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

[Pezza54]

Thanks for the update. So far it is looking promising.
I'm just not sure now who decides if the expert witness need to attend the hearing
3 hours or all day? That's a lot of extra time for the expert to present his report and answer questions. I assume the defendant could end up paying the expert if you win your claim. Did the judge mention how the expert's fees are paid?

[MaryS57]

The time for the Defendants to ask questions of the Expert has now passed.

The Defendants chose not to ask the Expert any questions -even though the District Judge at the Preliminary Hearing hinted strongly to them that they could. Reading between the lines, if they had any criticisms of the report they needed to address these directly to the Expert himself, so he can explain more fully.

The Defendants did not avail themselves of that opportunity (possibly because they thought that the Expert's answers would be unhelpful in any event ).

This means that the CPR35- compliant Expert Report is now uncontroverted.

If the Defendant wants the Expert present at trial, this would cost £642 in Expert fees & they would need to seek the courts permission first.

I am presuming I would resist this request on the basis that the Defendants haven't even asked written questions & bringing an expert to a small claim hearing is rare and not necess in the present case. .

The district judge assigned my £415 that I had already paid out for the Expert report as "court costs"

[Pezza54]

It is very unlikely the defendant will request the expert witness to attend the hearing. They missed their opportunity to pose set questions. The judge is almost certain to refuse such a request. The cost of an additional £642 is prohibitive too

[MaryS57]

Update:

Despite the DJ giving the Defendant's until 15th Sept to ask the Expert questions - the local court took 1.5 months to send out the printed orders. So the net result was the Defendant was given a further 1.5months to ask the Expert questions until 29th Oct - which they haven't done at all ( I emailed the court to say there were no questions asked by the Defendant.).

So the Expert Report is now well & truly uncontroverted.

The Defendant is now ignoring my emailed offers to settle/and other correspondence - i.e. including my offer return of the whole caravan at significantly less than what it ought to be worth.

Therefore I am now turning to look at preparing the Witness Statement plus exhibits which must be filed and served 14 days prior to trial on 6th Jan 2025. My WS plus Exhibits will the printed out copies and served/filed as hard copies.

My Questions please:-

(1) how is it best to deliver this hard copy to the court (post/in person at the door?)

(2) The Defendant does not seem to do letters!. I do not wish the Defendant to simply email out to me a load of files/docs for the trial as this will simply be irritating and then i have to print them all out. I sent a letter by regular post (in Aug 2024) to the Defendant stating that I "no longer accept service by email." Will this suffice to ensure I get a hard copy of the Defendant's Witness Statement & Exhibits and not a load of annoying electronic files?

JK2054 stated today at #2 "You can serve by email and/or post so long as party hasn't specifically said by post."

https://legalbeagles.info/forums/for...s-and-to-court

But my understanding of reading various caselaw and (CPR Part 6?) is that the default is "by post" and only if the other party agrees in writing can it be by email - but please correct me if I'm wrong.

[MaryS57]

P.S. I also sent hard copies of my offers to the Defendant - so they actually get both post/email for most of the docs I send them.

[Pezza54]

I personally would send the documents by Royal Mail Signed For to the court and first class post with receipt as proof of postage to the defendant. The postman may not be able to deliver Signed For post to the defendant
You were correct to write to the defendant stating you can no longer receive emails and attachments. Allowance must be made for internet connection problems and for the internet service being completely cut off

[MaryS57]

Many Thanks.

Just to confirm the letter I sent to the Defendant saying that I "no longer accept service by email" - was sent by post and email, so that's good.

The Defendant seems to be disregarding anything I say and he gives the air of arrogance/disdain for me.
I don't put it past him to ignore my request for hard copies and simply email out the stuff (assuming he sends anything to me and not just to the court, which he has been doing in the past). But I guess, it's best to deal with this scenario if it comes to pass.

[MaryS57]

IMPORTANT: URGENT- update - Is the Defendant directors' joint witness statement admissible at court? It has been jointly written and jointly signed by the directors and is also 1 day out-of-time.

