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

[Pezza54]

The dealer sounds untrustworthy to say the least.
Try googling his name and click on the Companies House website that should pop up
You may find the person is a director in more than one company. Unscrupulous directors open more than one company which are displayed as "Active" when in fact they have been inactive for years
All the director has to do is liquidate the company in trouble and continue in one of the other companies

[echat11]

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

Agree on this, you really have to forget 'mediation' happened. It was an opportunity to resolve the matter, it didn't happen.
As such it has nothing to do with your Court case. The Judge / Court will ignore it.

[MaryS57]

Thank you ECHAT! and PEZZA54. Most helpful.

I'll forget about the mediation as you say - but at least I've had my eyes opened as to what the dealer is capable of.

I will certainly gather as much extra evidence as I can as you suggest and report the dealer to Trading Standards.

1) A few days ago, I wrote to the National Caravan Council (NCC) and asked them to investigate. The dealer's webpages also read as if the dealership is affiliated to the NCC - which obviously it isn't . I attached screen shots of the webpage and a full scan of the business card that I have - the card has prices for extras that I had written on it, so it is easy for the NCC to see it was used during the negotiations to buy the new caravan . I've asked the NCC to write back to me with their findings - so hopefully this should add to my evidence pile.

2) The customer in my paragraph (3 above - call him James) who was nearly swindled out of £1000's has also put a complaint into NCC about the dealer's misleading webpage. He lives nearby & we are in contact on FB. It was he who informed me about the fact that dealer is now banned from selling new caravans.

3) I'll write to the two caravan manufacturers to enquire if they sell to the dealership - but judging from the dealer's website this info appears correct.

4) Regarding Companies House, the dealer does not quite fit the usual "multiple companies" mold. He was director of only one other company (on the same site as the current one) and that this has been dissolved. He along, with 2 other directors, is now a director of this caravan company, The dealer recently (23 rd April 2024) took significant control of this limited company which, according to the last accounts, has net capital reserves of around £24K (plus second-hand caravans parked on the forecourt). At least one of the other directors is also director of the campsite that neighbours onto the dealer's workshop premises.

5) James may be prepared to confirm his experience in writing , he is exceedingly nice and helpful as we have both suffered - but maybe you can guide me as I would be nervous involving someone else in our case especially if it wasn't needed..

6) I'll investigate best way to write the witness statement using the helpful link you have provided.

Thanks again for all your very helpful suggestions,

[Pezza54]

I wouldn't worry James. He doesn't have anything to do with your claim.
If he did, he would have to be a witness and be prepared to be cross-examined by the defendant.
You would have had to include him as an additional witness in your DQ

[MaryS57]

Thanks very much for all your help. I've had a good look at the Hall Ellis link you kindly posted regarding preparation of Witness statements.

https://hallellis.co.uk/preparing-witness-statements/

It seems excellent and very helpful. I will follow it.

There is just one preliminary query that has sprung to mind, and it would be great if you could clarify please.

Say, for example, there are 5 documents in each Exhibit MS1 to Exhibit MS3 (plus 3 pages for the witness statement itself).

Option 1:
- I number the docs in Exhibit MS1 - pages 1-5
- Then for Exhibit MS2 - pages 6-10
- Then for Exhibit MS3 - pages 11-15

Option 2
- I number the docs in Exhibit MS1 - pages 1-5
- Then for Exhibit MS2 - pages 1-5
- Then for Exhibit MS3 - pages 1-5

Option 3 (this takes into account the 3 pages in the witness statement also)
I number the docs in Exhibit MS1 - pages 4-8
- Then for Exhibit MS2 - pages 9-13
- Then for Exhibit MS3 - pages 14-18

Option 4 - How does this fit in with the numbering system for the whole bundle with the statements of case presumably in front, Or is there a re-numbering process at this stage?.
.
Thanks in advance.

[Pezza54]

Court bundles are omitted on the small claims track. The court should already have N1, N9, PoC, Defence, Reply to Defence, DQs and doesn't want to be swamped with paper
The witness statement should be in chronological order and if for example your received a letter on such a date, refer to Exhibit L1 or email Exhibit EM1
So the judge can find and read the relevant exhibit quickly you could in large bold print or coloured pen write L1 in the top right corner of the exhibit.
It is up to you how you present the evidence (exhibits) You need a system when presenting your witness statement in court, parties and the judge can find the relevant exhibit without having to fumble through papers

[MaryS57]

Thanks. I will make the Exhibits very easy and clear - so the judge can quickly find what they want to see.

[MaryS57]

An update:

Finally, I have received the Notice of Allocation of our case to the small claims track (preliminary Hearing).

The local court's district judge has ordered a Preliminary hearing to consider:

1) Need for car expert (I presume this means caravan expert)

2) The time estimate for trial.

Preliminary hearing date: 19th aug 2024.


So my queries are:-

A) Do I file/serve a witness (?) statement giving the reasons why the CPR35-compliant Independent report that we had done earlier (cost £415) should be admitted as the Expert Report?

