Defence written "without prejudice" - will a small claims court judge accept this?

[MaryS57]

Hi

The defendant in my case appears not to have written his full defence correctly and written "without prejudice" at the top. Should I be doing something to alert the judge to this?


I am a claimant with a faulty caravan. The Defendant caravan dealer in our case filed form N9B but filed all his defence arguments on a piece of paper headed entirely (at the top) "without prejudice." He further failed to sign this piece of paper with statement of truth at the bottom.

Would (or should) a judge disregard this extra piece of paper? If so, the Defendant does not seem to have a proper defence.

Do I need to point out the "without prejudice" error to the judge at the hearing for the judge to react to it? . Or would the judge just tolerate this lack of proper form (in the smc)?


As background:
- I am claimant with a seriously faulty caravan
- Defendant is the dealer who sold it to me new and is now flatly refusing to correct the abnormally constructed interior frame which caused the exterior plastic panels to crack under stress from the faulty frame and thereby allowing in damaging water
-we have ample evidence:, photos, expert report, repair will cost £9K. Case is currently awaiting transfer to local county court (small claim track)
- mediation alas failed to get anywhere as the defendant wants me to pay for the repair.
-The Defendant dealer does not seem to know what he is doing and has not followed CPR in a number of other respects.


Many thanks for your help.

[Pezza54]

As the claimant you are entitled to file a Reply to Defence on the small claims track
The Reply to Defence should be submitted at the same time you file your Directions Questionnaire (form N180)
Take the opportunity on various websites to read how this document should be drafted.
In your Reply to Defence you should ask for the Defence to be struck out on the grounds the Defendant has marked the Defence "without prejudice" and has failed to include a signed Statement of Truth

[MaryS57]

Will do. Thank you for your advice.

[MaryS57]

Please could I have a little more help thanks.

Our defective caravan case (please see background above) has been transferred to the local court (according to the Mediation Service - but no letter of confirmation yet) and I am awaiting court directions. Within the Directions Questionnaire I requested the Court to accept our Expert Report which I also attached to the Particulars of Claim (we needed this report for the POC as the Defendant wasn't telling us what the cause of the panel cracks was - even though we asked twice).

However, what is worrying us is that the Mediator hinted we may need a second Expert Report on the defective caravan - but is she is right on this??

IF so this will cause us further cost and a serious health issue is a stake. (please see details summarised below)

(a) The first Expert Report which we commissioned is fully CPR 35 - compliant i.e. a 25 page report - clearly written - complete with relevant photos and summary etc. This Expert has signed the numerous statements at the end, verifying this is his complete, truthful and independent professional opinion.

(b) He one of the leading authorities on such faults on caravans in England . His extensive qualifications in this field are listed at end of the report. I will struggle to find someone so well qualified who could do another report at reasonable cost . Fortunately I managed to get his report done at relatively low cost (£415) as the Expert was already attending another caravan case nearby and so I was spared his travelling costs (~260miles round trip). He is available to answer queries from either party as CPR 35 requires.

(c) The defendant has effectively washed their hands of my leaky defective caravan for 2.5 years. He knows all about the issues, I have provided full photos of the cracks for him & offered to bring the caravan to his dealership premises countless times - but he is just not interested.

(f) Thus to fulfil my obligations, I have been left trying to cover up the cracks in the Caravan's panels to limit water ingress which rots the structural wooden frame (a dangerous situation) and to prevent internal mould growth which is also health hazard.

(f) Mitigating against this water ingress involves me going up a very tall ladder to get to the caravan top, spending perhaps an hour thoroughly cleaning the surfaces up there before applying waterproof tape to the 10 cracked areas in these panels.

(g) The tape needs replacing every few months. I have done this diligently for 2.5 years but I can no longer do this as I am a pensioner and have just been diagnosed with a brittle spine. I could now break my back if I fell off this ladder.

(h) Due to the risks to my health - I asked the Expert what I should do? - and he suggested I get a caravan engineer to apply something called Sikaflex to the cracks as a preventative barrier (removable) and place high quality opaque waterproof tape over the top for added protection (also removable). This has now been completed.

(i) Should the court order a second expert report then all this work to make the cracks watertight (in a non-invasive way) would have to be undone - just so the second expert can see the issues. Then I will be left with the caravan and it's cracks exposed again to water ingress. .

Please assist with advice, thank you.
.
Should I now write to the local Court ahead of their directions order to inform them of the difficulty i am having preventing water ingress and that a second Expert would disturb all our efforts

This is not to mention the added costs for a second report for what is only a small track money claim (value of claim ~9K ).

Two expert reports would seem over the top for a small claim.

