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Court wants an AQ and I'm really stuck - help!!!


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This is quite a long story, but I’ll keep it as brief as possible:

  • Contracted decorators to decorate my stair case
  • When finished, not entirely happy, but thought nevermind and waited for invoice
  • 3. Four weeks after completion, a partner in the firm knocked at my door with a reminder invoice. Told him never received original invoice – he said last man working on the job should have left me one. He told me to treat this invoice as the first invoice as their mistake.
  • One week later, message left on my business answering machine stating that if I hadn’t paid by the end of that day, decorators were going to start county court proceedings against my company! I phoned back, absolutely furious (if I’d had clients or staff in, they would have heard the message) and told him I was not impressed with his message and that he would have the cheque by the end of the week as it was sitting unopened on my desk waiting for me to do my weekly cheque run. The guy started screaming at me that he didn’t believe I was going to pay it because I’d told him I hadn’t opened it (?) and that their terms and conditions clearly state payment within 21 days or court proceedings would be started. I explained that I had not received the original invoice and he claimed he had hand delivered it, which was nonsense. He kept going on about court proceedings being in their terms and conditions so I told him to stick his terms and conditions up his proverbial and put the phone down.
  • Decorator then left two further messages on my answering machine stating a cheque by end of day or court proceedings (I couldn’t have got a cheque to him even if I had wanted to in time) so I emailed him telling him only to communicate in writing and that I would vigorously defend any court proceedings.
  • Phoned CAB, who advised that if he had instigated court proceedings, then I needed to wait until I received them and then defend against costs on the basis that I had been prepared to pay the bill in a timely manner and the decorators had been naughty in issuing proceedings so soon.
  • One month goes by and then I received claim from MCOL. Decorator states that he gave me a further 14 days to pay (he never informed me of this, or I would have paid) and brought the case against both myself and my husband. My husband had nothing to do with it and wasn’t even on the mortgage at that point in time. We duly acknowledged service & defended, putting down what the CAB stated plus the fact that it had nothing to do with hubby. I then phoned MCOL once they had received it and they also advised me not to pay what I agreed to on the basis that the decorators may come back and refuse payment.
  • I periodically telephoned the court (it had been transferred to my local court) and was told not to pay the money and that the decorating firm had not responded to our defence. I received a letter saying case would be stayed if they hadn’t heard back from him by September.
  • Yesterday, hubby and I both received a general form of judgement or order stating that we needed to file an allocation questionnaire by this Friday at 4pm or we would be debarred from defending the claim and the claimant can enter judgement without further order. No forms to fill in or further instructions were included.

I’m utterly confused and don’t know what to do. Plus, since all of this has happened, hubby and I have kept noticing things wrong with the decorating – things not done that should have been; wallpaper cut short etc. Also, because the time has lapsed so far, I no longer have the full amount of money to pay this – I did hold onto it for months waiting for someone to get back to me, but, to be honest, it’s gone on some other bills now.

I really need some urgent advice on what to do about this as I don’t want a CCJ or a judgement entered on what I feel is a most unfair and unnecessary case – if the guy had only been polite or if only the two partners could agree on the same thing, I would not be in this position now and they would have had their money months ago.

Help!!!! (thanks)

All help is merely my opinion only - please seek legal advice if you need to as I am only qualified in SEN law.

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This is drifting into construction law...:(

 

Get another decorator in. A proper one. Ask him to have a look at the work that was done and give you a professional opinion about the work and what, if any, it would cost to put it right. You need his report in writing. If he says there's nothing wrong with it then forget that route. If he says it's a mess then you'll have to pay for his report.

 

You will then need to amend your defence (if necessary) and will need the court's permission to do so. You need to fill the AQ in.

 

No matter what you WILL have to pay something. As soon as you have your report then you need to pay the difference between what the decorator wants and what it will cost (if any) to put it right.

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I'm quite happy to pay something, but, to be honest, these guys have strung this out to such and extent and have been so rude that I think that should be taken into consideration, even with the fact that the work is not done to my satisfaction.

 

Right now, I'm just really concerned as to what to put in the AQ (and where to find one) as I've only got until Thursday to post it specail and only got it yesterday.

All help is merely my opinion only - please seek legal advice if you need to as I am only qualified in SEN law.

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I would have said this would come under contract and tort Edz11.

 

there would have been a contract between parties

 

im fairly sure the failure of the decorator to carry out the work with reasonable skill would be contrary to the supplyof goods and services act 1982

 

i will ask someone who is very knowledgeable on these sort of things to look in

 

regards

paul

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s. 13 of Supply of Goods and Services Act would certainly come into play. They must carry out the service with reasonable care and skill so you would be entitled to have the price reduced to counteract any defects.

