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Manxman in exile

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Manxman in exile last won the day on May 6 2021

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  1. So do you think #75 gives simeon a starting point? Or have I strayed down the wrong path?
  2. I unexpectedly had a couple of hours free this afternoon and thought I would have a bash at helping simeon drafting his counterclaim. Everybody please feel free to comment on and - hopefully improve it! (In particular I am not sure if I've got the terminology correct vis a vis counterclaimant and defendant - so that may need correcting). I am aware that Andyorch and BankFodder often stress the importance of keeping POCs to the bare minimum so as not to give away your case too much. Whether I've given too much detail - or not enough - here, I don't know. As I say, it's free to be pulled apart, but simeon seems to have nothing else. Paras 1 - 16 (in black typeface) are simply a precis based on what has gone before and I've used them to put the counterclaim in context. Paras 17 - 19 (in red typeface) are simply my attempt to provide a basis for simeon's counterclaim. At the end of the day this is simeon's documant - nobody else's. simeon has to satisfy himself that it is both accurate and true, and also says what he wants it to say. He will also have to order and sort out any attachments. As I said earlier, I'm NOT giving legal advice! Here goes... ===================================================================================================== Counterclaim 1. The defendant agreed to undertake building work (Project 1) at the counterclaimant’s property in relation to 3 specific areas of work for an agreed price of £4300. The work was: a. To underpin the bay window at the property, b. To replace and repair a previously removed chimney breast and, c. To install a new beam to the patio door. 2. It was agreed that Project 1 was to be carried out under the instructions of a structural engineer engaged by the counterclaimant and that the defendant’s work would be as a result of instructions received following the structural engineer's assessment of the property. 3. Between June and July in 2020 the counterclaimant provided the defendant with a full copy of the structural engineer's report which detailed instructions to the defendant for the works to be carried out. 4. It was agreed between the parties that the works would commence on 13 August 2020. 5. It was agreed between the parties that payments for Project 1 would be made in three instalments. The first payment would be made at the start of the defendant's work. The second payment would be paid at the halfway point of the defendant's work. The final payment would be made on completion of the total works. 6. The defendant commenced work on 13 August 2020 and the first instalment due was paid. 7. On 24 August 2020 the defendant asked the counterclaimant to arrange an inspection of his work by the Building Control Inspector. The defendant also stated that Project 1 was approaching mid-way and the counterclaimant paid the second instalment due. 8. The Building Inspector arrived to inspect the defendant’s work but the defendant was absent. The inspector was obviously very displeased by the standard of the defendant's work. The inspector spoke to the defendant by telephone, asking him why he was absent and interrogating him about the work he had done. The inspector then gave him some instructions over the telephone and also left a list of instructions with the counterclaimant to be passed on to the builder. The building inspector then said he would be getting in touch with the counterclaimant’s structural engineer with his findings and the counterclaimant should hear from the engineer soon. 9. The counterclaimant passed on the Building Inspector’s instructions to the defendant who agreed to follow them. 10. The structural engineer visited and recommended piling to complete the underpinning for Project 1. The defendant explained that he could not undertake this work. The structural engineer then suggested an alternative company to the counterclaimant to do the necessary work and this company was engaged by the counterclaimant to complete the necessary piling at an additional cost to the counterclaimant of £3300. (See receipt at Attachment1). 11. The defendant asked if the counterclaimant needed any more work to be done and, despite the problems encountered on Project1, the counterclaimant agreed on 7 September 2020 to have more work done (Project 2) at an agreed price of £2580 and on similar payment terms to Project 1. 12. As work commenced on Project 2 and was continued on the remaining work for Project 1, the counterclaimant had occasion to make several complaints to the defendant regarding the standard of his work. 13. Barely a week after starting on Project 2, the defendant demanded payment for that work. After a period of negotiation the counterclaimant agreed to pay him £2000 on 18 August 2020. 