Being sued by Cowboy Builders - please help *** Claim Struck Out ***

[unclebulgaria67]

Be careful that you don't end up considerably out of pocket after this saga. You have ended up with a conservatory that needs rebuilding from scratch and various costs, that will be more than paying another reliable company to build a conservatory. Yes you may be able to use some of the conservatory parts in any rebuild, but have you worked out what can be re-used and what the cost is of getting the conservatory that you originally signed the contract for ?

 

Think carefully and take advice before the other sides solicitors tries to gain agreement on something which is not in your interest, but their clients.

[wonky100]

Thanks Uncle Bulgaria

 

Appreciate your comments, but at this stage we really do want to put all this behind us. Whilst there are cost implications, we really do need to finish sooner rather than later, for our sanity!

 

Will let you know if the claimant's solicitors get in touch and what they offer.

 

PS pre trial checklist also says that they're not agreeing to the SJE's report!

[unclebulgaria67]

Thanks Uncle Bulgaria

 

Appreciate your comments, but at this stage we really do want to put all this behind us. Whilst there are cost implications, we really do need to finish sooner rather than later, for our sanity!

 

Will let you know if the claimant's solicitors get in touch and what they offer.

 

PS pre trial checklist also says that they're not agreeing to the SJE's report!

 

Don't think that they can disagree with the SJE, as long as it was arranged per the judges instructions. Thought that SJE's were binding on both sides and that they cannot dismiss, when looking to come to an agreement between parties.

 

If you gone this far, don't pull out and make any concessions that you will have regrets about later. The decision you make, must be one that you don't have any regrets about later.

[GuidoT]

Looks like you did good Wonky and you had a good no nonsense judge.

 

They clearly know they have severe difficulties with that expert report. This looks to me like a matter that will settle before trial.

[wonky100]

Here we go again!

 

The last minute email has been received!

 

An amended particulars of claim has been received. The amounts refunded are still incorrect, despite the fact that they provide copy correspondence in this regard showing the correct amounts. And they have signed a statement of truth.

 

The claimant is also still claiming that there is nothing wrong with the conservatory!

 

They have provided an amended disclosure list but make no reference to the photographs referred to in 2 of the claimant's witness statements and which his legal exec confirmed in her witness statement she was writing to the claimant for and which the DJ ordered them to disclose.

 

The pre construction survey which they were ordered to disclose, has been conveniently destroyed!

 

They aren't able to provide the insurance backed guarantee which they were ordered to disclose as they say this would only be issued on payment and the structure hasn't been paid for. However, they confirm that this would be with Home Improvement Protection but we have written correspondence from this insurance company that the claimant only became members on 24 May 2011 and the "contract" was signed on 23 October 2010. Therefore, they are lying about the insurance backed guarantee.

 

Finally, they still haven't paid the court fee.

 

No mention of settling as discussed last week, so looks like they're going all the way with this.

 

I have spoken with a Barristers chambers and have someone lined up to look at the correspondence and to give me a quote to attend at the trial for us.

 

But was just wondering whether there was anything I could do in the meantime or do I just sit back now and wait till September. They seem hell bent on pursuing this.

 

Thanks

[wonky100]

Going through some of the other documents they have sent, they have provided a copy of order for the window frames which they placed, but the customer details have been blanked out. I have spoken with the Manufacturer and the customer is NOT the claimant. No suprise there. Am I able to get them to disclose a copy of the order without the customer details blanked out so that I can prove that our contract isn't with the claimant?

[unclebulgaria67]

Going through some of the other documents they have sent, they have provided a copy of order for the window frames which they placed, but the customer details have been blanked out. I have spoken with the Manufacturer and the customer is NOT the claimant. No suprise there. Am I able to get them to disclose a copy of the order without the customer details blanked out so that I can prove that our contract isn't with the claimant?

 

Keep digging for information. Once you think you have found any information that is useful, I am pretty sure you can make a part 18 CPR request (?) to ask them to clarify. ( ? I am not expert on CPR letters, so hopefully others will be able to answer) In regard to the window frames, they may have purchased these from a third party that was not connected to the contract. The third party may just be another company who were selling items that they no longer had need for.

 

Anyway, I think this building company, obviously are just ignorant about the work that they do and however bad it is, they still think they are due to the full contract amount. You will have to see it through to the end. ( Is it too late to buy any Insurance to cover costs, if you had to pay these ?)

[wonky100]

Thanks Uncle Bulgaria

 

The builder has purchased the frames directly from a window manufacturer (a legitimate company). He ordered the frames as Lakeland Conservatories, the company we say we contracted with, and not Conservatory1, the company who is suing us. This will be why the details have been blanked out, as this demonstrates further that the claimant has no cause. I think an unedited version of this document is extremely pertinent to the case and since my posts above, I have emailed their solicitor requesting an unedited copy.

 

The DJ ordered last week for them to provide certain correspondence, which they haven't. Just hiding behind the fact that they haven't searched anywhere other than their offices for documents. I think this is bull s**t! The DJ also ordered them to pay their fee by today, which they haven't. The courts provided me with an email address earlier so that I can email them and tell them which orders the claimant haven't complied with (the DJs orders from last week aren't on the system yet!) and request that the matter is struck out.

