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Hi Mike,

Thank you again for your reply. Unfortunately it seems the others have stopped following this thread. I have had some stressful things going on so sorry for the delay. The claimant sent a man purporting to be a bailiff who delivered witness statements of all the builders on the job who claim that they were abused, videos and harrassed repeatedly on the job. This man tried to get me to sign a statement which I refused. All the witness statements are lies and it has been really upsetting.

As you requested:

"The judge considers your case suitable for mediation and you are therefore encouraged to use the small claims mediation service.

****It then explains the mediation service****

Preparation for the hearing:

1 The parties must file at the court and serve on the other party no later than 14 days before the hearing the following:

a) all copies of all documents on which they wish to rely

b) statements of all witnesses (this includes bother the claimant and defendant) upon whose evidence you wish to rely

The statements shall be typed, dated and signed by the witnesses and stating that he/she believes that the facts stated in the witness statement are true.

2. all original documents should be brought to the heating

3parties should not that if they do not file and serve documents and statements as set out above then the court may decide not to admit the evidence of the party in default.

The court must be informed immediately of the case is settled by agreement before the hearing date.

***It then states the guidance on back listing***

Mike I should have the full defence prepared tonight. Can I email it to you to have a look at? It is the first time I have ever written a defence so any pointers or advice would be much appreciated as I am really getting desperate and cannot afford a lawyer or any professional advice.

My son has also discovered a recording he has where the builders admit that the owner is in the wrong and has deliberately caused the delay and inconvenience. This makes all his witness statements lies. Can I mention in my statement that I have this recording. I am getting my son to write up a transcript in case I can use it. Can I submit a CD with the recording on and the transcript. The horrible lies they have all written in their witness statement have really angered me.

I hope you are online today Mike.

Thank you in advance.

Was there anything else contained within the previous notice or was it purely to order the stay for mediation?

I am not sure what you mean. It said there was still the option of mediation, and if that did not go ahead then the court date would stand. It also said the rules regarding providing your evidence and witness statements

Mediation may be useful kinger, did you not receive contact numbers with the notice? It's standard protocol and [my thoughts] really designed to extend the need for the courts intervention. You don't speak directly to the other side as its a 3 way conversation much akin to the fos [only a tad quicker]

 

SJE will be discussed and possibly agreed at initial hearing........ not an expense either party should consider yet until the dj has read the papers.

 

Yes, hearing fee is payable by the claimant unless proceeding on the counterclaim alone....... bliddy expensive business trying to get a few bob back even in small claims

Hi Mike, sorry for the late reply. I sent another email to the company trying to resolve it before the court hearing. I got ignored, so I can only assume this will go in my favour.

I was wondering if you or anyone else can give me any advice on how to prepare my documentation for the court hearing. I am not asking for someone to write it for me just some useful advice as this is my first time doing such a thing. I was thinking about doing the following:

1. Introduction and Contents page
   
2. Background of Case
   
3. Contract and other essential Documentation with explanations
   
4. Conclusions and reasons why the Claimant is wrong and I am right
   
5. Any other useful documentation and evidence, labelled and numbered which will be referenced in the earlier text.
   

I have to submit the documents to the other party and the court two weeks before so I only have about a week left.

TheMould, I have not heard from you in a while. I hope you and your family are well. I would also really appreciate any input you have as I would not have been able to come this far without you valuable inputs either.

Is it a good idea to upload here my documents once I have done them, or is that not a good idea?

Thank you.

Kind regards

Hello everyone, I have received the "allocation to the small claims track" letter which has provided a date in April.

The letter states that the judge considers this case suitable for mediation and that it has been stayed to enable parties to attempt settlement. I find this frustrating as it was the company which jumped straight to the court stage after I tried to get them to complete the work to the agreed contract. Will it go against me if I do not contact the company director to try to attempt mediation?

The letter does not state anything with regards to the expert witness. I am not sure if I can instruct the witness or not here.

It also states that the hearing fee is due by the claimant. Am I right to presume this is the roofing company even though I have put a counter claim in?

