outset costing us more money! Plus they want us to pay for their legal fees, so £5k in all but in their paperwork they have sought more if the judge deems a higher award required. I guess they want to take as many witnesses so they can further push up our fees if they win.

Charming.

[R0b]

Re: Small Claims County Court process: General Form of Judgment or Order

You don't need to pay the solicitors fees under small claims, if the other side chooses to use solicitors then that's their prerogative, but they wouldn't be able to recover the legal fees except for a couple hundred quid but thats it. If you have evidence in writing that it was to be agreed that the erection of scaffolding was agreed then you could argue that you relied upon that however due to their conduct throughout they have been awkward and due to the delays it was not possible to wait any longer to have an order granted for access. If they didn't agree that it would be in the terms then you would have applied and the likelihood is that it would have been granted.

If the judge awards in favour of the claimants you could argue that a reduction in costs be awarded due to the conduct of the other side. Is it reasonable to instruct a PW surveyor 150 miles away which incurs further time and cost as opposed to a local one which would have sped up the process.

The fact that you went ahead anyway after they wanted 500pw could be argued that through your conduct you accepted to the suggested amount, unless you indicated otherwise. You could probably counter this by saying that had you applied to court for an order of access, the court would unlikely agree to such an amount or even any given the short(ish) time it would take to complete.

No familiar with the ANLA too much and whether it is practice for the neighbour to be compensated for any work done which affects their land but thats something you could possibly argue in your favour.

As for solicitors fees, tell them where to go and that they are not entitled to it. However if you accept a part 36 offer then you will be liable for their fees up to the date of acceptance so be careful.

[pampampam]

Re: Small Claims County Court process: General Form of Judgment or Order

Thanks Rob - unfortunately we don't have evidence in writing that the scaffolding could go up to address the damp problem, that's what the v. expensive Party Wall surveyor was going to include in his party wall award [or an addendum thereof] which of course didn't materialise so they tried to get more money out of us that way. I will have to go through all the paperwork again but I think because they were using delaying tactics again - stating they wanted a scaffolding license agreement drawn up - I don't think we actually found out what the cost of this was until they got their solicitors involved after the scaffolding had been erected - not sure if they said how much it would be per week either - but very good point - I will re-read everything again and get my chronology up to date - thanks.

I will look into what a part 36 offer constitutes - this is a minefield.

Thanks again -

[R0b]

Re: Small Claims County Court process: General Form of Judgment or Order

You should write down a chronological timelime of what has happened pick out the key facts and issues and put them into bullet points with your arguments underneath. Then when it comes to the hearing you will be able to address each issue clearly and without going backwards and forwards or confusing the judge.

A part 36 is an offer is an offer to settle the case. The claimant or defendant can make a part 36 offer subject to certain requirements set out under the Civil Procedure Rules (CPR 36 hence part 36 offer).

The consequences of accepting a part 36 offer is that the claimant is entitled to their costs up to the date of the acceptance. It is not normally appropriate to offer or accept a part 36 offer in the small claims but I have seen it before and if you accepted it then the solicitors would be entitled to their full legal fees up to that date. If you are offered a part 36 offer I would reject it and state it is not appropriate given that the case has been allocated to the small claims track.

Unlikely to happen but there's a small chance.

[pampampam]

Re: Small Claims County Court process: General Form of Judgment or Order

Thanks Rob I will do just that.

We've already submitted a clear defence listing all the actions chronologically. We now must submit a further witness statement, I presume I only need reference the earlier comprehensive defence document rather than repeating everything again? Looking back on the correspondence now I see that we didn't find out from the solicitors what the weekly cost the neighbours were demanding in terms of a scaffolding license until 13 days after the scaffolding had been erected. There was still no indication of the cost of the scaffolding license from their party wall surveyor. When we told the solicitors we couldn't agree to the surveyor drawing up a license without first having sight of what this would cost they finally came back with the £600 figure the following day.

As we had not agreed to enter into a scaffolding license and disputed the need for one we didn't agree to the pw surveyor drawing one up [not least because he lied to us at the site visit saying he would include this as an addendum to the party wall award] to this and pressed on with the work to address our by now very serious damp issue.

Neighbours' solicitors sent a pre action letter 9 days after the scaffolding went up asking us to remove the scaffolding or seek a license from the clients for the scaffolding to remain however did not as I say make mention of the license costs. They stated we would likely have to pay their clients' legal costs in addition to any other remedy the court may grant.

I will keep you informed - I haven't been able to find any reference to a similar case regarding neighbours - only the 'buy-out damages' case which the solicitors threatened us with where the trespasser had to pay £125k damages which doesn't apply to our case and I can only think they were trying to frighten us as small claims don't cover such high sums? Thank you again.

[pampampam]

Re: Small Claims County Court process: General Form of Judgment or Order

Quick question: There are two defendants in this case, myself and my other half who is unable to attend the hearing due to work committments.
Reading Part 27 of the Small Claims [copied below] I'm reading this that he just has to contact the court 7 days in advance to alert them and the court will rely on his written evidence. I will attend though. Just want to check my understanding is correct. Thank you

Non-attendance of parties at a final hearing

27.9
(1) If a party who does not attend a final hearing–
(a) has given written notice to the court and the other party at least 7 days before the hearing date that he will not attend;
(b) has served on the other party at least 7 days before the hearing date any other documents which he has filed with the court; and
(c) has, in his written notice, requested the court to decide the claim in his absence and has confirmed his compliance with paragraphs (a) and (b) above,
the court will take into account that party’s statement of case and any other documents he has filed and served when it decides the claim.