Solicitor trying to make me pay £3000 for case in Small Claims Court

[Darren007]

I have issued proceedings against my freeholder in respect of monies he has held back for service charges which he has refused to provide proof of expenditure under the Landlord Tenant Act.

 

The monies he has held back were to be paid to me in respect of an insurance claim settlement when my boiler leaked and caused about £7K's damage.

 

The Freeholder has instructed Solicitors and is trying to have the claim struck out. We have a 30 minute hearing tomorrow (just got papers on Friday) and he has sent me a schedule of the Defendants cost and asking that the court order that I pay these.

 

Can he do so? Is there any legal argument that I should present over this apart from the line of argument I have presented in my Particulars of Claim?

 

Any help would be appreciated.

 

Thanks

 

Darren

[legalpickle]

If the claim is for £7k then it would most likely not proceed in the small claims court.

 

He has sent you a 'Schedule of Costs'. This doesn't mean you have to pay them, he will be asking the court to order that you pay them. If you lose - and contest them - then it would be referred to a Costs Judge unless the Judge can reach an agreement between both of you.

 

If it is small claims, then this would be based on CPR 27.14[g] which allows for costs in certain scenarios. I have quoted CPR 27.14 that deals with costs in small claims cases below.

 

Also, costs for an Application hearing are not covered by CPR 27, as it is an Application, not small claims. This is especially the case where the Application is made before allocation to the small claims track.

 

In short I recommend you make sure you understand your claim in full and can answer any questions the Judge may pose. I also recommend you look through the reasons they are asking to have your claim struck out and try to contest these if you can. Sometimes the reason this happens is because the Claimant doesn't word their case properly. In such a case, if you behave right you may get the right to issue an amended Particulars of Claim but will likely be liable for their costs in that hearing and preparing for it.

 

Costs on the small claims track

 

27.14

 

(1) This rule applies to any case which has been allocated to the small claims track unless paragraph (5) applies.

(Rules 44.9 and 44.11 make provision in relation to orders for costs made before a claim has been allocated to the small claims track)

 

(2) The court may not order a party to pay a sum to another party in respect of that other party’s costs, fees and expenses, including those relating to an appeal, except –

(a) the fixed costs attributable to issuing the claim which –

(i) are payable under Part 45; or

 

(ii) would be payable under Part 45 if that Part applied to the claim;

 

 

(b) in proceedings which included a claim for an injunction or an order for specific performance a sum not exceeding the amount specified in the relevant practice direction for legal advice and assistance relating to that claim;

 

© any court fees paid by that other party;

 

(d) expenses which a party or witness has reasonably incurred in travelling to and from a hearing or in staying away from home for the purposes of attending a hearing;

 

(e) a sum not exceeding the amount specified in the relevant practice direction for any loss of earnings or loss of leave by a party or witness due to attending a hearing or to staying away from home for the purposes of attending a hearing;

 

(f) a sum not exceeding the amount specified in the relevant practice direction for an expert’s fees; and

 

(g) such further costs as the court may assess by the summary procedure and order to be paid by a party who has behaved unreasonably.

 

 

(3) A party’s rejection of an offer in settlement will not of itself constitute unreasonable behaviour under paragraph (2)(g) but the court may take it into consideration when it is applying the unreasonableness test.

 

(4) The limits on costs imposed by this rule also apply to any fee or reward for acting on behalf of a party to the proceedings charged by a person exercising a right of audience by virtue of an order under section 11 of the Courts and Legal Services Act 19901 (a lay representative).

 

(5) Where –

(a) the financial value of a claim exceeds the limit for the small claims track; but

 

(b) the claim has been allocated to the small claims track in accordance with rule 26.7(3),

 

the small claims track costs provisions will apply unless the parties agree that the fast track costs provisions are to apply.

 

(6) Where the parties agree that the fast track costs provisions are to apply, the claim and any appeal will be treated for the purposes of costs as if it were proceeding on the fast track except that trial costs will be in the discretion of the court and will not exceed the amount set out for the value of claim in rule 46.2 (amount of fast track trial costs).

[Darren007]

Sorry I should have made it clear.

 

The claim against the freeholder was for £4820 but has been reduced to £685 (being the amount in dispute for service charges) which he has witheld from my insurance settlement.

 

Initially, the Insurers advised that they had sent £4820 to the Freeholder.

[TheChancellor]

subbing.

 

Good Luck Darren:D

[legalpickle]

Sorry I should have made it clear.

 

The claim against the freeholder was for £4820 but has been reduced to £685 (being the amount in dispute for service charges) which he has witheld from my insurance settlement.

 

Initially, the Insurers advised that they had sent £4820 to the Freeholder.

On what basis are they claiming your claim should be struck out?

 

subbing.

 

Good Luck Darren:D

You can subscribe to a thread by selecting Thread Tools and then Subscribe to this Thread at the top right of the first post.

[TheChancellor]

 

You can subscribe to a thread by selecting Thread Tools and then Subscribe to this Thread at the top right of the first post.

 

Thanks LP.

Sorry didn't know that - I thought I had to contribute.

[Darren007]

The Argument presented by the Solicitors is quoted verbatim below:-

 

 

 

We ??? Solicitors acting on behalf of XXXXX imntend to apply for an order that the Claimant's claim be struck out and the Claimant ordered to pay the Defendant's costs because the claim has no merit and discloses no cause of action, as set out in the Defence dated 22 May 2008 and the attached Witness Statement.

 

We intend to rely on the attached Witness statement.

 

Any help greatly appreciated.

