Received a Notice of Intent to Apply for Adjudication

[des8]

You do not inform the court about negotiations without prejudice.
The "without prejudice" rule allows parties to negotiate without being at risk of having those communications produced and disclosed and used against them later in court, thereby potentially undermining their case in the event that a settlement is not reached

[Donny462]

One should not accuse the other party of lying or trying deliberately mislead the court.
They are either mistaken, or failed to understand. A judge will suss out what is actually happening.

One should always look as if one is trying to settle out of court.
Any negotiations should be marked as "without prejudice save as to costs", so see what she is looking to settle at.
It can't hurt

Ahh right, ok, thank you, that makes sense .

If I write to the Solicitor to ask what she is looking to settle at, do I have to copy the judge in that correspondence can you tell me please?

[des8]

One should not accuse the other party of lying or trying deliberately mislead the court.
They are either mistaken, or failed to understand. A judge will suss out what is actually happening.

One should always look as if one is trying to settle out of court.
Any negotiations should be marked as "without prejudice save as to costs", so see what she is looking to settle at.
It can't hurt

[Donny462]

des8

This is the Claim Form statement, I thought you might be interested to see it:-

The Claimant provided works to the Defendant commencing in December 2016 in relation to the provision of expert advice regarding the adequacy of remedial works required to the Defendant`s property following subsidence. The Claimant issued invoices to the Defendant which were disputed and remained unpaid. The matter was referred to Adjudication in September 2019. The Adjudicators decision dated 15th October 2019 , ordered the Defendant to pay the Claimant the sum of ***** in respect of the Claimants unpaid fees, and the adjudicators fees and expenses in the sum of *****. The Defendant has failed to pay either sum due. The CLaimant seeks enforcement of the adjudicators decision dated 15th October 2019.

The Claimant has deliberately mis-led the Court, he has not stated that he was an Expert in an arbitration to determine whether or not my property has suffered from Coal Mining Subsidence, nor does he then say he acted as our agent in a further arbitration for Coal Mining Subsidence, in fact, the majority of his work was when acting for us as our agent in the second Coal Mining arbitration - he notably leaves out that it was subsidence caused by Coal Mining, he has also left out that he acted in arbitrations for us, nor has he stated it was regarding our prime domicile.

Could you please tell me if I am able to actually put that the Claimant deliberately mis-led the Court?

Additionally, the Claimants Solicitor has now written to me stating that it is her Clients wish to settle this matter without the need for Court Action , I think her Client has been less than truthful with her too.

[Donny462]

Basically the court is not going to use their power to strike out for noncompliance and aren't going to consider it unless you file an application.
This will cost you £255, with no certainty of success and the possibility of paying the other sides costs if your application is disputed and fails

Thank you des8 . I understand that bit, but what I don`t understand is how the Court is just ignoring the Claimants blatant non compliance? It is already looking biased in favour of the Claimant as he is advised in the Court Order, that if I don`t comply, that he should go for judgement for defaulting on my part, without the Claimant having to go the more expensive route of going to a hearing, yet the Claimant can not comply and it`s just ignored, it doesn`t seem very fair to me.

As the Court has ignored the Claimants Solicitors letter stating what dates she wants documents to be served, it looks like I will be following the directions of the Court Order of 4th October, but they will be playing by their own rules.

Oh, and having now finally received the Claim pack, I can see that the Claimant has blatantly misled the Court in saying he was employed for some remedial works that needed doing to the Farmhouse due to subsidence...he makes no mention of the fact that in the first instance he was employed as an expert witness in an arbitration, nor that in the second instance he was employed as our agent to represent us in an arbitration from start to finish. He also makes no mention of the fact it was coal mining subsidence, (which is exempt from adjudication), nor does he state it was as part of my prime domicile , so it`s easy to see why the Court accepted his claim! I shall post his Claim tomorrow for you to have a proper look at, it isnt very long, but is practically all lies.

[des8]

Basically the court is not going to use their power to strike out for noncompliance and aren't going to consider it unless you file an application.
This will cost you £255, with no certainty of success and the possibility of paying the other sides costs if your application is disputed and fails

[Donny462]

Hi des8

The Court have responded to my email re the Claimants non compliance.

Below is what I sent to the Court, and then their response. I am unsure what happens now, as no comment has been made as to whether we are abiding by the dates of the Courts Order of 4th October, or the dates as given by the Claimants Solicitor in her letter received by myself on 28th October, which incidentally, they do not appear to have copied to the Court, so once again, I`m totally confused.

TO WHOM IT MAY CONCERN.

