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

[wonky100]

Thanks Gez

 

Yes I'd seen it. One of the site team members had brought it to my attention.

 

Cheque received over the weekend. Never been so disappointed to receive money

[wonky100]

I'm getting the feeling that the claimant's solicitors are getting a little tetchy.

 

They have sent me an email this pm attaching court protocol in the instructing of SJEs. They have said:

 

"the expert will determine how he compiles his report and what information is needed in order to complete the report. It is not for you to independently send the expert information without our consent. The expert will guide us as to what he needs."

I have not sent the agreed SJE ANY correspondence, evidence, documents, photos or the like.

I did send some photos to one of the claimant's suggestions as he asked for it and since he was the claimant's suggestion I thought this would be ok. During my numerous telehone conversations over the last 2 weeks I have been told on numerous occassions that if the surveyor was appointed then they would need sight of the previous reports.

I have spoken with the SJE this morning to ask what he wants off me to confirm his appointment and to confirm that he will send separate invoices. He asked for a copy of the previous reports. I have NOT sent them. I even questionned whether this would right (so Con1 / MSB if you're reading this you've got the wrong end of the stick!). The surveyor advised that so long as both parties are aware of the correspondence, which they are, and that the evidence has previously been dislosed, which it has, then there is absolutely no reason why it shouldn't be sent. But as the solicitors say, the experts will guide us as to what he needs, and presumably he needs them otherwise he wouldn't be asking for them!

But the protocol which I've been sent says that we have to "try to agree what documents should be included". The claimant are obviously going to be touchy about what is sent. But no worries, the structure speaks for itself in any event.

Any guidance on what we should do? The claimant's solicitor will obviously want as little evidence sending as possible and bare minimum instructions. They also will no doubt be responding at the eleventh hour just to drag matters along (goodness knows why though).

[GuidoT]

Normally you agree a set of joint instructions and then include an agreed bundle of relevant documents that accompanies such instructions.

[wonky100]

Hello again!

 

OK, we have to have agreed instructions and these need to be given to the surveyor by 4pm on Tuesday 17 April. We sent our proposals to the builders solicitors on 30 March. We have not yet had the builders solicitors proposals. They said they had until 17 April to agree the instructions so I sent them a polite reminder yesterday pointing out that the instructions needed to be given to the surveyor by 17 April 2012 as per Court Directions, so they would need to be agreed prior to that date.

 

I've just had an email advising that they will let us have their proposals by the weekend so that we can review over the weekend and get back to them on Monday. OK, so we're LIPs and do have the weekend, but what if we had representation? They wouldn't review over the weekend. Is this reasonable behaviour?

 

Also, what happens if we don't agree to the proposals? They've left it until the 11th hour so we don't really have much time to resolve.

 

The solicitors are sending emails to my work email address. What if they send an email after I've left work for the weekend?

 

Thanks

[wonky100]

Also (sorry!), can the solicitors simply ignore a wp letter? Basically, I've sent them the wp correspondence that I received from Ikon and have asked them to respond to last email in the chain.

[GuidoT]

What is wp the acroynm for? Not without prejudice I presume.

[wonky100]

Without Prejudice. Sorry

[GuidoT]

Yes they can ignore what they want, but it may not be prudent for them to do so, I cannot comment as I do not know the contents of such.

 

Having said that they will be mindful of not engaging in correspondence as they will not want to litigate the matter in emails, letters etc., but in the pleadings etc.

 

If you do not agree on the expert's instructions an application will be made to the court and the judge will decide.

[wonky100]

Thanks Guido T

 

It was Ikon, the builders previous representatives who started the without prejudice correspondence. They wanted to settle without it proceeding further as the quote for the single joint expert at that time was £750 approx (the cost is now £1200 + with the new surveyor). We said we'd be happy for them to stop the action subject to them paying our costs. They came back and said that they were agreeable to us paying another builder to put the structure right and pay them any balance left less our costs. We went back and told them that we'd been told that the structure needed to be removed and replaced, thus costing us more than the original contract price plus our costs. We never heard anything further, but then this would be around the time the guy at Ikon had a stroke. The new solicitors said they weren't aware of any correspondence so I sent them copies.

 

Am hoping that whatever happens, the fact that we agreed to the builders request to have another survey, prior to proceedings being issued which the builder never went ahead with, will at least go in our favour. Afterall, we're now in the position that we were in last Summer and we and the builder could have avoided legal costs and the builder could have avoided court fees if only they'd progressed the survey option rather than issuing proceedings. Time will tell.