 

Darren

[legalpickle]

The Argument presented by the Solicitors is quoted verbatim below:-

 

 

 

We ??? Solicitors acting on behalf of XXXXX imntend to apply for an order that the Claimant's claim be struck out and the Claimant ordered to pay the Defendant's costs because the claim has no merit and discloses no cause of action, as set out in the Defence dated 22 May 2008 and the attached Witness Statement.

 

We intend to rely on the attached Witness statement.

 

Any help greatly appreciated.

 

Darren

I'd need to know what was written in the Witness Statement.

 

How was your claim formulated? Can you copy here the text of your claim, their defence and witness statement?

 

What they are saying is that your claim doesn't disclose a cause of action, i.e. a reason for the claim. If this is right then it would be the same case as I advised of in my earlier post that Claimant's don't know how to word their Particulars of Claim. In such a case if the Judge agrees with the Defendant you will be ordered to pay at least some of the Defendant's costs and may be given the right to submit an Amended Particulars of Claim within 14 or 28 days, normally 14 days for amended documents.

[Darren007]

This is what I put in the Money Cliam online form:-

 

Monies owed in respect of an insured peril

at XXX.

The Defendant is refusing to release the

insurance payment settlement, which was

accidentally paid to the Defendant by the

Insurers. The insurance claim is in respect

of a of an escape of water which the

Claimant suffered in his flat from a

leaking boiler.

The claimant claims interest under section

69 of the County Courts Act 1984 at the

rate of 8% a year from 24 February 2008 to

22 April 2008 of £63.56 and also interest

at the same rate up to the date of judgment

or earlier payment at a daily rate of £1.10.

 

The Defendant has tried to argue that some

monies are owed to him under his claim for

service charges. This is untrue as the

claim for service charges has been referred

to the Leasehold Valuation Tribunal and is

in dispute.

 

 

 

The Defendant then instructed a Solicitor and they made a PARt 18 request which reads as follows:-

 

 

I have highlighted the Defendant’s questions and answered below.

 

(a) Please provide date when the boiler leaked

The Claimant reported the escape of water claim to XXX Insurers, who are the buildings insurers for XXX on XXX.

 

(b) Please provide full particulars of the alleged damage

The Claimant noticed that the floor area beneath the kitchen units and where the boiler is in situ was bouncy and the laminate flooring had warped. On further investigation, it was discovered that the boiler was leaking water which was dripping behind the access panel covering the water pipes causing damage to the kitchen units and flooring. The damage had spread across the kitchen floor, part of the living area and had damaged part of the kitchen cabinetry and worktop.

 

© Please confirm that the maintenance and responsibility of the boiler ios that of the Claimant

 

This issue is not in debate.

 

(d) Please provide copy of the Claimants Contents Insurance cover in relation to losses and damage by inter alia escape of water from boiler

This point is not applicable as the damage caused is covered under the buildings insurance policy under an “escape of water claim” heading.

 

(e) Please provide full particulars as to when it is alleged that the Claiamnt received a sum of £4500 in respect of the insurance claim.

XXXInsurers appointed XXX to inspect the damage and it was agreed

that a cheque for circa £4850 would be sent to the Claimant to cover the cost of repairs. The Defendant subsequently sent the Claimant a cheque for £335.76. The Defendant claimed that he had received a cheque for £920 (but failed to enclose proof) and then deducted £584.24 from the Claimant for service charges. The Defendant has been put to strict proof by the Claimant for costs sought but is refusing to substantiate service charges purported to be owed. Further, the Defendant has charged the Claimant a 10% service charge despite there being no such allowance under the terms of the lease applicable to the Claimants flat.

 

XXX advised the Claimant that a cheque for circa £4820 would be sent to the Claimant and it is the Claimants understanding that this amount was sent to the Defendant for the Claimant.

(f) Please provide all documents appertaining to acceptance of liability by the insurance company in respect of the claim.

 

Please find enclosed copies of correspondence between XXXInsurance, XXX and the Defendant. This would surely appertain to acceptance of liability by the Insurance Company. The fact that the Defendant has received a sum of money in respect of the escape of water insurance claim relating to the Claimants flat (which the Defendant subsequently paid the Claimant part of the money) would confirm that the Insurers have accepted liability and that this is an insured peril.

 

Details below:-

 

(i) Claim form completed by XXXof Loss Adjusters;

(ii) Letter addressed to Defendant from XXX in respect of Claimants escape of water claim;

(iii) Letter from Defendant to Claimant dated 8 April 2008 in respect of monies received from AXA Insurance.

 

The Claimant has also served a subject access request on the appointed loss adjusters and will forward further proof of acceptance of the claim, once the appointed loss adjusters comply with the Claimants request. This process should take about 40 days.

STATEMENT OF TRUTH

 

I believe that the facts stated in this Response to Part 18 to be true.

 

 

I am trying to load up the Defence served but hope this helps.

 

Any help would be appreciated.

 

Thanks

 

Darren

[legalpickle]

This is what I put in the Money Cliam online form:-

 

Monies owed in respect of an insured peril

at XXX.

The Defendant is refusing to release the

insurance payment settlement, which was

accidentally paid to the Defendant by the

Insurers. The insurance claim is in respect

of a of an escape of water which the

Claimant suffered in his flat from a

leaking boiler.

The claimant claims interest under section

69 of the County Courts Act 1984 at the

rate of 8% a year from 24 February 2008 to

22 April 2008 of £63.56 and also interest

at the same rate up to the date of judgment

or earlier payment at a daily rate of £1.10.

 

The Defendant has tried to argue that some

monies are owed to him under his claim for

service charges. This is untrue as the

claim for service charges has been referred

to the Leasehold Valuation Tribunal and is

in dispute.