Any additional advice would by much appreciated as this is my first court case ever.

I hope you and your family are well TheMould, and any input is, as always, much appreciated.

What a nightmare for you, particularly with the weather as it is! Hope all goes well for you, and you get the outcome you want. As a builders wife I am appalled at the dreadful treatment you have had from this company!

There should have been no questions asked regarding the pitch, it should have been put right and new windows installed at the roofers expense, end of! His fault his loss!

 

One of our lads forget to cover in overnight a small part of a roof a while back, the customers curtains got wet, and without hesitation we agreed to pay for new ones, at a cost of over £3,000, yes £3,000! And they were about 20 years old! But the continued work my husband has had since, from that customer, far outweighs it.

 

Good luck

 

Maddie

Thank you for your kind words. If only all builders were so reasonable; and it shows that good customer service does pay. I have since learned I should never have been so trusting just because a company was large and reputable. Fortunately I have contracts etc. to back me up, but I think I will go with a private individual in the future and thoroughly vet them.

Hello everyone. I am still here! I have received a letter from the court stating that a court date will be provided soon and the case will be allocated to a local court. I will keep this updated as I receive more information.

Has it served/filed defence to your counterclaim?

I am not sure exactly what you mean. I filled in the counterclaim on the MCOL website. I then received the questionnaire document which also requested payment of £220 for the counterclaim I believe. I then filled in the questionnaire and returned it. I have not received anything since. I filled in the particulars of my counterclaim online at the same time when I had written my defence.

Hello all,

A quick update. The questionnaire was filled in and send off last week, so now I believe I have to wait for a letter confirming a court date. Is that correct?

Kind regards

I have to complete the questionnaire bt 17th january.

I hope you and your wife have a speedy recovery and my thoughts are with you both.

Get well soon.

Kjnd regards

Thank you for your reply Themould

I had started to get a bit worried as I had not heard from you in a while. I assumed you were recovering from new year celebrations ;-).

The roofing company offered a guarantee but it is not valid until they receive full payment. The first time I called him when the roof was leaking his attitude completely changed and he said that he would charge a call out fee if there was no leak. I replied to him that why would I lie about a leak and call you out for?

I believe he had no intentions of providing any sort of warranty work and in a way I am glad things turned out the way they have. Imagine if my house got ruined years down the line and he refused to honour the warranty

I have also received the allocation of track and I have till the 17th

Its asking

Do I agree with small claims track?

A payment of £40 is due payable by claimant unless proceeding on counterclaim only. I am confused as whether I pay this? Is it proceeding on counterclaim only? I havent a clue whether claimant or defendant should pay

Fee of £210 is due. I am on low income and I don't fully understand the documents. Am I right in just sending proof of income when I return the allocation form and putting zero in the fee box?

At which court do I want the hearing and why? I would want it local but what reasons do I put? The builder is not too far from me.

Expert evidence. Obviously I am going to put a yes,

Witnesses? Am I the only witness required? Or can I put spouse son etc?

Thank you very much,

Kind regards

Kinger

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Thank you for pointing that out matt v atos. I will try and convert them and upload them again tomorrow as I am having issues with my connection still.

Kind regards

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I have scanned and copied the particulars and an email from the building inspector. The email I will post here as it is text not an image.

This was an email which the building inspector forwarded to me after the roofing company owner contacted the building inspector for confirmation of what was said prior to court proceedings (presumably to try corroborate his court claim against me)

Hello (roofing company),

When I visited site on 4/11/13 it was noted that although your roofer had measured the built-up roof at 15 degrees my measurements indicated approximately 13.5 degrees. We discussed stripping and raising the roof, which you said would require new windows to be installed on the rear of the house. Your feelings were that you were very certain that there would be no problem with the Velux flashings laid at the current pitch. I said I would discuss with my colleagues in my office as to whether this could be accepted by Building Control.