 

Also if the agreed price was payable on completion it may be held that the defects may mean that the contract had not been completed so they are not entitled to anything. The question is whether they have substantially performed the contract. If the cost to remedy the defects are small incomparison then this may not provide assistance. If however, the cost to remedy the defect is substantial then they are entitled to nothing unless they actually complete the work including remedying any defects.

 

See the cases of Bolton v Mahadeva: http://www.nadr.co.uk/articles/published/ConstructionAdjudicationLawReports/Bolton%20v%20Mahadeva%201972.pdf

 

and also Hoenig v Issacs - I don't have a link to this one may be Paul can help you out here?

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Thanks for looking in Zootscoot

 

with regards to Hoenig & Issacs (1952) 2 All ER 176

 

 

ive got a copy on my pc, but i cant seem to attach it to this message, i keep being told ive exceeded my limits even though i deleted all my other uploaded documents, i will need to give webby a shout i think

 

Tiglet, if you PM me an email address i will send you a copy

 

regards

paul

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Sorry, just to clarify - do i need to fill in a N149 or a N150? i'm off out tonight at the PTFA christmas do, but intend to do it straight away tomorrow morning.

All help is merely my opinion only - please seek legal advice if you need to as I am only qualified in SEN law.

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Thanks - I'll call tehm in the morning.

 

Is it usual for them to only give you a week to send in the AQ after procrastinating for months?

 

Sorry, i've never had a potential CCJ before (God knows how I've managed that one!)

All help is merely my opinion only - please seek legal advice if you need to as I am only qualified in SEN law.

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OK. Situation thus far.

 

Apparently we were sent AQ's in september 9around the time of the fantastic postal strikes). needless to say, tehy were never received and whenever i phoned the court to see what was going on, no-one mentioned this to me. ho hum.

 

The decision to give me until the 7th of December was made on the 15th november, typed up on the 27th November, posted on the 28th November and received on the 3rd december. i explained this to the court, but they were not interested.

 

So, i need to fill in form N149, which I am in the process of doing. i am getting someone I vaguely know through the PTA (who is a decorator/interior designer) to have a look at the work for me and give an honest opinion.

 

I've looked at the court case you mentioned, but to be honest, it's absolutely confusing to me, as very much a layperson, so should I include this or stick to the facts of the matter at this stage and use it in my court bundle instead?

 

Sorry to be a pain!

 

Tigs x

All help is merely my opinion only - please seek legal advice if you need to as I am only qualified in SEN law.

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When you send the AQ, include a short covering letter explaining your position so that the judge can see that it is not your fault.

 

You may like to fill in the AQ electronically (but you then need to place in the post) a copy is here.

 

Do not worry about cases for now. Please post up your defence, as you may want to consider amending. Further, post up a description of actual defects so that we can form a view on the extent of the same.

 

Again do not worry about a CCJ for now, first of all you have to loose and then fail to pay the debt and then have the debt registered against your name. This is several months away, if indeed it ever happens.

If I have been helpful please click on my star and add a comment.

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OK, this is my defence:

 

1. i did not receive an original invoice and was told two contradictory things regarding payment by two different partners in the firm regarding whether to consider thsi as a first invoice and second and as to how the invoice had been delieverd. The firm started CCJ proceedings without giving me opportunity to rectify the matter.

 

2. while the decorators were in, my husband pointed out to them that they had cut wallpaper short, not stuck down properly and paintwork where the decorator had left a handprint. We were told they would rectify this, but they only partially did. When I was originally visited for the quotation, I advised I was going to strip the wallpaper and get replatsering done if necessary. I was told they could paper directly over the wallpaper and had special methods to ensure bumpiness was smoothed out and taht you could not see the underlying wallpaper. despite pointing out this had not been done and some attempt to rectify this (meaning i had to buy yet more wallpaper as they had to strip some off to correct it after being pointed out), the problem was not properly sorted out and one wall is extremely uneven; on one wall it can clearly be seen that they ahve applied some plaster/polyfilla without sanding it down afterwards so there is a lump in the middle of the wall and on one wall (the one they assured me they had corrected) the lines of the old wallpaper are still clearly evry visible. the whole effect has been ruined, in other words. When i tried to tell the guy this on the phone, he just kept screaming "county court action" at me and would not discuss. i told him to put everything in writing to me and emailed him to the same effect. he has not contacted me since.

 

That's basically it, although i will obviously try to dress it up in a more dispassionate way.

All help is merely my opinion only - please seek legal advice if you need to as I am only qualified in SEN law.

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OK, this is my defence:

 

1. i did not receive an original invoice and was told two contradictory things regarding payment by two different partners in the firm regarding whether to consider thsi as a first invoice and second and as to how the invoice had been delieverd. The firm started CCJ proceedings without giving me opportunity to rectify the matter.

