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I haven't had a chance to work through it yet, but the updated order from the court has just been received - I thought I'd post it straight away.
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Your claim is confirmed allocated to SMC for the time being.
Ypi have until next Monday to file and serve your amended poc
Defendants then have 14 days to file and serve their amended defence.
Defendant after receipt of your amended poc may apply to have the claim reallocated and will probably do so.
The judge has then ordered directions regarding the timetable for the process as the solicitors draft directions. She has even referred to cpr 35 which is omitted in SMC.
What I am not sure about is the reference to a SJE. I thought
you said she had agreed to the defendant relying on their own expert. You should argue for your expert to become the SJE. The judge was surprised you had already paid so much money for an expert report and didn't think it fair you should have to pay 50%for another report
As the directions state dates for exchange of document lists there is no need to include documents with your amended poc. This is your decision though. Holding back documents may provide ammunition for the solicitor if he applies for reallocation.Comment
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Sorry my mistake.
I have just read PD 27A Small Claims Track
Appendix C Special Directions
Document lists are covered here
So probably best to follow the court directions to the letter.Comment
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I misread the directions.
Experts fees are to be shared between both defendants, not you.
The directions do read as if your expert report is excluded from the trial and states the defendant is to give instructions to the SJE.
The directions do go on to state that if an expert cannot be agreed, the claimant shall apply for further instructions.Comment
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If another auto engineer is allowed to inspect the engine to produce a report, all they have to write is the engine has been dismantled previous to my visit. The break in the chain may have been caused when it was removed or after it was removed. A lack of engine oil could have caused the piston and valve damage and even the chain to snapComment
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Thanks for your initial thoughts. I have been able to catch up with the directions now.
I presume my time to be able to argue against the new SJE has now passed? That doesn't mean I can't include the evidence from my expert in the POC and my case? Am I right in assuming that at this stage, dealing with the SJE is now a question for another day? With today being about the POC?
Am I understanding correctly that you opinion is it is better not to attach any evidence to the POC now? I'm "arguing with AI" now (LOL LOL) that I shouldn't attach the evidence and it is adament that I should. I am trying hard to change its mind but failing.Obviously I value your opinion higher than AI, but just wanted to double check I've understood you right.
It is my intention to serve the ammended POC solely by email. This is the verbal instruction I was given at the preliminary hearing. The Directions document doesn't explicitly state that however (and does later explicitly state stage to be completed by email). Are there any issues if I serve by email only?
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You can file and serve by email.
The documents you are relying on should be added to your documents list.
I don't' want to sound too pessimistic but I'm not hopeful after reading the judges directions again.
She appears to have reluctantly allocated the claim to SMC and cited 2 stages when the defendant can apply for reallocation. Her directions are standard directions for the fast track, not SMC.
The directions exclude the SJE being included in the documents list and she doesn't write that she has given permission for you to rely on your expert report
I suspect that if you refer to it in your amended claim the defendant will ask for it to be struck out in their defence.
I fail to understand why both the judge and solicitor believe that an expert report produced now would be of any real use.
Not being at the hearing I don't know what was said about your expert report and a SJE. You mentioned this report in your original poc and sought permission to rely on an expert in your DQ
In the Scottish case the sheriff was reading both the claimants and defendants expert reports.
I may be wrong. My understanding is that if you are unable to agree on a SJE by a stated date you have until 4 pm the next day to apply for further directions. As you will be in dispute you will have to file a n244 making a case for your expert to be appointed SJE.Comment
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Another worrying point. I have read in cpr that if a claim is reallocated costs follow the reallocated track as if it had been allocated to that track at the outsetComment
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The judge was not persuaded by a new expert. She kept asking the defence solicitor what questions she would want to ask the new expert and didn't get clear answers. She also explicitly said in response to my comment that the vehicle has deteriorated and inspection may not give good results at this stage that the new expert may need to write their report based on my expert report.Originally posted by Frank1 View Post
She was definitely reluctant on the SMC. As I previously said, I was surprised when she allocated to the SMC. She was persuaded by the "access to justice" element but also said that did not override her duty to ensure the case was alloacted to the right track. She also stated that if it was fast track then it would almost certainly be Band 3.
A "document list" - is simply a list of documents without actually including the documents?
I believe the directions document was written by the defence solicitor and provided to the court who then distributed it, not directly by the judge herself or the court.Comment
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5.1 and 5 2 answers your question.
My advice is to leave reference to your expert report in your poc and wait to see if it gets struck out.
In the meantime you could email the court manager and ask about your expert report. Explain it was discussed at the hearing and you believe the judge gave her permission for you to rely on it. As the report isn't mentioned in the directions, is this a mistake?Comment
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I'll get onto that this evening.
I'm presuming, with lawyers, this will be costing them quite a bit more to defend than what the case is worth if it stays in the small claims track (and even in the fast track with the cap on fees)? Seems strange they're fighting it so hard on what should look, a fair and reasonable claim? Presumably it's a macro decision to dissuade other cases against them?
Comment
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You may be shocked by the amount of fixed costs for a £10k claim in the fast track complexity band 3
Practice Direction 45
Table 12: rule 45.44
C. If the claim is disposed of at trial
£5,265 plus an amount equivalent to 30% of the damages awarded
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If after the claim is reallocated and you discontinue your claim without agreement with the defendant
£4,129 plus an amount equivalent to 25% of the damagesComment
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The above costs are for claimants. There is no guarantee that defendants are awarded the same amount of costs as claimantsComment
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The legal system is completely broken. Justice is unaffordable and the corporations know it!
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