Ok - facts first

1) The Case is against a caravan dealership Ltd company involving a very faulty caravan with badly cracking panels due to an internal frame fault. Trial date 6th Jan 2025 - small claims court
2)The court order following a preliminary hearing (dated 1st Oct 2024) was for service of witness statements "no less than 14 days before trial date"
3) So if I am not mistaken, deemed service (two days after posting hard copies ) must be by Friday 20th Dec. Therefore, the last posting date must be 18th Dec 2024 (first class).
4) I filed my Witness statement and Exhibits (hard copies) by hand at court midday 16th Dec 2024 - the court informs me it has been filed.
5) I posted my full Witness statement plus exhibits (hard copies) on 18th Dec 2024 (tracked 24 "signed for" - I didn't mean to send "signed for" but the post office did it without asking me or me realising at the time). The Defendants received it and signed for the package (luckily!) on 19th Dec 2024. So deemed service on 20th Dec.
6) On 19th Dec, presumably having read my WS, Defendant's then cobbled together a statement. But their "statement" is more of a criticism of the Expert Report [ The Defendant failed to ask the Expert any questions at all when the judge allowed them time to do so].
7) The Defendant posted this "Statement" out to me on 19th Dec (I made clear twice I would only receive service by post - so at least they honoured this bit!); It was sent tracked 24 (no signature) .
8) It arrived today 21st Dec i.e. 1 day out of time.
9) I'm wondering if the Defendant's hard copy (~50 pages) to the court will also arrive out of time (I live not far from the court - so postage times may well be similar).

And here's the extra BUT

10) BUT the Defendant's " Statement" (it doesn't use the term "witness Statement") is headed jointly from BOTH DIRECTORS and both directors have signed at the bottom after a single statement of truth.

11) So by definition, they are making identical statements word for word.

12) However only one of those directors runs the business on a day to day basis - so the other director does not have first hand knowledge of anything (he runs another business)

So my questions please are :

How will the court view (and thus how best should I deal with):-

a) the tardiness of the Defendants (joint) Statement?
b) the fact that it is a joint Defendant's statement signed by both directors with a single statement of truth- is this permissible?
c) the fact that the Defendant has just used it to run down the Expert and his report and then gone on to express their own opinions (which they have done in abundance). Even though WSs should be about facts and only facts within one's own knowledge.

Any assistance as I approach the trial date itself is most welcome by me.

Thanking you in advance

[Pezza54]

IMO you should leave the timing and quantity of the defendant's witness statement up to the judge to decide whether it is admissible. The case is on the small claims track and the judge has more authority to make decisions about procedure
You should prepare your questions for the cross examination of the witness.
Important that you question why the defendant failed to raise concerns and questions regarding the expert report in their defence

[MaryS57]

Ok thanks - as long as justice prevails in the end, but none of this is easy to stomach.

The Defendant has helpfully quoted from the Expert Report where it says the cracking is a known manufacturing fault. This hopefully will remind the judge of what the Expert Report is actually saying (and not on the defendant's criticisms that follow these quotes - especially as the Defendant did not ask the Expert any questions at all when given the opportunity).

The Defendant has also included at length "without prejudice" correspondence (regarding offers from both sides) in their witness statement/exhibits - par for the course with this Defendant.

[Nellie.123]

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[echat11]

Hi everyone I'm newvon here. I need help with divorce proceedings , can some one point me in the right direction please.

Start a new thread here - https://legalbeagles.info/forums/for...rce-separation

[MaryS57]

Update: The Court has delayed my final hearing from 6th Jan 2025 to 24th Feb 2025 as the Court apparently couldn't find a suitable Judge to hear this (faulty caravan) small claims case on 6th Jan.