14. The counterclaimant subsequently paid the defendant £1500 in cash. Both parties agreed that this left a balance outstanding on Project 2 of £1080. 15. It later came to the counterclaimant’s attention that the defendant had removed material (including a steel beam) from the counterclaimant’s property that the counterclaimant suspects either belonged to him or had been paid for by him in connection with Project 1. When challenged the defendant admitted he had done this. The counterclaimant has included the value of this material in his counterclaim detailed below. 16. On 21 September 2020 the counterclaimant highlighted and sent a snagging list to the defendant (Attachment 2). Over a month later the defendant sent an employee to attend to this work. It was not carried out satisfactorily and resulted in an updated snagging list being sent to the claimant (Attachment 3). All of this snagging work remains undone by the defendant. 17. Apart from the outstanding snagging work referred to in para 16 above, the defendant also left other work from Projects 1 and 2 uncompleted. That work which was not completed is listed at Attachment 4. 18. During the course of carrying out work on Projects 1 and 2 the defendant also negligently caused substantial damage to the counterclaimant’s property (as itemised in Attachment 5) by not executing the work with the skill expected of a reasonable tradesman. 19. The counterclaimant seeks an order from the court directing the defendant to pay to the counterclaimant the sum of £nnnnnnn {Simeon - put in the actual total amount here} in respect of: (a) the cost of the piling referred to in para 10 above which the defendant could not undertake and another contractor had to be paid to complete; (b) the cost of completing work the defendant had left undone from Projects 1 and 2; (c) the cost of remedial work to put right the damage negligently caused by the defendant and referred to in para 18 above; and (d) the cost of the steel beam referred to in para 15 above. A receipt in respect of item (a) - see Attachment 1 - and two priced quotes in respect of items (b) and (c) - see Attachments 6 and 7 - are attached in support of this counterclaim. ================================================================================================================= What I'm not entirely clear about are two points. First, it's not 100% clear to me whether simeon can properly claim the £3300 in paras 10 and 19(a) or not. What I mean is, simeon is arguing that this work required by his structural engineer was always within the agreed scope of Project 1. But it's not clear to me if it was within scope or whether it was entirely new and unforeseen work. As I see it simeon can only counterclaim this amount from the builder if it had already been incuded in Project 1. Second, the basis of the counterclaim still seems extraordinarily thin to me. Is it sufficient at this stage just to allege that the builder caused any damage negligently and is therefore liable to pay to put it right. That's it from me I think...
  3. simeon - just realised that you may also still have been asking about an extension to get expert reports etc? I think that @Andyorch has already suggested a couple of times that that may not be necessary???
  4. I don't know because I wasn't there when the judge delivered their verdict. I think I've already suggested you ring the court and ask them if you need to submit a re-drafted defence to the original claim or did the judge dismiss the application to set aside. Tell them English is not your first language and that you are confused as to what you need to submit next week (or whenever the deadline is). Ask them to explain what you are required to do and what more you are allowed to do. OK? OK. So if I understand you correctly you appear to have some information/evidence to support the amount counterclaimed. You have: a receipt for £3300. Presumably that is from the other people who did the underpinning/piling that your builder was meant to do and was included in Project 1, but he did not do the work and you had to pay someone else to do it? a quote from a plasterer for "about" £3000, and a quote from a trader for a little over £10000 to do the remedial work. Well that adds up to around the figure you are counterclaiming. Surely all you need to do is to reference those three documents (the receipt and the two quotes) in the numbered particulars of your counterclaim and attach them as exhibits? If I were you I would ideally want the quotes to be on headed notepaper identifying the tradesman or the business supplying the quotes, otherwise who is to say you haven't just made them up? If they aren't like that already, ask them to provide quotes like that ASAP. But if you can't obtain them, just go with what you have. You appear to have no choice. I