 

Money Claim Online is not recommended for issues other than simple debt collection claims. That is the main purpose for it. It is impossible to make a claim sufficient clear in MCOL. I would also say from looking at that short text that your claim was not sufficiently particularized, and if I was the Defendant would have made an immediate application to strike it out together with filing a defence that the matter was not sufficiently particularized and should therefore be struck out pursuant to CPR 3.4.

 

I would draft a new Particulars of Claim immediately in case the Judge agrees with the Defendant and ask to make an Application - not on paper but in the hearing - to submit an amended Particulars of Claim. Prepare the PoC, but don't ask to submit it unless the Judge agrees to strike out your current claim.

 

 

The Defendant then instructed a Solicitor and they made a PARt 18 request which reads as follows:-

 

 

I have highlighted the Defendant’s questions and answered below.

 

(a) Please provide date when the boiler leaked

The Claimant reported the escape of water claim to XXX Insurers, who are the buildings insurers for XXX on XXX.

 

(b) Please provide full particulars of the alleged damage

The Claimant noticed that the floor area beneath the kitchen units and where the boiler is in situ was bouncy and the laminate flooring had warped. On further investigation, it was discovered that the boiler was leaking water which was dripping behind the access panel covering the water pipes causing damage to the kitchen units and flooring. The damage had spread across the kitchen floor, part of the living area and had damaged part of the kitchen cabinetry and worktop.

 

© Please confirm that the maintenance and responsibility of the boiler ios that of the Claimant

 

This issue is not in debate

I don't understand. If you're responsible for the maintenance of the boiler, then by default you are responsible for the damage it causes, no?

(d) Please provide copy of the Claimants Contents Insurance cover in relation to losses and damage by inter alia escape of water from boiler

This point is not applicable as the damage caused is covered under the buildings insurance policy under an “escape of water claim” heading.

I would answer that - if you are not claiming for damages to your items - then it should not be covered by your insurance. If you are, then your answer is invalid.

(e) Please provide full particulars as to when it is alleged that the Claiamnt received a sum of £4500 in respect of the insurance claim.

XXXInsurers appointed XXX to inspect the damage and it was agreed

that a cheque for circa £4850 would be sent to the Claimant to cover the cost of repairs. The Defendant subsequently sent the Claimant a cheque for £335.76. The Defendant claimed that he had received a cheque for £920 (but failed to enclose proof) and then deducted £584.24 from the Claimant for service charges. The Defendant has been put to strict proof by the Claimant for costs sought but is refusing to substantiate service charges purported to be owed. Further, the Defendant has charged the Claimant a 10% service charge despite there being no such allowance under the terms of the lease applicable to the Claimants flat.

 

XXX advised the Claimant that a cheque for circa £4820 would be sent to the Claimant and it is the Claimants understanding that this amount was sent to the Defendant for the Claimant.

So basically you have no evidence, only hearsay?

(f) Please provide all documents appertaining to acceptance of liability by the insurance company in respect of the claim.

 

Please find enclosed copies of correspondence between XXXInsurance, XXX and the Defendant. This would surely appertain to acceptance of liability by the Insurance Company. The fact that the Defendant has received a sum of money in respect of the escape of water insurance claim relating to the Claimants flat (which the Defendant subsequently paid the Claimant part of the money) would confirm that the Insurers have accepted liability and that this is an insured peril.

Details below:-

 

(i) Claim form completed by XXXof Loss Adjusters;

(ii) Letter addressed to Defendant from XXX in respect of Claimants escape of water claim;

(iii) Letter from Defendant to Claimant dated 8 April 2008 in respect of monies received from AXA Insurance.

 

The Claimant has also served a subject access request on the appointed loss adjusters and will forward further proof of acceptance of the claim, once the appointed loss adjusters comply with the Claimants request. This process should take about 40 days.

So basically you issued without sufficient information?

I am trying to load up the Defence served but hope this helps.

 

Any help would be appreciated.

 

Thanks

 

Darren

 

A few questions;

1. What is the claim actually for? If damage was to the flat then the landlord must repair it, and should retain the full sum. If damage was to your belongings then it is your responsibility and your contents insurance should cover it.

2. What evidence do you have to support your claim? You are claiming that you are owed X because the landlord received X+Y and only paid you Y. For that a normal Particulars of Claim would be something like this;

 

The Claimant was renting the property xx xxxx xxx, xxxxx, xx xxx from the Defendant between xx/xx/xx and xx/xx/xx.

 

On xx/xx/xx damage was caused to the property at by a leak from a faulty boiler. The Defendant received a payment of £xxxx to cover the damages caused to the Claimant's property and was obliged to pay this to the Claimant. The Defendant withheld £xxx from the Claimant on the alleged basis of an alleged 10% service charge that the Defendant claimed he had the right to take out of the payment to the Claimant and also alleged owings by the Claimant to the Defendant that are in dispute and being dealt with at the xxxxx Tribunal under case number: xxxxx.

 

The Claimant therefore contends that he is entitled to the sum unpaid by the Defendant due to no rights of the Defendant to any service charge or to retain the monies he claims are due to him from the Claimant. The Claimant also claims interest at 8% per annum [pursuant to s69 of the County Courts Act 1984] and the court fee of £xx.

 

The Claimant attaches all relevant documents relating to this matter as evidence including a numbered breakdown of the documents. Each document has the corresponding number in the top right hand corner. If there is more than one page for the document, then the page numbers are listed as '.pg' after the document number, followed by the page number.

 

Statement of Truth.

 

 

That is a very broad idea because I don't understand the whole claim and haven't seen the defence or witness statement.

 

What time is the hearing tomorrow?

 

When you attach the documents to your post PM a member of the site team to request a speedy approval due to the matter of urgency in this matter.