The Points I could raise are:-
i) This Expert is entirely independent, has extensive past experience of these very same caravan faults (as mine) & has no conflicting business interests.
ii) He writes CPR-compliant reports for customers/finance /insurance companies alike.
iii) The report we have is clear, full of photos of the damage and highlights that the panel cracks are due to Caravan's poorly constructed frame placing stress on the outer plastic panels. The report also highlights that this was a well known inherent fault in this large batch of faulty caravans made by this particular manufacturer.
iv) the Expert is available to answer any queries from the Defendant in accordance with CPR35.
iv) Finding an alternative similarly qualified independent CPR-compliant expert is difficult, likely to cost over £750 and likely to come to the same conclusions as in our Expert report.(see also (B) below.).
v)I know the Defendant wants the manufacturer to provide an expert report - but this seems inappropriate as the manufacturer is NOT independent and has a vested interest in this case's outcome (in case the Defendant tries to sue them later).


B) Using SAR, I have now obtained from the Defendant a key piece of evidence - I would like the judge to see it asap .

I now hold the very INSTRUCTIONS (with diagrams) that the manufacturer sends out to caravan dealers (in general) detailing how the defectively-made frame on this faulty batch of caravans needs to be modified in order to correct the panel cracking problem. The modifications required are surprisingly large.

These instructions seem to me to be tantamount to an admission by the manufacturer of this particular major manufacturing fault.I need the court to see this. Can i attach this to a witness statement (if needed) for the preliminary hearing?


c) Do I bring the to the judge's attention at the preliminary hearing all the Defendant's breaches of CPR.

The Defendant STILL has not served their defence correctly (I only have "draft word" doc with no heading, no statement of truth at the bottom and written "without prejudice" at top). Likewise the defendant has not served the DQ (although I was sent a copy from the manufacturer in response to another SAR I made to them - this is how I know they are asking for the manufacturer to be the expert.).


I just get the feeling that the Defendant is making ZERO effort and still has his head in the sand on this one.............


All advice and suggestions welcome and thank you in advance.

[Pezza54]

No need to prepare a witness statement for a preliminary hearing. Take a few copies of your notes stating why you consider the expert report you obtained suitable for the final hearing. Offer a copy of the notes to the judge

You can mention the manufacturer's instructions about modifications to defective frames (again have a spare copy available in case the judge requests one). You could ask the judge when and how this piece of evidence should be presented

Save the defendant's non compliance with cpr for the final hearing. The judge will want to keep the preliminary hearing short

When you filed your completed DQ, did you state your estimate for the time for the final hearing? You may want to increase this time by say 30 minutes to allow for the new evidence that you have obtained (the manufacturer's instructions)

[MaryS57]

Many thanks for this info - it's very helpful and I'll make some brief, clear notes for the Preliminary Hearing.

The DQ that I was sent (for the proposed small claims track) didn't ask for a time estimate, and so I made no comment in that regard.

So should I have a reasonable estimate in my head to discuss with the District Judge (or perhaps outlined in note form)?

If so how do I work this out please?.

Do I have to guestimate the Defendant's time too?. His so called "defence" doc is mainly irrelevant waffle about the warranty so I have no clear idea what he is going to say ( unless he is going to waffle on about the warranty at the trial too..).

Regarding my side:-
Conceptually the issue (i.e. faulty frame causing panel cracking) is fairly simple to understand

but I will also have to go through:-
(a) the photos of the cracks (these cracks are actually at the site where the frame needs modifying underneath- see c below)
(b) the independent report (if admitted) discussing that the frame is the cause, and is a well-known fault in this batch of caravans.
(c) the manufacturer's instructions to caravan dealers to modify this faulty frame (this supports b)
(d) the defendant's correspondence where he repeatedly (x4) flatly refuses any remedy at all - despite their legal obligations to do so.
and finally (e) The costs to remedy these manufacturing faults using a different caravan repairer.

Thanks again for all your help.

[Pezza54]

I believe court times are 10 am to 1 pm and 2pm to 5 pm but I may be wrong
You do not want to under estimate the time you need to present your case, answer questions and the same for the defendant
It sounds as if you might need about 2 hours and the defendant 1 hour. This time means a full morning or afternoon. The judge will keep an eye on the time and push proceedings along by cutting time for cross examination if necessary

[MaryS57]

Thank you. Your time estimates seem good to me.

[Pezza54]

The times were just estimates. Ultimately the judge will decide on the total court time to allocate. You should let the defendant tell the judge how much time they think they need

[MaryS57]

Thanks. I understand.

[MaryS57]

Thanks again for all the help

I have a small further query, please.

Since the Defendant is completely ignoring their obligations to serve the Defence properly (i've asked several times), and given the fact that the Business Centre completely omitted to send a copy of it also (despite the covering DQ letter saying the Defence was enclosed when it wasn't) am I entitled to ask the local court to provide me with a fully copy?

The local court is helpful and responds to emails reasonably quickly.

I have been reading CPR Practice Direction part 5A; paragraph 4.2 A (c) but it is not clear to me whether this applies to all Statements of Case incl Defence, or just those provided by the Claimant, (which would seem a little odd to say the least) (?)

If I am allowed to ask the local court for a full copy of the Defence, can this be done by a simple email request or is there a more defined procedure to follow ?

Thanks.