have one query regarding the receipt for £3300 (item 1.). If I have understood all this correctly, you had already paid your builder under Project 1 to do that work. Correct? But when he couldn't do it you had to pay someone else £3300 to do it. So you are claiming the £3300 from your bulider because you had to pay that amount to someone else even though you had already paid the builder for that work. Is that correct? Can I also ask why you haven't posted up copies of this receipt and the two quotes earlier when you have been asked what evidence you have to support your counterclaim? It might have saved some time and anxiety... I don't know. Andyorch has previously said that your earlier detail of the counterclaim was not good enough and he has also said that "... the court now require a full particularised counter claim (in a statement form) along with evidence (exhibits)... " #69 I would take that to mean that you need to submit numbered particulars of your counterclaim and that included within those particulars you also need to itemise all the work that is needed to be done and which adds up to the total of your counterclaim. You do that by referencing your particulars of counterclaim to the receipt and two quotes mentioned above, and you attach those three documents as exhibits to you particulars. As regards an expert surveyor's report etc, I simply don't know. FTMDave has previously suggested that an expert report may not be strictly necessary (#14) but might be agood idea, and Andyorch said this in #15 "You dont require an expert statement at this stage...simply start again from the beginning and replead ... your ... part 20 counter claim and submit by the date stated. Expert reports come at allocation stage when you will both have to submit a further DQ unless the judge dispenses with allocation....and lets the original DQs stand" That is as much as I know and understand, but I think you need to incorporate the receipt and two quotes into your counterclaim to support the amount claimed. Andyorch seems to be suggesting an expert report is not needed at this stage. That's all I can suggest and it's based on a common sense interpretation of earlier posts in this thread. As I said before I'm not a lawyer and I can't give you legal advice. If you want legal advice you can rely on you need to pay a lawyer. Again - have you approached citizens advice or asked your university law school? I don't feel I can give any further help beyond the above...
  5. Hi simeon - ok maybe that sounds a bit more promising. Let me have a quick think about this and I'll get back in 30 mins or so. But remember - I'm not a lawyer and as I've said before I have absolutely no knowledge or experience whatsoever of civil court rules and procedure. I can't give you legal advice on the best or the correct way of doing this. As I've said before, if you want legal advice you can rely on, then you need to pay a solicitor. If you can't afford that you are going to have to make your own decisions having already decided to sue your builder for £16k. I've already suggested you speak to Citizens Advice Bureau or ask if your local university law school provides a free legal clinic. All I can tell you is what seems like common sense to me. I suspect Andyorch is the person you need to be asking what you should and should not be doing from a legal procedure point of view. But at the end of the day it's only you who knows exactly what has happened and you have to make the decisions. I'll be back shortly.
  6. My fear is the ball park figure being claimed has been based onthe dimensions of a polo field when it should have been based on the size of a snooker table. I don't think we've seen anything that justifies £8k let alone £16k. I'm not sure simeon has any idea of the real value of his counterclaim. Sorry.
  7. Thanks Andy Whether that makes things clearer for simeon or not, I don't know... Yes - simeon should have ensured long before arriving at this point that he had an accurate breakdown of the uncompleted work, the damage caused by the builder and what it will cost to put that damage right. Why he didn't have that before he submitted the counterclaim is unclear. But that's where he appears still to be even now. The only possible explanation as I see it (and I have no idea if this is true or not) is that simeon's solicitor seemed to advise him not to bother to get a surveyor's report before the court hearing. I'm also wondering whether because of the excessive delay in the solicitor enforcing the original default judgment and simeon's subsequent dismissal of the solicitor, that the need to back up the counterclaim was overlooked. Of course, that's all pure speculation on my part, and I have no idea whether it might help simeon buy more time or not? [Edit: I was replying to Andy's #71 and I see I've cross-posted. I think I agree with FTMDave that simeon can only do the best he can and hope...]