On 5/11/13 I confirmed to (Kinger) by phone that, due to the very small margin involved, if he was satisfied with (roofing company’s) written guarantee on the roof coverings and the roof window flashings, it would then be reasonable for me to accept the roof at its current pitch.

The following email was sent to Mr (Kinger) in confirmation and it was later copied to you.

Mr (Kinger) has since informed me that the roof is leaking when tested, but I appreciate that it is your assertion that the roof window flashings have been damaged since you completed the works and will now require repair. I understand that your guarantee is invalid until this matter is resolved.

I trust this is satisfactory confirmation for your purposes. A copy of this email has been sent to Mr (Kinger) for his own records.

Thank you,

(Mr Building Inspector).

Thank you for your reply TheMould and everyone else, and I hope you and your family have a happy new year. Please forgive my ignorance, but what I am supposed to do with the information you have provided? Will this be put in my defence again once the claim is allocated to the relevant track?

Will both the claim and the counterclaim run concurrently? or will they be combined?

Also I forgot to mention that the date and signature of the particulars of the claim was 16th December which conveniently is the 14th day. However I believe that it was not posted until much later.

Shall I scan the full particulars of the claim and the terms and conditions or is this not necessary? I don't want to bombard you with unnecessary paperwork.

Do I just wait now until the court contacts me regarding the next step?

May I say again I am extremely grateful for all the help I have received so far.

Happy new year all

Kind regards

Kinger

Thank you for your reply mocster1985. That is exactly what other roofers have told me too. they have cut the tiles in situ and the circular saws have cut the flashing. The flashing has dents and has been bashed heavily with a normal hammer. Velux also said that due to capillary action just a few degrees can mean that the water draws upwards and leaks.

The tiles are Forticrete Centurion, low pitch.

Thank you,

Kinger

Thank you for your comments steampowered.

1. The roof when measured by the roofing company was 13.5. The pitch by the building inspector was between 13 and 13.5 degrees, depending on area.

2. The building inspector has constantly changed his mind. He initially said that the roof was unacceptable at anything less than 15 degrees. Then he came back and said that he would accept less than 15 if it came with a guarantee from the roofing company. How roofing works which are fundamentally flawed can be fixed by a guarantee astounds me! What do we do after the guarantee runs out? What if the company goes bankrupt etc. The only evidence I want from the inspector was the pitch, as his measurements would be more impartial. What I meant was the fact that it was approved or not seems irrelevant as he was not involved in the contract.

3. I have some written statements from tradesmen but not many were willing to do so as this is a small city and the company has a large influence. A lot of tradesmen do occasional work or know of this company. As a results it has been difficult to even get people to come back once they see the roof. As they get suspicious and say they don't want to touch someone else's work.

4. The quotes I have obtained have been from 7-8 thousand pounds. But how can I quantify the suffering and disruption to my family. The expense of heating due to the roof not being finished. The mess and inconvenience etc.

I have an email from velux stating the pitch and requirements etc. I have written statements from tradesmen and I also have photographs of the roof and the damage etc. However I have not instructed an expert as of yet as I do not know if I will be given permission, I do not know if It will be admissible or if I will be able to recover the cost.

Kind regards

Kinger

Counterclaim

1. I, xxxof xxxx Aam the Claimant in these proceedings and I make this statement against xxx.

2. The matters set out hereafter are made within my own personal knowledge on this matter, if the contrary appears, I state the source of such, which I believe to be true to the best of my knowledge on this matter.

3. The Defendant was contracted out for roofing works to start at my property on 31/10/13 and to be completed by Saturday 2/11/13. It was also agreed that the roof was to be erected at a pitch of at least 15 degrees, which would allow the roof to comply with both Building Control Regulations and the Manufacturer stipulations.

4. To date the roofing works are not complete. The Defendant took an unacceptable time to erect the roof (far in excess of the agreed timescale), and when it was finally erected it was not waterproof and not fit for purpose. It currently remains in the same situation.

