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Ash
Ash, Solicitor
Category: Law
Satisfied Customers: 10916
Experience:  Solicitor with 5+ years experience
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I am a defendant and counterclaimant in a building dispute

Resolved Question:

I am a defendant and counterclaimant in a building dispute with a jct contract .
Builder terminated contract as I would not pay him for the last month as many thing were wrong and he had 6 to 8 weeks of work left when the contract only gave him three . In others words I paid him 95 % while he did only 75% of build . That is what the QS expert is to establish . It should never of gone to court . But the builder liagagted . Now the stupid situation is for a £11 k claim , he has court costs of £30k and counter claim of £ 80 k against him . What I need to know is as soon as possible is the following .
The judge has directed us to get a single joint expert . With one set of instructions . We cannot agree. I am ligant in person , the opposition lawyer is a bully and insisting that some real evidence and pertinent questions to the expert are left out. Her questions are bias and some irrelevant . What is open to me under the CPR . Rules . I would eraly want my own expert but this leads us into huge money. But can I insist under law even though judge says no. The other side have to inform judge that we cannot agree by the 6th dec . What happens . Wil the judge set the questions . This is the best option for me as I think it's the fairest and we pay equally . The oppo lawyer have basilly put a defence case to the expert but that should be in the trail. I have not made an application for a separate expert. But I can't carry on being bullied like this by opposition lawyer and be forced in a situation that is unfair . What can I do what should I do . What will the judge do when he sees that we can't agree on a single set of questions . I am really tight for cash so a joint expert is better finically but I have to win case and I don't want an unfair report to be presented to the judge . Thank
Geraldine
Submitted: 2 years ago.
Category: Law
Expert:  Ash replied 2 years ago.
Alex Watts :

Hello my name is ***** ***** I will help you with this.

Alex Watts :

You can make an application for your own expert and simple say you can't agree between you on a single joint expert or the questions

Alex Watts :

There is nothing stopping you getting your own expert, however in order to rely on their report you need the courts permission for that

Alex Watts :

You can apply to the Judge for your own expert, that option is available or just get your own report, see what it says and then apply for permission

Alex Watts :

The Judge wont set the questions but give an idea of what they ned to address

Alex Watts :

The expert will generally need to see what both sides are saying, then he/she will come to a view. So there is nothing wrong in the defence wanting to show the expert what they say

Alex Watts :

If the Judge sees you cant agreeing then the options are:

Alex Watts :

1) Guide D Solicitor and say what he thinks is appropriate

Alex Watts :

2) Give directions as to what the Court will want to know from the expert

Alex Watts :

3) Give you permission for your own expert

Alex Watts :

Can I clarify anything for you about this today please?

Customer: Thank you . I don't know what you mean guide d .
Customer: Thanks .
Customer: Thanks I do not know what you mean by guide d solicitor also I really have money to get a solicitor
Customer:

thanks .

Customer:

Thanks

Customer:

thank you I dont know what you mean by guide D solictor

Customer:

thanks i do not know what you mean by guide d solictor . What do you mean by no 2 . If i get my own expert ,will have to stay with the joint one as well as judge ordered that. This is a bad senario costs wise. whay cant judge set .

Customer:

why cant judge set the questions. the expert said he just needs wants the pleadings of the case. the jct contract . corresspondance on variations as its a case of qauntifying time and money . exactly how the build was left on a certain date .everything else is a case of law to prove in trail. the instrustions needs to be percise and follow this .if we enter all the arguements the expert fee will raise condiserably .that i thought is where mediation comes in.when we get to medaition stage or trail as it seems we cant agree on anything should i bring a solicrtor or barrister with me , as ligant in person can i appoint my own barrister with out a solictor representation. can you help me with these questions please.

Alex Watts :

The Judge say can to D Sols this is the area or areas the Court will need help with

Alex Watts :

You can order your own report, there is nothing stopping you

Alex Watts :

But to rely on it then you need to get permission

Alex Watts :

Yes you can appoint your own Barrister without a Solicitor - its called Public Access

Alex Watts :

Does that help?

Customer:

under what cpr can i apply for my expert .. exact ref please . i still do not understand what you are re the judge say can to D sols -- what does that mean in english ...

Alex Watts :

Its not CPR.

