Help with form N244 please

[Sterling]

Hello.
I am a sole trader and am in the process of taking a second hand car dealer to court over a problem with a van he sold me. The claim is now at the Notice of Allocation to the Small Claims Track (Hearing) stage, date of hearing to be advised.
I have already obtained a written report, on this particular problem, from a firm of automotive consulting engineers and am informed that I need the courts permission to use this expert witness evidence in my claim.
From what I can gather I need to make this application on form N244. Page 1 is causing me some confusion.
I have answered question 3 "permission to use a written report, prepared by an expert witness, on the gearbox in the van sold to me by the defendant. The report states that the fault would have been present at the time of purchase."
Could anyone advise on what I should answer to questions 4,5,6,7 & 8 please or should I just leave them blank.
Many thanks

[echat11]

I believe you also need to send a copy of the form to the other party -

The form can be used for many different orders, so all the questions aren't applicable to you -

https://assets.publishing.service.go...-notes-eng.pdf

[R0b]

Who said to you that you need to apply for permission to adduce expert evidence? The fact that you've obtained a report from an independent third party who might have expertise in a particular subject does not automatically mean that it is to be treated a expert evidence. It can simply be evidence used as part of your claim but the judge will instead attach the appropriate weight to that report.

Expert evidence is governed by Part 35 of the Civil Procedure Rules and means that an expert is bound by those rules and owes a duty of care to the court. There are certain requirements that need to be complied with and must prepare a written report for the court in a particular structure and format. In short, it can be costly to go down this route so you may want to consider whether that cost outweighs the sum of money you are claiming against the dealer.

Unless you have good reason to go down the expert witness route, I would just continue as is and use the report as part of your evidence. You may want to include the person who provided the report as a witness if they are willing to attend the hearing (most likely a telephone hearing at the moment) but that's a decision for you to make though you will need to ask that person first before listing them as a witness.

[des8]

R0b OP has already requested courts permission to use an expert witness report and was told by court to apply on notice.
(https://legalbeagles.info/forums/for...rm-n180-please)
Classic example of not realising the meaning of "expert witness"

[Sterling]

Thank you for your responses.

Yes, you are quite correct, I did not fully grasp the meaning of "expert witness" in this case. Any advice is, and will be, greatly appreciated

The company is experienced in providing such reports. The report contains a section entitled Duty in which the writer states (in short) that Part 35 and Practice Direction 35 has been, and will continue to be, complied with.
There is also a statement of truth and a biography of the writer.

I am aware that there is a fee to pay for this application. The report is important to my claim as it states that the gearbox fault "would have been present or developing at purchase." My claim is for the supply and fitting of a reconditioned gearbox

In question 3, is there any specific wording or reference to CPR that I should include please.

Many thanks

[Sterling]

Could someone please advise if the following might be acceptable as the answer to question 3 "what order are asking the court to make and why"

"The applicant seeks the courts permission to use an expert witness written report pursuant to Part 32 of the Civil Procedure Rules on the ground that the report states that the faults would have been present or developing at purchase."

Also the report is addressed to me as it was prepared before court proceedings were started. Would the court accept this or should I request the author to change the addressee details and include the claimant and defendant names and claim number even though it would be dated prior to proceedings starting.

Many thanks

[des8]

If you are intent on trying to use an expert witness you seek the court's permission by completing section D 02 on the Directions Questionnaire N180 appropriately, or have you already returned that form?

[Sterling]

I completed form N180, ticked the yes box in D2 and gave the name of the expert, the subject of the report, the cost of the report and the fact that the defendant had been informed that I would be obtaining this report and that he had been sent a copy of the report.

I received Notice of Allocation to the Small Claims Track (Hearing) this made no mention of permission to use expert witness, so in accordance with para 13 in the Notice I wrote to the court and requested permission to use expert witness written report. My letter was referred to a District Judge for consideration and I received the following response:
"The claimant must apply on notice, providing details of the proposed expert, the costs of obtaining a report, the timescale for producing a report and seek to agree the identity of the proposed expert and letter of instruction to the expert with the Defendant"

I then sent an email to the court requesting further direction on this matter, explaining that I had written 3 letters to the defendant, that the defendant was aware that I would be obtaining this report, and that the defendant had failed to respond to any of my communications on this matter.
I received an email back from the court in which they just referred me back to their previous response.

Where to go from here. I am claiming just short of £2000 for the supply and fitting of a reconditioned gearbox.

Will the fact that I obtained the report before proceedings against the defendant were started (even though he knew that I would be obtaining it) and that it is addressed to me, cause a problem in getting permission to use it as expert witness?

