Legal jungle - need to learn fast

[AndyOrch]

You would submit an Application Notice (N244) requesting permission to amend your CC... pursuant to the applicable CPR PDs

[Good Question]

Thank you, Andy! I've got form N244 printed out now... another hornets nest of things I don't understand. The form asks "what order are you asking the court to make and why?" Your mail mentions CPR Practice Directions. I find the CPR rules incredibly difficult to understand/disentangle.

 

- How do I start to find out which rules and/or directions apply?

- I want to ask for more time so I can get fresh quotes, because one window has now developed those cracks.

 

Feeling completely helpless in the face of all this stuff. What would you advise for the best?

Thank you,

Suse

 

Also, the Notes state "most applications will require a hearing" - would that apply here? A hearing before a hearing?

 

Really sorry that yet again every answer seems to produce more questions. Bear with me?

Very appreciative,

Sue

[The Mould]

Thank you, Andy! I've got form N244 printed out now... another hornets nest of things I don't understand. The form asks "what order are you asking the court to make and why?" Your mail mentions CPR Practice Directions. I find the CPR rules incredibly difficult to understand/disentangle.

 

- How do I start to find out which rules and/or directions apply?

- I want to ask for more time so I can get fresh quotes, because one window has now developed those cracks.

 

Feeling completely helpless in the face of all this stuff. What would you advise for the best?

Thank you,

Suse

 

 

 

Also, the Notes state "most applications will require a hearing" - would that apply here? A hearing before a hearing?

 

Really sorry that yet again every answer seems to produce more questions. Bear with me?

Very appreciative,

Sue

Hello good question

is 'delivery' in hard copy or is e-mail sufficient?

- Can I send it e-mail by the deadline and send a registered hard-copy toarrive the next day?

- since I first filed a counter-claim, it turns out there are even more problemswith the windows: two seams have opened in one of the frames, so now we haveair from outside streaming straight in (= makes the double glazing pointless).Can I add repair cost for this to the counterclaim at this stage, or is thecounterclaim fixed?

In relation to seeking the Court’s permission to amend yourCounterclaim, the reality is that in the event of new evidence or the fact thatnew evidence will become available (strong evidence in this respect is requiredfor such), any party to proceedings can make an application under CPR Pt 23(ensuring compliance with the same and the supplementary Practice Direction 23)– see CPR Pt 17 and Practice Direction 17.

Service of documents by way of email to theClaimant/Defendant is acceptable if the service of such documents complies withCPR Pt 6 & Practice Direction 6 – in the event that the foregoingrequirements of said CPR is met, then service of a hard copy of same documentsis not required (see stated CPR Pt 6 & Practice Direction 6).

You can file and serve your additional application to amendyour Counterclaim to the same Court for the forthcoming hearing (refer to CPRPt 1 therein for the same) and mark the outside of your envelope = for thehearing before (state name of Judge) on (state date) Claim no. (state claimnumber) in the matter between (state full names of parties to the proceedings).

Kind regards

The Mould

[Good Question]

Thank you so much for citing these specific rules and directions. I'll try and plough through everything you've mentioned, and hope it'll make sense. Really appreciate the input, now at least I've got a starting point for filling in the form. Good to know about filing by e-mail too (haven't checked the details on that yet but it sounds like it'll be ok, which should save a couple of days).

 

Best wishes,

Sue

[Good Question]

Hello Mould and everyone else - still wrestling with Form N244 (application notice).

So many things I just don't 'get'. Sorry to be so dim, but... the Small Claims is meant for lay people, yet there's so much knowledge needed at every turn that simply isn't obvious, and I don't seem to be able to find out by googling etc. The CPR rules confuse me more than clarifying.

 

Summary: I was advised by court staff to fill in a Form N244 because I need to change my counterclaim against window fitters. This is because one window has now developed cracks that let in cold air from outside - can even see light shining through (makes the double glazing rather pointless). Some other problems came out after filing counterclaim, to do with fitting (not well sealed - noise levels from outside indicate insufficient insulation).

 

Because we were only given a very short deadline to file all the documents, the date given on the order for serving documents etc also needs to be changed, because getting the relevant three quotes will take ages (people don't like quoting when they hear 'court case').

 

Which brings up another thing I am fretting about: the Order is dated 1st March. It says 'any party may apply within 7 days ... to be set aside or varied'. But we only received the letter (date stamped 13th March) on the 15th. So... when did the count start for those 7 days? and does that affect the request to change the counterclaim?