Alex Watts :

There is no Court rule that says you need permission for your expert

Alex Watts :

The court simply can't stop you

Alex Watts :

Its only where you want to rely on it in Court proceedings you need Courts permission under Pt35

Customer:

well what words should i use in the application .the otherside have to inform judge that we cant agree .then there will a case mnagement hearing should i wait for that before i apply on own .It is better that the judge sets the directions . he is already cross that a simple case is in front of him

Alex Watts :

No, well you have 2 choices

Alex Watts :

1) Get your own report and apply for permission later

Alex Watts :

2) Apply for permission now

Alex Watts :

If you want to do 1) you dont need to make an application

Alex Watts :

If you want to do 2) you can either wait until the next CMC or apply now for permission

Alex Watts :

Can I clarify anything else for you?

Customer:

which is the better option . i would rather not have to pay for another application. Sorry also still dont know what you mean by D sols ??

Alex Watts :

Wait for the CMC then

Alex Watts :

D Sols, mean the counterclaim Sols, they are Part 20 Defendant

Alex Watts :

So habit to refer as D Sols

Alex Watts :

The other side Sols - perhaps I should word it like that

Customer:

I am the the defendant and counterclaim. the opposition is the claiment and part 20 defendant. so i am unsure of what you are advising . the builder brought claim against me .

Alex Watts :

Yes I understand.

Alex Watts :

The builder is the Claimant

Alex Watts :

You are Defendant

Customer:

Give directions as to what the Court will want to know from the expert - sorry still dont know what you mean by this . i have done this but opposition disputes it.

Alex Watts :

You are the part 20 counter claim claimant

Alex Watts :

The builder is the part 20 counterclaim Defendant

Alex Watts :

Give directions as to what will happen next

Alex Watts :

If you dont want to make an application for permission to rely on an expert wait for the next CMC

Alex Watts :

If permission is not dealt with here make an application

Alex Watts :

The Court wont give directions as to what the expert should answer, but may give an indication to both parties as to what matters need to be addressed

Alex Watts :

Does that clarify for you?

Customer:

sorry to be slow on this .so i am clear

Alex Watts :

Just and I am more than willing to make sure it is clear

Customer:

best to wait for cmc.judge will say what he wants from the expert... he may say that but it does not help us in agreeing a single instrustion and content of disclosure to expert.i am in my right to say i disagree with their instristion and look to the court for futher directions ,be that getting my own or accepting the judges direction.the basis i would object to their instrusctions , irrevelant to pleadings, but extra cost in reports and contain untruths . can i say all that at the cmc and to the oppo sol. thank you

Alex Watts :

Correct

Alex Watts :

Does that help?

Customer:

are you sure i am not in breach of court directions by taking that action and informing the oppo lawyer of the the above.

Customer:

i will be wording it similar to that above.

Alex Watts :

Yes, because you cant agree on a single expert

Alex Watts :

You can't agree between you on an expert or a single set of instructions

Customer:

thank you i think that is all for now -- maybe if i think of more we continue this trad .i am very nervous about the whole thing as has thried an application to have my case struck off because i was late i hour in an disclosure document.

Alex Watts :

Indeed. Please remember even if you rate the format only changes, you can come back to this at any time.

Alex Watts :

However if this does answer the question might I ask you to rate my answer so the site credits me for my time, the button should be at the bottom of the screen

Customer:

thank you for the moment so

Alex Watts :

If you need more help please click reply

Alex Watts :

Sure

Customer:

hello again. i understand what you siad above but i have come across disturbing correspondence between the opp sols and her client, the builder who messed up my new build . it seems like they contrived to have me try and breach the JCT building contrcat ( i can prove that i didnt as i good reason to with hold pay.

Customer:

what i am unsure of is that this course of action shows they never intented to mediate after ligation and the mal intent was that the builder would get off the hook of finishing the build by thinking he could legally terminate premeaturally. I am shocked by this . my question to you is should i inform her that i have this proof pret rail - AS WE ARE ABOUT TO EMBARK on experts instruction which i have decided i am going to say that we cant agree and await court directions as you suggestion . I am afraid- would it prevent me showing it at trail, somethinh to do with contempt of court by publishing before trail-- or something like that wd that apply to me.

Customer:

what should i do with this infromation . i have proff of their emails which they emclosed as part of thier disclosure. i want to cite this as one of the reasons that i dont trust her instructions and i want to tell judge as its clear my builder orchestrated the situation so that he could flee site ..

Customer:

expert for correspondance found ..... " ... it would still achieve your intended outcome that the contract is terminated due to her breach , therefore to warn her would be counterproductive. "

Customer:

his brither is lawyer and i have their correspondance ... tie down a deadline ( although we discussed on phone - maybe it best not to draw not to draw your clients attention to the actual deadline , in the hope she wont meet it ............ pin dow dates that will tigger termination. have a clear roadmap of when the deadline are and if/when you can legitimately walk off site and call all your sub-contractors off thier revelvant jobs ....