[Darren007]

Hi Legalpickle

 

I'm not sure if I made myself clear earlier.

 

I own a flat in the building and the Freeholder was sent my Insurance settlement cheque by accident by the Insurers.

 

The Freeholder then deducted monies for service charges which were in dispute as he had failed to serve the necessaey notices and provide any invoices/proof etc.

 

The Insurance company had first advised me that they had sent the full insurance settlement to the Freeholder of £4820 but after 8 weeks then confirmed that it was only £920. I immediately wrote to the Freeholder and his Solicitor advising him that my dispute with him was now for £685 as Insurers had advised that they had sent him £920 and that the balance monies had now been paid to me and if we can deal with service charges issues by him providing proof of expenditure etc. then we can sort this out. Repeatedly, no response from him.

 

I have copies of these letters and will take them to court with me.

[Darren007]

This is the DEFENCE served by the Solicitors.

 

1. The Particulars of Claim ("POC") are inadequately pleaded. The defendant reserves the right subsequently to amend this Defence and/or apply for the POC to be struck out as disclosing no cause of action.

 

2. Without Prejudice to the foregoing, the Defendant admits:-

 

2.1 it is the freeholder of the building known as and situate at XXXXX, within which the Claimant is lessee of Flat 7;

 

2.2 that there was an incident in the building involving an escape of water which led to an insurance claim by the Defendant.

 

3. The Defendant asserts:-

 

3.1 under clause 5(4) of the Claimants lease of Flat 7 in the building, the Defendant bears an obligation to insure the building against amongst other things, loss or damage by burst pipes;

 

3.2 The Defendant has at all material times fulfilled the said obligation by entering in to appropriate contracts of insurance

 

3.3 under the said clause 5(4) of the said lease, the Defendant is obliged to cause all monies received in respect of such insurance to be laid out in rebuilding, repairing or otherwise re-instating the building;

 

3.4 the Defendant is, therefore, under no obligation contractual or otherwise to make payment of any insurance monies received in respect of the said or any such inciden to the Claimant.

 

4. The Defendant further asserts:-

 

4.1 under a contract of insurance in force at the time of the said incident, the insurer has paid a sum of money to the Defendant

 

4.2 such payment was not by mistake but inpursuance of the contract of insurance in force at the time

 

4.3 The Defendant is under no obligation contractual or otherwise to pay any part of the money received to the Claimant

 

4.4 In any event, the sum paid by the Insurer to the Defendant was less than the sum claimed by the Claimant in this action

 

5.0 In the cicumstances as set out above, and save as admitted above, the Claimant claim is denied in its entirety.

 

 

 

I Would like to point out that I did write to the Solicitors advising that the Insurers had confirmed that they had paid the Defendant £920 but that th Defendant still needs to provide proof for the deductions that he has made. No respons eot 2 of my letters asking them to address this.

[TheChancellor]

Am I missing the easy bit?

 

Was the cheque made out to you or the LL?

 

If it was made out to him then I would have tackled the insurance company as that is their fault & if it was made out to you I would have called in the police.

[legalpickle]

Ok. I don't understand this claim at all.

 

1. Your Particulars of Claim are far from complete and give rise to most of the misunderstanding. I would not be surprised in the slightest if it was struck out.

 

2. The Defendant is basically claiming that they are entitled to the insurance monies. Why? What is their basis for this claim? Who was named on the insurance policy?

 

What you need to do is prepare a sheet with the statement of facts, dates and amounts as well as all details.

 

Post a draft here, with everything but names [initial the names]. The amounts are not confidential and neither are the dates. The only confidential bits are the addresses and the names. So initial the names, name of the road, city and remove the postcode. This way it will be easier to amend and for me to understand what you are writing and who is who, rather than a bunch of x's.

 

The top of all documents should have the header with 'IN THE ... COUNTY COURT' on the top right, 'CLAIM NO.: ...' in the top left. 2 lines below that in the centre your name in capitals, then on the next line at the right 'CLAIMANT', 2 lines below that 'AND' in the centre, 2 lines below that the Defendant's name in the centre in capitals, the line below that 'DEFENDANT' on the right. As this is an application hearing and the Defendant made the application, 'CLAIMANT' should be substituted with 'CLAIMANT / RESPONDENT' and 'DEFENDANT' with 'DEFENDANT / APPLICANT'.

 

The top of the sheet should state something like;

For the purpose of this hearing and to assist the court in understanding the matters as the Claimant / Respondent pleads them, the Respondent lays out here, in short, concise terms the facts of this claim.

Then at the end of that, it should state;

On the next sheet is a list of all the relevant documents attached in numbered order.

At the top of the page with a list of all documents - preferably in date order from the oldest to the most recent - it should state;

The Respondent attaches the following relevant documents, details of which are listed here. The corresponding number of each document is in the top right hand corner. If there is more than one page of that document, then the page number is below that.

The documents should then be in numbered order and in square brackets at the end of the description of each document the number of pages, for example [1 page]. or [2 pages].

 

Once you've posted a draft here, I'll better be able to give you my views on the claim.

 

At this stage I'd say you're chances of getting away without paying any costs is low. However I would contest every cost and try to cut it down as much as possible and salvage the claim.

 

Learn for the future and prepare claims clearly and don't use MCOL. File it at your local County Court after filling in an N1 on the computer, if necessary attaching the Particulars of Claim if there is not enough room.

 

 

What times is the hearing tomorrow??? You're going to have a bit of work to do before it, so I would recommend trying to do it as quickly as possible. I am online most of the time but do have a bit of work today tomorrow and am at physio [or on the way their or back] between 11:15-12:15.