 

I'll just have to wait for the draft instructions now. I'd like to be able to send the original report (the one we had done in January 2011) to the new surveyor. The builder claims he's remedied the faults. So if the new surveyor had the original report, he'd be able to identify that no remedial work had been carried out. But the solicitos seem to want the surveyor to have as little info as possible before arriving at our home.

[wonky100]

draft instructions.pdfDraft instructions now received. I have attached a copy and hope that I have removed all personal info.

 

Enclosures

 

I don't think that they're enclosing very much. They haven't sent me copies of what they say their enclosing. Obviously I've got the 2, 3 & 4. I'm still waiting on 1 from them as I'm waiting for them to provide an agreement/contract for the amount which they are claiming. But I was thinking that they should also be sending a copy of the plans. For a start the structure which we have isn't as per the plans - only a minor issue. But the plans would show the quality of the workmanship from the plan stage to the structure. Also, as per my previous post today, the claimants claim they remedied the structure therefore I'd like to include the previous report as this would show that they haven't done anything.

 

Background

 

They state that we instructed the claimants. This is incorrect and is one of defences. Can I get them to amend this? We are not disputing that we entered into a contract for a conservatory, but with whom is in dispute. The agreement was dated 23 October 2001 - splitting hairs. The work was not completed on 24 December 2010. It was plastered on 24 December 2010. The electrics and flooring was carried out after this date. Plus they came back on a couple of occassions to try to fix the roof but failed.

 

We originally claimed that there was a defect in the roof but as a result of the survey in January 2011 further defects were identified. Shouldn't these be mentioned? We are also lead to believe that there are further defects which weren't identified at the time of survey. Shouldn't these also be mentioned?

 

They claim that repair work was carried out to the roof of the main property. What a farce! It's been left in a right state under the pre-existing tiles. If repairs to the roof of the main property had of been required then these would have been over and above the contract price and surely they would have charged us for this???

 

Your Instructions:

 

Points 1 to 6 seem fair enough to me, but again what do I know?

 

However, I don't like point 7. It refers to alledged damage but in background the solicitors specifically refer to to the roof alone. I don't want the surveyor to be looking at the roof only although points 1 to 6 would allow for other defects.

 

Roll on September and then I can stop pestering you all!

 

Thanks again

[GuidoT]

I have had a quick look, my two main concerns are that:

 

1. On reading the Background the dispute could be confined to the roof only, you need to get this changed to cover the entire structure

2. They say the costs of the conservatory were refunded, this cannot be right can it?

[wonky100]

Hello Guido T

 

Originally our concern was the roof only. We're not builders so only knew that the roof was leaking. The builder couldn't/wouldn't fix the roof so we appointed a surveyor who identified other faults. The builder has a copy of the report so knows that the dispute is not confined to the roof only.

 

I have had my money back which is why I'm being sued. I contacted my credit card co and asked them not to pay the final balance until the work had been completed as I was worried that if they did I'd never get the job finished. My credit card co advised that a credit card co was a guaranteed method of payment so they wouldn't be able to refuse the builder any future payments if they tried to take any. So I made a complaint to my credit card. Credit card company asked for all correspondence and in March 2011 carried out a chargeback from the builders bank account. So yes I have bee refunded but not voluntarily by the builder.

[wonky100]

Here we go again! Going to be a long one!

 

Have responded to the claimant's solicitors draft instructions prior to 9am this morning and they requested a response by return but haven't had a response. I know they'll have other work and other deadlines, but we have to agree and give instructions to the SJE by Tuesday!

 

Anyhow, moving on from the SJE. Following the hearing on 20 March, the DJ ordered that:

 

a) The Claimant shall by 4pm on 17 April 2012 serve a further CPR complaint disclosure dealing in particular with the following documents:

 

i) any surveyors report referred to in paragraph 3 of the Particulars of Claim - para 3 said "A surveyor was instructed and found that the defect was very minimal......". New disclosure list advises that "there was no written report of the surveyor as per paragraph 3"!!!!

 

ii) any documents relating to the claimant's contention that defects were remedied in accordance with paragraph 3 of the Particulars of Claim - para 3 said ".....and subsequently the claimant remedied the situation, leaving no defects.". We are now advised that "there is no written evidence as per paragraph 3 of the Particulars of Claim"!!!!

