Legal jungle - need to learn fast

[Good Question]

Hello everone,

 

There are so many really useful threads on here, I've already learnt loads and feeling a lot less anxious. So I've signed up, in the hope that I can get some advice that's specific to my situation. Which is a lot less awful than some of the hair-raising stories I've read - but still causing me a lot of anxiety. I'd appreciate advice, and/or where to post about this issue. So glad I found this website.

 

Basically: joiners built and fitted windows. Windows ok, paint and fitting very poor. We raised concerns with them at the time, they lied about the paint ( it's possible to have it checked: manufacturers have a lab for this ), they promised all would be well with other concerns. When they left, I could see they had not done a good job at all, including key concerns I'd raised with them. Another joiner looked at the job afterwards - said "it looks like a child's done it". Several other concerns too.

 

So we made a goodwill payment of a third of the outstanding fitting cost (had paid for windows in full already), withheld the rest, and suggested we get the problems left behind sorted out, present them with all bills, and pay them any balance remaining. Long story short... they filed a MoneyClaim Online claim against us (amounts to 10% of what we've paid, including the windows).

 

We have already filed an Acknowledgement of Service, indicating defence/counterclaim, but now we need to put together evidence to show why. So many questions on how best to do that - it seems so important to have 'legalese' lingo. It's Small Claims/MCOL and I can't afford to appoint a solicitor or even a surveyor. There's other fiddly aspects too, such as difficulties getting quotes - because the job is so messy to sort out.

 

So: 'nice to meet you all', and if I could get a bit of help about this, or where to post more details, I'd be grateful. It's spoiling the Christmas Season, having to deal with this instead of cards and prezzies.

 

Cheers,

Suse

[andydd]

Hi there.

 

Dont get too bogged down with legalese, what is most important is to provide ample evidence for the judge to decide, preapre all docs neatly and preferably laid out as suggested by the CPR, with defendants names, etc in proper places (however this isnt essential but looks good).

 

You will need evidence, a Judge isnt going to be swayed by your opinion that the work is shoddy, it needs evidence, photos, etc and preferably an expert opinion (but first check rules on experts, esp. if its on small track) so you may need to find someone who can challange their claims, as no doubt they will say the work is fine...dont rely on assuming the Judge will just 'see' that you are right, he knows nothing and will need persueding.

 

It is important to comply with CPR (Civil Procedure Rules), these are the general court rules > http://www.justice.gov.uk/courts/procedure-rules/civil/rules each Rule will normally have an accompanying Practise Direction which deal with practical steps.

 

Its a good idea to buy/rent a good CPR book. I found a good one on Ebay. This will help you greatly and tell you about deadlines, etc.

 

I found mine very useful and I took on my Freeholder/Landlord and easily beat his solicitor and was more clued up on Summary Judgment and the relevant deadlines, etc and won my case

[raydetinu]

Have you got leagl cover with your insurance, they may be able to help.

Also if it is poor finish, lots of photographs illustrting the point may help your case, plus a quote/report from a another joiner/painter with costs to put roght would also assist with claim.

All correspondance with the fitters need to be disclosed, and you need to have asked them to put right with a time frame, and get their response ( court rules )

When it is clear they wont respond or are prevaricating that is when you go to court.

What type of windows? hardwood/softwood?

[citizenB]

What time frame are you looking at - I see you have advised having acknowledged the claim.

 

insert the dates to see where you are at..

 

Date of issue + 5 days for service + 14 days to acknowledge + 14 days to submit defence. = 33 days from date of issue.

 

So this claim is for under £5,000 ?

[citizenB]

If the company is a member of a trade body, perhaps they can recommend how to go about getting a reasonable quote for the work to be put right ?

[Good Question]

Thanks for the such quick repsonses!

 

@ CitizenB - No trade body! - lesson learnt...

- Apparently we have until 1. January to do the defence/counterclaim - not much chance of getting more quotes or other evidence in over that period, I think. The total claim is £1100, 10% of what we paid them already. From what I have been told, it'll cost about £2000-2500 to put everything right so that's what we're hoping to counterclaim for (although we suspect the other side would not pay, if it came to it).

 

@Andy: Any suggestion of where would I find simple info on how to lay out the documents for the court, as you suggested?

 

There's been difficulty with getting evidence. If we could afford a surveyor it would be easy (just had to do that for work, very effective - but far too expensive in this case). We have some evidence (middling-quality photos, paint report, report from a builder friend) but only one quote so far as several people said they wouldn't even consider the job because it's such a mess. Understandably, they won't put that in writing!