 

Am I missing the easy bit?

 

Was the cheque made out to you or the LL?

 

If it was made out to him then I would have tackled the insurance company as that is their fault & if it was made out to you I would have called in the police.

Not that simple. The OP's issued the claim already and not asked for advice beforehand obviously. So he's got to salvage what he can.

 

The Defendant isn't a landlord but freeholder from my understanding [thanks to the OP's clarifications].

 

I do however think that your thought of thinking is the way it should have been done unless I too am missing something here!

Edited October 12, 2008 by legalpickle
The Chancellor's smart post!

[Darren007]

ok Legalpickle. Woprking on this now and will have a Amended POC within an an hour.

 

Case is at 3.30 today.

[Darren007]

Morning Legalpickle

 

I hope this makes sense. it is long winded and I have tried to keep it as brief as I can. If you could help correct this, I would be grateful.

 

I'm not sure if there is anyway I can now add to this claim service cahrges in 2006 which had been paid. The amount is about £1000. The freeholder has been repeatedly obstructive.

 

 

STATEMENT OF FACTS

 

 

1. The Claimant is the leaseholder of a 2 bedroom flat known as Flat 7, (“the flat”).

 

2. The Defendant is the Freehold owner of the building known as AAA (“the building”). The Defendant has at all times been represented by a YYY who is a Director of Buildquest Limited.

 

3. Prior to this dispute to Claimant and Defendant (and other leaseholders within the building) have had a number of issues with the Defendant over his failings in dealing with the building and the fact that the building has been allowed to deteriorate. Further, the Defendant has been charging the Claimant service charges for the building which are unsubstantiated and which have not been served in the correct procedure under the Landlord and Tenant Act 1985. Further, the Claimant and 4 other leaseholders had agreed in end February 2008 to purchase the Freehold under the Landlord and Tenant Act 1985 and had instructed MWS to handle the purchase.

 

4. On 26 February 2008 the Claimant suffered an escape of water in which it was discovered that the boiler in the kitchen was dripping behind the access panel covering the water pipes causing damage to the kitchen units and flooring. The damage had spread across the kitchen floor, part of the living area and had damaged part of the kitchen cabinetry and worktop.

 

5. The Claimant notified Insurers immediately of the damage and was told on the phone that ABC Insurers would instruct IC to visit the property. The Claimant also wrote to the Defendant on 27 February 2008 at 14.43 hours by email advising of the damage and asking that he advise ABC Insurance and copy the Claimant in to all correspondence. The Defendant failed to respond.

6. The current Insurance policy is in the name of the Defendant. ABC Insurance advise that the Defendant should have named all the individual flat leaseholders as having an interest in the policy. As it stood, ABC Insurance were unable to speak to me directly because of the Data Protection Act and needed the Defendant’s permission to do so.

 

7. On 29 February 2008, Mr. from IC visited my property to examine the damage on behalf of ABC Insurance. The scopes of works were agreed in principal but needed ABC Insurance agreement. The Claimant was asked to obtain 2 estimates and forward to Mr.. It was agreed by Mr. that the settlement cheque would be made payable directly to the Claimant and not to the Defendant.

 

8. On 7 March 2008, the Claimant received a letter from GP Solicitors in respect of service charges due to the Defendant. The Claimant responded immediately asking that the Defendant provide copies of invoices/receipts for charges. No response received.

 

9. On 14 March 2008, Mr. from IC emailed the Claimant to advise that he had agreed the estimate and had instructed ABC Insurance to send a cheque payable to the Claimant for the sum of £4825. (£4925 being the cost of the works less the £100 excess in force under the terms of the policy).

 

10. On 19 March 2008, the Claimant wrote to Mr. to advise that the works to his flat had commenced and that further damage had been noticed to what works had been agreed.

 

11. On 20 March 2008, Mr emailed the Claimant at 12.25 hours to advise that the claim had now risen above his delegated authority and that he was referring the additional coatings back to ABC Insurance. Works stopped immediately at the Claimants flat pending ABC Insurers new instructions.

 

12. On 25 March 2008, the Claimant contacted ABC Insurance to chase up the insurance matter and was shocked to hear that ABC Insurance had received IC report and had paid the Defendant directly WITHOUT notifying the Claimant. ABC Insurance refused to disclose the amount of the settlement as the Claimant was not the policyholder. As the Claimant was expecting a cheque for £4825, it was understood by the Claimant that this was the amount that had been sent. ABC Insurance arranged for C Loss Adjusters to visit the property to inspect the further damage.

 

13. On 25 March 2008 at 11.13hours, the Claimant wrote to the Defendant regarding the settlement cheque sent by ABC Insurance and asking that the Defendant forward the payment in full (without deduction of his service charges which remain unsubstantiated). No response from the Defendant.

 

14. On 2 April 2008, the Claimant received an email from Ms of C Loss Adjusters at 17.43 hours trying to make an appointment for 3 April 2008 at 08.00 hours and advising that the Defendant wished to attend the meeting. I confirmed the appointment and copied the Defendant in to the reply.

 

15. On 3 April 2008, the Claimant met Ms at the flat. The Defendant failed to show up. Ms advised that she was unable to confirm or agree any works with me directly as the policy had been set up in the name of the Defendant. She advised that each leaseholder should be named on the policy and that she had asked the Defendant for written authority to deal with me directly and that he amend the details on the insurance policy but that the Defendant was being very unhelpful and evasive.

