Lay representative.

[Diana M]

Re: Can defendant's wife act instead of him?

the Judge has already
ignored the fact that the Defendant has
not complied with 3 Court Orders and
instead adjourned on day of hearing?!,
to allow him a further 8 weeks to comply
with appointing a single joint expert!
I don't think this is fair as he has already caused
lengthy delays by not complying, .

Consider whether the DJ has done you a favour by ordering an independent witness report. A bit of objectivity can be a good thing

Wait to see what the Order actually says when it arrives in the post. If the Defendant doesn't comply with what the court has ordered him to do within the eight weeks deadline then their Defence may be struck out so you win.

The Order might even say precisely that (Defence struck out if not complied with) if the Claimant has failed to comply with three previous similar Orders.

Think carefully before you file another WS in case it says something which might not help you. You've plenty of time on your side (at least a couple of months) so no need to form your strategy just yet.

Di

[Brainwaves?]

Re: Lay representative.

Her WS has several false statements but of
particular note is she states "we" have complied
with all Orders from the Court but:

The Defendant has not complied with 3 Orders to
date including 1's to suggest and then appoint a
single joint expert, for those I had to request
and obtain further directions from the Court which
it acted upon but this took 2 months!

His Wife consistently refers to "we" as in she is
also party, I know she had a right of audience at
a hearing but my Claim is not with 'them', only
her Husband.

She also contacted the single joint expert, claiming
to be acting on her husbands behalf to verbally
agree to an inspection and pay half of the fee but
when the expert asked for this in writing from
the actual defendant, it was not done, she then
wrote to the Court claiming hardship!
long story short, the expert withdrew his services
(immediately) after the adjournment, I'm certain
this was done purposely by his wife to avoid
the inspection, I am now left in the lurch and
dont know what to do next, that expert inspection
was ordered by the Judge on 6/6/16 and was key
to my case to prove unreasonable standard of
work.
The issues include:
removed an electric shower & did not isolate at fusebox
(I subsequently found our he has no electrical qualifications!).
The toilet and cistern have not been fitted using the
correct screw fixings, he has glued both.
The bath is fitted too high, panels won't fit & he attached these using thick unsightly sealant which
came off straight away.
He left no manufacturers instructions so no guarantees
on products I purchased (& he fitted) to the value
of £800.
The tiling is awful, he has left porcelain tiles
smeared in a cement based adhesive/grout which
will not come off.
etc etc etc.
I am seeking a refund under Cra 2015? and was
relying on that expert to assist in proving the poor
standard of work.
I have also discovered (sadly too late) that the defendant and his wife are 'seasoned court players)
having several CCJ's and charges against their
property.
I feel sick not to have done these checks beforehand
but I agreed to him doing the job after his Mother(a
former colleague) recommended him and a I trusted
her, she stopped all contact with me as soon as I
praised doubts with her last October.

I though a small claims action would help me but it
seems to be stacked in favour of an unscrupulous
Defendant, I really appreciate the advice I have had from others on here and really need to know what,
if anything I can do!

- - - Updated - - -

As soon as I RAISED doubts it should say!

[Brainwaves?]

Re: Lay representative.

The DJ originally told us to appoint a
single joint expert witness at a preliminary
hearing on 4/5/16, but the other side would not
answer my letters to him re this and as I said,
I then had to apply to the Court for directions
and the Order to appoint my choice of expert
(as the def had not complied with an order to
submit his suggestions!) went out on 6/6/16 but
again no compliance from the def, it was not
until the 5/8/16 (4weeks before hearing date) and
following a letter from the expert that the def's wife
called them, but she had no authority to
appoint and instruct (she didn't anyway) and
the def didn't either.
I firmly believe this was done deliberately because
my point is, if the Defendant was confident in
his work, he would have complied with the Orders
and ensured he appointed the expert and got the
inspection done ASAP, the order does state that the
losing party would also have to pay the winning parties
half of the experts fee (a total of £760), why did
he not jump at this chance to prove (as he claims)
that I have no case and am completely wrong?

[Brainwaves?]

Re: Lay representative.

Thanks, after that opening line do I then start my response below that and as a letter or formal witness statement?

You would need to send a copy to the other side as well, so that could cause a kick back off them - however up to 7 days before the hearing you should be able to get away with it ( being a LIP ) Response to the Witness Statement of Mrs xxxxxxxxxxxxxxxx

Don't have a go or poke holes for the sake of it, just be factual and refer to specific paragraphs of her witness statement. Don't say she's lying or anything. Just quote her statement parts and put your side, and evidence what you can as exhibits.

[Brainwaves?]

Re: Lay representative.

Just to add that my claim is for breach of contract citing unreasonable standards of service (cra2015 s 49), I did give him the opportunity to repeat but he asked me to pay to remedy and claimed I was being picky, I ended all contact following receipt of an abusive text message he sent which included his insults and confirmed he would not do any remedy unless I paid. I have provided a copy of this text to the Court to be included in my evidence.
His actions in not appointing that expert and then subsequently bringing his Wife in, pleading ignorance, poverty etc is just detracting from the key points I brought my Claim on & need advice on delivering those at the hearing instead of engaging in arguments.


a copy of this text

What are the issues in her WS that are questionable in your eyes?

The next hearing has been listed for 8 weeks time (first available date after that?) and the DJ has ordered a report from an independent expert to be provided before then. Maybe he did that because he couldn't make any sense of what really went on due to the apparent squabbling in front of him.