 

And the company who provided the filler is also unhelpful, unfortunately. They have told me on the phone that this is the wrong stuff to use for window fitting (it's an acrylic decorator's filler) and that it will quickly deteriorate. But the only e-mail they sent was ambiguous and their own data sheet contains a sentence that implies the filler can be used on exterior windows - the other side have made reference to this. So although everyone including the seller has said 'wrong stuff', we are struggling to show something official that is demonstrates this filler was the wrong product and will cause problems. The seller is not responding to e-mails asking for more details - in writing they have only said "they should have known this is not the product to use". What else can I do to demonstrate this? This product is packaged and sold by the seller, but made by another company - I have asked unsuccessfully for the manufacturer's details both by phone and by e-mail, they just won't tell me who this is.

 

Thank you all for all input!

Sue

[citizenB]

You might want to have a word with Northampton - where the claim was issued from - and ask if there is any tolerance in time due to the Bank holidays.

[citizenB]

If it gets to the stage where you need to provide a Witness statement - then the guide attached should help you.

 

Guidance Notes on Witness Statements.pdf

[citizenB]

If you are submitting online - then you simply complete their online format.

 

I will try and find you a sample defence if you need to submit a hard copy (if you exceed the 8,000 characters allowed online)

[citizenB]

Here you go..

 

[ATTACH=CONFIG]40076[/ATTACH]

[Good Question]

Good stuff!

 

@ Raydetinu - Windows are soft wood, with hardwood sills. They have been declared to be of good quality - paintwork not as agreed/poor, fitting awful.

- Home insurance doesn't include legal cover.

- Correspondence is an issue - after a few e-mails to and fro and our formal invitation to put it right and offering our alternative solution (pay someone else, show bills, pay any balance left from that if any), they wrote another couple of e-mails, then insisted we must do it by phone ('no time to waste on convoluted correspondence') or they'd 'send round the bailiffs'. I said papertrail is crucial as it's a dispute so phone calls inappropriate; next thing from them was the MCOL claim.

 

@ CitizenB - Northampton gave conflicting advice in two different phone calls, so I'll have to go with the most cautious approach and file before the end of the year.

- Thanks for the witness guidance notes - really useful document.

- Sample defence document is good to have - thanks for that. It's front page only - does the rest follow the form N9B(CPC) for defence/counterclaim that was sent by post?

- I probably will have to file scanned documents by e-mail - report re paint, various e-mails from builders/advice I've had etc plus account of events will probably exceed 8000 words. Plus I had a bad experience on another government website (student loan for son) where log-out while hanging on the phone for advice = 'claim filed', then lots of complications to sort that out. So I'm much more confident filing by e-mail.

 

It's reassuring to see there's routes through the legal jungle and friendly people helping point out signposts

[citizenB]

I will edit and scan up a couple more pages to the Defence so that you can see..

[citizenB]

[ATTACH=CONFIG]40079[/ATTACH]

 

 

[ATTACH=CONFIG]40080[/ATTACH]

Edited December 18, 2012 by citizenB

[Good Question]

Thanks, CitizenB, that's really helpful.

Is there a big difference between simply defending a claim, and counter-claiming? I'm wondering about the format and formality.

Cheers!

[citizenB]

As far as I am aware, you would make a counterclaim at the end of your defence - it is called a "Part 20 claim".. I think and I am sure there is a charge for this, depending on the value of the counterclaim.. however, I will ask one of the experts in this area to look in to advise you more fully.

[raydetinu]

I think the photos of poor workmanship will clinch it.

do you know what primer/paint they used. You shoul not paint hardwood, except with a sealer/breather coat such as Sikens.

bad fitting will speak for itself.

[caro]

You don't need to pay to defend a claim, but you do have to pay to make a claim (counterclaim) yourself. The costs are exactly the same as any other claim.

 

If you just defend you won't get any money back.

[Good Question]

Thanks for the tips - really welcome.

 

@ CitizenB - yes please, more advice on what a 'part 20 claim' entails would be welcome.

 

@ Raydetinu - The thing about not painting hardwood sills with gloss is a bit of a surprise; nobody has mentioned that before (several people have looked at it). It's been painted like the rest, with a primer, one undercoat, one gloss (all water-based, too thin and poorly prepared according to the lab).