Thanking you very much in advance.

[islandgirl]

Re the water ingress - buy a caravan cover which will prevent this

[Pezza54]

Ignore the mediator. Wait for court orders about the expert report. You were right to ask for the court's permission to use an expert report in your Directions Questionnaire.
There is a possibility that the judge will decide the 25 page detailed expert report is too lengthy and complex to consider on the small claims track and reallocate the case to the fast track. Hopefully that won't happen

Did you file a Reply to Defence and ask for the Defence to be struck out (no signed statement of truth and marked "without prejudice")?

[MaryS57]

Many thanks for your help – much appreciated.

The expert report, although 25 pages, is actually fairly spaced out and simple with pages & pages of photographs recoding the 10 areas of panel cracks. The amount of text is short and conceptually it makes for a quick & easy read (hopefully it will pass the sm claims court test).

In a nutshell; the Expert is saying that: -

1. The caravan’s wooden frame was made too big causing the frame to be pressed hard up against the weaker outer plastic panels i.e. the fit is “too tight”. This fault has caused the weaker, brittle plastic outer panels to crack leading to water ingress.
2. This is a known inherent defect and has happened on a many of other caravans made within the same batch as mine by this particular manufacturer i.e. mine is part of this faulty batch (although the batch involves hundreds of caravans).

I have to confess I did not elaborate too much about the procedural history & times scales etc about our case until now. So maybe it will be helpful if I add more detail in here for you to follow:-

1. The Defendant caravan dealer is totally ignoring CPR rules and this is proving a real headache for us.
2. He has yet to serve any documents on us properly (i.e. Defence & DQ). We only found out he filed a Defence at court when the Business Centre informed us that our request for judgement (form N205A(?)) had failed.
3. We then asked the court and the defendant (separately) for a copy of the defence – but neither has provided it to date in paper form.
4. All we hold is an electronic file that the Defendants say is the defence (but no N9B form) emailed out by an employee of the Defendant.
5. Our original Claim was on paper and served by the Court. The attached POC clearly states the allegations in a simple, logical order as possible. copies of the Expert Report & Contract were attached to the POC.
6. By contrast the Defence that we were sent simply sidesteps all our allegations in the POC (i.e. the Defendant doesn’t address them at all). Instead, the Defence only waffles on about the caravan’s warranty, which is irrelevant.
7. The defendant admits there are panel cracks within the defence, but his defence is silent on why they happened.
8. The court timescales did allow us to submit a Reply. We did this after researching how. We pointed out within the Reply as succinctly and clearly as possible that defence did not answer the specific POC allegations according to the court rules i.e. admit/deny with reasons/neither admit nor deny. We also pointed out that the entire defence only discusses the warranty, which is irrelevant to the case in hand.
9. Sadly we did not think to ask for an additional strike out on the basis of this inadequate Defence document which we had been given. This is a very good point of yours. However, I made mental note to mention your valuable point at the very next opportunity – but maybe this will be at the hearing now?

I do wonder if the procedural judge may require a better defence to be prepared, possibly even just on sidestepping the POC allegations and the “irrelevant warranty” waffle? but may you will know more.


Many thanks again .....


Re: caravan cover – it is a very nice idea and could be useful. However sometimes a cover can be more a hindrance if it traps in moisture and allows mould formation. The caravan engineer, when he came to do the work, detected some damp in the caravan’s ceiling (unfortunately I couldn’t keep every drop of rain out) and has instructed us to air the caravan as much as possible. Hopefully, once the caravan is dry again I can ask him his recommendations going forward.

[islandgirl]

Lots of people on storage sites use covers. They have ventilation I imagine to avoid the issue of trapping moisture. Better a cover than either rain and leaks or you going up a ladder with tape (which is a ridiculous situation). Alternatively seek indoor storage. It will be at a cost but you may be able to claim that back (or you may not, but better than tape)

[Pezza54]

You need to be patient and wait for court orders. No need to write to the court.
When the allocated judge reads the claim, defence, reply to defence, he or she may decide to order that the defendant alters, clarifies or whatever their defence.
If the judge issues such an order and the defendant fails to comply by the stipulated date, the judge may strike out the claim
The report you obtained, with plenty of photos showing the latent defects, sounds like an independent expert report that the judge would expect to see

Was the £9k cost of repair an estimate or quotation and was it provided by the expert?

[MaryS57]

Many thanks for your help. I will be patient as you suggest.