  8. And presumably that fully particularised counterclaim will need to give a breakdown of the amount (£16k) claimed, or can that wait until later? (I'm asking because I don't know and I'm pretty sure simeon doesn't know either... ) Thanks
  9. So apart from drafting a counterclaim that explains why he's suing his builder for £16000, what else do you think @simeon1964 should be doing? I freely admit I'm well out of my depth here and I don't want to inadvertantly guide simeon off in the wrong direction. And I think FTMDave probably feels the same way. I'm a bit concerned that it will turn out that there has never been any "real" evidence to support the value of the counterclaim and that at the time it just seemed like a "good idea" to both simeon and the legal friend who helped him draft the original defence and counterclaim.
  10. As he appears not to be able to remember, should he ring the court ASAP tomorrow morning and ask? I fear it may be a waste of time but what else can he do?
  11. I really don't want to make this any more complicated than it is already, but can I ask a really stupid question? Is it absolutely 100% clear that the judge has chucked out the builder's claim for £2866 and that no more work is required on the defence to that? I'd just like to be certain that it's not the case that the original claim is still extant and is to be heard by the court, but that neither the claimant nor the defendant are permitted to change what they've already submitted to the court in respect of that original claim. (Does that make sense? It's just that it's not as clear to me as it obviously is to Andyorch and FTMDave that the original claim from the builder is now dead. But no doubt that is due to my lack of understanding!) @simeon1964 - if Andyorch's interpretation of that order is correct (and his interpretation will always be better than mine!) then all you really need to concentrate on is justifying your counterclaim for £16000. To do that you will need to demonstrate to the court several things: (1) that work you have already paid the claimant for was never completed by the claimant, and the value of that uncompleted work; (2) that damage you are claiming for actually exists; (3) that that damage was caused by the builder; (4) that the builder caused that damage in such a way that he is legally liable to put it right (eg he carried the work out negligently); and (5) the cost of putting that damage right. Can you do all that? (If anybody else thinks I've got that wrong or that I'm telling simeon the wrong things to concentrate on - shout out and tell him!!!)
  12. I thought you said that the order asked for you to submit a re-drafted defence and counterclaim? Isn't that order just asking you to re-draft your counterclaim only, and for the claimant to draft a defence to your counterclaim? Is the order only asking for a re-drafted counterclaim from you? (I'm going out now for the rest of the afternoon... )
  13. And if anybody thinks it's worth the effort I can go through that and make it clearer to read by taking out the strike throughs and the coloured formats so that it reads as intended and is less confusing. That would be later today or tomorrow am. I might also add something like "For the reasons above - ie that the work carried out by the claimant was unsatisfactory and incomplete and because of monies already paid to the claimant - the defendant denies the claim. Furthermore, the defendant seeks to counterclaim against the claimant for damage caused to the defnedant's property by the claimant" I'm not suggesting anything I've put forward is perfect or necessarily better that FTMDave's suggestion. But perhaps it will serve as a backup if nothing better turns up?
  14. I agree with all that. Can I just add that I've gone through the defence again and tried to make a bit more sense of it - and perhaps try to address or skip over some of the questions asked by FTMDave. Can I make clear I am not criticising what FTMDave has already done - I think that was a great job. It's just that I have found the OP's explanations still very unclear and difficult to understand so I've tried to make more sense of it. If what I've done is just making the whole thing more complicated and confusing then by all means ignore it. Bits I suggest deleting altogether are struck through. eg this Bits in red are my suggestions/improvements. (Or maybe they make things worse!) Bits in blue and bold are my questions. Whether this is really an improvement or not I don't know. Feel free to ignore... =============================================================================== 1. In this Defence: a. References to the paragraph numbers are in reference to the paragraphs in the Particulars of Claim issued on 25/02/2021. b. A matter that is not admitted is a matter which the defendant is unable to admit or deny and requires the claimant to prove. c. The defendant adopts where appropriate the abbreviations and terms in the Particulars of Claim for convenience only and without making any admissions thereby. 2. The defendant admits paragraph 3.1 of the claimants claim. 