Customer:

what should i do with this information -- should i write to her , or judge or say it at the CMC meeting .. I understand the judge at CMC .. oe keep it for trail ...

Customer:

i understand the judge at CMC will be different from trail Judge.

Customer:

i think the above reason is enough reason to seek an independance expert ...

Alex Watts :

Yes I would agree with you.

Alex Watts :

Can I clarify anything else for you?

Customer:

sorry you have not answered the question re this behaviour -- should i tell judge -- what should i do.

Customer:

it is improper surely . can i make a meal of this . can i apply to thier claim struck off

Alex Watts :

Yes you can tell the Judge, or complain to the SRA but their claim wont be struck out because of it, only where there is no claim

Alex Watts :

Does that clarify?

Customer:

how do mean ..... only where there is a no claim. they have a claim and i have a countercalim . is what they did wrong and why, what law does it break.

Alex Watts : Yes. No it's a regulatory matter nothing to do with the claim.
Alex Watts : the SRA can investigate but that's it. The judge can't punish the solicitors as it's not the clients fault.
Alex Watts : Does that clairfy?
Customer:

surely i can do better with this -- both she and the builder set this up.... there has to be some gain i can get from that knowledge.

Customer:

also should let them know it or keep it for trail . what is there to be gained by that

Customer:

he shows as intent to run away from his responsibilities -- that must make my case all the more stronger

Alex Watts : Yes but this is an argument on costs, ie conduct of them when you win,
Alex Watts : i agree it's unfair but you can only get the claim struck out if it has no merit whatsoever
Alex Watts : Does that helps.
Customer:

i am sorry again i dont understand.this line can you clarify Yes but this is an argument on costs, ie conduct of them when you win,

Customer:

so you are saying the fact that they deliberatlely tried to set up abreach has no bearing on the case.

Customer:

will the judge take a view point on it.

Alex Watts : Correct.
Alex Watts : it is conduct that forms a costs argument
Alex Watts : But you can't get it struck out on that basis.
Alex Watts : The judge may penalise in costs but won't throw out on their conduct
Customer:

right if i understand so could or will penalise them finacailly for that behaviour if i win .

Customer:

but its very useful as character witness and an example that he was trying to flee the site because he had no hope of completing job under contract time

Alex Watts : Correct.
Alex Watts : Does that help?
Customer:

finally should i let them know i know this information .... what are advantages and gains of waiting till trail.

Alex Watts : No, you don't need to let them you know you. You can simply raise this with the judge when the issue of costs and conduct arises.
Customer:

does that happena the trail. why should i not raise it at case managemnet

Alex Watts : because costs are dealt with at the end of trial. Don't show your cards yet.
Customer:

but you have to put costs in pretrail

Customer:

i dont understand why i should keep cards tight-- if i win -- it will mean i get costs anyway not extra ones beacuse of this behaviour .

Alex Watts : Yes, but the issue of what costs they are entitled to comes at the END of the trial.
Alex Watts : ok, then disclose it.
Alex Watts : I am advising not to.
Customer:

is it not better to let judge know at trail in cross examination.

Alex Watts : You will have a costs management hearing which decides budgets.
Alex Watts : Costs are decided after liability not before
Alex Watts : I am advising you not to, but it is a matter for you. You can if you wish
Customer:

i understand because they have time to prepre an arguement against it --is that it

Customer:

will i be awarded more

Alex Watts : You can ask for more costs yes. If you lose you can use it and argue they get less costs
Customer:

ok thank you . if we go tp mediation -- to can i use it to the same effcet.

Customer:

what damage will ido if i let them know now. that is my last question thank you .

Alex Watts : Yes you can use it in mediation.
Alex Watts : You let them know you know. I would not do that at this stage, use it in mediation or any costs argument
Customer:

because -- what damage would it do ...who wd it jeporadise my case

Alex Watts : It has no effect on the case, just costs argument when it comes to conduct etc. just because they have behaved liked this does not make the case any stronger or weaker.
Customer:

confused -- you agreed it showed builder in bad light... that weakens thier case.

Alex Watts : Yes that is correct, but does not mean their case won't proceed, is that clearer?
Alex Watts : you can use it from a tactic point of view in mediation etc
Customer:

thank you for your help Good night .

Alex Watts : great. If I could ask you to rate my answer before you go today - the button should be at the bottom of the screen.
Alex Watts : If you need more help, please click reply.
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