 

iii) The contract referred to in paragraph 1 of Particulars of Claim - para 1 said "The contract value was £14,000.....". We have been provided with page 1 which is headed Schedule of Work - Windows/Doors. This clearly shows the contract price (inclusive of VAT) to be £13,000. Should the claimant be making an application to change their particulars of claim? Also, the terms and conditions of the contract and guarantee stated over leaf have not been provided. Yes, I've being pedantic here as really I wanted them to demonstrate that they have lied about the contract price which they have but should they provide the terms and conditions of the contract etc and by not doing have they failed to comply with this direction?

 

iv) any documentation referred to in paragraph 4 of the Particulars of Claim relating to the reverse of the transaction by Mastercard - para 4 said that we paid £8000 and this was reversed. The claimant has provided lots of my emails to my credit card co, which were presumably sent to the claimants bank and then to the claimant/builder. However, they have also provided a copy bank letter confirming that they have no option to debit their account with both amounts of £3900, ie £7800 not £8000 as per para 4. Splitting hairs, maybe. Again, should the claimant have to make an application to change the particulars of claim? Also, the letter from the bank whilst to the common Director of Conservatory 1, the claimant, and Lakeland, who we thought we had contracted with, is addressed to Bespoke Conservatories. Neither the Conservatory1 or Lakeland have ever been callled Bespoke Conservatories, as per Companies House. Another co has subsequently been set up with the name Bespoke Conservatories (name subsequently changed) but the Director has never been a Director of this company, but the lady in the accounts department of Conservatory 1 & Lakeland has been a Director of Bespoke Conservatories!!! Also the address on the letter is to none of the registered address of either Conservatory 1 or Lakeland. Also, the bank is Lloyds TSB whereas we were told at the hearing on 20 March that their bank account was with Barclays and that one the reasons that the balance of this account was low was that we had £7800 of the claimants money!

 

b) in default of compliance with para a above, the claim shall be struck out...... - any cause?

 

c) The time for service of claimant's witness statements as to the fact is finally extended to 4pm on 17 April 2012 - not yet provided. In default of compliance, Claimant shall be debarred from adducing evidence as to fact at trial. Defendant has permission to file supplementary witness statement if so advised to be served within 14 days of service. But Claimant provided a witness statement by email the evening prior to the hearing. Should we file a supplementary witness statement to this? I'm guessing not. But the Claimant had the benefit of our statements way back in January 2012 before raising his statement on 19 March.

 

The disclosure the continues:

 

I have control of the documents numbered and listed here, but I object to you inspecting them:

1) Correspondence, notes, counsel's opinion and advice and memoranda passing between the claimant and their solicitor;

2) Correspondence, notes and memoranda passing between the defendants and any third party or the claimants solicitors and a third party in contemplation of this litigation.

 

I object to you inspecting these documents because:

These are privileged documents obtained for the purpose of litigation.

 

OK, so I understand why point 1 is privileged but why is point 2 privileged? And can we object to this and if so how?

 

Anyone any thoughts please?

[wonky100]

Anyone any thoughts please?

[wonky100]

Some urgent help needed re the instructions to the SJE please!

 

Instructions need to be agreed and given to the SJE by 4pm tomorrow. However, the claimant's solicitor are refusing to agree correspondence which we have requested be included.

 

We've asked that they send the SJE (a surveyor) copies of the drawings. I don't think that this is an unreasonable request since it's a structural dispute.

 

The claimant are claiming that they have remedied all faults but as per post 438 have no written evidence to support this (have in fact advised in their witness statement that we refused them access to remedy, quite a contradiction). So I've asked that the previous report(s) are sent to the expert so that he can comment on what work has been carried out since (nothing). But the solicitors have refused as the DJ rescinded the use of these reports as evidence. But surely he only rescinded these from being used at Court as there is to be a further report? The claimant's solicitors are requesting that the SJE comment on any work that has been done in relation to the structure (presume they mean defects). How can he pass comment?

 

The claimant's solicitor have said that if we want these including then we'll have to apply to the Courts for permission. I'm worried. The deadline for giving instructions is 4 pm tomorrow so we won't be able to give instructions if I'm apply for permission to use some correspondence. I haven't been able to request this permission prior to now as the solicitor has only just responded re the instructions. I'd been asking for these for the last 2 weeks but they said they didn't need to do them until the 17th. I pointed out that they needed to be agreed by the 17th and we needed to communicate first in this regard, so they've put us in this awkward position by having not done anything about this sooner.

 

Also, I can't get the application into the Court until tomorrow as I'd need to get my hubby to sign and we're both at work (nowhere near each other).

