Small claims dispute help and advice

[Loz1]

Hi
am in the process of taking a company through the small claims track and have sent the POC and have now received the defence in the post from the defendant.
i have noticed that we did not set out our POC in the same manner as the defendant and was more like a letter, is this a problem and do I need to amend the POC to set out in number order like the defence has?
will this be a problem later on down the line when at the hearing?

Also can or should we respond to the defence if we are not happy with some of the responses? If so how do we set about doing that and is there some sort of example we can refer to?
many thanks
look forward to the reply.

[charitynjw]

Re: Small claims dispute help and advice

Hi Loz1 & welcome to LB

Did the court send the Particulars of Defense to you?

If so, did the court give instruction to you? (ie timescales)

[Loz1]

Re: Small claims dispute help and advice

Hi thanks for your quick response
the defendants solicitor sent the defence direct to me and has confirmed that it has filed it with the court.
in the meantime we have now just received the notice of proposed allocation to the small claims track and notice to complete the directions questionnaire form N180 and return within the next 2 weeks. Sorry I have a few questions as this seems to be moving quite fast.

will this letter style POC that I sent be a problem? A lot of the communication between parties and other documents was sent along with the POC but was holding off sending the photos as evidence. Can we submit these anytime along this process as the defence has already commented on the lack of photo evidence has not been supplied, even though we did say that we would rely upon this information in court on the Letter of Intention? Should we reveal all of our evidence early on or is this process a cat and mouse game. What I don't want to do, is hold off on evidence and then not being able to submit it but also allow then to argue the evidence?

also, the directions questionnaire has a mediation free service, do we have to show that we are willing or can we go straight to court as we do not feel that any sensible negotiations would happen with the defence? Mediation was offered in the LOI, but they did not respond to this letter. Don't understand how they feel that they can defend the lack of response, do they know something we don't know, surely this will not look good on their part?

appreciate your help.
L

[R0b]

Re: Small claims dispute help and advice

To answer your question yes you can file a reply to the defence and the purpose of this allows to narrow the issues in dispute. You will normally have to file the reply with the directions questionnaire and forward a coy to the defendant at the same time.

The courts prefer early disclosure of any evidence that you are seeking to rely on so that it helps with the administration and enables the parties not to incur unnecessary costs. As you have not sent it yet you should include the evidence in your Witness Statement and refer to it, but this will also allow the defendant to request disclosure of the photographs you are relying on.

In terms of laying out your reply you should follow the example below (click for enlargement). You will need to change "Particulars of Claim" with "Reply". If the defendant has submitted their defence correctly they should have numbered each point. Your reply must mirror each of their points made so for example if point 1 says the defendant entered into a contract on [DATE] and that is true then in your point 1 you would then say something like "Paragraph 1 of the defence is admitted."

You need to refer each point as to the paragraph you are admitting or denying. You could have your first point as the following which saves you referring to each paragraph: "1. Unless otherwise stated, references to paragraph numbers in this Reply are references to the corresponding paragraphs of the Defence."

[Loz1]

Re: Small claims dispute help and advice

Hi Rob
Thank you for your response, ok just so that I know I am doing this right, I have 3 issues:

1. The claim form we originally sent included a separate sheet with the brief details of claim (which was in paragraph spacing form with no numbering system ie 1,2,3 etc. we also supplied a list of documents with all communication between us and the defendant. So if we want to send the correct format, at this stage not amending any info in it, then how would we send that, as an amended version of the POC along with the DQ? We know now that it should have been set out like the doc example you have provided?

2.With regards to the reply, will set this out in the same manner as your doc provided and whether we Say admit or deny this, they have referred to our poor conduct leading up to this claim which is why they have not resolved the issues for us. They are twisting this to try and show us in poor light when really it has been their code of conduct that has aspired to this. How or should we respond to that? Can we open up the response to this rather than a deny claim. Also they refer to a claim with the NHBC which was settled a few months back for the closure on our snags throughout our home but our claim filed in this instance is for damages relating to contractual items which did not form part of that resolution. Can we reply in saying that this information is irrelevant to this case? The only part where NHBC were involved was to advise to both parties that they do not cover contractual items but they are bringing into the mix that we have already received funds for this which we have already presented the evidence that says otherwise. Also they have not provided any evidence or are saying that they will rely on any in their defence regarding these False and exaggerated claims? Do they have to provide evidence to back up these claims in court otherwise they could say anything detrimental. Can we ask for evidence of this?

3. When do we send the witness statement?

4. With the DQ Is it advisable to try mediation or can we go straight to court? Will this look bad if we do not try this first. We did offer his in our LOI but they did not respond?

[R0b]

Re: Small claims dispute help and advice

1. You've submitted you claim if you were to now change or amend it in any way then you will need to pay for it to be amended. You are litigant in person so there is some leeway on the format side of things as long as you have got everything in the claim.

