Problem with new conservatory

[gyzmo]

and I am willing to assist in the tailoring and consumer law bit

[poppynurse]

Thats brill thank you!

The only potential loss is that I now have to build steps to get out of the conservatory due to the height of it...

Should my OH return the acknowledgement? He was not party to the contract - he was around for some of the time when the surveyor was here but didn't sign anything and I have dealt with alll correspondance/.

[GuidoT]

If they have issued two separate claim forms then yes he should return it.

We will use the same defence for both of you, but at the opening part of his we will say that no action can be bought against him as the contract is with you.

They should really have issued one claim form with your husband as second defendant, but you cannot do this with MCOL, this is why I suspect you have received two claim forms.

[Bookworm]

And since you have Guido for the claims and Gyzmo for the consumer law, I am quite happy giving the moral support, cyber-cuppas and general flag-waving and cheerleading.

[Nearly Here]

Had a problem 5 years ago with the mob from Norwich and the sign of a horse, rather apy for the cowboys. Long story short, due to problems with the build, with held 20% (£4000 aprox) due to work required, which included steps BTW. This 20% with held sum was based on a surveyors report, which went through all the plans, listed the faults. Surveyor charged about £200 for the mornings work.
Went to court on day 1, adjoured for meeting number 2 at the house with the Judge, assistant, manager and director from Cowboys R Us,. Week or so later court meeting 3 was set, for which Cowboys R us admitted liability and failed to turn up.
Hollow victory as the bulk of the 4K went on the repair work but found the court to be very much on my side due to the faults. Turns out that at the time they were defending at least 10 other claims in the area!
Good luck

[The GodMother]

care to mention who this norwich firm are as some of hem are looking for business around here atm and my family lives in Norwich. Pm me the name if u dont want to disclose it in open forums.

[poppynurse]

Right folks need some help with the defence......

The POC state:
Mrs XXX refuses to pay balance of £2.5k for installation of conservatory. Claimant claims interest under section 69 of the County Courts Act 1984 at the rate of 8% a year from 23rd Feb 08 to 23rd April 08 of £33.67 and also interest at the same rate up to the date of judgement or earlier payment at a daily rate of 8% per annum.

This is not strictly true as they have my cheque for 800 odd (since feb)which they have chosen not to cash????

And can they charge interest from the invoice date? I thought it was only from the claim issue date?

[GuidoT]

I have just emailed you an example defence and counterclaim, unfortunately it does not relate to a construction claim.

I have many defences relating to construction claims, but I do not want to send them to you as they are long and complicated.

I have had a word with some who deals with more residential type claims similar to yours and he will send me something that I will forward to you shortly.

They can claim interest from the date of invoice, plus the number of days allowed for payment as appropriate. Just like we claim our bank charge interest from the date the banks deducted the requisite sum from our statements to the date of the claim form and a daily sum thereafter.

In the defence you can explain the part about the £800.00 cheque that has not been cashed.

Did you enter into any form of written contract that details terms with them, if yes can you post these up.

[poppynurse]

I do have a written contract with loads of terms on the back but unfortunately I don't have a scanner and it would take forever to type them up. The only term that is patently unfair relates to the Late Payment of debts commercial interest that they state applies (but this related to business debts not consumer - not sure if this invalidates the whole thing or just that term?). They mentioned this in one of their letters to me but when i challenged them on it they have not mentioned it since.

There is nothing in the t&cs about what happens if the customer is not satisfied/unhappy.

[GuidoT]

The terms are very important, post a copy (not the original) to the address in included in my email (per the disclaimer) and I will scan and post up here.

Do not be concerned about the LPCDA (you are correct though only applies to businesses, although I am not sure if you can contract into it) they are claiming the statutory 8%, they cannot have both.

It one terms is voided then the remaining terms usually stand.

[GuidoT]

I have sent you another email now, draft something up based on these and your own case and post up here and we will have a look.

[poppynurse]

Will do, it might take me a day or two as I've got a lot of work on this week and a job interview on Friday!

I've filed acknowledgement of service so believe I have 28 days to get the defence right.

Thanks everyone

[GuidoT]

28 days from the date of service of the claim form.

[poppynurse]

Ok folks I've sent in OHs defence, basically he didn't sign the contract and wasn't named on or involved in correspondance so nothing to do with him.

Here's my defence...any comments thoughts additions subtractions gratefully received!!! I apologise for the length!

• This matter relates to the erection of a conservatory and installation of a French door at the Defendants’ family home.
• The Claimant is and was at all material times a company portraying themselves as competent and experienced to undertake building/conservatory works.
• The Defendant is and was at all material times a lay client.
• By an oral contract entered into between the Claimants and the Defendant on 12.01.08 the Claimant agreed to carry out construction works to the Defendant’s home. The Defendant’s requirements were expressly stated and ultimately included:

• Erection of a conservatory specifically with access to all sides for cleaning/maintenance
• Erection of a conservatory with a 600mm dwarf wall
• Erection of a conservatory that did not require the further construction of steps at additional cost to the defendant to exit to the garden

• It was an implied and/or express term of the contract that:

a. The Claimant would execute the works with reasonable skill and care and to a standard to be expected of a reasonably competent and reputable builder familiar with conservatories
b. The Claimant would charge for and be paid a reasonable sum for the work done.