3. The defendant denies paragraph 3.2 of the claimant's claim. The true agreement between the parties involved the defendant and claimant agreeing that the claimant would undertake building work (Project 1) at the defendant’s property in relation to 3 specific areas. These were; and named Project 1 a. To underpin the bay window at the property, b. To repair a previously-removed chimney breast and, c. To install a new beam to the patio door. 4. During the process of the contract agreement above Subsequently the claimant was also engaged on further work to do the attached on 07/09/2020 for a total amount of £2,580.00 called (Project 2). 5. In relation to the installation of a new beam and the above this work was agreed between the parties It was agreed between the claimant and the defendant that Project 1 was to be carried out under the instructions of a structural engineer engaged by the defendant. It was agreed between the parties that the claimant's work would be as a result of instructions received following the structural engineer's assessment of the property. 6. Between June and July 2020 the defendant provided the claimant with a full copy of the structural engineer's report which detailed instructions to the claimant for the works to be carried out. 7. It was agreed between the parties that the works would commence on 13/08/2020. 8. It was agreed between the parties that the total sum for the completion of all the claimant's work regarding Project 1 would be £4300 called project 1. 9. It was agreed between the parties that the claimant’s fees for the work would be paid through three instalment payments. The first payment would be made at the start of the claimant's work. The second payment would be paid at the halfway point of the claimant's work. The final payment would be made on completion of the total works. As such three payments were to be made each of £1433.33. 10. The builder arrived at arrived at work at 2pm on 13/08/2020 when a contract agreement was drawn up. A cheque for the first payment was issued on the day and he worked for two hours. 11. On 24/08/2020 the builder approached me to book an appointment with the building inspector to inspect his work as the work was approaching midway and he would need the mid-way agreement money, I obliged and a second cheque was issued. He had carried out about 25 hours of work time in the property, attached is my diary of his work. The appointment was confirmed with the building inspector and builder the informed. 12. The building inspector showed up and but the builder, having promised to be there, was absent. The inspector walked around inspecting inspected the builder’s work and making comments in anger was obviously displeased by the standard of work. I called the builder and pass the phone to the building inspector. All I heard from the inspector was “Do you know what you are doing", repeatedly, “why are you not here you knew I was coming?” followed by describing the mode of doing the work to him. After the conversation with the builder he then asked me for a piece of paper and he started to explain the process which might be useful to the builder when he came. The inspector spoke to the builder by telephone, asking him why he was absent and questioning him about the work he had done. The inspector then gave him some instructions over the telephone also and left a list of instructions with the defendant to be passed on to the builder. The building inspector then said he would be getting in touch with the structural engineer with his findings and the defendant should hear from the engineer soon. 13. The builder came late that afternoon and I handed him the paperwork given by the building inspector and the builder assured me he would sort it out, that he now had an idea how to go about it, to which I said the inspector would communicate with the structural engineer who would be contacting us so he should wait and he agreed. 14. The structural engineer visited and recommended piling to complete the underpinning. The builder then said that he did not have the appropriate tools for piling. It was suggested to him that tools could be hired, but he did not respond. “But you can hire them most people do.” There was no answer. The structural engineer then introduced another tradesman who was able to do it for £3,000.00 and I paid the that tradesman to do the piling. 15. The defendant explained to the claimant that that £3000 would have to be deducted from the agreed price for Project 1 as that work had originally been agreed in that project. I then turned to my builder after payment that you are now £3,000.00 in deficit but we will sort this out after the rest of the work is complete. [Is all of that true? I don’t know. Is there evidence it was included in Project 1?] 