Why not wait until you've seen that report in case it does the job for you (challenges the contents of her WS). If the evidence comes from an expert then the DJ is unlikely to reject it.

How much is your claim and what went wrong with the bathroom installation? It's helpful to know what you're both arguing over because that could shape the way you proceed.

Is it shoddy workmanship (which the expert will comment on) or is it a breach of contract (job not completed on the agreed timescale/price etc)?

The object of the exercise is to win your claim as painlessly as possible. A court is a theatre in some ways and the drama (caused by her) is upsetting you, but try to stay focussed on what evidence you need to win rather than any potential slanging match in front of the DJ. You're performing for his benefit not hers.

Di

[Diana M]

Re: Lay representative.

Her WS has several false statements but of
particular note is she states "we" have complied
with all Orders from the Court but:

. . . . His Wife consistently refers to "we" as in she is
also party, I know she had a right of audience at
a hearing but my Claim is not with 'them', only
her Husband.

Can you just clarify is the Defendant a sole trader or a limited company where Mrs Defendant may be a Director or Company Secretary?

Di

[Brainwaves?]

Re: Lay representative.

He's definitely a sole trader, self employed, Mrs D has no named role in his business.

[Diana M]

Re: Lay representative.

He left no manufacturers instructions so no guarantees
on products I purchased (& he fitted) to the value
of £800.

How did your pay for these items? If it was on a credit card then you may be protected by s.75 CCA if they turn out to be faulty goods (as opposed to the wrong installation problems which has yet to be established by the independent expert as ordered by the court).

If you bought them yourself why not contact the sales outlet you dealt with or the manufacturer to get your warranty and instructions. Most suppliers will send these to you direct in PDF format. Sometimes you can even download them from the internet.

Di

[Diana M]

Re: Lay representative.

He's definitely a sole trader.

In which case how do you know he (as an individual) has loads of CCJs as previously stated?

I have also discovered (sadly too late) that the defendant and his wife are 'seasoned court players)
having several CCJ's

Di

[Diana M]

Re: Lay representative.

Mrs D has no named role in his business.

Did you have any dealings with her during the job even if she is not named on any paperwork in a business capacity?

Di

[Brainwaves?]

Re: Lay representative.

I did a check via trust online, which showed that info, found it whilst searching for advice, it is legal and charges a small fee.
I only found this out afterwards and after starting the claim, it essentially means I won't get any money from him even if I win the case!
The builder insisted on cash payment of £1,350 and I paid for the goods by debit card.
I did get the bath & panel instructions from manufacturer which proves his fitting method is wrong.

- - - Updated - - -

Did you have any dealings with her during the job even if she is not named on any paperwork in a business capacity?

Di

No dealings at all, she only 'surfaced' 4 weeks ago! It will be difficult if she presents his case at the hearing because I won't get any answers about the standard of work, she has not seen it or been involved in any way.

[Brainwaves?]

Re: Lay representative.

Also of note is that after the single joint expert
witness (whom only I had appointed) contacted
Mr D by letter, she telephoned him and agreed
they would be happy to attend a scheduled
inspection at my home on 15/8/16.
The expert said the Def could attend on receipt
of his written instructions but she could not
attend as she was not party to my claim (I had
told the expert this).
It never was put in writing and because of that
the inspection was cancelled on the evening before
(14/8/16).
Then the Def wrote to the Court saying he couldnt
afford it, was told to comply or else his defence
would be struck out, this was only 7 days prior
to hearing (which was adjourned to give him more time),
then the expert suddenly withdrew, I believe because
he knew he wouldn't get his fee?!.

[Diana M]

Re: Lay representative.

No dealings at all, she only 'surfaced' 4 weeks ago! It will be difficult if she presents his case at the hearing because I won't get any answers about the standard of work, she has not seen it or been involved in any way.

In that case anything she says in a Witness Statement or in court about the bathroom installation (workmanship) should be viewed as 'hearsay' since she wasn't there to witness the events.

There are rules about what can and can't be admitted to the court as evidence (WS or oral) and whether she can speak and/or be cross examined in court as a result. As I understand it the Defendant (husband) would have to give Notice to court first but don't tell him that. Tell it to the DJ if she starts to open her mouth at the next hearing

Read this CPR 33 https://www.justice.gov.uk/courts/pr...es/part33#33.1

Having not seen the WS it's hard to comment on the contents. But if it also contains evidence about the Defendant's failure to comply with the court Order to appoint an independent expert, then either she was officially acting for him as 'admin' in some way, or he's a henpecked husband who daren't speak for himself

Di

[Brainwaves?]

Re: Lay representative.

Thanks Di, that hearsay link is interesting!
Can I ask what you mean by her acting officially, do you mean he may have already notified the Court of this?

[Brainwaves?]

Re: Lay representative.

P.S, he's definitely not henpecked, I think it's an avoidance tactic so he doesn't have to answer my questions, he's as rude and abusive as her, even hurling verbal abuse at me outside the Courtroom (but still in the building) after the adjournment meeting, I felt unsettled and waited inside for 15 minutes in case they were waiting outside, very intimidating.
On receiving my LBA (Dec 2015) he did respond by letter (late) threatening me with legal action if I started a Court claim or involved any other parties (I had invited him to mediation) but that threat never materialised and was just an attempt to stop my claim.