Full & Final Settlement?

[JonCris]

Guildford what?

[BankFodder]

Guildford what?

 

Yes, I agree unreservedly.

[JonCris]

Yes, I agree unreservedly.

 

OK I'll go along with it ....................... 'BEETROOT'

[BOF1951]

Also if you know the name of the other dissatisfied customer it won't, even at this stage, do any harm to ask them if they will bare witness for you in any proceedings

 

I spoke to the other customer yesterday. We had a long and interesting conversation, the gist of which is that they have had no contact from the company since they refused to pay the balance and demanded their deposit back and that they are happy to give evidence on our behalf if this should ever get before a Court. We agreed to keep each other informed of any developments.

 

My letter will be delivered tomorrow morning, Monday 23rd, by Special Delivery. This could be an interesting week!

 

BOF

[BOF1951]

Well they are not hanging around!

In this morning's post were the claim forms from Northampton County Court 'Bulk Centre'. The issue date on the forms is shown as the 20th June. I have 14 days from the 'Date of Service' (5 days from the issue date) to either role over and pay up, or send in the 'Acknowledgement of Service' and then submit my defence to the Court no later than 28 days after the 'Date of Service' (9th & 23rd July).

 

Right then! I was going to go on line and acknowledge the service, ticking the box that says 'I intend to defend all of this claim'. I presume the solicitors will be informed of this by the Court?

 

Has anyone any suggestions as to the layout if my defence and counter claim? I can use separate sheets of paper, so do I insert photographs at this point, or leave them until we get into the Court?

 

I am still waiting to hear back from a number of kitchen fitting firms and fitters; if I can get them to produce their report within the 28 days, do I include this with my defence or keep it for the Court?

 

I got bored with watching England get stuffed again by the All Blacks, so I started to draw up a list of costs incurred so far. For my 'Rate Per Hour' I used my old annual salary (I took early retirement), divided that by 52 weeks and then by 41 hours. I have used this figure for my hourly rate. Is that reasonable?

 

What does a solicitor charge for reading and answering a letter? I know that is a bit like “how long is a piece of string?”, but what is a solicitor at the lower end of the market likely to charge?

 

Should I go on the attack and send a copy to the solicitor saying, “these are my costs so far sunshine, and they are increasing daily!”

 

BOF

 

[BOF1951]

UPDATE:

 

 

I have received an acknowledgement from the solicitors, briefly saying they are seeking their client's instructions.

 

I have been in contact with the other customer again. They still have had no contact from this company and are of the opinion that they never will. They have refused to pay the balance of the invoice and have demanded their deposit back. However, they believe that is never going to happen without court action, and even if they were to win the action, the company would just ignore the ruling.

 

There is the possibility that this company has previously done a 'phoenix', so I will register my counter claim via the court website, but wait and see what the solicitors come back to me with before I confirm any dates for the independent survey. There is little point in paying out money if the chances of getting it back are slim.

 

Cheers,

BOF

[BOF1951]

We received a reply from the solicitors today, after nearly three weeks, and its a pearler!

 

The solicitors claim that their clients only received our cheque, not the accompanying letter that stated “If you cash this cheque, you accept it as full & final settlement etc”; Therefore they are not bound by the terms of my letter! The solicitors then go on to claim they did not receive the copy of the Royal Mail signed Proof of Delivery I enclosed with my letter to them.

 

What are the odds of both the company claiming against us, and the firm of solicitors acting for them, not receiving important documents relating to the case? On the balance of probabilities, not very high. It will be interesting to see how they answer this in Court.

 

I am about to submit our counterclaim via the internet. Do I just state a total figure we are counterclaiming, or should I break it down into sections such as our costs so far, the cost of the independent inspection and the cost of the repair?

 

The full cost of the repair is difficult to give until the worktop is removed and the floor units examined properly. Once that is done we will know how many units will have to be replaced. If the worktop comes off cleanly, it could only be a few. If there are problems getting it off, then it could be all of them, as well as requiring the wall to be replastered. Should I put the ‘Worse case scenario’ figure in my claim?

 

Also, what hourly rate would the Court accept for my time trying to sort out the mess caused by the worktop company, dealing with all the correspondence that has been flying backwards and forwards, as well as putting together our counterclaim? I am retired, but I worked out what my employer was happy to pay me at an hourly rate and have claimed that. Is that reasonable?

 

Cheers,

BOF

[BOF1951]

I have replied to the solicitors and sent another copy of the Royal Mail delivery notice in a separate letter. Both letters were sent by Royal Mail Next Day delivery. Now let them try and claim they did not receive anything! I have asked the solicitors to go back to their clients and, after speaking to the person whose name and signature is on the delivery receipt, ask them if they still want to claim they only received my cheque?

 

The solicitors signed for my letters on Friday and I submitted my counterclaim on line on Saturday. The Court will action that on Monday. We are counterclaiming for just over £3,000; Against their claim of £1,450 (which is mathematically wrong in so many ways!)

 

Should be a interesting week!

BOF

Edited July 31, 2008 by BOF1951
Wrong figured entered!

[BOF1951]

Well what do you know!

 

I received a letter last Friday, 25th July, from the solicitors acting for the company, saying they had received my counterclaim and asking for my agreement to a 28 day extension. On Monday I replied to their letter, agreeing to their request.

 

On Tuesday the solicitors wrote to say they were no longer acting for the company and I should address all correspondence to them direct.