16. On 02/09/2020 he the claimant asked for more work to cover his losses having paid lost the £3,000.00 for underpinning to another tradesman. I agreed and I asked him to price the job. His quotes were outrageous. Little did he know that I had had quotes from other people and the internet. e.g. he quoted me £1800.00 to plaster three rooms as against another plasterer who quoted £850.00. When I showed him the plasterer's quote, he was not shocked, I told him that, because he was on site I would pay him £900.00 final and he accepted. See attached builder quote for Project 2. [I think that is all waffle and I don’t understand it] 16. The claimant asked if the defendant needed any more work to be done and, despite the problems encountered on Project1, the defendant agreed on 7 September 2020 to have more work done (Project 2) at an agreed price of £2580. 17. For this reasons the builder was able to obtain a second contract from me for the amount of £2,580.00 signed on 07/09/2020 which I called Project 2, being, I believe the only way I could compromise the £3,000.00 paid to the tradesman. Again the contract agreement was identical to the initial contract for £4,300.00 (Project 1). [I don’t understand this paragraph. Delete it?] 18 17. Both the initial project 1 and project 2 started to go badly and I made several complaints to him, e.g. bad pointing. His response was all it needed was a good wash down and this bad pointing remains so to date not washed. As work commenced on Project 2 and continued on the remaining work for Project 1, the defendant had occasion to make several complaints to the claimant regarding the standard of work 19. 18. Around 15/09/2020 barely a week the builder had got the project 2 job, he was trying to ask for money for project 2. Barely a week after starting on Project 2, the claimant demanded payment. After a period of negotiation I agreed to pay him £2000.00 on 18/09/2020. 20. On 18/09/2020 I handed a cheque for £2,000.00 to the builder. He insisted on payment in cash even though my previous two payments had been by cheque. I was only able to withdraw £1500.00 which I paid him. The atmosphere was extremely hostile and under a steam of pressure I mistakenly wrote that the contract was agreed as £2,800.00 instead of £2,580.00. However, balance at completion was correctly indicated at £1080.00. [Way too complicated to follow. Delete?] 19. I paid the claimant £1500 in cash. We agreed that this left a balance outstanding on Project 2 of £1080. 21. We both signed the contract. The builder left. Later we saw the builder and his colleague on my CCTV camera walking away with my steel beam that had come off lintel. When I rang him and told that I had seen him on CCTV he admitted what he had done. I have now included the cost of the pair of the steel beam in my schedule of loss. He charged me for work during which he stole my material to do the work without refunding the material used. This was the beginning of my dissatisfaction with the builder. 20. It came to the defendant’s attention that the claimant had removed material (including a steel beam) from the defendant’s property that the defendant is clear either belonged to the defendant or had been paid for by the defendant in connection with Project 1. When challenged the claimant admitted he had done this. The defendant has included the value of this material in his counterclaim detailed below. 22. 21. On 21/09/2020 I highlighted and sent a snagging list to the builder. On 26/10/2020, he sent somebody to my house to clean up plaster damage to the wall and to the living room laminated flooring almost four weeks since he had last worked on the house. The person he sent made a mess of the job. I then updated the snagging list and gave a copy to his colleague who was doing the cleaning to give to him and emailed him a copy and sent copies by post to his address. Over a month later he sent an employee to attend to this work. It was not carried out satisfactorily and resulted in an updated snagging list being sent to the claimant 23. 22. The next contact with the builder was on 12/01/2020 when I saw a note on the door demanding he demanded 2,800.00. to which I immediately responded in my letter dated 17/01/2021 for asking him to explain how I owed the that amount as all that had been agreed as outstanding on Project 2 was £1080. so that I can deal with his claim. As I had no response from him on 05/02/2021 I sent him a recorded delivery pre-action notice. 24. 23. The claimant builder then acknowledged my pre-action notice by sending me notice to pay pay £2,866 by 26/02/2021 otherwise he would take me to court. I therefore waited for his court claim to defend and counterclaim. 25. The builder's court notice arrived and this was the beginning of assessing the cost of the damage and uncompleted work by the builder, by inviting tradesmen to come to the property to assess and give me quotes. More information was also sorted from the internet. Where I am not able to get accurate information or tradesmen to give me a quote I have left it as blank or TBA (to be assessed) on my schedule of loss, attached to this statement. [Is this relevant here Delete] 24. For the above reasons the defendant denies the claimant’s claim and seeks to make the counterclaim detailed below. [Does that seem right? I don’t know?]
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