 

I think I'd rather spend a couple of £000s on a Barrister than lose on a technicality and pay them the contract price, plus interest plus their costs!

 

I rang "The Judge" last week who are after the event insurers but no one has returned my call!

 

I'm just so frustrated by the whole system. That a legitimate solicitor can allow a client to lie beggers belief. I can prove these lies, it's just getting the opportunity to do so.

 

Onwards and upwards.

 

On holiday for a bit now, so will take the time to get my files in order. Never thought I'd be doing that on a holiday.

[wonky100]

After some CPR advice please.

 

I have requested from the builder's solicitor the documents which they list in their (3rd) disclosure list. The solicitors have responded to say that they will only provide if we agree to pay their reasonable copying costs, but don't say what this is. I've had a look at CPR 31.15 which states we must undertake to pay reasonable copying costs, but what is "reasonable". Also, some of the correspondence that I asked for the DJ ordered them to provide last Tuesday. Shouldn't they therefore automatically provide?

 

Thanks

[unclebulgaria67]

Bump. Don't know the answer

[GuidoT]

If convenient, you can inspect the documents at no charge.

 

If you want copies you need to pay their reasonable copying costs, say between 5 - 10p per page.

 

Often I find that the solicitors do not bother with the charges during disclosure as there are copying costs on both sides that offset each other.

 

You could ask them the cost in advance if you want them to copy the documents.

[GuidoT]

I have been looking around the internet and see rates of 0.35p per page a bandied around in medical cases.

[citizenB]

I think the only way you are likely to obtain these documents is to pay their reasonable costs. As advised, ask them what they will be.

 

You will be able to reclaim these in the event that you win. If they were ordered to provide information by the Judge on a court notice, then I think they have a cheek asking you to pay for them! Plus they are over a week late. Might be worth pointing that out to them.

[wonky100]

Thanks Guido T & Citizen B

 

Orders from the hearing on 10 July still haven't been received, as they haven't been typed up yet! I think the claimants and their solicitors are playing the system and are waiting for the order despite the fact that us and their solicitor were at the hearing and know what was ordered. The original trial window was 25 June 2012 to 14 July 2012 but this has been put back to 03 September 2012 to 21 September 2012, but it doesn't like it'll make this slot due to their further non compliances and the courts backlog.

 

They still haven't paid their fee which was due on 22 June and which the DJ gave them until 17 July to pay.

 

I have written to their solicitors agreeing to pay their reasonable costs and asking for them to confirm the price. It is a cheek that they're asking us to pay for documents which the DJ ordered they provide (I am also asking for the documents listed in their disclosure list). We provided everything in our disclosure list without charge - more fool us!

 

If they were serious about suing us and weren't just trying to cause as much inconvenience as possible, you think they would comply. But what do I know?

 

The weekend is here now and there's nothing further I can do about this now until Monday. So am going to put this to the back of my mind for 60 hours.

 

Thanks again

[wonky100]

Here we go again.......

 

Another solicitors letter received today advising us that the claimant has appointed a third party to "assess the conservatory to provide a quote as to the underpinning which is allegedly required". Been here before and got a quote for the works and sent them a copy. They never acknowledged.

 

I thought the role of the SJE was to "assess the conservatory". Surely this is just an attempt to undermine the SJE?

 

I didn't think we had to allow anyone else to "assess the conservatory" and if we didn't agree, then then claimant had to make an application to the court but would be grateful if someone could put us straight on this.

 

Thanks again

[unclebulgaria67]

Write back saying the the SJE was ordered by the judge and that you will not accept a further third party assessment of the conservatory, unless this is allowed by a judge. Tell them that they must make a relevant application to the court for permission to appoint a further third party assessor.

[wonky100]

Thanks Uncle Bulgaria

 

Did that last time they told us they wanted to appoint a further expert.

 

I think they're just trying to wear us down, and it's working! But we have no other choice but to fight this.

 

I will send another letter but I'll wait a while. Surely we must get a trial date soon.......

[Mike_hawk]

Thanks Uncle Bulgaria

 

Did that last time they told us they wanted to appoint a further expert.

 

I think they're just trying to wear us down, and it's working! But we have no other choice but to fight this.

 

I will send another letter but I'll wait a while. Surely we must get a trial date soon.......

 

They must apply [CPR 35.4] prior to engaging an expert whose evidence will be relied upon. From briefly scanning your thread I believe you had issues with previous non compliant reports which the court regarded as inadmissable. If they don't apply and gain relief they'll be throwing money down the drain.

 

Tbh, I think I'd draft a short w/s to the court, attach a copy of their letter, include reference that they still have an unpaid fee and request that they are provided no further relief in the matter.

[wonky100]

Thanks Mike Hawk

 

Sounds like a plan! I'll do just that.

[Mike_hawk]

Wonky

 

You really should consider keeping them under pressure - have they substituted claimant yet?...... thought I read further back in your thread that they were directed to do so - there's a lot to read so I could have missed something

 

Do you have the order from 10th July yet?