 

I'll paste in further down what I've written so far to ask for varying the order. But first here are other points from that form which I just can't work out and have been fretting over all afternoon:

 

4. 'have you attached a draft of the order you are applying for' - I've said 'no' because I have no draft. Is this question meant for solicitors?

5. 'How do you want this application dealt with' - it offers 'hearing' or 'without a hearing' - I don't want a hearing but I don't know whether the situation requires a hearing. Is it ok to tick 'no hearing'?

8. 'what level of judge does your hearing need' - I don't know! The Order we got is by a District Judge - should I fill in 'District Judge' or say 'I don't know', or something else?

9. 'Who should be served with this application' - no help from guidance notes: how do I answer this one?? I have no idea... I guess the Claimant, but what if I'm wrong?

10. 'What information will you be relying on, in support of your application: attached witness statement/statement of case/evidence set out in the box below' (there is a big box). I don't really understand what Statement of Case is. I have no evidence so far other than my observation that there are gaps opening up in the joints of the window and that I can dig several fingers into a hollow underneath the sill where there is only cold air, no expanding foam (can't look in, is obscured). Is that something I should just write up in the box?

 

The key point of the form is Number 3.: 'what order are you asking the court to make and why'. Here is what I have written:

 

"We are respectfully requesting the Court’s leave to amend our Counterclaim against XXXX. The reason for this request: we have recently found further significant problems with regard to the windows built and fitted by the Claimant and his employees. Specifically, gaps have opened in the joints of one of the windows, i.e. this window is not sealing the room against the outside; cold air is entering the room. We have also since found further indications that the fitting of the windows in question was even more poorly executed than first suspected. For these reasons, additional quotes from appropriate companies will need to be sought. This is to - Help identify and specify faults in the fitting and construction of the windows

- Adjust the monetary value of the Counterclaim.

As we have found when previously seeking quotes that companies may refuse to quote due to the legal dispute aspect, it may take longer to obtain suitable quotes than usual.

In support of the request to amend our Counterclaim, we therefore respectfully ask that the Court vary the Order given on 1st March 2013 accordingly, to allow for extensions of all deadlines mentioned in the Order, as appropriate"

 

I would be so grateful for any help with this. I feel really stupid, and it's so important to get it right. Great to know there's some people more clued up than I am.

 

Appreciatively,

Sue

[AndyOrch]

The Draft needs to be properly formatted correctly...... format as follows:-

 

 

 

Edit to suit

 

 

#### START OF ORDER ####

 

In the ......... county court

Claim No. ...

 

Before

 

District Judge ………

 

 

Dated ……… 20…

 

 

Claimant A

 

and

 

Defendant B

 

 

 

Draft/ORDER

 

 

IT IS ORDERED THAT:

 

1. We are respectfully requesting the Court’s leave to amend our Counter-claim against XXXX. Pursuant to CPR 23 & CPR 17 PD17.1

2. Adjust the monetary value of the Counterclaim.

 

3.We have found when previously seeking quotes that companies may refuse to quote due to the legal dispute aspect, it may take longer to obtain suitable quotes than usual.

In support of the request to amend our Counter-claim, we therefore respectfully ask that the Court vary the Order given on 1st March 2013 accordingly, to allow for extensions of all deadlines mentioned in the Order, as appropriate

 

#### END OF ORDER ####

 

 

 

"4. 'have you attached a draft of the order you are applying for' - I've said 'no' because I have no draft. Is this question meant for solicitors? See above

5. 'How do you want this application dealt with' - it offers 'hearing' or 'without a hearing' - I don't want a hearing but I don't know whether the situation requires a hearing. Is it ok to tick 'no hearing'? Yes

8. 'what level of judge does your hearing need' - I don't know! The Order we got is by a District Judge - should I fill in 'District Judge' or say 'I don't know', or something else? District Judge

9. 'Who should be served with this application' - no help from guidance notes: how do I answer this one?? I have no idea... I guess the Claimant, but what if I'm wrong? The Claimant

10. 'What information will you be relying on, in support of your application: attached witness statement/statement of case/evidence set out in the box below' (there is a big box). I don't really understand what Statement of Case is. I have no evidence so far other than my observation that there are gaps opening up in the joints of the window and that I can dig several fingers into a hollow underneath the sill where there is only cold air, no expanding foam (can't look in, is obscured). Is that something I should just write up in the box?" Awaiting Quotations

 

Regards

 

Andy

[Good Question]

Thank you so much, Andy! Almost all clear, and incredibly helpful. Just to be sure: do I fill in Box 3. as I wrote it in previous mail + also use that text, just as you have formatted it in your reply, to draw up a Draft Order myself, which I would attach to the form?