In case others are wondering how long a small case can take (?) - here's our timeline (maybe it is exceptionally long - I don't know):-

a) After sending a LPA and getting nowhere with the Defendant, I brought this case to Court on 4th April 2023(on paper)
b) It took 2 months to issue the claim (there was huge backlog at the time); The Court issued the claim on 1st June 2023
c) The Court and Defendant both failed to serve the Defence on me - so I applied for Summary Judgment on 12/07/2023.
d) Summary judgment was refused on basis that a Defence had been filed - but I was not given a copy by the Court or Defendant (despite my chasing both for a copy).
e) I filed and served my Direction Questionnaire on 23rd Aug 2023
f) The Defendant again failed (completely) to serve their DQ.
g) There were no "stays" at all in this case.
h) The Small Claims Court Mediation took place 12th Oct 2023 (this failed to get anywhere as the Defendant wanted me to pay for them to remedy the manufacturing fault costing me £xxxx's);
i) The Court Mediation Dept then forgot to send the papers to the local court for 3 months;
j) I eventually realised this error and raised this as a matter of urgency.
k) The Local Court then took months to type out the Court Orders for Allocation and Preliminary Hearing - Orders were sent out 9th June 2024 .
l) The Preliminary Hearing in front of a District judge was on 19th Aug 2024 . This was to decide about the Expert Report etc and the length of final hearing. My CPR35-compliant Expert Report was admitted and the Defendant was only given permission to ask this Expert questions (in the first instance).
m) The Local Court took 1.5 months to type up the DJ's Court Orders -which were sent out on 1st Oct 2024.
n) Thus the Defendant was given 2.5 months to ask the Expert questions from 19th Aug 2024 - 29th Oct 2024
o) In fact, the Defendant didn't ask any questions at all during this 2.5 month period - so the Expert Report is essentially uncontroverted. And the Defendant does not have an Expert Report of their own to rely on either.
p) The local Court then forgot to Order that the Clamant (i.e. me) pay the Hearing Fee .
q) I reminded the Court about the Hearing fee (as I did not want the case thrown out inadvertently).
r) The Local Court then sent this additional Order on 3rd Dec 2024 and I duly paid the fee promptly.
s) The Local Court emailed on 24th Dec 2024 to say they couldn't find a suitable Judge to hear the case and that the hearing may be vacated.
t) On the day before the hearing (5th Jan 2025); the Local court emailed to say that the Hearing had been vacated.
u) On 9th Jan 2025, I received further Court Orders that the Hearing would now be on 24th Feb 2025.

Regarding attempts to settle out of court: The Defendant caravan dealer is only interested if I pay him for the repairs, or alternatively I return the caravan to him at the same price as a defective caravan - i.e. so I take all the loss.

My caravan is suffering from a well recognised manufacturing fault and hundreds of these caravans were similarly affected - so much so the manufacturer concerned has now changed their protocol within their factory to eliminate the problem for the new ones that roll off their production line.

[Pezza54]

Thanks for updating the forum. Sorry to read about another frustrating and annoying delay

Normally the court direction (letter) that advises the final deadline for parties to exchange witness statements and evidence, includes informing the claimant that the hearing fee must be paid by a stipulated date (usually 4 weeks before the date set for the hearing)

Did the latest letter from the court give the name of the new judge (don't state the name)? If so this will be the third judge

[MaryS57]

Hi Pezza, thanks for your reply. Yes, this will be the third judge in this case.

The DJ who heard the Preliminary Hearing recused herself from the case since she tried to mediate at the end of the Hearing - actually, totally "out-of-the-blue". But I'm glad I didn't cave-in as I didn't have the right figures to hand at the time (as we weren't pre-warned ) and I would have been so annoyed with myself for essentially throwing away all my efforts in this case, not to mention the v good Expert Report that I have.

The latest Court Order doesn't name the new Judge but states "Please note this case may be released to another Judge, possibly at a different Court"

The one advantage of the delay is I now know (in writing) what changes the caravan manufacturer has made to their factory processes - and this accords with what work the Expert said (in writing) is needed on my defective caravan.

So this gives me even more confidence in the fact that the Expert is absolutely right in what he says - and I can (hopefully) present this very clearly on the day.

A few questions please to help me prepare for the 3hr Hearing:-

1) Does the judge usually turn initially to the Claimant and expect them to put their case first (succinctly; pointing to key witness statement evidence/exhibits)? All the pages of my WS + Exhibits are numbered consecutively so reference to them should be easy. The Court (and Defendant) have full hard copies in ring binders.

2) And is the Defendant then usually allowed to ask me questions?

3) Before the rolls are then reversed?

Someone recently suggested to me that the Defendant went first - but I'm not sure this is correct (??).