 

16. Ms advised that any further insurance monies would not be released to the Defendant but that I would need to get the Defendant to write in to ABC insurers instructing them to deal with the Claimant. I explained that the Defendant had failed to forward me the previous monies paid out in error. Ms Marsh was unable to confirm the previous amount paid out by ABC Insurance as she had not been given the details and was not allowed to do so under the Data protection Act. Ms advised that she was also unable to agree the new scope of works with me until the Defendant had provided a letter of authority and that any works I carried out was at my own risk. Ms did dial the Defendant in my presence but he said that he would not write in to the Insurers giving authority.

 

17. On 8 April 2008, Messrs Wool Simmonds wrote to the Defendant’s Solicitors in regards to the purchase of the Freehold and the service charges issues asking that copies of all invoices and supporting documents for service charges claimed be provided. No response received to this.

 

18. On 9 April 2008, the Claimant received a letter from the Defendant with a cheque for £335.76. The Defendant advised that he had received a settlement cheque from Insurers for £920 and was deducting service charges for 2007 in the sum of £584.24. The Claimant immediately responded to the Defendant advising that the settlement cheque was in the region of £4825 and that the Defendant provide a copy of the letter sent by ABC Insurers confirming the amount sent, that the service charges were in dispute until substantiated and that the Defendant write to ABC Insurance giving a letter of authority that they deal with the Claimant.

 

19. The Claimant was in deadlock as he could not deal with the Insurers, the Defendant was failing to address the issues, the flat had been reinstated but costs could not be agreed and Insurers would not confirm the sum paid to the Defendant in error.

 

20. On 23 April 2008, The Claimant finally issued proceedings against the Defendant as he had no other remedy to resolve this issue in the sum of £4820.

 

21. On 4 May 2008, the Claimant was served with a Part 18 request by the Defandants Solicitors. The Claimant responded to this request on 15 July 2008 after the Courts instructions to do so.

 

22. In end July 2008, after the Claimant had received a couple of interim settlement cheques by ABC Insurance, the Claimant served a Subject Access Request on C Loss Adjusters. Ms Helpful from C spoke to the Claimant and advised that she now understood that the Defendant had received a cheque for £920 and that she could not understand why the Defendant had simply not provided a copy of the Insurers letter to me or why the Defendant took so long to write in to give a letter of authority.

 

23. The Claimant immediately wrote to the Defendant’s Solicitors advising that the amount in dispute was now £584.24 and that if the Defendant could provide proof of the expenditure, this matter could be resolved quickly. No response received to this letter.

 

24. On 30 August 2008, the Claimant wrote to the Defendant again to ask that the dispute be resolved and that copy invoices etc. be provided. No response to this letter.

 

25. On 9 October 2008, the Claimant received a order from the court to advise that the Defendant had made an application on 4 September 2008 to have the case struck out and that the Claimant be ordered to pay approximately £3000 in legal costs. The Claimant believes that the Defendant Solicitors are intentionally dragging out this matter and that there is no justification for the attitude adopted by the Defendant or its legal representative. The dispute is simple to resolve and requires no more than 20 minutes of the Defendants time to address.

LEGAL PRINCIPLES

??????

 

 

REMEDY

• The Claimant claims the £584.24 being the .
  

9. Disbursements of £25.00.

 

11. In addition the Claimant claims interest pursuant to Section 69 of the County Courts Act 1984 on such sums as are found due at 8% (court rate) per annum, as follows:-

 

(a) Interest on the said sum of £584.24 at the daily rate of £0.13 for the period from 25 March 2008 to 13 October 2008. 195 days at £0.13=£25.35.

 

(b) Interest as above from 13 October 2008 to the date of Judgement or earlier payment.

 

© Costs

 

STATEMENT OF TRUTH

 

I believe that the facts stated in these Amended Particulars of Claim are true.

Signed

 

[legalpickle]

Morning Legalpickle

 

I hope this makes sense. it is long winded and I have tried to keep it as brief as I can. If you could help correct this, I would be grateful.

 

I'm not sure if there is anyway I can now add to this claim service cahrges in 2006 which had been paid. The amount is about £1000. The freeholder has been repeatedly obstructive.

No you can only add those if the claim was started from scratch and you paid the difference in court fees. You could ask the Judge if you can add those and add the extra fee.

 

Not far off.

 

This is not an Amended Particulars of Claim. It is a Statement of Facts for the benefit of the court. If the court agrees to strike out your Particulars of Claim, then - and only then - should you ask that the Statement of Facts be admitted as an Amended Particulars of Claim or that you can refile it as an Amended Particulars of Claim. Do not preempt that.

 

STATEMENT OF FACTS

 

1. The Claimant is the leaseholder of a 2 bedroom flat known as Flat 7, (“the flat”).

2. The Defendant is the Freehold owner of the building known as AAA (“the building”). The Defendant has at all times been represented by a YYY who is a Director of Buildquest Limited.

 

3. Prior to this dispute to Claimant and Defendant (and other leaseholders within the building) have had a number of issues with the Defendant over his failings in dealing with the building and the fact that the building has been allowed to deteriorate. Further, the Defendant has been charging the Claimant service charges for the building which are unsubstantiated and which have not been served in the correct procedure under the Landlord and Tenant Act 1985. Further, the Claimant and 4 other leaseholders had agreed in end February 2008 to purchase the Freehold under the Landlord and Tenant Act 1985 and had instructed MWS to handle the purchase.

4. On 26 February 2008 the Claimant suffered an escape of water in which it was discovered that the boiler in the kitchen was dripping behind the access panel covering the water pipes causing damage to the kitchen units and flooring. The damage had spread across the kitchen floor, part of the living area and had damaged part of the kitchen cabinetry and

No you didn't. Your flat suffered the escape of water. You suffering an escape of water would be akin to going to the loo . Amend this.