 

Really grateful and cautiously sighing relief,

Suse

[AndyOrch]

Yes complete section 3 with your original ......I only amended it for the draft directions...then attach your Draft to the application notice.Tick yes to point 4:wink:

[Good Question]

Thank you so much - almost ready to send off the form now, and it feels great to have a bit of confidence.

 

But I've got another question: if the new quotes, once we've got them, take the thing over the £5000 cut-off, what happens? I'm asking because I think it is very likely, given the problems we're now uncovering. I'd be grateful for some indication of the various options.

 

Cheers!

Sue

[AndyOrch]

How much is their initial claim GQ?

[Good Question]

Cheers, Andy. They claimed £1100, the money we withheld from them once we realised there were real problems - about 10% of the total. We have claimed £2500 to cover raking out the unsuitable caulk they used to fit the windows, repair damage to plaster from smashing out windows, and re-painting - not enough even for that, but we didn't have proper quotes in yet nor the results from the Dulux paint check when we initially had to respond.

 

What the extra work might cost I have no idea. Going to try and get some actual window makers in to take a look now, although as I've noticed before where there is a legal case people can work out quickly they may well not get the job and so don't want to quote. I'm now guessing the windows may need to be taken out entirely, repaired, and the fitting re-done, so we could be talking thousands more. Arrrgh.

 

Thanks for your help.

Sue

[Old Cogger]

wish we had kept back some costs at the time of ours, but the missus mis heard what I said about paying them as the windows (4) did not fit so boarded up, the next day they came and fitted the rest, had to call them back on one occasion as one of the teams effort was rubbish the 2nd team who fitted the upstairs repaired the 1st team crap work, and stated they were leaving the company as they were fed up loosing money repairing 1st teams shoddy workmanship all the time. well after 2 .5 years trouble with the window misting, cost £150 + to replace some of them (glass), even now most of the other glass is useless, did complain only to find out they had gone out of business 18 months after fitting the windows, the glass & glazing federation did not want to know as they were not members it seems.

[AndyOrch]

Ok you add their claim amount to your Counter Claim amount so it becomes a combined figure...providing you cap it to 5K it remains SCT.Any further recompense would have to be by issue of a separate claim yourself.

 

Pity it wasn't post 1st April as the threshold changes to £10k for SCT:roll:

 

Regards

 

Andy

[Good Question]

Oh... that's interesting. Do the courts go by when the first claim was made, then? Because the adjusted counterclaim, assuming this Form N244 is accepted, could certainly not go in before 1st April. I wouldn't want to file a separate, fresh claim against the other side, even if I thought they might pay up. We only filed the counterclaim because, having been forced into defending ourselves, we felt this would give us a better chance of showing how bad the workmanship is - and also to have a compromise to offer - you drop yours, we'll drop ours, sort of thing.

 

In an ideal world, I'd rather have the whole thing dropped; still find it hard to believe these joiners are still pursuing their claim, when they must know how the evidence stacks up. I'd rather lose out on having the windows repaired professionally (we'd have to do it ourselves, basically) but better than all this stress.

[AndyOrch]

Yes this is pre CPR change and unfortunately the old guidance applies (it runs from the date the claim was issued not the CC).I most certainly agree with you that counter claiming can be a tool of leverage and they may well yet back down once they have considered your intended counter.

[Good Question]

Hi everyone - no questions this time, just an update, bascially for anyone who ever browses here in search of info: Filed Form N244. Now I've got a week to comply with the original order because it arrived at the weekend and I could only find out about how to vary the counterclaim on Monday (and all the questions about that form over the days since). I thought this was worth a mention because I was so surprised to learn (doing some very careful reading between the lines from the court enquiries person, who would not give a straight answer about this) that I definitely have to comply with the original deadline, instead of being allowed to wait for the judge's decision. So ... I'll probably have to be back with more hapless questions about how to fully comply with the Order. Do my best not to bother y'all too much.

 

Thank you very much for all the help so far.

Sue

[Good Question]

Hi again - update. I had been given to understand that an Order has to be complied with even if it is about to be superseded by something else. At the weekend I got talking to a lawyer at a social event and expressed my surprise at this. He told me I don't have to comply with the Order if there is a request to vary my counterclaim pending and the request was made within the 7 day limit given in the order. He really seemed to know his stuff, so I'm going with that. Phew.

 

Cheers.

Sue

[Good Question]

Happy just-after-Easter everyone. Here is yet another question from the small claims minefield: filed a form N244 to vary the counterclaim a couple of weeks ago, and obviously still waiting to hear (courts seem to take a couple of months for any sorts of responses). This overlapped with dates for delivering documents given in the court order we had received.