The expert report described the work needed to remedy the defects, including modifications to the caravan's frame. He gave a ballpark figure in the report as to what the thought the work may cost. (he thought up to £10K)

I then obtained a detailed written estimate for the work needed (on the basis of the Expert's instructions) from a National Caravan Council (NCC)- approved caravan repairers, reasonably close to us.This repairer included within the estimate the time needed to to adjust the internal frame and any internal making good. The itemised total came to £9K - i.e 1K lower than the £10K.

While I wait, should i get more estimates/quotes from alternative NCC- approved repairers?

i'm keen to be as well organised as possible and ready. .

[Pezza54]

No need for a second quote now. You made your claim based on a detailed estimate obtained from an approved caravan repairer
If you obtained a fixed quotation now it is likely to be time limited and out of date by the time of the court hearing

[MaryS57]

Thank you. I will post again once we are sent the court orders.

[MaryS57]

Hi. Whilst waiting for the court orders - ( being typed apparently) - we have discovered that the dealer we bought our caravan from is dishonest and I'm wondering what we should do with this information i.e should this go into the witness statement and/or should I contact the manufacturer - because the dealer has also deceived the manufacturer. .

We have discovered the following using SARs' and from another customer who also bought a new caravan from the same dealer.

1) Our dealer has been “struck off” and banned by two caravan manufacturers from selling new caravans (one of these 2 is our caravan's manufacturer).

2) This ”striking off” was the direct result of serious complaints made by at least three other customers about the conduct our dealer.

3) The director invented v high damp readings on a trade-in caravan and tried to swindle £1000s of money from another customer. The dealer was caught in this act of fraud, because the customer had obtained his own readings the day before from another approved caravan service engineer (these reading showed no damp what-so-ever).

4) The dealer misrepresented a fact in his business card that I used during the negotiations, The business card said he was an member of the National Caravan Council NCC (i.e. the "gold standard" for the industry ). I recently checked with the NCC and in actual fact the dealer has never been a member of the NCC since inception of his company in 2009. I even wrote this fact that he was a NCC member in the POC & and now I find out it isn't true.

5) During our sm court mediation, the only offer that the dealer put forward was the following

Dealer's offer during mediation:-

• the manufacturer would supply the parts (only) for free
• I (the customer) will pay for 100% of the dealer’s labour at his retail rate (less a "supposed deduction of 20%”). But he neither told me his rate nor how long the work would take - so how "long is a piece of string?"

However doing a SAR to the manufacturer recently I discovered that the manufacturer’s offer was not this at all.

The manufacturer's offer was the following:-

• The manufacturer was going to provide the parts PLUS 30% of the labour for free but only condition that there was no cost to me (as customer)
• The dealer would need to do the 70% rest of his work for free.

So basically if the dealer’s offer during mediation had been accepted by me & given the seal of approval by the court, then he would have received 130% time for his work (100% from me at unknown rate +30% from manufacturer = 130% time)

As Dell Boy would say – “a nice little earner !”

But at the same time the dealer would have been deceiving me, the manufacturer and the court.


Please advise what I should do with this information.

Thanks again for all your help. much appreciated.

[echat11]

I understand there is an ongoing case.

Have you lodged a Complaint with Trading Standards via CAB regarding the 'new information'?

This would no doubt help your case, i.e. Witness Statement etc.

https://www.tradingstandards.uk/consumer-help/

Email letters to manufacturers etc, asking the question i.e. is XXXXXXX a customer?
Are they allowed to sell caravans?

Keep gathering evidence for your 'evidence bundle'.

'We have discovered the following using SARs' and from another customer who also bought a new caravan from the same dealer.

1) Our dealer has been “struck off” and banned by two caravan manufacturers from selling new caravans (one of these 2 is our caravan's manufacturer).

2) This ”striking off” was the direct result of serious complaints made by at least three other customers about the conduct our dealer.

3) The director invented v high damp readings on a trade-in caravan and tried to swindle £1000s of money from another customer. The dealer was caught in this act of fraud, because the customer had obtained his own readings the day before from another approved caravan service engineer (these reading showed no damp what-so-ever).

4) The dealer misrepresented a fact in his business card that I used during the negotiations, The business card said he was an member of the National Caravan Council (i.e. the "gold standard" for the industry ). I recently checked with the NCC and in actual fact the dealer has never been a member of the NCC member since inception of his company in 2009. I even wrote this fact that he was a NNC member in the POC & and now I find out it isn't true.'

[Pezza54]

There is a very informative article at hallellis.co.uk about preparing witness statements for court.
Briefly witness statements should not include opinions or hearsay evidence
Facts should be supported with evidence that is cross referenced

Please read the government guidelines about mediation. All discussions are confidential and are "without prejudice"
Nothing that was said at mediation can be used in court