2. you're not obliged to send a reply but if you do you should address each point, i'm not sure what you mean by open up the response. You can admit or deny or you can say not admitted and supply your reasons for disputing what they say. You would apply that to each paragraph or point they make. Usually if you fail to admit or deny something n the particulars or reply to defence it is usually taken that you have accepted that particular point. Anything referred to in the defence you can request disclosure of, but you would need to send separate correspondence to do this and would not be included in the reply. They should send you the evidence 7 days from the request and you could do this before you submit your DQ and reply if you have time or still send the request but submit the DQ/Reply before you receive the evidence relied on.

If they haven't got any evidence to back up their claims they are making then that will likely go in your favour.

3. The judge will usually give an order for exchange of witness statements before the hearing.

4. You can offer mediation yes, but if you don't want to go mediation you would need a good reason why not to.

[Loz1]

Re: Small claims dispute help and advice

Hi Rob
your advise is invaluable and agree that there is no point I n amending any POC if all the information is there, especially if there is a cost attached.
Point 2. What I mean by "open up a response" is should we expand on some points that we disagree with? What we do t want to do is appear to be playing tit for tat and just present facts but this is difficult when they are discrediting our behaviour to which we completely deny, but his will,always be a matter of opinion and not actual evidence.
if we request evidence, who do we submit this separate correspondence to, the defendant or the courts? Put this is just the defendant how would the courts receive this evidence also?
point 3 we offered mediation in our letter of Intent to which we had no response. We also feel that their negotiations would be quite an insignificant outcome as previously their informal offer was approx 90% less of what it will,actually cost to resolve our issues already agreed by NHBC. So still not sure if mediation will help or be another delay tactic for thendeepe?

Last point, they have not specifically asked for our photographic evidence to which you advise they have to request this, but they have stipulated that they cannot properly defend this case without our photographic evidence not supplied, therefor should we provide this on this basis?
many thanks

[R0b]

Re: Small claims dispute help and advice

You can respond by saying you disagree, hence the deny/not admitted point, you would then explain why you deny or do not admit what they are saying.

When requesting evidence, you request it from the defendant as they are the ones you are taking to court and they are the ones who have the evidence. If they have stated that they cannot properly defend the case without the evidence, it might be best to also send them the evidence so that there is not a waste of time. Although they haven't specifically mentioned it, you should give them all the evidence you are relying on at an early stage to avoid waste of peoples time and costs when the matter could be settled without the need of court.

You can offer mediation and see what they say, they will receive need to agree to it so if they do not agree then you just proceed and carry on. Whether you feel mediation is worth it, is entirely down to you as it is your claim and you know wht has been going on.

[Loz1]

Re: Small claims dispute help and advice

Dear Rob
thanks again for all your help, my brain is absolutely frazzled from all this information and have now read the process in detail regarding the next steps to the claim etc.

i understand how to set out the reply but cannot find any examples on how I can word the reply and how much info I can actually put in, so if you don't mind helping me with a bit more detail I would greatly appreciate it.
would it be easier if I could email you in private, if not don't worry or should I move to a different forum. Sorry but have never used this site before and am so worried about correctly replying to the defence.

a couple of questions briefly:
1. Some of the information they have stipulated is actually incorrect ie snag numbers over 200 when it was actually over 300. Should I refer back to this and say that this is not accurate and if so should I say the correct figure? What is the correct way to word this, would I use deny, disagree and explain why.
2. Throughout they are over exaggerating points for their credit and under-exaggerating others, all to shed them in a better light. Again would I comment against this e.g they keep referring to minor cosmetic issues, in defending this, could I refer them to a document where it states bigger issues than this or actually produce another piece of evidence and attach to the reply or should I just make the statement and rely on that evidence later on? It's so difficult to know when to provide this evidence as they have not attached any evidence to their defence and are playing the waiting game. We have already provided a lot of evidence in the POC under the advice of the courts via telephone but the defence have not supplied any. Have we been too honest and handed over everything too early?
3. They claim that they have not addressed our issues because of our behaviour and conduct, (which is a complete lie) can I respond to that point that this is a subjective view and refer them to a document where our evidence actually points to their bad conduct?
4. Can I add any more info into the reply, an opening statement for example, make a point towards not being in a position to reject the items on account that we was expecting the defendant to attend to the them (it has been over 1 1/2 years now that we have been disputing this with them, from the day we moved in and even pre-completion) I have read somewhere That the judge can take this into consideration but want it written in our claim, should I wait to include this in the written statement?

Am now thinking that we have disclosed too much info already and the defence solicitor has all the cards. Still puzzled why they have not referred to any evidence that they intend to rely on???sorry to bombard you with all this but am so naive about this process.

kindest regards
l