5. The Claimant notified Insurers immediately of the damage and was told on the phone that ABC Insurers would instruct Information Commissioner to visit the property. The Claimant also wrote to the Defendant on 27 February 2008 at 14.43 hours by email advising of the damage and asking that he advise ABC Insurance and copy the Claimant in to all correspondence. The Defendant failed to respond.

Whose insurers did you notify immediately? Make clearer. Amend and post up here.

 

6. The current Insurance policy is in the name of the Defendant. ABC Insurance advise that the Defendant should have named all the individual flat leaseholders as having an interest in the policy. As it stood, ABC Insurance were unable to speak to me directly because of the Data Protection Act and needed the Defendant’s permission to do so.

 

7. On 29 February 2008, Mr. from Information Commissioner visited my property to examine the damage on behalf of ABC Insurance. The scopes of works were agreed in principal but needed ABC Insurance agreement. The Claimant was asked to obtain 2 estimates and forward to Mr.. It was agreed by Mr. that the settlement cheque would be made payable directly to the Claimant and not to the Defendant.

I think you're wrong here. Why would somebody from the Information Commissioners Office - which deals with Data Protection Issues - visit your flat in this scenario? Amend clarifying this and repost here.

 

8. On 7 March 2008, the Claimant received a letter from GP Solicitors in respect of service charges due to the Defendant. The Claimant responded immediately asking that the Defendant provide copies of invoices/receipts for charges. No response has since been received.

I have made an amendment in red.

9. On 14 March 2008, Mr. from Information Commissioner emailed the Claimant to advise that he had agreed the estimate and had instructed ABC Insurance to send a cheque payable to the Claimant for the sum of £4825. (£4925 being the cost of the works less the £100 excess in force under the terms of the policy).

See and follow my note on 7 above.

10. On 19 March 2008, the Claimant wrote to Mr. to advise that the works to his flat had commenced and that further damage had been noticed to what works had been agreed.

 

11. On 20 March 2008, Mr emailed the Claimant at 12.25 hours to advise that the claim had now risen above his delegated authority and that he was referring the additional coatings back to ABC Insurance. Works stopped immediately at the Claimants flat pending ABC Insurers new instructions.

12. On 25 March 2008, the Claimant contacted ABC Insurance to chase up the insurance matter and was shocked to hear that ABC Insurance had received Information Commissioner report and had paid the Defendant directly WITHOUT notifying the Claimant. ABC Insurance refused to disclose the amount of the settlement as the Claimant was not the policyholder. As the Claimant was expecting a cheque for £4825, it was understood by the Claimant that this was the amount that had been sent. ABC Insurance arranged for C Loss Adjusters to visit the property to inspect the further damage.

13. On 25 March 2008 at 11.13hrs, the Claimant wrote to the Defendant regarding the settlement cheque sent by ABC Insurance and asking that the Defendant forward the payment in full (without deduction of his service charges which remain unsubstantiated). No response has yet been received from the Defendant.

Again I have made an amendment in red. Try not to write in short format.

 

14. On 2 April 2008, the Claimant received an email from Ms of C Loss Adjusters at 17.43 hours trying to make an appointment for 3 April 2008 at 08.00 hours and advising that the Defendant wished to attend the meeting. I confirmed the appointment and copied the Defendant in to the reply.

15. On 3 April 2008, the Claimant met Ms at the flat. The Defendant failed to show up. Ms advised that she was unable to confirm or agree any works with me directly as the policy had been set up in the name of the Defendant. She advised that each leaseholder should be named on the policy and that she had asked the Defendant for written authority to deal with me directly and that he amend the details on the insurance policy but that the Defendant was being very unhelpful and evasive.

16. Ms advised that any further insurance monies would not be released to the Defendant but that I would need to get the Defendant to write in to ABC insurers instructing them to deal with the Claimant. I explained that the Defendant had failed to forward me the previous monies paid out in error. Ms Marsh was unable to confirm the previous amount paid out by ABC Insurance as she had not been given the details and was not allowed to do so under the Data protection Act. Ms advised that she was also unable to agree the new scope of works with me until the Defendant had provided a letter of authority and that any works I carried out was at my own risk. Ms did dial the Defendant in my presence but he said that he would not write in to the Insurers giving authority.

 

17. On 8 April 2008, Messrs Wool Simmonds wrote to the Defendant’s Solicitors in regards to the purchase of the Freehold and the service charges issues asking that copies of all invoices and supporting documents for service charges claimed be provided. No response has been received to this.

See my notes above regarding short format.

18. On 9 April 2008, the Claimant received a letter from the Defendant with a cheque for £335.76. The Defendant advised that he had received a settlement cheque from Insurers for £920 and was deducting service charges for 2007 in the sum of £584.24. The Claimant immediately responded to the Defendant advising that the settlement cheque was in the region of £4825 and that the Defendant provide a copy of the letter sent by ABC Insurers confirming the amount sent, that the service charges were in dispute until substantiated and that the Defendant write to ABC Insurance giving a letter of authority that they deal with the Claimant.

19. The Claimant was in deadlock as he could not deal with the Insurers, the Defendant was failing to address the issues, the flat had been reinstated but costs could not be agreed and Insurers would not confirm the sum paid to the Defendant in error.

20. On 23 April 2008, The Claimant finally issued proceedings against the Defendant as he had no other remedy to resolve this issue in the sum of £4820.

21. On 4 May 2008, the Claimant was served with a Part 18 request by the Defandants Solicitors. The Claimant responded to this request on 15 July 2008 after the Courts instructions to do so.