Re:- Claim Number HT-2021-LDS-000016 *********** and ***********

Further to my Witness Statement dated 20th October 2021, and sent to the Court on the same day, I wish to inform the Court that I was served the Acknowledgement of Service and Claim Pack by hand yesterday, 28th October 2021, which is 24 days after the Court Order of 4th October 2021.

Within the last paragraph of my Witness Statement dated 20th October 2021, I invited the Court to exercise their powers under CPR 3.4 (2) (c) and strike out the Claimants claim for continuing non compliance with Court Orders.

Now, once again, the Claimant is not complying with the Court Order of 4th October 2021 , in that I submitted my Defence as ordered on 20th October 2021, the Claimant should then have submitted his response to my Defence by 27th October 2021. He did not. I therefore again invite the Court to exercise their powers under CPR 3.4 (2) (c) and strike out the Claimants claim for continuing non compliance with Court Orders.

Yesterday I received the attached letter from the Claimants Solicitors. You will see that the Claimants Solicitor is proposing new dates for the serving of evidence. I do not agree to their proposal to amend the dates for serving evidence as I served in accordance with the Court Directions as per the Court Order dated 4th October 2021, and I see no reason why the Claimants Solicitor could not also have abided by the Court Directions detailed in that Order, yet they took a further 24 days to notify myself, and the Court that they would not be complying.

I feel it is wrong for the Claimant to ignore the terms of the Court Orders and to propose new dates after their non compliance with the two previous Court Orders.

I served my Defence on 20th October as per the Court Order, the Claimant would have seen my Defence filed that day, yet are now suggesting I file my Defence by 11th November at 4pm, in the full knowledge that I have already served it on them.

As it currently stands, the Claimant had my Defence for 8 days before preparing and serving me with the Claim Pack and so was at an unfair advantage.

This is the response from the Court:-

Dear Ms ********

Further to your email below, this has been referred through to Her Honour Judge ***** who comments as follows:

"I am afraid that it is not for the court to provide a comment or advice to the Defendant. If she is unsure how to proceed, she should consider taking legal advice. In any event, it is a matter for her to make such formal application to the court as she is advised, or otherwise, thinks is appropriate."

Kind regards

[Donny462]

If papers were served on you on last Thursday and your response is due four days later, you should respond by today

Hi des8

Sorry, I should have said that it actually say 4 working days, tomorrow being the fourth working day.

[des8]

If papers were served on you on last Thursday and your response is due four days later, you should respond by today

[Donny462]

Yes, respond to them as per the directions, but reiterate in a covering letter that their breach of court orders has been noted.
Their noncompliance doesn't mean you should not comply

(wrote the above yesterday morning shortly before going out for the day, but omitted to post it.. sorry!)

Thank you so much once again for your help des8 . I hope you had a really nice day out, you deserve it .

[des8]

Yes, respond to them as per the directions, but reiterate in a covering letter that their breach of court orders has been noted.
Their noncompliance doesn't mean you should not comply

(wrote the above yesterday morning shortly before going out for the day, but omitted to post it.. sorry!)

[Donny462]

des8

[Donny462]

Sorry to bother you on a weekend, but please can you advise me as to whether I need to complete and return the Acknowledgement of Service and Claim Pack, as if I do, I will have to have them done and filed at Court by Tuesday at 4pm.

Many thanks.

[Donny462]

HI again des8
It has just dawned on me....as the Claimants Solicitor served the Acknowledgement of service and Claim Pack on me on Thursday, do I now have to complete those and send them back within 4 days as was stated on the Court order of 4th October, despite the fact that the Claimants Solicitor has disregarded the other terms of that Court Order, and despite the fact that I filed my Defence on 20th October? Or would completing those and returning those be seen as an acceptance of the Claimants Solicitors amended dates? This is all so confusing.

[Donny462]

Because applying for a strike has a fee attached & carries possible risks it might be better just to write to the court.

You have already invited the court to use their management powers... this additional information might help without the cost of an application

Advise the court (by email) , further to your earlier email dated dd/mm, that you have now received the claim pack on DD/mm ie x days late
Send a copy of the solicitors email and explain to the court you do not agree with their proposal to amend the dates for serving evidence as you served in accordance with the court directions
Point out the claimant therefor had your defence before preparing the claim pack
Copy in the claimant's solicitor

Thank you so much des8 once again. I have done as you suggested, so will just have to wait and see now, but find it incredulous that this solicitor feels she can just ignore not one, but two Court orders and then put forward dates that suit her instead!

One would have to assume that a Solicitor knows what they are doing re dealing with Court paperwork, so it will be interesting to see if she gets away with it