• Further or alternatively the Claimants had a duty to warn the Defendant:

c. If the style/position of conservatory chosen, based on expert advise from the Claimant, would affect the specific requirement to access all sides for cleaning/maintenance
d. If the style/position of conservatory chosen, based on expert advise from the Claimant, would lead to a requirement for the construction of steps additional to the original contract.

• By reason of the facts and matters set out below the Defendant avers that the Claimant acted in breach of his contract and/or in breach of his duty of care owed to the Defendant under the Supply of Goods and Services Act 1982:

a) The Claimant undertook the Works contrary to the Defendants express instructions and requirements, specifically:

• No access is available down one side of the conservatory contrary to the Defendants express instructions, furthermore failure to maintain the conservatory invalidates the guarantee
• The Claimant failed to provide the defendant with to scale plans of the conservatory in relation to the house/garden

• The Claimant stated, and the Defendant agreed, that the dwarf wall would be 600mm. It is in fact 1150mm which has caused a significant drop to exit the conservatory which will require the construction of steps at additional expense to the Defendant
• The conservatory that the Defendant now has is materially different to the conservatory requested and that the Claimant undertook to provide.

b) The Claimant undertook the Works in a shoddy way, with lack of reasonable care and skill:

• The footings have not been backfilled down the side of the conservatory adjacent to the neighbours fence
• The conservatory was not cleaned following construction: cement left on brickwork, dust everywhere, windows dirty, scratches to UPVC, site left untidy
• The Claimant wrote on 28.02.08 that they would come and rectify the above but this has to date not been done

c) The Claimant was unavailable when telephone calls were made to express concerns and did not reply to messages left.

• The Supply of Goods and Services Act 1982 states that:

a) if goods supplied do not conform to the contract you are entitled to have them repaired or replaced or to have an appropriate price reduction
b) where installation of goods forms part of the contract and it is not carried out with reasonable care and skill, it will be taken that the goods don't conform with the contract and remedies will be as set out above. In addition you will be entitled to compensation to cover any additional cost of getting replacement goods reinstalled properly.
c) A tradesman or professional has a 'duty of care' towards you and your property; that any price or standard you agree must be honoured.

• On 23.02.08 the Defendant sent a cheque for £5876.50 in full and final settlement of the Claimants invoice of £8395 (70% of the invoice) as per the above Act along with details of the complaints, offering the choice of accepting the cheque in full and final payment or rebuilding the conservatory as per the original agreement. This cheque was accepted and presented for payment.
• The Claimant then threatened immediate court action on 28.02.08 and threatened to charge interest on the balance under the Late Payment of Commercial Debts (Interest) Act 1998 – the Defendant understands that this act relates to business to business transactions and not consumer to business transactions and thus that this threat was unlawful.
• The Claimant agreed to supply door blinds on 28.02.08 for an additional £70, payment was sent on 04.03.08 but no blinds were supplied.
• The Claimant agreed on 28.02.08 to attend and undertake backfilling of foundations and cleaning but has not done so to date.
• In an attempt to reach a compromise the Defendant sent a further cheque for £839.50 (a further 10% of the invoice) in full and final settlement on 04.03.08.
• The Claimant replied on 07.03.08 refusing the £839.50 in full and final settlement but accepting it as a payment on account to reduce the outstanding balance of £2518.50 to £1679, however they have issued this claim for £2518.5 plus interest and have thus inflated the claim and attendant costs and interest.
• The Defendant has tried to be reasonable and reach a fair compromise but the Claimant has not addressed the points raised, has not visited the site to see the issues, has not undertaken remedial works as agreed and has made no attempt to reach a fair compromise as required by the Supply of Goods and Services Act 1982.
• The Defendant respectfully proposes that the Court order that the Claimant accepts 80% of the total invoice (ie £6716) in view of the facts set out above and in communication previously sent to the Claimant by the Defendant and available to the Court in the bundle, in accordance with the remedies provided by the Supply of Goods and Services Act 1982. The Defendant will arrange backfilling of foundations (cleaning has already been done by the Defendant) and erection of steps at the defendants own cost of approximately £300. The Defendant also respectfully requests that the Claimant be ordered to honour the 10 year guarantee and supply the door blinds as agreed. The Defendant also asks that the request for interest and costs by the Claimant be turned down.

[gyzmo]

I would change wording the second b "The claimant undertook the words in a shoddy way".

Perhaps:
"The claimant failed to excercise reasonable care and skill expected of someone holding themselves to a professional standard"?

Also on listing the requirements of SGSA 82, I would change th wording to the third person - just a personal preference

[poppynurse]

Done!