 

I've spoken to a Court clerk and they can't advise, they just said include any correspondence with the solicitors to prove that we've been trying to sort.

 

They really do seem to be going out of their way to be a nuisance.

 

Thanks in advance

[unclebulgaria67]

From a commonsense point of view, I would say that the commission of an SJE report should be as straightforward and uncompromised as possible. Why would they need to see anything other than the structure and to provide a report on it ? If they had access to previous reports, then this may be referred to in their report and I can see the claimants solicitors trying to use this, if comments in the SJE report are not in their favour.

 

I presume that you have read this document.

 

http://www.justice.gov.uk/courts/procedure-rules/civil/rules/part35

[wonky100]

Thank you Uncle Bulgaria

 

From my point of view I want him to see the reports as they condemn the structure! However, I understand where you're coming from. I honestly am not concerned about the new SJE coming to inspect as I know the true condition of the structure.

 

However, how can the claimant's solicitor ask the SJE to comment on work carried out by the claimant to remedy the defects (which he hasn't done) when they are unable to advise what they've done or provide any evidence of the work they allege has been done. By providing a copy of the report, the SJE will know what condition the structure was in prior to any alleged remedial work, wich they are asking the SJE to comment on.

 

The drawings simply demonstrate the poor workmanship from the start. The previous surveyor stated "any competent tradesman would have difficulty in recognising the standards which he would have to work to".

 

I have read CPR 35 and can't see where it says what docs can be included and what can't.

 

Apologies for being a pain.

[unclebulgaria67]

I would let the SJE report be based purely on the merits of the current structure as it stands.

 

If you are certain of your position, then surely it is in your interest, to just to allow the survey to go ahead, with the surveyor able to provide the report totally on the basis of what they see.

 

The claimants solicitors providing details of any repairs that they have carried out may actually be totally unhelpful to them. This might just make the situation worse for them. Firstly it might confirm the poor work originally carried out and if the repairs are not up to the standard expected, then that just reinforces your case.

[wonky100]

Almost there! Well, as far as instructions to SJE go. Just waiting on hubby to get back to me - it's difficult when we're both at work in different cities. Think we're going to agree without previous reports.

 

Claimant's solicitor have now agreed to provide a copy of the plans. The reason they weren't sending is that they didn't know any plans existed! How could the claimant have applied for planning permission without? How could their builders have erected the structure without? Also, if they have the file, they know there are plans as I've disclosed them together with their representative's covering letters! It's all very odd.

 

When it comes to the claimant's solicitor completing the pre-trial bundle, how will this be completed if they don't have the file from the claimant's previous legal representative?

 

Sorry for all the questions.

[wonky100]

PS My disclosure was done in January. The claimant's disclosure was only done Friday last week.

[unclebulgaria67]

I suspect that their solicitor is not doing much, if they think it is possible they won't get paid. Hence reason why they don't know much about what may be in any file they have.

 

Wonky, if you think about this. Would you put many hours of work in, if you thought that the client could not pay the bill ?

[wonky100]

Of course they're going to get paid - the claimant have an insurance policy that will meet all costs!!! That'll be the speciman insurance policy they sent the night before the hearing on 20 March, that didn't show an Insured name or period of insurance and the one which the time for claim notifications had been exceeded.

[wonky100]

Evening all

 

Witness statements received 19 mins before the deadline by email! These are apparently being posted to us tonight.

 

So we have 2 weeks to file a supplementary witness statement in response to these statements. This was allowed as the Claimant had had our witness statements since January 2012, the original deadline.

 

Not sure what to do! Have read all the statements provided but do I merely respond to what they have said? The Claimant has lied in his witness statement and I have written evidence to support this. Am I ok to include? One of the witnesses, the electrician although he apparently does plastering etc, has advised that he is a member of JIB in his statement. I've been on the JIB website and there is no one by his company name listed or at his address. I have emailed JIB to check if he is a member. But is being a member of JIB relevant? Is this the relevant organisation for a electrician?

 

Also, the witness statements are undated. I now I'm splitting hairs, but is this relevant? Should the statements be dated?

 

Thank you

[Ganymede]

Are the Witness Statements signed?

[wonky100]

Yes the statements are signed.

 

Also, sorry for so many questions, the Claimant has advised in his statement that we didn't pay the Claimant Co (no s**t Sherlock, we've been saying this since day 1), so he is going to apply to the Courts to make a joint application to join the company which we paid. Can 2 separate legal entities sue us in the same proceedings?

 

Thanks