 

2. while the decorators were in, my husband pointed out to them that they had cut wallpaper short, not stuck down properly and paintwork where the decorator had left a handprint. We were told they would rectify this, but they only partially did. When I was originally visited for the quotation, I advised I was going to strip the wallpaper and get replatsering done if necessary. I was told they could paper directly over the wallpaper and had special methods to ensure bumpiness was smoothed out and taht you could not see the underlying wallpaper. despite pointing out this had not been done and some attempt to rectify this (meaning i had to buy yet more wallpaper as they had to strip some off to correct it after being pointed out), the problem was not properly sorted out and one wall is extremely uneven; on one wall it can clearly be seen that they ahve applied some plaster/polyfilla without sanding it down afterwards so there is a lump in the middle of the wall and on one wall (the one they assured me they had corrected) the lines of the old wallpaper are still clearly evry visible. the whole effect has been ruined, in other words. When i tried to tell the guy this on the phone, he just kept screaming "county court action" at me and would not discuss. i told him to put everything in writing to me and emailed him to the same effect. he has not contacted me since.

 

That's basically it, although i will obviously try to dress it up in a more dispassionate way.

 

 

Hi Tigs,

 

is this the defence you have submitted?

 

also, what are the problems your having with the cases?

 

i will try and help you as much as i can

 

 

regards

paul

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GuidoT - no, it needs to be sent by special today so that the court receives it by 4pm tomorrow.

 

Paul - as far as i have read it (and will admit I am a complete dumb-ass when it comes to the law, I'm the first to admit, plus I have two sick children sitting next to me right now, so the noise-level is hovering somewhere around the pain-thresh-hold) the defence and appeal were struck out on the basis that eventhough the work was not completed to saisfaction and there were defects.

 

or did I read it wrong? i would really appreciate some help as i'm sure I'm messing this up.

 

Sorry to be needy

 

Tigs xxx

All help is merely my opinion only - please seek legal advice if you need to as I am only qualified in SEN law.

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Hi tiglet,

 

Dman, thats a really short time frame youve got to play with,

 

im tied up for pretty much all of the day although i will be around this evening but thats a wee bit late

 

i would consider starting your defence off along these lines

 

 

It is admitted that the claimant and Defendant entered into a contract

 

the express terms of that contract were that the claimant would carry out XXXXXX work and the defendant would pay the sum of XXXX on completion of the work

 

the Supply of Goods and Services Act 1982 implies into contracts such as this that the work will be carried out with reasonable skill as set out in s13 of the act

 

there are the following defects with the work and i believe that this was not carried out with reasonable skill as required by the act under section 13 which states

 

13. Implied term about care and skill.

In a contract for the supply of a service where the supplier is acting in the course of a business, there is an implied term that the supplier will carry out the service with reasonable care and skill.

 

 

 

im sure that someone will come along and add to or rewrite this but im really sorry as i have to go out or i would have more time to write out suggested a defence for you

 

 

regards

paul

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just to add, IMHO you certainly need to make a reference to the SOGAS 1982 as its key to your defence.

 

if i had more time.........

 

still there area lot of people on here who will be able to help you Tigs

 

 

Good Luck and sorry i cant help any further at the mo

 

regards

paul

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Thanks Paul - i'll just kep annoying people until they help now!

All help is merely my opinion only - please seek legal advice if you need to as I am only qualified in SEN law.

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Hi Tiglet,

 

You won't be able to amend your defence without putting in an application to amend on form N244 and paying the appropriate fee.

 

Its your allocation questionairre that needs to be in tomorrow isn't it?

 

If you want to amend your defence you can do this later if you wish.

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Just to make this clear - I will need to fill in a N244 to amend the earlier defence I submitted.

 

So, on the AQ, do I just need to fill in the basic details and state I will be submitting a N244? I have just had a decorator round who says the work is substandard and will cost aprrox. £400 to correct.

All help is merely my opinion only - please seek legal advice if you need to as I am only qualified in SEN law.

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Sorry Tiglet,

 

I thought that you had to have the defence in today,

 

as Zoot said the N244 is required to amend the defence http://www.hmcourts-service.gov.uk/courtfinder/forms/n244_0400.pdf

 

as for the Allocation Questionaire, its for case management purposes and is designed to help the judge decide what track the case should be allocated to etc

 

it should be fairly straight forward to do,

 

if you get stuck shout and someone will be there to help,

 

im in for the next 10 mins them im off out on the school run and then out for a meeting so im not going to be around much im afraid

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OK, so I just send in the AQ's today and then worry about sending in the amended defence on Monday when I've had time to work on it over the weekend?

All help is merely my opinion only - please seek legal advice if you need to as I am only qualified in SEN law.

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So, on the AQ, do I just need to fill in the basic details and state I will be submitting a N244?

 

Yes its just the basic details needed. You can mention the N244 but you do not have to.

 

I have just had a decorator round who says the work is substandard and will cost aprrox. £400 to correct.

 

 

Can you tell me how much the work was to cost in total?

Did you pay a deposit?

Was the entire payment due on completion of the works?

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