 

@ caro - yes, it'll cost to counterclaim. Unreasonable claimant - might well not pay up, even if told to by a court. I'm counterclaiming so that I can show a lot more evidence - and hoping this may be enough to make them step away - honestly, I'm still surprised they dared to sue. It's worth the fight, because we need the money held back to pay for putting right the mess. But it's also expensive in terms of time, stress and lost work, so I'd prefer 'dropped case' to 'win'.

[AndyOrch]

Hi GQ

 

CB asked I look in on you.

 

The Pt 20 Counter Claim is appropriately named that after the CPR Part 20 :-

 

http://www.justice.gov.uk/courts/procedure-rules/civil/rules/part20 see PD 20.4

 

You would submit a defence as normal to the claimants claim and then attach the PT20 claim at the end of the defence.You then become the Defendant PT 20 Claimant.The fee is set at the amount claimed.So you would need to quantify the amount you counter claim in value or damages/compensation...then check the HMCS site for the fee applicable to that amount.There is no fee for a CC less than £1500.00

 

Regards

 

Andy

[andydd]

Hi.

 

Some good template of how things should be laid out above, similar to ones I was going to post up.

 

I assume the Jan 1st Deadline is to get in your inititail defence & statement of case, the actual court hearing wont be till many months so you will be able to send more docs/witness statrements/photos etc..you just have to lay out your main points by the Jan 1st daedline and go into details later.

 

What are you counterclaiming ?. A counterclaim is in effect a seperate claim but filed at the same time, (i.e he says you owe me £1000, but you say.well you owe me £500 because you broke door of house, so even if he claim is suucessfull and if your CC is then you will only owe £500).

 

Calling it Part 20 claim and swapping around defendant and claimant can be a bit confusing but in reality its reasonably simple, essentially you are saying that the amount you owe will be either reduced, completely offset or even that he will end up owing you.

 

Andy

[Good Question]

Thank you, both Andys. Or is that Andies?

 

This is all so helpful. It's strange the courts don't provide clearer guidance themselves, given that the MCOL process is aimed at letting people with no legal experience, let alone training, enter disputes without representation. For example, I thought I'd have to provide all the evidence with my counterclaim, in order to show I have a claim at all. Knowing I've got lots more time to gather documentation is really putting my mind at rest.

 

By the way, does anyone have a suggestion how I could persuade the company who sold the filler to say more in writing about wrong use? They've told me on the phone, very clearly: 'completely wrong stuff to use, fitters must have known, it's a decorator's filler for small cracks, if these guys have 30 years experience they will know this'. But the data sheet about this filler could be interpreted differently, poor wording - and judges aren't experts in window fitting.

 

The supplier sent one mail stating only that the joinery should have known it wasn't the right thing; no response to requests for clarification. Which leaves open the option for the joiners to claim ignorance and invoke the data sheet. I guess for the supplier, giving me more clear-cut information in writing is a hassle without visible gain, but could I invoke some point of law to get more info or the manufacturer's name from them?

 

Cheers, everyone - you're all visibly brightening my Christmas, because it won't be so overshadowed by anxiety now!

[citizenB]

Not that I am touting for CAG.. but we do sell a Small Claims guide..

 

Small Claims Procedure - A practical Guide - author Patricia Pearl..

 

Left hand links on the screen

[Good Question]

Hi again, and thanks for all the previous advise. I am now putting together my defence/counterclaim, much reassured by what I've learnt here. Here is a question I haven't been able to find an answer to online so far, and the MCOL helpdesk can't tell me either, they say:

 

Can I change the amount I claim (in my counterclaim) later?

 

Reason for asking: having great difficulties finding anyone who will quote/give estimates for fixing this botched job (joiners are suing because I withheld payment to have the mess they left sorted). Because several builders/decorators looked but would not take it on, I only have two estimates so far, and they don't seem detailed enough to rely on them. Trying to find more estimates/quotes. But I have to file my counterclaim by 2nd Jan latest, so no chance...

 

Maybe I'm just not good at googling, but I couldn't find anything about this question, and I'd be grateful for any links or direct advice.

Thanks everyone!

 

Sue

[citizenB]

http://www.justice.gov.uk/courts/procedure-rules/civil/rules/part20#IDAZH1HC

 

This is all about Part 20 claims.. I dont know if there is anything that can help.

 

I will flag your question for andyorch..

[citizenB]

I must admit, I couldnt find anything else that might clarify the situation for you.