4. The Claimant is in fundamental breach of the contract and the works he was contracted to undertake thereunder are seriously defective and inadequate, he has not performed his obligations under the agreement, this has left the roofing works requiring proper professional workmanship that complies with building regulations in order to make the same waterproof. Furthermore the roof and Velux windows are in clear contravention of the manufacturer stipulations and building regulations, which, at the present time, due to the Claimant’s wholly deficient works carried out thereon, the roof is not watertight and causing damaged to my property and is preventing the successful completion of my home extension. The roof has been inspected by a number of qualified tradesmen and a Building inspector who has measured the pitch at 13 degrees. Furthermore the tradesmen and inspector have identified that the cause of the leaks can be directly attributed to the incorrect pitch of the roof and windows. They also observed poor workmanship, damage and incorrect screws. The contract terms agreed with xxx roofing explicitly state that the pitch of the roof must be at 15 degrees for the Velux windows and completed within 4 days, both of which were breached by the Claimant. A representative from Velux has stated in writing that any pitch less than 15 degrees will allow water ingress and is unacceptable, as they have invested significant resources in the testing of the windows.

5. All waste removal and clear up was a term within the contract. The Defendant left broken tiles and waste which had to be removed at my expense, despite me writing to him and providing him the opportunity to remove it.

6. Significant disruption and damage have been caused to property as a direct result of the Defendant’s actions. Despite numerous written and verbal attempts to rectify the problem with the defendant, he has subsequently initiated court proceedings demanding payment. It had been explained to xxxxx On numerous occasions that both the manufacturer and Building Control had stated the roof was unacceptable in its current state, along with it being a breach of our agreed contract. As a result the health, safety and security of my family home has been in jeopardy ever since the Defendant has refused to fulfil his contractual agreement.

7. My claim includes a claim for suffering and loss of amenity, which as of now I cannot say how much I expect to recover.

It should be noted that the local authority have refused to issue a Building Regulations Certificate for the said roofing works carried out by the Claimant, because the same do not comply with Building Regulations.

Sorry for the small writing. I have internet problems and have had to do a lot of writing on my mobile which is frustrating. A few points;

• He has sent a copy of his email confirming the pitch is less than 15. Does that mean an expert may now not be necessary?
  

• In his own contract it states that any amendments to the works must be agreed in writing. But he is now saying that I was happy with the works and I agreed this in front of the building inspector. This is completely false as he essentially said to me "either you have the roof as it is, or I take the whole lot off." So I had no choice but to keep the roof. Furthermore I cannot see how building inspector approval has anything to do with my contract with this company.
  

• I feel a bit relieve after reading the particulars but I am not complacent as he seems to basing the whole case on the fact he was refused access and that the property was in a dangerous condition. I have archived CCTV footage of the whole month during which the work was carried out which also has audio. would this ever be needed
  

• How do I proceed? I have received the particulars AFTER I have submitted a defence and counterclaim. I believe he timed this to be close to Christmas to get a default judgement
  

Thank you all in advance. I am sorry for the sheer volume of information here. If you require any clarification or additional information please ask. I can also post the counterclaim which I submitted here if it is of any help.

Thank you all very much.

Kindest regards

Kinger

· Final two documents- These are copies of emails sent between myself and the owner of the roofing company.

1st EMAIL (His) (there have been numerous emails previously)

Following my attendance at your property yesterday and your subsequent email dated 20.11.13

You state in your email that the roof is ‘not fit for purpose’ and that it contravenes the manufacturer’s stipulations.

‘As the contract we agreed to was for the roof to be at a pitch of 15 degrees, we find the roof in its current state unacceptable. ‘

I would like to refer you to the appointment at your property attended by the Building Inspector Mr xx , and you xxx, where it was agreed that the current pitch of the roof was acceptable at 13.5*, despite my offer at that meeting to change the works to suit 15 degrees it was unanimously agreed by all parties that the pitch was to be left and the roof to be tiled in and completed and that (Company) would issue a Warranty to enable Building Control to sign off the works.