 

So the other side have now sent an envelope with papers. I haven't opened it yet, because I am wondering the following: if I open this, then I could be 'ahead' of the other side because I haven't reciprocated (pending permission to vary the counterclaim, which will change our evidence). I tried to ask at the court, but as before they just told me they are not allowed to tell me anything that relates to procedure.

 

Is there some rule regarding viewing the documents they have sent in these circumstances? Only asking because I assume knowing what evidence the other side hope to rely on could give me some advantage in putting together my own evidence - and so I imagine there might be a rule that says one musn't view such information. Can anyone shed any light on this?

 

Grateful for any advice.

Sue

[citizenB]

Happy just-after-Easter everyone. Here is yet another question from the small claims minefield: filed a form N244 to vary the counterclaim a couple of weeks ago, and obviously still waiting to hear (courts seem to take a couple of months for any sorts of responses). This overlapped with dates for delivering documents given in the court order we had received.

 

So the other side have now sent an envelope with papers. I haven't opened it yet, because I am wondering the following: if I open this, then I could be 'ahead' of the other side because I haven't reciprocated (pending permission to vary the counterclaim, which will change our evidence). I tried to ask at the court, but as before they just told me they are not allowed to tell me anything that relates to procedure.

 

Is there some rule regarding viewing the documents they have sent in these circumstances? Only asking because I assume knowing what evidence the other side hope to rely on could give me some advantage in putting together my own evidence - and so I imagine there might be a rule that says one musn't view such information. Can anyone shed any light on this?

 

Grateful for any advice.

Sue

 

If they have sent you information, you are entitled to read it. If they have sent it in error, then that is their problem.

[Good Question]

Hi everyone - another update, another yelp for help...

 

So far: cowboy window people made MCOL claim against us as we withheld (a small amount of) money from their final bill. Recently filed request to vary the counterclaim (form N244) as further problems with the windows had emerged since original counterclaim.

 

Then - two days before going on holiday 10 days ago, received an order that we must attend a hearing for this request: but on the day after our holiday, and provide evidence re change of claim. Rang court in panic: advice was to send e-mail showing holiday bookings evidence and ask for deferral (implication was this would be granted). Hearing would have been today.

 

So now: got an order in the post today stating that the request to adjour is dismissed and that we must attend the hearing with draft of counterclaim. Which we could not do, because we didn't get the letter till today. Also says I can request to vary/set aside this order within 7 days - but the hearing is already done and there will be a separate order resulting from the hearing. So I could apply to vary the order I just got (to say compliance wasn't possible and please can we have a different hearing date?) - and this would overlap with another order being issued as a result of the hearing we did not attend today.

 

Arrrrgh... how is a normal bod meant to deal with this sort of thing without legal advice? I thought this whole thing was already too much for my small brain - now it seems to be getting worse and worse!

 

Wish I'd just paid those nasty men, even though they have ripped us off so badly - it's cost me so much in time, nerves, misery!

 

Any advice on this would be ever so welcome - I'm finding the situation really scary.

Cheers.

Sue

[Good Question]

Hello again! The saga continues... after some legal contortions, we now do have permission to submit a draft for amending our original counterclaim. So I'd love a bit more advice, please:

 

Question: the joiner says our dispute with him is not valid because we did not raise our concerns with him before he left the premises (this is untrue anyway - we raised several concerns while the work was going on).

 

Is there legal chapter and verse I can quote about consumer rights in relation to this? Where can I find official guidance about time limits for complaints in the building trade, and legalese paragraphs etc? I have tried looking for something like 'time limit' in the consumer rights act but can't find anything that seems to fit. We originally raised our concerns within three weeks, in an official letter following a Citizens Advice template, after a builder confirmed the work was really poor standard.

 

I'd be grateful for suitable links. Cheers!

Sue

[steampowered]

I've never heard of any guidance saying that you have to raise problems before the builder leaves the premises. I do not think this is a good Defence. You can simply say in your witness statement (1) you were under no obligation to raise concerns before he left the premises and it does not affect his obligation to work to the standard of a reasonably competent builder and (2) in any event the concerns were raised.

[Good Question]

Thanks, Steampowered. I agree that it can't be a good defence - but was hoping to be able to add in some definite regulation about this, just in case the judge who finally looks at this (not till August... but have to submit now) doesn't know the rules himself/to make even the obvious as crystal clear as possible.

 

Although we raised several concerns before they left, the claimant is simply denying this, so no proof on that one. Sigh... amazing how difficult it can get to prove something when the other side is happy to tell straight lies.

 

Cheers,

Suse