Edited July 26, 2012 by Mike_hawk

[wonky100]

Hello Mike Hawk

 

They haven't substituted the claimant. The claimant suggested in his witness statement in April that he would join 2 companies together as the claimant (the company which is suing us and the company who we paid and who we thought our contract was with - same director), but never did. They weren't directed to do this by the Court.

 

Yes, we have the orders from 10 July, they were received yesterday. They have complied with everything in the sense that:

 

they have amended the POC - although they still lie and this can be proven, but I guess this will now have to be brought up at the trial;

 

they have written to us advising that an insurance backed guarantee doesn't exist for us - they have said the reason it doesn't exist is because we didn't pay and they have provided a specimen policy. However, the specimen they have provided is from an Insurer who have confirmed in writing to us that the claimant didn't become members until 7 months after the contract was signed. So we could never have benefited from this. But the specimen policy also shows that their is a deposit indemnity which is valid for 60 days after the deposit was paid. Therefore my arguement is that as we paid the deposit on 23 October 2010 if a policy existed we would have had the benefit of this, but a policy was never issued to us. We didn't receive a refund until March/April 2011, can't remember the exact date. Again, another issue for the trial ;

 

they have advised that they have destroyed the pre-construction survey. I wrote to them asking when and who destroyed it, but they have advised that this is not relevant and that they're won't dwell on this. It was my employers solicitors who told me they had a duty to provide this info.

 

I've not had a response to our confirmation that we will meet their reasonable copying costs to provide evidence listed in their disclosure list and further documents referred to in their w/s which they confirmed in writing they had written to their clients for.

 

But.....

 

They didn't pay their fee by 4.30pm on 17 July as per the order which says "in default of which the Claim shall be struck out without further order". As at 23 July 2012, the claimant still hadn't paid their fee.

 

Whilst I know the order says it will be struck out without further order, I'm wondering whether if they simply pay whether a court clerk will allow this to continue?

 

The order also states that parties should "mediate/negotiate/endeavour to settle the dispute where it is recorded that the Defendant's have been reimbursed their the price they paid for the conservatory and indicate a willingness to resolve this matter". I said at the hearing that we wanted this matter settling. We have been reimbursed but not by the claimant company as we never paid the claimant company. Their solicitor asked before the hearing on 10 July how this matter could be resolved and we asked him to ask his client to withdraw their claim and we'd meet our own costs. Their solicitor advised that he would speak with his client on 11 July and get back to us. He never has. We have written to the solicitor confirming the conversation.

 

I think this brings everything up to speed.

 

Thanks again

[Mike_hawk]

They didn't pay their fee by 4.30pm on 17 July as per the order which says "in default of which the Claim shall be struck out without further order". As at 23 July 2012, the claimant still hadn't paid their fee.

 

Whilst I know the order says it will be struck out without further order, I'm wondering whether if they simply pay whether a court clerk will allow this to continue?

 

You won't know until you ask

 

As a suggestion, draft you w/s [re; denied relief] and include reference to any/all other orders/direction they have failed to comply with. Make the case that they have been afforded far too much discretion from the court prior to this failure. Ask the court to strike out their claim pursuant to CPR 3.4 and give consideration to your costs pursuant to CPR 3.5

 

Relevant parts at the following link http://www.justice.gov.uk/courts/procedure-rules/civil/rules/part03#IDAMLWKC

 

 

Any questions you have for the other side can be pressed by a part 18 request;

 

ie; You stated on xxx date that you would join a second company as party to case but have failed to do so. Please confirm the identity of the 2nd party referred to in your witness statement and their averred cause of action in this case.

 

I'm sure you can think of a few more questions you'd like to ask........ can't imagine for one minute that they'll respond without prejudicing themselves, serves as a means to keep the pressure on them.

[wonky100]

I've already asked and have asked if they will consider our costs. I first emailed them on 18 July, but the automated response says they take approx 10 working days to respond.

 

I then badgered them for the written orders and when I last spoke with the Court on Monday I was told to send another email once I got the Orders, so I did on Wednesday, as the court clerk I spoke with at that time said the case should be struck out, but that's not to say that they won't apply to have any strike out set aside.......But then another court clerk has told me previously it's all about the money and so long as the Court get their fees..... (I have names!).

 

Thanks for the link, I'll have a read.

 

They have prejudiced themselves so many times in their correspondence, it's unbelievable considering they have a solicitor acting for them. I just have to keep a record of all the contradictions in case this gets to trial, which it would seem they're hell bent on doing.

 

Also, I passed over a copy of the entire file to a Barrister last Thursday who I found through Public Access.

[Mike_hawk]

I appreciate you've tried, its really a question of try, try and try again........ and ensure you use the rules to your advantage.

 

Counsel will always rely on knowledge of the system and denial, with a touch of bull thrown in for good measure. I think you've found already that they rely on ignorance and attempt to direct the course of events, don't rise to them, just keep plodding along keeping to the courts timetable and doing what's right for you.

[wonky100]

Thanks Mike Hawk