Your complaint of ‘leaking windows’ were inspected and I found that the window flashings had been tampered with. Despite your aggressive reaction and deliberate actions to cause grief I am however, as a professional contractor prepared to complete the following:

After careful consideration (company) has agreed to offer you the following two options:

1.Completion of Works

A squad shall return to site and repair the flashings around the Velux window. I must inform you that due to recent behaviour and (Company) staff being disrupted by members of your family, it has been decided that the duration of the site visit will be recorded on camera by a Site Manager.

2.Removal of Roof – Full Refund

Two squads shall return to site and strip back all of the works, removal of brickwork and materials which were provided by (company) and the premises will be restored to its original state and as detailed on the photographs (company) hold from the Site Survey. A credit will be raised to cancel the current Invoice No xxxx which is outstanding.

To date we are willing to waiver the extra costs which were not within the quotation for building up of the gable end walls in brickwork and the removal and refit of a PVC window.

Should you decide not to allow access to (company) to return to site and rectify and complete the works then the Contract shall become repudiated as agreed and signed by yourself within the Terms & Conditions clause 2 and the Contract Price shall become outstanding.

Please take this email as a reply to your previous email dated 21/11/13. I will give you five days to respond to my email with your decision, failure to do so we will issues legal proceedings against you for full and final payment.

My email after his:

We have considered your proposals and have decided that we are unable to accept either option. We must also add that we reject your accusations of “recent behaviour and (company) staff being disrupted by members of your family.” We have CCTV footage of the day in question and my son recorded you on his mobile phone after you became aggressive and told him to “shut his gob,” all of which prove you are being dishonest. No worker of yours was disrupted at all. I find your comments to be a desperate attempt to deflect the blame of your own failings and wrongdoings onto us.

We will now explain why we are unable to accept your options:

Option 1: “A squad shall return to site and repair the flashings around the Velux window.”

We have told you in numerous emails now that a roof pitch of less than 15 degrees is unacceptable. This is because the manufacturer of both the tiles and windows have invested significant resources in their design and manufacture. These products have tolerances which cannot be exceeded. Furthermore, your company does not have the resources or expertise to redesign and modify products which have undergone thorough and extensive research and testing, as you are not the product manufacturer. You have also failed to inform us how exactly the roof will be repaired and what solution you are proposing to rectify the leaking. We must remind you however that any repair will still remain a breach of our contract and contravention of manufacturer stipulations. Therefore we are rejecting this option.

We have had a reputable and competent roofer inspect the roof and he has made a number of comments. He has stated that the installation of the windows and flashing was very poor. There are numerous dents and damage on all three of the Velux windows. The flashing has numerous hammer marks and has been damaged by circular saws. He stated that tiles should never be cut in situ, however the damage and marks clearly show this. Incorrect screws have been installed and areas around the Velux windows have not been installed properly. Glue and adhesives have been applied in what appears to be an attempt to stop incorrect screws from leaking. So not only is the roof unacceptable due to the pitch, but you have damaged our property through poor workmanship and lack of care. For a reputable and professional roofing company this is appalling.

Option 2: Removal of Roof – Full Refund

It was agreed via a written contract that you would erect a roof with a pitch of “15 degrees for Velux,” within 4 days. It is now the 26th day and our roof is not fit for purpose or of a satisfactory quality. We find this option unacceptable as not only have we incurred significant cost through the damage to our windows and flashing, but inconvenience, risk to our property and damage to materials inside the house due to leaking windows.

With regards to you being “willing to waiver the extra costs,” you admitted that your own employee xxxx had agreed with ourselves verbally that he would be doing the extra work required within the price (window fitting and brickwork). He then lied about ever agreeing to the work, resulting in you authorising the additional work and apologising for his behaviour. We were never paying you any extra to do this work as you accepted that your employee had deceived us and we never said we would pay extra in writing or verbally with yourself or any of your employees.We had also filed a complaint with yourself regarding his behaviour and attitude.You are not offering us any compensation for the delay or damage to our property and we are already nearly a month behind due to your roofing company. You have a contractual agreement with us to complete the work.

