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

[Pezza54]

Did you file your Reply to Defence (the defence the one page headed Without Prejudice) with your DQ as my post 2?

Are you aware there is another Defence document that you did not receive?

PD 5A p4.2A(c) does state a party can request a statement of case (which includes the defence) from court records. Send an email to your county court requesting a copy of the defence and explain you don't believe you have received a full copy from the defendant

[MaryS57]

Thank you for your help, (as always)..

1) Yes I did file (& serve) a reply, (properly drafted and signed).

The following details may help to clarify the other point:-

2) The defendant employee only emailed me two word files (see files A & B below). I received no hard copies at all. (I'm aware that service of the Defence should be by hard copy -just another breach of the rules to add to the list, I guess!!)

File A:
The main file (File "A") was headed (a) "Without Prejudice" at the top; (b) lacking a "Statement of Truth/Signature/and Date" at the bottom and (c) lacking the title "Defence" at the top.

File A was at least written in numbered paragraphs, to which I could refer in the Reply and seemed to relate to the PoC paragraphs. File A made references in various places to numbered evidence.

File B
The second file (File "B") was a just simple Table in "Word" - giving a list of the evidence mentioned in File A - but no actual evidence (per say) was supplied to me.

However, the Defendant would have sent the court a full copy of :-
(i) Form N9B
(ii) File A
(iii)File B (i.e. the list of evidence)
(iv) The actual evidence referred to in file A (presumably these will also be attached to the witness statement in due course)

The Defendant is making such a hash of everything I just wanted to see:-

(a) the filed Docs
(b) check for a statement of truth (as far as I know anyone could have written file A; does a signature/statement of truth at the bottom of Form N9B suffice? In order to count, ought file A be headed "Defence" as well? - it isn't).
(C) and see one or two of the actual evidence docs filed (for example: was one a picture of the caravan on the production line??).

I hope this make things a little clearer.

Should I ask the court for a full copy (i)-(iv)?

[Pezza54]

Personally I would wait for the hearing in August and not email the county court. Wait to see what the judge says about the documents provided by the defendant. The judge may ask the defendant to amend his statement of case. It is not normal on the small claims track to file witness statement and evidence more than a few weeks before the date of the final hearing

[MaryS57]

P.S If the Defendant has left Box 3.1 of Form N9B empty there is nothing linking the statement of truth at the bottom of Form N9B to this untitled File A doc - making File A non-admissible (?) as there is no verification as to the truthfulness of anything written there. (CPR22-para 2.5)

I'm only worried about this because of the Defendant's propensity to try to hide the truth and conceal what he really knows (which is actually quite a lot) - and I need to do the exact opposite and reveal the full truth (backed up with valuable hard evidence).

[MaryS57]

I've just read your latest post.

Thanks OK I will do as you say.

[MaryS57]

A further quick query please.

The district judge in our SMC case has ordered a preliminary hearing in Aug to consider the "need for expert" and "time needed for the trial itself".

The defendant confirmed he also wants an expert (on their DQ, as did I) but they suggested the manufacturer - but the manufacturer is hardly independent ( a CPR35 requirement).

My query is this:-

At the end of this type of SMC hearing, is it usual for the Judge to make a costs order and if so is it likely I will have to pay?

[Pezza54]

Please read CPR 27.6 and 27.14
You may have to pay the defendant's limited expenses (travel costs) to attend the hearing if you go on to lose the case

[MaryS57]

Thanks I've re-read the CPR sections mentioned, and I understand the costs at the end of the trial.

My question was actually just referring to the cost, (if any) of this preliminary hearing alone i.e. essentially a case management process.

As it has now turned into a preliminary hearing (as opposed to simple orders issued upon the judge's reading of the SoCs), will there be additional costs to pay (at the end of the preliminary hearing) for the judge's extra time on this management? - or is this all included within the fee paid at the start of the claim?

Thanks for all your help so far and info.

.

[Pezza54]

CPR 27.14 (2) (d) and (e) just state "hearing". No differentiation is made between preliminary and final hearings

[MaryS57]

Ok I see thanks.

[MaryS57]

Update:

I now have a full copy of the "defence" (plus 19 attachments -all these are evidence docs) filed at court. It's only come 14 months late!

As I suspected, this so-called "defence doc" (actually entitled "Claim dispute") has no statement of truth at the bottom, and only has an illegible initial(?) scrawled at the end of the text. The whole document is marked "Without Prejudice" at the top.

The preliminary hearing on 19th Aug . I know I have touched on this before, but at this hearing should I still say nothing (i.e.simply concentrate on the need for expert report/time for trial etc) and wait for the judge to notice that the defence is inadequate as a Statement of Case - as well as "waffling on & on" about the warranty which is totally irrelevant?

If this inadequate defence continues unaltered to trial I'm guessing this is the Defendant's problem, not mine?

-----------------------
As a aside, amongst the attachments, the Defendant has also filed the manufacturer's instructions for the re-shaping of the caravan's frame (when replacing the panels on this specific caravan model) to reduce " the risk of the new panel cracking".(copied verbatim).

I am glad the Court already holds a copy as this evidence underscores everything the Caravan Expert has said in his report.

-------------------

[Pezza54]

In my opinion you should go to the preliminary hearing with an open mind. Answer the judges questions as fully as you can If you have a problem with any of your responses you could say that the question is difficult to answer without a full and properly drafted defence

[MaryS57]

Thank you. Will do.

[Pezza54]

Hi
You started your claim mid-June 2023. 15 months later- do you have a final hearing date yet? The judge has recused after attempting mediation (which can't be discussed in court)

[MaryS57]

Hi.

the Preliminary Hearing largely went well - (apart from the impromptu mediation bit - but I declined the terms as they were unfair - and I'm very glad i did)


I am currently waiting for the district Judges orders to be printed/mailed out (it's now approx 4 wks after prelim hearing and counting) .

I took notes in the hearing though:

The district Judge ordered:-

1) our Expert report was admitted to court - it's CPR35 compliant (this Expert is one of only a handful in the UK who specialises in this area regarding caravans and motorhomes)
2) The Defendant was refused permission for an expert report of their own,
3) The defendant was allowed to ask our Expert questions only (the deadline for this is nearly up - they haven't so far- the expert will inform me if they do)
4) The Defendant was ordered to pay the Expert directly if they wanted to ask questions. (the Judge made this very clear to the Defendants)
5) The trial time will be 3hrs. Should the Expert be needed in person, it will be whole day hearing.
6) The trial date is to be set on first available day after 21st Oct 2024.
7) Statements to be filed and served 14 days before trial

The Defendant didn't take any notes at all.

The judge recused herself from the case as she said she knew too much, so we will have a different judge for the trial.