If I decided not to go down the expert witness route, how do I inform the court and will I be allowed to use the report as evidence in my claim.
If I were permitted to do this then how much of the report would be considered as it gives opinions and makes the statement that "the current faults would have been present or developing at purchase"

Many thanks

[echat11]

https://www.judiciary.uk/wp-content/..._in_Person.pdf

[des8]

I would word the proposed order along the lines of:
"The Claimant has permission to rely on the expert evidence annexed. The Defendant may raise written questions of the expert by 4pm on [date] which must be answered by 4pm on [date]."
Include the details ordered by the court, and confirm the defendant is not co operating.
I know you have done that already, but no harm repeating it

[R0b]

Des I don't think based on what Sterling has described that he has permission, otherwise the order would stipulate that. It sounds like the judge is saying an application for permission is needed.

Sterling You need to draft the answer to Q3 in third person, not first person. If I were in your shoes then I would consider writing something along the lines of the below.

1. The Claimant seeks permission to adduce expert evidence to support the Claimant's case in these proceedings. The Claimant has already sought evidence from an independent expert, a copy of the report enclosed to this application.

2. Alternatively, the court grant permission for the report to be used hearsay evidence pursuant to CPR 33.2(3) and section 2(1)(a) of the Civil Evidence Act 1995.

To give some context to the second point, hearsay evidence is any statement or opinion by a person not giving evidence or has provided a witness statement in support. This includes where you refer to that person or opinion in your own witness statement. Hearsay evidence is not as strong as supplying a witness statement and giving oral evidence at the hearing because there is no opportunity for the person to be questioned/challenged on their evidence, so the court will attach appropriate weight to that hearsay evidence.

If the judge does not grant the person to be an expert witness, then you should really get the person to provide a witness statement and be willing to attend court on the day, if possible. Failing attendance a witness statement would be better than nothing but if the person is not willing to do either, then you should seek to rely on it as hearsay evidence which is what the second point intends to cover and is an alternative to the first.

Personally, I think this is way too much effort and probably a waste of money to spend but it is your case. Surely it would be easier for the person who wrote the report to re-write the parts that refer to being an expert witness and references to the relevant CPR parts and then its just ordinary evidence.

Also if I recall, expert witness costs are capped at £750 for small claims whereas if the report cost more, you could have relied on that as direct damages and claimed the full amount.

[Sterling]

Thank you for your responses, The Litigant in Person was interesting reading.

In Q10 on N244 I intend noting, in chronological order, details of all my correspondence with the defendant regarding this issue and the fact that he has failed to respond to any of them or engage with me in any way.

As previously mentioned, the expert witness written report was obtained before proceedings were commenced and is addressed solely to myself. I read that in order to comply with CPR PD35 para 3.1 the report should be addressed to the court.
Considering that the defendant has already been sent a copy of this report, were I to ask the author of the report to amend the addressee details in order to comply with CPR would this, in your opinion, cause a problem or indeed be necessary.

Many thanks

[Sterling]

Thanks for your response Rob. Sorry, I have been messing around with my post for a while today and did not notice your reply before I finally posted.

Food for thought indeed and yes, the court requires an application for permission.

There are 3 separate issues with the van, two of which the defendant could have disclosed at purchase (he did not) and this gearbox issue. I entered into this process with an open mind regarding success and feel that, with this expert witness report, I have a strong case. The expert witness gearbox report cost me £240.00.
In the report he makes the statement that in his opinion "the current faults would have been present or developing at purchase" and also gives the opinion that "the selling agent would have liability"

I have a copy of the defendants handwritten defense in which he states that I have made no mention of the gearbox problem, despite it being covered in four letters I sent him over a 10 week period. His defense of the other two issues is equally weak.

It is going to cost me £275.00 (I believe) to submit this N244 application and I take it that if unsuccessful I will not be refunded, so if I am going to send it then I want to try and get it right.

The two sticking points in getting the report accepted are, as I see them:
1. The fact that the report has already been done without agreement from the defendant (no response from him at all so how could I get agreement anyway)
2. It is addressed to me and not the court (CPR PD35 para 3.1)
Were I to get the report author to amend the report and add the court as addressee, would that cause any problems or would it even be necessary.

If my application for expert evidence is refused then the mainstay of my claim has been removed as his expert opinion and conclusion would not be considered. A witness statement from him may well confirm that there is a noise from the gearbox but it would leave the question of when did this noise develop very much up in the air and therefore allow the defendant to deny liability.

Any further advice or pointers would be very much appreciated.

[R0b]

If I'm being blunt, just get the application in and see what the judge who hears your case thinks. It is all well and good speculating but this isn't a complex application for permission, it's very straight forward in that the judge will either accept the evidence as expert evidence or will refuse.

As for your other part at the end of your post, I can only repeat what I said and explained in previous post. The fact that the evidence is not considered expert evidence does not automatically mean your case is hopeless. The fact that someone qualified with sufficient expertise has inspected and written a report will add some weight unless the defendant can show cause otherwise.

I don't have anything further to add really, the ball is in your court.

[Sterling]

Thank you Rob, I am over analysing things so will get the application in and see what happens.