 

On Wednesday I received a letter from the company with a copy of their defence against my counterclaim. No covering letter, just the copy. Apart from the appalling English and grammar, it is factually incorrect. They claim this is the first they have been told of the 'damage' to our kitchen; We are a pair of crooks trying to avoid paying their invoice; We refused them entry to try and repair the 'damage' they did not know about and did not cause (?); We are a pair of crooks; We are refusing to have any contact with them other than by letter (??); We are a pair of crooks; They only received a 'token' payment; We are a pair of crooks; We refused to give them any photographic evidence; We are a pair of crooks; etc., etc. The really stupid thing is, all the allegations they make can be easily answered by producing the emails and letters they received and for which we have their signatures and the dates of receipt. Why do they think we only correspond with them by letter? Do you suppose they are naturally dumb, or is there a special government course they have to attend in order to be awarded a Certificate of Stupidity?

 

I wonder why their solicitors have pulled out?

 

I was not planning to respond to their defence now, I will leave that for Court as and when we get there. I have completed the Allocation Questionnaire and sent it back to my local County Court where the case has been transferred to.

 

I presume now we wait until the Court sets a date?

 

BOF

[JonCris]

They will transfer your matter to another more convenient court

[BOF1951]

I thought they had already done that as their claim was issued by the Northampton Bulk Centre, but I had to return the Allocation Questionnaire to my local County Court. On that form was a question asking me if I was happy to have my local County Court deal with the matter. I said "Yes".

 

Not that it will be a problem, but is there a possibility the other party will try and get it transferred to their local court?

 

BOF

[poppynurse]

It tends to be heard in the defendants local court

[JonCris]

Not necessarily poppy. Anyway I assume the OP & the builder come under the same local courts jurisdiction

[BOF1951]

I've lost the plot on who the defendant is and who the claimant is!!!

 

The company is suing me for the balance of their bill.

I am counterclaiming against them for the reasons stated above.

 

So who exactly is who now?

 

Cheers,

BOF

[BOF1951]

FINAL UPDATE – WIN!

My apologies for the very long delay in closing this thread, so much has happened since the court case that it dropped off my radar.

 

We had our day in Court, once in an actual Court and again in March this year, at our home on a site visit. It would take too long to give all the details, all the twists and turns, but we won our case.

 

There is a lot of excellent advice on this site about what to do before and when you get to Court, so these are just a few notes of what we experienced and what may be of interest.

 

1.When you state your case, watch the speed of the Judge as he or she writes their notes; slow down if necessary.

 

2.If the Judge says something you do not like, keep it to yourself. Upsetting the Judge will do your case no good.

 

3.You know you are telling the truth and the other side is lying through their teeth, but if they are more convincing, better prepared, the court will believe them. It is a sad fact, but a court has more to do with ‘image’ and who comes across the more professional than with the actual truth. The people who tried to screw you with shoddy workmanship and materials will have no scruples about lying to a Court.

 

4.Lawyers are often no better than the pond life they are representing, just more articulate, so do not lose your temper or react openly when you hear the lies, that is what they want you to do. State your case as clearly as you can; listen carefully to the question before you answer; be polite and courteous to the other side, even though you want to rip their lying heads off!

 

5.Dress appropriately. We turned up clean and smartly dressed, with two binders of evidence and a large amount of photographs. The Claimant, apparently a Director, turned up in jeans and with a crumpled single piece of paper as his evidence.

 

6.Do not directly quote the Law to a Judge. They will allow lawyers to do so, that is part of the ritual, but they can get a bit prickly if a civilian does it. Try to be a bit circumspect and vague, lots of “As I understand it…” tend to go down well as it lets the Judge impress everyone with his or her knowledge.

 

7.[Giving someone a few minutes at the end of the work being completed is not sufficient time for them to make an informed decision as to the quality and correctness of the work, and therefore any such signed pieces of paper are worthless.] The Claimant’s entire case was that my wife had signed to say she was satisfied with the work. The Judge immediately ruled it out and said that the Claimant’s company would be well advised to reconsider their procedures in this matter.

 

8.[Did you know that if you are sued for the value of a cancelled cheque, you would lose?] We certainly did not. The judge explained that a cheque is considered the same as cash. By signing and issuing a cheque to the Claimant’s company at the time of completion of the work, then later cancelling it before it can be honoured by our bank, no matter what the reasons, we had effectively ‘stolen’ the value of the cheque from the Claimant. What we should have done is either not issued a cheque at the time, or honoured the cheque and sued the company for our money back. However, said the Judge, “that is not what we are here for today”.

 

9. You can never have too many photographs.

 

10. Try somehow to get the Judge to undertake a site visit. We were lucky, the Judge having seen the photographs actually suggested one. Although you are still under the Jurisdiction of the Court, you have ‘home advantage’ and no one is going to stop your wife having her say in her own kitchen. In the end, it never came to that; the Claimant, realising that once the Judge saw the work he could no longer pretend it was to an acceptable standard, bottled out and never turned up.

 

11. Before showing the shoddy workmanship, point out the basics first. We demonstrated that the kitchen floor was level, the walls were vertical and that the kitchen units were installed correctly. Then we went on to show that the worktop was higher at one end than the other, it was thicker at one end than the other, how the units had been knocked about, the poor sealants used etc.

 

12. Listen very carefully to what the Judge is asking and try to identify what he or she is actually wanting as an answer. Again, consider your answer before you reply. Having seen all the problems with the worktop, having made copious notes, the Judge gently led us on to say what we wanted the outcome to be.

 

Finally,

a. Keep detailed, contemporaneous notes of everything.

 

b. Avoid talking to ‘the other side’ on the telephone. Write to them to say that you will not discuss this matter on the phone and all contact must be in writing, this way both sides can be sure of what was said and what was not said. If they do call, state again that you are not prepared to discuss the matter on the phone and hang up, do not be caught up in a conversation. Make a note of the date and time of this call.

 

c. Send all correspondence by Royal Mail Special Delivery, a bit costly but it pays off in the end. The claimant denied the receipt of a letter, until I produced the signed receipt. The look on his face was priceless!

 

Cheers,

BOF