We therefore find the only acceptable solution to this situation to be the following:

You either complete the roof as per our contractual agreement by:

·Erecting a roof with a 15 degree pitch, as stipulated in the contract and provide us with compensation for the delay and damage to our property. The work must be carried out promptly as we have already inconvenienced unacceptable delays and disruption due to the incompetence of your company.

Or:

·You pay us to allow another company to remove and complete the roof to an acceptable standard.

·You provide us with compensation for the Velux windows, flashings and other property which were damaged by your employees and as a result of the leaking windows.

·You provide us compensation for the inconvenience and delays we have been caused due to the incompetence of your workers.

If you cannot provide us the service which you stipulated, as per your contract, then we will obtain quotes to have the work completed correctly and will be issuing you an invoice for the amount we will be claiming via court. We cannot delay our building work anymore, and as we explained many times we have a leaking roof which is damaging our property. You have 5 days to reply to this emailotherwise we will assume you do not accept either of our solutions and we will be commencing court proceedings against you.

Regards,

Thank you all. I hope you had an enjoyable and peaceful Christmas. I cannot wait till this is over. After spending a long time last night submitting the defence and counterclaim, I have just received the particulars this morning. I cannot believe this. The details are the following;

· On or around 19th October 2013 the defendant telephoned the offices of the claimant to arrange an appointment for the claimant to attend the property

· On or around 20th October 2013 the claimant attended the property to survey the works which were required

· The defendant was supplied with a written quotation of works to be carried out and was also given a contract of acceptance form and the claimants terms and conditions.

· The defendant engaged the claimant by way of accepting the claimants terms and conditions and signing the contract of acceptance

· The signed contract of acceptance was delivered to the claimant on or around 30th October 2013

· The defendant stipulated the work was to be booked in immediately and therefore the claimant began work on the 31st October 2013

· The claimant assigned a squad of 3 men to commence works

· The claimant’s employees attended the property on the following days: 31st October 1st November, 6th 7th 8th November and again 12th 13th and 14th November.

· During this period the claimant also provided sub-contractors to carry out other works required to complete the contract

· On or around 14th November 2013 ta building inspector employed by xxxx city council attended the property to engage with the defendant and claimant to ensure the works were compliant

· Again on or around 20th November 2013 the building inspector was requested to return to return to the property to confirm the works had been completed to a satisfactory acceptance

· Following the appointment the defendant approached the claimant and stated the work was incorrect and required rectification

· The claimant offered the defendants options to bring the work to the defendants satisfaction despite the work having already found satisfactory with building control

· The defendant rejected the claimants offer and informed the claimant he no longer required the services of the claimant and refused further access to the property

· The claimant raised the necessary sales invoice for works carried out at the property as per the signed terms and conditions attached to the said contract.

· The defendant has breached the contract and in particular clause 1 and 2

That is the end of the particulars I was sent today.

There have been the following documents attached to the particulars as separate documents

· The email correspondence stating that “3x velux windows in accordance with manufacturers specification……. Payment will be made after building inspector approval however this must fall within our 5 day payment procedure”

· Copy of the contract we signed- I also added a term stating “in addition to the email you sent earlier today (referring to the previous point)

· The Terms and conditions of the contract- Point 1 refers to properties which are in a dangerous condition and the right of the company to terminate the agreement and still demand money. It also states that any variations must be agreed in writing and agreed with the customer and the company.

The relevant points in point 2 are “customer will not interfere with the work of xxxxx. If the customer fails to permit xxx suitable access for xxx to complete its contractual obligations xxx shall be entitled to treat the contract as repudiated and shall be entitled to receive from the customer the contract price.

Thank you all very kindly for all your help. I didn't submit the defence as I was waiting for your replies. I am doing it online so I still have some time. Thank you for the addition The Mould. And thank you for the link Mike. I will make the necessary changes.

I am extremely grateful for all the help and I will definitely keep you all updated along the way. Have a great Christmas and thank you again for all the help.

Best Wishes

Kinger