 

22. Near the end of July 2008, after the Claimant had received a couple of interim settlement cheques by ABC Insurance, the Claimant served a Subject Access Request on C Loss Adjusters. Ms Helpful from C spoke to the Claimant and advised that she now understood that the Defendant had received a cheque for £920 and that she could not understand why the Defendant had simply not provided a copy of the Insurers letter to me or why the Defendant took so long to write in to give a letter of authority.

23. The Claimant immediately wrote to the Defendant’s Solicitors advising that the amount in dispute was now £584.24 and that if the Defendant could provide proof of the expenditure, this matter could be resolved quickly. No response received to this letter.

24. On 30 August 2008, the Claimant wrote to the Defendant again to ask that the dispute be resolved and that copy invoices etc. be provided. No response has been received to this letter.

25. On 9 October 2008, the Claimant received a order from the court to advise that the Defendant had made an application on 4 September 2008 to have the case struck out and that the Claimant be ordered to pay approximately £3000 in legal costs. The Claimant believes that the Defendant Solicitors are intentionally dragging out this matter and that there is no justification for the attitude adopted by the Defendant or its legal representative. In the Claimant's opinion this dispute is simple to resolve and requires no more than 20 minutes of the Defendants time to address.

 

The legal principles paragraph is irrelevant. There is no necessity for that. Claimants should be Claimant's. Defendants should be Defendant's.

 

REMEDY

1. The Claimant claims the £584.24 being the .

a) Disbursements of £25.00.

b) In addition the Claimant claims interest pursuant to Section 69 of the County Courts Act 1984 on such sums as are found due at 8% (court rate) per annum, as follows:-

i. Interest on the said sum of £584.24 at the daily rate of £0.13 for the period from 25 March 2008 to 13 October 2008. 195 days at £0.13=£25.35.

ii. Interest as above from 13 October 2008 to the date of Judgment or earlier payment.

c) Costs

You can't claim costs in small claims court, so remove that. Judgment is spelt without an 'e' between 'g' & 'm'. I have tidied things up a bit. Explain the 'Disbursements of £25' and clarify. £584.24 cannot be built up of the bits below that, the first line should be the total amount and then what it is built up of. Change costs to 'Court fee of'.

 

STATEMENT OF TRUTH

 

I believe that the facts stated in these Amended Particulars of Claim are true.

 

Signed

 

 

Nope, this isn't an amended PoC, so it should be 'in this document'.

 

 

 

Amend the above and repost as soon as possible. I'm going out now but will be back around 12:15-30, so should be able to help then.

 

You also haven't copied my proposed statement in my previous post to the top of this.

 

If I was in your position I would have done a Part 31 request before the claim and then issued the claim in you local County Court also asking for an order that the Defendant confirm to the insurance that you should be named on the policy.

[Darren007]

Dear Legalpickle

 

Thank you so much.

 

I have incorporated all your points and have prepared the document as advised. I am copying off relevant papers now and wil go off to court.

 

This hearing is for the Solicitors to have the case struck out.

 

I will post what happens later today.

 

Thank you very much

 

Darren

[legalpickle]

Dear Legalpickle

 

Thank you so much.

 

I have incorporated all your points and have prepared the document as advised. I am copying off relevant papers now and wil go off to court.

 

This hearing is for the Solicitors to have the case struck out.

 

I will post what happens later today.

 

Thank you very much

 

Darren

I suggest that you repost it here, before, so that I can proof it again.

[Darren007]

Hi Legalpickle

 

Things did not go well.

 

The Judge read my amended POC and decided that the Defendant had no case to argue as the monies had been paid back to me (albeit not the service charges). He argued that should be referred to the LVT.

 

I could live with all of this but he then awarded £2700 costs against me.

 

I showed him numerous correspondence that I wrote to the Defendant and their Solicitor to try and rsolve this matter but the Judge said that I should have had the case withdrawn and settled on costs directly or made an application to the court earlier. I did show him 3 letters sent in the last 2 months asking the Solicitors if we can sort out this matter to which I had no response.

 

He just refused to listen to reason. My wife and I both felt we had not had a fair hearing but had been prejudiced against. When the barrister for the other side spoke he allowed her to do so but when we did, we were cut short at every stage. We are fairly articulate.

 

Can I do anything on the issue of the costs awarded against me or is it just tough luck? The Solicitors did not provide time sheets for their time but the Judge just simply said this looks ok as I am also a Solicitor.

 

I thought costs could not be awarded for cases under £5000.

[TheChancellor]

 

I could live with all of this but he then awarded £2700 costs against me.

 

FM thats a lot! Did they use a QC?

 

 

The Solicitors did not provide time sheets for their time but the Judge just simply said this looks ok as I am also a Solicitor.

 

Were they wearing the same school tie?

[MrShed]

This cannot have been in small claims court if he has awarded costs...?

 

Did they formally countersue for costs? or not?

[Darren007]

Yes they used a Trainee Barrister.

 

This was in the Small Claims track and the claim was under £5000.

 

I had to point out that the Solicitors had not provided time sheets and the time charged was unsubstantiated. The Judge could not be bothered to listen.

 

IS there anything I can do?

 

I'm not sure if an remuneration certificate fro the Legal Complaints Service would work as I never instructed the Solicitor even though I now have to pay the fee.

[Darren007]

They did not formally counter sue. They argued for the case to be struck out and presented a legal bill.

 

The Judge awarded 95% of it.

[MrShed]

I think you need to check, double check, and triple check that this was Small Claims, as opposed to another track such as Fast Track.

 

If it was, then you have an excellent case, as the judge is WAY outside of his jurisdiction awarding legal costs, as there is no ability to do this in SCC.

 

Sorry for being disbelieving - I just find it difficult to comprehend that a judge can act this wrongly if it was indeed small claims.